[1999] PNGLR 187

PAPUA NEW GUINEA

[supreme court of justice]

SIR JULIUS CHAN

V

EPHRAIM APELIS; and
THE ELECTORAL COMMISSION
(No. 2)

waigani: kapi cdj; sheehan, akuram jj
11 February and 9 April 1999

Supreme Court – Jurisdiction to re-open – Principles applicable – Misapprehension of nature of pleadings – Striking out pleadings without considering the issue of recount – Method of enrolment under Part VII of Organic Law on National and Local Level Government Elections.

Evidence – Admissibility of affidavits on application to re-open.

Facts

The applicant, Sir Julius Chan filed a petition in the National Court sitting as Court of Disputed Returns seeking to invalidate the election of Mr Apelis as Member for the Namatanai Open Electorate. Several grounds were pleaded in the applicant’s petition. The respondents then applied to have the whole proceedings dismissed but the National Court struck down only some grounds and allowed other grounds to remain. Sir Julius then applied for review of the National Court decision under s 155(2)(b) of the Constitution. The Supreme Court, then decided that the review be allowed in part but struck down eight other grounds of the petition. Subsequently, the applicant filed this application to re-open the judgement of the court and to correct perceived mistakes in the judgement.

Held

1.	This court has jurisdiction to re-open its decision to correct a mistake in appropriate cases including where the court has exercised its discretion under s 155(2)(b) of the Constitution. This is a power which the court has by virtue of it being the court of last resort: Wallbank & Minifie v The State [1994] PNGLR 78 and Autodesk Inc. v Dyason (No.2) 176 CLR 300 applied.

2.	The circumstances in which this jurisdiction may be invoked may include instances where irremediable injustice is done, by some accident, without blame, a party has not been heard and an order has been inadvertently made as if the party has been heard: State Railway Authority of NSW v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 referred to.

3.	The circumstances in which this jurisdiction may be invoked are extremely rare and discretion must be exercised with great care: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 referred to.

Papua New Guinea cases cited

Ephraim Apelis v Sir Julius Chan (Unreported judgment of the Supreme Court) SC573.
Wallbank & Minifie v The State [1994] PNGLR 78.

Other cases cited

Autodesk Inc v Dyason (No.2) 176 CLR 300
State Railway Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29.
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672.

Counsel

N M Cooke, QC and M M Varitimos, for the applicant. 
C Narokobi, for the first respondent. 
J Nonggorr, for the second respondent.

9 April 1999

Kapi dcj. Sir Julius Chan (the applicant in the present proceedings) filed a petition in the National Court against the result of election of the member for Namatanai Open Electorate in the last General Elections. He pleads several grounds for invalidating the election. Mr Apelis, the wining candidate and the Electoral Commission (both will be referred to as the respondents in the present proceedings) applied to dismiss the whole petition. The National Court heard the application and struck down only some grounds and allowed other grounds to remain. 

The respondents then applied for review of the National Court decision under s 155(2)(b) of the Constitution. The Court heard the review on 29th July 1998 and on 9th October 1998, handed down it’s decision wherein it allowed the review in part and struck down grounds 5, 6.1, 6.2, 6.4, 6.6, 6.7, 8 and 10.1 of the petition (see Ephraim Apelis v Sir Julius Chan, (Unreported judgment of the Supreme Court) SC573. 

On 13th November 1998, the applicant filed this application to re-open the judgment of the Court and to correct perceived mistakes in the judgment. The applicant seeks to rely on two affidavits; affidavit of Michael Wilson sworn 12th November 1998 and Sir Julius Chan also sworn 12th November 1998. Counsel for Mr Apelis has raised objections to the use of these two affidavits in these proceedings. I will address this issue when I consider the true nature of this application.

Counsel for the respondents submits that there is no jurisdiction in the Court to re-open its decision to correct a mistake. While they concede that there is underlying law, which permits the Supreme Court to re-open its own decision in other matters (Wallbank & Minifie v The State [1994] PNGLR 78), they submit that this jurisdiction is not applicable in election cases. They submit that in election cases, there is an expressed provision in the Organic Law on National & Local-Level Government Elections (Organic Law), s 220, which prohibits appeals from decisions of the National Court. They submit that there is an expressed intention by the legislature that election disputes should be decided with finality and therefore there can be no jurisdiction in the Court to re-open its own decision.

Alternatively, they submit that if the Court has jurisdiction to re-open its judgment, the circumstances in the applicant’s application are not appropriate for the exercise of this jurisdiction and therefore the application should be dismissed.

Counsel for the applicant on the other hand simply relies on Wallbank & Minifie v The State (supra) and Autodesk Inc v Dyason (No.2) 176 CLR 300.

I have no difficulty in concluding that this Court has jurisdiction to re-open its decision to correct a mistake in appropriate cases including where the Court has exercised its discretion under s 155(2)(b) of the Constitution. This is a power which the Court has by virtue of its being the Court of last resort (see Autodesk v Dyason [No. 2] supra). The principle stated in Autodesk was adopted by this Court in Wallbank & Minifie v The State (supra). It is necessary to examine the nature of the power and the circumstances in which this power may be exercised. 

The High Court of Australia has fully considered the circumstances in which this jurisdiction may be exercised. In State Railway Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 the Court concluded that this jurisdiction may be exercised where irremediable injustice is done, by some accident, without blame, a party has not been heard and an order has been inadvertently made as if the party has been heard.

This decision was followed in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672. The Court made it quite clear that the circumstances in which it may exercise this jurisdiction are extremely rare and the discretion must be exercised with great care. 

These cases were applied in Autodesk Inc v Dyason [No. 2] (supra). Mason CJ amplifies the principles and at page 302 extended the circumstances in which the Court may exercise this discretion:

"But these statements do not exclude the exercise of jurisdiction to re-open a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. In Smith v N.S.W Bar Association (8) when their Honours said: "If reasons for judgment have been given, the power is only exercised if there is some matter calling for review." It is sufficient to give three examples. In In re Harrison’s Share under a Settlement (9), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v Smith (1), the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (11). And, in Pittalis v Sherefettin (12), a judge recalled orders the day after they were made upon determining that he had "erred in a material matter in his approach to the case" (13).

These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this apprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide, a backdoor method by which unsuccessful litigants can seek to re-argue their case."

This passage in my view states the correct statement of the law.

In order to determine whether this jurisdiction may be exercised in the present case, it is necessary to examine the nature of the issues that came before the Court on review and the decision delivered on the 9th October 1998.

The central issue before the Court on review was whether the petition adequately pleads the facts in accordance with s 208 of the Organic Law. This provision requires that the petition should set out the facts relied upon for invalidating the result of an election. In the judgment, the Court referred to the leading authority on pleading of facts. There is no suggestion by counsel for the applicant that the Court got the law wrong in respect of the requirements of pleading. 

However, counsel submits that in considering paragraph 5 of the petition, the Court wrongly assumed that all the names pleaded in paragraph 5 were not on the 1997 Common Roll at the time of the election. With respect, this submission misconceives the nature of the issues pleaded. 

First, there were no facts placed before the Court on review and the Court made no findings or made any assumptions of fact. The issue before the Court was whether the facts were adequately pleaded to support the grounds for invalidating the election? There was no need to refer to any evidence. The Court determined the issue on the pleading itself. An application to review such a decision needs only to make reference to the pleading upon which the decision was based. It follows from this that no affidavits are required for the purposes of reviewing the decision of the Court. I would not admit the affidavits in the proceedings now before us. 

Counsel for the applicant complains that the Court assumed the wrong facts in paragraph 5 of the petition. On page 5 of the judgment, the Court concluded:

"In the present case, the persons whose right to vote have been denied as pleaded in ground 5 are persons who were not on the roll at the time of the election…." (emphasis added)

With respect the Court did not assume any facts. The Court made reference to the applicant’s pleading in the petition. The question is; whether the Court misapprehended the pleadings in the petition? 

The substance of pleading in paragraph 5 is as follows:

"5.	Failure to enrol persons entitled to vote thereby denying the right to vote under Section 50 of the Constitution, inter alia, and acting in breach of Section 61 of the Organic Law on National and Local-Level Government Elections.

The second respondent or its servants or agents unlawfully and deliberately or negligently omitted and failed to register eligible voters and strong supporters of the Petitioner duly submitted for enrolment in the 1997 Common Roll, and as a result, many eligible voters from the following villages who would have voted for the Petitioner were prevented from casting their votes.

Last year all of the names of the Ward Recorders were submitted to the Task Force given the job of preparing the Common Roll and the Electoral Roll for the Namatanai Open Electorate was prepared by Mr Robin Joshua. It was not published in accordance with Section 50 of the Organic Law at the office of the Returning Officer at Namatanai. It was available at the office of the Second Respondent in Port Moresby and a copy of the Namatanai Open Electorate Roll was forwarded to the Petitioner’s campaign organisers in Namatanai and they identified certain discrepancies in the same and provided a list of the missing electors and delivered these to the Mr Joe Woiwoi, the Provincial Returning Officer in Kavieng well before the issue of the Writ for the Namatanai Open Election. Mr Tony Drett, the Namatanai Open Electorate Returning Officer was present when this list was given to the Mr Woiwoi."

The first paragraph pleads that Electoral Commission officials failed to enrol persons who were entitled to vote. This is made clear by pleading the failure to comply with s 61 of the Organic Law.

The second paragraph pleads those Electoral Commission officials "failed to register eligible voters… duly submitted for enrolment in the 1997 Common Roll, and as a result, many eligible voters from the following villages…were prevented from casting their votes".

The third paragraph pleads the manner in which eligible voters made their claim for enrolment, namely, by submission of list of names to the Returning Officer. 

The second part of the third paragraph pleads that the Common Roll in respect of Namatanai Electorate was examined by supporters of the applicant and the list of the "missing electors" were forwarded to the Returning Officer. Significantly, the petition failed to plead what happened to this list. Did the Electoral Commission correct or alter the Roll in respect of these names? The petition has not pleaded that Electoral Officers failed to correct the omissions in the Roll. 

The third paragraph read as a whole simply pleads that a list of eligible voters was submitted for registration and the names were not registered on the Roll. 

These three paragraphs contain the substance of the pleading in paragraph 5 and in essence pleads that list of eligible votes were forwarded to the Returning Officer and the Electoral Officials failed to enrol their names. The rest of paragraph 5 pleads the names of eligible voters from various villages and locations whose names were not registered on the Roll. 

That conclusion is reached on the face of the pleadings. The Court did not misapprehend the nature of the pleading in paragraph 5.

In connection with the allegation that the Court misapprehended the facts, counsel for the applicant submits that the Court made a mistake in striking out paragraph 5.10. In particular, the last part where it is pleaded that seven names of eligible voters were on the 1997 Common Roll and that the officials wrongly told them that their names were not on the Roll. As I have pointed out earlier, paragraph 5 in substance pleads that Electoral Officers failed to register or enrol eligible voters. It follows from this that the seven names pleaded in this part does not support the ground pleaded in respect of failure to enrol eligible voters. If indeed these names do appear on the Common Roll as pleaded, there can be no unlawful or wrongful conduct on the part of the officials as far as registration of their names on the Roll is concerned. 

What this particular pleading raises is a different point, namely, failure to allow a person whose name appears on the Roll to vote at the elections contrary to s 52 (2) and s 131 (1) of the Organic Law. This ground was not pleaded as such. Counsel for the applicant is not entitled to raise this point. This is tantamount to amending paragraph 5 of the pleading to include a new matter. At no stage did the applicant applied to amend its pleadings in this respect in the National Court. Such an application cannot be entertained in an application of this nature.

The next matter raised by counsel for the applicant in respect of paragraph 5 is that the Court misapprehended the law in relation to enrolment of eligible voters on the Common Roll. 

The Court set out the right of every eligible voter to vote in an election on page 9 of the judgment. It is not necessary to repeat it again here. The Organic Law regulates this right. The Court held the view that in order for any person to vote at an election, he must be enrolled in accordance with Part VII of the Organic Law. It further held that paragraph 5 failed to plead that eligible voters complied with the requirements set out under Part VII of the Organic Law. Counsel for the applicant has failed to demonstrate that there is any error in this conclusion.

Counsel for the applicant further submits that the Court wrongly held the view that the only method of getting enrolled on the Common Roll is set out under s 55 (4) and s 56 of the Organic Law. He submits that the Court was wrong because there are other methods by which an eligible voter may get enrolled. He submits that enrolment under Part VII of the Organic Law is only one of the methods of enrolment.

With respect, counsel for the applicant has misconceived the nature of the legal issue raised by the pleadings in the petition. Paragraph 5 pleads that the officials failed to enrol eligible voters. The Court held the view that Part VII is applicable to an eligible voter who applies to enrol on a Common Roll. The Court further held that paragraph 5 did not plead the essential facts to raise the legal requirements for enrolment under Part VII of the Organic Law. It has not been suggested that Part VII is not applicable or that the Court wrongly applied the law to the pleadings in this case. 

When reference is made to paragraph 5 of the petition, it fails to clearly plead the method by which eligible voters sought to be enrolled. Every person who has a right to vote is entitled to be enrolled in accordance with Part VII of the Organic Law (s 52 (1) of the Organic Law). A person cannot vote unless he is enrolled (s 52 (2) of the Organic Law). Failure to enrol in accordance with Part VII of the Organic Law is an offence (s 57 of the Organic Law). Part VII of the Organic Law provides for the procedure for those who are enrolled for the first time (see also s 54 of Organic Law for additions to the Roll). The thrust of these provisions is that eligible voters should apply individually to be enrolled in accordance with the provisions under Part VII of the Organic Law.

There may be alterations to the Roll (see s 62 of Organic Law). This has not been pleaded in the present case. It was not necessary to consider this issue.

The law also provides for publication of New Rolls (see s 46 of Organic Law). A new roll is published when the Electoral Commission so directs by notice in the National Gazette (s 46(2) of Organic Law). There is provision for alterations and additions to such new Rolls (s 47 of the Organic Law). The petition has not pleaded these issues arising under these provisions and it was not necessary for the Court to consider it.

There is provision for Supplemental Roll (s 49(2) of the Organic Law). Such a Roll sets out additions since the latest print of the Roll. Paragraph 5 has not pleaded this issue. Pleading 5.38 pleads a circular from the Electoral Commissioner and reference is made to a Preliminary List. In my view this does not plead the issue in s 49(2) of the Organic Law. The Court did not have to consider this issue.

Counsel for the applicant finally sought to suggest that the Electoral Commission established his own method of enrolment in the exercise of his discretion under s 53 of the Organic Law. With respect, I cannot find anything in that provision which gives the Electoral Commission any power to provide his own method of enrolment quite apart from the provisions of the Organic Law. However, I do not have to decide that issue. It was not pleaded. Even if the argument is correct, the applicant was required to plead that Electoral Commission has prescribed such a method and plead what that method is and that the eligible voters complied with such a method. He has not pleaded this issue. 

Counsel for the applicant next submits that ground 6 of the pleading should not have been struck down. The essence of pleading in this paragraph deals with the distance at which the scrutineers were positioned at the time of voting at the polling booth. It is alleged that because of the distance, there must have been many ballot papers wrongly marked. With respect, one does not follow the other. Even if scrutineers were positioned closer than is alleged, they are not allowed to see anyone who is voting in the voting compartment. This is the essence of a secret ballot. The only time a person may accompany an elector is when he requests assistance under s 141 and 143 of the Organic Law. Paragraph 6.1, 6.2 and 6.7 simply pleads the distance and simply speculates that voting went wrong without more.

In contrast to this, paragraph 6.3 pleads a particular voter who appears to have had assistance either under s 141 or 143 and alleges that the mark "X" was not placed against the applicant’s name, which was the preferred candidate. We allowed this matter to go to trial.

In my view the Court did not misapprehend the nature of the pleading in paragraph 6.

Counsel for the applicant further submits that the Court misapprehended the nature of pleading in paragraph 8 of the pleading and inadvertently struck it down. This paragraph also pleads the same distance, which was pleaded in respect of scrutiny of the voting at the polling booth in paragraph 6. Paragraph 8 pleads the proper scrutiny of the counting of votes at the counting centre. There is a difference between the scrutiny at the polling and the scrutiny at the counting of votes. In the former scrutineers cannot see the marking of a ballot paper. In the latter, the scrutineers can and should see the ballot paper and see who the vote is for and may object to any of the ballot papers on grounds set out in Part XIV of the Organic Law.

Counsel for the applicant argues that this paragraph pleads the unsatisfactory nature of the scrutiny of the counting of votes and in the final result the count was not properly carried out. The facts relied upon in the pleadings include the distance from counting, the ballot papers were counted so quickly and that there was bad lighting and it was difficult to see the ballot papers. The paragraph also pleads that these complaints were raised but they were not attended to by the officials. He submits that this pleading goes to support an order for a recount in accordance with s 212 (d) of the Organic Law.

The essence of what the Court decided appears in the following passages:

"Ground 8

Ground 8.1 alleges that the petitioner’s scrutineers were kept 10 to 12 metres away from the counting of votes. Again we cannot find any provision in the Organic Law, which prescribes the distance between the counting of votes and scrutineers. This of itself does not constitute a valid ground.

Ground 8.2 alleges that the votes were counted quickly like a pack of cards and that many of the votes for the petitioner were discounted. The petition seeks to constitute this ground by further pleading that the petitioner polled less than the applicant in his stronghold areas. In our view, this fact cannot constitute the ground of discounting of votes by the counting officials. The tally sheet can only show the result of the way people voted. The petition has to plead some fact, which constitutes the irregularity complained of. 

Ground 8.3 alleges the same ground pleaded in other grounds; that the scrutineers were standing 10 to 12 metres away from the counting. We have already dealt with this in ground 8.1. This ground is struck out."

In these passages, the Court considered whether these facts raise any ground to invalidate the result of the election. The Court’s ruling in this regard still stands. However, I agree that the Court failed to consider whether these allegations raise valid grounds for ordering a recount. In so doing, the Court erred and inadvertently struck out this pleading without considering the issue of recount. Had the Court directed it’s mind to the relevance of this pleading to the issue of recount, it may well have reached a different conclusion. I am satisfied that the Court inadvertently struck out this ground without having regard to the issue of recount, which is raised by the petition. I am satisfied that the facts are relevant to the issue of recount. Whether or not these facts will amount to conduct warranting an order for recount is a matter to be determined at the trial. For this reason I would restore paragraph 8 of the pleading.

Finally, counsel for the applicant submits that the Court misapprehended the nature of the pleading in paragraph 10.1. This paragraph clearly pleads facts relating to undue influence pursuant to s 215 (1) of the Organic Law. In so far as this is a pleading supporting an allegation of undue influence, it omitted to plead the knowledge of the winning candidate of the conduct. This is fatal. The Court did not err in this regard. This pleading is not relevant to undue influence. 

However, this pleading is more relevant to the manner of counting the votes pleaded in paragraph 8 and relevant to an order for a recount rather than an order for invalidity of an election. The Court did not have regard to this in striking down this paragraph. In view of the fact that I have now restored paragraph 8, this pleading is relevant to that issue. Accordingly, I would restore this paragraph to go to trial.

In the final result, paragraphs 8 and 10.1 of the petition are restored and they should go to trial with the remaining grounds. 

In view of the fact that parties are partly successful on the application, I make no order for costs.

Sheehan j. In this application it has been argued for the Petitioner that this Court should re-open its judgement of 9th October 1998 to correct perceived mistakes made in that decision. I have read in draft the joint decision of my brothers Kapi, DCJ and Akuram, J and concur in that decision in all except their conclusions in respect of Grounds 8 and 10.1. 

It was contended that the decision of this Court delivered on 9th October in respect of those Grounds, 8 and 10.1. was based on a misconception of the challenge such grounds are intended to portray. Essentially that they represent arguments for a judicial re-count. I have seen no merit at all in the arguments advanced to support that contention. In my view it is simply not possible to glean any positive assertion out of those grounds that merit trial. 

The Organic Law and decisions of this Court emphasise the mandatory requirement that a Petitioner set out the facts upon which he relies to overturn an election or return. This must be done not just to establish the clear basis of the challenge to an election or return, but equally to enable opposing parties clear sight of the matters in issue so as to be able present a defence. 

The whole of the proceedings to date in respect of this petition have demonstrated that it has been drafted without any precision at all. Grounds 8 and 10.1 are but further examples of such imprecision. 

In Ground 8.1. the Petitioner makes a bald statement that the scrutineers were too far from the counting table to see, and therefore couldn’t verify the results recorded. Nothing is added to show how this ground maybe relied on to invalidate the election. 

In 8.2. ballot papers were counted speedily "like a pack of cards". A Mr Tomsak "therefore alleged" there were many discounted votes which should have gone to the Petitioner. There is no assertion of fact here only speculation. And, there can be no support for that allegation, by the assertion – in breach of s 218(2) of the Organic Law – that there must have been some error because the votes recorded show a swing away from the Petitioner in his "strong hold". 

Paragraph 8.3 says that "miscounting and manufacturing (of ballots) were possible" …."it was hardly possible to properly read ballot papers"… and "these certainly raise doubts of proper counting"….

There is no fact asserted in this paragraph at all. It is simply a claim that error was possible but without asserting any error was made. Thus each paragraph, 8.1, 8.2. and 8.3 individually do not constitute any ground. Even collectively - read as a whole, an assertion that scrutineers were at a distance and unable to see clearly what was going on and that in the circumstances mistakes may have been made is straining .the wording actually used and the requirements of the Organic Law for facts to be supplied. It is certainly not a ground warranting trial. 

The ground stated in paragraph 10.1. falls under the general statement of ground 10 which stipulates that paragraph 10.1. and the other paragraphs following as examples of undue influence. While that may not of itself prevent it being also used as an argument or ground to challenge the proceedings at the counting, is not apparent without specious reasoning. It certainly leads to misdirection of a Respondent looking to establish the issues that he must defend. 

But the ground itself only states that "unnamed supporters removed the Returning Officer and put in his place – without naming him – a "strong supporter of the first respondent". Nothing more is offered to show in what way these "facts" might invalidate the election – whether for example the count was conducted entirely in the absence of the gazetted Electorate Returning Officer or some other situation. 

The merits of these paragraphs as grounds argued again by the petitioner before this Court to show some mistake in its decision are no more convincing now than they were when first considered in the judgement of 9th October 1998. 

It was and remains my considered view that there are no issues set forth in any of the grounds including 8 and 10.1 that merit trial and I would accordingly, reject the application made. 

Akuram j. I agree with the reasons and orders made by the Deputy Chief Justice and I have nothing further to add.

Lawyers for the applicant: Warner Shand.
Lawyer for the first respondent: Narokobi.
Lawyers for the second respondent: Nonggorr & Associates.