Motor Vehicles Insurance (PNG) Trust Limited v Yama Security Services Limited (2009) SC1004

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ, Kirriwom & Batari, JJ
• Judgment Date: 02 December 2009
• Court: Supreme Court
• Citation: (2009) SC1004
• Docket Number: SCA NO. 52 OF 2000
• Year: 2009
• Judgement Number: SC1004

Full Title: SCA NO. 52 OF 2000; Motor Vehicles Insurance (PNG) Trust Limited v Yama Security Services Limited (2009) SC1004

Supreme Court: Salika, DCJ, Kirriwom & Batari, JJ

Judgment Delivered: 2 December 2009

SC1004

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 52 OF 2000

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST LIMITED

Appellant

AND:

YAMA SECURITY SERVICES LIMITED

Respondent

Waigani: Salika, DCJ, Kirriwom & Batari, JJ

2005: 01 October

2006: 05 May, 14 July

2009: 02 December

REVIEW - Practice and Procedure – Appeal - Application by lawyer appearing as amicus curiae to re-open appeal following unsuccessful appeal after reasons delivered – whether lawyer had instructions from party aggrieved by appeal decision.

REVIEW - Practice and Procedure –Appeal – Slip Rule - Principles on which Court will consider application to re-open – mistake of fact – whether fact allegedly mistaken is – sustainable and maintainable in law – Delay and conduct of applicant – Relevance of.

Cases cited

Kasap v Yama [1988-89] PNGLR 197.

Autodesk Inc Dyson (No. 2) (1992 – 1993) 176 CLR 300.

Richard D Wallbank & Minifie v. The State [1994] PNGLR 78.

Dick Mune v Paul Poto (No 2) [1997] PNGLR 356.

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

Counsel

No appearance for Appellant/Applicant

Ben Lomai, for the Respondent

Kerenga Kua as amicus curiae

DECISION

2 December, 2009

1. BY THE COURT: An application was made by Mr. Kua appearing as amicus curiae to re-open a decision of the Supreme Court (Salika, Kirriwom, and Batari, JJ) dated 26th May, 2006.

Counsel’s Appearance as Amicus Curia

2. Mr. Kua’s nature of appearance is a little intriguing because he was not an invitee of the court as in the usual course to assist the court. The role of an amicus curiae is synonymous with an independent counsel with no fixed agenda or instructions from a party on an issue, usually legal, in the proceedings before the court. In this case, Mr. Kua’s appearance as ‘friend of the court’ seemed a little at odds with his adversarial advocacy of the appellant’s case. He could be misunderstood. But we note that, Counsel had no instructions either from Motor Vehicle Insurance (PNG) Trust Limited (MVITL) or the Motor Vehicle Insurance Limited, (MVIL) to pursue the earlier application as well as this ‘slip application.’

3. We make no further observation on this matter as neither counsel’s locus standi’ nor his conduct was ever raised at the hearing of the appeal or on this application to reopen the case. Counsel was actually granted leave with consent of the other party and had this Court’s indulgence to appear in that capacity on both occasions. In essence, counsel’s skilful and compelling arguments were strictly confined to fundamental procedural issues of law and facts which the court in the end accepted but decided against.

Background and the Issue for Determination

4. The decision sought to be reopened followed an appeal argued on the grounds of nullity of proceedings before the National Court in Waigani. The subject of the decision related to a judgment of the National Court on 25 August 2000 entered against the defendant, now the appellant in this appeal, in the sum of K4,398,937.85 with costs. Subsequent to that judgment, the proceedings were amended to substitute MVITL with MVIL as the judgment debtor.

5. The issue closely linked with parties to the proceedings claimed to have been procedurally and legally incorrect is, whether the naming of a party that did not exist at the time of the filing of the Writ rendered the entire proceedings a nullity and was void ab initio. This Court’s affirmative answer and final orders are said to have proceeded from a mistaken fact as the substitution orders had been set aside. Hence, the issue on this application is whether the Supreme Court ‘slipped’ in its decision.

Court’s Jurisdiction to Reopening a Decision under a ‘Slip Rule Application’

6. The power to reopen a concluded Supreme Court matter is part and parcel of the Supreme Court’s inherent jurisdiction. In reviewing previous Supreme Court decisions on this issue, the Supreme Court in Re: Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (2004) SC752, affirmed:

“It is settled law that the Supreme Court, the highest Court in the land, has jurisdiction to re-open and review its own decision in appropriate cases. This jurisdiction is inherent in the fact that it is the court of last resort. This is a principle of common law (Autodesk Inc v Dyason (No. 2)(1992 – 1993) 176 CLR 300) adopted as part of the Underlying Law under Schedule 2.2 of the Constitution (see Wallbank & Minifie v The State [1994] NGLR 78, …”

7. Mason CJ’s decision in Autodesk Inc v. Ryson (No. 2) (1992 – 1993) 176 CLR 300 show when a decision can be reopened and when it should not:

“These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue cases.” (Underlying added)

8. The Supreme Courts jurisdiction to re-open a decision or a case is limited but on legal principles. Counsel, Messrs. Kua and Lomai have argued pursuant to those authorities either in support or against re-opening of the case before this Court and relied on Richard Dennis Walbank and Jeannette Minifie v. The State [1994] PNGLR, 78 where, leaving aside the criminal aspect, the Court said:

“In civil appeals, those matters found relevant canvassed by Mason CJ, spring from that Court’s inherent powers. This Court’s powers on appeal are found in s 16 of the Supreme Court Act Ch.37 and do not envisage any power to reopen the appeal after judgment. There must be a discretionary power in the court to correct its own mistake but in this case we are not minded to find that a mistake has occurred, or there has been an error in need of correction.

Since this Court is the final court of appeal, as in the High Court of Australia in that country’s judicature, we consider Mason CJ’s comments apposite, subject to a proviso. This Court should only consider such applications where there has been a mistake which could be said to be little short of extraordinary and which affects an unsuccessful party.”

9. In Dick Mune v Paul Poto (No 2) [1997] PNGLR 356 the Supreme Court said the inherent jurisdiction of the court to rectify a mistake, can only be invoked in order to avoid injustice in a ‘slip rule’ application.

10. It has to be accepted however that the Slip Rule application is not an open ended principle that one could invoke in every case when a party is unhappy about a decision or ruling against it. One has to show that there was an apparent mistake arising from some miscarriage in the judgment of the court which ought to be rectified for the public interest in the finality of litigation. Otherwise for example this application would be a total abuse of process. We adopt the caution in Wallbank & Anor. v. The State (supra) that:

“The Supreme Court Act does not specifically touch on the manner or extent of this Court’s power to entertain fresh argument after decision whether before or after judgment. We consider that the public interest in the finality of litigation must preclude all but the clearest “slip” error as a ground to reopen.

To that extent, then, while the High Court of Australia may have been willing to widen its discretionary ambit of review, this Court is unwilling to go so far, for the mischief occasioned by the resultant uncertain nature of a Supreme Court decision following appeal, would in our view, be contrary to the public interest.” (Underlying added)

11. The test to be applied as set out in the case of Re: Nomination of Governor–General; Application by Sir Pato Kakaraya, (supra) is:

“(1) There is a substantial public interest in the finality of litigation.

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

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

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

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

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

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