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Mionzing v Avini and Electoral Commission [1992] PGNC 36; N1112 (7 October 1992)

Unreported National Court Decisions

N1112

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO 214 OF 1992
TOFFAMO SIMANG MIONZING - PETITIONER
AND
YAIP AVINI - 1ST RESPONDENT
AND
ELECTORAL COMMISSION - 2ND RESPONDENT

Lae

Hinchliffe J
23 September 1992
7 October 1992

PARLIAMENT - Election - Election Petition - Compulsory Conference - Petition not served - Notice of Intention to Defend filed - Question of adequate service.

Counsel:

G Langtry for the Petitioner

C Karingu for the First Respondent

D Kombagle for the Second Respondent

JUDGMENT

7 October 1992

HINCHLIFFE J: The petition was filed on 19 August 1992 and a compulsory conference was fixed for 23 September, 1992 before me in Lae. At the commencement of the said conference it was indicated that an application would be made to strike out the petition because it had not been served on the first respondent and also that parts of it contained allegations and not facts.

There is no dispute regarding service, clearly the petition was not formally served on the first respondent.

On 20 August, 1992 the Registrar of the National Court at Waigani sent a copy of the petition to the first respondent addressed to him at the National Parliament. It reads as follows:

“In accordance with a direction of the Chief Justice I enclose a Petition naming you as a Respondent that was filed in the National Court on 19 day of August, 1992.

I draw to your attention the enclosed Practice Direction which sets out the procedures being followed to deal with Election Petitions arising from the recent National Elections.

You will note from clause 10 of the Practice Direction that the Petitioner must still serve you with the Petition, this copy is being sent to you for your information, and not by way of service on you.”

From what Mr Karingu said it seems that his client did not receive the said letter from the Registrar but he did hear that a petition had been issued against him. On 9 September the first respondent instructed Mr Karingu to appear for him at a preliminary conference regarding the petition in Waigani. At that stage the first respondent had still not cited the petition so Mr Karingu "went in blind" so to speak. I gather that Mr Karingu saw a copy of the petition at the said conference on 10 September but it was not, I am told, until 16 or 17 September that the first respondent saw a copy of it.

On 15 September, 1992 the first respondent filed a Notice of Intention to Defend even though he had not been served with the petition. On 17 September, 1992 Mr Karingu sent a letter to the lawyer for the petitioner and said as follows:

“We refer to the above and advise that we act for the Respondent, Mr Yaip Avini.

We hereby put you on Notice that we will move the Court to strike out the Petition for want of Service on the Respondent and further that the Petition contains mere allegations and not the material facts.

Finally we attach herewith the Notice of Intention to Defend the same.”

It would seem to me that from at least 9 September the first respondent was aware that there was a petition issued against him. I might say at this stage that I am not fully convinced that the first respondent did not receive the said letter and contents from the Registrar posted on 20 August, 1992.

Mr Karingu appeared for him at the said preliminary conference on 10th September, and apparently no application to strike out the petition was made at that stage. I am of the view that the first respondent need not have attended on 10 September because he had not been served. Apart from that he filed a Notice of Intention to Defend which I am also of the view he need not have done. By filing the said Notice he, to my mind, was accepting irregular service of the petition and was indicating that he was intending to defend it. He need not have filed the Notice of Intention to Defend and then there would have been no way in which the petition could have proceeded without him being served. It would then have been up to the petitioner to explain why he had not served the first respondent. If a proper explanation had not been forthcoming then the petition may have been struck out.

To my mind the combination of the appearance of Mr Karingu at the National Court Waigani on 10 September, 1992 and then the subsequent filing of the Notice of Intention to Defend on 15th September was enough to satisfy me that the first respondent had accepted service even though it was irregular. As I stated earlier, he need not have done anything and the petition could not have proceeded unless the petitioner had succeeded in an application for substituted service or the like. That application was never made. It was not necessary after the said Notice was filed. The whole idea of service had been fulfilled. That is that the Court can be satisfied that the party is fully aware of the proceedings against him and he has acknowledged that awareness by responding positively to it by filing a notice of his intention to defend the matter.

The second ground for striking out the petition is that it contains only allegations and not facts. I have perused the petition closely and in particular clauses 9 and 10. Mr Karingu submitted that those two clauses should be struck out. I cannot agree and Mr Kombagle, who appears for the second respondent does not agree either. I am of the view that the clauses in the petition provide ample facts and are quite sufficient for the petition to proceed.

Therefore the application to strike out the petition is dismissed.

Lawyer for the petitioner: Langtry Lawyers

Lawyer for the first respondent: Karingu & Sitapai Lawyers

Lawyer for the second respondent: Pato Lawyers