Dominic v Kaupa [2024] PGSC 100; SC2632 (22 August 2024)

SC2632

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 44 OF 2023

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
PETER DOMINIC
Applicant

AND:
JOHN KAUPA
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2024: 18^th June, 22^nd August

SUPREME COURT REVIEW – ELECTION PETITION – PRACTICE AND PROCEDURE - Application for leave to make a slip rule application – applicant seeks leave to make a slip rule application pursuant to Order 11 Rule 32(1), (2) and (3) Supreme Court Rules - order also sought for the Decision to be recalled and reviewed pursuant to Schedule 2.2 Constitution and the inherent jurisdiction of the Supreme Court - First respondent objects to the competency of the Leave Application on the ground that Order 11 Rule 32(1), (2) and (3) Supreme Court Rules does not give jurisdiction to a single Supreme Court Judge to hear a slip rule application – consideration of - Order 11 Rule 32(2) and (3) do not provide the jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court - Schedule 2.2 Constitution does not provide for the recall or review of a decision, judgment or order - the objection of the first respondent is upheld - application for leave to make a slip rule application dismissed

Cases Cited:

Joseph Kobol v. William Powi (2018) SC1731
William Hagahuno v. Johnson Tuke (2020) SC2018

Counsel:

Mr. C. Gagma, for the Applicant
Mr. M. Joseph, for the First Respondent

22^nd August 2024

1. HARTSHORN J: This is a decision on a contested application for leave to make a slip rule application (Leave Application).

2. The proposed slip rule application concerns my judgment which dismissed an application for leave to review the decision of the National Court that dismissed an election petition (Decision)

Background

3. The first respondent was declared the elected Member of Parliament for the Port Moresby North East Open Electorate in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. On 22^nd June 2023, the election petition was dismissed after the respondents’ objections to competency were upheld. The applicant filed an application for leave to review on 6^th July 2023 and this was dismissed on 3^rd April 2024. That Decision is the subject of this Leave Application.

Leave Application

4. The applicant seeks leave to make a slip rule application pursuant to Order 11 Rule 32(1), (2) and (3) Supreme Court Rules. An order is also sought for the Decision to be recalled and reviewed pursuant to Schedule 2.2 Constitution and the inherent jurisdiction of the Supreme Court.

Objection

5. The first respondent objects to the competency of the Leave Application made pursuant to Order 11 Rule 32(1), (2) and (3) Supreme Court Rules on the ground that Order 11 Rule 32(1), (2) and (3) Supreme Court Rules does not give jurisdiction to a single Supreme Court Judge to hear a slip rule application. Reliance is placed upon my judgment in Joseph Kobol v. William Powi (2018) SC1731.

6. The applicant submits that this court should consider the words, “unless the contrary intention appears”, in Order 1 Rule 7(1) and Order 11 Rule 1 Supreme Court Rules and that the definitions of “Court”, “Judge” and “order” should be defined in the context of a slip rule application in respect of a judgment by a single Supreme Court Judge. Further, pursuant to the judgment of William Hagahuno v. Johnson Tuke (2020) SC2018 and its consideration of s. 217 Organic Law on National and Local-level Government Elections, as the Decision concerns an election petition, real justice should be observed rather than a technical interpretation, of what is described as, “very cumbersome and ambiguous words or phrases” of the Supreme Court Rules.

7. As to the submission that the various relevant definitions should be interpreted pursuant to the words, “unless the contrary intention appears”, these words were considered by the court in Kobol v. Powi (supra) at [16] and [17] as follows:

“16. In determining the intention apparent in Order 11 Rule 32(2) and (3), the following factors in my view are relevant:

a) in Rule 32(3), a distinction is made between a “Judge” of the “Court” and the “Court”. This indicates that the differences in how the Supreme Court may be constituted were specifically considered when this Rule was drafted;

b) the use of the word “shall” in Rules 32(2) and (3) is indicative of these Rules being drafted for a specific, as distinct from a general, application.

17. After a consideration of the above factors, I am of the view that the interpretation of the word “Court” in Order 11 Rule 32(2) and (3) should be as defined in Order 1 Rule 7 as a contrary intention is not apparent that “Court” should be interpreted other than as defined.”

8. No submissions have been made to my mind, which would lead to this court departing from the definitions set out and stated in the Supreme Court Rules.

9. As to the submission that real justice should be observed in the interpretation of the Supreme Court Rules as the Decision concerns an election petition, the Supreme Court Rules under consideration are not specifically for a particular class of case apart from being concerned with, “Applications subsequent to disposal of proceedings”. The comments concerning real justice being observed in relation to election petition matters should be considered in the context of legislation which is specifically concerned with an Election Petition.

10. From a consideration of the submissions and the relevant Supreme Court Rules, I am not of the view that there should be a departure from the definitions set out and stated in the Supreme Court Rules and the interpretation of Order 11 Rule 32 (2) and (3) Supreme Court Rules as set out in Kobol v. Powi (supra).

11. Consequently, as Order 11 Rule 32(2) and (3) do not provide the jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court, the objection of the first respondent is upheld.

12. The applicant also seeks to recall and review the Decision pursuant to Schedule 2.2 Constitution as part of the underlying law and pursuant to the inherent jurisdiction of the Supreme Court to correct its own mistakes or slips.

13. Schedule 2.2 Constitution does not provide for the recall or review of a decision, judgment or order. As to the inherent jurisdiction of a single Supreme Court Judge to correct his own mistakes or slips, I reproduce and rely upon [21] and [22] of Kobol v. Powi (supra):

“21. I am satisfied upon a consideration of Order 11 Rule 32(2) and (3) that these provisions do not refer directly or indirectly to a decision of a single judge of the Supreme Court being the subject of a slip rule application and do not provide the jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court.

22. The applicant submits that this court cannot be denied its right to revisit its decision to correct a slip. It is the case however, that the Supreme Court Rules have specifically provided for a slip rule application and the requisite procedure, but that provision and requisition does not provide for or permit a slip rule application in respect of the decision of a single judge of the Supreme Court. To that extent, any right to revisit such a decision that may have previously existed has been adversely affected.”

14. For the above reasons, this Leave Application should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

a) The application for leave to make a slip rule application filed 18^th April 2024 is dismissed.

b) The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to make a slip rule application.

_____________________________________________________________
Gagma Legal Services: Lawyers for the Applicant
Mawa Lawyers: Lawyers for the First Respondent