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Supreme Court Election Petition Review Rules 2002 (as Amended) 2007

PAPUA NEW GUINEA

SUPREME COURT OF JUSTICE

SUPREME COURT ELECTION PETITION REVIEW RULES 2002 (AS AMENDED)
SUPREME COURT OF JUSTICE

SUPREME COURT ELECTION PETITION REVIEW RULES 2002
(as Amended)

Pursuant to Section 184 of the Constitution and all other powers thereunto enabling, the following rules of Court for regulating and prescribing the practice and procedure of the Supreme Court of Justice relating to conduct of application for review of decision of the National Court made under Part XVIII of the Organic Law on National and Local-Level Government Elections shall come into force on a date specified in the Rules.

Dated this 29th day of November 2002.

Chief Justice, Sir Mari Kapi, GCL, CBE, CSI
Deputy Chief Justice, Sir Salamo Injia, Kt.
Justice Timothy Hinchliffe, CBE
Justice Gibbs Salika, CSM, OBE
Justice Moses Jalina, OBE
Justice Bernard Sakora, CBE, CSM
Justice Mark Sevua, CBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE
Justice Ambeng Kandakasi
Justice Ellenas Batari, MBE
Justice Catherine Davani
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Gregory Lay
Justice David Cannings
Justice George Manuhu
Justice Kingsley David
Justice Sao Gabi
Justice Derek Hartshorn, ML

SUPREME COURT ELECTION PETITION REVIEW RULES

FOR

THE CONDUCT OF ELECTION PETITION REVIEWS

General: These Rules are made pursuant to Section 184 of the Constitution concerning the practice and procedure relating to the conduct of election petitions and may be cited as the Election Petition Review Rules (reviews of decisions of the National Court made under Part XVIII of the Organic Law on National and Local-Level Government Elections).

Commencement: These amended Election Petition Review Rules shall come into effect on the 3rd day of December, 2007.

1. Preliminary

Order 5 of the Supreme Court Rules 1984 is amended by inserting the following:

"Division 4: REVIEW UNDER SECTION 155(2)(b) OF THE CONSTITUTION OF A DECISION OF THE NATIONAL COURT MADE PURSUANT TO PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS."

2. Definition

Unless expressly stated otherwise in these rules:-

"Applicant" means a party referred to in Sub-division 1.

"Court" means the Supreme Court as defined under the Constitution and the Supreme Court Act.

"Decision" means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended).

"Index" means the Index to the Review Book under these Rules.

"Judge" for the purposes of these Rules means a single Judge of the Supreme Court exercising powers as expressly provided for under these Rules.

"Organic Law" means the Organic Law on National and Local-Level Government Elections.

"Registrar" means the Registrar of the Supreme Court and includes, Deputy Registrar of the Supreme Court.

"Registry" means the Supreme Court Registry at Waigani.

"Respondent" means the Electoral Commission and the party in whose favour a decision is made.

"Rules" means these Rules.

"Transcript" means the transcript of proceedings of the National Court on an election petition under review.

Sub-division 1. Application for Leave to apply for Review

1. A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155(2)(b) of the Constitution.

2. An application under Section 155(2)(b)of the Constitution in respect of a decision referred to under Rule 1 lies to the Court with leave only.

3. An application for leave shall –

(a) be entitled 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; and

(b) be entitled in the name of the person making the application and the name of the respondents; and

(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and

(d) state an address for service of the applicant; and

(e) be signed by the applicant; and

(f) be in accordance with Form 5A; and

(g) be filed in the Supreme Court Registry at Waigani.

4. 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 judgement and order of the National Court.

5. The filing fee for the application for leave shall be K750.00.

6. At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.

7. The application for leave shall be made within 14 days of the decision sought to be reviewed or within such time as extended by the Court, upon application made within that 14 days period.

8. The application for leave and supporting affidavit shall be

served personally on the respondents not later than 3 days
before the application is made and an affidavit of service
shall be filed within that 3 days period.

9. The application for leave shall be made before a Judge.

10. A decision to grant or a refusal to grant leave is final and shall not be subject to further review.

Sub-Division 2. Filing of Application for Review

11. The application for review shall be filed within 14 days from the date of grant of leave or within such further extended period as the Court determines upon application made within those 14 days.

12. The Application for Review shall:-

(a) state that the application lies with leave and state the date on which such leave was granted; and

(b) state whether the whole or part only and what part of the judgment is being reviewed; and

(c) state briefly but specifically the grounds relied upon in support of the review; and

(d) state what judgment, order or relief the applicant seeks in lieu of that decision reviewed; and

(e) be in accordance with Form 5B; and

(f) be signed by the applicant.

13. At the time of filing the application, the applicant shall also:-

(a) indicate on the application whether a transcript is required and if so, a request for the production of the transcript; and

(b) file a draft Index of the Review Book.

14. The application for review shall, amongst other things, include the date and time fixed by the Registrar for the Directions Hearing before a Judge of the Supreme Court.

15. The date fixed for the Directions Hearing under Rule 14 shall not exceed 14 days from the filing of the application.

16. The application shall be filed in the Supreme Court Registry at Waigani.

Sub-Division 3. Transcript

17. Where a request is made for a transcript, the applicant shall meet the cost for the production of the transcript as determined by the Registrar.

Sub-Division 4. Service of Application

18. Within 7 days of filing the application, the applicant shall serve the application together with the draft Index on the respondents named in the application and on any other person the Court considers has an interest in the application.

Sub-Division 5. Notice of Appearance

19. Within 7 days of the service of the application, the respondents or their lawyer shall file a Notice of Appearance in accordance with Form 5C.

Sub-Division 6. Directions Hearing

20. Within 14 days after filing the application, there shall be a Directions Hearing before a Judge.

21. At the Directions Hearing, the Judge may consider and determine or give such directions as may be necessary to ensure prompt disposition of the application, amongst other things:-

(a) question of legal representation;

(b) grounds of review;

(c) identification of legal issues;

(d) consolidation of multiple applications on the one election for purpose of the hearing;

(e) availability of transcript and related matters;

(f) objections to competency of the application;

(g) manner of presentation of argument by parties including filing extract of submissions;

(h) settlement of the Index;

(i) compilation of the Review Book;

(j) the number of days required for the hearing.

Sub-Division 7. Review Book

22. Within 14 days after the Directions Hearing, the applicant shall compile, file and serve the Review Book on each respondent.

23. The Review Book shall be prepared in the following manner:-

(a) in bound volumes in a suitable binder on A4 size paper with tabs;

(b) the thickness of any one volume of the review book shall not exceed 38mm;

(c) the title pages shall give the full and correct title of the proceedings and the names of the lawyers for each party (if any), telephone numbers and their addresses for service;

(d) after the title page there shall follow the index consisting of a complete list of documents contained in the review book as settled by the Registrar, stating in the case of each document, indicating at what page of the review book it appears;

(e) in the Index, the exhibits shall be marked in the order in which they were identified or numbered in the National Court;

(f) the date and a short description of each document shall precede it, but the backsheet or formal heading shall not be printed or copied and jurats, format identification of exhibits and the like shall be omitted;

(g) where the transcript of evidence is reproduced, the name of the witness together with a notation indicating whether the evidence given is in chief (IC), cross-examination (XX) or re-examination (RX) shall appear on the right hand side of each page;

(h) only such documents as are relevant or necessary shall be included in the Review Book.

24. The Review Book shall be paginated and arranged in the following order:-

(a) the title page;

(b) index to Review Book;

(c ) order granting leave;

(d) the application for review to the Supreme Court;

(e) the election petition for review;

(f) evidence, oral or affidavit, stating the name of each witness or deponent and page number on which such evidence commences;

(g) testimony taken on commission or before an examiner and put into use as evidence;

(h) exhibits arranged in the order in which were identified or numbered as exhibits in the National Court;

(i) written submissions filed in the National Court;

(j) the reasons for decision of the National Court;

(k) the formal judgment or order of the National Court.

25. A copy of the Review Book shall be examined with the original documents and all copies shall be certified as correct by the parties.

Sub-Division 8. Pre-Hearing Conference

26. Within 21 days from the Directions Hearing, there shall be a Pre-Hearing Conference before a Judge.

27. At the Pre-Hearing Conference, the Judge shall consider and determine or give such directions as may be necessary to ensure prompt disposition, amongst other things:-

(a) legal representation;

(b) the correctness of the Review Book;

(c) the grounds for review to be argued at the hearing;

(d) identify legal issues to be argued at the hearing;

(e) consolidation of multiple applications on the one election;

(f) manner of presentation of argument by parties including filing extract of written submissions;

(g) number of days required for the hearing;

(h) fix a date for the hearing.

Sub-Division 9. Hearing

28. The Registrar shall give notice of the date of hearing fixed by the Court under Rule 27(h), to the parties in accordance with Form 5D.

29. The Court may hear and determine the application or any objection to competency of the application on the date and time fixed for the hearing or may adjourn the hearing.

Sub-Division 10. Dismissal, etc. of Application

30. Where a party has not done any act required to be done by or under these rules 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, the Court may on its 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, the application for leave or application for review shall be set down for an expedited hearing; or

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

Sub-Division 11. Stay of enforcement of decision under review

31. The filing of an application for review does not operate as a stay of enforcement of the decision of the National Court, subject of the review.

Sub-Division 12. Dispensation from the Rules

32. The Court 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.

Sub-Division 13. Costs

33. The Court may make such orders as to costs as it deems just.

34. Parties may apply to the Court at the end of the hearing for a different rate other than the rates specified in Schedule 1.

35. If parties do not agree to the costs, the Registrar shall tax the costs in accordance with Schedule 1.

36. A party aggrieved by the taxation of costs may within 7 days of the taxation apply to a Judge for a review of the taxation.

37. Where parties agree in writing for the security deposit to be paid out to any party or parties, the Registrar shall pay out the security deposit as agreed between the parties, as endorsed by a Judge.

38. Where there is a dispute as to the distribution of the security deposit, the parties awarded costs may share the deposit in equal proportion to the number of parties.

39. The Registrar shall pay out the share of the costs of a party awarded costs after the taxation of the costs of that party.

40. Where a successful party does not claim the deposit within 3 months after the decision, the deposit shall be refunded to the applicant, as ordered by a Judge.

41. If, on the taxation of any costs, one-sixth or more of the amount of the bill for those costs is taxed off, the lawyer whose bill it is shall not be allowed the fees to which, apart from this Rule, he would be entitled for preparing the bill and for attending the taxation.

SCHEDULE 1
SCALE OF COSTS

PART 1. PRE-TRIAL FEES

ITEM

1. An allowance of up to K650.00 per hour:

a. Institution of proceedings;

b. Interlocutory proceedings;

c. Other Documents: Preparing (including where necessary filing, serving or delivering) any document;

d. Opinions and Conferences;

e. Attendances;

f. Preparation for Hearing.

2. Preparation of the Review Book K700.00

This is the preparation allowance, the original and all copies of documents are charged at K1.00 per page.

3. Letter & Phone calls

a. Letters Out - K75.00 (if faxed or e-mailed, add Telikom charges)

b. Letters In - K40.00 (if faxed or e-mailed, add Telikom charges)

c. Phone calls In and Out may be charged at the hourly rate and with Telikom charges – proof from Telikom for time spent must be produced.

4. Copy documents:

Photocopy, printed and carbon copies - all sizes K4.00 per page

PART 2. – LAWYER’S FEES

Where the trial Judge has certified the fees, costs and expenses of a second lawyer resident within the jurisdiction or for an overseas counsel – there shall be allowed the same amount as for the first lawyer

PART 3. – LAWYER’S TRAVELLING EXPENSES

1. Where a lawyer is required to travel from the town where he practices to appear as counsel in Court he shall be allowed reasonable travel and accommodation expenses.

2. Where the fees, costs and expenses of an overseas counsel are certified by the Court there shall be allowed return business class airfares to Brisbane (except where the airfare is for a lesser amount, or counsel is appearing in more than one matter during the same period) and reasonable hotel expenses.

3. Within the town of trial for Lawyers and Overseas Counsel for all attendances at the Court there is allowed a total of half an hour for the journey to and the journey back from the Court of K375.00 (i.e. half an hour is allowed at the hourly rate of K650.00).

PART 4. – ALLOWANCES TO WITNESSES

1. Villagers and others who give evidence at the trial of a Petition – K10.00 per day.

2. Where a person who gives evidence at a trial of a Petition is on salary or wages – the amount of salary or wages actually lost may be allowed at the taxing officer’s discretion.

3. Proof by affidavit that a salary or wages is actually earned by the witness, annexing proof of loss of salary or wages signed by the employer of the witness must be produced to the taxing officer.

4. Where a witness who gives evidence at a trial of the Petition does not reside in the town where he is required to give evidence, he shall be allowed such additional sum as is reasonable for travel expenses to and from that town by PMV or by sea and for accommodation and transport within that town – at the discretion of the taxing officer.

5. The allowance for transport within the town shall be the ordinary PMV cost. Where a witness stays with relatives or friends whilst attending the hearing of a petition a sum of K30.00 per day may be allowed at the discretion of the taxing officer.

6. A witness attending in more than one cause will be entitled to a proportionate part only in each cause.

PART 5. – TAXATION OF COSTS

1. Taxation:

2. Review:

APPLICATION FOR LEAVE TO REVIEW

APPLICATION will be made to the Supreme Court, at Waigani at ............... am/pm on the ............ day of ................. 20...., for:

1. LEAVE TO APPLY FOR REVIEW:
(state date of the decision and the decision for review).

2. GROUNDS:
(state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case)

3. THE ISSUES INVOLVED:

4. REASONS WHY LEAVE SHOULD BE GIVEN:

5. ADDRESS FOR SERVICE OF THE APPLICANT:

Dated this .............day of............... , 20.......... .

Sgd_______________________
(Applicant)

APPLICATION TO REVIEW

1. THIS REVIEW OF THE DECISION OF THE NATIONAL COURT is sought by:
(the applicant)

2. LEAVE TO APPLY FOR REVIEW WAS GRANTED ON:
(state date and name of Judge who granted leave)

3. THE DECISION TO BE REVIEWED is:

National Court No: EP No. ......... 20....
Parties:
Date of order:
Trial Judge:

4. STATE BRIEFLY THE NATIONAL COURT DECISION AND ATTACH A COPY OF THE DECISION OR ORDER:

5. GROUNDS:
(specify each particular grounds by paragraph)

6. ORDERS SOUGHT:

Dated this ...........day of .............20......

Signed: ____________________________

(Applicant)

FILED at the Supreme Court Registry at Waigani
BY:

Transcript of Proceeding in the National Court

(For completion by the Registrar Only)

APPOINTMENT OF DATE FOR DIRECTIONS HEARING

The Supreme Court will conduct a Directions Hearing at ..............a.m./p.m. on ..................................... day of .......................20... at the Supreme Court at Waigani, National Capital District.

At the Directions Hearing, the Judge shall consider amongst other things, the following:

(a) question of legal representation;

(b grounds of Review;

(c) identification of legal issues;

(d) consolidation of multiple applications on the one election for purpose of the hearing;

(e) availability of transcript and related matters;

(f) objections to competency of the application;

(g) manner of presentation of argument by parties including filing extract of submissions;

(h) settlement of the Index;

(i) compilation of the Review Book;

(j) the number of days for the hearing.

___________________
REGISTRAR
(Date)

Form 5C

Order 5 Division 4 Sub-division 5
Rule 19

GENERAL FORM OF NOTICE OF APPEARANCE
(Headings as applicable to proceedings)

NOTICE OF APPEARANCE

TAKE NOTICE, I enter an appearance on this review.

Dated at .............................this ...................... day of .................... 20. ...

Signed: ______________________
(Respondent or his/her Lawyer)

FILED:
BY:

GENERAL FORM OF NOTICE OF HEARING
(Heading as applicable to the application for review)

NOTICE OF HEARING

The application for review will be heard at the sittings of the Supreme Court at Waigani, (or such other place as specified) at ...........................................a.m./p.m. on the ........................... day of ...................................., 20...

Further details can be obtained from the registry.

Signed ___________________
Registrar
Dated:

FILED at the Supreme Court Registry at Waigani

BY: