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Lovika v Marlpo [2020] PGSC 10; SC1916 (13 February 2020)

SC1916

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 22 OF 2014
BETWEEN:
APPLICATION BY JAMES LOVIKA & 79 OTHER DISCHARGED MEMBERS OF THE PAPUA NEW GUINEA DEFENCE FORCE
Applicants

AND:
CARL MARLPO, as the Commander of the PAPUA NEW GUINEA DEFENCE FORCE
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi DCJ, Bona & Shepherd JJ.
2020: 12^th & 13^th February

PRACTICE & PROCEDURE – Slip Rule Application - Principles governing – Alleged misapprehension of law and facts – Proposed grounds not clear and manifest error of law or fact by the Court by are arguable and possible appeal review grounds - No misapprehension but deliberate judgment by the Court – Application dismissed - O.11, r32 Supreme Court Rules.

PRACTICE & PROCEDURE – Leave for slip rule application – Competency of – Not in required form, using wrong jurisdictional provision to invoke Court’s jurisdiction and seeking substantive reliefs – Order 11, r32(1) Supreme Court Rules

Cases Cited:
Papua New Guinea Cases

Jacob Sanga Kumbu v. Dr. Nicholas Mann (2018) SC1710
Lucas Dekena v. Nick Kuman (2018) SC1715
Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638
Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063
Moses Manwau v. Andrew Trawen (2011) SC1159
Francis Kunai & Ors. v. Papua New Guinea Forest Authority & Ors (2018) N7570
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844
Eremas Wartoto v. The State (2015) SC1411
The State v. the Transferees (2016) SC1488
Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221

Counsel:

Mr. B. Lai, for the Applicants
Mr. D. Levi, for the Respondent

13^th February, 2020

1. KANDAKASI DCJ: The Applicants, James Lovika and 79 others (Applicants) are claiming, this Court made certain slips on 17^th December 2019 when it came to its final decision on their substantive review application. The alleged slips are listed in the grounds for the application at paragraph 2.1 - 2.7 of the application, which mainly claim the Court misapprehended the relevant law and facts. The Respondents, in response say, the application is incompetent for not correctly invoking the jurisdiction of the Court, not being in the correct form and seeking a substantive relief instead of leave. As for the application on its merits, the Respondents say the Court made no slips. For these reasons they argue for a dismissal of the application.
   

Issue for determination

2. Hence, two issues are presented for determination. They are:
   

(1) Is the application incompetent for not invoking the correct jurisdictional provision of the Court Rules, not being in the correct form and seeking substantive reliefs?

(2) Did the Court misapprehend the law and the relevant facts and come to a decision that requires correction?

Background facts

3. This matter initially came to the Supreme Court by way of a review application from the National Court which ordered a dismissal of the Applicants’ claim and ordered a release of K12, 919,600.00 from the National Court Trust Account to the Papua New Guinea Defence Force. The Respondents filed an objection to the competency of the review application on the basis that the application included grounds for which leave were not sought and granted. The Court upheld that objection based on principles of law as represented by the decisions in Jacob Sanga Kumbu v. Dr. Nicholas Mann (2018) SC1710, Lucas Dekena v. Nick Kuman (2018) SC1715 and the minority view in Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638 and dismissed the review application. That should have been the end of the matter, except for the correction of any apparent and obvious error on the Court’s own motion or in Latin, the Court acting suo moto.
   

The Principles Governing Slip Rule

4. The principles governing slip rule applications are well settled in our jurisdiction. In the five-member Supreme Court decision in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors, (2010) SC1063 the Court after a review of the various authorities on point, settled the following as the principles that govern all slip rule applications:
   

(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 a misapprehension of fact or law.

(d) The misapprehension must not be of the applicant’s 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 earlier.

(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 on a critical issue.

5. These principles have been consistently applied in many earlier and subsequent decisions of the Supreme Court, such as the decision in Moses Manwau v. Andrew Trawen (2010) SC1063 with followings in the National Court as demonstrated by the decision in Francis Kunai & Ors v. Papua New Guinea Forest Authority & Ors., (2018) N7570.

Present Case

6. The application before me will be determined applying these principles. However, before doing so there is a challenge on the competency of the application itself as already noted. That is issue number one so I will deal with that first.
   

Issue 1 - Is the application incompetent for not correctly invoking the Courts jurisdiction, not being in the correct form and seeking a substantive relief?

7. In their application for leave, the Applicants say their application is pursuant to (a) Order 11, Rule 32 (3) of the Supreme Court Rules and Section 155 (4) of the Constitution of PNG and (b) Order 11, Rule 32 (1) and (2) of the Supreme Court Rules and Section 155 (4) of the Constitution of PNG.
   
8. The relevant provision made in the Supreme Court Rules for slip rule applications is Order 11, Rule 32. That rule reads:
   

“32. (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. Clearly, subrule (1) allows for the filing of slip rule application and also sets the time period within which an application for a slip rule must be filed and served. The next subrule (2), provides as to how a person applying under this rule must plead his case and the kind of finding the Court should have made that, he or she is asking from the Court. Finally, the third and last subrule (3) provides as to the order in which a slip rule application must be dealt with. It makes it very clear that, no such application can be listed for hearing unless a judge of the Court or the Court that is alleged to have slipped has first granted leave for the application to proceed.
   
10. The most important part of the Applicants’ application is the provision in 1 (a). In this provision, the Applicants say they are seeking leave pursuant “to Order 11, Rule 32(3) of the Supreme Court Rules and Section 155(4) of the Constitution of PNG.” There are two things wrong with this part of the application. First, it is obvious that the Applicants have invoked the wrong jurisdictional foundation in the Court Rules. Secondly, they have also invoked the provisions of s. 155(4) of the Constitution.
    
11. This Court has already on a number of occasions made it clear that, s. 155 (4) of the Constitution has seen more abuses than its proper use or application. In its decision in William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844, this Court formally noted that abuse. Then after carefully reviewing relevant authorities on point, the Court concluded, there are about 5 important features or attributes of s. 155 (4) in these terms:
    

“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:

1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make ‘such other orders as a necessary to do justice in the particular circumstances of a case’ before the Court;
   
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
   
3. Where remedies are already provided for under other law, the provision does not apply;
   
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of the number it is constituted, except as may be provided for by any law; and
   
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”(Underlining mine)
   
12. After the giving and publication of that judgment, the abuse continued. More than 10 years later, this Court consisting of 5 members, in Eremas Wartoto v. The State (2015) SC1411, Sakora J. and I in our joint judgment referred to the above statement of the law and said at para.63:
    

“We can only reiterate what this Court said above as it resonates well with one of the cardinal principles in judicial review. That principle as I (sic we) also noted already, is the requirement for a person seeking judicial review to demonstrate amongst other requirements that he has exhausted all available remedies unless, such a person can show he or she is in the same setting as in the Avia Aihi case.”

13. Then applying the law to the case before the Court, we expressed the view that:
    

“it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code and the National Court’s Criminal Practice Rules.”

14. In the present case, provision for slip rule applications has been specifically provided for in the Court Rules, by Order 11, Rule 32. This is the process to employ by any person who is aggrieved by a final decision of the Supreme Court. That being the case, s. 155 (4) of the Constitution does not apply.
    
15. The next issue taken by the Respondents is in the form used for the application now before the Court. There is no specially prescribed form for a slip rule application. In a number of judgments this Court has pointed out that the correct form to use for slip rule applications is Form 4, failing which, a number of slip rule applications have been dismissed. The decision in The State v. the Transferees (2016) SC1488 is on point. There the Court said at paragraph 10:
    

“Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules via; that it is competent. The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application. Therefore, even if an application was filed within 21 days as required under Order 11 r 32, if the application did not conform to Form 4, the application would be incompetent of (sic) the basis of want of form:: Barawa Ltd v. Mamalau [2013] PGSC 50; SC1301 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392. In this case the application does not conform to Form 4. This was conceded by Ms. Wurr. This is another reason why the slip rule application is incompetent.”

16. A quick look at the form in which the Applicants’ application, now before this Court is, fails to show that, it is in the required form and is seeking reliefs as if leave has already been granted. The relief the Applicants can seek in the first instance is leave to proceed with their slip rule application. Then after a grant of leave, they could ask for a finding that should have been made followed by consequential orders, if we strictly go by the wording in Order 11, Rule 32 (2). Relevantly, this rule requires applicants in slip rule applications to “set out the nature of the slip and the finding that the applicant contends the Court should have made.”
    
17. All these gives rise to the inevitable conclusion that, the application for leave for the Applicants to proceed with a slip rule application is incompetent. Consequently, the application is dismissal on this basis.
    

On the Substantive Application

18. Moving beyond the competency issue, a quick look at the grounds advanced in support of the application, do not, in my view, raise any slip on the part of this Court. Instead, it is a case of the Applicants’ doing three things:
    

(a) rehearsing the arguments they presented at the hearing of the objection to competency that led to a dismissal of their review application; or

(b) raising arguments or issues they should have raised at the hearing of the objection to the competency of their review application and before the decision the subject of the application now before this Court; and or

(c) effectively appealing against the decision of the full court.

The Grounds of the Application

19. The grounds pleaded by the applicants read:
    

“PART A: MISAPRREHENSION OF FACT THE LAW

2.1 The Supreme Court misapprehended the law when it followed the decision of the Supreme Court in Jacob Sanga Kumbu v. Dr. Nicholas Mann (2018) SC1710 as the Court relied on the observation of Kandakasi, J (as he then was) in the said case relating to circumstances when the Supreme Court may exercise a departure from an earlier decision when the said observation of Kandakasi, J fails to address the issue of the court being bound by Section 59 of the Constitution of Papua New Guinea as the observation of Kandakasi, J purports to avoid the application of Section 59 of the Constitution which expressly state that the principles of natural justice are the rules of the underlying law known by the name developed for control of judicial and administrative proceedings as such a departure from an earlier decision should also be exercised when it is just and fair to do so to allow a party to have its case heard and dealt with on its merits and by doing so according natural justice to the Applicants in these proceedings.

2.2 The Supreme Court further misapprehended the law when in allowed itself to be convinced and follow the earlier decision in the case of Jacob Sanga Kumbu v. Dr. Nicholas Mann in dismissing the review when that case can be distinguished from the Applicants case and a departure from that earlier case was warranted in the circumstances of the case given that the Supreme Court was bound to accord natural justice to the Applicants as enshrined under Section 59 of the Constitution is envisaged to empower the Supreme Court to review all acts of the National Court which supports the provisions of Section 59 of the Constitution as it would be in offence to both constitutional provisions for the decision of 17^th December, 2019 to stand.

2.3 The Supreme Court has misapprehended the law when it followed the earlier decision for the same Court in Jacob Kumbu v. Dr. Nicholas Mann when the law in respect of following an earlier precent as observed by Kandakasi, J (as he then was) in the said case confines the power of the Supreme Court under Section 155 (2)(b) of the Constitution of PNG as it prevents the Court from fully exercising its power under the said provision when three (3) out of the nine (9) review grounds were found to be competent and by dismissing the entire review without allowing the Court to deal with the merits of grounds 3(a), (d) and (h) has denied the full Court from hearing the review application which is unconditional as the Court does not have the power to alter, repeal and or disregard the application of the constitutional provision under Section 155 (2)(b) which is the effect of the Court Order as made on 17^th December, 2019.

PART B: MISAPRREHENSION OF FACT AND LAW

2.4 The Supreme Court has also misapprehended the facts and law when it upheld the First and Second Respondent’s entire objection to the competency of the review grounds and dismissed the review application in a summary manner when no finding was made as to the incompetency of review grounds 3(a), (d) and (h) which should have resulted in the Court making a finding that the objections to competency be partly upheld and the incompetent grounds dismissed and grounds 3(a), (d) and (h) be allowed to proceed to full hearing on the merits of the grounds upon which leave was granted.

2.5 The Supreme Court has also misapprehended the facts and the law by upholding the entire objection to competency in particular in respect of grounds 3(a), (d) and (h) as the Supreme Court has in fact revisited the Order granting leave in respect of the said grounds which is a slip as the Supreme Court had no jurisdiction to revisit the grant of leave in the competency hearing as the grant of leave is a finding that grounds 3 (a), (d) and (h) are meritorious warranting a full hearing on and the grant of leave by the single man Supreme Court was made after a contested inter parties hearing of which arguments on the merits of the grounds had been heard and determined and leave was granted as such given that grounds 3(a), (d) and (h) were found to be meritorious and leave granted in respect of the those grounds and the Supreme Court having made no finding as to the incompetency of the said grounds should have allowed the said grounds to proceed to full hearing.

2.6 The Supreme Court misapprehended the facts and the law when it relied on the case of Lucas Dekena v. Nick Kuman (2018) SC 1715 when the facts and the law in that case can be distinguished from this case as in that case the Applicant sought to appeal by way of review in light of the express provisions of Section 220 of the Organic Law on National and Local Level Government Elections which provides that the decision of the National Court is final and conclusive and without appeal and shall not be questioned in any way which imposes a higher duty on an applicant seeking a review on the decision of the National Court sitting as a Court of Disputed Returns and this review application was not the same as the Dekena v. Kuman case and should not have been found to have the same application. The National Court Rules does not preclude an aggrieved party from Appealing a decision as a matter of right like that application of Section 220 of the Organic Law on National and Local Level Government Elections, however, that right must be exercised within forty (4) days from the date of decision appealed from and failing which you can apply for leave under Section 155(2)(b) of the Constitution outside the forty (40) days and if leave is granted then the substantive review application is filed which is what happened in this case.

2.7 The Supreme Court misapprehended the facts and the law when it found that it could not strike out the incompetent grounds at this late stage as that would amount to granting an application to amend contrary to the law and practise on amendments to notices of appeal and applications by the Applicants before the Court to amend the review grounds and to make a finding that the strikeout of the incompetent grounds would amount to an amendment of the review has no basis in fact and in law and is therefore a slip”

20. In short, the Applicants claim in ground 2.1 that this Court misapprehended the law when it followed its decision in Jacob Sanga Kumbu’s case, especially the observations I made in that case. Those observations concerned the applicable principles when this Court decides to depart from its earlier decisions or any set precedent. This ground also introduces an argument based on s. 59 of the Constitution on the principles on natural justice or the right to be heard. The relevant part of the decision in Jacob Sanga Kumbu’s case is at 5 – 10. At paragraph 5, I outline the principles that govern objections to competency. Those are the principles that help determine whether a process before the Supreme Court is competent or not. Paragraph 6 states the conclusion I reached after considering the authorities on point as follows:
    

“...The obvious weight and import of all of these decisions is this. A notice of appeal, an application for leave to appeal or any application or a process brought before the Supreme Court must strictly meet the requirements of the Supreme Court Act and Supreme Court Rules in order for such a process to be properly before the Court. A failure to strictly meet these requirements amounts to incompetence by reason of which, the process could be dismissed.”

21. Then at paragraph 7 there is a reference to the case of Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221, being the only case departing from that well-established set of principles or the guidelines reproduced and as set out at paragraph 5. Here the point is being made that, the decision in the Coca Cola Amatil case was arrived at without giving any consideration to the long line of cases I referred to. The long line of case authorities govern the issue of how a process can properly or competently invoke the Supreme Court’s jurisdiction. They also make it clear that, even if a person gets everything right but for one requirement such as the form, timing, not sufficiently and properly pleading a ground, or raising an issue not raised in the Court below, or seeking leave when not required, renders the appeal or the processes before the Court not properly before the Court. Instead, it would be incompetent and could be dismissed on that basis. Further, the point is also being made here that, the decision in Coca Cola Amatil did not address these factors and clearly articulate why all the years of making through the various decisions of the Supreme Court must now be abandoned. Finally, it is pointed out here that, the decision in Coca Cola Amatil does not with respect, offer any good reason to depart from the well-trodden road of objections to competencies of appeals and other process before the Supreme Court and in particular, the principles that have been developed and applied throughout the years to the present. Thus, in that context, the principles governing a departure by this Court from the Court’s established precent or decisions is discussed and concludes that the Coca Cola Amatil did not adhere to those principles and is therefore not good law.
    
22. Hence, in my view, ground 2.1 of the Applicants application, misconceives or misapprehends the discussion in the Jacob Sanga Kumbu case. Clearly, the judgment has been taken out of context. Consequently, I find that the full Court did not misapprehend the law as claimed by the Applicants. Also, I am of the view that, the Applicants are raising an issue they should have raised at the hearing of the objection to competency. Or if not, they are effectively raising an argument that could constitute a ground for an appeal or a review against the full Court’s decision and not for a slip rule application.
    
23. In ground 2.2, the Applicants are carrying on from ground 2.1 and are try to build upon the right to be heard argument. They claim that the full Court misapprehended the law and failed to distinguish the Applicants’ case from the Jacob Sanga Kumbu case. What was important and what was relevant was the principles on what amounts to incompetence of proceedings before the Supreme Court and not the nature or kind of cases before the Court, be it one in Jacob Sanga Kumbu or the present case. Both cases, concerned the principles governing objections to competency of proceedings. The principles have been long established as highlight in the Jacob Sanga Kumbu and other cases and remain unchanged and applicable, despite the Coca Cola Amatil case. Given that, this case could not be distinguished from the Jacob Sanga Kumbu case. I am therefore of the view that, this ground is misconceived and misapprehended by Applicants.
    
24. Ground 2.3 repeats the claims of the full Court misapprehending the law by allowing and following the Jacob Sangu Kumbu decision which restricted the Court from fully exercising its powers under s. 155 (2) (b) of the Constitution and denied them the opportunity to be heard on the 3 out of 9 grounds of their review application as those three grounds were with leave of the Court. The discussions in the context of grounds, 2.1 and 2.2 of apply here. The only point that needs to be added is this. The total effect of the relevant case authorities to date is that, if a party chooses, to depart from the grounds for which leave was granted by adding other grounds that renders the substantive application incompetent. For by grant of leave, the Court in the exercise of its discretion has given a party to proceed to appeal or review on certain and specific grounds and not an open license to add more grounds as a party pleases. A grant of leave restricts an appellant or an applicant to proceed to a substantive appeal or review only on the grounds for which leave was granted. For these reasons, I am of the view that, this ground is also misconceived or misapprehended by the Applicants.
    
25. Continuing from the misconception or misapprehension in ground 2.3, the Applicants in ground 2.4 claim the full Court misapprehended the law and fact when it decided to dismiss their review application summarily by upholding the objection to competency. They claim that the Court should have struck out the 9 grounds that were included without leave and allow them to proceed on the 3 grounds that were with leave. The observations made in respect of ground 2.3 apply here. To that I add, the full Court had before it two options. One option was to do what the Applicants say the Court should have done and thereby following what the majority did in the Michael Kuman v. Digicel (PNG) Ltd case. The other was to find the substantive review application incompetent and have it dismissed. After carefully considering the two options, the Court came to a deliberate decision to opt for the later. That was based on the relevant decisions or case authorities on point, which represent a long line of case authorities. The Court came to that decision after noting that, if it did as the Applicants say it should have, that would have effectively amounted to an amendment of the review application contrary to the rules and principles governing amendments. Additionally, an amendment in this way could not be allowed, because as the Applicants say in ground 2.7, they did not apply for any amendment. Hence, the Court did not misapprehend the law or the facts as claimed. This ground in my view might be a ground for an appeal or review of the decision of the full Court, if that was available but not for a slip rule application.
    
26. Continuing from ground 2.4 the Applicants claim in ground 2.5 that the Court was in fact reviewing without any jurisdiction to do so the 3 grounds for review for which, leave was already granted. This ground is arguing against the effect of the full Court’s decision and it goes against the weight of the case authorities the Court relied upon to arrive at its decision. Repeating what was already said in the foregoing, the authorities say a party may have obtained leave but if in the substantive application or appeal, the grounds are mixed up with grounds for which no leave was granted, it renders the proceeding incompetent and dismissible. That is what the full Court did. This ground might sound well for a ground for appeal or review but not for a slip rule application. In my view therefore, this ground is misconceived or misapprehended by the Applicants.
    
27. In ground 2.6, the Applicants claim that the full Court misapprehended the law when it relied upon the decision in Lucas Dekena v. Nick Kuman (supra) when that case was an election petition case and is therefore, distinguishable from their case. Again, it is not about the nature of cases, be it an election petition or a matrimonial cause, or a judicial review matter. It is all about a consideration and application of the relevant principles governing objections to competency questions. How does the Court get to resolve such questions? What are the guiding principles? That was the central point in discussion and application in Lucas Dekena v. Nick Kuman and so was the case in this matter. Clearly, it was not a case for distinguishing between that case and this case but a case for adopting and applying the relevant principles set out in Lucas Dekena v. Nick Kuman. Obviously, this is a misconception or misapprehension by the Applicants themselves.
    
28. Finally, in ground 2.7, the Applicants claim that the full Court misapprehended the law and facts when it decided against striking out the incompetent grounds for their review application to avoid the effect of amending the review application especially when they did not apply for any amendment. As I pointed out already, this issue was the subject of deliberate judgment on the part of the Court. Let me repeat that which was already said. The Court had to make a decision for either of two choices. One was to strike out the 9 grounds on the basis of no leave being granted and allow the 3 grounds for which leave was granted. The other, was to find the whole application incompetent for including the 9 additional grounds. The Court decided to find the whole application for leave incompetent for including the 9 additional grounds without leave of the Court. This was based on relevant case authorities which has seen no point of departure except only in the Coca Cola Amatil case. That case has been the subject of criticism and rejection by more recent cases and therefore not good law because of its departure from set precent without considering, and following the relevant principles to do so. The full Court, therefore in its deliberate judgment decided to go by the established precent in our jurisdiction and came to a decision in the way it did and thus decided against following the majority in the Michael Kuman case. What this application is seeking to do is to effectively have an appeal or a review of the deliberate decision of the full Court which is not available.
    

Conclusion and Decision

29. The principles governing slip rule applications which I set out in the earlier part of this judgment at paragraph 4 are clear. The slip rule procedure is not available for raising new arguments or arguments that should have been put before the full Court before it came to its decision which becomes the subject of a slip rule application. It is not for raising points or grounds that are arguable. Item (g) at paragraph 4 in my earlier outlining of the relevant principles is most relevant and I quote again:
    

“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.”

30. The total effects of the grounds put forward by the Applicants, have nothing to do with anything that is a clear and manifest slip or error of fact or law by the full Court. These grounds are instead arguable and therefore offend this particular principle and the other principles of law governing slip rule applications.
    
31. For these reasons I have come to the conclusion that, one, the application is incompetent and two, even on the substantive merits of the case, it does not come within the criteria for slip rule applications. According, I order a dismissal of the application for leave to bring a slip rule application. Costs will follow that event.

________________________________________________________________
B.S. Lai Lawyers: Lawyers for the Applicant
Manase & Co Lawyers: Lawyers for the Respondents