Simon v Kapris [2012] PGSC 37; SC1206 (5 October 2012)

SC1206

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRev 27 OF 2012

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:

HON JOHN SIMON, MP
Applicant

AND:

GABRIEL LENNY KAPRIS
First Respondent

AND:

GODFREY SOKOMIA THE RETURNING OFFICER FOR MAPRIK OPEN ELECTORATE
Second Respondent

AND:

ANDREW TRAWEN, THE CHIEF ELECTORAL COMMISSIONER
Third Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika, DCJ
2012: 01, 02 & 05 October

SUPREME COURT – Application for judicial review of a decision by the National Court – 'Decision' means a final decision - no meritorious point of law – no misapplication of facts.

Cases Cited:

Application by Herman Leahy (2006) SC855
Application by Ludwig Shultze (1998) SC572

Counsel

Mr F Waleilia, for the Applicant
Mr Greg Manda, for the First Respondent
Mr D Siminji, for the Second & Third Respondent

05th October, 2012

DECISION

1. SALIKA DCJ: This is an application by John Simon for leave for judicial review of the decision of Makail, J sitting as a National Court Judge on 13 September, 2012 in EP No 7 of 2012.
   
2. In that decision Makail J ruled that the applicant John Simon was served with the Election Petition filed in the National Court proceedings on 16 August 2012.
   
3. The applicant also seeks leave for judicial review of a subsequent decision of Makail J given on 19 September 2012, where his Honour refused the applicant's application to set aside an earlier National Court decision made ex parte, the applicant, on 13 September, 2012.
   
4. In an application for leave for judicial review of a National Court decision of Election Petitions and Election Petition related matters the applicant must satisfy the court that:
   
   • (a) He has a meritorious point of law that is arguable; and that;
   • (b) The application involves a point of fact that there was gross error on the face of the evidence or that the finding of fact was so outrageous or so absurd so as to result in injustice being occasioned.
     
5. The only contention in this application for leave is on the issue of whether the Election Petition was served on the applicant.
   
6. The argument sought to be raised at the substantive hearing (if he gets past this stage) is that there was no service of the petition on the applicant.
   
7. The applicant's argument is that the petition was served by persons other than the petitioner. This he says is contrary to the mandatory terms of rule 6 of the Election Petition Rules of 2002.
   
8. Rule 6 says:
   

"Within 14 days of the date of filing of a petition, the petitioner must serve a copy of the petition on the respondents and must at the same time provide:

(a) ....
(b) ....

(emphasis added)

9. In this instance the applicant relies on the words: "the petitioner must serve a copy of the petition on the respondents".
   
10. He argues that the words mean that only the petitioner must serve the petition and not any other person, on the respondents.
    
11. The question that arises is:
    

"is this an important point of law and does it have merit – I refer to case authorities of Re-Application of Herman Leahy SC855 and application of Ludwig Shultz SC572.

12. Service of a document is an important matter of law and in appropriate cases may determine further conduct of or the life of a case.
    
13. In this case, it is not disputed that the petition was served but that it was served by wrong persons thereby contravening Rule 6 of the Election Petition Rules.
    
14. I find it hard to accept that only the petitioner can serve the petition. I do not consider the issue of service raised in this instance as amounting to a serious or a meritorious question of law. In this instance, I do not think it is a serious issue. The most important point is that the petition has reached the respondent and this has compelled the respondent to attend the petition hearings.
    
15. I note from the affidavit on file that the petition was served on a village councilor at the residential address of the Respondent pursuant to Rule 7 (1)(b) of the Election Petition Rules.
    
16. I take it that the trial judge was satisfied with that as service of the petition.
    
17. The Election Petition rules while very strict on some aspects of an Election Petition, is not so strict on service. For example, Rule 7 provides for personal service of a petition on the respondent but it also provides for service by way of serving the documents on persons over 18 years of age at the Respondents residential address.
    
18. The whole idea of service of the petition on the respondent is to compel them to attend the hearing at the appointed date and time. This is a legal process which must be accepted and allowed to be practiced without any hindrance.
    
19. The Respondents including the applicant are now in court. The purpose of service has been served and completed.
    
20. For those reasons leave is refused in so far as the decision of 13 September is concerned.
    
21. In relation to the application for leave to review the decision of the trial judge on 19 September 2012 I say this.
    
22. The petitioner was served on 27 August 2012 at the Respondent's residential address at his Malba village, Maprik, East Sepik. The matter was returnable on 13 September, 2012.
    
23. Some interesting factors I note is that Councillor Elvis of Malba village was under instructions not to accept service of any documents when he received the documents. The applicant ought to have been aware of the return date. He choose not to be present from advise and therefore very important orders were made in his absence about service of the petition. Even if he was present on 13 September at the hearing, would the decision of his honour have been any different given the factual circumstances. I can only speculate.
24. He sought to set aside those same orders on 19 September but his application to set them aside were refused and rejected.
    
25. Again I do not consider that any serious error of fact has been made by the trial judge such that it is outrageous or absurd. See Ludwick Shultz case and Kalit v Pundari SC 569.
    
26. No injustice has been caused or justice has not miscarried.
    
27. The applicant resisted service at the Jacksons Airport. He put the petitioner through enormous expenses and time that they went about doing what was legally correct.
    
28. In this instant case I also refuse leave for judicial review of the decision of the National made on 19 September, 2012.
    
29. The final point to be made in this application is that the Election Petition Rules do not make provisions for judicial review from interlocutory decisions.
    
30. The application in this instance arises from an interlocutory decision. The substantive matter is still there to be argued.
    
31. In my view as the law and the Rules do not provide for such leave application from interlocutory rulings the Court will not allow such application from interlocutory decisions.
    
32. I award costs of this application to the respondent to this application.
    
33. I make no order for costs to the Electoral Commission lawyers.

__________________________________________________________

Posman Kua Aisi Lawyers: Lawyer for the Applicant
Greg Manda Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second and Third Respondent