Piari v Ipatas [2013] PGNC 62; N5233 (12 June 2013)

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N5233

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 102 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 ENGA PROVINCIAL ELECTORATE

BETWEEN

NATHAN PIARI
Petitioner

AND

PETER IPATAS
First Respondent

AND

ANDREW TRAWEN, The Electoral Commissioner of Papua New Guinea
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2013: 11th & 12th June

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to extend time – Time to file and serve responding affidavits – Application arising from election petition – Extension of time sought by second and third respondents – No application filed by first respondent – Reasons for default – Unavailability of witnesses – Lack of means of communication with witnesses – Exercise of discretion – Constitution – Section 155(4) – National Court Election Petition Rules, 2002 (as amended) – Rule 17.
ELECTION PETITIONS – Legal representation of party in election petitions – Brief out of petition to another law firm – Whether leave to appear required – Organic Law on National and Local-level Government Elections – Section 222.

Cases cited:

Peter Wararu Waranaka -v- Electoral Commission & Richard Maru (2012) N4812
Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093

Counsel:

Mr S Soi, for Petitioner
Mr A Kongri, for First Respondent
Mr H Viogo, for Second & Third Respondents

RULING ON APPLICATION TO EXTEND TIME

12th June, 2013

1. MAKAIL, J: The application before the Court is by the second and third respondents to extend time by 21 days to file and serve responding affidavits pursuant to section 155(4) of the Constitution and Rule 17 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2. There is no dispute that on 23rd April 2013, the Court directed parties to among others, file and serve on each other affidavits they intend to rely on at trial. The petitioner was to do that by or before 14th May 2013 and the respondents by or before 04th June 2013. The petitioner complied with the directions by filing and serving 22 affidavits on 14th May 2013 while the respondents failed to file and serve their responding affidavits by 04th June 2013.

3. Relying on his affidavit in support filed on 30th May 2013, Mr Viogo of counsel for the second and third respondents submitted that is was difficult to locate the witnesses to prepare affidavits to response to the petitioner's witnesses' affidavits. This is primarily because of:

3.1. Lapse of time,

3.2. Lack of means of communication and

3.3. Unavailability of witnesses.

4. He further submitted that an attempt was made to locate the witnesses on 16th May 2013 when he travelled to Wabag and met with the Enga Provincial Returning Officer Mr Cleopas Roa. Mr Roa would assist in locating the witnesses, collect their statements and prepare their affidavits. However, since that time and even after the application was filed on 30th May 2013, there is no further evidence from the second and third respondents as to the latest status of their case preparation in terms of locating witnesses and/ or collecting witnesses' statements, drafting, settling and serving their affidavits. Mr Viogo from the bar table submitted that some affidavits will be filed soon and urged the Court to give him some more time to attend to them.

5. The application was supported by the first respondent and while conceding that he did not file a notice of motion, the first respondent further made an application for extension of time to also file and serve his responding affidavits on the petitioner. He submitted that if the Court extends time for the second and third respondents to file and serve their responding affidavits, as a matter of course, the Court should also grant him extension of time to do likewise.

6. The first respondent's position and submission prompted the Court to raise the issue of legal representation for the first respondent under section 222 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). This was also after the Court had previously noted in other election petitions that have come before this Court, there were lawyers appearing on brief outs from other law firms. In this case, the Court noted that Mawa Lawyers took over the matter from Dotaona Lawyers on 27th May 2013 (see notice of change of lawyers), that Mr Kongri from the firm of Harvey Nii Lawyers appeared for the first respondent on a brief out from Mawa Lawyers and moved the Court for an order to extend time unsupported by a notice of motion.

7. Mr Kongri submitted that section 222 does not prohibit more than one counsel or lawyer from the same law firm to appear for a party in an election petition once leave is granted by the Court or with the consent of the other parties. But he conceded that in a case of a brief out by a law firm to another, leave ought be sought and granted before a lawyer appearing on a brief out by the principal law firm can appear for a party. Mr Viogo took the same position as Mr Kongri.

8. Mr Soi for the petitioner submitted that section 222 must be read as a whole to appreciate the intention of Parliament and when it is construed in that manner, it does not infringe a party's right to engage a lawyer of his or her own choice but restricts the right of the lawyer to appear for the party in Court. That right can only be exercised in one of two situations. First is where all parties have agreed that the lawyer can represent a party and second one is where the Court grants leave to the lawyer to represent the party.

9. Here, as Mr Kongri appears on a brief out from Mawa Lawyers, he has no right to appear unless with the consent of the petitioner, the second and third respondents or with leave of the Court. He has not obtained the consent of all the parties or leave of the Court. Therefore, he has no right to appear for the first respondent. Mr Soi concluded by submitting that given this, there are now two lawyers acting for the first respondent and this is prohibited by section 222(2).

10. Section 222 states:

"222. Counsel or solicitor.

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of a party."

11. Petitions have historical significance. They originated from the King's court. In the olden days, petitions were presented to the Crown by the Crown's subjects. That has been and is the tradition until lawyers came into the scene. That is why under our electoral laws, a party disputing the results of an election is entitled to petition the National Court as of right. Where a lawyer is retained, appearing in court will only be with consent of all the parties or with leave of the National Court. This is provided for under section 222. See also my brief discussion on the subject in Peter Wararu Waranaka -v- Electoral Commission & Richard Maru (2012) N4812.

12. In my view section 222 is intended to ensure that the lawyer who appears for a party before the Court must be well versed with the case. This is because in election petitions, time is of essence. There is simply no time to waste. If a lawyer is not familiar with the case and comes to Court unprepared, the consequence might be a further adjournment or dismissal of the petition. Where all parties consent or leave of the Court is obtained by the lawyer, this particular lawyer is the one to appear for the party before the Court. But I do not think section 222(2) was intended to prohibit another lawyer from appearing for the party. In my view section 222(2) prohibits more than one lawyer from appearing for one party at the same time before the Court. (Emphasis is mine).

13. I am further of the view that it is permissible and proper for a lawyer appearing on a brief out from another law firm to appear for the party with the consent of all the parties or with leave of the Court. In the former case, I suggest prior communication to the other parties by the brief out lawyer would suffice and will go a long way to settling the issue of legal representation before parties appear before the Court. If parties do not agree, the brief out lawyer must seek leave from the Court to appear on the date of hearing. Rule 12(2) of the EP Rules seems to reinforce the view that there must be one lawyer appearing for a party because it states that, the lawyer who appears at the directions hearing is the lawyer who will appear at the trial. It states:

"(2) Where a party to a petition is represented by a lawyer that party shall attend at the Directions Hearing with his or her lawyer who will be appearing at the trial."

14. In this case, Mr Kongri appeared on a brief out from Mawa Lawyers. He is not the lawyer on record or rather his firm of Harvey Nii Lawyers are not lawyers on record. I accept Mr Soi's submission that Mr Kongri has not obtained the consent of the petitioner, the second and third respondents nor has he sought and obtained leave of the Court to appear for the first respondent. That means, he has no right of audience before this Court. He should and should have never been heard. It follows as he had applied for extension of time and made submissions on behalf of the first respondent, they will not be considered.

15. As to the merits of the application, the power to grant extension of time is discretionary. The party asking for an extension of time must make out a case for the exercise of discretion in its favour. First and foremost, it must explain why it has allowed the time to lapse and the explanation must be reasonable. Secondly, the application must be made promptly and thirdly, whether the grant of the application will not prejudice the other party.

16. As to the explanation for the lapse of time, the second and third respondents had more than sufficient time since the service of the petition to prepare their case. This would include rounding up the witnesses identified in the petition, obtaining their statements and preparing their affidavits in anticipation of the trial. Any prudent lawyer acting on behalf a party in legal proceedings would be attentive to their matters. In my view the lapse of time is their-own doing.

17. In Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093, the Court made these observations when rejecting the explanation of the defaulting respondent for failing to file and serve responding affidavits in time:

"10. So much emphasis has been put on the petitioners to get their affidavits filed and served on time while the respondents are allowed to tag along innocently waiting to seize an opportunity to dismiss the petition for non-compliance. The reason that the witnesses were unwilling or unavailable to come forward to give evidence is far-fetched. If the petitioners are burdened with the task of collating information from informants and witnesses to get affidavits drafted, settled and filed within the time limits fixed by the Court, it is inexcusable for the respondents not to do the same.

11. It is without a doubt that the grounds of the petition unless vague or brief, would as a starting point for case preparation, provide sufficient information to the respondents to act on to locate witnesses, collate information, draft, settle and file affidavits in response within the time limits fixed by the Court. If the lawyers for these respondents had approached the petition in this way, they would have been ready with the affidavits by the due date, noting that they had more than sufficient time following the service of the petition to the first directions hearing and then the first extension to get the affidavits filed and served. In the end, I am not satisfied with the explanation for the default."

18. For these reasons, I am of the view that the explanation given by the second and third respondents is unsatisfactory.

19. As to the lack of means of communication with the witnesses, there is no evidence to establish this assertion. For example, where are the witnesses located? If the means of communication is unavailable, what is it or what are they? Similarly, I am of the view that the evidence in relation to Mr Viogo's trip to Wabag on 16th May 2013 to locate witnesses is lacking. It is unclear what Mr Viogo and Mr Roa did when Mr Viogo was in Wabag on that date. Simply put, the second and third respondent's case is unsatisfactory. They are not serious because if they want the Court to exercise its discretion in their favour, they have to do better than this.

20. While the application was filed some three days before the expiry of the time to file and serve their responding affidavits, the second and third respondents have not shown that extending time will not prejudice the petitioner. In any case, the petitioner will be prejudiced if the application is granted. The prejudice cannot be underestimated nor can it be overstated. It must be given due consideration. The petitioner has spent time and money to pursue this petition and any delays will surely cause more hardship to him financially.
21. For these reasons, I refuse the application with costs and adjourned the matter to Monday 17th June 2013 at 9:30 am for pre-trial conference. On this date, I will allocate trial dates.

Ruling and orders accordingly.
____________________________________

Soi & Associates Lawyers: Lawyers for Petitioner
Harvey Nii Lawyers, as town agents
for Paul Mawa Lawyers: Lawyers for First Respondent
Niugini Legal Practice Lawyers: Lawyers for Second & Third Respondents