Trawen v Kama said a slip rule application needs no leave. The 2012 Rules then required it. This is the case that explains what the leave stage now demands.
Anderson Agiru v Aluago Alfred Kaiabe, the Returning Officer, the Electoral Commissioner and the Electoral Commission [2015] PGSC 2; SC1412
Supreme Court, Waigani — Salika DCJ, Mogish and Cannings JJ, 27 February 2015. SC Rev (EP) 39 of 2013.
What happened
Mr Agiru, the Governor of Hela, sought review of an interlocutory decision of Makail J in an election petition brought by Mr Kaiabe. A single judge granted leave and, in doing so, ruled that the application was competent. When the full Court heard the review on 27 October 2014 the respondents objected to competency again. The Court upheld the objection and dismissed the application.
Mr Agiru applied under Order 11 rule 32(3) of the Supreme Court Rules 2012 for leave to make a slip rule application. He said the Court had slipped by ignoring the single judge’s earlier competency ruling, which he argued was res judicata or created an issue estoppel.
What was argued
The applicant said that had the Court taken the single judge’s ruling into account it would have refused the objection and decided the review on its merits. The respondents said the res judicata point had been argued and rejected at the hearing, so there was no misapprehension, and that a single judge’s view on leave could not tie the hands of the full Court.
What the Court decided
1. To be granted leave to make a slip rule application against an order disposing of proceedings, an applicant must (a) seek leave within 21 days of that order and (b) satisfy the Court that the slip rule application would have a strong chance of success.
2. Filing on the 21st day complied with Order 11 rule 32(1).
3. The application had no strong chance of success. There was clearly no misapprehension of fact or law: the res judicata argument had been put to the Court and found unpersuasive, and on rehearing it the Court remained unpersuaded.
4. A single judge’s ruling, in granting leave, that a review application is competent does not prevent the objecting party from arguing the point again before the full Court, nor prevent the full Court from deciding competency differently.
5. Leave refused, with costs.
Did it make new law?
The substantive law of slip rule applications comes from the five-judge decision in Trawen v Kama (2010) SC1063. Agiru v Kaiabe added the leave test under the 2012 Rules, in particular the “strong chance of success” threshold, and the point about single-judge competency rulings. No National Court decision was involved; the only authority cited was Avia Aihi v The State [1981] PNGLR 81.
Why it matters
Count the 21 days from the disposing order. The time limit is strict, and later single-judge decisions have refused leave for applications that were late by days.
Losing an argument is not a slip. The slip rule corrects a misapprehension the Court would itself recognise. It does not exist to re-run a submission the Court considered and rejected.
The full Court is not bound by the leave judge. Competency can be re-agitated at the substantive hearing.
In 2026 Crowley J, applying Agiru, described slip rule applications as “a plague on the Supreme Court”, observing that lawyers seem to treat them as a natural consequence of losing an appeal, when they should be rare because the Court rarely slips.
What it does not decide
The judgment does not itself define what a slip is; for that it relies on Trawen. It also does not decide whether a slip rule application that is incompetent for want of leave deprives the Court of jurisdiction altogether, a proposition some later benches have attributed to Agiru but which, as Crowley J noted in Aili v Aili, the judgment does not expressly state. Nor does it resolve whether the 21 days is satisfied by filing alone or requires service within that time, a distinction Crowley J drew attention to in Aili v Aili when noting that Agiru speaks of the filing requirement.
Recent cases applying it
- Aili v Aili [2026] PGSC 89; SC2938 — the two-step test restated; slip rule applications refused.
- Meketa v Kiage [2026] PGSC 43; SC2886 — leave depends on a strong chance of success, citing paragraph 11 of Agiru.
- Paraka v The State [2026] PGSC 1; SC2838 — leave refused where the Court was not satisfied of a strong chance of success.
- Poka v The State [2025] PGSC 144; SC2833 — Berrigan J applied Agiru and Trawen on a criminal review.
Sources
- Agiru v Kaiabe [2015] PGSC 2; SC1412 (Salika DCJ, Mogish and Cannings JJ, 27 February 2015)
- Supreme Court Rules 2012 — Order 11 rule 32
- Trawen v Kama [2010] PGSC 15; SC1063
- Aili v Aili [2026] PGSC 89; SC2938; Meketa v Kiage [2026] PGSC 43; SC2886; Paraka v The State [2026] PGSC 1; SC2838; Poka v The State [2025] PGSC 144; SC2833
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.