Embel v Komal [2015] PGSC 47; SC1453 (20 August 2015)

SC1453

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) 4 of 2015

APPLICATION UNDER s. 155 (2) (b) CONSTITUTION

AND:

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

BETWEEN:

PHILOMEN EMBEL
Applicant

AND:

JEFFREY PESAB KOMAL
First Respondent

AND:

ANDREW TRAWEN, PNG ELECTORAL COMMISSIONER
Second Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J
2015: July 31st
: August 20th

Applications to dismiss proceeding for failure to comply with Order 5 Rule 14 Supreme Court Rules

Cases cited:
Papua New Guinea cases:

Wari Vele v. Powes Parkop (2008) SC945
Yap v. Tin Siew Tan and Ors [1987] PNGLR 227

Overseas case cited:

Hadkinson v. Hadkinson [1952] 2 All ER at 569

Counsel:

Mr. P. Mawa, for the Applicant
Mr. I. R. Molloy, for the First Respondent
Mr. K. Kepo, for the Second and Third Respondents

20th August, 2015

1. HARTSHORN J: This is a decision on two applications by the respondents that this proceeding be dismissed for a failure by the applicant to comply with Order 5 Rule 14 Supreme Court Rules.

Background

2. On 23rd April 2015, the applicant, Mr. Philomen Embel, filed this Application for Leave to Review pursuant to s. 155 (2) (b) Constitution, the National Court decision dated 10th April 2015 that dismissed his election petition.

The applications

3. The respondents contend that although Kirriwom J on 12th May 2015, ordered amongst others, that the requirements of personal service as provided by Order 5 Rule 15 Supreme Court Rules are dispensed with, as the time by which the Application for Leave shall be served expired on either 8th or 13th May 2015 and was not extended pursuant to Order 5 Rule 14 Supreme Court Rules, the Application for Leave should be dismissed for failure to comply with Order 5 Rule 14.

4. The respondents make their applications pursuant to Order 5 Rule 37 and 37 (a) Supreme Court Rules. No issue is taken with their reliance upon these Rules.

5. The respondents rely upon the Supreme Court decision of Wari Vele v. Powes Parkop (2008) SC945 in support of their applications.

6. Mr. Embel contends that this Application for Leave should not be dismissed. This is because it is not necessary to obtain a further extension of the time by which the Application for Leave was to be served under Order 5 Rule 14 Supreme Court Rules as Kirriwom J ordered that personal service was dispensed with and did not stipulate a time by which substituted service was to be effected.

7. The last extension of time within which the Application for Leave was to be served was also ordered by Kirriwom J, on 8th May 2015. His Honour extended orders of 24th April to 13th May 2015.

Consideration

8. Order 5 Rule 14 Supreme Court Rules is:

"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."

9. Order 5 Rule 15 Supreme Court Rules is:

"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."

10. In Vele v. Parkop (supra), the Court, of which I was a member, held amongst others that:

"1. An application for leave to review a decision on an election petition not filed, served and moved before a judge within 14 days of the decision sought to be reviewed, where extension of time is not granted within that 14 days, is rendered incompetent by the Rules, subject to any application under Rule 5/10/32. (now O5 R39)

2. The purpose of the Election Petition Review Rules is:

a) not to treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention;

b) to closely manage the review process;

c) to reduce to the minimum the time between the various steps in the review.

3. The times imposed by the Rules are tight and where prompt application is made for relief within the mandatory 14 days accompanied by a reasonable explanation, many circumstances will justify an extension of time under Rule 5/1/7 (now O5 R14) or after that time a dispensation from the requirements of the Rules under Rule 5/10/32; (now O5 R39)"

11. The issue here is not merely non-compliance with a rule or order, but whether the applicant is able to rely upon a further order that was made.

12. In this instance, notwithstanding that the last extension of time to serve the Application for Leave expired on 13th May 2015, Kirriwom J ordered that amongst others, personal service as provided by Order 5 Rule 15 was dispensed with. By so ordering, it is able to be argued that His Honour dispensed with personal service under Order 5 Rule 14 as well, as both Rules apply to service of the same Application for Leave.

13. The question whether the order of Kirriwom J dispensing with personal service should or could have been made, is not before this court. Further, that there was no date specified in Kirriwom J's order by which substituted service was to be effected, does not derogate from the fact that the order was made.

14. In Yap v. Tin Siew Tan and Ors [1987] PNGLR 227, the Court cited with approval the following passage from Hadkinson v. Hadkinson [1952] 2 All ER at 569, of Romer LJ, in the Court of Appeal:

"It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."

15. The corollary is that a person who has the benefit of a court order is entitled to rely upon it, until it is set aside. To dismiss this proceeding as sought would deprive Mr. Embel from relying upon the order of Kirriwom J.

16. Consequently, for the above reasons the applications of the respondents should be refused.

Orders
17. The formal Orders of the Court are:

a) The application of the first respondent filed 28th July 2015 and the amended notice of motion of the second and third respondents filed 29th July 2015 are both dismissed;

b) the costs of and incidental to the said application and amended notice of motion are reserved.

____________________________________________________________
Mawa Lawyers : Lawyers for the Applicant
Adam Ninkama Lawyers: Lawyers for the First Respondent
Niugini Legal Practice : Lawyers for the Second and Third Respondents