SC2416

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 19 OF 2023

ELECTORAL COMMISSION
Applicant

V

PATRICK PRUAITCH
First Respondent

ANDERSON MISE
Second Respondent

Waigani: Cannings J, David J, Berrigan J
2023: 4th & 5th July

SUPREME COURT  – practice and procedure – election petition reviews  – Constitution, s 155(2)(b) – Supreme Court Rules, Division 5.2 – application by notice of motion for leave to review decision of National Court in election petition – application to full court of Supreme Court by party dissatisfied with decision of single judge of Supreme Court to summarily dismiss proceedings for abuse of process – Supreme Court Rules, Order 11 rule 25 – whether application is prohibited by Supreme Court Rules, Order 5 rule 17 – whether notice of motion is incompetent for non-compliance with Order 11 rule 26 or Order 11 rule 32.

The applicant, the Electoral Commission, applied before a single Judge of the Supreme Court for leave to review under s 155(2)(b) of the Constitution a decision of the National Court in an election petition to refuse objections to competency of the petition. The single Judge summarily determined the leave application for abuse of process, on the ground that the Electoral Commission was not a party “aggrieved” by the National Court decision. Dissatisfied with the summary determination of its application, the applicant applied by notice of motion to the full court of the Supreme Court under Order 11 rule 25 of the Supreme Court Rules for orders setting aside or quashing the single Judge’s order, reinstating the application for leave and hearing and determining it on its merits. The applicant argued that the single Judge erred in ruling that it was not aggrieved by the National Court decision and in finding that its leave application was an abuse of process. The Electoral Commission’s motion was supported by the second respondent (the successful candidate at the election) and opposed by the first respondent (the petitioner in the EP proceedings). The first respondent argued as preliminary points that the motion should be refused without consideration of its merits as: (a) it was prohibited by Order 5 rule 17 of the Supreme Court Rules, which states “A decision to grant or a refusal to grant leave is final and shall not be subject to further review”; (b) it failed to comply with Order 11 rule 26 of the Supreme Court Rules and was incompetent; and (c) it failed to comply with Order 11 rule 32 of the Supreme Court Rules and was incompetent. 

Held: 

(1)	The summary determination of the leave application by the single Judge had the effect of dismissing the leave application. Though it was not determined on its merits the decision of the single Judge of the Supreme Court was for all intents and purposes a refusal to grant leave.

(2)	Order 5 rule 17 of the Supreme Court Rules manifests a clear intention to prohibit any appeal against or review of a single Judge’s decision to refuse to grant leave, and to prohibit also moving a motion under Order 11 rule 25 before the full court of the Supreme Court seeking orders to set aside the single Judge’s decision and to reinstate, hear and determine on its merits the leave application. The notice of motion is prohibited by Order 5 rule 17.

(3)	Further, the notice of motion does not comply with Order 11 rule 26, which requires an application under Order 11 rule 25 to seek the same orders that were sought before the single Judge.

(4)	The motion was not properly before the Court and was entirely dismissed. 

(5)	Costs were awarded against the applicant on an indemnity basis as the notice of motion was misconceived, having regard to the recent decision of the Supreme Court in Nomane v Mori & Electoral Commission (2023) SC2412 in which the Electoral Commission was a party, represented by the same lawyers representing it in these proceedings. 

Cases Cited

The following cases are cited in the judgment:

Electoral Commission v Pruaitch & Mise (2023) SC2415
Nomane v Mori & Electoral Commission (2023) SC2412
Olga v Wingti (2008) SC938
Pruaitch v Mise & Electoral Commission, EP 23 of 2022, 31.03.23, unreported

Counsel

N Tame, for the Applicant
G J Sheppard & P Tabuchi, for the First Respondent
J Kondop, for the Second Respondent

5th July, 2023

1.      BY THE COURT: On 31 March 2023 the National Court, constituted by Justice Frank, refused two objections to competency of the election petition, EP 23 of 2022. The petition concerned the election of Anderson Mise in the seat of Aitape Lumi Open in the 2022 general election. Mr Mise was first respondent in the petition, the Electoral Commission was second respondent and the petitioner was Patrick Pruaitch. Justice Frank refused objections to competency brought by Mr Mise and the Electoral Commission (Pruaitch v Mise & Electoral Commission, EP 23 of 2022, 31.03.23, unreported). 

2.     On 11 April 2023 the Electoral Commission filed in the Supreme Court, in these proceedings SCREV (EP) 19 of 2023, an application for leave to review under s 155(2)(b) of the Constitution the decision of the National Court. 

3.     Mr Pruaitch is first respondent in these proceedings. Mr Mise is second respondent.

4.    On 14 April 2023 Mr Pruaitch filed an application for summary determination of the proceedings on the ground of abuse of process.

5.     That application was heard by a single Judge of the Supreme Court, Justice Hartshorn, who on 30 May 2023 upheld the application. His Honour reasoned that because there were no allegations against the Electoral Commission in the election petition, and no order for costs was made against it by the National Court and it is not prevented from defending the petition in the National Court, it could not be said that it was a “party aggrieved by a decision of the National Court” for the purposes of Order 5 rule 8 of the Supreme Court Rules. His Honour relied on the decision of Injia DCJ in Olga v Wingti (2008) SC938 in explaining that being dissatisfied	 with a decision of a court is not the same thing as being aggrieved by it. To be aggrieved, is something more than being dissatisfied by a decision, and requires that the party seeking to challenge the decision has a legal grievance or is directly and adversely affected by the decision. His Honour ruled that the application for leave to review the National Court decision was an abuse of process (Electoral Commission v Pruaitch & Mise (2023) SC2415). His Honour ordered:

1.	This proceeding is summarily determined pursuant to Order 13 rule 16(1)(a) of the Supreme Court Rules as it is an abuse of process.

2.	The costs of the first respondent of and incidental to this proceeding shall be paid by the applicant. 

6.     Dissatisfied with that order, the Electoral Commission on 14 June 2023 applied by notice of motion to the full court of the Supreme Court under Order 11 rule 25 of the Supreme Court Rules for orders setting aside or quashing the Hartshorn J’s order, reinstating the application for leave and hearing and determining it on its merits. That is the motion on which we are now ruling. 

7.     Order 11 rule 25 states:

A party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

8.     The Electoral Commission argues that Hartshorn J erred in ruling that it was not aggrieved by the National Court decision and in finding that its leave application was an abuse of process. Its motion is supported by Mr Mise and opposed by Mr Pruaitch. 

PRELIMINARY POINTS 

9.     Mr Sheppard, counsel for Mr Pruaitch, submits as preliminary points that the motion should be refused without consideration of its merits as: 

(a) it is prohibited by Order 5 rule 17 of the Supreme Court Rules; 

(b) it fails to comply with Order 11 rule 26 of the Supreme Court Rules; 

(c) it fails to comply with Order 11 rule 32 of the Supreme Court Rules. 

(a)	 Order 5 rule 17

10.    Order 5 rule 17 of the Supreme Court Rules states:

A decision to grant or a refusal to grant leave is final and shall not be subject to further review. 

11.     Mr Tame, counsel for the Electoral Commission, submitted that this rule has no relevance as Hartshorn J did not grant or refuse the leave application on its merits, he simply summarily determined it.

12.     We can appreciate the distinction Mr Tame attempts to draw between a refusal to grant leave after a hearing on the merits and a summary determination of the leave application. However, we do not think it is a material or useful distinction. 

13.     The summary determination of the leave application by Hartshorn J had the effect of refusing the leave application. Though it was not determined on its merits the decision of his Honour was for all intents and purposes a refusal to grant leave.

14.     As this Court held only five days ago in Nomane v Mori & Electoral Commission (2023) SC2412:

Order 5 rule 17 is a specific rule dealing with the subject matter of the rights of parties dissatisfied with the decision of a single Judge in a specific circumstance: an application for leave to review a decision of the National Court in an election petition. Order 5 rule 17 is in Division 5.2 of the Supreme Court Rules. Division 5.2 consists of Order 5 rules 7 to 48, which provide a code of practice and procedure for election petition reviews.

In our view Order 5 rule 17 manifests a clear intention to prohibit any appeal against or review of the single Judge’s decision, and to prohibit also making the same application to the full court of the Supreme Court seeking the same relief sought before the single Judge. 

This interpretation is driven by the governing phrase of Order 5 rule 17: “A decision to grant or a refusal to grant leave is final …” The remaining words of Order 5 rule 17 “and shall not be subject to further review” do not qualify the governing phrase. 

Order 5 rule 17 means what it says. In this case it means [the] decision of 19 June 2023 to refuse leave is final. There is no appeal against it, no review of it, and no right to make the same application before the full court.

15.     There is no material difference between the facts in Nomane and those in this case. In Nomane the single Judge of the Supreme Court refused a leave application on its merits. In the present case, Hartshorn J summarily determined the leave application. The effect was the same: a refusal to grant leave.

16.     Order 5 rule 17 provides that the decision to refuse leave is final, and that is the end of the matter. 

17.     Order 5 rule 17 means what it says. It means Hartshorn J’s decision of 30 May 2023 to summarily determine the leave application is final. There is no appeal against it, no review of it, and no right to move a motion seeking to set aside or quash Hartshorn J’s decision or to reinstate the leave application and have it heard and determined by the full court of the Supreme Court. 

18.     The motion sought to be moved before the full court is prohibited by Order 5 rule 17. For this reason alone, the motion must be dismissed.

(b)	Order 11 rule 26

19.     Order 11 rule 26 of the Supreme Court Rules states:

Proceedings under rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.

20.     We uphold Mr Sheppard’s submission that the notice of motion that has been filed fails to comply with rule 26 as it does not seek the same orders that were sought before Hartshorn J. It seeks orders to set aside or quash his Honour’s order of 30 May 2023 and to reinstate the leave application and to have it heard and determined on its merits. It is non-compliant with the Rules and for this reason also, it must be dismissed. 

CONCLUSION

21.     The Electoral Commission’s notice of motion is not properly before the Court, for the two reasons given: it is prohibited by Order 5 rule 17 and it is non-compliant with Order 11 rule 26. All relief sought in the notice of motion filed on 14 June 2023 is refused. It is unnecessary to go any further, including the third preliminary point re Oder 11 rule 32 or the merits of the motion and whether Hartshorn J erred in summarily determining the leave application.

22.     Costs will be awarded against the applicant on an indemnity basis as the notice of motion was misconceived, having regard to the recent decision of the Supreme Court in Nomane v Mori & Electoral Commission (2023) SC2412 in which the Electoral Commission was a party, represented by the same lawyers representing it in these proceedings. 

ORDER

(1)	The notice of motion filed on 14 June 2023 is not properly before the Court as it is prohibited by Order 5 rule 17 of the Supreme Court Rules and is non-compliant with Order 11 rule 26 of the Supreme Court Rules.

(2)	All relief sought in the notice of motion filed on 14 June 2023 is refused. 

(3)	The applicant shall pay the first respondent’s costs of and incidental to that notice of motion on an indemnity basis, which shall if not agreed be taxed.
________________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Applicant	
Young & Williams Lawyers: Lawyers for the First Respondent
Manase & Co Lawyers: Lawyers for the Second Respondent