Simitab v Isifu [2023] PGSC 172; SC2524 (19 June 2023)

SC2524

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 25 OF 2023

APPLICATION UNDER S. 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:
JIM SIMITAB
Applicant

AND:
HON. KEVIN ISIFU
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 13^th & 19^th June

SUPREME COUORT – practice and procedure - Application for leave to review filed out of time – Application for dispensation Order 5 Rule 39 Supreme Court Rules

Cases Cited:
Vele v. Parkop (2008) SC945
Waieng v. Kulang (2013) SC1258

Counsel:
Mr. S. Ranewa, for the Applicant
Mr. J. Kiliwe, for the Second Respondent

19^th June 2023

1. HARTSHORN J: This is a decision on a contested application which seeks dispensation of the requirements of Order 5 Rule 14 Supreme Court Rules. The requirements sought to be dispensed with are the time prescribed for the filing and serving of an application for leave to review and the requirement that an application seeking an extension of time within which an application for leave to review shall be filed and served be filed within the requisite 14 day period. The application for dispensation is made pursuant to Order 5 Rule 39 Supreme Court Rules and the inherent powers of the Court.

Background

2. The applicant Jim Simitab was the runner-up in the election for the Wewak Open Electorate in the 2022 National General Election. The winner was the first respondent Kevin Isifu. Mr. Simitab filed an election petition on 26^th September 2022 disputing the election of Mr. Isifu. After the election petition was filed and served, Mr. Isifu died. Justice Kariko on 28^th April 2023, dismissed the election petition of Mr. Simitab upon an application by the Electoral Commission.

3. Mr. Simitab filed this application for leave to review on 18^th May 2023, six days after the 14 day requirement of Order 5 Rule 14 Supreme Court Rules.

Consideration

4. Order 5 Rule 14 Supreme Court Rules is as follows:

“14. The application for leave shall be filed and served within 14 days after the decision sought to be reviewed or within such time is extended by a Judge, upon application filed within that 14-day period.”

5. Order 5 Rule 39 Supreme Court Rules is as follows:

“39. 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.”

6. Mr. Simitab submits that as Order 5 Rule 39 permits dispensation with compliance with any of the requirements of the Rules either before or after the occasion for compliance occurs, he may be granted the dispensation sought. Reliance is placed upon the judgment of the Full Court in Vele v. Parkop (2008) SC945. In Vele v. Parkop (supra), the Court amongst others held:

“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.”

Rule 5/10/32 is now Order 5 Rule 39 Supreme Court Rules.

7. In Vele v. Parkop (supra), Mr. Vele had filed his application for leave to review in time but had not made the application within 14 days, which was a requirement of Order 5 Rule 14 then.

8. As to the reliance upon Vele v. Parkop (supra) where the Court said that the application was rendered incompetent by the Rules, subject to any application under Rule 5/10/32, in my view the Court was referring to an application to dispense with the requirements of the Rules concerning service and moving the application in the context of an application for leave to review which had been filed within time.

9. An originating process document such as an application for leave to review cannot be filed out of time as the period of time in which it should have been filed will have expired. To extend or dispense with the time in which an originating process must be filed, by necessity, such an application must be made in another proceeding.

10. Reliance is also placed on Waieng v. Kulang (2013) SC1258, a judgment of Injia CJ (as he then was). In that case, it was discovered that the application for leave to review had been filed one day out of time. Injia CJ at [7] stated that the application for leave to review, “is clearly incompetent” and at [11], “An order for dispensation even if granted under O5 R39 would not cure or revive an invalid application by reason of late filing.”

11. To the extent that the comments of Injia CJ in [12] are relied upon for the proposition that an application to extend time, or to dispense with the time for filing an application for leave to review, may be made in an application for leave to review which has been filed out of time, I am not of the view that His Honour’s comments may be so interpreted, but if they may be, then I respectfully disagree with such comments for the reasons already stated.

12. In this instance the application for leave to review was not filed in time. It was filed six days out of time. There was no order in place granting an extension of time in which to file the application for leave to review or dispensing with the 14 day period in which to file the application for leave to review. As the application for leave to review was filed out of time it is incompetent for the failure to comply with Order 5 Rule 14 which is mandatory. As the application for leave to review is incompetent there is no originating process commencing the proceeding. It is void ab initio. As there is no proceeding, there is no proceeding in which the interlocutory application seeking dispensation could have been filed and so the application seeking dispensation is incompetent. Consequently, the application for leave to review including the application for dispensation should be dismissed.

13. If, however, the application for dispensation is considered, as referred to, the application for leave to review was filed six days out of time. No application for an extension of time in which to file the application for leave to review or to dispense with the requirements of Order 5 Rule 14 had been filed at the time that the requisite 14 days period expired. As the 14 day period in which to file an application for leave to review had expired, there was no period of time still running which could be extended. As to reliance upon Order 5 Rule 39, notwithstanding that the Court may dispense after the occasion for compliance occurs, the requisite 14 day period has already occurred and so there is no longer anything to be dispensed with. Consequently, the application for dispensation should be dismissed. Given the above it is not necessary to consider the other submissions of counsel.

Orders

a) The application for dispensation and extension of time filed 7^th June 2023 of the applicant is dismissed.

b) The application for leave to review filed 18^th May 2023 is dismissed pursuant to Order 5 Rule 37(a) Supreme Court Rules.

c) The applicant shall pay the costs of the second respondent of and incidental to the said application for leave to review.
_____________________________________________________________
Kawat Lawyers: Lawyers for the Applicant
Palem Onom Lawyers: Lawyers for the Second Respondent