SC2412

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 22 OF 2023

JAMES NOMANE
Applicant

V

WERA MORI
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J, David J, Kassman J
2023: 29th & 30th June

SUPREME COURT  – practice and procedure – election petition reviews  – Constitution, s 155(2)(b) – Supreme Court Rules, Division 5.2 – application by notice of motion for leave to review decision of National Court in election petition – application to full court of Supreme Court by party dissatisfied with decision of single judge of Supreme Court to refuse leave for review – Supreme Court Rules, Order 11 rules 25 and 26 – whether application is prohibited by Supreme Court Rules, Order 5 rule 17.

The applicant applied before a single Judge of the Supreme Court for leave to review under s 155(2)(b) of the Constitution a decision of the National Court in an election petition to refuse the applicant’s objection to competency of the 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. The applicant 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. The applicant argued that his application raised important points of law that were not without merit and that there were cogent and convincing reasons and that it was in the interests of justice to grant leave; and it was not necessary to show that exceptional circumstances existed. The application for leave was supported by the second respondent, the Electoral Commission. The first respondent (the petitioner in the election petition) opposed the application for leave and 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, which states “A decision to grant or a refusal to grant leave is final and shall not be subject to further review”. The first respondent contended that if the Court refused the preliminary point, the application should still be refused as it was without merit and failed to comply with the requirements of the Rules. Either way the first respondent argued that the orders sought in the notice of motion should be refused, in which case the petition should proceed to trial at the time set by the National Court.

Held: 

(1)	An application made by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules is a fresh application to the full court, and is neither an appeal nor an application for review of the single Judge’s decision.

(2)	Order 5 rule 17 of the Supreme Court Rules 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. This interpretation was driven by the governing words of Order 5 rule 17: “A decision to grant or a refusal to grant leave is final …”

(3)	Order 11 rules 25 and 26 are rules of general application that would if not for Order 5 rule 17 allow the application now before the Court to be made. However, Order 11 rules 25 and 26 must be interpreted subject to the specific prohibition imposed by Order 5 rule 17.

(4)	The application was not properly before the Court and was refused. It was unnecessary to consider the merits of the application.

Cases Cited
The following cases are cited in the judgment:
Avei v Maino (1998) SC584
Electoral Commission v Kaku (2021) SC2137
Marabe v Tomiape (2006) SC827
Mori v Nomane & Electoral Commission, EP 52 of 2022, 17.04.23, unreported
Nomane & Electoral Commission v Mori SCREV (EP) 22 & 23 of 2023, 19.06.23, unreported
Pundari v Yakos (2023) SC2345
Reipa v Bao (1999) SC606

Counsel
H Nii & M Ninkama, for the Applicant
C Gagma, for the First Respondent
N Tame, for the Second Respondent

30th June, 2023

1.      BY THE COURT: On 17 April 2023 the National Court, constituted by Justice Kangwia, refused two objections to competency of the election petition, EP 52 of 2022. The petition concerned the election of James Nomane in the seat of Chuave Open in the 2022 general election. Mr Nomane was first respondent in the petition, the Electoral Commission was second respondent and the petitioner was Wera Mori. Justice Kangwia refused objections to competency brought by Mr Nomane and the Electoral Commission (Mori v Nomane & Electoral Commission, EP 52 of 2022, 17.04.23, unreported). 

2.     Mr Nomane and the Electoral Commission filed separate applications in the Supreme Court for leave to review under s 155(2)(b) of the Constitution the decision of the National Court. Mr Nomane’s application is in the proceedings SCREV (EP) 22 of 2023. The Electoral Commission’s application is in the proceedings SCREV (EP) 23 of 2023. 

3.     Their applications were heard by a single Judge of the Supreme Court, Justice Hartshorn, in accordance with Order 5 rule 16 of the Supreme Court Rules. 

4.     His Honour refused both applications for leave (Nomane & Electoral Commission v Mori SCREV (EP) 22 & 23 of 2023, 19.06.23, unreported) stating:

17 Given the above, to the extent to which it is able, for this Court to grant leave to review, I am satisfied that it is necessary for an applicant seeking to review a decision in an election petition, including an interlocutory decision, to show that in addition to there being an important point of law as referred to or a gross error as to fact as referred to, that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

18 In this instance, what is sought to be reviewed is a decision of the National Court which permitted grounds in an election petition to proceed to trial. It is an interlocutory decision which does not affect the substantive rights of the applicants. The applicants are not in any way prevented from continuing to defend the election petition in the National Court. Exceptional circumstances have not been established and in my view from a perusal of the documentation before the Court, do not exist. Further, in circumstances where s 220 Organic Law [on National and Local-level Government Elections] prohibits an appeal and states that a decision shall not be questioned in any way, it is not in the interests of justice, being justice according to law, that leave be granted, particularly in this instance, to review a decision which does not affect the substantive rights of the applicants. 

5.     Dissatisfied with the refusal of leave, Mr Nomane and the Electoral Commission have each 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. 

6.   We are dealing only with Mr Nomane’s application at this stage. 

7.     Order 11 rules 25 and 26 state:

25.	A party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

 26.	Proceedings under rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.

8.     Mr Nii, counsel for Mr Nomane, stresses that the application is a fresh application to the full court, which Mr Nomane is entitled to make under the Rules. It is neither an appeal against nor an application for review of the single Judge’s decision. He submits that the application raises important points of law that are not without merit and that there are cogent and convincing reasons and that it is in the interests of justice to grant leave. 

9.     Mr Nii submits that it is not necessary to show that there are ‘exceptional circumstances showing a manifestation of injustice’. That was an additional requirement for granting of leave introduced by Justice Hartshorn in his ruling in this matter, following his Honour’s ruling in Pundari v Yakos (2023) SC2345. Mr Nii submits that to impose that additional requirement is wrong in law as it conflicts with many previous Supreme Court decisions on granting of leave in EP review matters including Avei v Maino (1998) SC584, Reipa v Bao (1999) SC606, Marabe v Tomiape (2006) SC827 and Electoral Commission v Kaku (2021) SC2137. 

10.    The application for leave is supported by the second respondent, the Electoral Commission. 

11.     The first respondent Mr Mori opposes the application for leave. Mr Gagma, counsel for Mr Mori, submits as a preliminary point that the application should be refused without consideration of its merits as it 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. 

12.     Mr Gagma further submits that if the Court refuses the preliminary point, Mr Nomane’s application should still be refused as it is without merit and fails to comply with the requirements of the Rules. Either way, the orders sought in the notice of motion should be refused, in which case the petition should proceed to trial at the time set by the National Court.

ISSUES

13.     These are the issues requiring determination:

First, is the application for leave to review the National Court decision of 17 April 2023 prohibited by Order 5 rule 17?

If yes, the application will be dismissed summarily without consideration of its merits.

If no, we would consider whether the application should be granted, ie whether leave to review the National Court decision should be granted.

IS THE APPLICATION FOR LEAVE TO REVIEW THE NATIONAL COURT DECISION OF 17 APRIL 2023 PROHIBITED BY ORDER 5 RULE 17?

14.     We uphold Mr Nii’s submission that an application made by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules is a fresh application to the full court, and is neither an appeal against nor an application for review of the single Judge’s decision. Though Mr Nii argues that Hartshorn J wrongly imposed the additional requirement of exceptional circumstances, we agree that it is not necessary for a party making an application under Order 11 rules 25 and 26 to show error on the part of the judge who refused the application in the first instance. 

15.    However, Order 11 rules 25 and 26 are rules of general application. They must be interpreted and applied subject to specific rules dealing with the subject matter of the rights of parties who are dissatisfied with the decision of a single Supreme Court Judge. This is made clear by Order 11 rule 1:

The rules contained in this part [Part 4, General Provisions, comprising Orders 11 to 14] apply to all matters brought under these rules, unless the contrary intention appears.

16.     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.

17.    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. 

18.     This interpretation is driven by the governing phrase of Order 5 rule 17: “A decision to grant or a refusal to grant leave is final …” The remaining words of Order 5 rule 17 “and shall not be subject to further review” do not qualify the governing phrase. 

19.     Order 5 rule 17 means what it says. In this case it means Hartshorn J’s decision of 19 June 2023 to refuse leave is final. There is no appeal against it, no review of it, and no right to make the same application before the full court.

20.    We reiterate that Order 11 rules 25 and 26 are rules of general application that would, if not for Order 5 rule 17, allow the application now before the Court to be made. However Order 11 rules 25 and 26 are subject to Order 5 rule 17, which prohibits any appeal, review or application beyond the final decision of the single Judge. 

21.     Mr Nomane’s application for leave to review the National Court decision of 17 April 2023 is prohibited by Order 5 rule 17.

CONCLUSION

22.     Mr Nomane’s application is not properly before the Court. It must be dismissed summarily. It is refused. All relief sought in the notice of motion filed on 21 June 2023, including an alternative application to have the application for leave go before another single Judge of the Supreme Court and an application to stay the trial of the election petition in the National Court, is refused. It is unnecessary to consider the merits of the application. Costs will follow the event. We are not persuaded that costs should be ordered on a solicitor-client or indemnity basis or ordered against lawyers.

ORDER

(1)	The application filed by notice of motion on 21 June 2023, for leave to apply for review of the decision of the National Court of 17 April 2023 in EP No 56 of 2022 and for other orders, is refused. 

(2)	The applicant and the second respondent shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.
___________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant	
Gagma Legal Services: Lawyers for the First Respondent	
Nicholas Tame Lawyers: Lawyers for the Second Respondent