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Chan v Trawen [2012] PGSC 48; SC1215 (18 December 2012)

SC1215

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 42 OF 2012

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:

SIR JULIUS CHAN
Applicant

And:

ANDREW TRAWEN, Electoral Commissioner for Papua New Guinea
First Respondent

And:

IAN LING STUCKEY
Second Respondent

Waigani: Injia, CJ
2012: 18 December

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Interlocutory Decision of National Court on an election petition – Finding on Due Service of Petition in Compliance with Rules of Court – Dispensation of Requirement That Decision Must Be Final- Exercise of Discretion – Test - Supreme Court Election Petition Review Rules (as amended), rr 1 and 32.

Cases cited:

Dusava v Waranaka (2008) SC942
Kewano v Joseph (2012) SC1205
Schnaubelt v Chan (2012) SC1204
Counsel

L Issac, for the applicant
T Kuma, for the first respondent
S Pokawin, for the second respondent

18th December, 2012

1. INJIA CJ: This is an application to dispense with the requirements of r1 of the Election Petition Review Rules 2002 (as amended) (PRR). It is made under PRR, r 32. By virtue of PRR r1, an application for leave for review can only be made in respect of a decision within the meaning of that term as defined in PRR. The term "Decision" is defined as "the final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as amended)". In this application the applicant seeks an order dispensing with that requirement in order to allow an application for leave for review to be made against an interlocutory ruling in which the National Court found that the election petition brought by the applicant was duly served on the respondent in compliance with the provisions relating to service under the National Court Election Petition Rules (EPR).

2. Counsel representing the parties made submissions on the question whether EPR r32 grants jurisdiction in a Judge of the Supreme Court to dispense with any requirement of PRR and if so, as to how the discretion is to be exercised in the circumstances of this case. I accept submissions of Mr Issac of counsel for the applicant that r 32 is a clear grant of jurisdiction to a single judge of the Supreme Court to dispense with any requirement of PRR. This position was amply clarified in my decision in Dusava v Waranaka (2008) SC942, which is relied upon by Mr Issac. In recent ruling from single Judges of this Court on the point, the reasoning in those cases suggest that a Judge lacks jurisdiction to dispense with the requirement that the decision the subject of the review must be a final decision that disposed of the petition: John Simon v Gabiel Kapris, Unpublished judgment of Salika DCJ in SCR 12 of 2012; John Pundari v Lucan Neah, Unpublished judgment of Salika DCJ in SCR 30 of 2012, Kewano v Joseph (2012) SC1205, Schnaubelt v Chan (2012)SC1204. I discern from the reasoning in those cases that because the requirement for a decision to be final goes to the very foundation on which the review jurisdiction is exercised under PRR, the Court cannot dispense with that particular requirement, a statement of principle that I agree with. But that is a matter which goes to the exercise of the discretion under r 32 and that is a separate matter. Insofar as it concerns jurisdiction, r32 gives a single Judge the jurisdiction to dispense with the requirement of PRR that a decision the subject of the appeal be final.

3. With regard to the exercise of discretion, counsel were unable to refer me to any cases on point. To my knowledge there are no cases within the jurisdiction which set out the criteria or test to be applied in the exercise of the discretion given by r32. I consider the relevant matters to be taken into consideration, amongst others, as follows:

(1) Whether the rule is founded on the dictates or requirements of law and expressed in mandatory terms requiring strict compliance.

(2) The impact of non compliance on the parties.

(3) Whether there are alternative avenues open under the rules of court for the applicant to seek redress in Court for the same grievance.

(4) Whether the requirement of the rule sought to be dispensed with is one that is fundamental and one that goes to the very foundation upon which the Court's review jurisdiction is based; and if the dispensation were granted, it would render the review procedure contained in the PRR ineffectual or meaningless, and tantamount to re-writing the rules of court by judicial act. In other words those rules must be ancillary and facilitate implementation of the substantive provisions of the rules that create avenues for relief by way of judicial review.

4. I deal with those considerations together.

5. The grant of leave for review is a pre-condition to the conduct of a review of decisions in an election petition case made under the EPR. The grant of leave goes to the very foundation upon which the entire review process under PRR rests. I consider that the definition of the term "decision" in r 1 which defines the term "decision" to mean a final decision is one such rule that if dispensed with, would render the review process under PRR ineffectual and meaningless. The definition of the term "Decision" rules out any application for leave for review outside the scope of review for reasons that are well founded. Some of those reasons are to be found in a number of recent rulings of single judges of this Court which I referred to earlier.

6. The requirement for reviews to proceed by leave only, granted by a Judge of the Supreme Court gives effect to the constitutional dictate in the OLNLLGE that a decision in an election petition is final and not subject to appeal or question in any manner. It reinforces the constitutional position that the review jurisdiction of the Supreme Court under s 155 (2)(b) of the Constitution is highly discretionary and is available in limited cases with exceptional circumstances.

7. With regard to alternative relief, the applicant is not precluded from seeking redress from this Court from the interlocutory ruling after a final decision is rendered on the petition. The practice in this jurisdiction is such that a party who is aggrieved by a final decision on a petition may seek a review of the whole decision including interlocutory decisions made in the course of the trial.

8. For these brief reasons, I dismiss the application with costs to the respondents.

______________________________________________________
Manase & Co Lawyers: Lawyers for the Applicant
Parua Lawyers: Lawyer for the First Respondent
Kaipu & Associates Lawyers: Lawyer for the Second Respondent