Kubak v Trawen [2013] PGSC 26; SC1250 (21 February 2013)

SC1250

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 49 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:

NOBERT KUBAK
Applicant

And:

ANDREW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Respondent

And:

EKONIA WALOM, RETURNING OFFICER FOR GAZELLE OPEN ELECTORATE
Second Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

And:

MALAKAI TABAR
Fourth Respondent

Waigani: Injia, CJ
2012: 20 December
2013: 21 February

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding objection to competency of election petition – Dismissal of election petition – Application for leave for review - Exercise of discretion- Application refused - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935
Waranaka v Dusava (2008) SC 942

Mr Kubak in person
No appearance for the respondents

21st February, 2013

1. INJIA, CJ: This is an undefended 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.

2. The applicant was a candidate for the Gazelle Open Seat in the 2012 National Elections. The fourth respondent won the election polling 9,791 votes to the applicant who came second with 9678 votes, a difference of 113 votes between them. The applicant filed an election petition disputing the election alleging irregularities and omissions on the part of the Electoral Commission officials in conducting scrutiny of votes at the counting. The first respondent objected to competency of the petition at the trial. The trial judge upheld the objection and dismissed the petition. The applicant seeks leave for the full Court to review this decision.

3. There is no question as to application of the principles and criteria for grant of leave enunciated by this Court in Jurvie v Oveyara (2008) SC 935 to the circumstances of the case at hand. Those are that 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; and, 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 or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice. The applicant needs to demonstrate serious issues of law or fact. The exercise at this stage is not one involving a detailed consideration of the points raised in the application for to do so would amount to determining the merits of those matters. What this Court can do is to make a preliminary assessment of the points raised and to allow or disallow any applications that raise points of law or fact; and in relation to disallowance, any points that lack clear merit to warrant a full review.

4. I deal with the main points raised and argued in this application. First, it is submitted that the fact that an application for leave has been filed which contains grounds and issues which have been comprehensively and meticulously drafted with reference to constitutional provisions effected is evidence enough that there is a genuine grievance over the decision and sufficient to satisfy the criteria in Jurvie v Oveyara case and Waranaka v Dusava (2008) SC 942; hence leave should be granted. Whilst I tend to agree with the applicant that he has given much care and attention in drafting those issues in the manner described, I do not believe that alone is a licence for the granting of leave. Those issues have to be substantiated with arguments and material to satisfy the criteria in Jurvie v Oveyara. The submission is a general characterization of the manner in which those issues are pleaded and nothing more. I am not satisfied that this is an important point of law.

5. The applicant does emphasize one procedural point in his submission which requires specific attention. That is the trial judge dispensed with the requirement of the rules to file a formal objection to competency after having heard oral arguments of counsel, without such an application being made supported by affidavit by the fourth respondent. A formal objection was allowed to be filed on the day of the trial and dealt with. The Court's reasoning was that competency issues remain open to be raised at any stage of the proceedings.

6. The National Court Election Petition Rules do not provide for filing a formal objection to competency of a petition. The requirement was introduced by Practice Direction No 2 of 2012. I would treat that Practice Direction as forming part of the rules governing the conduct of election petitions. The objection in this case was filed outside of the time stipulated in that Practice Direction, without first obtaining an order dispensing with the requirement of that practice direction. The trial judge dealt with the issue of late filing and concluded that in the interest of preserving the dictates of OLNLLGE, s 210 and the principle that competency issues may be raised at any stage of the proceedings, the objection should be allowed to be filed in Court and argued. The objection was argued and determined. I find no error in the exercise of discretion on the reasons given. This point therefore does not raise an important point of law that is not without merit.

7. The other main point that I perceive from my exchange with the applicant during argument is that the notice of competency itself was filed and moved by lawyer for the 4th respondent raising matters concerning the conduct of the fourth respondent. In effect it is argued, the Commission was being served by two (2) lawyers in breach of Section 222 OLNLGE. The notice of objection does state that the objection was brought by the first respondent and signed off by the lawyer for the first respondent, who in fact was not the Electoral Commission lawyer but the fourth respondent's lawyer.

8. On the face of the Notice of Objection To Competency, it was filed by Mr Sheppard in his capacity as lawyer or counsel for the first respondent. In reality he was counsel or lawyer for the fourth respondent. However this irregularity was not detected and raised at the trial. The objection was argued by both parties.

9. In my view, it is a procedural point that needed to be raised at the trial and dealt with by that Court in order for this court to consider whether or not there occurred a procedural error that vitiated the proper and fair conduct of the proceedings on the objection to competency. If that happened, the review Court would be in a position to consider whether an error occurred in the exercise of procedural discretion. As such I do not think this is an important and serious point that is not without merit.

10. The other related point is the appearance of Mr Sheppard of Young & Williams lawyers for the fourth respondent on the day of the trial, when previously Ms Copland of the same firm had appeared at the directions hearing. Both Mr Sheppard and Ms Copland appeared at the trial for the fourth respondent. This point was raised at the hearing and determined. I agree with the trial judge that OLNLLGE, s 222 does not preclude a different lawyer from the same law firm appearing for the same party at different stages of the petition proceedings. Indeed, as it happens often in petition trials in the National Court and reviews before this court, more than one lawyer from the same law firm appear for a party, either as senior and junior counsel; or more than one counsel arguing different parts of the case for a party. This argument does not raise an important point of law to be determined.

11. One other aspect on this point is with regard to the procedural propriety in permitting a party to raise objection to grounds in a petition that do not concern that party. The objection to competency in this case involved allegations that concerned the conduct of the first, second and third respondents. This point it seems to be from the judgment of the trial judge was not an issue in the trial and it has not been raised as an issue in this application. It is not for me to venture into that point.

12. Finally, I have read the judgment of the trial judge which deals with each specific ground in the petition as they relate to OLNLLGE, s 208(a). His Honour gave strong and convincing reasons as to why he considered the grounds to be lacking in material facts or sufficient facts. I am not persuaded that the trial judge exercised his discretion on each ground or on the grounds taken as a whole, such that important points of law or fact are raised for consideration by the full Court.

13. I consider all other issues raised in the application for leave and advanced before me as raising no important points of law or fact.

14. For the foregoing reasons, I dismiss the application. I make no order as to costs. It follows that the applicant shall have refunded to him the security for costs deposit that is held by the Registrar.
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Applicant in person