[1977] PNGLR 356

PAPUA NEW GUINEA

[supreme court of justice]

In the matter of the Organic Law on National Elections in the matter of Returns for the Southern Highlands Provincial Electorate; and

DICK MUNE

v

PAUL POTO

waigani: kapi dcj, los j and salika j
17 July, 27 September 1996

Civil practice and procedure – Supreme Court review under s 155(2)(b) Constitution – Review of National Court Order – Order made by mistake – Power of the National Court to correct its own mistake considered.

Election petition – Review of – Delay in filing the review application under s 155(2)(b) considered.

Facts

Various review applications were filed by both parties and others under s 155(2)(b) of the Constitution seeking judicial review of the decision of the National Court to erroneously dismiss and then, realising the mistake, to reinstate the petition.

The following issues were particularly put before the Supreme Court for its determination:

1.	Whether leave is needed to invoke the review jurisdiction of the Supreme Court;

2.	Whether the National Court had power to reconsider its own previous decision and correct its own mistake; and

3.	Whether the application must fail on the grounds of delay even if the court had power to correct its own mistake.

Held

1.	Where no appeal provisions are provided under a legislation, an aggrieved party may seek a review as of right: Herowa Agiwa [1993] PNGLR 136 cited with approval.

2.	Neither statutorily nor constitutionally, in particularly under s 155(3) Constitution, the National Court cannot vacate or correct its own mistake. Where the National Court makes a mistake, the Supreme Court may correct that mistake by virtue of its appellate powers or where no appeal provision is provided, by virtue of its inherent power under s 155(2)(b) Constitution.

3.	The National Court judge has inherent jurisdiction by common law to rectify a mistake in order to avoid injustice: re Swire, Mellor v Swire (1885) 30 Ch. D. 293 and Milson v Carter [1893] AC 638 considered and adopted.

4.	The power of the National Court to rectify a mistake does not involve a question of appeal to a higher tribunal.

5.	It has taken two years before the respondent/applicant filed the judicial review. The applicant has not given any explanation whatsoever or justification for the long delay. In view of the circumstances, the long delay in filing the review is excessive.

6.	Accordingly, application dismissed.

Papua New Guinea cases cited

Application of Ambra Nii [1991] PNGLR 357.
Malipu Balakau v Torato [1983] PNGLR 242.
Re Delba Biri v Bill Ninkama [1982] PNGLR 342.
Reva Mase v The State (1980) (Unreported) N260.
SCR No. 4 of 1994, Application by William Ekip Wii (Unnumbered) 26 July 1994.
SCR No. 5 of 1988 Kasap v Yama [1988-89] PNGLR 197.
SCR Rev.No. 1 of 1990, Application by Electoral Commission [1990] PNGLR 441.

Other cases cited

Commonwealth v McCormack (1984) 155 CLR 273.
Gould v Vaggelas (1985) 157 CLR 215.
Harton v Harris [1892] AC 547.
L Shaddock & Associates v Paramatta City Council (No 2) (1982) 151 CLR 590.
Mellor v Swire re Swire, (1885) 30 Ch D 239.
Milson v Carter [1893] AC 638.

Counsels

P Paraka, for the applicant.
G Shepherd, for the respondent.
J Bray, for the Electoral Commission.

27 September 1996

By the court. The applicant Dick Mune was the declared winner of the Southern Highlands Provincial Electorate in the last National Elections. Mr. Paul Poto and Mr. Anderson Agiru filed petitions disputing the result of the election under the provisions of Organic Law on the National Elections (OLNE). 

Parties agreed to try the three petitions together on the basis that the factual circumstances and the issues of law were to be the same. The circumstances which were considered to be similar in the three cases was that ballot papers in a number of ballot boxes were either stolen or destroyed and the question to be considered by the court in relation to the three petitions was whether the results of the elections in respect of both electorates were likely to be affected by the loss of the ballot papers. The three matters came on for hearing before the Chief Justice.

On 29 March 1994 the Chief Justice handed down his decision. In respect of the petition by Paul Poto the Chief Justice found that the number of votes polled by the winning candidate exceeded the number of ballot papers lost by 192. As a consequence of this conclusion, the Chief Justice dismissed the whole of the petition.

Apparently the Chief Justice did not consider other grounds upon which the petition was based. The lawyers for the petitioner picked up this mistake and a subsequent application was filed on 7 April 1994 to reinstate the petition in relation to the balance of the grounds stated therein. On 21 April 1994 the Chief Justice reinstated the petition on the balance of the grounds. The respondent/applicant filed a judicial review under s 155 (2) (b) of the Constitution on 12 April 1996 challenging the reinstatement of the petition by the Chief Justice. 

Subsequent to the reinstatement of the petition, the Chief Justice heard an application to dismiss the petition on the grounds that it did not comply with a fundamental requirement of a petition pursuant to s 208 of the Organic Law on National Election. The Chief Justice gave his ruling on this issue on 23 November 1994. In this ruling he dismissed all grounds stated in the petition except for grounds 3 (e) and (f). These two grounds relate to the correctness of the number of votes counted in the tally sheets. The respondent /applicant has filed a judicial review under s 155 (2) (b) of the Constitution challenging this decision. The review was filed on 12 April 1996.

On 19 December 1995 the Electoral Commissioner filed an application to strike out the remaining grounds 3 (e) and (f) of the petition. Mr. Justice Sheehan heard the application on 20 March 1996 and dismissed it. The respondent/applicant has filed a judicial review against this decision under s 155 (2) (b) of the Constitution. This review was filed on 12 April 1996.

On 4 April 1996 the respondent/applicant filed another application to strike out the remaining grounds of the petition. On 10 April 1996 Sheehan J. refused to hear the application and ordered that the petition should be referred to the Registrar to fix a date for hearing. On 12 April 1996 the respondent /applicant filed a judicial review against this decision pursuant to s 155 (2) (b) of the Constitution.

The four reviews were set down for hearing before us on 17 July 1996. At the hearing all parties agreed that the issues raised in SC Rev. No 10 of 1996 should be heard and determined first. If the Court decides in this review that the trial judge had no power to reinstate the petition, the issues raised by the other three reviews will not arise and that there will be no need to consider them. If on the other hand, the Court decides that there was power in the trial judge to reinstate the petition, the issues in the other three reviews will need to be determined. On the basis of this agreement the Court proceeded to hear and determine SC Rev. 10 of 1996.

SC Rev. No 10 of 1996.

The decision under review was handed down on 29 March 1994. His Honour the Chief Justice found that:

"The difference between this Petitioner who was the runner-up and the first respondent was 3,841. This exceeded the conceded number of lost ballot papers of 3,649 by 192."

His conclusion and consequential orders were:

"... because the difference in the votes between the winner, the First Respondent and the runner-up Petitioner executed the total ballot papers conceded as lost, I cannot be satisfied that the result of the election was likely to be affected.

The Petition is therefore dismissed. The end result is that both petitions against the result of the provincial electorate are dismissed."

Subsequently the petitioner sought by a notice of motion to reinstate the petition so that the Court could hear the balance of the petition. It was argued that the Court made an accidental step in dismissing the other grounds of the petition without a hearing. On 21 April 1994 His Honour the Chief Justice vacated his order dismissing the petition and reinstated the balance of the petition. He said:

"... the question has arisen as to whether or not I am able to stay my own judgment or and vary it. I think that fairness and justice quite simply dictates that if there has been an error in the final ruling and the orders made thereby are able to be corrected and parties find no prejudice then there is no great difficulty in doing that. So in respect of that petition of Paul Poto I acknowledge that I have overlooked the balance of the petition which remain to be dealt with in several stages so that it is not difficult to amend that judgment in respect of that. I therefore vacate my ruling that that petition is dismissed. It is unsuccessful only in respect of the ground of the loss of the ballot boxes ... The balance of the petition therefore remains to be dealt with."

The application before the Supreme Court is to review that order where the National Court vacated its previous order dismissing the petition and reinstated the balance of the grounds of the petition. The first issue therefore is whether the National Court had power to reconsider its own previous decision and correct a mistake. The second issue is whether the application must fail on the grounds of delay even if the Court had power to correct a mistake.

For completeness, before going to the merit of the case we address the issue whether leave is needed to invoke the review jurisdiction of the Supreme Court. The answer has been given in numerous cases. That is where no appeal provisions are provided under a legislation, an aggrieved party may seek a review as of right. See Application by Herowa Agiwa [1993] PNGLR 136, for example.

The applicant argues that the National Court had absolutely no power to revisit its earlier decision because it was prohibited by s 220 of the Organic Law on National Election. Section 220 says:

"A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in anyway."

It was argued that the only way open was for the aggrieved party to have applied to the Supreme Court for a review under s 155 (2) (b) of the Constitution. Section 155(2) (b) says:

"The Supreme Court -

(b)	has an inherent power to review all judicial acts of the National Court."

On behalf of the respondent, it was argued that the combined effect of the case law, some provisions of the Organic Law on National Election and s 155(3) of the Constitution allowed the National Court to review its own decision to do justice in the case.

The provisions of the Organic Law on National Election that the respondent relies on are sections 212(2) and 217. It was argued that the National Court had to grant a remedy, which was just and sufficient without regard to legal forms and technicalities. That remedy was to vacate the earlier decision. Section 212(2) says:

"The court may exercise all or any of its powers under this section on such grounds as the court in its discretion thinks just and sufficient."

Section 217 says:

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

We consider that the discretion in s 212(2) is limited by the phrase all or any of its powers under this section; "all" of its powers are specifically prescribed in s 212(1)(a) to (k). In our view the discretion lies in the choice of selecting and making any of the orders in order to reach a just and efficient result but there is no discretion to go outside the orders specifically mentioned like vacating an order dismissing a petition. Section 212(1) says:

"In relation to any matter under this part the National Court may sit as an open court and may, among other things -

(a)	adjourn; and

(b)	compel the attendance of witnesses and the production of documents; and

(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d)	order a recount of ballot-papers in an electorate; and

(e)	examine witnesses on oath; and

(f)	declare that a person who was returned as elected was not duly elected; and

(g)	declare a candidate duly elected who was not returned as elected; and

(h)	declare an election absolutely void; and

(i)	dismiss or uphold a petition in whole or in part; and

(j)	award costs; and

(k)	punish contempt of its authority by fine or imprisonment"

Even for those orders in s 212, the Court’s discretion is not unlimited. See an unreported decision of this Court in Application by William Ekip Wii SCR 4 of 1994 delivered on 26 July 1994.

Likewise s 217 gives the Court greater latitude in allowing information or evidence and examination of it without being bogged down by technical rules of evidence. It is a procedural section, see Re Delba Biri v Bill Ninkama [1982] PNGLR 342 and also Application by Electoral Commission SC Rev 1 of 1990 [1990] PNGLR 441. This latitude starts from the beginning of the hearing to delivery of a decision encompassing any of the orders in s 212. In our view beyond this point s 220 comes into play. That section makes a decision "final and conclusive ... and shall not be questioned in anyway". The proper way the decision should have been dealt with was what was said in SC Rev No. 5 of 1988 Kasap v. Yama [1988-89] PNGLR 197 at 201:

"... from several readings of the judgement that these grounds were ‘forgotten’ and never dealt with by the trial judge. ... As soon as the trial judge made up his mind to declare... the winner, without doing so he should have proceeded with the outstanding grounds."

It was suggested next, that the National Court had a power to vacate its earlier decision by virtue of its inherent power in s 155(3) of the Constitution. Section 155(3) (a) says:

"The National Court - 

(a)	has an inherent power to review any exercise of judicial authority."

In our view this suggestion is ridiculous. The National Court’s inherent power in that section is to review decisions of subordinate courts, semi judicial and administrative tribunals. Where the National Court makes a mistake, the Supreme Court may correct that mistake by virtue of its appellate powers or where there is no appeal provision is provided, by virtue of its inherent power in s 155(2)(b) of the Constitution. This principle has been repeated in various election petition cases, for example Application of Herowa Agiwa [1993] PNGLR 136.

We also consider that the applicant cannot draw any assistance from s 155(5) of the Constitution. This provision is not applicable to the circumstances of the case before us. This provides an exception to s 155 (3) (e) where the power of review of the National Court is either removed or is restricted by a Constitutional law or an Act of the Parliament. That power relates to the power of review of inferior tribunals such as appeals from Village Court under the Village Court Act and decisions of tribunals under the Land Dispute Settlement Act. The power of review of the National Court is either removed or restricted and in these matters the National Court may nevertheless exercise the power under s 155 (5) of the Constitution (see Reva Mase v. The State (Unreported judgment of the National Court dated 1 October 1980, N260, Application of Ambra Nii [1991] PNGLR 357). It has no application to the circumstances in the case before us.

Determination of the nature of what the trial judge did in the Court below is important. It will indicate the appropriate source of law, which may be applicable. It is clear from the facts that what the trial judge did in this case was that he considered a particular ground of the petition, namely, the effect of the loss of numerous ballot papers in a number of boxes stolen or destroyed by some armed men on the result of the election. The trial judge concluded that the number of votes polled by the respondent far exceeded the number of lost polling papers by 192. In the result the trial judge concluded that:

"...because the difference in the votes between the winner, the First Respondent and the runner-up Petitioner exceeded the total ballot papers conceded as lost, I cannot be satisfied that the result of the election was likely to be affected.

The Petition is dismissed. The end result is that both parties against the result of the provincial electorate are dismissed."

What in fact happened was that the trial judge made a mistake by dismissing the whole of the petition as if that was the only ground for the petition? What he should have done was simply dismissed the particular ground in question and go on and deal with other grounds in the petition. Counsel on both sides should have drawn the attention of the trial judge to the mistake and the mistake could have been rectified immediately. 

The issue for determination is whether the trial judge had jurisdiction to rectify the mistake in the circumstances?

The jurisdiction of the National Court is to be found in s 155 (3) of the Constitution. We have already concluded that s 155 (3) (a) is not applicable to the circumstances in this case. This provision deals with the powers of the National Court in reviewing decisions of inferior courts. 

The Constitution may give other powers to the National Court (s 155 (3) (b)). However, there is no Constitutional provision, which expressly gives power to the National Court to correct a mistake in its decision. 

The question then arises; whether, there are common law principles which may be applicable under the words ".... such other jurisdiction and powers as are conferred on it by.... any law" under s 155 (3) (b) of the Constitution? Counsel on both sides failed to address the Court on whether the principles of common law gives power to the National Court to rectify a mistake by a judge as was done by the trial judge in the case before us.

There is authority for the proposition that the Supreme Court has inherent jurisdiction in common law to rectify a mistake in order to avoid injustice. This is quite distinct from jurisdiction, which is given by a statutory provision, which is mainly referred to as the slip rule. The former jurisdiction has been exercised by the Appellate Courts in England (see Harton v Harris [1892] AC 547; Milson v Carter [1893] AC 638) and by the High Court in Australia (see L Shaddock & Associates v Parramatta City Council [NO 2] (1982) 151 CLR 590; Commonwealth v McCormack (1984) 155 CLR 273; Gould v Vaggelas (1985) 157 CLR 215). This inherent jurisdiction is now expressly provided for in s 155 (2) (b) of the Constitution. But the question before us is whether the National Court has such jurisdiction.

A general statement of the law appears in the judgment of Bowen LJ. in re Swire, Mellor v Swire [1885] 30 Ch. D. 239 at p 247:

"I think the true view is, as stated by the Lord Justice Cotton, that every Court, has inherent power over its own records as long as those records are within its powers, and that it can set right any mistake in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error if its own minister. An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice. The Lord Justice Lindley has pointed out that this power, which we are now asserting is a power which was always possessed by the Courts of Chancery under the old system. On that point I say nothing. But I venture to add this, that it is a power which has been exercised for hundreds of years by the Common Law Courts, and it would indeed be strange if the power were to have disappeared when the Court of Appeal was created by the Judicature Act. Lord Penzance, speaking as a common lawyer, was well justified, as one would expect from a Judge of his great distinction, in saying that at common law it was always understood that the Court had the power to make these corrections. When there was any mistake which could be ascribed to the officers of the Court, judgments at common law could always be amended in the term, and in some cases after the term in which they were pronounced."

In Milson v Carter [1893] AC 638 the Privy Council considering a mistake that was made in the Supreme Court expressed a similar power in the court below:

"Unfortunately the respondent did not take the proper course of applying to the Supreme Court to correct the accidental omission in the order granting leave to appeal. If he had done so no doubt the mistake would have been put right as a matter of course." 

It follows from the forgoing that the trial judge had inherent jurisdiction in common law to rectify the mistake he made in his ruling.

The question then arises whether these common law principles are:

(a)	inconsistent with a constitutional law or a statute; or

(b)	inapplicable or inappropriate to the circumstances of the country; or

(c)	inconsistent with any custom

in accordance with Sch. 2.2 of the Constitution.

It has not been suggested that these principles are contrary to any custom or that they are inapplicable or inappropriate to the circumstances of Papua New Guinea. However, the question arises whether s 220 of Organic Law on National Election is contrary to the common law principles set out above? This provision says:

"A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way."

In our view this provision prohibits any appeal to a higher tribunal such as the Supreme Court. It has been decided by this Court that this provision prohibits an appeal to the Supreme Court but cannot prohibit a review under s 155(2)(b) (See Malipu Balakau v Torato [1983] PNGLR 242). The power of the National Court to rectify a mistake does not involve a question of appeal to a higher tribunal. Section 220 is therefore not applicable to the power of the National Court to rectify a mistake. The provision is not in conflict with the common law principles in question.

We conclude from the forgoing that the common law principles are applicable and find that the trial judge had power to reinstate the petition. We would dismiss this ground of review.

We consider that the judicial review should be dismissed for another reason. In this matter it has taken the applicant 2 years before the application for review was filed.

Jurisdiction in electoral matters has been treated by the Courts differently in that the provisions of Organic Law on National Election have been given a strict interpretation. The reason is obvious to bring certainty to results of elections as quickly as possible so that the business of government is put into place with minimal interruption. In the present case the decision by the trial judge was handed down on 21 April 1994. It has taken 2 years before the respondent/applicant filed the judicial review. The applicant has not given any explanation whatsoever or justification for the long delay. The next general election is due in 1997. We consider that in view of the circumstances the delay in filing the review is excessive. We would not grant the orders for this reason.

In the result the application for judicial review is dismissed with costs.

Lawyers for the applicant: Paul Paraka Lawyers.
Lawyers for the respondent: Maladinas Lawyers.
Lawyers for the Electoral Commission: Pato Lawyers.