N5627
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 480 OF 2012

BETWEEN:

EAST NEW BRITIAIN PROVINCE COCOA COPRA CO-OPERATIVE SOCIETY LIMITED
Plaintiff

AND:

MOSES ELIAS Trading as MOSES ELIAS TRADING
Defendant

Kokopo: Oli, AJ
2014: April 4th, 8th

CIVIL JURISDICTION - PRACTICE AND PROCEDURE - Application under Slip Rule pursuant to Order 8 Rule 59 of the National Court Rules - Due to a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission - The Court, on application by a party or of its own motion, may, at any time, correct the mistake or error –The misapprehension of the facts of the matter is that the Defendant/Respondent Defence and Cross-Claim was struck out by the Court on 7th November 2012 for abuse of process – That effectively means Defendant/Respondent had no Defence nor Cross-Claim at the time when this Court delivered its decision on 5th March 2014 – But court did so on the misapprehension of the facts that was made clear and manifest error.

CIVIL - PRACTICE AND PROCEDURE –Application under Slip Rule pursuant to Order 8 Rule 59 of the National Court Rules - In order to correct the error the Court must be satisfied with the seven preconditions principles under Slip Rule application –They are: (i) There is a substantial public interest in the finality of litigation; (ii) On the other hand, any injustice should be corrected; (iii) The Court must have proceeded on the misapprehension of the facts and law; (iv) The misapprehension must not be of the applicants making; (v) The purpose is not to allow rehashing of arguments already raised; (vi) The purpose is not to allow new arguments that could have been put to the Court before; (vii) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact of a critical issue –Plaintiff/Applicant has satisfied all the preconditions principles under Slip Rule application – Motion granted set aside item two (2) in the previous order – Parties meet their own cost.

Cases Cited:
Papua New Guinea Cases

Re Maino v Avei and the Electoral Commission (2000) SC 648.
In re an Election Petition for the Tari-Pori Open Electorate (2007) SC 856

Overseas Cases

De L v Director General, NSW Department of Community Services (1997)190 CLR 207

Counsel:

Ms Elsie Takaboy, for Plaintiff
No representation for the Defendant 

EX PARTE RULING

8th April, 2014

1.	OLI, AJ. The Plaintiff filed a motion against the Defendant to move the Court to seek the following Orders that:

(i)	Pursuant to Order 8 Rule 59 of the National Court Rules item 2 of the Order granted on the 5th March 2014 be set aside due to misapprehension of the facts of the matter.

(ii)	The item number 1 of the Orders granted on the 5th March 2014 remains the same.

(iii)	The item numbers 3 of the Orders granted on the 5th march 2014 be amended to replace item number 2. 

(iv)	The Time to be abridged.

(v)	Such Orders as the Court deems appropriate in the circumstances.

2.	The Plaintiff being aggrieved by the judgement of 5th March 2014, filed this application under Slip Rule.In support of this application the Plaintiffs' Counsel Ms Takoboy rely on her own affidavit sworn and filed on 26th March 2014 and attached the copy of the particular Court Order by His Honour Kariko J issued on the 7th November 2012 that struck out the Defendants defence and cross-claim as counter claim, hence this application made under Slip Rule pursuant to Order 8 Rule 59 of the National Court Rules.

3.	The Defendants made no appearance despite due service of this due process was executed and served on the Managing Director Mr James E. Milate on 27th March 2014 at 9.06 am by Constable Michael Releve attached to Kokopo Police Station. The Court looked at the motion pursuant to Order 8 Rule 59 of the National Court Rules is satisfied that there is an error on the face of the Court Order of 5th March 2014 by this Court, hence the Court reopened the case to hear submission under Slip Rule application by the Plaintiff/Applicant in order to correct the error by the same Court that made the previous decision. The hearing proceeded Ex parte on the motion by the Plaintiff/Applicant on the Slip Rule application.

FACTS

4.	The brief background to this matter emanate from my substantive Ex parte judgement I delivered on 5th March 2014 on the matter. My deliberation on the matter clearly reflects the absence of the evidence of the said Court Order by his Honour Kariko J made on the 7th November 2012 that struck out the Defendants/Respondent's Defence and Cross Claim as Counter-Claim on the remaining three months unpaid rental of K16,500. 00. Therefore the Defendant/Respondent's defence and cross-claim was no longer part of the Court materials for the Defendant/Respondent's case. 

5.	However, due to clerical error on the Court file minutes, I went on to deliver the substantive judgment Ex parte in the absence of the said Court Order because of the unfortunate omission of its minutes in the Court file. The obvious omission of any reference to this Court Order of 7th November 2012 by His Honour Kariko J was eminent because I was not the presiding Judge then when that motion was moved by the Plaintiff/Respondent on 7th November 2012 and relief sought was granted.

6.	The Plaintiff/Applicant is the applicant in this matter making the Slip Rule application. The Plaintiff/Applicant was aggrieved over an increased rental when the Defendant/Respondent raised rentals from a property the Plaintiff/Applicant occupied belonging to the Defendant/Respondent. The Plaintiff/Applicant commenced this matter seeking orders that the raised rentals was with notice but without acceptance and the Defendant/Respondent to release its property held by the Defendant/Respondent as security for alleged rental arrears owing.

7.	The Defendant/Respondents filed a Notice of Intention to Defend on the 21st August 2012 and a Defence and Counter-Claim on the 6th September 2012. The Plaintiff/Applicant then filed a Notice of Motion on the 11th September seeking to strike out the Defendant/Respondent's Defence and Cross-Claim. On the 7th November 2012 the Plaintiff/Applicant's application was granted by His Honour Justice Kariko and the Defendant/Respondent's Defence and Cross-Claim were struck out for abuse of process pursuant to Order 12 Rule 1 of the National Court Rules.

8.	The matter then further progressed to trial by Plaintiff/Applicant which proceeded Ex parte on the 26th November 2013. The Court through his Honour Acting Justice Oli read out his decision in Court and granted the Plaintiff/Applicant's claim for the Defendant/Respondent to release the Plaintiff/Applicant's property being held as a security for alleged rental arrears owing within seven (7) days.

9.	His Honour also granted Orders for the Defendant/Respondent sought in the cross-claim for outstanding rental arrears for the three months due and payable in the sum of K16,500.00 payable within thirty (30) days from today's date. 

10.	The Plaintiff/Applicant has taken issue with item two (2) of the Court decision and filed this application on the 26th March 2014.

ISSUE

Whether the Court misapprehended the fact that the Cross-claim and Defence had been struck out and was no longer a part of the material before the Court.

LAW

11.	The law on Slip Rule is well settled in this jurisdiction. The application is made by the Plaintiff/Applicants Counsel Ms. Takoboy pursuant to Order 8 Rule 59 of the National Court Rules seeking orders that the item number 2 of the Order granted on the 5th March 2014 be set aside due to a misapprehension of the facts of the matter. The Order 8 Rule 59 of the National Court Rules reads:

O 8 R 59.    Minute of judgement or order. (20/10)

(1)     Where there is a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

(2)     Rules 56, 57 and 58 do not apply to a correction made under Sub-rule (1).

APPLICATION OF LAW TO THE FACTS

12.	The pertinent issue the Court will address is whether the Court misapprehended the fact that the Cross-claim and Defence had been struck out and was no longer a part of the material before the Court. Whilst this issue is not an issue in my view, however, in view of the existence of such a Court Order of 7th November 2012, there was in actual fact no defence and cross-claim as counterclaim by Defendant/Respondent's against the Plaintiff/Applicant at all for all practical purposes in the matter. 

13.	However, I must confess at this stage that during the trial this fact was never drawn to my attention nor had I any knowledge about it on the minutes of the Court file. This is in fact the first time I became aware of it through this application. It is therefore logic and common sense that if I had sighted this Court Order of 7th November 2012 by His Honour Kariko J, I would not have arrived at the conclusion, I did in my judgment of 5th March 2014, in particular to Order in item (2) in the final Court Order.The real issue, in my humble view, is whether this error through accidental slip or omission should be corrected through appeal process avenue or it is suffice to pursue it through Order 8 Rule 59 of the National Court Rules?

14.	The Plaintiff/Applicant Counsel Ms Takoboy submits that Plaintiff/Applicant's application is made under Slip Rule provision pursuant to Order 8 Rule 59 of the National Court Rules. The Counsel referred my attention to the case of In re An Election Petition for the Tari-Pori Open Electorate (2007) SC 856 where the Supreme Court in its Ruling held inter alia that:

"(2) Seven general principles govern determination of a Slip Rule application:

(a)	There is a substantial public interest in the finality of litigation;

(b)	On the other hand, any injustice should be corrected;

(c)	The Court must have proceeded on the misapprehension of the facts and law;

(d)	The misapprehension must not be of the applicant making;

(e)	The purpose is not to allow rehashing of arguments already raised;

(f)	 The purpose is not to allow new arguments that could have been put to the Court before;

(g)	The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact of a critical issue."

15.	The Plaintiff/Applicant's Counsel submitted in applying the seven principles stipulated above that governs the Slip Rule application in this matter. The Counsel submit and highlight the factual issues and the application of law in respect to the seven (7) general principles which must be satisfied by the applicant before the Court is satisfied for the grant of the Orders under the Slip Rule application. These principles are as follows:

(1)	There is a substantial public interest in the finality of litigation; and

(2)	On the other hand, any injustice should be corrected;

16.	As a matter of public interest in upholding the finality of litigation in this matter as final judgment was delivered, the Court in reopening the matter must do so with great caution, however, the injustice that has been grieved must be corrected and avoided in that the Cross-Claim was no longer part of the Court material for His Honour to deliberate on and grant orders on which Plaintiff submit if not repaired will be an injustice, as established in the case of De L v Director General, NSW Department of Community Services (1997)190 CLR 207.

(3)	The Court must have proceeded on a misapprehension of facts or law

17.	The Court in making Order number (2) two Plaintiff submit that His Honour proceeded on a misapprehension that the Defendant's Defence and Cross-Claim was still part of the Court material before His Honour for deliberation. However, these two documents were struck out on 7th November 2012 by His Honour Justice Kariko.

(4)	The misapprehension must not be of the applicant's making 

18.	The Plaintiff submit that this misapprehension was not of the applicant's making as submissions were made on the reasonable belief that the Court was aware that the Defence and Cross-Claim were no longer part of the material and were not in issue during the trial. The Defendant/Respondent were not available at the trial and did not raise any arguments in their favour or pursuant to its Cross-Claim that would have caused issues for the Plaintiff/Applicant to respond to however, simply on the fact that any such claim had been struck out and was not in existent.

(5)	The purpose is not to allow rehashing of arguments already raised 

19.	The Plaintiff submit the they are not asking the Court to rehear arguments already raised but rather correct an error that simply occurred due to a misapprehension of the state of affairs of the material before the Court during the trial. The Plaintiff/Applicant is merely flagging the clear manifestation of an error on the face of the Court's minutes on the said Court Order of 7th November 2012.

(6)	The purpose is not to allow the new arguments that could have been put to the Court.

20.	The Plaintiff further submit that they are not raising any new arguments as judgment was in favour of the Plaintiff/Applicant, however, Plaintiff/Applicant believed that item number two (2) of the Orders should not have been made and was based on a genuine error or misapprehension which occurred not through failure of the parties to put its case adequately as established by His Honour Justice Sheehan in the case of Re Maino –v - Avei and the Electoral Commission (2000) SC 648.The Plaintiff/Applicant submits that it did not have any arguments with issues that were raised at trial as this application is made to correct the misapprehension that was made resulting in the Orders made. 

(7)	The Court must before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue. 

21.	The Plaintiff/Applicant finally submit that the Court can be satisfied that there is a clear and manifest, not arguable, error of fact on this critical issue. In considering that this misapprehension was made, the Court must look at the fact that if error of taking the Defence and Cross-Claim to form part of the material before it had not been made then such a decision could not have been made as the correct state of affairs are that in effect there was no Cross-Claim and as such the end result would have been different.

22.	I have laboured to restate the Plaintiff/Applicant's submission on the Slip Rule application in this case and I am satisfied that there was, indeed a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error. I also find that this error or omission was not the making of the Plaintiff/Applicant. 

23.	I also find that the Plaintiff/Applicant in invoking this application under Order 8 Rule 59 of the National Court Rules to correct the error and not through the appeal process as the ultimate due process according to the law is the correct option and I am empowered by O 8 R 59 of the National Court Rules to use my discretional power to correct the error in my previous judgment. This I do so now. The factual situation in this case is very clear that the Court must before setting aside its previous decision, ought to be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue. Hence, this Court is satisfied and grants the motion filed by Plaintiff/Applicant and issue orders as sought accordingly.

CONCLUSION

24.	The Court having alluded to the unfortunate mishap over this matter in this Slip Rule application is satisfied that there was a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission, the Court, by a party or of its own motion, may, at any time, correct the mistake or error. The Court hereby grants the motion and corrects that error in item 2 of the Court Order of 5th March 2014, and issue orders as sought forthwith. The Court Orders accordingly.

ORDER

The Court accordingly Orders that:

1.	Pursuant to Order 8 Rule 59 of the National Court Rules item 2 of the Order of 5th March 2014 is hereby set aside due to misapprehension of the facts of the matter.

2.	The item number 1 of the Orders granted on the 5th March 2014 remains the same.

3.	The item numbers 3 of the Orders granted on the 5th march 2014 is hereby amended to replace item number 2. 

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

5.	Parties bear their own costs.

________________________________________________________________
Namani & Associates Lawyers: Lawyer for the Plaintiff
Non Appearance for the Defendants