Undialu v Potape [2019] PGSC 117; SC1885 (29 November 2019)

SC1885

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SC REVIEW (EP) NO 8 OF 2019

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
PHILIP UNDIALU
Applicant

AND
FRANCIS M. POTAPE
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Berrigan J
2019: 18^th, 29^th November

SUPREME COURT REVIEW – practice and procedure – application for dismissal of entire Supreme Court review pursuant to Order 5 Rule 37(a) of the Supreme Court Rules – application to set aside or vary orders to compile, file and serve the review book.

Cases Cited

Application for Review Pursuant to Section 155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539
Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission, unreported, 17th July 1998, SC562
Miki Kaeok v. Rimbink Pato (2005) SC877
Salamo Elema, Insurance Commissioner v Pacific MMI Insurance Ltd (2007) SC1321
Vele v Parkop (2008) SC945
Hami Yawari v. Anderson Agiru (2008) SC948
Alina v Potape (2013) SC1235
James Marape v Peter O’Neill & Ors (2015) SC1458
Michael Kandiu v Powes Parkop (2015) SC1597
James Marape v Peter O’Neill & Ors (2016) SC1487
Mann v Kumbu (2019) SC1799
Reference by the Ombudsman Commission Pursuant to Constitution, S 19(1) (2019) SC1821
Amaiu v Kaupa (2019) SC1843

References cited

Order 1 Rule 7(1), Order 3 Rule 2(a), Order 5 Rules 6, 19(c), 28, 30, 33, 37, 39, 48, Order 11 Rules1, 9, 25, 26, Order 13, Rule 15 of the Supreme Court Rules

Counsel

Mr G. Gileng, for the Applicant
Mr P. Othas, for the First Respondent
Ms. A. Kimbu, for the Second Respondent

29^th November, 2019

1. BY THE COURT: This is a decision on two contested applications. The Applicant seeks that the orders made by Hartshorn J on 14 October 2019 endorsing the index to the review book and ordering that the Applicant shall compile, file and serve the review book by 28 October 2019 be varied or set aside. Alternatively, an order that he file a motion pursuant to Order 11 Rule 25 of the Supreme Court Rules for that purpose.

2. The First Respondent seeks dismissal of the substantive review application pursuant to Order 5 Rule 37(a) of the Supreme Court Rules on the basis that the Applicant has failed to comply with the said order. The applications were heard together.

Background

3. The Applicant, Mr Undialu, was declared the elected Member of Parliament for the seat of Hela Province in the 2017 National General Elections.The First Respondent, Mr Potape, brought an Election Petition challenging that result. The petition was upheld on 28 June 2019 and is the subject of the application for review.

4. The following is a brief history of the review proceedings, which are not in dispute. Those matters which are in dispute will be discussed in further detail below.

(a) On 9 July 2019 the Applicant filed his application for leave to review;
(b) On 30 August 2019 leave to bring the review proceedings was granted by Salika CJ, sitting as a single Judge of the Supreme Court;
(c) On 6 September 2019 the Supreme Court granted the Applicant’s application for a stay of the National Court orders of 28 June 2019;
(d) On 12 September 2019 the Applicant filed his application for review together with a Draft Index to the Review Book;
(e) The matter was initially listed for directions hearing on 14 October 2019 by the Registrar but brought forward to 23 September 2019 and then adjourned to 7 October 2019;
(f) On 1 October 2019 the First Respondent filed a Notice of Objection to Competency of the Application for Review;
(g) On 4 October 2019 the Applicant filed an Amended Draft Index to the Review Book incorporating the comments made by the Respondents;
(h) On 7 October 2019 the matter came before Dingake J for directions but was adjourned to 14 October 2019;
(i) On 14 October 2019 Hartshorn Jendorsedthe index to the review book and ordered that it be filed and served by 28 October 2019;
(j) On 24 October 2019 the Applicant filed an application that the orders be set aside;
(k) On 30 October 2019 the First Respondentfiled an application to dismiss the substantive review.

5. For the sake of clarity, the orders of 14 October 2019 were granted in the following terms:

“1. The Court endorses the Amended Index to the Review Book filed by the Applicant, at the request of the First Respondent.

2. The Applicant shall compile, file and serve the Review Book by close of business on the 28^th October 2019.

3.The First Respondent shall notify the Appellant in writing of these orders by close of business today.”

APPLICATION TO DISMISS

6. It is convenient to start with the First Respondent’s application.

7. The First Respondent applies to dismiss the Applicant’s review proceedings pursuant to Order 5 Rule 37(a) of the Supreme Court Rules on the grounds that he has not prosecuted his application with due diligence and has failed to comply with the order to compile, file and serve the review book by Monday, 28 October 2019.

Jurisdiction

8. A preliminary issue has been raised by the Applicant. He suggests that I may not have jurisdiction as a single judge to hear and determine the application having regard to Order 3 Rule 2(a) which provides (emphasis mine):

“1. Proceedings which relate to a matter or question within the original jurisdiction shall be entitled "In the Supreme Court of Justice" and shall be commenced and continued in accordance with these Rules.

2. Where any proceedings under Rule (1) are pending before the Court—

(a) a direction not involving a final decision upon the proceedings; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order for security for costs; or

(d) an order in the nature of orders such as are referred to in Section 8(1)(a), (b), and (c) of the Act—

may be made by a Judge.
9. He points out that whilst there are a number of authorities in which a single judge has dismissed proceedings pursuant to Order 5 Rule 37(a) they have all concerned applications for leave and not the substantive review itself. Furthermore, that there appears to beonly one authority where a single judge has deliberated on an application to dismiss a substantive review application. It appears that jurisdiction was not raised in that case: Amaiu v Kaupa (2019) SC1843.

10. I heard the submissions on jurisdiction and proceeded to hear the substantive application.

11. Having considered the matter, it is my view that I have jurisdiction to hear the application sitting as a single judge of the Supreme Court pursuant to Order 5 Rule 37.

12. Order 3 of the Supreme Court Rules is concerned with the original jurisdiction of the Supreme Court and is not applicable in this case. As stated by Kapi DCJ (as he then was) in Application for Review Pursuant to Section 155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539 (emphasis added):

“In the present matter, the original jurisdiction in question is a dispute relating to the result of the national elections. The original jurisdiction in these matters is granted to the National Court under the Organic Law on National and Local Level Government Elections. This matter has only come before the Supreme Court by way of review under s. 155 (2) (b). This does not come within the meaning of the original jurisdiction of the Supreme Court under O 3 of Supreme Court Rules. Therefore this order is not applicable.”

13. It is also clear from Viviso Seravo that “unless the power of review and all related matters connected with a review is given to a single judge of the Supreme Court, all such matters must be dealt with by the full bench of the Supreme Court”: Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission, unreported, 17th July 1998, SC562.

14. Order 5 Rule 37 provides (emphasis added):

Sub-Division 11. — Dismissal, etc. of Application

37. Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-

(a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant; or

(b) where the defaulting party is the respondent, set down the application for leave or application for review for an expedited hearing; or

(c) fix a time peremptorily for the doing of an act under these Rules and may make such orders as it deems just.

15. Pursuant to Order 1 Rule 7(1) ‘“Court” means the full court of the Supreme Court of Justice”’ and ‘“Judge” means a single Judge of the Supreme Court of Justice”’.

16. In my view Order 5 Rule 37 is clear. In particular, it provides that the “Court or a judge may” not only dismiss the “application for leave or application for review” but may do so “on his own motion”, “at any stage of the proceeding”. There is no ambiguity here.

17. Nor does it conflict with Order 5 Rule 6 regarding interlocutory orders:

“A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.”

18. A decision to dismiss whilst perhaps determinative of the review is not determinative of the “issues under review”.

19. As the Supreme Court said in Vele v Parkop (2008) SC945 at [10]:

“The Supreme Court Election Petition Review Rules are subsidiary legislation. The same approach should be taken to their interpretation as to other legislation. If the plain meaning of the words can be applied without an absurd or impossible result, or departure from the intention of the statute discovered from a reading of the whole of the related provisions, no other aid to interpretation is required: Re Kunangel [1991] PNGLR 1; Ben Wafia v The State (2006) SC851 at [16].”

20. Neither is the result absurd nor impossible. It is in keeping with the purpose of the Election Petition Review Rules which is “to impose restrictions on the right of review, so as to establish in the shortest possible time, for the benefit of the people of an electorate, the identity of the person entitled to represent the people in and for the term of the Parliament.” Vele at [14].

21. It is perhaps with this purpose in mind that Order 5 Rule 37 of the Supreme Court Rules 2012has extended the power to “a judge” which was not available under the equivalent provision in the former Supreme Court Election Petition Review Rules 2002 (as Amended) 2007, Sub-division 12, Rule 32.

22. The special nature of election petition reviews may also explain the difference between Order 5 Rule 37 and Order 7 Rule 48, the latter of which provides that an appeal may only be dismissed for want of prosecution by “the Court”.

Application to Dismiss

23. It is not in dispute that the Applicant did not comply with the order of 14 October 2019to compile, file and serve the review book by 28 October 2019.

24. The First Respondent submits that there has been a blatant disregard of the order which was not varied nor set aside. Furthermore, that the order is consistent with the requirements of Order 5 Rule 29 which was not dispensed with. He relies on Michael Kandiu v Powes Parkop (2015) SC1597 as authority for the proposition that even substantial compliance will not cure failure to comply with mandatory requirements of the Rules. He further relies on Hami Yawari v Anderson Agiru (2008) SC948, applied in Alina v Potape (2013) SC1235, in which review applications were dismissed in each case for failure by the applicant to file the Review Book in compliance with the Rules and orders made.

25. The Applicant submits that there was no deliberate delay or failure to comply with the order. Rather, that the index is not ready to be settled yet for two reasons.

26. Firstly, it is the Applicant’s position that the Review Book should contain the transcript of the leave proceedings conducted on 16 August 2019 before Salika CJ. The Applicant submits that the transcript has become relevant and necessary since the index was initially prepared because the First Respondent now challenges the competency of the review application, and the grounds upon which he relies are the same grounds upon which he relied to challenge the competency of the leave application, which were heard and disposed of by Salika CJ.

27. Secondly, the Applicant submits that there is a related matter, SC Rev (EP) No 10 of 2019, in respect of which an application for dismissal was made before another judge on 16 October 2019 and is pending decision. It arises out of the same National Court decision the subject of these proceedings and involves the same parties, but is brought by the Second Respondent, the Electoral Commission. In the event the matter is not dismissed it should be consolidated with the present matter.

28. Furthermore, the order was obtained ex parte at the request of the First Respondent’s lawyer in circumstances where he was aware of both outstanding issues, and that the Applicant intended to make an application for adjournment of the directions hearing, yet failed to inform the judge, and obtained the orders without the issues being resolved by consent or direction by the Court.

29. The Applicant submits that this case is distinguishable from Yawari in that there has been no deliberate delay or failure to comply with the Rules. The Applicant says that he acted promptly to file an application on 24 October 2019, within the currency of the orders, seeking to set aside the orders so that the two matters can be resolved by directions. He submits that the case is also distinguishable from Alina in which the Applicant took over four months after the review was filed to order the transcript of the National Court proceedings the subject of the review.

30. Finally, the Applicant submits that if I am not minded to grant the orders setting aside the order of 14 October, I should not dismiss the application but instead fix a time for compiling, filing and serving the review book pursuant to Order 5 Rule 37(c).

31. The Second Respondent supports the Applicant’s submissions.

33. As above, it is well established that election petition reviews are special matters that must be prosecuted with due diligence and in compliance with the Rules. The Rules recognise that there may be circumstances where it is necessary to dispense with their strict compliance but any such applications must be made promptly. See Hami Yawari v. Anderson Agiru (Supra) at [9] and [10] (emphasis added).

"When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. In addition, the time limits between the various stages are short. This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament.

As the time limits to be adhered to are short, the Rules recognize that it will be necessary to dispense with their strict requirement when circumstances arise. Thus, Rule 32 allows for the court to dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance occurs. Dispensation from having to comply with a particular Rule however, must be obtained.”
34. It is also well settled that the power to dismiss is a discretionary one: Miki Kaeok v. Rimbink Pato (2005) SC877; approved Yawari:

“In other words, for the court to exercise this discretionary power, the First Respondent, who is supported by the Second Respondent, must show that:

a) the Applicant has not done an act required to be done by or under the rules; or

b) the Applicant has not prosecuted his application for review with due diligence.”

35. It is not in dispute that there is a related proceeding arising out of the same National Court decision pending determination on an application for dismissal before another judge of the Supreme Court, SC Rev (EP) No 10 of 2019.

36. It is also not in dispute that the First Respondent filed a notice of objection to the competency of the review application on 1 October on the basis that it fails to state briefly but specifically the grounds relied upon in the review pursuant to Order 5 Rule 19(c). Nor that, subject to this decision, the objection will be heard at or before the hearing of the substantive review.

37. There is a dispute between the parties as to whether the transcript of the leave proceedings is relevant or necessary for the purposes of the Review book pursuant to Order 5 Rule 30(h). The First Respondent says that it isn’t because he has not filed any objection to the leave application, and further that the objection to competency of the leave application although moved was not considered and deliberated on at the leave stage. The Applicant disagrees and says that it is relevant because the grounds raised in the notice of objection to competency of the leave application were deliberated on and dismissed by Salika CJ in granting leave. That is not a matter necessary for me to decide.

38. I do accept on the affidavit evidence that the Applicant’s lawyers ordered the transcript of the leave proceedings on 11 October 2019, and in advance of the scheduled directions hearing on 14 October. The transcript is yet to be provided.

39. It is not in dispute that the Applicant’s lawyers and the First Respondents lawyers appeared before Hartshorn J on 14 October 2019. The Second Respondent did not appear. There was a listing error. The current matter was not listed but the related matter, SC Rev (EP) No 10 of 2019, was listed instead. Hartshorn J advised the parties that if they brought the file in to court he would deal with it.

40. According to the lawyer who appeared for the Applicant that day, he advised the First Respondent’s lawyer that he had a matter before another judge. He asked the Applicant’s lawyer to call him if the matter was brought in so that he could attend but told him that in any event the Index to the Review Book could not be settled until a later date, preferably 21 October 2019.He left to attend the other matter.

41. According to the First Respondent’s lawyer he had the file brought in by Registry. I accept that he waited from 10: 40 am to almost 12 pm before mentioning the matter again. As he could not locate the lawyers for the Applicant or the Second Respondent he felt he had no choice but to pursue his clients instructions by requesting the endorsement of the Amended Draft Index to the Review Book. Hartshorn J endorsed the draft index to the review book and ordered the Applicant to compile, file and serve the Review Book by 28 October 2019.The First Respondent’s lawyer advised the Applicant’s lawyers later the same day.

42. At the risk of repetition, it has been made clear many times that election petition reviews are special matters. It is the Applicant’s responsibility to actively pursue the matter and ensure compliance with all timelines under the Rules, including those for directions hearings, and the filing of the Review Book. The matter was listed for directions and both the Applicant and the First Respondent were in attendance. The directions judge indicated that he would deal with the matter. The Applicant should have retrieved the file from Registry and raised the matters about the index and consolidation with the directions judge that day. Those are among the very matters that are to be “considered and determined” by the judge at the directions hearing pursuant to Order 5 Rule 28, not by the Applicant.

43. It is also clear, however, that there is some significant dispute between the parties about what happened that morning and the position regarding the index.

44. Nevertheless, to my mind the critical issue is that the First Respondent’s Counsel did not advise the directions judge that the parties had not settled the draft index to the review book. He doesn’t suggest otherwise in his affidavit. I am also satisfied that the First Respondent’s lawyer had been aware of the Applicant’s intention to include a transcript of the leave proceedings in the review book since 7 October 2019 and that this, together with the issue of consolidation, were the reasons why the index was not settled on that day and the directions hearing adjourned to 14 October 2019.He himself says that he told the Applicant’s lawyer he objected to the inclusion of the transcript as early as 7 October 2019.

45. I am not suggesting that the First Respondent’s counsel was under any obligation to agree to the proposed amendment of the index to the review book, the inclusion of the transcript, or the proposed adjournment of the directions hearing. But he was under an obligation to inform the Court that the index had not been agreed to by the parties and the reasons for that. Only then was it appropriate for him to put his client’s position and seek appropriate orders. He may have obtained the orders he sought. That is beside the point, however. Whether it was intentional or not, the effect of failing to do so was to mislead the Court. This is a serious matter, which I will return to below.

46. Furthermore, the order sought regarding the index to the review book should not have been for its endorsement but for the parties to attend with the Registrar who shall settle the index under Order 5 Rule 30(d). The effect of the First Respondent’s request for endorsement was to short circuit that process.

APPLICANT’S VARIATION APPLICATION

47. The Applicant seeks the following directions and/or orders:

“3. Pursuant to Order 11 Order 3 Rule 2(a) and Section 155(4) of the Constitution a direction that the ex parte Orders made on 14 October 2019 by His Honour Hartshorn J sitting as a single Supreme Court judge:

(l) does not come within the terms “direction or order” of Order 11 Rule 25 of the Supreme Court Rules and that a single Supreme Court judge including His Honour Justice Hartshorn can deal with itto set aside or vary as may therefore set aside or vary it as sought in paragraphs 4 and 5 herein;
(m) If the ex parte order is construed as a “direction or order” within the meaning of Order 11 Rule 25, an order that the Applicant file and serve a Notice of Motion pursuant to Order 11 Rule 25 of the Supreme Court Rules (As Amended) 2012 for a full bench hearing.

4.Pursuant to Order 11 Rule 9 of the Supreme Court Rules (As Amended) and Section 185 and Section 155(4) of the Constitution a direction that the Court Order dated 14 October 2019, and in particular the endorsement of the Amended Draft Index and compilation, filing and service of the Review Book by 28 October 2019 be set aside or varied.

5. Pursuant to Order 11 Rule 9 and Sections 185 and 155(4) of the Constitution a direction that the Directions hearing be adjourned to the Registry pending decision of Hartshorn J in SC Rev No 10 of 2019 and the availability of the Transcript of hearing on 16 August 2019 in this proceeding.

6.Such other orders as the Court considers appropriate.”

48. The application except for those parts underlined was made on 24 October 2019 and prior to the time for complying with the order. The Applicant subsequently amended his application on 14 November in the terms underlined, without objection.

49. In summary, the Applicant submits that in the absence of specific provisions in the Supreme Court Rules to set aside or vary an ex parte order, a single judge of the Supreme Court has the jurisdiction to set aside or vary the order of 14 October 2019 pursuant to Order 11 Rule 9 and Sections 185 and 155(4) of the Constitution.

50. Section 185 of the Constitution provides:

“185. Lack of procedural provision.

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”
51. Order 11 Rule 9 provides:

“Where a person desires to take any step in proceedings under the rules and the manner and form of the procedure is not prescribed, the person may apply to a Judge for directions.”.

52. Further, assuming that I am satisfied that I have jurisdiction, I should apply the principles outlined in Salamo Elema, Insurance Commissioner v Pacific MMI Insurance Ltd (2007) SC1321 and set aside the orders.

53. In particular, he seeks to have the order endorsing the index to the review book, and the order requiring compilation, filing and service of the review book by 28 October 2019 set aside or varied. Further, that the directions hearing be adjourned to the Registry pending the decision in the related matter and the availability of the transcript of 16 August 2019.

54. In the event that I find that I do not have jurisdiction to set aside or vary the order, he seeks directions pursuant to Order 3 Rule 2(a) that an ex parte order is not an “order” for the purposes of Order 11 Rule 25. He argues that Order 11 Rule 25 does not apply in this case because the order of 14 October 2019 was made ex parte, and did not follow a contested hearing, unlike the cases of James Marape v Peter O’Neill & Ors (2015) SC1458 and James Marape v Peter O’Neill & Ors (2016) SC1487 in which it has been applied.

55. Alternatively, if it is an “order” within the terms of Order 11 Rule 25, an order requiring him to file a notice of motion pursuant to Order 11 Rule 25.Hesubmits that I should exercise my power pursuant to Order 3 Rule (2)(a) to prevent prejudice to him in circumstances where he wants to ensure that all relevant documents and issues of consolidation are resolved before the parties proceed. This would be required because the time for applying under Order 11 Rule 25 lapsed on 4 November.

56. The Second Respondent supports the Applicant’s application.

57. The First Respondent submits that a judge of the Supreme Court has no power to vary, discharge or set aside the orders of another Supreme Court judge and that the procedure is provided under the Rules and the Applicant must proceed via Order 11 Rules 25 and 26. He relies on Mann v Kumbu (2019) SC1799 as authority that only the full court can set aside, vary or discharge an order or direction of a single judge.

58. As discussed above, Order 3 Rule 2(a) has no application here given the nature of the proceedings. In so far as the orders are sought pursuant to Order 3 Rule 2(a) of the variation application they are therefore misconceived.

59. Furthermore, a single judge of the Supreme Court only has the power that is provided to him or her with respect to reviews: Viviso Seravo (supra).

60. Despite the broad terms of Order 5 Rule 6 to make interlocutory orders, it does not provide powers to vary or discharge the orders of a single judge.

61. It is also my view that the procedure by which the Applicant seeks now to set aside or vary the time for filing the review book is prescribed in Order 5 Rule 39 which provides for dispensation. It states that (emphasis added):

“The Court or a judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”
62. The “requirement of” Order 5 Rule 29 is that the Review book shall be filed and served within 14 days of the directions hearing. The order that was made on 14 October 2019 for compilation, filing and service of the Review book was made consistent with that requirement. Dispensation could therefore have been sought from the requirement under Order 5 Rule 29.

63. Alternatively, and as to the order endorsing the review book, the procedure for setting aside or varying that order is prescribed in Order 11 Rule 25.

64. Order 11 Rules 25and 26 provide that (emphasis added):

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.”
65. Order 11 Rule 25 allows any party who is “dissatisfied” with a direction or order of a single judge of the Supreme Court to apply to the full court to vary or discharge the order or to “make such order as appears just”: Reference by the Ombudsman Commission Pursuant to Constitution, S 19(1) (2019) SC1821.

66. The Court in that case held that a dissatisfied party may make an application under Order 11, Rule 25 either by notice of motion in accordance with Order 11, Rule 26 (in which case a notice of motion is brought under Order 10) or by application under Order 13, Rule 15 (in which case the application is made in Form 4 for the purpose of obtaining an interlocutory order): see Reference by the Ombudsman Commission Pursuant to Constitution, S 19(1) at [11].

67. Furthermore, the application under Order 11 Rule 25 and Order 13 Rule 15 is not an appeal against or a review of the order of the single judge, rather a hearing de novo on the merits, affirming, discharging or varying the earlier order: Reference by the Ombudsman Commission Pursuant to Constitution, S 19(1) at [14].

68. As the Supreme Court made clear in Mann:

“The statement of the majority in the ToRobert case at [8] that there is no right of appeal from a single Judge to a Supreme Court is not an absolute proposition given the changes to the Rules since that judgement, and in any case, the proposition is more fully stated in Powi v The State (supra) at [24] as follows: “...regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by, any other law, such as the Supreme Court Act itself.” (our underlining). We consider the Supreme Court Rules to be one such law as it is a subordinate legislation to the Supreme Court Act.”
69. Pursuant to Order 11 Rule 1, Order 11 Rule 25 “applies to all matters brought under these rules unless in these rules, the contrary intention appears”, or in other words “subject to any express provision to the contrary”: supra at [10].There is no such provision to the contrary that precludes the rule applying in the case of election reviews.

70. Nor is there to my mind any reason for finding that Order 11 Rule 25 does not apply to an order or direction made ex parte. On the face of it, Order 11 Rule 25 applies to “a” or any “direction or order given by a judge”. To exclude ex parte orders would be to read in additional words.

71. It is also my view that the directions hearing has already been held, albeit in the absence of the Applicant’s lawyer.

72. Nor am I minded to order the Applicant to file a notice of motion pursuant to Order 11 Rule 25. The Applicant has been aware of the order of 14 October 2019 since that date. He was dissatisfied with the order and could have applied pursuant to Order 11 Rule 25 within 21 days of the making of the order. If he was unable to comply with the requirement to do so within 21 days, he should have sought dispensation via Order 5 Rule 39. He did not.

73. For the above reasons the Applicant’s variation application is refused.

CONCLUSION

74. Returning to the dismissal application.

75. Whilst even substantial compliance may not cure failure to comply with mandatory requirements, the power to dismiss remains a discretionary one. In all of the circumstances of this case I am not satisfied that the Applicant has failed to prosecute the review with due diligence. Whilst the Applicant has failed to comply with the order of 14 October 2019 to compile, file and serve the Review book by 28 October 2019, I am satisfied that his explanations are reasonable. I am satisfied that there is a genuine dispute about the relevance or necessity of the transcript. The Applicant’s variation application whilst unsuccessful was filed within a reasonable time. Moreover, having regard to the circumstances in which the order was obtained it would neither be just nor in the interests of justice for the First Respondent to benefit now such that the entire review is dismissed.

76. I have taken into consideration the First Respondent’s submission that as the successful party on 18 June 2019 he is prejudiced whilst the review matter remains pending. In my view he will not be unduly prejudiced having regard to the above. In addition, leave has been granted for the substantive review, and it is not in dispute that the review is at an advanced stage. Furthermore, I intend to make orders that will ensure that the matter proceeds expeditiously.

77. Order 5 Rule 37(c) gives me the power having refused the First Respondent’s application for dismissal to “fix a time peremptorily for the doing of an act under these Rules and may make such orders as it deems just”.

78. Accordingly, for the reasons stated above, the First Respondent’s application to dismiss the Applicant’s application for review pursuant to Order 5 Rule 37(a) is refused. In my view he should bear the costs of these proceedings.

79. Finally, I note here that there has been no order on the issue of consolidation in this matter to date. Whilst it might be sensible and convenient to have one review book in the normal course, whether or not the two reviews are heard together is quite a separate matter. Consolidation remains a matter for consideration at the pre-hearing conference to be held under Order 5 Rule 33 but that should not delay the compilation, filing and service of the review book.

Orders

80. I make the following orders:

(1) The First Respondent’s application to dismiss the substantive review is refused.
(2) The Applicant’s variation application is dismissed.
(3) The Applicant is to compile, file and serve the review book by close of business Friday, 6 December 2019, in accordance with the index endorsed on 14 October 2019.
(4) The review book is to be certified as correct by all parties by close of business, Friday, 13 December 2019.
(5) The matter is remitted to the Registry for listing for pre-hearing conference the week commencing Monday, 16 December 2019.
(6) The First Respondent shall pay the Applicant and Second Respondent’s costs of and incidental to both applications.

_______________________________________________________________
Gileng & Co: Lawyers for the Applicant
Paul Othas Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent