Application Under Section 155(2) (B) of the Constitution and In The Matter of Part VIII of the Organic Law on National and Local Level Government Elections; Wari James Vele v Powes Parkop (2008) SC945

• Jurisdiction: Papua New Guinea
• Judge: Davani, Lay and Hartshorn JJ
• Judgment Date: 30 October 2008
• Citation: (2008) SC945
• Docket Number: SC REVIEW No. 51 of 2007
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC945

Full Title: SC REVIEW No. 51 of 2007; Application Under Section 155(2) (B) of the Constitution and In The Matter of Part VIII of the Organic Law on National and Local Level Government Elections; Wari James Vele v Powes Parkop (2008) SC945

Supreme Court: Davani, Lay and Hartshorn JJ

Judgment Delivered: 30 October 2008

SC945

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW No. 51 of 2007

APPLICATION UNDER SECTION 155(2) (B) OF THE CONSTITUTION

AND IN THE MATTER OF PART VIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN

WARI JAMES VELE

Applicant

AND

POWES PARKOP

Respondent

Waigani: Davani, Lay and Hartshorn JJ.

2008: 1st and 30th October

SUPREME COURT - CIVIL - Election Petition Review Rules - Rules 5/1/7/, 5/10/30 and 5/10/32 - application for leave not made within 14 days of decision - no application filed for extension of time or to dispense with Rule - application pursuant to Rule 5/10/32 made in the course of submissions - Considerations for the application of Rule 5/10/32 discussed.

Facts

The Respondent applies to strike out the Applicant's application for leave to review the decision of the National Court which dismissed the Applicant's petition against the election of the Respondent as governor of the National Capital District in the 2007 National Elections.

Held

1. An application for leave to review a decision on an election petition not filed, served and moved before a judge within 14 days of the decision sought to be reviewed, where extension of time is not granted within that 14 days, is rendered incompetent by the Rules, subject to any application under Rule 5/10/32.

2. The purpose of the Election Petition Review Rules is:

a) not to treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention;

b) to closely manage the review process;

c) to reduce to the minimum the time between the various steps in the review.

3. The times imposed by the Rules are tight and where prompt application is made for relief within the mandatory 14 days accompanied by a reasonable explanation, many circumstances will justify an extension of time under Rule 5/1/7 or after that time a dispensation from the requirements of the Rules under Rule 5/10/32;

4. An applicant under Rule 5/10/32 should explain (1) why a time limit was missed, a Rule not complied with or otherwise why dispensation is required, (2) any delay which has occurred in making the application, (3) that the relief sought by the applicant will not unduly prejudice the other party's case, (4) that the granted dispensation will enable all of the issues in contention to be promptly brought before the court without further delay.

PNG Cases Cited

Dick Mune v Paul Poto (1996) SC508;

The Election Of the Governor General (No.3) (2004) SC 752

James Marabe v Tom Tomiape (No.2) (2007) SC856

Re Kunangel [1991] PNGLR 1

Ben Wafia v The State (2006) SC 851

SCR No.6 of 2008 Michael Laimo v Andrew Trawen, Electoral Commissioner of Papua New Guinea and John Ilam, Returning Officer for South Bougainville Open Electorate 22 August 2008, unpublished and unreported judgment of Kapi CJ.

Avia Aihi v The State 1981] PNGLR 8

State v Colbert [1988] PNGLR 138

Erie Ovake Jarvie v Bonny Oveyara and Electoral Commission of Papua and New Guinea (2008) SC 935

References

Constitution

Supreme Court Election Petition Review Rules

Counsel

A. Jerewai, For the Applicant

K. Naru, For the Respondent

30th October, 2008

1. BY THE COURT: The National Court dismissed Mr Vele's petition against the election of Mr Parkop to the National Parliament in the 2007 National Elections. Mr Vele filed an application in the Supreme Court for leave to review the decision of the National Court, pursuant to the powers of review given to the Supreme Court by the Constitution, s.155(2)(b).

2. Pursuant to the Constitution s184, the Supreme Court has made rules to govern reviews of election petition decisions. These are the Supreme Court Election Petition Review Rules, (the ‘Rules’) which form part of the Supreme Court Rules. Order 5 Sub-Division I Rule 7 of the Rules (Rule 5/1/7) provides:

"The Application for Leave shall be made within 14 days of the decision sought to be reviewed or within such further time as extended by the court upon application made within that 14 day period".

3. The decision of the National Court was made on the 30th November, 2007. It is common ground that the Applicant had until the 14th December, 2007 at the latest, to file his application. The Application was filed on 13th December, 2007. No application to extend time was made within the 14th days ending 14th December 2007, or at all.

4. Rule 5/10/30 provides:

"Where a party has not done any act required to be done, by or under these Rules or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court the court may on its own motion or on application by a party, at any stage of the proceedings:

a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant;..."

5. Mr. Parkop makes application pursuant to that Rule to strike out the application for leave. Mr Parkop submits that Mr Vele had until the 11th December, 2007, to file and serve the Application and until the 14th December, 2007, to have the Application heard before a judge. This is because Rule 5/1/8 requires the application to be served 3 days before the hearing.

6. Mr Vele submits that Rule 5/1/7 was made in error. He submits that the true meaning intended was that the application be only filed in 14 days. Alternatively the court has power pursuant to Rule 5/10/32 to dispense with the requirements of Rule 5/1/7. Alternatively the court can extend time for whatever period is necessary by using the powers granted by Schedule 1.16 of the Constitution.

7. The issues then for the determination of the Court are:

a) what is the intent of Rule 5/1/7?

b) should the court exercise its powers under Rule 5/10/32 in favour of the Applicant?

c) can the Court extend time pursuant to Schedule 1.16, of the Constitution?

What is the intent of Rule 5/1/7?

8. Mr Vele submits that the Rule contains an error, that the intention was to only require that the application be filed in 14 days, that the word “made” should be read as “filed”. He argues that 14 days to file and have the application heard is unrealistically short. He submitted that this view is supported by the fact that no rule imposes a time limit within which to file the application for review. It is further submitted that the slip rule might be used to overcome the problem.

9. The last submission can be disposed of first. The slip rule is applicable to errors of fact or law in a judgment which can be recalled and corrected in favour of an unsuccessful party: Dick Mune v Paul Poto (1996) SC508; The Election Of Governor General (No.3) (2004) SC 752 at pp 17-18; James Marabe v Tom Tomiape (No.2) (2007) SC856 at [46-85]. The slip rule has no application to the interpretation of legislation.

10. The Supreme Court Election Petition Review Rules are subsidiary legislation. The same approach should be taken to their interpretation as to other legislation. If the plain meaning of the words can be applied without an absurd or impossible result, or departure from the intention of the statute discovered from a reading of the whole of the related provisions, no other aid to interpretation is required: Re Kunangel [1991] PNGLR 1; Ben Wafia v The State (2006) SC 851 at [16].

11. Looking at the other provisions of the Rules, Rule 5/1/8 requires the application to be served before it is made. It would make no sense to require the service of an un-filed document.

12. Rule 5/2/11 stipulates that "the application for review shall be filed within 14 days from the date of grant of leave...". There is a clear distinction between the requirement in Rule 5/1/7 for the application to be "made" and the requirement of Rule 5/2/11 for the application to be simply "filed". This also militates against the suggestion that "made" should be read as "filed" in rule 5/1/7.

13. When one examines the provisions dealing with the management of the application for review one sees that:

a) the applicant is to request a transcript and file a draft index of the review book with the application for review (5/2/13);

b) the directions hearings are to be held within 14 days of filing the review (5/2/15 and 5/6/21);

c) the application and draft index are to be served within 7 days of filing (Rule 5/4/19);

d) the review book is to be filed and served within 14 days of the directions hearing (Rule 5/7/23);

e) that there is to be a pre-trial...