SC1594  

PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE] 

  SCM 18 of 2017

BETWEEN:
JAMES YOKA EKIP 
First Appellant

     AND:
SIMON SANAGKE
Second Appellant

  					    AND:
PATILIAS GAMATO, ML, 
Electoral Commissioner of Papua New Guinea
First Respondent

   AND:
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Second Respondent

  AND:
PAUL GOEMBA
Third Respondent

 AND:
ANDREW KEROWA
	Fourth Respondent	

     Waigani: Hartshorn, Polume-Kiele and
         : Shepherd JJ        
2017: 26th & 28th June  

Appeal against refusal to grant leave for judicial review

Cases cited: 

Abaijah v. Mana (2015) N6071
Alois Kingsley Golu v. National Executive Council (2011) N4425
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Isaac Lupari v. Sir Michael Somare (2010) SC1071
Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886
O’Neill v. Eliakim (2016) SC1539
Petition of Michael Somare [1981] PNGLR 265
PNG Power Ltd v. Ralph Gura (2014) SC1402
Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016 
State v. Sam Akoita & Ors (2009) SC977

Counsel:

Mr. D. Mel, for the Appellants
Mr. R. Awalua, for the Respondents

28th June, 2017

1.     BY THE COURT:  This is a decision on a contested appeal of a National Court decision that refused an application for leave for judicial review

Background

2.    The appellants were intending to be, and now are, candidates in the Hagen Open Electorate in the forthcoming National General Elections. They sought to review the decision of the Electoral Commissioner made on 31st January 2017 and gazetted on 21st February 2017 to appoint the third and fourth respondents as Returning Officer and Assistant Returning Officer respectively, for the Hagen Open Electorate (appointment decision).

3.    The reasons for the appellants having sought leave for judicial review in the National Court are that the appellants claim that the Electoral Commissioner did not follow the correct procedure, and that the appointments were made ultra vires and for an improper purpose.

4.   The procedures purportedly not followed were that the third and fourth respondents were not recommended by the relevant Provincial Election Steering Committee, that the third respondent being the District Administrator for Hagen District, was ineligible for appointment and that the Electoral Commissioner did not follow his own published procedures for appointment.

5.    Further, it was alleged by the appellants that the third and fourth respondents are not fit and proper persons for appointment, as the fourth respondent is the cousin of the sitting member for Hagen Open, Hon. William Duma, and there are allegations against the third and fourth respondents of unlawful behaviour in the last two General Elections, in favour of Mr.Duma. It should be said at this juncture that counsel for the appellants conceded that all of these allegations against the third and fourth respondents are merely that, and that there was no evidence before the primary judge to substantiate these allegations.

6.    The application for leave for judicial review was refused by the primary judge on the grounds that the appellants did not have the requisite locus standi and that they had not established an arguable case.

This appeal

7.    The appellants submit that their nine grounds of appeal can be considered as being whether the primary judge fell into error in finding that the appellants: 

a)	did not have the requisite locus standi; and
b)	had not established an arguable case.

Review of exercise of discretion by primary judge

8.    This Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. I reproduce the following passage from that decision: 

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong.  A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred.  These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

9.    This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977, Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016, Isaac Lupari v. Sir Michael Somare (2010) SC1071, PNG Power Ltd v. Ralph Gura (2014) SC1402 and O’Neill v. Eliakim (2016) SC1539.	

Consideration

Locus standi

10.    In regard to whether the appellants have the requisite locus standi, the primary judge stated that the onus is on the appellants to establish an interest  that must directly affect their rights. In this instance, that they are candidates for the Hagen Open electorate is as far as their interest goes, and beyond that interest they may be described as busybodies interfering with the functions of the Electoral Commissioner in the conduct of an electoral process.

11.    The relevant provision to be complied with in this regard is Order 16 Rule 3(5) National Court Rules which is:

“The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

12.     As to what constitutes “sufficient interest”, this has been the subject of considerable judicial consideration. In our view, an indication as to the intended interpretation of “sufficient interest” is evident from other judicial review Rules that concern the interest of a party to a judicial review proceeding. One of these Rules is Order 16 Rule 13(5) National Court Rules which concerns the nature of that interest. It refers to service on, “… persons directly affected by the decision the subject of the review,” : O’Neill v. Eliakim (2016) SC1539 at [44].

13.    That, “sufficient interest” is to be interpreted as a direct interest is reflected in the decision of Alois Kingsley Golu v. National Executive Council (2011) N4425. At [6], Gavara Nanu J said:

“First the plaintiff must show that he has sufficient interest in the decision vis., he must show that he is grieved (sic) by the decision and that the decision affects his rights and interests.”

14.    This decision has been followed in Abaijah v. Mana (2015) N6071, among others.

15.    The primary judge is criticised by the appellants for his treatment of the Supreme Court decisions of Petition of Michael Somare [1981] PNGLR 265 and Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886. His observation that Somare (supra) was distinguishable as it is a constitutional reference is in our view however, correct. As to Mondiai (supra), that case concerned an application for joinder and an objection to competency. Order 16 Rule 13(5) National Court Rules was not argued before the Supreme Court, perhaps as that Rule did not come into force until 27th September 2005. To the extent that the effect of this Rule was not considered by the Supreme Court in Mondiai (supra), in our view the comments therein concerning, “sufficient interest” are distinguishable.

16.    On the basis that, “sufficient interest” is to be interpreted as a direct interest as referred to, the appellants are not, in our view, persons who have, “sufficient interest” as they have not been directly affected by the appointment decision and the appointment decision has not affected their rights and interests. It is the case that if during the course of the National General Elections, the appellants believe that they have been affected by actions of the third and fourth respondents, they have recourse pursuant to the relevant election petition provisions.

17.    Consequently, we are satisfied that the primary judge did not fall into error when he found that the appellants did not have the requisite locus standi. Given this, it is not necessary to consider the other submissions of counsel as a finding that an applicant has a sufficient interest is a prerequisite before the National Court is able to grant leave: Order 16 Rule 3(5) National Court Rules, and in this instance that prerequisite has not been satisfied. This appeal should be dismissed.

Orders

18.   The Orders of the Court are:

a)	This appeal is dismissed;

b)	The appellants shall pay the respondents costs of and incidental to this appeal.
__________________________________________________________
Mel & Hennry Lawyers:             Lawyers for the Appellants                       
Kimbu & Associates Lawyers:  Lawyers for the Respondents