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 that this Court was wrongly constituted to rehear the matter because a decision on the appeal was already made by the earlier court constituted by Amet CJ, Kapi DCJ and Los J and it is that decision that should have been handed down by the remaining Judges after Amet CJ left office. Hence there was no need to reconvene a different Court to rehear the matter under s 3 of the Supreme Court Act. 

20.	 The draft judgment of Amet CJ is annexed to the affidavit of the applicant filed in support of the present application. That draft judgment is sought to be led by way of fresh evidence.

21.	We accept Mr Kua’s submission that the applicant’s argument is untenable in that the draft judgment of Amet CJ is protected by the rule of absolute privilege and such evidence is not available to be produced as evidence in any judicial proceedings: see Halsbury’s Laws of England, 4th Ed, Vol.28, at pars.96 to 98. Also see Phipson on Evidence, 11th Ed (1970), John H. Buzzard & Ors states this at par.569. 

22.	We are also of the view that the applicant did not raise the point and seek a specific ruling on the issue when the appeal was reheard by this Court. In the circumstances, it cannot be said that this Court made a mistake. Even if the point had been raised, the argument is clearly without merit in that the continuation of the appeal before the remaining Judges and before this Court was properly done in accordance with s 3 of the Supreme Court Act.  A decision on the appeal had not been reached and delivered by that Court and the only other way a decision would have been made in the appeal is if the parties agreed to the remaining judges continuing with the matter. As it turned out, the parties did not agree to the remaining judges continuing with the matter and this Court was constituted to hear the matter. This Court was duly constituted and it heard and determined the appeal. 

23.	Before we finish, we take the opportunity presented to us by the circumstances of this case to express our disapproval on the conduct of Court staff and the applicant in facilitating and pursuing this second slip rule application, which is an abuse of this Court’s process and borders on contempt of Court. 

(1)	There are two instances where draft judgements prepared by Judges and circulated for discussion amongst the Judges in the case ended up in the hands of  the applicant. The first is the draft judgment prepared by Amet CJ and the second is a draft judgment prepared by a member of this Court on the first slip rule application. Both of those draft judgments are annexed to Mr Koyati’s affidavit sworn on16 October 2008 and filed herein. Those documents are absolutely privileged documents and not available for public disclosure or dissemination. The applicant says the draft judgments were taken from the Court file after a file search. How those draft judgments ended up in the Court file is unknown. Some Court officers saw it fit to facilitate the disclosure of those draft judgment to the applicant through the Court file. Such a practice constitutes a serious interference on judicial independence of Judges and we strongly disapprove of this practice. A repeat of this type of incident in any other case in the future, we warn, will be dealt with severely by this Court. 

(2)	It is also clear to us that officers in the Supreme Court registry released to the applicant copies of internal correspondence regarding the matter which was before the Court, exchanged between the Chief Justice and Supreme Court registry. Those correspondences are also privileged. We also disapprove of such practice. 

(3)	There is produced a letter issued by the Associate to one of the Judges who first heard the appeal written to the applicant that advises the remaining Judges “are at logger heads over... the case.  His Honour has gone one way and the (judge named) has decided another way.  The opinion of Sir Amet is invalid because his term has expired before the decision was handed down. Therefore the only solution here is for fresh panel of Judges to re-hear this matter”.  The advice was given after the lawyer for the applicant wrote to him saying the remaining judges should deliver the judgment reached between Amet CJ, Kapi CJ and Los J even though Amet CJ had retired.

24.	It seems to us that the letter from the lawyer for the applicants was based on a misinterpretation of s 3 (a) of the Supreme Court Act. The advice from the Judges’ Associate was given before the parties were given an opportunity to state their position under s 3 (a).   It is an improper practice that should be discouraged and any Judges’ Associate or other staff found engaging in this practice will be dealt with severely by this Court. 

25.	 We also direct the Registrar take appropriate steps including issuing practice directions or instructions designed to protect privileged Court information and documents from being disclosed by Court staff to parties or their lawyers and / or  from being accessed by unauthorised Court staff and by parties or their lawyers.

26.	For the foregoing reasons, we dismiss the application with costs to the respondent. 
_____________________________________________________________
Second appellant/applicant appears in person  for himself and for the first appellant	
Posman Kua Aisi Lawyers:  Lawyer for the First Respondent