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Embel v Komal [2016] PGSC 83; SC1579 (8 March 2016)

SC1579

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. (EP) No. 4 of 2014

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:
PHILEMON EMBEL
Applicant

AND:
JEFFREY KOMAL
First Respondent

AND:
ANDREW TRAWEN,
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2016: 4^th & 8^th March

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Application for Review not filed within time after leave granted - Application to dispense with requirements of 05 r 18 of Supreme Court Rules 2012 - Exercise of Discretion - Principles - Supreme Court Rules 2012 (as amended), 05 rr 18 & 39

Cases cited:

Joseph Kupo v Steven Raphael (2004) SC 751
Leo Duque v Andrew Paru [1997] PNGLR 378
Papua New Guinea v Colbert [1988] PNGLR 138
Peter Nixon Donigi v Base Resources Ltd [1992] PNGLR 110
SBDC v Totamu (2010) SC1054
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC 811
Wari Vele v Powes Parkop (200B) SC 945

Counsel:

P Mawa, for the Applicant
A. Ninkama, for the First Respondent
K Kepo, for the Second Respondent

8^th March, 2016

1. INJIA CJ: This is an application made under 0 5 r 39 of the Supreme Court Rules 2012 (as amended) SCR) seeking an order to dispense with the requirements of SCR, 0 5, r 18 and to allow the applicant 2 days to file the substantive application for review. In the substantive review, the applicant proposes to challenge the trial judge's decision to dismiss the Election Petition following an objection to the competency of the Petition.

2. On 15 October 2015, this Court presided by Justice Manuhu granted leave to the applicant to seek review of the National Court decision. The applicant failed to file and serve the substantive application for review as required by 0 5 r 18. The applicant also failed to apply for and obtain an extension of time to file and serve the application within the 14 days allowed by 0 5 r 18. The applicant, through his lawyer, proceeded to conduct the proceedings before the Supreme Court as the case moved through the directions hearing phase to prepare the substantive application for hearing as if the substantive application had been filed and served. The applicant also attended to securing the Court transcript of proceedings from the Court Reporting Service to be included in the Review Book. Court records show that the matter came before the Court for directions on 9 November 2015 and no appearance for the parties was recorded. On 16 November 2015, the matter returned before the Court and representations were recorded except for the First Respondent. On that date, it appears the failure to file the application for review within time came to the Court's attention and the Court directed the applicant to file and serve an application for dispensation by 20^th November 2015. On 20^th November 2015, that application was filed, and it was moved before me last Friday the 4^th of March 2016.

3. This Court's jurisdiction given by SCR 0 5 r 39 to grant dispensation of the requirements of SCR, 0 5 r 18 is not in question. The principles relating to the exercise of the discretion under this provision are settled in a number of decisions of the Supreme Court. I prefer to quote and apply a passage from the full Court's decision in Wari Vele v Powes Parkop (2008) SC945, as follows:

"23. 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 and no doubt other relevant considerations will be established as the case law develops."

Why the time limit was missed?

4. There is only one reason that is offered by the applicant's lawyer in paragraph 17 of his affidavit. The lawyer says, and I quote: "We were under a honest but mistaken belief that the Application for Review was already filed and we proceeded to take the steps to have the matter listed for directions and for the production of transcripts to compile the Review Book because the Draft Application to Review was already finalized and ready to be filed and but was not actually filed yet. We mistook it with another similar matter in the Supreme Court". Counsel for the applicant submits this is a clear case of a genuine but mistaken belief on the part of the lawyer and one that does not fall within the ambit of negligent and gross carelessness on the part of the lawyer which is not excusable. The Respondents submit the explanation is not reasonable.

5. The conduct of lawyers in mishandling a client's case that results in default in filing a Court document within time has been the subject of many decisions of this Court and the National Court. Generally, the failure of a lawyer in allowing time to expire is not a good explanation. If the client suffers loss as a result, his remedy lies not in depriving the respondent of an appropriate remedy for the default, but in an action for damages against his lawyer: Papua New Guinea v Colbert [1988] PNGLR 138; PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC 811; Joseph Kupo v Steven Raphael (2004) SC 751, Leo Duque v Andrew Paru [1997] PNGLR 378; Peter Nixon Donigi v Base Resources Ltd [1992] PNGLR 110; SBDC v Totamu (2010) SC1054. However there are exceptions to this general rule. For instance, where it is shown by the lawyer that exceptional circumstances beyond the control of the lawyer prevented him from taking the appropriate action, the Court may accept the explanation as reasonable. In Kupo v Raphael, the Court adopts an example given by Bredmeyer J in the Colbert case, as follows:

"Negligence or incompetence by a lawyer should never be a basis for a s.155 application in a civil case. I can conceive of some instances where a default by a lawyer, for other reasons, in a civil case could amount to exceptional circumstances. For example, a lawyer in a one man firm instructed to appeal, may be run over by a bus before he lodges the appeal. The lawyer's failure in that case is not caused by incompetence but by an event outside his control. I do not believe that s.155(2) of the Constitution was designed to protect civil lawyers from suits for professional negligence "

6. In the case before me, the explanation offered by the applicant's lawyer does not come anywhere close to the type of circumstances described in the Colbert case. The application was not filed at all due to inadequate attention given to the matter of the type that called for immediate and prompt action. Time is always of essence in election cases, and the filing of the substantive application for review following grant of leave is the first and foremost of fundamental requirements under the rules of Court to institute a substantive review. The filing of the substantive application for review within the time limit prescribed by the rules always a priority matter for any lawyer having business over election petitions decision reviews in the Supreme Court. If that is missed, through inadequate attention being given to the case, the miss cannot be said to offer a reasonable explanation.

Delay

7. With regard to delay, some 20 days had lapsed without an application being filed before the matter was listed for directions on 6^th November 2015. Ten (10) days later on 16 November 2015, the defect was brought to the Court's attention. The necessary application under 0 5 r 39 was facilitated by a Court direction. Even when the application was filed on 20^th November 2016, it has not been moved promptly. It has taken the applicant 3 months and 9 days to move the application. In these circumstances, I accept the respondents' argument that the filing and making of this application has been unduly delayed and no reasonable explanation has been offered for the delay.

Prejudice

8. In terms of the prejudice to the respondent, the delay poses more prejudice to the respondents than the applicant. The issue of the writs for the next elections is a little over 12 months away and it would pose many difficulties including meeting costs of litigation, for the respondents to run the case on a review. Even if the substantive review were successful, the trial of the petition in the National Court would no doubt prove costly for everyone and the quality of the case degraded by loss of witnesses or loss of memory of events by the passage of time.

Issues to be determined

9. As for the last criteria, the substantive issues in the review are there to be litigated but the delay in bringing this review to a finality is a telling factor.

Conclusion and orders

10. For those reasons, I am not satisfied that the application has been made out by the Applicant.

11. I issue the following orders:

(1) The Applicant's application filed on 20 November 2015 is dismissed.
(2) The Applicant shall pay the Respondent's costs of these proceedings.

(3) The security for costs held by the Registrar shall be paid to the Respondents as agreed between them, and where necessary, as part of those costs.

_____________________________________________________
Mawa Lawyers: Lawyer for the Applicant
Adam Ninkama Lawyers: Lawyer for the First Respondent
Niugini Legal Practice Lawyers: Lawyer for the Second Respondent