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Basa v Quoreka [2023] PGSC 33; SC2376 (19 April 2023)

SC2376

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 10 OF 2023

PATRICK BASA
Applicant

V

HARING QUOREKA
First Respondent

ELECTORAL COMMISSION
Second Respondent

&

SC REV (EP) NO 13 OF 2023

ELECTORAL COMMISSION
Applicant

V

HARING QUOREKA
First Respondent

PATRICK BASA
Second Respondent

Waigani: Cannings J
2023: 5^th, 19^th April

ELECTIONS – applications for leave to apply for review by Supreme Court of decision of National Court to dismiss objections to competency of election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The respondents in an election petition (the successful candidate and the Electoral Commission) conducted in the National Court each made an objection to competency of the petition. Each objection was refused by the National Court. Each respondent then filed an application in the Supreme Court seeking leave to review the decision to refuse their objection. There was a joint hearing of the two applications for leave.

Held:

(1) To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2) Some of the grounds of review in the successful candidate’s application for leave raised arguable points of law, but none were so compelling as to give rise to exceptional circumstances and the interests of justice did not require that leave be granted. Therefore, leave was refused.

(3) The Electoral Commission raised several arguable points but none were so compelling as to make the case exceptional, and the interests of justice did not require that leave be granted. Leave was therefore refused.

(4) Costs followed the event.

Case Cited

Papua New Guinean Cases

The following cases are cited in the judgment.
Amet v Yama [2010] 2 PNGLR 87
Ganzik v Iguan (2023) N10122
Hagahuno v Tuke (2020) SC2018
Hewabi v Simaka (2023) SC2373
Kikala v Electoral Commission (2013) SC1295
Pundari v Yakos (2023) SC2345

Overseas Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Counsel

SCREV (EP) 10 of 2023
S Ranewa, for the Applicant
M J Alu, for the First Respondent
H Nii, for the Second Respondent

SCREV (EP) 13 of 2023
H Nii, for the Applicant
T T Yamarhai, for the First Respondent
S Ranewa, for the Second Respondent

19^th April, 2023

1. CANNINGS J: This is a ruling on two applications for leave to apply for review of one decision of the National Court, constituted by Justice Manuhu. His Honour’s decision was made on 8 March 2023 in the election petition EP No 43 of 2022 in which the petitioner Haring Quoreka challenged the return of Patrick Basa as the member for Kabwum Open in the 2022 general election. Mr Basa was first respondent in the EP, the Electoral Commission was second respondent.

2. His Honour dismissed two objections to competency of the petition, one by Mr Basa, the other by the Electoral Commission, ordered costs in favour of the petitioner and ordered that the trial proper commence in May 2023.

3. His Honour dismissed Mr Basa’s objection, which was based on the alleged failure of the petition to comply with s 208(a) and (b) of the Organic Law on National and Local-Level Government Elections, upon being satisfied that the facts relied on to invalidate the election (destruction of ballot boxes and interruption of counting) were sufficiently set out in the petition and that the relief pleaded was consistent with the complaints raised in the petition.

4. His Honour dismissed the Electoral Commission’s objection after upholding a motion by Mr Quoreka that it was incompetent as it was filed late, outside the time allowed by the Election Petition Rules 2017.

5. Mr Basa makes an application for leave to review his Honour’s decision in SCREV (EP) 10 of 2023. The Electoral Commission makes its application for leave in SCREV (EP) 13 of 2023. They require leave to apply for review of the National Court decision under s 155(2)(b) of the Constitution, due to the requirements of Division 5.2 of the Supreme Court Rules 2012.

6. Mr Basa argues by way of proposed grounds of review in SCREV (EP) 10 of 2023 that his Honour:

• erroneously concluded that the petition raised serious issues as to compliance with s 50(1) of the Organic Law, which was an irrelevant provision;
  
• made a confusing remark about making his decision in compliance with the leading case of Hagahuno v Tuke (2020) SC2018 “and what it stands for”, but did not set out any propositions of law that that case stands for;
  
• made another confusing remark about “the relevant principles and laws on pleadings”, without setting out which principles and laws he was relying on to support his decision;
  
• did not address any of the specific objections to the petition, particularly the failure of the petition to plead the facts necessary to show that the Electoral Commissioner acted unlawfully in invoking s 175(1A)(b) of the Organic Law to declare the result of the election;
  
• failed to give sufficient reasons for his decision, despite his Honour clearly recognising the defects in the petition at the hearing and seemingly accepting Mr Basa’s argument that the petition failed to plead the necessary facts to make a case for excess of jurisdiction by the Electoral Commissioner;
  
• erroneously remarked that the petition raised “valid questions”, when there were no questions raised in the petition; and
  
• erred by concluding that the petitioner had sufficiently pleaded the relief that he was seeking, by ignoring Mr Basa’s argument that the petition was incompetent due to the primary relief being sought (an order that the declaration of Mr Basa as successful candidate was unlawful and null and void and an order for a supplementary election) not being amongst the remedies that can be granted by the National Court under s 212(1) of the Organic Law.
  

7. The Electoral Commission argues by way of proposed grounds of review in SCREV (EP) 13 of 2023 that his Honour:

• erred by upholding the petitioner’s notice of motion (that the objection to competency was incompetent), without first ruling on the important argument made in submissions that the notice of motion was itself incompetent (being based incorrectly on rule 18(b) of the Election Petition Rules 2017) and then ignoring that argument in his ruling;
  
• erred procedurally by not ruling on the challenge to the legitimacy of the petitioner’s notice of motion before proceeding to hear the merits of the arguments as to the objection to competency, thus putting the Electoral Commission at a strategic disadvantage in framing its argument as to the merits of its own objection and its support of Mr Basa’s objection to competency;
  
• erred in law in a manner and to the extent that the decision to uphold the petitioner’s notice of motion and dismiss the Electoral Commission’s objection to competency was so unreasonable it offended against the principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, ie the decision was so unreasonable or irrational, no reasonable court could have made it;
  
• erred by acting in contravention of the accepted principle, developed in Amet v Yama [2010] 2 PNGLR 87 and followed most recently in Ganzik v Iguan (2023) N10122, that issues of jurisdiction can be raised and determined at any time, thus elevating the Election Petition Rules to an undeserved status above the Organic Law;
  
• denied the Electoral Commission the right to natural justice and procedural fairness by failing to provide reasons for regarding its submissions as to the merits of its objection to competency as being misconceived, especially in the circumstances of this case where its submissions were allowed to be ventilated at the hearing and his Honour gave the distinct impression that they were being favourably received by the court, thus creating the legitimate expectation that they would be upheld and the petition would be dismissed; and
  
• erred in law by not dismissing the petition due to its seeking relief that was unable to be granted by the court under s 212(1) of the Organic Law.
  

CRITERIA

8. There are many cases that have over the years set out the criteria to be considered when determining applications for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. That case is particularly relevant to the present case as it involved, like this case, a respondent to an election petition making an application for the petition to be summarily dismissed, which was refused in an interlocutory decision of the National Court. Then the respondent to the election petition applied to the Supreme Court for leave for review of the National Court decision.

9. His Honour spelt out the criteria for granting leave. The applicant must show:

(a) in so far as the application relates to a point of law, that it is an important point, which is not without merit, or in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and

(b) there are exceptional circumstances; and

(c) it is in the interests of justice to grant leave.

10. I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. It is important that there be such requirements, at least in cases where the National Court has refused an application for summary dismissal or an objection to competency of an election petition, as the National Court decision does not prevent the party moving for dismissal of the petition from continuing to defend the petition. The decision is an interlocutory decision that does not affect the substantive rights of the party that has had their application or objection dismissed. There needs to be strict criteria for granting leave in such cases, to avoid the spectre of interlocutory decisions being unnecessarily reviewed, long before the National Court is able to make a final decision, and to avoid the prospect of an election petition becoming the exact opposite of what it is intended to be, a simple and straightforward court case to be quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

11. As the Supreme Court emphasised in Hagahuno v Tuke (2020) SC2018, reinforcing what was stated in Kikala v Electoral Commission (2013) SC1295, s 217 applies from the beginning to the end of an election petition, including during the hearing of an objection to competency.

APPLYING THE CRITERIA

12. I now assess the two applications for leave against the criteria spelt out in Pundari v Yakos (2023) SC2345, with full regard to the approach that the National Court was required by s 217 of the Organic Law to take to the two objections before it.

SCREV (EP) 10 of 2023

13. The proposed grounds of review relating to his Honour’s incorrect reference to s 50(1) of the Organic Law (obviously a mistake, s 50(1) of the Constitution being intended), and his allegedly confusing remarks about Hagahuno v Tuke (2020) SC2018 and what it stands for” and “the relevant principles and laws on pleadings” and his alleged failure to give sufficient reasons for his decision and his reference to the questions raised by the petition, do not, in my view, raise any important points of law.

14. Other proposed grounds of review relating to his Honour’s alleged failure to address any of the specific objections to the petition, and his conclusion that the petitioner had sufficiently pleaded the relief that he was seeking, by allegedly ignoring Mr Basa’s argument that the petition was incompetent due to the primary relief being sought not being amongst the remedies that can be granted by the National Court under s 212(1) of the Organic Law, are more weighty and arguable points of law. To that extent the first of the three criteria set out in Pundari v Yakos (2023) SC2345 – the application for leave raises an important point of law that is not without merit – is satisfied.

15. However, I do not think that the arguments entailed in those proposed grounds of review are so compelling that they make this an exceptional case warranting the grant of leave. The primary judge heard the arguments and dismissed them largely on their merits. His Honour considered that it was a special case involving destruction of ballot boxes and that the facts were clearly set out in the petition and were unlikely to be subject to contention. The substantive rights of the applicant, Mr Basa, are left unaffected by the decision to refuse the objection to competency. He is still able to defend the petition. It is reasonably to be expected that he will still be able to make those arguments at the trial of the petition. I distinguish this case from the recent case of Hewabi v Simaka (2023) SC2373, in which I formed the opinion that there were exceptional circumstances warranting the grant of leave. It was in the interests of justice to grant leave. I find in the present case that there are no exceptional circumstances and it is not in the interests of justice to grant leave for review. Leave is therefore refused.

SCREV (EP) 13 of 2023

16. The proposed grounds of review relating to his Honour’s alleged error in upholding the petitioner’s notice of motion without first ruling on the argument that it was itself incompetent and then ignoring that argument in his ruling, thus putting the Electoral Commission at a strategic disadvantage in framing its argument as to the merits of its own objection and its support of Mr Basa’s objection to competency and the argument that his Honour’s decision was unreasonable in the Wednesbury sense, do not, in my view, raise important points of law. The argument that his Honour acted in contravention of the Amet v Yama principle that issues of jurisdiction can be raised at any time does not raise an important point of law in the context of the whole proceedings.

17. The complaint that his Honour denied the Electoral Commission the right to natural justice and procedural fairness by failing to provide reasons for regarding its submissions as to the merits of its objection to competency as being misconceived, does not raise an important point of law. That his Honour allowed its submissions to be ventilated at the hearing and that his Honour gave the impression that they were being favourably received by the court, and that he arguably created the legitimate expectation that they would be upheld and the petition would be dismissed, are all interesting points of contention, but none raise important points of law. This was an objection to competency and it was refused. That is all that happened. The substantive rights of all parties were unaffected by the decision to refuse the objection.

18. The argument that his Honour erred by not dismissing the petition due to its seeking relief that was unable to be granted by the court under s 212(1) of the Organic Law, is the same argument put to his Honour in Mr Basa’s objection. It is an arguable point and if the point is reached at the trial where his Honour must decide on remedies, it should be able to be raised again.

19. The Electoral Commission has raised several arguable points but, as in the case of Mr Basa’s application, none are so compelling as to make this case exceptional, and the interests of justice do not require that leave be granted. Leave is therefore refused.

CONCLUSION

20. Both applications for leave to review the decision of the National Court will be refused. Costs will follow the event.

ORDERS

SCREV (EP) 10 of 2023

(1) The application for leave, filed 14 March 2023, to apply for review of the decision of the National Court of 8 March 2023 in EP No 43 of 2022, is refused.

(2) The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.

(3) The file is closed.

SCREV (EP) 13 of 2023

(1) The application for leave, filed 21 March 2023, to apply for review of the decision of the National Court of 8 March 2023 in EP No 43 of 2022, is refused.

(2) The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.

(3) The file is closed.

___________________________________________________________
SCREV (EP) 10 of 2023
Kawat Lawyers: Lawyers for the Applicant
Supasonixs & Alu Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

SCREV (EP) 13 of 2023
Harvey Nii Lawyers: Lawyers for the Applicant
Supasonixs & Alu Lawyers: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent