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Novau v Mark [1992] PGNC 105; [1992] PNGLR 229; N1070 (22 May 1992)

N1070

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MESIA NOVAU

V

NIMROD MARK AND THE ELECTORAL COMMISSION

Waigani
Sakora AJ

19-20 May 1992
22 May 1992

NATIONAL COURT RULES 1983 - Order 4 r 26 - Form 6 - Order 16 - Leave to apply for judicial review.

ADMINISTRATIVE LAW - Procedure for application for judicial review - Defects in application for leave.

PROCEDURE - Application for judicial review - National Court Rules O 16 - Defects in procedure for obtaining leave - Inherent jurisdiction of the court to strike out the matter - O 8 r 27 - O 12 r 40 - Application treated as if commenced by ordinary notice of motion - O 1 r 7.

ELECTIONS - National Parliament - Nomination of candidate - Time and place for nomination - Expiry of prescribed period for nomination - Permission to extend period denied - Organic Law on National Elections, Part XI, s 85.

Facts

The plaintiff intended to seek nomination for the Alotau Open seat in the national elections but travelled outside of Papua New Guinea. He only returned to Port Moresby on the late morning of the last day for nomination. As he could not get to the deisgnated place in time he sought to be nominated at the headquarters of the Electoral Commission in Port Moresby. This request was refused by the officers. He sought a review of the decision.

Held

1. A candidate for the national elections had to be nominated at the designated electoral office.

2. "The court will not permit a candidate to nominate after the expiry of the statutory period for nominations when it was his own conduct or the conduct of third parties which prevented him from nominating on time."

Obiter

Courts have an inherent jurisdiction to strike out a matter where there is substantial non compliance with the appropriate Rules of the National Court or where material particulars necessary to the claim or order sought are omitted in the pleadings and or evidence.

The power to strike out actions for abuse of process may also be exercised under the Rules of the Court, O 8 r 27 & O 12 r 40, NCR.

Cases Cited

Papua New Guinea cases cited

Dihm v Returning Officer for Moresby South Electorate [1992] PNGLR 337.
Jababa v Iambakey Okuk [1983] PNGLR 69.
Polling v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 228.
Re Application of Arege Yamagu [1986] PNGLR 248.
Re Organic Law on National Elections [1982] PNGLR 289.

Other cases cited

Blight v Warman and McAllan [1964] SASR 163.
Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141.
Re Coles and Ravenshear [1906] UKLawRpKQB 137; [1907] 1 KB 1.

Counsel

R Vaea, for the plaintiff.
P Ame, for the defendants.

22 May 1992

SAKORA AJ: This is a matter that came before me by what appeared to be an "ordinary" notice of motion pursuant to an originating summons seeking the usual injunctive and/or declaratory orders, as in the usual "late nomination" cases that have so far come before these courts. And as counsel had not drawn the Court's attention to the point by way of the customary brief statements in the manner of an "opening" wherein counsel would normally take the court through the originating summons and the notice of motion, but instead proceeded directly to the adducing of evidence, I was not made aware then that in actual fact this was supposed to be an application for judicial review.

It was on a close perusal of the file after the close of evidence for both parties and before submissions that I discovered the plaintiff/applicant's lawyers had applied for and been granted leave on 8 May 1992 to apply for judicial review of the administrative decisions of the defendants. It transpired also that no order granting leave was on the file. Thus, having obtained leave of the court, Mr Vaea proceeded before me as if it were an ordinary notice of motion as adverted to above. And Mr Ame, counsel for the defendants, made no mention of these matters nor raised any objections.

I mention these at this juncture because I was and am concerned with what appears to have been non-compliance with the National Court Rules 1983 (NCR) (as amended) in respect to Order 16 applications for judicial review. After obtaining confirmation of the true situation from both counsel, the following appear to be what happened before the matter came before me.

A notice of motion dated and filed 6 May 1992 pursuant to an originating summons dated and filed the same date sought two primary orders, which I set out hereunder:

"1. An Order that the Plaintiff be granted leave to apply for judicial review of the decisions by the First and Second Defendants in refusing to have the Plaintiff to nominate for the Alotau Seat (sic) in the 1992 National Election.

2. An Order in the nature of mandamus to compel the First and Second Defendants to allow and have the Plaintiff to nominate for the said Alotau Seat (sic)"

The application for leave was heard ex parte by my brother Salika J on 8 May 1992 and leave was granted then permitting a substantive application. It would seem that certain matters were not properly put before His Honour when he granted the leave. My concern, for which I sought explanation(s) from Mr Vaea and received quite unsatisfactory responses, arose out of my own detection of the following matters in respect to the application for leave:

1. No "Statement in Support" was ever filed with the originating summons, as required by Order 16 r 3(2)(a) NCR.

2. There was no affidavit of "Verification", as required by Order 16 r 3(2)(b) NCR.

3. There is no evidence on the file that any notice was served on the Secretary for Justice together with the named documents as required by Order 16 r 3(3) NCR.

4. The latter concluding parts of Form 6 (originating summons), as per Order 4 r 26 NCR were omitted from the plaintiffs originating process.

5. The order granting leave to apply for judicial review was not "entered"; in any case, there was no evidence of it on the file (not even a draft).

Having obtained leave under Order 16 r 3 NCR, counsel proceeded in the manner described above, thereby avoiding the due discharge of the onus incumbent upon the plaintiff/applicant to outline the relief(s) sought, and to establish by legal evidence the grounds on which relief was being sought - as required if a "Statement in Support" had been filed as required.

And having thus proceeded counsel for the plaintiff did not, in his submissions, indicate to the court exactly what rights, interests or entitlements, legal or constitutional, that the plaintiff was pursuing, and what powers, if any, of the court, inherent, constitutional or statutory, he was seeking to invoke. There is no indication, either in the purported originating process or the submissions of counsel, as to what duties or obligations, statutory or constitutional, it is alleged the defendants breached or omitted to perform. Putting it another way, there was and is no indication as to what public duties the defendants were in dereliction of that an order of mandamus should rectify by compelling due discharge or performance. It would seem the "hows" and the "whys" and the "wherefores" are left unmentioned for the court to work out for itself unaided by the parties. This situation would then seem to provide the recipe or justification for this court to proceed to exercise its power under the doctrine of "the inherent jurisdiction of the court" and strike out the matter. This doctrine is derived from a fundamental principle of English civil procedural law that the superior courts have power to control and supervise the judicial process of the courts and, in particular, to prevent the abuse of the process of the court: Jacob, Sir Jack I H, The Reform of Civil Procedural Laws, Sweet and Maxwell (1982) 298. The power to strike out actions may also be exercised under the Rules of Court: see Order 8 r 27 and Order 12 r 40 NCR.

As the trial had progressed to the submissions stage, I decided to treat the application as if it had been commenced by an ordinary notice of motion, as had been my original attitude: see Order 1 r 7 NCR; it would not have been proper, under the circumstances and in view of the apparent defects mentioned, to treat this as an application for judicial review. Mr Ame intimated that he had no objection to this course of action.

I have been guided in adopting this option by what Collins, M R, said in the case of Re Coles and Ravenshear [1906] UKLawRpKQB 137; [1907] 1 KB 1:

"Although I agree that a court cannot conduct its business without a code of procedure, I think that the relationship of the rules of practice to the work of justice is intended to be that of handmaiden rather than mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case."

This case was cited with approval by the Chief Justice of New South Wales (Sir W P Cullen) in the case of Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141 at 143, 144, which was in turn cited with approval by Wilson J in Polling v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 228.

These sentiments were echoed by Chief Justice Napier of the South Australian Supreme Court in the case of Blight v Warman and McAllan [1964] SASR 163:

"But, however that may be the practice of the Court is the law of the Court and, according to the practice under the Judicature Act, the rules of pleading are to be regarded as subservient to, and not as overriding, truth and justice. As the late Sir Samuel Way used to say, 'the trial judge is not umpiring a game of chance or skill, he is administering justice' .... "

Now to the substantive issues of this case.

The plaintiffs evidence is that on 10 April 1992 he departed Alotau en route to Melbourne via Port Moresby on a business trip. There was no evidence as to when he actually departed Port Moresby for Melbourne, but he did attend to business meetings there and did not return to the country until the late afternoon of 23 April 1992, on the very eve of the closing of nominations. He said he had a confirmed seat on the 7.45 am Talair flight to Gurney Airport (Alotau) the next day, 24 April. He decided not to take that flight because, he says, he discovered on the evening before from his election co-ordinator at Alotau that he was late for nomination at Alotau and would have to go to Rabaraba. The Provincial Returning Officer (PRO) for Milne Bay, Mr Nimrod Mark, would not accept the plaintiffs nomination forms in Alotau. The plaintiffs intended parliamentary seat was Alotau Open, whose electoral office and Returning Officer (RO) were based in Rabaraba (15-20 minutes by plane and 12-13 hours by boat, and no vehicular road).

He decided in the end that his best bet, as it were, was to make a direct frontal personal approach to the electoral officials at the national headquarters, especially the Electoral Commissioner. This would have the obvious advantages where time, distance and absence would not be operating as inhibiting factors. His pressing problems would, he hoped, receive direct, prompt and sympathetic hearing, and elicit prompt decision. In the end he found that he could not see the Electoral Commissioner himself. However, he was able to discuss his problems with two senior officers, Messrs Morea Veri and Andrew Trawen, both Assistant Electoral Commissioners responsible for Operations and Policy/Planning branches respectively.

The evidence of the two officers is basically that, apart from advising the plaintiff that by law he had to be nominated that day at Rabaraba and nowhere else, they were powerless to assist him in the way he was requesting - nominate at Boroko instead of at Rabaraba as required by s 85(2)(a) Organic Law on National Elections (hereafter OLNE). One officer provided, upon request, a nomination form, and the other faxed the incomplete form to Alotau. They did not have to do these, but they indulged him, no doubt because of their sympathy, helplessness and impotence in quite an untenable situation.

The plaintiff said in his evidence that his original plan was to return from Melbourne on 15 April 1992, fly to Alotau on 16 April, walk to a place outside Rabaraba on 17 April, walk down to Rabaraba with his supporters and nominate in their presence on 21 April. This initial plan was changed and he stayed some extra days longer in Melbourne - in the end he flew to Brisbane on 21 April, intending to make the 22 April Port Moresby Air Niugini flight, and fly to Alotau on 23 April. But he missed the Air Niugini flight, flying to Port Moresby on the 23rd by Qantas, arriving about 4.00 pm. The plaintiff alleged that the changed travel plans resulting in extra days in Melbourne was as a direct result of something said by Mr Mark, the first defendant, in a brief conversation some days before 10 April. The gist of this conversation, according to the plaintiff, was that Mr Mark would accept the plaintiffs nomination in Alotau instead of having to nominate physically in Rabaraba.

Mr Mark acknowledged a conversation with Mr Novau a few days before 10 April, but denied, in both affidavit and oral evidence, that particular aspect of the conversation. In cross-examination by Mr Ame, the plaintiff said he did not tell Mr Mark on that pre-10 April conversation his travel plans, especially any reference to Melbourne. That trip arose some days later. Mr Mark was, therefore, unaware of any out-of-Alotau or out-of-the country travel plans. Therefore, even if I were disposed to accepting the plaintiffs evidence that Mr Mark made the statement alleged, then I could not proceed to conclude (as the plaintiff would have me conclude) that Mr Mark was talking about accepting nomination after the Mr Novau's return from Melbourne. The only basis for reference to accepting Rabaraba nomination at Alotau, if there had been such a reference, would be the situation envisaged by s 85(2)(b)(i) OLNE. I have to set out here in full s 85:

"(1) Nominations of members may be made to the Returning Officer for the electorate for which the election is to be held, to an Assistant Returning Officer for that electorate, or to a person thereunto authorized by the Electoral Commission.

(2) Nomination may be made at any time after the issue of the writ and:

(a) in the case of a nomination made to the Returning Officer - before the hour of nomination; and

(b) in the case of a nomination made:

(i) to an Assistant Returning Officer or other person referred to in Subsection (1); or

(ii) in respect of a person who is not enrolled for the electorate,

before the commencement of the period of seven days immediately preceding the hour of nomination.

(3) Where a nomination is made to an Assistant Returning Officer or other person referred to in Subsection (1), he shall immediately notify the Returning Officer by telegram, in the prescribed form, of the details of the nomination and deposit and forward the nomination to the Returning Officer."

Mr Mark's long experience and direct familiarity with national elections and all that they entail, over a period of 20 years, were not challenged. Under the circumstances then, I cannot conceive of Mr Mark intending to vary the statutory requirements by that statement of the pre-10 April conversation with Mr Novau, if he in fact made it (which he denied), as the plaintiff urges me to read or believe.

I do not intend to discuss other evidence adduced before me because I do not consider them to be helpful and relevant to the crucial question here. The issue is whether or not Mr Mark, the PRO, said or did anything in his official capacity, in respect of an official duty or function, that prevented the plaintiff from being nominated within the prescribed period. No other persons, at least not those who gave evidence here, were privy to the two conversations on the two occasions that the plaintiff places great reliance on - before and on 10 April. Evidence of the two senior electoral officials at Boroko, adverted to already, does not amount to anything that could properly be said to have prevented the plaintiff from nominating within time. They had no direct and immediate responsibility with the plaintiffs intended candidature for the electorate in question, which had to be legally evidenced by submitting to and completing the nomination process at Rabaraba by the hour of nomination on 24 April.

What this whole case amounts to is this: instead of being in his province and in his intended electorate, at the designated place of nomination, the plaintiff turned up at the national headquarters of the Electoral Commission on the late morning of the last day of nomination, expecting people to drop whatever they were doing and indulge him in a way that would breach the OLNE. The two senior officers explained to the plaintiff in clear unambiguous language the actual legal position. After 17 April 1992, because of s 85(2)(b)(i) OLNE, the plaintiff had to be nominated at Rabaraba and nowhere else.

Mr Ame put to the plaintiff in cross-examination that what the factual situation demonstrates is that Mr Novau had had his priorities wrong, whereby his business affairs warranted and received more consideration and attention than realising his political aspirations. So much so that his mind does not seem to have been directed to the serious possibility that once he went out of the province, and out of the country, in the last two weeks of the nomination period, he might not be able to get back in time, and, thus, taking the more prudent option of nominating first. I would agree that this is a reasonable suggestion or implication in all the circumstances of the case.

The plaintiff was also asked in cross-examination whether his travel plans and arrangements took due account of factors such as missing flights, late or cancelled flights etc. He answered that his main concern was with the connection flights because in Australia, with flights between Melbourne and Brisbane, if you miss one you could get on the next. This is, of course, no answer. In the end the plaintiff got to Brisbane and could not make the 21 and 22 April Air Niugini flights to Port Moresby.

The travelling public these days must take account of the vicissitudes of modern international and domestic air travel. Whilst the world becomes compressed, as it were, by fast comfortable jet travel and thus time and distance become insignificant considerations, there are so many things that could go wrong for a host of reasons. But the most prevalent cause of disruptions to airline schedules these days is industrial action. Many industrial groups covering a myriad of occupations can, and often do, bring air travel to a virtual standstill. The best laid plans are bound to be disrupted. Airlines cannot guard and make provisions against unpredictable acts of nature and man. These are obviously no respectors of the traveller's private, business, political and whatever else affairs.

Thus, attending to immediate urgent political affairs and deadlines featured not so prominently in the life of this plaintiff in the last two weeks of the nomination period, except of course on 24 April, the final day of nomination. It was almost as if the nomination were an after-thought when the more important and pressing matters had been attended to in Melbourne. There is no evidence of the nature of the business meetings in Melbourne. However, an inkling of sorts emerges from the urgent communications between the plaintiff and the Prime Minister's office on 22 April regarding his inability to brief the Prime Minister on timber deals. Mr Novau said in his oral evidence that he had been updating information on some timber deals to brief the Prime Minister because he had been asked a question in Parliament in November 1991. It would seem, therefore, that this and other business commitments were accorded prominence in time, attention and consideration. The onus here lay fairly and squarely on the plaintiff himself to arrange and order his many competing interests and affairs properly so as to get his priorities right.

Mr Vaea in his submissions urged this court to consider and accept Mr Novau's situation as analogous to Mr William Dihm's in the case of Dihm v Returning Officer for Moresby South Electorate and the Electoral Commission [1992] PNGLR 337. A proper reading of the facts in the Dihm case and in this would make it abundantly clear that the two cases have no resemblances or parallels with each other on any important aspect. Rather, it would be demonstrated by the distinctively different factual situations that the present case was more analogous to those "late nomination" cases that the Dihm case was distinguished from. These cases have been referred to me again here by Mr Ame: Re Organic Law on National Elections [1982] PNGLR 289; Jababa v Iambakey Okuk [1983] PNGLR 69; and Re Application of Arege Yamagu [1986] PNGLR 248.

In William Dihm's case, the intending candidate did all that was required of him (through the various advices, instructions and directions from his inquiries) to do, and did so within sufficient period of time before closing of nominations. Although Mr Dihm is a resident of the National Capital District (NCD), his electorate is within the geographical boundaries of NCD, and the designated place of nomination within minutes of driving from his home, he took the sensible and prudent step of going to nominate some 18 days (approx. 3 weeks) before the hour of nomination. Mr Dihm went to the designated place of nomination four clear days before Mr Novau embarked upon his business trip, which took him out of his electorate, out of the province and out of the country.

The law on late nominations for national elections is not in doubt or in dispute. It is as stated in the cases referred to here by Mr Ame and as surveyed in the Dihm case (pages 10-11 judgement). A proper reading and appreciation of those decisions would lead one to the conclusion that the William Dihm situation was distinctly different. Thus, my decision in the Dihm case did not in any way question or affect the authority and relevance of those earlier cases. To suggest, therefore, that his present case is similar to the Dihm case is to misread the cases or ignore their import. The facts of this case attract the operation of the law as stated in those earlier cases. And the law is that the court will not permit a candidate to nominate after the expiry of the statutory period for nominations when it was his own conduct or the conduct of third parties which prevented him from nominating on time.

The plaintiff/applicant here was the sole author of all those factors and circumstances which collectively and cumulatively contributed to his being in Port Moresby on the morning of the last day of nominations. No blameworthiness - more particularly any breach of statutory duties and obligations - on the part of Mr Mark or any other officer of the Commission has been demonstrated here.

I, therefore, dismiss the application with costs.

___________________

Lawyer for the plaintiff: Rae Vaea Lawyers.
Lawyer for the defendants: Solicitor General.