Reference pursuant to s18(2) of the Constitution concerning Interpretation and Application of s208(a) of the Organic Law on National Elections; Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J:
• Judgment Date: 01 July 1988
• Court: Supreme Court
• Citation: [1988] PNGLR 99
• Docket Number: SCR No 2 of 1988
• Year: 1988
• Judgement Number: SC349

Full Title: SCR No 2 of 1988; Reference pursuant to s18(2) of the Constitution concerning Interpretation and Application of s208(a) of the Organic Law on National Elections; Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99

Supreme Court: Kapi DCJ, Los J, Hinchliffe J

Judgment Delivered: 1 July 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 2 OF 1988 REFERENCE PURSUANT TO SECTION 18 (2) OF THE CONSTITUTION CONCERNING THE INTERPRETATION AND APPLICATION OF SECTION 208 (A) OF THE ORGANIC LAW ON NATIONAL ELECTIONS

SIR BARRY HOLLOWAY

V

AITA IVARATO AND ELECTORAL COMMISSIONER

Waigani

Kapi DCJ Los Hinchliffe JJ

31 March 1988

1 July 1988

PARLIAMENT — Elections — Disputed election petition — Practice and procedure — Form of petition — Statutory requirements — "Facts" relied upon to invalidate petition — Manner of pleading — Organic Law on National Elections (Ch No 1), s 208 (a) — National Court Rules, O 8, r 8.

The Organic Law on National Elections (Ch No 1), s 208, provides that:

"A petition [disputing the validity of an election or return under s 206] shall:

(a) set out the facts relied on to invalidate the election or return ..."

On a reference to the Supreme Court under s 18 (l) of the Constitution,

Held

The "facts" which must be set out under s 208 (a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved.

Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372, approved and followed.

Cases Cited

Berrill's Petition and Boothby (SA), Re (1978) 52 ALJR 359; 19 ALR 254.

Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372.

Reference

This was the hearing of a reference to the Supreme Court by the National Court of a question relating to the interpretation and application of a constitutional law, namely, s 208 (a) of the Organic Law on National Elections (Ch No 1).

Counsel

P Donigi, for the petitioner.

J Baker, for the second respondent (the Electoral Commissioner).

Cur adv vult

1 July 1988

KAPI DCJ: This matter originally proceeded by way of reservation of a point of law under s 15 of the Supreme Court Act (Ch No 37). However, as the point of law reserved raises a question relating to the interpretation and application of a constitutional law, it was suggested that the matter should be referred under s 18 (2) of the Constitution. The reservation under the Supreme Court Act was dismissed and the National Court referred the matter under s 18 (2) of the Constitution.

The National Court was concerned with a petition brought pursuant to the provisions of the Organic Law on National Elections (Ch No 1) disputing the result of the election with regard to the Eastern Highlands Provincial seat. The Electoral Commissioner, a party to the petition, filed a notice of motion seeking to strike out cl 6 (e) and (f) of the petition on the ground that they did not comply with s 208 (a) of the Organic Law. Section 208 (a) is in the following terms:

"A petition shall:

(a) set out the facts relied on to invalidate the election or return."

The relevant clauses of the petition are as follows:

" (e) delivering ballot papers to persons not qualified to receive them and contrary to the provisions of s 136 and s 141 of the Law.

(f) admitting ballot papers for further scrutiny contrary to the provisions of s 161 and s 162 of the Law."

The question referred is:

"Does clause 6 (e) and (f) of the petition of Sir Barry Holloway comply with s 208 (a) of the Organic Law on National Elections?"

With respect, the question referred is an issue which must be decided by the National Court. The jurisdiction to deal with such questions is conferred on the National Court by the Organic Law. However, under s 18 (1) of the Constitution, this Court may consider issues relating to a matter of interpretation or application of a...