In the matter of the Organic Law on National Elections and In the matter of Returns for the Southern Highlands Provincial Electorate; Dick Mune v Paul Poto (No 2) [1997] PNGLR 356

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Salika J
• Judgment Date: 21 September 1996
• Court: Supreme Court
• Year: 1997
• Citation: [1997] PNGLR 356
• Docket Number: SCR 10 of 1996
• Judgement Number: SC508

Full Title: SCR 10 of 1996; In the matter of the Organic Law on National Elections and In the matter of Returns for the Southern Highlands Provincial Electorate; Dick Mune v Paul Poto (No 2) [1997] PNGLR 356

Supreme Court: Kapi DCJ, Los J, Salika J

Judgment Delivered: 21 September 1996

1 Practice—National Court—Order made by mistake—Power of the Court to correct own mistake and vacate order

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By the Court: The applicant Dick Mune was the declared winner of the Southern Highlands Provincial Electorate in the last National Elections. Mr Paul Poto and Mr Anderson Agiru filed petitions (MP No 184 and 189 of 1992 respectively) disputing the result of the election under the provisions of the Organic Law on National Elections.

There was another petition filed in relation to Komo–Magarima Open Electorate (MP No 159 of 1992).

Parties agreed to try the three petitions together on the basis that the factual circumstances and the issues of law were to be the same. The circumstances which were considered to be similar in the three cases was that ballot papers in a number of ballot boxes were either stolen or destroyed and the question to be considered by the Court in relation to the three petitions was whether the results of the elections in respect of both electorates were likely to be affected by the loss of the ballot papers. The three matters came on for hearing before the Chief Justice.

On 29 March 1994 the Chief Justice handed down his decision. In respect of the petition by Paul Poto the Chief Justice found that the number of votes polled by the winning candidate exceeded the number of ballot papers lost by 192. As a consequence of this conclusion the Chief Justice dismissed the whole of the petition (see page 48 of the record).

Apparently the Chief Justice did not consider other grounds upon which the petition was based. This mistake was picked up by the lawyers for the petitioner and a subsequent application was filed on 7 April 1994 to reinstate the petition in relation to the balance of the grounds stated therein. On 21 April 1994 the Chief Justice reinstated the petition on the balance of the grounds. The respondent/applicant filed a judicial review under s155(2)(b) of the Constitution on 12 April 1996 challenging the reinstatement of the petition by the Chief Justice. This review is numbered SCR. 10 of 1996.

Subsequent to the reinstatement of the petition, the Chief Justice heard an application to dismiss the petition on the grounds that it did not comply with a fundamental requirement of a petition pursuant to s208 of the Organic Law on National Elections. The Chief Justice gave his ruling on this issue on 23 November 1994. In this ruling he dismissed all grounds stated in the petition except for grounds 3 (e) and (f). These two grounds relate to the correctness of the number of votes counted in the tally sheets. The respondent /applicant has filed a judicial review under s155(2)(b) of the Constitution challenging this decision. The review was filed on 12 April 1996 and is numbered SCR. 11 of 1996.

On 19 December 1995 the Electoral Commissioner filed an application to strike out the remaining grounds 3 (e) and (f) of the petition. Mr Justice Sheehan heard the application on 20 March 1996 and dismissed it. The respondent/applicant has filed a judicial review against this decision under s155 (2) (b) of the Constitution. This review was filed on 12 April 1996 and is numbered SCR. No 12 of 1996.

On 4 April 1996 the respondent/applicant filed another application to strike out the remaining grounds of the petition. On 10 April 1996 Sheehan J refused to hear the application and ordered that the petition should be referred to the Registrar to fix a date for hearing. On 12 April 1996 the respondent /applicant filed a judicial review against this decision pursuant to s155(2)(b) of the Constitution and is numbered SCR. No 9 of 1996.

The four reviews were set down for hearing before us on 17 July 1996. At the hearing all parties agreed that the issues raised in SCR. No 10 of 1996 should be heard and determined first. If the Court decides in this review that the trial judge had no power to reinstate the petition, the issues raised by the other three reviews will not arise and that there will be no need to consider them. If on the other hand, the Court decides that there was power in the trial judge to reinstate the petition, the issues in the other three reviews will need to be determined. On the basis of this agreement the Court proceeded to hear and determine SCR. 10 of 1996.

SCR. No 10 of 1996.

The decision under review was handed down on 29 March 1994. His Honour the Chief Justice found that:

"The difference between this Petition who was the runner–up and the First Respondent was 3,841. This exceeded the conceded number of lost ballot papers of 3,649 by 192."

His conclusion and consequential orders were:

" . . . because the difference in the votes between the winner, the First Respondent and the runner–up Petitioner executed the total ballot papers conceded as lost, I cannot be satisfied that the result of the election was likely to be affected.

The Petition is therefore dismissed. The end result is that both petitions against the result of the provincial electorate are dismissed."

Subsequently the petitioner sought by a notice of motion to reinstate the petition so that the Court could hear the balance of the petition. It was argued that the Court made an accidental step in dismissing the other grounds of the petition without a hearing. On 21 April 1994 His Honour the Chief Justice vacated his order dismissing the petition and reinstated the balance of the petition. He said:

" . . . the question has arisen as to whether or not I am able to stay my own judgment or and vary it. I think that fairness and justice quite simply dictates that if there has been an error in the final ruling and the orders made thereby are able to be corrected and parties find no prejudice then there is no great difficulty in doing that. So in respect of that petition of Paul Poto I acknowledge that I have overlooked the balance of the petition which remain to be dealt with in several stages so that it is not difficult to amend that judgment in respect of that. I therefore vacate my ruling that that petition is dismissed. It is unsuccessful only in respect of the ground of the loss of the ballot boxes . . . The balance of the petition therefore remains to be dealt with."

The application before the Supreme Court is to review that order where the National Court vacated its previous order dismissing the petition and reinstated the balance of the grounds of the petition. The first issue therefore is whether the National Court had power to reconsider its own previous decision and correct a mistake. The second issue is whether the application must fail on the grounds of delay even if the Court had power to correct a mistake.

For completeness, before going to the merit of the case we address the issue whether leave is needed to invoke the review jurisdiction of the Supreme Court. The answer has been given in numerous cases. That is where no appeal provisions are provided under a legislation, an aggrieved party may seek a review as of right. See Application by Herowa Agiwa [1993] PNGLR 136, for example.

The applicant argues that the National Court had absolutely no power to revisit its earlier decision because it was prohibited by s220 of the Organic Law on National Elections. S220 says:

"A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in anyway."

It was argued that the only way open was for the aggrieved party to have applied to the Supreme Court for a review under s155(2)(b) of the Constitution. S155(2)(b) says:

"The Supreme Court—

(b) has an inherent power to review all judicial acts of the National Court."

On behalf of the Respondent it was argued that the combined effect of the case law, some provisions of the Organic Law on National Elections and s155(3) of the Constitution allowed the National Court to review its own decision...