Lawrence Kalinoe and Others v Lyons Putupen

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ,Logan,Dingake JJ
• Judgment Date: 23 February 2023
• Neutral Citation: SC2356
• Citation: SC2356, 2023-02-23
• Counsel: Mr T Cooper, for the Appellants (Respondents to the application for directions),The respondent (applicant for directions) in person
• Hearing Date: 21 February 2023,23 February 2023
• Docket Number: SCA 50 OF 2006
• Court: Supreme Court

SC2356

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 50 OF 2006

Between:

Lawrence Kalinoe

First Appellant

and

The Vice Chancellor

Second Appellant

and

The University of Papua New Guinea

Third Appellant

v.

Lyons Putupen

Respondent

Waigani: Salika CJ, Logan and Dingake JJ

2023: 21^st & 23^rd February

PRACTICE AND PROCEDURE — Application for directions in respect of proposed challenge to slip rule application refused by a single judge of the Supreme Court as a sequel to the dismissal of an application by the Supreme Court of an application by the respondent for the dismissal of an application for the dismissal for want of prosecution of an appeal against a judgement of the National Court — absence of any proven slip by the respondent — consequential futility in giving directions — application dismissed — Constitution, s 155(4) — Supreme Court Rules, Order 11, rule 9.

Facts:

1. On 5 May 2006, the respondent (applicant for directions) obtained from the National Court a judgment in default against the appellants (respondents to the application for directions) with damages to be assessed in respect of a proceeding (WS No 105 of 2004), commenced by him on 13 February 2004. In those proceedings he alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. The basis for the default judgment was satisfaction by the then motions judge that the present appellants had failed to allow Mr Putupen inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from Mr Putupen requesting inspection of those documents.

2. The appellants sought and, on 15 June 2006, obtained leave to appeal against that default judgment.

3. On 28 June 2006, the appellants initiated their appeal against the default judgment and related orders. Many and varied interlocutory applications and related orders followed thereafter, which the Court found unnecessary to detail in full.

4. On 25 February 2021, the Court (constituted by five judges, and apparently for reasons given orally) dismissed an application by the respondent (filed on 23 April 2018) for the dismissal of the appeal for want of prosecution. At that same time, the Court ordered that the appeal be heard at the March 2021 sittings of the Supreme Court.

5. In the result, the appeal was not heard on its merits in the Supreme Court's March 2021 sittings. Instead, on 16 March 2021, the respondent filed what was termed a “slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules”. He alleged that, in dismissing his application on 25 February 2021, the Court had proceeded “on some misapprehended facts that [he] had filed a number of misapprehended applications to delay the process”.

6. This slip rule application was heard and determined by a single judge, who was one of the judges who had constituted the Supreme Court which on 25 February 2021 had dismissed the respondent's application. On 22 May 2021, the Court as constituted by that judge dismissed the respondent's slip rule application, apparently for reasons given orally.

7. On 6 August 2021, the respondent filed an application by which he sought directions as to the mode of challenge in respect of the orders made by the single judge under the Constitution and related directions in respect of the procedure for such a challenge.

Held:

1. The application should be dismissed and the substantive appeal listed for hearing.

2. Assuming, without deciding, that the Court constituted as a Full Court, had power under s 155(4) of the Constitution to review the refusal by a single judge of the Court of a “slip rule” application, it may be accepted that the Full Court does have power to give such directions as may be necessary in order to facilitate the hearing and determination of such an application and that Order 11, rule 9 of the Supreme Court Rules is at least one source of such power to give directions.

3. Again assuming, without deciding, that the respondent's slip rule application was dismissed without reasons being given either orally or in writing for that dismissal, the directions for which the respondent applied would only be given if he had an arguable prospect of succeeding on a fresh hearing of his slip rule application in the event that the order for its dismissal were set aside.

4. Having regard to the overall history of the interlocutory applications and orders up to the stage when the Supreme Court came to dismiss on 25 February 2021 the respondent's application for the dismissal of the appeal for want of prosecution, the respondent had failed to demonstrate even arguably an incontestable error of fact in respect of the conclusion that he had filed a number of misapprehended applications with resultant delay.

5. There is no point in giving directions in respect of an application which, even assuming it invoked a jurisdiction possessed by the Supreme Court the exercise of which resulted in the hearing afresh of the slip rule application, if that rehearing could lead to no different result namely, the dismissal of that application.

Maino v Avei [2000] PNGLR 404 applied.

Cases Cited:

Papua New Guinean Cases

Application by David Lambu v Peter Ipatas and Electoral Commission [1999] PNGLR 634

Chan v Apelis (No. 2) and Anor [1999] PNGLR 187

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission [2000] PNGLR 166

Maino v Avei [2000] PNGLR 404

Wallbank & Minifie v The State [1994] PNGLR 78

Overseas Cases

Autodesk Inc. v The Dyason (No. 2) [1993] HCA 6; 176 CLR 300

Legislation

The Constitution, s 155(4).

Supreme Court Rules, Order 11, rules 9 and 32.

Counsel:

Mr T Cooper, for the Appellants (Respondents to the application for directions)

The respondent (applicant for directions) in person

TL Cooper Lawyers: Lawyers for the Appellants

23^rd February, 2023

1. BY THE COURT: As long ago as 5 May 2006, Mr Lyons Putupen obtained from the National Court a judgment in default with damages to be assessed in respect of a proceeding (WS No 105 of 2004), commenced by him on 13 February 2004. In those proceedings he alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. The basis for the default judgment was satisfaction by the then motions judge that the present appellants had failed to allow Mr Putupen inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from Mr Putupen requesting inspection of those documents.

2. The appellants sought and, on 15 June 2006, obtained leave to appeal against that default judgment. On 28 June 2006, the appellants initiated their appeal against the...