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Subendranathan v Paiya [2017] PGNC 417; N7644 (29 May 2017)

N7644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 599 OF 2012

DR THILGAWATHY SUBENDRANATHAN
Plaintiff/Respondent

V

MAXWELL PAIYA
First Defendant/Applicant

DALEPA NAMAI
Second Defendant

Waigani: Kariko, J
2017: 19^th & 29^th May

PRACTICE & PROCEDURE –‘slip’ application – whether slip or omission made in orders issued – Order 8 Rule 59, National Court Rules

Cases cited:

Avia Aihi v The State [1981] PNGLR 81
Michael Wilson v Clement Kuburam (2016) SC1489
Pokia v Yallon (2014) SC1336
Pua v Magiten (2005) N2892
Stephan John Rose v The State (2007) N3241

Legislation:

Constitution
National Court Rules

Counsel:

Mr P H Pato, for the first Defendant/Applicant
Mr N Ako, for the Plaintiff/Respondent
No Appearance for the Second Defendant

JUDGEMENT

29^th May, 2017

1. KARIKO J: This is a ‘slip’ application moved pursuant to Order 8 Rule 59 National Court Rules and Section 155(4) Constitution claiming an accidental slip or omission by the Court in the orders it made in its final judgement on 27^th May, 2016.

Brief background

2. In this action, the respondent claimed that while she has proper legal title over land described as Portion 2789C Milinch Granville Fourmil Moresby in the National Capital District (Portion 2789C) pursuant to a registered Special Agricultural and Business Lease, the applicant unlawfully encroached onto part of that land and had erected a fence and caused improvements. The relief sought included declaratory and injunctive orders.

3. The matter went to trial and subsequent to my determination that the respondent had valid title over Portion 2789C, I issued a number of orders including the following:

2. The first defendant his servants, agents and relatives shall by Wednesday 1^st June 2016 vacate that part of the said Portion 2789C that he presently claims or occupies.
3. The first defendant shall by Wednesday 1^st June 2016 remove the fencing he erected that encroaches on the said Portion 2789C.
4. The first defendant shall by Wednesday 1^st June 2016 remove any other buildings fixtures and chattels owned by him, his servants, agents and relatives that are located on the said Portion 2789C.
   

The ‘slip’ application

4. The applicant argues that the Court made an accidental slip or omission when it did not reflect in the above Orders numbered 2, 3 and 4 that the encroachment onto Portion 2789C was by 20 meters as pleaded by the respondent.

5. The applicant therefore asks this Court to amend the relevant orders to read:

2. The first defendant his servants, agents and relatives shall by Wednesday 1^st June 2016 vacate that part of the said Portion 2789C that he presently claims or occupies by 20 meters.
3. The first defendant shall by Wednesday 1^st June 2016 remove the fencing he erected that encroaches 20 meters on to the said Portion 2789C.
4. The first defendant shall by Wednesday 1^st June 2016 remove any other buildings fixtures and chattels owned by him, his servants, agents and relatives that are located inside 20 meters of on the said Portion 2789C.
   

The Law

6. Order 8 Rule 59 reads:

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 may, on application by a party or of its own motion, at any time, correct the mistake or error.

7. In Stephan John Rose v The State (2007) N3241, Justice Gavara-Nanu in discussing Order 8 Rule 59 observed 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... (My underlining)

8. The applicant relies on the case of Pua v Magiten (2005) N2892 for the proposition that this Court has power under the slip rule to clarify a previous order by amendment.

9. In that case, Cannings J observed that a “slip rule” application under Order 8 Rule 59 is “to correct simple arithmetical or clerical errors or ‘slips’ or to make minor corrections to its orders that do not alter the substantive character of the order that has been made.”

10. The order in dispute in that case read “costs be taxed if not agreed”, but the order did not state who was awarded the costs. Cannings J considered it safe to infer that costs were awarded to the successful party. His Honour then considered and decided that it was not necessary to have the costs taxed and therefore his Honour issued a new order replacing the order in controversy by specifying a fixed amount as reasonable costs.

11. I find the facts of that case to be clearly very different and quite distinguishable from the facts of the present matter.

12. In any event, it is my reading of the judgement that His Honour relied largely on relevant National Court Rules relating to costs and Section 155(4) Constitution to reach his decision. His Honour referred to Order 8 Rule 59 but only to illustrate that the Court also has powers under the “slip rule” to correct orders. His Honour did not state that he relied on Order 8 Rule 59 “to correct simple arithmetical or clerical errors or ‘slips’ or to make minor corrections to its orders that do not alter the substantive character of the order that has been made.”

Consideration

13. In my judgement of 27^th May 2016, I made orders that I considered appropriate.

14. On the evidence presented at the trial, I was satisfied the respondent had valid title to Portion 2789C in the form of a registered Special Agricultural and Business Lease. The evidence also confirmed that contrary to the applicant’s allegation of fabrication, Survey Plan 49/2864 was a proper registered survey plan upon which the Special Agricultural and Business Lease was issued. On that evidence I found that the applicant had encroached onto the respondent’s land. That finding gave rise to Orders numbered 2, 3 and 4.

15. The effect of those orders was that the applicant was to remove the fencing and other buildings fixtures and chattels owned by him, his servants, agents and relatives located on Portion 2789C, and also that those same persons were to vacate that part of Portion 2789C they were occupying. Any encroachment on Portion 2789C (the boundaries of which are contained in Survey Plan 49/2864), whether by 20 meters or otherwise, was and is illegal and the orders were directed to cover this.

16. The orders were not intended to be restricted in their application to encroachment up to 20 meters only. While the respondent may have pleaded that the fence encroached by 20 meters, the respondent also sought as relief “Any other orders as this Honourable Court deems fit and proper”, and the Court is entitled to make the orders it issued. There is no “slip” as described R v Cripps, ex parte Muldoon and Others (supra) or indeed Pua v Magiten (supra) that warrants the correction or amendment now applied for.

17. The applicant also cited Section 155(4) Constitution in support of his application. In the celebrated Supreme Court case of Avia Aihi v The State [1981] PNGLR 81, Kearney, DCJ said of this provision:

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.

18. In my view, Section 155(4) is not relevant to this application for the reason that there is already provision for a ‘slip’ application, namely, Order 8 Rule 59.

19. There is another reason why I would dismiss this this application. Following my decision of 27^th May, 2016 the applicant sought leave in the Supreme Court to appeal against that decision. While Mr Pato for the applicant had no instructions regarding the Supreme Court application, Mr Ako for the respondent confirmed the application was made and refused. Since adjourning to consider this ruling, I have also sighted relevant Supreme Court documents that confirm the leave to appeal application was made and refused. Indeed one of the three grounds of the leave application and a ground of the proposed appeal stated that “His Honour erred in making a general finding that the Appellant remove the fence encroaching onto the Respondent’s Land identified as Portion 2789C when the Respondent’s claim against the Respondent (sic) was only for 20 meters of land”. That ground raises the same issue central to the present application. The application for leave was fully argued and was refused on 2^nd November, 2016, which necessarily means that the Supreme Court was not satisfied there was an arguable case.

20. The present application was filed following the Supreme Court ruling and in fact filed some 9 months after the judgement of the National Court. I find this application to be an abuse of process as the processes of the Court have been improperly used by the applicant.

21. In Michael Wilson v Clement Kuburam (2016) SC1489 Gavara-Nanu, J noted at [25]:

The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210. (my underlining)

22. An abuse of process will exist if a claimant who is unsuccessful in one proceeding makes the same claim in another proceeding – when he returns to Court for “a second bite at the cherry”; Pokia v Yallon (2014) SC1336. There must be finality in litigation and in that regard the Court is alert to this type of abuse of process. I should add that in my view, the inordinate delay of 9 months since the National Court Orders were made before filing the present application is contrary to the principle of finality in litigation and should be refused as not being in the interest of justice.

23. The end result is that I decline this ‘slip’ application.

Order

24. The Court orders that:

(1) The applicant’s notice of motion filed 11^th April, 2017 is dismissed.
(2) The applicant shall pay the respondent’s costs of and incidental to the notice of motion, to be taxed if not otherwise agreed.

______________________________________________________________
Parker Legal: Lawyer for the First Defendant/Applicant
Jema Lawyers: Lawyer for the Plaintiff/Respondent