Slip Rule Application; Review Pursuant to Constitution s155(2)(B) of a Judicial Act of The National Court Re an Election Petition for the Tari-Pori Open Electorate; James Marabe v Tom Tomiape Electoral Commission (No 2) (2007) SC856

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe, Batari & Cannings JJ
• Judgment Date: 02 May 2007
• Court: Supreme Court
• Citation: (2007) SC856
• Docket Number: SCR NO 55 0F 2004
• Year: 2007
• Judgement Number: SC856

Full Title: SCR NO 55 0F 2004; Slip Rule Application; Review Pursuant to Constitution Section 155(2)(B) of a Judicial Act of The National Court Re an Election Petition for the Tari-Pori Open Electorate; James Marabe v Tom Tomiape Electoral Commission (No 2) (2007) SC856

Supreme Court: Hinchliffe, Batari & Cannings JJ

Judgment Delivered: 2 May 2007

SC856

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 55 0F 2004

SLIP RULE APPLICATION

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)

OF A JUDICIAL ACT OF THE NATIONAL COURT

RE AN ELECTION PETITION

FOR THE TARI-PORI OPEN ELECTORATE

JAMES MARABE

Applicant

TOM TOMIAPE

First Respondent

ELECTORAL COMMISSION (NO 2)

Second Respondent

Waigani: Hinchliffe, Batari & Cannings JJ

2006: 30 November

2007: 2 May

RULING

SUPREME COURT – jurisdiction to reopen previous decision of Supreme Court – slip rule – whether jurisdiction exists if previous decision made under Constitution, Section 155(2)(b) – principles to apply when determining whether to exercise discretion to reopen – whether previous decision made under a misapprehension of fact or law.

The applicant was runner-up to the first respondent in the 2003 supplementary election for the Tari-Pori Open electorate. The applicant challenged the result of the election by an election petition in the National Court, which dismissed the petition. He then applied for review of the National Court decision by the Supreme Court, relying on 11 grounds. The Supreme Court dismissed each ground of review and dismissed the whole review. He then applied to the Supreme Court to reopen its decision, under the slip rule, arguing that it had misapprehended the law and/or facts in two of the 11 grounds of review. Therefore its decision to dismiss the whole review was made in error. The second respondent, the Electoral Commission, objected to the competency of the application. This is a ruling on both the slip rule application and the objection.

Held:

(1) The Supreme Court has power under the underlying law to hear slip rule applications and set aside its own decisions irrespective of the jurisdiction under which the original decision was made.

(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 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 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 on a critical issue.

(3) In the present case the application was to set aside a decision the Supreme Court made in the exercise of its review jurisdiction under Section 155(2)(b) of the Constitution. The application was properly before the Court and the objection to competency was refused.

(4) All of the alleged misapprehensions of law and/or fact relied on in support of the slip rule application were the subject of argument at the hearing of the substantive review. The applicant’s arguments were fully considered for the purposes of the court’s original decision.

(5) The application was therefore a rehashing of arguments already raised.

(6) The court was not satisfied that it made any mistakes of law or fact in its original decision, let alone clear and manifest errors on any critical issue. Accordingly the slip rule application was dismissed.

Cases cited

Papua New Guinea Cases

James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04

Peter Peipul Ipu v Pila Niningi and The Electoral Commission (1998) SC580

SCR No 11 of 1999; Re Lambu v Ipatas, Konu and the Electoral Commission (1999) SC645

SCR No 22 of 1999; Re Polye v Sauk and The Electoral Commission (1999) SC643, 24.11.99

SCR No 23 of 2004; Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752

SCR No 3 of 1999; Special Reference by the Ombudsman Commission under Section 19 of the Constitution, Re Calling of Meetings of the Parliament (No 2), 23.02.01

SCR No 54 of 1998; Re Chan v Apelis and The Electoral Commission (No 2) (1999) SC591

SCR No 55 of 2004; Marabe v Tomiape and Electoral Commission (2006) SC827)

SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC648

SCR No 8 of 1999; Re Maino v Avei and The Electoral Commission (2000) SC633

Supreme Court Review No 4 of 1990; Re Wili Kili Goiya [1991] PNGLR 170

Supreme Court Review Nos 22 and 23 of 2003; Application by Ben Semri and The Electoral Commission (2003) SC723

Wallbank v Minife and The Independent State of Papua New Guinea [1994] PNGLR 78

Overseas Cases

Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672

State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28

University of Wollongong v Metwally (No 2) [1985] 59 ALJR 481

Williams v Spautz (1993) 67 ALJR 388

Autodesk v Dyason (No 2) (1993) 176 CLR 300

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

Autistic Association of New South Wales v Dodson [1999] FCA 852

APPLICATION

This was an application to reopen a previous decision of the Supreme Court under the slip rule principle.

Counsel

R Leo, for the applicant

D Kop, for the 1st respondent

A Kongri, for the 2nd respondent

1. BY THE COURT: This is a ruling on a slip rule application. We have already made a decision on a fully argued matter that came before us and one of the parties has come back, asking us to reopen our decision as he says it was based on misapprehensions about various issues of fact and law. Can that be done? Can a party that has lost a case come back to the court that made the decision and argue that the court made the wrong decision? Can a court set aside a decision that it has already made? Yes is the answer to all these questions. But as our ruling on this application will show it is a matter of discretion and the discretion must be exercised carefully and sparingly.

BACKGROUND

2. The person making the slip rule application is the applicant, James Marabe. He was an unsuccessful candidate in the 2003 supplementary election for the Tari-Pori Open electorate. The person who won the election is the first respondent, Tom Tomiape MP. The second respondent is the Electoral Commission.

3. The applicant disputed the election result in an election petition heard by Jalina J in the National Court. His Honour dismissed the petition in its entirety (James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04).

4. The applicant then applied to the Supreme Court under Section 155(2)(b) of the Constitution for review of the National Court decision. Numerous grounds were relied on. We were critical of their drafting, occupying five pages of single-spaced text in the review book and being elaborate, repetitious and convoluted. We re-numbered and paraphrased to make them more understandable. As a result of that process we identified 11 grounds of review. On 3 March 2006, we dismissed each of them and therefore the whole review was dismissed (SCR No 55 of 2004, Marabe v Tomiape and Electoral Commission (2006) SC827). Consequently the first respondent remains the sitting member.

5. On 21 March 2006, the applicant made the slip rule application now before us. On 1 November 2006, there was a directions hearing and on 30 November 2006, we heard the application. Neither the applicant nor the respondents took any issue with the way in which we had set out the 11 grounds of review.

6. The applicant takes issue with our determination of only two of the 11 grounds of review: No 1 and No 4. No challenge is made to the other nine grounds.

7. The applicant argues that we dismissed ground No 1 and No 4 due to misapprehensions about issues of fact and law, ie we made slips or mistakes in our treatment of each of those grounds; and if we had not done so the review would have been successful.

8. We will summarise our determination of those two grounds but before doing that there is a preliminary issue to address.

DOES THE SUPREME COURT HAVE JURISDICTION?

9. The second respondent argued that we should not entertain the slip rule application as the decision that the applicant wants re-opened was made under Section 155(2)(b) of the Constitution. It is a special source of jurisdiction conferring inherent power on the Supreme Court to review all judicial acts of the National Court. Section 220 of the Organic Law on National and Local-level Government Elections prohibits appeals from election petition decisions and evinces a clear legislative intention to bring election results to finality as soon as possible. If the Supreme Court were to start entertaining slip rule applications the results of elections would be subject to even greater uncertainty than at present.

10. We appreciate the second respondents’ concern about bringing finality to election results. But, constitutionally, the argument that we have no jurisdiction to entertain this application or that the application is incompetent has no merit.

11. The Supreme Court has inherent power under the underlying law to hear slip rule applications and set aside its own decisions irrespective of the...