Avei v Maino [1998] PGSC 53; [2000] PNGLR 157 (16 October 1998)

[2000] PNGLR 157

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MOI AVEI; and
ELECTORAL COMMISSION

V

CHARLES MAINO

WAIGANI: HINCHLIFFE, SHEEHAN, JALINA JJ
28 September; 16 October 1998

Facts

This matter relates to judicial review applications sought by three affected parties, being Mr. Avei the successful candidate, the Electoral Commission and Sir Charles Maino the Petitioner under s 155 of the Constitution. Mr. Avei and the Commissioner are the applicants in these review applications. Sir Charles Maino, is the respondent in each applications.

The respondent asks the Court to dismiss the review applications claiming that the Supreme Court lacks jurisdiction to entertain election disputes which, under s 220 of the Organic Law on National and Local Level Government Elections gives exclusive jurisdiction for the hearing of election disputes to the National Court.

Held

1. The power of review given to the Supreme Court under the Constitution is not restricted in any way. Avia Ahi v The State [1981] PNGLR 81 adopted and applied.
   
2. The fact that exercise of the power of review is discretionary places no limit on the jurisdiction of review itself nor does the discretionary nature of review imply any restriction on the right of any person to invoke such jurisdiction.
   
3. Resort to review should normally be entertained once only after the body empowered to determine the issues concludes its findings. Any stipulated appeal process should be pursued before the Court is asked to intervene by way of review. But the power of review, including the timing of such review always lies within the discretion of the Supreme Court.
   

Papua New Guinea cases cited

Avia Ahi v The State [1981] PNGLR 81.
Danny Sunu v The State [1984] PNGLR 305.
In re Moresby North East Election Petition, Paterson Lowa v Goasa Damena [1977] PNGLR 429.
Malipu Balakau v Paul Torato [1983] PNGLR 242.
PNG v Colbert [1988] PNGLR 138.
SC Review No. 1 of 1990; Application by Electoral Commission [1990] PNGLR 441.
SC Review No. 5 of 1988; Kasap and Yama [1988-89] PNGLR 197.
SC Review No. 8 of 1992 Application of Mionzing [1992] PNGLR 122.
SC Review of 1987; Re Central Banking Regulations [1987] PNGLR 433.

Other cases cited

R v Hilingdon London BC, Ex Parte Pulhofer [1986] UKHL 1; [1986] AC 484.

Counsels

S Kassman, for the applicant.

D Steven, for the first respondent.
J Nonggorr, for the second respondent.

16 October 1998

BY THE COURT. On the 6 May 1998, the National Court in the course of the trial of an election petition in respect of the Kairuku-Hiri Open Electorate election ordered that;

"the Electoral Commission shall conduct a re-count of all the ballot papers in the election for Kairuku-Hiri Open electorate in the 1997 National Parliament .... under the general superintendence of the court .... Result of the re-count shall be provided to the Court .... Which time the Court would be at liberty to consider and invite further submissions or take any other course appropriate and necessary ... before final judgement is delivered as to the result of the re-count".

That was followed by applications for judicial review of the order by the three affected parties, that is, by Mr. Avei the successful candidate, the Electoral Commission and Sir Charles Maino the petitioner. Mr. Avei and the Commissioner are the applicants in these review applications, Sir Charles Maino, is the respondent in each.

Mr Kassman, counsel for the respondent now asks the Court to dismiss these review applications and undertakes that his own application (78/98) will be withdrawn as well. He grounds his application on submissions that this Court is, as yet, without jurisdiction to entertain them. He cites s 220 of the Organic Law on National and Local Level Government Elections, which gives exclusive jurisdiction for the hearing of election disputes to the National Court. That section reads:

"220. Decision to be final

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

Counsel for the respondent submitted that provision clearly precludes any possible appeals to the Supreme Court. He further says that even though any determination or "Judicial acts of National Court" are open to judicial review by virtue of s 155(a)(b) of the Constitution, because the election petition challenging the results of the Kairuku-Hiri election open electorate have not been finally determined by the National Court, there is, as yet, no determination open to review by this Court. To review the National Court inquiry before a final decision is made would be intervening in the jurisdiction exclusively accorded to the National Court by Parliament.

It was further argued that in any case the grounds of judicial review cited by the applicants in these reviews are "too general and too broad". They do not fall within the principles for review established by this Court in Avia Ahi v The State [1981] PNGLR 81. Malipu Balakau v Paul Torato [1983] PNGLR 242 and Enis Sunu and Ors v The State [1984] PNGLR 305 which determined that reviews under s 155(2)(b) of the Constitution should only be granted where there are cogent and convincing reasons or exceptional circumstances.

For Mr. Avei, counsel Mr. Steven argued that the order of the National Court being one of the reliefs sought in the applicant’s own petition, must be recognized as a final order and therefore amenable to review. It was also contended that until the Applicants were able to present the bases of their grounds, this Court will be unable to measure whether there was sufficient strength in these cases to warrant review. Counsel submitted the application to strike out amounts to a challenge to competency, but one made out of time.

For the Electoral Commission, Dr. Nonggorr supported these arguments. He said that notwithstanding the possible advantage of disposing of all matters before the National Court, the order under challenge is a final order and therefore open to review.

Decision

This Court has stated on many occasions that power of review given to the Supreme Court under the Constitution is not restricted in any way. As was pointed out by Kearney DCJ in Avia Aihi the Supreme Courts powers of review are "plenary", unlimited. They include the power of review of all judicial acts of the National Court (s 155(2)(b) under the Constitution, which in turn has the power to review any exercise of judicial authority (s 155(3)(b)).

In Balakau v Torato [1983] PNGLR 242 Kapi, DCJ firmly declared ...

"The power to review is an all embracing one to review all judicial acts of the National Court without exception. This includes all acts of the National Court under the sun, whether they relate to matters of fact, law, criminal, civil or whatever. There is nothing that the National Court can do which does not come under the power of review of the Supreme Court under s 155(2)(b)."

Thus while the respondent’s contention that s 220 of the Organic Law on National and Local Level Government Election precludes any appeal by a party from National Court determinations in election petition matters is correct, it is not accurate to say that this Court’s powers of review under s 155(2)(b) of the Constitution are only exercisable, can only arise in respect of election petitions once the National Court has made a final decision on the matters before it. The power of review, including the timing of such review, always lies within the discretion of the Supreme Court. Like the appeal process, which provides for appeals against interlocutory decisions of lower courts the Supreme Court at its discretion may also intervene in a similar way in respect of decision made in the course of proceedings amenable to review.

The fact that exercise of the power of review is discretionary places no limit on the jurisdiction of review itself nor does the discretionary nature of review imply any restriction on the right of any person to invoke such jurisdiction. Any person:

"who has a legitimate interest in a decision adverse to his interests, which affect his public law or constitutional rights may come to court to seek review". Kidu, CJ in SCR No. 8 of 1992.

It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions. This can be noted in s 155(6) of the Constitution, which speaks of them as alternatives.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgement of the issues. If error is found it will deliver the judgement it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.

As Lord Brightman stated in R v Hilingdon London BC, Ex Parte Pulhofer [1986] UKHL 1; [1986] AC 484:

"where ... fact is left to the judgement of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...".

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process. SC Review No. 1 of 1990; Application by Electoral Commission [1990] PNGLR 441.

The Constitutional provision granting the power of review doesn’t themselves deal with the rights of person seeking to invoke those power or the procedures for doing so. They are provided for elsewhere in the Constitution and by other laws. Nor has the Supreme Court laid down rules for the conduct of applications for judicial review. But by decisions commencing with Avia Ahi it has determined that its inherent powers entrenched by the Constitution will be exercised only with caution. In claims made when parties have failed to exercise appeal rights within time in criminal or civil cases, the Court requires that it be shown that a review sought (a) is in the interest of justice; (b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and (c) there are clear legal grounds meriting a review of the decision, PNG v Colbert [1988] PNGLR 138.

In Danny Sunu v State [1984] PNGLR 305 the Court said:

"The principle is that the discretion will be exercised only where it is in the interests of justice and the court is satisfied that there is "grave reason to apprehend that justice is actually miscarried, that is to say that the conviction was contrary to the truth and justice of the case."

But those standards do not apply outside of circumstances of Avia Aihi, Danny Sunu and Colbert cases. In SC Review of 1987; Re Central Banking Regulations [1987] PNGLR 433 the Court (Kidu, C.J., Kapi, DCJ and Amet J. as he then was ) stated;

"In a case where a person or a party in a proceeding has no other way of coming before this Court ... . Section 155(2)(b) is available without the criteria in Avia Aihi and Danny Sunu being first established".

That summary has since been cited and followed without alteration by the Court in decisions such as in SC Review No. 5 of 1988; Kasap and Yama [1988-89] PNGLR 197 and SC Review No. 8 of 1992 Application of Mionzing [1992] PNGLR 122.

But while proof of "exceptional circumstances" or "manifest substantial injustice" may not be mandatory in case not involving time barred appeals the Court will nonetheless only be persuaded by cogent, convincing reasons on clear legal grounds that it should intervene by way of review.

An integral part of matters that the Court must bear in mind in its exercise of that discretion is the integrity of the judicial process itself. The judicial system with the Supreme Court at its head provides for the orderly disposal of the business of the courts. All necessary and proper parties must be able to come before courts to obtain complete and effective determination of matters in issue between them.

Each Court in the system has full authority within its own jurisdiction. Such jurisdiction of course remains subject to supervision of a higher court but supervision does not mean interference, nor does it mean intervention in matters of procedure or discretion within jurisdiction. Simply stated each Court is intended to consider and deal with matters before it to completion. Parties who are dissatisfied may then progress to a higher court.

When a court is properly seized of a matter only in exceptional circumstances should there be need for intervention before it makes a final determination. The same can be said of the decisions of non-judicial authorities or tribunals. Resort to review should normally only be entertained once the body empowered to determine the issues concludes its findings. Any stipulated appeal process should be pursued before the Court is asked to intervene by way of review. And that is so whether there be rights of appeal or not since the right to seek review will always remain.

Apt citation was made by Counsel for the respondent from In re Moresby North East Election Petition, Paterson Lowa v Goase Damena [1977] PNGLR 429 where Prentice DCJ said:

"that as a general rule the Supreme Court should not interfere with a National Court hearing until it had reached a conclusion ... finality should normally be obtained in the National Court before appeal were sought therefrom."

The learned Judge went on to point out "the potentially catastrophic effects" too ready intervention during trial, can have on the processes of lower Courts, and it may also be said, on any other authority entrusted with judicial powers, and the parties before them. Clamours for review of any adverse ruling cannot only stall and stultify courts or tribunal proceedings, they can also work injustice by frustrating the purposes of the legislation authorizing a particular enquiry.

In SC Review No. 5 of 1987, Re Central Banking Regulations [1987] PNGLR 433 at 438 the Court points out that proceedings before Courts or Tribunal are never just one sided affairs with the interest of one party only having importance. The interest of all parties must be considered equally, as well as the people’s interest in seeing that matters progress to decision, to finality, in an expeditious manner.

The Supreme Court already requires that appellants seek leave to appeal interlocutory orders. But although it has ruled in Kasop v Yama that in election petition matters there is no requirement to seek leave for review, that ruling does not mean as-of-right review of interlocutory matters. Intervention or not, always remains in the discretion of the Court.

As stated by Kearney DCJ in Avia Aihi [1981] PNGLR 81:

"A person affected by a judicial act ... may yet ask this Court to exercise its inherent and discretionary power of review ... (however) whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion ... it is a truly discretionary jurisdiction."

Accordingly this Court must be sure that there is serious jurisdictional error before intervening prior to a Court or Tribunal making its final determination of the issues before it.

The applications in these reviews before the Court maintain that the order of the National Court sought to be reviewed is a final order susceptible to review and counsel for first respondent Mr. Avei says that given the opportunity to expound on them the grounds as stated on are appropriate and serious.

We are satisfied we do not need to inquire into those grounds since the main thrust of both applicant’s argument rest on the order challenged being a final order. We find that it is not. It specifically states that a final judgement is yet to be delivered and the order made cannot be said to finally dispose of all issues between the parties. Therefore with the National Court proceedings uncompleted though approaching finality there does not appear to be sufficient reason for this Court to intervene at this stage. Whatever the concerns parties may have now, they may yet be resolved by the final determination of the National Court. If they are not, there remains the right to seek review at that time.

In the result the motion of the respondent is granted. The applications are dismissed.

Lawyer for the applicant: Kassman & Asssociates.
Lawyer for the first respondent: Maladina Lawyers.
Lawyer for the second respondent: Nonggorr & Associates.