N3568

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVELGOVERNMENT ELECTIONS AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION
FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTION

PAIAS WINGTI
Petitioner

V

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

TOM OLGA
Third Respondent

Kimbe: Cannings J
2008: 3 December

RULING

ELECTIONS – application for stay of court-ordered recount – allegations of corrupt and improper practices – principles to apply when determining whether to grant an injunction, suspending the re-counting of ballot papers.

The National Court ordered the recount of ballot papers for an electorate. During the course of the recount one of the candidates (the successful candidate during the original count) filed a motion seeking removal of the person appointed by the court to conduct the recount and other orders. While that motion was pending, he applied for a stay of the recount on the ground that allegations of corrupt and improper practices had been made, supported by affidavits from a counting official and scrutineers.

Held:

(1)	The National Court, having ordered a recount, and made consequential orders to give effect to that primary order, has jurisdiction to vary the order, including making an order to stay the recount, ie suspend the counting.

(2)	A decision on whether to grant a stay should be made by applying the usual principles that the court takes into account when deciding whether to grant an interim injunction, viz it is incumbent on the applicant to show that:

(a)	there are serious questions to be tried and that an arguable case exists;

(b)	an undertaking as to damages has been given;

(c)	damages would not be an adequate remedy if a stay is not granted;

(d)	the balance of convenience favours the granting of a stay; and 

(e)	the interests of justice require that there be a stay.

(3)	Here, only two of the considerations – (a) and (c) – favoured a stay. They were outweighed by the other considerations: (b) no undertaking as to damages was given; neither (d) the balance of convenience nor (e) the interests of justice favour granting a stay. Therefore the application for a stay order was refused.

Cases cited:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Wingti v Rawali, Electoral Commission and Olga (2008) N3286

APPLICATION

This was an application for an interim injunction.

Counsel

R Pato, for the petitioner
R William, for the first and second respondents
H Nii, for the third respondent

3 December, 2008 

1. CANNINGS J: This is a ruling on an application by Mr Tom Olga for a stay order that would suspend the recounting of ballot papers for the Western Highlands Provincial electorate. The recounting has been proceeding at Kapal Haus, Mt Hagen, since last month, pursuant to orders of the National Court of 14 March and 14 and 19 November 2008. Those orders followed the upholding of a petition filed by Mr Paias Wingti disputing the election of Mr Olga (Wingti v Rawali, Electoral Commission and Olga (2008) N3286).

2. Yesterday, Mr Olga filed a notice of motion seeking orders that Mr Alwyn Jimmy – the person appointed by the National Court as being the one person primarily responsible for appointment of counting officials, the conduct of the recount, the control and management of the counting centre and the doing of all other things to ensure the secure, efficient and transparent conduct of the recount – be removed from that position and replaced by another suitably qualified officer of the Electoral Commission.

3. The motion also seeks orders that the electronic counting system be used and other consequential orders "to ensure accuracy and transparency" of the re-count.

4. The motion is supported by four affidavits (from one of Mr Olga’s scrutineers, his legal representative at the recounting centre, a counting official and another person) in which serious allegations of improper and corrupt practices are made.

5. Earlier today I refused an objection raised on Mr Wingti’s behalf by Mr Pato to the Court’s jurisdiction to grant the orders sought in the motion. I am satisfied that the National Court, having ordered a recount, and made consequential orders to give effect to that primary order, has jurisdiction to vary the order, including making an order to stay the recount, ie suspend the counting.

6. The motion that was filed yesterday has yet to be heard. It will be heard later this week. All parties, as well as Mr Jimmy, must be given a proper opportunity to address the court on the issues it gives rise to.

7. The application that I am ruling on now is an oral application, made today on Mr Olga’s behalf by Mr Nii, that the recounting be suspended, pending a determination of the motion that was filed yesterday.

POSITIONS OF THE PARTIES

8. Mr Nii, for Mr Olga, argued that in view of the very serious nature of the allegations, which are supported by affidavits, the best thing to do, to ensure the accuracy and transparency of the recount, is to put the recounting of ballot papers on hold. This would do no prejudice to anyone. It would just preserve the status quo and allow everyone time to marshal their arguments and evidence on the substantive questions such as whether Mr Alwynn should be removed and whether the counting system should be changed.

9. Mr Pato, for Mr Wingti, submitted that no stay should be granted. The allegations that have been made, though very serious, are entirely untested and unchallenged and are dubious. No one will lose out if a stay is not granted. Under the Court’s orders of 14 March 2008, these sorts of allegations can be aired when it comes time for the person in charge of the recount to present his report to the Court on the result of the recount.

10. Mr William, for the Electoral Commission, said that the Commission did not have a firm position either way. The Electoral Commission, however, is committed to seeing that the integrity of the recount is maintained.

RELEVANT PRINCIPLES

11. Mr Olga is seeking orders in the nature of an interim mandatory injunction. The principles to be applied to this sort of application are well developed in PNG. They were recently discussed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. Though I am dealing with an apparently unique case – as this is perhaps the first time the National Court has been asked to make orders to stay a recount – I see no reason that the general principles about granting stay orders or interim injunctions should not apply.

12. It is incumbent on the applicant for a stay order to show that:

(a)	there are serious questions to be tried and that an arguable case exists;

(b)	an undertaking as to damages has been given;

(c)	damages would not be an adequate remedy if a stay is not granted;

(d)	the balance of convenience favours the granting of a stay; and

(e)	the interests of justice require that there be a stay.

12. The principles can conveniently be applied by posing five questions. They are drafted so that a ‘yes’ answer will be a factor weighing in favour of granting a stay and a ‘no’ will work against granting a stay.

(a)	Are there serious questions to be tried and does Mr Olga have an arguable case?

13. This requires the Court to make an assessment of the prospects of success of the plaintiff’s substantive action by looking at the originating process (in this case, the amended notice of motion, filed 2 December 2008) and the evidence that has been adduced.

14. I agree with Mr Nii’s submission that the allegations – many of which are personally against Mr Jimmy – are very serious. If the allegations were proven, the integrity of the recount would be severely undermined.

15. Having said that, I take into account the point that Mr Pato highlighted: the allegations are refuted by Mr Jimmy and they are at this stage bare allegations. They are untested and Mr Jimmy has not had the chance to rebut them.

16. I also take into account that, with the exception of one of the deponents, the persons who have sworn affidavits are aligned with Mr Olga. None of them is obviously independent.

17. So, yes, there is an arguable case arising from the material so far filed in court, but not a strongly arguable case.

(b)	Has an undertaking as to damages been given?

18. No. Mr Pato did not take issue with this but I cannot see any undertaking on the file. 

(c)	If a stay is not granted, would damages be an inadequate remedy?

What will happen if a stay order is not granted, but it turns out the motion to remove Mr Jimmy is successful? Would Mr Olga be able to be compensated with damages? Would that be an inadequate remedy?

19. I conclude that, yes, damages would be an inadequate remedy.

(d)	Does the balance of convenience favour the granting of a stay?

20. As I said in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 this requires the court to ask: what is the best thing to do on an interim basis taking into account the conflicting interests? What will happen if a stay is not granted? What will happen if a stay is granted? Who will suffer the greatest inconvenience or prejudice?

21. If a stay is not granted, the recounting will continue and – subject to the grievances about non-payment of allowances to the counting officials being resolved and no subsequent court order staying the recount – it seems that the results should be ready to be presented to the court some time next week. No one should be prejudiced by this.

22. If the stay is granted, the recounting will be put on hold and this will delay the presentation of the result to the court. This will cause inconvenience to Mr Jimmy, the counting officials and all the security personnel involved.

23. I conclude that no, the balance of convenience does not favour granting a stay of the recount.

(e)	Do the interests of justice require that there be a stay? 

24. This criterion gives the court the opportunity to consider discretionary matters not previously considered.

25. If a stay is granted immediately, this will have the effect of calling into question the integrity of the person responsible for the smooth conduct of the recount, as well as the integrity of the whole recount; and this will have happened without giving that person a right to be heard. That would not be fair or just.

26. It might also lead to the recount becoming a stop-start affair, which should be avoided as far as possible.

27. Mr Nii submits that time and money are not the major considerations the court should be concerned with. What is more important is getting an accurate result, following a fair and corruption-free and transparent process. It is hard to disagree with that proposition, except to say that time and money are two very important considerations. It is important to get the recount completed as soon as possible. It should only be interrupted on very good and clear grounds; and such grounds can only exist once everyone against whom allegations are made has had a reasonable opportunity to be heard.

28. No, the interests of justice do not require that a stay order be granted.

CONCLUSION

(a)	Yes, the plaintiff does have an arguable case, but not a strongly arguable case.

(b)	No, no undertaking as to damages has been given.

(c)	Yes, if a stay is not granted, damages would be an inadequate remedy.

(d)	No, the balance of convenience does not favour granting a stay.

(e)	No, the interests of justice do not require that there be a stay.

29. Only two of the five considerations favour the granting of the stay order sought. They are outweighed by the other three considerations. I exercise my discretion by refusing to make the orders sought.

ORDER

(1)	The application for an order to stay the recounting of ballot papers for the Western Highlands Provincial electorate is refused.

(2)	Costs shall be in the cause.

(3)	The motion filed on 2 December 2008 by the third respondent shall be heard at Kimbe on 5 December 2008 at 1.30 pm.

Ruling accordingly.

___________________________

Steeles Lawyers: Lawyers for the Petitioner
Nonggorr & Associates: Lawyers for the 1st and 2nd Respondents 
Harvey Nii Lawyers: Lawyers for the 3rd Respondent