Kariko v Ngangan [2023] PGSC 70; SC2420 (30 June 2023)

SC2420

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 114 OF 2022

BETWEEN:
JACK KARIKO in his capacity as SECRETARY FOR NATIONAL JUDICIAL STAFF SERVICE (NJSS)
First Appellant

AND:
DR. KEN NGANGAN in his capacity as SECRETARY FOR DEPARTMENT OF FINANCE
First Respondent

AND:
DEPARTMENT OF FINANCE
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: David, J
2023: 26^th & 30^th June

PRACTICE AND PROCEDURE – application subsequent to disposal of proceedings –slip rule application – leave required to file slip rule application – leave refused - Supreme Court Rules 2012, Order 11 Rule 32.

Cases Cited:

Papua New Guinean Cases
Inakambi Singorom v John Kalaut [1985] PNGLR 238
Re Trawen v Kama (2010) SC1063
Agiru v Kailabe (2015) SC1412
Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944
Kandapaki v Enga Provincial Government (2015) SC1463
Waim 85 Ltd v Independent State of Papua New Guinea (2015) SC1470
The Independent State of Papua New Guinea v Sylvester Kalaut (2022) SC2246

Overseas Cases

Adler v George (1964) 2 QB 7
River Wear Commissioners v Adamson (1877) 2 AC 743
Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231
Re British Concrete Pipe Association [1983] 1 All ER 203

JUDGMENT

30^th June, 2023

1. DAVID, J: INTRODUCTION: This is my ruling on a contested Application for Leave to File Slip Rule Application (Application for Leave) filed by the applicant on 20 April 2023 under Order 11 Rule 32(3) of the Supreme Court Rules alleging that the full Court committed a slip in the judgment it delivered on 30 March 2023 and orders made dismissing the applicant’s appeal. The applicant had sought before the National Court declarations and orders aimed at implementing a decision of the Judicial Council (a body established under s.3A of the National Judicial Staff Service Act (NJSS Act)) made on 18 February 2020 which approved salary increases for officers of the National Judicial Staff Service (NJSS) established under the NJSS Act. The respondents oppose the Application for Leave.
   

EVIDENCE

2. The applicant relies on the Affidavit of Jack Kariko sworn on 5 June 2023 and filed on 14 June 2023. No issue was taken by the respondents as to why the affidavit mentioned at Item 3 of the Application for Leave to File Slip Rule application being that of Jack Kariko sworn on 19 April 2023 was not used. Given that, I will allow the applicant to use the affidavit filed on 14 June 2023.
   
3. The respondents have not relied on any affidavit evidence.
   

LAW

4. Order 11 Rule 32 of the Supreme Court Rules (Miscellaneous Amendment) Rules 2022 allows for a slip rule application to be filed within 21 days of the order disposing of the proceeding (Order 11 Rule 32(1) and leave is required (Order 11 Rule 32(3).

5. The basis of a slip rule application was decided by a five-member bench of the Supreme Court in Re Trawen v Kama (2010) SC 1063 and these are:

1. The purpose is to correct a glaring error or mistake in a judgment or order of the court such as a clerical mistake, an accidental omission or misinterpretation of fact or law.
2. It is not available under Section 155(2)(b) (as that concerns the inherent power to review the judicial acts of the National Court) or Section 155(4) of the National Constitution.
3. It is generally made before the Court constituted by the same judges who heard and determined the appeal or review unless a judge was or judges were not available in which case the Chief Justice may appoint replacement judges.
4. Leave is required by the very nature of the application.
   

6. Generally, in a slip rule application, it is incumbent upon the applicant to establish that:

1. The original decision contained a glaring (or clear and manifest) error or mistake of fact or law. It must be something that stands out above all else and is not merely arguable; and
2. The error of fact or law concerned a critical issue; and
3. The misapprehension of fact or law was not the applicant’s own making.
   

7. In deciding whether to grant or not to grant a slip rule application, it is a matter of discretion bearing in mind:

1. There is substantial public interest in the finality of litigation.
2. On the other hand, any injustice should be corrected.
3. The purpose is not to allow rehashing of arguments already raised or to allow raising of new arguments that were not put before the Court making the order from which the application arises.
   

8. The Supreme Court must be slow to considering a slip rule application, hence the requirement to seek leave as a pre-condition.

9. The principles applying to an application for leave for a slip rule application were stated in Agiru v Kailabe (2015) SC1412 and these are:

1. An applicant filed the application for leave within 21 days after the order disposing of the proceedings; and
2. The applicant must satisfy the Court that the slip rule application would have a strong chance of success.
   

10. These principles were recently considered and applied in Kandapaki v Enga Provincial Government (2015) SC1463, Waim 85 Ltd v Independent State of Papua New Guinea (2015) SC1470 and The Independent State of Papua New Guinea v Sylvester Kalaut (2022) SC2246.

CONSIDERATION

Time limitation

11. The appeal was heard on 28 March 2023 and determined on 30 March 2023. It was dismissed primarily because the Judicial Council does not have the requisite power or function under the NJSS Act to recommend or determine salaries of NJSS officers.

12. The Application for Leave was filed on 20 April 2023. It was filed within the 21-day requirement of Order 11 Rule 32(1) of the Supreme Court Rules.

Strong chance of success

13. The applicant contends that the full Court slipped and therefore the Application for Leave should be granted because:

1. The full Court failed to consider the conduct of the trial judge giving rise to a potential apprehension of bias in the National Court proceedings and the influence he had on the manner in which the trial was conducted resulting in a decision that was made on his own volition;
2. The full Court failed to properly or completely interpret the provisions of the NJSS Act relating to the powers and responsibilities of the Secretary for NJSS particularly s.4(1) and (2) and s.10(1)(a) and (b) in accordance with the Golden Rule principle of statutory interpretation enunciated in Adler v George (1964) 2 QB 7;
3. The inferences of the reporting obligation placed upon the Secretary for NJSS to report/make submission to the Judicial Council – effectively conferring upon the Judicial Council with the responsibility to approve or deny any submission made by the Secretary for NJSS thereby expanding the scope of the Judicial Council’s functions beyond those specified in ss.17, 19, 20 and 22 of the NJSS Act;
4. The full Court failed to consider the administrative functions of the Chief Justice and NJSS as prescribed and described by s.169(3) of the Constitution of Papua New Guinea, NJSS Act and Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944;
5. The full Court failed to find that the Judicial Council actually has the power to recommend or determine salaries of NJSS officers pursuant to s.10 of the NJSS Act;
6. The full Court failed to consider the admission by the respondents’ counsel that the Judicial Council has such a power and the Judicial Council did make a decision on the subject; and
7. Consequently, the full Court did no consider all the grounds of appeal.
   

14. The respondents argue that leave should be refused as:

1. Slip Ground A which is predicated upon the alleged conduct of the trial judge potentially giving rise to an apprehension of bias in the National Court proceedings is without merit because; it is merely a statement without identifying any clear error of law or apprehension of bias; it was not pleaded as a ground of appeal, but raised in written submissions; it is misconceived and has no prospect of success; and it is an attempt to rehash arguments raised at the hearing of the appeal.
2. Slip Ground B is without merit and has no prospect of success because; it fails to identify any specific provision in ss.4 and 10 of the NJSS Act which gives the Secretary of NJSS or the Judicial Council the power to recommend or determine the salaries of NJSS officers; there are no clear provisions under ss.4 and 10 which confers any power on the Secretary for NJSS or the Judicial Council to determine salaries of NJSS officers; and it is misconceived and without any basis.
3. Adopting and repeating arguments made in relation to Slip Ground B, Slip Ground C is without merit and has no prospect of success because; it raises mere allegations and opinions which fall short of a proper ground for a slip rule application; there is lack of particularity on alleged misapprehension of facts and law.
   

Reasons for ruling

15. I have considered the parties’ submissions.

16. As to Slip Ground A, the alleged conduct of the primary judge potentially giving rise to an apprehension of bias in the National Court proceedings was not a ground of appeal and only referred to in submissions. The nature of a hearing under a slip rule application is neither to rehash arguments nor bring forth new grounds that should have been raised in the appeal. I accept the respondents’ submissions. This ground is without merit and is dismissed.

17. As to Slip Ground B, the applicant has urged the Court to apply the Golden Rule principle of statutory interpretation that he submits was enunciated in Adler v George (1964) 2 QB 7. The Golden Rule is an extension of the literal rule of statutory interpretation which is that words in a statute are to be given their ordinary meaning unless the interpretation should lead to some absurd result.

18. In The River Wear Commissioners v William Adamson (1877) 2 AC 743 at 764, Lod Blackburn stated the Golden Rule as follows:

“... we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied, they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification which, though less proper, is one which the Court thinks the words will bear.”

19. In Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 235, Lord Simon of Glaisdale stated the rule as requiring a court:

“to apply statutory words and phrases according to their natural and ordinary meaning without addition or subtraction, unless that meaning produces injustice, absurdity, anomaly or contradiction, in which case you may modify the natural and ordinary meaning so as to obviate such injustice etc but no further”.

20. In Re British Concrete Pipe Association [1983] 1 All ER 203 at 205, Sir John Donaldson MR said:

“... if, giving words their ordinary meaning, we are faced with extraordinary results which cannot have been intended by Parliament, we then have to move on to a second stage in which we re-examine the words and see whether they must in all circumstances have been intended by Parliament to have a different meaning or a more restricted meaning.”

21. The common law approaches of statutory interpretation have been succeeded or subsumed by statute in Papua New Guinea. Under Schedule 2.2 of the Constitution, the principles of common law and equity that applied in England immediately before Independence are adopted as part of the underlying law of Papua New Guinea except if, and to the extent that; they are inconsistent with a Constitutional Law or a statute; or they are inapplicable or inappropriate to the circumstances of the country from time to time; or in their application to any particular matter they are inconsistent with custom as adopted by Part 1, Schedule 2.1 of the Constitution.

22. Sections 109(4), 158 (2) and Schedule 1.5 of the Constitution are guides to statutory interpretation of constitutional laws and other legislation. Rules or maxims of interpretation may be considered where appropriate as they are not substantive law and cannot override clear and explicit parliamentary intention in any legislation: Inakambi Singorom v John Kalaut (1985) PNGLR 238.

23. Section 109(4) states:

“Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.”
24. Section 158(2) states:

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”
25. Schedule 1.5 states:

“(1) Each Constitutional Law is intended to be read as a whole.

(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”
26. In short, these provisions demonstrate that the standard of interpretation imposed for interpreting constitutional laws should be adopted and used in interpreting statutes which are less superior to them as well. Kidu, CJ in Inakambi Singorom v John Kalaut (1985) PNGLR 238 at 241-242 clearly expresses this point where he observed:

“Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. In this jurisdiction these rules are subject to two very important constitutional provisions: (a) fair and liberal interpretation (Sch 1.5 (2) ) and (b) the paramountcy of justice (s 158 (2). Schedule 1.5 (2), I know, relates to the interpretation of constitutional laws, but if constitutional laws, which are higher laws than Acts of Parliament, must be given their fair and liberal meaning, it is my view that that means that ordinary laws must be given their "fair and liberal meaning". Section 158 (2) says that in interpreting laws the courts must "give paramount consideration to the dispensation of justice".

Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact Parliament's legislative power, subject to the Constitution, is unfettered (the Constitution, s 109 (1) ), and laws made by Parliament "shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit" (s 109 (4) ). I have said the above to emphasise that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to over-ride clear and explicit parliamentary intent in legislation. This is not saying that I support "the strict literal and grammatical construction of the words, heedless of the consequences" approach to statutory interpretation: see PLAR No 1 of 1980 [1980] PNGLR 326.

The "purposive" rule of interpretation urged by Wilson J and Andrew J in PLAR No 1 of 1980 must not be used by the courts to nullify laws which are clearly constitutional and which clearly and unambiguously state the intentions of the legislature. What I am saying can be stated simply this way: Where Parliament says in an Act that "dogs" are to be registered if they are pets, a court cannot say that "dogs" means "pigs" simply because pigs are sometimes raised as pets.”
27. It is instructive that I set out below ss.3A(4), 4 and 10 of the NJSS Act.

28. Section 3A(4) of the NJSS Act states:

“The functions of the Council are as specified in this Act and the Council has full power to carry out its functions.”

29. Section 4 of the NJSS Act states:

“THE SECRETARY

(1) The Office of the Secretary of the National Judicial Staff Service is established.

(2) The Secretary is the Head of the Service, and is responsible to the Council for the general working and then efficient conduct of the business of the Service.

(3) He shall be appointed by the Judicial and Legal Services Commission for a term not exceeding three years and is eligible for re-appointment.

(4) The salary and other conditions of employment of the Secretary shall be determined by the Commission after consultation with the Departmental Head of the Department responsible for personnel management matters.

(5) Where the Secretary is absent from his office or is unable to perform the duties of his office, or when there is a vacancy in the office of Secretary, the Commission may appoint another officer to act in the place of the Secretary during his absence or inability, or may appoint an officer to fill the vacancy temporarily. “

30. Section 10 of the NJSS Act states:

RESPONSIBILITIES OF SECRETARY

(1) The Secretary shall report to the Council whenever the necessity arises-

(a) any allegations in the organization, staffing or management of the Service that are, in his opinion necessary or expedient for the more economical, efficient or convenient working of the Service or any branch of it; and
(b) any alterations that are, in his opinion, necessary in the salaries or allowances of any of the officers or employees of the Service.

(2) The Secretary shall bring to the attention of the Council any matter, whether in relation to an officer or to the work of a branch or section of the Service, that he thinks it desirable for the Council to be acquainted with.”

31. The pertinent findings of the full Court are set out at [8] to [13] of the judgment and I restate them below:

“8. From a perusal of the NJSS Act, notwithstanding that s.3A(4) provides that the functions of the Judicial Council are as specified in the NJSS Act and that the Judicial Council has full power to carry out its functions, there is no section in the NJSS Act which specifies such functions. The only references to the Judicial Council and to powers conferred upon it are contained in ss.17, 19, 20 and 22. These sections are concerned with disciplinary and criminal offences. No functions per se of the Judicial Council are set out in the NJSS Act. Specifically, no functions or powers are conferred upon the Judicial Council to recommend or determine the salaries of NJSS officers.

9. The submission that under the NJSS Act the Secretary has the responsibility to report to the Judicial Council and that his responsibility has the effect of providing the necessary authority to the Judicial Council to determine or recommend salaries, is flawed, particularly when s.3A(4) NJSS Act provides that the functions of the Judicial Council are as specified in the NJSS Act. The Judicial Council is created by statute and does not exist otherwise. Any functions and powers of the Judicial Council are not able to be assume or implied. If functions or powers are to be bestowed upon or removed from the Judicial Council, this should occur by way of statute or statutory provision.

10. That the Judicial Council does not have the requisite power or has not been conferred with the requisite functions, is perhaps tacitly acknowledged by the appellant in the submission document dated 18 February 2020 prepared by him at ”F Recommendation” at [2]. It states:

“It is recommended that the Judicial Council:

1. ....

2. Directs the Secretary, NJSS to incform the Chairman, SCMC of the Judicial Council Decision for implementation.”

11. In any event, as the NJSS Act does not confer on the Judicial Council the requisite power or function to recommend or determine salaries of NJSS officers, the appellant has failed to show that the primary judge fell into error in his finding as such. Consequently, ground of appeal 3(a)(i) is refused.

12. As the Judicial Council does not have the requisite power or function to recommend or determine the salaries of NJSS officers, the other grounds of appeal and submissions of counsel do not require consideration. The relief which was sought in the further amended originating summons could not have been granted given that the Judicial Council does not have the requisite function or power and the primary judge did not fall into error in refusing all of the relief sought. This appeal should be dismissed.

13. As an aside, we mention that from a perusal of the NJSS Act, it is apparent that a vacuum exists in regard to the functions of the Judicial Council. Its functions are stated as specified in the NJSS Act, but no functions are specified.”

32. I appreciate the applicant’s submissions or contentions on; the administrative nature of the NJSS established under s.2 of the NJSS Act (Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944) whose functions are prescribed under s.3 of the NJSS Act; responsibilities of the Secretary for NJSS prescribed under the NJSS Act; and the administrative functions of the Chief Justice prescribed under s.169(3) of the Constitution of Papua New Guinea. I have considered the whole statute and construed it together with ss.3A(4), 4 and 10 of the NJSS Act. The language used in ss.3A(4), 4 and 10 of the NJSS Act is clear and raises no absurdity. Notwithstanding s.3A(4), neither s.4 nor s.10 expressly confers any power on the Secretary for NJSS or the Judicial Council to determine the salaries of NJSS officers.

33. Consequently, any decision made by the Judicial Council as to the determination of salaries of the officers of NJSS which was conceded at the hearing of the appeal (p.25 Transcript, annexure B to the affidavit of Jack Kariko) was done beyond its powers or legislative authority. In addition, any admission or concession by counsel for the respondents that the Judicial Council had power to make that decision ought to have been done according to law and from the observations made above, this does not operate in favour of the applicant.

34. In the result, I concur with the respondents’ submission. The applicant’s allegation that the full Court committed a slip in its findings regarding whether or not the Secretary for NJSS or Judicial Council had power to determine the salaries of NJSS officers is misconceived and without any basis. This ground has no prospect of success.

35. As to Slip Ground C, the applicant alleges, amongst others, that the Supreme Court slipped when:

1. It failed to consider that the National Court allowed the tender from the bar table and admission into evidence of a letter from the Secretary of the Department of Personnel Management despite objection from the applicant without giving the applicant the opportunity to test or challenge the evidence in breach of the “best evidence rule and in denying the applicant a fair hearing.
   
2. It failed to consider the respondents’ concession in their submissions that there was a Judicial Council decision on the salaries of NJSS officers.
   

36. I have addressed, the question of the admission or concession made by counsel for the respondents already. It was not made according to law.

37. The rise and fall of the appeal depended very much on the interpretation of ss.3A(4), 4 and 10 of the NJSS Act. The judgment of the full Court speaks for itself and I have reproduced excerpts of it containing its findings on those provisions. The applicant has failed to demonstrate to me that the full Court proceeded on a misapprehension of fact or law for making those findings and deciding not to consider other grounds of appeal and submissions of counsel. I find no glaring error or mistake of fact or law in the judgment that warrants correction. This ground has no prospect of success.

CONCLUSION

38. Not all pre-conditions for the grant of leave have been satisfied. The applicant has failed to demonstrate to my satisfaction that the slip rule application he proposes filing would have a strong chance of success. In the exercise of my discretion, I refuse leave. As to costs of and incidental to the application, the respondents seek costs on an indemnity basis. No affidavit evidence was brought before me by the respondents suggesting that the applicant was forewarned about claiming costs on an indemnity basis and the reasons given for claiming such costs. That was conceded upon my enquiry. In the circumstances, I am not persuaded that costs should be ordered on an indemnity basis. Costs will follow the event, ie, costs are awarded to the respondents on a party-party basis, which shall, if not agreed, be taxed.


ORDERS

39. The formal orders are:

1. The application for leave under Order 11, Rule 32(3) of the Supreme Court Rules 2012, to make a slip rule application in relation to the judgment and orders of the full Court made on 30 March 2023 is refused.

2. The costs of an incidental to the aplication for leave are awarded to the respondents on a party-party basis which shall be taxed, if not agreed.

3. The time for the entry of the orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment and orders accordingly.

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Kulu Legal: Lawyers for the Applicant
Solicitor-General: Lawyers for the Respondents