Wesley v Leonard [2015] PGSC 16; SC1433 (3 June 2015)

SC1433

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRev (EP) 13 of 2014

APPLICATION UNDER SECTION 155 (2) (b) CONSTITUTION

AND

IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:

GORDON WESLEY
Applicant

AND:

ISI HENRY LEONARD
First Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika DCJ and Sakora, Kirriwom, Kandakasi & Hartshorn JJ.
2015: 22nd May,
: 3rd June

Objection to Competency of Application to Review – Order 5 Rule 36 Supreme Court Rules 2012

Cases:

Anton Yagama v. Peter Yama (2013) SC1219

Dawa Dekena v. Nick Kuman (2013) SC1272

Electoral Commission of Papua New Guinea and Amkat Mai v.
Simon Solo & Anor (2015) Unreported, 30th March 2015

Counsel:

Mr. G. J. Sheppard, for the Applicant
Mr. P. Mawa, for the First Respondent
Mr. M. Kuma, for the Second Respondent

3rd June, 2015

1. BY THE COURT: In this proceeding the applicant Mr. Wesley, applies to review two decisions of the National Court sitting as the Court of Disputed Returns, pursuant to s. 155 (2) (b) of the Constitution.

2. This is a decision on an objection by the first respondent Mr. Leonard, to the competency of the application to review pursuant to Order 5 Rule 36 Supreme Court Rules 2012. The objection to competency is opposed by Mr. Wesley and the second respondent the Electoral Commission of Papua New Guinea.

3. Mr. Leonard objects to the competency of the application to review on the grounds that although leave was granted to Mr. Wesley to apply for review, Mr. Wesley did not:

a) seek dispensation of the requirements of Order 5 Rules 7 and 8 Supreme Court Rules, pursuant to Order 5 Rule 39 Supreme Court Rules; and

b) filed an application for dispensation of the requirements of Order 5 Rules 7 and 8 Supreme Court Rules and such an application was not formally moved before the Court for dispensation under Order 5 Rule 39 Supreme Court Rules.

4. Mr. Leonard submits that the decision of the National Court of 20th August 2014, that is sought to be reviewed, is not a final decision as "Decision" is defined in Order 5 Rule 8. He further submits that for an application to be made to review a decision that is not final, the requirements of Order 5 Rules 7 and 8 must be dispensed with.

5. It is not disputed that leave to apply for review was granted on 4th February 2015 in respect of the two decisions of the National Court made on 20th August 2014 and 29th November 2014 in proceeding EP 65 of 2012.

6. Order 5 Rule 17 Supreme Court Rules is as follows:

"A decision to grant or a refusal to grant leave is final and shall not be subject to further review."

7. We mention at this juncture that following a grant of leave to review, that a respondent to the application for review has the opportunity to argue against the review at the substantive hearing perhaps contributes to the rationale for the existence of Order 5 Rule 17.

8. It was put to Counsel for Mr. Leonard that by making this objection to competency and challenging the grant of leave on the ground that necessary dispensations have not been obtained, he was in effect seeking to review the grant of leave - contrary to Order 5 Rule 17.

9. Counsel for Mr. Leonard conceded the point but submitted that three previous Supreme Court decisions were in his favour. We give consideration to those decisions.

10. In Anton Yagama v. Peter Yama (2013) SC1219, an application for a stay of a petition was made in the course of an application for review in which leave to review had been granted. In its decision the Court expressed the view at para 41 that the then Rule 10 Supreme Court Election Petition Review Rules, which is the same as Order 5 Rule 17 Supreme Court Rules: ".....must surely offend against the Constitutional right to review provided by s. 155 (2) (b) of the Constitution,....."

11. We note with respect that those comments were obiter dicta. Further, the question of whether Order 5 Rule 17 Supreme Court Rules offends against the Constitution is not before us. Until the Rule no longer has force, it is to be complied with.

12. In Dawa Dekana v. Nick Kuman (2013) SC1272, the Court considered two applications for review. One review was in respect of a ruling on a competency application in the National Court. That application for review itself was the subject of a competency application. In the course of considering that competency application, the Court said at para 26 that: "Order 5 Rule 17 has no application to the issue of competency."

13. There is no elaboration in the judgment as to how the Court arrived at that statement. Further, it is apparent that the statement was made in the course of the Court considering an application as to the competency of an application for review, and not an objection to competency relating to leave to review that had been granted. Apart from the fact that the Court had been referred to Order 5 Rule 17 by counsel, it does not appear that it was necessary for the Court to consider Order 5 Rule 17 as the question of leave does not appear to have been in issue.

14. Then in Electoral Commission of Papua New Guinea and Amkat Mai v. Simon Solo & Anor (2015) Unreported, 30th March 2015, at para 7, the Court stated that it upheld an objection to competency in relation to an application for review of a competency decision, as that decision was not a final decision and dispensation under Order 5 Rule 39 Supreme Court Rules had not been given.

15. From a perusal of the judgment, there is no mention that the question of leave that had been granted was being questioned and there is no consideration of Order 5 Rule 17.

16. We are not of the view that the three Supreme Court decisions relied upon by Counsel for Mr. Leonard assist him as submitted.

17. In this instance, the notice of objection to competency of Mr. Leonard states in paragraph two that:

"The Application for Review is incompetent in that the Court erred in law when it granted leave to the Applicant to seek review of the decision......"

18. Consequently for the above reasons, the objection to competency of Mr. Leonard should be dismissed as it offends against Order 5 Rule 17 Supreme Court Rules.

Orders

19. The Orders of the Court are:

a) The relief sought in the Notice of Objection to the Competency of the Application to Review of the First Respondent filed 6th March 2015 is refused.

b) The First Respondent shall pay the costs of the Applicant and Second Respondent of and incidental to the said Notice

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Mawa Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent