In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for The Namatanai Open Electorate; Walter Schnaubelt v Hon Byron Chan, MP and Electoral Commission (2012) N4791

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 24 September 2012
• Court: National Court
• Citation: (2012) N4791
• Docket Number: EP NO 12 of 2012
• Year: 2012
• Judgement Number: N4791

Full Title: EP NO 12 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 Namatanai Open Electorate; Walter Schnaubelt v Hon Byron Chan, MP and Electoral Commission (2012) N4791

National Court: Makail, J

Judgment Delivered: 24 September 2012

N4791

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 12 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 NAMATANAI OPEN ELECTORATE

BETWEEN

WALTER SCHNAUBELT

Petitioner

AND

HON BYRON CHAN, MP

First Respondent

AND

ELECTORAL COMMISSION

Second Respondent

Waigani: Makail, J

2012: 19th & 24th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Service of petition – Service on first respondent – Irregular service – Application for extension of time – Application arising from election dispute – Application for extension of time made after expiry of time limit – Grounds of – Petition left at office of first respondent – National Court Election Petition Rules, 2002 (as amended) – Rules 6,7 & 17.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Service of petition – Service on first respondent – Service of petition pre-requisite to directions hearing – Failure to serve petition – Effect of – Petition incompetent – Court’s power of summary dismissal – Petition summarily dismissed – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7, 17 & 18.

Facts

The petitioner applied for extension of time to serve a petition on the first respondent after the time limitation of 14 days expired. He argued that the Court has power under Rule 17 of the National Court Election Petition Rules, 2002 (as amended), to extend time not withstanding that time for service of the petition had expired. He conceded that he had not effected service in accordance with the mode of service under Rule 7(1)(a)&(b), in that he left a copy of the petition at the office of the first respondent and that was irregular service.

Held:

1. Under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the first respondent within 14 days of the date of filing the petition. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2.

2. Under Rule 7, a petition may be personally served, may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve.

3. Where a petitioner seeks leave to extend time for service of a petition after the expiry of the time limit of 14 days has occurred, he must file a notice of motion supported with affidavit(s) explaining why leave should be granted.

4. Pursuant to Rule 17 of the National Court Election Petition Rules, 2002 (as amended), the Court has discretion to extend time for service of a petition either before or after the expiry of the time limitation of 14 days.

5. As the discretion is a judicial discretion, it must be exercised based on proper principles of law. The principles in Wari Vele -v- Powes Parkop (2008) SC945, were adopted and applied. They 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; and

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

6. The petitioner’s explanation for allowing the time limit to expire was unsatisfactory.

7. The petition was incompetent and summarily dismissed pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended).

Cases cited:

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349

Daniel Don Kapi -v- Samuel Abal & Andrew Trawen (2005) N2856

Wari Vele -v- Powes Parkop (2008) SC945

Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983

Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364

Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378

Counsel:

Mr S Pokawin, for Petitioner

No appearance, for First Respondent

Mr T Kuma, for Second Respondent

RULING ON APPLICATION FOR EXTENSION OF TIME FOR SERVICE OF ELECTION PETITION

24th September, 2012

1. MAKAIL, J: On 21st August 2012, the petitioner filed this petition disputing the election of the first respondent as member elect for Namatanai open electorate in the New Ireland Province in the 2012 General Elections. When the petition came for directions hearing on Wednesday 19th September 2012, only the petitioner and the second respondent appeared. There was no appearance by the first respondent either in person or through a lawyer.

2. As there was no appearance by the first respondent, the Court must be satisfied that the petition was served on him before it could proceed with the directions hearing. Mr Pokawin of counsel for the petitioner informed the Court that a copy of the petition was left at the office of the first respondent located at Pacific View Apartments at 2 Mile Hill in Port Moresby by a Mr William Bartley. Counsel relied on an affidavit of service of Mr Bartley sworn on 13th September 2012 and filed on 18th September 2012 and submitted that on the evidence of Mr Bartley, the first respondent has been served with the petition and the Court should proceed with the directions hearing in his absence.

3. The Court then drew counsel’s attention to the mode of service of a petition under Rule 7 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”). According to Rule 7, the petition may be personally served, may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve. For completeness sake, I set out Rule 7 in full below:

“7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament.”

4. Counsel then reconsidered his position and conceded that the petitioner did not strictly comply with the mode of service under Rule 7(1)(a)&(b). That is, the petition was not served on the first respondent in person or left at the nominated residential address of the first respondent with a person who appeared to be over the age of 18 years. That being the case, he also conceded that since the petition was filed on 21st August 2012 and that the time limitation of 14 days expired on 03rd September 2012, the petitioner is now out of time to serve the petition on the first respondent. He then made an application for extension of time pursuant to Rule 17 of the EP Rules. The question then arises; does the Court have discretion to extend time after the time allowed for service of the petition has expired? If the Court does have discretion, the next question is; how should the discretion be exercised and should it be exercised in favour of the petitioner?

5. Under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the first respondent within 14 days of the date of filing the petition. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2. Rule 6 states:

“6. SERVICE OF PETITION ON RESPONDENTS

(1) Within 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents and must, at the same time, provide the respondents with:

(a) three copies of a Notice to Appear in accordance with Form 1 completed with the title of the proceedings; and

(b) the Registrar’s or his delegate’s Notice which shall state the date, time and place at which a Directions Hearing will be held and the matters in Rule 12(3).

(2) The Notice referred in Rule 6(1) (b) shall be in accordance with Form 2.”

6. The petition was filed on 21st August 2012. The 14 days expired on 03rd September 2012. The petitioner is out of time by 16 days. Mr Pokawin submitted that the Court has power under Rule 17 to extend time not withstanding that the time for service of the petition expired on 03rd September 2012. He relied on the wording of Rule 17 which states that “after the occasion for compliance arises.....” and submitted that the way in which Rule 17 is drafted, it is envisaged that the Court still has discretion to dispense with any requirements of the EP Rules after the...