Specko Investment Limited and Peandui Koyati v Shell (PNG) Limited and The Registrar, Supreme Court (2010) SC1610

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Injia, CJ, Gavara-Nanu & Davani JJ
• Judgment Date: 02 September 2010
• Citation: (2010) SC1610
• Judgment Number: SC1610
• Year: 2010
• Docket Number: SCA No. 22 of 2008

Full Title: SCA No. 22 of 2008; Specko Investment Limited and Peandui Koyati v Shell (PNG) Limited and The Registrar, Supreme Court (2010) SC1610

Supreme Court: Injia, CJ, Gavara-Nanu & Davani JJ

Judgment Delivered: 2 September 2010

SC1610

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 22 of 2008

BETWEEN:

SPECKO INVESTMENT LIMITED

First Appellant

AND:

PEANDUI KOYATI

Second Appellant

AND:

SHELL (PNG) LIMITED

First Respondent

AND:

THE REGISTRAR, SUPREME COURT

Second Respondent

Waigani: Injia, CJ, Gavara-Nanu & Davani JJ

2010: 2nd September

SUPREME COURT - Practice & procedure-Slip rule application made for the second time- Abuse of Court process- Application dismissed

Supreme Court - Practice - Disclosure of privileged Court information by Judge's Associate to parties in the case - Draft judgement of a Judge of the panel which heard and reserved decision- Absolute privilege attached to Judge's draft judgments- Practice discouraged- Regsitrar directed to issue appropriate practice note banning the practice.

Facts:

The second appellant and Managing Director of the first appellant, obtained from the Court registry draft judgments prepared by judges who presided in the original appeal and a subsequent application under the slip rule principle which was dismissed. The draft judgments formed the basis for a second slip rule application. The applicant sought leave of the Court to introduce the draft judgments at the hearing of the slip rule application- Application to adduce fresh evidence refused and consequently the slip rule application was also dismissed.

Held:

1. Second slip rule application after dismissal of the first slip rule application is an abuse of court process and it ought to be dismissed.

2. Absolute privilege attaches to court information including Judges' deliberation on cases and unless authorised by the Judge should not be disclosed to anyone including the parties by Judges' Associates and Court registry staff.

3. The Registrar is directed to issue appropriate practice instructions to protect privileged Court information.

Cases cited:

Wili Kili Goiya [1991] PNGLR 170).

Wallbank v. PNG [1994] PNGLR 79

Parao Tunboro v. MVIT [1984] PNGLR 272

Sir Julius Chan v. Ephraim Apelis SC591

Straits Contracting (PNG) Pty Ltd v. Branfil Investments [1988] PNGLR 239

Pato Kakaraya (No.2) (2004) SC752

Michael Laimo &Another v. Steven Pirika Kama and Another (2010) SC1063

Tom Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856,

Counsel:

P. Koyati, second appellant/applicant in person

K. Kua, for the First Respondent

2nd September, 2010

1. BY THE COURT: Before the Court is an application filed by Peandui Koyati, second appellant (‘applicant’), on 19th June, 2008, application titled “Application for Directions or Orders”. The application seeks the following orders;

“1. Pursuant to Order 11 Rule of Supreme Court Rules, for orders directing the 2nd Respondent to allow its application to reopen and rehear the case a second time under S.155(2)(b) of the Constitution to be registered and be heard by the Court.

2. Alternatively, for order under S.11 of the Supreme court Act for their Application under S.155(2) of the Constitution to be registered and brought before a full bench of the Supreme Court to determine as to its merits on a summary basis.

3. Any other orders the Court deems to make or otherwise sought.

4. Cost of this application be paid by the 2nd Respondent.”

2. The application is opposed by Shell PNG Ltd, the first respondent (‘Shell’).

3. On 16th July, 2001, the applicant filed proceedings in the National Court at Waigani, a claim for damages arising out of an alleged breach of contract. After a trial, the National Court gave judgment in the applicant’s favour. The respondent (Shell) appealed to the Supreme Court.

4. By proceedings Supreme Court Appeal No. 112 of 2001, filed on 21st December, 2001, Shell’s appeal was heard on 13th August, 2003 by bench comprising Amet CJ, Kapi DCJ and Los .J. A judgment was never delivered as Amet CJ left office before a judgment was finalised for delivery.

5. Pursuant to s.3 of the Supreme Court Act, a new bench comprising Injia DCJ (then), Gavara-Nanu and Davani .JJ was convened to hear the appeal. On 4th November, 2004, the Supreme Court decided in Shell’s favour and quashed the National Court’s decision.

6. The first re-opening – SCA No. 11 of 2004 - The first application to re-open was moved by the applicant on 23rd August, 2005. On 26th July, 2006, Supreme Court bench comprising Injia DCJ (then), Gavara-Nanu and Davani .JJ refused the application.

7. Second re-opening – SCA No. 22 of 2008 - On 19th June, 2008, the applicat filed this application, to re-open the case a second time.

8. Although, the application seeks “…orders directing the 2nd respondent to allow its applications to reopen and rehear the case a second time…”. (See relief no.1 of application) he effectively moved the application by making submissions to reopen the appeal and to accept “fresh” evidence, which was opposed by the respondent.

9. The applicant attempts in this application to introduce fresh evidence which is a draft opinion of the former Chief Justice, Sir Arnold Amet dated 13th August, 2003. This draft opinion is attached to the applicant’s affidavit filed on 19th March, 2009.

10. When the Supreme Court has determined an appeal, s.155(2)(a) of the Constitution prohibits any further appeals. (see Wili Kili Goiya [1991] PNGLR 170).

11. In civil matters, s.16 of the Supreme Court Act chapter 37 does not envisage a re-opening once an appeal has been determined. However, the Court has an inherent discretionary power to correct its own mistakes where it has proceeded on a misapprehension of fact or law (see Wallbank v. PNG [1994] PNGLR 79 at pgs.100 to 101). There are many cases where the Supreme Court has considered a re-opening: see Parao Tunboro v. MVIT [1984] PNGLR 272; Sir Julius Chan v. Ephraim Apelis SC591; Straits Contracting (PNG) Pty Ltd v. Branfil Investments [1988] PNGLR 239, and Pato Kakaraya (No.2) (2004) SC752 & Michael Laimo &Another v. Steven Pirika Kama and Another (2010) SC1063 (Sakora, Batari, Lenalia, Davani and Hartshorn .JJ). In the Laimo case, when considering an application to reopen a decision of a single Supreme Court Judge considered and upheld the principles set in Pato Kakaraya (No.2) (supra), which are;

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

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

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

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

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

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

12. In James Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856, the Supreme Court added a further principle which is, “That 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.”

13. In the Laimo case, the Supreme Court re-affirmed the further principle in the Marabe case and said:

“ The explanation for the further principle, with which we concur, was that the Court believed that it encapsulates the principles in Kakaraya (supra). The applicant must alert the court to an obvious error or mistake - something that stands out above all else. It must be a clear and manifest error of law or fact, that is not merely arguable, upon a critical issue. Further, the applicant must show that if the error had not been made, the result of the case would have been different. We refer to the decision of MVIT Ltd v. Yama Security Services Ltd (2009) SC1004, in this regard.”

14. We respectfully agree that the principles set out in Pato Kakaraya (No. 2) (supra) together with the further principle in Marabe (supra) and the Laimo case are the principles that govern slip rule applications to the Supreme Court for it to reopen its earlier decision.

15. The present application to re-open is made under two provisions. Firstly, under s.155(2)(b) of the Constitution. We consider the application under that provision to be misconceived because that subsection concerns this Court’s inherent power to review judicial acts of the National Court: see Stephen Pirika Kama (supra) at pg 5.

16. Secondly, the application under s.11 of the Supreme Court Act is also misconceived in that s 11 is concerned with appeals referred to the Supreme Court by the Registrar for summary dismissal on grounds specified therein.

17. We find that the application to re-open lacks proper jurisdictional foundation and it should be dismissed for this reason.

18. Assuming for arguments sake that the application is properly before us, we consider the main basis for the application to re-open, which is to ask what is the error or mistake that is alleged to have been made by this Court when it dealt with the appeal and the first application to re-open.

19. The applicant contends...