Yawari v Agiru [2008] PGSC 23; SC939 (15 September 2008)

SC939

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 24 OF 2008

Application under S 155 (2)(b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local-
Level Government Elections

BETWEEN:

HAMI YAWARI
Applicant

AND:

ANDERSON AGIRU
First Respondent

AND:

DAVID WAKIAS
Second Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, DCJ
2008: 15th September

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Dismissal of election petition for failing to serve Petition within time - Leave for review - Exercise of discretion- National Court Election Petition Rules 2002 as amended, rr 6, 7 & 18; Supreme Court Election Petition Review Rules (as amended), Div.1 r 1.

Counsel:
P Ame, for the Applicant
C Copland, for the First Respondent
R William, for the Second and Third Respondents

15 September, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "Petition Review Rules) ). It is contested by the respondents.

2. The application relates to a decision made by the National Court sitting at Waigani in which the judge upheld submissions by the respondents to dismiss petition on the ground that the petition was not served on the Second Respondent in accordance with rr 6 & 7 of the National Court Election Petition Rules 2002 as amended (Petition Rules). Rule 18 of the Petition Rules empowers the National Court to dismiss a Petition where the Petitioner fails to comply with a requirement of the Petition Rules or an order of the Court.

3. Submissions, both written and oral, were made by counsel last week and I reserved my ruling to today. It is not necessary to recapitulate those submissions in my ruling. My response to the submissions is embodied in my reasons for decision which I now give.

4. The principles on grant of leave for judicial review under Div. 1 rr 1-14 of the Petition Review Rules are set out in my decision in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935, in the following terms:

"When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1. Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE: Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC 915.
   
2. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC 572.
   
3. The three criteria set out for grant of leave in Aviha Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.
   
4. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -
   

First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patric Shulze (1998) SC 572.

. Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patric Shulze (1998) SC

572 Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases.

11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties."

5. The purpose of leave is to screen the relief and grounds relied upon to claim relief, to be sought in the substantive review if leave were granted. This process is necessary to ensure that grounds which have clear legal merit proceed to review. In the present case, there are 23 proposed grounds of review contained in the application for leave which challenge the manner in which the judge conducted a hearing on the issue before him and arrived at his decision. I agree with Ms Copland of counsel for the First Respondent that a number of these grounds lack completeness, are repetitious, raise matters which were not raised in the Court below, lack supporting material or raise legal and factual issues which are unimportant and of little or no significance to the grounds on which the judge exercised his discretion to dismiss the petition. The grounds which fall under this category are grounds 6, 7, 8, 9, 11, 18, 19, and 21. I accept Ms Copland’s submissions, which are supported by Mr William of counsel for the First and Third Respondents, on these grounds and refuse leave in respect of these grounds.

6. The remaining grounds are 1, 2, 3, 4, 5, 6, 10, 12, 13, 14, 15, 16, 17, 20, 22 & 23. These grounds relate to the manner in which the judge revisited and varied his decision of 11th October 2007, then conducted a mini- evidentiary hearing to determine the issue of service and reached a decision to dismiss the Petition.

7. The background to these grounds are that on 5th August 2007, the First Respondent was declared the duly elected provincial member for Southern Highlands Province. The First Respondent is the Returning Officer who made the declaration. He is an official of the Third Respondent. The applicant had 40 days to file a petition disputing the election. He filed one on 6th September 2007 and served the same on the First and Third Respondents on 19th and 13th September 2007 respectively. On 14th September, 2007 he filed an Amended Petition. No issue arose in the Court below and no question arises before this Court as to service of the Petition or amended petition and other documents on the First and Third Respondents.

8. The question arose before the Court below as to whether the Second Respondent was duly served the Petition and Amended Petition and other documents within time. The issue was introduced by the respondents by way of submissions. No formal application was made by the respondents. The judge made two separate decisions at different times - decisions on the issue which are the subject of the present application. On 11th October 2007, the judge declined the respondents’ "application" to dismiss the Petition. On 27th May 2008, after a evidentiary hearing, the judge reviewed his decision of 11th May 2007 and dismissed the Petition.

9. Following conduct of a number of directions hearing, on 11th October 2007 the judge declined to uphold "an application " by the respondents to dismiss the petition for failing to serve the Petition and other documents on the second respondent. Subsequently, further directions hearing were conducted in which the issue of service was addressed. In the subsequent proceedings, the judge accepted that he had made an error on his ruling on 11th October in two respects – (1) that he declined the respondents’ application. There was no such application made. It was a submission of counsel for the respondents which he had rejected; and (2) he had erred in relying on an affidavit of service of one Robin Tuna sworn on 10th October filed by the Petitioner on the strength of which he had rejected the submission. In that affidavit, Mr Tuna had deposed that he served the petition, the amended petition and other related documents on the second respondent on 26th September 2007 at the Poroman Hotel, Mt Hagen. The judge said he ought to have given the respondents opportunity to be heard on that affidavit.

10. On 18th October 2007, Mr David Wakias filed an affidavit deposing that he was not served the documents on 26th September 2007. It was on 10th October 2007 that he was given a "Proof of Service Details" document at Poroman Hotel in Mt Hagen by Mr Tuna and without reading the document, he signed it. He said he was tricked by Mr Tuna.

11. The judge required Robin Tuna to be produced in Court to be examined on his affidavit, which was done and received his evidence. Other witnesses who filed affidavits in support of the Petitioner were Jack Wesil, Morea Garea and George Yauwe and they were cross-examined on their affidavits. The judge assessed and evaluated their evidence and rejected their evidence. The Second Respondent was not examined on his affidavit. The judge also accepted the affidavit of one Isaac Kelly which supported the second respondent’s affidavit. None of the parties relied on Isaac Kelly’s affidavit and he was not cross –examined on his affidavit. The trial judge did not require David Wakias to attend the proceedings as a party to be examined on his affidavit or require the other respondents to produce him for cross-examination. The judge accepted the affidavit of the second respondent and found that he was not served with a sealed copy of the petition and other documents.

12. A number of important points of law have been raised. I state them in question form as follows:-

(a) Whether it was open for the judge to dismiss the petition when there was no formal application before him from the respondents. There was no formal application for dismissal by the respondents which would have given him jurisdiction to dismiss the application, particularly when the issue of service was bitterly contested by the parties.

(b) Whether it was open to the judge to revisit his first decision, correct it and then conduct a fresh hearing involving calling for and consideration of evidence. The Supreme Court decision in Dick Mune v Paul Poto [1997] PNGLR 356 relied upon as authority by the judge needs to be reviewed, in the light of the peculiar circumstances of this case.

(c) Whether the discretion to dismiss the Petition on the basis of lack of service on the Second Respondent was grossly erroneous when service of the First Respondent and the Third Respondent were not in issue. The Second Respondent was a servant of the Third Respondent.

(d) Whether the judge’s exercise of discretion was prejudiced by his adverse view of the credibility of the applicant and his counsel and professional standing of counsel. The trial judge repeatedly made adverse finding on the conduct of the petitioner and his counsel during the directions hearing. The Judge described their conduct throughout the proceedings as "purposely misleading the Court as to the status of those matters" (par 11 of judgment on 27th May 2008, "misleading the Court and to a certain degree, dishonest" (par 16 of judgment of 27th May 2008). In Court I was told by Mr Ame that the judge made indignant comments about his professional standing such as "you should go back to law school". Such comment and perhaps more may appear on the transcript of proceedings when it is produced before the Supreme Court conducting the substantive review. The issue of impartially is fairly raised as a serious issue in ground 23 and it is a serious issue of merit. The appearance of impartiality is fundamental to a fair hearing and it is relevant to the exercise of judicial discretion. A finding that the judge was biased against a party may vitiate the entire proceedings and render the hearing and decision arrived at a nullity.

13. I am satisfied that the points of law raised are not without merit, that they raise serious issues on points of law to be determined and are likely to succeed on review.

14. There are a number of findings of facts on service of the Petition and other documents which demonstrate gross error.

(a) The judge’s finding that the Second Respondent was not served with the Petition was made partly on the untested affidavit of the Second Respondent. The Second Respondent was a party named in the Petition and he should have made himself available to be examined on his affidavit. If that did not eventuate, the Court should have required his attendance as it did with Robin Tuna. Still the Court could have required the other respondents to produce him for cross examination.

(b) None of the parties relied on the affidavit of Isaac Kelly at the hearing. His affidavit was untested. The judge accepted his evidence as supporting the Second Respondent’s untested affidavit evidence.

15. Whether a finding of fact that the Second Respondent was not served with the Petition and other documents can safely be made on the tested affidavit and oral evidence of the party claiming the Petition was served as against untested purely affidavit evidence of the party claiming service was not duly effected, shows gross error on the face of the evidence and raises serious issues of fact.

16. For these reasons, I grant leave for review in respect of the ground of leave Nos. 1, 2, 3, 4, 5, 6, 10, 12, 13, 14, 15, 16, 17, 20, 22 & 23. Costs shall be in the cause of the substantive application for review. I further direct that the applicant take the steps necessary to file and serve the substantive application and prepare the review for hearing, in accordance with the provisions of the Review Rules.

Ame Lawyers: Lawyer for the Applicant
Young & Williams: Lawyer for the First Respondent
Nonggorr & Associates: Lawyer for the Second and Third Respondents