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
• Date: 03 September 2008
• Citation: (2008) SC935
• Court: Supreme Court
• Year: 2008

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

JUDICIAL REVIEW - s155 (2)(b) of the Constitution - Final decision of National Court on an election petition - Leave for review - Application for leave under Div. 1 r1- r10 of Supreme Court Election Petition Review Rules (as amended)- Exercise of discretion- Relevant criteria and principles.

Cases cited:

Application by Toffamo Simang Mionzing; Re Finschhafen Open Electorate [1992] PNGLR 122; Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855; Andrew Trawen v Steven Pirika Kamma (2008) SC915; Application by Ben Semri (2003) SC723; Balakau v Torato [1983] PNGLR 81; Review Pursuant to Constitution s155(2)(b); Aita Ivarato v Peti Lafanama and Electoral Commission of Papua New Guinea (1988) SC563; Applications of Kasap and Yama [1988–89] PNGLR 197; Re Baiyer–Mul Open Parliamentary Election: Mokwa Mamando v Pyange Ni [1977] PNGLR 496

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) SC563, Application of Ludwig Patric Schulze ( 1998) SC572.

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) SC855, the Supreme Court dealt with the question of whether the applicant should be granted leave for review under s155 (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 s155 (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;Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru [2002] PNGLR 567. 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...