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Schnaubelt v Chan [2012] PGSC 40; SC1204 (2 November 2012)

SC1204

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 33 OF 2012

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:
WALTER SCHNAUBELT
Applicant

And:
HON. BYRON CHAN, MP
First Respondent

And:
PAPUA NEW GUINEA ELECTORAL COMMISSION
Second Respondent

Waigani: Salika, DCJ
2012: 08, 24 & 25 October;
02 November

ELECTION PETITION – Application for Leave for judicial review – Application under Rules 1 and 2 of the Supreme Court Election Petition Rules – Rule 7 of the Rules – An application for leave shall be made before a single judge of the Supreme Court.

Cases Cited:

Richard Maru v Andrew Trawen and Ors (2012) SC1200
Erie Ovako Jurie v Bonny Oveyara and Electoral Commission (2008) SC 935
Trawen v Kama ( 2008) SC 915
Yawari v Agiru (2008) SC939

Simon v Kapris (2012) SC1206

Counsel

Mr S Pokawin, for the Applicant
Mr A Manase, for the First Respondent
Mr B Waipek, for the Second Respondent

02nd November, 2012

1. SALIKA DCJ: This is an application for leave for judicial review of the decision of the National Court on election petition matter in proceedings: EP 12 of 2012 – Walter Schnaubelt v Byron Chan and the Electoral Commission of PNG.
   
2. The decision was given by the National Court on 24 September 2012 dismissing the Petition in its entirety on the basis that service of the petition was not effected on the First Respondent as required under Rule 7 of the National Court Election Petition Rules, 2002 (as amended).
   
3. The application is made under Rule 1 of the SCEPRR which says:
   

"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 s.155(2)(b) of the Constitution."

"Decision" under the Rules means:

"Decision means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under r18 of the National Court Election Petition Rules 2002 (as Amended)."

4. In the instant case the court dismissed the petition which brings to end all the issues in that proceeding.
   
5. The applicant is therefore aggrieved by that decision and is invoking r1 of the SCEPRR.
   
6. Rule 2 of the SCEPRR says:
   

"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."

7. This court is proceeding on the basis that leave is required under Rule 2 of the SCEPRR.
   
8. The SCEPRR defines the "Court" as:
   

"the Supreme Court as defined under the Constitution and the Supreme Court Act" and

"Judge" as: "for the purpose of these rules means a single judge of the Supreme Court exercising powers as expressly provided for under these rules."

9. In that regard I refer to the decision of the Supreme Court in Richard Maru v Andrew Trawen and others (2012) SC1200 wherein that court said it had no power to grant the relief sought in the application for dispensation of Rule 1 of the SCEPRR.
   
10. Given that I am sitting as a single Judge of the Supreme Court and Rule 2 of the rules provides that such an application for leave lies to the "Court", does that mean that sitting as a single Judge of the Supreme Court, I do not have jurisdiction to hear an application for leave?
    
11. Section 160 of the Constitution establishes the Supreme Court and s.162 provides for the jurisdiction of the Supreme Court.
    
12. Section 162(2) of the Constitution says that the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court.
    
13. Rule 2 of the SCEPRR says that an application under Rule 1 lies to the Court with leave.
    
14. Rule 9 of subdivision 1 of the SCEPRR says that an application for leave shall be made before a judge which means before a single judge of the Supreme Court.
15. In that regard I find that I have jurisdiction as a single judge of the Supreme Court to hear an application for leave.
    
16. Having made that ruling I now go on to the leave application itself and the grounds relied on for leave.
    

THE LAW ON APPLICATION FOR LEAVE TO REVIEW

17. Consideration as to whether or not to grant leave for judicial review in Election Petition matters have been discussed in a number of cases from Erie Ovako Jurie v Bonny Oveyara and Electoral Commission (2008) SC 935, Trawen v Kama (2008) SC 915, Yawari v Agiru (2008) SC939.
    
18. Grant of leave is discretionary. It is a judicial discretion that must be exercised on proper principles and grounds upon which the court will exercise its discretion.
    
19. In Simon v Kapris (2012) SC1206 I said:
    

"In an application for judicial review of a National Court decision of Election Petitions and Election Petition related matters the applicant must satisfy the court that:

(a) He has a meritorious point of law that is arguable; and that;
(b) The application involves a point of fact that there was gross error on the face of the evidence or that the finding of fact was so outrageous or so absurd so as to result in injustice being occasioned.

20. In this application I will be looking for the factors mentioned above in the Kapris case in order to exercise the courts discretion in this case.
    

Are there important points of law for determination by the Supreme Court such that the Supreme Court is gainfully engaged to determine them?

21. The point of law to be determined is whether the petition was served on the respondent by the applicant.
22. The National Court Election Petition Rules state what proper service is and how and when it is to be served.
    
23. The applicant is adamant that the petition was served at the Respondent's office. The Court ruled that leaving the petition at the Respondent's office was not in accordance with the law.
    
24. As far as the argument on service is concerned there is in my respectful view nothing meritorious for the Supreme Court to be gainfully engaged. The law is clear on service requirements of an election petition.
    
25. Time ran out for the applicant to correct the error. Again that is not an argument that should occupy gainfully the time of the Supreme Court.
    

Are there any points of fact that there was gross error on the face of the evidence or are there any findings of fact that are so outrageous or so absurd so as to result in injustice being occasioned?

26. The grounds relied on in my view do not demonstrate any gross error being occasioned by the court at first instance. There is no suggestion that the court misapprehended the facts such that justice miscarried.
    
27. The court here at leave stage is not looking at the merits of the review, rather it is looking at whether there is an important arguable point of law that has merit and warrants the intervention of the Supreme Court. It is also looking at whether there are meritorious points of facts which were misconceived or misconstrued or misapplied by the National Court such that they amount to miscarriage of justice.
    
28. Having looked at the grounds for review and having heard counsel I am not persuaded that such errors exist or injustice was occasioned.
    
29. There is just one matter and that is that the respondent to this application submitted that leave be refused because the application is made outside 14 days as prescribed by the rules. An explanation for this has been given and I was aware of that fact and that is because the court was not available at the time when time lapsed.
    
30. However, having heard arguments for both the applicant and the respondent, I am of the view that no important questions of law or fact have been raised to warrant interventions by the full Supreme Court. Accordingly leave is refused.
    
31. Costs are awarded to the Respondents to this application.

____________________________________________________

Kaipu & Associate Lawyers: Lawyer for the Applicant
Manase & Co Lawyers: Lawyer for the First Respondent
Kimbu & Associates Lawyers: Lawyer for the Second Respondent