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Manase v Polye [2013] PGSC 76; SC1280 (24 May 2013)

SC1280

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 22 OF 2013

APPLICATION UNDER SECTION 155(2)(B) OF THE CONSTITUITION
AND:
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:

LUKE ALFRED MANASE
Applicant

AND:

DON POMB POLYE
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kassman, J
2013: 8, 14 & 24 May

Cases Cited:

Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935
Sani Rambi v Koi Trappe & The Electoral Commission (N9424)
Michael Kandiu v Powes Parkop & The Electoral Commission (N5093)
Edward Ekanda Alina v Francis Mulunga Potape
The Electoral Commission & Ors (N4877)
Joseph Kobol v William Titpe Powi & the Electoral Commission (unreported National Court judgment by Justice Makail delivered 25 March 2013 in EP No. 80 of 2012)
Manasseh Makiba v Francis Potape & The Electoral Commission (Unreported National Court judgment by Justice Makail delivered 22 November 2012 in EP No. 24 of 2012)

Legislation Cited:

Order 5 Rule 16 of the Supreme Court Rules 2012
Order 1 Rule 7 of the Supreme Court Rules 2012
Rule 11 of the Supreme Court Rules 2012
Order 5 Division 2 Rules 7 to 48 of the Supreme Court Rules 2012,
Rule 15 of the National Court Election Petition Rules 2002
Rule 18(1) of the National Court Election Petition Rules 2002

Counsel

Christine Copeland, for the Applicant
Paulus Dowa, for the First Respondent
Ray Williams, for the Second Respondent

DECISION

1. KASSMAN J; Luke Alfred Manase ("Manase") applies for leave of the Supreme Court to review a decision of the National Court in the matter EP No. 14 of 2012.
   

Background

2. In that proceeding, Manase filed a petition disputing the return of Don Pomb Polye ("the Member") for the Kandep Open Electorate, Enga Province in the 2012 National General Elections. On 4 March 2013, the National Court dismissed Manase's Petition following Manase's failure to comply with an Order of the Court requiring Manase file and serve by a set date written submissions in response to the Member's objections to competency of the petition.
   

Jurisdiction as a single judge

3. The parties agree that I have the jurisdiction to hear and determine this application exercising powers as a single judge of the Supreme Court. Order 5 Rule 16 of the Supreme Court Rules 2012 provides "The application for leave shall be made before a judge." And Order 1 Rule 7 states "Judge" "means a judge of the Supreme Court of Justice".
   
4. The Application for Leave to Review was filed on 15 March 2013 and is supported by Manase's Affidavit which was sworn on 14 March 2013 and filed on 15 March 2013.
   
5. The Application is opposed by the First Respondent Don Pomb Polye ("the Member") who also sought leave to rely on Affidavits sworn by his lawyer Paulus Dowa which were filed on 17 April 2013 and 10 May 2013. The Application is also opposed by the Second Respondent Electoral Commission of PNG ("EC").
   

Objection to competence of Application for Leave to Appeal

6. As a preliminary point raised in the course of submissions, both Respondents challenged the competency of Manase's application now before this Court by arguing Manase had failed to file with his Affidavit transcripts of proceedings of the National Court of 7 February 2013 and 4 March 2013 which are critical to the application for leave to review as they are material that address the "circumstances pertaining to the application" within the meaning of Order 5 Rule 11 of the Supreme Court Rules 2012.
   
7. The Respondents, the Member and EC, concede they have not provided prior notice of such argument but say they are entitled to raise the objection at anytime and even the Court may raise the issue at anytime without notice as it goes to jurisdiction. That may be correct but the dictates of fairness require prior notice, at the very least some written warning even where no formal objection is filed and served. Ironically, both Respondents rely on the said transcripts in their submissions on the Application for Leave to Review, copies of which are annexed to Affidavits sworn by Mr Paulus Dowa who is counsel for the Member. They say that as those transcripts were not filed by Manase, his application seeking leave to review is incompetent and must be struck out.
   
8. In response to this preliminary submission, Manase says his Affidavit as filed satisfies the requirements of Rule 11 which provides "The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgement and order of the National Court."
   
9. I have perused Manase's Affidavit filed 15 March 2013 and am satisfied it sets out the circumstances pertaining to the application for leave and it has as annexures Manase's election petition filed 22 August 2012, the Member's Notice of Objection to Competency, the Member's Notice of Motion filed 1 March 2013 which seeks dismissal of the Petition for failure to comply with Court Directions, the Affidavit in support of that Motion, Manase's Notice of Motion filed 4 March 2013 that seeks dispensation and Orders deeming compliance and Affidavits in support of that Motion. Also annexed are Manase's submissions in reply to the member's Objection to Competency which were filed on 28 February 2013. Further, Manase has annexed the written Decision of the National Court of 4 March 2013, the formal Orders of the Court of 4 March 2013 and the transcript of proceedings of the National Court of 4 March 2013. That was the day the Court heard the Member's application to dismiss and delivered its decision dismissing the Petition. That is now the subject of this application for leave for review.
   
10. For the purposes of the Application for Leave for Review, Manase has substantially complied with the requirements of Rule 11. The absence of the transcript of proceedings when the National Court issued directions and Manase's lawyer gave an undertaking to file submissions is not critical to the hearing and determination of the application for leave but that certainly will be should leave be granted. For now it is my view that the material filed by Manase is adequate in the circumstances.
    
11. In any event, the transcripts are in fact before me now having been filed by the Member's lawyer. Mr Dowa sought leave to rely on the transcripts and there was no objection to that by Manase and the EC. I accepted the Member's application. As such all material relevant to the Application for Leave is on file and before the Court formally.
    
12. The Objection by the Respondents to the competence of Manase's application for leave to review is dismissed.
    

Application for Leave to Review

13. As stated above, Manase's Application for Leave to Review was filed on 15 March 2013. In support of that application is Manase's Affidavit which was sworn on 14 March 2013 and filed on 15 March 2013.
    
14. Both Respondents, the Member and EC, oppose Manase's application and rely on Affidavits sworn by the Member's lawyer Paulus Dowa which were filed on 17 April 2013 and 10 May 2013. Manase did not object to the use of those Affidavits and I have accepted them as being relevant and appropriate for the purposes of this application for leave to review.
    

Law and principles applicable on an application for leave to review

15. Order 5 Division 2 of the Supreme Court Rules 2012, being Rules 7 to 48 inclusive, provide for election petition reviews.
    
16. All parties agree the principles applicable on an application for leave to review are as thoroughly discussed by the Chief Justice Sir Salamo Injia where, as Deputy Chief Justice at that time, in Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935, His Honour said;
    
    1. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Shulze (1998) SC572
       
    2. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold:-
       
       1. First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC855; Application of Ludwig Patrick Shulz (1998) SC572.
          
       2. Second, insofar as the application relates to facts, there is gross error or clearly apparent or manifested on the face of the evidence before the court: Kasap v Yama [1988-89] PNGLR 81, Application of Ludwig Patrick Shulz (1998) SC572.Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723; and such that a review of the findings of fact is warranted.
          
    100. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave to review a decision on an election petition. The applicant for leave to review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The judge of course is not determining the merits of the substantive application and the judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The judge should be able determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied on by the parties."
         
17. I have underlined parts that are the pertinent criteria.
    

Background facts

18. Following the filing of the Petition by Manase, the matter proceeded to directions and status conference. As required by Rule 15 of the National Court Election Petition Rules, any challenge to the competency of the Petition shall be dealt with at the hearing. The Member filed Notice of Objection to Competency of the Petition.
    
19. On 26 November 2012, a number of directions were issued including a direction that Manase file submissions on the competency of the Petition by 1 February 2013. Manase failed to file his submissions by that date.
    
20. On 7 February 2013, when the matter returned for status conference, a number of preliminary and logistical matters were discussed including witnesses to be called and affidavits filed, the need for an interpreter, the place of trial and the dates for trial. In the course of that, Manase's lawyer advised the Court that she had yet to file submissions for Manase and undertook to file submissions by a certain date. Then counsel for the EC also advised that he had not filed submissions for EC and so the Court on further conferring with all counsel agreed to allow them further time to file on dates they suggested being 11 February 2013 for the EC and 15 February 2013 for Manase. This is where the first issue arises and I will come back to it.
    
21. Manase's lawyer did not file submission by 15 February 2013 but they were filed on 28 February 2013.
    
22. On 1 March 2013, the Member filed an application seeking dismissal of the Petition on the basis of Manase's failure to comply with the direction of the Court. I note the Notice of Motion erroneously states the date of the Court sitting as 17 February 2013 when in fact the sitting took place on 7 February 2013. No return date is stated in the Motion.
    
23. Rule 18(1) of the National Court Election Petition Rules 2002 provides "Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the court may on its own motion or on the application of a party, at any stage of the proceeding ... order that the petition be dismissed where the defaulting party is the petitioner."
    
24. On 4 March 2013, Manase filed an application seeking orders the court "dispense with the directions made on 7 February 2013" (underlining mine) requiring Manase file and serve his submissions by 15 February 2013 and deem compliance with the need for filing of submissions. In essence, Manase was asking the Court to accept his filing of submissions on 28 February 2013 as due compliance.
    
25. The Member's application to dismiss was moved and heard on 4 March 2013. Manase's Notice of Motion referred to in the preceding paragraph had yet to be sealed when proceedings commenced on 4 March 2013 but in the course of the hearing that day Manase's lawyer informed the Court the Motion and Affidavit in support were being formally filed that morning.
    
26. The National Court found there was non-compliance with two directions of the Court for Manase to file his submissions. The Court also found the non-compliance was over a period of three months and two days as calculated from 26 November 2012. The Court also refused to accept the excuse that Manase's lawyer was on leave on the due date and the failure to file as required was an administrative oversight in the lawyer's office. The Court then ordered the dismissal of the Petition.
    

Manase's grounds of the application for leave to review

27. From my perusal of the fifteen grounds set out in the Application for Leave to Review, they essentially say two critical things. Firstly, the power to summarily determine may only be exercised where there is non-compliance with a rule or non-compliance with a direction of the Court. Manase argues he did not fail to comply with a rule of the National Court and neither did he fail to comply with a direction of the National Court. Secondly, Manase argues the National Court failed to exercise its discretion judicially in circumstances where there was no prejudice to the Member and EC flowing from his alleged non-compliance.
    
28. Manase argues there was no direction of the Court issued on 7 February 2013 to file submissions but only an "undertaking" from his lawyer to file. There was no formal Order issued and he says the Court file endorsements of 7 February 2013 support his argument. The legal argument for determination here is whether there was in fact and in law an Order of the Court directing Manase to file his submissions. A reading of the transcript of 7 February 2013 confirms Manase's lawyer did give an undertaking to file submissions by a set date and the National Court confirms that.
    
29. What makes Manase's argument interesting is that in his application filed on 4 March 2013, he sought Orders that the Court to "dispense with the directions made on 7 February 2013" (underlining mine). So he himself on 4 March 2013 was of the understanding that actual directions were in fact issued so it is arguable Manase now contradicts his own original understanding of the circumstances or events of 7 February 2013.
    
30. I do not need to make a finding in this regard. Manase has made out a seriously arguable proposition as to whether a "direction" was issued by the National Court on 7 February 2013. I say this despite the contradiction stated above.
    
31. Manase also makes out a strong argument that the National Court failed to exercise its discretion judicially in circumstances where there was no prejudice to the Member and EC flowing from his alleged non-compliance. Non-compliance with directions is a serious matter and is provided as a ground for summary determination as provided by the rules of Court but the exercise of discretion to dismiss a Petition, or any cause of action for that matter, is of greater significance.
    
32. In a number of judgements referred to by counsel, Rule 18 has been discussed by the Judge Administrator appointed for Election Petitions following the 2012 National General Elections. (Sani Rambi v Koi Trappe & The Electoral Commission (N9424), Michael Kandiu v Powes Parkop & The Electoral Commission (N5093), Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (N4877), Joseph Kobol v William Titpe Powi & the Electoral Commission (unreported National Court judgment by Justice Makail delivered 25 March 2013 in EP No. 80 of 2012), Manasseh Makiba v Francis Potape & The Electoral Commission (Unreported National Court Judgment by Justice Makail delivered 22 November 2012 in EP No. 24 of 2012). Justice Makail has reiterated the power to summarily dismiss a Petition pursuant to Rule 18 is discretionary and must be exercised on proper principles or grounds. I restate that discussion as saying the Court must engage in an assessment as to (a) whether a party has not done any act required to be done by or under the Election Petition Rules or otherwise has not complied with any direction; (b) whether there is an explanation for the default; (c) whether there was any prejudice suffered by the other parties as a result of the non-compliance; and (d) whether the overall interests of justice are best served by dispensing with the need for compliance and/or penalising the defaulter in some manner as opposed to summarily determining the Petition.
    
33. In this case, it is arguable the Member and EC had not suffered any grave prejudice as a result of Manase's failure to file submissions within the time required. The commencement of the trial was not delayed and the hearing of the Member's submissions on the Objection to Competency was not delayed or prejudiced in any manner at all. If the Member required further time to consider Manase's submissions, Manase had offered to pay the costs of any adjournment.
    
34. When considering the totality of all the circumstances of the matter and relative positions of the member and EC as opposed to that of Manase, it is arguable the learned trial judge adopted a narrow or restricted approach when the Court had wide discretion to exercise in the interests of justice. It is certainly arguable prejudice was not considered in the Court's exercise of discretion.
    
35. The interpretation and application of rule 18(i) of the National Court Election Petition Rules 2002 are important points of law that need to be determined by the Supreme Court. Further, Manase's arguments are not without merit.
    
36. The formal Orders of the Court are:
    
    1. The Application for Leave to Review is granted.
       
    2. The Application for Review shall be filed within 14 days from today or such further period as authorised under Rule 18 of Order 5 of the Supreme Court Rules 2012
       
    3. The costs of this application are in the cause.
       

Judgment accordingly:
_________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Paulus Dowa Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent