William Duma v James Puk and Electoral Commission (2019) SC1817

• Jurisdiction: Papua New Guinea
• Judge: Collier, Pitpit and Auka JJ
• Judgment Date: 27 June 2019
• Court: Supreme Court
• Citation: (2019) SC1817
• Docket Number: SC REV (EP) No. 43 of 2018
• Year: 2019
• Judgement Number: SC1817

Full Title: SC REV (EP) No. 43 of 2018; William Duma v James Puk and Electoral Commission (2019) SC1817

Supreme Court: Collier, Pitpit and Auka JJ

Judgment Delivered: 27 June 2019

SC1817

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) No. 43 of 2018

BETWEEN:

WILLIAM DUMA

Applicant

AND:

JAMES PUK

First Respondent

AND:

ELECTORAL COMMISSION

Second Respondent

Waigani: Collier, Pitpit and Auka JJ

2019: 3 May, 27 June

ELECTIONS – petitions –objection to competency – non-compliance with the Election Petition Rules 2017 – whether the Court has the power to exercise discretion to refuse to dismiss petition – whether the petition was compliant with s 208 of the Organic Law – whether a dispensation decision can be overturned in judgment

Cases Cited:

Papua New Guinea Cases

Aihi v Isoaimo (2014) N5691

Amet v Yama (2010) SC 1064

Avei v Electoral Commission and Charles Maino (1998) SC584

Baindu v Yopiyopi (2019) SC1763

Baira v Genia and Electoral Commission (1998) SC579

Basa v Dadae (2013) N4991

Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342

Dekena v Kuman (2018) SC1715

Dion v Konga (2018) N7210

Electoral Commission of Papua New Guinea v Solo (2015) SC1467

Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99

In re Fly River Provincial Executive (2007) SC917

In re Re-election of the Governor General (2010) SC1089

Kandiu v Parkop (2015) SC1437

Kandiu v Parkop (2015) SC1597

Kumbakor v Sungi (2012) N5002

Leonard v Wesley (2014) N6552

Madang Timbers Ltd v Kambori (2009) SC1000

Mai Dop v Wake Goi (unreported, Batari J, 26 January 2018)

Mune v Agiru, Kaiulo and Electoral Commission (1998) SC590

Palme v Pok (2018) N7214

Papol v Temo and Electoral Commission [1981] PNGLR 178

PNG Ports Corporation Ltd v Kennedy (2017) N7040

Powi v Kaku (2018) SC1743

Puk v Duma (2018) N7538

Review Pursuant to Constitution Section 155(2)(b); Application by Ben Semri (2003) SC723

Review Pursuant to Constitution Section 155(2(b); Application by Herman Joseph Leahy (2006) SC855

SCR No 1 of 1990; Re Recount of Votes [1990] PNGLR 441

Siaguru v Unagi and the Electoral Commission [1987] PNGLR 372

Somare v Nen (2018) SC1722

Talita v Ipatas (2016) SC1603

Tulapi v Lagea (2013) N5235

Overseas Cases

R v Hillingdon London BC ex p Pulhofer (1986) AC 484

Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 TLR 273

Ithaca Election Petition; Webb v. Hanlon [1939] QSR 90

Legislation Cited:

Constitution of the Independent State of Papua New Guineas 155(2(b)

Organic Law on National and Local-level Government Elections

Election Petition Rules 2017

Electoral Law (National Elections) Regulations 2007

Supreme Court Rules 2012

Counsel:

H Nii, for the Applicant

L A Jurth, for First Respondent

J Kolo, for the Second Respondent

JUDGMENT

27th June, 2019

1 BY THE COURT: Before the Court is an application by the Hon. William Duma MP (the applicant) to review a decision of the National Court of Justice of 30 October 2018, in respect of an electoral petition (EP No. 25 of 2017; James Puk v William Duma & Patilias Gamato, Electoral Commissioner of Papua New Guinea) (the petition). In that decision the Court refused to dismiss the petition on the Objection to Competency moved by the respondents to the petition. Materially, the primary Judge found that:

· the petition was non-compliant with the Election Petition Rules 2017 (EP Rules) but nonetheless in the exercise of discretion refused to dismiss the petition on that basis, and

· although grounds 1-6 of the petition should be struck out for not pleading facts, ground 7 of the petition should go to trial.

2. The effect of s220 of the Organic Law on National and Local-level Government Elections (Organic Law) is that a decision of the National Court in respect of an election petition is final and conclusive, and shall not be questioned in any way including by way of appeal. However the review jurisdiction of the Supreme Court is available under s 155(2)(b) of the Constitution: Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy(2006) SC855. The process of review was explained by the Supreme Court in Avei v Electoral Commission and Charles Maino(1998) SC584:

It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions. This can be noted in s. 155(6) of the Constitution which speaks of them as alternatives.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming it’s own judgement of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.

As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986AC 484)

“where ... fact is left to the judgement of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power....”.

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s. 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process: SC Review No. 1 of 1990, Application by Electoral Commission [1990] PNGLR 441. (Emphasis added.)

3. These statements of principle have been accepted in more recent Supreme Court decisions including Powi v Kaku(2018) SC1743 at [22]-[23], Talita v Ipatas (2016) SC1603 at [4]-[5] and in particular Electoral Commission of Papua New Guinea v Solo(2015) SC1467 at [11]-[13].We similarly affirm and adopt them.

4. Leave to apply for review was granted on 21 December 2018, and on 7 January 2019 the Supreme Court ordered a stay of the trial of the petition pending the determination of this review.

BACKGROUND

5. On 21 July 2017 the applicant was declared as the winner of the Hagen Open seat following the 2017 National elections. Thirteen candidates contested the election for the Hagen Open seat. At the time of declaration of results the applicant polled 29,280 votes, above the absolute majority of 28,426 votes on first preference votes. The first respondent (the petitioner) was the runner up, and polled 7,430 votes.

6. The petitioner filed the petition on 30 August 2017.

7. The seven grounds on which the petitioner relied were summarised by the primary Judge as “not numbered in a straightforward way”.

8. His Honour identified as grounds of the petition “Grounds 1 to 5: Illegal practices”, and noted that these grounds were set out in part B of the petition, headed “ILLEGAL PRACTICES COMMITTED BY THE FIRST RESPONDENT’S SUPPORTERS AND AGENTS AND SERVANTS OF THE SECOND RESPONDENT”. His Honour continued:

The grounds are...