SC2829

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 83 OF 2024

BETWEEN:
AIR NIUGINI LIMITED 
Applicant

AND:
joseph kumasi
Respondent

WAIGANI: LOGAN J
25 AUGUST 2025

PRACTICE AND PROCEDURE – Slip rule application - Supreme Court Rules, Order 11 rule 32(3) – Where applicant alleges there was a glaring error or mistake in a judgment of the court – application in substance just an attempt to revisit issues of law on which the applicant failed on the appeal – application dismissed.

Facts

The applicant’s appeal to the Supreme Court was dismissed. He subsequently made a slip rule application on the grounds of: an error in applying general principles of contract law to the construction of the standard form contract; and a denial of procedural fairness, as cases relating to construction of contracts had not been put to his counsel in submissions. The court found that the grounds to grant a slip rule application were not made out, and dismissed the application.

 Cases cited

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169
Concut Propriety Limited v Worrel (2000) 75 ALJR 312
Dick Mune v Paul Poto (No.2) [1997] PNGLR 356
James Marabe v Tom Tomiape (No.2) [2007] SC856
Robert Saga v PNG Law Society [2010] SC1070 
Trawen vs Kama [2010] PGSC 15
Workpac Propriety Limited v Rossato (2021) 271 CLR 456

Counsel

Mr J Biar with Ms C Windko for the applicant
Mr C Joseph for the respondent

1.	LOGAN J: Earlier this year the Supreme Court resolved a controversy between the present applicant, Mr Joseph Kumasi, and the present respondent, Air Niugini Limited. Mr Kumasi had been a pilot and a senior one, a captain, employed by Air Niugini for some 21 years from 1995 to 2016. He was also active in the Papua New Guinea Air Pilots Union. The union had negotiated with Air Niugini for a standard form agreement. One feature of that agreement was that it gave effect or was intended to give effect to what was termed a same job, same pay policy as between citizen and non-citizen pilots. 

2.	After the termination of his employment, Captain Kumasi instituted proceedings against Air Niugini alleging a failure to pay superannuation pursuant to the Superannuation (General Provisions) Act 2000 (the SGP Act). He alleged that Air Niugini had made false representations about the same job, same pay policy. In the National Court the primary judge held that Air Niugini had breached the SGP Act. There was a further issue as to whether Captain Kumasi’s claim was or was not time barred.

3.	Air Niugini appealed against the orders made by the National Court. It was successful on that appeal. That success entailed the construction on the SGP Act and also the terms of the standard form agreement to which, materially Captain Kumasi was a party. In the result and for reasons given by the court, the Supreme Court concluded that there had been no false representations as to the same job, same pay policy. The court also concluded that Captain Kumasi was not time barred in making his claim.

4.	Captain Kumasi has latterly made or at least purported to make an application under Order 11 rule 32(3) of the Supreme Court Rules for leave to apply to re-open and correct the orders made by the Supreme Court earlier this year. In other words, his application is for leave to make what is termed a “slip rule” application. The application is being dealt with by me as a single judge of the court. In the event that leave was granted, the application would be returned before a full court. 
There is no difference between the parties as to the general principles which apply in relation to a slip rule application. In Red Coco Properties Limited v Gimiseve PGSC 25, SCA 41 and 42 of 2011, 28 April 2023, at paragraph 3 this Court observed, with reference to earlier cases concerning slip rule applications namely Robert Saga v PNG Law Society [2010] SC1070 and Dick Mune v Paul Poto (No.2) [1997] PNGLR 356, the following: 

“The purpose of a slip rule application is to correct a glaring error or mistake in a judgment of the court” Robert Saga v PNG Law Society. One type of error could be, and in this case is, a manifest, not merely arguable, error of fact. Such applications are not an opportunity to re-litigate the merits of a case, only to correct such errors so as to avoid an injustice. 
Where, truly, there is such an error, a party should not hesitate to bring such an application for fear of in some way offending the judge or judges who constituted the court by the highlighting of an error or mistake. While it is to be hoped such errors are to be avoided, to err is human and no judge true to his or her judicial oath should take umbrage or offence at acknowledging an error so as to avoid an injustice. We certainly do not. Indeed, we apologise to the parties and Red Coco in particular for the error and consequential inconvenience. The court has an inherent jurisdiction to rectify such glaring errors or mistakes. Dick Mune v Paul Poto (No 2).”
5.	In an earlier case, Trawen vs Kama [2010] PGSC 15, SC1063, a Full Court of five judges conducted an extensive review of authority, both in this jurisdiction and in comparable overseas jurisdictions with respect to slip rule applications. The court particularly referred with approval to identification in James Marabe v Tom Tomiape (No.2) [2007] SC 856. The principles identified or distilled in Trawen v Kama, after this review, were these:

(1)	There is a substantial public interest in the finality of litigation. 
(2)	On the other hand, any injustice should be corrected. 
(3)	The court must have proceeded on a misapprehension of fact or law.
(4)	The misapprehension must not be of the applicant’s making. 
(5)	The purpose is not to allow rehashing of arguments already raised. 
(6)	The purpose is not to allow new arguments that could have been put to the court below. 
(7)	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 particular issue. These then are the principles which call for application with respect to Captain Kumasi’s application.
6.	Captain Kumasi put that the court had been in error in applying general principles of contract law to the construction of the standard form contract to which Captain Kumasi was a party. Related to that, he also put that there had been a denial of procedural fairness to him in that cases concerning general principles as to construction of contracts had not been put to his legal representatives in the course of submissions.

7.	When a single judge deals with a slip rule application, a judge does not reach a conclusion finally determining the application if the judge is persuaded that there is a reasonably arguable case of error in respect of the court’s earlier decision. If persuaded that there is a reasonably arguable case of error of the kind described in James Marabe v Tom Tomiape, the single judge dealing with the application would grant leave and the application would then be returned before the Full Court. Slip rule applications may of course be dealt with in the first instance by a Full Court. However, and the parties would agree as to this, they may also permissibly be dealt with by a single judge in the manner just described.

8.	In the course of submissions, I put to counsel for Captain Kumasi that in deciding whether or not a contract of employment did or did not exist, one might look to: whether there was an offer of employment by the prospective or alleged employer; whether there was consideration in respect of the offer; and whether or not that offer had been accepted. Counsel for the applicant conceded that those three features, which would lead one to reach a conclusion as to whether or not a contract of employment existed, were but an application in the context of a controversy concerning an employment contract of the general law of contract.

9.	Neither party to the application could point to any earlier case than the Supreme Court’s judgment in this case in Papua New Guinea concerning whether the general law of contract was applicable to the resolution of controversies concerning employment contracts. Were the point contemplated bereft of authority or were there to be overseas cases arising in comparable jurisdictions which held to the contrary, and to which the court was neither referred nor itself make reference, there may perhaps have been exposed on the present application a glaring misapprehension of law which was at least reasonably arguable, such that the granting of leave was warranted. Further, in the event that some general law principle was contrary to earlier authority and that general law principle as discerned by the court had not been put to parties in the course of submissions, it may be that a reasonably arguable case in respect of a denial of procedural fairness would be exposed.

10.	As it happens, however, all that the court did in determining the present appeal, was to align Papua New Guinea’s underlying law with the position elsewhere in the common law world. That point is most starkly made with reference to an Australian case, Concut Propriety Limited v Worrel (2000) 75 ALJR 312. It was controversial in that case as to whether the dismissal of an employee might be justified upon grounds on which the employer did not act and of which the employer was unaware when the employee was discharged.

11.	Unremarkably, with respect, the High Court held that a dismissal might be justified on such a ground or grounds. Another issue in that case was whether a latter agreement in writing was a new and discrete employment contract which had the effect of terminating and replacing a prior oral agreement between the parties. In reaching the conclusion that there was no termination and replacement, the court applied general law contract principles.

12.	Later in time and also in the High Court of Australia in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [1], Chief Justice French and Justices Bell and Keane observed in their joint judgment: 

“The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles informing the construction and content of the contract of employment.” 
13.	Having cited that passage from Commonwealth Bank v Barker, Chief Justice Keifel and Justices Keane, Gordon, Edelman, Steward and Gleeson in the later Australian High Court case, Workpac Propriety Limited v Rossato (2021) 271 CLR 456 at [57] stated: 

“A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship.”
14.	Concut Propriety Limited v Worrell is just an example of the court determining the particular meaning and effect of rights created by an employment contract by reference to general contract law principles. The present case is also an example of the Supreme Court in its earlier judgment of construing the meaning and effect of an employment contract by reference to general contract law principles.

15.	One might equally well say in Papua New Guinea that the employment relationship in Papua New Guinea operates within a legal framework defined by statute and by common law principles informing the construction and content of the contract of employment. The example put to counsel and conceded by counsel to be accurate in the course of submissions is proof perfect of that proposition.

16.	It was not necessary in the course of submissions to put general law principles to the counsel for either party. Counsel advanced submissions as to the meaning and effect of the standard form contract. The court was not obliged to decide the case only by reference to cases cited by counsel as opposed to deciding the case by reference to applicable general law principles.

17.	The proposition that there was a denial of procedural fairness is not in my view reasonably arguable in the slip rule application. Neither, for reasons just given, is it reasonably arguable that the general principles of the law of contract are inapplicable to the construction of a contract of employment.

18.	For these reasons, my conclusion is that the present application is nothing more and nothing less than, as Air Niugini put in its submissions, an endeavour to rehash arguments which were finally determined by the Supreme Court’s earlier judgment. The application is therefore dismissed. 

Orders:
1.	The application be dismissed.
2.	The applicant pay the respondent’s costs of and incidental to the application to be taxed if not agreed.
________________________________________________________________
Lawyers for appellant: Mr J Biar assisted by Ms C Windko.
Lawyers for respondent: Ashurst Lawyers