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Kramer v Duban [2012] PGNC 180; N4884 (12 November 2012)

N4884

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 60 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 MADANG OPEN ELECTORATE

BETWEEN

BRYAN KRAMER
Petitioner

AND

NIXON PHILIP DUBAN
First Respondent

AND

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

Waigani: Makail, J
2012: 09th & 12th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Amendment of petition – Jurisdiction of – Amendments sought after expiry of 40-day time limit – Dispensing with 40-day time limit – Organic Law on National and Local-level Government Elections – Section 208(a) – National Court Election Petition Rules, 2002 (as amended) – Rules 11 &17.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to amend petition – Application arising from election dispute – Amendment of grounds – Grounds of – Typographical errors – Correction of errors – Simple amendments – Correction of dates and name of person – No substantial change to pleadings – No prejudice shown – Amendment allowed – Organic Law on National and Local-level Government Elections – Section 208(a) – National Court Election Petition Rules, 2002 (as amended) – Rules 11 & 17.
Facts

This is an application to amend the petition to correct typographical errors in the dates and name of person stated in the grounds pursuant to Rule 11 of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. Rule 11 of the National Court Election Petition Rules, 2002 (as amended) states that a petition may be amended at any time before the expiry of 40 days from the declaration.

2. There is no express provision in the Organic Law on National and Local-level Government Elections prohibiting amendment of a petition after 40 days of the declaration. The exception is an amendment which seeks to add a new ground to the petition. Steven Pirika Kamma -v- Electoral Commission & Michael Laimo (2007) N3246 and Paias Wingti -v- Electoral Commission & Tom Olga (2008) N3295 referred to.

3. The Court has jurisdiction to amend a petition after the 40-day time limit by dispensing with the requirement of Rule 11 under Rule 17 of the National Court Election Petition Rules, 2002 (as amended) and the power to amend is confined to simple amendments or "cosmetic" changes as opposed to substantive amendment.

4. The proposed amendments are to correct typographical errors in the dates and name of person in the grounds and no prejudice has been shown if the amendments are allowed.

5. The petitioner was allowed to amend the petition.

Cases cited:

Steven Pirika Kamma -v- Electoral Commission & Michael Laimo (2007) N3246
SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349
Paias Wingti -v- Electoral Commission & Tom Olga (2008) N3295

Counsel:

Mr Y Wadau, for Petitioner
Mr T Copper, for First Respondent
Mr D Simingi, for Second Respondent

RULING ON APPLICATION TO AMEND PETITION

12th November, 2012

1. MAKAIL, J: This is an application to amend the petition to correct typographical errors in the dates and name of person stated in the grounds pursuant to Rule 11 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). The amendments sought are:

1.1. Ground 5.4 be amended by deleting the date 14th and inserting 11th.

1.2. Ground 5.4(i) be amended by inserting the letter "c" to the name Mr Ka to read Mr Kac.

1.3. Ground 5.5 be amended by deleting the date 15th and inserting 13th.

2. While acknowledging that Rule 11 of the EP Rules states that a petition may be amended at any time before the expiry of 40 days from the declaration, the petitioner says that the proposed amendments are simple amendments to correct typographical errors. Further, they do not substantially change the grounds of the petition and they will not adversely prejudice the respondents in the defence of the petition. He says that the errors are a result of rush against time to get the petition filed within 40 days of the declaration and constant power cuts in Madang town. He relies on Steven Pirika Kamma -v- Electoral Commission & Michael Laimo (2007) N3246 as authority for the proposition that the Court has jurisdiction and may grant an amendment of a petition after the expiry of time limit of 40 days of declaration under Rule 11 (supra).

3. The respondents took one position. Relying on Rule 11 (supra), they say that the Court has no jurisdiction to amend a petition after the expiry of 40 days from the date of declaration. They rely on the Supreme Court decision in SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349 to support their submission. They also submitted that as the decision in Steven Pirika Kamma's case (supra) is by the National Court, this Court is not bound to follow it. In the alternative, they say that the reasons given in support of the application are unsatisfactory. They say that the dates and name of person should be within the knowledge of the petitioner at the time of drafting and settling the petition and should have been communicated to the lawyers well before the preparation of the petition. They did not make submissions on the question of prejudice.

4. Rule 11 of EP Rules states that a petition may be amended at any time before the expiry of 40 days from the declaration. The 40-day time limit for amending a petition comes from section 208(e) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and from the decision of the Supreme Court in Delba Biri's case (supra).

5. Section 208(e) says that a petition must be filed within 40 days after the declaration of the result of the election. In Delba Biri's case (supra) the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J), when giving an opinion on constitutional questions referred to it by the National Court under section 18 of the Constitution held that the National Court has no power to allow amendment of a petition after expiration of the time limit for filing the petition.

6. However, there is no express provision in the Organic Law on National and Local-level Government Elections prohibiting amendment of a petition after 40 days of the declaration. The exception is an amendment which seeks to add a new ground to the petition: Steven Pirika Kamma (supra) and Paias Wingti -v- Electoral Commission & Tom Olga (2008) N3295.

7. The respondents have not shown why I should not follow the decision in Steven Pirika Kamma's case (supra), thus I do not see any reason why I should not follow it. In Paias Wingti's case (supra), Cannings, J drew a distinction between substantive amendment and "cosmetic" amendment by suggesting that an amendment maybe substantive if it causes prejudice to a respondent by not reducing the issues that the respondent had to research and prepare for or where it prolongs the proceedings. The converse of these would be cosmetic amendment which can be allowed. His Honour made this distinction in the context of an application to withdraw a ground of a petition.

8. I am of the view that the Court has jurisdiction to amend a petition after the 40-day time limit by dispensing with the requirement of Rule 11 under Rule 17 of the EP Rules. In my view also, the Court's power to grant an amendment is confined to simple amendments or "cosmetic" changes. Whether or not to allow such amendments is discretionary and the petitioner must provide a reasonable explanation to allowing the default, that the proposed amendments will clarify the issues and that the respondents will not be prejudiced by the amendments.

9. In the present case, I am satisfied that the proposed amendments are to correct typographical errors in the dates and name of persons in the grounds. They are simple amendments or "cosmetic" changes and will not prejudice the respondents nor will they prolong the proceedings. Indeed, they will give the respondents the correct dates and name of person allegedly bribed by the first respondent, noting that ground 5 of the petition raise among other things, allegations of bribery against the first respondent. In other words, they are not substantive amendments such as addition of new grounds.

10. For these reasons, I will allow the petitioner to amend the petition. I order him to file and serve the amended petition on the respondents by close of business on Wednesday 14th November 2012 and cost will be in the cause. The status conference will be deferred until then.

Ruling accordingly.
____________________________________

Young Wadau Lawyers: Lawyers for Petitioner
Twivey Lawyers: Lawyers for First Respondent
Harvey Nii Lawyers: Lawyers for Second Respondent