SC1926

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

    SCREV (EP) 10 OF 2019 

APPLICATION UNDER S. 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: 
ELECTORAL COMMISSION
Applicant

AND:
FRANCIS M. POTAPE
First Respondent

AND:
PHILIP UNDIALU
Second Respondent

Waigani: Hartshorn J, 
      2019: 19th October,
     2020: 4th February

Application for dispensation and application for dismissal

Cases Cited
Wari James Vele v. Powes Parkop (2008) SC945
Hami Yawari v. Anderson Agiru (2008) SC948
Michael Kandiu v. Powes Parkop (2015) SC1597

Counsel:

Ms. A. Kimbu, for the Applicant
Mr. P. Othas, for the First Respondent
Mr. G. Gileng, for the Second Respondent

4th February, 2020

1. HARTSHORN J: This is a decision on contested applications to dispense with certain Supreme Court Rules and to dismiss this review. 

Background

2. The first respondent, Mr. Francis Potape, filed a petition disputing the election of the second respondent Mr. Philip Undialu as the member of the National Parliament for the Hela Provincial Electorate in the 2017 National General Elections. Following the hearing of the petition, the National Court on 28th June 2019 ordered, amongst others, a recount of all of the ballot papers in the Hela Provincial Electorate. On 30th August 2019, this court granted leave to the applicant, the Electoral Commission of PNG to apply for judicial review pursuant to s. 155(2)(b) Constitution. The application to review by the applicant was filed on 3rd September 2019. 

3. The applicant amongst others, now seeks dispensation with Order 5 Rules 20(b), 25, 27 and 19(c) Supreme Court Rules. The first respondent amongst others, seeks the dismissal of the review for non-compliance with the same Rules. The second respondent supports the position taken by the applicant.

Application for dispensation

4.  The applicant seeks dispensation with certain Rules pursuant to Order 5 Rule 39 Supreme Court Rules. Order 5 Rule 39 provides that the Court or a Judge may dispense with compliance with any of the requirements of the Rules. It does not provide for dispensation from the Rules per se. Consequently, the application for dispensation which the applicant seeks should be dismissed on this basis.

5. As this point was not raised by the first respondent, I will however, proceed on the basis that the applicant is attempting to seek dispensation with compliance with requirements of the Rules. 

6. The applicant seeks to be granted dispensation from filing and serving a draft index of the review book, from having a directions hearing within 14 days of filing the application and from stating briefly and specifically the grounds relied upon in support of the review, on the grounds that: 

a)	if dispensation is not granted the applicant will be precluded from filing and 	serving a draft index of the review book, from setting the matter down for a 	directions hearing and from progressing the matter to trial;

b)	leave has been granted on the basis that the applicant has substantive and 	meritorious grounds. Further, this proceeding is similar to another and 	application will be made for consolidation;

c)	the respondents will not suffer any prejudice, it is in the interests of justice, and a refusal to grant dispensation will breach s. 155(2)(b) Constitution;

d)	there was no compliance with the requisite Rules through an oversight, by concentrating on obtaining a stay and because of other commitments; 

e)	the lead lawyer for the applicant was medically indisposed for two weeks.

7. The first respondent submits that dispensation should not be granted as:

a)	the application for dispensation is a reaction to the dismissal application and 	was filed the day before the hearing of the dismissal application;

b)	the law firm acting for the applicant has other lawyers who could have taken over carriage of this matter on behalf of the applicant in the absence of the lead lawyer;

c)	the applicant has treated this review as though it is an ordinary appeal and has not prosecuted the review with the diligence that the courts expect of 	Election Petition matters, including Election Petition Reviews.

Consideration

8. In regard to the submission that if dispensation is not granted then s. 155(2)(b) Constitution will be breached, s. 155(2)(b) is not being relied upon for dispensation. Further, the issues for the determination of this court are whether the application for dispensation of the Supreme Court Rules should be granted and whether the proceeding should be dismissed.

9. In Wari James Vele v. Powes Parkop (2008) SC945 (Davani J, Lay J, Hartshorn J), at [23], the Supreme Court said:

“23. 	As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required.  There has to be some reasonable explanation.  The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit.  Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent's conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay.” 
10. All four issues or factors as referred to in the above passage are to be satisfied for dispensation to be granted. The Rules in respect of which dispensation is sought, should also be considered by the court. In Vele v. Parkop (supra) at [17], the Court described the Supreme Court Rules concerned with Election Petition Reviews as:
“…. a scheme of rules intended to impose restrictions on the right of review, so as to establish in the shortest possible time, for the benefit of the people of an electorate, the identity of the person entitled to represent the people in and for the term of the Parliament.”
11. In Hami Yawari v. Anderson Agiru (2008) SC948, the Court (Sakora J, Cannings J, Hartshorn J) at [9] said:
"9.  When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant.  In addition, the time limits between the various stages are short.  This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament."
12. Then in Michael Kandiu v. Powes Parkop (2015) SC1597, the Court (Davani J, Kariko J, Toliken J) said at [50]:
“50.	Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.
51.	The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917).  Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).”
13. The primary Rule which has not been complied with and with which dispensation from compliance is sought, is Order 5 Rule 20(b). This Rule provides:
"At the time of filing the application, the applicant shall also:
......
(b) file a draft Index of the Review Book."
14. First, the explanation given for not complying with this Rule is because of an oversight and that the entire focus and concentration of the lawyers for the applicant was on obtaining a stay. As to whether this explanation is reasonable, in the context of the scheme of the Rules as referred to, that Election Petition Reviews are special matters, that the Rule in respect of which dispensation is sought is mandatory and that the act which was not performed is required to be performed at the time of filing the application, in my view the explanation of oversight and distracted concentration is not reasonable.

15. Second, the time from when Order 5 Rule 20(b) should have been complied with and the time that the application for dispensation was filed, is one month 12 days. Further, the application for dispensation was filed after the filing and service of the first respondent's application to dismiss for non-compliance. There is merit in the submission in my view, that the application for dispensation was prompted by the application to dismiss.

16. The explanation for the time taken in filing the application for dispensation is that the focus and concentration of the applicant remained on the stay application and that the lead lawyer was medically indisposed. The lead lawyer's circumstances are adequately explained and are unfortunate. Her evidence is also that there are two other lawyers assisting on this matter for the applicant. There is no explanation as to why they were unable to make the application for dispensation at an earlier date. In my view, in the context of the strict limits referred to in the Supreme Court Rules concerning Election Petition Reviews, the period of one month 12 days that it took for the application for dispensation to be made, constitutes undue delay and the explanation given for that delay is not reasonable.

17. As two of the four issues or factors to be satisfied for dispensation to be granted have not been satisfied, the application for dispensation sought by the applicant is refused. Given this, it is not necessary to consider the other submissions of counsel concerning the dispensation application.

Application to dismiss

18. The first respondent submits that the proceeding should be dismissed as amongst others, the applicant:

a)	failed to file and serve a draft index for the review application pursuant to the mandatory requirements of Order 5 Rule 20(b) and 25 Supreme Court Rules;

b)	failed to attend or to have the matter heard in a directions hearing within 14 days by failing to appear in court on 12th September 2019, resulting in the matter being adjourned generally to the Registry;

19. The applicant in essence, repeats the same submissions it relied upon for the application for dispensation.

Consideration

20. Order 5 Rule 37(a) Supreme Court Rules upon which the first respondent relies is as follows:

“Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-
(a)	order that the application for leave or application for review be dismissed where the defaulting party is the applicant;….”

21. The applicant concedes that Order 5 Rule 20(b) has not been complied with. 
22. I refer again to Michael Kandiu v. Powes Parkop (supra) at [50] and [51]. As there has been non-compliance with a mandatory requirement of the Supreme Court Rules and in the absence of any reasonable explanation being proffered or of any good cause being shown, the first respondent is entitled to the relief that he seeks. Given this, it is not necessary to consider the other submissions of counsel concerning dismissal.
Orders
23.   It is ordered that:
a)	The relief sought in the application of the applicant filed 15th October 2019 is refused;
b)	The applicant shall pay the costs of the first respondent of and incidental to the said application;
c)	This proceeding is dismissed;
d)	The applicant shall pay the costs of the first respondent of and incidental to this proceeding to be taxed if not otherwise agreed.
__________________________________________________________________
Kimbu & Associates: Lawyers for the Applicant                                                  
Paul Othas Lawyers: Lawyers for the First Respondent                                      
Gileng & Co. Lawyers:  Lawyers for the Second Respondent