SC2817
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV (EP) 39 OF 2023

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:
JOHNSON TUKE IBO
Applicant

AND:
WILLIAM HAGAHUNO
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

WAIGANI: HARTSHORN J
24, 29 SEPTEMBER 2025
        
SUPREME COURT REVIEW – practice and procedure - Application for an extension of time to apply to review a taxing officer’s decision

Cases cited
Behrouz Boochani v. The State (2017) SC1566 
East Sepik Provincial Executive v. Marat (2020) SC2016
Pokia v. Yalon (2015) SC1662
Powi v. Southern Highlands Provincial Government (2006) SC844 
Wamu Abari v. Willie Gumaim (2020) SC1925 
Wari Vele v. Powes Parkop (2008) SC945

Counsel:
L. Baida for the appellant
L. Kolo for the respondent

1.	HARTSHORN J:	This is a decision on a contested application to extend the 14-day time requirement within which an application to review a decision of a taxing officer may be made.  The application relies upon certain National Court Rules and s. 155 (4) Constitution. 

Background
 
2.	The applicant unsuccessfully contested by petition the result of the election for the Kainantu Open Electorate in the 2022 General Elections.  That election was won by the first respondent.  The applicant also unsuccessfully applied for leave to review the dismissal of his petition and had costs awarded against him.  The second respondent filed its bill of costs.  The taxing officer conducted a taxation of the second respondent’s bill of costs allowing the sum of K249,713.80 and then issued a certificate of taxation on 3rd March 2025. 

3.	On 16th May 2025, the second respondent filed its application to enter judgment on taxed costs and on 31st July 2025 the applicant filed this application seeking an extension of time to seek leave to review.

This Application 

4.	The applicant relies upon Order 2 Rule 1 (h) Supreme Court Rules, Order 1 Rule 7 and 15 (2) National Court Rules and the inherent powers of the Court under s. 155 (4) Constitution for the extension of time.

5.	The second respondent did not take issue with the reliance upon Order 2 Rule 1 (h) Supreme Court Rules and Order 1 Rules 7 and 15 (2) National Court Rules.  I am satisfied that the applicant may rely on these provisions as there is no provision in the Supreme Court Rules for an application to be made for an extension of the time referred to in Order 12 Rule 37(2) Supreme Court Rules to review a decision of a taxing officer: see Wamu Abari v. Willie Gumaim (2020) SC1925 and East Sepik Provincial Executive v. Marat (2020) SC2016.  It is not therefore necessary to consider the application under s. 155 (4) Constitution.

6.	In any event s. 155 (4) Constitution may not be relied upon in this instance as a remedy is provided for under other law.  That law is Order 1 Rule 15 (2) National Court Rules by virtue of Order 2 Rule 1 (h) Supreme Court Rules: see Powi v. Southern Highlands Provincial Government (2006) SC844 and Behrouz Boochani v. The State (2017) SC1566 at [39].

7.	The Applicant relies upon the decision of Wari Vele v. Powes Parkop (2008) SC945 and Pokia v. Yalon (2015 SC1662 and the consideration of the issues contained therein concerning whether an extension of time should be granted.

8.	At [23] in Vele v. Parkop (supra) the Court of which I was a member said:

“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.  These are principles of general application .....”

9.	I consider this application with reference to the issues referred to in that passage.

10.	The first issue for consideration is why the applicant did not make an application within the time limit of the 14 days referred to in Order 12 Rule 37(2) Supreme Court Rules for leave to review the taxing officer’s decision.  The period of 14 days expired on 17th March 2025, 14 days after the taxation officer issued a certificate of taxation.

11.	 The Applicant submits that he was mentally depressed and travelled to his village to prioritise his mental depression around 30th December 2024.  Hence, he did not respond to emails sent by Nelson Lawyers, his lawyers.  It was not possible to establish direct telephone communication with the applicant as the lawyer of Nelson Lawyers who had carriage of the matter, ceased employment with Nelson Lawyers and did not provide a brief and contact details for the applicant.  Whilst in his village, the applicant was diagnosed with gout and was bedridden for several months in isolation.

12.	The applicant deposes that he was mentally depressed from September, October and December 2024 because his election petition and application for review were dismissed and the costs were mounting against him personally.  His mental wellbeing was affected and he was mentally drained.

13.	There is evidence from a medical officer of the applicant having a gout condition between 2nd February to 5th April 2025. There is no medical evidence to support the deposition of the applicant that he was suffering from a mental or depressive condition.

14.	There is no explanation as to why there is an absence of medical evidence concerning his mental and depressive condition when medical evidence was obtained for the gout condition.

15.	There is no explanation in evidence or submissions as to why it was thought necessary to provide medical evidence concerning the gout condition but not necessary to provide medical evidence concerning the purported mental and depressive condition, particularly given the submission at [126-127] that it was the latter condition that caused the subject delay. Was it on medical advice that the applicant travelled to the village to prioritise his mental health? If it was, that medical advice is not in evidence.

16.	There is no medical or other evidence to the effect that the applicant or someone on his behalf was not able to use a telephone or computer equipment to access email communication from September 2024 through to June 2025, or at all.  In this regard, it is noted that the applicant’s gout condition only affected his knees.

17.	The applicant deposes that he received advice from his lawyers on 24th September, 15th October and 4th December 2024, that the respondents had filed bills of costs.  There is no explanation by the applicant as to why on those dates, or in advance, he did not instruct his lawyers to defend any or all the bills of costs including to represent him at any taxation hearings.

18.	Given the above, I am not satisfied that the applicant has given a reasonable explanation for not applying for leave to review the taxation officer’s decision with the 14 days time limit referred to in Order 12 Rule 37(2) Supreme Court Rules.  

19.	The next consideration is the delay, if any, which occurred between the expiry of the said 14 days within which to make an application for leave to review and the filing of the application to extend time.  The 14 days time limit expired on 17th March 2025.  The notice of motion of the applicant seeking an extension of time was filed on 3rd July 2025.  That is a period of 4 months, 14 days.  To put this period of time into context, it represents over 9 periods of the 14 days time period permitted to file an application for leave to review a taxing officer’s decision.  This constitutes a significant period of delay.

20.	An explanation for the delay is not specifically given.  I proceed on the basis that the explanation is the same as that given for not filing the application for leave in time.  I have already determined that this explanation is not reasonable.

21.	All of the four issues detailed at [23] in Wari Vele v. Powes Parkop (supra) are to be satisfied before an extension of time or dispensation may be granted.

22.	As I have determined that the first two issues have not been satisfied, this application of the applicant should be dismissed.

23.	Given the above, it is not necessary to consider the other submissions of counsel.

Orders

24.     The Court orders that:
a) The order sought by the applicant in paragraph 2 of the notice of motion filed 31st July 2025 for an extension of time is refused.
b) Consequently, the said notice of motion filed 31st July 2025 is dismissed.
c) The applicant shall pay the costs of the second respondent of and incidental to the said notice of motion on a party/party basis. Those costs are fixed in the sum of K3,000.00.
________________________________________________________________
Lawyers for the applicant: Nelson Lawyers
Lawyers for the second respondent: Jema Lawyers