SC1029

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 51 OF 2008

APPLICATION UNDER S 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:

KILA RALAI & THE ELECTORAL COMMISSION 
OF PAPUA NEW GUINEA
Applicants

And:

PETER YAMA
Respondent

Waigani: Injia, DCJ
2008: 5th & 10th November

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Decision of National Court on costs in an election petition - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Whether proposed ground of review raise important point of law which have merit - Exercise of discretion – Leave refused.

Cases cited: 

Erie Ovako Jurvie v Bony Oveyara & Another (2008) SC935

Counsel: 

R William, for the Applicant
Respondent, in person

10th November, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court made on 11th September 2008 at Madang, in which the trial judge ordered each party to pay for their own costs of the proceedings. The order was made as part of the Court’s decision to uphold 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) ). The application is contested by the respondent. Service of the application is not an issue.

2. The applicant seeks to challenge the judge’s decision on costs on a point of law only. Therefore the applicant is required to demonstrate that the points of law raised in the proposed grounds of review pleaded in the application for leave raises important points of law which is not without merit. He must also demonstrate that the grounds of review raise a serious issue of law and that it is likely to succeed at the substantive hearing if leave were granted: Jurvie v Oveyara (2008) SC 935.

3. Briefly, by way of background the respondent filed an election petition (which was later replaced by an amended petition) disputing the applicant’s election as member for the Madang Provincial Electorate in the National Parliament. Ground 1 raised illegal practice, Ground 2 raised undue influence and illegal practice (defamation under s 201 of the Organic Law), Ground 3 & 4 raised undue influence, Grounds 5 & 6 raised bribery and 7 & 8 raised errors and omissions on the part of the applicants. Grounds 1, 2 3, 4, 7 & 8 were tried. Of those grounds tried, parties called evidence and made submissions. The Applicants sought costs in the event that the allegations against them were dismissed. On 11th September 2008, the judge delivered an oral summary of his decision which was to be published within a week. The judge upheld grounds 1, 2, 3 & 4 and dismissed grounds 7 and 8. The judge then declared the election of the applicant void and ordered a by-election. The trial judge ordered that each party to bear their own costs of the proceedings. The judge gave no reasons for decision as to how and why he exercised his discretion on costs in the way he did. To date the full judgment is yet to be delivered or published. 

4. The pertinent parts of the formal orders issued states as follows:

"1. The petition succeeds on Grounds 1, 2, 3 and 4.

2. The petition fails on the remaining allegations tried under Grounds 7 and 8.

3…

4….

5. All parties pay their own costs of the petition hearing, inclusive of costs of the competency hearing.

6. The deposit for the petition be refunded to the petitioner forthwith."

5. There is also no question that the applicants were proper parties in the petition pursuant to s 211 of the Organic Law. The applicants are aggrieved by orders No. 5 and 6 above. There is no question that these orders are part of the final decision on the petition and therefore meet the requirement of rule 1 of the Petition Review Rules.

6. In this review, the only proposed ground of review set out in the application for leave states:

"The National Court, after dismissing all allegations made against the Applicants, erred in the exercise of its discretion, in not awarding the Applicants’ their costs of the entire proceedings to be paid by the Respondent".

7. In the application for leave, the applicants give the reasons why leave should be granted as follows:

"The exercise of discretion by the National Court not to grant costs to the Applicants when all allegations against the Applicants in the petition (sic) therefore successful raises serious issues on costs, a matter on which a Constitutional Law (the Organic Law on National and Local-Level Government Elections) specifically mandates provision for security for costs made."

8. The Court’s power to award costs in a petition is given by s 212 (1) (j) of the Organic Law. This is a general power. This provision must be read together with the Court’s specific power to award costs as against an unsuccessful party given by s 223 of the Organic Law which states:

"223. Costs
The National Court may award costs against an unsuccessful party."

9. Section 209 provides for deposit on security for costs in the sum of K5,000. The payment of the deposit at the end of the proceedings on the petition is provided for in s 224 of the Organic Law, as follows:

"224. Deposit applicable for costs.
If costs are awarded to a party against the petitioner, the deposit lodges under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner."

10. Section 225 provides for other costs awarded by the Court as follows:

"225. Other costs.
 All other costs awarded by the National Court, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgement of the National Court, and the order, certified by the Court, may be entered as a judgement of the National Court and enforced accordingly."

11. I accept Mr Willliam’s submission that elaborates on provisions in the Organic Law on costs which signifies the importance of costs in petition proceedings. Section 223 is the guiding provision on how the discretion on costs is to be exercised at the conclusion of the petition proceedings. It is primarily determined by the success or failure of a party in the petition. The unsuccessful party pays successful party’s costs. The word "may" in s 223 confers a judicial discretion which like any other judicial discretion conferred by constitutional law must be exercised on proper principles and on proper grounds. 

12. In the present case, the petitioner was successful in the one petition he had brought against the respondents. The trial judge ordered each party to pay their own costs which in effect means he refused to award costs against the two respondents in favour of the petitioner. The order is consistent with the exercise of discretion given by s 223. Should the Court have awarded costs against the petitioner in favour of the applicants who had successful in relation to allegations against them? The trial judge did not give any reasons as to why he exercised his discretion under s 223 differently, by not awarding costs against the petitioner who was unsuccessful insofar as allegations relating to the applicants were concerned. The applicants no doubt have incurred considerable legal costs in successfully defending the allegations against them. I accept Mr William’s submission that a good part of the court time was spent on dealing with allegations against them.

13. On the face of the orders, the orders do not smack of injustice. Ideally, going by the wording of s 223, the petitioner’s costs would have been met by Sir Arnold Amet who was unsuccessful in the petition and the applicants’ costs would have been met by the petitioner. But the trial judge decided that each party should bear their own costs. The applicants are public authorities charged by the Organic Law to run the election and this includes defending petitions brought against and it is funded by the government to carry out those tasks. It should meet its own costs of the proceedings. I am satisfied that whilst the applicant’s have a genuine grievance over the manner in which the discretion was exercised without giving any reasons for decision, I am not satisfied that the judge can be said to have grossly erred in the exercise of discretion such that serious issues of law having merit in the exercise of discretion on costs is raised. I am satisfied the judge was entitled to refuse to award costs against the petitioner who had succeeded in proving its petition and won on the petition. 

14. For these reasons I refuse leave to apply for leave. I make an order as to costs because I do not think the applicants should be penalized with costs any more than the costs it has been ordered to meet for itself.

__________________________________________
Nonggorr & Associates: Lawyer for the Applicants
Respondent in person