Graham v Electoral Commission of Papua New Guinea [2014] PGSC 62; SC1377 (2 September 2014)

SC1377

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 03 OF 2014

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

JAMIE MAXTON-GRAHAM
Applicant

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

DR. WILLIAM TONGAMP
Second Respondent

Waigani: Makail, J
2014: 06th June & 02nd September

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Leave to make slip rule application – Leave sought to re-open application for leave to review – Review of National Court decision – Dismissal of petition – Principles of – Sufficient cause of delay – Serious issues – Interests of justice – Grounds of – Misapprehension of facts and law – Computation of time – Time limit of 14 days to file, serve and hear application for leave to review – Time does not include Public Holidays – Time left for compliance – Compliance with service and hearing of application – Leave granted – Supreme Court Rules – O. 2, r. 1(h) & O. 5, rr. 14, 15 & 32 – National Court Rules – O. 1, r. 3.

Facts

This was an application for leave to make a slip rule application to re-open a case for the hearing of the application for leave to review a decision of the National Court dismissing the applicant's election petition challenging the election of the second respondent as Governor of the newly created province of Jiwaka. The application for leave for review was dismissed. Following the dismissal of the proceeding, the Chief Justice issued a chamber direction to close the file and have it filed way.

Held:

1. The application was filed within 21 days of the decision of dismissal but was served late. The delay was satisfactorily explained in that the Supreme Court Registry staff had consulted the Chief Justice as to the appropriate course to take after the proceeding was dismissed.

2. There was one day within the time limit of 14 days which fell on a Public Holiday left, and it was arguable that time did not run on that date and that the applicant had one more day left to serve and move the application for leave to review. This raised a serious issue for further consideration.

3. The application for leave to make a slip rule application was upheld.

Cases cited:

Stephan John Rose v. The State (2007) N3241
Wallbank and Mimifie v. The State [1994] PNGLR 78
Saki Hacky Soloma v. Issac Waigavara & Electoral Commission (2014) SC1350
Peter Waieng v. Tobias Kulang (2013) SC1258
Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945

Counsel:

Mr M Wilson with T Yamarhai, for Applicant
Mr M Kuma, for First Respondent
Ms S Kapi, for Second Respondent

RULING

02nd September, 2014

1. MAKAIL, J: The applicant Mr Jamie Maxton-Graham filed an application for leave to review the decision of the National Court which dismissed his election petition challenging the election of the second respondent as Governor of the newly created province of Jiwaka. He was running out of time to serve and move the application for leave within the prescribed time limit of 14 days under O. 5, r. 14 of the Supreme Court Rules and applied for extension of time. The application was refused and the proceeding was dismissed. Following the dismissal of the proceeding, the Chief Justice issued a chamber direction to close the file and have it filed away.

2. He now applies for leave to make a slip rule application pursuant to O. 11, r. 32 of the Supreme Court Rules. He seeks to have the Court re-open the case and revisit its decision to firstly dismiss the proceeding and secondly, close and file away the file. The gist of the application is that the Court misapprehended the facts and law when it refused his application for extension of time, dismissed the proceeding, and subsequently closed the file and filed away.

3. The misapprehension of the fact was that the time limit of 14 days expired on 21st April 2014. He filed the application for leave on 16th April 2014 and had until 21st April 2014 to serve and move the application for leave. The misapprehension of the law was that 18th and 21st April 2014 was Good Friday and Easter Monday respectively and Public Holidays. As they were Public Holidays, time did not run. Adding two more days from 21st April 2014, the 14 days expired on 23rd April 2014. In essence, even if the application for extension of time was refused, he had until 23rd April 2014 to serve and move the application for leave and the Court should not have dismissed the proceeding but allowed him time to serve and move the application. The misapprehension constituted a mistake made by the Court and must be corrected.

4. The mistake caused the Chief Justice to mistakenly form a view that the proceeding had been concluded and directed that the slip rule application and supporting affidavit that were filed be removed from the Court file, that the file be closed and filed away. The Chief Justice misapprehended the facts and law when he treated the application for extension of time as an application for leave to review under O. 5, r. 14 (supra) when it was not.

5. An application for leave to make a slip rule application must be filed and served within 21 days of the decision and the applicant says that he has filed the application on 06th May 2014, well within the 21 days. This was the date he lodged the application at the Supreme Court Registry but the delay in accepting the application was due to the matter being referred to the Chief Justice for direction as to what to do with the application after the proceeding was dismissed.

6. The respondents did not take issue with the reasons for the delay, if any, but submit that the Court made no mistake when it dismissed the proceeding and the decision was made within the discretion of the Court. Even if the Court were to re-open the case, the application for leave for review was fundamentally flawed because the applicant failed to personally serve the application on the second respondent as required by O. 5, r. 15 (supra). Rule 15 states:

"15. The application for leave and supporting affidavit 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 day period."

7. In response, the applicant submits that the issue of personal service is irrelevant because all he needs to establish is whether he still had time to serve and move the application for leave within 14 days and he has been able to establish that he had two more days to do that.

8. The applicant did not refer to any authority on the principles for the exercise of discretion but relies on the following general principles:

• Sufficient causes of delay;
• Serious issue; and
• Interest of justice.
  

9. An application under the slip rule is to correct a slip or mistake made by the Court: Stephan John Rose v. The State (2007) N3241 and Wallbank and Mimifie v. The State [1994] PNGLR 78. Before the Court can re-open the case, O. 11, r. 32 states amongst others, that the slip rule application must be filed and served within 21 days and that leave must be sought to make the application. For ease of reference, it is set out in full below:

"32. (1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A 'slip rule' application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A 'slip rule' application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed."

10. The time limit of 14 days to file, serve and hear the application for leave is provided under O. 5, r. 14. It 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 the Judge, upon application heard within that 14 days period." (Underlining is mine).

11. An applicant is required to file, serve and have the application heard within 14 days. The 14 days is calculated from the date of decision of the National Court and not a day after the decision, and there is judicial pronouncement on this issue: see Saki Hacky Soloma v. Issac Waigavara & Electoral Commission (2014) SC1350 and Peter Waieng v. Tobias Kulang (2013) SC1258.

12. I accept the general principles on the exercise of discretion submitted by the applicant. These principles are consistent with the principles applied in Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945. I will apply them in this case.

13. There is no issue that the application was filed within time. But the application was served on the respondents well after the 21 days had expired. It was served on them on 21st May 2014. While that may be so, I accept the applicant's reason for the delay. The delay has been satisfactorily explained. He was not the cause of the delay. It was the Supreme Court Registry staff who had to consult the Chief Justice for directions as to the appropriate course to take after the proceeding was dismissed.

14. As to whether the application raises serious issues to be tried, I note that computing the 14 days from the date of decision of 07th April 2014, the 14 days expired on 20th April 2014. The date of 18th April 2014 fell on Good Friday. As the 14 days expired on 20th April 2014, the date of 21st April which was Easter Monday does not come into contention here. In summary, the applicant was left with one day if the contention that time does not run on Public Holiday were accepted.

15. The applicant's contention is a matter that needs further consideration because O. 5, r. 14 (supra) does not expressly exclude public holidays when calculating the 14 days. Similarly, there is no other provision in the Supreme Court Rules that expressly exclude public holidays when computing time for filing, serving and hearing of the application for leave. But O. 1, r. 3 of the National Court Rules provides for Court Holidays. For the present purpose, a public holiday is any day observed as a public holiday as defined in s. 3 of the Interpretation Act. That section states:

"public holiday" means a day —

(a) declared by an Act to be a public holiday; or

(b) proclaimed or notified under an Act as a public holiday;"

16. Where there is no provision in the Supreme Court Rules, O. 2, r. 1(h) of the Supreme Court Rules authorises the Supreme Court to adopt and apply the equivalent provision in the National Court Rules to the fill in the gap.

17. I am satisfied that it is arguable that by invoking O. 2, r. 1(h) of the Supreme Court Rules, and applying O. 1, r. 3 of the National Court Rules to this case, given that 18th of April fell on a day which was a public holiday and also a Court holiday, the Court would not have sat on that date and time did not run. It would follow that the applicant had one more day left which would have given him until to 21st April 2014 to serve and move the application for leave to review. I am satisfied that the application raises a serious issue which requires further consideration by the Court. It is a fundamental issue because its determination will determine whether the proceeding is still alive or not and the issue of service raised by the respondents can also be raised at the hearing.

18. Finally, the applicant seeks to review the decision of the National Court which dismissed his election petition. He relies on a number of grounds to challenge that decision, if the Court were to grant leave. The Supreme Court is the last resort for him to have his grievance heard. For this reason, I satisfied that in the interests of justice, the applicant should be given an opportunity to be heard on why the Court should set aside its order dismissing the proceeding.

19. For the foregoing reasons, I am satisfied that the applicant has established a prima facie case of the Court having slipped when it dismissed the proceeding on 17th April 2014. Further, if the proceeding had not being dismissed, the Chief Justice would not have directed that the file be closed and filed away. I would grant leave.

20. The orders of the Court are:

1. The application for leave to make a slip rule application is upheld.

2. The slip rule application shall be heard on a date to be fixed.

3. Costs shall follow the event.

_______________________________________________________________

Warner Shand Lawyers: Lawyers for Applicant
Niugini Legal Practice: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent