SC2137

 PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 01 OF 2020
	
APPLICATION UNDER SECTION  155 (2) (b) OF THE CONSTITUTION 

AND
IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS 

BETWEEN 
ELECTORAL COMMISSION OF PAPUA NEW GUINEA 
Applicant

AND 
PASTOR BERNARD PETER KAKU 
First Respondent

AND
WILLIAM POWI
Second Respondent

Waigani:  Kandakasi DCJ, Shepherd J and Miviri J
2021:  	28th June &13th August  

PRACTICE & PROCEDURE – slip rule application – governing principles well settled - basis for claiming slip – misapprehension of facts and law – no case made out that alleged misapprehensions affected the outcome - no slip by Court – application dismissed – Section 155(2) (b) Constitution – Section 220 Organic Law on National and Local-level Government Elections - Order 11 Rule 32 (1) Supreme Court Rules.

COSTS – slip rule applications – applications without merit –effect of – waste of judicial time and imposition of unnecessary costs on other party - costs awarded on solicitor and own client basis. 

Facts

Following grant of leave pursuant to O.11 r.32 (3) of the Supreme Court Rules (SCR), the Electoral Commission made a slip rule application. The Electoral Commission, supported by Hon. William Powi, sought to set aside the Supreme Court’s decision on review which had dismissed the Electoral Commission’s application seeking a review of a decision of the National Court per Berrigan J to quash an election petition filed by Pastor Bernard Kaku. The decision of Berrigan J struck out all but 2 grounds of the petition. The hearing before Berrigan J was a rehearing of an earlier hearing and decision by Manuhu J. At the behest of the Electoral Commission with the backing of Hon. William Powi, the National Court hearing of the proceedings before Berrigan J proceeded as if the decision by Manuhu J did not exist, resulting in a rehearing of objections against all of the grounds of the petition.  In the substantive review decision against the ruling of Berrigan J, the Supreme Court applied the standard established by its decision in Avia Aihi v. The State No. 2 [1982] PNGLR 44 and dismissed the review application of the Electoral Commission. The Supreme Court by that decision also considered the effect of the decision by Manuhu J on the grounds of the petition. 
 
The Electoral Commission raised 2 grounds in support of its slip rule application. Both grounds pleaded that this Court committed slips in that it is alleged that this Court misapprehended the facts and also the law on review of decisions on disputed election petitions.

Held: 

1.	Although appeals against decisions of the National Court on election petitions are prohibited by s.220 of the Organic Law on National and Local-level Government Elections, such decisions are reviewable under s.155 (2)(b) of the Constitution.

2.	A review under s.155(2)(b) of the Constitution not being an appeal is only concerned with the decision-making process and not the substantive merits of a case.

3.	The test or standard set by the line of cases following Avia Aihi v. The State No. 2 [1982] PNGLR 44 for judicial review after loss of the right of appeal is no different to judicial review in cases where statutory laws prohibit appeals, as is the case with s. 220 of the Organic Law on National and Local-level Government Elections. 

4.	Unless a decision of the National Court is set aside or quashed or otherwise disturbed on proper appeal or review, the decision is binding on the parties and the Courts.

5.	In this instance, the earlier decision by Manuhu J, which was not disturbed in any manner or form, remains binding on the parties and the Courts and as such the grounds struck out by that decision were not open for reconsideration.  

6.	The principles governing slip rule applications are clear in that there must be finality in litigation. The slip rule application process is only available in cases where the Court has made a manifest slip which has affected the outcome of the decision in question.  A slip rule application is not available to otherwise challenge a deliberate and considered decision of the Court or to attempt to raise or address a point of law or fact which the applicant failed to properly address at the substantive hearing which resulted in the final decision of the Court, the subject of the slip rule application. 

7.	The alleged slips in this instance were not slips made by the Court but by the applicant’s own failure to have properly assisted the Court at the substantive review hearing with submissions on point.  

8.	Costs on a solicitor and own client basis were ordered against the applicant for having brought a slip rule application that had no merit and which unnecessarily took much of the Court’s time.
    
Cases Cited:

Avia Aihi v The State [1981] PNGLR 81
Avia Aihi v. The State No. 2 [1982] PNGLR 44
Aihi v. Isoaimo (2013) SC1276
Avei v. Electoral Commission & Charles Maino (1998) SC584
Burns Philp Ltd v. Rose Kekedo [1988-89] PNGLR 122
Dekena v. Kuman (2013) SC1272
Juvire v. Oveyara (2008) SC935
Kopaol v. Embel (2003) SC727
Manwau v. Trawen (2011) SC1159
Malipu Balakau v. Paul Torato [1983] PNGLR 242
Reipa and Electoral Commission v. Bao (1999) SC606
Re Nomination of Governor-General, Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859
SC Review No. 5 of 1988: Kasap and Yama [1988-89] PNGLR 197
SC Review No 8 of 1992; Application by Toffamo Simang Mionzing [1992] PNGLR 122
Talita v. Ipatas (2016) SC1603
The State v. Colbert [1988] PNGLR 138
Trawen v. Kama (2010) SC1063
Undialu v. Potape (2020) SC1981
Vele v. Parkop (2008) SC945

Wallbank v. The State [1994] PNGLR 78
Waranaka v. Dusava (2009) SC980

Counsel:
	
Mr. H. Nii, for the Applicant
Mr. R. Diweni, for the First Respondent
Mr. A. Baniyamai, for the Second Respondent

13th August, 2021

1.	BY THE COURT: The parties are back before this Court with its leave on a slip rule application made by the Electoral Commission (EC), supported by Hon. William Powi (Hon Powi), against this Court’s decision delivered on 05th March 2021 (decision on review).  The decision on review had dismissed the EC’s application to the Supreme Court pursuant to s.155 (2)(b) of the Constitution, which had sought judicial review of the National Court decision of Berrigan J in election petition proceedings EP No. 279 of 2019 delivered on 3rd April 2020 (Berrigan J decision).  The effect of the Berrigan J decision was that 7 of the 9 grounds of the electoral petition of Pastor Bernard Kaku (Pr Kaku) were struck out, leaving 2 grounds as competent to go forward to substantive hearing, namely grounds 4 and 6.  Pr Kaku had challenged the election of Hon. Powi as the Parliamentary member for the Southern Highlands Regional seat in the 2017 National Elections.  Hon. Powi backed the EC’s challenge in EP No. 279 of 2019.  The National Court proceedings which came before Berrigan J were in effect a rehearing of objections to competency against Pr Kaku’s election petition.    

2.	The EC’s slip rule application is based on 2 grounds, both premised on an allegation that this Court misapprehended certain facts and law governing the review of decisions of the National Court sitting as the Court of Disputed Returns under the Organic Law on National and Local-level Government Elections (Organic Law on Elections). 

Parties’ Arguments

3.	The EC as applicant, supported by Hon. Powi, claims that this Court made 2 slips when arriving at its decision on review against the Berrigan J decision. The alleged slips are:

(1)	The Court proceeded on a misapprehension of the law by setting a very high bar or standard for the EC to meet if a grant of its application for review pursuant to s. 155 (4) of the Constitution were to be granted; and 

(2)	The Court misapprehended the facts and law when it found that an earlier National Court decision of Manuhu J delivered on 18 February 2019 (Manuhu J decision) was binding on the parties and the trial judge, her Honour Berrigan J.

4.	The respondent, Pr Kaku, argues to the contrary and contends that there was no misapprehension by this Court as alleged.  He asserts that if there was any misapprehension, then it was by the EC and Hon. Powi.   In the alternative, Pr Kaku argues that the alleged slips by this Court, if any, did not have any serious effect on the decision on review.  Furthermore, Pr Kaku argues that this Court was correct in giving meaning and effect to the Manuhu J decision, which Berrigan J at the behest of the EC and Hon. Powi had not addressed, Berrigan J having instead dealt with the EC’s objections to competency of grounds of the petition already dismissed by the Manuhu J decision. Additionally, Pr Kaku argues the decision of this Court to dismiss the review application against the Berrigan J decision was based on further grounds or reasons which are not the subject of the EC’s slip rule application. Pr Kaku submits that the EC’s slip rule application is misconceived and without any proper basis and that as such it should be dismissed.

Relevant Issues

5.	From the parties’ arguments, the issues we must determine are as follows:

(1)	Did the Court misapprehend the law and set a higher standard than that which is applicable in judicial review applications arising out of election petitions?

(2)	Did the Court misapprehend the facts and the law when it found that the earlier Manuhu J decision was binding on the parties and Berrigan J? 

Relevant background and facts

6.	The background giving rise to these issues is straightforward but one with a long history of litigation.  On 02nd November 2017 Pr. Kaku filed a petition challenging the return of Hon. Powi as Governor of the Southern Highlands Province.  Both the EC and Hon. Powi filed separate notices objecting to the competency of Pr Kaku’s petition.  Directions were issued for the conduct of the proceedings.  Included in the directions was an order for the filing and serving of affidavits within a specified time frame.  Pr Kaku did not comply.  This caused Hon. Powi to apply for a dismissal of the petition, which was heard and refused on 21st February 2018 by Makail J.   His Honour extended time for Pr Kaku to comply with the relevant order.  Hon. Powi sought leave of the Supreme Court for a review of that decision.  On 22nd November 2018 the Supreme Court (Yagi, Kariko and Polume-Kiele, JJ) heard and refused Hon. Powi’s application.  Six days later on 28th November 2018 Hon. Powi filed an application claiming a slip in the ruling of the Supreme Court. That application remains pending.

7.	The substantive matter subsequently went through directions hearings and was listed for trial before Manuhu J.  The trial proceeded before his Honour on 18th February 2019, at which time his Honour heard the EC and Hon. Powi’s separate notices of objection to the competency of the petition.  As noted, his Honour decided on 18th February 2019 to strike out 7 out of 9 grounds of the petition.  The 2 remaining grounds were those pleaded in grounds 4 and 6 of the petition.  His Honour ordered that a trial on those grounds commence on 18th March 2019.   

7.	However, when handing down his decision, his Honour dealt only with Hon. Powi’s objections to competency and did not in any way deal with the objections made by the EC.  Hon. Powi and the EC then filed applications under references SCRev (EP) 3 of 2019 and SCRev 4 of 2019 respectively, both of which applications sought leave of the Supreme Court to review the Manuhu J decision.  As the Manuhu J decision was not a final decision in the petition proceedings, the applicants also sought an order dispensing with the requirement that only final decisions can be reviewed. Justice Hartshorn sitting as a single judge of the Supreme Court heard the “dispensation” applications and refused them. He held that there was no “requirement” to be dispensed with.  The applicants then separately filed applications for review (or appeal) against Hartshorn J’s decision to the full Court.

8.	While the review applications were pending, the trial on the petition commenced on 18th March 2019 before Manuhu J.  The following day, on 19th March 2019, Pr Kaku closed his case.  A no case submission was then made by the EC and Hon. Powi the same day. His Honour reserved his decision on that submission to 20th March 2019 at 1:30pm.

9.	On 20th March 2019 the Supreme Court review proceedings in SCRev (EP) 3 and 4 of 2019 went before the Supreme Court (Kandakasi, DCJ, Mogish and Dingake, JJ) at 9:30 am.  The Court raised with all parties the appropriateness or otherwise of the proceedings going ahead concurrently in different Courts.  After having heard the parties, the Supreme Court ruled that the National Court election proceedings be stayed in recognition and upholding of the hierarchy of the Courts and to avoid any possible conflicting outcomes, duplication of costs and other resources of the parties and the Courts.  The Supreme Court also proceeded to hear the review applications for dispensation and granted them.  That allowed the applicants to proceed with their respective leave applications.

10.	The substantive leave applications went before Chief Justice Sir Gibbs Salika on 16th July 2019.  On 16th August 2019 his Honour handed down his decision, which refused leave in respect of Hon. Powi’s application in SCRev (EP) No. 3 of 2019.  However, his Honour granted the EC’s leave application in SCRev 4 of 2019.  The full bench of the Supreme Court (Kandakasi DCJ, David and Anis, JJ) heard the EC’s review application and upheld it.  Consequential on that decision, the Court ordered a rehearing of the EC’s objections before another judge.  The rehearing took place before Berrigan J in the National Court on 11th March 2020. Her Honour conducted a hearing of the EC’s objection to competency of Pr Kaku’s petition.  On 3rd April 2020 her Honour delivered her decision via Cannings J.  The effect of her Honour’s decision was the same as the Manuhu J decision.  Her Honour decided to strike out 7 of the 9 grounds of the petition and upheld the same 2 grounds, grounds 4 and 6, as competent to go to trial as did Manuhu J. The EC being aggrieved by the Berrigan J decision, sought dispensation, and leave to proceed with a substantive review of that decision, which application was granted by the Supreme Court (Kandakasi DCJ) on 11th June 2020.  Following that grant of leave, the EC filed its substantive review application on 15th June 2020, which was heard by this Court (Kandakasi DCJ, Mogish and Shepherd, JJ) on 29th October 2020.  The Court delivered its reserved decision on the EC’s substantive review application on 5th March 2021. The EC’s application for review was dismissed.  

11.	On 14th May 2021 the EC was granted leave pursuant to O.11 r.32(3) SCR to proceed with the present slip rule application, which seeks to set aside the decision on review. We heard the application on 28th June 2021 and reserved our decision to 28th July 2021.  As we were not ready with the decision by that date, delivery of the decision was deferred until now.

Relevant Law on Slip Applications

12.	The principles governing slip rule applications are well settled in our jurisdiction. In the 5-member Supreme Court decision in Trawen v. Kama (2010) SC1063, the Court, after a review of the various authorities on point, settled the following as principles which govern all slip rule applications:

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

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

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

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

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

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

(g) 	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.	These principles have been consistently applied in many subsequent decisions of the Supreme Court, such as the decision in Manwau v. Trawen (2010) SC1063 and other cases.

Issue 1	– Did the Court misapprehend the law and set a higher standard than that which is applicable in judicial review applications arising out of election petitions?

14.	Bearing the above principles in mind, we turn to a consideration of the 2 grounds advanced in support of the EC’s slip rule application before us.  The first ground alleges that this Court misapprehended the law by setting a very high bar or standard for the EC to meet for a grant of its application for review pursuant to s. 155 (4) Constitution.   In support of this ground the EC argues that the tests to be applied on a review application made under s. 155 (2)(b) Constitution differ accordingly to the nature of the National Court proceeding from which the review application is derived.  The EC submits that as a matter of law there is already a distinction between the standard to be applied when the Court considers an application for review pursuant to s.155 (2)(b) Constitution where the application has arisen when:

(a)	a right of appeal has been lost, as was the case in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v The State (No. 2) [1982] PNGLR 44 (Avia Aihi); as opposed to

(b) 	the situation where the review has arisen from a non-appealable decision of the National Court on an election petition matter, where appeals are prohibited by s. 220 of the Organic Law on Elections, as was the case in Aihi v. Isoaimo (2013) SC1276 (Isoaimo).

15.	The EC contends that in the present case, the decision on review set the standard too high when this Court relied at para. 13 of its decision on the test approved in Avia Aihi and related cases such as The State v Colbert [1988] PNGLR 138, which is that the applicant for review must demonstrate “exceptional circumstances where some substantial injustice is manifest; or the case is of special gravity”.

16.	Further, the EC argues that a lower standard should apply in the present case as the review application is derived from an election petition matter, where the test applied in Isoaimo was stated as being that “there is a meritorious and important point of law to be determined, or there is an apparent or glaring error on the face of the record, which requires correction”.  The EC relies on a series of cases which it contends support this lower standard to be applied on review of election petition matters: Jurivie v. Oveyara (2008) SC 935; Parkop v. Vele (2008) SC945; Waranaka v. Dusava (2009) SC980; Dekena v. Kuman (2013) SC 1271; Talita v. Ipatas (2016) SC 1603; and Undialu v. Potape (2020) SC 1981. In particular, the EC cites the following passage by Kandakasi J (as he then was) in Isoaimo, a proceeding which arose from an allegation of bribery in an election matter: 

“There are two broad categories under which this Court’s review power can be invoked. The first is purely on a point of law and the second concerns a factual question.  In respect of a point of law, the requirement is for an applicant to establish to the satisfaction of the Court that there is an important point of law to be determined and that it is meritorious.  With regard to a factual question, the requirement is for an applicant to establish to the satisfaction of the Court that there is an apparent and or glaring gross error manifested on the fact of the record, or that there is on the face of the record a finding of fact which is considered so outrageous or absurd resulting in injustice warranting a review to correct it.”

17.	Finally, the EC argues that this is consistent with the Supreme Court’s earlier ruling in Kopaol v. Embel (2003) SC727 (Sawong, Kirrriwom and Batari, JJ) where it was held that there are 4 tests to be applied when the inherent power of this Court to review judicial acts of the National Court is invoked under s. 155 (2)(b) Constitution:

(a)	that there is no right of appeal or there is no other way of coming to the Supreme Court; 

(b)	that there is an important point of law to be determined by the Supreme Court; 

(c)	that the application is not without merit; and

(d)	that there must be gross error clearly apparent on the fact of the evidence before the Court.

18.	This Court’s decision on review contains a reminder of the principles which govern the law on review of decisions of the National Court in election petitions.  The Court correctly noted that s. 220 of the Organic Law on Elections prohibits appeals against any decision of the National Court on an election petition.  At the same time, the Court properly noted that s. 155 (2)(b) Constitution allows for judicial review of such decisions.   

19.	The decision on review further noted that it is settled law that a review, not being an appeal, is limited only to the decision-making process and not the merits or the demerits of the decision itself: Burns Philp Ltd v. Kekedo [1988-89] PNGLR 122, per Kapi DCJ, Amet and Cory JJ.   The Court went on to note that the leading decisions generally on review are the twin decisions in Avia Aihi. These decisions, as the Court noted, make it clear that an applicant must on the merits of the application make out “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”.  

20.	Further, the decision on review went on to note that, subsequent decisions of both the National and Supreme Courts have followed those principles.  The decision in the Colbert case set out the relevant case law up to the date of that decision and concluded that the discretionary power of the Court should be exercised only where:

(a)	it is in the interest of justice;

(b)	there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and 

(c) 	there are clear legal grounds meriting a review of the decision.

21.	Then specifically on review of decisions of the National Court on election petitions, this Court noted the decision in Balakau v. Torato [1983] PNGLR 242.  There the Court by the majority, Kidu CJ and Andrew J, held that the review avenue under s. 155 (2)(b) Constitution is available and that s. 220 of the Organic Law on Elections, insofar as it purports to prohibit the review power of the Supreme Court “in any way”, is in conflict with s. 155 (2)(b) of the Constitution and is therefore invalid.  That paved the way for judicial reviews of decisions of the National Court on an election petitions.  Subsequent decisions, such as the decision in SC Review No. 5 of 1988: Kasap and Yama [1988-89] PNGLR 197, per Kidu CJ, Kapi DCJ and Woods J, confirms that position.  Later decisions as in SC Review No 8 of 1992; Application by Toffamo Simang Mionzing [1992] PNGLR 122, per Kidu CJ, Konilio, Sheehan, Brown and Salika, JJ, have reaffirmed that position of the law and have held that an applicant in an election petition matter need only show that the ground relied upon satisfies the criteria set out in PNG v. Colbert (supra) as noted above.

22.	To make out the slips alleged by the EC and to have the decision on review revisited and corrected, the EC has the burden to meet 2 requirements.  Firstly, the EC, supported by Hon. Powi, must demonstrate that there is a distinction recognised in law between reviews arising out of election petitions and reviews which are sought after a right of appeal has been lost.  Secondly, the EC and Hon. Powi must demonstrate how the alleged misapprehension affected the outcome of the decision on review such that justice demands it be corrected.  The EC and Hon. Powi have failed to meet both requirements.

23.	On the first of the two requirements, the EC and Hon. Powi failed to meet that requirement save only to argue that the decision on review in this case adopted and applied a higher standard which applies in the context of a criminal case after losing one’s right of appeal.  This is not surprising as this is a continuum of the repeated failure by many lawyers to properly assist their clients and this Court with the correct principles governing reviews of National Court decisions in election petition proceedings.  The decision of this Court in Reipa and Electoral Commission v. Yuntivi Bao (1999) SC606, per Woods, Salika and Los JJ clearly pointed out the principles governing reviews of the National Court’s decisions out of election petitions in the following terms: 

“The Organic Law on National and Local-Level Government Elections clearly states in section 220 that a decision of the National Court in the hearing of an election petition is final and conclusive and without appeal and shall not be questioned in any way. This is why this matter has come before this court as a Review under the Constitution Section 155 (2)(b). The principles governing Section 155 Reviews have been clearly stated in a number of cases; ‘In a case where a person or a party to proceedings has no right to appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under section 155(2)(b) of the Constitution is available without the need to meet other established criteria.’ However there must be a gross error clearly apparent on the face of the evidence before the Court should grant review. Or there should be cogent and convincing reasons or exceptional circumstances shown warranting the review. So it is not a matter of establishing a simple error in the judge's findings.”
(Underlining ours)

24.	The decision in the Isoaimo case, per Kandakasi J (as he then was), with Yagi J agreeing, restated these principles and commented:

“3.	What is apparent from the above principles and the relevant authorities on point is this. There are two broad categories under which this Court’s review power can be invoked.   The first is purely on a point of law and the second concerns a factual question.  In respect of a point of law the requirement is for an applicant to establish to the satisfaction of the Court that there is an important point of law to be determined and that it is meritorious. With regard to a factual question, the requirement is for an applicant to establish to the satisfaction of the Court that there is an apparent and or glaring gross error manifested on the face of the record…or that, there is on the face of the record a finding of fact which is considered so outrageous or absurd resulting in injustice… warranting a review to correct it.”
(Underlining ours)

25.	In our respectful view, there is no difference between the test or standard laid down in the Avia Aihi cases and the line of cases that have adopted, elaborated, and applied the principles enunciated by those decisions and the decisions adopting and applying the principles in election petition review cases.  If there is a difference, the EC and Hon. Powi had the burden to demonstrate that difference to the satisfaction of this Court, but they did not.  We are of the view that there is no material difference between the Avia Aihi line of cases which concern reviews after a loss of one’s right of appeal by failure to exercise that right within the time and process prescribed and those cases where one’s right of appeal is prohibited or removed by legislation, as is the situation with election petitions. In both categories of cases, an application for judicial review is not an appeal. Hence, the principles governing appeals cannot and do not apply.  Instead, the principles governing judicial review applications apply with appropriate modifications for review applications arising out of an election petition decision in the National Court.  The test or the standard to meet is the same. This is regardless of however it is described, be it “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity” or “there is an important point of law to be determined and that it is meritorious” or … “there is an apparent and or glaring gross error manifested on the face of the record…or that, there is on the face of the record a finding of fact which is considered so outrageous or absurd resulting in injustice… warranting a review to correct it.”   The effect is the same. Accordingly, we dismiss the argument that there is a difference in the standard or test to be applied in judicial review applications after a loss of one’s right of appeal and reviews in cases where appeals are prohibited by statutory law.

26.	Turning to the second of the two requirements as to the alleged misapprehension of the law affecting the outcome of the decision on review, the EC merely asserts that there would have been a difference in the outcome favouring the EC if the lower standard (according to them) were to have been applied.  But the EC has not clearly identified the why and the how a manifest injustice has occurred which needs correction.  All that the EC has done is point to a passage in the transcript of the hearing that led to the decision on review where the president of the Court told counsel for the EC to move on with his submissions. 

27.	The hearing of an appeal or review application in the Supreme Court is preceded by the parties filing and serving on each other their respective submissions.  During the hearing, counsel for the parties speak to their written submissions rather than reading them from start to finish.  In this instance, following directions issued by the listings judge, the parties filed their respective submissions. At the hearing, the parties through counsel spoke to their submissions.  Perusal of the EC’s written submissions shows that their counsel cited the decisions in Avei v. Electoral Commission & Charles Maino (1998) SC584 and Waranaka v. Dusava (supra) as to the nature of the Court’s review jurisdiction.   In particular, the EC relied on the following passages from the decision in Avei’s case, which was endorsed by the decision in the Waranaka v. Dusava case:

“Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities are made within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker. 
…
Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s. 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process. SC Review No. 1 of 1990, Application by Electoral Commission [1990] PNGLR 441.”
28.	The EC and Hon. Powi through their respective learned counsel did not during the hearing of the decision on review take the Court through the genesis of the various Supreme Court decisions which allow for judicial review of election petition cases where the right of appeal is prohibited by s. 220 of the Organic Law on Elections.  By reason of that failure, counsel also failed to demonstrate what if any is the difference between judicial review following loss of right of appeal given by law and review where the right of appeal has been prohibited by legislation.  Importantly, counsel did not assist the Court as to how the principles they referred to should be applied in this case generally and against each of the grounds for review.  Without such assistance from counsel for the EC and Hon. Powi,  the Court nevertheless considered the development of the judicial review jurisdiction of the Supreme Court in these two contexts and ultimately decided to adopt the test of “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”, then applied that test to the case at hand and arrived at the decision on review.  

29.	The decision on review was a deliberate decision of the Court after careful consideration of the submissions of the parties and the relevant case law on point.  The decision on review was not arrived at by a slip or by any inadvertent error or mistake of law or fact on the part of the Court.  What the EC is now doing by its slip application, supported by Hon. Powi, is like what occurred in Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859 (Salika CJ, Kandakasi DCJ & Toliken J), where it was said at para. 23: 

“As can be seen, we gave careful consideration to all of the arguments the parties put forward.  Then in our deliberate judgement made critical observations and made a deliberate decision to depart from the traditional approach to assessment of damages for trespass.  We believe we gave good reasons for that.  By no means, this amounts to a slip or a decision arrived at lightly. Also, it was not a decision arrived at through a misapprehension of the relevant facts or the law on the part of the Court. Further, this was not a decision that was arrived at in a clear error of law or fact on a critical issue.  What RH is in effect doing here is rehashing the arguments it already put before us at the hearing of the appeal, which we considered and came to a deliberate judgment against it.  Thus, this ground of the slip rule fails to come within the ambit of the slip rule applications.”
30.	The foregoing clearly demonstrates that the first ground of the EC’s slip application is misconceived.  There was no misapprehension of law or fact on the part of the Court. If there was any slip at all, it was a slip on the part of the EC and Hon. Powi at the hearing of the substantive review because of their failure to properly assist the Court with submissions as to the correct standard or principles to apply when this Court was dealing with the EC’s review application.  Then after this Court had arrived at a deliberate decision, both on the relevant principles and the application of those principles to the facts of this case, the EC and Hon. Powi have come back to this Court in what is in essence a de facto appeal against the decision on review in the guise of a slip rule application.   Consistent with the principles governing slip rule applications, there must be finality in litigation and there must be an end to unnecessary lawyering. Clearly therefore, the first ground of the EC’s slip rule application is without merit.  We accordingly answer the question raised by the first ground of the slip rule application in the negative and order a dismissal of that ground.

Issue 2	- Did the Court misapprehend the facts and the law when it found that the earlier Manuhu J decision was binding on the parties and Berrigan J? 

31.	We turn now to a consideration of the second ground of the EC’s slip rule application.  That ground concerns the Manuhu J decision and its effect.   The EC contends that this Court made a slip by misapprehending the facts and law when we found that the earlier decision of Manuhu J delivered on 18th February 2019 was binding on Berrigan J and the parties.  Our review decision recognized that Manuhu J’s decision was never set aside and that the parties and Berrigan J were not at liberty to reconsider the grounds of the petition already struck out by the Manuhu J decision. The earlier decision of this Court on the review against the Manuhu J decision, sent the case back to the National Court to be reheard de novo, without resurrecting the already dismissed grounds of the petition.  However, on the submissions of the EC and Hon. Powi, Berrigan J reheard the EC’s objection even against the already dismissed grounds of the petition.   The EC now seeks via its slip rule application to argue issues that it had the opportunity to argue before us at the substantive review.  It should not be allowed to do so.  

32.	Ground 2 of the EC’s slip rule application is indicative of the nit-picking which has become popular with lawyers determined to seize on highly technical points of law to obtain via slip rule applications a further review of what should be a final and deliberate judgment of this Court exercising its inherent powers of review of judicial acts of the National Court under s.155 (2)(b) Constitution

33.	As already mentioned, it is a fundamental principle of law that there must be finality to litigation.  There is a long history of this Court’s decisions dealing with slip rule applications and the need for litigation not to be endlessly prorogued: see Wallbank v. The State [1994] PNGLR 78, Re Nomination of Governor-General, Application by Sir Pato Kakaraya (No. 2) (2004) SC752, Marabe v. Tomiape (supra) and Trawen v. Kama (supra).  

34.	Reiterating what we already said in our considered and deliberate review decision, there was only one petition against Hon. Powi’s election outcome in the 2017 National General Elections.  That petition attracted two separate objections to competency; one filed by Hon. Powi and the other by the EC.  Both objections were heard at the same time by Manuhu J.   As noted, his Honour’s decision struck out all but two grounds of the petition.  The grounds spared were 4 and 6.  That was based on Hon. Powi’s objection. Aggrieved by that decision, both the EC and Hon. Powi applied for a review of the decision.  The application by Hon. Powi was refused whereas the application by the EC was allowed, mainly because of a finding of denial of natural justice.   The denial of natural justice was the absence of any decision by his Honour on the EC’s objection after it had been heard. 

35.	After successful review, the EC’s objection to Pr Kaku’s petition eventually went before Berrigan J for rehearing.  At the commencement of the trial, the petition had changed.  Manuhu J’s decision and orders meant that all the grounds of the petition except for grounds 4 and 6 were struck out.  Hence, Pr Kaku correctly indicated at the commencement of the trial before Berrigan J that it was irrelevant and unnecessary for the parties and the trial Court to reconsider the already struck out grounds.  Instead, as Pr. Kaku properly submitted, the parties and the trial Court should have focused only on grounds 4 and 6, which were the only surviving grounds of the petition. 

36.	The only valid point raised by the EC and Hon Powi during the hearing of the decision on review is the fact that Pr. Kaku should have, but did not, file any cross-application for review of that portion of the Berrigan J decision which had reconsidered the same grounds of objection as had already been considered by Manuhu J and dismissed by him.  Because no cross-application for review was filed by Pr Kaku at the relevant time, Pr Kaku was precluded as of right from raising the issue. This was a glaring fact and well within the knowledge of the EC, Hon Powi and Pr Kaku and their respective counsel.  Counsel for Pr Kaku informed Berrigan J of this at the commencement of the rehearing.  This was no technical point or nit-picking exercise undertaken by Pr Kaku and his counsel.  Her Honour was alerted to this important fact.  However, counsel for the EC and Hon. Powi then failed to assist her Honour at the rehearing that later led to the decision on review.  Instead, the EC and Hon. Powi’s respective counsel misled Berrigan J into thinking the Court could ignore the Manuhu J decision and that her Honour could proceed to consider grounds of the petition that did not exist as at the time of her conducting the trial. Having successfully done so before Berrigan J, those counsel then tried to mislead this Court into thinking likewise.  But, this Court in its determinative decision on review, after considering the relevant facts and all submissions made for the parties, came to a deliberate decision in the following terms at paras. 20 to 23:

“We accept that this Court declared the trial before Manuhu J a mistrial for the reasons the Court gave.  That was clearly in the context of a successful review application by the EC against no decision on its objection to the competency of the petition after it was heard on its merits.  This Court on hearing and determining an application by Hon. Powi seeking leave for a review against the Manuhu J decision dealing with his objections, refused that application.  Hence, in so far as the decision on Hon. Powi’s object was concerned, it remained undisturbed following the refusal of the application for leave for review.   Given that, the parties and the Court were duty bound to consider the effect of the Manuhu J decision on the petition, particularly when the decision in question struck out all but two grounds of the petition.  That meant that only the two surviving grounds 4 and 6 remained to be dealt with.

Instead of focusing on the remaining two grounds, it seems at the behest of the EC and Hon. Powi, the parties and the Court reconsidered all of the grounds of the petition but this time on the basis of the EC’s objection to competency.  With the greatest of respect, this was in total disregard of the Manuhu J decision.  To the extent that the Manuhu J decision remained undisturbed, in our view, an issue estoppel had arisen.  The law on issue estoppel is very clear.  The doctrine of issue estoppel is part of the doctrine of res judicata.  These are well known concepts in our jurisdiction with a large body of case law on these principles. …

We iterate that the focus should only have been on the remaining grounds, 4 and 6 of the petition, as was argued for by Pr. Kaku.  To have considered the other grounds struck out by the Manuhu J decision would have been necessary only if those other grounds were completely different from those raised by Hon. Powi and had been considered by his Honour Manuhu J.  The EC and Hon. Powi have not responded at all or made no submissions in response to that of Pr. Kaku, nor have they demonstrated in any manner that the grounds for the EC’s objection were different to those raised by Hon. Powi.  In the absence of any such indication, in our respectful view what the parties and the lower Court did in effect was a review of that which was already done before Manuhu J on Hon. Powi’s objection. That could happen only in this Court on a successful review against the Manuhu J decision and not otherwise.

There was a grave danger in the parties and the trial Court proceeding in the way they appear to have proceeded, despite the clear submissions of Pr. Kaku.  The danger was in the reverse side of the EC and Hon. Powi’s submissions and or approach.  If the learned trial Judge had arrived at a decision and outcome which was different and conflicted with that of the Manuhu J decision, we would certainly have had an untenable position with two conflicting decisions on the same petition. Fortunately, the decision of the learned trial Judge came to the same decision as the Manuhu J decision, which avoided such potential risk from materialising.”

37.	To ignore the effect of the Manuhu J decision at the time of the rehearing before Berrigan J and to allow what happened before her Honour to remain uncensored would be to condone an obvious error which would result in a grave injustice.   The EC and Hon. Powi’s arguments in this slip rule application are at best asking this Court to adopt and allow for a continuation of an injustice.   Clearly the error or slip is that of the EC and Hon. Powi and is not of this Court’s making.   In our view, the EC has failed to demonstrate that a clear or manifest error of law or fact was made by this Court as opposed to a final intentional and deliberate judgment resulting in the decision on review.  The decision in Rimbunan Hijau (PNG) Ltd (supra) clearly applies here.   For these reasons, ground 2 of the slip rule application is dismissed.

Other consideration

38.	As counsel for Pr. Kaku submits, this Court’s decision on review was based on several reasons against each of the grounds of review.  The effect of the Manuhu J decision was but one of several other grounds.  There is no allegation or submission by the EC or Hon. Powi against the other reasons for this Court having arrived at its decision to dismiss the EC’s review application. Hence, those other grounds remain unchallenged. Therefore, ground 2 of the slip rule application, being referable to only one of this Court’s several reasons for dismissing the grounds of the EC’s application for judicial review, does not and cannot affect the decision on review.  The law is clear that, if a ground in a slip rule application is made out, that is not sufficient.  There is the additional requirement for an applicant to demonstrate that the alleged slip affected the decision under consideration such that the decision cannot stand.  That is not the case here.

Question of Costs

39.	This leaves us to deal with the question of costs.

40.	Election petition proceedings by their very nature demand decisions of the National Court and by the Supreme Court on judicial review to be delivered with promptitude, not endlessly drawn out by lawyers determined to exploit every technical minutiae of court process and procedure, as has been evident in this proceeding and in many slip rule applications in other cases still coming before the Supreme Court.   In these circumstances, we consider that the EC, with the assistance of Hon. Powi if need be, should be ordered to pay Pr Kaku’s costs of this slip rule application on a solicitor and own client basis.  What this Court said in Rimbunan Hijau (PNG) Ltd v. Enei (supra) at para. 33, although in a different context, supports such an order. There the Court held:

“We have given some serious thought to ordering costs on the higher rate of solicitor and own client or full indemnity basis.  We have done so in view of many people resorting to slip rule procedure as a matter of course instead of giving serious and careful thought to such applications before utilizing that process only in appropriate cases.  In this case, the application clearly had no merit.  Yet it took three judicial officers’ time going through a matter that was properly concluded.  The time thus taken could have been better utilized to hear and dispose of other matters. No doubt the Court’s time has been unnecessarily taken up and costs unnecessarily forced upon the Respondent and the Court. … We warn that, in future, the Court should on its own motion order costs on a solicitor and own client or full indemnity basis to deter unnecessary and baseless applications coming to the Court under the slip rule application process.  That will in turn enable only cases with clear slips which seriously affect the outcome of any appeal or review of any proceeding before the Supreme Court coming back to the Court under the slip rule process.”

41.	More than enough warnings have been issued by the Supreme Court.  Despite the warnings, there are still too many lawyers who are continuously filing unmeritorious slip rule applications for their clients.   Ordering costs on either a solicitor and own client basis or the ultimate costs order, that of costs on a full indemnity basis, will hopefully deter such unmeritorious applications coming before the Supreme Court in the future. 

Formal Order

42.	The Court accordingly makes the following orders:

(1)	The slip rule application contained in the Application for Leave filed on 26th March 2021 is dismissed.

(2)	Judgment and orders of the Court dated 5th March 2021 are affirmed.

(3)	The Applicant and the Second Respondent shall pay the costs of the First Respondent of and incidental to the slip rule application, including grant of leave, on a solicitor and own client basis.
________________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant
Diwenis Lawyers: Lawyers for the First Respondent
Baniyamai: Lawyers Lawyer for the Second Respondent