PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Papua New Guinea
You are here:  PacLII >> Databases >> Supreme Court of Papua New Guinea >> 2024 >> [2024] PGSC 71

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Minape v Rosso [2024] PGSC 71; SC2591 (21 June 2024)

SC2591


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCREV (EP) NO 27 OF 2023


MATHEW MINAPE
Applicant

V

JOHN ROSSO
First Respondent


ELECTORAL COMMISSION
Second Respondent

Waigani: Kariko J, Anis J, Narokobi J
2024: 28th May & 21st June


PRACTICE AND PROCEDURE – objection to competency of application for leave for review of decision of National Court to dismiss election petition – objection dismissed by single Judge – fresh application to full court under O 11 rr 25 & 26, Supreme Court Rules – whether court has jurisdiction to hear application – whether application is an abuse of process.

The applicant filed an application for leave to review a decision of the National Court that dismissed his election petition which disputed the return of the first respondent as successful candidate in the 2022 general election. The second respondent objected to the competency of the leave application which was heard and dismissed by a single Judge sitting as the Supreme Court. Dissatisfied, the second respondent filed a fresh application to the full court.


Held:


(1) An application for review of a decision of the National Court in an election petition lies only with leave.

(2) Unless and until leave is granted, an applicant for leave for an election petition review does not have locus standi or standing to invoke the inherent powers of the Court pursuant to s155(2)(b) of the Constitution.

(3) Application for leave is not “substantive proceedings” as defined in O1 r 7 of the Supreme Court Rules.

(4) Because an objection to competence of an application for leave may be heard by the full Court or a single Judge according to O 7 r 17(1)(a) of the Supreme Court Rules, this necessarily implies that there shall be only one hearing of the objection.

(5) The application prescribed by O11 rr 25 and 26 of the Supreme Court Rules is not available in relation to a decision on an objection to competency of an application for leave for review.

Cases Cited:
Chan v Ombudsman Commission of Papua New Guinea (1999) SC607
Coulter v R [1988] HCA 3; (1988) 164 CLR 350
Dola v Alua (2023) SC2521
Genia v Temu (2024) SC2544
Giwi v Popuna (2023) SC2501
Michael Wilson v Clement Kuburam (2016) SC1489
Miriori v Daveona (2019) SC1847
Taman v Samson (2021) SC2148
Thomas v Bando (2024) SC2537
ToRobert v ToRobert (2011) SC1130

Counsel:
Mr J Aku, for the Applicant
Mr W Bigi, for the First Respondent
Mr D Kints, for the Second Respondent

21st June 2024


  1. BY THE COURT: This is an application filed 4 September 2023 by the second respondent the Electoral Commission to the Supreme Court under O 11 rr 25 and 26 of the Supreme Court Rules, emanating from an application for leave for review of two decisions of the National Court by which an election petition was dismissed.

BACKGROUND


  1. The first respondent John Rosso and the applicant Mathew Minape contested the Lae Open seat in the Parliament in the 2022 general election whereby Mr Rosso was declared the winning candidate.
  2. That declaration was challenged by Mr Minape in an election petition filed on 24 August 2022 in the National Court.
  3. Both Mr Rosso and the Electoral Commission objected to the competency of the petition. The trial Judge heard and upheld the objections and dismissed the petition on 16 May 2023. His Honour had earlier on 2 May 2023 declined Mr Minape’s objection to competency of the objections to competency of the petition.
  4. Aggrieved, Mr Minape filed an application in the Supreme Court on 25 May 2023 for leave to apply for review of the decisions.
  5. In response, the Commission filed an objection to competency of the leave application on 9 June 2023.
  6. His Honour Batari J, sitting as a single Judge of the Supreme Court, heard the objection and refused it on 24 August 2023.
  7. Dissatisfied, the Commission filed the application now before us.

THE APPLICATION


  1. The application is by way of a notice of motion, and in summary seeks two main relief:

JURISDICTION


  1. It is trite law that the Court must have jurisdiction to deal with any matter before it, whether it be interlocutory or substantive. The remarks of the Court in ToRobert v ToRobert (2011) SC1130 (Cannings J, Kariko J & Murray J) that the Court “must be vigilant in ensuring that it has jurisdiction to deal with the matter before it and that the jurisdiction of the court has been properly invoked”, are pertinent.
  2. Order 11 rr 25 and 26 are contained in Division 13 (Appeal & application to court from orders or directions of judge), and they read:

25. 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.


26. 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.


27. Where a Judge refuses an order sought on an application pursuant to s 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to s 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.


(Underlining added)


  1. We agree with the submission by Mr Kints, for the Electoral Commission, that the preconditions to making an application under rr 25 and 26 are:
  2. Mr Kints also submitted that the only restriction or limitation on the Court’s jurisdiction is provided in Order 11 rule 1 which states:

The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.


  1. However, counsel contended that there is nothing in the Supreme Court Rules that limits this application from being heard.
  2. Mr Kints further argued that by virtue of O 11 r 28(a) and O 7 r 15, a party is permitted to file an objection to competency of an application for leave for review which can be heard by a Judge.
  3. It was therefore submitted that the application was properly before the Court as it had satisfied all the preconditions and there was no restriction or limitation to it being heard and determined.
  4. The first respondent supported the arguments of the second respondent.
  5. It is common ground that the order issued by Batari J was made pursuant to the Supreme Court Rules rather than s 5 of the Supreme Court Act.
  6. Mr Minape did not contest the directional orders sought in the application on the procedure and form of the notice of motion, and we consider the course proposed by the Electoral Commission appropriate and consistent with the observations of the Supreme Court on this point in National Executive Council v Toropo (2022) SC2193 (Manuhu J, Makail J, Kariko J).
  7. However, Mr Minape strongly opposed the application on grounds that the application is incompetent for want of jurisdiction, and for being an abuse of process.
  8. His counsel, Mr Aku, submitted that the notice of motion referred to in O 11 r 26 must be filed in the “substantive proceedings” and an application for leave to review is not substantive proceedings but rather a preliminary interlocutory procedure. In support of this proposition, he referred to and relied on the remarks of the Supreme Court (Yagi J, Makail J, Dowa J) in the recent case of Thomas v Bando (2024) SC2537 at [25(i)] where the Court explained:

An application for leave is not a substantive proceeding. It is merely a preliminary interlocutory procedure. At that stage and prior to leave being granted the applicant for leave has not established a locus standi to be heard on the merit of the proposed review application.


  1. Mr Aku also argued that a refusal by a Judge of an objection to competency of an application for leave for an election petition review is a final decision of the Supreme Court, and is not subject to further scrutiny whether by way of an appeal or review or the application procedure under rr 25 and 26. Counsel reasoned that if it was the contrary situation where the objection was allowed, that would be the end of the matter.
  2. He again referred to Thomas v Bando (supra) and the view expressed at [25(i)] that:

There is no expressed provision under Order 5 of the SCR providing for either a review or hearing de novo on a ruling by a single Judge on refusing or dismissing an objection to competency equivalent to Order 11 rules 25 and 26 of the SCR, which applies to ordinary civil appeal proceedings.


CONSIDERATION


  1. An application for leave is a request by a party to be heard by the court, commonly where the party does not have an automatic right to be heard in the contemplated proceedings.
  2. There are several proceedings in the Supreme Court exercising either its original jurisdiction under ss 18 and 19 of the Constitution, its appellate jurisdiction under the Supreme Court Act or its review jurisdiction pursuant to s155(2)(b) of the Constitution, which first require leave of the Court. Leave may be granted at the discretion of the Court having regard to established principles.
  3. In discussing the requirement for leave in judicial review, Kapi DCJ in Chan v Ombudsman Commission of Papua New Guinea (1999) SC607 referred to some English cases to highlight that leave is an essential protection against abuse of legal process by the likes of busybodies; a process of filtering cases to prevent unmeritorious cases from being heard by a higher tribunal.
  4. Leave to appeal was described in similar terms by Deane J & Gaudron J of the High Court of Australia in Coulter v R [1988] HCA 3; (1988) 164 CLR 350 at 359 this way:

The requirement that leave or special leave be obtained before an appeal will lie is a necessary control device in certain areas of the administration of justice (eg, appeals to a second appellate court) in the country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before the particular court.

(Underlining added)


  1. The Supreme Court (Manuhu J, Kassman J, Anis J) in Taman v Samson (2021) SC2148 relevantly noted at [17]:

.. that the purpose for obtaining leave, in instances such as this where an applicant has lost his or her primary right of appeal, is to seek permission to file a substantive proceeding like application to review under Order 5 of the SCR. When leave is granted, the rules require or make it mandatory for the applicant to file the substantive proceeding or an application to review, within 21 days.

(Underlining added)


  1. An election petition review is a review under s 155(2)(b) of the Constitution; O 5 r 7 of the Supreme Court Rules. An application for review of a decision of the National Court in an election petition lies only with leave; O 5 r 9. After being granted leave, the applicant may then file the proceedings seeking review; O 5 r 18. It follows that unless and until leave is granted, an applicant for leave for an election petition review does not have locus standi or standing to invoke the inherent powers of the Court pursuant to s155(2)(b) of the Constitution.
  2. We also note that O1 r 7 of the Supreme Court Rules defines "substantive proceedings" to mean proceedings under the Rules which are not interlocutory in nature or an appeal under O 11 r 27. Application for leave is therefore not substantive proceedings.
  3. For these reasons, we accept the submissions by Mr Aku on this point and find the second respondent’s application to be incompetent.
  4. But there is another reason why the application warrants dismissal.
  5. Order 11 r 28(a) of the Supreme Court Rules states that O 7 Division 5 (Objection to competency) applies to any proceedings, substituting the nature of the proceedings for the word “appeal”. Order 7 Division 5 commences with r 15(1) which refers to objections to competency of an appeal or an application for leave to appeal, and therefore objections to competency of an application for review or an application for leave to apply for review. Application for leave to apply for an election petition review shall be heard by a Judge; O 5 r 16. Objection to competency of such application may be heard by the Court or a Judge; O 7 r 17(1)(a). The objection shall be heard before the leave application (the substantive matter); O 7 r 17(2).
  6. Contrary to arguments by Mr Aku, a Judge does have jurisdiction to hear an objection to competency of an application for leave; O 7 r 17(1)(a). Recent election petition cases reflecting this include Dola v Alua (2023) SC2521 and Genia v Temu (2024) SC2544.
  7. That said, the Court in Thomas v Bando (supra) stressed that there is no provision in the Supreme Court Rules that permits a party aggrieved by the decision of a Judge on an objection to competency of an application for leave for review, to further pursue his concern via another hearing before a three-member bench Supreme Court, and to do so amounts to an abuse of process. We agree.
  8. The fact that an objection to competency of an application for leave may be heard by the full Court or a single Judge according to O 7 r 17(1)(a) necessarily implies that there shall be only one hearing of the objection. If the objection is heard and determined by the Court, the decision is final. The Supreme Court Rules do not provide, nor do they contemplate the position to be different if the objection is dealt with by a Judge. The application prescribed by O11 rr 25 and 26 is therefore not available in relation to a decision on an objection to competency of an application for leave for review. Improper use of the court process amounts to an abuse of process; Michael Wilson v Clement Kuburam (2016) SC1489 at [25] per Gavara-Nanu J.
  9. Interestingly, similar views were expressed in Miriori v Daveona (2019) SC1847 (Yagi J, Makail J, Koeget J) and Giwi v Popuna (2023) SC2501 (Batari J, Narokobi J, Dowa J), although those cases concerned an application to add a party pursuant to O 11 r 11. This Rule also allows a Judge or the Court to hear the application.
  10. In both cases, the application had come before a Judge who refused it, and a fresh application was then made to the Court. The application to the full court in Miriori v Daveona was pursued under s 5 of the Supreme Court Act while it was made again under O11 r 11 in Giwi v Popuna. The Courts held that the applications were an abuse of process because an applicant has a choice to be heard by either a Judge or the Court under O11 r 11, which in effect means that a determination by the applicant’s choice of court is final. It appears however that the question whether an application could have been properly pursued under O11 r 25 was not fully argued or considered.

CONCLUSION

  1. Given the above, it is not necessary to consider other submissions of counsel.
  2. The application will be refused. Costs will follow the event.

ORDER


  1. The application filed by the second respondent on 4 September 2023 is dismissed for being incompetent and an abuse of process.
  2. The respondents shall pay the applicant’s costs of and incidental to the application, to be taxed, if not agreed.
  3. The case is referred to the Registrar for to be listed for hearing of the application for leave to apply for review filed 25 May 2023.

________________________________________________________________
Jaku Lawyers: Lawyers for Applicant
Henao Lawyers: Lawyers for First Respondent
Jema Lawyers: Lawyers for Second Respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2024/71.html