SC1412

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 39 0F 2013

ANDERSON AGIRU
Applicant

V

ALUAGO ALFRED KAIABE
First Respondent

JOHN TIPA, RETURNING OFFICER, HELA PROVINCIAL
Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika DCJ, Mogish J, Cannings J
2015: 26, 27 February

PRACTICE AND PROCEDURE – applications subsequent to disposal of proceedings – slip rule applications – necessity for leave – Supreme Court Rules 2012, Order 11, Rule 32.

The applicant sought leave under Order 11, Rule 32(3) of the Supreme Court Rules 2012 to make a slip rule application in relation to the decision of the Supreme Court to uphold an objection to competency and dismiss his application to the Supreme Court to review an interlocutory decision of the National Court in an election petition. The applicant argued that the Court had slipped by failing to take into account that the question of competency of the application had already been determined in favour of the applicant by a ruling of a single Judge of the Supreme Court and was res judicata or issue estoppel, and that if the Court had taken that ruling into account, the objection would have been refused and the substantive application would not have been dismissed.

Held:

(1)	To be granted leave to make a slip rule application in relation to an order disposing of proceedings, an applicant must (a) seek leave within 21 days after the order disposing of the proceedings and (b) satisfy the Court that the slip rule application would have a strong chance of success.

(2)	The application was filed on the 21st day after the order disposing of the proceedings, which was compliant with the 21-day requirement of Order 11, Rule 32(1) of the Supreme Court Rules.

(3)	A slip rule application did not have a strong chance of success as there was clearly no misapprehension of fact or law that permeated the decision to uphold the objection to competency and dismiss the substantive application. The Court did not slip as the argument about res judicata was put to the Court and the Court did not consider it persuasive; and having re-heard the argument, still considered the argument to be unpersuasive.

(4)	The fact that in the course of granting leave to make an application for review under Section 155(2)(b) of the Constitution of an interlocutory decision of the National Court in an election petition, a single Judge of the Supreme Court rules that the application is competent does not prevent the party who argued that point from arguing it again before the full court of the Supreme Court; nor does it prevent the full court forming its own view and deciding the question of competency differently to that of the single Judge.

(5)	Leave was refused, with costs.

Cases cited

Avia Aihi v The State [1981] PNGLR 81

APPLICATION

This was an application under Order 11, Rule 32(3) of the Supreme Court Rules to make a slip rule application in regard to an order disposing of proceedings. 

Counsel

I Molloy & C Copland, for the applicant
T Yamahrai, for the first respondent
R William, for the second, third & fourth respondents

27th February, 2015 

1. BY THE COURT: This is a ruling on an application by Anderson Agiru for leave to make a slip rule application. He wishes to make a slip rule application in relation to the decision of this Court, as presently constituted, of 27 October 2014, to uphold an objection to competency and dismiss his application to review a decision of the National Court in an election petition.

2. Mr Agiru's application, made under Section 155(2)(b) of the Constitution, was to review the National Court decision of Justice Makail of 17 May 2013 in EP No 37 of 2012, an election petition by the first respondent, Aluago Alfred Kaiabe against Mr Agiru's election as member for Hela Provincial in the 2012 general election. Makail J's decision was an interlocutory decision. His Honour had refused an application by Mr Agiru to dismiss the petition on the ground of failure to comply with the service requirements of the National Court Election Petition Rules.

3. Mr Agiru then applied to a single Judge of the Supreme Court, Justice Batari, for leave to make an application to the full Court of the Supreme Court to review the decision of the National Court of 17 May 2013. Section 155(2)(b) of the Constitution states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

4. Mr Agiru's leave application was heard and determined by Batari J under Order 5, Rules 8 and 9 of the Supreme Court Rules 2012, which provide that an application for an election petition review can only proceed with the leave of the Court.

5. Batari J, on 30 August 2013, granted leave to Mr Agiru. Mr Kaiabe then filed a slip rule application in relation to the granting of leave, which was dismissed by Batari J on 4 July 2014. Meanwhile the trial of the election petition had been stayed by an order of the Supreme Court.

ORDER OF 27 OCTOBER 2014

6. The application for review was set down before us on 27 October 2014. Also set down before us on that day was an objection by Mr Kaiabe to the competency of the application for review. We heard the objection as a preliminary matter and delivered a ruling on that day. We ordered as follows:

1.	Objection to competency is upheld.
2.	Application to review is dismissed.
3.	The stay of EP in EP No 37 of 2012 is dissolved.
4.	Parties bear own costs in SC Rev (EP) No 39 of 2013.
5.	The EP is remitted forthwith to the EP Judge Administrator.

7. The effect of that order was to finally dispose of Mr Agiru's application, SC Rev (EP) No 39 of 2013, to review the decision of Makail J, in EP No 37 of 2012, of 17 May 2013. Mr Agiru is aggrieved by our order. He is of the view that we made a slip or a mistake, that we misapprehended the facts and the law. He wants to make a slip rule application regarding our order of 27 October 2014.

SUPREME COURT RULES, ORDER 11, RULE 32

8. Slip rule applications are governed by Order 11, Rule 32 of the Supreme Court Rules 2012, which states:

(1)	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.

(2)	A 'slip rule' application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3)	A 'slip rule' application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.

9. The application now before us is an application for leave under Rule 32(3). The application is supported by the second, third and fourth respondents (the returning officer, the Electoral Commissioner and the Electoral Commission). It is opposed by the first respondent (Mr Kaiabe).

10. Rule 32 is a new rule introduced by the Supreme Court Rules 2012. It has no equivalent in the repealed Supreme Court Rules 1984. We know of no other case in which the Court has been called upon to consider an application for leave to make a slip rule application. 

PRECONDITIONS 

11. We consider that there are two preconditions to the grant of leave:

 First the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings.

Secondly the applicant must satisfy the Court that the slip rule application would have a strong chance of success. In forming this view we have regard to the criteria developed by Injia CJ in various cases dealing with applications for leave to seek review of decisions of the National Court in election petition matters. For example, in David Arore v John Warisan (2008) SC1030 his Honour held:

In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. 

12. We consider that the standard of satisfaction must be set rather high to deter frivolous slip rule applications and to enforce the principle of finality in litigation, the importance of which has been highlighted in a long series of decisions dealing with slip rule applications, including Richard Wall bank and Jeanette Minified v The State [1994] PNGLR 78, Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, James Marape v. Tom Tomiape & Anor (2007) SC856 and Trawen v Kama and Laimo (2010) SC1063. 

We now consider whether those two preconditions have been met.

WAS LEAVE SOUGHT WITHIN 21 DAYS?

13. Yes, the application for leave was filed on 17 November 2014, which was the 21st day after the order of 27 October 2014 and compliant with the 21-day requirement of Order 11, Rule 32(1) of the Supreme Court Rules.

WOULD A SLIP RULE APPLICATION HAVE A STRONG CHANCE OF SUCCESS?

14. We determine this question in the negative. A slip rule application does not have a strong chance of success. We are satisfied, and clearly so, that there was no misapprehension of fact or law on our part that permeated the decision of 27 October 2014 to uphold the objection to competency and dismiss the substantive application. The argument about the issue of competency being res judicata was put to the Court at the hearing on 27 October 2014. 

15. Ironically it was an argument put by Mr William, counsel for the second, third and fourth respondents. It was not raised by Mr Sheppard, the then counsel for the applicant, when he made submissions in response to the objection to competency. But now, it is the applicant – who did not raise the argument – who is arguing that the Court slipped by not considering the argument. 

16. However, we do not wish to dwell on that piece of curiosity. What we wish to emphasise is that the argument about res judicata and issue estoppel was put to us, we considered it and decided that it was unpersuasive. Granted, we did not expressly refer to the argument and expressly explain why we thought it was unpersuasive when we gave the reasons for our order, orally, on 27 October 2014. We do so now.

17. The argument was, and is again, that the issue at the heart of the objection to competency had already been determined by Justice Batari in his ruling granting leave to Mr Agiru on 30 August 2013, and was confirmed in his Honour's ruling of 4 July 2014. The issue was whether the Supreme Court had jurisdiction to review the decision of Makail J of 17 May 2013, given that it was an interlocutory decision. The significance of it being an interlocutory decision is that Order 5, Rules 7 and 8 of the Supreme Court Rules only allow for review of final decisions of the National Court on election petitions, not interlocutory decisions. 

18. His Honour's view was that despite the apparent prohibition in those Rules the Supreme Court had an overriding power derived from Section 155(2)(b) of the Constitution to exercise its discretion to grant leave to review all judicial acts of the National Court, including interlocutory decisions made in the course of hearing an election petition, and could dispense with the requirements of the Rules in order to do so (in particular pursuant to Order 5, Rule 39). His Honour noted that there appeared to be conflicting authority on the issue of whether there was a blanket prohibition against granting leave to review interlocutory decisions or whether leave to review such decisions could be granted through the exercise of discretion in a particular case. His Honour referred to Anton Yagama v Peter Yama (2013) SC1219 and Anton Yagama v Peter Yama SC Rev 55 of 2012, 30.05.13, unreported, as examples of the apparent conflict. His Honour decided that he preferred and followed the approach in the latter case, which meant that leave to review an interlocutory decision could be granted where there was a clear error that had a very high chance of success. 

19. We reiterate that we respectfully acknowledge and appreciate Batari J's approach to the issues of competency and jurisdiction. However, we took a different approach, which is exemplified by the decision in Anton Yagama v Peter Yama (2013) SC1219, which is that the Supreme Court can only review a decision of the National court on an election petition that is not a final decision if the requirements of the Supreme Court Rules are dispensed with. In this case those requirements had not been dispensed with, and we did not propose to dispense with them.

20. As for the res judicata point, we consider that the fact that in the course of granting leave to make an application for review under Section 155(2)(b) of the Constitution of an interlocutory decision of the National Court in an election petition, a single Judge of the Supreme Court (in this case, Batari J) rules that the application is competent does not prevent the party who argued that point (in this case the first respondent) from arguing it again before the full court of the Supreme Court. There is no issue estoppel. Nor does it prevent the full court forming its own view and deciding the question of competency differently to that of the single Judge.

21. We conclude that a slip rule application has no prospect of success as we are not satisfied that this Court slipped or made its order of 27 October 2014 as a result of any misapprehension of fact or law. There was no glaring error made. The argument about res judicata was put to the Court and we did not consider it persuasive. Having re-heard the argument, we still consider the argument to be unpersuasive. 

CONCLUSION

22. The second precondition to the granting of leave is not satisfied. Therefore leave is refused. Costs will follow the event.

ORDER

(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 order of 27 October 2015, is refused. 

(2)	Costs of the application for leave are awarded to the first respondent to be paid by the applicant and the second, third and fourth respondents, on a party-party basis, to be taxed if not agreed;

(3)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
________________________________________________________________
Simpson Lawyers: Lawyers for the Applicant 
Warner Shand Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second, Third & Fourth Respondents