After every general election the Supreme Court receives dozens of applications to review election petition rulings. Since January 2023 nearly all of them have been decided against one short judgment.
Sir John Thomas Pundari v Peter Yakos and Electoral Commission [2023] PGSC 3; SC2345
Supreme Court, Waigani — Hartshorn J sitting alone, 24 January 2023. SCREV (EP) 2 of 2023, application for leave under Order 5 rule 9 of the Supreme Court Rules.
What happened
Sir John Pundari was declared elected for Kompiam-Ambum Open in the 2022 general election. Mr Yakos petitioned. Sir John applied to have the petition dismissed; the National Court refused. He then sought leave to review that interlocutory refusal under section 155(2)(b) of the Constitution.
What was argued
The application was heard without opposition, so the judgment is essentially an exposition of the law. The question was how the Supreme Court’s inherent review power under section 155(2)(b) should be exercised where the Organic Law, in section 220, declares a National Court decision on a petition “final and conclusive and without appeal” and not to be “questioned in any way”.
What the Court decided
Drawing on Jurvie v Oveyara (2008) SC935, Waim No 85 Ltd v The State (2015) SC1470 and Kandapaki v Enga Provincial Government (2015) SC1463, the applicant must show, on a point of law, that it is an important point which is not without merit, or, on the facts, that there is a gross error clearly apparent or manifested on the face of the evidence; and that there are exceptional circumstances, such as a manifestation of substantial injustice, so that a review is warranted in the interests of justice.
In Hagahuno v Tuke (2020) SC2018 a five-judge bench held that Constitutional Laws, including the Organic Law, must be given their fair and liberal meaning under Schedule 1.5 of the Constitution. Hartshorn J held that this applies equally to section 220. Its fair and liberal meaning is clear: petition decisions are final. Section 220 is specific, mandatory, and was re-enacted more than twenty years after Independence. Respecting section 155(2)(b) while giving effect to section 220 means that the standard of satisfaction for leave must be set rather high.
The interlocutory decision under challenge did not affect Sir John’s substantive rights: the petition would proceed to trial where he could defend it. Leave was refused.
Did it make new law?
No National Court decision was affirmed; the judgment is a synthesis of Supreme Court authority. Its novelty lies in applying Hagahuno’s fair-and-liberal principle, which had been used to relax the strictness of petition pleading, in the opposite direction, to reinforce the finality clause. Cannings J in Basa v Quoreka (2023) SC2468 described the judgment as having summarised the import of the earlier cases, and adopted its two-part statement of the criteria for both interlocutory and final decisions.
Why it matters
Interlocutory rulings are hard to review. A refusal to dismiss a petition, or a ruling on objections to competency, generally leaves the applicant free to fight the trial. Leave will usually be refused.
Identify the point of law precisely. Applications succeed where they isolate a genuine question, such as the interpretation of a provision of the Organic Law or the Election Petition Rules, and show why the answer would change the outcome.
What it does not decide
Pundari is a single-judge decision on leave. It does not decide what a full Court does once leave is granted, which remains governed by the distinction between review and appeal in Waranaka v Dusava (2009) SC980. Nor does it disturb the rule that competency objections may be raised at any stage, from Amet v Yama (2010) SC1064.
Recent cases applying it
Pundari was cited in twelve Supreme Court decisions within eighteen months. Among them:
- Nasam v Sungi [2024] PGSC 21; SC2552 — the parties did not take issue with the Pundari criteria on an application to review a final decision dismissing a petition.
- Agisa v Subam [2023] PGSC 159; SC2511 and Numu v Sia [2023] PGSC 157; SC2509 — paragraphs 3, 4, 11 and 13 of Pundari quoted as the governing law.
- Basa v Quoreka [2023] PGSC 124; SC2468 — Cannings J applied the criteria and granted leave, confirming they apply equally to final decisions.
- Wararu v Maru [2023] PGSC 75; SC2427 — leave refused; no injustice and no exceptional circumstances.
Sources
- Pundari v Yakos [2023] PGSC 3; SC2345 (Hartshorn J, 24 January 2023)
- Constitution — s 155(2)(b), Sch 1.5; Organic Law on National and Local-level Government Elections — ss 217, 220
- Supreme Court Rules 2012 — Order 5 rule 9
- Hagahuno v Tuke [2020] PGSC 105; SC2018
- Nasam v Sungi [2024] PGSC 21; SC2552; Agisa v Subam [2023] PGSC 159; SC2511; Numu v Sia [2023] PGSC 157; SC2509; Basa v Quoreka [2023] PGSC 124; SC2468; Wararu v Maru [2023] PGSC 75; SC2427
Jurvie v Oveyara (2008) SC935, Waim No 85 Ltd v The State (2015) SC1470 and Kandapaki v Enga Provincial Government (2015) SC1463 are cited as they appear in the judgment and were not separately opened for this brief.
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.