Robati v Toma [1990] CKHC 3; OA 08.1990 (26 September 1990)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(Civil Division) O.A. 8/90

IN THE MATTER
of the Declaratory Judgments Act 1908

IN THE MATTER
of Section 7 of the Electoral Act

BETWEEN

PUPUKE ROBATI
of Rarotonga, Leader of the Opposition
Applicant

AND

EPINISA TOMA
Member of Parliament
Respondent

Counsel: MC Mitchell for Applicant
AM Manarangi for Respondent
TP Arnold for Attorney-General

Hearing: 17 & 18 September 1990
Judgment: 26 September 1990

JUDGMENT OF QUILLIAM J

This is an application under the Declaratory Judgments Act 1908 for an answer by way of declaration to the question whether, having regard to the provisions of s. 7(f) of the Electoral Act 1966, the Respondent is qualified to be a Member of Parliament.

It should be noted at the outset that the proceedings have been brought in incorrect form. An application under Declaratory Judgments Act is not an appropriate form of proceeding for the resolution of a disputed issue of fact. Correctly there should have been an action seeking by way of remedy a declaration. The significance of this there would then have been a Statement of Claim and Statement of Defence identifying the issues of fact involved.

The Applicant has filed affidavits in purported support of his application but I have chosen to treat these as no more than raising the allegations of fact upon which he seeks to rely, and I required that evidence in the usual way be given in order to prove those allegations. I have not wished to hold up the resolution of the matter in issue by requiring that the Applicant start again in the correct form, as this is a matter of considerable importance which ought to be resolved as soon as possible. Any disadvantage arising from the form of the proceedings is that of the Applicant who has deprived himself of the benefits of seeing a Statement of Defence.

Section 7(f) of the Electoral Act provides:

"The seat of a member shall become vacant if...he ceases to reside in the Cook Islands."

Section 2(1) of the Electoral Act provides:

"'To reside', in relation to any constituency, has the same meaning as in Article 1(1) of the Constitution..."

Article 1(1) of the Constitution, as enacted in the Constitution Amendment (No. 9) Act 1980-81 provides:

"'To reside', in relation to the Cook Islands or to any constituency in the Cook Islands, means to have a usual place of abode in the Cook Islands, or, as the case may be, in that constituency, notwithstanding any temporary absence for the purpose of undergoing a course of education or of technical training or instruction, and notwithstanding any occasional absence for any other purpose..."

The first question which needs to be determined is whether the definition in Article 1(1) of the Constitution governs the present case. It was the submission on behalf of the Respondent that it does, but on behalf of the Applicant that it does not. In a full and carefully prepared submission by Mr Arnold on behalf of the Attorney-General (who took a neutral and helpful role throughout) it was argued that an interpretation of Section 7(f) of the Electoral Act was not to be arrived at by reference to Article 1(1) but by the terms of the Electoral Act itself.

Article 27 of the Constitution provides for the establishment and composition of the Legislative Assembly of the Cook Islands and, in clause (3) provides:

"(3) Subject to the provisions of this Article and of Article 28 hereof, the qualifications and disqualifications of electors and candidates, the mode of electing members of the Legislative Assembly, and the terms and conditions of their membership shall be as prescribed by law."

Article 28 deals with the nationality and residential qualifications of electors and candidates and therefore has no present significance. The issue in the present application concerns the terms and conditions of membership of the Legislative Assembly because it relates to the right of the Respondent to remain a member. Accordingly it is a matter which, in terms of Article 27(3) "shall be as prescribed by law."

This was the argument advanced by Mr Arnold and I accept it as correct. It follows that the question of whether, as provided by Section 7(f) of the Electoral Act, the Respondent has ceased to reside in the Cook Islands must be determined by interpreting Section 7(f) without reference to the definition in Article 1(1). That this is the correct approach is, in my view, apparent from the words of the definition of "to reside" in Section 2(1) of the Electoral Act, which definition is limited as being "in relation to any constituency". The present application is not concerned with any constituency. I accordingly consider that I must approach the present question upon the basis of whether, having regard to the ordinary meaning of the verb "reside", and in the context of the Electoral Act as a whole, the Respondent has ceased to reside in the Cook Islands. This does not depend upon the definitions contained in Section 2(1) of the Electoral Act or Article 1(1) of the Constitution.

I should add that I accept also Mr Arnold's submission that, while the definition in Article 1(1) contains a reference to "the Cook Islands", that has application only in the interpretation of the Constitution itself, except in so far as Section 2 of the Electoral Act extends its application to matters of residence affecting constituencies.

The ordinary meaning of the verb "reside" is in my opinion that contained in the Shorter Oxford Dictionary, namely, "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." The essence of the primary dictionary meaning is that of permanency or continuity. This is also the emphasis given by the Court of Appeal in Fox v Stirk (1970) 3 ALL E.R. 7. That was a case concerning the qualification to vote. Section 1(1) of the Representation of the People Act 1949 provided:

"...the persons entitled to vote as electors at a parliamentary election in any constituency shall be those who -

(a) are resident there on the qualifying date...."

Lord Denning M.R. said, at p. 12, "I think that a person may properly be said to be 'resident' in a place when his stay there has a considerable degree of permanence."

Widgery L.J., at p. 13, referred to the dictionary definition and said:

"The are other references to a man's home, references which I find helpful, because, although I recognise that the word is in some ways an ambiguous word, I think it nevertheless follows that a man cannot be said to reside in a particular place unless in the ordinary sense of the word one can say that for the time being he is making his home in that place....Consequently a person is not entitled to claim to be a resident at a given town merely because he pays a short temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence."

To this must be added the observation that the essential purpose of there being elected members of Parliament is that there should be adequate and realistic representation of the people of the member's constituency. Nor is this confined to representation in Parliament during those periods when Parliament is in session, but it extends to accessibility to constituents during the majority of the time that the member holds office. Occasional absences are, of course, inescapable, but prolonged and frequent absences must be regarded as the antithesis of residence as it is contemplated by the Electoral Act.

Accordingly, if it can be shown that the Respondent did not "dwell permanently or for a considerable time" in the Cook Islands he cannot have been in a position to discharge his duties to represent the interest and welfare of his electorate. This is the context in which I consider the challenge raised against the Respondent under Section 7(f) of the Electoral Act must be examined.

I should not leave a consideration of the interpretation of Section 7(f) without noting the argument advanced for the Respondent. It was that the definition in Article 1(1) of the Constitution applies and therefore the Applicant was required to show that the Respondent had ceased to have a usual place of abode in the Cook Islands. It follows from what I have said already that I do not accept that argument. I do not find it necessary to say any more than that, except only to observe that, if Article 1(1) does apply, and notwithstanding that - the expression "a usual place of abode" may contemplate that a person could have more than one place of abode at the same time, nevertheless the conclusion I have reached on the facts would not produce any different result to this application.

Before dealing with the facts one further matter requires consideration, namely the question of when it must be shown that the Respondent ceased to reside in the Cook Islands. The evidence has sought to trace his movements and his intentions over a period of about four years. While evidence of that earlier period may assist in the issue of fact which must be determined the relevant time must be much more recent.

I think it is necessary to start with the assumption that the Respondent was properly registered as an elector for the purposes of the General Election which was held on 19 January 1989. Upon the basis of the evidence as to the Respondent's movements in and out of the country there does not appear to have been, during the period of a year or so prior to January 1989, any continuous period of 3 months when he was in the Cook Islands. However, he must during that time have made an application for registration and declared, as required by the Electoral Act, that he had resided in the Cook Islands throughout the period of 3 months immediately before the making of the application. It is possible, of course, that he may have applied for enrolment in the Overseas Constituency, although the evidence was that he had voted in the Takuvaine Constituency. Nevertheless his application for registration must have been accepted and I do not think I can now go behind that registration.

It follows that it must be assumed for present purposes that at the time of the Respondent's election as the member for Manihiki he is to be regarded as having then been resident in the Cook Islands. I consider that the obligation on the Applicant is to show, upon the balance of probabilities, that between 19 January 1990 and 6 June 1990 (being the date on which the present proceedings were commenced) the Respondent ceased to reside in the Cook Islands in the sense which I have set out. This is an issue of fact to which I now turn.

The Respondent exercised his right not to give any evidence, or to call evidence on his behalf and accordingly a determination of the facts must depend upon the witnesses called for the Applicant and the inferences which should be drawn from that evidence. Although it was never necessary for the Applicant to prove where the Respondent was residing during the relevant period, it was nevertheless his case that the Respondent was residing in Sydney, New South Wales. I think it is better not to confuse the issue by concentrating on the question of residence in Sydney, but, to consider the evidence of his absences from the Cook Islands. A number of different matters were advanced to establish these, and I deal with them separately.

1. There was evidence that the Respondent had formerly owned two houses in Rarotonga but, in 1986, had sold them both. There was also evidence that he no longer owns any other property in the Cook Islands.

It is not, of course, essential that a person should own a property in any particular place in order to be regarded as residing there. There is, however, an inference capable of being drawn that, in 1986, the Respondent was showing an intention to be less permanently resident in the Cook Islands than he had been. The inference on its own is by no means a strong one but will need to be considered in the light of the remainder of the evidence.

2. On 10 August 1987, in the course of a debate in Parliament on the appropriation for Government housing the Respondent is reported in Hansard as having said,

"Mr Chairman, my permanent residence is now in Manihiki. I do not have a home in Rarotonga. I have no land or house of my own. A house is being provided by Government for me while I am in Rarotonga...I would like to say to you Mr Chairman I do not have a house in Panama because I had purchased a home for myself in New Zealand and also in Sydney and I am looking for another property in Melbourne if I can afford to purchase a home there."

Direct evidence of having heard these remarks was also given by the Applicant.

This again, was well before the relevant period but putting aside for a moment the reference to Manihiki, it carries the inference that the Respondent was in the process of moving his permanent residence to Australia. It was argued that there was equally an inference that the Respondent was purchasing house properties as a means of investment. It is not easy to draw such an inference from the recorded remarks, but the possibility must be borne in mind.

The statement that "my permanent residence is now in Manihiki" would, if true, provide a complete answer to the present proceeding, but, there seems to be no acceptable evidence to lead to that conclusion, and certainly none from the Respondent himself.

Prior to about May 1990 the Applicant and the Respondent were members of the same political party in Parliament. The Applicant, as the leader of that party, said that when it was necessary for him to speak to the Respondent he would ring him at a Sydney telephone number. Sometimes the Respondent would answer and sometimes his wife. This was during the period of about two years prior to the 1989 elections. The Applicant also said that, during that period, the Respondent would come to Rarotonga for Parliamentary sessions, and that he had told the Applicant he was now living in Sydney. This was prior to the 1989 elections.

The inference is again that the Respondent was showing an intention to spend an increasing amount of his time out of the Cook Islands, and that his wife was with him.

3. Evidence was given by the Senior Administration Officer at Parliament in Rarotonga of provision made for the Respondent's accommodation. The schedule produced showed that for a continuous period from 7 August 1986 to 16 March 1988 a Government house was provided for the Respondent, the rental for which was deducted from his salary. Then, for a number of periods between 14 April 1989 and 13 August 1990 a boarding allowance of $30 per day was paid to him.

This evidence was at best equivocal. As best I could follow it the supply of accommodation and the payment of the allowance were based on the assumption that the Respondent's permanent residence was on Manihiki, and that he was entitled to this provision while in Rarotonga and so absent from Manihiki. There does not appear from the evidence before me to have been any real justification for that assumption but it is not a matter relevant to the present proceeding. That evidence does not seem to me to advance the Applicant's case as it is apparently unrelated to any question of the Respondent's absence from the country.

4. In November 1989 the Respondent sent the Applicant a letter from Sydney, enclosing a letter signed by the Respondent, addressed to the Speaker and giving notice of the Respondent's resignation from Parliament. In the result that letter was never delivered to the Speaker and it was acknowledged by the Applicant that the purpose of it was to protect the Respondent's right to certain monetary benefits. In terms of the Electoral Act a member who fails without permission to attend Parliament for 14 consecutive sitting days forfeits his seat and loses certain monetary benefits. If, however, he resigns he remains entitled to these benefits. It appeared that the Respondent may exceed the prescribed 14 days and so the intention was that, if that seemed inevitable, the letter of resignation would be used in order to avoid forfeiture of the benefits. As it happened Parliament adjourned for a few days and the Respondent was able to arrive in time.

The only present significance of the letter of resignation was that it requested the Speaker to forward the Respondent's monetary entitlement to him "C/o Toma & Roberts Enterprises, P O Box 1580, Chatswood, NSW 2067, Australia."

There is an inference capable of being drawn from this that the "Toma" of "Toma & Roberts Enterprises" was the Respondent, and that he was engaged in some form of business in Australia.

Some credence was given to this by the evidence of Mr Norman George, a former Parliamentary opposition colleague of the Respondent, who said that the Respondent told him he was involved in an insurance and investment business and who gave the Respondent some money to invest on his behalf in the Westpac Bank at Chatswood, Sydney, as part of that business.

5. Evidence was also given by Mr George that on 25 May 1990 he rang the Respondent in Sydney and had a long conversation with him. There had been speculation that a member of the Parliamentary opposition was about to defect to the Government ranks.

The Respondent acknowledged that he was that member, and he gave his reasons for his decision. In the course of the conversation the Respondent told Mr George that he had really given up as a member of Parliament, but proposed to stay on for another year in order to be able to qualify for a pension. He would not be entitled to a pension until he had completed 8 years as a member, and as he was first elected in November 1983 he needed to remain until November 1991. The evidence of this conversation raises strongly the inference that the Respondent's absences from the Cook Islands were in fact a withdrawal by him from the country in favour of an acquired residence in Australia.

6. On 4 August 1989 the Respondent wrote a personal letter to the Applicant in which he made clear his intention to leave politics and for himself and his wife to live permanently in Australia. This letter was sent from an address in Chatswood, New South Wales.

An attempt was made in cross-examination to attribute this letter to a political difference between the Applicant and the Respondent, but it does not bear that interpretation and such a suggestion was denied by the Applicant. In the absence of any evidence from the Respondent to the contrary I can only conclude from this letter an intention by him to live permanently outside the Cook Islands, and that he had already put that intention into practice.

7. I have left to last the evidence of the Respondent's absences from the Cook Islands, although it is, perhaps, the most compelling evidence of all.

The evidence was given by Mr Hosking, the Deputy Chief Immigration Officer. It comprised extracts from official records of Respondent's arrivals in and departures from the Cook Islands. The schedule produced by Mr Hosking was as follows:

Arrival	Departure
13/06/87 21/11/87 19/05/88 16/04/89 19/08/89 25/11/89 03/03/90 28/06/90	18/08/87 17/12/87 30/06/88 11/05/89 26/08/89 16/12/89 29/03/90 To date

When shown the Respondent's passport (which expired on 7 September 1989) Mr Hosking was obliged to acknowledge that the figures he had produced were not complete. The passport showed that the Respondent had arrived in the Cook Islands on 6 September 1988 and departed on 22^nd September l988, and had also arrived again on 26 November 1988. There was no corresponding record of departure, although the Respondent must have departed in order to have been able to return on 16 April 1989 as shown in the schedule.

It was the submission of the Respondent that the omissions referred to threw altogether into doubt the validity of Mr Hosking's evidence so that no valid inferences could be drawn from it. I am unable to accept that. The omissions are unfortunate and ought not to have occurred, but no individual challenge was made to any of the other dates shown and, in the absence of any evidence to the contrary, I consider I should accept them as correct.

The overall effect of the arrivals and departures is that, during the period covered, the Respondent spent a total of approximately 12 months in the country, and a total of approximately 24 months out of it.

More significantly, however, for the period from 16 April 1989 to 6 June 1990, which is the majority of the period with which I am particularly concerned, the longest period the Respondent spent in the Cook Islands was 3 weeks 5 days. His visits were presumably for the purposes of attending sittings of Parliament, and there was evidence to this effect. During the periods he was in the Cook Islands it was, of course, necessary for him to stay somewhere and the evidence was that he stayed with relatives.

By no process of construction can I accept that, during the period just referred to, the Respondent "resided" in the Cook Islands. There is no suggestion of any degree of permanence or any continuity of residence in the country. His visits were brief and of no more than a temporary or transient nature.

Accepting as I must that the Respondent resided in the Cook Islands at the time of the elections in January 1989, I consider the inference to be drawn from all the evidence I have reviewed is overwhelmingly that, at some time during the period in question (and the precise moment is irrelevant) the Respondent ceased to reside in the Cook Islands.

In the course of the hearing I raised with counsel whether there could be any question of estoppel arising against the Applicant by reason of the fact that he evidently knew the Respondent's residential circumstances over the period of about the last three or four years and had not taken action sooner.

On reflection I do not think any such question arises. I doubt whether estoppel could be argued as a defence to an argument based on the interpretation and application of a statutory provision, but if it could then it is unlikely to be available to the Respondent whose right to become a registered elector must be in grave doubt.

The only consequence of these matters is that I consider the parties should each pay their own costs. On the other hand I reserve leave to the Attorney-General to apply for an order for costs if he thinks it appropriate to do so.

The answer to the question asked in the application is:

Having regard to the provisions of Section 7(f) of the Electoral Act 1966, the Respondent is not qualified to be a Member of Parliament.

Quilliam J