Unreported Supreme Court Decisions
SC562
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCM NO 5 OF 1998
BETWEEN:
WAUNI WASIA RANYETA
AND
MASKET IANGALIO & ELECTORAL COMMISSION
Waigani
Kapi DCJ Los Sevua JJ
3 July 1998
17 July 1998
APPEAL AGAINST A DIRECTION - by way of motion pursuant to O 11 r 27 Supreme Court Rules - Judicial Review pursuant to s. 155 (2) (b) of the Constitution - single judge of the Supreme Court has no power to give directions in a review - the full bench of Supreme Court has power to give direction - exercise of discretion.
Counsel
A Manase for the Appellant
G Shepherd for the First Respondent
P Young for the Second Respondent
17 July 1998
KAPI DCJ LOS SEVUA JJ: On the 26th June 1998 the Chief Justice directed that there be a split hearing of SCR 67 of 1998.  The effect of the direction was that the ground of review with regard to the exercise of the jurisdiction by the National Court to order a joint trial of two election petitions be set down for hearing on the 3rd July 1998 and the rest of the grounds of review be heard at a future date.
On the 1st July 1998 lawyer for Mr Ranyeta filed an appeal by way of motion pursuant to O 11 r 27 of the Supreme Court Rules against the direction given by the Chief Justice.
The first part of the review was listed for hearing on the 3rd July 1998.  In view of the appeal against the direction given by the Chief Justice, all parties agreed to deal with this appeal (SCM 5 of 1998) first.
It is necessary to set out the brief narrative of the events leading to the application now before us.
Two petitions were filed against the result of election of the member for Wapenamanda Open Electorate in the 1997 General Elections (EP No 13 of 1997 and EP No 65 of 1997).  Both petitions were tried together in Mount Hagen and on the 1st June 1998 the National Court declared the election of the member for the Wapenamanda Electorate absolutely void and further ordered that a by-election be held.
Mr Iangalio, the ousted member has filed a judicial review of this decision in accordance with s. 155 (2) (b) of the Constitution (SCR No 67 of 1998).
Mr Miki Kaeok, the petitioner in EP 13 of 1997 has also filed a judicial review under s. 155 (2) (b) against the same decision of the National Court (SCR No 70 of 1998).
Counsel for Mr Iangalio applied to stay the execution of the National Court  orders pending the determination of the judicial review (SCR 67 of 1998).  This application was heard by the Court constituted by Amet CJ Sakora J and Sevua J on the 5th June 1998.  The Court dismissed the application in respect of the order invalidating the election of Mr Iangalio but granted stay in respect of the order for a by-election pending the hearing and the determination of the review.
There is some dispute between the parties as to whether or not the Court on the 5th June 1998 gave a further direction as to the split hearing of the review (SCR 67 of 1998).  Counsel for Mr Ingalio submits that the Court gave direction for a split hearing of the review.  Counsel for Mr Ranyeta submits that there was a suggestion in passing by the Chief Justice that the there should be a split hearing of the review in respect of the issue of jurisdiction raised by ground 6 (a) (ii) of the review (SCR 67 of 1998) but there was no such direction given by the Court on the 5th June 1998.
It is important to determine this fact.  If the Court on the 5th June gave such a direction then this issue has been dealt with and therefore the same matter cannot be dealt with again by this Court.  If on the other hand, the Court on the 5th June 1998 did not give such a direction and that such a direction was given by the Chief Justice sitting as a single judge on 26th June 1998, then the question whether the Chief Justice did have jurisdiction to give such a direction arises.
A member of this Court (Sevua J) who was a member of the Court that considered the application for stay on the 5th June 1998 is unable to recall and can find no such direction in his notebook.  We examined the Court file (SCR 67 of 1998) and cannot find any such direction.  We indicated at the hearing that we would check the recording of the proceedings on the 5th June 1998 and the parties agreed that they would be bound by what ever the recordings of the proceedings reveal.  We have had an opportunity to check the recordings of the proceedings on the 5th June 1998 and cannot find any direction for the split hearing of the review.  There was a suggestion by the Chief Justice that there could be split hearing on the jurisdiction issue.  However, it is clear there was no such direction given by the Court.
This in our view accords with what occurred later during the directions given by the Chief Justice on the 26th June 1998.  At this hearing, the Chief Justice was sitting as a single judge of the Supreme Court.  The Chief Justice at this hearing indicated to the parties that the review (SCR 67 of 1998) together with other election petition reviews which had been listed for hearing were vacated due to financial constraints.  SCR 67 of 1998 was listed for hearing on 29th June 1998 at 1.30pm.  His Honour also indicated that the transcript of trial was lengthy and that it was not yet available.
At this point, counsel for Mr Iangalio then submitted that his client’s review would not be long and would not require the full transcript for the purpose of the argument on the jurisdiction issue.  The Chief Justice then invited other parties to make submissions on the issue.  Counsel for Mr Ranyeta and Mr Kaeok objected to the spilt hearing of the review in the manner suggested.
The Chief Justice nevertheless gave the direction that the parties to SCR 67 of 1998 should argue only the jurisdictional issue of whether the National Court had the power to join the hearing of EP Nos 13 and 65 of 1997 (without the full transcript of the National Court proceedings) and that the balance of the grounds of the review be listed for hearing at another sitting of the Court convenient to it upon determination of the jurisdiction issue.
Counsel for Mr Ranyate in the present matter has appealed by way of motion against the direction given by the Chief Justice.  He submits that a single judge has no jurisdiction to give such a direction and relies on Viviso Seravo & Electoral Commission v John Giheno (Unreported judgement of the Supreme Court dated 15th January 1998, SC539).  He submits that the judicial review jurisdiction under s. 155 (2) (b) is unique head of powers (see Avia Aihi v The State [1981] PNGLR 81).  There is no Act of Parliament which regulates its practice and procedure.  Unless the power of review and all related matters connected with a review is given to a single judge of the Supreme Court, all such matters must be dealt with by the full bench of the Supreme Court (see Viviso Seravo & Electoral Commission v John Giheno (supra)).  We have reached the conclusion that the Chief Justice did not have power to give the direction.
This Court is constituted as full bench and has power to consider giving such a direction.  Counsel for Mr Iangalio submits that in the exercise of our discretion we should direct that there should be a split hearing of the review.  He submits that as the trial was lengthy it would take sometime before the full transcript is ready.  The determination of the question whether the National Court erred in ordering a joint trial would not require any transcript and it could resolve the final result of the review.  That is to say, if the argument is successful, the decision of the National Court would be quashed and the petitions sent back to the National Court to be tried separately.  He submits that this would save time and costs to the parties.  Mr Young who appeared on behalf of the Electoral Commission supports this submission.
On the other hand, counsel for Mr Ranyate submits that in the event that the review is not successful on the jurisdictional issue, the rest of the review would be held before another Court and that this would lead to multiplicity of review hearings and would result in more costs to the parties.  Mr Manda who appeared for Keoke supports this submission.
As a general principle, we consider that all grounds of review should be heard together in the one hearing.  However, in appropriate cases, certain grounds of review may be dealt with first before other grounds of review (see Dick Mune and Paul Poto Unreported Judgement of the Supreme Court dated 23rd April 1996, SC499).  This is an issue which must be determined on the particular facts of each case.  We have weighed up all the considerations and having regard to the need to determine election cases as quickly as possible, we have come to the conclusion that it would be in the interest of parties to proceed in the manner suggested by counsel for Mr Iangalio.  We find that the Court should proceed to deal with the issue of law while waiting for the transcript of the trial which may be relevant to the other grounds of review.
We direct that the review on the question of jurisdiction be set down for hearing in the next sittings of the Supreme Court which commences on the 27th July 1998.  This hearing will proceed on the review book which has been prepared without the full transcript.
While the appellant is successful on the question of jurisdiction of a single judge to give a direction in a judicial review, the first respondent has successfully obtained an order to have a split hearing of the review.  In the circumstances the parties will bear their own costs of this appeal.
Lawyer for the Appellant:  Pato
Lawyer for the First Respondent:  Maladinas
Lawyers for the Second Respondent:  Allens Arthur Robinson