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

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 02 December 2009
• Citation: (2009) SC1004
• Docket Number: SCA NO. 52 OF 2000
• Year: 2009

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

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

Applications of Kasap and Yama [1988–89] PNGLR 197; Autodesk Inc Dyson (No. 2) (1992—1993) 176 CLR 300; Richard Dennis Wallbank v The State [1994] PNGLR 78; Dick Mune v Paul Poto (No 2) [1997] PNGLR 356; Re Election of Governor–General (No 3) (2004) SC752

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...