(1) SC Rev 55 of 2008; In the matter of an Application under s.155 (2) (b) Constitution and In re Part XVIII Organic Law on National and Local Level Government Elections; Andrew Trawen, Electoral Commission of Papua New Guinea and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kama and Michael Laimo; (2) Sc Rev 56 Of 2008; Michael Laimo and Andrew Trawen, Electoral Commission of Papua New Guinea and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kama (2010) SC1063

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Batari, Lenalia, Davani, Hartshorn JJ
• Judgment Date: 16 July 2010
• Court: Supreme Court
• Citation: (2010) SC1063
• Year: 2010
• Judgement Number: SC1063

Full Title: (1) SC Rev 55 of 2008; In the matter of an Application under s.155 (2) (b) Constitution and In re Part XVIII Organic Law on National and Local Level Government Elections; Andrew Trawen, Electoral Commission of Papua New Guinea and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kama and Michael Laimo; (2) Sc Rev 56 Of 2008; Michael Laimo and Andrew Trawen, Electoral Commission of Papua New Guinea and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kama (2010) SC1063

Supreme Court: Sakora, Batari, Lenalia, Davani, Hartshorn JJ

Judgment Delivered: 16 July 2010

SC1063

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

(1) SC Rev 55 of 2008

In the matter of an Application under s.155 (2) (b) Constitution and

In re Part XVIII Organic Law on National and Local Level Government Elections

BETWEEN:

ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Applicant

AND:

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE

Second Applicant

AND:

STEVEN PIRIKA KAMA

First Respondent

AND:

MICHAEL LAIMO

Second Respondent

(2) SC Rev 56 of 2008

BETWEEN:

MICHAEL LAIMO

First Applicant

AND:

ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Applicant

AND:

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE

Third Applicant

AND:

STEVEN PIRIKA KAMA

Respondent

Waigani: Sakora, Batari, Lenalia,

Davani, Hartshorn JJ.

2010: 22nd February,

: 16th July

SUPREME COURT – Slip Rule - nature of application - whether application made pursuant to the inherent jurisdiction of the Court or under ss. 155 (2) (b) or 155 (4) Constitution - whether application made before the same Judges - whether leave to apply is required

Facts:

This is a slip rule application to reopen a decision of the Chief Justice sitting as a single Supreme Court Judge. That decision was to dismiss two (2) applications for leave to review decisions of the National Court concerning an Election Petition. In the course of hearing the applications to reopen, the Chief Justice decided that the determination of certain issues would assist in the resolution of these applications. The applications were adjourned for the parties to prepare. This Court was constituted to continue to hear the applications. In determining four issues referred;

Held:

1. A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law (Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752)

2. A slip rule application to this Court cannot be made under s. 155 (2) (b) Constitution as that subsection concerns this Court’s inherent power to review judicial acts of the National Court. Section 155(4) Constitution also does not provide the opportunity for a slip rule application to be made to the Supreme Court to reopen one of its decisions.

3. A slip rule application must be made before the same Supreme Court constituted by the same judge or judges who heard and determined the appeal or review.

4. The very nature of a slip rule application precludes the necessity for leave.

5. These applications are referred back to the Chief Justice for him to determine including the question of costs.

Cases cited:

Autodesk Inc. v. Dyason (2) [1993] HCA 6, (1993) 176 CLR 300, (1993) 67 ALJR 270

Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78

R v. Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 at 585, [1999] UKHL 52

Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752

James Marabe v. Tom Tomiape & Anor (No. 2)(2007) SC 856

Wio-Kin Investments Ltd v. Rex Paki & Anor (2008) SCA 141/05, unnumbered and unreported, delivered 27th November 2008

MVIT Ltd v. Yama Security Services Ltd (2009) SC1004

Counsel:

SC Rev 55 of 2008

Mr. R. William, for the First and Second Applicants

Mr. A. Manase, for the First Respondent

Mr. B. Lomai, for the Second Respondent

SC Rev 56 of 2008

Mr. B. Lomai, for the First Applicant

Mr. R. William, for the Second and Third Applicant

Mr. A. Manase, for the Respondent

16th July, 2010

1. BY THE COURT: The applicants in both proceedings have applied under the slip rule to reopen a decision of the Chief Justice sitting as a single Supreme Court Judge. That decision was to dismiss two (2) applications for leave to review decisions of the National Court concerning an Election Petition. In the course of hearing the applications to reopen, the Chief Justice decided that the determination of certain issues would assist in the resolution of these applications. The applications were adjourned for the parties to prepare. This Court was constituted to continue to hear the applications. After hearing counsel on the issues posed by the Chief Justice, we reserved for consideration. We now deliver our decision on those issues.

2. The issues referred for determination are:

a) What is the nature of an application under the slip rule principle (slip rule application)?

b) Whether a slip rule application may be made under s 155 (2) (b) and or s 155 (4) Constitution.

c) Whether a slip rule application should be made before the Supreme Court (Court) constituted by the same judges which heard and determined the appeal or review. If not, under what circumstances should a slip rule application be made before a Supreme Court constituted by different judge(s).

d) Whether leave to apply for a review of the decision of the Supreme Court under the slip rule principle should be separately sought and obtained.

e) If leave is required, whether the leave application should be made before the Court constituted by the same judge(s) which made the decision or should it be made before a single judge or judges irrespective of whether the judge or judges were members of the Court which made the decision under review or reconsideration.

What is the nature of an application under the slip rule principle (slip rule application)?

3. As to the nature of an application under the slip rule principle, there are numerous authorities of this Court concerning applications for it to reopen its decisions. A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law. In Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752, the Supreme Court considered cases dealing with slip rule applications, beginning with Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78. In Sir Pato Kakaraya, (supra), the Supreme Court defined ‘The Slip Rule’ when it made reference to Osborne’s Concise Law Dictionary Sixth Edition p307 where it is stated:

“Slip Rule – clerical mistakes, accidental omissions etc in judgments and orders may be corrected by the Court at any time on application by motion or summons”.

4. The slip rule is part of the common law of England. The Underlying Law Act adopts the common law and provides the Supreme Court with the inherent power to hear slip rule applications and to set aside its own decisions irrespective of the jurisdiction under which the original decision was made: James Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856. In regard to the ability of the Supreme Court to reopen its decision, this power is not conferred by provisions of the Constitution: Marabe (supra).

5. The position is the same in other common law jurisdictions. In England in R v. Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 at 585, [1999] UKHL 52, Lord Browne-Wilkinson, in an opinion agreed to by the other Law Lords, said:

“In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered……. However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.”

6. Notwithstanding that Pinochet Ugarte (supra) concerned a petition to set aside a previous order of the House on the ground that there was an apprehension of bias in respect of one of the Law Lords, the principle as to the inherent jurisdiction of an ultimate court of appeal is apposite.

7. In Australia, the High Court considered the issue in Autodesk Inc. v. Dyason (2) [1993] HCA 6, (1993) 176 CLR 300, (1993) 67 ALJR 270, a decision that has been cited with approval in numerous decisions of this Court. Mason CJ said at 271:

“these examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of...