Mune v P [1996] PNGLR 125 (23 April 1996)

PNG Law Reports 1996

[1996] PNGLR 125 - SC Rev Nos 9, 10, 11, 12 of 1996; Review Pursuant to Constitution Section 155(2)(b); Application by Dick Mune; In the Matter of the Organic Law on National Elections; In the Matter of Returns for the Southern Highlands Provincial Electorate; Dick Mune v P

[1996] PNGLR 125

SC499

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B) APPLICATION BY DICK MUNE

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS; IN THE MATTER OF RETURNS FOR THE SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE, AND

DICK MUNE;

V

PAUL POTO

Waigani

Kapi DCJ Los Sakora JJ

23 April 1996

PRACTICE & PROCEDURE - Where there is a lack of provision for staying proceedings pending judicial review - The power to give ad hoc directions may be found under s 185 of the Constitution.

JUDICIAL REVIEW - s 155(2)(b) of the Constitution - Inherent power of the Supreme Court to stay proceedings pending review.

JUDICIAL REVIEW - s 155(4) of the Constitution - Power of the Supreme Court to stay proceedings pending review – Separate from Supreme Court power to review on appeal.

Facts

This is an application to the Supreme Court by the applicants to stay the hearing of an election petition in the National Court. The staying of the hearing was necessary to enable the Supreme Court to determine four separate applications for judicial review on different rulings of the National Court relating to certain aspects of the same election petition.

Held

1.       The power of judicial review under s 155(2)(b) is different to the power of review of an appeal. The exercise of the latter power is regulated by the Supreme Court Act.

2.       There is no provision for staying a proceeding pending a judicial review of this sort envisaged by s 155(2)(b). In the absence of such a provision the Court can give ad hoc directions as required by s 185 of the Constitution.

3.       The Court also has an inherent power under s 155(2)(b) and s 155(4) to make such orders as sought by the applicants.

Cases Cited

Papua New Guinea case cited

Kupil v State [1983] PNGLR 350.

Kaiabe v Balus Libe & Electoral Commission (unreported 1993).

Berghuser v Titimur [1995] PNGLR 259.

Mauga Logging Co. Ltd v South Pacific Oil Palm [1977] PNGLR 80.

Counsel

P Paraka, for the appellant.

J B Bray, for the Electoral Commission.

G J Sheppard, for the respondent.

23 April 1996

KAPI DCJ LOS SAKORA JJ: Four applications for judicial review pursuant to s 155(2)(b) of the Constitution have been filed. These applications seek to review interlocutory rulings made with regard to an election petition filed by Mr Paul Poto to dispute the election of Mr Dick Mune (hereinafter referred to as the “first applicant”) for the Southern Highlands Provincial Electorate. The petition was filed pursuant to the provisions of the Organic Law on National Elections.

It appears from the record that the petition was dismissed by an order of the National Court on 29 March, 1994. In a subsequent application, the Chief Justice vacated the order of the 29 March, 1994 and reinstated the petition. The first applicant has filed an application for judicial review against this decision (SC Rev No 10 of 1996).

In a subsequent application, the first applicant sought to strike out certain paragraphs of the petition in that they did not contain sufficient facts for the purposes of s 208(a) of the Organic Law on National Elections. On 23 November, 1994 the Chief Justice ruled that paragraphs 3(3) and 3(f) of the petition contained sufficient facts. The first applicant has filed an application for judicial review against this decision (SC Rev No 11 of 1996).

In a further application, the Electoral Commissioner (hereinafter referred to as the “second applicant”) sought to strike out grounds 3 (e) and (f) of the petition on the basis of some fresh evidence going to the question of sufficiency of evidence to support the pleadings. Mr Justice Sheehan dismissed this application on 20 March, 1996. The applicants have filed application for judicial review against this decision (SC Rev No 12 of 1996).

In April 1996 the first applicant filed application to strike out the balance of the grounds of the petition. On 10 April, 1996, Mr Justice Sheehan refused to hear the application and referred the matter to the Registrar to fix a date for the hearing of the petition. The first applicant has filed an application for judicial review against this decision (SC Rev No 9 of 1996).

Applications for judicial review are pending.

In the mean time, the applicants have made an application to stay the hearing of the petition which has been set down for hearing in the National Court on 24 April, 1996. We heard the application on 23 April, 1996 and granted stay of the trial set down before the National Court. We indicated that we would publish our reasons at a later date. This we now do.

The law is now settled that the judicial review power under s 155(2)(b) of the Constitution is a separate head of power from the power of review on an appeal. The power exercised with regard to an appeal is regulated by the provisions of the Supreme Court Act. In relation to questions of stay of proceedings pending appeal, s 5 of the Supreme Court Act provides for the manner in which a decision appealed from may be stayed pending the hearing of an appeal.

However, there is no such provision for staying proceedings pending judicial review.

Similar situations have arisen, but in relation to other issues. In Kaiabe v Libe & Electoral Commission (unreported judgment of the Supreme Court, dated 25 February, 1993) the Court there considered the lack of provision in relation to objection to competency of a judicial review. In Application by Berghuser and Titimur [1995] PNGLR 259 the Court there considered the lack of provision in respect of striking out a judicial review proceeding for want of prosecution.

Counsel for the applicants have submitted that there may be two ways of addressing the issue. First, that as the lack of provision relates to a matter of practice and procedure, the Court may give ad hoc directions to provide for the lack of provision under s 185 of the Constitution.

Secondly, they submitted that this Court has inherent jurisdiction under s 155(2)(b) of the Constitution to stay any proceedings pending the review. It was further submitted that similar stay order may be made under the terms of s 155(4) of the Constitution. They cited the following authorities for the latter proposition; Kupil v State [1983] PNGLR 350 per Bredmeyer J at p 384; Mauga Logging Company Ltd v South Pacific Oil Palm [1977] PNGLR 80 per Frost CJ at p 85.

We agree with the two propositions put to us by counsel for the applicants.

In this case we would be quite prepared to exercise our discretion under the inherent jurisdiction of the Court under s 155(2)(b) and s 155(4) of the Constitution.

The four judicial review proceedings seek to strike out the petition on the basis that it does not comply ith the mandaory requirements of s 208 and 209 of the Organic Law on National Elections. In view of this it would prejudice the rights of the applicants if the National Court went ahead with the hearing.

In considering the rights of the petitioner, we had regard to the grounds which remained to be determined in the petition, namely grounds 3(e) and (f). If he is successful on these grounds he would be declared the winner of the seat. These grounds do not raise any issue about holding a by-election for the seat. If this were so the rights of all parties could be affected if there is substantial delay and the question of a by-election coming up within 6 months before the fifth anniversary of the date fixed for the return of the writs for the next general election (see s 106 of the Constitution). However, as this option is not open in this petition, there would be no prejudice to any party.

For these reasons we stayed the proceedings in the National Court until the applications for judicial review have been deal with. We have directed that the judicial review proceedings should be dealt with speedily.

Lawyers for the applicant: Paul Paraka Lawyers.

Lawyers for the respondent: Maladinas Lawyers.

Lawyers for the Electoral Commission: Pato Lawyers.

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