Kaeok v Pato [2005] PGSC 46; SC877 (2 September 2005)

SC877

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 12 OF 2004

BETWEEN:

MIKI KAEOK
Applicant

AND:

RIMBINK PATO
First Respondent

AND:

MASKET IANGALIO
Second Respondent

Waigani: Sakora, Lenalia and Manuhu, JJ.
2005: 30 August & 2 September.

RULING

GENERAL ELECTIONS – National Parliament – Review of decision of Court of Disputed Returns – Application to dismiss - Due diligence in prosecution of review.

PRACTICE AND PROCEDURE – Supreme Court Election Petition Review Rules – Application to dismiss - Due Diligence in prosecution – Application made when ex parte directional orders addressing the question of delay already in place – Application made without challenging ex parte directional orders.

No cases were cited in the judgment.

Counsel:

Mr. K. Naru, for the Applicant.
Mr. R. Pato, for himself.
Mr. Griffin, for the Second Respondent.

2 September 2005.

1. BY THE COURT: This is an application by the First Respondent which was made pursuant to Sub Division 11 Rule 23(1) of the Supreme Court Election Petition Review Rules ("Rules") for the Supreme Court Review to be dismissed for want of prosecution.

2. The application arises out of a successful election petition by the Respondents where the trial court on 18 February 2004 adjudged that the election result of the Wapenamanda Open Seat, which returned the Applicant as the duly elected member, null and void; and a by-election must be held for the election of new member. The Applicant is seeking a review of that decision, and this application is pursued on the basis of failure to prosecute that review.

3. Rule 23 provides that where an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his application with due diligence, the Court may on its own motion or on the application by a party, at any stage of the proceeding:

(i) order that the review be dismissed for want of prosecution; or

(ii) fix a time pre-emptorarily for the doing of the act and order that upon non-compliance, the review should stand dismissed for want of prosecution; or

(iii) may make such other orders as it deems just.

4. The power to dismiss is a discretionary one which may be exercised if the court is satisfied that "an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his application with due diligence." In other words, for the court to exercise this discretionary power, the First Respondent, who is supported by the Second Respondent, must show that:

(a) the Applicant has not done an act required to be done by or under the rules; or

(b) the Applicant has not prosecuted his application for review with due diligence.

5. The power is similar to that exercised in respect of ordinary litigation where it has to be shown that a party (usually the plaintiff) "has been guilty of prolonged and inexcusable delay" which would occasion prejudice to the defendant or otherwise prevent a fair trial being had between the parties.

6. The grounds for the application therefore are threefold. In a nutshell, it is first submitted that the intent of the Rules is that reviews must be heard expeditiously and the time frame within which a review must be dealt with is three months. In this case, the review has been pending for nineteen months. It is secondly argued that the delay is intentional, unbecoming and unwarranted. The applicant merely wants to delay the proceeding to avoid a by-election. Evidence of deliberate delay was adduced to support this ground. It is further submitted that the delay is continuous. The Electoral Commission’s application to be joined as a party remains pending. Objection to competency of the review is also awaiting hearing and determination. The date of the Pre-Hearing Conference has not been obtained. The substantive review also needs to be heard and determined. And, with the next National Elections due in mid 2007, by the time these matters are heard and finalized, a by-election may not be viable.

7. The Second Respondent supports the application to dismiss the review. It is submitted that the Applicant has not provided any evidence of the steps he has taken to prosecute the review. It is also submitted that the Applicant has not demonstrated an intention to act expeditiously and to ensure that this review is in order.

8. The application is not unopposed. The Applicant does not deny that the review has been pending for sometime but blames the delay on the First Respondent. It is submitted that the First Respondent has consistently objected to certain documents and wanted certain documents to be included in the Review Book but has failed to cooperate when requested to furnish those documents to the Applicant. In any case, it later became apparent that one of the documents the First Respondent wanted to be included in the Review Book does not exist. And when the Review Book was eventually ready, the Respondents have also been uncooperative in its certification.

9. The Applicant, prompted by that lack of cooperation, filed an application on 15 June 2005 before the Supreme Court and on 14 July 2005 obtained, among others, the following orders:

(a) That the First Respondent’s lawyers endorse and certify the certificate of correctness in relation to the Supreme Court Review Book in these proceedings within seven days from the date of service of the Review Book.

(b) That the Second Respondent’s lawyers endorse and certify the certificate of correctness in relation to the Supreme Court Review Book in these proceeding within seven days from the date of service of the Review Book.

(c) That upon fulfilment of Orders 1 and 2 above the matter be placed in the Supreme Court call-over list for allocation of a trial date.

(d) In the event that the Respondents do not comply with Orders 1 and 2 above, the Applicant is at liberty to file the Review Book as compiled.

10. A number of factual issues and interesting legal arguments have been raised and we would ordinarily like to deal with all of them. However, in our view, the orders we have just referred to significantly impact upon this application in a number of ways.

11. First, the orders of 14 July 2005 are orders of the Supreme Court and they are binding on the parties in this application. The orders have not been challenged in any manner by the Respondents and they remain effective as we speak. The fact of them being obtained ex parte does not render the orders inferior or ineffective. They remain orders of the Supreme Court and have the same force and effect as all other orders of the Supreme Court.

12. Secondly, the terms of the orders clearly demonstrate that the Supreme Court has entertained the issue of delay in the prosecution of the review. The appropriate notice of motion was supported by the affidavit of Joseph Koi filed on 15 June 2005. In that affidavit, the deponent devoted thirty-eight (38) paragraphs and twenty (20) annexures towards explaining the delay. The court must have been satisfied with the Applicant’s explanations before it granted the orders in question.

13. Thirdly, if the Respondents are aggrieved by the outcome of the ex parte orders, they should have specifically challenged the orders. They are entitled to have their explanations heard too. They have, however, not challenged the ex parte orders, which means that those orders, also of this court, which addresses the issue of delay of prosecution, are still effective. With respect, it is mischievous, therefore, for the Respondents, without challenging those orders, to raise the issue of delay in a completely new application. In so doing, the Applicant has been forced to explain himself twice.

14. Furthermore, the Respondents have applied for dismissal of the review, but under Rule 23, the court may make such other orders as it deems just. Thus, if we refuse to dismiss the review, we could make the very same orders the court has already made. But if the review is dismissed, it would be inconsistent with the orders already put in place by this court. This court should not contradict itself. This court, about six weeks ago, was satisfied with the Applicant’s explanations of the delay and has made certain orders which, if complied with, will expedite the review. While those orders remain current, the court should not be drawn, as in this application, into making a contradictory finding that the Applicant does not have a satisfactory explanation for the delay. This court is not a court of confusion. It is a court of order and should administer justice in an orderly fashion.

15. Moreover, we note that there is an objection to the competency of the review. Having decided against challenging the ex parte orders, we are at a loss to understand the wisdom of pursuing this application and not the objection to competency of review, which remains pending and was highlighted by the Respondents as a potential cause for further delays.

16. Finally, we appreciate that this case has been delayed for sometime and the people of Wapenamanda have not had a representative for the last nineteen months. The Respondents seek to dismiss the review so that the people of Wapenamanda can have a representative through a by-election. But a representative for the people of Wapenamanda could also be determined through an expedited hearing of the review as directed by the ex parte orders. If the Applicant is successful in the review, he regains his seat and will serve the remainder of his term of office.

For the foregoing reasons, we reject the Respondent’s contention that the Applicant has not prosecuted the review with due diligence; and we adopt the ex parte orders of 14 July 2005. The application is therefore dismissed with costs, which, if not agreed, should be brought back to this court for determination.

Orders accordingly.

______________________________

Lawyer for the Applicant
Lawyer for the First Respondent
Lawyer for the Second Respondent