SC1718

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev (EP) 30 of 2018

APPLICATION UNDER S. 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:
PETER WARARU WARANAKA
Applicant

AND:
RICHARD MARU
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2018: 7th & 13th August

Application pursuant to Order 5 Rule 39 Supreme Court Rules for dispensation from the requirements of Order 5 Rule 11 – Application for dismissal of Application for Leave for Review pursuant to Order 5 Rule 37(a) Supreme Court Rules

Cases cited:

Wari James Vele v. Powes Parkop (2008) SC945
Hami Yawari v. Anderson Agiru (2008) SC948
Counsel:

Mr. J. Kolo, for the Applicant
Mr. P. Mawa, for the First Respondent
Mr. M. Ninkama, for the Second Respondent
13th August, 2018

1. HARTSHORN J: This is a decision on contested applications for dispensation with the requirements of Order 5 Rule 11 Supreme Court Rules and for the dismissal of the application for leave for review. It was agreed that both applications would be heard together. 

Background

2. The first respondent was declared the elected Member of Parliament for the Yangoru Sausia Open Electorate in the 2017 General Elections. The primary judge dismissed the applicant’s election petition on 31st May 2018 after upholding the respondents’ objections to competency. The applicant filed this application for leave for review on 13th June 2018.

Application for dispensation

3. The applicant seeks pursuant to Order 5 Rule 39 Supreme Court Rules, to be granted dispensation with the requirement to annex a copy of the judgment and order of the National Court to the supporting affidavit of the applicant, as required under Order 5 Rule 11 on the grounds that:

a)	The written judgment of the National Court had not been provided by the primary judge when the time for the application for leave for review to be filed expired;

b)	The delay in applying for this dispensation was caused by the inaction 	of two other lawyers who were acting for the applicant in this proceeding before his current lawyers. The current lawyers made the dispensation application as soon as they were instructed to act for the applicant;

c)	Interests of justice. 

4. The respondents’ submit that the application for dispensation should be refused as:

a)	The application is a reaction to the dismissal applications filed by the first respondent and so is not made in good faith;

b)	The formal order of the National Court taken out by the first 	respondent was on the court file and so could have been obtained by the applicant. Alternatively, the applicant could have taken out a formal court order himself but he did not;

c)	The dispensation sought if granted, will not permit the Supreme Court to know what orders were made by National Court and the reasons for the orders;

d)	It would not be in the interests of justice.

Consideration

5. In Wari James Vele v. Powes Parkop (2008) SC945 (Davani, Lay. Hartshorn JJ) at [23], the Supreme Court said:

“23. As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required.  There has to be some reasonable explanation.  The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit.  Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent's conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay.”

6. As to the delay in making the application for dispensation being because of the applicant’s previous lawyers alleged failures, as the Supreme Court in Hami Yawari v. Anderson Agiru (2008) SC948 (Sakora, Cannings, Hartshorn JJ) said at [18]:

“If Mr. Yawari attributes the reason for there being no application made under Rule 32 to his former lawyers (or his present lawyers as no such application has been filed to date) this is not in our view a satisfactory reason. It has been held on numerous occasions in this jurisdiction that the failure of a person's lawyer is not a good reason for the granting of an extension of time: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110.”  

7. In regard to whether, if the dispensation sought is granted, it will enable all of the issues in contention to be promptly put before the Court, if the dispensation sought is granted, this Court will not have the benefit of the National Court judgment and order. The purpose of Order 5 Rule 11 to my mind, is for the Supreme Court to have before it the order of the National Court and the reasons for the order by way of the judgment so that the Supreme Court may determine whether there is a basis or bases for an application for leave for review to be granted. This will not occur if the requirement to provide the judgment and order is dispensed with. Not providing the Supreme Court with a copy of the judgment and order of the National Court may cause prejudice to all parties and the Court and in my view, is not in the interests of justice.

8. To my mind, the applicant should have applied for an extension of time to file his application for leave for review under Order 5 Rule 14 Supreme Court Rules until a time after the primary judge had made his judgment available, but he did not.

9. Consequently, for the above reasons the applicant’s application for dispensation is refused.

Application to dismiss

10. The first respondent supported by the second respondent, applies pursuant to Order 5 Rule 37(a) Supreme Court Rules, by amended application filed 12th July 2018, for the application for leave to review to be dismissed on the grounds that the applicant:

a)	Did not comply with Order 5 Rule 11 Supreme Court Rules at the date of filing of the application for leave for review as a copy of the order of the National Court was not annexed to the affidavit of the applicant, as required;

b)	Has not paid detailed and constant attention to the prosecution of the application for leave for review and has not sought dispensation from compliance with the requirements of Order 5 Rule 11 Supreme Court Rules or sought an amendment of its application; 

c)	Failed to treat this application for leave for review as a special matter and has not complied with the principles stated in Vele v. Parkop (supra) and Yawari v. Agiru (supra) concerning compliance with the Supreme Court Rules.

11. The applicant submits that the first respondent’s application for dismissal is defective, has been brought on an incorrect basis and is therefore not properly before this court. I will consider the applicant’s submissions in this regard first.	

12. The applicant submits that as the application of the first respondent filed 29th June 2018 was defective because of want of form, which is conceded by the first respondent, the amended application which purports to amend an application that is defective, suffers the same fate. The application of the 29th June 2018 should have been withdrawn instead of being amended, submits the applicant.

13. The first respondent submits that the amended application was filed upon the first respondent’s own initiative and the applicant has not applied to strike out either of the applications.

14. The amended application of the first respondent is in accordance with Form 4 of the First Schedule to the Supreme Court Rules, apart from the word “Amended”. There is no reference in the amended application to the application filed 29th June 2018. The jurisdiction pursuant to which the order for dismissal is sought in the amended application is stated and is correct. Notwithstanding that it is titled “Amended Application”, it remains an application and in my view is able to stand on its own. It is not tainted by the previous application filed 29th June 2018. Further, this court was not referred to any Supreme Court Rule that precludes or prohibits an amended application, and I am not aware of any such Supreme Court Rule. I am satisfied that the amended application is not defective and the first respondent is able to rely upon it.

15. The first respondent submits that the application for leave for review should be dismissed as:

a)	It is not disputed that the applicant has not complied with Order 5 	Rule 11 Supreme Court Rules by not annexing a copy of the formal order of the National Court to the supporting affidavit of the applicant;

b)	It is not disputed that the applicant did not annex a copy of the written 	judgment of the National Court to the supporting affidavit of the 	applicant and has not filed a supplementary affidavit with a copy of the judgment annexed after the judgment became available on 21st June 2018;

c)	The applicant did not pay attention that was constant and detailed to the prosecution of the application for leave for review such that the non-compliance with Order 5 Rule 11 was detected earlier;

d)	The applicant did not treat the application for leave for review as a special matter, contrary to the principles stated in Vele v. Parkop 	(supra) and Yawari v. Agiru (supra);

e)	No reasonable explanation has been given for the non-compliance of a mandatory rule;

f)	The applicant did not take out formal orders once the decision of the National Court was orally delivered on 31st May 2018 and did not uplift a sealed copy of the order taken out by the first respondent;

g)	The applicant did not take any proactive and meaningful steps to 	diligently prosecute his application for leave for review until after the 	application to dismiss and the amended application to dismiss were filed. This delay is one month and 2 ½ weeks and in the context of an application for leave for review is unreasonable, inordinate and 	prejudicial to the first respondent;

h)	The applicant should have, but did not, file an application for extension of time pursuant to Order 5 Rule 14 Supreme Court Rules;

16. In addition, the first respondent relies upon the following passage from [9] Yawari v. Agiru (supra):	

“….. the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. …… This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament.”

17. The first respondent submits further, that the undue and inordinate delay in the efficient disposal of this proceeding is detrimental not only to the interest and welfare of the people of the subject electorate but also the first respondent who is entitled to enjoy the fruits of his judgment from the National Court.

18. The applicant did not make any submissions in opposition to the application for dismissal apart from submitting that, the amended application for dismissal of the first respondent is defective. I have dealt with these submissions. 

Consideration

19. Order 5 Rule 37 (a) Supreme Court Rules, upon which the first respondent relies is as follows:

“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;….”

20. When regard is had to the statement by the Supreme Court in Yawari v. Agiru (supra) relied upon by the first respondent, and when the prosecution of this application for leave for review is considered in relation to the standard required by the Supreme Court in numerous statements in its interpretation of the Supreme Court Rules concerning election petition reviews, I am satisfied that the applicant has been found wanting. Further, it is not disputed that the applicant has failed to comply with Order 5 Rule 11 Supreme Court Rules and has failed in its application to dispense with the requirements of that Rule.

21. From a perusal and consideration of the evidence and submissions, and taking into account the comments of the Supreme Courts in Vele v. Parkop (supra) and Yawari v. Agiru (supra), I am satisfied that the first respondent supported by the second respondent, is entitled to the relief that he seeks. Given this it is not necessary to consider the other submissions of counsel.

Orders

22.  It is ordered that:

a)	The relief sought in the application of the applicant filed 31st July 2018 is refused;

b)	The relief sought in the amended application of the first respondent filed 12th July 2018 is granted;

c)	This application for leave for review is dismissed;

d)	The applicant shall pay the costs of both respondents of and incidental to this application for leave for review.
_____________________________________________________________
Kolo & Associates Lawyers: Lawyers for the Applicant                                   
Mawa Lawyers: Lawyers for the First Respondent                       
Harvey Nii Lawyers:  Lawyers for the Second Respondent