SC REVIEW (EP) NO 8 OF 2019; Application 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; Philip Undialu v Francis M. Potape and Electoral Commission (2019) SC1885

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 29 November 2019
• Court: Supreme Court
• Citation: (2019) SC1885
• Year: 2019
• Judgement Number: SC1885

Full Title: SC REVIEW (EP) NO 8 OF 2019; Application 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; Philip Undialu v Francis M. Potape and Electoral Commission (2019) SC1885

Supreme Court: Berrigan J

Judgment Delivered: 29 November 2019

SC1885

PAPUA NEW GUINEA

[IN THE SUPREMECOURT OF JUSTICE]

SC REVIEW (EP) NO 8 OF 2019

APPLICATION 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

BETWEEN

PHILIP UNDIALU

Applicant

AND

FRANCIS M. POTAPE

First Respondent

AND

ELECTORAL COMMISSION

Second Respondent

Waigani: Berrigan J

2019: 18th, 29th November

SUPREME COURT REVIEW – practice and procedure – application for dismissal of entire Supreme Court review pursuant to Order 5 Rule 37(a) of the Supreme Court Rules – application to set aside or vary orders to compile, file and serve the review book.

Cases Cited

Application for Review Pursuant to Section 155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539

Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission, unreported, 17th July 1998, SC562

Miki Kaeok v. Rimbink Pato (2005) SC877

Salamo Elema, Insurance Commissioner v Pacific MMI Insurance Ltd (2007) SC1321

Vele v Parkop (2008) SC945

Hami Yawari v. Anderson Agiru (2008) SC948

Alina v Potape (2013) SC1235

James Marape v Peter O’Neill & Ors (2015) SC1458

Michael Kandiu v Powes Parkop (2015) SC1597

James Marape v Peter O’Neill & Ors (2016) SC1487

Mann v Kumbu (2019) SC1799

Reference by the Ombudsman Commission Pursuant to Constitution, S 19(1) (2019) SC1821

Amaiu v Kaupa (2019) SC1843

References cited

Order 1 Rule 7(1), Order 3 Rule 2(a), Order 5 Rules 6, 19(c), 28, 30, 33, 37, 39, 48, Order 11 Rules1, 9, 25, 26, Order 13, Rule 15 of the Supreme Court Rules

Counsel

Mr G. Gileng, for the Applicant

Mr P. Othas, for the First Respondent

Ms. A. Kimbu, for the Second Respondent

29th November, 2019

1. BY THE COURT: This is a decision on two contested applications. The Applicant seeks that the orders made by Hartshorn J on 14 October 2019 endorsing the index to the review book and ordering that the Applicant shall compile, file and serve the review book by 28 October 2019 be varied or set aside. Alternatively, an order that he file a motion pursuant to Order 11 Rule 25 of the Supreme Court Rules for that purpose.

2. The First Respondent seeks dismissal of the substantive review application pursuant to Order 5 Rule 37(a) of the Supreme Court Rules on the basis that the Applicant has failed to comply with the said order. The applications were heard together.

Background

3. The Applicant, Mr Undialu, was declared the elected Member of Parliament for the seat of Hela Province in the 2017 National General Elections.The First Respondent, Mr Potape, brought an Election Petition challenging that result. The petition was upheld on 28 June 2019 and is the subject of the application for review.

4. The following is a brief history of the review proceedings, which are not in dispute. Those matters which are in dispute will be discussed in further detail below.

(a) On 9 July 2019 the Applicant filed his application for leave to review;

(b) On 30 August 2019 leave to bring the review proceedings was granted by Salika CJ, sitting as a single Judge of the Supreme Court;

(c) On 6 September 2019 the Supreme Court granted the Applicant’s application for a stay of the National Court orders of 28 June 2019;

(d) On 12 September 2019 the Applicant filed his application for review together with a Draft Index to the Review Book;

(e) The matter was initially listed for directions hearing on 14 October 2019 by the Registrar but brought forward to 23 September 2019 and then adjourned to 7 October 2019;

(f) On 1 October 2019 the First Respondent filed a Notice of Objection to Competency of the Application for Review;

(g) On 4 October 2019 the Applicant filed an Amended Draft Index to the Review Book incorporating the comments made by the Respondents;

(h) On 7 October 2019 the matter came before Dingake J for directions but was adjourned to 14 October 2019;

(i) On 14 October 2019 Hartshorn Jendorsedthe index to the review book and ordered that it be filed and served by 28 October 2019;

(j) On 24 October 2019 the Applicant filed an application that the orders be set aside;

(k) On 30 October 2019 the First Respondentfiled an application to dismiss the substantive review.

5. For the sake of clarity, the orders of 14 October 2019 were granted in the following terms:

“1. The Court endorses the Amended Index to the Review Book filed by the Applicant, at the request of the First Respondent.

2. The Applicant shall compile, file and serve the Review Book by close of business on the 28th October 2019.

3.The First Respondent shall notify the Appellant in writing of these orders by close of business today.”

APPLICATION TO DISMISS

6. It is convenient to start with the First Respondent’s application.

7. The First Respondent applies to dismiss the Applicant’s review proceedings pursuant to Order 5 Rule 37(a) of the Supreme Court Rules on the grounds that he has not prosecuted his application with due diligence and has failed to comply with the order to compile, file and serve the review book by Monday, 28 October 2019.

Jurisdiction

8. A preliminary issue has been raised by the Applicant. He suggests that I may not have jurisdiction as a single judge to hear and determine the application having regard to Order 3 Rule 2(a) which provides (emphasis mine):

“1. Proceedings which relate to a matter or question within the original jurisdiction shall be entitled "In the Supreme Court of Justice" and shall be commenced and continued in accordance with these Rules.

2. Where any proceedings under Rule (1) are pending before the Court—

(a) a direction not involving a final decision upon the proceedings; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order for security for costs; or

(d) an order in the nature of orders such as are referred to in Section 8(1)(a), (b), and (c) of the Act—

may be made by a Judge.

9. He points out that whilst there are a number of authorities in which a single judge has dismissed proceedings pursuant to Order 5 Rule 37(a) they have all concerned applications for leave and not the substantive review itself. Furthermore, that there appears to beonly one authority where a single judge has deliberated on an application to dismiss a substantive review application. It appears that jurisdiction was not raised in that case: Amaiu v Kaupa (2019) SC1843.

10. I heard the submissions on jurisdiction and proceeded to hear the substantive application.

11. Having considered the matter, it is my view that I have jurisdiction to hear the application sitting as a single judge of the Supreme Court pursuant to Order 5 Rule 37.

12. Order 3 of the Supreme Court Rules is concerned with the original jurisdiction of the Supreme Court and is not applicable in this case. As stated by Kapi DCJ (as he then was) in Application for Review Pursuant to Section 155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539 (emphasis added):

“In the present matter, the original jurisdiction in question is a dispute relating to the result of the national elections. The original jurisdiction in these matters is granted to the National Court under the Organic Law on National and Local Level Government Elections. This matter has only come before the Supreme Court by way of review under s. 155 (2) (b). This does not come within the meaning of the original jurisdiction of the Supreme Court under O 3 of Supreme Court Rules. Therefore this order is not applicable.”

13. It is also clear from Viviso Seravo that “unless the power of review and all related matters connected with a review is given to a single judge of the Supreme Court, all such matters must be dealt with by the full bench of the Supreme Court”: Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission, unreported, 17th July 1998, SC562.

14. Order 5 Rule 37 provides (emphasis added):

Sub-Division 11. — Dismissal, etc. of Application

37. Where a party has not done any act required to be done by or under the rules of this division 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 or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-

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

(b) where the defaulting party is the respondent, set down the application...