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Holloway v Ivarato and Electoral Commission [1988] PGLawRp 2; [1988] PNGLR 99 (1 July 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 99 - SCR No 2 of 1988; Sir Barry Holloway v Aita Ivarato and Electoral Commission 

[1988] PNGLR 99

SC349

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 2 OF 1988 REFERENCE PURSUANT TO SECTION 18(2) OF THE CONSTITUTION CONCERNING THE INTERPRETATION AND APPLICATION OF SECTION 208(A) OF THE ORGANIC LAW ON NATIONAL ELECTIONS

SIR BARRY HOLLOWAY

V

AITA IVARATO AND ELECTORAL COMMISSIONER

Waigani

Kapi DCJ Los Hinchliffe JJ

31 March 1988

1 July 1988

PARLIAMENT - Elections - Disputed election petition - Practice and procedure - Form of petition - Statutory requirements - “Facts” relied upon to invalidate petition - Manner of pleading - Organic Law on National Elections (Ch No 1), s 208(a) - National Court Rules, O 8, r 8.

The Organic Law on National Elections (Ch No 1), s 208, provides that:

“A petition [disputing the validity of an election or return under s 206] shall:

(a)      set out the facts relied on to invalidate the election or return ...”

On a reference to the Supreme Court under s 18(l) of the Constitution,

Held

The “facts” which must be set out under s 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved.

Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372, approved and followed.

Cases Cited

Berrill’s Petition and Boothby (SA), Re (1978) 52 ALJR 359; 19 ALR 254.

Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372.

Reference

This was the hearing of a reference to the Supreme Court by the National Court of a question relating to the interpretation and application of a constitutional law, namely, s 208(a) of the Organic Law on National Elections (Ch No 1).

Counsel

P Donigi, for the petitioner.

J Baker, for the second respondent (the Electoral Commissioner).

Cur adv vult

1 July 1988

KAPI DCJ: This matter originally proceeded by way of reservation of a point of law under s 15 of the Supreme Court Act (Ch No 37). However, as the point of law reserved raises a question relating to the interpretation and application of a constitutional law, it was suggested that the matter should be referred under s 18(2) of the Constitution. The reservation under the Supreme Court Act was dismissed and the National Court referred the matter under s 18(2) of the Constitution.

The National Court was concerned with a petition brought pursuant to the provisions of the Organic Law on National Elections (Ch No 1) disputing the result of the election with regard to the Eastern Highlands Provincial seat. The Electoral Commissioner, a party to the petition, filed a notice of motion seeking to strike out cl 6(e) and (f) of the petition on the ground that they did not comply with s 208(a) of the Organic Law. Section 208(a) is in the following terms:

“A petition shall:

(a)      set out the facts relied on to invalidate the election or return.”

The relevant clauses of the petition are as follows:

N2>“(e)    delivering ballot papers to persons not qualified to receive them and contrary to the provisions of s 136 and s 141 of the Law.

N2>(f)      admitting ballot papers for further scrutiny contrary to the provisions of s 161 and s 162 of the Law.”

The question referred is:

“Does clause 6(e) and (f) of the petition of Sir Barry Holloway comply with s 208(a) of the Organic Law on National Elections?”

With respect, the question referred is an issue which must be decided by the National Court. The jurisdiction to deal with such questions is conferred on the National Court by the Organic Law. However, under s 18(1) of the Constitution, this Court may consider issues relating to a matter of interpretation or application of a constitutional law. During submissions, both counsel agreed that the questions which arise under s 208(a) of the Organic Law are as follows:

N2>1.       What is the meaning of “facts” under s 208(a) of the Organic Law?

N2>2.       Does clause 6(e) and (f) raise “facts” within the meaning of s 208(a) of the Organic Law?

MEANING OF “FACTS”

The Australian legislation is very similar to the Organic Law. In particular s 185(a) of the Commonwealth Electoral Act (Cth) 1918 is in exactly the same terms as s 208(a) of the Organic Law. The High Court considered the provisions of s 185(a) in the case of Re Berrill’s Petition and Boothby (SA) (1978) 19 ALR 254. The High Court in dealing with s 185(a) of the Commonwealth Electoral Act said (at 255-256):

“The question therefore in this case is whether the petition does set out the facts relied on to invalidate the election. The petitioner has submitted that it is enough that she has alleged that there have been substantial breaches of a number of sections of the Electoral Act. That, she says, is the fact upon which she relies to invalidate the election. But upon proper analysis, what she has alleged are conclusions of law. She has not stated the facts from which those conclusions may be drawn.”

This case was followed by Bredmeyer J in Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372.

The English position is also discussed by Bredmeyer J in the abovenamed case. The English position may be summarised in the rules set out in the judgment of Bredmeyer J (at 374):

“the petition must state ‘the grounds on which the relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved.’ ”

Section 212(1)(f), (h) and (i) of the Organic Law gives the National Court power to invalidate an election or return. Section 212(2) of the Organic Law gives the National Court a wide discretion upon which an election or return may be invalidated. In terms of the section, the National Court may exercise the power “on such grounds as the Court in its discretion thinks just and sufficient”. Section 212(3) of the Organic Law specifically provides for the ground of illegal practices.

The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.

Two questions arise for consideration at this point:

N2>1.       Whether the facts set out should include the evidence by which those facts are to be proved; and

N2>2.       the sufficiency of facts which may be set out.

In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.

It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts. It actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.

It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s 208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s 212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s 208(a) of the Organic Law. I conclude that s 208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to estabish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.

Application to cl (e)

The facts set out under this clause, are that election officers gave ballot papers to persons who were not entitled to vote under s 141 of the Organic Law. If these facts were proven and they were shown to have caused the respondent to win, that would be a valid ground upon which the election would be invalidated.

This clause is to be distinguished from the facts of Re Berrill’s Petition where the petition simply alleged mere breach of the Act. Here the facts are alleged separately from breach of s 136 and s 141 of the Organic Law.

Application to cl (f)

Section 161 and s 162 are to be read together. The substantive provision is s 162 which is concerned with the manner in which votes cast under Pt XIII, Div 3 are dealt with. Section 162 of the Organic Law deals with votes cast under ss 141-143 of the Organic Law.

The petition simply states that ballot papers were admitted contrary to s 161 and s 162 of the Organic Law, but does not state the facts which constitute such a breach. In addition it does not set out whether it is concerned with ballot papers under ss 141-153. Further it does not set out any facts as to whether there was a breach of s 162(b), (c), (d), (e) or (f). This clause suffers from a failure to set out facts within the meaning of s 208(a) of the Organic Law.

The matter will be remitted to the National Court with answers to these answers to be further dealt with.

LOS J: I have had the advantage of reading the draft judgment of Kapi Dep CJ. I agree with his Honour and I have nothing to add.

HINCHLIFFE J: I agree with the judgment of Kapi Dep CJ and I have nothing further to add.

Questions answered accordingly

Layers for the petitioner: Warner Shand Wilson Donigi Reiner.

Lawyer for the second respondent (the Electoral Commissioner): Angoea J Tadabe, Secretary for Justice.