SC Rev (EP) 30 of 2018; Application under S.155 (2)(b) of the Constitution and in the matter of PART XVIII of the Organic Law on National and Local-Level Government Elections; Peter Wararu Waranaka v Richard Maru and the Electoral Commission of Papua New Guinea (2018) SC1718

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 13 August 2018
• Court: Supreme Court
• Citation: (2018) SC1718
• Year: 2018
• Judgement Number: SC1718

Full Title: SC Rev (EP) 30 of 2018; Application under S.155 (2)(b) of the Constitution and in the matter of PART XVIII of the Organic Law on National and Local-Level Government Elections; Peter Wararu Waranaka v Richard Maru and the Electoral Commission of Papua New Guinea (2018) SC1718

Supreme Court: Hartshorn J

Judgment Delivered: 13 August 2018

SC1718

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC Rev (EP) 30 of 2018

APPLICATION UNDER S. 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:

PETER WARARU WARANAKA

Applicant

AND:

RICHARD MARU

First Respondent

AND:

ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Hartshorn J

2018: 7th & 13th August

Application pursuant to Order 5 Rule 39 Supreme Court Rules for dispensation from the requirements of Order 5 Rule 11 – Application for dismissal of Application for Leave for Review pursuant to Order 5 Rule 37(a) Supreme Court Rules

Cases cited:

Wari James Vele v. Powes Parkop (2008) SC945

Hami Yawari v. Anderson Agiru (2008) SC948

Counsel:

Mr. J. Kolo, for the Applicant

Mr. P. Mawa, for the First Respondent

Mr. M. Ninkama, for the Second Respondent

13th August, 2018

1. HARTSHORN J: This is a decision on contested applications for dispensation with the requirements of Order 5 Rule 11 Supreme Court Rules and for the dismissal of the application for leave for review. It was agreed that both applications would be heard together.

Background

2. The first respondent was declared the elected Member of Parliament for the Yangoru Sausia Open Electorate in the 2017 General Elections. The primary judge dismissed the applicant’s election petition on 31st May 2018 after upholding the respondents’ objections to competency. The applicant filed this application for leave for review on 13th June 2018.

Application for dispensation

3. The applicant seeks pursuant to Order 5 Rule 39 Supreme Court Rules, to be granted dispensation with the requirement to annex a copy of the judgment and order of the National Court to the supporting affidavit of the applicant, as required under Order 5 Rule 11 on the grounds that:

a) The written judgment of the National Court had not been provided by the primary judge when the time for the application for leave for review to be filed expired;

b) The delay in applying for this dispensation was caused by the inaction of two other lawyers who were acting for the applicant in this proceeding before his current lawyers. The current lawyers made the dispensation application as soon as they were instructed to act for the applicant;

c) Interests of justice.

4. The respondents’ submit that the application for dispensation should be refused as:

a) The application is a reaction to the dismissal applications filed by the first respondent and so is not made in good faith;

b) The formal order of the National Court taken out by the first respondent was on the court file and so could have been obtained by the applicant. Alternatively, the applicant could have taken out a formal court order himself but he did not;

c) The dispensation sought if granted, will not permit the Supreme Court to know what orders were made by National Court and the reasons for the orders;

d) It would not be in the interests of justice.

Consideration

5. In Wari James Vele v. Powes Parkop (2008) SC945 (Davani, Lay. Hartshorn JJ) at [23], the Supreme Court said:

“23. As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required. There has to be some reasonable explanation. The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit. Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent's conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay.”

6. As to the delay in making the application for dispensation being because of the applicant’s previous lawyers alleged failures, as the Supreme Court in Hami Yawari v. Anderson Agiru (2008) SC948 (Sakora, Cannings, Hartshorn JJ) said at [18]:

“If Mr. Yawari attributes the reason for there being no application made under Rule 32 to his former lawyers (or his present lawyers as no such application has been filed to date) this is not in our view a satisfactory reason. It has been held on numerous occasions in this jurisdiction that the failure of a person's lawyer is not a good reason for the granting of an extension of time: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110.”

7. In regard to whether, if the dispensation sought is granted, it will enable all of the issues in contention to be promptly put before the Court, if the dispensation sought is granted, this Court will not have the benefit of the National Court judgment and order. The purpose of Order 5 Rule 11 to my mind, is for the Supreme Court to have before it the order of the National Court and the reasons for the order by way of the judgment so that the Supreme Court may determine whether there is a basis or bases for an application for leave for review to be granted. This will not occur if the requirement to provide the judgment and order is dispensed with. Not providing the Supreme Court with a copy of the judgment and order of the National Court may cause prejudice to all parties and the Court and in my view, is not in the interests of justice.

8. To my mind, the applicant should have applied for an extension of time to file his application for leave for review under Order 5 Rule 14 Supreme Court Rules until a time after the primary judge had made his judgment available, but he did not.

9. Consequently, for the above reasons the applicant’s application for dispensation is refused.

Application to dismiss

10. The first respondent supported by the second respondent, applies pursuant to Order 5 Rule 37(a) Supreme Court Rules, by amended application filed 12th July 2018, for the application for leave to review to be dismissed on the grounds that the applicant:

a) Did not comply with Order 5 Rule 11 Supreme Court Rules at the date of filing of the application for leave for review as a copy of the order of the National Court was not annexed to the affidavit of the applicant, as required;

b) Has not paid detailed and constant attention to the prosecution of the application for leave for review and has not sought dispensation from compliance with the requirements of Order 5 Rule 11 Supreme Court Rules or sought an amendment of its application;

c) Failed to treat this application for leave for review as a special matter and has not complied with the principles stated in Vele v. Parkop (supra) and Yawari v. Agiru (supra) concerning compliance with the Supreme Court Rules.

11. The applicant submits that the first respondent’s application for dismissal is defective, has been brought on an incorrect basis and is therefore not properly before this court. I will consider the applicant’s submissions in this regard first.

12. The applicant submits that as the application of the first respondent filed 29th June 2018 was defective because of want of form, which is conceded by the first respondent, the amended application which purports to amend an application that is defective, suffers the same fate. The application of the 29th June 2018 should have been withdrawn instead of being amended, submits the applicant.

13. The first respondent submits that the amended application was filed upon the first respondent’s own initiative and the applicant has not applied to strike out either of the applications.

14. The amended application of the first respondent is in accordance with Form 4 of the First Schedule to the Supreme Court Rules, apart from the word “Amended”. There is no reference in the amended application to the application filed 29th June 2018. The jurisdiction pursuant to which the order for dismissal is sought in the amended application is stated and is correct. Notwithstanding that it is titled “Amended Application”, it remains an application and in my view is able to stand on its own. It is not tainted by the previous application filed 29th June 2018. Further, this court was not referred to any Supreme Court Rule that precludes or prohibits an amended application, and I am not aware of any such Supreme Court Rule. I am satisfied that the amended application is not defective and the first respondent is able to rely upon it.

15. The first respondent submits that the application for leave for review should be dismissed as:

a) It is not disputed that the applicant has not complied with Order 5 Rule 11 Supreme Court Rules by not annexing a copy of the formal order of the National Court to the supporting affidavit of the applicant;

b) It is not disputed that the applicant did not annex...