Marsters v Arthur [1989] CKCA 2; MISC No 13.1989 (23 March 1989)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND
MISC No. 13/89

IN THE MATTER of an election of Members of Parliament of the Cook Islands
Held on Thursday the 19th day of January, 1989, in Rarotonga,
and on Friday the 20th day of January, 1989 in New Zealand and Australia

BETWEEN

PETER TOM MARSTERS
a candidate for the Overseas Constituency
and 50 electors of the Constituency
Petitioners

AND

IAVETA ARTHUR
of Auckland, Member of Parliament
First Respondent

AND

NGA TUAINE UNUIA
of Auckland, Purchasing Officer
Second Respondent

AND

ANDREW MATA TURUA
of Rarotonga, Chief Electoral Officer
Third Respondent

AND

TEARIKI MAURANGI
of Auckland Returning Officer for the Overseas Constituency
Fourth Respondent

Coram: The Hon. Sir Clinton Roper (Presiding)
The Hon. Sir Graham Speight
The Hon. Sir Barry O'Regan

Counsel: V.A.K.T. Ingram for Petitioners
M.C. Mitchell for First Respondent
J. McFadzien for Third Respondent
The Second and Fourth Respondent took no part in the proceedings

Hearing: 17, 18 March 1989
Judgment: 23 March 1989

JUDGMENT OF THE COURT

We have allowed this appeal and have delivered an interim judgment with a short summary of our findings. We now give detailed reasons for our judgment.

At the general election held in the Cook Islands on 19 January 1989 the first respondent was duly declared the successful candidate for the Overseas Constituency. Following that declaration, the appellants filed in the High Court a petition demanding an inquiry as to the conduct of the election. Their right so to do is conferred by s. 74 of the Electoral Act which, so far as it is presently relevant, reads:

"(1) Where any candidate and five electors, or where any 10 electors, are dissatisfied with the result of any election held in the constituency for which any candidate, or in which those electors are registered, they may, within 7 days after the declaration of the result of the election...by petition filed in the High Court as hereinafter mentioned demand an inquiry as to the conduct of the election or of any Candidate or other person thereat."

Section 76 of the Electoral Act provides a time schedule for the doing of the various other things necessary to complete the inquiry. It provides:

"The inquiry shall be commenced within 14 days after the filing of the petition (or in the case of an election in the Overseas Constituency, within 21 days after the filing of the petition) but not earlier than 14 days after the day on which the poll was closed, and not less than seven clear days public notice (or in the case of an election petition in the Overseas Constituency, not less than 10 clear days public notice) shall be given of the time and place at which the inquiry will be held."

The petition was filed on 3 February 1989. Accordingly, if the provisions of s. 76(1) fall to be construed as mandatory, the inquiry should have been commenced by 24 February 1989.

By 8 February 1989 there were four other petitions filed, three of which had been filed on 3 February 1989 and the fourth on 4 February 1989 and, if s. 76(1) is, in its terms, mandatory, they were out of time before a Judge was available in Rarotonga.

There was no Judge of the High Court within the jurisdiction between 3 and 17 February 1989. Dillon J arrived in Rarotonga on 21 February 1989.

On 8 February 1989, counsel engaged in the four petitions to which we have just referred, joined in conferring with Dillon J, then in Rotorua, by telephone. At that conference, the Judge informed counsel that he would be in the jurisdiction from 21 February 1989 until 9 March 1989 when he had to go elsewhere in the Pacific on appellate work. During the conference the requirements of s. 76, were raised by the Solicitor-General but not addressed in any depth or accommodated. Fixtures were made for hearings of the various petitions and for recounts of votes, which had been ordered, between 22 February 1989 and 9 March 1989. Various interlocutory applications in respect of those four petitions were heard (some presumably by telephone) both before and after the expiry of 14 days after the filing of the various petitions. An interlocutory application in respect of the present petition - an application for further particulars - was heard and determined on 23 February 1989, that is one day within the 21 day period prescribed for the commencement of the inquiry by s. 76.

In the Court below, Mr Ingram conceded "the inquiry" could not be said to have commenced. Notwithstanding that concession the learned Judge in the Court below, concurring in that view, gave reasons for his so doing and cited authorities which supported his view. Since the hearing in the Court below, Mr Ingram has had second thoughts on the question and he sought leave to re-open it, Mr Mitchell did not oppose the application and, with a deal of reluctance, we gave the requisite leave. The argument on the question revolved about the meaning of the words "commencement" (of the proceedings), "inquiry" and as a base to comparison with the cases referred to by the Judge, the word "hearing".

The thrust of Mr Ingram's argument was two-pronged. He submitted that the inquiry commenced within the prescribed time, in that (a) the Court itself on 8 February 1989 had fixed the date of hearing, and in doing so had embarked upon the inquiry and, (b) by hearing the interlocutory application on 23 February, it had done likewise.

We do not accept these submissions. The argument advanced proceeded within the narrow limits to which we have referred. "The inquiry" referred to in s. 76 is "the inquiry" which the petitioners have demanded pursuant to their rights under s. 74 - and that is an inquiry "as to the conduct of the elections". The hearing of interlocutory applications for such matters as fixtures for the hearing or for further particulars do not meet that prescription. Indeed, when it was put to him that an interlocutory application raising matters of form and formality or challenging the status of a petitioner as an elector could scarcely be said to fall within the ambit of the statute, he allowed that he would have difficulty in so submitting. All in all, we are disposed to think that Mr Ingram was right in making the concession he did in the Court below and we merely content ourselves in holding that in this case "the inquiry" as to the conduct of the election did not commence with the hearing of the two interlocutory applications to which Mr Ingram referred.

Although we have not addressed ourselves to it at the outset the primary question is whether this Court has jurisdiction to grant leave to appeal. It is the appellant's submission that article 60(3) of the Constitution, read in conjunction with subclause (2) of Article 60, provides such jurisdiction.

The relevant part of Article 60(2) reads:

"(1) Subject to the provisions of this Constitution the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.

(2) Subject to the provision of this Constitution and except where under any Act a judgment of the High Court is declared to be final an appeal shall be to the Court of Appeal from a judgment of the High Court...."

The Electoral Act 1966 is clearly an Act which falls within the prescription of the words we have underlined - particularly s. 82 of that Act. It reads:

"Every determination or order the Judge in respect of or in connection with an election petition shall be final and conclusive and without appeal, whether to the Court of Appeal of the Cook Islands or to Her Majesty in Council or otherwise, and shall not be questioned in any way."

We next refer to Article 60(3) of the Constitution, which reads:

"Notwithstanding anything in sub-clause (2) of this Article, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to the Court from any judgment of the High Court, subject to such conditions as to security for costs or otherwise as the Court of Appeal thinks fit."

In the present case each of the provisions, s. 82 and Article 60(3) under consideration admit of no ambiguity. Read alone their meanings are clear. With no questions of ambiguity or absurdity arising, the door is not open to the permissible departures from the primary rules of construction to avoid such, and the Court must address itself to the problem of the provisions which ex facie cannot stand together. If these two provisions were to be found in Acts of Parliament, the earlier would stand impliedly repealed by the later. That is an inveterate principle enunciated by Coke (Co. Litt. 112) and faithfully followed down the long years - see Duke of Argyle v I.R.C. [1913] LT 893 per Scrutton LJ; Hall v Arnold [1950] 2 KB 543. But here, first, we have the supremacy of the constitutional provision over the statute; and secondly - and we think this is decisive - the import of the words "Notwithstanding anything in sub-clause (2) of this Article...." Those words override and eliminate from consideration the words "except where under any Act a judgment of the High Court is declared to be final" which in their turn, by the inclusion of the words "any Act" among them must needs refer to, inter alia, the provisions of s. 82 of the Electoral Act which answers that prescription. So, whilst there is no direct reference to s. 82, there is nonetheless a chain of reference from which it can be deduced that the Legislature intended that Article 60(3) should prevail over s. 82. And we so hold. And we hold that this Court has the power to grant special leave to appeal.

It next falls for us to consider whether s. 76 is mandatory or merely directory. The learned Judge in the Court below held it to be mandatory. In reaching that conclusion he, as the authorities ordain, paid close attention to the scope and purpose of the enactment and in particular s. 82. And he took the view that the Act, in the public interest, required that the time limits be faithfully obeyed. He put it thus:

"The emphasis has plainly been placed in a variety of ways for strict compliance in the Act. More particularly, however, there is heavy emphasis upon expedition. The times in which various matters must be done are brief in the extreme and contrast sharply with what occurs in other countries...."

And then, after particular references to the time schedules, the learned Judge went on:

"The Act then imposes not only upon the petitioners but also upon the Chief Electoral officer and even upon this Court the added and stringent requirement that the Inquiry shall commence within 14 days after the filing of the petition if it relates to a constituency in the Cook Islands and 21 days for the Overseas Constituency. These are peremptory provisions indeed and they make very clear the general intention of the statute. Plainly those times are to be adhered to. Most unusually there is no provision for the court to allow an extension of the times fixed. Again the intention is clear."

No one can gainsay that the Act portends in clear terms the need for expedition and early finality in determining the result of the election. The partial bars to appeals from the High Court contained in s. 17 and s. 82 bear witness to that. And so do the numerous time limitations interspersed throughout the Act. There are, however, contrary signs and portents, that the Legislature has not shut the door entirely to reviews or reconsiderations of those apparently immutable provisions of the Act. There is the appeal to this Court which may be made, with leave, under Article 60(3), to which reference has already been made. And there are the provisions of s. 88 of the Electoral Act which empower the Chief Electoral Officer to mitigate the rigours of the provisions to which the Judge referred in his judgment and in the other respects referred to in the section. So that whilst expedition and finality are the order of the day, there is a residual consideration of the citizen and his rights in this important field and provisions to meet possible injustice.

In the argument on this topic we had cited to us, and discussed, a number of cases but, essentially, they provided no more than instances of the application of the general principles to be addressed.

As long ago as 1917 the Privy Council in Montreal Railway Company v Normandin [1917] UKPC 2; [1917] AC 170 dealt with the question thus. It said:

"The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5 ed., p 596, and following pages. When provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions directions only."

This passage was cited with approval by Edmund Davies J in Cullimore v Lyme Regis Corporation [1962] 1 QB 718 at 720 where it is noted that it was quoted as authoritative in Maxwell on Statutes, 10 ed.,1953. It is also treated as authoritative in the same text 11 ed. at p 364 and whilst the passage is not quoted verbatim in Maxwell's 12 edition it is again referred to in a note at p 314 in a way indicative of approbation and adoption.

In the Cullimore case (supra) Edmund Davies J cites with approval a convenient summary of the law which appears in both the 10th and 11th editions of Maxwell - (see 11th ed p 364). We repeat it here with the omission of a few sentences not presently apposite.

"It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative,...beyond the fundamental one that it depends on the scope and object of the enactment (Howard v Boddington 2 PD 211 per Lord Penzance).... but the question is in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be considered. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."

We interpolate here that in Woods v Bate [1987] 7 NSWLR 560 at p 567 the New South Wales Court of Appeal, per Hope and McHugh JJA, the principles enunciated in the foregoing passage are restated and the same authorities supporting them are cited.

The passage from Maxwell continues:

"A strong line of distinction may be drawn between the cases where the prescription of the Act affect the performance of a duty and where they relate to a privilege or a power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases where injustice or inconvenience to others, who have no control over those exercising the duty, would result if such requirements were essential and imperative."

The emphasis is ours.

That the Principles set forth in these passages have not been diminished or derogated from with the passage of the years also found confirmation in Woods v Bate (supra) at p 567 line B et seq Where McHugh JA has this to say:-

"In recent times, the Courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition."

And he goes on to refer to a line of cases (including Simpson v Attorney-General [1955] NZLR 271 which was cited to and discussed before us) decided over the past thirty years in the United Kingdom and Australia which demonstrate that to be the case. And McHugh JA continued:-

"I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice. cf. Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA."

Reverting to s. 76, there can be no doubt that the public duty imposed by the section was imposed on the Court and the Court failed to perform that duty within the times specified. The reasons for that failure are of no moment. The fact remains. The failure has occasioned grave injustice in matters of great public moment to citizens who had no control over those entrusted with the duty and to declare the provision mandatory would not promote the essential aims of s. 74 but would occasion a denial of rights that it was designed to confer.

In these circumstances we find ourselves obliged to declare that the section is directory only and not mandatory and accordingly the appeal on this point must be allowed.

During the course of the argument in the Court below the learned Judge raised with counsel the possible application of s. 88 of the Act. Section 88 provides:

"Where -

(a) any provision of this Act cannot be carried out by reason of lack of communication between any island and the island of Rarotonga or by reason of an Act of God; or

(b) any thing is omitted to be done or cannot be done at the time required by or under this Act, or is done before or after that time, or is otherwise irregularly done in the matter of form, or sufficient provision is not made by or under this Act -

the Chief Electoral Officer may, by public notice, at any time before or after the time within which the thing is required to be done, extend that time or validate any thing so done before or after the time required or so irregularly done in the matter of form or make such other provision for the case as he thinks fit."

There had been no submission to the learned Judge, that resort should be had to this provision for the resolution of the case. However the Judge did express a view. He said:

"At first sight the wide and apparently comprehensive powers conferred by s. 88 seem to provide a means of overcoming the stringent terms of s. 76. On reflection, however, I am satisfied that cannot be so. I think the section was intended to be confined to those things which in the general conduct of the Election fall under the supervision and control of the Chief Electoral Officer...."

The topic did not arise by way of appeal in this Court but counsel accorded it some relevance to the questions which arose in respect of s. 76 and it was intruded into the argument. The Solicitor-General, on behalf of the Chief Electoral officer voiced the modest and self-effacing approach of the latter official when he submitted it was unthinkable that a "mere official" of the "lower rank" should be invested with such apparently far reaching validating powers. Mr Ingram did not go so far as to submit that the section provided plenary powers of making good omissions or of general rectification but prayed it in aid of his submissions as to the nature of s. 76. And Mr Mitchell submitted that section could not stand in the face of the provisions of s. 76.

We do not propose to express a view on the scope of the section. That would be a sleeveless exercise, inasmuch as the question arises only incidentally on the appeal, and any observations from us, in the circumstances, would be flagrant obiter. So we leave the matter for consideration on another day when it arises directly in proceedings and falls to be dealt with authoritatively.

The appeal is allowed, and because of the great public importance of the substantial matter at issue, we give leave to appeal.

Costs are reserved and counsel are invited to submit memoranda on the topic.

FOR THE COURT
SIR BARRY O'REGAN J.A.