SC947

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 16 0F 2008

REVIEW PURSUANT TO THE CONSTITUTION,
SECTION 155(2)(b)

BETWEEN

DAVID ARORE
Applicant

AND

JOHN WARISAN
First Respondent

PAUL KAMANE,
RETURNING OFFICER, IJIVITARI OPEN
Second Respondent

ELECTORAL COMMISSION
Third Respondent

Waigani: Sakora J, Cannings J, Hartshorn J
2008: 31 October, 6 November

ELECTIONS – review by Supreme Court of decision of National Court on election petition – application for stay orders and interim orders pending determination of review.

The National Court upheld an election petition and ordered that the sitting member was not duly elected, that his return was void, that there shall be a recount and that he, amongst others, pay the petitioner’s costs. He applied for and was granted leave for review by the Supreme Court of the National Court’s orders. He then applied for three interim orders, pending determination of the Supreme Court review, viz:

•	a stay of the recount;
•	reinstatement to his seat as a member of the Parliament;
•	a stay of the costs order against him.

Held:

(1)	A full bench of the Supreme Court has jurisdiction under Section 155(4) of the Constitution, to grant a stay of National Court orders on an election petition or to make other interim orders, pending determination of a review under Constitution, Section 155(2)(b), of the National Court orders.

(2)	The test to apply is whether the making of the stay or other interim order is necessary to do justice in the circumstances of the particular case (Viviso Seravo and Electoral Commission v John Giheno (1998) SC555 applied).

(3)	In the present case, having regard to the fact that the pre-hearing processes relating to the Supreme Court review are at an advanced stage, and that there is no evidence that a recount of votes is imminent and the need to avoid uncertainty as to who, if anyone, is the sitting member for any electorate, and the nature and effect of the National Court orders:

•	it is not necessary to stay the recount;
•	it is not necessary for the applicant to be reinstated to Parliament;
•	it is necessary, to do justice, to stay the costs order against the applicant.

(4)	The Court accordingly refused to stay the recount or reinstate the applicant to Parliament but ordered a stay of the costs order against the applicant.

Case cited

The following case is cited in the judgment:
Viviso Seravo and Electoral Commission v John Giheno (1998) SC555

APPLICATION

This was an application for interim orders, pending determination by the Supreme Court of the review of orders made by the National Court following an election petition.

Counsel
D Dotaona, for the applicant
R Daweni, for the first respondent
D Kombagle, for the second and third respondents

6th November, 2008 

1. BY THE COURT: This is a ruling on an application by David Arore for various interim orders, pending determination by the Supreme Court of the review of orders made by the National Court following an election petition.

2. The petition concerned the 2007 election for the seat of Ijivitari Open. Mr Arore won the election but the result was overturned by the National Court following a petition filed by John Warisan. The presiding Judge, Lenalia J, concluded that there were errors and omissions by officers of the Electoral Commission. His Honour ordered that Mr Arore was not duly elected, that his return was void, that there shall be a recount and that Mr Arore and the returning officer, Paul Kamane, and the Electoral Commission, pay Mr Warisan’s costs.

3. Mr Arore and the Electoral Commission subsequently (in separate applications) sought leave to apply to the Supreme Court for review of the orders of the National Court. Injia ACJ granted leave on 3 October 2008 and on 23 October 2008 issued directions to get the review ready for hearing, including setting down a pre-hearing conference for 12 November 2008. 

4. On 30 October 2008 Mr Arore filed the application that is now before us. He seeks three interim orders, pending determination of the Supreme Court review, viz:

1.	a stay of the recount;
2.	reinstatement to his seat as a member of the Parliament;
3.	a stay of the costs order against him.

JURISDICTION

5. Interim orders of the type that Mr Arore is seeking can only be made by a full bench of the Supreme Court (constituted by three or more Judges). Such orders cannot be made by a single Judge of the Supreme Court. This was clarified in Viviso Seravo and Electoral Commission v John Giheno (1998) SC555. The Court also confirmed in that case that the jurisdiction for making such orders is available under Section 155(4) of the Constitution. The person seeking the orders bears the onus of satisfying the Supreme Court that the orders being sought are necessary, to do justice in the circumstances of the particular case. There is no need to prove special or exceptional circumstances. 

6. We now address the three orders sought by the applicant, having regard to those principles.

1	SHOULD THE RECOUNT BE STAYED?

7. No. The National Court’s order for a recount was expressed in general terms. The Court did not order who had to conduct the recount or where or when it had to be conducted. No evidence has been adduced by the applicant that would suggest a recount is imminent or that any preparations have been made by anyone for a recount. It is not necessary to make an order staying the recount. 

8. We refuse the application for such an order.

2	SHOULD MR ARORE BE REINSTATED TO THE PARLIAMENT?

9. No. The pre-hearing processes of the Supreme Court review of the National Court orders are at an advanced stage. The pre-hearing conference is set for next week. The parties say that the review should be ready for hearing at the end of November 2008, in about three weeks time. 

10. In these circumstances, it would create a very uncertain environment if we were to order that Mr Arore be reinstated to the Parliament. His tenure as sitting member would be subject to the result of the Supreme Court review. If it were unsuccessful and the National Court’s orders remain intact, Mr Arore would again lose his seat, but still have some prospect of being reinstated, pending the result of the recount.

Such uncertainty should be avoided and the best way of doing that is to leave the National Court orders in force, pending the result of the Supreme Court review.

11. It is arguable that the National Court may have erred by making orders that appear internally inconsistent (on the one hand, the sitting member was declared not to have been duly elected and his return as sitting member was declared void; on the other hand, the court ordered a recount). However, the utility and correctness of such orders must be the subject of full argument and deliberation by the Supreme Court. They are final orders of the National Court, which should remain in force unless and until set aside by the Supreme Court after substantive review under Section 155(2)(b) of the Constitution. 

12. We refuse the application for an order reinstating Mr Arore to the Parliament. 

3	SHOULD THE COSTS ORDER BE STAYED?

13. Yes. The costs order of the National Court is applied against all respondents to the election petition, ie against Mr Arore, the returning officer and the Electoral Commission. There is an arguable case that costs should not have been awarded against Mr Arore, as the success of the petition was based solely on errors and omissions proved to have been committed by other respondents. 

14. In the circumstances of this particular case, we consider that it is necessary to do justice – and it does no substantial prejudice to anyone – to order a stay of the costs order, in so far as it relates to Mr Arore. 

ORDER

1	The application for a stay of the recount is refused.

2	The application for reinstatement of the applicant to the Parliament is refused.

3	The costs order of the National Court of 25 April 2008, in so far as it applies against the applicant, is stayed.

4	Costs shall be in the cause.

Judgment accordingly.

Dotaona Lawyers: Lawyers for the Applicant 
Blake Dawson Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent