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Mionzing v Avini and Electoral Commission [1992] PGNC 36; N1112 (7 October 1992)

Unreported National Court Decisions

N1112

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO 214 OF 1992
TOFFAMO SIMANG MIONZING - PETITIONER
AND
YAIP AVINI - 1ST RESPONDENT
AND
ELECTORAL COMMISSION - 2ND RESPONDENT

Lae

Hinchliffe J
23 September 1992
7 October 1992

PARLIAMENT - Election - Election Petition - Compulsory Conference - Petition not served - Notice of Intention to Defend filed - Question of adequate service.

Counsel:

G Langtry for the Petitioner

C Karingu for the First Respondent

D Kombagle for the Second Respondent

JUDGMENT

7 October 1992

HINCHLIFFE J: The petitionfiled on 19 Au19 August 1992 and a compulsory conference was fixed for 23 September, 1992 before me in Lae. At the commencementhe said said conference it was indicated that an applicatiold be made to strike out thut the petition because it had not been served on the first respondent and also that parts of it containedgations and not facts.

There is no dispute regarding service, clearly the petition was not formally served on the first respondent.

On 20 August, 1992 the Registrar of the National Court at Waigani sent a copy of the petition to the first respondent addressed to him at the National Parliament. It res follows:

&#8p>“In accordance with a direction of the Chief Justice I enclose a Petition naming you as a Respondent that was filed in the National Court on 19 day of August, 1992

I draw to your attentioention the enclosed Practice Direction which sets out the procedures being followed to deal with Election Petitions arising from the recent National Elections.

You will note from clause 10 of the Practice Direction that the Petitioner must still serve you with the Petition, this copy is being sent to you for your information, and not by way of service on you.”

From what Mr Karingu said it seems that his client did not receive the said letter from the Registrar but he did hear that a petition had been issued against him. Onptember the first responespondent instructed Mr Karingu to appear for him at a preliminary conference regarding the petition in Waigani. At that stage the firspondspondent had still not the petition so Mr Karinguringu "went in blind" so to speak. I gathat Mr Karingu saw a aw a copy of the petition at the said cence on 10 September but it was not, I am told, until 16 or16 or 17 September that the first respondent saw a copy of it.

On 1tember, 1992 the first resp respondent filed a Notice of Intention to Defend even though he had not been served with the petition. On 17 September, 1992 Mr Karingu sent a letter to the lawyer for the petitioner and said as follows:

“We refer to the above and advise that we act for the Respondent, Mr Yaip Avini.

We hereby put you on Notice that we will move the Court to strike out the Petition for want of Service on the Respondent and further that the Petition contains mere allegations and not the material facts.

Finally we attach herewith the Notice of Intention to Defend the same.”

It would seem to me that from at least 9 September the first respondent was aware that there was a petition issued against him. I might t this stage that that I am not fully convinced that the first respondent did not receive the said letter and contents from the trar posted on 20 August, 1992.

Mr Karingu appeared for him at the said preliminary nary conference on 10th September, and apparently no application to strike out the petition was made at that stage. I am of the view the firstfirst respondent need not have attended on 10 September because he had not been served. Apart from that he filed a Notice of Intention to Defendh I am also of the view he need not have done. By fily filing the satice tice he, to my mind, was accepting irregular service o petition and was indicating that he was intending tong to defend it. He need not have filed the Notice of Intention to D and then there would have have been no way in which the petition could have proceeded without him being served. It would have up to thetietitietitioner to explain why he had not servederved the first respondent. If a proper explan had notd not been foring the petition may hmay have been struck out.

To my mind the combination of the appearapearance of Mr Karingu at the National Couigani on 10 September, 1992 and then the subsequent filing ling of the Notice of Intention to Defend on 15th September was enough to satisfy me that the first respondent had accepted service even though it was irregular. Asated earlier, he need noed not have done anything and the petition could not have proceeded unless the petitioner had succeeded in an application for substitutevice or the like. That applicatas never made made.&#1e. It wasnecessary after the the said Notice was filed. The whole idea rvice had bhad been fulfilled. is that the Court can be s be satisfied that the party is fully aware of the proceedinainstand he has acknowcknowledged that awareness by responding positively to it by filing a noti notice of his intention to defend the matter.

The second ground for striking out the petition is that it contains only allegations and not facts. I have perused etition clon closely and in particular clauses 9 and 10. ringu submitted that thosethose two clauses should be struc. I cannoee and Mr Kombagle,agle, who appears for the second respondent does not agre agree either. I amhe view thatclaus the the ion pron provide vide ample facts and are quite sufficient for the petition to proceed.

Therefore the application to strit the petition is dismissed.

Lawyer for the petitionitioner: Langtry Lawyers

Lawyer for the first respondent: Karingu & Sitapai Lawyers

Lawyer for the second respondent: Pato Lawyers