Jack Kariko in his capacity as Secretary for National Judicial Staff Service (NJSS) v Dr. Ken Ngangan in his capacity as Secretary for Department of Finance and Others

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Neutral Citation: SC2420
• Citation: SC2420,
• Docket Number: SCA NO. 114 OF 2022
• Hearing Date: 26 June 2023,30 June 2023
• Court: Supreme Court

SC2420

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 114 OF 2022

Between:

Jack Kariko in his capacity as Secretary for National Judicial Staff Service (NJSS)

First Appellant

v.

Dr. Ken Ngangan in his capacity as Secretary for Department of Finance

First Respondent

and

Department of Finance

Second Respondent

and

Independent State of Papua New Guinea

Third Respondent

Waigani: David, J

2023: 26^th & 30^th June

PRACTICE AND PROCEDURE — application subsequent to disposal of proceedings — slip rule application — leave required to file slip rule application — leave refused — Supreme Court Rules 2012, Order 11 Rule 32.

Cases Cited:

Papua New Guinean Cases

Inakambi Singorom v John Kalaut (1985) PNGLR 238

Re Trawen v Kama (2010) SC 1063

Agiru v Kailabe (2015) SC1412

Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944

Kandapaki v Enga Provincial Government (2015) SC1463

Waim 85 Ltd v Independent State of Papua New Guinea (2015) SC1470

The Independent State of Papua New Guinea v Sylvester Kalaut (2022) SC2246

Overseas Cases

Adler v George (1964) 2 QB 7

River Wear Commissioners v Adamson (1877) 2 AC 743

Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231

Re British Concrete Pipe Association [1983] 1 All ER 203

Kulu Legal: Lawyers for the Applicant

Solicitor-General: Lawyers for the Respondents

JUDGMENT

30^th June, 2023

1. David, J: INTRODUCTION: This is my ruling on a contested Application for Leave to File Slip Rule Application (Application for Leave) filed by the applicant on 20 April 2023 under Order 11 Rule 32(3) of the Supreme Court Rules alleging that the full Court committed a slip in the judgment it delivered on 30 March 2023 and orders made dismissing the applicant's appeal. The applicant had sought before the National Court declarations and orders aimed at implementing a decision of the Judicial Council (a body established under s.3A of the National Judicial Staff Service Act (NJSS Act)) made on 18 February 2020 which approved salary increases for officers of the National Judicial Staff Service (NJSS) established under the NJSS Act. The respondents oppose the Application for Leave.

EVIDENCE

2. The applicant relies on the Affidavit of Jack Kariko sworn on 5 June 2023 and filed on 14 June 2023. No issue was taken by the respondents as to why the affidavit mentioned at Item 3 of the Application for Leave to File Slip Rule application being that of Jack Kariko sworn on 19 April 2023 was not used. Given that, I will allow the applicant to use the affidavit filed on 14 June 2023.

3. The respondents have not relied on any affidavit evidence.

LAW

4. Order 11 Rule 32 of the Supreme Court Rules (Miscellaneous Amendment) Rules 2022 allows for a slip rule application to be filed within 21 days of the order disposing of the proceeding (Order 11 Rule 32(1) and leave is required (Order 11 Rule 32(3).

5. The basis of a slip rule application was decided by a five-member bench of the Supreme Court in Re Trawen v Kama (2010) SC 1063 and these are:

1. The purpose is to correct a glaring error or mistake in a judgment or order of the court such as a clerical mistake, an accidental omission or misinterpretation of fact or law.

2. It is not available under Section 155(2)(b) (as that concerns the inherent power to review the judicial acts of the National Court) or Section 155(4) of the National Constitution.

3. It is generally made before the Court constituted by the same judges who heard and determined the appeal or review unless a judge was or judges were not available in which case the Chief Justice may appoint replacement judges.

4. Leave is required by the very nature of the application.

6. Generally, in a slip rule application, it is incumbent upon the applicant to establish that:

1. The original decision contained a glaring (or clear and manifest) error or mistake of fact or law. It must be something that stands out above all else and is not merely arguable; and

2. The error of fact or law concerned a critical issue; and

3. The misapprehension of fact or law was not the applicant's own making.

7. In deciding whether to grant or not to grant a slip rule application, it is a matter of discretion bearing in mind:

1. There is substantial public interest in the finality of litigation.

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

3. The purpose is not to allow rehashing of arguments already raised or to allow raising of new arguments that were not put before the Court making the order from which the application arises.

8. The Supreme Court must be slow to considering a slip rule application, hence the requirement to seek leave as a pre-condition.

9. The principles applying to an application for leave for a slip rule application were stated in Agiru v Kailabe (2015) SC1412 and these are:

1. An applicant filed the application for leave within 21 days after the order disposing of the proceedings; and

2. The applicant must satisfy the Court that the slip rule application would have a strong chance of success.

10. These principles were recently considered and applied in Kandapaki v Enga Provincial Government (2015) SC1463, Waim 85 Ltd v Independent State of Papua New Guinea (2015) SC1470 and The Independent State of Papua New Guinea v Sylvester Kalaut (2022) SC2246.

CONSIDERATION

Time limitation

11. The appeal was heard on 28 March 2023 and determined on 30 March 2023. It was dismissed primarily because the Judicial Council does not have the requisite power or function under the NJSS Act to recommend or determine salaries of NJSS officers.

12. The Application for Leave was filed on 20 April 2023. It was filed within the 21-day requirement of Order 11 Rule 32(1) of the Supreme Court Rules.

Strong chance of success

13. The applicant contends that the full Court slipped and therefore the Application for Leave should be granted because:

1. The full Court failed to consider the conduct of the trial judge giving rise to a potential apprehension of bias in the National Court proceedings and the influence he had on the manner in which the trial was conducted resulting in a decision that was made on his own volition;

2. The full Court failed to properly or completely interpret the provisions of the NJSS Act relating to the powers and responsibilities of the Secretary for NJSS particularly s.4(1) and (2) and s.10(1)(a) and (b) in accordance with the Golden Rule principle of statutory interpretation enunciated in Adler v George (1964) 2 QB 7;

3. The inferences of the reporting obligation placed upon the Secretary for NJSS to report/make submission to the Judicial Council – effectively conferring upon the Judicial Council with the responsibility to approve or deny any submission made by the Secretary for NJSS thereby expanding the scope of the Judicial Council's functions beyond those specified in ss.17, 19, 20 and 22 of the NJSS Act;

4. The full Court failed to consider the administrative functions of the Chief Justice and NJSS as prescribed and described by s.169(3) of the Constitution of Papua New Guinea, NJSS Act and Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944;

5. The full Court failed to find that the Judicial Council actually has the power to recommend or determine salaries of NJSS officers pursuant to s.10 of the NJSS Act;

6. The full Court failed to consider the admission by the respondents' counsel that the Judicial Council has such a power and the Judicial Council did make a decision on the subject; and

7. Consequently, the full Court did no consider all the grounds of appeal.

14. The respondents argue that leave should be refused as:

1. Slip Ground A which is predicated upon the alleged conduct of the trial judge potentially giving rise to an apprehension of bias in the National Court proceedings is without merit because; it is merely a statement without identifying any clear error of law or apprehension of bias; it was not pleaded as a ground of appeal, but raised in written submissions; it is misconceived and has no prospect of success; and it is an attempt to rehash arguments raised at the hearing of the appeal.

2. Slip Ground B is without merit and has no prospect of success because; it fails to identify any specific provision in ss.4 and 10 of the NJSS Act which gives the Secretary of NJSS or the Judicial Council the power to recommend or determine the salaries of NJSS officers; there are no clear provisions under ss.4 and 10 which confers any power on the Secretary for NJSS or the Judicial Council to determine salaries of NJSS officers; and it is misconceived and without any basis.

3. Adopting and repeating arguments made in relation to Slip Ground B, Slip Ground C is without merit and has no prospect of success because; it raises mere allegations and opinions which fall short of a proper ground for a slip rule application; there is lack of particularity on alleged misapprehension of facts and law.

Reasons for ruling

15. I have considered the parties' submissions.

16. As to Slip Ground A, the alleged conduct of the primary judge potentially giving rise to an apprehension of bias in the National Court proceedings was not a ground of appeal and only referred to in submissions. The nature of a hearing under a slip rule application is neither to rehash arguments nor bring forth new grounds that should have been raised in the appeal. I accept the respondents' submissions. This ground is without merit and is dismissed.

17. As to Slip Ground B, the applicant has urged the Court to apply the Golden Rule principle of statutory interpretation that he submits was enunciated in Adler v George (1964) 2 QB 7. The Golden Rule is an extension of the literal rule of statutory interpretation which is that words in a statute are to be given their ordinary meaning unless the interpretation should...