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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE
(1) SC REV NO 55 0F 2008
IN THE MATTER OF AN APPLICATION UNDER CONSTITUTION, SECTION 155(2)(b)
AND RE PART XVIII ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
BETWEEN:
ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Applicant
AND:
JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
Second Applicant
AND:
STEVEN PIRIKA KAMMA
First Respondent
AND:
MICHAEL LAIMO
Second Respondent
(2) SC REV NO 56 0F 2008
BETWEEN:
MICHAEL LAIMO
First Applicant
AND:
ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Applicant
AND:
JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
Third Applicant
AND:
STEVEN PIRIKA KAMMA
Respondent
Waigani: Lenalia J, Cannings J, Kawi J
2011: 28 June, 1 July
SUPREME COURT – practice and procedure – slip rule application – whether applicant has discharged onus of establishing a glaring mistake or error.
PARLIAMENT – election petitions – Supreme Court Election Petition Review Rules 2002 – applications for leave to review a decision of the National Court on an election petition – meaning of "decision".
Various parties were aggrieved by a decision of a single Judge of the Supreme Court to dismiss two applications for leave to review decisions of the National Court on an election petition. The aggrieved parties filed slip rule applications, relying on nine mistakes or slips, which, upon directions of the Chief Justice, were referred to the Supreme Court, constituted by three Judges, for determination.
Held:
(1) None of the nine alleged mistakes or slips amounted to errors of law, let alone glaring mistakes or errors. For this reason alone the applications must fail.
(2) Some of the alleged mistakes or slips were a rehash of arguments already made before the Judge who dismissed the leave applications; and for that reason also, the slip rule applications were dismissed.
(3) Costs were awarded against the parties who made or supported the slip rule applications.
Cases cited
The following cases are cited in the judgment:
Don Polye v Jimson Sauk [2000] PNGLR 166
Kamma v Itanu (2007) N3246
Kamma v Itanu (No 2) (2008) N3261
Marabe v Tomiape and Electoral Commission (2007) SC856
Polem Enterprise Ltd v Attorney-General (2010) SC1073
Rawali v Wingti (2009) SC1033
SC Review Nos 55 and 56 of 2008; Re Trawen v Kamma and Laimo v Kamma (2010) SC1063
SCR No 23 of 2004; Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752
Tom Amaiu v Sir Albert Kipalan (2009) SC991
Trawen v Kamma (2009) SC1037
Wari James Vele v Powes Parkop (2008) SC945
Wingti v Rawali, Electoral Commission & Olga (2009) N3569
Yawari v Agiru, Wakias and Electoral Commission (2010) SC1074
APPLICATIONS
These were two slip rule applications that sought reopening of a decision of a single Judge of the Supreme Court, by which two applications for leave to review decisions of the National Court on an election petition were dismissed.
Counsel
SC Rev 55 of 2008
R William, for the first and second applicants
R Pato, for the first respondent
B Lomai, for the second respondent
SC Rev 56 of 2008
B Lomai, for the first applicant
R William, for the second and third applicants
R Pato, for the respondent
1 July, 2011
1. BY THE COURT: Two slip rule applications arising out of a judgment of Injia CJ, sitting as a single Judge of the Supreme Court, are before us for determination. His Honour's judgment, dated 5 June 2009, dismissed two applications for leave to review decisions of the National Court regarding an election petition brought by Mr Steven Pirika Kamma that challenged the election of Mr Michael Laimo as the Member for South Bougainville Open in the 2007 general election. The effect of the National Court decision was that Mr Laimo's election was declared null and void and Mr Kamma became the Member for South Bougainville (Kamma v Itanu (No 2) (2008) N3261).
2. The slip rule applicants – those who seek orders that the Chief Justice's judgment of 5 June 2009 – should be reopened and corrected are:
3. The slip rule applications are opposed by Mr Kamma (the first respondent in SC Review No 55 of 2008 and the respondent in SC Review No 56 of 2008).
4. Our task is to determine whether the slip rule applications should be upheld, in which case the judgment of 5 June 2009 would be re-opened and corrected, or dismissed, in which case the judgment of 5 June 2009 would continue to have effect.
BACKGROUND
5. To appreciate how these applications have come before us it is necessary to go back to the general election in mid-2007 when Mr Laimo was returned as the member for South Bougainville Open. Mr Kamma, the runner-up by 17 votes, filed an election petition challenging Mr Laimo's election.
National Court decisions regarding the petition in 2007 and 2008
6. The petition went before Sevua J in the National Court for directions. On 27 November 2007 his Honour ruled that an objection to competency of the petition, which had been filed by Messrs Trawen, Itanu and Laimo, could only be moved in the course of the trial of the petition, and proceeded to set down the trial of the petition.
7. The petition was heard by Kandakasi J in the National Court at Buka. On 5 December 2007 his Honour dismissed the objections to competency (Kamma v Itanu (2007) N3246). On 21 February 2008 his Honour ordered that the declaration of Mr Laimo as the member for South Bougainville was null and void and ordered a recount of all ballot papers subject to the exclusion of the ballot papers in one contentious ballot box and set a timetable for the recount and ordered that the results be provided to the National Court for further determination.
Applications to Supreme Court: March to August 2008
8. In early March 2008 Messrs Trawen and Itanu filed, in SC Review No 5 of 2008, an application for leave to seek review of the National Court decisions of 27 November 2007, 5 December 2007 and 21 February 2008. Mr Laimo did likewise in SC Review No 6 of 2008.
9. On 22 August 2008 Kapi CJ dismissed both those applications for leave as they had not been made within the time limit set by the Supreme Court Election Petition Review Rules 2002.
Recount and further National Court decision: September-October 2008
10. In September 2008 the Electoral Commission conducted the recount and returned the results to the National Court pursuant to the order of 21 February 2008. Based on the result of the recount Kandakasi J on 9 October 2008 declared Mr Kamma as the duly elected member for South Bougainville.
Further applications to Supreme Court: October 2008
11. On 10 October 2008:
Those two applications for leave to seek review are the subject of Injia CJ's judgment of 5 June 2009 in Trawen v Kamma (2009) SC1037.
The judgment of 5 June 2009
12. His Honour dismissed both applications for leave, for two reasons. First, they were filed out of time. The Supreme Court Election Petition Review Rules 2002 allows only 14 days after a decision of the National Court for a leave application to be made. His Honour noted that though both applications for leave were expressed to be in relation to, amongst other decisions, the order of 9 October 2008, none of the proposed grounds of review, issues involved or reasons that leave should be granted, related to the order of 9 October 2008. They only related to the orders of 27 November 2007, 5 December 2007 and 21 February 2008. The applications were not filed until 10 October 2008 and were therefore incompetent.
13. Secondly, the doctrine of res judicata applied. Both applications, in so far as they sought leave to review the decisions of 27 November 2007, 5 December 2007 and 21 February 2008 had been dismissed by Kapi CJ in SC Review Nos 5 and 6 of 2008, on 22 August 2008. That was a final decision which, under the Supreme Court Election Petition Review Rules 2002, is not subject to further review. It had the effect of extinguishing the applicants' right to further challenge those decisions. "The same case and issues cannot in law be resurrected under a new set of proceedings", his Honour held.
Filing of slip rule applications
14. On 12 June 2009 the applicants filed, in relation to each Review, what was styled as an "Application ... to Reopen" the decision of Injia CJ of 5 June 2009, or what is commonly called a slip rule application. The slip rule is the name given to the common law principle that gives the Supreme Court the inherent power to correct mistakes or slips in a judgment that are not attributable to the conduct of a party or its lawyer (Polem Enterprise Ltd v Attorney-General (2010) SC1073).
Referral to five-Judge Supreme Court
15. When those applications went before Injia CJ, his Honour, instead of immediately resolving them, decided that determination of certain issues would assist in their resolution, so he empanelled a five-Judge Supreme Court bench (Sakora J, Batari J, Lenalia J, Davani J, Hartshorn J) and referred to it five issues for determination:
(a) What is the nature of an application under the slip rule principle (slip rule application)?
(b) Whether a slip rule application may be made under Section 155 (2)(b) and/or Section 155(4) Constitution.
(c) Whether a slip rule application should be made before the Supreme Court (Court) constituted by the same judges which heard and determined the appeal or review. If not, under what circumstances should a slip rule application be made before a Supreme Court constituted by different judge(s).
(d) Whether leave to apply for a review of the decision of the Supreme Court under the slip rule principle should be separately sought and obtained.
(e) If leave is required, whether the leave application should be made before the Court constituted by the same judge(s) which made the decision or should it be made before a single judge or judges irrespective of whether the judge or judges were members of the Court which made the decision under review or reconsideration.
16. The Supreme Court gave its decision on those issues on 16 July 2010 in SC Review Nos 55 and 56 of 2008; Re Trawen v Kamma and Laimo v Kamma (2010) SC1063. It held:
(a) The purpose of a slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law.
(b) A slip rule application to the Supreme Court cannot be made under Section 155(2)(b) of the Constitution (as that provision concerns this Court's inherent power to review judicial acts of the National Court) or Section 155(4) of the Constitution.
(c) A slip rule application must generally be made before the Court constituted by the same Judge(s) who heard and determined the appeal or review, unless the Judge(s) is or are unavailable, in which case the Chief Justice may appoint replacement Judge(s).
(d) and (e) The very nature of a slip rule application precludes the necessity for leave.
17. The Supreme Court, upon deciding those five issues, referred the slip rule applications back to the Chief Justice to determine. This was consistent with its determination of issue (c): a slip rule application should be made before the Court constituted by the same Judge(s) who constituted the Court that made the decision that is the subject of the application.
Referral to three-Judge Supreme Court
18. When the applications went back before Injia CJ, his Honour disqualified himself from dealing with them and decided, earlier this year, to refer them to a three-Judge Supreme Court bench. This was done with the consent of all parties. It is a procedure consistent with the Supreme Court's decision on issue (c) in Trawen v Kamma, which was that if any Judge who constituted or was part of the Court that made the decision that is the subject of the slip rule application is not available, the Chief Justice may pursuant to his administrative responsibilities under Section 169(3) of the Constitution appoint another Judge to deal with the slip rule application.
19. That is how the slip rule applications have come before us. Even though we (the three-Judge bench) did not make the decision that is the subject of the applications (the decision of Injia CJ of 5 June 2009) we have been given jurisdiction to determine the applications by a decision of the Chief Justice under Section 169(3) of the Constitution.
THE REQUIREMENTS OF A SUCCESSFUL SLIP RULE APPLICATION
20. We emphasise that we are not dealing with an appeal against the decision of 5 June 2009. Nor are we reviewing that decision. We are in the peculiar position, as it were, of standing in the shoes of the original decision-maker, Injia CJ. It is incumbent on the parties making these applications to convince us that his Honour's decision of 5 June 2009 must be reopened, for the purpose of correcting a glaring error or mistake or slip, such as a clerical error or accidental omission or misapprehension of fact or law. Most slip rule applications fail, and that is because the requirements for making a successful application are very onerous. Having regard to Trawen v Kamma and other Supreme Court decisions that discussed the nature and purpose of slip rule applications, especially SCR No 23 of 2004; Re Nomination of Governor-General, Application by Sir Pato Kakaraya (2004) SC752, Marabe v Tomiape and Electoral Commission (2007) SC856 and Yawari v Agiru, Wakias and Electoral Commission (2010) SC1074, the requirements can be summarised by stating that it is incumbent on the party making the application to establish that:
21. Determining whether to grant a slip rule application is a matter of discretion and in exercising that discretion the Supreme Court should take into account: that
22. With those considerations in mind, we now turn to the slip rule applications, which are in the same terms. They each assert that nine errors of law or mistakes or slips were made in the Chief Justice's decision of 5 June 2009.
FIRST ALLEGED SLIP: HEARING OBJECTION TO COMPETENCY DURING HEARING OF APPLICATION FOR LEAVE
23. The applicants argue that his Honour erred in law by hearing an objection to competency during the hearing of the applications for leave as the Rules make no provision for such objections to be made or determined at the leave stage.
24. This argument is based on a false premise: that notices of objection to competency were filed by Mr Kamma. In fact, none were filed. The arguments about competency were simply raised in the course of submissions as preliminary matters for his Honour to adjudicate on.
25. In any event, we reject the argument that his Honour made any error of law. As a general rule, the Supreme Court, when it hears any application made to it has an inherent power to determine whether the application is competent, ie whether the Court has jurisdiction to deal with the merits of the application, unless some rule of law expressly prohibits it from doing so. That principle applies irrespective of whether the jurisdiction of the Court is exercised by a single Judge of the Supreme Court or the full court of the Supreme Court (Tom Amaiu v Sir Albert Kipalan (2009) SC991). The Supreme Court is by virtue of Section 160(2) of the Constitution a superior court of record. Its jurisdiction may under Section 162(2) of the Constitution be exercised by a single Judge or by a number of Judges sitting together. In the present case its jurisdiction was being exercised by a single Judge of the Supreme Court in accordance with Rule 9 of the Supreme Court Election Petition Review Rules 2002. Nothing in those Rules or any other law removes the inherent power of the Court in these circumstances to determine whether an application for leave to review a decision of the National Court on an election petition is competent.
26. Mr Lomai, for Mr Laimo, submitted that any power that a single Judge of the Supreme Court might otherwise have had to determine an objection to competency of a leave application is removed by Rule 29 of the Supreme Court Election Petition Review Rules, which allows the "full" Supreme Court – and not a single Judge – to determine objections to competency of applications for review. We do not agree. Nothing in Rule 29 or any other law gives any indication of an intention to remove from a single Judge of the Supreme Court the power to determine the competency of an application for leave to review a decision of the National Court on an election petition. Mr William, for Messrs Trawen and Itanu, submitted that the primary task of a Judge hearing an application for leave is to determine if the grounds raised are sufficient to be heard by the Supreme Court on a full review. A single Judge of the Supreme Court has no jurisdiction to entertain objections to competency, he submitted. This is incorrect. A single Judge clearly has jurisdiction to determine the competency of an application for leave. If an application is made late, for example, it is an incompetent application. It would not make sense to say that the Judge must disregard that defect and then grant leave, only to have the question of competency of the leave application raised before the full court of the Supreme Court.
27. His Honour, the Chief Justice, made no error or slip or mistake by hearing argument that the applications for leave were incompetent or by determining that they were incompetent, let alone a glaring mistake.
SECOND ALLEGED SLIP: HEARING OBJECTION TO COMPETENCY BY AVOIDING PROCEDURE UNDER THE RULES
28. The applicants argue that his Honour acted outside his jurisdiction and contrary to Rule 21(f) of the Supreme Court Election Petition Review Rules, which provides that any issues concerning objections to competency are to be raised before the Judge conducting the directions hearing, not before the Judge determining a leave application.
29. We reject this argument. Rule 21 concerns a directions hearing in regard to the substantive application for review. It does not concern the hearing of the application for leave. Rule 21 is irrelevant to the hearing that led to the Chief Justice's decision of 5 June 2009. His Honour made no error or slip or mistake in the manner contended for by the applicants.
THIRD ALLEGED SLIP: EXERCISING JURISDICTION TO DEAL WITH THE APPLICATION FOR OBJECTION TO COMPETENCY WHILE SITTING AS A SINGLE JUDGE OF THE SUPREME COURT
30. The applicants argue that his Honour erred in law by hearing and determining the objection to competency as a single Judge; as such objections can only be heard and determined by the full court of the Supreme Court.
31. This alleged slip is a rehash of the first alleged slip. The applicants' argument is devoid of merit. A leave application may be heard and determined by a single Judge. It follows that that Judge may hear and determine objections to competency, whether made formally by notice in writing or in the course of hearing a respondent's submissions. His Honour made no error or slip or mistake in the manner contended for by the applicants.
FOURTH ALLEGED SLIP: TREATING THE NATIONAL COURT DECISION OF 21 FEBRUARY 2008 AS A FINAL DECISION
32. The applicants argue that his Honour erred in law by treating Kandakasi J's decision of 21 February 2008 as a final decision. They argue that his Honour overlooked that as a matter of law Kandakasi J's decision of 9 October 2008 was the final decision. They refer to Rule 7 of the Supreme Court Election Petition Review Rules, which states:
The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time extended by the Court, upon application made within that 14 day period.
33. They then refer to the definition of "decision" in Rule 2:
Unless expressly stated otherwise in these Rules ... "decision" means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002.
34. They argue that it was not until Kandakasi J declared Mr Kamma as duly elected and made other orders on 9 October 2008 that the National Court made a final decision on the election petition.
35. It is indeed arguable that there was no final decision until 9 October 2008. The decisions of 27 November 2007, 5 December 2007 and 21 February 2008 were, arguably, not final in nature. Rather, they were, arguably, preliminary decisions that culminated in the final decision of 9 October 2008. The key descriptor here is "arguable". None of those propositions is unarguably correct. Indeed, in our view, none of them is correct. The reasons that they are incorrect were spelt out by the Chief Justice. First, the decision of Kandakasi J of 9 October 2008 was, in the circumstances, simply to ratify the result of the recount. It was not a new decision on the election petition. The final decision remained the decision to order the recount, which was made on 21 February 2008. Secondly, the applications for leave that were filed on 10 October 2008 were, in substance, seeking leave to review the decisions of 27 November 2007, 5 December 2007 and 21 February 2008. They were not, in substance, seeking leave to review the decision of 9 October 2008. So the applications for leave were clearly out of time and the arguments of the applicants must be rejected.
36. We point out that even if we were in agreement that the Chief Justice had misapprehended the law as to which was the final decision, this would still not be a good reason to uphold the slip rule applications as his Honour comprehensively considered these arguments in his judgment of 5 June 2009. The applicants are guilty of rehashing arguments that have already been put to the original decision-maker.
FIFTH ALLEGED SLIP: MISCONSTRUING THE DEFINITION OF "DECISION" IN THE SUPREME COURT ELECTION PETITION REVIEW RULES
37. The applicants argue that his Honour erred in law by regarding the decision of 21 February 2008 as a final decision.
38. This alleged slip is a rehash of the fourth alleged slip. The applicants' argument is rejected. His Honour properly regarded the decision of 21 February 2008 as the final decision. His Honour made no error or slip or mistake in the manner contended for by the applicants. The arguments that they are making before us are a rehash of arguments put before and comprehensively dealt with by his Honour.
SIXTH ALLEGED SLIP: USING A LITERAL APPROACH TO THE INTERPRETATION OF RULE 2 OF THE SUPREME COURT ELECTION PETITION REVIEW RULES
39. The applicants assert that "his Honour used a literal interpretation to restrict the intent and purpose of Rule 2 which has substantially created hardship to the applicant to exercise his rights to review the decision of 9 October 2008".
40. This is a loosely expressed argument but having heard Mr Lomai we understand it to be that Mr Laimo has been done an injustice as he has not been permitted to review the decision of 9 October 2008. There are two points to be made on the issue of hardship. First, when Kandakasi J made the order of 21 February 2008 he foreshadowed that there might be issues arising as to the conduct of the recount and within the terms of the orders of the Court, allowed the parties the right to object to the result of the recount. When the result of the recount was returned to his Honour none of the parties, including Mr Laimo, raised any objection to his Honour ratifying the result of the recount, and the natural consequence of that was that Mr Kamma was declared by his Honour to have been duly elected. Secondly, when Mr Laimo, on 10 October 2008, filed his application for leave for review of the National Court decisions, he raised no objection to the decision of 9 October 2008. The focus of his application for leave was the previous decisions. So Mr Laimo had two opportunities to challenge the result of the recount. With respect, he wasted both of them, and he cannot now validly argue that he has been done an injustice.
41. Having said all that, we must state that not only is this sixth alleged slip poorly expressed, it does not come close to being properly regarded as a misapprehension of law or fact that could form the proper basis of a slip rule application. At best it is simply an arguable proposition. But, really, it is just a vague criticism of the effect of the judgment of 5 June 2009; and it is not even a valid criticism.
SEVENTH ALLEGED SLIP: MISAPPREHENSION OF FACT REGARDING THE EFFECT OF THE ORDER OF 9 OCTOBER 2008
42. The applicants argue that his Honour erred in fact by stating that the proceedings of 9 October 2008 were not a continuation of the trial and did not alter the final nature of the decision of 21 February 2008 and involved a mere ratification of the result of the recount.
43. These are not misapprehensions of fact. The statements of his Honour that are challenged here concern alleged errors regarding his assessment of the legal effect of the orders of the National Court. His Honour properly regarded the decision of 21 February 2008 as the final decision. This alleged slip is a rehash of the fourth, fifth and sixth alleged slips. His Honour made no error or slip or mistake in the manner contended for by the applicants.
EIGHTH ALLEGED SLIP: MISAPPREHENSION OF FACTS REGARDING A DECISION ON GRANTING OF LEAVE IN ANOTHER CASE
44. The applicants argue that his Honour erred in law by distinguishing the facts of this case from another case in which he granted leave for review of a decision of the National Court on an election petition, Rawali v Wingti (2009) SC1033, commonly known as the Wingti v Olga case.
45. We find the distinction drawn between the facts in the present case and those in Wingti v Olga to be valid. In Wingti v Olga the trial judge in the National Court, having had the result of a recount returned to him, conducted a further hearing on the question of whether the result should be accepted, and subsequently ordered that the result was unacceptable and that the election was absolutely void, the effect of which was that there had to be a new election (see Wingti v Rawali, Electoral Commission & Olga (2009) N3569). The final decision on the petition did not come until the election was declared void. That was a different set of events to that pertaining in the present case.
46. His Honour the Chief Justice made no error or slip or mistake in the manner contended for by the applicants.
NINTH ALLEGED SLIP: MISAPPLICATION OF THE DOCTRINE OF RES JUDICATA
47. The applicants argue that the Chief Justice erred in two respects. First Mr Lomai submitted that res judicata did not apply as the original applications for leave for review – SC Review Nos 5 and 6 of 2008 – were dismissed on a technicality, not on the merits of the applications. Secondly, Mr William submitted that res judicata was not an issue that could be decided by a single Judge of the Supreme Court; there was a slip as his Honour assumed the powers of the full court of the Supreme Court.
48. We have great difficulty with both submissions. First, it is not a useful point of distinction to say whether an application was dismissed on a technicality or on its merits. Both applications were dismissed. That is all that matters. As Injia CJ held in his judgment, the dismissal of the applications – albeit on so-called technical grounds (they were made out of time) – meant that the rights of the applicants to agitate the merits of those applications were extinguished. Secondly, we consider that the doctrine of res judicata is a good and sufficient reason for a single judge of the Supreme Court to refuse to entertain any application. To entertain any application that has already been dismissed would be to condone an abuse of the court's processes. The Chief Justice did not act outside jurisdiction by dismissing the applications on the basis of application of res judicata.
49. His Honour the Chief Justice made no error or slip or mistake in the manner contended for by the applicants.
CONCLUSION
50. None of the arguments about alleged errors or slips or mistakes on the part of the Chief Justice as a single Judge of the Supreme Court in his decision of 5 June 2009 have merit. The slip rule applications must fail. Some of the alleged mistakes or slips were a rehash of arguments already made before his Honour; and for that reason also, the applications must be dismissed. We uphold the submissions of Mr Pato, for Mr Kamma, which were in opposition to those of Mr Lomai and Mr William. Mr Pato also made useful submissions as to the form of the slip rule applications, which he contended were poorly and confusingly drafted. We agree generally with those submissions but have found it unnecessary to document or deal with them specifically in view of our determination of the merits of the applications.
51. Two points raised by Mr William deserve a brief comment. He submitted, first, that the leave requirements in the Supreme Court Election Petition Review Rules are unconstitutional. They offend against the established interpretation of Section 155(2)(b) of the Constitution, which was, prior to commencement of operation of the leave requirements in 2007, that a person who wished to invoke the jurisdiction of the Supreme Court under Section 155(2)(b) to review a decision of the National Court on an election petition, did not require leave. An aggrieved person could approach the Supreme Court as of right. Secondly he submitted that the prevailing interpretation of Rule 7 – under which Judges have been insisting that an application for leave be not only filed within 14 days of the National Court decision sought to be reviewed, but made within that time – is impractical and unduly onerous and having unjust consequences. At a proper place and time these might be worthwhile propositions. But neither is properly before us. Neither of them was a ground on which the applicants asserted that his Honour the Chief Justice slipped in his decision of 5 June 2009. They are not relevant to the issues before us. In passing we note that they appear to have been already addressed by the Supreme Court in Wari James Vele v Powes Parkop (2008) SC945.
COSTS
52. Costs will follow the event; and costs will be awarded against the applicants for the whole of the slip rule proceedings. This is because when the five-Judge Supreme Court bench gave its decision on the five issues referred to it by the Chief Justice and referred the applications back to the Chief Justice (who then referred the applications to us for determination) it also referred the question of costs to his Honour. The question of costs for the whole proceedings is therefore properly before us. For future reference we state that if a slip rule application has been defeated as comprehensively as the two before us, it may be difficult to avoid the conclusion that the application has been an abuse of process. In our view, too many unmeritorious slip rule applications are being made. The best and fairest way of reducing the amount of court time wasted on unmeritorious applications may be to award costs on a solicitor-client basis or to award costs against the applicant's lawyer, rather than the applicant, as was done in Don Polye v Jimson Sauk [2000] PNGLR 166. For the time being, however, in these proceedings, costs will be awarded on a party-party basis.
ORDER
(1) The slip rule applications in respect of the decision, judgment and orders of Injia CJ of 5 June 2009 are dismissed.
(2) The decision, judgment and orders of Injia CJ of 5 June 2009 are declared to have, and to have had since 5 June 2009, full force and effect.
(3) The costs of the hearing of the slip rule applications, from the date of filing of the applications to the date of this judgment, shall be paid by the slip rule applicants, viz Andrew Trawen, John Itanu and Michael Laimo, to the respondent to the slip rule applications, viz Steven Pirika Kamma, on a party-party basis, to be taxed if not agreed.
Judgment accordingly.
_____________________
SC Rev 55 of 2008
Niugini Legal Practice: Lawyers for the First and Second Applicants
Steeles Lawyers: Lawyers for the First Respondent
Lomai & Lomai Attorneys: Lawyers for the Second Respondent
SC Rev 56 of 2008
Lomai & Lomai Attorneys: Lawyers for the First Applicant
Niugini Legal Practice: Lawyers for the Second and Third Applicants
Steeles Lawyers: Lawyers for the Respondent
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