Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (2000) SC651

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J, Jalina J, Sawong J
• Judgment Date: 31 May 2000
• Court: Supreme Court
• Citation: [2000] PNGLR 166
• Year: 2000
• Judgement Number: SC651

Full Title: Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (2000) SC651

Supreme Court: Sheehan J, Jalina J, Sawong J

Judgment Delivered: 31 May 2000

SC651

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 22 of 1999

BETWEEN:

DON POMB PULLIE POLYE

Petitioner

AND:

JIMSON SAUK PAPAKI

First Respondent

AND:

ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

Second Respondent

Waigani: SHEEHAN, JALINA,

SAWONG, JJ.

1999: 24th November

2000: 31 May

Practice and Procedure — Abuse of Process — Costs — Discretion of Court — liability of Counsel for costs wasted or thrown away.

CASES CITED:

Myers v Elman 1940 AC 282

Holden & Co v Crown Prosecution Service 1990 2QB 261

Ridehalgh v Horsefield 1994 PH 205

Orchard v Southeastern Electricity Board [1987] QB 565

Mr B. Frizzell for the Applicant/1st Respondent

Mr G. Sheppard for the Applicant

Mr A. Kongri for the 2nd Respondent

BY THE COURT: On 29th October 1999 this Court in its supervisory jurisdiction of judicial review ruled that an election petition brought by the First Respondent in the National Court be dismissed as the Respondent Petitioner was without standing. Because he was not registered on the Electoral Roll for the Kandep Electorate he was not entitled to vote in the election nor was he eligible to stand as a candidate for the electorate nor to bring an election petition challenging the result of the election in that electorate in the name of a person not on electoral roll.

On 5th November 1999 application was made to this Court for the review to be re-listed for "the purpose of correcting perceived mistakes in the judgement and orders …….due to a misapprehension by this Court of facts and or law and for the purpose of reversing its decision and reinstating the decision of the National Court".

When the matter was called before this Court on 23rd November on a challenge to the competence of the application, it was revealed that on the face of the application and by acknowledgement of Counsel appearing for the Applicant, that the purpose of the application was in fact not to point out error but to seek to re-argue the issue on which the Supreme Court found that the election petition should be dismissed.

The Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process. That was the order of the Court in respect of this application.

Further, the Court has also authority over Counsel as officers of the Court. Thus when the Court finds that the breach of its procedure was occasioned by the misconduct of the legal advisors for a party, there is no doubt the Court has jurisdiction to order those legal advisors to meet the costs incurred or wasted in pursuit of such procedures. Again that was a course proposed in this instance.

This Court therefore sought argument on whether in this matter there should be an order for costs to be met by the legal advisors of the Appellant on an indemnity basis. The matter was adjourned to enable lawyers and counsel for the Applicant to be heard.

The jurisdiction is summary and as is to be exercised judicially. The procedure lies within the discretion of the Court seized of the matters and stands to be exercised by the Court before which the misconduct and or the abuse of process occurred. The only procedural (and constitutional) condition requirement is that the legal advisor whose conduct is in question should be given opportunity to be heard before any order effecting him is made.

The representation of the Applicant has been complicated by the fact that while Counsel on record is Messrs Paulus Dowa, Lawyers, the application now struck out was filed by Messrs Warner Shand Lawyers though without notice of change of Counsel being filed or notice that they were acting on...