In the Matter of The Organic Law on National and Local-Level Government Elections; Chan v Apelis [1997] PGNC 129; N1627 (13 October 1997)

Unreported National Court Decisions

N1627

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 54 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS FOR THE NAMATANAI OPEN ELECTORATE IN THE NEW IRELAND PROVINCE
AND
SIR JULIUS CHAN, GCMG, KBE - PETITIONER
AND
EPHRAIM APELIS - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
7 October 1997
13 October 1997

ELECTIONS - Parliament - Petition disputing election - Amendment of Petition - Time limit for filing amendment - Petition amended by Petitioner after expiry of 40 days time limit - Whether Amendment may be filed outside time limit of 40 days imposed by s. 208(e) of Organic Law on National and Local-Level Government Elections - Meaning of “40 days” discussed - Meaning of “amendment” discussed - Constitution, Schedule 2.1 & 2.16, Organic Law on National and Local-Level Government Elections, ss. 3(2) Interpretation Act (Ch. No. 2), s.11,

Practice Direction for Presentation and conduct of Elections, NC 2/97, ss. 2 & 11.

Cases Cited

Biri v Ninkama [1982] PNGLR 342

Collins v Hertfordshire County Council [1947] KB 595

Esbelby v Federated European Bank [1932] 1 KB 254

Counsel

M Wilson lawyer for the Petitioner

C Narakobi lawyer for the 1st Respondent

J Nonggorr lawyer for the 2nd Respondent

13 October 1997

INJIA J: The first rdent applies toes to dismiss the Amended Petition filed on 11 August 1997 on the ground that it was filed outside the 40 days time limit imposed by s. 208 (e) of the Organic Law on National anal-Level Government Electioections (hereinafter abbreviated OLNE). The application is supported by the second respondent.

The following facts are not in dispute. On 30 June 1997, the resp respondent was declared the winner of the election fo Namatanai Open Electorate in the National Parliament.&#160 The Petir was the runner-uner-up in that election. Pursuant tE s. 208(ee Peti Petitionerioner had “40 days after the declaration of the result of the election” to file an election pen undNE, s. 206 at thet the National Court Registry at Port Moresby or at the Court House in anyn any Provincial headquarters. The 4ay fell on Saturday 9day 9 August, 1997. On Friday 8 August 199e Pehe Petitioner filed a Petition at the National Court Rey at Port Moresby. This petition wasd within thin time. On Saturdayand Sund Sundayunday 10th which weekends, ttional Coal Court Registry at Poat Port Moresby was closed for business. On Monday the said registegistry was open for business as usual0; Onay 11th, the Peti Petitioner filed an Amended Petition at t at the National Court registry at Port Moresby. This Amended Petitis fil t on the 42nd day afty after the declaration and therefore it was filed out of time.

It is this Amended Petition which i subject of this application. Tspondents also seek a disa dismissal of the original pnal petition if the Amended Petition is dismissed. I will first deal withappl application in respect of the Amended Petition.

It is submitted for the Petitioner that the Petitioner could not file the Amended Petition on Saturday 9th because the National Cougi registry at Port Moresby was not open for business so it was filed on the next available date, Monday the 11th, when the said registry was open for business.; It is submitted that this is permitted by Constitution, Son, Schedule 1.16 which provides:

“Effect of Time Limits

(1) &#Where in a Constitutionalional Law a time limit is imposed for doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) &#1he operation of Subsectisection (1) is not excluded by a provision that unjustifiably specifies a time limit or a maximum time limit.”

Counsels for the respondents submit that the 40 days time limit imposed by OLNE, s. 208 (e) is mandatory and it cannot be extended by the deeming provision in Schedule 1.16. They refer mthe mandatory tory provisions of OLNE s. 208 (e) and OLNE s. 3 (2) and Constitution Schedule 1.1, the combined effect of which they say render Constitution, Sch 1.16 inapplicable. To support contention, thn, they they refer me to the Supreme Court decision in Biri v Ninkama [1982] PNGLR 342.

OLNE, s. 3 (2) provides:

“Notwithstanding any other law, where a time limit is imposed under this law for the taking of an action, then unless the contrary intention appear, that time limit is mandatory.”

OLNE s. 208(e) provides:

“A Petition shall...(e) be filed in the Registry of the National Court at Port Moresby or at the Court house in any provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (i) (a).”

Constitution, Schedule 1.1 (i) provides:

“The rules contained in this Schedule (Schedule 1) apply, unless the contrary intention appears, in the Interpretation of the Constitution and of the Organic Law.”

The principles of law in relation to the interpretation of OLNE s. 208 (e) & s. 3 (2) and Constitution Sch. 1.1 and Sch. 1.16 were settled by the Supreme Court in Biri v Ninkama and there is no dispute as what those principles are. The OLNE is stitutional Laal Law and s. 11 of the Interpretation Act (Chapter No.2) which applies to interpretation of ordinary statutes haspplication to interpreting provisions of the OLNE. For purposesnterpreting thng the Othe OLNE s. 3 (2) and s. 208 (e), Constitution Schedule 1 (which includes Sch. 1.1 and Sch. 1.16) applies. The combined effect of Constitution Sch. 1.1 and OLNE s. and s. 208 (e) in imposingosing a mandatory time limit of 40 days within which the file on election petition precludes the applicati Sch. 1.16 to OLNE s. 208 (e). 0; petition cannocannot beot be amended by the National Court or a Petitioner after the expiration of the 40 days time limit.

There is no dispute that the time limit of 40 days imposed by OLNE, s. 208 (e) includes alen (7) days of s of the week, that is, Monday through to Sunday and this means, both the five (5) weekdays or working days and to week-ends. This accords s. 2 (2) of the Prhe Practice Directions for Presentasentation and Conduct of Elections N/C 2/97 issued by the National Court on 27 June 1997 which provides that “the reckoning of the time limit in sub-section (1) (40 days limit) includes all days of the week, and the time limit cannot be extended”. (my emphas/p>

Mr Wilsonilson for the Petitioner has eloquently sought to distinguish the application of the principles in Biri v Ninkama to the facts of the present cad based his arguments on s. 208 (e) and the practical appliapplication of Schedule 1.16 to the facts of this case. The only bas which Biri v ri v Ninkama may be distinguished is that in that case the Supreme Court was dealing with the question of whether ational Court had power to amend a petition made outside the two months period imposed by t by the repealed OLNE, s. 208 (e) whereas in the present case, the Petitioner has exercised his right under Practice Direction NC 2/ f to file an Amended Petition and the only question before this Court is whether the Amended Petition is deemed to have been properly filed pursuant to Constit Sch. 1.16. Sitting as a Nationurt, I t, I am bound tund to apply these principles. In my viewver, the principinciples in Biri v Ninkama are clearly of general application both to an application made to the National Court to amend a petition as well as andment filed without leave of the Court under s. 11 of Prac Practice Direction N/C 2/97.

For these reasons, the Amended Petition filed on 11 August 1997 is dismissed.

In contemplation of a ruling in their favour in relation to the Amended Petition, counsels for the respondents, especially Mr Narokobi submitted that if the Amended Petition is dismissed, then the original petition should also be dismissed. It is submitted that the emended Petition repealed or “replaced” the original petition and substituted it with the Amended Petition. Mr Wilsunters this argumengument by submitting that the Amended Pen only sought to amend cert certain parts in the original petition and a dismissal of the Amended Petition does not affect the origintition.

The propositposition advanced by Mr Narokobi runs contrary to well and long established principles of Court practice and procedure. An action isituted by an a an aggrieved person by an originating process which in this case is by a petition, which defines a cause of action or claim against a named person(s). An “amendment&#8221p simply seeks to amend or alter parts of an originating process without repealing or replacing the original originating process or altering the original cause tion or original claim in the original originating process.cess. It is not in the nature of an “amendment” to repeal, withdraw, discontinue or terminate the entire original originating process or amend the original originating process by introg a cause of action or claim which is completely new to thao that pleaded in the original claim in the original originating process: See Collins v Hertfordshire County Council [1947] KB 598, [1947] 1 All ER 633; Esbelby v Federated European Bank [1932] 1 K B 254; Halsburys Laws of England Vol. 36 (4th Ed.) para. 64. I present case, it is clea clear that the Amended Petition seeks to simply amend the original petition in respect of certain parts only by adding new parts and deleting certain existing parts w the original petition rema remains on foot. These purported amnts were were underlined in a replica of the original petition re-titled “Amended Petition” and filed in Court.

For these reasons, I refuse to dismiss the original petition on 8 August 1997. Th0; The ori Petition ther therefore remains on foot. Costs is reserved.

Lawyer for the 1st Respondent: Narokobi Lawyers

Lawyer for the 2nd Respondent: Nonggorr & Associates Lawyers