Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Stuckey v Chan [2012] PGNC 167; N4840 (25 October 2012)

N4840

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 22 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NEW IRELAND PROVINCIAL ELECTORATE

BETWEEN

IAN LING-STUCKEY
Petitioner

AND

HON SIR JULLIUS CHAN
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 10th & 25th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to set aside order on service of petition – Application under slip rule – Application arising from election dispute – Grounds of – Misapprehension of law – Service effected at office of first respondent – Irregular service – Application seeking to revisit earlier decision – Issue of service extensively argued by parties – First respondent re-agitating issue determined by Court – Issue of service must be raised in Supreme Court – Application misconceived and abuse of process – Application dismissed – National Court Rules – Order 8, rule 59 – National Court Election Petition Rules, 2002 (as amended) – Rule 7(1)(b).

Facts

The first respondent applied to set aside an order on service of petition on him under the slip rule on the ground that the Court misapprehended the law on service, in that the petition was wrongly served at his office and not at his residential address as stated by him in the nomination form under Rule 7(1)(b) of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. An application under the slip rule is to correct a slip or mistake made by the Court: Stephan John Rose -v- The State (2007) N3241 and Wallbank and Mimifie -v- The State [1994] PNGLR 78 referred to.

2. Where the issue of service was extensively argued and the Court held that service of the petition was properly effected on the first respondent, it is not open to the first respondent to re-agitate it in the guise of a slip rule application.

3. The issue of service is not a slip or mistake. The application is misconceived and is dismissed with cost.

Cases cited:

Stephan John Rose -v- The State (2007) N3241
Wallbank and Mimifie -v- The State [1994] PNGLR 78

Counsel:

Mr S Pokawin, for Petitioner
Mr A Manase, for First Respondent
Mr T Kuma, for Second Respondent

RULING ON APPLICATION TO SET ASIDE ORDER ON SERVICE OF PETITION

25th October, 2012

1. MAKAIL, J: On 25th September 2012, after hearing the petitioner and the second respondent in relation to service of the petition on the first respondent, the Court was satisfied and ruled that the first respondent was served with the petition when a copy was left with a staff member of the first respondent at his office at the New Ireland Provincial Government office at 10:40 am on 04th September 2012. The Court then proceeded to issue directions for the preparation of the petition for trial in accordance with Rule 12 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2. Following the directions hearing, on 02nd October 2012, the first respondent filed a notice of motion seeking to set aside the order of 25th September 2012, relying on the slip rule principle. He contends that the Court made a slip by misapprehending the law when it ruled that the petition was properly served on him at his office. He submits that the law is that the petitioner is required to serve the petition on him by leaving a copy at the residential address stated by him in the nomination form with a person who appears to be over the age of 18 years pursuant to Rule 7(1)(b) of the EP Rules. For these reasons, the order of 25th September 2012 ought to be set aside and the issue of service, re-argued.

3. Rule 7 states:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament." (Emphasis added).

4. Without going into the merits of the application, I must say I have great difficulty appreciating the application itself. Although not expressly stated in the notice of motion, I can see that the first respondent seeks to invoke the Court's power under O 8, r 59 of the National Court Rules to correct a mistake purportedly made by the Court on 25th September 2012. He seeks to have the Court set aside its own order of 25th September 2012 under the slip rule principle. Order 8, rule 59 states:

"59. Minute of judgment or order

(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

(2) Rules 56, 57 and 58 of this Order do not apply to a correction made under sub-rule (1) of this Rule."

5. As I understand it, a slip rule application is made to correct a simple slip or mistake. In Stephan John Rose -v- The State (2007) N3241, Justice Gavara-Nanu referred to Wallbank and Mimifie -v- The State [1994] PNGLR 78, in which the Supreme Court acknowledged the jurisdiction of the Court to reopen a case for purposes of correcting an error resulting from a misapprehension of facts or law and stated:

"In that case, the Supreme Court adopted the principle enunciated in Autodesk Inc. v. Dyson (No. 2) (supra). The principle applies to a slip made by a court in an earlier judgment, which the same court would be required to rectify. Thus, the point to note here is that, such slip would be by the Court; which may arise as a result of a court proceeding on a misapprehension as to the facts or the law. This principle was expounded by Mason CJ in his judgment in Autodesk Inc. v. Dyson (No.2) at pages 302 to 303, where his Honour said:

"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has a good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to facts or the law. As this is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law or that this apprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."

6. His Honour further stated that:

"The inherent jurisdiction of the Court under O 8 r 59(1) to correct such errors is wide and an all embracing description of the Court's power was stated by Sir John Donaldson MR, in R v Cripps, ex parte Muldoon and Others [1984] 2 All ER 705 at 710 where it was said:

"It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely, to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge....But it also authorizes the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it....It even authorizes the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended....However, it cannot be over-emphasised that the 'slip rule' power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected, even if it has been obtained by fraud.... We say 'final' decision because different considerations apply in the case of orders which are provisional, because, for example, they were obtained ex parte, and we say 'regular' because again different considerations arise where the order may be said to be irregular for any of a variety of reasons."

7. The issue in this case therefore is whether or not the Court made a slip or mistake on 25th September 2012 such that the order ought to be corrected. On 24th August 2012, the petitioner filed this petition. The petition was fixed for directions hearing on 25th September 2012. On that date, the petitioner and the second respondent attended. The first respondent did not and the Court raised the issue of service on the first respondent.

8. The first respondent has not provided the transcript of the proceedings of 25th September 2012 for the Court and of course the parties to appreciate the submissions made by the parties at that time and the basis of the Court's decision. Nonetheless, according to my notes, the petitioner and the second respondent made lengthy submissions on the issue of service on the first respondent. The second respondent vigorously opposed the submissions by the petitioner that the petition was served on the first respondent.

9. The petitioner submitted that service was effected by leaving a copy of the petition with a staff member of the first respondent at the office of the first respondent at New Ireland Provincial Government office and that was sufficient for the purpose of complying with Rule 7(1)(b). The petition was served at that location because numerous attendances at the office to serve the petition on the first respondent in person were unsuccessful. They were unsuccessful because the first respondent was not in the office.

10. In addition to that, the Court was referred to a copy of the nomination form of the first respondent and it was submitted that the residential address of New Ireland was vague and the most probable location where the first respondent would receive the petition is his office. The second respondent submitted that the service of the petition on the first respondent was irregular because the office is not the residential address of the first respondent. On that basis, it asked the Court to dismiss the petition.

11. The Court accepted the submissions of the petitioner and held that the petition was properly served on the first respondent. In this application, I am of the view that if the first respondent contends that there is a misapprehension of law when the Court held that the petition was properly served on the first respondent, it is not open to him to re-agitate it in the guise of a slip rule application. I hold this view because I am unable to find where the Court slipped or made a mistake. In other words, the Court did not make a clerical error such that it is re-opening the case to correct it.

12. On the contrary, this is a case where the first respondent is asking the Court to revisit its earlier decision with the ultimate objective of setting it aside and that I cannot do. The issue of service was extensively argued and a decision was made. If the first respondent feels that the Court made a wrong decision, he should bring his complaint to the Supreme Court. What he is doing is trying to re-agitate an issue that has been determined by the Court. In my view, this is an abuse of process. I find the application misconceived and dismiss it with cost.

Ruling accordingly.
____________________________________

Kaipu & Associates Lawyers: Lawyers for Petitioner
Manase Lawyers: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent