[1999] PNGLR 588

PAPUA NEW GUINEA

[supreme court of justice]

Melchior Pep

v

Puri Ruing; and

The Electoral Commission

waigani: woods, sakora, sawong jj
21, 22 June 1999

Application for Review — Constitution Section 155 — Organic Law on National Elections — striking out for want of prosecution — failure to pay security for costs — special nature of election petitions.

Facts

This is an application by the applicants/respondents to have the review proceedings pursuant to the Organic Law on National and Local-Level Government Elections, challenging the election of the first applicant/respondent, Hon. Puri Ruing as Member of Parliament. Apart from failing to settle a certified bill of cost of the applicants/respondents, the respondent/applicant, Mr Melchior Pep, has not even progressed the review by filling the review book.

The applicants/respondents now seek to have the review proceedings dismissed for want of prosecution.

Held

1.	The applicant for review has given no indication that he is making appropriate arrangements to raise the monies he is already obliged to pay, nor that he is taking any steps towards the preparation for the hearing of the review. This court cannot tolerate such a delay in a review, which in effect is a continuing challenge to the representation in the Parliament of the country.

2.	Whilst there is no actual provision in the procedures for review under the Constitution s 155, for striking out for want of prosecution there is an inherent power in the Supreme Court to provide an appropriate remedy. As the Supreme Court ruled in the case Applications by Berghuser and Titimur [1995] PNGLR 259 "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."

3.	We find that Melchior Pep, the applicant for review, has shown no indication that he has taken any steps towards the hearing of this review. We therefore rule that in a matter of a dispute to the representation of an electorate in the Parliament this delay is intolerable and should not allowed.

Papua New Guinea cases cited

Applications by Berghuser and Titimur [1995] PNGLR 259.

Counsel

A Kwimberi, for the applicant/first respondent.
A Kongri, for the applicant/second respondent.
E Kwa, for the respondent/applicant.

22 June 1999

By the court. These are applications by the respondents to the Review that the proceedings be dismissed for want of prosecution.

The history of the matter is as follows: On 20 November 1998 the petition by Melchior Pep under reference EP 3 of 1997 was dismissed by the National Court. In December 1998 the petitioner filed this application for review of the National Court decision. The first respondent to this review presented a bill of costs which was taxed and on 4 January 1999 a Certificate of Taxation was issued by the Deputy Registrar of the National Court in the sum of K51,722.52. Those taxed costs have not been paid. In February the Supreme Court, partly on the basis of the unpaid certificate of taxed costs, ordered that the applicant for the review pay an amount of K30,000 into Court as security for costs on the review. The security has not been paid.

The applicants before us now submit that the applicant for review has done nothing towards meeting the order for security for costs and has taken no other steps towards the preparation of the review book that will be required for the hearing of the review. The applicant for the review has stated in an affidavit that he has been having trouble raising the money required for the security but seeks more time. It has been submitted that the delay since February is not an unreasonable time and the applicant for the review should be given further time to take the steps necessary to exercise his constitutional right to seek review and that an order for security for costs is an onerous precondition for such a review.

Whilst there is nothing in the Organic Law nor in the Constitution requiring any security for costs in such an application under s 155 of the Constitution and whilst we agree that the Court should not impose any unreasonable barrier to a person seeking to exercise his constitutional right we find that the following are relevant considerations. Firstly the applicant for the review has exercised his right to challenge the election of the first respondent as provided for under the Organic Law on National and Local-Level Government Elections and he has caused the respondents to that petition to incur large costs and these costs have been taxed at over K51,000 and this amount has not been paid. Secondly the Organic Law, in an effort to mitigate the possibility of lengthy legal delays, which could cause uncertainty in the representation of the people in the Parliament, has provided that there shall be no appeal from the decision of the National Court on a petition under that Organic Law. Therefore the right to seek review is an exceptional right under the Constitution, which in effect overrules the intention of an Organic Law. An applicant for such a review must show his bona fides and intentions by acting expeditiously and ensure that his house is in order. This review is of its very nature causing further uncertainty in the representation of an electorate in the Parliament and has already caused great expense, which it appears the elected member is having trouble recovering. There must be discretion in this Court to ensure there is some protection to a so far successful party before he can be forced to incur further trouble and expense when he has not been paid for the already incurred expense.

The applicant for review has given no indication that he is making appropriate arrangements to raise the monies he is already obliged to pay, nor that he is taking any steps towards the preparation for the hearing of the review. This court cannot tolerate such a delay in a review, which in effect is a continuing challenge to the representation in the Parliament of the Country.

Whilst there is no actual provision in the procedures for review under the Constitution s 155, for striking out for want of prosecution there is an inherent power in the Supreme Court to provide an appropriate remedy. As the Supreme Court ruled in the case Applications by Berghuser and Titimur [1995] PNGLR 259 "a judicial review under section 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 find that Melchior Pep, the applicant for review, has shown no indication that he has taken any steps towards the hearing of this review. We therefore rule that in a matter of a dispute to the representation of an electorate in the Parliament this delay is intolerable and should not allowed.

We dismiss the application of Melchior Pep for review.

Lawyers for the applicant/first respondent: Paulus Dowa.
Lawyers for the applicant/second respondent: Nonggorr & Associates.
Lawyers for the respondent/applicant: Paul Mawa & Associates.