Application by Shulze; Review Pursuant to Constitution Section 155(2)(b) [1998] PGSC 41; SC572 (9 October 1998)

Unreported Supreme Court Decisions

SC572

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO 63 OF 1998
APPLICATION BY LUDWIG PATRICK SHULZE
REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (B)

Waigani

Kapi DCJ Sheehan Jalina JJ
28 August 1998
9 October 1998

JUDICIAL REVIEW - under s. 155 (2) (b) of the Constitution - the nature and scope of judicial review discussed.

NATIONAL PARLIAMENT - Election Petition - Pleading of facts under s. 208 (a) of the Organic Law on National and Local Level Government Elections - No need to apply for leave for judicial review in election matters.

Counsel

J Kwimb for the Applicant

J Allman for the First Respondent

J Nonggorr for the Second Respondent

9 October 1998

KAPI DCJ: Mr Arthur T Somare (hereinafter referred to as the First Respondent) was declared the elected member for the Angoram Open Electorate in the 1997 General Elections. Mr Ludwig Patrick Shulze (hereinafter referred to as the Applicant), a losing candidate, petitioned the result of the election in EP No 82 of 1997. The petition is pending to be tried in the National Court.

The petition alleged three basic grounds:

· that the first respondent is not residentially qualified (ground 5).

· that the first respondent and his supporters are guilty of bribery (ground 6).

· that the first respondent and his supporters are guilty of undue influence (grounds 7 and 8). Ground 9 of the petition simply pleads the effect of bribery and the undue influence on the result of the election.

The first respondent and the Electoral Commission (hereinafter referred to as the Second Respondent) made applications to strike out the petition for failure to comply with s. 208 (a) the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law). The application was heard by Andrew J and he struck out grounds 6, 7, 8 and 9 leaving only ground 5 to proceed to trial.

The applicant has filed judicial review against this decision pursuant to s. 155 (2) (b) of the Constitution. The applicant has filed two documents: (1) Application for Leave for Review; and (2) Application for Review. I have noticed that in a number of similar election reviews filed recently, they follow the same practice of filing the two documents. I consider that this practice has developed from a lack of appreciation of the true nature of a judicial review in election matters. Therefore I should restate the law on s. 155 (2) (b) judicial review in election matters.

The genesis of s. 155 (2) (b) is to be found in Avia Aihi v The State [1981] PNGLR 81. In brief that was a case in which the applicant had a right of appeal within 40 days under s. 29 of the Supreme Court Act but allowed the period in which to appeal to expire thereby losing the right to appeal to the Supreme Court. The Supreme Court held that in order to invoke the inherent jurisdiction of the Court under s. 155 (2) (b), the applicant had to satisfy the Court why leave should be granted in view of the fact that she allowed the period of 40 days to expire. Leave was granted in a separate hearing and the case proceeded to the merits.

In considering the merits, the Court concluded that in order to succeed in invoking this special jurisdiction of the Supreme Court, the applicant has to show “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity” (see Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44). This is a discretionary power.

The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised is much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State (supra). A very good analysis of the true nature of judicial review can be found in the judgement of Kearney DCJ.

These principles have been followed in many subsequent Supreme Court cases. The relevant cases are conveniently set out in PNG v Colbert [1988] PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;

(b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity;

(c) there are clear legal grounds meriting a review of the decision.

In election matters, the Organic Law, s. 220 prohibits any appeal from a decision of National Court. In SC Review No 5 of 1988: Kasap and Yama [1988-89] PNGLR 197 the Supreme Court held that this provision effectively prohibits any ground of appeal that may be brought under the provisions of Supreme Court Act. The intention is clear that certain matters cannot be appealed. However, the right of judicial review under s. 155 (2) (b) of the Constitution is not affected. The Court held that where there is a prohibition against an appeal, an applicant does not have to satisfy the requirement for leave. This was subsequently approved in SC Review of 1992: Application by Mionzing [1992] PNGLR 122. An applicant in an election matter need only to show that the ground relied upon satisfy the criteria set out in PNG v Colbert (supra). It follows therefore that there is no need to apply for leave in election matters.

I now consider the merits in the review. The present case raises two matters related to pleadings. The first is the sufficiency of pleading facts to support ground 6 for invalidating an election pursuant to s. 208 (a) of the Organic Law.

The second relate to the lack of pleading the relief pursuant to s. 208 (b) of the Organic Law. In this regard, counsel for the applicant submits that the trial judge was wrong in law in following the Supreme Court decision in Application by William Ekip Wii (SC Rveview No. 45 of 1994) (Unreported judgement of the Supreme Court dated 26th July 1994). Counsel for the applicant submits that the correct law is now decided in the recent case of Korak Yasona v Castan Maibawa (Unreported judgement of the Supreme Court dated 3rd May 1998, SC552) which overruled William Wii’s case.

On the other hand counsel for the respondents submits that we should follow William Wii’s case.

PLEADING

The law relating to pleading the facts for purposes of s. 208 (a) is settled and the requirement is that a petitioner must plead the material facts which gives rise to a ground. The pleading of the ground itself is not sufficient. Facts giving rise to the ground must be pleaded (see Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99). There is no suggesting in the present case that the trial judge did not apply the law correctly. I cannot find any ground which satisfies the criteria upon which the Court may exercise its discretion in favour of the applicant. I dismiss the grounds for review in respect of sufficiency of pleadings.

In respect of pleading the relief, the review raises an important point of law. As I have indicated before, there is a difference of opinion as to the requirement of pleading the particular relief. I do not find it necessary to decide this point in the present case. The grounds of review relating to bribery and undue influence which raise the issue of pleading invalidity of the election under s. 215 of the Organic Law have been struck down and I have confirmed the decision of the National Court. In the circumstances, the point of law relating to pleading of this particular relief does not arise. It is therefore not necessary to address the issue.

However, before living the subject I should point out that as there is a difference of opinion on this point, the next time this issue arises, it should be referred to a panel with a bigger bench to determine the issue once and for all.

The formal order is that the application for review is dismissed with costs and I direct that the petition with the remaining ground should be set down for hearing.

SHEEHAN J: I agree with the reasons and orders proposed by Kapi DCJ and I have nothing further to add.

INJIA J: Whilst I agree with the reasons for dismissal of this application of Kapi DCJ, I wish to elaborate further on the nature and scope of judicial review particularly in an election petition matter under Constitution s. 155 (2) (b). I agree with Kapi DCJ that the nature of review is different from a right of appeal under the provisions of Supreme Court Act and that the grounds upon which a review may be brought is limited by the criteria in Avia Aihi v The State [1981] PNGLR 81. However Avia Aihi sets out general criteria for determination of review under Constitution, s. 155 (2) (b). The nature and extent of review of a decision in an election petition matter was considered by the Supreme Court in SCR No 5 of 1988: Re Kasap v Yama [1988-89] PNGLR 197. As Kapi DCJ has concluded in the present review, the Supreme Court decided in Re Kasap that the grounds upon which a review may be brought in an election petition matter is further limited to situations where there is an important point of law which has merit. As the Supreme Court in Re Kasap, per Kidu CJ with whom Kapi DCJ agreed, at p. 199 - 200 said:

“The first question to be determined is whether the Court should exercise its discretionary power under s. 155 (2) (b) of the Constitution and review the National Court’s decision in question.

This is, of course, not the type of case in Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (no 2) [1982] PNGLR 44; Danny Sunu v The State [1984 PNGLR 305 and The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138. Those were cases where appeals were allowed but the applicants failed to appeal in time and then applied for review under s. 155 (2) (b). In election cases s. 220 of the Organic Law on National Elections specifically provides:

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

So only way these applicants could come to this Court is via s. 155 (2) (b) of the Constitution.

In similar case, that is, a case where the applicant had no other way to come to this Court except by way of an application under s. 155 (2) (b), this Court (Kidu CJ, Kapi Dep CJ and Amet J) said:

In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case, s. 155 (2) is available without the criteria in Avia Aihi and Danny Sunu being established. In this case, there is an important point of law to be determined and it is not without merit.” (SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulation [1987] PNGLR 433 at 437.)

In relation to the criteria for review of trial judge’s findings of fact on the evidence, the Supreme Court in Re Kasap decided that it is limited to where “there is a gross error clearly apparent on the face of the evidence”. As Woods J said at p. 208:

“Under the Organic Law on National Elections there is no appeal from the hearing of a petition by the National Court. The applicants here are therefore seeking their constitutional right to have a review of a decision by a judicial body from which there is no appeal.

This Court should therefore not allow such a review lightly when Parliament has itself declared there should be no appeal.

There must therefore be a gross error clearly apparent on the fact of the evidence before this Court should review.”

The jurisdiction of the National Court to hear and determination election petitions under the Organic Law on National and Local Level Government Elections is a special jurisdiction conferred on the National Court. The discretion under Constitution, s. 155 (2) (b) is a judicial discretion which must be exercised on proper grounds with greater restraint in election petition matters given the political nature of an election petition matter.

Review of such decision of the National Court under s. 155 (2) (b) should only be granted in the most exceptional of cases on an important point of law which clearly has merit or on points of evidence where there is a gross error clearly manifested on the face of the record.

Lawyers for the Applicant: Warner Shand

Lawyer for the First Respondent: John J Allman

Lawyers for the Second Respondents: Nonggorr & Associates