SC Review No 54 of 1998; Sir Julius Chan v Ephraim Apelis and The Electoral Commission (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Akuram J
• Judgment Date: 09 April 1999
• Court: Supreme Court
• Citation: [1999] PNGLR 187
• Docket Number: SC Review No 54 of 1998
• Year: 1999
• Judgement Number: SC591

Supreme Court: Kapi DCJ, Sheehan J, Akuram J

Judgment Delivered: 9 April 1999

SC591

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

S C REVIEW NO. 54 OF 1998

BETWEEN:

SIR JULIUS CHAN

Applicant

AND:

EPHRAIM APELIS

First Respondent

AND:

THE ELECTORAL COMMISSION

Second Respondent

[No. 2]

Waigani: Kapi DCJ., Sheehan J., Akuram J.

11th February, 9th April 1999

Supreme Court — Jurisdiction to re-open — Principles applicable — Misapprehension of nature of pleadings — Striking out pleadings without considering the issue of recount. Method of enrolment under Part VII of Organic Law on National and Local Level Government Elections.

Evidence — Admissibility of affidavits on application to re-open.

N.M. Cooke QC and M.M. Varitimos for the Applicant.

C.Narokobi for the First Respondent.

J.Nonggor for the Second Respondent.

9th April 1999

Kapi DCJ: Sir Julius Chan (the Applicant in the present proceedings) filed a petition in the National Court against the result of election of the member for Namatanai Open Electorate in the last General Elections. He pleads several grounds for invalidating the election. Mr Apelis, the wining candidate and the Electoral Commission (both will be referred to as the Respondents in the present proceedings) applied to dismiss the whole petition. The National Court heard the application and struck down only some grounds and allowed other grounds to remain.

The respondents then applied for review of the National Court decision under s 155 (2) (b) of the Constitution. The Court heard the review on 29th July 1998 and on 9th October 1998, handed down it's decision wherein it allowed the review in part and struck down grounds 5, 6.1, 6.2, 6.4, 6.6, 6.7, 8 and 10.1 of the petition (see Ephraim Apelis v Sir Julius Chan, Unreported judgment of the Supreme Court, SC573).

On 13th November 1998, the applicant filed this application to re-open the judgment of the Court and to correct perceived mistakes in the judgment. The applicant seeks to rely on two affidavits; affidavit of Michael Wilson sworn 12th November 1998 and Sir Julius Chan also sworn 12th November 1998. Counsel for Mr Apelis has raised objections to the use of these two affidavits in these proceedings. I will address this issue when I consider the true nature of this application.

Counsel for the respondents submit that there is no jurisdiction in the Court to re-open its decision to correct a mistake. While they concede that there is underlying law which permits the Supreme Court to re-open its own decision in other matters (Wallbank & Minife v The State [1994] PNGLR 78), they submit that this jurisdiction is not applicable in election cases. They submit that in election cases, there is an expressed provision in the Organic Law on National & Local-Level Government Elections (Organic Law), s 220, which prohibits appeals from decisions of the National Court. They submit that there is an expressed intention by the legislature that election disputes should be decided with finality and therefore there can be no jurisdiction in the Court to re-open its own decision.

Alternatively, they submit that if the Court has jurisdiction to re-open its judgment, the circumstances in the applicant's application are not appropriate for the exercise of this jurisdiction and therefore the application should be dismissed.

Counsel for the applicant on the other hand simply relies on Wallbank & Minife v The State (supra) and Auodesk Inc v Dyason (No.2) 176 CLR 300.

I have no difficulty in concluding that this Court has jurisdiction to re-open its decision to correct a mistake in appropriate cases including where the Court has exercised its discretion under s 155 (2) (b) of the Constitution. This is a power which the Court has by virtue of its being the Court of last resort (see Autodesk v Dyason [No. 2] supra). The principle stated in Autdesk was adopted by this Court in Wallbank & Minife v The State (supra). It is necessary to examine the nature of the power and the circumstances in which this power may be exercised.

The High Court of Australia has fully considered the circumstances in which this jurisdiction may be exercised. In State Railway Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 the Court concluded that this jurisdiction may be exercised where irremediable injustice is done, by some accident, without blame, a party has not been heard and an order has been inadvertently made as if the party has been heard.

This decision was followed in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672. The Court made it quite clear that the circumstances in which it may exercise this jurisdiction are extremely rare and the discretion must be exercised with great care.

These cases were applied in Autodesk Inc v Dyason [No. 2] (supra). Mason CJ amplifies the principles and at page 302 extended the circumstances in which the Court may exercise this discretion:

"But these statements do not exclude the exercise of jurisdiction to re-open a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. In Smith v. N.S.W Bar association (8) when their Hohours said: "If reasons for judgment have been given, the power is only exercised if there is some matter calling for review." It is sufficient to give three examples. In In re Harrison's Share under a Settlement (9), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v. Smith (1), the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (11). And, in Pittalis v. Sherefettin (12), a judge recalled orders the day after they were made upon determining that he had "erred in a material matter in his approach to the case" (13).

These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this apprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide, a backdoor method by which unsuccessful litigants can seek to re-argue their case."

This passage in my view states the correct statement of the law.

In order to determine whether this jurisdiction may be exercised in the present case, it is necessary to examine the nature of the issues that came before the Court on review and the decision delivered on the 9th October 1998.

The central issue before the Court on review was whether the petition adequately pleads the facts in accordance with s 208 of the Organic Law. This provision requires that the petition should set out the facts relied upon for invalidating the result of an election. In the judgment, the Court referred to the leading authority on pleading of facts. There is no suggestion by counsel for the applicant that the Court got the law wrong in respect of the requirements of pleading.

However, counsel submits that in considering paragraph 5 of the petition, the Court wrongly assumed that all the names pleaded in paragraph 5 were not on the 1997 Common Roll at the time of the election. With respect, this submission misconceives the nature of the issues pleaded.

First, there were no facts placed before the Court on review and the Court made no findings or made any assumptions of fact. The issue before the Court was whether the facts were adequately pleaded to support the grounds for invalidating the election? There was no need to refer to any evidence. The Court determined the issue on the pleading itself. An application to review such a decision need only to make reference to the pleading upon which the decision was based. It follows from this that no affidavits are required for the purposes of reviewing the decision of the Court. I would not admit the affidavits in...