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Re Disputed Returns for Huon Gulf Open Electorate: Richard J Moaitz v Tom Awasa and Electoral Commission [1983] PGNC 9; N424 (23 June 1983)

Unreported National Court Decisions

N424

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 125 OF 1982
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR HUON GULF OPEN ELECTORATE
AND
IN THE MATTER OF RICHARD J. MOAITZ
PETITIONER
AND
TOM AWASA
FIRST RESPONDENT
AND
ELECTORAL COMMISSION
SECOND RESPONDENT

Lae & Waigani

Gajewicz J
1-5 November 1982
1-3 December 1982
6-10 December 1982
19 April 1983
23 June 1983

DECISIONS AND REASONS

GAJEWICZ J: Thia petition to the NatioNational Court made pursuant to s.206 of the Organic Law on National Elections. The petitioner Richard J. Moaitz was the runner-up. He polled 1,663 votes which wavotes less than the successccessful candidate, Tom Awasa, the first respondent.

The petitioner made a number of allegations. Some of them were deleted by his counsel, Mr B. Narokobi, on 1st November 1982

The allegations, numerous as they were, can be divided under three headings: bribery, undue influence and illegal practices and malpractice.

The hearing of this petition took place at Lae. It lasted 13 days, but on many occasions the court continued to hear the evidence until very late hours and the actual hearings extended to over 15 normal court working days.

Because of the enormous amount of evidence which had to be taken down in writing and a great number of documentary exhibits, I requested all counsel to make written submissions on the evidence as well as on the relevant points of law. The submissions were received by me; Mr Narokobi’s on 9th March 1982, Mr Tatabe’s, who appeared for the Electoral Commission, the second respondent, on 31st March 1982 and Mr Cholai’s, who appeared for Tom Awasa, the first respondent, on 8th April 1983.

Some witnesses did not give evidence in English. At the beginning I had great difficulty in understanding the names of the persons involved in the polling as well as the names of various places mentioned by the witnesses. Some persons were referred to by different witnesses by different names. Some places were known under different names, and some sounded similar to others. This difficulty was shared by all counsel. The variety of spelling of the names is amazing. However I overcame this difficulty with the help of the written submissions. I am indebted to counsel for their submissions. Without them, I admit, it would be impossible for me to understand the evidence.

I turn now to the allegations of bribery. The petitioner alleges that during the election campaign Tom Awasa distributed beer to Nasuapum men with the aim of winning their votes on or about 22nd May 1982. He also distributed beer to those men ten times prior to and during the polling period. No evidence was given about that second allegation. The evidence relating to the first distribution is uncomplicated, although many witnesses were called to support it. The facts as I find them were as follows.

During his election campaign Tom Awasa arrived at Wampet, or Wampit, Village. He gave K20.00 to one of his aids for the purchase of food and beer. This aid gave the K20.00 to an old man who, with some other men, went to another village, some ten miles away. They travelled on a truck. The old man bought, it seems, some food and, which is quite certain, some beer. On their way back, the other men who were on the tray of the truck with the old man, opened the carton of beer bought out of the K20.00, and drank it. That was done without the knowledge of Tom Awasa. When the truck arrived at the village where Tom Awasa was staying, his aid became angry with the men who had drunk the beer. He told them that Tom Awasa would take them to court. This is, of course, a brief resume of the evidence. Hours were spent on examining and cross-examining the witnesses involved in that incident. I admire Mr Narokobi for his enthusiasm, vigour and energy which he demonstrated in this case, but I cannot agree that these facts would even remotely amount to bribery. It is therefore not necessary for me to say anything about the decided cases on bribery cited to me.

The allegations of undue influence appear to be, on the facts, more complicated and they involve interpretation not only of the Organic Law but also of the criminal cases. This matter is subject to numerous cases decided by the National as well as the former Supreme Court of Papua New Guinea. The allegations contained in the petition relate to defamatory statements about the personal character or conduct of the petitioner. It is not alleged that Mr Awasa himself made the defamatory statements. The allegations are that they were made by other persons who are said to be agents of Mr Awasa.

Section 217 of the Organic Law reads:

“The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

At first blush this section looks deceptively simple. “The National Court shall be guided by the substantial merits and good conscience of each case ...”. However, it is axiomatic that an Act must be read as a whole.

Section 204 of the Organic Law reads:

“Every person is liable for an illegal practice or an offence against this Part committed directly or indirectly by himself, or by any other person on his behalf and with his knowledge or authority.”

Section 201 which deals with defamation of candidate is in the same Part as s.204. S.201 prescribes a penalty of K800.00 or imprisonment for six months for the breach of it.

I find that defamatory statements in relation to be petitioner’s character, or his conduct, were made by persons other than Tom Awasa. There is, however, no evidence that these statements were made with his knowledge or authority. On the contrary, the evidence is that the statements were made contrary to his specific directions. I agree with Mr Justice Bredmeyer when he said recently in his unreported decision in Yano Belo and Soso Tomu, Election Petition Kagua/Erave Open Electorate (Unnumbered Ruling dated 12 May, 1983) where he said:

“I consider that a candidate is not absolutely liable for the conduct of his agent in Papua New Guinea.”

It may well be that the statements were made by Tom Awasa’s agents. It may be that under the Common Law he would be vicariously liable for their acts. It may be that the well known and oft-quoted phrase “on a frolic of his own”, which was coined by Baron Parke in Joel v. Morison (1834) 6 C. & P. 501 at p.503, would, in another jurisdiction, not apply to a similar set of circumstances. The fact, however, is that by virtue of s.204 of the Organic Law, Tom Awasa cannot be held liable for an illegal practice, or an offence against Part XVII of the Organic Law, because these statements were made without his knowledge and authority. I would add that, in the context of the present case, the last part of s.204 which absolves a candidate from any illegal practice or offence done by his agents without his knowledge or authority, seems to me to be most unjust and inequitable. The facts in this case are that Tom Awasa approached several persons whom he asked to help him in his election campaign. He saw each such person only once, either alone or together with other such persons. He gave them instructions how to conduct the campaign. One of such instructions was that his aids should not, under any circumstances, make any comments about other candidates. But, having done that, Mr Awasa left his aids to their own devices. He did not even attempt to check what they were doing. He deliberately shut his eyes to the consequences which could flow from their acts and did not consider it necessary to exercise any control whatever over the activities of his agents. Under any other law, be it criminal law, law relating to contracts, or to negligence, the law of agency or torts, Mr Awasa would be clearly responsible under such circumstances for the acts of his agents. I find this provision of s.204 repugnant to justice and conducive to abuses of the very essence of the free election as propounded in the Constitution. Any candidate can escape liability by saying: “I told my aids not to say anything about other candidates, but I did not bother to find out whether they obeyed my instructions”. This provision offends deeply my understanding of what “good conscience of each case” is. However, I am powerless; because of that provision in s.217 I am unable to “be guided by the substantial merits and good conscience of” this case. I must therefore, with great regret, find that allegations relating to undue influence have not been proved.

The third and the last heading of the allegations contained in the petition relate to illegal practices and malpractices.

I shall deal with the allegations seriatim as set out in the petition.

Paragraph 11(a) has been deleted by the petitioner on 1st November 1982.

Paragraph 11(b) alleges that:

“Common Rolls and Supplementary Rolls were not properly kept up to date with the result that whilst up to 90% of total votes cast at West Taraka were votes cast under s.141 of the Organic Law; in other places like Muya Community School and at Six (6) mile more than 200 eligible voters under s.179(1)(e) of the Organic Law were deprived of their right to vote. A formal complaint was made on 15th June 1982 to the Returning Officer.”

In respect of the first part of the allegation, I am not satisfied that there is sufficient evidence that the Rolls were not properly kept. Moreover, s.214 of the Organic Law expressly enacts that “the Court shall not inquire into the correctness of a Roll”. That part of this section is another example of restrictions placed on the court which, under s.217 “shall be guided substantial merits and good conscience of each case ...”

In respect of the second part of the allegation I find that there is some evidence to the effect that at one stage when voting was in progress at Muya Community School a disturbance occurred caused by a drunken man who apparently was telling the people not to vote. There is, however, no evidence that this disturbance disrupted the voting and there is certainly insufficient evidence that “more than 200 eligible voters under s.179(1)(e) of the Organic Law were deprived of their right to vote”. The number two hundred was alleged in the petition. In his submissions Mr Narokobi said that “... at Muya, over 60 people did not vote, because a drunkard had disrupted the voting”. I must therefore find that this allegation has not been proved.

Paragraph 11(c) alleges that:

“At 10 mile, team No. 4 ran out of ballot papers causing long delays which resulted in many eligible voters dispersing without exercising their democratic right to vote. No opportunity was given to them to vote later, an act which affects the result of the election, contrary to s. 218(1).”

Evidence adduced on behalf of the petitioner relating to this allegation is contradictory. Manase Akuila, whose name was also spelled Manesa Kwila and Manese Kuila, said that ballot papers ran out at about 1.30 p.m. The witness Ankog Garry, whose name is also spelled Angkok Gari, said that the ballot papers ran out at about 10 a.m. The evidence adduced on behalf of the Electoral Commission is to the effect that at no stage did ballot papers run out and that the voting was not suspended. What happened was that the number of brown envelopes used for s.141 votes started to run down and an official was despatched to replenish them. In view of such evidence I cannot be satisfied that this allegation has been proved.

Allegation 11(d) was deleted on 1st November 1982.

Paragraph 11(e) alleges that:

“On 7th, 8th and 9th of June, 1982, at West Taraka, three Pangu Pati campaign committee men were used by Pangu candidates as witnesses or interpreters for illiterate voters. These men were within the polling booths, influencing the voters. I lodged a formal complaint to the Returning Officer on 9th June, 1982.”

Apart from Exhibit “F” which is the letter of complaint, no evidence was given to substantiate this allegation. It would not be safe for me to rely on that letter and I am not satisfied that this allegation has been proved.

Paragraph 11(f) alleges that:

“At West Taraka, polling schedule was varied giving two extra voting days whereas the Government Gazette No. G29 of 13th May, 1982, set down only one day for polling. It is therefore alleged that voters from Lae City Open electorate took advantage of the extra voting days and voted under s.141 of the Organic Law, for candidates in Huon Gulf Open electorate where they were not eligible to vote.”

I agree with Mr Cholai’s submission that “...no evidence was led by any witness for the petitioner to show that in fact a voter from Lae Open voted under section 141 in the Huon Gulf Open electorate because of the change in polling schedule”. Section 117 of the Organic Law on National Elections quite clearly states that:

“An election shall not be challenged on the grounds of a failure to observe a polling schedule or to comply with the provisions of section 115, or of a variation or a departure from a polling schedule.”

I would add that s.115 imposes certain duties on the Returning Officer and presiding officers in respect to adherence to polling schedules, but it also gives them discretion, under specified circumstances, to vary the polling schedules.

Section 117 of the Organic Law is another example that the provisions of s.217 requiring the court to be guided “by the substantial merits and good conscience of each case ...” are illusory. I must therefore find that I am not satisfied that this allegation has been proved.

Paragraph 11(g) of the petition is conceded by Mr Narokobi to have failed as no evidence was called to substantiate it.

Paragraph 11(h) of the petition alleges that:

“On Thursday 17th June, 1982, at Chevasing Village at 0900 hours, the Presiding Officer made a public announcement that he would personally inspect all ballot papers after polling and if he was satisfied, he would place the ballot papers in the box. If he was dissatisfied, he would destroy those ballot papers he was dissatisfied with. This announcement was in fact executed, and was continued until 1600 hours when my scrutineer protested. The Presiding Officer whereupon instructed a policeman to arrest my scrutineer. This was done and my scrutineer was charged with an offence which was later dropped.”

In support of the first part of the allegation, evidence was adduced that ballot papers were inspected by the presiding officers at other polling places than Chevasing Village. These places were Tseli Tseli, also spelled Tsile Tsile and Chiri Chiri; Maralina, also spelled Mararina; Dunungtung, also spelled Dubungtung and Dungutung; Bawuaf, also spelled Babwaf and Babuaf; and Uruf, also spelled Wuruf.

Figures of spoiled ballot papers were given by Mr Paul Moaitz, a brother of the petitioner who, at several polling places, acted as a scrutineer for the petitioner.

I cannot consider what happened at other places. Chevasing Village alone is specified in the petition and I am afraid he is bound by the particulars set out in his petition. I could use the figures as a comparison, but because of the view I take of the evidence it is not necessary to do that.

Mr Paul Moaitz is a very energetic and courageous man who was keenly interested in his brother’s political career.

I found him to be a very good witness. At times he, perhaps, got a little excited, but I am satisfied that he did not intend to mislead the court and that he genuinely believed that what he said in the witness box was the truth. I accept that he informed the petitioner of what he believed at that time, that is, when he spoke to the petitioner, was true about the public announcement made at 9 a.m. at Chevasing Village by the presiding officer. I cannot, however, accept that at 9 a.m. on 17th June 1982 he understood that the presiding officer said to the people that he would personally inspect all ballot papers and that if he was satisfied he would place the ballot papers in the box, but if he was dissatisfied he would destroy those ballot papers he was dissatisfied with. From Mr Paul Moaitz’s evidence given about this particular matter and about other matters relating to this petition, it is clear that he had quite a good knowledge of the polling procedure. Had he understood at 9 a.m. that the presiding officer was going to destroy invalid ballot papers, I have no doubt that Mr Paul Moaitz would have immediately intervened and protested about the proposed procedure. S.146 of the Organic Law requires, inter alia, that the presiding officer must place spoilt ballot papers in an endorsed envelope. I do not think that Mr Paul Moaitz would know the number of the section, but I am satisfied that he knew that that was the correct and proper procedure. From his evidence it is clear that he intervened at a much later stage, namely when he realised that the voting was taking a long time and that, as he said,

“There are still people to vote and you are wasting time cancelling the ballot papers.”

The other witness called on behalf of the petitioner, Mr Jimmy Sowate, one of the polling clerks, was not a good witness. His knowledge of the polling procedure was very scanty. He said that he himself and other polling clerks told the presiding officer that it was wrong to put spoilt ballot papers in envelopes.

I accept that at about 9 a.m. at Chevasing Village, Mr Samuel Garang, the presiding officer, made a public announcement to the people who were gathered there to cast their votes explaining, among other matters, that if a voter thought that his ballot paper was spoilt he should come to him and ask for a new ballot paper. I think I can take judicial notice that in rural areas of the Huon Gulf Open electorate there are unfortunately still many illiterate, and very many half-illiterate people. Evidence to that effect was given during these hearings. The evidence also discloses that people were interested in the National election, and very eager to vote. It is therefore not surprising that many people wanted to be quite sure that they had filled in their ballot papers correctly and that they did approach the presiding officer, and did ask whether the ballot papers were in order. In my view, the presiding officer’s duty under the circumstances was to look at the ballot papers. If a ballot paper was spoilt he would cancel it and write the word “spoilt” across the face of it, and place it in an endorsed envelope as he was required to do under s.146 of the Organic Law. I am satisfied that that was what had happened at Chevasing Village. Fifteen ballot papers were cancelled there because they were spoilt. No doubt more than 15 people approached the presiding officer to find out whether their ballot papers were in order. For those reasons, I must say that I am not satisfied that the first part of paragraph 11(h) has been proved.

The second part of that paragraph alleges that the presiding officer instructed a policeman to arrest Mr Paul Moaitz. Having seen him in the witness box, I would be very surprised if he would say nothing else but: “There are still people to vote and you are wasting time cancelling ballot papers”, or words to that effect. He must have been much more vociferous. I do not think that, under the circumstances, the removal of Mr Paul Moaitz from the polling booth, or his detention by a police officer for some 30 minutes, amounted to an illegal practice. Nor do I think that the result of the election was likely to be affected by that detention. I am, therefore, not satisfied that the second part of the allegation contained in paragraph 11(h) has been proved.

Paragraph 11(i) and (k) allege that on 17th June 1982 at Chevasing a scrutineer of another candidate acted as a witness for one illiterate voter. I find this allegation proved. I disagree that “witnessing” an illiterate voter does not amount to “assisting” such voter. In any event, s.128(1)(c) enacts that:

“A scrutineer shall not enter a compartment of a polling booth whilst a voter is present in that compartment”.

However, the scrutineer’s act does not amount to an illegal practice and it cannot possibly be said that this incident could affect, or was likely to affect, the result of the election.

Allegations contained in paragraph 11(j) of the petition are to the effect that on 19th June 1982 the polling schedule was altered without due notice. For the reasons which I stated when dealing with paragraph 11(e) of the petition, I am barred by virtue of s.117 of the Organic Law from considering these allegations.

Allegations contained in paragraphs 11(l) and (m) are to the effect that Pangu Pati candidates were present and posters were displayed within the 7 metre perimeter of a polling booth. I find that this is not supported by the evidence.

The allegation contained in paragraph 11(o) of the petition appears to be added as an afterthought to allegation 11(j). I cannot consider this allegation because of s.117 of the Organic Law.

The main allegation is set out in paragraph 11(n) of the petition which alleges that:

“At Erap D.P.I. Station the Presiding Officer refused many eligible voters their right to vote on the ground that their names were not present in the Common Roll, an error not within control.”

I agree with Mr Narokobi that “There is no doubt whatsoever that there was much confusion about the polling that was to have taken place at Irumu or Fayang Village.” I would add that there was confusion about the polling places relating to workers from Rumu Plantation, Mararumi Rothmans Tobacco Farm and Markham Farming Pty. Ltd. plantation and Erap D.P.I. Station.

My understanding of the evidence is that on 23rd June 1982 at the Erap D.P.I. Station, polling took place. A very large number of people came to vote. They came in groups from different villages, settlements and farms. For the sake of convenience, or perhaps because of local custom as well, they sat in separate groups. The polling officers were calling names of voters from the Common Roll, group by group. Among the groups there were workers and their wives from two plantations. Some time in the afternoon when the voting was nearly completed, workers from Rumu Plantation wished to vote. I accept that they were told “your names are not on the voting list and you cannot vote”, or “you Rumu people are not on the Roll and you cannot vote”. The people demanded to vote but only one, after a long and heated argument, was allowed to cast his vote under s.141 of the Organic Law. The others, despite protests, were not allowed to vote. It is difficult to ascertain the exact number of those people. However I am satisfied that about 40 people, that is, men and women, were told that they could not vote. They then returned to their plantation. On their way back they met a vehicle with about 30 other workers and their wives who were proceeding to vote at the Erap D.P.I. Station. The workers who were returning to the plantation told those people that they were not allowed to vote. The others then turned back and did not go to the polling place. I find that about 80 men and women did not vote as they, perhaps, could have voted under s.141 of the Organic Law. In support of this evidence books from two plantations containing names of the workers and the duration of their employment were tendered in evidence. Mr Narokobi very carefully obtained oral evidence from witnesses who obviously knew every person whose name appeared in those books. The witnesses knew when each person started to work on the plantation, the place from which he came and whether he was married, when he was married and when his wife arrived at the plantation.

Mr Narokobi also established who went to Erap D.P.I. Station to vote and whether his wife went with him. Obviously there was some confusion, and discrepancies were discovered during cross-examination of those witnesses. As I said earlier, I am satisfied that about 40 people did arrive at the polling place and about 30 turned back when they were told they would not be allowed to vote.

I am satisfied that the majority of those workers and their wives should have been on the Common Roll. Some of them had been living at the plantation for many years.

The obvious question is, what are the consequences of my finding of these facts. If I were free to “be guided by the substantial merits and good conscience of” this case, I would be obliged to say that this election should be declared void. However, the provisions of s.141(1)(a) of the Organic Law create insurmountable difficulty for me to do that.

I said earlier that s.217 is illusory. In my view, upon the correct construction of that section, the reference to “the substantial merits and good conscience” applies only “to legal forms or technicalities, or whether the evidence before (the court) is in accordance with the law of evidence or not”.

Section 141(1)(a) of the Organic Law is well known. It has been discussed by Frost C.J. in Re Moresby Northwest Parliamentary Election (1977) P.N.G.L.R. 338, at pp.343 to 346. At pp. 345 and 346, Sir Sydney Frost said this:

“But, as Mr Gregory submitted, the provisions made in the Constitution for every citizen who has full capacity and has reached voting age, subject to certain exceptions, to have the right and to be given a reasonable opportunity to vote for elections, may be relevant to this issue, and may indicate that, in the special circumstances of the country and its people, a wider operation should be given to s.141 (1)(a). On this point, in particular, I express no opinion.”

Section 141(1)(a) was also discussed by Raine, Dep. C.J. in Re Petition of Sir Maori Kiki (1978) P.N.G.L.R. 446. At pp. 449 and 450 his Honour said:

“Section 141(1)(a) sets out, in no uncertain way, to ensure that the door is not shut in the face of people who:

(i) &#w60; tont ercexe thsir deir democratic right to vote for the man or woman they see as the best or better candidate, where

(ii) &##1he potrovor vor thadidhadidate is properly erly qualiqualified fied to doto do so, so, and where the fact he was not enrolled is due to an error or omission

Ttatesmatter in very broad terms, for I have have set oset out thut the section in full already.

However, while the voter is protected, and also his right to exercise his democratic rights, s.141(1)(a) does have some sanctions or restrictions and they are necessary ones. They are clearly seen when one looks at (a) (supra). See, as to witnesses 9 to 32, s.141(1)(a)(i), (ii), (iii) and (iv). Thus, as well as demonstrating the need for some “error or omission” and that “he is not enrolled for another electorate”, which, I say provisionally, neither witness has succeeded in doing, the complainant denied of a vote has also to show one or other of the matters referred to in (a)(iii) or (iv). He cannot simply turn up and say “I live here, I am old enough”. He has to show that he is on the Roll or has made a “claim” to be on the Roll within the time specified.”

The evidence before his Honour was very similar to the evidence in this case.

At p.450 his Honour said, referring to the witnesses:

“They never made a claim for enrolment, either in a semi-formal or informal way. They simply turned up at the booth, believing that people should vote.”

This is the position in this case.

Referring to errors or omissions mentioned in s.141(1)(a)(i) which reads: “in the case of a person whose name has been omitted from the certified list his non-enrolment is due to an error or omission in the compilation of the Roll ...”, his Honour said this at p.450:

“As I see it, there can be no “error or omission” on the part of officials where people who are, to them, completely anonymous, simply fail to come forward and make a claim for enrolment or transfer. The electoral officials plainly have a duty to make up a Roll, and this means seeking people out. It means a deal of publicity and a lot of work. But the officials have to rely on some public response in a country divided by seas, rivers, mountains and customs, and where there is a great deal of migration from place to place.

However, failing a fairly serious breach of duty by officials in some areas, particularly the more backward ones, where sundry villages are not put in the picture, through neglect of duty, then, leaving aside special personal matters, sickness, training overseas, or so on, it is hard to see how witnesses like the two I have heard can surmount s.141(1)(a)(iii). One simply cannot turn up as was done here, on polling day, and claim a vote, unless one complies with the statutory requirements. The alternative would result in chaos and possible dishonesty.”

The evidence in this case differs from the case before his Honour. There the witnesses lived and worked at the Gateway Hotel in Port Moresby. In the case before me the witnesses and their wives lived at plantations which are remote from the main towns of the electorate. The evidence is that the officials visited the plantations only on one occasion. The workers were working at that time and no names were obtained. In my view the officials should have made better attempts to obtain the names of workers and their wives. An obvious thing to do was to see the managers of the plantations and ask for their assistance in obtaining the names. That was not done.

However, the plantations are remote. Moreover the last National election was advertised a long time before the voting dates. All political parties and candidates conducted very vigorous and well-organised election campaigns. I find it impossible to accept that the workers were unaware that the National elections were forthcoming. I must find that they were aware of the elections months before the polling dates. But they did not do anything to enroll. They simply turned up at Erap D.P.I. Station and, in effect, said: “we live here, we are old enough, we want to vote”.

I know that I am not bound by Deputy Chief Justice Raine’s decision. But I consider that it would be presumptuous of me not to follow it, although I might possibly disagree, with greatest respect, with his Honour.

For these reasons I feel that I should reject the allegations made in paragraph 11(n) of the petition.

Reading my reasons for decision I found that I omitted to say anything about the standard of proof I applied in this case. There was virtually no dispute that the proper standard of proof was applied and explained by Frost, C.J. in Re Menyamya Open Parliamentary Election (1977) P.N.G.L.R. 298 where his Honour held that “The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference.” I applied the same standard.

For reasons which I have stated I must dismiss this petition with costs.

On 1st December 1982, at Lae, I made an order that Mr Cholai personally pay to the petitioner costs for two hearing days. Later, on another day, I ordered that the petitioner pay to the respondents costs for a half-a-day hearing. These orders should be taken into account when costs are taxed.

I note that the petitioner has already taxed his costs, but the dates appearing on the document are stated incorrectly. This should be remedied.

I wish to thank counsel, and especially Mr Narokobi, for their assistance given to me during the prolonged hearings.

Lawyer for the Petitioner: B.M. Narokobi

Counsel: B.M. Narokobi

Lawyer for the First Respondent: Peter D. Donigi & Co.

Counsel: M.C. Cholai

Lawyer for the Second Respondent: A/State Solicitor, O.B. Emos

Counsel: A. Tatabe