[1999] PNGLR 207

PAPUA NEW GUINEA

[supreme court of justice]

Review Pursuant to Constitution Section 155 (2) (b)

Application by DAVID LAMBU

V

PETER IPATAS;
EDWARD KONU - (the provincial returning officer); AND
THE ELECTORAL COMMISSION (No. 3)

waigani: kapi dcj; salika, injia jj
23 March and 30 April 1999

judicial review - Judicial Review pursuant to s 155(2)(b) of the Constitution – Application for security for costs pending review – Proper principles for exercise of discretion.

Facts

This is an application for security for costs by the first respondent pending the hearing of the judicial review pursuant to s 155 of the Constitution filed by the applicant. The applicant, Mr David Lambu who was a candidate in the Enga regional seat in the 1997 General Election filed a petition against the results of that electorate. The whole petition was dismissed on a preliminary application and the applicant applied for judicial review of that decision under the Constitution. The Supreme Court dismissed the grounds of review. The applicant not being satisfied with the decision filed a further judicial review to re-open the decision of the Supreme Court claiming that Supreme Court failed to consider the second ground of review. Pending the determination of the review, counsel for the first respondent applied for security of costs. This preliminary application relating to costs forms the basis of this case.

Held

1.	Judicial review under s 155(2)(b) of the Constitution is different in nature from an appeal to the Supreme Court: Avia Aihi v The State [1981] PNGLR 81 distinguished.

2.	The provisions of the Supreme Court Act Ch 37 are not applicable to a judicial review under s 155(2)(b) of the Constitution: Dick Mune v Paul Poto [1996] PNGLR 125 and Viviso Seravo & Electoral Commission v John Giheno (1998) SC 539 distinguished.

3.	It is within the inherent jurisdiction of the Court under s 155(2)(b) of the Constitution to consider whether or not to impose security for costs: Driver v Swanson [1977] PNGLR 30 and Reynolds v Walcott & Others [1985] PNGLR 316 considered.

4.	The ultimate test should be whether it is in the interest of justice to make or not to make an order for costs having regard to all circumstances of the case adopting the words of s 155(4) of the Constitution: Viviso Seravo & Electoral Commission v John Giheno (1998) SC 539 followed.

Papua New Guinea cases cited

Avia Aihi v The State [1981] PNGLR 81.
Brinks Pty Ltd Barry Tan & Herman Lucas v Brink’s Incorporated [1996] PNGLR 75.
Dick Mune v Paul Poto [1996] PNGLR 125.
Driver v Swanson [1977] PNGLR 30.
Osprey Industries v Hallam [1992] PNGLR 557.
Reynolds v Walcott & Others [1985] PNGLR 316.
Sir Julius Chan v Ephraim Apelis & Electoral Commission (No. 2) [1999] PNGLR 187.
Viviso Seravo & Electoral Commission v John Giheno (1998) SC539 unreported.
Wallbank & Minifie v The State [1994] PNGLR 78.
Yarlett v New Guinea Motors Ltd [1984] PNGLR 155.

Other case cited

Cowell & Taylor [1885] 31 Ch. D. 34.

Counsel

D Lambu, in person.
C Coady, for the first respondent.
A Kongri, for the second respondent.

30 April 1999

By the court. This is an application for security for costs pending the hearing of judicial review pursuant to s 155(2)(b) of the Constitution. It is necessary to set out the background to the application.

Mr David Lambu (the applicant) filed a petition against the result of the election of the member for the seat of Enga Regional in the last National General Elections (EP No. 74 of 1997). On a preliminary application, Sakora J. dismissed the whole petition. The applicant then applied for judicial review of the decision under s 155(2)(b) of the Constitution (SCR No. 30 of 1998). He raised several grounds but relied mainly on two:

"1.	That the learned trial judge erred in law: in holding that the first respondent was entitled to nominate to contest for a seat in the National Parliament whilst still holding or occupying another elective public office created under the provisions of the Organic Law on Provincial and Local-Level Governments.

2.	The learned trial judge erred in law in holding that s 254(b) of the Constitution did not prevent or prohibit the first respondent from being declared a member of the National Parliament whilst still holding or occupying another elective office created or established pursuant to the provisions of the Organic Law on Provincial and Local-level Governments."

The Supreme Court dealt with these two grounds in its decision dated 5th June 1998 (the first review) in the following passage:

"We are of the opinion that these two grounds, ought to be dealt with together as they raise similar grounds. We accept the submissions put by the respondents for two reasons. First, at the time Mr Ipatas nominated to contest the election he was not holding ‘another public office’. At that point in time, he was holding one elective public office. The nomination cannot be regarded as ‘another public office’ as provided under s 254(b) of the Constitution. The second reason is that we do not consider that the provisions of s 254(b) of the Constitution can be said to be a factor for disqualification for the purposes of s 103(3) of the Constitution. We are of the view that there is no law, either in the Constitution, the Organic Law or any other law, in so far as this case is concern requiring a person holding an elective public office to resign that office prior to nominating to contest the National Election. We find that the trial judge had carefully considered the principles and authorities and came to the proper conclusion. We find no errors and we dismiss these grounds of the review."

The applicant not being satisfied with the decision, filed a further judicial review to re-open the matter on the basis that the Supreme Court failed to deal with the second of the two grounds of review referred to above. In its decision dated 27th November 1998 (the second review) the Court ruled:

"We have considered all the submissions submitted by all the parties. In our decision in SCR 30 of 1998, we considered those grounds and we said at p.3: ‘We are of the view that those two grounds, ought to be dealt with together as they raise similar grounds…’. We set out our reasons why we accepted the submissions by the two respondents and dismissed those two grounds.

In the present case, we conclude that these two grounds were in fact considered by the Court and the Court’s ruling is in the paragraph we have referred to. It is our firm view that the Court has made a ruling or decision in regard to the second ground already. It follows that we consider the present application to be unmeritorious, mischievous and without any foundation in law"

The applicant has filed the present review to re-open the decision of the Supreme Court the second time on the basis that the Court refused to acknowledge its mistake in failing to deal with the second point in the second review.

Pending the hearing of this review, counsel for Mr Ipatas (the first respondent) has applied for security for costs. Counsel for the Electoral Commission (the third respondent) supports the application.

The appeal procedure and preliminary issues are regulated by the Supreme Court Act Ch 37 (Act). Security for costs pending an appeal is regulated by s 18 of the Act. A judicial review under s 155(2)(b) of the Constitution is different in nature from an appeal to the Supreme Court (see Avia Aihi v The State [1981] PNGLR 81). Therefore, the provisions of the Act are not applicable to a judicial review under s 155(2)(b) of the Constitution (Dick Mune v Paul Poto [1996] PNGLR 125; Viviso Seravo & Electoral Commission v John Giheno (1998) SC539 unreported. It follows from this that s 18 of the Act is not directly applicable. 

It is within the inherent jurisdiction of the Court under s 155(2)(b) of the Constitution to consider whether, or not, to impose security for costs. The question is; how should this discretion be exercised? In determining this, the Court may have regard to the approach for imposing security for costs in other proceedings as a general guide. In the National Court, security for costs may be ordered to protect the interests of a defendant who may be successful in an action. Order 14 r 25 of the National Court Rules sets out the circumstances in which such an order may be made (see Driver v Swanson [1977] PNGLR 30; Reynolds v Walcott & Others [1985] PNGLR 316 where the plaintiff may be resident overseas and there are no assets within the jurisdiction). The relevant considerations for exercising the discretion are set out in Yarlett v New Guinea Motors Ltd [1984] PNGLR 155.

Section 395(1) of the Companies Act Ch 146 deals with a situation where the plaintiff is a company and there is reason to believe that the plaintiff company is unable to pay the costs of a successful defendant (see Osprey Industries v Hallam [1992] PNGLR 557). 

This Court has previously adopted the same general approach in the National Court for security for costs pending an appeal to the Supreme Court under s 18 of the Supreme Court Act (see Brinks Pty Ltd Barry Tan & Herman Lucas v Brink’s Incorporated [1996] PNGLR 75. 

We bear these general principles in mind in considering the question of security for costs pending the determination of a judicial review. However, the ultimate test should be; whether, it is in the interest of justice to make or not to make an order for security for costs having regard to all the circumstances of the case (adopting the words of s 155(4) of the Constitution). This Court adopted the same test in an application for stay pending the determination of a judicial review in Viviso & Electoral Commission v John Giheno (supra). The onus is on the party applying to demonstrate why the discretion should be exercised in his favour.

Counsel for the respondents submit that the applicant has had an opportunity to go before the Supreme Court twice before and was unsuccessful and he is unlikely to succeed on the merits. 

In addition, they submit that the costs in the previous reviews were awarded against the applicant and he has not paid those costs and therefore he is unlikely to pay the respondent’s costs of this review.

The applicant submits that the costs awarded against him are contained in a Court order and the respondents are at liberty to enforce that order. Up to the time of hearing of this application, the respondents have not taken any proceedings to enforce this order. 

In respect of the merits, the applicant submits that there is merit in the review in that the Court failed to deal with the second point raised in the first review and failed to deal with the same in the second review. He submits that the second point raises an important constitutional issue and will have a significant impact on the result of this case and future cases and it remains unresolved.

The Merits of the Review

It is relevant to consider whether the judicial review is bona fide and not a sham and whether the judicial review has reasonable good prospect of success (see Yarlett v New Guinea Motors Ltd (supra); Osprey Industries v Hallam (supra) in the context of security for costs in the National Court). Whether, or not, the review is bona fide and has a good prospect of success have to be answered within the principles established for a review pursuant to s 155(2)(b) of the Constitution (see Avia Aihi v The State (supra)). This is not the same as determining the full merits of the review, which should be determined when the review is heard on its merits.

We have examined the ground of review and we cannot dismiss the applicant’s main ground as a sham or without any merit. We have earlier set out the two grounds upon which the applicant relies. We find that the first ground was determined in favour of the respondents. The applicant has conceded that this has been dealt with and he has not raised this again in the present review. 

In respect of the second ground, the Court concluded in the second review that this issue was dealt with in the first review and the Court simply made reference to the decision in the first review without more. 

An analysis of the decision in the first review is necessary to determine whether, there is any merit on the ground raised by the applicant. In the relevant passage set out earlier, the Court extensively discussed whether the nomination by the first respondent could be regarded as "holding a public office" within the meaning of s 254(b) of the Constitution. It concluded that a nomination could not be regarded as holding another public office. As we have pointed out, this is no longer an issue.

The Court then addressed the effect of s 254(b) on s 103(3) of the Constitution and concluded:

"The second is that we do not consider that the provisions of s 254(b) of the Constitution can be said to be a factor for disqualification for the purposes of s 103(3) of the Constitution. We are of the view that there is no law, either in the Constitution, the Organic Law or any other law, in so far as this case is concern requiring a person holding an elective public office to resign that office prior to nominating to contest the National Election. We find that the trial judge had carefully considered the principles and authorities came to the proper conclusion."

It should be noted that s 103(3) of the Constitution speaks of "not qualified" in two situations; "not qualified to be" and "remain" a Member of the Parliament. The passage referred to above addresses the first; that is to say, whether, a person may resign to nominate "to be" a member. The Court concluded that there is no law which requires a person to resign before nominating "to be" elected a member of the Parliament. This passage can only refer to the requirements for nomination to be a candidate.

The Court did not address the second situation that is to say, should a person who was already occupying another public elective office when elected a member of the National Parliament become or remain a Member of Parliament at the same time. Nowhere in the judgment did the Court address this issue. The applicant has consistently argued this point in the two previous reviews. The Court in its opinion simply referred to the passage in the first review and concluded that they addressed both points and dismissed the review. With respect, we are unable to agree that the Court addressed the issue of the effect of s 254 (b) of the Constitution in a situation where a person who already holds an elective office is declared a Member of Parliament. We do not have to determine whether or not this ground would succeed. Whether, or not, this ground will succeed is a matter to be determined on the merits in accordance with the principles enunciated in Wallbank & Minifie v The State [1994] PNGLR 78; Sir Julius Chan v Ephraim Apelis & Electoral Commission (No. 2) [1999] PNGLR 187. It is only necessary to determine whether there is an arguable ground for purposes of considering the issue before us. 

Furthermore, the Court failed to discuss the meaning and application of s 103(3)(d) of the Constitution: 

"A person is not qualified to be, or to remain, a Member of the Parliament if-

(a)…
(b)…
(c)…

(d)	he is otherwise disqualified under this Constitution."

The applicant argued in the second review that s 254(b) of the Constitution disqualified the first respondent from becoming a Member of Parliament as he was occupying an elective public office under the Organic Law on Provincial and Local-level Governments. Such a disqualification may be considered as falling under s 103(3)(d) of the Constitution. With respect, the Court omitted to address this point.

In our view, is it arguable that the Court wrongly came to the view that they dealt with the second ground of review when they held in the first review that the two grounds raised a similar ground and concluded that in dealing with the first ground, they necessarily dealt with the second ground. In our view, it is arguable that the Court misapprehended the nature of the two grounds. The two grounds are quite distinct and they ought to be dealt with separately.

We are of the firm opinion that the applicant has arguable grounds of review.

Ability to Pay the Costs of the Review

Counsel for the respondents submit that as there is an order for costs in respect of the reviews heard so far and that he has not paid those costs, that goes to show that he may not pay the costs of this review. Counsel also relies on the affidavit of Mr Lambu (paragraph 6) in which he indicated that he does not have the money to immediately pay the security for costs.

In considering this issue, we bear in mind the principle that in a cause of action in the National Court, insolvency or poverty of the plaintiff is no ground for requiring security for costs (see Cowell v Taylor (1885) 31 Ch. D. 34). The impecuniosity of a litigant ought not be used as a reason to penalise the litigant from having access to the courts. On the other hand, we also bear in mind that applicant has already had three opportunities to present his case; once in the National Court and twice in the Supreme Court. We consider that while the applicant himself has indicated he has no money to pay costs immediately, there is no evidence before us that he has no other assets. 

Having regard to all the circumstances in this case and the fact that the review raises an important constitutional issue, we do not consider that it is in the interest of justice to make an order for security for costs. Such an order may affect or delay the immediate determination of the review.

In the result we dismiss the application with costs to the applicant.

David Lambu, in person.
Lawyers for the first respondent: Henaos.
Lawyers for the second respondent: Nonggorr & Associates.