Simon v Kapris [2023] PGSC 50; SC2395 (15 May 2023)

SC2395

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 18 OF 2023

JOHN SIMON
Applicant

V

GABRIEL LENNY KAPRIS
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 12^th, 15^th May

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to dismiss election petition – Constitution, s 155(2)(b).

The National Court dismissed, by delivery of oral judgment, an election petition brought by the applicant, who then applied to the Supreme Court for leave to review the decision of the National Court. He argued that the National Court erred in two respects. First, by denying him natural justice by undertaking to provide within a short time, a written judgment, giving further reasons for decision, but failing to do so. Secondly, by misinterpreting s 19 of the Organic Law on National and Local-level Government Elections and failing to find that all nominations of candidates for the election were accepted by a person who was not at that time a duly appointed returning officer, thereby resulting in the entire election being unconstitutional and void ab initio. The applicant argued that a review of the National Court decision to dismiss the petition was warranted.

Held:

(1) To be granted leave to review a decision of the National Court on an election petition, an applicant must show: (a)(i) insofar as the application relates to a point of law, that it is an important point, which is not without merit or (ii) insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2) There was no obligation on the trial judge to produce a written judgment. Though his Honour had not produced a written judgment after undertaking to do so, it was apparent from the extensive and considered reasons for decision provided in the oral judgment, that the chances of different and undisclosed reasons appearing in a written judgment were remote. There was no arguable case that the applicant had been denied natural justice.

(3) His Honour considered the evidence of a gazetted change in appointment of the returning officer for the election, and took into account that the returning officer who had originally been appointed was not provided with a copy of the National Gazette that gave notice of the change and the new returning officer had no interest in assuming the duties of returning officer immediately. His Honour properly formed the view that the apparent change in returning officer was inconsequential. There was no arguable case of error in interpretation or application of s 19 of the Organic Law.

(4) Neither of the proposed grounds of review raised points of law or fact that were important and meritorious. There was no injustice, and the circumstances were not exceptional. Leave was refused.

Cases Cited

The following cases are cited in the judgment:

Agiru v Makiba (2023) SC2366
Amet v Yama [2010] 2 PNGLR 87
Pundari v Yakos (2023) SC2345
South Pacific Post Ltd v Tame (2020) SC2042

Counsel

P Tabuchi & K Kulip, for the Applicant
S Ranewa, for the First Respondent
R William, for the Second Respondent
15^th May, 2023

1. CANNINGS J: On 28 February 2023 the National Court, constituted by Justice Batari, dismissed an election petition, EP 9 of 2022, brought by John Simon, which challenged the election of Gabriel Lenny Kapris as member for Maprik Open in the 2022 general election. His Honour delivered an oral judgment and indicated that a written judgment would be provided in a short time. However, two months later, there is no written judgment.

2. Mr Simon has applied to the Supreme Court for leave to review the decision of the National Court under s 155(2)(b) of the Constitution. He argues that the National Court erred in two respects.

3. First, by denying him natural justice by undertaking to provide within a short time, a written judgment, giving further reasons for his decision, but failing to do so, thus making it unclear whether all the reasons for dismissing the petition were disclosed in the oral judgment.

4. Secondly, by misinterpreting s 19 (returning officers) of the Organic Law on National and Local-level Government Elections and failing to find that all nominations of candidates for the election were accepted by a person who was not at that time a duly appointed returning officer, thereby resulting in the entire election being unconstitutional and void ab initio.

5. The applicant argues that the proposed grounds of review raise important and meritorious points of mixed fact and law, that the errors of the primary judge resulted in an injustice, that the circumstances were exceptional, and that a review of the National Court decision to dismiss the petition is warranted.

6. Mr Kapris is the first respondent to the application. The Electoral Commission is second respondent. They argue that the proposed grounds of review are meritless and the leave application should be refused.

CRITERIA

7. There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in two cases, Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366. In each case his Honour refused leave for review of decisions of the National Court in an election petition.

8. His Honour spelt out the criteria for granting leave. The applicant must show:

1. insofar as the application relates to a point of law, that it is an important point, which is not without merit or insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and
   
2. there are exceptional circumstances; and
   
3. it is in the interests of justice to grant leave.
   

9. I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice.

10. The criteria need to be strict, to give effect to two principles inherent in the Organic Law. First, election petitions are supposed to be simple and straightforward cases, quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

11. Secondly, decisions of the National Court are meant to be final, not the beginning of a seemingly endless cycle of litigation. This is apparent from s 220 (decision to be final) of the Organic Law, which states:

A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

12. The effect of s 220 is, of course, qualified by s 155(2)(b) of the Constitution, which states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

13. Division 5.2 of the Supreme Court Rules 2012 regulates the hearing of applications for review under s 155(2)(b). Rule 8 provides an application for an election petition review “lies to the Court with leave only”. Rule 16 provides that the application for leave shall be made before a Judge. Rule 17 provides that a decision to grant or refuse leave “is final and shall not be subject to further review”.

APPLYING THE CRITERIA

14. I first address the question of whether either or both proposed grounds of review are meritorious and raise an important point of law or fact.

Denial of natural justice by failing to produce written judgment

15. Mr Tabuchi, for the applicant, was careful in the way he framed this argument. He does not contend that the trial judge was under any general obligation to produce a written judgment. His contention was that in the circumstances prevailing here, where the trial judge undertook to issue a written judgment in a “short time” but failed to do so within two months after the oral judgment, it was unclear whether all of the reasons for dismissing the petition were delivered on 28 February 2023. He submitted that the transcript shows that his Honour stated on several occasions that further reasons for dismissing the petition would be set out in the written judgment. The reasonable inference to draw from those statements is that not all reasons for dismissal of the petition were disclosed on 28 February 2023, Mr Tabuchi submitted.

16. I agree that his Honour was under no general obligation to produce a written judgment. There is no requirement to that effect in the National Court Rules 1983 or the Election Petition Rules 2017 or any other Rules of Court. There is to some extent an expectation that a written judgment will be provided, arising from Order 5 rule 11 of the Supreme Court Rules 2012, which states:

The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.

17. However, such an expectation still does not give rise to an obligation to issue a written judgment. It simply reflects the common practice that in most election petition cases, there is a written judgment. That there is no general obligation on any judge to provide a written judgment in any case has been confirmed by the decisions of the Supreme Court in Amet v Yama [2010] 2 PNGLR 87 and South Pacific Post Ltd v Tame (2020) SC2042.

18. The facts in Amet v Yama were like the present case. The National Court upheld an election petition via an oral judgment in which the trial judge indicated that he would provide a written judgment a short time later; but no written judgment materialised. An application for leave was granted and in their ruling on the substantive review, the majority of the Supreme Court (Salika DCJ and Batari J) observed:

It is also clear, there is nothing lost to the hearing of this review because the Court is entitled to make a decision based on the findings on the face of the records. Unavailability of a written judgment was and is not a bar to the hearing of this review application.

19. Their Honours noted that the trial judge had given detailed oral reasons for decision, and this made it easy for both sides of the case to frame their arguments before the Supreme Court. The same scenario applies here. The transcript of 28 February 2023 reveals that his Honour delivered the oral judgment from 2.49 pm to 4.44 pm: one hour and 55 minutes. The reasons for dismissing the petition were detailed and extensive, and provided, in my view, ample scope for a party aggrieved by the decision, to marshal arguments of errors of law or fact to make out a case for setting aside the decision.

20. It is significant that the applicant has, apart from the natural justice argument, only put one proposed ground of review to the court in support of his leave application. That is a factor that militates against the granting of leave.

21. The prospects of ‘undisclosed’ reasons for dismissing the petition being disclosed if the trial judge had issued a written judgment, providing the applicant with further grounds on which to seek leave to review the decision, in my view, are remote.

22. His Honour explained that the petition contained six grounds for challenging the result of the election. Nos 3 and 4 had been dismissed after upholding a no-case submission. The oral judgment was concerned with four grounds: 1, 2, 5 and 6. His Honour said that he would spend most time addressing ground 1, which he did, and he dismissed it. His Honour gave concise reasons for dismissing the other grounds.

23. On any objective view, his Honour gave extensive, clear and coherent reasons for dismissing the petition. There is no arguable case that the applicant has been denied natural justice.

Misinterpretation of s 19 of the Organic Law

24. Ground 1 of the petition centred on the argument that nominations for the election were accepted on 19 May 2022 by a person – Vincent Kaugen – who was not the duly appointed returning officer. This was argued to be contrary to ss 19 (returning officers) and 86(2)(a) (to whom nomination made) of the Organic Law, resulting in the entire election being unconstitutional and void ab initio.

25. Section 19(1) states:

The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.

26. Section 86(2)(a) states:

Nominations may be made at any time after the issue of the writ and ... in the case of a nomination made to the Returning Officer—before the hour of nomination

27. It is apparent from the trial judge’s oral judgment that there was a substantial body of evidence and argument on this ground of the petition. It was an agreed fact that the appointment of Vincent Kaugen as returning officer was notified in National Gazette No G347 of 6 May 2022, and that in National Gazette No G386 of 18 May 2022, Mr Kaugen’s appointment was arguably revoked and Godfrey Sokomia was appointed as returning officer. It was also agreed that in fact Mr Kaugen was the person who accepted the nominations of candidates.

28. His Honour ruled that this part of ground 1 of the petition was poorly pleaded. As to the merits, his Honour considered that it made good administrative sense for Mr Kaugen to continue to perform the role of returning officer while uncertainties surrounded the change in returning officer and there had been no formal notification or service of the gazettal notice revoking the appointment of Mr Kaugen and replacing him with Mr Sokomia. Both gave evidence at the trial that they were dealing with rumours in the early stages of the nomination process, and the gazettal notice was not received until the end of or after the nomination period.

29. His Honour also took into account the evidence of Mr Kaugen that he was advised by the Election Commission’s provincial election manager to accept the nominations, despite the uncertainty as to his position and for the convenience of minimising disruptions to the election. Further, there was evidence that Mr Sokomia could not take up the returning officer position due to threats. His Honour held that the administrative decision to allow Mr Kaugen to accept nominations was necessary to suppress the threats and to ensure that the nomination process was not delayed.

30. It is apparent that his Honour was fully aware of s 19(1) of the Organic Law and the argument that Mr Kaugen had no authority to accept nominations. However, his Honour found that the apparent change in returning officer had no effect on constitutionality of the election. In my view, his Honour made no error of fact or law drawing that conclusion.

31. Quite apart from that, if it were found that Mr Kaugen was not the duly appointed returning officer at the time of acceptance of nominations, it would not necessarily follow that the election would be rendered unconstitutional and null and void. I see no provision of the Organic Law that would require such a conclusion. There would need to be persuasive argument that such a simple error, made in very confusing circumstances and in good faith, and without evidence that the error had any effect on the result of the election, was so serious as to render the election, otherwise conducted in accordance with the Organic Law, a nullity.

32. There is no arguable case of error in interpretation or application of s 19 of the Organic Law.

Conclusion

33. Neither of the proposed grounds of review raise points of law or fact that are important and meritorious. There is no injustice apparent. The circumstances are unusual, but not exceptional. The interests of justice do not require the granting of leave. Leave must be refused.

ORDER

(1) The application for leave, filed 7 April 2023, to apply for review of the decision of the National Court of 28 February 2023 in EP No 9 of 2022, is refused.

(2) The applicant shall pay the respondents’ costs of the application on a party-party basis, which shall if not agreed be taxed.

(3) The file is closed.

___________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent