N6985
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 17 OF 2017

BETWEEN
MAI DOP
 Petitioner

AND
WAKE GOI
 First Respondent

AND
ELECTORAL COMMISSION PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2017: 27th & 30th October

ELECTION PETITION – Practice & Procedure – Application for dispensation of procedural requirement to file and serve notice of objection to competency – Dispensation of time limitation of 21 days – Discretionary –Principles relevant to exercise of discretion discussed – National Court Election Petition Rules, 2017 – Rules 12 and 22

Cases cited:

Daniel Bali Tulapi v. Aiya James Yapa Lagea (2012) N4939 
Norbert Kubak v. Andrew Trawen (2013) SC1250 
Norbert Kubak v. Electoral Commission & Malakai Tabar (2012) N4992 
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Wari Vele v. Powes Parkop & Electoral Commission (2008) SC946 

Counsel:
Mr. P. Ame, for Petitioner
No appearance, for First Respondent 
Ms. A. Kimbu, for Second Respondent

RULING
30th October, 2017

1.	MAKAIL, J:    This is an application for dispensation of a procedural requirement to file and serve a notice of objection to competency outside the prescribed time limit of 21 days pursuant to Rule 22 of the National Court Election Petition Rules, 2017 (“EP Rules”).

2.	Rule 22 provides for dispensation with compliance with the requirements of the EP Rules in the following terms:

“22.	Relief from Rules
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.”
3.	The purpose of Rule 22 is to confer discretion on the Court to dispense with compliance with any of the requirements of the EP Rules unless the rule is a requirement of the Organic Law.

4.	The procedural requirement under consideration is set out in Rule 12 which states:

“12.	Objection to competency
A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —

(a)	file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and

(b)	serve a copy of the objection on the petitioner and on each of the other respondents; and

(c)	file and serve all affidavits in support of the objection.” (Emphasis added).

5.	Rule 12 is not a requirement of the Organic Law.  But it sets out a process by which a party (Respondent) may object to the competency of a petition where the petition fails to meet any of the requisites of a petition under Section 208 of the Organic Law. 
6.	The Petitioner does not contest the discretion conferred on the Court under Rule 22 to dispense with the procedural requirement of Rule 12.  The only contest is that the notice of motion for this application is vague as it does not refer to the pertinent rule the Court is being asked to dispense with.  
7.	There can be no uncertainty or confusion as to the nature of the application because from the submission of the Petitioner, it is clear that he understood the basis of the application, that it was an application to dispense with the procedural requirement of Rule 12 and he ably responded to the application.  The application will not be refused on this ground. 
8.	The discretion must be exercised based on proper principles.  Parties appeared to have no issue with the principles suggested by the Supreme Court in Wari Vele v. Powes Parkop & Electoral Commission (2008) SC946.  I propose to adopt them.  These are: 
1.	An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required.	

2.	The application for extension must be made promptly.

3.	If there is delay, reasonable explanation for the delay.

4.	The relief sought by the applicant will not unduly prejudice the other party’s case.

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

9.	Similarly, there is no contest that the petition was served on the Second Respondent on 21st August 2017.  The time limit of 21 days expired on 20th September 2017.
10.	The explanation for the default came from counsel for the Second Respondent who deposed in her affidavit that there were two different law firms retained by the Second Respondent, one by the Electoral Commissioner and the other by the Attorney-General.  By the time parties attended the directions hearing, there was an impasse in relation to legal representation of the Second Respondent and needed to be resolved.  It was not resolved until 4th October.  By then, 21 days had expired.  On 11th October the current lawyers filed this application.
11.	Appointment of lawyers by parties to legal proceedings is entirely a discretionary and personal matter for the parties.  It is a choice made by a party based on many factors, some of them which come to mind are affordability in term of costs, experience of lawyer, availability of lawyer, complexity of the case, etc,. I would further suggest that it is a delicate and private matter because of the special fiduciary relationship between the party and lawyer which includes confidentiality and privacy of information.  
12.	The conflict encountered by the Second Respondent is unfortunate but it goes to show that the Second Respondent and those charged with managing its affairs may have not paid enough attention to the importance of appointing lawyers of its own choice to represent its interest in legal proceedings before the Court.  Indecisiveness or instructions to two different law firms can be detrimental to the interests of the Second Respondent.
13.	Appointment of lawyers and/ or conflict of legal representation are in-house or internal matters that should not be raised in Court to explain the default.  Indeed, counsel for the Second Respondent was considerate enough to concede that it was not a reasonable explanation for the default and the concession re-affirms the Court’s view that it is not.  This explanation is unsatisfactory and is rejected.
14.	From 20th September to 11th October is a delay of three weeks.  On average, it may not be a significant delay.  At the very least, the Second Respondent has taken steps to address the default rather than leaving it until it is too late.
15.	The harm or prejudice that it likely to occur is equally important and relevant to how the discretion may be exercised.  
16.	Unlike in the past where there was no provision in the EP Rules for an objection to competency, there is one now. Rule 12 is one of the new rules introduced in the current EP Rules.  It gives a time limit of 21 days for a party (Respondent) intending to object to the competency of a petition to file and serve a notice of objection to competency from the date of service of the petition.    Not only that, it provides for the form of the notice of objection (Form 4).  Finally, it allows the objector to file and serve any affidavits to support the objection.
17.	The purpose of this rule is to avoid what was encountered by the parties in the past and provide a guide on the presentation and conduct of an objection to competency in a more structured and coordinated way to ensure that adequate notice is given to the parties and the Court to prepare for it prior to the hearing.  
18.	Past experiences has shown that lack of procedure for the conduct and presentation of an objection to competency under the National Court Election Petition Rules, 2002 (as amended) has resulted in very little or no structure and order in relation to the presentation and conduct of an objection to competency.  Case management of objections to competency was more or less done on an ad hoc basis. 
19.	As a consequence, there were cases where a party objected to the competency of a petition at the trial of the petition.  The case of Norbert Kubak v. Electoral Commission & Malakai Tabar (2012) N4992 is one example.  In Daniel Bali Tulapi v. Aiya James Yapa Lagea (2012) N4939 an application for leave to file and serve an objection to competency was made outside 21 days provided by National Court Practice Direction (Election Petitions) No. 2 of 2012.  
20.	These cases adopted the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 which held that an objection to competency may be raised at any time because it raises issues going to the jurisdiction of the Court and validity of the proceedings.
21.	In Norbert Kubak v. Andrew Trawen (2013) SC1250, the Chief Justice sitting as a single Judge of the Supreme Court on an application for leave to review a dismissal of a petition by the National Court on competency grounds, observed: 
“The National Court Election Petition Rules do not provide for filing a formal objection to competency of a petition. The requirement was introduced by Practice Direction No 2 of 2012.  I would treat that Practice Direction as forming part of the rules governing the conduct of election petitions. The objection in this case was filed outside of the time stipulated in that Practice Direction, without first obtaining an order dispensing with the requirement of that practice direction. The trial judge dealt with the issue of late filing and concluded that in the interest of preserving the dictates of OLNLLGE, s 210 and the principle that competency issues may be raised at any stage of the proceedings, the objection should be allowed to be filed in Court and argued. The objection was argued and determined. I find no error in the exercise of discretion on the reasons given. This point therefore does not raise an important point of law that is not without merit.”
22.	An attempt was made in 2012 when a Practice Direction was issued to give some structure and order to the presentation and conduct of objection to competency.  This was the Practice Direction the Chief Justice was referring to in the case of Norbert Kubak (supra): see National Court Practice Direction (Election Petitions) No. 2 of 2012.
23.	There was a 21 day time limit to file and serve a notice of objection to competency but it did not resolve the issue of belated objections or stop Respondents from filing or even raising objections without notice: Norbert Kubak (supra).

24.	The petition under consideration is yet to be pre-trialled and allocated a trial date(s).  It is fixed for Pre-Trial Conference on 3rd November 2017.  On this date, if all the directions issued by the Court earlier are complied with, the petition will be allocated a trial date(s).  As the current EP Rules (Rules 16) provide, an objection to competency will be heard at trial.  If the application is granted, the objection will also be fixed for hearing at the trial.

25.	From now to the date(s) for trial, parties will have the opportunity to consider the grounds of the objections, issues arising and prepare for hearing.  The grounds of objection will be on the requisites of the petition under Section 208 of the Organic Law and whether the jurisdiction of the Court has been properly invoked by the Petitioner.  Giving notice now will avoid the risk of being caught by surprise by a belated objection at trial.  Ultimately, parties will be given adequate opportunity to prepare for the objection.

26.	Having considered all these matters, it has not been shown by the Petitioner that the grant of the application will be adverse to his case or he will be seriously prejudiced by the grant of the application.

27.	It is sufficient that the strict compliance with the procedural requirement of Rule 12 should be dispensed with to do justice to the parties.  The Petitioner shall be adequately compensated by costs thrown away for defending the application.

28.	The order will be:
 
	1.	The application for dispensation of Rule 12 is granted.

2.	The Second Respondent shall file and serve a Notice of Objection to Competency by or before Thursday 2nd November 2017.

3.	The Second Respondent shall pay the Petitioner’s costs of the application.

4.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place, forthwith.

Ruling and orders accordingly.
________________________________________________________________
Ame Lawyers			:		Lawyers for Petitioner
Parker Legal				:		Lawyers for First Respondent
Kimbu & Associates Lawyers	:		Lawyers for Second Respondent