Thompson v Pokasui and Electoral Commission [1988] PGLawRp 32; [1988] PNGLR 210 (29 November 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 210 - Martin Thompson v James Pokasui and Electoral Commission 

[1988] PNGLR 210

SC359

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MARTIN THOMPSON

V

JAMES POKASUI AND THE ELECTORAL COMMISSION

Waigani

Bredmeyer Cory Hinchliffe JJ

29 November 1988

PARLIAMENT - Elections - Disputed election petition - Practice and procedure - Particulars - No power to request or order particulars - No power to strike out a petition for failure to supply particulars - Organic Law on National Elections (Ch No 1), ss 208(a), 212.

Held

The National Court has no power to order particulars in respect of an election petition filed pursuant to s 206 of the Organic Law on National Elections (Ch No 1) and consequently no power to dismiss a petition for failure to supply particulars.

SCR No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342, followed.

Re Koroba-Lake Kopiago Open Parliamentary Election; Wabiri v Payale Elo [1977] PNGLR 328, disapproved.

Cases Cited

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

Koroba-Lake KopiaKo Open Parliamentary Election, Re; Wabiri 1, Payale Elo [1977] PNGLR 328.

SCR No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342.

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

Application

This was an application for judicial review under s 155(2)(b) of the Constitution of an order of Woods J dismissing an election petition.

Counsel

L Gavara-Nanu, for the applicants.

M Kanat, for the first respondent.

No appearance for the second respondent.

29 November 1988

BREDMEYER J: This is an application for judicial review under s 155(2)(b) of theConstitution. On 5 February 1988 Woods J dismissed an election petition for failure to comply with a request for particulars. Although the trial judge said that he was dismissing the petition for lack of prosecution it is clear that he was dismissing it because, as alleged in the notice of motion, the petitioner had failed to comply with a request for particulars. We have heard much argument on whether that request for particulars was properly served or not, but there is a preliminary legal issue which we must tackle: Does a party have the right to request particulars in an electoral petition and does the court have the power to order them? Clearly if a party has no right to particulars then a petition cannot be dismissed for the petitioner’s failure to supply them.

The court’s powers on hearing an election petition are contained in s 206-212 of the Organic Law on National Elections (Ch No 1). The powers enumerated in s 212 are not exhaustive but there is no mention in that section of particulars. Neither is there any general power stating that in hearing an election petition the court shall have all the powers, or shall follow the same procedures, as in hearing a civil suit. Contrast this with the position in England where the Representation of the People Act 1949 (UK), which is the equivalent of our Organic Law on National Elections, specifically provides that the High Court has the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction (s 137(3) of the Act quoted in Halsbury’s Laws of England (4th ed), Vol 15, par 871, p 474). The result is that in England particulars are normally immediately requested when the allegations in a petition are quite general, and further particulars can be ordered by the court (Halsbury, par 877, p 477).

In Re Koroba-Lake Kopiago Open Parliamentary Election; Wabiri v Payale Elo [1977] PNGLR 328 at 336, Pritchard J said that detailed particulars of allegations made in a petition should be sought and supplied well before the hearing to prevent surprise etc, but that was a decision of a single judge and the English Act I have quoted was not cited to him. I consider that that decision cannot now stand with the Supreme Court decision of SCR No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342 where, at 348, after giving reasons, the court in a joint judgment said: “In our view the National Court Rules can have no application to election petitions.”

A further reason why I consider particulars are not allowed by the Organic Law on National Elections is that there is no need for them. By s 208(a) of that Law the petition must set out the facts relied upon to invalidate the election. If the facts are not set out in the petition in adequate detail the respondent can apply to have that part of the petition, or the whole of the petition if necessary, struck out. The authority for that proposition is SCR No 4 of 1982; Re Delba Biri and an Australian case, Re Berrill’s Petition and Boothby (SA) (1978) 52 ALJR 359; 19 ALR 254. Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372 is an example of a striking out of various clauses in a petition for failure to plead the facts relied upon.

I am firmly of the view that the National Court Rules do not apply to an election petition, and hence that particulars cannot be requested or ordered. It follows logically that a petitioner cannot have his petition dismissed for failure to comply with particulars. I would quash the order of Woods J made on 5 February 1988, reinstate the petition, and order the respondent to repay the K200 security deposit to court within 14 days, the money to remain in court to await the outcome of the hearing of the petition.

CORY J: I agree with the judgment of Bredmeyer J and have nothing to add.

HINCHLIFFE J: I too agree with the judgment of Bredmeyer J and have nothing to add.

(The Court then heard submissions and made an order on costs.)

Order quashed Petition re-instated

Lawyer for the applicant: L Gavara-Nanu.

Lawyer for the respondent: M Kanat.