Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b)

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Jalina J
• Judgment Date: 09 October 1998
• Court: Supreme Court
• Judgement Number: SC572

Supreme Court: Kapi DCJ, Sheehan J, Jalina J

Judgment Delivered: 9 October 1998

PAPUA NEW GUINEA

SC572

[IN THE SUPREME COURT OF JUSTICE ]

SCR NO. 63 OF 1998

APPLICATION BY LUDWIG PATRICK SHULZE

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)

Coram: Kapi DCJ, Sheehan J., Jalina J.

Waigani: 28th August, 9th October 1998

Judicial Review under s 155 (2) (b) of the Constitution — the nature and scope of judicial review discussed.

National Parliament — Election Petition — Pleading of facts under s 208 (a) of the Organic Law on National and Local Level Government Elections — No need to apply for leave for judicial review in election matters.

J. Kwimb for the Applicant

J. Allman for the First Respondent

J. Nonggorr for the Second Respondent

9th October 1998

KAPI DCJ: Mr Arthur T Somare (hereinafter referred to as the First Respondent) was declared the elected member for the Angoram Open Electorate in the 1997 General Elections. Mr Ludwig Patrick Shulze (hereinafter referred to as the Applicant), a losing candidate, petitioned the result of the election in EP No 82 of 1997. The petition is pending to be tried in the National Court.

The petition alleged three basic grounds:

1. that the first respondent is not residentially qualified (ground 5)

2. that the first respondent and his supporters are guilty of bribery (ground 6)

3. that the first respondent and his supporters are guilty of undue influence (grounds 7 and 8). Ground 9 of the petition simply pleads the effect of bribery and the undue influence on the result of the election.

The first respondent and the Electoral Commission (hereinafter referred to as the Second Respondent) made applications to strike out the petition for failure to comply with s 208 (a) the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law). The application was heard by Andrew J. and he struck out grounds 6, 7, 8 and 9 leaving only ground 5 to proceed to trial.

The applicant has filed judicial review against this decision pursuant to s 155 (2) (b) of the Constitution. The applicant has filed two documents (1) Application for Leave for Review and (2) Application for Review. I have noticed that in a number of similar election reviews filed recently, they follow the same practice of filing the two documents. I consider that this practice has developed from a lack of appreciation of the true nature of a judicial review in election matters. Therefore I should restate the law on s 155 (2) (b) judicial review in election matters.

The genesis of s 155 (2) (b) is to be found in Avia Aihi v The State [1981] PNGLR 81. In brief that was a case in which the applicant had a right of appeal within 40 days under s 29 of the Supreme Court Act but allowed the period in which to appeal to expire thereby losing the right to appeal to the Supreme Court. The Supreme Court held that in order to invoke the inherent jurisdiction of the Court under s 155 (2) (b), the applicant had to satisfy the Court why leave should be granted in view of the fact that she allowed the period of 40 days to expire. Leave was granted in a separate hearing and the case proceeded to the merits.

In considering the merits, the Court concluded that in order to succeed in invoking this special jurisdiction of the Supreme Court, the applicant has to show "exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity" (see Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44). This is a discretionary power.

The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised is much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State (supra). A very good analysis of the true nature of judicial review can be found in the judgement of Kearney DCJ.

These principles have been followed in many subsequent Supreme Court cases. The relevant cases are conveniently set out in PNG v Colbert [1988] PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;

(b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity;

(c) there are...