Yawari v Agiru [2008] PGSC 31; SC948 (6 November 2008)

SC948

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 24 OF 2008

APPLICATION UNDER SECTION 155(2)(b)
OF THE CONSTITUTION

AND

IN THE MATTER OF 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: Sakora, Cannings, Hartshorn JJ
2008: 31st October
: 6th November

SUPREME COURT - CIVIL - Election Petition Review Rules – Rules 22, 26, 30, 32 - no application filed for dispensation of requirements of Rules - breach of 2 mandatory Rules and Court Order - consideration is the application of Rule 5/10/30 discussed

Cases cited:
Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110
Daniel Don Kapi v. Samuel Abal (2005) N2856
Miki Kaeok v. Rimbink Pato (2005) SC877
Wari James Vele v. Powes Parkop (2008) SCR 51/07 delivered 30/10/07

Counsel:
Mr. F. Alua, for the Applicant
Mr. G. Sheppard, for the First Respondent
Mr. A. Kongri, for the Second and Third Respondents

6th November, 2008

1. BY THE COURT: Mr. Anderson Agiru was the successful candidate in the 2007 National Elections for the Southern Highlands Provincial Electorate. Mr. Hami Yawari, an unsuccessful candidate, brought an Election Petition disputing the result. This Election Petition was dismissed by the National Court. Mr. Yawari was granted leave by the Supreme Court to judicially review the decision of the National Court and the review proceeding has been filed.

2. Mr. Agiru applies to this court to dismiss Mr. Yawari’s review proceeding on the grounds that Mr. Yawari has not prosecuted his review proceeding with due diligence and has failed to comply with orders of this court of 20th October 2008 which extended the time for Mr. Yawari to compile and serve the Review Book to 23rd October 2008.

3. The Deputy Chief Justice has ordered that the review proceeding be set down for summary determination as the pre-hearing conference listed to be heard on 28th October 2008 did not occur.

4. The summary determination and dismissal application are now before this court for our consideration.

5. The Electoral Commission and its officer Mr. Wakias (the second respondent), support the dismissal application. Mr. Yawari opposes the dismissal application on the basis that the default in not complying with the order of the court of 20th October in compiling and serving the Review Book was caused by the actions of one of Mr. Agiru’s lawyers, and the failure of the court reporting service to provide transcripts in time. In addition, the actions of Mr. Yawari’s former lawyer in ceasing to act, had caused delay.

6. It is not in dispute that:

a) the Review Book was not compiled and served in the time permitted under the court order of 20th October 2008 and the Supreme Court Election Petition Review Rules (Rules)

b) no further application for a dispensation of the requirements of the Rules concerning the time by which the Review Book is to be compiled and served has been made by Mr. Yawari.

c) no pre-hearing conference has occurred within the time permitted in the Rules.

d) no application for a dispensation of the requirements of the Rules concerning the time by which the pre-hearing conference is to occur has been made by Mr.Yawari.

Issue

7. The issue for determination is, does the failure by Mr. Yawari to comply with:

a) the Rules concerning the Review Book and pre-hearing conference, and

b) the court order of 20 October 2008,

warrant that the review proceeding be dismissed?

8. The Rules were made by the Judges pursuant to s.184 Constitution and form part of the Supreme Court Rules. Order 5 Division 4 Sub-Division 10 Rule 30 (Rule 30), pursuant to which Mr. Agiru applies to dismiss the review proceeding is:

Where a party has not done any act required to be done by or under these rules or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court, the Court may on its own motion or on application by a party, at any stage of the proceeding:-

(a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant;....

9. When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. In addition, the time limits between the various stages are short. This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament.

10. As the time limits to be adhered to are short, the Rules recognize that it will be necessary to dispense with their strict requirement when circumstances arise. Thus, Rule 32 allows for the court to dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance occurs. Dispensation from having to comply with a particular Rule however, must be obtained.

11. This view is reflected in the National Court decision of Daniel Don Kapi v. Samuel Abal (2005) N2856. At page 2, Sevua J. held the following:

1. Because election petitions are serious matters and not ordinary civil causes of action, parties, especially a petitioner, bear a heavy responsibility in ensuring that the further conduct of his petition through compliance with or directions issued by the Court is vital to his challenge.

2. Where a petitioner fails to comply with the orders or directions issued by the Court, his petition will be dismissed.

3. Where a petitioner is directed to comply with any order or direction of the court in the further conduct of his petition, and the time given him expires, he must promptly come to court to either seek an extension of time or ask further directions in regard to compliance. Such application must be filed and made within the time given to him to file and serve his affidavits or to take any other action.

12. Also at page 11 Sevua J said:

The Court must also reiterate that where parties to an election petition are unable to comply with directions because of the time limit, they must come back to Court to seek further directions or make an application for the further conduct of the petition so that the petitions are ready for hearing without unnecessary delay. That must be done within the time limit given to the Petitioner. The interest of the voters is paramount here and a Petitioner in particular, bears a heavy responsibility in ensuring that his petition, which is in fact, a challenge to the expressed wishes of the majority, is brought on expeditiously to hearing. As the Supreme Court said in Benias Peri v. Herowa Agiwa & Electoral Commission (1998) unreported and unnumbered (SCR 13 of 1998) at pa. 2:

"It has been expressed countless times that election petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on the speedy disposition of election petitions so that the wishes of the majority expressed in the election returns are respected."

13. Although these comments are concerned with the swift disposition of Election Petitions, they apply with equal force to the next stage in the election petition process, a Supreme Court Election Petition Review.

14. In the recent Supreme Court case of Wari James Vele v. Powes Parkop (2008) SCR 51/07 delivered 30/10/07 (Davani, Lay, Hartshorn JJ), counsel for the applicant made an oral application for relief under Rule 32 which was refused. The Court said:

Mr. Vele cannot at this late juncture have the discretion of the Court exercised in his favour when he has not filed an application seeking it.

15. In this instance, no application has been made by Mr. Yawari to further extend the time by which he is to comply with the Rules relating to the Review Book or to extend time by which a pre-hearing conference is to be held. As the review proceeding stands at present, it is in breach of the Rules in 2 respects and there is no application on foot to dispense with the requirements of those Rules.

16. The Supreme Court in Miki Kaeok v. Rimbink Pato (2005) SC877 (Sakora, Lenalia, Manuhu JJ) at para 4 stated the requirements to dismiss proceedings for non-compliance under the Rules:

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.

17. In this instance, there is no dispute that Mr. Yawari has not complied with Rule 22 which requires that he compile and serve the Review Book within 14 days after the Directions Hearing which was actually 17 days, given the 3 day extension granted by the court on 20th October.

18. Mr. Yawari submits that he could not comply because of other persons actions. Even if his non-compliance was a result of other persons actions, the fact remains that no application was made under Rule 32, either before 23rd October, or since, for dispensation with the requirements of Rule 22. If Mr. Yawari attributes the reason for there being no application made under Rule 32 to his former lawyers (or his present lawyers as no such application has been filed to date) this is not in our view a satisfactory reason. It has been held on numerous occasions in this jurisdiction that the failure of a person's lawyer is not a good reason for the granting of an extension of time: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110.

19. As to not proceeding with the pre-hearing conference on 28th October and not applying for dispensation under Rule 32 of the requirements of Rule 26 concerning pre-hearing conferences, no submissions have been made at all to this court on behalf of Mr. Yawari.

20. As stated, it is not disputed that Mr. Yawari has not complied with 2 mandatory Rules. The first limb of Rule 30 is therefore satisfied. The continuing breach of those Rules, together with the failure to apply for the dispensation of the requirements of those Rules under Rule 32 satisfies the second limb of Rule 30 as it constitutes not prosecuting the review proceeding with due diligence.

21. Consequently, for the above reasons the relief sought in Mr. Agiru’s notice of motion is granted. Supreme Court Review No. 24 of 2008 is dismissed. Costs of the proceedings are to be paid by the Applicant to the Respondents and the Applicant’s security deposit is to be paid to the First and Third Respondents.

Harricknen Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Nonggorr & Associates Lawyers: Lawyers for the Second and Third Respondent