SC1676
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 18 OF 2018

AN 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:
MICHAEL BOGAI DUA
First Applicant

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Applicant

AND:
NOAH KOOL
Respondent

Waigani: Hartshorn J.
2018:16th, 17th April
                                          
Application pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirements of Order 5 Rule 7 and 8 Supreme Court Rules to permit an application for leave to review an interlocutory decision of the National Court in an Election Petition
    
Cases cited: 

Anton Yagama v. Peter Yama (2013) SC1219
Dawa Dekana v. Nick Kuman (2013) SC1272 
James Marape v. Johnny Phillip Pokaya (2017) SC1634
Tom Olga v. Pias Wingti (2008) SC938
Waranaka v. Dusava (2008) SC942

Counsel:

Mr. J. Napu, for the First Applicant
Mr. C. Mende, for the Respondent

17th April, 2018

1.   HARTSHORN J:  This is a decision on a contested application to dispense with the requirements of Order 5 Rule 7 and 8 Supreme Court Rules. The application is made pursuant to Order 5 Rule 39 Supreme Court Rules. If dispensation is granted, leave to review an interlocutory decision is sought as well as a stay pending the review.

2.   The reason that dispensation is sought is because the first applicant wishes to seek leave to review an interlocutory decision of the National Court concerning an Election Petition. The word “Decision” in Order 5 Rule 7 Supreme Court Rules is defined to mean in effect, that only a final decision concerning an Election Petition can be the subject of an application to review, and so dispensation of that definition is sought so that an interlocutory decision concerning an Election Petition can be the subject of an application to review.
3.   The National Court decision that the first applicant, seeks to review is a dismissal of the first respondent’s objection to competency of the Petition. (The first applicant was the first respondent in the National Court.) 

This application
4.   The first applicant submits that as the decision he seeks to review is an interlocutory decision of the National Court made in an Election Petition, he requires leave to dispense with the requirements of Order 5 Rules 7 and 8 Supreme Court Rules and particularly the definition of “Decision” therein. He submits that he is entitled to such dispensation as amongst others, the primary judge did not make findings or give supporting reasons for the dismissal of the objection to competency on each of the objections to the specific grounds of the Petition and so his rights have been infringed contrary to s. 59 Constitution.
Consideration
5.   I consider the application to dispense with Order 5 Rule 7 Supreme Court Rules, first.
6.    It is not disputed, correctly, that the decision sought to be reviewed by the first applicant is an interlocutory decision.
7.   “Decision” is defined in Order 5 Rule 7 Supreme Court Rules to mean a:
 “… final decision of the National Court made after the hearing of an election petition or an order dismissing the petition….”
8.   The first applicant relies upon Order 5 Rule 39 Supreme Court Rules for the dispensation that he seeks. Order 5 Rule 39 is as follows:
“The Court or a Judge 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.”
9.   As I said in James Marape v. Johnny Phillip Pokaya (2017) SC1634 and Peter Waranaka v. Richard Maru (2018) SC1653, Order 5 Rule 39 provides to the Court or a Judge the discretion to dispense with compliance with any of the requirements of the Rules. For there to be a dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought.
10.    In this instance Order 5 Rule 7 sets out seven separate definitions of the meaning of certain words. Nowhere in Order 5 Rule 7 are words used to convey, express or imply a requirement that has to be complied with. Expressed another way, Order 5 Rule 7 does not require anyone to do or comply with anyone or anything - it merely defines certain words.
11.   As there is no requirement in Order 5 Rule 7 and no requirement that has to be complied with, there is no compliance of a requirement that can be dispensed with. Consequently, Order 5 Rule 39 Supreme Court Rules cannot, in my view, be relied upon by the first applicant for the relief that he seeks.
12.  In regard to the application to dispense with Order 5 Rule 8 Supreme Court Rules, it was submitted that by seeking a dispensation of Rule 8 as well as Rule 7, that this enabled this court to grant the dispensations sought. From a consideration of the wording of Rule 8 which is as follows:
“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 for an election petition review.”,
13.	I am unable to conclude that there is any merit in this submission.
14.	In regard to the Supreme Court decisions relied upon by the first applicant, Anton Yagama v. Peter Yama (2013) SC1219 Waranaka v. Dusava (2008) SC942; Tom Olga v. Pias Wingti (2008) SC938; and Dawa Dekana v. Nick Kuman (2013) SC1272, notwithstanding that there is acknowledgement that the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules enables only a final decision to be the subject of an application for review and that there is the ability to rely upon Order 5 Rule 39 for dispensation, as far as I am aware, when dispensation with compliance with Order 5 Rule 7 has been granted, the Courts that have granted the dispensation have not had the benefit of the particular argument that this court has considered concerning the specific wording of Order 5 Rules 7 and 39 Supreme Court Rules.
15.	In the absence of any Supreme Court decision that has specifically considered this argument or having done so has arrived at a contrary conclusion, I am of the view, as expressed, that Order 5 Rule 39 Supreme Court Rules is not able to be successfully relied upon by the first applicant for dispensation with Order 5 Rule 7 Supreme Court Rules that he seeks. Given this, it is not necessary to consider the other submissions of counsel concerning the remainder of the relief sought.
 Orders
16.  The formal Orders of the Court are:
a)	All of the relief sought in the notice of motion of the first applicant filed 26th March 2018 is refused;
b)	The costs of the respondent of and incidental to the said notice of motion shall be paid by the first applicant.

____________________________________________________________ 
Napu & Co Lawyers: Lawyers for the First Applicant                               
Wantok Legal Group:  Lawyers for the Respondent