SC1329

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 22 OF 2013

APPLICATION 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

BETWEEN

LUKE ALFRED MANASE
Applicant

AND

DON POMB POLYE
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Sakora, Makail & Murray, JJ
2013: 28th October & 2014: 17th March

SUPREME COURT REVIEW - ELECTION PETITIONS – Application for review – Review of National Court decision – Dismissal of petition for non-compliance with directions – Directions for parties to file and serve written submissions in relation to objection to competency – Non-compliance of – Trial judge's exercise of discretion – Whether discretion properly exercised – Constitution – s. 155(2)(b) – National Court Election Petition Rules, 2002 (as amended) – Rules 17 & 18.

SUPREME COURT REVIEW - ELECTION PETITIONS – Court directions – Directions for parties to file and serve written submissions in relation to objection to competency – Purpose of – Written submissions aid and enhance hearing of objection to competency – Grounds of objections are set out in the notice of objection to competency – Directions issued as part of Court's management of election petitions – Timely and expeditious disposition of cases – National Court Election Petition Rules, 2002 (as amended) – Rule 12.

Facts

The applicant and the first respondent were candidates for the Kandep Open electorate in the 2012 General election. The first respondent finished first and was returned as Member. Aggrieved by the result, the applicant filed a petition in the National Court and sought to void the first respondent's election. He alleged among others, illegal practices, errors and omissions at polling and counting of votes against the respondents. On 04th March 2013, the National Court dismissed the petition on the ground that he failed to comply with Court direction to file and serve written submission to the respondents' objections to competency. It also ordered the applicant to pay costs and the sum of K5,000.00 as security for costs be paid to the respondents. He sought a review of that decision pursuant to s. 155(2)(b) of the Constitution.

First, the applicant argued that the trial judge erred when he dismissed the petition because there was no direction for him to file and serve written submission and his counsel only "volunteered" to file written submission. Secondly, he argued that the trial judge wrongly exercised his discretion when he, inter-alia, placed so much weight on strict compliance with Court directions and failed to find that since he had filed a belated written submission, the respondents were not adversely prejudiced by the default. Thirdly, the decision was unreasonable because the trial judge was influenced by irrelevant matters such as the tape recording of proceedings and did not give parties opportunity to address the Court on matters raised in it. 

Held:

1.	As to the first ground, the trial judge correctly held that there were two sets of directions issued by the Court for the applicant to file and serve written submissions to the respondents' objections to competency. First was on 26th November 2012 and the second on 07th February 2013 and the applicant failed to comply with both of them. Therefore, this ground was dismissed.

2.	As to the second ground, the power to summarily dismiss a petition under Rule 18 of the National Court Election Petition Rules, 2002 (as amended) is discretionary and must be exercised on proper principles. The principles are:

(a)	Reasonable explanation for the default;
(b)	Prejudice caused to the other party by the default; and
(c)	The overall interests of justice.

3.	The trial judge wrongly exercised his discretion when he placed so much weight on the strict compliance with the Court directions and gave less or no consideration to the question of prejudice and interests of justice.

4.	It was not necessary to consider the final ground because the decision of the trial judge was based primarily on the non-compliance with the Court directions of 26th November 2012 and 07th February 2013 and the consideration of the tape recording was merely to confirm and re-affirm his finding that the applicant had failed to comply with these directions.

5.	The application for review was upheld, the decision of the National Court of 04th March 2013 was quashed and a re-trial was ordered.

Cases cited:

Joseph Kopol -v- William Titipe Powi & Electoral Commission (2013) N5106 
Fly River Provincial Government -v- Pioneer Health Services (2003) SC705
Curtain Bros -v- UPNG (2005) SC788
Issac Lupari -v- Sir Michael Somare & Ors (2010) SC1071
Sakaraias Akap -v- Kenneth Korakali (2012) SC1179
Ezekiel Sigi Anisi -v- Tony Waterupu Aimo (2013) SC1237 
Paru Aihi -v- Peter Isoaimo & Electoral Commission (2013) SC1276
Delba Biri -v- Bill Gembogl Ninkama [1982] PNGLR 342
Daniel Don Kapi -v- Samuel Abal & The Electoral Commission (2005) N2856 
Korak Yasona -v- Casten Maibawa and The Electoral Commissioner of Papua New Guinea: EP No 21 of 1997 (Unnumbered & Unreported Judgment of 16th June 1998)
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Sani Rambi -v- Koi Trappe & The Electoral Commission (2012) N4925
Siwi Bungo -v- John Robin (2011) N4195
Moi Avei and Electoral Commission -v- Charles Maino [2000] PNGLR 157
Korak Yasona -v- Casten Maibawa and The Electoral Commissioner of Papua New Guinea (1998) SC589
Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354 
Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935
Application of Ludwig Patrick Schulze (1998) SC572
Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244 
Kasap -v- Yama [1998-1999] PNGLR 81
Application by Ben Semri (2003) SC723
Benedict Pisi -v- Sam Akoita & Electoral Commission (1998) N1763 
Opis Papo & Anton Pakena -v- Kappa Yarka (2003) N2350 
Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093 
Daniel Bali Tulapi -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4939 
Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937 

Counsel:

Mr I Molloy QC with Ms C Copland, for Applicant 
Mr P Kak with Mr P Dowa, for First Respondent
Mr R William, for Second Respondent

JUDGMENT

17th March, 2014

1.	BY THE COURT: The applicant and the first respondent were candidates for the Kandep Open electorate in the 2012 General election. The first respondent finished first and was returned as Member. Aggrieved by the result, the applicant filed a petition in the National Court and sought to void the first respondent's election. He alleged among others, illegal practices, errors and omissions at polling and counting of votes against the respondents. On 04th March 2013, the National Court constituted by the Deputy Chief Justice Mr Justice Salika dismissed the petition on the ground that he failed to comply with Court direction to file and serve written submission to the respondents' objections to competency. It also ordered the applicant to pay costs and the sum of K5,000.00 as security for costs be paid to the respondents. He seeks a review of that decision pursuant to s. 155(2)(b) of the Constitution.

Background

2.	This direction was part of a number of directions issued by the Court in its management of this and other election petitions in an effort to dispose of them in an expeditious and timely manner following the 2012 General election. They were issued at the pre-trial conference on 26th November 2012. The specific details of these directions are set out in the minutes of the order taken out by the lawyers for the applicant on 30th November 2012. They are: 

"1.	This Petition is fixed for three (3) weeks trial commencing Monday 4 March 2013 and ending Friday 22 March 2013.

2.	The First and Second Respondents' Notices of Objection to Competency filed respectively on 19 September 2012 and 19 November 2012 are fixed for hearing on 4 March 2013 at 9:30 am.

3.	Summonses are issued to secure the attendance of persons listed 1-10 in Annexure "A" of the Pre-Trial Outline provided by the Petitioner to give evidence at Trial.

4.	The First and Second Respondents shall file and serve written Objection to Competency Submissions by Friday 28 December 2012.

5.	The Petitioner shall reply to the Respondents' respective written Submissions by Friday 01 February 2013.

6.	A Judge will be assigned for the Trial and parties notified."

3.	On 27th December 2012, the first respondent filed his written submission. The next day, he served a copy on the applicant. The second respondent and the applicant did not. Following this, the transcripts of proceedings of 07th February 2013 establish that parties appeared before the trial judge for status conference to confirm firstly, the venue of trial and secondly, the time for hearing of the objections to competency. After consultation with counsel for the parties, his Honour fixed the objections for hearing on 04th March 2013 at 9:30 am at Waigani National Court and further ordered that, in the event that the objections were unsuccessful, the trial would proceed at Wabag on 18th March 2013 for two weeks. 

4.	After that, his Honour asked counsel if there were anything further to mention and counsel for the applicant informed his Honour that she needed to file and serve the applicant's written submission to the objections and asked that she be given until 15th February 2013 to do that. Counsel for the second respondent also informed his Honour that he needed time to file and serve submission and requested further time until 11th February 2013 to do that. Their requests were granted. By 11th and 15th February 2013, they still did not file and serve their respective submissions. Six days later, on 28th February 2013, the applicant filed and served his written submission.

5.	This prompted the lawyers for the first respondent to file a motion on 01st March 2013 to dismiss the petition. In response, on 04th March 2013, the lawyers for the applicant filed a motion seeking leave to file and serve his written submissions out of time. At the commencement of hearing on 04th March 2013, his Honour heard the first respondent's motion, upheld it and dismissed the petition. However, it is unclear whether his Honour heard and ruled on the applicant's motion.

National Court Decision

6.	The trial judge found that the applicant failed to file and serve written submissions within the time fixed by the Court. This finding was based on two Court directions. The first was issued on 26th November 2012 which we have set out in full above and the second, on 07th February 2013. His Honour reached that conclusion after he considered the period of delay and the explanation for the delay and found that the long delay in filing the written submission was inordinate and the applicant's counsel explanation for the delay that the lawyers inadvertently over-looked the matter and she was on leave was unsatisfactory. 

7.	In addition to that, he was concern that given the peculiar nature of an election petition, in that, it is a direct challenge to the wishes of the majority to elect a representative to Parliament, a petitioner bore a heavy responsibility to prosecute it with due diligence. Given the manner in which the applicant conducted this petition, it showed that he was not diligent and a dismissal was warranted. 

Grounds of Review

8.	The decision to dismiss the petition was an exercise of discretion by the trial judge under Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). In this review, the applicant relies on 15 grounds to establish that firstly, the decision was wrong in law and secondly, that the discretion was wrongly exercised. Thirdly, that it was unreasonable because the trial judge was influenced by irrelevant matters. 

Applicant's Submissions

9.	As to the first ground, it was submitted for the applicant that the trial judge erred in law when he found that the applicant failed to comply with Court direction when there was no direction on 07th February 2013 directing him to file and serve his written submissions by 15th February 2013 and that his counsel only "volunteered" to file written submission by 15th February 2013. This submission was based on four propositions:

•	first, the endorsement on the Court file did not indicate that the Court directed the applicant to file and serve his written submission by 15th February 2013; 

•	secondly, there was no sealed Court order directing the applicant to file and serve his written submission by 15th February 2013;

•	thirdly, the respondents did not oppose the applicant's counsel request to file and serve written submission by 15th February 2013; and

•	fourthly, there was no application before the Court by the first respondent to dismiss the petition for failure to comply with the Court's directions of 26th November 2012.

10.	In relation to the second ground, it was submitted that the trial judge wrongly exercised his discretion to dismiss the petition because:

•	he failed to consider the applicant's motion seeking leave to file written submission out of time;

•	he placed so much weight on or strictly applied the principle that Court orders and directions must be strictly complied with or obeyed as enunciated and applied by the Supreme Court and National Court in numerous election petition cases and the onerous burden placed on a petitioner to diligently and expeditiously prosecute his petition and comply with Court orders and directions;

•	he failed to find that since the applicant filed a belated written submission, he established that the respondents were not adversely prejudiced by the default. On the question of prejudice and the submission that no serious prejudice has been caused to the respondents, counsel cited Joseph Kopol -v- William Titipe Powi & Electoral Commission (2013) N5106; and

•	he construed Rule 18 as "almost mandatory terms" when it specifically provided for the Court's discretion to be exercised by the use of the word "may".

11.	As to the final ground on the reasonableness or otherwise of the decision, the learned trial judge took into account irrelevant matters which influenced him to dismiss the petition by listening to the tape recording of the status conference of 07th February 2013 when he adjourned to deliberate on his decision. His Honour should not have because:

•	the tape recording was not evidence before the Court; 

•	there was no order for the tape recording to be produced;

•	after playing the tape recording in Court, his Honour failed to give the parties an opportunity to respond or make submissions in relation to matters arising from the tape recording; and 

•	by giving what was said in the tape recording undue weight in his decision.

Respondents' Submissions

12.	The respondents' submission is two-fold. In the first part, they submitted that the grounds that raised the following were not raised and argued in the Court below and for this reason, it is not open to the applicant to raise them in this review. For this reason, this Court should not consider them. These were: 

•	first, there was no Court direction for the applicant to file and serve written submission;

•	secondly, the applicant's counsel only "volunteered" to file and serve the written submission;

•	thirdly, there was no evidence of an endorsement in the Court file of such direction;

•	fourthly, there was no sealed Court order directing the applicant to file and serve his written submission by 15th February 2013; and

•	finally, the applicant did not oppose the first respondent's application on the ground that there was no such direction .

13.	They advanced the same submission for the ground on prejudice and summed up that the applicant could not now turn around and complain about all these matters in this review. The cases of Fly River Provincial Government -v- Pioneer Health Services (2003) SC705; Curtain Bros -v- UPNG (2005) SC788; Issac Lupari -v- Sir Michael Somare & Ors (2010) SC1071; Sakaraias Akap -v- Kenneth Korakali (2012) SC1179; Ezekiel Sigi Anisi -v- Tony Waterupu Aimo (2013) SC1237 and recently, Paru Aihi -v- Peter Isoaimo & Electoral Commission (2013) SC1276 were cited for this proposition.

14.	The second part of their submissions was argued in the alternative to the first. With respect to the first ground, they submitted that the trial judge correctly dismissed the petition because the applicant failed to comply with the Court's direction to file and serve written submission. They cited a number of cases to support their submission and emphasised the importance of complying with Court directions, some of which were Delba Biri -v- Bill Gembogl Ninkama [1982] PNGLR 342; Daniel Don Kapi -v- Samuel Abal & The Electoral Commission (2005) N2856; Korak Yasona -v- Casten Maibawa and The Electoral Commissioner of Papua New Guinea: EP No 21 of 1997 (Unnumbered & Unreported Judgment of 16th June 1998); Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983 and Sani Rambi -v- Koi Trappe & The Electoral Commission (2012) N4925.

15.	They further submitted that the trial judge correctly placed considerable weight on the consideration that Court directions are to be complied with because an election petition is special in nature, in that, it is a direct challenge to the wishes of the majority to elect a representative to Parliament. For this reason, they argued that a petitioner bore an onerous burden to diligently and expeditiously prosecute it. A failure to or lack of interest may result in its dismissal.

16.	In this case, although the endorsement in the Court file did not state that the applicant was directed to file and serve his written submissions by 15th February 2013 or time was extended time to 15th February 2013 for the him to file and serve his written submissions, that there was no sealed Court order directing the applicant to file and serve his written submission by 15th February 2013, that the first respondent did not state in his motion that he was relying on the direction of 26th November 2012 to dismiss the petition, and that the first respondent did not oppose the applicant's request for more time, the evidence of Mr Dowa in his affidavit established that the first respondent's motion to dismiss the petition was based on the directions of 26th November 2012 and 07th February 2013 and for this reason, the applicant was well aware of the grounds of the motion. 

17.	When Mr Dowa's affidavit together with the Court's directions of 26th November 2012 are considered with the exchanges between the applicant's counsel and his Honour on 04th March 2014 as noted from the transcripts of proceedings, the applicant's counsel admissions of the existence of the Court direction of 26th November 2012 and the failure by his lawyers to file and serve the written submission by 01st February 2013, they submitted that it is clear that the Court extended time to the applicant to file and serve his written submission. Despite the extension, he still failed to comply and to suggest otherwise would be incorrect and misleading. For these reasons, the applicant's contention that on 07th February 2013 the Court did not direct him to file and serve his written submission by 15th February 2013 and that his counsel only "volunteered" to file it is misconceived and misleading. This ground should be dismissed.

18.	As to the second ground on the exercise of discretion, the respondents submitted that there was an inordinate delay of approximately two months in filing and serving the written submission which time was computed from 26th November 2012 to 01st February 2013, and the applicant's lawyers' explanation for the default that they inadvertently over-looked the matter and counsel was on leave was unsatisfactory. In addition, despite being given sufficient time to file and serve the written submission, the applicant failed. It was not once but twice, and these sufficiently established that the applicant was not serious about his petition or defending the objections. These factors outweigh any argument that they will not be prejudiced by the default. 

19.	The thrust of their submissions is that the applicant failed to comply with Court directions and it is immaterial for the Court to consider the nature of the default, that is, whether the default was in relation to filing and serving written submissions or affidavits or some other documents. What is relevant is that, the applicant failed to comply with Court directions and that was the concern of the trial judge, and the main reason for dismissing the petition. This was also the reason why the trial judge said that Rule 18 is almost mandatory and imposed a mandatory obligation on the applicant as the petitioner to diligently prosecute the petition.

20.	In response to the applicant's submission on the final ground, the first respondent supported by the second respondent submitted that the tape recording was relevant because it was the official recording of the proceedings of the Court in relation to the petition. If the applicant is objecting to its use, he has failed to establish if it was flawed or unreliable for some reason. After all, it provided further information to the Court to verify whether the applicant complied with the Court's direction to file and serve written submission. By allowing parties to listen to the tape recording, it also gave them the opportunity to confirm the position that despite being given further time to file and serve the written submission, the applicant failed.

21.	Contrasting this case to a case where the Court did not have the benefit of tape recording and its relevance in legal proceedings before the Court, they cited the case of Siwi Bungo -v- John Robin (2011) N4195 where in that case, in a hearing of an appeal from the District Court, the National Court did not have the benefit of a tape recording to determine how an incident happened.

Principles of Review

22.	In its supervisory jurisdiction, the Supreme Court is empowered to ensure that the decisions of the interior Courts or authorities are made within the limits of, and in accordance with, duties imposed on them by law: Moi Avei and Electoral Commission -v- Charles Maino [2000] PNGLR 157. A decision of the National Court may be set aside where there is a clear error of law: Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935; Application of Ludwig Patrick Schulze (1998) SC572 and followed in subsequent cases including Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244.

23.	It may be set aside if there is a gross error in the findings of fact: Kasap -v- Yama [1998-1999] PNGLR 81 and Application of Ludwig Patrick Schulze (supra) or where it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723.

Consideration of Grounds

24.	In relation to the first ground, the issue is whether on 07th February 2013, the Court extended time to the applicant to file and serve his written submission. We accept the second part of the respondents' submissions. It correctly represents the events that led to the dismissal of the petition. The matter that triggered the whole dispute is the Court direction of 26th November 2012. By this direction, parties were required to attend to a number of matters in order to get the petition ready for trial within a reasonable time. The terms of the directions were explicitly clear. With respect to the applicant, he was required to file and serve his written submission by 01st February 2013. He did not. On 07th February 2013 when the matter was called for status conference, he was already in breach of that Court direction. He did not file a motion to extend time to file and serve the written submission. 

25.	Instead, the transcripts of proceedings of 07th February 2013 establish that his counsel requested for more time to file and serve the written submission. The trial judge granted the "request". We say "request" because he did not file a motion to extend time as required by Rule 17 of the EP Rules. In our view although there was no motion filed, the grant of this request was in fact an extension of time to the applicant to file and serve his written submission by 15th February 2013. Re-iterating the point here, this means that his Honour varied the original directions of 26th November 2012 and extended the due date of filing and serving written submission of 01st February 2013 to 15th February 2013. This would enable the applicant to respond to the first respondent's submission.

26.	As to the applicant's further contentions that there was no evidence of the endorsement in the Court file directing him to file and serve written submission, that there was no sealed Court order directing him to file and serve written submission by 15th February 2013, that the respondents did not oppose his request when his counsel requested for further time to file and serve the written submission and that as the applicant had not raised and argued these matters in the Court below, it was not open to him to raise them in this review, our short response is that they are of no consequence.

27.	The issue whether counsel "volunteered" to file written submission arose because from our perusal of the transcripts of proceedings of 07th February 2013 for the status conference, we note that none of the counsel brought the Court direction of 26th November 2012 to the attention of the trial judge. As a result, his Honour was not aware of this Court direction until 04th March 2013 when counsel for the first respondent raised it in his submission in support of the motion to dismiss the petition. If anyone is to be blamed for the use of the word volunteered, then it is the applicant because he did not bring the Court direction of 26th November 2012 to his Honour's attention. In our view this sufficiently explains why his Honour said that counsel for the applicant "volunteered" to file submission by 15th February 2013. 

28.	This position is further confirmed by the transcripts of proceedings of 04th March 2013 and the decision. From these documents we are able to determine that after noting the existence of this Court direction, his Honour said that the applicant was in breach of the Court directions not once, but twice. In our view when his Honour made that observation, he was alluding to firstly, the Court direction of 26th November 2012 and the secondly, the Court direction of 07th February 2013. For these reasons, we find no error by the trial judge in this ground.

29.	As to the second ground, we accept the general proposition that Rule 18 gives the Court discretion to dismiss a petition where the defaulting party is a petitioner. The discretion may be exercised against a petitioner where he or she has not done any act required to be done by or under the EP Rules or direction of the Court. We also accept the proposition that where a party fails to comply with a direction of the Court, it is a serious matter as it is tantamount to disobedience of a lawful order of the Court. Rule 18 states:

"18. SUMMARY DETERMINATION 

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding: -

(i)	order that the petition be dismissed where the defaulting party is the petitioner; or

(ii)	where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii)	make such other orders as it deems just."

30.	The Court's exercise of discretion must be based on proper principles. We consider these principles are:

(a)	A reasonable explanation for the default;
(b)	Prejudice caused by the default; and
(c)	The overall interests of justice.

31.	This case is about a failure to comply with Court directions to file and serve written submissions in response to the respondents' objections to competency. The cases cited by counsel for the respondents in their respective submissions emphasise the importance of an election petition and the need to strictly comply with the EP Rules and Court directions. But none of them directly addresses the issue under consideration, that is, where the default is non-compliance with directions to file and serve written submission in response to an objection to competency. 

32.	The case of Joseph Kopol (supra) cited by counsel for the applicant is on point. The factual circumstances giving rise to the dismissal of the petition in that case are identical to this case. The first respondent applied to dismiss the petition on the ground that the petitioner failed to comply with Court direction to file and serve his written submission to the first respondent's objection to competency within the time fixed by the Court. He belatedly filed one six days later. 

33.	The National Court held that the petitioner's lawyers' explanation for the default that they inadvertently over-looked the matter and that counsel who had conduct of the matter was on leave at that time was unsatisfactory. However, the Court declined to dismiss the petition because it was not satisfied that the respondents were adversely prejudiced by the default. The Court held that if the belated written submission were allowed to remain, it was to their advantage because it would enable them to work out what kind of submission the petitioner would make at the hearing.

34.	Each case must be decided on its own facts. Where the issue of prejudice arises, the nature and extent of the prejudice will vary from case to case. Contrary to the respondents' submission that the applicant is estopped from raising the issue of prejudice because he did not raise it in the Court below, we are able to determine from the transcripts of proceedings of 04th March 2013 that counsel for the applicant and the first respondent did address his Honour on this issue and that his Honour did consider it but was more concern about the breach of the Court's directions.

35.	In the Supreme Court decision in Korak Yasona (supra), the National Court in Goroka dismissed a petition on the ground that the petitioner failed to file and serve all his witnesses' affidavits as directed by the Court. The petitioner sought a review of that decision in the Supreme Court. The Supreme Court dismissed the review. It held that the dismissal of the petition was discretionary and the trial judge properly exercised his discretion to dismiss it. It was a case where the petitioner failed to file and serve all his witnesses' affidavits before the trial. As a result, he was not ready for trial. The affidavits were crucial to prove the allegations in the petition, and without them, there was no evidence to prove the allegations, unless leave was obtained to call oral evidence at trial: see also Benedict Pisi -v- Sam Akoita & Electoral Commission (1998) N1763; Opis Papo & Anton Pakena -v- Kappa Yarka (2003) N2350 and Daniel Don Kapi (supra).

36.	The preceding three cases are National Court decisions and are not binding on this Court. These next three cases are also National Court decisions. They are Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093; Daniel Bali Tulapi -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4939 and Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937. The parties in these cases applied for extension of time to file and serve affidavits on the opposing party. One of the reasons the Court extended time was that the extension was not adverse to the opposing party. These cases show that each case is peculiar and must be decided on its own.

37.	In the present case, the Court dismissed the petition because the applicant failed to file and serve his written submission in response to the objections to competency. This is the distinction between this case and Korak Yasona case (supra). The same distinction is made in the other National Court cases cited above. While we consider that the written submission was relevant to the objections, we are of the opinion that the failure to file and serve it was not fatal to the applicant's case. In our view the crucial document for the purpose of the hearing of the objections was the notice of objection to competency. Each respondent filed and served on the applicant an objection. That means that both gave notice of their intention to apply to dismiss the petition for being incompetent. The grounds of objection are set out in the objections and the applicant is put on notice on what sort of grounds he would expect to meet at the hearing. 

38.	In our opinion when parties file written submissions, the submissions aid and enhance the hearing of the objections. The parties assist each other and the Court to address the grounds of objection in a more orderly, coherent and timely manner. It is part of the Court's management of election petitions to ensure that they are disposed in an expeditious and timely manner and at the same time assuring the voters that the choice of the majority is respected. The common grounds of objection are those which raise issues of non-compliance with the requisites of a petition under s. 208 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). They are generally issues of law and would require construction of the provisions of the Organic Law on Elections. Thus, if a party fails to file and serve written submissions, the failure does not adversely prejudice the opposing party. 

39.	This is where when the question of prejudice arises, the Court must look at the nature of default and we reject the respondents' contention that it is not relevant. We consider it relevant because while we accept that a breach of a Court direction is a serious matter, not all breaches may adversely prejudice the opposing party. The nature of the default here is the failure to file and serve written submission in response to the respondents' objections to competency.

40.	We prefer the view the Court took in Joseph Kopol case (supra). The exercise of discretion is a balancing act. The applicant does not take issue with the explanation for the default. He accepted the Court's finding that it was unsatisfactory. But that is only one consideration. When considering the question of prejudice, the other consideration is the period of default.

41.	We consider that the correct starting point to compute time to establish the period of delay is 16th February 2013 (and not from 26th November 2012 as contended by the respondents) and from that date to the date of filing of the first respondent's motion to dismiss of 01st March 2013. We say this because from 26th November 2012 to 01st February 2013 is the period allowed by the Court. Further time was allowed by the Court from 07th February 2013 to 15th February 2013. In the end, the applicant's computation correctly represents the period of delay. This is a period of 15 days. In our view this is not a long delay.

42.	As the second respondent had also filed a separate objection to competency, the applicant must also reply to it. The second respondent did not file and serve its submission by the due date of 28th December 2012. The second respondent conceded this and it was also guilty of not complying with the Court directions. As a result, the applicant did not have the benefit of the second respondent's submission to respond to the objection to competency. This is unfair to him. The only time he was able to respond to it was after 11th February 2013 because this was the time the second respondent filed and served it on him.

43.	The petition had progressed to a stage where it was ready for trial. Venue and dates for trial have been fixed. The venue was Wabag and trial was to commence on 18th March 2013 for two weeks. The venue for the hearing of objections was Waigani and date for hearing was 04th March 2013. On 28th February 2013, the applicant served a copy of his written submission on the respondents. From that date to 04th March 2013, the respondents had one clear day (excluding the weekend) to prepare for the hearing. At the very least and although belated, the applicant had served his written submission on the respondents and that would have assisted them to response to the applicant's submissions at the hearing. We are satisfied that the applicant has established that if the written submission were to be allowed, it would not adversely prejudice the respondents in their defence of the petition, more particularly, the hearing of the objections.

44.	Finally, the petition raised serious allegations of illegal practices, errors and omissions at polling and counting against the respondents. The petition had progressed to a stage where it was waiting for the trial date to arrive and for the hearing of the objections. In our view in the interests of justice and fairness, the applicant must be given that opportunity to prove the allegations against the respondents and this includes his response to the objections. Not to give him that opportunity would be to deny him the right to be heard on these serious allegations. It must be emphasised here that the Courts are the only legitimate authority to decide an election dispute and so if a candidate is aggrieved by the result of an election and files a petition to challenge it, he or she must be given that opportunity. Otherwise, the truth of a legitimate complaint may never be known. 

45.	At this juncture, we mention again that he had filed a motion to extend time to file and serve his written submission. Under Rule 17 of the EP Rules, the Court has discretion to dispense with the directions "before or after the occasion for compliance arises". The Court directions were issued under Rule 12 of the EP Rules. On the plain reading of Rule 17, the time for the applicant to file and serve the written submission expired on 15th February 2013 and the applicant did not comply with it by that date. But the Court may, on application, dispense with this requirement and extend time after that. 

46.	Given that the applicant's motion was before his Honour and that he had filed and served a belated written submission on the respondents, in the interests of justice and fairness, it was open to his Honour to grant leave to him to file and serve his written submission out of time. By granting leave, it would have and will allow the Court to formally accept the belated written submission. But it is clear to us that his Honour was more concern about the breach of the Court directions and gave less or no consideration to the question of prejudice and interests of justice. For all these reasons, we are satisfied that the trial judge fell into error and uphold this ground. 

47.	As to the final ground, we consider that it is not necessary to decide whether the decision to dismiss the petition was so absurd or unreasonable because we consider that the decision of the trial judge was based primarily on the non-compliance with the Court directions of 26th November 2012 and 07th February 2013 and the consideration of the tape recording was merely to confirm and re-affirm his finding that the applicant had failed to comply with these directions. 

Conclusion

48.	We are satisfied that the applicant has established that the trial judge wrongly exercised his discretion when he dismissed the petition. It must follow that the review must be upheld, the decision of the National Court be set aside and a re-trial, ordered.

Costs

49.	Finally, we consider that this dispute would not have arisen had the applicant and his lawyers filed and served the written submission by the due date fixed by the Court. As it appeared in the course of the hearing and the respondents have conceded this fact, the second respondent also has filed and serve its written submission on the applicant and the first respondent by the original due date of 28th December 2012. This did not help the cause either. The conduct of the applicant, the second respondent and their lawyers must not escape the scrutiny of the Court. In our view the parties' conduct should not be left unpunished or be condoned by the Court. As a mark of the Court's disapproval of such conduct, we consider that the applicant and the second respondent must pay the first respondent's costs of the review and if parties are unable to agree on the amount, they shall have it taxed. We so order.

Order

50.	The orders are:

1.	The review is upheld.

2.	The order of 04th March 2013 is set aside.

3.	The National Court proceedings EP No 14 of 2012: Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission is reinstated forthwith.

4.	The sum of K5,000.00 as security deposit is reinstated forthwith.

5.	The matter is remitted to the National Court for re-trial and referred to the National Court Election Petition Judge Administrator for mention on a date to be fixed.

6.	The applicant and the second respondent shall pay the first respondent's costs of the review to be taxed, if not agreed.

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Young & Williams Lawyers : Lawyers for Applicant
Paulus Dowa Lawyers : Lawyers for First Respondent
Niugini Legal Practice : Lawyers for Second Respondent