PNG Law Reports 1995
[1995] PNGLR 76
SC485
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
JAHA DEVELOPMENT CORPORATION PTY LTD
V
GEI ILAGI, SECRETARY OF DEPARTMENT OF MANUS
Waigani
Amet CJ Salika Sevua JJ
26-27 April 1995
PRACTICE AND PROCEDURE - Supreme Court - Application to re-open case - Appeal heard but judgment not yet delivered - Principles applicable.
PRACTICE AND PROCEDURE - Death of member of Supreme Court before delivery of judgment - Empanelling of new Court - Re-arguing of appeal - Discretion of Court, s 3 Supreme Court Act.
Facts:
The appellants had argued on appeal to the Supreme Court that an offence created by a provincial law was retrospective in nature and should not apply to them. The decision of the Supreme Court was still pending. After the hearing of the appeal, the Supreme Court delivered a decision in another case which ruled that another provincial law similar to the one challenged by the appellant in its appeal was invalid and unconstitutional. The appellant applied to reopen the appeal to present submissions on issues arising from the decision of the Supreme Court in the later case.
Held:
1.       This application should be distinguished from cases where the Court had pronounced judgment but a party had sought to stay the entry of that judgment in order to reopen the case. In such cases, although the Court has a discretion to allow the case to be reopened, the discretion would be exercised only where there had been a mistake which could be said to be extraordinary and which affected an unsuccessful party.
2.       In this case, where judgment had not been delivered, and where a subsequent Supreme Court decision had made a ruling on similar legislation, it was appropriate for the purposes of consistency that the issues not addressed in the initial hearing be put to the Court.
3.       One member of the Supreme Court having died since the appeal, a new Court would be empanelled and the whole appeal would be re-argued.
Cases Cited:
Papua New Guinea cases cited:
SCR No 7 of 1992 [1992] PNGLR 514
Wallbank v PNG [1994] PNGLR 78
Other case cited:
Re Harrison’s Settlement [1955] 1 All ER 185; [1955] 2 WLR 256
Counsel
P Payne for the applicant.
27 April 1995
AMET CJ SALIKA SEVUA JJ: The appellant has made an application to re-open its case in this appeal. The appeal in this matter was argued on 26 September 1991. The Court was constituted by Amet J (as he then was), Konilio and Salika JJ. The only ground of appeal argued before the Court related to the retrospective nature of the offence created under the provincial law. The decision is still pending from the Court.
On 30 November 1992, the Supreme Court delivered a decision in SCR No 7 of 1992; Special Reference by the East New Britain Executive Council [1992] PNGLR 514. The Court held that the East New Britain Forestry Operations Control Act 1992 was inconsistent with the National Forestry Act 1991. The Court concluded that the provincial act, therefore, was invalid and unconstitutional.
This appeal involves the relationship between the Manus Forestry Management Act 1989 and the National Forestry (Private Dealings) Act Ch 217 (now repealed by the Forestry Act 1991). 
The appellant has applied to re-open its case in order to present submissions on issues arising from the decision of the Supreme Court in SCR of 7 of 1992 relating to the issues of inconsistency and/or unconstitutionality of the provincial act in relation to the national act.
The respondent to the appeal is not represented in this application. The respondent was advised by lawyers for the appellant of the date of hearing of this application, but had by letter dated 10 April 1995 to lawyers for the appellant advised that the appellant should seek to have the application adjourned to a date 28 days after the National Parliament meeting in June 1995. The legal officer for the respondent had by that letter expressed the view that the proposal to amend the Organic Law on Provincial Government before the National Parliament, if it passed and became law, would render the provincial legislation nugatory, and it would be of no consequence.
The Court has taken the view that the matter should proceed and the application of the appellant could be heard ex parte. It was conceded by the lawyer for the appellant that, if the application was successful, then the respondent should be given notice and the matter would be set down for substantive argument.
The appellant acknowledged that in the past the Supreme Court has been reluctant to allow parties to re-open cases that had been concluded. It submitted, however, that those decisions had been in cases which had been finally dealt with by the Court, with decisions having been delivered and entered. Wallbank v PNG [1994] PNGLR 78 is such a case, in which reasons for decision were handed down and the appellants then sought to stay the entry of judgment and applied to re-open their case. The Court held that there must be discretionary power in the Court to correct its own mistake, but that that discretion should only be exercised where there has been a mistake which could be said to be a little short of extraordinary and affects an unsuccessful party.
That and other cases in which the courts have been reluctant are clearly where the cases have been finally dealt with by the Court and judgment pronounced. The appellant has submitted that that is not the case in the present application, where the parties have closed their cases, but no decision has yet been delivered.
Additionally, it submitted that this is a criminal appeal against a conviction, and that, in the interest of justice, the appellant should be allowed to re-open its case because a subsequent Supreme Court decision has found that similar legislation is invalid and unconstitutional.
An English Court of Appeal decision in Re Harrison’s Settlement [1955] 1 All ER 185 was referred to in particular. The Court upheld the decision of the trial judge to re-open a case after an oral judgment had been delivered but not yet entered, and where a subsequent House of Lords decision interpreted the relevant law differently from that applied by the trial judge. The Court found that a case could be re-opened at any time up until final judgment was entered.
It was submitted that, as no judgment has been entered in the present matter, the parties are at liberty to re-open their cases with leave of the Court in the light of the subsequent Supreme Court decision in SCR No 7 of 1992.
We are satisfied that, in the circumstances and in principle, the application to re-open should be granted. Quite clearly, cases in which the appeal court or a trial court has been reluctant to allow parties to re-open their cases have been ones in which decisions of the court have been delivered and final judgment entered. This is not such a case. The decision in the matter is still pending, although parties had closed their cases. In the further circumstance of a subsequent decision in which similar legislation has been ruled upon, we consider it appropriate for the purposes of consistency that the issues that are sought to be addressed, which were not in the initial hearing, ought to be given the opportunity to be so addressed fully for the Court to consider.
In the years since the decision in the matter was reserved, unfortunately, a member of the Court has been deceased. This Court, hearing this application, is therefore constituted with a new member replacing our brother who is deceased. The issue has arisen, therefore, whether the matter re-opened would be argued only in relation to the fresh issues that have arisen from the Supreme Court decision in SCR No 7 of 1992 or whether the whole appeal ought to be re-argued. If only the new issues were to be argued before a newly constituted Court, then the new judge would be disadvantaged in relation to the issues previously argued. 
We do recognise that under s 3 of the Supreme Court Act it is permissible for the remaining members of the original panel to proceed in the absence of the deceased member to complete the matter and deliver judgement. However, it was decided to empanel a new Court in relation to this application. Consequently, in our judgment, in all the circumstances and in the interest of justice in now allowing the case to be re-opened for this new issue to be argued, and given the long outstanding judgment of some years, the whole appeal should be re-argued before the newly re-constituted Court, including the fresh issue.
In these circumstances, therefore, the application is allowed and we make the following further orders:
1.       The whole appeal be re-argued, including the issues that now arise subsequent upon the decision of the Supreme Court in SCR No 7 of 1992. If those issues are not sufficiently incorporated in the existing grounds of appeal, then leave is also granted to amend the notice of appeal accordingly with the proviso that adequate notice of proposed amendment be given to the respondent. 
2.       No order as to costs.
Lawyers for the applicant: Blake Dawson Waldron