Charles Maino v Moi Avei and The Electoral Commission (2000) SC648

• Jurisdiction: Papua New Guinea
• Judge: Los J, Sheehan J, Injia J
• Judgment Date: 07 July 2000
• Court: Supreme Court
• Citation: [2000] PNGLR 404
• Docket Number: SCR 8 of 1999
• Year: 2000
• Judgement Number: SC648

Full Title: SCR 8 of 1999; Charles Maino v Moi Avei and The Electoral Commission (2000) SC648

Supreme Court: Los J, Sheehan J, Injia J

Judgment Delivered: 7 July 2000

SC 648

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO 8 OF 1999

BETWEEN

CHARLES MAINO

Applicant

AND

MOI AVEI

First Respondent

AND

ELECTORAL COMMISSION

Second Respondent

Waigani: Los, Sheehan, Injia, JJ

2000: 22 June

07 July

Judgment delivered-----Application for correction of error----Jurisdiction for correction----Consideration of Application.

S Kassman for Applicant

G Sheppard for First Respondents

J Nonggorr for Second Respondent

LOS, J: It has been fairly decided that the Supreme Court has power to correct a judgment it has made and this was confirmed in 1994 in Wallbank & Minifie -v- The State (1994) PNGLR 78. In this case the court turned to Autodesk Inc. Inc. -v- Deyason (No. 2) 176 CLR at 300 for guidance. In the context of election petition the principles were applied in Dick Mune -v- Electoral Commission (SC 10 of 1996) SC 508.

More recently the court constituted by Sir Mari DCJ, Sheehan and Akuram, JJ applied the principles. All these cases emphasise that jurisdiction to re-open a case is not open-ended; in other words it is rare and the discretion must be exercised with great care. The summary of the principles are that the court may re-open a case where; (a) an apparent error arising from some miscarriage in the judgment; (b) the court has proceeded on some misapprehension of facts or relevant law and such misapprehension cannot be attributed solely to the neglect or default of the party seeking rehearing. A re-opening must not be to re-agitate arguments or to better argue when in the first argument not all aspects of the arguments were presented.

In the decision subject of this application SCR No. 8 of 1999 — Maino -v- Avei and the Electoral Commission of PNG — No. SC 633, I joined in with my brother Injia who had kindly made his draft available to me for my consideration. To me the influencing factor were receiving of certain affidavits by the reviewing judge; their contents and the judges words on the contents of the affidavits. The trial judge did consider the contents though subsequently he rejected them both on their admissibility and the credibility. The majority reached the view on the basis that because of the applicability of s 217 of the Organic Law, no issue could arise because in an election petition the technical rules of evidence did not apply but the court must "be guided by the substantial merits and good conscience … without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not". But the provisions of s 217 are not meant to override the right to have a say on any allegation or evidence that may affect a party unless the party's own action shows not wishing to conduct any examination or call any contrary evidence. The superior court, in this case the Supreme Court cannot apply a different law to this.

Secondly the trial judges criticism that substantial systematic irregularities did not relate to the ballot papers but they were directed at the secondary documents, the electoral returns used for checking the actual count. I therefore consider this was a misapprehension which s 217 "substantial merit and good conscience" and section 218 "immaterial errors not to vitiate declares" cannot save.

For these reasons and others in the well thought out judgment of Sheehan, J I join him. His decision and my decision now form the majority judgment.

SHEEHAN, J: The second respondent has sought relief from the judgment of this Court, delivered on 09th May, 2000, when under powers of review, it reversed the decision of the National Court in the Election Petition in respect of the Kairuku-Hiri Electorate. This application is made on, in reliance the Supreme Court inherent jurisdiction to correct inadvertent error arising in a judgment. It is contended for the Electoral Commission that the Court inadvertently and mistakenly assumed that particular affidavit evidence filed in the Election Petition Trial, had been accepted matters of uncontested fact, when such was not the case. The Second Respondent maintains that the Courts determination of the law, applied to those supposed "facts", amounts to an error that calls for correction.

There is no doubt that the Supreme Court has power to correct a judgment it has made, where it is shown, there is a matter of substance integral to the judgment that is incorrect and that such error is based on a misapprehension of the true facts or of the law applicable in particular case. This Court, in Wallbank & Minifie v. The State [1994] PNGLR 78, confirmed that, when it stated that while decisions of the Supreme Court, as the final court of appeal, are final, that does not preclude there being the possibility of reviewing a decision made or rehearing an issue affecting a decision, when the Court has good reason to consider that a judgment that it has made has been arrived at on a misapprehension as to the true facts or applicable law. Such jurisdiction of course arises only if it is clearly shown that there is a matter calling for review. A slip — such as a spelling or arithmetical mistake are straight forward examples, but to ensure there is no miscarriage of justice, the Court may look further. As was said in Autodesk Inc v. The Dyason [176] CLR 300, was cited in Wallbanks case and again in Chan v. Apelis and Anor, SC591:

"As this Court is the final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment".

But those decisions also make it clear that this is not an extension to the appeal system. "The purpose is not to provide a back door method by which unsuccessful litigants can seek to reargue their case". There has to be a genuine error or misapprehension, one not occurring through failure of the parties to put their case adequately.

David Lambu v Peter Ipatas and Electoral Commission SC645 and Don Pomb Pullie Pollye v Jimson Sauk Papaki and Electoral Commission SC 643.

The Applicant the Electoral Commission points to two matters of concern. The first of these arises from the fact that the review brought before the Supreme Court was one brought by the Petitioner to challenge the National Court decision adverse to him. It was brought on grounds that contested the trial Judges rejection of four affidavits (which alleged irregularities in the re-count ordered by the Court), as not amounting to evidence, but to speculation only. The Applicants argues that this Court erroneously assumed that because the Applicant though objecting to the affidavits had not sought any ruling on admissibility those affidavits filed in the proceedings had been and were accepted as evidence in the petition both by the parties and trial Court itself. Following that assumption the Supreme Court considered that that evidence was therefore open to reconsideration on review as to its credibility and effect.

The second matter Applicants argues, is that the Supreme Court decision is based on the misapprehension that the errors and omissions found by the National Court which merited the order for a re-count, were errors and omissions relating to the primary vote itself. That is, the actual counting of the votes in the election. The true position it is said was that the trial Court did not find error in the primary count or that ballot boxes or papers were tampered with. The errors found related only to secondary documents; the electoral returns used for checking the actual count. The essential basis of the National Court decision to hold the re-count was, the applicant says that having found irregular practices committed by the Electoral Officials in their handling of the reporting of the result of the poll, the Court determined that a re-count was appropriate to see whether those irregularities in that aspect of their duties might have had any effect on the primary count itself. The misapprehension arises from this Court assuming that these irregularities found by it to have occurred on the re-count compounded irregularities on the primary count when in fact such was not and could not be the case. Even had there been irregularities in respect of the recount, because there was no finding by the trial...