N3336

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 55 OF 2007

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENTS ELECTIONS AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTIONS

BETWEEN

PIUS WINGTI
Petitioner

AND

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent

AND

ANDREW TRAWEN, THE ELECTORAL COMMISSIONER FOR ELECTORAL COMMISSION OF PNG
Second Respondent

AND

TOM OLGA
Third Respondent

Waigani: Kapi CJ
2008: 11, 22 April

JUDICIAL REVIEW – S 155 (2) (b) of the Constitution – Inherent power of the Supreme Court to stay proceedings pending review.

JUDICIAL REVIEW – S 155 (4) of the Constitution – Power of the Supreme Court and the National Court to stay proceedings pending review.

Counsel:
R. Pato, for the Petitioner
H. Nii, for the third Respondent

Cases cited:
Application to Review Pursuant to s 155(2)(b); 
Audak Kupil & Another v Papua New Guinea [1983] PNGLR 350 at page 384
Avia Aihi v The State (N0 1) [1981] PNGLR 81
Dick Mune v Paul Poto [1996] PNGLR 125. At page 128
Jimson Sauk Papaki v Don Pomb Polye (Unreported Judgment of the Supreme Court dated 2nd July 1999, SC616)
McHardy v Prosec Security & Communication System Ltd [2000] PNGLR 279.
Nombri Waima Ambre v The State [1995] PNGLR 453 
Premdas v Papua New Guinea [1979] PNGLR 329
SCR No 2 of 1981 [1982] PNGLR 150 

Legislations cited:
Constitution
Organic Law on National and Local Level Government Elections
Supreme Court Act
Supreme Court Election Petition Review Rules 2002 (as amended)

22 April, 2008

1.	KAPI CJ:	The Election Petition in this matter was tried by Cannings J and he determined the petition in favour of the petitioner and made the following orders:

"1. 	Pursuant to Section 212 (1) (d) of the Organic Law on National and Local Level Government Elections, there shall be a recount of ballot papers in the Western Highlands Provincial Electorate, for the 2007 General Election.

2.	The recount must include ballot papers in the five contentious ballot boxes the subject of round one of the petition and in the three ballot boxes brought to the counting centre on 6th August, 2007.

3	The recount shall be conducted at this counting centre, which shall be at Kapal House, Mount Hagen.

4	The recount shall be conducted by the Election Manager for Eastern Highlands, Jimmy Alwyn, who shall be the one person primarily responsible for appointment of counting officials, the conduct of the recount, the control and management of the counting centre and the doing of all other things to ensure the secure, efficient and transparent conduct of the recount.

5.	 Mr. Alwyn shall be assisted by the Election Manager for Chimbu Province and the Election Manager for Enga Province, who shall act under the direction and control of Mr. Alwyn. If Mr. Alwyn is unable for any reason to discharge his duties, the Election Manager for Chimbu shall act in his position until Mr. Alwyn is again available; and if the Election Manager for Chimbu is unable for any reason to discharge his duties the Election Manager for Enga shall act in the position.

6.	The recount must start on or before 14th April, 2008.

7.	The recount must finish on or before 28th April, 2008.

8.	The result of the recount must be presented to the National Court for ratification at a hearing of the Court on or before 5th May, 2008.

9.	It is declared that for the avoidance of doubt that Mr. Tom Olga remains in office as the Member for Western Highlands Provincial unless and until he loses office by virtue of a court order or the exercise of power by some other lawful authority.

10.	The Registrar of the National Court shall within 14 days after service of this order upon him, refund to the petitioner the sum of K5,000.00 security for costs paid by the petitioner pursuant to Section 209 of the Organic Law.

11.	Costs of the hearing of this petition, in respect of the period from 24th January to 14th March 2008, shall be paid by the 2nd respondent to the petitioner and the 3rd respondent, on a party – party basis, to be taxed if not agreed.

12.	Parties are at Liberty to apply for variation of these orders, by notice in writing, faxed to the associate to the presiding Judge, with copies to all other parties, and the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with.

13..	The person responsible for conducting the recount and any party to the petition is at Liberty to apply to the court for an order to resolve any issue arising during the course of the recount, by notice in writing, faxed to the associate to the presiding Judge, with copies to all other parties; and the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with." 

2.	The third respondent has filed an application for leave for judicial review of the decision of the National Court. The validity of the requirement for leave for judicial review under the Supreme Court Election Petition Review Rules 2002 (as emended) (Rules) Sub-Rule 2 has been raised in SCR 5 and 6 of 2008. I heard this preliminary issue in the two reviews and I handed down my decision yesterday (21st April 2008).

3.	The leave for judicial review in this matter has been adjourned to await the decision in SCR 5 & 6 of 2008. Now that the decision has been handed down, the parties may set down their leave for reviews to be argued on their merits.

4.	Furthermore, the lawyer for the third respondent has filed a notice of motion in the National Court in EP 55 of 2007 on the 9 April 2008 seeking orders:

1.	for stay of the National Court orders of the 14 Mach 2008 under s 155 (4) of the Constitution.

2.	In the alternative, he seeks orders by way of ad-hoc directions be given by the National Court pursuant to section 185 of the Constitution for the purposes of affecting a stay.

5.	This application was brought before me on Friday the 11 April 2008 on the basis that it was urgent. Counsel submit that the order for recount is scheduled to commence on Monday 14 April 2008 and it is argued that if the recount is completed, it may prejudice the third respondent's right to review and may render the review nugatory. I heard this on the basis of urgency and reserved my decision.

6.	Under the Supreme Court Election Petition Review Rules 2002 (as amended) (Rules), sub-division 11 provides that an application for leave to review does not operate as a stay. However, unlike s.19 of the Supreme Court Act, the Rules do not provide for a court or a judge to consider and determine a stay of proceedings. 

7.	This application is brought pursuant to s 155 (4) of the Constitution. Before I consider the application of s 155 (4), I will deal first with the alternative argument raised by counsel for the third respondent on s 185 of the Constitution. 

8.	Counsel raised the applicability of s 185 of the Constitution as an alternative basis for making a stay order. 	

9.	The provision of ad-hoc directions under s 185 is applicable where there is a lack of provision on matters of practice and procedure as is illustrated by Nombri Waima Ambre v The State [1995] PNGLR 453 and Dick Mune v Paul Poto [1986] PNGLR 125. 

10.	The issue of whether there is power to grant stay under s 155 (4) is not a matter of practice and procedure. It is a question of substantive law and deals with jurisdiction of the Court. I do not consider that s 185 of the Constitution is relevant to the issue before me.

11.	Section 155 (4) is in the following terms:

"(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

12.	The following issues arise for consideration:

1.	Do the terms of s 155 (4) give the applicant a right to protect or enforce an interest by way of stay of an order of the National Court pending the determination of review under s 155(2)(b)?

2.	If the provision authorizes such an order, do the Supreme Court and the National Court have concurrent jurisdiction?

13.	Counsel for the third respondent submits that the right of review given by s 155 (2) (b) may be protected by an order made in accordance with the terms of the second limb of s 155 (4) in appropriate cases. He submits that if such an order is not made, the enforcement of the order for recount may prejudice the right of review under s 155 (2) (b) of the Constitution.

14.	On the other hand, counsel for the petitioner submits that the trial judge (Cannings J) is seized of this matter and the issue of stay should go back before him to deal with. I do not consider that the presiding judge should deal with the issue of stay as he might be prejudiced against granting a stay after having dealt with the merits in the petition.

15.	In the alternative, he submits that the National Court has no jurisdiction as the Organic law and the Rules do not expressly provide for such jurisdiction. He concedes that such an application may be heard by the Supreme Court but not so by a single judge of the Supreme Court nor a judge of the National Court.

16.	The meaning of s 155 (4) has been considered in numerous cases within other context. An examination of these cases may assist in determining whether the terms of s 155 (4) is applicable to stay of proceeding pending a review under s 155 (2) (b). Therefore, it is not necessary to refer the question of the application of s 155(4) to the Supreme Court under s 18(2) of the Constitution. The Supreme Court has in numerous cases clarified the meaning of s 155 (4) of the Constitution.

17.	The section was first considered in Avia Aihi v The State (N0 1) [1981] PNGLR 81. I described the nature of s 155(4):

"The orders that can be made under section 155 (4) of the Constitution are based on two assumptions. Firstly the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power or jurisdiction to make the order sought. The provision it self does not give the right and power.

In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject."

18.	Kearney DCJ at page 91 stated:

"I agree with views of Prentice CJ and Andrew J in Constitutional Reference No 1 of 1979; Premdas v Papua New Guinea [1979] PNGLR 329 that the Constitution, s 155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of individual case as to ensure that the primary rights of parties before them are protected."

19.	In SCR No 2 of 1981]1982] PNGLR 150, Kidu CJ at page 155 expressed the view which is consistent with the views of Kearney DCJ:

"The provision under reference is worded in very wide terms. It does not, however, vest in the National Court or the Supreme Court the power to make orders which confer rights or interest on people. Such rights or interests are determined by other constitutional law, statutes and the underlying law. Section 155 (4) exist to ensure that the rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement."

20.	Bredmeyer J in Audak Kupil & Another v Papua New Guinea [1983] PNGLR 350 at page 384 expressed the same view on s 155(4).

21.	The Supreme Court has dealt with the application of s 155 (4) in staying orders of the National Court pending review under s 155(2)(b). The first case is Dick Mune v Paul Poto [1996] PNGLR 125. At page 128 the Court applied combined effect of s 155(2)(b) and s 155 (4) to stay proceedings of the National Court pending the s 155(2)(b) review. The Court did not fully discuss the reasons for this conclusion.

22.	In Application to Review Pursuant to s 155(2)(b); Jimson Sauk Papaki v Don Pomb Polye (Unreported Judgment of the Supreme Court dated 2 July 1999, SC 616) the court considered the application to stay the National Court orders under s 155(4) pending the s 155(2)(b) review. The Court stated:

"In our view, this application is misconceived as there is no sound legal basis."

23.	Later on in the judgment, the Court held:

"A person aggrieved by a decision of the National Court under OLNE, in particular a person whose election has been declared void or unduly elected, has no right of appeal under the primary legislation, that is the OLNE. The inherent power of the Supreme Court under s 155(2)(b), is a power which may invoke but the exercise of that power by the Supreme Court is discretionary. It is arguable whether an applicant invocation of the review jurisdiction of the Supreme Court is as of right. If it were then, the likely success of that review could be protected by a stay order under s 155(4). The point was not argued before us and we are not in a position to decide it. All we can say now is that it would not be proper to utilize Constitution s 155(4) to defeat the clear dictates intention of s 226 that a person whose election declared void or unduly elected is final and conclusive, and for all intent and purposes he ceases to be a member of the Parliament until another person is elected to fill the existing vacancy created by his departure or the Supreme Court makes an order otherwise."

24.	The critical question in determining the applicability of s 155(4) was posed by the Supreme Court. Unfortunately, the issue was not argued and the Court did not deal with the issue. For this reason, I cannot regard this case as deciding the point in issue and therefore I cannot regard it as binding on me.

25.	The inherent power of the Supreme Court to review a decision of the National Court under s 155(2)(b) is undoubtedly a right. If the right is in any way threatened, affected or prejudiced, appropriate orders may be made within the wide terms of s 155(4). My analysis of the terms of s 155(4) "in such circumstances it seems to it proper….such other orders as are necessary to do justice in the circumstances of a particular case" are expressed in wide terms, the kinds of orders that may be made include interim orders to prevent prejudice to the claims of parties or any relevant directions to do justice pending the determination of the review.
 
26.	Counsel for the Petitioner concedes that while the Supreme Court has jurisdiction to grant stay, the National Court has no such jurisdiction. Whilst it is true that there is no expressed provision for a single judge to grant stay in the Rules and the Organic Law, such jurisdiction is granted by the expressed terms of s 155 (4). Both the Supreme Court and the National Court have the same powers. I would dismiss the submission by council for the petitioner that the National Court has no jurisdiction.

27.	For the purposes of determining the kinds of factors and circumstances that the Court will consider in exercising its discretion, I would adopt the principles established by the Supreme Court for stay pending an appeal. These considerations are set out in McHardy v Prosec Security & Commuication System Ltd [2000] PNGLR 279. The factors and circumstances set out in above-named case are only a guide and cannot be regarded as hard and fast preconditions. I will indicate their applicability to election cases. The considerations include 

•	That the judgment creditor is entitled to the benefits of the judgment. This is the first premise and is applicable.

•	Whether leave has been obtained. The question of leave is required by sub-division 1 r 2. This has not come before the Court and has been adjourned to be determined later. The question of leave is important because it determines whether the review progresses beyond this point. If leave is refused, that would be the end of the review. For this reason the issue of leave for review must be determined before a stay application. This will involve whether there is an arguable case and whether there a gross error of law for the matter to go to the Supreme Court. 

•	Whether there has been delay in making the application. This may not be a critical issue in election cases as the Rules determine a short period of time in which to determine judicial review speedily.

•	Possible hardship, inconvenience or prejudice to either party. This is applicable to election petitions. I will return to this matter later.

•	The nature of judgment sought to be stayed. The nature of review under s 155 (2)(b) is different. The grounds of review are different to the grounds in an appeal. The nature of grounds of review will be fully addressed on the question of leave for review. As I pointed out earlier, this will be determined later when considering the merits on leave. 

•	The financial ability of the applicant. The financial ability is taken into account as there is a deposit of K5,000.00 required on filing leave for review as security for costs. The financial ability may not be a crucial issue. 

•	Preliminary assessment about whether the applicant has an arguable case on the proposed review. This is a relevant consideration in considering leave for judicial review. As I have pointed out this has yet to be dealt with.

•	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure. This is also applicable to election cases and may be considered at the leave stage.

•	The overall interest of justice. It is relevant and applicable.

•	Balance of convenience. Applicable and relevant.

•	Whether damages may be sufficient remedy? This may not be applicable to election cases.

28.	This list is not exhaustive. There may be other considerations. All the guidelines need not be applied in every case. Only the relevant considerations may be applied.

29.	The relevant consideration in this matter is to consider whether there is hardship or inconvenience or prejudice by the order for recount of ballot papers.

30.	The first thing I notice is that there is an order for the third respondent to continue in office. No reason has been put forward to stay this particular order.

31.	The critical orders which might affect the interest of the third respondent relate to order under paragraph 2 which directs that the recount must include 5 contentious ballot boxes in the round one of the petition and three ballot boxes brought to the counting centre on 6 August 2007.

32.	The grounds of review challenge the reasons for the recount. Whether leave will be granted is yet to be dealt with. For the present purposes, the recount which ought to have commenced on 14th April may prejudice the right to review the basis for including those boxes in the recount. I have considered whether a stay would prejudice the interests of the petitioner. Considering the overall interests of justice for all parties a stay would not prejudice any of the parties. I would stay the orders for the recount.

33.	Counsel for the third respondent seeks interim order of stay until the question of leave is dealt with. Accordingly, I would stay the orders set out in paragraphs 1 to 8 of the orders of the National Court dated 14 March 2008 until the issue of leave for review is heard and determined.
________________________________

Steeles Lawyers: Lawyers for the Petitioner
Harvey Nii Lawyers: Lawyers for the Third Respondent