N5228
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 44 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 IJIVITARI OPEN ELECTORATE

BETWEEN

JOHN WARISAN
Petitioner
 
AND

DAVID ARORE
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2013: 24th & 31st May

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Grounds of – Failure to serve petition on first respondent within time – No application seeking leave to serve petition out of time – Power to dismiss discretionary – Petition ready for trial – Allegations of bribery against first respondent – First respondent failed to defend petition – Whether default sufficient reason to dismiss petition – National Court Election Petition Rules, 2002 (as amended) – Rules 6(1) & 18(i).

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Time to hear objection to competency – Hearing of an objection is at trial – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

John Warisan -v- David Arore & Electoral Commission (2013) N5217
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
Fisheries Authority -v- New Britain Resources Development Limited (2009) N4068
Lucas Neah -v- John Pundari & Electoral Commission (2013) N5146
Delba Biri -v- Bill Ninkama [1982] PNGLR 342
Nathan Piari -v- Peter Ipatas & Electoral Commission: EP No 102 of 2012 (Unnumbered & Unreported Judgment of 15th April 2013)

Counsel:

Mr P Wariniki, for Petitioner 
Mr J Napu, for First Respondent
Mr L Ogil, for Second Respondent

RULING

31st May, 2013

1.	Makail, J: On 15th May 2013, the Court refused the petitioner's application for summary judgment and expedited hearing. As the first respondent had also filed an application to dismiss the petition, the Court adjourned it to a date for hearing. see John Warisan -v- David Arore & Electoral Commission (2013) N5217. The first respondent now moves it pursuant to the amended notice of motion filed on 01st November 2012 pursuant to Rule 18(i) of National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). 

2.	He relies on two grounds. The first is that the petitioner served the petition on him two days after the prescribed time limit of fourteen days under Rule 6(1) of the EP Rules had expired. He relies on the affidavit of Kelly Walter sworn and filed on 19th September 2012. In that affidavit, Mr Walter deposed to serving the petition, notice to appear in Form 1 and notice of directions hearing in Form 2 on him on 12th September 2012 at 9:45 am at Neil Rua's premises located near Gavana Bridge along Kokoda Highway in Northern Province. The second is that the petition is defective and therefore, incompetent because the attesting witness' occupation of "self employed" is contrary to the meaning of the word occupation under section 208(d) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). 

Late service of petition

3.	As to the first ground, the petitioner does not deny serving the petition two days late, but submits that the issue of service was decided by the Court on 25th September 2012 when it ruled and accepted that he served the petition on the first respondent and proceeded to issue directions for the further conduct of the petition. In essence, he says that the issue of late service is res judicata. 

4.	In the alternative, given that he has been diligent to progress the petition to trial including having to wait patiently for a little over seven months for the Court's decision on his application for summary judgment while the first respondent has literally done nothing to defend it, he has sufficiently demonstrated that in the interest of justice, the Court should refuse the application and allow the petition to proceed to trial. He adds that given the recent decision by the Court to allow the first respondent to raise the issues of late service of the petition and correct occupation of the attesting witness to the petition, the Court has "armed" the first respondent to "fight" the petition and this has denied him the opportunity to get it set down for trial at the earliest convenience. 

5.	Given that the petitioner concedes that he has not served the petition within time, the first respondent supported by the second respondent submitted that the petitioner is in breach of Rule 6(1) of the EP Rules and the petition should be dismissed. Even if the Court has discretion, the discretion should not be exercised in favour of the petitioner because he has not asked for dispensation of the rule on time to serve by filing an application by way of a notice of motion seeking leave to serve the petition out of time. For this submission, they rely on the case of Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791. In any case, he has not provided any satisfactory explanation as to why he was unable to serve the petition within time. They submit that the petitioner has no reason for defaulting on this basic and fundamental procedural requirement because he was aware of it since 12th September 2012 and did nothing to rectify it. 

6.	From the evidence and submissions, there is no dispute that the petitioner served the petition on the first respondent two days after the prescribed time limit of fourteen days had expired. The other undisputed fact is that the petitioner did not file an application seeking leave to serve the petition out of time. However, the issue of late service was not raised by the parties and decided by the Court at the earlier preliminary hearings. The first time it was raised was at the hearing of the petitioner's application for summary judgment on 01st November 2012. Prior to that, the Court heard submissions in relation to whether the petition was served and held that it was. 

7.	Res judicata is a legal doctrine that says that "where an action has been brought and judgment has been entered in that action, no other proceedings may be maintained ion the same cause of action." Halsbury's Laws of Australia, para [190-45] and National Fisheries Authority -v- New Britain Resources Development Limited (2009) N4068. Given this and given that the issue of late service was not decided by the Court at the earlier preliminary hearings, I am of the view that the issue of late service is not res judicata. It follows it is open to the first respondent to raise it in this application.

8.	As to the breach of Rule 6(1), it states that, "[w]ithin 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents ..........." Given that the petitioner concedes serving the petition out of time, the issue is whether the petition should be dismissed. The power to dismiss is discretionary and this must be clearly understood by all. 

9.	In Lucas Neah -v- John Pundari & Electoral Commission (2013) N5146, the Court held among others that in election petitions, service of a petition on respondents is mandatory under Rule 6(1) and failure to serve will result in its dismissal. However, the power to dismiss is discretionary because the requirement for service is a requirement under the National Court Election Petition Rules, 2002 (as amended) and not the Organic Law on National and Local-level Government Elections and Rule 17 gives the Court the discretion to "dispense with any requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-level Government Elections." In other words, even if a petitioner defaults in serving the petition within time, the petition is not automatically dismissed. Its dismissal remains a matter of discretion but given that an election petition is a serious matter, it is one that cannot be lightly exercised. Delba Biri -v- Bill Ninkama [1982] PNGLR 342.

10.	I accept the respondents' submission that the petitioner has not filed an application by way of a notice of motion seeking leave to serve the petition out of time. The purpose of filing and serving a notice of motion is to give notice to the opposing party and the Court of the application and to allow the opposing party sufficient time to respond to it. Invariably and for a variety of reasons, the Court may dispense with this requirement either on its own motion or on application by a party. 

11.	In Walter Schnaubelt's case (supra), due to the non appearance of the Member for Namatanai Open Honourable Byron Chan at the directions hearing, the Court on its own motion raised the issue of service on the Member with the petitioner. The petitioner alleged that he had served the Member by leaving a copy of the petition with a staff of the Member at his office. This mode of service was not in accordance with the prescribed mode under Rule 7 of the EP Rules. Without filing a notice of motion, the petitioner asked the Court to dispense with the time limit of fourteen days and extend time for him to re-serve the petition on the Member. The Court acknowledged that it had discretion under Rule 17 to dispense with this requirement. Nonetheless, it refused it because his explanation for the default was unsatisfactory. It was rejected because his lawyers were negligent. They had overlooked the correct mode of service and allowed him to serve the petition at a wrong place. 

12.	In Nathan Piari -v- Peter Ipatas & Electoral Commission: EP No 102 of 2012 (Unnumbered & Unreported Judgment of 15th April 2013), it was held that in addition to Rule 17, Rule 18(iii) gives the Court wide discretion not to dismiss a petition for want of service in cases where no application for leave is filed. The Court gave these reasons for that view:

"Further, Rule 17 does not say that a party must apply to the Court to 'dispense with any requirements of these Rules, either before or after the occasion for compliance arises.........' Given this, I am of the view that Rule 17 leaves open the options the Court may take when dealing with an application for dismissal. The Court may exercise its discretion not to dismiss the petition for want of service regardless of whether or not there is an application for leave filed. My view is fortified by Rule 18(iii) where it states '[w]here a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding...... make such other orders as it deems just.' For these reasons, I am of the view that where a petition is served outside the time limit of 14 days without leave, the Court still has discretion not to dismiss it." 

13.	Rule 18 provides the foundation of the Court's power to summarily dismiss a petition where the defaulting party is the petitioner. It states:

"18. SUMMARY DETERMINATION 

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:- 

(i) order that the petition be dismissed where the defaulting party is the petitioner; or 

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or 

(iii) make such other orders as it deems just."

 14.	 The factual difference between Walter Schnaubelt's case (supra) and this case is that in the former, the petition had not reached pre-trial stage. It was about to go through directions hearing when the Court on its own motion raised the issue of service with the petitioner. As the Member did not attend the directions hearing, there was no issue in relation to prejudice. In this case, the petition has reached pre-trial and is ready for trial. Given that the first respondent had received the petition on 12th September 2012, he has not shown how he has and will be prejudiced if the petition is allowed to proceed to trial.

15.	Similarly, in the case of Nathan Piari (supra), the petitioner served the petition on the Honourable Governor for Enga Province within time but failed to serve it on the Returning Officer and the Electoral Commission within time. The Returning Officer and the Electoral Commission applied to dismiss the petition for want of service. The application was heard at the directions hearing. The petitioner did not obtain leave to serve out of time before or after the time limit of fourteen days had expired nor did he file a notice of motion seeking leave to serve out of time. 

16.	The Court held that failure by the petitioner's former lawyers to serve the petition on the Returning Officer and the Electoral Commission within time was not a satisfactory explanation but refused to dismiss the petition because first the Returning Officer and the Electoral Commission were not adversely prejudiced in their defence as they had received the petition and had sufficient time to respond to the allegations against them. Secondly, some of the allegations in the petition such as bribery and undue influence were against the Honourable Governor and to dismiss the petition would deny the petitioner from proving those allegations against him.

17.	In this case, the first respondent takes no issue with service. His complaint is on the late service and while there is no notice of motion seeking leave to dispense with the time for service before the Court, it must be the case that the first respondent has in his possession the petition and must have noted the allegations against him. Further, at the hearing he and the second respondent had adequately responded to the petitioner's request for dispensation. For this reason, I am not satisfied that the respondents are being adversely prejudiced by the lack of notice. I will dispense with this requirement and consider the petitioner's request for leave to serve the petition out of time.

18.	As to the merits of the request, Walter Schnaubelt's case (supra) sets out the principles for the exercise of discretion. Restating them, they are:

(a)	An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;	

(b)	The application for extension must be made promptly;

(c)	If there is delay, reasonable explanation for the delay;

(d)	The relief sought by the applicant will not unduly prejudice the other party's case; and

(e)	The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

19.	The law places an enormous responsibility on a petitioner to strictly comply with the law on the presentation and conduct of an election petition. There can be no argument that the petitioner has not explained why he did not serve the petition within time. He had lawyers acting for him and they should have advised him of the time limitation. It appears they did not. As a result, the default was not detected and the petition proceeded to a stage where it is ready for trial. 

20.	Equally important is the petitioner's conduct in relation to the presentation and conduct of the petition. Except for the issues of late service and correct occupation of the attesting witness, he has diligently met all the requirements of the law including directions of the Court to bring the petition to trial and the first respondent has failed to defend it. In my view gross injustice would occur if the petition is dismissed at the preliminary hearing stage because of a procedural defect, which defect does not adversely prejudice the respondents in the defence of the petition noting again that the first respondent had been served and failed to attend the preliminary hearings right up to the date of hearing of the application for summary judgment. 

21.	But, with respect, I do not agree with the petitioner's submission that the Court has "armed" the first respondent to fight him. This proposition is without foundation in law. The onus is on the petitioner to prove his case and this includes complying with the requirements of the Organic Law on Elections, EP Rules and Court directions. If he had failed to comply with any of them, it is the duty of the Court to correct him. The issues of late service of the petition and the correct occupation of the attesting witness are fundamental to the regularity and competency of the petition respectively. If they are raised, the Court is duty bound to address them before embarking on an inquiry into the allegations in the petition. If not, the Court would be entertaining a petition that is not properly before the Court. 

22.	Finally, serious allegations of bribery have been raised against the first respondent. While they remain to be proven, it is equally important that the petitioner be given the opportunity to prove them so that the issues between the parties are resolved for the benefit of the people of Ijivitari Open Electorate. For all these reasons, I dismiss this ground.

Correct occupation of attesting witness

23.	In relation to the second ground, there is no dispute that one of the attesting witness to the petition stated his occupation as "self employed". Given this, the respondents submit that the petition is defective and therefore, incompetent because "self employed" is contrary to the meaning of the word occupation under section 208(d) of the Organic Law on Elections. They did not cite any authority for this proposition. The petitioner submits that if the Court adopts the plain and liberal meaning of the word "self employed" it connotes a person working for himself and earning a living or sustaining himself in life such as selling betel-nut or ice blocks, etc. For this reason, this ground should be dismissed.

24.	I am of the view that the correctness or otherwise of the word "self employed" under section 208(d) (supra) raises a competency issue rather than a regularity issue. It goes to the question of jurisdiction because it is one of the requisites of a petition. Rule 15 is clear as to the time to hear an objection to competency. It is at trial. For this reason, I decline to rule on it and will leave it to the parties to raise it with the trial judge at trial.

Conclusion

25.	Finally, in the exercise of my discretion under Rules 17 and 18(iii), I refuse the application to dismiss, allow the petition to proceed to trial by extending time by seven days and accepting the petition as being served within the extended time. 

Order

26.	The orders are:

1.	The application to dismiss is refused.

2.	The petition is allowed to proceed to trial by extending time by seven days and accepting the petition as being served within the extended time. 

3. 	Costs shall be in the cause. 

4.	Time for entry of these orders shall be abridged.
____________________________________

Wariniki Lawyers & Consultants: Lawyers for Petitioner
Napu & Co Lawyers: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent