Kassman v Igaba [2012] PGSC 45; SC1211 (13 December 2012)

SC1211

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 37 OF 2012

In the matter of an Application under s 155 (2) (b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

PHILOMENA KASSMAN
Applicant

And:

KILA IGABA,
Returning Officer for Central Regional
First Respondent

And:

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

And:

KILA HAODA
Third Respondent

Waigani: Injia, CJ
2012: 5th, 10th & 13th December

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court to Dismiss Election Petition Due to Absence of Applicant and Applicant's Lawyer at Directions Hearing – Application for Leave for Review - Whether Important Point of Law or Gross error of Fact Demonstrated to Warrant Grant of Leave - Application Refused - Supreme Court Election Petition Review Rules, r 1, r 4; National Court Election Petition Rules, r 12 (2), r 18.

Cases cited

Biri v Ninkama [1982] PNGLR 342
Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55
Jurvie v Bony Oveyara (2008) SC 935
Maino v Avei & ors [1998] PNGLR 178
Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Maino v Avei & ors [1998] PNGLR 178
Semri v Electoral Commission & ors (2003) SC 723

Counsel

B Lomai, for the applicant
T Dalip, for the first second respondents
H Leahy, for the third respondent

13 December, 2010

1. INJIA, CJ: This is a contested application for leave to apply for review of the decision of the National Court to dismiss 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 (PRR).

Case Background

2. The decision made under r18 of the National Court Election Petition Rules 2002. (EPR) was due to the absence of the applicant and her lawyer at the Directions Hearing fixed for 10th October 2012 to prosecute the petition. Their absence constituted non compliance with the mandatory requirements of EPR r 12 (2).

3. Election Petition Review r 12 (2) is in the following terms:

" Where a party to a petition is represented by a lawyer that party shall attend at the Directions Hearing with his or her lawyer who will be appearing at the trial."

4. Election Petition Rule r 18 is in the following terms:

"Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on application of a party, at any stage of the proceedings:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) Make such orders as it deems just."

Issues on review

5. The application raises five points for determination concerning the trial judge's exercise of discretion, as follows:

(1) The dismissal lacked supporting application by the respondent and assistance on proper principles governing want of prosecution;

(2) The Court misconstrued the principles governing want of prosecution when there was no delay in the prosecution of the matter;

(3) The dismissal was against the weight of serious allegations of bribery against the first respondent which required a proper trial to establish their merit;

(4) The dismissal was not proper in that there had been only one adjournment and the same court in similar circumstances in other petition matters had granted adjournments; and

(5) The applicant's lawyer was sick and unable to attend the direction hearing on 10 October 2012.

6. These points raise points of law and facts.

Principles

7. The test to be applied in determining whether or not to grant leave for review is set out in Jurvie v Bony Oveyara (2008) SC 935 which summarizes the test as follows:

" The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -

- First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.

- Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted."

8. In expounding the test the Court said in Jurvie that an applicant must demonstrate that he or she has a serious and important issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge is not determining the merits of the substantive application and the Judge must avoid engaging in a detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.
   
9. The test developed in Jurvie was derived from a survey of the cases decided in this jurisdiction, including those cases relied upon by Mr Lomai of counsel for the applicant, that concern the exercise of the Court's discretionary review jurisdiction given by s 155 (2)(b) of the Constitution. The Supreme Court has held that its review jurisdiction is available in cases where there is express statutory prohibition against appeal from decisions of statutory tribunals or Courts of law which grants the Supreme Court review jurisdiction even in cases where there is express statutory prohibition against appeal. The PRR provides an avenue for person aggrieved by a decision of the National Court in an election petition to seek redress where the OLNLLGE prohibits an appeal.
   
10. In the case at hand the main issue to be determined is whether the present application satisfies the criteria set out in Jurvie. I have considered the submissions made by counsel representing the parties and the material placed before me. My response to those submissions is embodied in my consideration of the five points.
    

(1) The dismissal lacked supporting application by the respondent and assistance on proper principles governing want of prosecution

11. A determination of this point requires a clear understanding of the procedural scheme for the conduct of election petitions and reviews in the National Court and the Supreme Court respectively. Both EPR and PRR contain complete codes of procedure on conduct of petitions in the National Court and the conduct of reviews in the Supreme Court respectively. They are comprehensive and exhaustive; and, expressed in mandatory terms. In petition cases that have come before the National Court and reviews before the Supreme Court, the Courts have placed great emphasis on the need for timely disposition of petitions through strict compliance with the requirements of the rules. Those procedural requirements place an onerous responsibility on the applicant, with or without the assistance of a lawyer, to take direct responsibility over the conduct of the petition or review in the Courts. This theme accords with the OLNLLGE which prohibits legal representation of parties except with the consent of the other party or by leave of the Court. Some of those provisions for instance require the petitioner to personally sign the petition or review application and attend Court proceedings in person. For instance, EPR requires the petitioner to sign the petition in person and EPR r 12 (2) & r 13(2) require the applicant's personal attendance in the National Court at Directions Hearings. PRR r1 requires the applicant to commence the review proceedings in the Supreme Court in person and PPR r 4 requires an applicant to file his or her own affidavit in support which "set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court". Failure by a petition or an applicant for review to comply with those requirements may be visited with appropriate sanctions including dismissal of the proceedings. Those sanctions are provided for in EPR, r18 and PRR, r30 respectively.
    
12. There is no material before this Court to show what transpired in the National Court on 10 October 2012; in particular, if the National Court invoked the discretionary jurisdiction under EPR r18 of its own motion or on application of the respondent's lawyer; and how the discretion was exercised. The onus is on the applicant to furnish to this Court those material which are relevant to the application which form the only basis on which this Court can exercise its discretion at the leave stage: PRR r 4. The applicant's affidavit sets out the circumstances pertaining to the application and annexes a copy of the petition only; both of which say little on how the discretion was exercised. In a case such as the present where the Court may not have delivered a published judgment. In that situation the second best record is the transcript of proceedings that is available from the Court Reporting Service that is run by the Courts that should contain the Court's judgment and orders. The Court's transcript service is available to parties in a case on request for a reasonable fee. Annexing a copy of the transcript would meet the requirement in PRR r4 for "the judgment and order of the National Court". If timely provision of the court records is an impediment, the applicant should come to Court to seek an extension of time to file the application for leave.
    
13. In my opinion, the affidavit in its present form is deficient in a material respect and having been filed in breach of the mandatory requirements of PRR r 4, the application for leave should fail for that reason alone.
    
14. The material deficiency in the applicant's affidavit leads to a substantial deficiency in the prosecution of this application for leave to review. This Court is left to assume matters that may or may not have occurred in the National Court on 10 October 2012 in terms of the manner in which and the reasons for which the discretionary jurisdiction under r 18 was exercised. That deficiency is critical to the determination of all five points raised by the applicant in this review. That said, in order to determine the merits of the application, I deal with the arguments made on the five points based on the material that is properly placed before me.
    
15. The Court would have invoked its discretionary jurisdiction under EPR r 18 and properly so in view of the absence of the applicant and her lawyer in Court at the appointed time, date and venue. EPR r18 gives the Court discretionary jurisdiction to dismiss a petition summarily of its own motion or on application by a party. That is a summary power that the Court of necessity possess to weed out petitions that attract little or no attention and interest from petitioners at the Directions Hearing stage when the petition is undergoing preparations for trail. It can be exercised with or without an application, formal or oral, by a party to the petition.
    
16. The applicant's case for review is premised on dismissal of the petition for want of prosecution; that the rules of Court and principles relating to dismissal for want of prosecution were not addressed by the Court because counsel for the respondents did not make any application to dismiss and assist the Court on those matters. It is argued that the Court could not have properly exercised its discretion under PRR r 18 without the respondent's application supported by case law on dismissal of a petition for want of prosecution. In support of this argument, the applicant relies on O 4 r 36 of the National Court Rules (NCR) and the decision in Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133; Burns Philp (New Guinea ) Ltd v Maxine George [1983] PNGLR 55.
    
17. In my view, NCR O 4 r 36 with its' accompanying case law have no application to the conduct of election petitions. The provisions of PRR provide a complete code of procedure for the conduct of election petitions. The jurisprudential development on the practice and procedures for the conduct of election petitions at a preliminary hearing and the Court' s summary jurisdiction under PRR r18 is different to that of rules of the court governing direction hearings and summary procedure in ordinary civil procedure found in NCR. The Court should avoid importing of rules and principles of practice and procedure governing ordinary civil claims into the conduct of election petitions and petition reviews in the National Court and Supreme Court respectively.
    
18. It is submitted for the applicant that the Court was bound to decide the case on substantial merits to achieve real justice. If so done, the petition would not have been dismissed summarily without a trial on serious allegations of bribery. The applicant relies on OLNPPLGE s 217 and the Supreme Court decisions in Maino v Avei & ors [1998] PNGLR 178 and Semri v Electoral Commission & ors (2003) SC 723. I agree with Mr Dalip of counsel for the second and the third respondents that the preponderance of case law authority supports the view that those provisions do not come into play until the trial phase when the court is considering the evidence: Biri v Ninkama [1982] PNGLR 342.
    
19. For these reasons, I am not persuaded that there is an important point of law or fact that is not without merit pertaining to the exercise of the court's discretion that are worthy of determination by the full Court.
    

(2) The Court misconstrued the principles governing want of prosecution when there was no delay in the prosecution of the matter

20. With regard to the second point, there is no material before this Court as to what transpired in the Court below as to how it exercised its discretion. The circumstances set out in the affidavit of the applicant say little on this point. A transcript of proceedings of that Court would have shown how the discretion was exercised in terms of application of relevant principles of law on want of prosecution. The onus is on the applicant to produce that evidence, through her affidavit. In the absence of any such material from the applicant, I m not persuaded that an important point of law or fact has been demonstrated on the second point.
    
21. I also adopt my reasoning under point No 1 on the issue of dismissal for want of prosecution, to hold that the applicant has failed to persuade me that an important point of law or fact with merit has been demonstrated to warrant consideration by the full Court.
    

(3) The dismissal was against the weight of serious allegations of bribery against the first respondent which required a proper trial to establish their merit

22. The third point is clearly without merit. Allegations in a petition, howsoever pleaded, remain so until proven. No inferences, adverse or otherwise can be inferred from the nature of the pleadings of those allegations during the direction hearing. The nature and weight of the allegations pleaded are immaterial to the exercise of discretion at directional hearings and summary procedure under EPR. I am not persuaded that an important point of law or fact that is not without merit has been demonstrated on point No 3.
    

(4) The dismissal was not proper in that there had been only one adjournment and the same court in other matters had granted several adjournments.

23. Mr Lomai cited judgments in civil cases that say dismissal of a case after one or a few adjournments may be an erroneous exercise of judicial discretion. However as I have already concluded, the summary jurisdiction under EPR r18 is different to similar proceedings in ordinary civil cases whose rules of court are different. Unexplained absence of both the lawyer and the applicant at the Directions Hearing constituted non compliance with the mandatory requirements of EPR r 12 (2) and this was the telling factor. EPR r 12 (2) required the personal attendance of the applicant and the lawyer having carriage of the matter on behalf of the applicant.
    
24. I understand and appreciate that contingencies and events, some of which may be unplanned or unforeseen, may arise that do occur in life that can derail the most planned activities and render it impossible to attend to those prior commitments. The conduct of Court proceedings is a serious matter that concerns the civil rights of people and the conduct of those proceedings are governed by established rules of practice and procedure and principles designed to facilitate a fair and timely disposition of such cases. The conduct of court proceedings is largely a planned and scheduled activity that is governed by established traditions some of which are embodied in the rules of practice and procedure and principles established by the Courts over time. Tradition has it that it is not only good practice and a mark of courtesy to the Court but also in the interest of fairness to the opposing parties that the applicant or their counsel should communicate with and inform the Court staff and opposing parties or their counsel if they are going to be unavailable for the scheduled court proceedings for pressing reasons and seek their indulgence to defer the court proceedings to a time when they are available. That communication may be only a matter of a phone call away or a short letter. The Court and the opposing lawyer and parties would then be placed on notice so that they can attend to necessary steps to avoid costs and inconvenience. There is also a firmly established practice that if a lawyer is not going to attend a case in Court, that lawyer should send another member of his or her firm to attend court or if that were not practicable, to brief a lawyer from another firm to appear in Court. In the absence of any such arrangement, the Court and the opposing party are entitled to infer that the petitioner is not interested in pursuing the petition and consequently, the petition stands liable to be summarily dismissed.
    
25. In the present matter, the applicant and her lawyer knew of the time appointed for the Directions Hearing when the matter was adjourned from 3rd October 2012. The applicant went away to China and took no steps to inform the Court registry or the respondents' lawyers of her unavailability or the unavailability of her lawyer. Her lawyer also went to Singapore and returned on 9th of October 2013 but fell ill and sought medical attention at 1:30pm that day in Port Moresby. He received medication and was told to bed-rest on the 10th and return for a review on the 11th. The notification of the court and opposing lawyers was only a phone call away or a simple letter of notice to them would have required little effort. If the applicant's lawyer was so sick to do that, some lawyer or staff member in his practice would have assumed that responsibility. Alternatively another lawyer could have been briefed to appear. The applicant in her affidavit does not depose to any of these matters. I assume that those steps were not taken.
    
26. Even if the applicant's lawyer or his agent made those communication to the Court or appeared in Court on 10 October 2011, the applicant's own absence in Court for the first directions hearing amounted to non-compliance with the mandatory requirements of EPR r12 (2) and the petition stood liable to be dismissed for this reason alone.
    
27. Counsel for the applicant sought to rely on the trial judge's decision in another petition case that attracted an adjournment in similar circumstances. The reference to that case is contained in his affidavit which I ruled inadmissible by virtue of PRR r 4. In any event, under the EPR, each petition attracts its own directional hearing with discretions exercised on their own set of facts.
    
28. In the circumstances I am not persuaded that there is an important point of law that is not without merit to be determined on point No 4. I am also not persuaded that the dismissal of the petition due to the absence of the applicant or her lawyer at the Directions Hearing in the circumstances was a gross error in fact or so outrageous or absurd so as to result in injustice.
    

(5) The applicant's lawyer was sick and unable to attend the direction hearing on 10 October 2012

29. Without drawing any adverse inferences against the applicant's counsel from the medical report in evidence as pressed upon by Mr Leahy of counsel for the third respondent, this point can be determined on the strength of the medical evidence that is before me.
    
30. For the reasons set out in relation to point No 4, I am not persuaded that there is an important point of law that is not without merit to be determined on point No 5. I am also not persuaded that there is a gross error in fact going to the exercise of discretion that may render the exercise of that discretion so outrageous or absurd so as to result in injustice.
    

Conclusion & Orders

31. For the foregoing reasons, I am not satisfied that the application meets the criteria for grant of leave in Jurvie. I find that the five points raised in the application do not raise any important point of law that is not without merit that requires determination by the full Court. I also find that there is no gross error of law apparent from the face of the information that was before the court below that would render the decision to dismiss the petition an absurdity or outrageous; that would warrant consideration by the full Court.
    
32. The formal orders of the Court are as follows:
    

(1) The application is dismissed.

(2) The applicant shall pay the respondent's costs of the proceedings.

(3) The security for costs deposit paid by the applicant and held in the Registrar's trust account shall be expended towards meeting the costs of these proceedings.

___________________________________________________________
Lomai & Lomai Attorneys: Lawyer for the Applicant
H Leahy Lawyers: Lawyer for the First, Second Respondents
Warner Shand Lawyers: Lawyer for the Third Respondent