SC1634

PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE] 

SCREV (EP) 2 OF 2017

AN 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:
JAMES MARAPE
Applicant

AND:
JOHNNY PHILLIP POKAYA
First Respondent
                                                     
AND:
ELECTORAL COMMISSION 
OF PAPUA NEW GUINEA
Second Respondent

       Waigani: Hartshorn J. 
                     2017: 3rd & 8th November 

SUPREME COURT - Application pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirements of Order 5 Rule 7 Supreme Court Rules to permit an application for leave to review an interlocutory decision of the National Court in an Election Petition

Cases cited: 

Waranaka v. Dusava (2008) SC942
Tom Olga v. Pias Wingti (2008) SC938
Anton Yagama v. Peter Yama (2013) SC1219
Dawa Dekana v. Nick Kuman (2013) SC1272

Counsel:

Mr. R. Leo, for the Applicant
Mr. J. Wohuinangu, for the First Respondent
Mr. M. Pokia, for the Second Respondent

8th November, 2017  
1. HARTSHORN J:  This is a decision on a contested application to dispense with the requirements of Order 5 Rule 7 Supreme Court Rules. The application is made pursuant to Order 5 Rule 39 Supreme Court Rules. The reason that dispensation is sought is because the applicant wishes to seek leave to review an interlocutory decision of the National Court concerning an Election Petition. The word “Decision” in Order 5 Rule 7 Supreme Court Rules is defined to mean in effect, that only a final decision concerning an Election Petition can be the subject of an application to review, and so dispensation of that definition is sought so that an interlocutory decision concerning an Election Petition can be the subject of an application to review.
2.   The National Court decision that the applicant seeks to review, dismissed an application to dismiss an Election Petition. 
This application
3. The applicant submits that as the decision he seeks to review is an interlocutory decision of the National Court made in an Election Petition, he requires leave to dispense with the requirements of Order 5 Rule 7 Supreme Court Rules and particularly the definition of “Decision” therein: Waranaka v. Dusava (2008) SC942; Tom Olga v. Pias Wingti (2008) SC938; Anton Yagama v. Peter Yama (2013) SC1219 and Dawa Dekana v. Nick Kuman (2013) SC1272. He submits that he is entitled to such dispensation as this is the only way under the Supreme Court Rules that the applicant is able to review an interlocutory decision of the National Court concerning an Election Petition.
Consideration
4.      It is not disputed, correctly, that the decision sought to be reviewed by the applicant is an interlocutory decision.
5.    “Decision” is defined in Order 5 Rule 7 Supreme Court Rules to mean a:
 “… final decision of the National Court made after the hearing of an election petition or an order dismissing the petition….”
6.      The applicant relies upon Order 5 Rule 39 Supreme Court Rules for the dispensation that he seeks. Order 5 Rule 39 is as follows:
“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”
7.     So Order 5 Rule 39 provides to the Court or a Judge the discretion to dispense with compliance with any of the requirements of the Rules. For there to be a dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought.
8.      In this instance Order 5 Rule 7 sets out seven separate definitions of the meaning of certain words. Nowhere in Order 5 Rule 7 are words used to convey, express or imply a requirement that has to be complied with. Expressed another way, Order 5 Rule 7 does not require anyone to do or comply with anyone or anything - it merely defines certain words.
9.     As there is no requirement in Order 5 Rule 7 and no requirement that has to be complied with, there is no compliance of a requirement that can be dispensed with. Consequently, Order 5 Rule 39 Supreme Court Rules cannot, in my view, be relied upon by the applicant for the relief that he seeks.
10.      In regard to the Supreme Court decisions relied upon by the applicant, notwithstanding that there is acknowledgement that the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules enables only a final decision to be the subject of an application for review and that there is the ability to rely upon Order 5 Rule 39 for dispensation, as far as I am aware, when dispensation with compliance with Order 5 Rule 7 has been granted, the Courts that have granted the dispensation have not had the benefit of the particular argument that this court has considered concerning the specific wording of Order 5 Rules 7 and 39 Supreme Court Rules.
11. In the absence of any Supreme Court decision that has specifically considered this argument or having done so has arrived at a contrary conclusion, I am of the view, as expressed, that Order 5 Rule 39 Supreme Court Rules is not able to be successfully relied upon by the applicant for the relief that he seeks. Given this, it is not necessary to consider the other submissions of counsel.
Orders
12.   The orders of the Court are:
a)	The relief sought in paragraph 1 of the Notice of Motion of the applicant filed 19th October 2017 is refused;
b)	The costs of the first respondent of and incidental to the hearing of the application for the relief sought in paragraph 1 of the said Notice of Motion shall be paid by the applicant.
_____________________________________________________________       Leo Lawyers:  Lawyers for the Applicant                              
Fairfax Legal: Lawyers for the First Respondent