After losing the 2017 Southern Highlands regional seat, Joseph Kobol lost his petition, lost his application for leave to review, and then discovered there was no way to ask the same judge to look again.
Joseph Kobol v William Powi and Electoral Commission [2018] PGSC 51; SC1713 (leave to review) and Kobol v Powi [2018] PGSC 68; SC1731 (slip rule)
Supreme Court, Waigani — Hartshorn J, 7 August 2018 and 29 October 2018. SCREV (EP) 32 of 2018.
What happened
William Powi was declared elected Governor of Southern Highlands in 2017. Mr Kobol’s petition asked first for a declaration that the declaration of the result was null and void, with further relief consequential on that. In Kobol v Powi [2018] PGNC 1; N7065 the National Court upheld an objection to competency: the relief sought was not relief the Court could grant under section 212 of the Organic Law, so the petition failed section 208(b), which requires a petition to specify the relief to which the petitioner claims to be entitled. Mr Kobol applied for leave to review under Order 5 rule 9 of the Supreme Court Rules.
What was argued
The applicant said the judge had given insufficient reasons, had followed an unduly strict line of authority, should have struck out the defective relief rather than the petition, and had misread sections 208(b), 212 and 217. On the later application, he argued that a court can always revisit its own decision to correct a slip. The respondents said the point was concluded by Mune v Poto [1997] PNGLR 356, and that the Rules allow slip rule applications only against the full Court.
What the Court decided
Leave (SC1713). The test is whether there is an important point of law not without merit, or a gross error of fact apparent on the face of the evidence, and given section 220 of the Organic Law the standard is set rather high. Mune v Poto holds that the National Court has no discretion to go outside the orders listed in section 212(1). A declaration that a declaration of result is void is not among them, and the remaining relief was consequential on it. The primary judge was entitled to dismiss the petition. Leave refused.
Slip rule (SC1731). Order 11 rule 32(2) and (3) refer to a slip rule application against a decision of “the Court”, defined in Order 1 rule 7 as the full Court, and to leave from “a Judge of the Court making the order”. They do not provide jurisdiction for a slip rule application against a decision of a single judge. Earlier single-judge slip rule decisions in Trawen v Kama and Agiru v Kaiabe did not consider rule 32. The application for leave to make a slip rule application was incompetent and dismissed.
Did it make new law?
The first decision affirmed the National Court and applied existing authority. The second was new: it was the first decision to read Order 11 rule 32 as excluding single-judge decisions, and it has been applied consistently since, including by the same judge in 2024 when asked to depart from it. Together with Order 5 rule 17, which makes the grant or refusal of leave to review final, it closes the door on a second look at a refused leave application.
Why it matters
Draft the relief from section 212. Ask the Court to declare the winner not duly elected, declare another candidate elected, order a recount or declare the election void. Do not lead with a declaration about the declaration.
A leave application is one shot. There is no slip rule review, no appeal to the full Court under Order 5 rule 17, and section 220 bars any other challenge.
The slip rule remains available against full Court decisions, on the strict criteria in Trawen v Kama, with leave sought under Agiru v Kaiabe.
What it does not decide
Neither decision addresses whether a single judge retains any inherent power to correct a clerical error in his own order before it is entered. Nor does SC1713 decide whether a petition that pleads section 212 relief alongside a defective prayer should be saved by striking out the defective part; on its facts the whole prayer stood or fell together. The Court in Powi v Kaku (2019) SC1856 later noted that views on pleading relief remain divided and called for a five or seven judge bench.
Recent cases applying it
- Dominic v Kaupa [2024] PGSC 100; SC2632 — Hartshorn J declined to depart from Kobol: Order 11 rule 32 gives no jurisdiction for a slip rule application against a single judge, and Schedule 2.2 of the Constitution does not supply one.
- Dua v Kool [2019] PGSC 9; SC1758 — leave to make a slip rule application against a single-judge refusal of leave to review refused on the authority of Kobol.
- Electoral Commission v Kaku [2020] PGSC 7; SC1911 — Anis J applied Kobol in dealing with a slip rule application over a costs order.
- Gumaim v Abari [2019] PGSC 97; SC1855 — Kobol distinguished: its reading of “Court” concerned Order 11 rule 32, not the power of a single judge under Order 7 rule 48.
Sources
- Kobol v Powi [2018] PGSC 51; SC1713 (Hartshorn J, 7 August 2018); Kobol v Powi [2018] PGSC 68; SC1731 (Hartshorn J, 29 October 2018)
- Kobol v Powi [2018] PGNC 1; N7065
- Organic Law on National and Local-level Government Elections — ss 208(b), 212, 220; Supreme Court Rules 2012 — Order 1 r 7, Order 5 rr 9, 17, Order 11 r 32
- Dominic v Kaupa [2024] PGSC 100; SC2632; Dua v Kool [2019] PGSC 9; SC1758; Electoral Commission v Kaku [2020] PGSC 7; SC1911; Gumaim v Abari [2019] PGSC 97; SC1855; Powi v Kaku [2019] PGSC 101; SC1856
Mune v Poto [1997] PNGLR 356 and Jurvie v Oveyara (2008) SC935 are cited as they appear in the judgments and were not separately opened for this brief.
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