N5093
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 104 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NATIONAL CAPITAL DISTRICT REGIONAL ELECTORATE

BETWEEN

MICHAEL KANDIU
Petitioner

AND

POWES PARKOP
First Respondent

AND

CYRIL RETAW, Returning Officer for the National Capital District Provincial Electorate and Election Manager
Second Respondent

AND

RICKY FUGUNTO, Acing Returning Officer for the National Capital District Provincial Electorate
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2013: 25th February & 06th March

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for extension of time – Time to file and serve affidavits – Time fixed by Court – Default by respondents – Reasons for default – Unsatisfactory – Whether extension will prejudice petitioner – No prejudice established – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 18(ii)&(iii).

ELECTION PETITIONS – PRACTICE & PROCEDURE – Costs – Costs arising from interlocutory application – Discretionary – Directions to file and serve affidavits – Breach of – Non-compliance sign of disrespect of Court orders and directions – Costs ordered against respondents – Deterrence and punitive measure – National Court Election Petition Rules, 2002 (as amended) – Rule 19.

Facts

This is an application for extension of time to file and serve affidavits pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). It was submitted among other reasons, counsel for the second, third and fourth respondents travelled to the village to attend to a death in the family and was sick around the time the affidavits were due for filing and service.

Held:

1. The explanation for the default was unsatisfactory. 

2. No prejudice has been established if the application is granted. 

3. In order to send a strong warning to the respondents to comply with Court orders and directions, a cost order was made against the second, third and fourth respondents, the costs back-dated to 21st December 2012, the amount calculated in accordance with the rates set out in Schedule 2 of the National Court Election Petition Rules, 2002 (as amended and paid within 7 days of the service of the bill of cost. 

4. Leave was granted, time was extended by a further 7 days and the affidavits filed by the second, third and fourth respondents were accepted as being filed within the extended time upon payment of costs.

Cases cited:

Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924 
Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937
Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342
Edward Ekanda Alina -v- Francis Potape & Electoral Commission: EP No 33 of 2012 (Unnumbered & Unreported Judgment of 09th November 2012) 

Counsel:

Mr P W Korowi, for Petitioner 
Ms D Kiene, for First Respondent
Ms A Kimbu, for Second, Third & Fourth Respondents

RULING ON APPLICATION FOR EXTENSION OF TIME

06th March, 2013

1. MAKAIL, J: Pursuant to a notice of motion filed on 14th January 2013, the second, third and fourth respondents move the Court to vary the Court order of 10th December 2012 to file and serve their affidavits out of time. The application is made pursuant to Rule 18(iii) of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). The application arises from an election petition disputing the election of the first respondent as Governor-elect for National Capital District. 

Evidence

2. Parties rely on the following affidavits: 

2.1. Affidavit of Alice Kimbu sworn and filed on 14th January 2013; 
2.2. Affidavit of Ibert Abe sworn and filed on 08th January 2013;
2.3. Affidavit of Michael Kandiu sworn and filed on 08th January 2013; and
2.4. Affidavit in Response of Michael Kandiu sworn and filed on 13th February 2013.

3. From these affidavits it is not disputed on 10th December 2012, the Court granted extension of time by 14 days to the second, third and fourth respondents to file and serve affidavits by 21st December 2012. This was the first time the Court granted extension of time to them to file and serve affidavits. They failed to file and serve their affidavits by 21st December 2012. The present application is the second application for extension of time. On the date they filed this application, they also filed and served 4 affidavits and later, filed and served 3 on 20th February 2013. In total, they filed and served 7 affidavits and are late by 2 months.

Parties' Submissions

4. The reasons for the default are, first witnesses were unwilling or unavailable to come forward to give evidence and secondly the fourth respondent's officers were busy attending to settling unpaid bills rendered by service providers during the election. Thirdly counsel travelled to the village to attend to a death in the family and finally was sick around the time the affidavits were due for filing and service. The petitioner submits the reasons are unsatisfactory and asks the Court to exercise its discretion under Rule 18(ii) to struck out the affidavits and set down the petition for an expedited hearing. He gives the following reasons:

4.1. The application is a reactionary one. It was the petitioner who discovered the default through a search conducted on the Court file on 21st December 2012 which revealed that the second, third and fourth respondents failed to file their affidavits by that date and threatened to move an application for judgment that prompted them to file this application.

4.2. This application is the second request for extension of time.

4.3. The petition concerns the National Capital District Regional seat and the witnesses are expected to be located in Port Moresby and easily located to obtain instructions to prepare affidavits for the trial.

4.4. The illness of counsel is an internal matter for the law firm to sort out. Another lawyer from the firm should have stepped in on behalf of counsel and attended to the filing and service of the affidavits.

4.5. The default amounts to a breach of the Court order of 10th December 2012. Moreover, it is disrespectful of the second, third and fourth respondents.

4.6 He has even sacrificed his holiday in Sydney, Australia to attend the pre-trial conference on 10th January 2013 which unfortunately did not take place. 

4.7. It is totally unfair that he has complied with the Court's directions and the respondents have not. Further, it is unfair that petitioners have their petitions dismissed for failure to comply with Court directions while the respondents are permitted to file and serve affidavits notwithstanding the default.

5. He further submits that the Courts seem to apply double standard in applications of this nature because where the defaulting party is the petitioner, the Court is quick to dismiss the petition for non-compliance with the directions like in the case of Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924 and slow to penalise the defaulting party if it is the respondent like in the case of Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937. For these reasons, the application should be refused and the proceedings be set down for an expedited hearing.

Consideration

6. I address the petitioner's last point first. There is some merit in it. There is no doubt that the National Court and also the Supreme Court have stressed the importance of parties complying with the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"), the EP Rules and Court directions, especially the petitioners and the onerous burden placed on the petitioners to prosecute them with due despatch. This is because an election petition is no ordinary cause. It challenges the people's choice of representative in Parliament. A long line of cases starting with Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342, Daniel Don Kapi -v- Samuel Abal (2005) N2856 to name a few and a few of my own judgments in Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852, Edward Ekanda Alina -v- Francis Potape & Electoral Commission: EP No 33 of 2012 (Unnumbered & Unreported Judgment of 09th November 2012), Sani Rambi (supra) and Nemo Yalo (supra) bear testament to these principles.

7. It appears from these decided cases that the Courts have readily dismissed petitions for non-compliance with the mandatory requirements of the Organic Law on Elections, the EP Rules or Court directions. The end result, the merits of the petitions do not get determined by the Courts. This is a legitimate concern but it must not be forgotten that the onus is always on a petitioner to prosecute the petition. It never shifts to the respondent. For this reason, I do not think the Court is applying double standard. After all, each case must be determined on its own merit and the Court's discretion exercised accordingly. 

8. In a case where the defaulting party is the respondent, the remedy for the petitioner is in Rule 18(ii). It is, the petition shall be set down for expedited hearing. Rule 18(iii) also gives the Court a wide discretion to make such other orders as it deems just. The Court's discretion must be exercised on proper principles of law. First, there must be a reasonable explanation for the default, secondly, whether the grant of the application will prejudice the other party and thirdly, the interests of justice. 

9. In this case, the second, third and fourth respondents have defaulted in filing and serving their affidavits within the time fixed by the Court. They have explained their default and I have considered them. While I accept that counsel had travelled to the village to attend to a death in the family and that she was sick around the time the affidavits were due for filing and service, it is inexcusable that she comes from a law firm that has more than one lawyer, that no lawyer took charge of the matter and attended to the filing and service of the affidavits in her absence. The illness of counsel is an internal matter for the law firm to sort out and is not a satisfactory explanation for the default. see Nemo Yalo's case (supra). Similarly, the attendance by fourth respondent's officers to the demands by claimants to settle unpaid bills incurred during the election is an internal matter. It is not a satisfactory explanation for the default.

10. So much emphasis has been put on the petitioners to get their affidavits filed and served on time while the respondents are allowed to tag along innocently waiting to seize an opportunity to dismiss the petition for non-compliance. The reason that the witnesses were unwilling or unavailable to come forward to give evidence is far-fetched. If the petitioners are burdened with the task of collating information from informants and witnesses to get affidavits drafted, settled and filed within the time limits fixed by the Court, it is inexcusable for the respondents not to do the same. 

11. It is without a doubt that the grounds of the petition unless vague or brief, would as a starting point for case preparation, provide sufficient information to the respondents to act on to locate witnesses, collate information, draft, settle and file affidavits in response within the time limits fixed by the Court. If the lawyers for these respondents had approached the petition in this way, they would have been ready with the affidavits by the due date, noting that they had more than sufficient time following the service of the petition to the first directions hearing and then the first extension to get the affidavits filed and served. In the end, I am not satisfied with the explanation for the default.

12. While these respondents have defaulted, the petitioner has progressed his case to the point where it is almost ready for pre-trial and allocation of a trial date(s). I accept he has spent time and money in pursuing the petition. He has even sacrificed his holiday in Sydney, Australia to attend the pre-trial conference on 10th January 2013 which unfortunately did not take place. There is no doubt in my mind that here is a serious petitioner wanting to get his petition heard and I see no reason why he should be further denied that opportunity. 
13. However, he has not established the prejudice and to what extend he will be prejudiced if the affidavits were allowed. His main complaint is the delay by the respondents in filing and serving the affidavits on him. As noted briefly, the petition is yet to be fixed for trial and allocated trial date(s). At the time of filing the application for extension of time, the respondents also filed and served 4 affidavits and later, 3 others on 20th February 2013. In total, they filed and served 7 affidavits well after the date fixed by the Court of 21st December 2012. 

14. He has received the affidavits and they are identified as affidavit of Tufi Sega sworn on 07th and filed on 14th January 2013, affidavit of Douglas Hare sworn on 07th and filed on 14th January 2013, affidavit of sworn Kila Vaname sworn on 07th and filed on 14th January 2013, affidavit of Joe Kandai sworn on 10th and filed on 14th January 2013, affidavit of Andrew Trawen sworn on 20th and filed on 21st February 2013, affidavit of Cyril Retaw sworn and filed on 20th February 2013 and affidavit of Kelly Omo sworn on 20th and filed on 21st February 2013. They are in his possession and I would imagine he would have read them. He would have sufficient time until the commencement of trial to further consider them if they were allowed.

15. These affidavits are in response to his allegations of errors and omissions by electoral officials during counting of votes in Port Moresby and in my view, it is in the interest of justice that they be allowed so that all the issues are properly determined by the Court.

16. But the gravity of the respondents' default cannot be overlooked or left unpunished. I accept the petitioner's submission that the respondents' default amounts to a breach of the Court order of 10th December 2012. Moreover, it is disrespectful of them. The non-compliance is a sign of disrespect of Court orders and directions. Such a default should not be tolerated nor should it be ignored. For far too long, respondents have been allowed to get away with their default. One such case is Nemo Yalo's case (supra) where the first respondent defaulted in serving affidavits within the time limit fixed by the Court. I allowed him more time to do so despite being late by 6 days because I was not satisfied that the petitioner would be prejudiced if the affidavits were allowed. In my view, it is high time the Court come down hard on defaulting respondents. Their default should be condemned in the strongest term as possible. 

17. One course open to me is to penalise them with a cost order, moreover an order that they pay the costs by a certain time before the affidavits are accepted. In default, the affidavits should be struck out. In that way, it would send a strong warning to the respondents that Court orders and directions are not to be taken lightly. Equally, it would act as a deterrent and punitive measure. Rule 18(iii) gives me the discretion to make such other orders that may be just in the circumstances. see also Rule 19 (Costs). The petitioner submits that costs is a discretionary matter and if the Court is inclined to allow the affidavits and order the respondents to pay costs, costs should be back dated to 21st December 2012, the amount should be calculated in accordance with the rates set out in Schedule 2 of the EP Rules and paid within 7 days of the order. 

18. I accept these submissions and will order the second, third and fourth respondents to pay costs from 21st December 2012 to the date of this decision but I am not inclined to order costs to be paid within 7 days as it might not be settled by that time or at all. Instead, I will order that the affidavits be accepted subject to payment of costs on a date to be fixed by the Court. In default, the affidavits will be struck out. As to the amount, I will leave that to the petitioner to calculate in accordance with Schedule 2 of the EP Rules but I direct that the bill of cost be served on the second, third and fourth respondents within 3 days of the order. 

Order

19. In the exercise of my discretion, I make the following orders:

19.1. Leave is granted and time is extended by a further 7 days for the second, third and fourth respondents to file and serve their affidavits on the petitioner.

19.2. The second, third and fourth respondents shall pay the petitioner's costs from 21st December 2012 to the date of this order.

19.3. The petitioner shall prepare a bill of cost and serve on the second, third and fourth respondents within 3 days of this order. 

19.4. Thereafter, the second, third and fourth respondents shall pay the costs within 7 days of receipt of the petitioner's bill of cost and upon payment, the 7 affidavits shall be accepted as being filed within the extended time.

19.5. In default, the affidavits shall be struck out.

19.6. Following compliance with term 17.4 (above), the petitioner shall within 7 days file and serve notices under the Evidence Act.

19.7. Parties shall have a further 7 days to draft, settle and file a Statement of Agreed and Disputed Facts and Issues for Trial from the expiry of the date of service of the affidavits.

19.8. Thereafter, parties shall return to Court for pre-trial conference on Thursday 28th March 2013 at 9:30 am.

19.9. Time is abridged.

______________________________________________________________
Korowi Lawyers: Lawyers for Petitioner
Fairfax Legal Lawyers: Lawyers for First Respondent 
Parua Lawyers: Lawyers for Second, Third & Fourth Respondents