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Applications by Berghuser and Titimur [1995] PNGLR 259 (29 May 1995)

PNG Law Reports 1995

[1995] PNGLR 259 - Applications by Hugo Berghuser and Lawrence Titimur

[1995] PNGLR 259

SC481

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO THE CONSTITUTION SECTION 155(2)(B)

APPLICATION BY: HUGO BERGHAUSER

PETITIONER

APPLICATION BY: LAWRENCE TITIMUR

PETITIONER

Waigani

Kapi DCJ Andrew Sakora JJ

26 April 1995

29 May 1995

PRACTICE & PROCEDURE - Power to make rules under s 184 of the Constitution - Where there is lack of provision - Power of the Court to give ad hoc directions under s 185 of the Constitution - Application to strike out for want of prosecution is a matter which comes within the meaning of “practice & procedure” - Relevance of speedy determination of election matters to application to strike out for want of prosecution.

Facts

Two unsuccessful candidates at the general elections held some three years hitherto, petitioned disputing the results. Both petitions were dismissed in 1994, and they sought judicial review of the decisions. A year after the application for review was filed the matter was not set down for hearing. The Electoral Commissioner applied to strike out the application for want of prosecution.

Held

1.       As there was a lack of provision in respect of this matter, the Court would direct that a judicial review under s 155(2)(b) of the Constitution may be dismissed for want of prosecution if the party seeking the review has not done any act or otherwise has not prosecuted the review with due diligence.

Counsel

J.F. Bray, for the applicant/respondent.

J. Aisa, for the respondent/petitioners.

29 May 1995

KAPI DCJ ANDREW SAKORA JJ: These are two applications made by the Electoral Commissioner that the petitioners’ applications for Judicial Review be struck out for want of prosecution.

This matter arises from two electoral petitions disputing the result in the National Capital District Regional electorate in the 1992 National Elections. Both petitions were commenced together in the National Court on 1 November 1993 and decisions in both were delivered on 22 March 1994. Both petitions were dismissed. The petitioners then sought judicial review under s 155(2)(b) of the Constitution. Those applications were filed on the 7 April 1994. An index to the review was filed on the 20 April 1995, that is over one year after the applications for review were filed. To this day the matters have not been set down for hearing.

The Supreme Court Rules are silent in respect of striking out for want of prosecution of an application for judicial review. In Aluago Kaiabe v Balus Libe And The Electoral Commissioner, SCR 3 of 1993, (an unpublished judgment of the Supreme Court (Kidu CJ, Andrew, Sakora JJ) dated 25 February 1993), the Supreme Court found that:

The Rules (Supreme Court Rules) are silent in relation to the same matters (objection to competency) when the application is one of judicial review pursuant to s 155(2)(b) of the Constitution.”

The Court then held:

“In our judgment the Supreme Court has an inherent power to make rules with respect to the practice and procedure of the Court. By s 185 of the Constitution, if in the circumstances of a particular case there is no provision or adequate provision in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy. It would only be right, in our view, for the Court in the proper exercise of the control of the conduct of its proceeding to be able to decide the competency of an application before it. To rule otherwise would mean that all kinds of incompetent applications might have an automatic right of hearing.

In the circumstances of this case we are of the view that the application as to the competency should proceed and that whilst it was not filed within the fourteen day period which is relevant to the appeal process, nevertheless that in the circumstances of this review we do not find that any party is so disadvantaged that the application should not be entertained.”

We agree that this Court has power to provide a remedy where there is a lack of provision in respect of a matter of practice or procedure. We need to clarify one matter only in this passage. The power to make rules with respect to the practice and procedure of the Court is expressly given by s 184 of the Constitution.

The issue of striking out a review for want of prosecution is a matter which comes within the meaning of “practice and procedure”. As there is a lack of provision in respect of this matter, we would direct that a judicial review under s 155 (2) (b) of the Constitution may be dismissed for want of prosecution if the party seeking the review has not done any act or otherwise has not prosecuted the review with due diligence.

We are satisfied that there has been a history of prolonged delay in these matters. It is after all nearly three years since the elections were held and there is still no date set for the resolution of both matters. The provisions of the electoral laws were intended to make a definite cut-off point after which there would or could be no further questions about the results of elections: See Mapun Papol v Antony Temo And The Electoral Commission [1981] PNGLR 178 and SCR 4 of 1982 Re Delba Biri v Bill Ninkama [1982] PNGLR 342. The electorate is entitled to be in no doubt as to who is its member and the importance of the public interest of securing an early determination of the matters are relevant considerations in determining whether or not they should be struck out for want of prosecution.

Here the transcripts became available inn September of 1994. It is true that there were then some problems in obtaining court exhibits but we are satisfied that effectively no active steps have been taken since September 1994 to expeditiously prosecute the review applications save for the filing of the index on the 20^th April 1995 which was no doubt prompted by these applications to strike out.

We are therefore satisfied that both applications for review have not been prosecuted with due diligence especially having regard to the public interest in finalising electoral results.

We grant the applications to strike out both applications for judicial review in these matters, for want of prosecution.

We grant costs to the Electoral Commission.

Lawyer for the Electoral Commission: Pato Lawyers.

Lawyer for the petitioners: J.F. Aisa & Associates.