In Re Moresby Northeast Election Petition; Patterson Lowa v Goasa Damena

• Jurisdiction: Papua New Guinea
• Judge: Pritchard J:
• Judgment Date: 04 November 1977
• Citation: [1977] PNGLR 429
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC127

Supreme Court: Prentice DCJ, Williams J, Pritchard J

Judgment Delivered: 4 November 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE MORESBY NORTH EAST ELECTION PETITION PATTERSON LOWA

V

GOASA DAMENA

Waigani

Prentice DCJ Williams Pritchard JJ

24-25 October 1977

4 November 1977

CONSTITUTIONAL LAW — Organic Law — Validity of — Provisional Organic Law — Content partly Organic, partly ordinary Act — Constitution s. 12, s. 126 (7) and s. 135 — Organic Law on National Elections Pt. XVIII, Div. 1.

APPEAL — Ruling by National Court during proceedings — Whether ruling "interlocutory judgment" — Whether appealable to Supreme Court — Supreme Court Act s. 14 (3).

PREROGATIVE WRITS — Prohibition — Prohibition by Supreme Court to National Court before decision — Prohibition premature.

PARLIAMENT — Elections — Disputed election petition — Lack of residential qualifications — Whether petition can be founded under Div. 1 Pt. 1 of the Organic Law on National Elections — Discretion of Parliament to refer such questions — Procedures co-existent — Constitution s. 103 — Organic Law on National Elections s. 228, s. 206.

On the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections by a losing candidate for relief on the ground that the elected member did not have the necessary residential qualifications as required by s. 193 of the Constitution, objection was taken to the jurisdiction of the National Court, to hear the petition unless the proceedings were by way of parliamentary reference under s. 228 of the Organic Law on National Elections. Frost C.J. having ruled that he had jurisdiction (In re Moresby North East Parliamentary Election (No. 1) [1977] P.N.G.L.R. 424), leave to appeal against the ruling was sought pursuant to s. 14 (3) (b) of the Supreme Court Act, 1975, on the ground that it was an "interlocutory judgment", and in addition a writ of prohibition was sought against the continuance of the hearing of the petition;

Held

(1) (Per Prentice Dep. C.J. and Pritchard J.) The ruling by the National Court was not an "interlocutory judgment" from which leave to appeal could be granted under s. 14 (3) of the Supreme Court Act 1975; such an "interlocutory judgment" is one which gives a decision upon a particular motion or summons.

(2) (Per Prentice Dep. C.J. and Pritchard J.) The application for prohibition was premature and ought not, as a matter of discretion, be granted.

(3) Nevertheless, as a matter of convenience, justice and necessity the appeal should be determined.

(4) The provisions of Div. 1 Pt. XVIII of the Organic Law on National Elections, providing for disputed election petitions to be heard and determined by the National Court are valid and effective.

The National Elections Law was "a provisional Organic Law" expressed to be such and took effect under s. 266 (1) and (2) of the Constitution on Independence Day, and accordingly could under s. 126 (7) of the Constitution make provision for and in respect of appeals to the National Court in electoral matters, and the petitioner was entitled to invoke the jurisdiction of the National Court.

(5) The Organic Law on National Elections provides two alternative procedures for challenging the qualifications of candidates and members, one within a limited time under s. 206 of the Organic Law on National Elections, by petition of a defeated candidate, the other by reference at any time by Parliament pursuant to s. 228 of the Organic Law on National Elections, and there is no reason why the procedures should not exist side by side.

In re Moresby North East Parliamentary Election (No. 1) [1977] P.N.G.L.R. 424 upheld.

(6) Accordingly, the application for an order nisi for writ of prohibition should be refused, the appeal dismissed and the National Court directed to continue to hear and determine the proceedings.

Appeal and Prohibition

These were proceedings instituted by way of appeal against the ruling of the National Court as to jurisdiction on the hearing of a disputed election petition brought under s. 206 of the Organic Law on National Elections (see In re Moresby North East Election Petition (No. 1) [1977] P.N.G.L.R. 424) and a writ of prohibition against the continuance of the hearing of the petition.

Counsel

F. S. McAlary Q.C. and M. J. Wright, for the petitioner.

P. W. Young and G. J. Lay, for the respondent.

K. N. Gregory, for the Acting Principal Legal Adviser to the National Executive, intervening.

Cur. adv. vult.

4 November 1977

PRENTICE DCJ: The respondent to an election petition has, by application to the Supreme Court, caused the hearing of the petition against his election to be stopped. The Chief Justice sitting as the National Court had given a ruling that the petitioner was entitled to rely in a petition under s. 112, National Elections Act, on a question of lack of qualification in the respondent. Following the cessation of the hearing, leave to appeal has been sought against this ruling on the basis that it was an "interlocutory judgment" (s. 14 Supreme Court Act). In addition a writ of prohibition against the continuance of the hearing of the petition has been sought.

For myself, in an ordinary case, I would be reluctant to rule that the Supreme Court should so interfere with a hearing before the National Court. I consider that as a general rule the Supreme Court should not interfere with a National Court hearing until it had reached a conclusion — unless, in an exceptional case, the National Court itself referred a case for decision before finality. That finality should normally be obtained in the National Court before appeal were sought therefrom, is called for, in my opinion, by the geography and circumstances of this country, and the organization of its superior courts. Mr. McAlary has presented an argument that s. 155 (2) of the Constitution, which vests an inherent power in the Supreme Court to review all the judicial acts of the National Court, renders invalid s. 14 of the Supreme Court Act which requires leave to appeal from an interlocutory judgment. In my opinion the argument is unacceptable. Such a result would render every decision of the National Court (even, fr example, on questions of reception of evidence) susceptible to appeal, and presumably before finality of decision. The potentially catastrophic effect upon the work of the National and Supreme Courts of such an interpretation is immediately apparent. In my view, s. 14 of the Supreme Court Act does not infringe upon the powers conferred by the Constitution, but merely regulates their exercise — indeed in an eminently reasonable particular. It does not appear to me that a ruling during the course of the hearing of a case (though sometimes for convenience called such) is an "interlocutory judgment" within the meaning of s. 14 of the Supreme Court Act. Such an "interlocutory judgment", in my opinion, is one which gives a decision upon a particular motion or summons before the Court. The distinction between the two types of decision, an interlocutory judgment on the one hand and a ruling on the other, may be illustrated by the fact that a ruling might be vacated or altered during the course of a hearing. I am saisfied that an effective "review" of the National Court's proceedings, within the meaning of s. 155 of the Constitution, can be obtained on appeal. In regard to the application for prohibition, it has been strenuously urged by Mr. Young, for the respondent, that the law applicable in the countries from which our judicial system in effect derives, that prerogative writs do not run to judges of superior courts, should be held suitable to and applicable in Papua New Guinea. That is that the prerogative writs should not issue from the Supreme to the National Court (itself a superior court of record — s. 163 (2) of the Constitution). He points to the absurd consequence that such a writ issued under the hand of the Chief Justice, would in this instance, issue to the Chief Justice himself. He relies on the analogy of the decisions in Ex parte Groot; Re Myers and Others (1958) 75 W.N. (N.S.W.) 496; R. v. An Election Court; Ex parte Sheppard [1975] 2 All E.R. 723; and see De Smith Judicial Review, 3rd ed., p. 340.

There is much force in Mr. Young's argument; but it is, I think, unnecessary to decide the question in this case, for in any event the application for prohibition is, in my opinion, premature, and ought not as a matter of discretion be granted.

In the hearing before the National Court it appears to have been assumed by the counsel involved that s. 18 of the Constitution did not debar the National Court from interpreting Constitutional laws in an election petition, because the section itself expresses its provisions to be "subject to the Constitution", and s. 135 of the Constitution vested the National Court with "jurisdiction to determine any question as to the qualifications of a person to be or to remain a member of the Parliament or the validity of an election to the Parliament"...