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Tai v Australia & New Zealand Banking Group (PNG) Ltd [2018] PGSC 23; SC1681 (11 April 2018)

SC1681

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 25 OF 2005

BETWEEN:

LUKE TAI
Appellant

AND
AUSTRALIA & NEW ZEALAND BANKING GROUP (PNG) LIMITED
Respondent

Waigani: Gavara-Nanu J.
2017: 2^nd November
2018: 11^th April

PRACTICE & PROCEDURE - Slip rule application - Inherent powers of the Court - Unreasonable delay - Need for finality of litigation - Public interest - Unreasonable delay a bar to further litigation - Constitution; s. 155 (4) - Court’s power to protect primary interest of a party.

PRACTICE & PROCEDURE – Slip rule application – Supreme Court Rules, 2012 – Order 11 r 32 – Inapplicable – Established principles to guide the Court – Principles applicable to applications to dismiss for want of prosecution an appropriate guide – Want of due diligence – Appropriate tests.

Cases Cited:

Avia Aihi v. The State (No.1) [1981] PNGLR 81
Dick Mune v. Paul Poto (No.2) [1997] PNGLR 356; SC508
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Independent State of Papua New Guinea v. Lohia Sisia [1987] PNGLR 102
Innovest Ltd v. Hon. Patrick Pruaitch and The State (2014) N5949
James Marabe v. Tom Tomape (No.2) (2007) SC856
NCDC v. Robert Dademo (2013) SC1260
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811
Re Nomination of Governor General, Application by Sir Pato Kakaraya (No.3) (2004) SC752
Trawen v. Itanu [2011] PGSC 14; SC1109
Trawen v. Kama [2010] PGSC 15; SC1063
Wallbank v. Papua New Guinea [1994] PNGLR 78

Counsel:

L. Mamu, for the Applicant
S. Kirriwom, for the Respondent

11^th April, 2018

1. GAVARA-NANU J: This is a slip rule application by the Applicant made under s. 155(4) of the Constitution. The Applicant claims the Court slipped in certain aspects of its decision which was handed down on 27 November, 2009. The Applicant asks the Court to reopen the case and make appropriate determinations on the alleged slips.

2. The Applicant raised six grounds of the application. The grounds are as follows:-
GROUNDS

1. On 27^th November 2009 at Waigani, the Court slipped and made errors in deliberating on grounds 1, 2 and 3 thus was in errors (sic.) and slipped where there was no objection to these grounds were (sic.) raised at the hearing by the respondents and both parties did not made (sic.) submissions and addressed (sic.) the Supreme Court on their competency.
   
2. That the Supreme Court fell into errors thus slipped by deliberating on grounds 4, 5, 6, 7, 8, 9, 10 and 11 together as if they relate to the question of whether there was breach of duty by the Respondent as a Banker and generally whether the conduct of the Respondent was unfair and unreasonable in the circumstances of the case when each of them was relating (sic.) to different issues.
   
3. The Supreme Court fell into error when it held that the Postal Address which (sic.) the notice was forwarded was the correct address thus slipped when it did not consider the fact that though the address was correct address but the Post Office was closed due to rascal activity (sic.)
   
4. That the Supreme Court slipped and was in error when it did not consider the fact that the Respondent Bank offered to settle by reinstating the K57, 000.00 monies it took from the IBD account without interests (sic.) and the Appellant refused.
   
5. The Supreme Court slipped and was in error when it held that the Bank had the right to redeem the money from the Appellant thus was in error as the default was only a month’s payment of K2,799.00 loan repayment which could have been offset from his passbook account which had enough money and not his term deposit of K57, 000.00.
   
6. Alternatively, the Supreme Court slipped and was in error in not considering and directing the Respondent Bank to refund the balance of his term deposit after redeeming the term deposit as the Appellant’s term deposit with interests (sic.) was more than the monies he owed to the Respondent.
   

RELIEF SOUGHT

1. The whole of the Appeal SCA 25 of 2005 is re- instated forthwith pursuant to s. 155 (4) of the Constitution.

2. The Supreme Court hear submissions and deliberate on the appeal grounds 1,2 and 3 and rule on the same pursuant to s. 155 (4) of the Constitution.

3. The Supreme Court hear submissions and deliberate on each and every one of grounds 4, 5, 6, 7, 8, 9, 10 and 11 and rule on them pursuant to s. 155 (4) of the Constitution.

4. In alternative (sic.) the whole decision in SCA 25 of 2005 be declared null and void and that the whole appeal be reheard.
   

Dated 04^th January, 2010
(Signed)
LUKE TAI
Appellant/ Applicant

3. The relevant undisputed background facts are these. In 1990, the Applicant obtained a loan for K27, 000.00 from the Respondent to finance his PMV business. The Applicant put up his assets as collateral for the loan. Two years later, the Applicant defaulted in his loan repayments. The Respondent as a result exercised its power of redemption against the funds the Applicant had in his IBD account with the Respondent. In 1996, the Applicant issued a National Court proceeding against the Respondent challenging its exercise of power to redeem against his IBD funds. The case was dismissed by the National Court after a full trial. The applicant appealed the National Court decision. On 27 November, 2009, the Supreme Court dismissed the appeal. On 2 January, 2010, the Applicant filed this application. The application was heard on 2 November, 2017, which was 7 years 10 months after the application was filed.

4. The chronology of events given above reveals prolonged delays in litigation by the Applicant since issuing the National Court proceeding in 1996 to the hearing of this application on 2 November, 2017. That is 27 years of litigation. Given the types of relief the Applicant is seeking, one of which is the reinstatement of the appeal, if this application were to succeed, litigation may take another two or three years or even more before finality is reached. This means litigation may take 30 years or more.

5. This type of delay is clearly unreasonable and detrimental to fair and proper dispensation of justice by the courts. The principles relating to slip rule applications are settled in this jurisdiction. They may be summarised as follows. A slip rule application should only be used to correct a glaring error of law or fact, and the Court must be satisfied that the error is on a critical issue affecting the applicant: James Marabe v. Tom Tomape (No. 2) (2007) SC856. Thus an error must also affect the applicant for there to be a slip and for the case to be reopened. The error should be a little short of extraordinary, and must affect the applicant. Public interest in the finality of litigation will preclude all, except a clearest slip or error which would warrant the case to be reopened: Re Nomination of Governor General, Application by Sir Pato Kakaraya (No.3) (2004) SC752 and Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78. The purpose of a slip rule application is not to allow rehashing of arguments already raised: The Election of Governor General (No.3) (supra) and Trawen v. Itanu [2011] PGSC 14; SC1109. The Court has inherent power to correct an error on its own initiative if the slip is a mere clerical mistake or error or an accidental omission: Dick Mune v. Paul Poto (No.2) SC508" title="View LawCiteRecord" class="autolink_findcases">[1997] PNGLR; SC508 and Re Nomination of Governor General, Application by Pato Kakaraya (No.3) (supra).

6. Section 155 (4) of the Constitution does not confer primary jurisdictional power. Rather, it grants power to the courts to issue facilitative orders to protect and enforce an existing primary right conferred on a party by law. In exercising this power the courts are required to tailor their remedial processes to suit the particular circumstances of the case: Avia Aihi v. The State (No.1) [1981] PNGLR 81; Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 and Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949. In Avia Aihi v. The State (No.1) (supra) Kearney DCJ (as he then was) in stating the principle said:

“I agree with the views of Prentice C.J, and Andrew J, in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea [1979] PNGLR 329 at pp.337, 401, that the Constitution, s.155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s. 155 (4) cannot affect the primary right of parties; these are determined by law. In the circumstances of this case, the applicant now has lost the right to have her sentence reviewed. That extinction of her primary right comes about by operation of law; that is, by her failure to comply with s. 27 of the (Supreme Court) Act. The Constitution, s.155 (4), cannot be used to recreate a primary right, once extinguished.

Accordingly, I respectfully agree with the Chief Justice that the Constitution, s. 155 (4), does not vest in this Court power to waive a failure to comply with s. 27 of the (Supreme Court) Act”.

7. It follows that s.155 (4) can only be invoked in cases where there is an existing primary right of a party conferred by law that has to be protected and enforced in which case s. 155 (4) has to be pleaded together with a source granting the primary jurisdictional power. That source may be constitutional (for example where ss. 57 and 58 have to be pleaded and relied upon in human right claims), statutory or common law such as breach of natural justice. The question then is – Is this application incompetent given that it was filed under s.155 (4) of the Constitution? I do not think so because a slip rule application is a special procedure and the right of a party to file a slip rule application is conferred by common law. That right was always available to the Applicant. But having exercised his right to file the application, the onus is on him to convince the Court that the application meets the requirements under the above principles and that it has merit: Trawen v. Kama [2010] PGSC 15; SC1063.

8. Before the Supreme Court Rules 2012, came into force leave was not required in slip rule applications. But leave is now a mandatory requirement under Order 11 r 32. This rule now governs and regulates slip rule applications. However the rule does not apply to this application because it was filed before the current Supreme Court Rules came into force. See, also NCDC v. Robert Dademo (2013) SC 1263.

9. This Court should therefore be guided by the principles alluded to above in deciding this application. Having regard to the above principles, all six grounds are quite clearly incompetent. I find that all the grounds of application are not of a kind that can be considered or seen as little short of extraordinary: Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea (supra). The alleged errors or slips are not clear or glaring. The Applicant has not shown any clear and manifest error of law or fact in the judgement of the Court. All the grounds essentially ask the Court to allow rehashing of arguments already raised on appeal. The issues raised in all the grounds are also res judicata. Central to all these issues is the exercise of power to redeem by the Respondent. This issue has also been fully addressed and determined by the Court. Other issues including competency also fell within the jurisdiction of the Court and they have all been fully determined. A fundamental principle to bear in mind is that the Court has inherent power to determine all issues that arose before it on appeal, including competency, irrespective of whether the issues were raised by the parties.

10. The delay by the Applicant in making this application is plainly unreasonable and inexcusable. The Applicant’s appeal was dismissed on 29 November, 2009. He waited for almost 8 years before making this application. The current Rules of the Supreme Court indicate clearly the Court’s attitude to slip rule applications. This can be seen in the terms of Order 11 r 32 of the Supreme Court Rules 2012, which sets out a strict screening process for slip rule applications. Under this rule, it is mandatory that an application be made within 21 days of the order disposing of the proceeding and leave must be obtained before an application can be listed for hearing. So the clear legislative intent there is an application must be made promptly and must have merit.

11. In this case, the fact that the application is not subject to the requirements of Order 11 r 32 of the Supreme Court Rules does not mean the Applicant can be complacent and think that he is free to litigate ad infinitum. Where there is an unreasonable delay as in this case, public interest demands that litigation be brought to finality forthwith to prevent further abuse of courts’ processes and to prevent further prejudice and damage to the interests of those who are directly affected by this prolonged litigation. In Independent State of Papua New Guinea v. Lohia Sisia [1987] PNGLR 102, the Supreme Court took a similar approach. Although the period of delay in that case was much less viz; five and a half years, the Court held that the delay was unreasonable, thus was a complete bar to review under s. 155 (2) (b) of the Constitution.

12. The Supreme Court, the highest court of the land has fully and effectively determined all issues brought before it. Thus there was already a finality of litigation. The Respondent in the result already had two judgments in its favour, viz; the decision of the National Court and of this Court and the Respondent is entitled to the benefits of those judgments. Therefore, if the Applicant wanted to reopen the case, the onus on him was onerous, he was required to prosecute the application with due despatch and diligence. No explanation at all has been given by the Applicant for the long delay. Thus, he has clearly failed to discharge the onus and is guilty of an unreasonable delay.

13. There are very good reasons why this type of delay should not be allowed by the Court to continue any further. For instance, such delay reduces quality of justice. The delay affects the work of the courts in the effective disposition of cases, and it undermines the principle of fair and proper dispensation of justice and good governance by the courts. Witnesses disappear, they either die or they cannot be located, memories fade, and vital documents getting lost. A claim which would fail if brought promptly might succeed 20 years later when key witnesses cannot be located, or are dead. Conversely a claim which would have succeeded if brought promptly might fail if brought many years later for the same reasons.

14. A long line of decided cases both by the National Court and the Supreme Court show that if there is lack of due diligence by the aggrieved parties in prosecuting their cases, the courts will readily exercise their inherent powers to dismiss proceedings for want of prosecution. In this case, the unreasonable delay also equates to the legal maxim -“justice delayed is justice denied”.

15. Given that Order 11 r 32, of the Supreme Court Rules does not apply in this case, I hold a view that principles applicable to applications to dismiss for want of prosecution, in which delays in terms of months have been determined to be sufficient grounds to dismiss proceedings, should guide the Court in its decision. See, for example PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811 and General Accident Fire and Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331. These cases emphasise “want of due diligence” by the aggrieved parties in prosecuting their cases.

16. In this case, the delay of almost eight years by the Applicant to prosecute this application shows a clear lack of due diligence. The unreasonable and inexcusable delay should be a complete bar to reopening the case and the Court should exercise its inherent and unfettered supervisory discretionary powers under s.155 (4) to stop any further litigation. The exercise of power in this way by the Court will ensure finality of litigation and protect its processes from being further abused. Furthermore, for the reasons given, the grounds of application are unlikely to succeed. It will also allow the Respondent to deservedly enjoy the benefits of the judgment of the Court.

17. I would for these reasons refuse the application.

18. The Applicant will pay the Respondent’s costs of and incidental to the Application.

____________________________________________________________
Public Solicitor: Lawyers for the Applicant
Dentons Lawyers: Lawyers for the Respondent