Application under Section 155(2)(B) of The Constitution and In The Matter of Part XVIII of The Organic Law on National and Local-Level Government Elections; Hami Yawari v Anderson Agiru and David Wakias and The Electoral Commission of Papua New Guinea (2008) SC948

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Cannings, Hartshorn JJ
• Judgment Date: 06 November 2008
• Court: Supreme Court
• Citation: (2008) SC948
• Docket Number: SCR 24 OF 2008
• Year: 2008
• Judgement Number: SC948

Full Title: SCR 24 OF 2008; Application under Section 155(2)(B) of The Constitution and In The Matter of Part XVIII of The Organic Law on National and Local-Level Government Elections; Hami Yawari v Anderson Agiru and David Wakias and The Electoral Commission of Papua New Guinea (2008) SC948

Supreme Court: Sakora, Cannings, Hartshorn JJ

Judgment Delivered: 6 November 2008

SC948

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 24 OF 2008

APPLICATION UNDER SECTION 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:

HAMI YAWARI

Applicant

AND:

ANDERSON AGIRU

First Respondent

AND:

DAVID WAKIAS

Second Respondent

AND:

THE ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

Third Respondent

Waigani: Sakora, Cannings, Hartshorn JJ

2008: 31st October

: 6th November

SUPREME COURT - CIVIL - Election Petition Review Rules – Rules 22, 26, 30, 32 - no application filed for dispensation of requirements of Rules - breach of 2 mandatory Rules and Court Order - consideration is the application of Rule 5/10/30 discussed

Cases cited:

Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110

Daniel Don Kapi v. Samuel Abal (2005) N2856

Miki Kaeok v. Rimbink Pato (2005) SC877

Wari James Vele v. Powes Parkop (2008) SCR 51/07 delivered 30/10/07

Counsel:

Mr. F. Alua, for the Applicant

Mr. G. Sheppard, for the First Respondent

Mr. A. Kongri, for the Second and Third Respondents

6th November, 2008

1. BY THE COURT: Mr. Anderson Agiru was the successful candidate in the 2007 National Elections for the Southern Highlands Provincial Electorate. Mr. Hami Yawari, an unsuccessful candidate, brought an Election Petition disputing the result. This Election Petition was dismissed by the National Court. Mr. Yawari was granted leave by the Supreme Court to judicially review the decision of the National Court and the review proceeding has been filed.

2. Mr. Agiru applies to this court to dismiss Mr. Yawari’s review proceeding on the grounds that Mr. Yawari has not prosecuted his review proceeding with due diligence and has failed to comply with orders of this court of 20th October 2008 which extended the time for Mr. Yawari to compile and serve the Review Book to 23rd October 2008.

3. The Deputy Chief Justice has ordered that the review proceeding be set down for summary determination as the pre-hearing conference listed to be heard on 28th October 2008 did not occur.

4. The summary determination and dismissal application are now before this court for our consideration.

5. The Electoral Commission and its officer Mr. Wakias (the second respondent), support the dismissal application. Mr. Yawari opposes the dismissal application on the basis that the default in not complying with the order of the court of 20th October in compiling and serving the Review Book was caused by the actions of one of Mr. Agiru’s lawyers, and the failure of the court reporting service to provide transcripts in time. In addition, the actions of Mr. Yawari’s former lawyer in ceasing to act, had caused delay.

6. It is not in dispute that:

a) the Review Book was not compiled and served in the time permitted under the court order of 20th October 2008 and the Supreme Court Election Petition Review Rules (Rules)

b) no further application for a dispensation of the requirements of the Rules concerning the time by which the Review Book is to be compiled and served has been made by Mr. Yawari.

c) no pre-hearing conference has occurred within the time permitted in the Rules.

d) no application for a dispensation of the requirements of the Rules concerning the time by which the pre-hearing conference is to occur has been made by Mr.Yawari.

Issue

7. The issue for determination is, does the failure by Mr. Yawari to comply with:

a) the Rules concerning the Review Book and pre-hearing conference, and

b) the court order of 20 October 2008,

warrant that the review proceeding be dismissed?

8. The Rules were made by the Judges pursuant to s.184 Constitution and form part of the Supreme Court Rules. Order 5 Division 4 Sub-Division 10 Rule 30 (Rule 30), pursuant to which Mr. Agiru applies to dismiss the review proceeding is:

Where a party has not done any act required to be done by or under these rules or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court, the Court may on its own motion or on application by a party, at any stage of the proceeding:-

(a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant;….

9. When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. In addition, the time limits between the various stages are short. This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament.

10. As the time limits to be adhered to are short, the Rules recognize that it will be necessary to dispense with their strict requirement when circumstances arise. Thus, Rule 32 allows for the court to dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance occurs. Dispensation from having to comply with a particular Rule however, must be obtained.

11. This view is reflected in the National Court decision of Daniel Don Kapi v. Samuel Abal (2005) N2856. At page 2, Sevua J. held the following:

1. Because election petitions are serious matters and not ordinary civil causes of action, parties, especially a petitioner, bear a heavy responsibility in ensuring that the further conduct of his petition through compliance with or directions issued by the Court is vital to his challenge.

2. Where a petitioner fails to comply with the orders or directions issued by the Court, his petition will be dismissed.

3. Where a petitioner is directed to comply with any order or direction of the court in the further conduct of his petition, and the time given him expires, he must promptly come to court to either seek an extension of time or ask further directions in regard to compliance. Such application must be filed and made within the time given to him to file and serve his affidavits or to take any other action.

12. Also at page 11 Sevua J said:

The Court must also reiterate that where parties to an election petition are unable to comply with directions because of the time limit, they must come back to Court to seek further directions or make an application for the further conduct of the petition so that the petitions are ready for hearing without unnecessary delay. That must be done within the time limit given to the Petitioner. The interest of the voters is paramount here and a Petitioner in particular, bears a heavy responsibility in ensuring that his petition, which is in fact, a challenge to the expressed wishes of the majority, is brought on expeditiously to hearing. As the Supreme Court said in Benias Peri v. Herowa Agiwa & Electoral Commission (1998) unreported and unnumbered (SCR 13 of 1998) at pa. 2:

“It has been expressed countless times that election petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on the speedy disposition of election petitions so that the wishes of the majority expressed in the election returns are respected.”

13. Although these comments are concerned with the swift disposition of Election Petitions, they apply with equal force to the next stage in the election petition process, a Supreme Court Election Petition Review.

14. In the recent Supreme Court case of Wari James Vele v. Powes...