Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Waranaka v Maru [2018] PGSC 3; SC1653 (19 January 2018)

SC1653

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 7 OF 2017

AN APPLICATION UNDER SECTION 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 WARARU WARANAKA
Applicant

AND:
RICHARD MARU
First Respondent

AND:
THE ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J.
2018: 17^th, 19^th January

REVIEW - Application pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirements of Order 5 Rule 7 Supreme Court Rules to permit an application for leave to review an interlocutory decision of the National Court in an Election Petition

Cases cited:

Anton Yagama v. Peter Yama (2013) SC1219
Dawa Dekana v. Nick Kuman (2013) SC1272
James Marape v. Johnny Phillip Pokaya (2017) SC1634
Tom Olga v. Paias Wingti (2008) SC938
Waranaka v. Dusava (2008) SC942

Counsel:

Mr. P.W.Waranaka the Applicant, in person
Mr. P. Mawa, for the First Respondent
Mr. J. Simbala, for the Second Respondent

19^th January, 2018

1. HARTSHORN J: This is a decision on a contested application to dispense with the requirements of Order 5 Rule 7 and 8 Supreme Court Rules. The application is made pursuant to Order 5 Rule 39 Supreme Court Rules. The reason that dispensation is sought is because the applicant wishes to seek leave to review an interlocutory decision of the National Court concerning an Election Petition. The word “Decision” in Order 5 Rule 7 Supreme Court Rules is defined to mean in effect, that only a final decision concerning an Election Petition can be the subject of an application to review, and so dispensation of that definition is sought so that an interlocutory decision concerning an Election Petition can be the subject of an application to review.

2. The National Court decisions that the applicant seeks to review are a refusal of the Petitioner’s application to strike out the Respondents’ Notice of Objection to Competency; a second grant of an extension of time to the Respondents’ to serve their Notice of Objection to Competency; an extension of time to the Respondents to file their affidavits out of time and a refusal of the Petitioner’s application to strike out the Respondents’ witnesses affidavits filed out of time.

This application

3. The applicant submits that as the decisions he seeks to review are interlocutory decisions of the National Court made in an Election Petition, he requires leave to dispense with the requirements of Order 5 Rule 7 Supreme Court Rules and particularly the definition of “Decision” therein. He submits that he is entitled to such dispensation as this is the only way under the Supreme Court Rules that the applicant is able to review an interlocutory decision of the National Court concerning an Election Petition and that a single Judge of this Court is able to grant the necessary dispensation.

Consideration

4. I consider the application to dispense with Order 5 Rule 7 Supreme Court Rules, first.

5. It is not disputed, correctly, that the decisions sought to be reviewed by the applicant are interlocutory decisions.

6. “Decision” is defined in Order 5 Rule 7 Supreme Court Rules to mean a:

“... final decision of the National Court made after the hearing of an election petition or an order dismissing the petition....”

7. The applicant relies upon Order 5 Rule 39 Supreme Court Rules for the dispensation that he seeks. Order 5 Rule 39 is as follows:

“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”

8. As I said in James Marape v. Johnny Phillip Pokaya (2017) SC1634, Order 5 Rule 39 provides to the Court or a Judge the discretion to dispense with compliance with any of the requirements of the Rules. For there to be a dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought.

9. In this instance Order 5 Rule 7 sets out seven separate definitions of the meaning of certain words. Nowhere in Order 5 Rule 7 are words used to convey, express or imply a requirement that has to be complied with. Expressed another way, Order 5 Rule 7 does not require anyone to do or comply with anyone or anything - it merely defines certain words.

10. As there is no requirement in Order 5 Rule 7 and no requirement that has to be complied with, there is no compliance of a requirement that can be dispensed with. Consequently, Order 5 Rule 39 Supreme Court Rules cannot, in my view, be relied upon by the applicant for the relief that he seeks.

11. In regard to the Supreme Court decision relied upon by the applicant, Anton Yagama v. Peter Yama (2013) SC1219 and other decisions such as Waranaka v. Dusava (2008) SC942; Tom Olga v. Pias Wingti (2008) SC938; and Dawa Dekana v. Nick Kuman (2013) SC1272, notwithstanding that there is acknowledgement that the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules enables only a final decision to be the subject of an application for review and that there is the ability to rely upon Order 5 Rule 39 for dispensation, as far as I am aware, when dispensation with compliance with Order 5 Rule 7 has been granted, the Courts that have granted the dispensation have not had the benefit of the particular argument that this court has considered concerning the specific wording of Order 5 Rules 7 and 39 Supreme Court Rules.

12. In the absence of any Supreme Court decision that has specifically considered this argument or having done so, has arrived at a contrary conclusion, I am of the view, as expressed, that Order 5 Rule 39 Supreme Court Rules is not able to be successfully relied upon by the applicant for dispensation with Order 5 Rule 7 Supreme Court Rules that he seeks. Given this, it is not necessary to consider the other submissions of the applicant and counsel concerning the remainder of the relief sought by the applicant in his amended notice of motion.

Orders

13. The orders of the Court are:

a) All of the relief sought in the amended notice of motion of the applicant filed 12^th January 2018 is refused;

b) The costs of the first and second respondents of and incidental to the said amended notice of motion shall be paid by the applicant.
___________________________________________________________
Applicant In Person
Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent