Atiyafa v Trawen [2008] PGSC 58; SC1323 (3 October 2008)

SC1323

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 36 0F 2008

IN THE MATTER OF AN APPLICATION BY ROBERT ATIYAFA
Applicant

ANDREW TRAWEN, ELECTORAL COMMISSIONER
First Respondent

JIMMY ALWYN,
EASTERN HIGHLANDS PROVINCIAL ELECTION MANAGER
Second Respondent

ELECTORAL COMMISSION
Third Respondent

Waigani: Gavara-Nanu J, Cannings J, Hartshorn J
2008: 1, 3 October

ELECTIONS – petitions – application for leave to apply for review of the decision of the National Court to dismiss an election petition – application for extension of time to apply for leave

The National Court dismissed an election petition. The petitioner wanted to apply for leave to apply for review of the National Court's decision but did not apply for leave within the time required by Rule 7 of the Supreme Court Election Petition Review Rules, which states:

The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time as extended by the Court, upon application made within that 14 days period.

The petitioner applied for an extension of time to apply for leave.

Held:

(1) The application for an extension of time was not made within the 14-day period set by Rule 7, and no good reason was given to dispense with the requirements of Rule 7, so the Court had no jurisdiction to consider the application.

(2) Furthermore, the issue of whether an extension of time should be granted is res judicata, given that a single Judge of the Supreme Court already refused the same application, and that decision is, under Rule 10, final and not subject to further review.

(3) Even if the Supreme Court had jurisdiction to consider the application for an extension of time, no good reasons have been advanced by the applicant and there has been an inordinate delay in making the application, so the application for an extension of time would have been refused on its merits.

(4) The application for an extension of time was accordingly refused.

Case cited

The following case is cited in the judgment:

Michael Laimo v Andrew Trawen and Others, SCR No 6 of 2008, 22.08.08

APPLICATION

This was an application for an extension of time to apply for leave for review of the decision of the National Court to dismiss an election petition.

Counsel

G Emilio, for the applicant
A Kongri, for the Respondents

3rd October, 2008

1. BY THE COURT: This is a ruling on an application for an extension of time to apply for leave to review the decision of the National Court to dismiss an election petition. The applicant, Mr Robert Atiyafa, was the runner-up in the 2007 general election for the seat of Henganofi Open. He filed a petition disputing the election of Mr Ferao Orimiyo. The petition was summarily dismissed by Sevua J in the National Court on 15 October 2007.

2. Mr Atiyafa is aggrieved by the decision of the National Court and wants to have it reviewed by the Supreme Court. Under the Supreme Court Election Petition Review Rules, he needs the leave of the Supreme Court to apply for review. Rules 1 to 10 set out the requirements for obtaining leave. The application for leave must be made before a single Judge of the Supreme Court (Rule 9) whose decision "is final and shall not be subject to further review" (Rule 10). The application for leave must also be made within the time limit set by Rule 7, which states:

The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time as extended by the Court, upon application made within that 14 days period.

3. Mr Atiyafa filed an application for leave for an extension of time on 31 March 2008. It was heard and determined by Kapi CJ, sitting as a single Judge of the Supreme Court, on 4 April 2008. His Honour dismissed the application, as it was not made within the 14-day period, which expired on 29 October 2007.

4. On 16 July 2008, Mr Atiyafa filed another application, again seeking an extension of time, which is the application we now have to determine. The primary issue is whether we should grant an extension of time.

THE ARGUMENT FOR GRANTING AN EXTENSION OF TIME

5. Mr Atiyafa's counsel, Mr Emilio, argues that there are good reasons for granting an extension of time. In particular:

• Mr Atiyafa and the lawyers who ran his election petition, Gendua & Associates, are based in Goroka, and were unable to attend the National Court in Waigani on the day that the petition was dismissed due to Mr Atiyafa being sick.
  
• Mr Atiyafa did not obtain a copy of the National Court order dismissing his petition until March 2008.
  
• The transcript of the National Court proceedings was not made available until March 2008, despite a request being made for a transcript immediately after the National Court's decision of 15 October 2007.
  
• The amendments to the Supreme Court Election Petition Review Rules, which contain the requirements for obtaining leave to apply for review of National Court decisions, were not circulated until late November 2007, thus making it difficult for lawyers to know the details of all the requirements.
  
• The hearing of this application is uncharted territory, as the rules are so new, and therefore the applicant, Mr Atiyafa, should be shown some leeway.
  
• Although Kapi CJ dismissed the first application for an extension of time, his Honour suggested that the application could be made to the full court of the Supreme Court.
  

SHOULD AN EXTENSION OF TIME BE GRANTED?

6. We have carefully considered the application for an extension of time and decided that it should be refused, for two reasons. First, the application has been made too late. Rule 7 is quite clear: an application for extension of time must be made within 14 days after the National Court's decision. The application must be filed and made (ie argued) within 14 days (Michael Laimo v Andrew Trawen and Others, SCR No 6 of 2008, 22.08.08, per Kapi CJ). The 14-day period expired on 29 October 2007. The present application was made on 1 October 2008, so it has been made more than 11 months late. It is possible for the court to dispense with the 14-day time limit, under Rule 32 of the Supreme Court Election Petition Review Rules, which states:

The Court may dispense with compliance with any of the requirements of the Rules, whether before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.

7. However, Mr Atiyafa did not ask the court to dispense with compliance with Rule 7 and, though we have the power on our own initiative to dispense with compliance with the Rules, we are not inclined to do so in this case. Even if we accept the arguments advanced by Mr Emilio at face value none of them provide a good reason to dispense with the requirements of Rule 7. Mr Atiyafa and his lawyers were given notice of the National Court proceedings of 15 October 2007 and could have easily found out the result of those proceedings. There was ample opportunity to make an application for an extension of time by 29 October 2007. They could have simply argued 'we need time to get a transcript so we can appreciate the Court's reasons and frame an application for leave'. Instead they did nothing until five months later. This is an incredible delay.

8. The purpose of Rule 7 is to ensure that parties who are aggrieved by a decision of the National Court on an election petition take quick action to seek review. This reduces the period of uncertainty about the result of an election and an election petition. This purpose will be defeated if the Court too freely dispenses with the requirements of the Rules.

9. As we are not dispensing with compliance with the requirements of Rule 7, and the application for extension of time has been too late, we have no jurisdiction to grant an extension of time. The application for an extension must therefore be dismissed.

10. The second reason we must dismiss the application is that it is res judicata, given that Kapi CJ, sitting as a single Judge of the Supreme Court, already refused the same application, on 4 April 2008. That decision is, under Rule 10, final and not subject to further review.

11. We add that even if we had decided that we had jurisdiction to consider the application for an extension of time no good reasons have been advanced by the applicant for getting more time. Most of the arguments advanced by Mr Emilio lack a factual basis. The affidavits supporting the application did not address many of the arguments. We emphasise again that the delay in making this application is inordinate.

ORDER

1. The application is refused.
   
2. The applicant shall pay the respondents' costs on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.

______________________________________________________
Emilio & Associates: Lawyers for the Applicant
Nonggorr & Associates: Lawyers for the Respondents