SC935 

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 22 OF 2008

Application under s 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:

ERIE OVAKO JURVIE
Applicant

And:

BONY OVEYARA
First Respondent

And:

ANDREW TRAWEN, 
Electoral Commission of Papua New Guinea
Second Respondent

Waigani: Injia, DCJ
2008: 1st, 3rd September

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Final decision of National Court on an election petition - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Exercise of discretion- Relevant criteria and principles. 

Cases cited: 
Application of Miozing [1992] PNGLR 122
Application of Ludwig Patrick Schulze (1998) SC572 
Application of Herman Leahy (2006) SC855 
Andrew Trawen & Another v Steven Kama & others (2008) SC915
Application by Ben Semri (2003) SC723 
Balakau v Torato [1983] PNGLR 81 
Ivarato v Lafanama (1998) SC563 
Kasap v Yama [1988-89] PNGLR 197
Mamando v Nii [1977] PNGLR 496

Counsel: 
A Manase, with S Tadabe for the Applicant 
P Mambei, for the First Respondent
A Kongri, for the Second Respondent

3 September, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "Petition Review Rules"). It is contested by the respondents.

2. Prior to 3rd December 2007, the existing Review Rules made in 2002 did not contain any leave for review provision. The case law that prevailed at that time established that leave is not required: Balakau v Torato [1983] PNGLR 81, Kasap v Yama [1988-89] PNGLR 197, Application of Miozing [1992] PNGLR 122, Ivarato v Lafanama (1998) SC 563, Application of Ludwig Patric Schulze ( 1998) SC 572. 

3. On 3rd December 2007, the Judges amended the Petition Review Rules 2002 and inserted a leave provision in Subdivision 1, rr 1 – 10. For purposes of completeness, I reproduce Div. 1 below:

" Sub-division 1. Application for Leave to apply for Review

1.	A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155(2)(b) of the Constitution.

2.	An application under Section 155(2)(b) of the Constitution in respect of a decision referred to under Rule 1 lies to the court with leave only.

3.	An application for leave shall –

(a)	be entitled 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; and

(b)	be entitled in the name of the person making the application and the name of the respondents; and

(c)	state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and

(d)	state an address for serve of the applicant; and

(e)	be signed by the applicant; and

(f)	be in accordance with Form 5A; and

(g)	be filed in the Supreme Court Registry at Waigani.

4.	The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgement and order of the National Court.

5.	The filing fee for the application for leave shall be K750.00.

6.	At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.

7.	The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time as extended by the Court, upon application made within that 14 days period.

8.	The application for leave and supporting affidavit shall be served personally on the respondents not later than 3 days before the application is made and an affidavit of service shall be filed within that 3 days period.

9.	The application for leave shall be made before a Judge.

10.	A decision to grant or a refusal to grant leave is final and shall not be subject to further review."

4. The grant of leave is discretionary. It is a judicial discretion and it must be exercised on proper principles and on proper grounds. The Petition Review Rules do not provide for how the discretion is to be exercised or the relevant considerations to be taken into account in determining the question of leave. The present application is the first case in which those matters are now considered. Counsel representing the parties made helpful submissions to assist me determine those matters.

5. There is general consensus amongst counsel as to two criteria which apply in determining the question of leave. Submissions by counsel for the Electoral Commission, Mr Kongri, slightly differs from the submissions of counsel for the other two parties, in that he urges the Court to take a broader approach and not restrict itself to those two criteria. I agree with him that there may be other criteria which may be developed in other cases which may be limited to the circumstances of the case before it or of general application to other cases. In such cases the Court may rely on principles enunciated in cases such as Avia Aihi v The State [1981] PNGLR 81 which Mr Kongri referred to. One such criteria suggested by Mr Manase as to the finality of the decision of the National Court is one such criteria which may be properly argued and determined by the Court. I agree with Mr Kongri that it would be premature for the Court to develop a criteria which does not arise in the particular circumstances of the case before it. In the present case, I am inclined to limit myself to the two criteria agreed upon, which are relevant to this application. 

6. In Application of Herman Leahy ( 2006) SC 855, the Supreme Court dealt with the question of whether the applicant should be granted leave for review under s 155 (2)(b) of the Constitution in a criminal matter. The Supreme Court comprising of Kapi CJ, Cannings J & David J canvassed the principles which should apply to grant of leave under s 155 (2)(b) of the Constitution. I simply restate those principles. The Court stated: 

"57. The nature of the Supreme Court’s jurisdiction under Section 155(2)(b) was explained by Kapi DCJ, as he then was, in Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686. In dicta adopted by other members of the court (Los J, Salika J, Sakora J and Injia J), it was stated:

Section 155(2)(b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State … held that the Court may in its absolute discretion allow a limited class of cases for review under Section 155(2)(b). 

There are three categories of cases where judicial review has been exercised under this provision:

(1)	Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (No 2) [1982] PNGLR 44).
 
(2)	Where a right of appeal is prohibited or limited by law (eg election petition cases where an appeal is prohibited).

(3)	Where there is no other way of going to the Supreme Court (see SCR No 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433).

58. Whether leave for review under Section 155(2)(b) is necessary and, if it is necessary, what criteria apply when deciding whether to grant leave, depend on the category of the case.

Category 1: where there is a right of appeal

59. If there is a right of appeal but it has not been invoked (eg due to expiry of the statutory time limit of 40 days under the Supreme Court Act, Sections 17 (civil appeals) or 29 (appeals by persons convicted in criminal cases), three criteria have to be satisfied before leave can be granted:

(1) It is in the interests of justice to grant leave; and

(2) there are cogent and convincing reasons and exceptional circumstances, eg  some substantial injustice is manifest or the case is of special gravity; and

(3) there are clear legal grounds meriting a review of the decision.

60. In deciding whether there are cogent and convincing reasons, the following matters are relevant:

(a)	the reasons for not filing an appeal within time; and

(b)	the merits of the case sought to be argued.

61. The above principles are based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J. They have subsequently been developed and applied in many cases, eg Danny Sunu v The State [1984] PNGLR 305, Pratt J, McDermott J, Woods J; The State v Colbert [1988] PNGLR 138, Kapi DCJ, Bredmeyer J, Amet J; David Toll v The State (1989) SC378, Bredmeyer J, Woods J, Konilio J; New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Bredmeyer J, Amet J, Barnett J; and Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437, Amet CJ, Kapi DCJ, Los J. They apply to both civil and criminal cases.

Category 2: where an appeal is prohibited or limited by law

62. In these cases, leave is not necessary. For example, the Organic Law on National and Local-level Government Elections prohibits appeals against decisions of the National Court on election petitions. Nevertheless the Supreme Court can review such decisions under Section 155(2)(b). The Supreme Court has decided that, as an appeal is prohibited, it is not necessary for leave to be sought. (Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, Kapi DCJ, Sheehan J, Injia J). 

Category 3: where there is no other way of coming to the Supreme Court

63. If an appeal is not expressly prohibited or limited by law but the applicant has no way of coming to the Supreme Court except under Section 155(2)(b), leave is necessary. But the Avia Aihi criteria do not apply. The only criteria to be satisfied are:

1)	there is an important point of law to be determined; and 

2)	it is not without merit.

64. Those principles were developed by the Supreme Court in Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433, Kidu CJ, Kapi DCJ, Amet J. 

65. In some cases it has been suggested that those principles also apply to the election petition scenario, ie the category 2 cases. (See Applications of Kasap and Yama [1988-89] PNGLR 197, Kidu CJ, Kapi DCJ, Woods J; Moi Avei and Electoral Commission v Charles Maino (1998) SC584, Hinchliffe J, Sheehan J, Jalina J; SCR No 72 of 2003; Robert Kopaol v Philemon Embel (2003) SC727, Sawong J, Kirriwom J, Batari J). Though it is not necessary to decide the issue here, we think the better view is as stated in Schulze: the two Foreign Exchange & Gold) Regulations case criteria do not apply if an appeal is expressly prohibited.)"

7. A review of a decision of the National Court on an election petition falls under the second category in Herman Leahy case because s210 of OLNLLGE expressly prohibits an appeal in the following terms:

"220. Decision to be final.

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

8. In Andrew Trawen & Another v Steven Kaman & others, (2008) SC 915, Kapi CJ (sitting as single Judge of Supreme Court) determined that the amendment to the Petition Review Rules 2002 which introduced a leave provision changed the case law on the question of leave. His Honour concluded that the Petition Review Rules prevailed and that leave for judicial review is validly required

9. The first category in Herman Leahy case is obviously not applicable to review of decision on an election petition. The second and third category obviously is relevant to a review of a decision on an election petition. Since Herman Leahy decision, with the promulgation of Div.1 of Petition Review Rules 2002 (as amended) and the Supreme Court decision in Trawen v Kama, the second and third category of Herman Leahy will have to be read with appropriate modifications. When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1.	Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE: Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC 915.

2.	The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC 572.

3.	The three criteria set out for grant of leave in Avia Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.

4.	The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -

- First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572. 
 
- Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases. 

11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.

11. In the present case, the parties entered into a consent order to facilitate a quick trial of the petition. Certain positions were taken by the parties on the facts. The issue in the trial was on a point of law, which required judicial interpretation of s126 and s153 of OLNLLGE. On this basis, the trial Judge found that the 567 ballot papers were initialled by the presiding officer in the front of the ballot - paper and not on the back of the ballot paper as required by s126 of OLNLLGE. The trial judge found that 567 votes with which the first respondent went on to win the election, were not informal because under s153 of the OLNLLGE, the initialling of a ballot paper in the front of the ballot paper was not expressly stipulated as a ground for invalidating a ballot paper as being informal. 

12. Sections 126 and 153 of OLNLLGE provide: 

126.	Ballot-papers to be initialled.

(1)	No ballot-paper shall be delivered to a voter without being first initialled or affixed with an official mark as prescribed by the presiding officer, and an exact account shall be kept of all initialled ballot-papers.

(2)	The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.

153.	Informal ballot-papers.

(1)	Subject to this section, and to Divisions 3 and 4 and the Regulations, a ballot-paper is informal where:—
(a)	it is not authenticated by the initials of the presiding officer or by an official mark as prescribed; or…

(5)	Subject to Divisions 3 and 4, a ballot-paper shall not be informal for any reason other than a reason specified in this section.

13. It is agreed by parties that the point is purely one of law. As the point does not involve fact, the second criteria is inapplicable. The question is whether the applicant has a serious issue on a point of law which is not without merit. The specific point of law is this: As a matter of construction of s126 and s153 (1)(a) and (5)of OLNLLGE, does the initialling of a ballot paper in the front of the ballot paper in breach of s126(2) render the ballot paper informal? The trial judge said that by virtue of s.153 (5), s153 is the only provision under which a ballot paper is rendered informal. Section 153 does not expressly stipulate that a ballot paper which is initialled in breach of s126 (2) is a ground for declaring it informal. Therefore the 567 ballot papers were not rendered informal. 

14. After considering the submissions made by counsel on this point, I am satisfied that the wording of s 153 (1) (a) leaves it open for argument as to the manner in which a ballot paper is authenticated by initials or an official mark by the presiding officer. Section 153 makes no provision for the manner in which a ballot - paper may be "authenticated" by the Presiding Officer whereas s126 does. The latter part of s153 (1)(a), namely "by initials of the presiding officer or by an official mark as prescribed" appears to be imported from s126. Could this mean that notwithstanding absence of express mention of s126 in s153, the manner of authentication of a ballot - paper in accordance with s126 (2) is implied by s153 (1)(a)? The answer to this question depends on the interpretation of s126 and s153 (1)(a) and (5). This is an important point of law. The trial judge made an effort to define these provisions. In his analysis, His Honour distinguished the National Court decision in Mamando v Nii [1977] PNGLR 496 at 499 and also made reference to other cases. In my view, the interpretation given by His Honour may not be clear cut as His Honour purported to demonstrate in his decision. There is also no authoritative judicial pronouncement in any cases decided by the Supreme Court that I am aware of, in which this very point of law in question has been conclusively decided. In my view, the full Supreme Court should decide on this point of law. The question whether the 567 ballot papers should have been allowed to be counted depends on a decision on this point of law. The 567 ballot papers were determinative of the result of the election. For these reasons, I am satisfied that this point of law is an important one and is not without merit.

15. The question of integrity of the ballot papers raised before me by Mr Kongri was not raised and determined by the Court below. The lone sentence in page 20 of the judgment referred to by Mr Mambei is clearly a passing remark of obiter significance. It is irrelevant in this application. Whether such arguments may still be advanced before the Supreme Court at the hearing of the substantive application is a matter for that Court to determine. The same applies to the applicant’s reliance on s138 (b) which was not raised in the Court below. 

16. For these reasons, I grant leave to apply for judicial review with costs to the applicant.

17. In order to fast-track the filing and listing of the substantive application for review, I intend to issue directions which are consistent with the relevant provisions of the Petition Review Rules.

18. The formal orders of the Court are:

a) The application for leave for review is granted.

b) The applicant shall file and serve an application for review in accordance with Subdivision 2 of the Petition Review Rules.

c) The application shall be made returnable on 15th September 2008 at 9:30 am before this Court for directions.

d) In the event that parties wish to expedite the conduct of directional hearings to expedite the listing of the application for hearing, I grant liberty to the parties to apply for appropriate directions upon 3 days notice to the other party.

e) The respondents shall pay the applicant’s cost of this application. 

Steeles Lawyers: Lawyer for the Applicant
Mambei Lawyers: Lawyer for the First Respondent
Nonggorr & Associates: Lawyer for the Second Respondent