Singirok Fairweather [2014] PGSC 61; SC1365 (11 July 2014)

SC1365

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 05 OF 2014

BETWEEN

JERRY SINGIROK
Applicant

AND

KEN FAIRWEATHER
First Respondent

AND

EMILY SIAMOLI
RETURNING OFFICER FOR SUMKAR OPEN ELECTORATE
Second Respondent

AND

ELECTORAL COMMISION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2014: 19th June & 11th July

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Application to dispense with requirements to serve and hear application for leave to review – Review of National Court decision – Dismissal of petition – Failure to serve and move application for leave within 14 days – Dispensation of requirements of service and hearing of application – Constitution – s. 155(2)(b) – Supreme Court Rules – O 5, rr. 14, 15 & 39.

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Application for leave to review – Review of National Court decision – Application for leave to review must be filed within 14 days of date of decision – Question of proper construction – Proper construction of when 14 days runs – Calculation of – Late filing of – Late by one day – No application seeking dispensation of time – Effect of – Application for leave to review incompetent – Proceeding dismissed – O. 5, r. 14.

Cases cited:

Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945
Saki Hacky Soloma v. Issac Waigavara & Electoral Commission (2014) SC1350
Peter Waieng v. Tobias Kulang (2013) SC 1258

Counsel:

Mr B. Meten for the Appellant
Mr P. Tabuchi, for First Respondent
No appearance for Second & Third Respondents

RULING

11th July, 2014

1. MAKAIL, J: On 24th April 2014, the National Court dismissed the petition by the applicant disputing the election of the first respondent as Member for Sumkar Open electorate. On 08th May 2014, the applicant filed the within proceeding seeking leave to review the decision of the National Court pursuant to s. 155(2)(b) of the Constitution. In addition to the requirement to file the application for leave to review within 14 days, under O. 5, rr. 14 and 15 of the Supreme Court Rules, 2012 ("SCR"), he was required to do the following:

(a) serve the application within 14 days of the decision,
(b) have the application heard within 14 days of the decision,
(c) serve on the respondents the application and supporting affidavit 3 days before the application is made, and
(d) file an affidavit of service within that 3 days period.

2. He did not comply with these requirements and sought to dispense with them by invoking the Court's power under O. 5, r. 39 of the SCR. The first respondent opposed the application on the following grounds:

(a) The application for leave to review is incompetent for being filed out of time,
(b) The application for dispensation is incompetent for want of form, and
(c) No reasonable explanation for the default.

Procedural Requirements on Application for Leave

3. Order 5, rule 14 states:

"14. The application for leave shall be filed, served and heard within 14 days of the decision sought to be reviewed or within such time as extended by Judge, upon application heard within that 14 days period."

4. Order 5, rule 15 states:

"15. The application for leave and supporting affidavits shall be served personally on the respondents, not later than 3 days before the application is made, and an affidavit of service shall be filed within that 3 days period."

5. The aggregate effect of these rules is that, the application for leave must be filed, served and heard within 14 days of the decision, must be served 3 days before the application is made and an affidavit of service must be filed within that 3 days period. It is important to note that these are mandatory procedural requirements that must be met before the question of leave is determined. Failure to comply with any or all of them and no extension of time is granted to comply with them within the same 14 days renders the application for leave incompetent and liable to be dismissed. For further discussion on these requirements, see the cases of Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945 and Saki Hacky Soloma v. Issac Waigavara & Electoral Commission (2014) SC1350.

Application filed out of time

6. As to the first ground, the first respondent submitted that the application for leave to review is clearly out of time. The reason is that the decision the subject of the current proceeding was delivered on 24th April 2014. Rule 14 (supra) provides that an application for leave to review this decision shall be filed, served and heard within 14 days. As to calculating when the 14 days would expire, the first respondent cited Peter Waieng v. Tobias Kulang (2013) SC1258 and submitted that the learned Chief Justice held that the 14 days referred to in O. 5, r. 14 is calculated from the date of the decision stated in the application for leave. At paragraph 7, his Honour said:

"7. .....when I issued the chamber direction, I calculated the 14 days requirement under SCR, O5 r 14 to commence from the date of the decision stated in the application for leave, which was 14 March 2013. It is now clear from the affidavits before me that the final ruling on the competency objection was given on 13 March 2013. Therefore, the 14th day fell on 27th March 2013. In the circumstances, the application is clearly incompetent."

7. In light of this, he submitted that the 14 days from 24th April 2014 would be 07th May 2014. The application for leave to review should have, therefore, been filed by or before 07th May 2014. It follows that any such further application to seek an extension of time to file, serve and hear the application for leave to review should have been filed by or before 07th May 2014. The application currently before the Court is clearly out of time having been filed on 08th May 2014.

8. On this particular point, the Court in Peter Waieng (supra) said at paragraph 11:

"11. I am of the view that the application for leave for judicial review is incompetent from the start. In terms of filing, unless time to comply with the mandatory requirements of O 5 r 14 were extended under that provision, an application filed out of time is void ab initio. An order for dispensation even if granted under O 5 r 39 would not cure or revive an invalid application by reason of late filing."

9. The applicant responded by submitting that this ground is misconceived. The correct way to determine when the time limit of 14 days starts to run is a day after the date of decision. Counting from 25th April, the 14 days expired on 08th May 2014 and the application was filed on the 14th day and within time.

Issues for Determination

10. These competing arguments raise the threshold issue of when the 14 days starts to run and in turn raise the issue of whether the current proceeding upon which leave is being sought to review the decision of the National Court was filed within time. If it was filed out of time, what is the consequence?

Consideration of Issues

11. The first issue requires a proper construction of O. 5, r. 14. The reference point to work out when the 14 days starts to run in r. 14 (supra) is from the key words "......within 14 days of the decision sought to be reviewed....." On a plain reading of r. 14, the 14 days starts to run on the date the National Court pronounces the decision. This interpretation is consistent with the submission of the first respondent which is based on the interpretation given by the Chief Justice in Peter Waieng's case (supra).

12. The applicant has not cited any case authority to the contrary or made submission that the decision in Peter Waieng's case (supra) is wrong, why it is wrong and this Court should not follow it. The absence of case authority and submission against the Peter Waieng's case (supra) further supports the first respondent's submission that the 14 days runs from the date of the decision. In other words, the 14 days is inclusive of the date of decision. The other reason is that the applicant has not relied on s. 11 of the Interpretation Act (Computation of time). In any case, if the true basis of his submission is on s. 11 (supra), which seems to be the case here but not clearly expressed and if considered, this provision has no application because of the words "......within 14 days of the decision sought to be reviewed....." in r. 14. By these words, it is clear that an application for leave to review must be filed within 14 days of the decision of the National Court.

13. The reason for this is obvious. An election petition is a serious matter and it is not intended that it should be prolonged or delayed. Where the National Court makes a decision, it is the end of the matter. An aggrieved party seeking to review the decision must expeditiously prosecute the application. It is for this reason that the SCR provide a tight time frame for the prosecution of the application and it would defeat the very purpose for which the SCR seek to prevent to accept the proposition that the 14 days starts to run a day after the date of decision. For these reasons, I answer the first issue as follows; the 14 days runs from the date the Court pronounces the decision.

14. Turning to the second issue, calculating the 14 days from the date of decision of 24th April 2014, the 14 days expired on 07th May 2014. The current proceeding was filed on 08th May 2014. I find it was filed one day late. What is the consequence or effect of the non-compliance with this procedural requirement? In Peter Waieng's case (supra), the Court held that the late filing renders the entire proceeding incompetent and void from the start. The SCR impose a very rigid time frame such that an applicant seeking leave to review a decision of the National Court has only 14 days to prosecute the application and where more time is needed, leave must be sought and granted.
15. In this case, the applicant does not seek dispensation in relation to the time to file the application for leave to review. That being the case, no such application is before the Court nor was the Court invited by the applicant to dispense with it during submissions. On the authority of Peter Waieng (supra), it must be the case and I so find that the late filing renders the entire proceeding incompetent and void from the start. This ground is upheld and the proceeding is dismissed for being filed out of time.

16. In light of the foregoing conclusion, it is not necessary to consider the remaining grounds and submissions for and against the application for dispensation. The applicant shall pay the costs of the proceeding, to be taxed, if not agreed.

Order

17. It is the judgment of the Court that:

1. The proceeding is dismissed for being filed out of time.

2. The applicant shall pay the costs of the proceeding, to be taxed, if not agreed.

3. The security deposit of K5,000.00 held by the Registrar shall be released and apportioned equally between the respondents as part payment of their costs.

4. Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
______________________________________________________________
Meten Lawyers: Lawyer for Applicant
Young & Williams Lawyers: Lawyers for First Respondent
Harvey Nii Lawyers: Lawyers for Second and Third Respondents