Alina v Potape [2013] PGSC 12; SC1235 (9 May 2013)

SC1235

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 46 OF 2012

IN THE MATTER OF 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:

EDWARD EKANDA ALINA
Applicant

AND:

FRANCIS MULUNGU POTAPE, Member
elect for the Komo Magarima Open Electorate
First Respondent

AND:

RAPHAEL YAKI, Returning Officer for
the Komo Magarima Open Electorate
Second Respondent

AND:

ANDREW TRAWEN, Chief Electoral
Commissioner of Papua New Guinea
Third Respondent

AND:

ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Kirriwom J., Hartshorn J. and
: Kariko J.
2013: 3rd, 9th May

Application to dismiss a Review pursuant to s. 155(2)(b) Constitution of an election petition decision – Order 5 Rule 37 (a) Supreme Court Rules

Facts:

This is an application pursuant to Order 5 Rule 37 (a) Supreme Court Rules to dismiss a Review pursuant to s. 155 (2)(b) Constitution of an election petition decision on the grounds that the Review has not been prosecuted with due diligence and that an order of this court has not been complied with.

Held:
The applicant has not complied with a Court order and the Review has not been prosecuted with the due diligence required. The first respondent is entitled to the relief that he seeks. The applicant's application for review is dismissed.

Cases cited:

Hami Yawari v. Anderson Agiru (2008) SC948

Counsel:

Mr. P. Ame, for the Applicant
Ms. C. Copeland, for the First Respondent
Mr. K. Kepo, for the Second, Third and Fourth Respondents

9th May, 2013

1. BY THE COURT: Mr. Francis Potape was the successful candidate in the 2012 Elections for the Komo Magarima Open Electorate. Mr. Edward Alina, an unsuccessful candidate, brought an Election Petition disputing the result. That Election Petition was dismissed by the National Court. Mr. Alina was granted leave by the Supreme Court to judicially review the decision of the National Court and this Review was filed on 4th December 2012.

2. Mr. Potape now makes an application pursuant to Order 5 Rule 37 (a) Supreme Court Rules to dismiss Mr. Alina's Review on the grounds that the Review has not been prosecuted with due diligence and further, that an order of this court has not been complied with.

3. Mr. Alina opposes this application for dismissal. The second, third and fourth respondents, being the Electoral Commission and two of its officials, support this application. They have moved their own application for dismissal of this Review. We will deliver a decision on their application if the present application fails.

4. It is not in dispute that:

a) this Review was filed on 4th December 2012,

b) the production of the transcript of the National Court proceedings for the hearing that occurred on 8th November 2012 in EP No. 33 of 2012 (8/11 transcript) is necessary for the hearing of this Review and should have been included in the review book. Counsel for Mr. Alina confirmed to this court that the 8/11 transcript is necessary.

c) the lawyers for Mr. Alina were put on notice that the 8/11 transcript was necessary, by letter dated 18th February 2013 from the lawyers for Mr. Potape.

d) on 24th April 2013 the Chief Justice sitting as a single Supreme Court Judge ordered that, amongst others, that Mr. Alina shall produce the 8/11 transcript on 26th April 2013 and that the matter was adjourned to 26th April 2013 (subject order).

e) on 26th April 2013 at 9:30am when the matter returned before the Chief Justice, counsel for Mr. Alina did not make an appearance and the 8/11 transcript was not produced at that time.

f) the review book has not been certified by the lawyers for the first respondent.

g) no application has been made by Mr. Alina to vary the subject order or to dispense with the requirements of the Election Petition Review Rules.

5. As the subject order was not complied with by Mr. Alina, the issue is whether the non-compliance by him and his prosecution of the Review are such that this Review should be dismissed.

6. Counsel for Mr. Alina submits in essence that all that should have been done by Mr. Alina and his lawyers in preparing and progressing the Review for hearing has been done but that because of the repeated requests of the lawyers for the respondents, especially the first respondent, for amendments to the review book and for the 8/11 transcript to be included, this has resulted in the review book being served late upon the respondents. Further, the Review is now ready to be heard and the respondents have not suffered any prejudice as a result of the delays that have occurred.

7. It is clear that the subject order was made after a continuing failure by Mr. Alina's lawyers to order and obtain the 8/11 transcript, from soon after the Review was filed in December 2012 up to and including when they ordered the 8/11 transcript on 24th April 2013. This continuing failure is notwithstanding that Mr. Alina's lawyers were put on notice in February 2013 by the lawyers for Mr. Potape that the 8/11 transcript was required to be included in the review book and Mr. Alina's counsel confirming that the 8/11 transcript is necessary for the hearing of the Review.

8. Though no reason has been given by Mr. Alina for the subject order not being complied with, it is evident that it is because the 8/11 transcript was not ready until late on 26th April - Mr. Alina's lawyers only placing the order for the 8/11 transcript on 24th April - after the subject order had been made.

9. Order 5 Rule 37 (a) Supreme Court Rules is as follows:

"Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-

(a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant;...."

10. As this Court stated in Hami Yawari v. Anderson Agiru (2008) SC948:

"When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. In addition, the time limits between the various stages are short. This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament."

11. In this instance there are no satisfactory explanations as to why the 8/11 transcript was not produced on 26th April 2013 although it is apparent why it was not, why the 8/11 transcript was not ordered earlier, why there was no appearance on behalf of Mr. Alina before this court on 26th April 2013, and why no application was made by Mr. Alina to vary the subject order or to dispense with the requirements of the Election Petition Review Rules.

12. Mr. Alina and his lawyers have had since December 2012 to order the 8/11 transcript, but they did not place the order until ordered to produce the 8/11 transcript by this court. The order for the 8/11 transcript was not placed until 24th April 2013, over four months after the Review was filed. In our view Mr. Alina and his lawyers have been dilatory in this respect.

13. The Review cannot be heard as scheduled as Mr. Potape's lawyers have been unable to certify the review book as a consequence of it not being properly prepared. Further, the respondents have not been permitted sufficient time to prepare for the hearing of the Review given the very late service upon them of the review book, which still appears to be improperly prepared. To proceed with the hearing of the Review in such circumstances would be prejudicial to the respondents. The hearing of the Review will have to be delayed. It cannot be heard as soon as possible as it should have been. In the circumstances we are satisfied that this is as a result of the Review not being prosecuted by Mr. Alina and his lawyers with the due diligence that is required for such a Review.

14. As Mr. Alina has not complied with the subject order and as the Review has not been prosecuted with the due diligence required, we are of the view that Mr. Potape is entitled to the relief that he seeks. Given this it is not necessary for us to consider the application of the second, third and fourth respondents.

Orders

15. The formal Orders of the Court are:

a) the relief sought in paragraph 2 of the application of the first respondent filed 30th April 2013 is granted and this Review filed 4th December 2012 is dismissed.

b) the applicant shall pay the costs of the respondents' of and incidental to this proceeding.
_________________________________________________________

Ame Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second, Third and Fourth Respondents