Schnaubelt v Chan [2012] PGNC 211; N4791 (24 September 2012)

N4791

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 12 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NAMATANAI OPEN ELECTORATE

BETWEEN

WALTER SCHNAUBELT
Petitioner

AND

HON BYRON CHAN, MP
First Respondent

AND

ELECTORAL COMMISSION
Second Respondent

Waigani: Makail, J
2012: 19th & 24th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Service of petition – Service on first respondent – Irregular service – Application for extension of time – Application arising from election dispute – Application for extension of time made after expiry of time limit – Grounds of – Petition left at office of first respondent – National Court Election Petition Rules, 2002 (as amended) – Rules 6,7 & 17.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Service of petition – Service on first respondent – Service of petition pre-requisite to directions hearing – Failure to serve petition – Effect of – Petition incompetent – Court's power of summary dismissal – Petition summarily dismissed – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7, 17 & 18.

Facts

The petitioner applied for extension of time to serve a petition on the first respondent after the time limitation of 14 days expired. He argued that the Court has power under Rule 17 of the National Court Election Petition Rules, 2002 (as amended), to extend time not withstanding that time for service of the petition had expired. He conceded that he had not effected service in accordance with the mode of service under Rule 7(1)(a)&(b), in that he left a copy of the petition at the office of the first respondent and that was irregular service.

Held:

1. Under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the first respondent within 14 days of the date of filing the petition. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2.

2. Under Rule 7, a petition may be personally served, may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve.

3. Where a petitioner seeks leave to extend time for service of a petition after the expiry of the time limit of 14 days has occurred, he must file a notice of motion supported with affidavit(s) explaining why leave should be granted.

4. Pursuant to Rule 17 of the National Court Election Petition Rules, 2002 (as amended), the Court has discretion to extend time for service of a petition either before or after the expiry of the time limitation of 14 days.

5. As the discretion is a judicial discretion, it must be exercised based on proper principles of law. The principles in Wari Vele -v- Powes Parkop (2008) SC945, were adopted and applied. They are:

1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

2 The application for extension must be made promptly;

3. If there is delay, reasonable explanation for the delay;

4. The relief sought by the applicant will not unduly prejudice the other party's case; and

5. The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

6. The petitioner's explanation for allowing the time limit to expire was unsatisfactory.

7. The petition was incompetent and summarily dismissed pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended).

Cases cited:

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349
Daniel Don Kapi -v- Samuel Abal & Andrew Trawen (2005) N2856
Wari Vele -v- Powes Parkop (2008) SC945
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364
Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378

Counsel:

Mr S Pokawin, for Petitioner
No appearance, for First Respondent
Mr T Kuma, for Second Respondent

RULING ON APPLICATION FOR EXTENSION OF TIME FOR SERVICE OF ELECTION PETITION

24th September, 2012

1. MAKAIL, J: On 21st August 2012, the petitioner filed this petition disputing the election of the first respondent as member elect for Namatanai open electorate in the New Ireland Province in the 2012 General Elections. When the petition came for directions hearing on Wednesday 19th September 2012, only the petitioner and the second respondent appeared. There was no appearance by the first respondent either in person or through a lawyer.

2. As there was no appearance by the first respondent, the Court must be satisfied that the petition was served on him before it could proceed with the directions hearing. Mr Pokawin of counsel for the petitioner informed the Court that a copy of the petition was left at the office of the first respondent located at Pacific View Apartments at 2 Mile Hill in Port Moresby by a Mr William Bartley. Counsel relied on an affidavit of service of Mr Bartley sworn on 13th September 2012 and filed on 18th September 2012 and submitted that on the evidence of Mr Bartley, the first respondent has been served with the petition and the Court should proceed with the directions hearing in his absence.

3. The Court then drew counsel's attention to the mode of service of a petition under Rule 7 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). According to Rule 7, the petition may be personally served, may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve. For completeness sake, I set out Rule 7 in full below:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament."

4. Counsel then reconsidered his position and conceded that the petitioner did not strictly comply with the mode of service under Rule 7(1)(a)&(b). That is, the petition was not served on the first respondent in person or left at the nominated residential address of the first respondent with a person who appeared to be over the age of 18 years. That being the case, he also conceded that since the petition was filed on 21st August 2012 and that the time limitation of 14 days expired on 03rd September 2012, the petitioner is now out of time to serve the petition on the first respondent. He then made an application for extension of time pursuant to Rule 17 of the EP Rules. The question then arises; does the Court have discretion to extend time after the time allowed for service of the petition has expired? If the Court does have discretion, the next question is; how should the discretion be exercised and should it be exercised in favour of the petitioner?

5. Under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the first respondent within 14 days of the date of filing the petition. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2. Rule 6 states:

"6. SERVICE OF PETITION ON RESPONDENTS

(1) Within 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents and must, at the same time, provide the respondents with:

(a) three copies of a Notice to Appear in accordance with Form 1 completed with the title of the proceedings; and

(b) the Registrar's or his delegate's Notice which shall state the date, time and place at which a Directions Hearing will be held and the matters in Rule 12(3).

(2) The Notice referred in Rule 6(1) (b) shall be in accordance with Form 2."

6. The petition was filed on 21st August 2012. The 14 days expired on 03rd September 2012. The petitioner is out of time by 16 days. Mr Pokawin submitted that the Court has power under Rule 17 to extend time not withstanding that the time for service of the petition expired on 03rd September 2012. He relied on the wording of Rule 17 which states that "after the occasion for compliance arises....." and submitted that the way in which Rule 17 is drafted, it is envisaged that the Court still has discretion to dispense with any requirements of the EP Rules after the occasion for compliance has expired. I set out Rule 17 below:

"17. RELIEF FROM RULES

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-Level Government Elections." (Emphasis added).

7. He submitted that in this case, the petitioner was required by Rule 6 to serve the petition on the first respondent within 14 days of its filing. The petitioner did not and the 14 days expired on 03rd September 2012. However, time can be extended if the Court permits.

8. Mr Kuma appearing for the second respondent did not oppose the application but submitted that the Court has power under Rule 18 of the EP Rules to summarily dismiss the petition. He pointed out that the allegations raised in the petition are bribery and undue influence and are alleged solely against the first respondent. If the Court finds that service of the petition on the first respondent is irregular, there would be no utility in the petition proceeding further.

9. I accept the petitioner's submission. The interpretation given by Mr Pokawin is consistent with the wording of Rule 17. Accordingly, I am satisfied that the Court has discretion to extend time for service of the petition on the first respondent after expiry of the time limitation of 14 days. Should the discretion be exercised in favour of the petitioner?

10. Mr Pokawin submitted that the failure to serve the petition in accordance with the requirements of Rule 7 was not the doing of the petitioner. It was his and for that reason, he asked the Court's indulgence to allow the petition to go through directions hearing. He submitted the Court should not penalise the petitioner for his (Mr Pokawin's) failure to provide correct advice on how service of the petition should have been effected on the first respondent. The petitioner should be given a chance to prove his case against the first respondent. He has done everything required of him to progress this petition to trial without further delay.

11. He further submitted that the petitioner relies on two grounds in the petition. They are bribery and undue influence. In support of these grounds, he has filed 18 affidavits. Since the petitioner is ready with his evidence, all that needed to be done now is for the Court to direct the respondents to file responding affidavits before the matter returns to Court for pre-trial conference.

12. The petitioner is asking the Court to exercise its discretion in his favour. I consider that the discretion must be exercised based on proper principles of law as the discretion is an exercise of judicial discretion. Before I consider the relevant principles, let me pause here and make one or two observations. First, in this year's elections, since the filing of the first petition, I have had on a number of occasions called on parties in election petition cases, especially the petitioners to strictly comply with the requirements of the EP Rules when conducting their cases. A failure to comply may be fatal; the petition can be dismissed.

13. I made that call because in my view, election petitions are very serious. To a certain degree, it can reasonably be argued that election petitions undermine the fair representation of the people of the electorate in Parliament when their member's election is being challenged in Court. They may cause delay or even deny delivery of services to the people. Secondly, I think it is also fair to say that election petitions distract members' attention from service delivery to the people. The members spent more time defending the petitions than attending to their people. It is for these reasons that it is incumbent on petitioners to ensure that their cases are progressed expeditiously and with minimal delay.

14. What I have just said is merely echoing the call made by the Supreme Court in 1982 in the case of SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349 where it said:

"An election petition is not an ordinary cause (In The Re Norwich Election Petitions; Birbeck v Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

15. In Daniel Don Kapi -v- Samuel Abal & Andrew Trawen (2005) N2856, an election petition case, Sevua, J expressed similar sentiments in the context of failure by petitioner to comply with Court orders and directions in progressing the petition to trial. His Honour said:

"The Court must reiterate that we have come a long way in attempting to stream line the conduct of election petitions in the National Court. The Election Petition Rules 2002 which were promulgated on 11th July 2002, in accordance with s.184 of Constitution and s.212(2) of the Organic Law on National and Local-level Government Elections were intended to effectively manage all election petitions so that there is no unnecessary delay, and petitions are heard within the time frame stipulated by the Rules. Most importantly, the voter's interest in Parliamentary representation is not left in limbo. It is therefore imperative and wise for petitioners and their lawyers to read and study important decisions of the Supreme Court and National Court on election petitions so that they proceed promptly, conveniently and without unreasonable delay in their endeavour to challenge the wishes of the majority which have been expressed through the ballot."

16. The EP Rules of the National Court promulgated by the Judges of the National Court pursuant to section 184 of the Constitution and section 212 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") reinforces the proposition that an election petition is not an ordinary case and is serious. These rules set out guidelines for parties to follow in the conduct of election petition cases. They fix time limits and parties are required to comply with them. For example, as alluded to earlier, under Rule 6, a petitioner is required to serve the petition on the respondents within 14 days time of its filing. It may be argued that this time period is very short and the petitioners may feel constrained by it for many reasons.

17. Nevertheless, they are obliged to comply with them because General Elections are held every 5 years and there is very limited time to complete election petition cases. It is therefore incumbent on petitioners to ensure that every election petitions commenced must be progress according to the time limits fixed by the EP Rules and completed within a reasonable period of time. In short, time is of essence in election petition cases. In cases where parties run out of time, they must return to Court and ask for extension of time. In Daniel Don Kapi's case (supra), Sevua, J said:

"The Court must also reiterate that where parties to an election petition are unable to comply with directions because of the time limit, they must come back to Court to seek further directions or make an application for the further conduct of the petition so that the petitions are ready for hearing without unnecessary delay. They must be done within the time limit given to the petitioner. The interest of the voters is paramount here and the petitioner bears a heavy responsibility in ensuring that his petition, which is in fact, a challenge to the expressed wishes of the majority, is brought on expeditiously to hearing."

18. With those observations in mind, what then are the principles upon which the Court may apply when considering an application for extension of time after the time limitation for service of a petition has expired? Neither counsel had made submissions on them. I would adopt and apply the principles set out in the Supreme Court case of Wari Vele -v- Powes Parkop (2008) SC945. They are:

1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

2 The application for extension must be made promptly;

3. If there is delay, reasonable explanation for the delay;

4. The relief sought by the applicant will not unduly prejudice the other party's case; and

5. The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

19. It has been held that service of a petition on the respondents is a pre-requisite to the petition progressing further to directions hearing. If it is not served on the respondents, it is incompetent and may be dismissed: Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983.

20. In this case, the petitioner bears the burden to establish why the discretion should be exercised in his favour. The burden is an onerous one. First he has to explain why he allowed the time limit to expire. His reason is that, he relied on his lawyers' advice that service of the petition at the office of the first respondent was sufficient. In my view, this advice was clearly wrong because Rule 7 does not state that the petition may be served by leaving a copy at the office of the first respondent. Rule 7 is clear on service and counsel had correctly conceded that leaving a copy of the petition at the office of the first respondent is not service. In my view, the onerous burden is heavier if he has engaged lawyers to represent him in the prosecution of the petition.

21. Lawyers owe a duty of care to their clients. When acting for their clients, they must exercise great care and skills. In my view, election petitions are a different breed of civil cases and where parties retain lawyers to represent them, the lawyers must exercise extreme care and skills when conducting them. They must carefully study the Organic Law on Elections and the EP Rules before advising their clients on the course of action to take.

22. As the petitioner has engaged lawyers, he must establish that he and his lawyers had done everything that was required of them for the discretion to be exercised in his favour. It is clear to me that he has acted to his own detriment based on wrong legal advice from his lawyers and his lawyers have been negligent. The petitioner and his lawyers had 12 days after the petition was left at the office of the first respondent and the expiry of the time limitation to double check to make sure everything was in order. In my view, a prudent lawyer would have done that. If his lawyers had done that, they would have discovered the irregularity and would have rectified it before the directions hearing.

23. Further to that, it appears the petitioner retained the lawyers sometimes before 21st August 2012 because they filed the petition on 21st August 2012. The significance of this is that, this is not a case where the lawyers were retained just yesterday so to speak and would have no time to rectify the irregularity in the service of the petition before the directions hearing. On the contrary, time was on their side. They had from 21st August 2012 to 03rd September 2012 to rectify it. They were placed in an advantageous position such that they should have checked if the petition was served in accordance with Rule 7. They also had the benefit of requesting for extension of time if they detected the defect in the service. They did not.

24. It would seem, the application for extension of time came as an "after-thought"; the lawyers having realised (and conceded) that service was irregular, decided to apply for extension of time to correct the error at the directions hearing. Indeed, it was a belated application, not supported by a notice of motion and affidavit(s). Time and again, this Court and the Supreme Court have held that lawyers' negligence is not a reasonable explanation for allowing a default to occur or a ground to set aside a judgment: Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364 and Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378. I consider these principles equally apply here. For these reasons, I am not satisfied with the petitioner's explanation.

25. Strictly and reiterating the point I made earlier, there is no formal application for extension of time before the Court for the Court to even consider it. That is to say, the petitioner has not filed a notice of motion and supporting affidavits setting out his reasons for extension of time. In this respect, I consider that where a petitioner seeks leave to extend time for service of a petition after the expiry of the time limit of 14 days has occurred, he must filed a notice of motion supported with affidavit(s) explaining why leave should be granted. As the petitioner in this case has failed to do this, this is sufficient reason to dismiss the petition.

26. There is no dispute in relation to service of the petition on the second respondent. On a quick perusal of the grounds of the petition, I note the petitioner raised allegations of bribery and undue influence against the first respondent. There are no allegations against the second respondent. In his submissions, Mr Pokawin conceded this point. The significance of this point is that, if the petitioner's application for extension of time is refused, there would be no utility in proceeding further with the petition against the second respondent as there are no allegations against it regardless of whether or not the petitioner has filed 18 affidavits to prove these allegations.

27. I accept that the petitioner has a right to dispute the election of the first respondent under section 206 of the Organic Law on Elections and his right to prove the allegations against the first respondent will be prejudiced if the extension of time is refused. Equally important is the interest of the majority of the voters who have elected the first respondent. In my view, the majority have made their choice through the secret ballot. They chose the first respondent as the person to represent them in Parliament and he must represent them unhindered.

28. Finally as correctly pointed out by Mr Kuma, the Court has power under Rule 18 of the EP Rules to summarily dismiss a petition. It states:

"18. SUMMARY DETERMINATION

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) make such other orders as it deems just."

29. The power to dismiss is also an exercise of judicial discretion. It must be exercised based on proper principles of law. When Rule 18 is considered in the context of Rule 7, the petitioner was required to serve the petition on the first respondent either in person or by leaving it at the residential address as stated by the first respondent in the nomination form with a person who appears to be over the age of 18 years. He conceded that he had complied with neither of them. Weighing up all these matters, I am of the view that in the interests of justice, the discretion should not be exercised in favour of the petitioner. I refuse the application and in the exercise of the Court's power under Rule 18, I order that:

1. The petition be dismissed in its entirety.

2. The petitioner shall pay the costs of and incidental to the petition and the sum of K5,000.00 as security for costs held by the Registrar shall be released and apportioned equally between the respondents.

3. Time shall be abridged.
____________________________________

Kaipu & Associates Lawyers: Lawyers for Petitioner
Kimbu & Associates Lawyers: Lawyers for Second Respondent