SC2427

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 42 OF 2023

PETER WARARU
Applicant

V

RICHARD MARU
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 17th, 19th July

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to uphold objection to competency of, and dismiss, election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The National Court dismissed an election petition brought by the applicant, upholding objections to competency of the petition lodged by the two respondents (the successful candidate, first respondent, and the Electoral Commission, second respondent). The applicant then applied to the Supreme Court for leave to review the decision of the National Court. He argued that the National Court erred in eight respects: (a) not properly considering that the petition was drafted by the applicant, who was not a lawyer; (b)rejecting the applicant’s objections to the two objections to competency; (c) incorrectly regarding a leading Supreme Court case and s 217 of the Organic Law on National and Local-level Government Elections as “statutory provisions”; (d) not properly applying s 217 of the Organic Law; (e) going against the spirit and intent of s 217; (f) taking a strictly legalistic approach to the pleadings; (g) not considering the serious allegations of electoral irregularities; and (h) making the order as to costs subject to “interim orders”. The applicant argued that a review of the National Court decision to dismiss the petition was warranted. The application was opposed by the respondents.

Held:

(1)	To be granted leave to review a decision of the National Court on an election petition, an applicant must show: (a)(i) insofar as the application relates to a point of law, that it is an important point, which is not without merit or (ii) insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2)	None of the proposed grounds of review, which related to the alleged errors of fact and law by the primary judge, raised important points of law that appeared to have merit. There were no gross errors of fact apparent in the judgment of the National Court. The primary judge properly and carefully addressed each ground of objection having regard to established Supreme Court authority. The primary judge was cognisant of and paid regard to s 217 of the Organic Law on National and Local-level Government Elections and applied it to determination of the objections to competency, having regard to the leading case of Hagahuno v Tuke (2020) SC2018

(3)	There was no injustice, and the circumstances were not exceptional. Leave was refused.

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Pundari v Yakos (2023) SC2345
Hagahuno v Tuke (2020) SC2018
Agiru v Makiba (2023) SC2366
Wararu v Maru & Electoral Commission (2018) N7346
Wararu v Maru & Electoral Commission (2023) N10358

Counsel

D Dotaona, for the Applicant
T Waisi, for the First Respondent
J Simbala, for the Second Respondent

19th July, 2023 

1.    CANNINGS J: On 22 June 2023 the National Court, constituted by Justice Shepherd, dismissed an election petition, EP 11 of 2022, brought by Peter Wararu (the applicant) which challenged the election of Richard Maru (the first respondent) as member for Yangoru Saussia Open in the 2022 general election (Wararu v Maru & Electoral Commission (2023) N10358). His Honour upheld objections to competency of the petition made by the first respondent and by the second respondent, the Electoral Commission.

2.      The applicant has applied to the Supreme Court for leave to review the decision of the National Court. 

3.     He argues that the primary judge erred in eight respects, as set out in paragraph 2, Grounds, of the application for leave:

2.1	The learned judge erred in mixed facts and law in the exercise of his discretion in not properly considering that the election petition was drafted and filed by the applicant who is not a lawyer and has little knowledge of the finer points of the law and drafting election petitions.

2.2	The learned judge erred in law in rejecting the applicant’s objections to the two objections to competency and erred in finding at paragraph 21 of the judgment that the word “shall” was permissive or directory rather than mandatory. The word “shall” means mandatory or compulsory and had to be followed rather than obligatory [sic].

2.3	The learned judge erred in mixed fact and law in ruling at paragraph 41 of the judgment that Hagahuno v Tuke (2020) SC2018 (Tuke’s case) and section 217 of the Organic Law are the paramount statutory provisions when determining the two objections to competency when the former is a decision of the five-man bench of the Supreme Court, and the latter is a constitutional law provision.

2.4	The learned judge erred in law in the exercise of his discretion in not properly applying section 217 of the Organic Law to be guided by the substantial merits and good conscience of the case without regard to legal forms of technicalities.

2.5	The learned judge erred in law and went against the spirit and intent of section 217 of the Organic Law by imposing strict requirements on the applicant to ensure compliance while the respondents did not face the same level of requirements thus creating injustice to the applicant. 

2.6	The learned judge erred in mixed fact and law in taking a strict legalistic approach to the pleadings when the petition on its face raised serious issues of irregularities with particular reference to the allegations in relation to the counting of the votes.

2.7	The learned judge erred in law in the exercise of his discretion in not considering the serious allegations of irregularities and should have allowed the allegations in relation to the counting to proceed to trial.

2.8	The learned judge erred in law in paragraph 202 of the judgment in ruling that subject to any “interim orders” the applicant was to pay the first respondent’s costs on a solicitor client basis and pay the second respondent’s costs on a party to party basis.

4.      In summary it is argued that the primary judge erred in law and/or fact by:  

(a) 	not properly considering that the petition was drafted by the applicant, who was not a lawyer; 

(b) rejecting the applicant’s objections to the two objections to competency; 

(c) 	incorrectly regarding a leading Supreme Court case and s 217 of the Organic Law on National and Local-level Government Elections as “statutory provisions”; 

(d) 	not properly applying s 217 of the Organic Law; 

(e) 	going against the spirit and intent of s 217; 

(f) 	taking a strictly legalistic approach to the pleadings; 

(g) 	not considering the serious allegations of electoral irregularities; and 

(h) 	making the order as to costs subject to “interim orders”. 

5.     The applicant argues that a review of the National Court decision to dismiss the petition is warranted. The application is opposed by both respondents.

CRITERIA 

6.    There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in two cases, Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366. In each case his Honour refused leave for review of decisions of the National Court in an election petition. 

7.     His Honour spelt out the criteria for granting leave. The applicant must show:

1.	insofar as the application relates to a point of law, that it is an important point, which is not without merit or insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and 

2.	there are exceptional circumstances; and 

3.	it is in the interests of justice to grant leave.

8.   I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. 

9.    The criteria need to be strict, to give effect to two principles inherent in the Organic Law. First, election petitions are supposed to be simple and straightforward cases, quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

10.     Secondly, decisions of the National Court are meant to be final, not the beginning of a seemingly endless cycle of litigation. This is apparent from s 220 (decision to be final) of the Organic Law, which states:

A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

11.      The effect of s 220 is, of course, qualified by s 155(2)(b) of the Constitution, which states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court. 

12.     Division 5.2 of the Supreme Court Rules 2012 regulates the hearing of applications for review under s 155(2)(b). Rule 8 provides an application for an election petition review “lies to the Court with leave only”. Rule 16 provides that the application for leave shall be made before a Judge. Rule 17 provides that a decision to grant or refuse leave “is final and shall not be subject to further review”. 

APPLYING THE CRITERIA 

13.      I first address the question of whether any of the proposed grounds of review (reflected in the alleged errors of fact and law in paragraph 2 of the application for leave, summarised above as (a) to (h)) are meritorious and raise an important point of law or fact.

(a)	The fact that the petition was drafted by the applicant, who was not a lawyer, was not a relevant consideration for the primary judge to take into account. It is clear that his Honour’s attention was focussed on whether the alleged facts underlying the petition were clearly expressed and stated in a way that the respondents were put on notice as to the case they had to meet. His Honour aptly observed that an election petition by the applicant contesting the election of the first respondent in the 2017 general election was dismissed by the National Court on similar grounds of objection to competency as those relied on by the respondents in EP 11 of 2022 (Wararu v Maru & Electoral Commission (2018) N7346).

(b)	There is no arguable case that his Honour erred in rejecting the applicant’s objections to the objections to competency. The objections to competency were rightly before the court. The respondents had the right to raise them and the case law clearly showed that (Amet v Yama [2010] 2 PNGLR 87). His Honour took a conventional and unremarkable approach in refusing the objections to the objections to competency and hearing the latter on their merits.

(c)	His Honour did not regard the leading Supreme Court case of Hagahuno v Tuke (2020) SC2018 as a statutory provision. Although his Honour may have referred to s 217 of the Organic Law on National and Local-level Government Elections as a “statutory provision”, and a better choice of words might have been to refer to that provision as a Constitutional Law provision, referring to s 217 in the way his Honour did was not wrong in law. No serious argument can be made that his Honour was unaware of the constitutional significance of s 217. The applicant’s argument on this proposed ground of review is trivial, and raises no important point of law. 

(d)	His Honour did not fail to apply s 217 of the Organic Law. His Honour was fully cognisant of it and applied it to the case before him, in light of the decision of the five-Judge Supreme Court in Hagahuno v Tuke (2020) SC2018. There is no arguable case that his Honour erred by disregarding s 217 or that leading Supreme Court decision. 

(e)	There was no “going against” the spirit and intent of s 217. 

(f)	His Honour did not take a strictly legalistic approach to the pleadings.

(g)	His Honour did not fail to consider the serious allegations of electoral irregularities. There is no arguable case that he did.

(h)	There is no arguable case that his Honour erred in the exercise of discretion as to costs. 

14.     I find that none of the proposed grounds of review are meritorious. None raise important questions of law.

15.    Further, there are no gross errors of fact apparent in the judgment of the National Court. 

16.    It is apparent that the primary judge properly and carefully addressed each ground of objection having regard to established Supreme Court authority. The primary judge was cognisant of and paid full regard to s 217 of the Organic Law and applied it to determination of the objections to competency, having regard to the leading case of Hagahuno v Tuke (2020) SC2018.

17.    There is no injustice apparent. The circumstances of this case are unexceptional. The interests of justice do not require the granting of leave. Leave must be refused.
 
ORDER

(1)	The application for leave, filed 4 July 2023, to apply for review of the decision of the National Court of 22 June 2023 in EP No 11 of 2022, is refused. 

(2)	The applicant shall pay the respondents’ costs of the application on a party-party basis, which shall if not agreed be taxed.

(3)	The file is closed.
________________________________________________________________
Dotaona Lawyers: Lawyers for the Applicant	
Waisi Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent