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Application of Robert Atiyafa [1987] PGNC 2; N602 (4 March 1987)

Unreported National Court Decisions

N602

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. 9 OF 1987
ROBERT ATIYAFA
PLAINTIFF
APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW EXPARTE

Lae & Popondetta

Hinchliffe J
13 February 1987
25 February 1987
4 March 1987

JUDICIAL REVIEW - Leave to apply - Order 16 National Court Rules - ExParte application - Eastern Highlands Provincial Section - the word “election” - procedure should be by way of Petition - leave to apply for Judicial Review refused.

The Plaintiff sought a declaration that the decision of the Returning Officer of the Kafetina Constituency rejecting the request of the Plaintiff and his scrutineers for a recount of some ballot boxes before declaration of the winner was invalid. An Order was also sought directing the Returning Officer to conduct a recount of the said ballot boxes.

Held

(1) Leave to apply for Judicial Review refused.

(2) The fact that the request for a recount was made before the declaration of the poll does not permit the Plaintiff to proceed by way of Judicial Review.

(3) The word “election” is not to be restricted to the declaration of the poll, but is apt to extend to each and every step in the election process from the issue of the writs ...... The Court has jurisdiction to entertain and to adjudicate upon, questions arising in relation to all or an of the steps.

McDonald v. Keats and others, Meers v. Lavery and others, Barraclough v. Newham and others (1981) 2 N.S.W.R. 268 followed.

(4) Part XIV of the Eastern Highlands Provincial Government Act positively restricts Judicial Review

Cases Cited

McDonald v. Keats and others, Meers v. Lavery and others, Barraclough v. Newham and others (1981) 2 N.S.W.R. 268.

This was an Application for leave to apply for Judicial Review pursuant to the National Court Rules, O. 16.r.3.

Counsel

Mr. Umba, for the plaintiff.

Mr. P. Ume for the Electoral Commission.

Cur. adv. vult.

4 March 1987

HINCHLIFFE J: This is an Application for Leave to apply for Judicial Review pursuant to Order 16 of the National Court Rules. It first came before me in the National Court at Lae on the 13th February, 1987.

An application for judicial review cannot be made unless the Court gives leave (o.16 r.3).

The Plaintiff filed the following documents:

(i) Application for Judicial Review dated 5 February, 1987.

(ii) Statement of Support and verifying affidavit dated 5 February 1987.

(iii) Affidavit of Enos Nekehome, dated 3rd February 1987.

(iv) Affidavit of Robert Atiyafa dated 3rd February 1987.

(v) Affidavit of Nelson Fezamo dated 3rd February 1987.

(vi) Outline of arguments signed by D.A. Umba - Lawyer for the Plaintiff.

(vii) Notice of Motion dated 5 February 1987.

The said Application says, inter alia: “The Plaintiff claims:

1. To declare the decision of the Returning Officer of the Kafetina Constituency to reject the request of the Plaintiff and his scrutineers for a recount of Ballot Box 6 and a recount of Ballot Boxes 1-8 before declaration of the winner as invalid.

2. An order directing the Returning Officer of the Kafetina Constituency to conduct a recount of Ballot Boxes 1-8.”

The said Statement Support says, inter alia:

“1.

(a) The Applicant’s name is Robert Atiyafa.

(b) The Applicant is the runner up to the winner in the Kafetina Constituency, Henganofi District, in the Eastern Highlands Provincial Elections conducted during the 30 December 1986 and 23 January 1987.

2. Relief sought . . .

3. The grounds upon which the relief is sought are as follows:

(a) In respect of argument (1), it is claimed that the rejection by the Returning Officer as to the request of the Plaintiff and his scrutineers for a recount of Ballot Box 6 and a recount of Ballot Boxes 1-8 contravenes Section 99(1) of the Eastern Highlands Provincial Government Electoral Act 1977.”

Section 99(1) of the said Act provides:

“99 Recount

(1) At anytime before the declaration of the result of an election, the Returning Officer may, if he thinks fit, on the request of a candidate setting forth the reasons for the request or of his own motion, and shall if so directed by the Electoral Commission, recount the ballot papers contained in a parcel.

(2) . . . ”

On the 13 February there were several matters that puzzled me and which were not made clear in the various supporting affidavits. Firstly, it was not clear as to how the Plaintiff conveyed his message to his scrutineers who were in the vote counting room. I was then advised from the Bar Table that the message was conveyed through a policeman who was guarding the door whilst the votes were being counted.

Secondly, there was nothing in the Affidavit indicating that reasons were given to the Returning Officer, for the recount.

Mr. Ame from the Department of Justice made various submissions. His appearance was not objected to by the lawyer for the Plaintiff, although I thought it was somewhat unusual as this was an ExParte application.

Section 136 of the said Act provides:

“The Electoral Commission may, by leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition.”

The application before me was not a petition pursuant to Part XIV of the said Act and it seemed to me that Mr. Ame had no legal standing at the Bar Table. As there was no objection and that Mr. Ame had travelled especially from Port Moresby, I heard his argument. His main argument was that the Plaintiff should have proceeded by way of petition and that the Court had no jurisdiction to hear the matter by way of Judicial Review.

Mr. Umba, for the Plaintiff, argued that the Court could proceed by way of Judicial Review as a petition was only relevant when contesting the validity of an election.

He argued that the request for a recount was made before the declaration of the poll, therefore he could proceed by way of Judicial Review. He argued further that if no request was made prior to the declaration of the poll, then proceeding by way of petition was the proper course.

But Mr. Ame relied on a New South Wales Supreme Court decision - McDonald v. Keats and others, Meers v. Lavery and others, Barraclough v. Newham and others (1981) 2 N.S.W.R. 268 when arguing that the word “election” was not restricted to the declaration of the poll and that Part XIV of the said Act applied to disputes regarding s.99(1) of the said Act. I shall refer to the case later in this judgment.

Also against Mr. Umba’s argument that a petition was only relevant where the whole election was in dispute, Mr. Ame argued that s.137(1)(d) puts an end to that. It provides:

“137. Powers of Court

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things:

(d) orders a recount of ballot papers in constituency ...”

On that point I agree with Mr. Ame.

The application was then adjourned and came on again on the 25th February.

Further affidavits were filed by Mr. Umba, as follows:

(i) Affidavit of Tom Konga, Police Constable, dated the 24 February 1987.

(ii) Amended Statement of Affidavit of Nelson Fezamo, dated the 24 February 1987.

(iii) Amended Statement of Affidavit of Robert Atiyafa dated 24 February 1987.

The first three affidavits satisfied my query as to the connection between the Plaintiff, the Police Officer and scrutineers and also the reasons for the recount.

Paragraphs 3 and 4 of the said Affidavit of Sivi Siad are as follows:

“3. Before the counting of any ballot papers in the ballot boxes for the Kafetina Constituency I did inform all the scrutineers present in the counting room that I was instructed by the Provincial Electoral Officer, E.H.P., that any question in regard to the conduct of the scrutiny should be referred to the Court of Disputed Return.

4. To the best of my knowledge there was no personal approach by any body including the Plaintiff, Robert Atiyafa seeking a recount of any of the ballot boxes, before or after I declared the winner of the election for the Kafetina Constituency.”

Because of paragraph 3. of the said Affidavit of Sivi Siad, Mr. Umba stated that he (Siad) did not exercise his discretion properly (see s.99(1) of the said Act).

I am satisfied that the Plaintiff should have proceeded by way of Petition and I refer to the case of McDonald v. Keats and others, Meers v. Lavery and others, Barraclough v. Newham and others (1981) 2 N.S.W.R. 268.

Section 155 of the Parliamentary Electorates and Election Act, 1912 provides:

“The validity of any election or return may be disputed by petition to the Court of Disputed Returns, and not otherwise.”

(N.B. s.132 of the Eastern Highlands Provincial Government Act provides:

“The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.”

In his judgement at p.274 Powell J. said:

“1. It is my view that, upon its proper construction, the word “election” is not to be restricted to the declaration of the poll, but is apt to extend to each and every step in the election process from the issue of the writs to the various returning officers up to and including the declaration of the poll in respect of each electoral district; it following that the provisions of s.155 of the Act so operate as expressly to confer upon the Court of Disputed Returns exclusive jurisdiction to entertain, and to adjudicate upon, questions arising in relation to all or any of those steps; and

2. Even if this be not so, it is my view that the provisions of Part V - Court of Disputed Returns are so extensive and detailed that it is difficult, if not impossible, to avoid the conclusion that they were intended to lay down a “code”, not only as to the circumstances in which, and the manner in which, elections to the Parliament are to be conducted, but also as to the circumstances in which, and the manner, questions arising in the course of, or relating to any stage of, the whole electoral process may be entertained and adjudicated upon.”

His Honour went on to say at p.275:

“.........even if no declaration of the poll be made the candidate with the most number of votes would be duly elected. The consequence of these views is, at least, that the declaration of the poll is not essential to the validity of an election; it may even be that an election is complete at some earlier stage, as, for example, upon the relevant returning officer determining what ballot papers are to be admitted to the poll and what are to be rejected.”

I agree with Powell, J. and it seems to me that Part XIV of the Eastern Highlands Provincial Government Act is positively restricting Judicial Review.

I am satisfied that the proceedings should have been by way of Petition pursuant to Part XIV of the Act.

Therefore leave to apply for Judicial Review pursuant to 016 r.3 of the National Court Rules is refused.

Order accordingly.

Lawyer for the Plaintiff: Dennis A. Umba

Lawyer for the Electoral Commission: Philip Ame