Nema v Kaiwi [2025] PGSC 101; SC2800 (4 November 2025)

SC2800

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC REV (EP) NO 13 OF 2024

PATRICK NEMA
Applicant

V

SIMON KAIWI
First respondent

ELECTORAL COMMISSION
Second respondent

&

SC REV (EP) NO 14 OF 2024

WILLIAM TONGAMP
Applicant

V

SIMON KAIWI
First respondent

ELECTORAL COMMISSION
Second respondent

WAIGANI: SALIKA CJ, CANNINGS J,
KARIKO J, MURRAY J, AUKA J

3, 4 NOVEMBER 2025

SUPREME COURT – application to set aside final decision of Supreme Court on the ground that the Court was unlawfully constituted – whether the Supreme Court has jurisdiction to hear an application to set aside its final decision – whether a Judge who grants leave for a Supreme Court election petition review is prohibited from sitting on the hearing of the substantive application – Supreme Court Act, s 2(1): a Judge shall not sit as a member of the Court if he has previously adjudicated on the merits of the case – Supreme Court Rules, Order 11 rule 32.

After the Supreme Court gave its final decision in two election petition reviews the first respondent in each matter applied to the Court to set aside its decisions on the ground that the Court was unlawfully constituted as one of the Judges had granted leave for the reviews to proceed and adjudicated on the merits of the reviews, and was prohibited from being a member of the Court by s 2(1) of the Supreme Court Act: “a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated ... on the merits of the case.” The applicants in each matter opposed the applications to set aside the final decisions, arguing that the Court had no jurisdiction to set aside its own decisions and even if it did, the applications to set aside should be refused as the applications had been made contrary to the Supreme Court Rules and had no merit as the Judge who granted leave made only interlocutory decisions and did not adjudicate on the merits of with case and were an abuse of process.

Held:

(1) The Supreme Court only has jurisdiction to set aside its own decisions in rare and exceptional circumstances such as those in which the slip rule applies. This is an inherent jurisdiction, which must be exercised as a matter of discretion carefully and sparingly only in the clearest of cases.

(2) The first respondent used form 4 of the Supreme Court Rules to make the applications, which was a proper way in which to approach the Court. It was unnecessary to seek directions as to the appropriate procedure under s 185 of the Constitution.

(3) The Court was not unlawfully constituted as the Judge who granted leave made an interlocutory decision only, noting that the applicants had raised an arguable case on important points of law in exceptional circumstances. There was no adjudication on the merits. The applications had no merit.

(4) Further, the applications were an abuse of process as the first respondent had the opportunity to object to the composition of the Court, but said nothing, and could not wait until after the final decisions were delivered and then argue that the Court was unlawfully constituted.

(5) The applications to set aside the final decisions of the Court were refused.

(6) Applications of this nature ought to be actively discouraged as they interfere with the principle of finality of litigation. Costs were awarded against the first respondent on a solicitor-client basis

Cases cited
Marabe v Tomiape [2007] 1 PNGLR 24
Nema v Kaiwi (2025) SC2773
Paraka v The State (2025) SC2792
Tongamp v Kaiwi (2025) SC2774

Counsel

SC Rev (EP) 13 of 2024
D Kipa for the applicant
E Isaac for the first respondent
L Dos for the second respondent

SC Rev (EP) 14 of 2024
G Manda for the applicant
E Isaac for the first respondent
L Dos for the second respondent

1. BY THE COURT: This Court gave its final decision in two election petition reviews on 9 September 2025:

• in SC Rev (EP) 13 of 2024, an application for review of the decision of the National Court in EP 79 of 2022 was granted and the decision of the National Court was quashed, the petition was reinstated and remitted to the National Court for hearing (Nema v Kaiwi (2025) SC2773); and
  
• in SC Rev (EP) 14 of 2024, an application for review of the decision of the National Court in EP 73 of 2022 was granted and the decision of the National Court was quashed, the petition was reinstated and remitted to the National Court (Tongamp v Kaiwi (2025) SC2774).
  

2. On 26 September 2025 the first respondent in each matter, Simon Kaiwi, applied to the Court to set aside its decisions on the ground that the Court was unlawfully constituted as one of the Judges, Justice Cannings, had granted leave for the reviews to proceed and adjudicated on the merits of the reviews, and was prohibited from being a member of the Court by s 2(1) of the Supreme Court Act: “a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated ... on the merits of the case.”

3. The applicants in each matter opposed the applications to set aside the final decisions, arguing that the Court had no jurisdiction to set aside its own decisions and even if it did, the applications to set aside should be refused as the applications had been made contrary to the Supreme Court Rules and had no merit as the Judge who granted leave made only interlocutory decisions and did not adjudicate on the merits of case.

4. The second respondent in each matter was the Electoral Commission. It neither supports nor opposes the applications of the first respondent.

JURISDICTION

5. The Supreme Court only has jurisdiction to set aside its own decisions in rare and exceptional circumstances such as those in which the slip rule applies. This is an inherent jurisdiction, which must be exercised as a matter of discretion carefully and sparingly only in the clearest of cases. This was recognised by the Supreme Court in one of the early cases that developed what has come to be known as the slip rule jurisdiction in Papua New Guinea: Marabe v Tomiape [2007] 1 PNGLR 24.

6. The present applications do not fall within the scope of the slip rule. The first respondent argues that the Court was unlawfully constituted. These are unprecedented applications.

7. We are satisfied that the applications meet the requirements of Order 11 rule 32(1) of the Supreme Court Rules, which states:

An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

We are prepared to entertain the applications.

FORM OF THE APPLICATIONS

8. The applicants argued that the form of the applications was deficient. The first respondent used form 4 of the Supreme Court Rules to make the applications.

9. We consider that that was a proper way in which to approach the Court. It was unnecessary to seek directions as to the appropriate procedure under s 185 of the Constitution.

MERITS OF THE APPLICATIONS

10. The first respondent bases the applications on s 2 of the Supreme Court Act, which states:

(1) Subject to subsection (2), a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case.

(2) A Judge is not precluded from sitting as a member of the Supreme Court in cases where he has given an interlocutory judgment only, or any other judgment not going to the merits of the case.

11. He argues that Cannings J adjudicated on the merits of the cases when on 11 November 2024 he granted leave for the reviews to proceed to hearing.

12. He argues that the nature of a leave hearing in an election petition review is unique as the decision of the Judge whether to grant or refuse leave is final under Order 5 rule 17 of the Supreme Court Rules and is not subject to further review. The decision of the Judge is quite unlike other decisions such as leave to appeal against an interlocutory judgment or leave to appeal against sentence or leave to argue questions of fact on an appeal. All those other decisions of a single Judge of the Court are open to be reheard or reviewed under Order 11 rules 25 and 26 of the Supreme Court Rules.

13. We acknowledge that the finality of a decision whether to grant or refuse leave of a single Judge in an election petition review gives it a different character to other decisions of a single Judge involving a determination of the question of leave to take a further step in proceedings.

14. However, we are not satisfied that that different character alters the status of the decision from being an interlocutory judgment. This is especially the case where, as in the present proceedings, the decision of the Judge was to grant leave. It was a decision made within each proceeding, permitting the applicants to take the next step, which was to file the substantive application for review.

15. When a Judge grants leave, he decides no more than that the applicant has raised an arguable case. There is no adjudication or determination of the merits of the case. In these matters, Justice Cannings did not adjudicate on or determine the merits of the cases. His Honour found that the applicants had raised an arguable case, that there were important points of law that were not without merit, that there were differing views that had been expressed by different Judges in different cases regarding s 209 of the Organic Law on National and Local-level Government Elections, that the issue needed to be authoritatively determined by the Supreme Court and these were exceptional circumstances warranting the grant of leave.

16. Section 2(2) of the Supreme Court Act states that a Judge is not precluded from sitting as a member of the Supreme Court in cases where he has given an interlocutory judgment only. And that is the situation that applied here. Cannings J gave only an interlocutory judgment and was not precluded from sitting as a member of the Supreme Court.

17. Mr Isaac, for the first respondent, submitted that there is in election review matters a prohibition against Judges who grant leave for review being able to sit on the Court that is constituted to hear the substantive application for review. We reject that submission. There is no such prohibition. Section 2 of the Supreme Court Act must be given its ordinary meaning and application.

18. Having said that, it is conceivable that when determining an application for leave, a Judge may express so strong a view on the merits of the application for leave that the Judge should perhaps decline to sit on the substantive case. Judges make this decision of their own volition from time to time and recuse themselves from sitting on substantive matters for which they have granted leave.

19. If a Judge who has expressed a very strong view on a leave application that there is great merit in the application is appointed to the full Court to hear the case, it is open to any party who has a concern about prejudgment of issues and whether the Judge is impartial, to apply to the Court to disqualify the Judge. Such applications are not uncommon in PNG.

20. It must be observed that in the present cases it was clear to all the parties that Cannings J was the Judge who had granted leave for the review applications to proceed to full hearing and that his Honour was a member of this Court that heard and determined the applications. It was open to the first respondent to raise the issue of disqualification of Cannings J before the cases commenced. He had the opportunity to raise the issue, and perhaps seek an adjournment to consider whether a formal application for recusal should be made. But he did nothing.

21. We appreciate that the first respondent is now represented by different lawyers to those representing him at the leave hearings and the substantive hearings. But there should have been some evidence put in support of the applications to explain why no objection was taken to Cannings J being a member of the Court at the appropriate time.

22. The lack of evidence in support of the applications reinforces our view that the applications are entirely without merit.

ABUSE OF PROCESS

23. We are persuaded by the submissions of Mr Kipa and Mr Manda, for the applicants, that these applications are an abuse of process. We refer to the recent Supreme Court decision in Paraka v The State (2025) SC2792. An appellant whose appeal against conviction was dismissed by the Supreme Court applied, after dismissal of the appeal, to the Supreme Court to set aside its final decision on the ground of apprehended bias.

24. The Court held:

It defies common sense for [the appellant] to now claim, after getting the result of his appeal that he is aggrieved by, that two of the Judges ought not to have sat on his appeal on grounds of bias. All the grounds on which he argues that two of the Judges were biassed against him existed and were well known to him, or at least would reasonably be expected to have been within his knowledge, well before the hearing of the appeal.

It is an abuse of process for an appellant to allow his appeal to be heard and determined, and then to claim, after dismissal of the appeal, that members of the Court were biased against him due to events and circumstances that pre-dated the hearing of the appeal and were or reasonably expected to be within his knowledge.

We uphold the respondent’s submission that the amended application filed 16 October 2025 is an abuse of process. It is raising grounds of objection to the composition of the Court that could have been raised prior to the hearing of the appeal, but which were not raised.

25. A similar situation exists in the present cases. The first respondent did not raise any objection to the composition of the bench prior to the hearing and then participated in the hearing and then waited for the decision and then received the decision. Then, having obtained decisions that he is aggrieved by, he wants to argue that the Court was unlawfully constituted. This is a clear abuse of process, which will not be tolerated.

CONCLUSION

26. The applications to set aside the final decisions of the Court are without merit and are an abuse of process. Applications of this nature ought to be actively discouraged as they interfere with the principle of finality of litigation. Costs will be awarded against the first respondent on a solicitor-client basis.

ORDER

(1) The applications of the first respondent filed on 26 September 2025 to set aside the final decisions of the Court in SC Rev (EP) Nos 13 and 14 of 2024 of 9 September 2025, are refused

(2) The first respondent shall pay the applicants’ costs of the applications on a solicitor-client basis, which shall if not agreed be taxed.

_____________________________________________________________

SC Rev (EP) 13 of 2024
Lawyers for the applicant : Wang Dee Lawyers
Lawyers for the first respondent : Emmanuel Lawyers
Lawyers for the second respondent : Nicholas Tame Lawyers

SC Rev (EP) 14 of 2024
Lawyers for the applicant : Greg Manda Lawyers
Lawyers for the first respondent : Emmanuel Lawyers
Lawyers for the second respondent : Nicholas Tame Lawyers