SC1421

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 12 0F 2014

BETWEEN;

PETER CHARLES YAMA
Applicant

AND;

NIXON DUBAN
First Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Second Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Cannings J
2015: 2nd April

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court on an election petition – necessity for leave – Supreme Court Rules 2012, Order 5, Rules 8-17

The applicant sought leave under Order 5, Rule 9 of the Supreme Court Rules 2012 to make an application for review of a decision of the National Court, which declared that the first respondent was the winner of a by-election following a court-ordered recount. The applicant argued ten grounds on which leave should be granted, which related to denial of natural justice and errors by the primary Judge in not conducting due inquiry into alleged errors and omissions by the returning officer in the conduct of the recount.

Held:

(1)	To be granted leave, an applicant must show: (a) in so far as the application relates to a point of law, that it is an important point, which is not without merit; and/or (b) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit (Jurvie v Oveyara (2008) SC935).

(2)	The application related to questions of law, in particular whether the National Court is obliged, having ordered that there be a recount of votes in an election and that reports of the recount be presented to the Court, to allow the parties the opportunity to make submissions on whether the result of the recount ought to be accepted and to scrutinise the reports with a view to deciding whether they should be accepted.

(3)	Of the ten proposed grounds of review, leave to argue seven was granted as they raised important points of law which were not without merit and leave to argue three was refused as they were poorly expressed, vague and/or without merit.

(4)	Costs awarded to the applicant.

Cases cited

The following cases are cited in the judgment:

Jurvie v Oveyara (2008) SC935
Paias Wingti v Kala Rawali & Tom Olga (2010) N3982
Trawen & Olga v Wingti (2009) SC1003

APPLICATION

This was an application under Order 5, Rule 9 of the Supreme Court Rules for leave to apply for review under Section 155(2)(b) of the Constitution of the decision of the National Court regarding an election petition.

Counsel;

N Kiuk, for the applicant
P Mawa, for the first respondent
H Nii, for the second & third respondents

2nd April, 2015 

1. CANNINGS J: This is a ruling on an application by Peter Charles Yama for leave to apply for review under Section 155(2)(b) of the Constitution of the decision of the National Court regarding an election petition. Section 155(2)(b) of the Constitution states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

2. Leave is required for the Supreme Court to review the decision by virtue of Subdivision 5.2.2 (application for leave to apply for review) of the Supreme Court Rules 2012, which provides, by Order 5, Rule 16, that the application for leave shall be made before a single Judge of the Supreme Court.

DECISION

3. The decision that the applicant seeks leave to have reviewed is the decision and order of Justice Sakora made on 8 October 2014 at Madang in EP No 2 of 2014, which was an election petition commenced by the applicant that challenged the return of the first respondent as the member for Madang Open in a by-election conducted in 2013.

4. The order of 8 October 2014 stated:

UPON RECEIPT of the Report of the Assistant Registrar of the National Court of Justice, a delegate of the Registrar of the National and Supreme Courts of Justice, submitted pursuant to clause 4 of the orders of this Court made 6 August 2014 in respect of recount of the by-election votes, accompanied by the Returning Officer's Report of his conduct of the recount, pursuant to clauses 2 and 3 of the orders, the reports both dated 6 October 2014, THE COURT HEREBY announces and declares the result of the recount as follows:

1.	Nixon Philip Duban	15,002 votes	
	Peter Charles Yama	13,557 votes (difference of 1,645 votes)	
	Absolute majority is	14,281 + 1 votes = 14,282 votes	
2.	Exhausted ballot papers	10,076
	
3.	Ballot remaining in count	28,559	
	Total allowable ballot papers
	38,635
	
4.	Candidate Nixon Philip Duban is the winner of the 2013 by-election in the Madang Open Parliamentary seat, following a successful petition and court-ordered recount.	

5. Justice Sakora had earlier, on 6 August 2014, ordered that the petition was upheld and that there shall be a recount of the votes and that:

The recount shall include previously counted ballot papers as well as the 6,116 marked ballot papers found at the graveyard on the night of 18th December 2013 and the ballot papers cast during the re-polling conducted at Wards 4 & 21 in the Ambenob Local-level Government Area.

6. His Honour made a further order on 12 August 2014, which provided details as to the nature, scope and manner of the recount, including:

The recount should be conducted by the Electoral Commission of PNG and its officers from outside Madang Province, under the supervision of the Registrar or Assistant Registrar of the National Court.

The Registrar of the National Court shall present a report of the recount duly certified by the Returning Officer of the recount to the National Court in Madang within seven clear days after the completion of the recount.

7. The officers subsequently appointed to supervise and conduct the recount were Assistant Registrar of the National Court, Mr Baka Bina, and the Returning Officer, Mr Simon Sinai.

TEST TO BE APPLIED

8. The applicant argues ten grounds in support of the application, numbered 3.1 to 3.10 in his application for leave filed on 21 October 2014. Previous cases, in particular Jurvie v Oveyara (2008) SC935, show that the proper way to determine whether leave should be granted is to scrutinise each of the proposed grounds of review according to this test: to be granted leave, an applicant must show:

(a)	in so far as the application relates to a point of law, that it is an important point, which is not without merit; and/or

(b)	in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit.

9. My assessment is that the ten proposed grounds of review fall into two categories. Some of them overlap or are repetitious but it seems that the applicant has two sorts of arguments that he wants to make.

10. First he argues that he was denied natural justice by the National Court due to the manner in which the proceedings were conducted on 8 October 2014. He argues that he was not given the opportunity to make submissions on the two reports that were presented to the Court. Put another way, he was denied the right to be heard on the question of whether those reports should be accepted and whether the reports justified a decision that the first respondent be declared the winner of the by-election.

11. Secondly he argues that the primary Judge erred in his assessment of the two reports. He argues that if the Judge had examined the reports properly his Honour would have realised that both reports raised serious doubt about the integrity of the recount and could not be relied on to make a decision that the first respondent was the winner.

12. My view is that both those categories of arguments are raising questions of law, not questions of fact. If leave is granted the Supreme Court will be required to decide whether the primary Judge erred in law, not in fact. Therefore each of the ten proposed grounds of review must be assessed according to the test of whether it raises an important point of law that is not without merit.

DO THE GROUNDS RAISE IMPORTANT POINTS OF LAW, NOT WITHOUT MERIT?

Ground 3.1: not allowing parties to make representations on two reports

13. The applicant's grievance is that before the primary Judge announced the order of the Court on 8 October 2014 he did not allow the parties to make any representations on the two reports that had been presented to the Court. His Honour simply gave a history of the petition and indicated that he had received the reports and proceeded to announce the result. Mr Kiuk for the applicant submitted that this was an error of law as according to the leading case on court-ordered recounts, Trawen & Olga v Wingti (2009) SC1003, the accepted and proper practice and procedure of the National Court in a court-ordered recount is that the parties must be given an opportunity to make representations on whether a report of the recount should be accepted.

14. The contrary view put by Mr Mawa for the first respondent and by Mr Nii for the second and third respondents is that Trawen & Olga v Wingti (2009) SC1003 stands for no such general proposition. The decision in that case must be confined to its own facts which were that when the National Court ordered a recount, it gave very specific orders which envisaged that there would be a further hearing after the recount at which the parties would be entitled to make applications that the report of the result of the recount be either accepted or rejected. The present case was very different, they submitted, as neither the original recount order of 6 August 2014 nor any of the subsequent orders created any right for parties to make representations on the recount.

15. I consider that both submissions are reasonable and arguable. The applicant's submissions cannot be dismissed as unarguable or lacking in common sense. It can be reasonably argued that the manner in which the National Court ordered a recount and made subsequent orders as to the conduct of the recount, gave rise to a legitimate expectation in the applicant that he would be able to make representations to the Court on the contents of the reports before the Court made a decision on whether to accept or reject those reports and ratify or deal with in some other way the result of the recount.

16. I take into account that the Organic Law on National and Local-level Government Elections contains no provisions on how a recount is to be conducted or what is to be done once a recount is conducted. I can see that there is an argument that the Court is bound by the result of a recount and has no role in considering whether the report of a recount should be scrutinised by the Court. I touched on such issues in Paias Wingti v Kala Rawali & Tom Olga (2010) N3982. It might be the case, as suggested by Mr Mawa, that a party who is aggrieved by the decision of the National Court on a recount is to commence a fresh election petition.

17. Both parties agree that there is little case law on this subject. I consider that the applicant has raised an important point of law that is not without merit. I grant leave regarding ground 3.1.

Ground 3.2: allowing and accepting two reports despite there being no affidavit or notice of motion before the Court

18. The applicant argues that the reports of Mr Bina and Mr Sinai were given to the Court without being annexed to an affidavit and that there was a notice of motion before the Court. I uphold the respondents' argument that there was no order in place requiring such procedures. The applicant's argument is without merit. I refuse leave regarding ground 3.2.

Ground 3.3: allowing and accepting two reports despite them not being properly filed and served

19. The applicant argues that the reports of Mr Bina and Mr Sinai were given to the Court without being properly filed and served. I uphold the respondents' argument that there was no order in place requiring such procedures. The applicant's argument is without merit. I refuse leave regarding ground 3.3.

Ground 3.4: declaring that the first respondent was duly elected despite the applicant's proper tally being higher

20. This is a bald assertion, which is not readily understandable. It raises no important question of law. I refuse leave regarding ground 3.4.

Ground 3.5: accepting and endorsing the result of the recount despite the result being called into question

21. The applicant argues that the primary Judge erred in his assessment of the two reports. He argues that if the Judge had examined the reports properly his Honour would have realised that both reports raised serious doubt about the integrity of the recount and could not be relied on to make a decision that the first respondent was the winner. There are four specific arguments raised in this ground: (a) that there are missing pages in the form 66A annexed to Mr Sinai's report; (b) that the applicant's votes had not been counted correctly; (c) that form 66B was not endorsed by any of the scrutineers and (d) that the reports incorrectly referred to forms 66A and 66B of the original count.

22. The significance of this ground is that it raises the issue of the role of the Judge after ordering a recount. Is the Judge bound to simply accept the result as presented? Does the Judge have a duty to inquire into what is presented to the Court? If that is the duty of the Judge, is the Judge required to assess and scrutinise the reports closely? Or just conduct a cursory examination? Whatever the nature and extent of the duty of the Judge, did the primary Judge comply with that duty?

23. These are important points of law, not without merit. I grant leave regarding ground 3.5.

Ground 3.6: accepting and endorsing the result of the recount despite one of the reports stating that there were issues still to be resolved by the Court

24. This is largely a repeat of ground 3.5; however, I am satisfied that it raises important points of law, not without merit. I grant leave regarding ground 3.6.

Ground 3.7: not allowing the applicant to respond to the reports

25. This is another natural justice ground, largely repetitious of ground 3.1; however, I am satisfied that it raises important points of law, not without merit. I grant leave regarding ground 3.7.

Ground 3.8: denying natural justice to the applicant by not considering 13 affidavits filed by the applicant on or before 8 October 2014 regarding the recount

26. This is another natural justice ground, largely repetitious of grounds 3.1 and 3.7; however, I am satisfied that it raises important points of law, not without merit. I grant leave regarding ground 3.8.

Ground 3.9: not allowing parties to make representations on the two reports when it was evident that the returning officer ignored the terms of the order for the recount orally pronounced on 6 August 2014

27. This is another natural justice ground, largely repetitious of grounds 3.1, 3.7 and 3.8; however, I am satisfied that it raises important points of law, not without merit. I grant leave regarding ground 3.9.

Ground 3.10: failing to make inquiry as to due compliance with the order of 6 August 2014 and subsequent orders of the National Court

28. This is another natural justice ground, but it also introduces an argument as to error of law arising from the alleged failure of the primary Judge to check that the orders his Honour had made, in particular the order of 6 August 2014, had been complied with. I am satisfied important points of law are raised, which are not without merit. I grant leave regarding ground 3.10.

CONCLUSION

29. I grant leave for an application for review to proceed on seven of the ten proposed grounds of review. The applicant has raised some important and arguable points of law that are not obviously without merit. They concern the role and functions, duties and responsibilities of the National Court once a recount of votes is ordered in relation to an election petition. The Organic Law is silent on these issues and there is little case law on the subject. These are proper matters for review by the full Court of the Supreme Court. As the application for leave has been opposed, costs will follow the event.

ORDER

30. The Orders of the Court are:

(1) The application for leave, under Order 5, Rule 9 of the Supreme Court Rules 2012, to apply for review of the decision of the National Court of 8 October 2014 in EP No 2 of 2014, is:

(a)	granted in respect of grounds 3.1, 3.5, 3.6, 3.7, 3.8, 3.9 and 3.10 of the application for leave to review filed on 21 October 2014; and

(b)	refused in respect of grounds 3.2, 3.3 and 3.4 of the application for leave to review filed on 21 October 2014.

(2) Costs of the application for leave are awarded to the applicant to be paid by the respondents, on a party-party basis, to be taxed if not agreed.

Judgment accordingly,

Nikiuma Lawyers: Lawyers for the Applicant 
Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second & Third Respondents