Maru v Trawen [2012] PGSC 33; SC1200 (29 October 2012)

SC1200

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 36 OF 2012

APPLICATION UNDER SECTION 155(2)(b)
CONSTITUTION AND IN THE MATTER OF
PART XVIII ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT
ELECTIONS

BETWEEN:

RICHARD MARU
Applicant

AND:

ANDREW TRAWEN, Electoral Commissioner,
Electoral Commission of Papua New Guinea
First Respondent

AND:

DAVID TOBENA, the Returning Officer
of Yangoru/Saussia Open Electorate
Second Respondent

AND:

ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Third Respondent

AND:

PETER WARARU WARANAKA
Fourth Respondent

Waigani: Hartshorn, J.
2012: 26th, 29th October

Application for dispensation with requirements of Sub-division Rule 1 Election Petition Review Rules

Facts:

This is an application to dispense with the requirements of Sub-division 1 Rule 1 Election Petition Review Rules and an application for leave to review the decision of the National Court made in an election petition. The National Court decision had dismissed the applicant's notice of motion that had sought amongst others, the dismissal of the election petition.

Held:
A single Judge of the Supreme Court does not have the power to grant dispensation under Sub-division 12 Rule 32 Election Petition Review Rules.

Counsel:

Mr. R. Bradshaw, for the Applicant
Mr. H. Nii, for the First, Second and Third Respondents
Mr. M. Murray, for the Fourth Respondent

29th October, 2012

1. HARTSHORN, J: This is an application to dispense with the requirements of Sub-division 1 Rule 1 Election Petition Review Rules (EPR Rules) and an application for leave to review the decision of the National Court made in an election petition. The National Court decision had dismissed the applicant's notice of motion that had sought amongst others, the dismissal of the election petition.

2. The application for dispensation is made as the decision sought to be reviewed is not a final decision. In Rule 2 EPR Rules "Decision" is defined as:

"means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended)."

3. Sub-division Rule 1 EPR Rules, the requirements of which dispensation is sought, is:

"A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155 (2)(b) of the Constitution."

4. As the applicant has made this application on the basis that the definition of "Decision" in Rule 2 includes "decision" in Sub-division Rule 1, I proceed on the basis that dispensation is required.

5. Sub-division 12 Rule 32 EPR Rules provides for dispensation from the EPR Rules and is:

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

6. Rule 2 EPR Rules defines "Court" as:

"means the Supreme Court as defined under the Constitution and the Supreme Court Act."

and "Judge" as:

"for the purposes of these Rules means a single Judge of the Supreme Court exercising powers as expressly provided for under these Rules."

7. Given that I am sitting as a single Judge of the Supreme Court, and Sub-division 12 Rule 32 provides that "The Court" may dispense with compliance with any of the requirements of the EPR Rules as distinct from a "Judge", I am of the view that I do not have the power to grant the dispensation sought.

8. As this Court is unable to grant the dispensation sought, and as it is accepted by the parties that such dispensation was necessary to enable an application for leave to review a decision that was not final to be made, the relief sought in the applicant's notice of motion is refused.

9. As to costs, the fourth respondent seeks costs on a solicitor and client basis. Given that the reason that this application has failed is not as a result of an argument raised by the fourth respondent, the costs of the respondents of and incidental to this application shall follow the event and be paid by the applicant on a party and party basis.

Orders

10. The orders of this Court are:

a) the relief sought in the notice of motion of the applicant filed 16th October 2012 is refused.

b) the costs of the respondents of and incidental to this application shall be paid by the applicant on a party and party basis.

____________________________________________

Bradshaw Lawyers: Lawyers for the Applicant
Harvey Nii Lawyers: Lawyers for the First Second and Third Respondents
Murray & Company Lawyers: Lawyers for the Fourth Respondent