Arthur v Williams [1994] CKCA 16; MISC 185.1994 (28 April 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT AUCKLAND
MISC NO 185/94

IN THE MATTER
Part VI of the Electoral Act 1966

BETWEEN

IAVETA ARTHUR
of Auckland, self-employed
PETITIONER

AND

JOSEPH WILLIAMS
Auckland, Medical Practitioner
FIRST RESPONDENT

AND

TERE MATAIO
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

TAGGI TANGIMETUA
Returning Officer for the Overseas Constituency
THIRD RESPONDENT

Counsel: Mr M Mitchell for the Petitioner
Mr H Puna for the First Respondent
Mr J Pristley for the Second and Third Respondents

Date of Hearing: 27th April 1994
Date of Judgment: 28th April 1994

JUDGMENT

These proceedings are concerned with an Electoral Petition filed by Mr Iaveta Arthur, and the Cross Petition filed by Dr Joseph Williams. They result from the general election held in the Cook Islands on 25 March 1994.

By way of introduction, the Cook Islands Parliament consists of 24 members. One of those members is elected to represent, in accordance with Article 27(2)(k) of the Constitution:

"The Islands comprising New Zealand and all other areas outside the Cook Islands ... that constituency being hereinafter referred to as the overseas constituency."

The successful candidate for the overseas constituency was Dr Joseph Williams. He had a majority of 225 votes over the first unsuccessful candidate, Mr Iaveta Arthur who had been the member for that constituency in the previous Parliament.

Mr Arthur has filed an Electoral Petition pursuant to the provisions of Section 74(1) of the Electoral Act 1966, alleging that:

"1) The said Joseph Williams or his agents interfered with the electoral process; and

2) Votes were cast which your petitioners say were invalid."

This Petition is signed by Mr Arthur and five electors as required by Section 74(1). One of those five electors is Miss Chere Arthur, the daughter of the Petitioner.

In reply, Dr Williams has filed an Answer and a Counter Petition alleging:

"That the Petition filed by the Petitioners is invalid and of no legal effect on ground that one of the five 'electors' who signed the Petition pursuant to Section 74(1) of the Electoral Act 1966, namely CHERE ARTHUR, was not entitled to be registered as an elector on the Overseas Constituency roll and is therefore not an elector, duly qualified and registered, of the Overseas Constituency."

All counsel agreed that the Cross Petition filed on behalf of Dr Williams should be dealt with before hearing the evidence in support of the substantive Petition presented on behalf of Mr Arthur.

The issues to be determined in this preliminary way were identified as follows:

1) Was Miss Arthur entitled to be registered as an elector on the Overseas Constituency roll?

2) If she was not entitled to be registered as an elector for that constituency, does that mean that the candidate and only four electors have signed the Petition?

3) Does the Court have jurisdiction under the Constitution, under the Electoral Act, or at Common Law to amend, substitute, remedy or in some other way rectify this defect in the Petition?

I shall firstly consider whether Miss Arthur was entitled to be enrolled as an elector on the Overseas Constituency roll. She gave evidence which can be summarised as follows:

1) She was born in New Zealand on 2 September 1974 and has lived in New Zealand for nearly 17 years.

2) She visited Rarotonga occasionally but usually for short stays only of two weeks or so at a time.

3) In November 1991, she attended Tereora College in Rarotonga. She stayed in the family home at Ngatangiia, while at College. She returned to New Zealand on 27 December 1993 for the purpose of continuing her studies at Auckland University.

4) She was therefore at Tereora College and in Rarotonga for a period of two years and one month.

5) On 22 February 1994, she applied to be registered as an elector on the overseas roll. She voted in the general election and she believes that she is still registered as an elector on the overseas roll.

It is upon these facts that Mr Mitchell submitted that Miss Arthur was registered as an elector; she voted at the election; and consequently was an 'elector' within the requirements of Section 74(1), which states quite simply, that an Election Petition must be signed by a "candidate and five electors".

Mr Mitchell says that Miss Arthur who is enrolled as an elector; who voted as an elector; and who is still on the roll as an elector; must therefore be recognised to still retain her rights as an elector.

However, Mr Puna submits that a consideration of Article 28(2) of the Constitution indicates that Miss Arthur does not have the necessary qualifications to be so enrolled on the overseas roll, that because she does not qualify as an elector her signature to her father's Petition must be discounted; as a consequence only four valid electors have signed the Petition when section 74(1) requires five electors to sign.

Further he says that the provisions of Section 74(1) are mandatory, and that therefore the Petition is a nullity.

Mr Puna relied on the decision of Quilliam J, in the 1989 Masters Petition number 13/89 to support those submissions.

Mr Priestly, who acted for the Chief Electoral Officer, in his submission described Miss Arthur’s status in this way:

That when she went to Rarotonga in November 1991 she was not entitled to vote in either the Overseas Constituency or in any other constituency in the Cook Islands. By December 1993, however, having lived in Ngatangiia for more than two years, she would have then been entitled to enrol and vote in that constituency.

Further, he says that the 57 days from her return to New Zealand, and her application to enrol did not provide the necessary three months qualification period required by Article 28(2)(b). He submitted therefore that she was not entitled to registration on the overseas roll.

It is also relevant to record at this point that Mrs Tangimetua, the Returning Officer for the Overseas Constituency, admitted in her evidence that it was only with the benefit of hindsight and the assistance of legal advice, that she now believed that she had been in error in disallowing the objection to Miss Arthur's Application.

Her original decision, she says, was influenced by the educational exemptions which apply in certain circumstances and which Mrs Tangimetua believed applied to Miss Arthur.

This belief was not unreasonable given the complexity of qualification criteria and the inter-relationship in this regard with both the Constitution and the Electoral Act.

Mr Mitchell has further submitted that if it were established that his clients' Petition was defective, in respect of his daughter's eligibility, then Section 74(1) is directory only and not mandatory in its impact; that this Court can exercise its discretion to amend the Petition or to substitute another elector to insure that a not-too-rigid legal interpretation prevents this Court from undertaking enquiries into serious allegations of irregularities, which is the basis of the Petition.

I am not prepared to amend the Petition or to substitute some as-yet-unnamed elector in place of Miss Arthur. I prefer to address what I regard as a procedural problem in the following way:

The Petition as presented is signed by Mr Arthur, and five electors. Miss Arthur, one of the five, was registered on the overseas roll. Her registration was objected to. That objection was disallowed. She did vote and she is still on the roll.

Until the Petition is presented and the merits argued, then Miss Arthur remains an elector. In due course her eligibility and that of any others that may be questioned can be considered and in accordance with the powers and jurisdiction of Section 77(a), can be subject to scrutiny and if necessary disallowed.

In order to arrive at any such decision, and exercise such powers and jurisdiction, I do not believe the Petition should be declared a nullity when as presented it is signed by five electors, still enrolled as electors, and so complying with the provisions of Section 74(1).

I believe the court is entitled to adopt a discretionary approach in order to give effect to Part VI of the Electoral Act relating to disputed elections.

In this context it is relevant to consider the provisions of Part IV of the Electoral Act, and in particular Section 14 dealing with objections by an elector; Section 17 dealing with the determination of objections; and Section 23 dealing with the effect of closing of the rolls.

There was of course an objection against the application filed by Miss Arthur, and which objection the Returning Officer disallowed. There was no further appeal available under the provisions of Section 17.

While this situation cannot be regarded as an acceptance of Miss Arthur's qualification entitlement, nevertheless it is certainly an acknowledgment of her status, and her right to subsequently sign an Electoral Petition as an elector.

The challenge now mounted against Mr Arthur's Petition relies on Section 74(1) which is characterised as a mandatory provision. However, it could very well be considered procedural and that such provisions are more properly categorised as directory.

The effect of declaring the Petition a nullity means that the Court would be prevented from exercising the very jurisdiction which Part VI of the Electoral Act intended should be exercised.

The following example illustrates the need to appreciate the Draconian consequences which could result if the Court failed to exercise its discretion in the interpretation of Section 74(1).

In the Petition, there is an allegation that:

"The nomination of the said Joseph Williams was invalid."

That allegation has been abandoned by the Petitioner just as Dr Williams has abandoned a similar allegation against Mr Arthur.

However, if Mr Arthur intended to pursue that argument, and assuming there were reasonable grounds for declaring Dr Williams' nomination invalid, the question arises then should the Court refuse the Petition because of a procedural defect caused by Miss Arthur signing the Petition, and as a result permit confirmation of Dr Williams as the successful candidate. In other words, her perceived invalid nomination could not even be investigated.

It is in this context that Mr Mitchell has referred to the case of London and Clydeside Estates Limited v Aberdeen District Council reported in 1979, 3 All England Reports at page 876.

In that case Lord Hailsham has expounded on the desirability of the court deciding on the legal consequences of non-compliance affecting the rights of a subject.

I was also referred to the case of A J Burr Limited v Blenheim Borough Council [1980] 2 NZLR 1.

The extract from that Decision I will read briefly:

"When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account."

Those decisions in my view support the discretionary approach advocated by Mr Mitchell rather than the nullity approach relied on by Mr Puna.

Relying on the principles enunciated in those two cases to which I have just referred, I now make the following determinations:

1) On 2 April 1994 when the Petition was signed, Miss Arthur was an elector. She was registered on the overseas roll. She had not at that date been challenged.

2) The Petition is only the instrument by which this Court subsequently exercises its powers of inquiry under Section 77 of the Electoral Act.

3) Pursuant to those powers, the Court can allow or disallow any votes it is asked to examine, including the votes of those who have signed the Petition.

4) The Petition complies with the directory requirements of Section 74(1), and the Cross Petition is therefore disallowed.

DILLON J