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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO 21 OF 2023
GRAHAM PINIAU RUMET
Applicant
V
DR ALLAN MARAT
First Respondent
ELECTORAL COMMISSION
Second Respondent
Waigani: Cannings J
2023: 18th October, 1st November
ELECTION PETITION REVIEWS – application for dismissal of Supreme Court notice of motion on ground of abuse of process – Supreme Court Rules 2012, Order 13 rule 16(1)(a) – whether form of application compliant with Supreme Court Rules – whether there can be any further proceedings after decision of single Supreme Court Judge to refuse leave for review of decision of the National Court in an election petition – Supreme Court Rules 2012, Order 5 rule 17 – whether conflicting Supreme Court decisions on point of law warrant appointment of five-Judge Supreme Court bench.
The National Court upheld an election petition by the first respondent, declaring that he was the duly elected member. The applicant, who was the previously declared successful candidate, then applied to the Supreme Court for leave to review the decision of the National Court. His application for leave was refused by a single Judge of the Supreme Court. He was dissatisfied with the decision of the single Judge and applied, by notice of motion under Division 11.13 of the Supreme Court Rules, to the full court of the Supreme Court, seeking the same orders as were sought before the single Judge. The first respondent responded by filing an application under Order 13 rule 16(1)(a) of the Supreme Court Rules for summary dismissal of the notice of motion for abuse of process. The first respondent relied on Order 5 rule 17 of the Supreme Court Rules, which provides that the decision of a single Judge in an election petition review matter is final and shall not be subject to further review. At the hearing of the application for summary dismissal the applicant argued that the application for summary dismissal was incompetent as it was in an improper form and did not state any grounds, and in any event it was without merit as there was conflicting Supreme Court authority on the issue of whether a notice of motion under Division 11.13 (Order 11 rules 25-27) of the Supreme Court Rules is a proper process to follow after a decision of a single Judge to refuse leave, and the issue could only be resolved by asking the Chief Justice to appoint a five-Judge bench to settle the question.
Held:
(1) The application for dismissal was in form 11 of the Rules, which is the proper form for an application for summary dismissal. The application was not incompetent.
(2) There is no recent Supreme Court decision that conflicts with two very recent Supreme Court decisions (Nomane v Mori & Electoral Commission (2023) SC2412 and Electoral Commission v Pruaitch & Mise (2023) SC2416) that say that the decision of a single Judge of the Court on a leave application is final and there can be no review or appeal from or challenge to it and no remaking the same application to the full court of the Supreme Court.
(3) It is unnecessary for the issue of whether a notice of motion under Division 11.13 of the Supreme Court Rules is a proper process to follow after a decision of a single Judge to refuse leave in an election petition review matter should be referred to a Supreme Court consisting of more than three Judges.
(4) The applicant’s notice of motion was an attempt to make the same application that was refused by the single Judge to the full court of the Supreme Court. No jurisdiction for a hearing de novo of the same application exists. The notice of motion was an abuse of process. Application for dismissal granted.
Cases Cited
The following cases are cited in the judgment:
Electoral Commission v Pruaitch & Mise (2023) SC2416
Graham v Klatt (2022) SC2287
Manase v Polye & Electoral Commission (2020) SC1975
Marat v Rumet & Electoral Commission (2023) N10203
Munziong v Seneka [2013] 2 PNGLR 79
Nomane v Mori & Electoral Commission (2023) SC2412
Popuna v Owa (2017) SC1564
Powi v Kaku & Electoral Commission (2019) SC1856
Rumet v Marat & Electoral Commission SCREV (EP) 20 of 2023, 06.07.23, unreported
Counsel
L A Jurth & E Wembri, for the Applicant
G Purvey & L Painap, for the First Respondent
R William, for the Second Respondent
1st November 2023
1. CANNINGS J: I am ruling on an application for summary dismissal of a Supreme Court notice of motion in an election petition review case.
2. On 31 March 2023 the National Court, constituted by Justice Manuhu, upheld an election petition, EP 4 of 2022, brought by Dr Allan Marat (the first respondent) who challenged the election of Graham Piniau Rumet (the applicant) as member for Rabaul Open in the 2022 general election (Marat v Rumet & Electoral Commission (2023) N10203). His Honour declared that the applicant, who was originally declared the successful candidate, was not duly elected and that the first respondent was the duly elected member for Rabaul Open.
3. The applicant applied to the Supreme Court for leave to review under s 155(2)(b) of the Constitution the decision of the National Court, invoking the procedure in Division 5.2 (election petition reviews) of the Supreme Court Rules 2012.
4. The leave application was heard by a single Judge of the Supreme Court, Justice Hartshorn, and on 6 July 2023 his Honour refused leave (Rumet v Marat & Electoral Commission SCREV (EP) 20 of 2023, 06.07.23, unreported).
5. The applicant was dissatisfied with the refusal of leave and on 26 July 2023 filed an application, by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules, to the full court of the Supreme Court, seeking the same orders as were sought before Hartshorn J. Order 11 rules 25 and 26 are in Division 11.13 (appeal & application to court from orders or directions of judge), the whole of which states:
6. The first respondent responded by filing on 22 September 2023 an application under Order 13 rule 16(1)(a) of the Supreme Court Rules for summary dismissal of the notice of motion on the ground of abuse of process. This provision states:
The Court or a Judge may summarily determine a matter ... on application by a party.
7. The first respondent argues that the notice of motion is prohibited by Order 5 rule 17 of the Supreme Court Rules, which states:
A decision to grant or a refusal to grant leave is final and shall not be subject to further review.
8. The first respondent argues that the decision of Hartshorn J was final and therefore the applicant’s notice of motion is an abuse of process.
9. At the hearing of the application for summary dismissal the applicant’s counsel, Mr Jurth, submitted that the application is incompetent for being in an improper form, and in any event it has no merit.
10. Mr Jurth submitted that there is conflicting Supreme Court authority on the issue of whether a notice of motion under Division 11.13 of the Supreme Court Rules is a proper course of action for a person dissatisfied with a single Judge’s decision on a leave application. The issue can only be settled if a five-Judge Supreme Court bench is appointed to hear and resolve the conflicting authorities.
11. The second respondent, the Electoral Commission, adopted a neutral position.
12. The following issues arise:
12. Mr Jurth, for the applicant, submitted that the application for summary dismissal of the notice of motion is incompetent as it has been made in an improper form and has not stated the grounds of the application. The application has been made in form 11 of the Rules, when it should have been made in form 4. He relies on Order 13 rule 15 of the Supreme Court Rules, which states:
All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4.
13. I reject that submission. I uphold the submission of Mr Purvey, for the first respondent, that the application for summary dismissal is not an interlocutory application and does not fall within Order 13 rule 15. It is an application for summary disposal of the notice of motion. It is proper and sufficient that it be in form 11 as it is akin to an application for summary disposal of a proceeding for want of prosecution, which is made in form 11 (Graham v Klatt (2022) SC2287).
14. Although form 11 does not require a statement of the grounds on which the application is based, it is adequately stated in the application filed 22 September 2023 that the ground of dismissal relied on is “abuse of process”. No prejudice is caused to the applicant by the lack of further detail. The objection to competency is refused.
2 IS THE NOTICE OF MOTION AN ABUSE OF PROCESS?
15. Mr Jurth submits that the question of summary dismissal of the applicant’s notice of motion is a discretionary matter. The discretion should be exercised carefully; and it should not be exercised against the applicant. He submits that although there might seem in the light of some recent Supreme Court cases to be no jurisdiction that would enable the applicant’s notice of motion to be heard, there is a conflict in the authorities, which makes it proper to at least allow the notice of motion to progress to a hearing before the full court of the Supreme Court.
16. Mr Jurth further submits that the best way to resolve the conflict would be for me to make a formal request to the Chief Justice to appoint a Supreme Court bench consisting of more than three Judges, which has been the composition of the Court in the cases that have grappled with this issue. He submits that the request should be for five Judges to be appointed.
17. I agree that determination of the first respondent’s application for summary dismissal involves an exercise of discretion and that it must be exercised judicially and cautiously.
18. However, if there is no jurisdiction for the applicant to invoke, his notice of motion will be an abuse of process and open to summary dismissal. Any improper use of the Court’s processes – and this includes attempting to invoke a jurisdiction that does not exist – is an abuse of process, giving rise to a discretion on the part of the Court to dismiss the process involved (Munziong v Seneka [2013] 2 PNGLR 79, Popuna v Owa (2017) SC1564).
19. I also agree that if there is a conflict in the previous cases on whether there is jurisdiction to allow a notice of motion of the sort filed by the applicant to be made, the best thing to do would be to refuse the summary dismissal application and allow the notice of motion to be heard by the full court of the Supreme Court, and probably to make a formal request to the Chief Justice to appoint a bench consisting of at least five Judges.
20. So, is there a conflict in the authorities?
One line of authority
21. Let’s start with the two very recent cases highlighted by Mr Purvey, Nomane v Mori & Electoral Commission (2023) SC2412 and Electoral Commission v Pruaitch & Mise (2023) SC2416.
22. In Nomane the applicant applied before a single Judge of the Supreme Court for leave to review the decision of the National Court to refuse his objection to competency of an election petition. Leave was refused. Dissatisfied with the refusal of leave the applicant applied by notice of motion to the full court of the Supreme Court under Order 11 rules 25 and 26 of the Supreme Court Rules for leave to review the National Court decision. He stressed that his application was a fresh application to the full court, which he was entitled to make under Order 11 rules 25 and 26 and was neither an appeal against nor an application for review of the single Judge’s decision.
23. The first respondent (the petitioner in the election petition) argued as a preliminary point that the application should be refused without consideration of its merits as it was prohibited by Order 5 rule 17 of the Supreme Court Rules. The Court (Cannings J, David J, Kassman J) agreed and summarily dismissed the application. It was held:
Order 5 rule 17 is a specific rule dealing with the subject matter of the rights of parties dissatisfied with the decision of a single Judge in a specific circumstance: an application for leave to review a decision of the National Court in an election petition. Order 5 rule 17 is in Division 5.2 of the Supreme Court Rules. Division 5.2 consists of Order 5 rules 7 to 48, which provide a code of practice and procedure for election petition reviews.
In our view Order 5 rule 17 manifests a clear intention to prohibit any appeal against or review of the single Judge’s decision, and to prohibit also making the same application to the full court of the Supreme Court seeking the same relief sought before the single Judge.
24. In Pruaitch the applicant, the Electoral Commission, applied to a single Judge of the Supreme Court for leave to review the decision of the National Court to refuse its objection to competency of an election petition. The Judge summarily determined the leave application for abuse of process, on the ground that the Electoral Commission was not a party “aggrieved” by the National Court decision. Dissatisfied with the summary determination of its application, the applicant applied by notice of motion to the full court of the Supreme Court under Order 11 rule 25 of the Supreme Court Rules for orders setting aside or quashing the single Judge’s order, reinstating the application for leave and hearing and determining it on its merits.
25. The Court (Cannings J, David J, Berrigan J) ruled that the notice of motion was not properly before the Court:
Order 5 rule 17 provides that the decision to refuse leave is final, and that is the end of the matter.
Order 5 rule 17 means what it says. It means Hartshorn J’s decision of 30 May 2023 to summarily determine the leave application is final. There is no appeal against it, no review of it, and no right to move a motion seeking to set aside or quash Hartshorn J’s decision or to reinstate the leave application and have it heard and determined by the full court of the Supreme Court.
26. The decisions in Nomane and Pruaitch were made on 30 June and 5 July 2023 respectively, only four months ago. There is another full court decision made three years ago, Manase v Polye & Electoral Commission (2020) SC1975, in which the reasoning was similar.
27. In Manase the applicant was granted leave to review decisions of the National Court in an election petition. When the first respondent, being dissatisfied with the granting of leave, filed a notice of motion under Order 11 rule 25 of the Supreme Court Rules to “appeal” against the decision of the single Judge of the Supreme Court who granted leave, the applicant objected to its competency. Bear in mind that before Order 11 rule 26 was amended by the Supreme Court (Miscellaneous Amendments) Rules 2022 it provided for an appeal against a single Judge’s decision, not a fresh application seeking the same orders as were sought before the single Judge. It previously stated:
Proceedings under rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.
28. The Court (Kirriwom J, Cannings J, Yagi J) upheld the objection to competency and ruled that the notice of motion was not properly before it, due to Order 5 rule 17:
Order 5 rule 17 of the Supreme Court Rules is clear and express in its effective prohibition of appeals under Order 11 rule 25 against decisions to grant leave. ...
Order 5, Rule 17 is a very specific rule that is confined to a very specific category of decisions to grant or refuse leave: decisions made regarding election petition reviews. The rule is contained in Division 5.2 (election petition reviews). It overrides the general provision, Order 11 rule 25, on which Mr Polye has relied, to file the notice of motion filed ... The general rule, Order 11 rule 25, must give way to the specific rule, Order 5 rule 17, due to Order 11 rule 1, which provides:
The rules contained in this part apply to all matters brought under these Rules unless in these Rules, the contrary intention appears.
The intention of Order 11 rule 25 is to allow a party who is dissatisfied with a direction or order of a single Judge to appeal (by notice of motion) to the full court. The contrary intention appears in Order 5 rule 17: to prohibit such appeals in election petition reviews.
29. So, there is a clear line of authority in the full court decisions in Nomane, Pruaitch and Manase that Order 5 rule 17 makes a single Judge decision on leave – to grant leave or refuse leave – final.
Another line of authority?
30. Mr Jurth submits there is another line of authority that says the opposite: that a party dissatisfied with the decision of a single Judge on a leave application in an election petition review can approach the full court of the Supreme Court by notice of motion under Order 11 rules 25 and 26 and seek the same orders that were sought before the single Judge. The case he cites is Powi v Kaku & Electoral Commission (2019) SC1856.
31. In Powi the applicant was refused leave by a single Judge of the Supreme Court for review of a decision of the National Court on an objection to competency of an election petition. He applied by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules by way of an appeal against the single Judge’s decision. Just as with Manase this case was decided prior to the 2022 amendment to rule 26. It was an appeal to the full court against the single Judge’s decision, not as it is now a fresh application to the full court seeking the same orders that were sought before the single Judge.
32. The first respondent objected to competency of the notice of motion on two grounds. First that Order 11 rule 25 only applies to appeals, not reviews. Secondly, that applications for review of interlocutory decisions of the National Court were prohibited by the definition of “decision” (means a final decision of the National Court after the hearing of an election petition) in Order 5 rule 7.
33. The Court (Kandakasi DCJ, Mogish J and Dingake J) refused the objection to competency and under Order 5 rule 39 dispensed with the requirements of the Rules prohibiting review of interlocutory decisions of the National Court and permitted the leave application (which had been refused by the single Judge) to be reheard. Kandakasi DCJ gave the leading judgment and Mr Jurth cites paragraph 11 from it to argue that this case conflicts with the decisions in Nomane, Pruaitch and Manase. His Honour stated:
It was obvious to us when dealing with the objection to the competency by Pr Kaku that the provisions of s 10 of the Supreme Court Act and the provisions of O 11, rr 25 and 27 of the Rules empowers in clear terms a party who is denied an application or a relief sought from a single Judge of the Supreme Court to apply to the full Court. For that purpose, O 11, r 27 preserves the proceeding for the aggrieved party to make his or her application to the full Court. By virtue of r 26, an application to the full Court is to be treated as an appeal under Order 10 and the provisions on appeal under that provision apply with appropriate modification. Hence, we came to the decision that, by virtue of the provisions of O 11, rr 1, 25, 26 and 27 of the Rules and s 10(2) of the Supreme Court Act, the provisions of O 11, rr 25-27 apply to applications for review under s 155(2)(b) of the Constitution out of election petitions.
34. Mr Jurth points out that both Mogish J and Dingake J agreed with his Honour’s reasoning and conclusion that Order 11 rules 25-27 apply to election petition reviews. He argues that in none of the decisions in Nomane, Pruaitch and Manase did the Supreme Court overrule or even mention the decision in Powi, so it stands in conflict with those three decisions, and the question of which approach is correct must be brought before the full court of the Supreme Court for resolution, and there should be five Judges.
Conflicting authority?
35. The striking thing to note about paragraph 11 of Kandakasi DCJ’s judgment and the 97 other paragraphs making up his Honour’s 38-page dissertation on the meaning and effect of Order 11 rules 25 to 27 of the Supreme Court Rules is that no attention was paid to Order 5 rule 17. It was not mentioned. It was the critical provision but it was not addressed by his Honour, and it was also not addressed by Mogish J or Dingake J.
36. Their Honours’ attention was focussed on the then restrictive definition of “decision” in Order 5 rule 7 (which has since been amended by the Supreme Court (Miscellaneous Amendments) Rules 2022). The concern was that to purport to prohibit reviews of interlocutory decisions of the National Court in election petition cases was an unconstitutional curtailment of the review jurisdiction of the Supreme Court in s 155(2)(b) of the Constitution.
37. While the Supreme Court in each of Nomane, Pruaitch and Manase squarely addressed Order 5 rule 17, the Supreme Court in Powi did not mention it.
38. There is therefore no conflict between on the one hand Nomane, Pruaitch and Manase and on the other hand Powi.
Conclusion on abuse of process
39. The law is clear. It has been stated by the full Court of the Supreme Court on two separate occasions in the last four months: in election petition review matters Order 5 rule 17 of the Supreme Court Rules makes a single Judge decision on leave – to grant leave or to refuse leave – final. There is no appeal against it. There is no review of it. There is no challenge to it. There is no making the same application to the full court of the Supreme Court in a de novo hearing. Order 5 rule 17 means what it says: a decision to grant or a refusal to grant leave is final.
40. Hartshorn J’s decision of 6 July 2023 to refuse leave to the applicant is final. That’s the end of the matter. By filing his notice of motion on 26 July 2023 the applicant was seeking to invoke a jurisdiction in the full court of the Supreme Court that does not exist. This is an abuse of process.
3 WHAT ORDERS SHOULD BE MADE?
41. I appreciate that I still have a discretion to exercise but I see no good reason to decide any way other than that the application for summary dismissal of the applicant’s notice of motion should be granted. Costs will follow the event.
ORDER
(1) The application filed 22 September 2023 by the first respondent for dismissal of the applicant’s notice of motion, filed 26 July 2023, is granted.
(2) The applicant’s notice of motion, filed 26 July 2023, is dismissed pursuant to Order 13 rule 16(1)(a) of the Supreme Court Rules for being an abuse of process.
(3) The applicant shall pay the first respondent’s costs of and incidental to the applicant’s notice of motion, filed 26 July 2023, and the first respondent’s application filed 22 September 2023 on a party-party basis, which shall if not agreed be taxed.
(4) The file is closed.
________________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGSC/2023/140.html