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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REVIEW (EP) NO. 2 OF 2019
BETWEEN
HENRY TUTUWO AME
Applicant
AND
BIRE KIMISOPA
First Respondent
AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail J
2020: 3rd & 5th June
SUPREME COURT – Practice & Procedure – Election petition review – Application for leave – Leave sought to make slip rule application – Application of relevant principles on slip rule application – Supreme Court Rules – Order 11, rule 32
SUPREME COURT – Practice & Procedure – Form of application – Objection as to form raised in submissions – Form of application filed – Supreme Court Rules – Order 11, rule 32 – Form 4
SUPREME COURT – Practice & Procedure – Application for leave – Slip rule application – Jurisdiction of judge – Source of power – Invoking of correct source of power – Supreme Court Rules – Order 11, rule 32
SUPREME COURT – Practice & Procedure – Application for leave to make slip rule application – Pleading of relief – Whether leave should be sole relief pleaded and sought in application – Supreme Court Rules – Order 11, rule 32 – Form 4
Cases Cited:
Henry Tutuwo Ame v. Bire Kimisopa & Electoral Commission (2020) SC1929
Application by James Lovika & 79 Others v. Carl Marlpo & The State (2020) SC1916
The State v. The Transferees (2016) SC1488
Counsel:
Mr. G. Sheppard with Mr. G. Purvey, for Applicant
Mr. B. Lomai, for First Respondent
No appearance, for Second Respondent
RULING
ON APPLICATION FOR LEAVE TO MAKE SLIP RULE APPLICATION
5th June 2020
1. BY THE COURT: This is an application for leave to make a slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules (SCR) or Section 155(4) of the Constitution.
2. Order 11, rule 32 confers jurisdiction on “a judge of the Court making the order from which the application arises to grant leave for the application to proceed”.
3. It follows that as a member of the Court who made the decision to dismiss the review, I am properly seized of the matter and will consider it.
Background Facts
4. On 3rd March 2020 the Supreme Court comprising of myself, Murray and Polume-Kiele JJ upheld the first respondent’s application to dismiss the review for non-compliance with Court order and want of prosecution.
5. We found that the applicant failed to file and serve a Review Book by the date fixed by the Court, at that time, the Chief Justice. Secondly, the applicant failed to prosecute the review with due diligence.
6. The dismissal of the review brought to an end the election petition challenging the election of the applicant as member for Goroka Open electorate in the 2017 General election whereby the National Court had ordered a by-election. I refer to the full text of the judgment in Henry Tutuwo Ame v. Bire Kimisopa & Electoral Commission (2020) SC1929.
Objection to Competency
7. The first matter for my consideration is the competency of the application for leave. It was brought up by the first respondent in submissions and without notice.
8. Relying on the recent decision by the Deputy Chief Justice in Application by James Lovika & 79 Others v. Carl Marlpo & The State (2020) SC1916 delivered on 13th February 2020, the first respondent argued that the application for leave is incompetent for two reasons.
9. First, as was held in James Lovika case (supra) Section 155(4) of the Constitution is a wrong provision for the applicant to rely on to confer jurisdiction on the judge to grant leave to make a slip rule application.
10. Secondly, it is not open to the applicant to plead and seek a substantive or final relief/order, in this case, the grant of the application for slip rule in the application for leave.
11. The applicant argued that he was not given prior notice in the appropriate form of the objection contemplated by the first respondent and has been disadvantaged in its defence.
12. As to the merits of the objection, he argued that I should distinguish the James Lovika case (supra) because in this case, the relief or order pleaded and sought for the grant of the application for slip rule formed part of the application for leave.
13. This is because the review itself has been concluded when it was dismissed. Thus, the application for leave must be treated as a final application because its dismissal will terminate the application for slip rule and deny the applicant an opportunity to reargue the application to review.
14. Putting to one side the argument on the need to give proper and adequate notice of the objection, the arguments for and against the correct source of power and invoking of the Court’s jurisdiction do not detract from the fact that the application for leave clearly cited Order 11, rule 32 of the SCR as the jurisdictional basis of the application.
15. The reference to Section 155(4) of the Constitution is an alternative source of power being sought to be invoked by the applicant. As far as I can recall, it was not relied upon by the applicant when he moved the application for leave.
16. This is the distinction between this case and James Lovika case (supra). In that case, the applicants had invoked both sources of power under Order 11, rule 32 of the SRC and Section 155(4) of the Constitution to mount the application for leave because of the use of the word “and” in the application for leave rather than “or” as in this case. (Underlining is mine).
17. This is why they were criticised by the Deputy Chief Justice for abusing the power of the Court under Section 155(4) of the Constitution. His Honour observed, and I entirely agree, where there are remedies provided by other laws such as Order 11, rule 32 of the SCR, the inherent powers of the Court under Section 155(4) of the Constitution should not be used.
18. As to the first respondent’s argument that the applicant erroneously sought a substantive or final relief/order in the application for leave, it is quite clear that the primary relief or order being sought at this stage is leave.
19. If leave is granted, the next stage is the hearing of the application for slip rul. Where the application is made out, an order for grant of the application for slip rule will follow suit. In that case, it will be a matter for the full Court to determine and Murray J and Polume-Kiele J will be called upon to participate at the hearing.
20. The other reason is this, as acknowledged by the Deputy Chief Justice at para. 15 in James Lovika case (supra), Order 11, rule 32 does not refer to a prescribed form for an application for leave to make a slip rule application including an application for slip rule itself.
21. On the other hand, case law in The State v. The Transferees (2016) SC1488 and adopted in James Lovika case (supra) proposed Form 4 of the SCR be adopted for Order 11, rule 32 application.
22. However, Form 4 is of a general application. When I read it, it does not expressly prohibit an applicant in Order 11, rule 32 application from seeking both an order for leave to make slip rule application and order for slip rule application in one application document using Form 4.
23. Similarly, Order 11, rule 32 is not expressed to exclude a substantive or final relief or order from being pleaded and sought in the application for leave to make a slip rule application.
24. While as a matter of form, I am accepting that Form 4 may be the appropriate Form to adopt for Order 11, rule 32 application it is open to debate whether leave should be the sole relief or order that must be pleaded and sought in the application document using Form 4.
25. For now, I prefer the view that an applicant who has pleaded and sought both an order for leave and final relief/order in Order 11, rule 32 application be permitted to move the application for leave only. The final relief/order is not relevant and can be disregarded for the time being.
26. For these reasons, I will allow the application in its present form to progress and dismiss the objection.
Principles of Slip Rule Application
27. Turning to the question of leave, I am going to apply the following principles to the facts of this case. These principles have been adopted by the Court in many past cases which need not be recited here. It suffices to say that amongst these principles are that an applicant must demonstrate that the slip or misapprehension of fact or law must not be of the applicant’s making, or that it is not to allow rehashing of arguments already raised and that it is not to allow new arguments that could have been put to the Court earlier.
28. The onus is on the applicant to demonstrate that the application has a strong chance of success.
Merits of Leave
29. The applicant contended that if leave is granted, he will be able to show that we slipped in our decision in three respects:
29.1. First Slip – Clear and unambiguous order of 3rd June 2019.
29.2. Second Slip – Application to dispense.
29.3. Third Slip – Want of prosecution – No delay.
30. In response, the first respondent argued that these purported slips alleged by the applicant are misconceived because either they are either rehearsing of arguments or raising new arguments and the applicant should not allowed to argue them at the full hearing.
First Slip – Clear and unambiguous order of 3rd June 2019.
31. The applicant referred to the transcript of the hearing before us on 19th December 2019 and the discussion around the interpretation to be given to the order of 3rd June 2019 in particular my questions to counsel for the first respondent in relation to whether term 2 of the order was to be construed as requiring the applicant to only compile the Review Book by 24th June 2019 or to also include filing and serving it by that date.
32. The terms of the order are:
“1. The draft index to the Review Book filed 6th May 2019 is endorsed by the Court.
33. The applicant pointed out that there was acknowledgment by counsel for the first respondent that the term “compile” referred to in term 2 of the order was to convey to the reader that he was to only prepare the Review Book. And that was exactly what he did. Moreover, he was under no obligation to file and serve the Review Book because there was no order to that effect.
34. There was a delay of three days before the Review Book was finally forwarded to the respondents on 27th June 2019 due to late arrival of the Court transcripts for inclusion in the Review Book.
35. I revisit the judgment of the Court to satisfy myself if there is a case for me to grant leave to re-open the review. At para. 3 of our judgment, we cited in full the terms of the order of 3rd June 2019 and discussed at length the arguments of both parties on the application of term 2 of the order.
36. At para. 5 and para. 6 of the judgment, it is plain to me that we were invited by the first respondent to broaden the scope of term 2 of the order from the applicant to compile the Review Book to include its filing and service by 24th June 2019. The applicant was the proponent of a narrower view. We upheld the view propagated by the first respondent.
37. Our view was backed-up by the applicant’s counsel’s admission in his affidavit filed on 24th July 2019 that he was to file the Review Book by 24th June 2019. I am referring to para. 9 of the judgment to make the point why we were against the applicant on his interpretation of term 2 of the order. (Underlining is mine).
38. In addition, at para 11 of our judgment, we said that the view expressed by the first respondent accorded well with the overall scheme of the SCR in particular Order 5, rule 29 where within fourteen days after the directions hearing, an applicant is required to “compile, file and serve a Review Book on each respondent”.
39. To sum up, it may be that we did not comment on the discussions I had with counsel for the first respondent or did not refer to them in our judgment but what the applicant is now seeking leave to bring up at the full hearing were given consideration as highlighted in the judgment and repeated above.
40. With respect, this purported slip is a rehashing of arguments and does not demonstrate that the application has a strong chance of success and should be allowed to go for a full hearing. It is dismissed.
Second Slip – Application to dispense.
41. The applicant argued that the Court incorrectly concluded that there was no application to dispense with the order of 3rd June 2019 where in fact he had filed such application and moved an oral application before the Court on 19th December 2019.
42. The applicant referred to pages 34 to 37 of the Court transcripts to verify his claim that he had alerted the Court of the pending application for dispensation and was moved by his counsel. Yet the Court failed to acknowledge it and grant dispensation for additional time to file and serve the Review Book.
43. He further argued that the Court was cognisant of the pending application for dispensation because Murray J contributed to the discussion when her Honour queried whether Order 5, rule 39 of the SCR and Section 155(4) of the Constitution applied to an application for dispensation.
44. Similarly, Polume-Kiele J participated in the discussion as evident from her contribution when she drew counsel’s attention to Order 5, rule 6 of the SCR as being the correct provision for application for dispensation and the need to amend the application to include it. If that was done, her Honour’s concern was about the impact it will have on the Court’s time to deal with it.
45. As the Court was informed, it misapprehended the fact and was under the impression that there was no application for dispensation pending and ended up finding that he did not seek dispensation and dismissed the review.
46. The real issue is whether the applicant moved the application for dispensation at the hearing before us. Where a party seeks to move an application either before a single Judge or full Court, it is incumbent on it to state in no uncertain terms that it will be moving by relying on the application filed on such and such a date for relief/order and supported by an affidavit.
47. A presentation of the application in a more clear and succinct manner by the mover will go a long way to informing the judge or Court of the application and minimise the risk by the judge or Court of overlooking it.
48. And if we were to take one step back, the application must be given a hearing date. Where it is to be heard by a single judge or the full Court, a hearing date must be obtained by the party at directions hearing or a date fixed for listings by the listings judge in the case of the full Court and on a motions day in the case of a motion.
49. These procedural requirements on hearing dates are clearly spelt out in Order 13, rule 8(d)(x) (Allocation of hearing dates for the matter) in the case of an application requiring the full Court’s determination and in the case of motions, Order 13, rule 15 (Applications) requiring a single judge’s determination on a motions day.
50. In this case, I refer back to para 30 of page 34 of the Court transcript where the applicant’s counsel was responding to Murray J’s question if the application for dispensation was listed for hearing before us together with the substantive review and the first respondent’s application to dismiss on the given date.
51. This is what the Court transcript had recorded in relation to counsel’s response:
“Yes. That was a shorthand way of saying it your Honour. But yes, the application by the applicant is before your Honours as well and that is why it is included in the application book at Part D and the affidavit of Mr Othas is filed in support of that application as well as in opposition to the application by the first respondent”.
52. I gather from counsel’s response that he assumed that we would consider the application for dispensation in addition to the first respondent’s application to dismiss. Similarly, the discussion between counsel and Polume-Kiele J was all about when the application was going to be heard. Quite frankly, he did not move the application at all save to say that there was an application by the applicant before us.
53. Then the discussion between counsel, Murray J and Polume-Kiele J moved away from the hearing date to the correct provision of the SCR for the Court to dispense with the order of 3rd June 2019. Finally, the Court transcript had also recorded at pages 37 to 38 that counsel for the second respondent joined in the discussions to address the question in relation to which provision of the SCR applied to an application for dispensation. Was it Order 5, rule 39 or Order 5, rule 6?
54. However, there were no submissions by counsel for the applicant and counsel for the second respondent in relation to the considerations for dispensation and how the Court dealt with them. It goes to show that the application for dispensation was not a matter listed for hearing on the given date.
55. There is a further reason. Our focus was drawn away from the pending application for dispensation because the manner in which the applicant brought it to our notice did not comply with the procedural requirements for obtaining a hearing date for the application outlined at [48] and [49] above. Finally, counsel did not point to the evidence of how the application for dispensation was listed for hearing on 19th December 2019.
56. In fact, it was quite clear between the parties that the matters before us on the given date for hearing were the substantive review and application by the first respondent to dismiss the review. I am referring to line 20 on page 2 of the Court transcript to confirm this statement thus:
“MR MOLLOY: Yes, thank you Your Honours. Your Honours the matters before the Court today are the substantive review and an application by the first respondent to set aside the application for review or to dismiss it. So we are in your Honours’ hands as to how you want us to deal with it (sic) them”. (Underlining is mine).
57. It sufficiently explains why we concluded that there was no application for dispensation before us to consider. To sum up, in a case where counsel did not unequivocally state that he was moving the application for dispensation, that no hearing date was obtained at the directions hearing and no evidence that it was listed for hearing on the given date, it would be difficult to attribute the misapprehension of facts to the Court.
58. With respect, this purported slip is not one of the Court’s making but that of the applicant and does not demonstrate that the application has a strong chance of success if it is allowed to go to full hearing. It is dismissed.
Third Slip – Want of prosecution – No delay.
59. The applicant referred to para. 19 of our judgment where we concluded that:
“19..............The applicant and his lawyers did nothing but waited for the matter to return to Court for directions hearing on 20th May 2019 before they started preparing the draft index and review book. In so doing, the applicant had not only wasted time but acted to his own detriment because except for serving the application for review on the respondents, he had literally done nothing between the date of filing the application for review of 9th May 2019 and the first directions hearing of 20th May 2019. A good eleven days was wasted. He has not prosecuted his review with due diligence”.
60. He submitted that there was no delay in filing and service of the draft index to the Review Book because it was done in accordance with Order 5, rule 18 of the SCR, that is within 14 days from the date of the grant of leave for review.
61. He pointed out that leave was granted on 26th April 2019 and 14 days from that date is 10th May 2019. The application to review was filed and served on 6th May 2019 within the time-frame provided by the SCR. Next, pursuant to Order 5, rule 25 of the SCR the applicant is required to serve the application to review and draft index within 7 days. The applicant complied with these procedural requirements.
62. Next, according to Order 5, rule 28, a directions hearing was to be convened within 14 days after the filing of the application to review. As he filed it on 6th May 2019, 14 days from that date ended on 20th May 2019. At the directions hearing, the Court may, amongst other things, settle the draft index.
63. The matter was adjourned without the settling of the draft index to 3rd June 2019 at which time the Court presided by the Chief Justice settled the draft index. The applicant then immediately made the application for Court transcripts to be provided for inclusion in the Review Book.
64. All up, he argued that the delay was well explained.
65. The applicant further referred to para. 20 of our judgment where we found:
“20. The consequence of inaction or lack of activity can be fatal as can be seen from the applicant’s desperate attempts to obtain transcripts of the National Court proceeding between 3rd June 2019 after the draft index was endorsed by the Chief Justice and 24th June 2019 when the review book was due. It did not require a great deal of assistance to identify the Court transcripts of the hearing on recount of votes and decision to be relevant to the review and need for immediate requests to the Court Reporting Office for their provision. There is no evidence of the applicant being diligent in this regard. As a consequence, if we were to accept his explanation that the faulty Court’s Information Technology system (IT) had delayed the provision of the Court transcripts, the unexplained delay prior to the IT issue of 30th May 2019 is overwhelming”.
66. He argued that he was not guilty of inaction or lack of activity because the preparation of the draft index, its settlement including the compilation, filing and service of the Review Book were dictated by the SCR.
67. However, the problem with these arguments is this, except for his counsel’s request for Court transcript to be provided the other arguments were not brought to our notice in evidence or submissions at the hearing. If there were significant time-lines fixed by the SCR for the filing and service of the actual application to review, preparation and settlement of the draft index by the Court at the first directions hearing and subsequently the Review Book, the applicant must point them out in his evidence and submissions at the hearing for our consideration. He cannot expect us to find them out for ourselves.
68. I have perused the Court transcripts and I have not been able to cite any submissions or reference to evidence by the applicant’s counsel in relation to the application of the SCR in relation to those matters outlined at [67] above.
69. On the other hand, according to my reading at pages 30 to 34 of the Court transcripts, a great deal of time and effort was spent by counsel for the applicant explaining the delay in the provision of Court transcripts for inclusion in the Review Book due to “system down” issue with the Court Reporting Services.
70. With respect, in my view, the purported slip is the applicant’s making and not the Court. Not only that but except for the explanation for the delay in obtaining the Court transcript, the arguments are new ones that could have been put to us earlier for our consideration. This purported slip does not demonstrate that the application has a strong chance of success if leave is granted. It is dismissed.
Order
71. The application for leave to make a slip rule application is dismissed. The applicant shall pay the costs of the application, to be taxed, if not agreed.
Ruling and orders accordingly.
_______________________________________________________________
Young & Williams Lawyers: Lawyers for Applicant
Greg Konjib & Associates: Lawyers for First Respondent
Kimbu & Associates Lawyers: Lawyers for Second Respondent
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