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In the Matter of The Organic Law on National and Local-Level Government Elections; Chan v Apelis [1997] PGNC 129; N1627 (13 October 1997)

Unreported National Court Decisions

N1627

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 54 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS FOR THE NAMATANAI OPEN ELECTORATE IN THE NEW IRELAND PROVINCE
AND
SIR JULIUS CHAN, GCMG, KBE - PETITIONER
AND
EPHRAIM APELIS - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
7 October 1997
13 October 1997

ELECTIONS - Parliament - Petition disputing election - Amendment of Petition - Time limit for filing amendment - Petition amended by Petitioner after expiry of 40 days time limit - Whether Amendment may be filed outside time limit of 40 days imposed by s. 208(e) of Organic Law on National and Local-Level Government Elections - Meaning of “40 days” discussed - Meaning of “amendment” discussed - Constitution, Schedule 2.1 & 2.16, Organic Law on National and Local-Level Government Elections, ss. 3(2) Interpretation Act (Ch. No. 2), s.11,

Practice Direction for Presentation and conduct of Elections, NC 2/97, ss. 2 & 11.

Cases Cited

Biri v Ninkama [1982] PNGLR 342

Collins v Hertfordshire County Council [1947] KB 595

Esbelby v Federated European Bank [1932] 1 KB 254

Counsel

M Wilson lawyer for the Petitioner

C Narakobi lawyer for the 1st Respondent

J Nonggorr lawyer for the 2nd Respondent

13 October 1997

INJIA J: The first respondent applies to dismiss the Amended Petition filed on 11 August 1997 on the ground that it was filed outside the 40 days time limit imposed by s. 208 (e) of the Organic Law on National and Local-Level Government Elections (hereinafter abbreviated OLNE). The application is supported by the second respondent.

The following facts are not in dispute. On 30 June 1997, the first respondent was declared the winner of the election for the Namatanai Open Electorate in the National Parliament. The Petitioner was the runner-up in that election. Pursuant to OLNE s. 208(e), the Petitioner had “40 days after the declaration of the result of the election” to file an election petition under OLNE, s. 206 at the National Court Registry at Port Moresby or at the Court House in any Provincial headquarters. The 40th day fell on Saturday 9 August, 1997. On Friday 8 August 1997, the Petitioner filed a Petition at the National Court Registry at Port Moresby. This petition was filed within time. On Saturday 9th and Sunday 10th which were weekends, the National Court Registry at Port Moresby was closed for business. On Monday 11th, the said registry was open for business as usual. On Monday 11th, the Petitioner filed an Amended Petition at the National Court registry at Port Moresby. This Amended Petition was filed on the 42nd day after the declaration and therefore it was filed out of time.

It is this Amended Petition which is the subject of this application. The respondents also seek a dismissal of the original petition if the Amended Petition is dismissed. I will first deal with the application in respect of the Amended Petition.

It is submitted for the Petitioner that the Petitioner could not file the Amended Petition on Saturday 9th because the National Court registry at Port Moresby was not open for business so it was filed on the next available date, Monday the 11th, when the said registry was open for business. It is submitted that this is permitted by Constitution, Schedule 1.16 which provides:

“Effect of Time Limits

(1) Where in a Constitutional Law a time limit is imposed for doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of Subsection (1) is not excluded by a provision that unjustifiably specifies a time limit or a maximum time limit.”

Counsels for the respondents submit that the 40 days time limit imposed by OLNE, s. 208 (e) is mandatory and it cannot be extended by the deeming provision in Schedule 1.16. They refer me to the mandatory provisions of OLNE s. 208 (e) and OLNE s. 3 (2) and Constitution Schedule 1.1, the combined effect of which they say render Constitution, Schedule 1.16 inapplicable. To support their contention, they refer me to the Supreme Court decision in Biri v Ninkama [1982] PNGLR 342.

OLNE, s. 3 (2) provides:

“Notwithstanding any other law, where a time limit is imposed under this law for the taking of an action, then unless the contrary intention appear, that time limit is mandatory.”

OLNE s. 208(e) provides:

“A Petition shall...(e) be filed in the Registry of the National Court at Port Moresby or at the Court house in any provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (i) (a).”

Constitution, Schedule 1.1 (i) provides:

“The rules contained in this Schedule (Schedule 1) apply, unless the contrary intention appears, in the Interpretation of the Constitution and of the Organic Law.”

The principles of law in relation to the interpretation of OLNE s. 208 (e) & s. 3 (2) and Constitution Sch. 1.1 and Sch. 1.16 were settled by the Supreme Court in Biri v Ninkama and there is no dispute as what those principles are. The OLNE is a Constitutional Law and s. 11 of the Interpretation Act (Chapter No.2) which applies to interpretation of ordinary statutes has no application to interpreting provisions of the OLNE. For purposes of interpreting the OLNE s. 3 (2) and s. 208 (e), Constitution Schedule 1 (which includes Sch. 1.1 and Sch. 1.16) applies. The combined effect of Constitution Sch. 1.1 and OLNE s. 3 (2) and s. 208 (e) in imposing a mandatory time limit of 40 days within which the file on election petition precludes the application of Sch. 1.16 to OLNE s. 208 (e). A petition cannot be amended by the National Court or a Petitioner after the expiration of the 40 days time limit.

There is no dispute that the time limit of 40 days imposed by OLNE, s. 208 (e) includes all seven (7) days of the week, that is, Monday through to Sunday and this means, both the five (5) weekdays or working days and the two week-ends. This accords with s. 2 (2) of the Practice Directions for Presentation and Conduct of Elections N/C 2/97 issued by the National Court on 27 June 1997 which provides that “the reckoning of the time limit in sub-section (1) (40 days limit) includes all days of the week, and the time limit cannot be extended”. (my emphasis).

Mr Wilson for the Petitioner has eloquently sought to distinguish the application of the principles in Biri v Ninkama to the facts of the present case and based his arguments on s. 208 (e) and the practical application of Schedule 1.16 to the facts of this case. The only basis on which Biri v Ninkama may be distinguished is that in that case the Supreme Court was dealing with the question of whether the National Court had power to amend a petition made outside the two months period imposed by the repealed OLNE, s. 208 (e) whereas in the present case, the Petitioner has exercised his right under Practice Direction NC 2/97 to file an Amended Petition and the only question before this Court is whether the Amended Petition is deemed to have been properly filed pursuant to Constitution Sch. 1.16. Sitting as a National Court, I am bound to apply these principles. In my view however, the principles in Biri v Ninkama are clearly of general application both to an application made to the National Court to amend a petition as well as an amendment filed without leave of the Court under s. 11 of Practice Direction N/C 2/97.

For these reasons, the Amended Petition filed on 11 August 1997 is dismissed.

In contemplation of a ruling in their favour in relation to the Amended Petition, counsels for the respondents, especially Mr Narokobi submitted that if the Amended Petition is dismissed, then the original petition should also be dismissed. It is submitted that the Amended Petition repealed or “replaced” the original petition and substituted it with the Amended Petition. Mr Wilson counters this argument by submitting that the Amended Petition only sought to amend certain parts in the original petition and a dismissal of the Amended Petition does not affect the original petition.

The proposition advanced by Mr Narokobi runs contrary to well and long established principles of Court practice and procedure. An action is instituted by an aggrieved person by an originating process which in this case is by a petition, which defines a cause of action or claim against a named person(s). An “amendment” simply seeks to amend or alter parts of an originating process without repealing or replacing the original originating process or altering the original cause of action or original claim in the original originating process. It is not in the nature of an “amendment” to repeal, withdraw, discontinue or terminate the entire original originating process or amend the original originating process by introducing a cause of action or claim which is completely new to that pleaded in the original claim in the original originating process: See Collins v Hertfordshire County Council [1947] KB 598, [1947] 1 All ER 633; Esbelby v Federated European Bank [1932] 1 K B 254; Halsburys Laws of England Vol. 36 (4th Ed.) para. 64. In the present case, it is clear that the Amended Petition seeks to simply amend the original petition in respect of certain parts only by adding new parts and deleting certain existing parts whilst the original petition remains on foot. These purported amendments were underlined in a replica of the original petition re-titled “Amended Petition” and filed in Court.

For these reasons, I refuse to dismiss the original petition filed on 8 August 1997. The original Petition therefore remains on foot. Costs is reserved.

Lawyer for the Petitioner: Warner Shand Lawyers

Lawyer for the 1st Respondent: Narokobi Lawyers

Lawyer for the 2nd Respondent: Nonggorr & Associates Lawyers