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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO 11 OF 2019
LUKE ALFRED MANASE
Applicant
V
DON POMB POLYE
First Respondent
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Kirriwom J, Cannings J, Yagi J
2020: 21st & 22nd July
PRACTICE AND PROCEDURE –appeal, under Order 11, Rule 25 Supreme Court Rules, from decision of single judge of Supreme Court to grant leave for review under – Constitution, s 155(2)(b) – review of decisions of National Court in election petition– objection to competency of Order 11, Rule 25 appeal – whether requirements of Rules re time for filing and service of notice complied with – whether there can be an appeal against granting of leave in election petition review – Supreme Court Rules, Division 5.2 (election petition reviews – Order 5, Rule 17.
The applicant in an application under s 155(2)(b) of the Constitution to review decisions of the National Court on an election petition, objected, on eight grounds, to the competency of an appeal against the decision of a single Judge of the Supreme Court, to grant leave to make the application: (1) written submissions made before the Judge were not annexed to the appeal as required by the Supreme Court Rules; (2) the appeal was not served within 21 days after the decision appealed from, as required by the Rules; (3) an application to amend the appeal was not filed within 21 days after the decision appealed from, as required by the Rules; (4) there was no application for an extension of time in which to serve the appeal; (5) there was no application to dispense with the requirements of the Rules as to service; (6) an order of the Court that the amended appeal be filed and served within five days after receipt of a transcript, was not complied with; (7)there was no application to extend the time set by the Court for filing and service of the amended appeal; (8) Order 5, Rule 17 of the Supreme Court Rules provides that there can be no review of a decision of a single Judge of the Supreme Court to grant leave.
Held:
(1) Ground 1 rejected as it was not necessary to include written submissions as a transcript of proceedings before the single Judge was included in the notice of motion instituting the appeal.
(2) Ground 2 rejected as the appeal was amended with leave of the Court and the amended appeal was served within 21 days.
(3) Ground 3 rejected as the Rules do not require an application to amend an appeal to be filed within any particular time.
(4) Ground 4 rejected as the amended appeal was served within time, making an application to extend the time for service unnecessary.
(5) Ground 5 rejected as the amended appeal was served within time, making an application to dispense with the requirements of the Rules unnecessary.
(6) Ground 6 rejected as, though the amended appeal was filed and served four days later than the time set by the Court, that was not a breach of an order that affected the jurisdiction of the Court.
(7) Ground 7 rejected as, though there was no application to extend the time set by the Court for filing and serving the amended appeal, and there a breach of an order of the Court, it did not affect the jurisdiction of the Court.
(8) Ground 8 upheld as Order 5, Rule 17 of the Supreme Court Rules expressly provides that “a decision to grant or a refusal to grant review is final and shall not be subject to further review”.
(9) Though only one of eight grounds of objection was upheld, the ground upheld raised a matter demonstrating that the Court had no jurisdiction to entertain the appeal. The appeal was incompetent and was dismissed.
(10) As to costs, the applicant ought to have filed a notice of objection to competency within 14 days after service of the original appeal, relying on ground 8. The parties were ordered to bear their own costs.
Cases Cited
The following cases are cited in the judgment:
Manase v Polye & Electoral Commission (2019) SC1854
Polye v Manase & Electoral Commission (2018) N7555
Polye v Manase & Electoral Commission (2018) N7489
Polye v Manase & Electoral Commission, EP No 73 of 2017, 04.07.19, unreported
OBJECTION
This was an objection to competency of an appeal to the Full Court of the Supreme Court from an order of a single Judge of the Supreme Court, granting leave for an application for review under s 155(2)(b) of the Constitution.
Counsel
C Copland & E Kulai, for the Applicant
M Kipa, for the First Respondent
S Ranewa, for the Second Respondent
22nd July, 2020
1. BY THE COURT: This is a ruling on an objection to competency. The objection is made by the applicant, Luke Alfred Manase (the applicant), to the competency of two notices of motion filed by Don Pomb Polye (the first respondent).
2. Mr Manase was the successful candidate in the 2017 general election for the Kandep Open seat. He is the sitting member. Mr Polye was a candidate and he, in a petition addressed to the National Court, EP No 73 of 2017, disputed the election of Mr Manase.
3. The petition was heard by Justice Makail and his Honour made three significant decisions in the course of determining the petition:
4. Mr Manase applied to the Supreme Court for leave to review all three decisions under s 155(2)(b) of the Constitution. On 20 September 2019 Chief Justice Salika, sitting as a single Judge of the Supreme Court, granted leave to Mr Manase to review all three decisions.
5. On 4 October 2019 the Supreme Court (Salika CJ, Batari J, Tamate J) ordered, in the present proceedings, a stay of the National Court proceedings, which has meant that the recount has been put on hold (Manase v Polye & Electoral Commission (2019) SC1854).
6. Mr Polye was aggrieved by the granting of leave and on 11 October 2019 filed a notice of motion under Order 11, Rule 25 of the Supreme Court Rules, in the nature of an appeal to the Full Court of the Supreme Court, against the decision of Salika CJ of 20 September 2019.
7. On 9 June 2020, Cannings J, sitting as a single Judge of the Supreme Court, granted leave to Mr Polye to file an amended notice of motion regarding the appeal against the decision of Salika CJ of 20 September 2019.
8. On 19 June 2020 Mr Polye filed and served the amended notice of motion.
9. On 29 June 2020 Mr Manase filed a notice of objection to competency of Mr Polye’s notice of motion filed 11 October 2019 and his amended notice of motion filed 19 June 2020. It is that objection on which we are ruling.
GROUNDS OF OBJECTION
10. Mr Manase relies on eight grounds of objection, and is supported on all grounds by the second respondent, the Electoral Commission:
(1) written submissions made before Salika CJ were not annexed to the appeal as required by the Supreme Court Rules, Order 11, Rule 25 and Order 10, Rule 3(b)(i);
(2) the appeal was not served within 21 days after the decision appealed from, as required by Order 11, Rule 25;
(3) an application to amend the appeal was not filed within 21 days after the decision appealed from, as required by the Rules;
(4) there was no application for an extension of time in which to serve the appeal;
(5) there was no application to dispense with the requirements of the Rules as to service;
(6) the order of 9 June 2020 that the amended appeal be filed and served within five days after receipt of a transcript, was not complied with;
(7) there was no application to extend the time set by the Court for filing and service of the amended appeal;
(8) Order 5, Rule 17 of the Supreme Court Rules provides that there can be no review of a decision of a single Judge of the Supreme Court to grant leave.
DETERMINATION
11. We determine the grounds as follows:
Ground 1 is rejected as it was not necessary to include written submissions as a transcript of proceedings before the single Judge was included in the notice of motion instituting the appeal.
Ground 2 is rejected as the appeal was amended (via the amended notice of motion filed 19 June 2020) with leave of the Court and the amended appeal was served within 21 days. The effect of granting leave to file an amended notice of motion was to reset the time limits for service of the amended notice of motion.
Ground 3 is rejected as the Rules do not require an application to amend an appeal to be filed within any particular time, and any complaint about late filing was superseded by the granting of leave on 9 June 2020 to amend the appeal.
Ground 4 is rejected as the amended appeal was served within time, making an application to extend the time for service unnecessary.
Ground 5 is rejected as the amended appeal was served within time, making an application to dispense with the requirements of the Rules as to service unnecessary.
Ground 6 is rejected as, though the amended appeal was filed and served four days later than the time set by the Court, that is inconsequential as it was not a breach of an order that affected the jurisdiction of the Court and it was of no prejudice to the respondents and there was substantial compliance with the order of the Court.
Ground 7 is rejected as, though there was no application to extend the time set by the Court for filing and serving the amended appeal, and there was a breach of an order of the Court, the breach was inconsequential as it did not affect the jurisdiction of the Court and it was of no prejudice to the respondents and there was substantial compliance with the order of the Court.
Ground 8 is upheld as Order 5, Rule 17 of the Supreme Court Rules is clear and express in its effective prohibition of appeals under Order 11, Rule 25 against decisions to grant leave. Order 5, Rule 17 states:
A decision to grant or a refusal to grant review is final and shall not be subject to further review.
12. Order 5, Rule 17 is a very specific rule that is confined to a very specific category of decisions to grant or refuse leave: decisions made regarding election petition reviews. The rule is contained in Division 5.2 (election petition reviews). It overrides the general provision, Order 11, Rule 25, on which Mr Polye has relied, to file the notice of motion filed on 11 October 2019 and the amended notice of motion filed 19 June 2020. The general rule, Order 11, Rule 25, must give way to the specific rule, Order 5, Rule 17, due to Order 11, Rule 1, which provides:
The rules contained in this part apply to all matters brought under these Rules unless in these Rules, the contrary intention appears.
13. The intention of Order 11, Rule 25 is to allow a party who is dissatisfied with a direction or order of a single Judge to appeal (by notice of motion) to the Full Court. The contrary intention appears in Order 5, Rule 17: to prohibit such appeals in election petition reviews.
14. Order 5, Rule 17 makes the decision of the Chief Justice of 20 September 2019 final. There can be no appeal or review. Mr Polye’s appeal is incompetent.
CONCLUSION
15. Though only one of eight grounds of objection has been upheld, the ground upheld (No 8) raises a matter demonstrating that the Court has no jurisdiction to entertain the appeal. The appeal, constituted by the notice of motion filed on 11 October 2019 and by an amended notice of motion filed on 19 June 2020, is incompetent and must be dismissed. As to costs, the applicant ought to have filed a notice of objection to competency within 14 days after service of the original appeal, relying on ground 8, and his failure to do so has resulted in the unnecessary prolongation of the proceedings, incurrence of unnecessary costs for other parties and wastage of the Court’s time and resources. Therefore, the parties will bear their own costs.
ORDER
Judgment accordingly.
________________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Fairfax Legal: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGSC/2020/66.html