SC REV. NO. 22 OF 20; Application under s155(2)(b) of the Constitution. And in the matter of Part XVIII of the Organic Law on National and Local – Level Government Elections; Erie Ovako Jurvie v Bony Oveyara and Andrew Trawen, Electoral Commission of Papua New Guinea (2008) SC935

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 03 September 2008
• Citation: (2008) SC935
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC935

Full Title: SC REV. NO. 22 OF 20; Application under s155(2)(b) of the Constitution. And in the matter of Part XVIII of the Organic Law on National and Local – Level Government Elections; Erie Ovako Jurvie v Bony Oveyara and Andrew Trawen, Electoral Commission of Papua New Guinea (2008) SC935

Supreme Court: Injia, DCJ

Judgment Delivered: 3 September 2008

SC935

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 22 OF 2008

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:

ERIE OVAKO JURVIE

Applicant

And:

BONY OVEYARA

First Respondent

And:

ANDREW TRAWEN, Electoral Commission of Papua New Guinea

Second Respondent

Waigani: Injia, DCJ

2008: 1st, 3rd September

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Final decision of National Court on an election petition - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Exercise of discretion- Relevant criteria and principles.

Cases cited:

Application of Miozing [1992] PNGLR 122

Application of Ludwig Patrick Schulze (1998) SC 572

Application of Herman Leahy (2006) SC 855

Andrew Trawen & Another v Steven Kama & others (2008) SC 915

Application by Ben Semri (2003) SC 723

Balakau v Torato [1983] PNGLR 81

Ivarato v Lafanama (1998) SC 563

Kasap v Yama [1988-89] PNGLR 197

Mamando v Nii [1977] PNGLR 496

Counsel:

A Manase, with S Tadabe for the Applicant

P Mambei, for the First Respondent

A Kongri, for the Second Respondent

3 September, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the “Petition Review Rules”). It is contested by the respondents.

2. Prior to 3rd December 2007, the existing Review Rules made in 2002 did not contain any leave for review provision. The case law that prevailed at that time established that leave is not required: Balakau v Torato [1983] PNGLR 81, Kasap v Yama [1988-89] PNGLR 197, Application of Miozing [1992] PNGLR 122, Ivarato v Lafanama (1998) SC 563, Application of Ludwig Patric Schulze ( 1998) SC 572.

3. On 3rd December 2007, the Judges amended the Petition Review Rules 2002 and inserted a leave provision in Subdivision 1, rr 1 – 10. For purposes of completeness, I reproduce Div. 1 below:

“ Sub-division 1. Application for Leave to apply for Review

1. A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155(2)(b) of the Constitution.

2. An application under Section 155(2)(b) of the Constitution in respect of a decision referred to under Rule 1 lies to the court with leave only.

3. An application for leave shall –

(a) be entitled under Section 155(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; and

(b) be entitled in the name of the person making the application and the name of the respondents; and

(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and

(d) state an address for serve of the applicant; and

(e) be signed by the applicant; and

(f) be in accordance with Form 5A; and

(g) be filed in the Supreme Court Registry at Waigani.

4. The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgement and order of the National Court.

5. The filing fee for the application for leave shall be K750.00.

6. At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.

7. The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time as extended by the Court, upon application made within that 14 days period.

8. The application for leave and supporting affidavit shall be served personally on the respondents not later than 3 days before the application is made and an affidavit of service shall be filed within that 3 days period.

9. The application for leave shall be made before a Judge.

10. A decision to grant or a refusal to grant leave is final and shall not be subject to further review. “

4. The grant of leave is discretionary. It is a judicial discretion and it must be exercised on proper principles and on proper grounds. The Petition Review Rules do not provide for how the discretion is to be exercised or the relevant considerations to be taken into account in determining the question of leave. The present application is the first case in which those matters are now considered. Counsel representing the parties made helpful submissions to assist me determine those matters.

5. There is general consensus amongst counsel as to two criteria which apply in determining the question of leave. Submissions by counsel for the Electoral Commission, Mr Kongri, slightly differs from the submissions of counsel for the other two parties, in that he urges the Court to take a broader approach and not restrict itself to those two criteria. I agree with him that there may be other criteria which may be developed in other cases which may be limited to the circumstances of the case before it or of general application to other cases. In such cases the Court may rely on principles enunciated in cases such as Avia Aihi v The State [1981] PNGLR 81 which Mr Kongri referred to. One such criteria suggested by Mr Manase as to the finality of the decision of the National Court is one such criteria which may be properly argued and determined by the Court. I agree with Mr Kongri that it would be premature for the Court to develop a criteria which does not arise in the particular circumstances of the case before it. In the present case, I am inclined to limit myself to the two criteria agreed upon, which are relevant to this application.

6. In Application of Herman Leahy ( 2006) SC 855, the Supreme Court dealt with the question of whether the applicant should be granted leave for review under s 155 (2)(b) of the Constitution in a criminal matter. The Supreme Court comprising of Kapi CJ, Cannings J & David J canvassed the principles which should apply to grant of leave under s 155 (2)(b) of the Constitution. I simply restate those principles. The Court stated:

“57. The nature of the Supreme Court’s jurisdiction under Section 155(2)(b) was explained by Kapi DCJ, as he then was, in Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686. In dicta adopted by other members of the court (Los J, Salika J, Sakora J and Injia J), it was stated:

Section 155(2)(b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State … held that the Court may in its absolute discretion allow a limited class of cases for review under Section 155(2)(b).

There are three categories of cases where judicial review has been exercised under this provision:

(1) Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (No 2) [1982] PNGLR 44).

(2) Where a right of appeal is prohibited or limited by law (eg election petition cases where an appeal is prohibited).

(3) Where there is no other way of going to the Supreme Court (see SCR No 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433).

58. Whether leave for review under Section 155(2)(b) is necessary and, if it is necessary, what criteria apply when deciding whether to grant leave, depend on the category of the case.

Category 1: where there is a right of appeal

59. If there is a right of appeal but it has not been invoked (eg due to expiry of the statutory time limit of 40 days under the Supreme Court Act, Sections 17 (civil appeals) or 29 (appeals by persons convicted in criminal cases), three criteria have to be satisfied before leave can be granted:

(1) It is in the interests of justice to grant leave; and

(2) there are cogent and convincing reasons and exceptional circumstances, eg

some substantial injustice is manifest or the case is of special gravity; and

(3) there are clear legal grounds meriting a review of the decision.

60. In deciding whether there are cogent and convincing reasons, the following matters are relevant:

(a) the reasons for not filing an appeal within time; and

(b) the merits of the case sought to be argued.

61. The above principles are based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J. They have subsequently been developed and applied in many cases, eg Danny Sunu v The State [1984] PNGLR 305, Pratt J,...