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Piari v Ipatas [2012] PGNC 333; N5147 (15 April 2012)

N5147

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 102 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE ENGA PROVINCIAL ELECTORATE

BETWEEN

NATHAN PIARI
Petitioner

AND

PETER IPATAS
First Respondent

AND

ANDREW TRAWEN, The Electoral Commissioner of Papua New Guinea
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2012: 29th October & 2013: 15th April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Service of petition – Service on second respondent – Late service of petition – No leave application filed – Whether proceedings should be dismissed – Discretionary – Prejudice – Serious allegations of illegal practices raised against second and third respondents – Application refused – Leave granted and petition allowed to proceed to trial – National Court Election Petition Rules, 2002 (as amended) – Rules 6(1), 17 & 18.
Facts

This is an application to dismiss the petition for want of service on the second and third respondents pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). The petitioner did not deny serving the petition on the second respondent out of time and the respondents submitted that the proceedings should be dismissed for this reason.

Held:

1. Pursuant to Rule 6(1) of the National Court Election Petition Rules, 2002 (as amended), a petition must be served on the respondents within 14 days of its filing. Failure to serve may result in its dismissal. Where a petition is served outside the time limit of 14 days without leave, the Court still has discretion not to dismiss it.

2. The second and third respondents failed to establish that they will be prejudiced in their defence of the petition. Serious allegations of bribery, undue influence and illegal practices are raised against the respondents and justice will not be served if the petition is dismissed because of a procedural defect.

3. The second and third respondents' application to dismiss the proceedings is refused, allowed the petition to proceed to trial by extending time by seven days and accepting the petition as being served within the extended time.

Cases cited:

Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Lucas Neah -v- John Thomas Pundari & Electoral Commission: EP No 21 of 2012 (Unnumbered & Unreported Judgment of 15th April 2013)
Wari Vele -v- Powes Parkop & Electoral Commission (2008) SC946
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission (2012) SC1206
Darryl Jee -v- Ben Micah & Electoral Commission (2012) N8423

Counsel:

Mr S Soi, for Petitioner
Mr D Dotaona, for First Respondent
Mr H Viogo, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS PETITION

15th April, 2013

1. MAKAIL, J: This is an application to dismiss the petition for want of service on the second and third respondents pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). The petitioner did not deny serving the petition on the second and third respondents out of time and the respondents submitted that the proceedings should be dismissed for this reason.

2. The application arises from one of two election petitions filed against the win of the first respondent as Governor-elect for Enga Province following the 2012 General Elections. The facts giving rise to the application are set out in the affidavit of Mathew Walaun sworn on 21st October and filed on 22nd October 2012. Mr Walaun deposed that the petition was filed on 11th September 2012 and according to Rule 6(1) of the EP Rules, the time limit of 14 days expired on 25th September 2012. The petitioner served the petition on the second and third respondents on 16th October 2012. He was late by 21 days or 3 weeks. He did not file an application seeking leave to serve the petition out of time before or after the expiry of 14 days. As for the first respondent, he was served the petition on 16th September 2012, well within the time limit of 14 days. These facts are not disputed. The issue is whether the Court has discretion to accept late service of the petition.

3. In his response to the respondents' submissions that the late service of the petition is no service and the Court has no discretion to accept late service of the petition unless an application for leave was made before the application for dismissal was filed and heard, Mr Soi of counsel for the petitioner conceded that no application for leave was filed by the petitioner but submitted that in the interests of justice, the Court has discretion to allow the petition to proceed to trial. No case precedent was cited in support of this submission. The petitioner's explanation for the late filing was that he relied on his former lawyers, namely Kuman Lawyers to serve it. They did not and time expired. On 15th October, 2012, they ceased acting for him. As a result, he had to get a relative by the name of Fraser Liu to serve the petition on the second and third respondents. For this reason, he blames his former lawyers for the late service of the petition and says that it is a satisfactory explanation for the default.

4. The case of Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983 stands for the proposition that in election petitions, service of the petition on the respondents is mandatory under Rule 6(1) of the EP Rules and failure to serve will result in its dismissal. I accept that this is the correct position in law. That means, the petition must be served within 14 days of its filing.

5. I held in Lucas Neah -v- John Thomas Pundari & Electoral Commission: EP No 21 of 2012 (Unnumbered & Unreported Judgment of 15th April 2013), a decision I delivered a while ago that the power to dismiss is discretionary because the requirement of service is a requirement under the EP Rules and not the Organic Law on National and Local-level Government Elections and Rule 17 gives the Court discretion to "dispense with any requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-level Government Elections."

6. Further, Rule 17 does not say that a party must apply to the Court to "dispense with any requirements of these Rules, either before or after the occasion for compliance arises........." Given this, I am of the view that Rule 17 leaves open the options the Court may take when dealing with an application for dismissal. The Court may exercise its discretion not to dismiss the petition for want of service regardless of whether or not there is an application for leave filed. My view is fortified by Rule 18(iii) where it states "[w]here a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding...... make such other orders as it deems just." For these reasons, I am of the view that where a petition is served outside the time limit of 14 days without leave, the Court still has discretion not to dismiss it.

7. The discretion must be exercised based on proper principles of law bearing in mind that public interest demand that election petitions must be dealt with expeditiously or in a timely manner. The principles upon which the Court's discretion is exercised are those established in the Supreme Court case of Wari Vele -v- Powes Parkop & Electoral Commission (2008) SC946 and adopted and applied in Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791 and Lucas Neah's case (supra). These are:

7.1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

7.2 The application for extension must be made promptly;

7.3. If there is delay, reasonable explanation for the delay;

7.4. The relief sought by the applicant will not unduly prejudice the other party's case; and

7.5. The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

8. There is no point in discussing in detail the first two considerations because it is clear to me that the petitioner's former lawyers failure to serve the petition within time is not a satisfactory reason and that there is no formal application for leave filed. The critical aspect of the case is that the there is no dispute that the second and third respondents were served, although 3 weeks after the time limit of 14 days had expired. While I accept the respondents' submission that late service of a petition is not service, I am not satisfied that they will be prejudiced in their defence of the petition. They have in their possession the petition and would have perused its content. Unless the allegations of fact establishing the grounds of the petition are vaguely pleaded or inadequate, they would by now know the case they have to meet at trial. In my view, it cannot be reasonably argued that they will be prejudiced if the petition is allowed to proceed to trial.

9. As it was said in Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: (2012) SC1206 and Darryl Jee -v- Ben Micah & Electoral Commission (2012) N8423 and earlier this morning in Lucas Neah (supra), "......... the whole purpose of requiring the petitioner to serve the petition on the second respondent is to give him notice of the legal proceedings (petition) against him and for him to attend the hearing at a date, time and venue appointed by the Court. It has been achieved by his appearance through his lawyers."

10. The petitioner seeks an order to declare the election of the first respondent null and void and a further order for a by-election. He raises serious allegations of bribery, undue influence and illegal practices against the respondents. The first respondent was served and it would not be unreasonable to think that he is preparing his case for trial. In my view, justice will not be served if the petition is dismissed because of a procedural defect. For the foregoing reasons, in the exercise of my discretion under Rules 17 and 18(iii), I refuse the second and third respondents' application to dismiss the petition, allow the petition to proceed to trial by extending time by seven days and accepting the petition as being served within the extended time. I also order costs to be in the cause.

Ruling and orders accordingly.
________________________________________________________________
Soi & Associates: Lawyers for Petitioner
Dotaona Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents