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Dua v Kool [2019] PGSC 9; SC1758 (14 January 2019)

SC1758

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 45 OF 2018

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
MICHAEL BOGAI DUA
Applicant

AND:
NOAH KOOL
First Respondent

AND:
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2019: 14^th & 14^th January

Application for leave to make a slip rule application – Order 11 Rule 32(1), (2) and (3) Supreme Court Rules

Cases Cited:

Joseph Kobol v. William Powi (2018) SC1731

Counsel:

Mr. C. Gagma, for the Applicant

14^th January, 2019

1. HARTSHORN J: This is a decision on an application for leave to make a slip rule application (Leave Application).

2. The Leave Application concerns my decision to dismiss an application for leave to review the decision of the National Court that had amongst others, ordered a recount of votes after the hearing of a trial of an election petition.

3. I allowed the Leave Application to be moved in the absence of representation of the other parties as I was satisfied that they had been served. Secondly, although there was a purported appearance by counsel on behalf of the first respondent, that counsel was unable to satisfy this court that he had a current practicing certificate.

Background

3. The applicant was declared the elected Member of Parliament for the Simbu Provincial Electorate in the 2017 National Elections. The first respondent was the runner-up. The first respondent filed an election petition challenging the applicant’s election. Following the trial of the election petition, the primary judge upheld the petition and ordered a recount of the votes. The primary judge also ordered that the final result of the recount shall be presented to the Court for further hearing. Further, the applicant was ordered to remain as the Governor of Simbu Province until the completion of the recount and presentation of the result to the Court for consideration. Costs of the petition were reserved until further order.

4. The applicant applied to this court for leave to review the National Court decision. The application for leave was refused as, amongst others, the National Court decision sought to be reviewed did not fall within “Decision” as defined in Order 5 Rule 7 Supreme Court Rules and therefore was not a decision capable of review under Order 5 Rule 8 Supreme Court Rules.

Preliminary

5. The applicant makes this Leave Application pursuant to Order 11 Rules 32(1), (2) and (3) Supreme Court Rules which are:

“32.(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2)A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3)A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.”
6. I raised with counsel for the applicant whether Order 11 Rule 32 Supreme Court Rules gives jurisdiction for a decision of a single Supreme Court judge to be the subject of a slip rule application, and made reference to my decision of Joseph Kobol v. William Powi (2018) SC1731. Counsel for the applicant submitted that Order 11 Rule 32 does give such jurisdiction. No submissions were made in regard to the applicability or otherwise of Kobol v. Powi (supra).

7. In Kobol v. Powi (supra), after giving consideration to Order 11 Rules 32(2) and (3), at [18] to [23] I stated the following:

“18. Rule 32(2) specifically refers to a “‘slip rule’” application and “.... the finding that the applicant contends the Court should have made.” As referred to, a “Court” in Order 1 Rule 7(1) Supreme Court Rules “means the full court of the Supreme Court of Justice.”, unless the contrary intention appears. Rule 32 is referring to a ‘slip rule’ application in respect of a decision of the full court of the Supreme Court and not a decision of a single judge of the Supreme Court.

19. Rule 32(3) also refers to the decision in respect of which a ‘slip rule’ application is made as a decision of the full court of the Supreme Court, by the use of the words “... unless a Judge of the Court making the order from which the application arises, or that Court, ....”

20. Further, Rule 32(3) refers to the hearing of a ‘slip rule’ application being before the full court of the Supreme Court but not unless a Judge of that Court has granted leave. It clearly is not possible for there to be a Judge of the full court of the Supreme Court making the order from which the application arises, when the decision the subject of the slip rule application is a decision of a single judge of the Supreme Court.

21. I am satisfied upon a consideration of Order 11 Rule 32(2) and (3) that these provisions do not refer directly or indirectly to a decision of a single judge of the Supreme Court being the subject of a slip rule application and do not provide the jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court.

22. The applicant submits that this court cannot be denied its right to revisit its decision to correct a slip. It is the case however, that the Supreme Court Rules have specifically provided for a slip rule application and the requisite procedure, but that provision and requisition does not provide for or permit a slip rule application in respect of the decision of a single judge of the Supreme Court. To that extent, any right to revisit such a decision that may have previously existed has been adversely affected.

23. The applicant further submits that there have been previous slip rule applications in respect of decisions of a single judge of the Supreme Court. Reliance is placed upon Agiru v. Kaiabe (2014) SC1384 and Trawen v. Kama (2010) SC1063. Notwithstanding that both of these decisions concern slip rule applications in respect of decisions of a single judge of the Supreme Court, from a perusal of these decisions, neither consider Order 11 Rule 32 Supreme Court Rules. Trawen (supra) was before Order 11 Rule 32 came into effect and Order 11 Rule 32 does not appear to have been brought to the attention of the presiding Judge in Agiru (supra). I do not find these decisions to be of assistance to the applicant.” (emphasis added)

8. Given the lack of submissions, I remain of the view that I expressed in Kobol v. Powi (supra) as to Order 11 Rule 32(2) and (3) Supreme Court Rules. Order 11 Rule 32(1) which is also relied upon by the applicant, does not assist him further.

9. Consequently, as I am not satisfied that Order 11 Rule 32(1), (2) and (3) Supreme Court Rules provide jurisdiction for a slip rule application to be made in respect of a decision of a single judge of the Supreme Court, and given that the applicant relies upon those Rules for his Leave Application, the Leave Application is not competent. Given this, it is not necessary to consider the other submissions of counsel.

Orders

10. The Court orders that:

a) The application of the applicant for leave to make a slip rule application filed 28^th December 2018, is dismissed;

b) No order as to costs.
___________________________________________________________
Gagma Legal Services: Lawyers for the Applicant
GP Lawyers: Lawyers for the First Respondent
Kongri Lawyers: Lawyers for the Second Respondent