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Kobol v Powi [2018] PGSC 68; SC1731 (29 October 2018)

SC1731

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) 32 OF 2018

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
JOSEPH KOBOL
Applicant

AND:
WILLIAM POWI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2018: 28^th September,
: 11^th & 29^th October

Application to dismiss an application for leave to make a slip rule application

Cases cited:

Trawen v. Kama (2010) SC1063
Agiru v. Kaiabe (2014) SC1384
Napanapa Landowners Association Inc. v. Logae (2017) SC1677

Counsel:

Mr. R. Diweni, for the Applicant
Mr. A. Baniyamai, for the First Respondent

29^th October, 2018
1. HARTSHORN J: This is a decision on a contested application to dismiss an application for leave to make a slip rule application (Dismissal Application).

2. The proposed slip rule application concerns my decision to dismiss an application for leave to review the decision of the National Court that dismissed an election petition.

3. The Dismissal Application is made by Mr. William Powi, the first respondent and is opposed by Mr. Joseph Kobol, the applicant. The Electoral Commission, the second respondent, did not make an appearance at the hearings of the Dismissal Application.

Background

4. The first respondent was declared the elected Member of Parliament for the Southern Highlands Province in the 2017 General Elections. The primary judge dismissed the applicant’s election petition after upholding the first respondent’s objection to competency on the ground that the applicant had incorrectly specified the relief to which he claimed to be entitled in his election petition, contrary to s. 208(b) and s. 212 Organic Law on National and Local-level Government Elections. On 7^th August 2018, sitting as a single judge of the Supreme Court, I refused the applicant’s application for leave to review the National Court decision.

Dismissal Application

5. The first respondent relies upon Order 5 Division 2 and Rule 39, Order 7 Rules 15 and 17, Order 11 Rules 9, 28(a) and 32, and Order 15 Rule 17 Supreme Court Rules for his Dismissal Application. His counsel also submitted that this court has inherent jurisdiction to protect its processes from abuse.

6. The applicant did not raise issues concerning the Supreme Court Rules relied upon by the first respondent, apart from the definition of “Court” which will be considered later. I am satisfied that the first respondent is entitled to object to the competency of the application for leave by relying upon the Supreme Court Rules that he has. In this regard I refer to my decision in Napanapa Landowners Association Inc. v. Logae (2017) SC1677. At [7] I said:

“7. As to whether the Supreme Court Rules permit an objection to competency to be made in respect of an application for leave to make a slip rule application, Order 11 Rule 28 Supreme Court Rules provides that;

“Division 14.-Other Rules of General Application

28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:

(a) Order 7 Division 5 (objection to competency of appeal)”

8. In this instance the words, “application to apply for leave to make a slip rule application” being the nature of the proceedings presently before the Court, may be substituted for the word “appeal”. This is so as the “proceedings before the Court” is not the appeal. The proceedings before the Court are the applications to apply to make a slip rule application made after, “disposal of a proceeding”: Order 11 Rule 32(1) Supreme Court Rules. There has been an order, “disposing of the proceeding”: Order 11 Rule 32(1). Consequently, I am satisfied that the Supreme Court Rules do allow for an objection to competency to be brought in respect of an application for leave to make a slip rule application.”

7. The first respondent submits that his Dismissal Application should be granted as amongst others:

a) this court is functus officio and cannot deal with the same matter through the guise of another application, including a slip rule application to revisit the issues;

b) Order 5 Rule 17 Supreme Court Rules provides that the grant or a refusal of leave to review is final and not subject to further review;

c) the provision that permits a decision of a single judge of the Supreme Court to be revisited is Order 11 Rule 25 Supreme Court Rules and that only applies to appeals. In any event, the applicant has not brought his application for leave to make a slip rule application pursuant to this provision;

d) Order 11 Rule 32 only provides for a slip rule application in respect of a decision of the full court of the Supreme Court, and not a decision of a single judge of the Supreme Court.

8. The applicant submits that the dismissal application should not be granted as:

a) this court cannot be denied its right to revisit its decision to correct a slip;

b) a slip rule application is a revisiting of a decision to correct a slip and is not a review;

c) Order 11 Rule 32 provides this court with the jurisdiction to revisit its decision to correct a slip;

d) there have been previous cases in which there have been slip rule applications from decisions of a single judge of the Supreme Court;

e) the first respondent’s complaint is jurisdictional and not as to competency, and is premature.

Consideration

9. I consider whether Order 11 Rule 32 Supreme Court Rules is able to be relied upon by the applicant for leave to file a slip rule application, first.

10. Order 11 Rule 32(2) and (3) are as follows:

“(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made

(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.”

11. Counsel for the applicant submitted that “Court” as it is used in Order 11 Rule 32 should not be confined to the meaning of the full court of the Supreme Court because in Order 11 Rule 28, “Court” is also used but to include proceedings before a single judge of the Supreme Court.

12. It is the case that the meaning of “Court” in Order 11 Rule 28 has not been confined to mean the full court of the Supreme Court and I refer to my decision in Napanapa (supra) in that regard.

13. As mentioned, “Court” is defined in Order 1 Rule 7(1). That rule commences with the words:

“(1) In these Rules, unless the contrary intention appears:-.....”

14. In determining the intention apparent in Order 11 Rule 28, the following factors in my view, are relevant:

a) Rule 28 is the only Rule in Division 14 of Order 11. Division 14 is titled “Other Rules of General Application”;

b) the wording of Rule 28 is not reinforced by inclusion of the word “shall”;

c) Rule 28 states that it applies to “any proceedings” before the Court. This includes interlocutory matters as the words “Substantive proceedings” as defined in Order 1 Rule 7 are not used. A single judge of the Supreme Court and the full court of the Supreme Court are given jurisdiction to deal with certain interlocutory matters in the Supreme Court Rules. It would be incongruous for additional rules to be able to be utilized in interlocutory matters, but be dependent upon whether a single judge or the full court was considering the same interlocutory matter.

15. After a consideration of the above factors, I am of the view that the interpretation of the word “Court” in Order 11 Rule 28 should not be confined to the full court of the Supreme Court, but should also include a single judge of the Supreme Court, as a contrary intention is apparent to the definition of “Court” in Order 1 Rule 7 Supreme Court Rules. That contrary intention is that Rule 28 should apply to any proceedings before the Supreme Court whether that be the full court of the Supreme Court or a single judge of the Supreme Court.

16. In determining the intention apparent in Order 11 Rule 32(2) and (3), the following factors in my view are relevant:

a) in Rule 32(3), a distinction is made between a “Judge” of the “Court” and the “Court”. This indicates that the differences in how the Supreme Court may be constituted were specifically considered when this Rule was drafted;

b) the use of the word “shall” in Rules 32(2) and (3) is indicative of these Rules being drafted for a specific, as distinct from a general, application.

17. After a consideration of the above factors, I am of the view that the interpretation of the word “Court” in Order 11 Rule 32(2) and (3) should be as defined in Order 1 Rule 7 as a contrary intention is not apparent that “Court” should be interpreted other than as defined.

Order 11 Rules 32(2) and (3) Supreme Court Rules

18. Rule 32(2) specifically refers to a “‘slip rule’” application and “.... the finding that the applicant contends the Court should have made.” As referred to, a “Court” in Order 1 Rule 7(1) Supreme Court Rules “means the full court of the Supreme Court of Justice.”, unless the contrary intention appears. Rule 32 is referring to a ‘slip rule’ application in respect of a decision of the full court of the Supreme Court and not a decision of a single judge of the Supreme Court.

19. Rule 32(3) also refers to the decision in respect of which a ‘slip rule’ application is made as a decision of the full court of the Supreme Court, by the use of the words “... unless a Judge of the Court making the order from which the application arises, or that Court, ....”

20. Further, Rule 32(3) refers to the hearing of a ‘slip rule’ application being before the full court of the Supreme Court but not unless a Judge of that Court has granted leave. It clearly is not possible for there to be a Judge of the full court of the Supreme Court making the order from which the application arises, when the decision the subject of the slip rule application is a decision of a single judge of the Supreme Court.

21. I am satisfied upon a consideration of Order 11 Rule 32(2) and (3) that these provisions do not refer directly or indirectly to a decision of a single judge of the Supreme Court being the subject of a slip rule application and do not provide the jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court.

22. The applicant submits that this court cannot be denied its right to revisit its decision to correct a slip. It is the case however, that the Supreme Court Rules have specifically provided for a slip rule application and the requisite procedure, but that provision and requisition does not provide for or permit a slip rule application in respect of the decision of a single judge of the Supreme Court. To that extent, any right to revisit such a decision that may have previously existed has been adversely affected.

23. The applicant further submits that there have been previous slip rule applications in respect of decisions of a single judge of the Supreme Court. Reliance is placed upon Agiru v. Kaiabe (2014) SC1384 and Trawen v. Kama (2010) SC1063. Notwithstanding that both of these decisions concern slip rule applications in respect of decisions of a single judge of the Supreme Court, from a perusal of these decisions, neither consider Order 11 Rule 32 Supreme Court Rules. Trawen (supra) was before Order 11 Rule 32 came into effect and Order 11 Rule 32 does not appear to have been brought to the attention of the presiding Judge in Agiru (supra). I do not find these decisions to be of assistance to the applicant.

24. As I have found that Order 11 Rule 32(2) and (3) do not provide jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court, and given that the applicant relies upon those Rules for his application for leave to file a slip rule application, the application of the applicant for leave is not competent. The Dismissal Application should be upheld. Given this finding, it is not necessary to consider the other submissions of counsel.

Orders

25. It is ordered that:

a) The application of the applicant for leave to make a slip rule application filed 24^th August 2018 is dismissed;
b) The costs of and incidental to the hearing of the amended application of the first respondent filed 2^nd October 2018 are reserved for further argument and submission to a date to be fixed.
______________________________________________________________
Diwenis Lawyers: Lawyers for the Applicant
Baniyamai Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent