Toap v State [2004] PNGLR 47; [2004] PNGLR 25 (26 November 2004)

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THE INDEPENDENT STATE OF PAPUA NEW GUINEA;
ELECTORAL COMMISSION OF PAPUA NEW GUINEA; AND
RETURNING OFFICER/ASSISTANT RETURNING OFFICER FOR MENDI OPEN ELECTORATE

ELECTIONS – Practice and procedure – Unsuccessful candidate seeks compensation from Electoral Commission and others – claim based on alleged negligence – Whether claim should have been brought by election petition – Organic Law on National and Local-level Government Elections, Section 206 – Whether statement of claim disclosed a reasonable cause of action – Whether proceedings are frivolous or vexatious – National Court Rules, Order 12, Rule 40 – Whether application should be granted – discretion of Court.

The plaintiff was an unsuccessful candidate in the 2002 general election to the National Parliament. The plaintiff claimed that he lost the election for the Mendi Open electorate due to the negligence of electoral officials. He sought compensation for loss of entitlements, unlawful injuries, damages, costs, loss of values and distress during the election totaling K8,757,170.00.

1. The four principles regarding resolution of disputes about the conduct and the results of elections in Papua New Guinea are:

a) disputes about qualifications of candidates can be dealt with by the National Court after nominations have been made and before polling commences;

b) once polling commences and up to the return of the writ the Electoral Commission is responsible for the conduct of the election and the courts lack jurisdiction to hear challenges to the Commission's decisions;

c) after a return is made, the only way to challenge a result is by way of an election petition;

d) if, however, an election is declared a failure, the appropriate way to challenge that decision is by seeking leave to apply for judicial review.

2. Under the third principle, s.206 of the Organic Law required that the plaintiff's dispute as to the validity of the election and the return be brought to the National Court by an election petition and not by a writ of summons and statement of claim.

3. The statement of claim is so ambiguous and lacking in particularity that it does not enable the real issues to be identified and does not disclose a reasonable cause of action. (Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915, National Court, Kirriwom J; and Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001, National Court, Sevua J. applied)

4. The proceedings are frivolous and vexatious. (Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8 applied)

5. The plaintiff failed to comply with s.5(2)(a) of the Claims By and Against the State Act by not giving the required notice within the time required.

Agiwa v Peri and Electoral Commission [2003] N2345.
Application of Daniel Don Kapi [2002] N2259.
Application of Robert Atiyafa [1987] N602.
Electoral Commission and Others v Pila Niningi [2003] SC710.
Eliakim Laki and 167 Others v Maurice Alaluku and Others [2002] N2001.
Gabriel Apio Irafawe v Yauwe Riyong [1996] N1915.
Mathias Ijape v Bire Kimisopa and Electoral Commission [2003] N2344.
Mathias Ijape v Electoral Commission [2002] N2437.
PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85.
Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8
SCR No 69 of 1998 (1998) SC570.
SCR No 88 of 1997; Daniel Don Kapi v Takai Kapi and Electoral Commission (1998) SC548.
Supreme Court Reference No 2 of 1985; Re Kevin Masive, Iambakey Okuk and Johhannes Kenderkop [1985] PNGLR 263.
Supreme Court Reference Nos 4 and 5 of 2002, Reference by the Attorney-General (2002) SC689.
Takai Kapi v Electoral Commission and The State (National Court, unreported, WS No 913 of 1999, 31.01.01.
Thomas Negints v Electoral Commission (1992) N1072.

K Toap, the plaintiff, in person.
R Kasito, for the first defendant.
R William, for the second and third defendants.

Cannings j. This is a ruling on various motions arising out of proceedings commenced by the plaintiff, an unsuccessful candidate in the 2002 general election to the National Parliament. The plaintiff claims that he lost the election for the Mendi Open electorate due to the negligence of electoral officials. He seeks compensation for loss of entitlements.
The defendants are applying to have the plaintiff's case struck out summarily. The plaintiff says that his case should remain on foot and that default judgment should be entered in his favour.

In June-July 2002 a general election for the National Parliament was held. The day fixed for the return of the writs was originally 15 July, but extended to 29 July 2002. There were 20 candidates for the Mendi Open seat. The official results promulgated by the Electoral Commission state that 69,682 votes were cast. On 29 July 2002 the sitting member, Michael Buku Nali, was declared elected with 25,498 votes. The plaintiff was 16th, with 8 votes.

On 21 May 2003 the plaintiff hand-delivered letters addressed to the Solicitor-General and the Electoral Commission, to Mary Bulina, a legal secretary with the Office of the Solicitor-General. Each letter was headed: "ILLEGAL DISPATCHMENT OF BALLOT BOXES & PAPERS TO STRANGERS AND DISROYAL/DEMEAN THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA FOR MENDI OPEN ELECTORATE FOR 2002 NATIONAL ELECTIONS – CLAIM FOR A WRONGFUL VICTIM AT K10,568,614.00" [sic]. Each letter was four pages in length. The plaintiff stated that the Electoral Commission had failed in its duty to conduct a proper and fair election. The Electoral Commission had, amongst other things, negligently altered the polling schedule, dispatched ballot boxes to strangers and failed to conduct polling at a number of different locations which formed his support base, resulting in thousands of people being deprived of the right to vote for him. The plaintiff stated that the Electoral Commission was fully responsible for the disaster that had occurred. He claimed damages of K10,508,614.00. He allowed 30 days to settle his claim for compensation. If it were not settled by then, he would take the matter to Court.

On 13 November 2003 the plaintiff filed a writ of summons and statement of claim, alleging negligence by the 2nd and 3rd defendants.

the Returning Officer/Assistant Returning Officer for Mendi-Minihu Open electorate – 3rd defendant.

Upon being satisfied that there is no electorate in the country called "Mendi-Minihu Open", and that the electorate intended to be the subject of these proceedings is "Mendi Open", the Court orders of its own motion, pursuant to Order 8, Rule 50(1) of the National Court Rules, that the name of the 3rd defendant is "the Returning Officer/Assistant Returning Officer for Mendi Open electorate".

The statement of claim attached to the writ of summons avers to a number of matters in 16 numbered paragraphs. The grammar and syntax in almost every paragraph is poor. For example, paragraphs 6 and 8, which contain the central allegations of negligence and impropriety, state:

6 The Plaintiff claims that the 2nd defendant acting on the 1st Defendant's authorised commission to carry out the National and Provincial and Local Level Government Election fair and square was failed and was illegally given all the legal Ballot Boxes and Ballot Papers to its unauthorised persons or strangers to Hijack them whilst at the Mendi Police Station at about 1600 – 1800 pm and the next day was to close the polling. [sic]

8 The Plaintiff claims that the Co-operative Defendants had illegally dispatchment of Ballot Papers to unauthorised persons or strangers at the Mendi Police Station and made the plaintiff loss all his rights to cast vote and unlawfully disallowed the candidate to collect his votes at the designated locations of his Mendi/Munihui Open Electorate has to be paid compensation or remedied for the unlawful action of the elections by the Independent State of Papua New Guinea. [sic]

The poor drafting of the document has legal consequences, referred to later. It is difficult to summarise the plaintiff's claim or cause of action. However, it appears that what is averred to is negligence.

the 2nd defendant mishandled and illegally varied the timetable for the declaration of the writ and illegally altered the official program;

the 2nd defendant illegally gave all the ballot boxes and ballot papers to unauthorised persons or strangers;

the defendants did not allow the plaintiff to collect his votes at designated locations;

the defendants did not allow the people to exercise their rights to make a decision as to how to choose their leader;

the defendants failed to follow normal procedures for running the election, in particular by failing to collect votes at designated locations;

the 2nd and 3rd defendants wilfully and negligently failed to monitor and coordinate the process of the election;

the 2nd and 3rd defendants gave all the ballot papers to strangers and assisted them to help themselves at Mendi Police Station;

the 2nd and 3rd defendants illegally, negligently, and improperly ignored the candidate's right to contest the seat and allow ample time to people to exercise their democratic rights.

The plaintiff claims that the 1st and 2nd defendants are liable to compensate him for his unlawful injuries, damages, costs, loss of values and distress during the election. The plaintiff claims the amounts summarised below, plus interest and costs.

On 17 November 2003 the writ and statement of claim were served on the 1st and 2nd defendants.

On 2 December 2003 the Acting Solicitor-General, Mr John Kumura, filed a notice of intention to defend on behalf of all the defendants.

On 18 January 2004 the writ of summons and statement of claim were served on the 3rd defendant.

In May 2004 Paraka Lawyers commenced acting for the 1st defendant and Nonggorr Lawyers started to act for the 2nd and 3rd defendants.

Since July 2004 five motions have been filed. They can be summarised as follows:

No	Date	Filed by	Detail
1	22.07.04	2nd and 3rd defendants*	Application to dismiss proceedings on three grounds: for having no cause of action for being frivolous and vesatious for abuse of process
2	22.07.04	2nd and 3rd defendants*	Application to file defence out of time
3	03.08.04	Plaintiff	Application for default judgment
4	25.08.04	1st defendant	Application to dismiss proceedings on two grounds: for non-compliance with the Claims by and Against the State Act for disclosing no cause of action, being frivolous and vexatious and an abuse of process [ie a repetition of the three grounds on motion No 1]
5	15.10.04	Plaintiff	Application to "stay" proceedings for compliance with the Claims By and Against the State Act and disclosing a cause of action and to refuse leave to file a defence out of time [ie this was a cross-motion, in response to motion Nos 1, 2 and 4]

* These motions were incorrectly filed in the name of the plaintiff. These were obvious errors. The Court orders of its own motion, pursuant to Order 8, Rule 50(1) of the National Court Rules, that each of these notices of motion be amended by deleting "the plaintiff" and inserting "the 2nd and 3rd defendants".

On 5 November 2004 the five motions were argued. This ruling covers all of them.

The motions raise a number of important issues about the way in which election results are to be challenged. I address them in the following order:

2. Does the plaintiff's statement of claim disclose a reasonable cause of action?

4. Has the plaintiff failed to comply with the Claims By and Against the State Act?

If the answer to any of the above issues is 'Yes', the Court has the discretion to summarily dismiss the plaintiff's claim, ie the case will not proceed to trial. If, however, the Court refuses the application to dismiss the proceedings summarily or if the answer to all the above issues is 'No', it will be necessary to ask:

5. Should the defendants be granted leave to file a defence out of time ie after the time limits set by the National Court Rules?

There are several provisions of the National Court Rules relevant to these motions.

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

Judgement shall not be entered against a defendant under this Division unless—

(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ of summons or notice of the writ on the defendant; or

(b) the plaintiff produces the writ of summons endorsed by the defendants solicitor with a statement that he accepts service of the writ on the defendant's behalf; and

(c) an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant on which the plaintiff relies.

The Electoral Commission's lawyer, Mr William, submitted on behalf of the 2nd and 3rd defendants that the plaintiff had abused the processes of the Court by filing a writ of summons and a statement of claim, when he should have filed an election petition. Mr William relied on Section 4 and, in particular, Section 206 of the Organic Law on National and Local-level Government Elections.

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court.

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

In support of that proposition, Mr William relied on the judgment of Sevua J in Mathias Ijape v Electoral Commission [2002] N2437. In that case a candidate for the Goroka Open seat in the 2002 general election sought to challenge the decision of the Electoral Commission to delay making a declaration of the poll. Court proceedings were commenced under Sections 57 and 155(4) of the Constitution. Section 57 deals with enforcement of Basic Rights, some of which are conferred by Section 50 of the Constitution. Section 50 gives all citizens the right, amongst other things, to be elected to elective public office at genuine, periodic, free elections. Section 155(4) states that "both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seems to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case".

Sevua J held that the challenge to the Electoral Commission's decision, using an originating summons based on Sections 57 and 155(4) of the Constitution, was misconceived: His Honour stated, at page 6:

Any challenge to the validity of an election or return is, by law, required to be instituted by way of an election petition to the Court of Disputed Returns in accordance with Sections 4 and 206 of the Organic Law. In my view, Mr Ijape's rights are still intact despite the declaration by the Electoral Commission, and he still maintains the right to pursue this matter in the appropriate manner and in the appropriate forum. The Court of Disputed Returns is the appropriate forum where matters pertaining to the validity of an election can be brought and be determined. While I acknowledge the constitutional provisions referred to by Mr Narokobi [Mr Ijape's lawyer], I am of the opinion that the National Court ought not to exercise its inherent power under s.155 (4) in proceedings in respect of national elections which are governed by the Organic Law on National and Local–level Government Elections. That Organic Law is a special law dealing with a special jurisdiction, vis a viz, validity of elections, and I consider therefore that s.155 (4) should not apply.

The plaintiff, on the other hand, argued that he was able to commence the proceedings by writ and did not have to file an election petition.

Sevua J's decision in Ijape's case is consistent with a line of authority requiring that a challenge to an election result be brought by filing an election petition.

In Supreme Court Reference No 2 of 1985; Re Kevin Masive, Iambakey Okuk and Johhannes Kenderkop [1985] PNGLR 263 the Supreme Court (Kidu CJ, Pratt J, Bredmeyer J, Amet J and Woods J) held that the National Court has jurisdiction under Section 135 of the Constitution to determine a person's qualifications to stand as a candidate after nominations have been called and before the commencement of polling.

(a) the qualifications of a person to be or to remain a member of the Parliament; or

That is, a challenge to the legality of a candidate's nomination (eg on the ground of age, residency, soundness of mind, under sentence of imprisonment, insolvency etc) can be made before an election is conducted. But once a result has been declared, the only way to challenge that result is by an election petition. Pratt and Bredmeyer JJ stated at page 270 that the words "election" and "return" in Section 206 of the Organic Law mean the same thing. An election petition can only be filed after the result of an election has been declared:

Section 206 ... means that the National Court has jurisdiction to determine whether a person has been validly elected and the only means of determining that question is by way of election petition.

In Application of Robert Atiyafa [1987] N602 Hinchliffe J determined an application for leave to seek judicial review of a decision of a returning officer. The returning officer had rejected a request by the plaintiff for a recount before declaration of the poll. The election was conducted under Eastern Highlands provincial legislation and it contained a provision in almost identical terms to Section 206 of the Organic Law. His Honour refused leave. He held that the word "election" is not restricted to the declaration of the poll. It extends to every step in the election process, from the issue of the writs to the declaration of the poll. Where the legislature sets out an extensive and detailed procedure for the conduct of an election and the circumstances and manner in which disputes are to be entertained and adjudicated upon, those procedures represent a "code". An aggrieved person must bring his or her case within that code.

In Takai Kapi v Electoral Commission and The State (National Court, unreported, WS No 913 of 1999, 31.01.01) Los J determined a negligence action brought by the plaintiff who was a candidate for the 1997 election. The candidate, Takai Kapi, was returned as duly elected. The validity of his election was disputed by an election petition brought by Daniel Kapi in the National Court. Takai Kapi won that case. The petitioner applied for review of the National Court decision in the Supreme Court. He was successful. In SCR No 88 of 1997; Daniel Don Kapi v Takai Kapi and Electoral Commission [1998] SC548 the Supreme Court (Woods J, Sawong J and Kirriwom J) held that Takai Kapi was not enrolled as a voter in his electorate at the time that he nominated. That was a breach of the Organic Law. The trial judge had erred. Takai Kapi was declared not duly elected and a by-election was ordered. Takai Kapi then sought review of that decision in SCR No 88 of 1997 by a differently constituted Supreme Court bench. That review was held to be an abuse of process (SCR No 69 of 1998 (1998) SC570, Los J, Salika J and Kirriwom J). In the subsequent National Court proceedings before Los J, commenced by writ of summons, Takai Kapi successfully argued that his name had been on the common roll for his electorate in 1992 and that the Electoral Commission negligently removed it from the 1997 common roll. Los J entered judgment on liability against the Electoral Commission with damages to be assessed. Apparently damages have not yet been assessed.

If Los J's decision is accepted as correct, the Electoral Commission and the State can be liable to an unsuccessful candidate if it is proven that their negligence resulted in the candidate not, eventually, winning the seat. But as pointed out by Mr William during the course of submissions, Takai Kapi's case can readily be distinguished from the present case. Takai Kapi was not, in the proceedings heard by Los J, disputing the validity of the election. He was claiming damages based on the result of court proceedings that had disputed his election.

In Application of Daniel Don Kapi (2002) N2259 Gavara-Nanu J rejected an application for an injunction, commenced by originating summons, to restrain a person, who the Election Commission had declared the winner of the Wabag Open seat, from taking his seat in the Parliament. The application was brought under Section 57 of the Constitution. As in Ijape's case, the applicant was seeking to enforce his rights under Section 50 of the Constitution. The circumstances were unusual. The plaintiff, Daniel Don Kapi, was declared the duly elected member by the returning officer on 24 July 2002. But on 1 August 2002 (three days after the day fixed for the return of the writs) the Electoral Commissioner made another declaration, this time declaring Sam Abal as the elected member. Gavara-Nanu J held that the Electoral Commissioner's declaration of Mr Abal as the winner overrode the returning officer's declaration of Mr Kapi. Mr Kapi's application in essence challenged the validity of Mr Abal's election. Therefore the issues raised in the application were matters that should have been raised before a court of disputed returns, through an election petition under Section 206 of the Organic Law.

In Mathias Ijape v Bire Kimisopa and Electoral Commission (2003) N2344 Kandakasi J struck out an election petition as incompetent, on the ground, amongst others, that it had been wrongly addressed to the respondent and to the Electoral Commission. It was not addressed to the National Court, as required by Section 206 of the Organic Law. His Honour reckoned that Section 206 consists of three parts:
the validity of an election may be disputed;

It follows then that, if Parliament intended that a person disputing an election or a return should have the freedom to use whatever method he prefers and where or to whom his dispute should be "addressed" to, it could not have added the second and third parts to s.206. By adding these parts to that provision, Parliament deliberately decided in my view, to prescribe both the method and to whom or where a dispute over an election or return should be addressed. In so choosing to employ the words in the second and third parts, Parliament decided that a dispute should be by way of a petition addressed or directed to the National Court.

I find that this is a strict requirement in keeping with the well-established view that the choices of the majority at an election is a serious and important matter. That means, the requirements of s.206 must be strictly met to amount to a proper challenge to the choice of the majority. A failure to do so would result in the National Court not being properly vested with the necessary jurisdiction to deal with a petition.

His Honour emphasised that an election petition is a special procedure provided for by Part XVIII (disputed elections, returns etc) of the Organic Law (Sections 206-233). Section 208(a) is a crucial provision. It states that a petition "shall set out the facts relied on to invalidate the election or return". His Honour also dismissed the petition before him as incompetent on the ground that it did not comply with Section 208(a).

... a petitioner is under an obligation to set out the facts he relies upon to invalidate an election, with precision and clarity. He must not leave the Court and the respondents to the petition guessing as to what is being alleged. Where a petition relies on a breach of a statutory or constitutional duty, that provision must be set out besides the alleged facts. A petition could stand on either one or more grounds. As such, each ground of a petition must be clearly pleaded together with any relevant provision of a statute or the Constitution by setting out the facts relied on.

In Agiwa v Peri and Electoral Commission (2003) N2345 Kandakasi J refused an application for leave to seek judicial review of a decision of the Electoral Commission to "fail" an election. In the 2002 general election, the election for Koroba/Lake Kopiago Open failed, after there had been widespread looting of ballot boxes and violence. This was despite the returning officer declaring Herowa Agiwa as the duly elected member. The Electoral Commissioner overrode that declaration, declared that the election had failed and advised the Governor-General to issue a new writ for a supplementary election. Mr Agiwa challenged the Electoral Commissioner's decision by filing an election petition. Kandakasi J ruled that that was the wrong procedure as there had, in fact, been no election. He suggested that Mr Agiwa file an application for leave to seek judicial review of the electoral commissioner's decision under Order 16 of the National Court Rules. Mr Agiwa eventually did that. But he delayed his application unreasonably and failed to show an arguable case. Kandakasi J refused leave. His Honour reiterated that Section 206 of the Organic Law makes it abundantly clear that a petition to the National Court is the only way to challenge an election or a return.

In Electoral Commission and Others v Pila Niningi [2003] SC710 the Supreme Court (Kapi DCJ, Salika J and Gavara-Nanu J) upheld an appeal against a decision of the National Court (Los J) to order an extension of polling for one day at certain polling places in the 2003 supplementary election for Imbonggu Open. The Supreme Court adopted the reasoning of Woods J in Thomas Negints v Electoral Commission [1992] N1072. Where power is expressly given to the Electoral Commission and its officials, the courts should not interfere in the election process. The constitutional right to vote and the right to be elected to public office are adequately protected by the discretion conferred on the Electoral Commission under the Organic Law and by the procedure to challenge an election in Section 206 of the Organic Law. Those principles were reinforced by the decision in Supreme Court Reference Nos 4 and 5 of 2002, Reference by the Attorney-General (2002) SC689. The Court (Amet CJ, Kapi DCJ, Sheehan J, Sakora J and Sevua J) confirmed the broad range of powers given to the Electoral Commission to conduct elections and determine whether an election had failed. The Organic Law clearly demarcates the functions of the Electoral Commission and the National Court. The Court has jurisdiction under Section 206 to determine whether a person has been validly elected. But it has no power to extend a polling period before the result of an election is returned.

The above cases demonstrate four principles regarding resolution of disputes about the conduct and the results of elections in Papua New Guinea:

disputes about qualifications of candidates can be dealt with by the National Court after nominations have been made and before polling commences;

once polling commences and up to the return of the writ the Electoral Commission is responsible for the conduct of the election and the courts lack jurisdiction to hear challenges to the Commission's decisions;

after a return is made, the only way to challenge a result is by way of an election petition;

if, however, an election is declared a failure, the appropriate way to challenge that decision is by seeking leave to apply for judicial review.

The present case
It is the third of the above principles that is pertinent to the present case. Does the writ of summons and statement of claim filed by the plaintiff dispute the validity of the election for the seat of Mendi Open? Does it dispute the return of Mr Michael Nali as the duly elected member? The answer to these questions is clearly 'Yes'. The plaintiff's claim for relief, in the form of compensation in excess of K8 million, is predicated on his assertion that the election miscarried due to the negligence of the 2nd and 3rd defendants.

Section 206 of the Organic Law required that the plaintiff's dispute as to the validity of the election and the return be brought to the National Court by an election petition and not otherwise. That means not by a writ of summons and statement of claim.

The current proceedings therefore breach Section 206 of the Organic Law and are an abuse of process.

Mr Kasito, for the 1st defendant, made a helpful written submission on this issue. He highlighted a number of cases in which the National Court has determined applications to strike out proceedings for not disclosing a reasonable cause of action. The following principles emerge:

·If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for,

it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable. (PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85, National Court, Sheehan J.)

If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out. (Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915, National Court, Kirriwom J.)

If the statement of claim just leaves a defendant guessing as to what the plaintiff's allegations are, it should be struck out. (Eliakim Laki and 167 Others v Maurice Alaluku and Others [2002] N2001, National Court, Sevua J.)

All of those principles are relevant to the present case and I will apply them in a moment. But before doing that, I will encapsulate them in a slightly different way.

Whenever a plaintiff brings a case to court, the originating document – in the present case, the writ of summons and statement of claim – must demonstrate that the plaintiff has a 'cause of action'. The document must clearly set out:

The plaintiff does not have to say what evidence there is of the facts being alleged. In fact, the National Court Rules prohibit that. But the plaintiff must outline the claim and demonstrate that it has a clear legal basis. If the plaintiff's originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action.

In the present case, it seems – though it is not very clear – that the plaintiff is bringing an action based on the common law of negligence. The statement of claim does not refer to any provisions of the Constitution. It is not an application to enforce Constitutional Rights, eg the right, under Section 50, to be elected to elective public office at genuine, periodic, free elections. To disclose a cause of action in negligence, a statement of claim must set out the elements of the tort of negligence and in a clear and logical fashion allege the facts in support of each element.

There are three basic elements to the tort of negligence: (1) that the defendants owed a duty of care to the plaintiff; (2) that the defendants acted unreasonably or negligently and in breach of its duty to the plaintiff; and (3) that as a result of that breach of duty the plaintiff suffered injury, for which the defendants must compensate him.

The plaintiff's statement of claim does not plead the elements of the tort of negligence. Nor does it state clearly the facts that are relied on to establish his claim. At the beginning of this judgment I paraphrased the allegations of negligence in the statement of claim. As indicated then, it was a difficult task as the statement of claim was poorly drafted. Very few of the 16 paragraphs made grammatical sense.

Applying the principles from the three cases referred to above, I conclude that it is plain and obvious that if the case goes to trial the plaintiff will not obtain the relief that he is seeking. He has a snowball's chance in hell of winning. Even if his serious allegations about the Electoral Commission were proven, it does not logically follow that he is the one, amongst the 20 candidates, who would have won the election. Furthermore, the statement of claim is so ambiguous and lacking in particularity that it does not enable the real issues to be identified. It leaves the defendants guessing as to what the plaintiff's allegations are.

For all these reasons the plaintiff's statement of claim does not disclose a reasonable cause of action.

Another ground on which a case can be summarily dismissed is if the proceedings are frivolous or vexatious. Sevua J clearly set out what that means in Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8.

the plaintiff's claim is so obviously untenable that it cannot possibly succeed; or

the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed.

I accept Mr Kasito's submissions on this issue. The plaintiff is disputing the validity of an election and is doing so by an incorrect process. His pleadings are grossly defective and – even if it is thought that they do disclose a cause of action – the claim for damages in excess of K8.7 million is outlandish and beyond the realm of reality. In an election in which 69,682 voted and there were 20 candidates, the plaintiff came 16th, with 8 votes. The winner scored 25,498. His statement of claim does not show a sufficient causal connection between the alleged negligence of the Electoral Commission and his loss of the election. Nor does it show how the sum of K8 million, said to represent loss of a five-year term of office, was calculated. A member of Parliament, even the Prime Minister, legitimately earns considerably less than K1.6 million per year, which is the sum the plaintiff is apparently claiming he would have earned as a member of Parliament.

I conclude that if this case went to trial, the plaintiff would have no chance of success. He is bound to fail. Therefore the proceedings are frivolous. The defendants are being put to the trouble and expense of defending a case, which cannot possibly succeed. Therefore the proceedings are vexatious.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters [ie the Secretary for Justice]; or

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

The plaintiff's claim is against the State, the Electoral Commission and the Returning Officer. So he was required by Section 5 to give notice of his claim to either the Secretary for Justice or the Solicitor-General. He gave notice in writing on 21 May 2003 by hand-delivering a letter setting out the nature of his claim to a legal secretary in the Office of Solicitor-General. Therefore he complied with Sections 5(1) and 5(3).

But did he comply with Section 5(2)? His claim is not for breach of a contract. So Section 5(2)(b) does not apply. He has not been allowed any further period by the Principal Legal Adviser or the Court. So Section 5(2)(c) does not apply. So the question is whether, under Section 5(2)(a), he gave notice within six months after the occurrence out of which the claim arose? The occurrence was the election for Mendi Open, the writ for which was returned on 29 July 2002. Six months after that is 29 January 2003. So he had to give notice on or before 28 January 2003. He did not give notice until 21 May 2003. So he did not give notice within the time required by Section 5(2)(a).

Therefore the plaintiff breached the Claims By and Against the State Act. That is another reason for concluding that he has no cause of action.

Each of the first four issues identified at the beginning of this judgment is answered 'Yes'. That is:

The Court will therefore exercise its discretion to strike out the proceedings. It is unnecessary to deal with any further issues.

Lawyers for the plaintiff: Plaintiff appearing in person.
Lawyers for the first defendant: Paul Paraka Lawyers.
Lawyers for the 2nd and 3rd defendants: Nonggorr and Associates.

Papua New Guinea Law Reports

Toap v State [2004] PNGLR 47; [2004] PNGLR 25 (26 November 2004)