SC1311

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev (EP) No. 45 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:

SANDY TALITA
Applicant

AND:

PETER IPATAS
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J
2013: 25th November &
2014: 21st February

ELECTIONS – National – Practice and procedure – Application for leave – Application to amend application for leave – Discretion – Relevant Principles

Cases cited:

The Papua Club Inc v Nasaum Holdings Ltd & Ors (2002) N2273
 Morobe Provincial Government v Tropical Charters Ltd [2010] N3977

Counsel:

I. Molloy & G.B. Purvey, for the Applicant.
P. Mawa, for the First Respondent.
R. Williams, for the Second Respondent.

21st February, 2014

1.	MANUHU, J: The Applicant, in the substantive application, is seeking leave for judicial review of the decision in his election petition against the First Respondent after the petition was adjudged incompetent and dismissed on 16th July 2013. The application for leave does not cite section 155 (2) (b) of the Constitution and is not drafted in accordance with Form 5A as required by the Supreme Court Rules 2012 (The Rules). The Applicant seeks to rectify these discrepancies.

2.	The Applicant seeks a direction pursuant to section 185 of the Constitution and Order 11 Rule 9 of the Rules that the form of the application be deemed appropriate and sufficient to bring the application. 

3.	Section 185 provides:

"If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy."

4.	Order 11 Rule 9 provides:

"Where a person desires to take any step in proceedings under these rules and the manner of form of the procedure is not prescribed, the person may apply to a Judge for directions."

5.	The respondents, quite correctly, do not take serious issue on this point. It was however submitted by Mr. Mawa that the headings of this application predetermines the Courts decision on this application. This application should have been headed in the same style as the application for leave. This argument is without merit. If this application was headed in the same way as the application for leave, the former would suffer the same fate as the latter. This application must necessarily comply with the Rules for it to have any chance of redeeming the defects in the application for leave. 

6.	Section 185 and Order 11 Rule 9 are self explanatory. I accept and direct that the form used and the headings of this application are appropriate.

7.	In the main application, the Applicant seeks firstly, pursuant to Order 5 Rule 39 of the Rules, that the Court dispenses with the requirements for compliance with Order 5 Rule 10 (a) and (f) of the Rules for the application for leave to 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 in accordance with Form 5A to the extent that it should 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.

8.	The Applicant seeks in the alternative that, pursuant to Order 5 Rule 6 of the Rules or section 185 of the Constitution, the Court grants leave for the Applicant to amend the Application for leave to review to 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. 

9.	It is not disputed that the application for leave does not comply with the requirements under Order 5 Rule 10 (a) and (f). Order 5 Rule 10 (a) and (f) provide:

"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)	…
(c)	…
(d)	…
(e)	…
(f)	be in accordance with Form 5A; and
(g)	…"

10.	 As earlier mentioned, the application to rectify the error is made pursuant to Order 5 Rule 39 of the Rules; Order 5 Rule 6 and section 185 of the Constitution. Section 185 is cited above. Order 5 Rule 39 provides.

"The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law."

11.	 Order 5 Rule 6 provides:

"A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of review, or make any other interlocutory order which seems just, which is not determinative of the issues under review."

12.	 The aggregate effect of these provisions is that the Court has the power to dispense with the requirements of the Rules and or to amend or permit an amendment of the application for leave to review. It is a discretionary power to dispense with a requirement that has not been complied with and allow an amendment to address and rectify any non-compliance. The exercise of its discretion has to be discharged judiciously and in accordance with sound principles of law. The relevant principles on an application of this nature were summarized by Gavara-Nanu, J in The Papua Club Inc v Nasaum Holdings Ltd & Ors (2002) N2273, as follows: 

"The following principles appear to emerge from the authorities … which should guide the Court, when considering leave for a party to any proceedings to amend a pleading, even at the late stage of the proceedings:- 

(a)	Where the amendment is to enable the Court to determine the real question in controversy between the parties, or
(b)	Where the amendment is to correct any defect or error in the proceedings, and
(c)	That such amendment will not cause real prejudice or injustice to other party, and
(d)	That the application for such amendment is not made mala fide, and 
(e)	That the other party can be fairly compensated with costs for such amendment."

13.	 These principles were applied by Kirriwom, J in Morobe Provincial Government v Tropical Charters Ltd [2010] N3977.

14.	 It was submitted by Mr. Mawa that failure to cite section 155 (2) (b) is serious and a fatal mistake. The Organic Law does not allow appeals against a decision of the National Court and prevents the Supreme Court from reviewing, on appeal, a decision in an election petition. It is therefore important for the Applicant to state the jurisdictional basis for this Court to review the decision in question. 

15.	 The Court understands and appreciates the argument. Election-related proceedings have been dismissed and struck out on the basis of non-compliance with court rules. However, the argument is better suited to an application by a respondent to dismiss an application for review for want of compliance with the Rules. 

16.	 In this case, it is the Applicant who has brought the errors to the Court's attention and is applying for those errors to be rectified. Order 5 Rules 39, Order 5 Rule 6 and section 185, give the Court wide powers to dispense with and or amend an application that has not complied with any requirement of the Rules. 

17.	 Lawyer Christine Copland of Young and Williams Lawyers deposed that she was on 23rd August 2013 reviewing the file when she noticed that the application for leave for review did not cite section 155 (2) (b). She deposed that it was a typing error. She further deposed that as of 23rd August 2013, there had not been any objections from the respondents in respect of the mistake and that there would not be prejudice to the respondents because section 155 (2) (b) of the Constitution is the only avenue for the Applicant to seek review of the decision in question.

18.	 Counsel for the Second Respondent, Mr. Williams argued that the application should have been brought earlier – not when the application for leave was about to be heard. However, counsel for the respondents did not point out any serious prejudice or injustice that would be occasioned to the respondents if the orders sought in the application were granted. 

19.	 The Court is satisfied that the errors in question, if corrected, will have no bearing on the substantive reasons in support of the application for leave. The Court also is satisfied that the subject errors were made in good faith and the Applicant has put into motion a process to correct the error. The respondents did not make any application against the application for leave for review. The Court is further satisfied that the respondents have not been and will not be disadvantaged or prejudiced by the correction. 

20.	 In the circumstances, I will exercise my discretion in the Applicant's favour and grant the application.

21.	 Preferably, the application for leave should be amended but it might take one to seven more days, maybe more. An amended application may also give rise to new issues that may further delay the hearing of the application for leave. To avoid the potential for further delays, and further issues, dispensation with the requirements in question is more appropriate. 

22.	 Accordingly, the Court will exercise its discretion in the Applicant's favour and dispense with the requirements of Order 5 Rule 10 (a) and (b). In other words, the application for leave is accepted as it is and shall be fixed for substantive hearing. Cost follows the event. 

Orders accordingly
___________________________________________________________

Young & Williams Lawyers: Lawyer for the Applicant
Mawa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second Respondent