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Waieng v Kulang [2013] PGSC 35; SC1258 (24 June 2013)

SC1258

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev (EP) No. 29 of 2013

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 WAIENG
Applicant

And:

TOBIAS KULANG
First Respondent

And:

ELECTORAL COMMISSIONER FOR PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 24 June

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Application for Leave to Review – Decision to dismiss Election Petition – Competency of Application – Late filing of Application- Summary Determination of Application – Supreme Court Rules 2012 (as amended), O 5 r 14, r 37.

Cases cited:
No cases cited

Counsel:

O Avorosi, for the applicant
R Kep, for the first respondent
R William, for the second respondent

24th June, 2013

1. INJIA CJ: This matter comes before me, by way of a referral by the Registrar, of the application for leave for review for summary determination pursuant to Supreme Court Rules 2012 (as amended), O 5 r 14, r 37. (SCR) The referral is made following direction issued by myself in my capacity as the Duty Judge for Supreme Court matters: SCR, O 13 r14 & r 16 (1) (b).

2. The background facts of the matter are not in dispute. The applicant was the runner up in the election for the Kundiawa-Gembogl Open Electorate in the 2012 National Elections which was won by the first respondent. He contested the election result in an election Petition pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections. The first respondent contested the Petition and filed an Objection to Competency of the Petition (competency objection). The National Court heard the Petition between 5th – 8 March 2013. The competency objection was heard first and decision given in two parts. The first part of the ruling was given on 8 March 2013 and the second part given on 13 March 2013. The Court upheld the objection and dismissed the Petition.

3. The applicant was aggrieved by this decision. On 28 March 2013, he filed an application for leave for review of the decision pursuant to the provisions of SCR, O 5. When the application was referred to me in chambers for directions for listing under O 5 r 13, I noted that the application, though filed within time, could not be served and made within the time period stipulated in SCR, O 5 r 14. For this reason, I directed that the matter be listed for summary determination pursuant to SCR 0 5 R 37.

4. SCR, O 5 r 14 is in the following terms:

The application for leave shall be filed, served and heard within 14 days of the decision sought to be reviewed or within such time as extended by the Judge, upon application heard within that 14 days period.

5. The pertinent parts of SCR, O 5 r 37 is in the following terms:

Sub-Division 11.—Dismissal, etc. of Application

37.Where a party has not done any act required to be done by or under the rules of this division...Judge may on ... his own motion ..at any stage of the proceeding order that the application for leave or application for review be

dismissed where the defaulting party is the applicant; or ......fix a time peremptorily for the doing of an act under these Rules and may make such orders as it deems just.

6. SCR, 0 13 r 16 which also applies to review proceedings commenced under Constitution, s 155 (2) (b), gives the Court summary dismissal powers. The pertinent part states as follows: at provisions is in the following terms:
“Division 16.―Summary Disposal

16. (1) The Court may summarily determine a matter:

(a) on application by a party; or

(b) on referral by a Judge; or

(c) on the Court’s own initiative; or

(d) upon referral by the Registrar in accordance with the procedure set out in sub rule (2) below or pursuant to s 11 of the Act. (my emphasis)

7. At the summary determination hearing, I detected a more fundamental flaw in the application for leave which I brought to the parties’ attention. The application filed on 28 March 2013 was in fact filed one day late. When I issued the chamber direction, I calculated the 14 days requirement under SCR, O 5 r 14 to commence from the date of the decision stated in the application for leave, which was 14 March 2013. It is now clear from the affidavits before me that the final ruling on the competency objection was given on 13 March 2013. Therefore, the 14th day fell on 27th March 2013. In the circumstances, the application is clearly incompetent.

8. The applicant’s counsel has not taken issue with this fact and left it to the Court’s discretion but relies on O 5 r 37 (c) and O 5 r 39 (dispensation from compliance with the rules). He refers me to various affidavits depositing to reasons for the delay in the late filing of the application. He argues that the Court exercise its discretion to dispense with the requirements of SCR, O 5 r 14 and allow the application to proceed to a hearing.

9. Counsel for the respondents submit the application is incompetent as having been filed late and any oral application to dispense with the requirement should not be entertained.

10. I agree with the applicant’s counsel that under O 5 r 39, this Court has a discretion to dispense with compliance with any requirements of the SCR, O 5 Division 2 (Election Petition Reviews) rr 7-48) including the requirements of O 5 r 14, at any time “either before or after the occasion for compliance occurs” .

11. I am of the view that the application for leave for judicial review is incompetent from the start. In terms of filing, unless time to comply with the mandatory requirements of O 5 r 14 were extended under that provision, an application filed out of time is void ab initio. An order for dispensation even if granted under O5 r 39 would not cure or revive an invalid application by reason of late filing.

12. Any application under O 5 r 39 by a party in an application for leave for review would have to be properly made by application on notice to all parties. Further even if the application for dispensation were properly made, the exercise of discretion in dispensing with fundamental requirements of the rules such as observing time limits prescribed for filing an originating process must be guided by established principles. For instance, the Court would have to consider whether in the exercise of its discretion, it would dispense with the requirement to file an application for leave within 14 days where party has defaulted in seeking an extension of time under O 5 r 14; or, where a party has failed to file and move a formal application for dispensation under O 5 r 39. With the present case, the Court’s powers have not been properly invoked and the principles of law and circumstances satisfying those principles have not been established.

13. For those reasons I dismiss the application with costs to the respondents.

______________________________________________________
Greg Manda Lawyers: Lawyer for the Applicant
Warner Shand Lawyers: Lawyer for the First Respondent
Niugini Legal Practice Lawyers: Lawyer for the Second Respondent