Miki Kaeok v Rimbink Pato and Masket (2005) SC877

• Jurisdiction: Papua New Guinea
• Judge: Sakora Lenalia and Manuhu JJ
• Judgment Date: 02 September 2005
• Court: Supreme Court
• Citation: (2005) SC877
• Docket Number: SCR NO 12 OF 2004
• Year: 2005
• Judgement Number: SC877

Full Title: SCR NO 12 OF 2004; Miki Kaeok v Rimbink Pato and Masket (2005) SC877

Supreme Court: Sakora, Lenalia and Manuhu, JJ

Judgment Delivered: 2 September 2005

SC877

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 12 OF 2004

BETWEEN:

MIKI KAEOK

Applicant

AND:

RIMBINK PATO

First Respondent

AND:

MASKET IANGALIO

Second Respondent

Waigani: Sakora, Lenalia and Manuhu, JJ.

2005: 30 August & 2 September.

RULING

GENERAL ELECTIONS – National Parliament – Review of decision of Court of Disputed Returns – Application to dismiss - Due diligence in prosecution of review.

PRACTICE AND PROCEDURE – Supreme Court Election Petition Review Rules – Application to dismiss - Due Diligence in prosecution – Application made when ex parte directional orders addressing the question of delay already in place – Application made without challenging ex parte directional orders.

No cases were cited in the judgment.

Counsel:

Mr. K. Naru, for the Applicant.

Mr. R. Pato, for himself.

Mr. Griffin, for the Second Respondent.

2 September 2005.

1. BY THE COURT: This is an application by the First Respondent which was made pursuant to Sub Division 11 Rule 23(1) of the Supreme Court Election Petition Review Rules (“Rules”) for the Supreme Court Review to be dismissed for want of prosecution.

2. The application arises out of a successful election petition by the Respondents where the trial court on 18 February 2004 adjudged that the election result of the Wapenamanda Open Seat, which returned the Applicant as the duly elected member, null and void; and a by-election must be held for the election of new member. The Applicant is seeking a review of that decision, and this application is pursued on the basis of failure to prosecute that review.

3. Rule 23 provides that where an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his application with due diligence, the Court may on its own motion or on the application by a party, at any stage of the proceeding:

(i) order that the review be dismissed for want of prosecution; or

(i) fix a time pre-emptorarily for the doing of the act and order that upon non-compliance, the review should stand dismissed for want of prosecution; or

(i) may make such other orders as it deems just.

4. The power to dismiss is a discretionary one which may be exercised if the court is satisfied that “an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his application with due diligence.” In other words, for the court to exercise this discretionary power, the First Respondent, who is supported by the Second Respondent, must show that:

(a) the Applicant has not done an act required to be done by or under the rules; or

(b) the Applicant has not prosecuted his application for review with due diligence.

5. The power is similar to that exercised in respect of ordinary litigation where it has to be shown that a party (usually the plaintiff) “has been guilty of prolonged and inexcusable delay” which would occasion prejudice to the defendant or otherwise prevent a fair trial being had between the parties.

6. The grounds for the application therefore are threefold. In a nutshell, it is first submitted that the intent of the Rules is that reviews must be heard expeditiously and the time frame within which a review must be dealt with is three months. In this case, the review has been pending for nineteen months. It is secondly argued that the delay is intentional, unbecoming and unwarranted. The applicant merely wants to delay the proceeding to avoid a by-election. Evidence of deliberate delay was adduced to support this ground. It is further submitted that the delay is continuous. The Electoral Commission’s application to be joined as a party remains pending. Objection to competency of the review is also awaiting hearing and determination. The date of the Pre-Hearing Conference has not been obtained. The substantive review also needs to be heard and determined. And, with the next National Elections due in mid 2007, by the time these matters are heard and finalized, a by-election may not be viable.

7. The Second Respondent supports the application to dismiss the review. It is submitted that the Applicant has not provided any evidence of the steps he has taken to prosecute the review. It is also submitted that the Applicant has not demonstrated an intention to act expeditiously and to ensure that this review is in order.

8. The application is not unopposed. The Applicant does not deny that the review has been pending for sometime but blames the delay on the First Respondent. It is submitted that the First Respondent has consistently objected to certain documents and wanted certain documents to be included in the Review Book but has failed to cooperate when requested to furnish those documents to the Applicant. In any case, it later became apparent that one of the documents the First Respondent wanted to be included in the Review Book does not exist. And when the Review Book was eventually ready, the Respondents have also been uncooperative in its certification.

9. The Applicant, prompted by that lack of cooperation, filed an application on 15 June 2005 before the Supreme Court and on 14 July 2005 obtained, among others, the following orders:

(a) That the First Respondent’s lawyers endorse and certify the certificate of correctness in relation to the Supreme Court Review Book in these proceedings within seven days from the date of service of the Review Book.

(b) That the Second Respondent’s lawyers endorse and certify the certificate of correctness in relation to the Supreme Court Review Book in these proceeding within seven days from the date of service of the Review Book.

(c) That upon fulfilment of Orders 1 and 2 above the matter be placed in the Supreme Court call-over list for allocation of a trial date.

(d) In the event that the Respondents do not comply with Orders 1 and 2 above, the Applicant is at liberty to file the Review Book as compiled.

10. A number of factual issues and interesting legal arguments have been raised and we would ordinarily like to...