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Warena v Temo and Electoral Commissioner [1988-89] PNGLR 36 (25 April 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 36 - Warena v Temo and Electoral Commissioner�

[1988] PNGLR 36

N662

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GLAIMI WARENA

V

ANTONY YARNAK TEMO AND THE ELECTORAL COMMISSIONER

Waigani

Hinchliffe J

22 April 1988

25 April 1988

PARLIAMENT - Elections - Election petition - Service of - Time for - No manner or time prescribed - Petitioner not to be bound to any specific time - Service six months after filing - Application to strike out refused - No limit to be placed on time for service of petition - Striking out as last resort - Organic Law on National Elections (Ch No 1).

Held:

(1)����� That where an election petition disputing the validity of an open parliamentary election was served on the Electoral Commissioner two days after being filed but was not served on the candidate the election of whom was disputed, until six months after it was filed, the petition should not be struck out on the ground that it had not been served within a reasonable time.

Samara v Numa and The Electoral Commissioner [1988] PNGLR 18, distinguished.

(2)����� In the absence of any provision in the Organic Law on National Elections (Ch No 1) as to the manner of and time for service of election petitions the petitioner should not be bound to any specific time for service.

(3)����� An election petition should only be struck out as a last resort.

Cases Cited

The following case is the only case cited in the judgment:

Samara v Numa and The Electoral Commissioner [1988] PNGLR 18.

Notice of Motion

This was an application on notice seeking an order dismissing an election petition.

Counsel:

P Ume, for the petitioner.

P Bolam, for the first respondent.

B Gamogal, for the second respondent.

Cur adv vult

25 April 1988

HINCHLIFFE J.: The petitioner filed an election petition (hereinafter referred to as �the petition�) in the National Court on 2 September 1987. On 4 September 1987 a copy of the petition was served on the second respondent. The first respondent was served personally on 3 March 1988 and it also appears that he was served by post on 29 February 1988.

Because of what he considers to be �late� service the first respondent comes to this Court by way of notice of motion, seeking an order that the petition be dismissed.

There was no objection to the manner in which the applicant brought this matter to court but it seems to me that if there had been an objection then the applicant may have had some difficulties. I say that because O 4, r 37 of the National Court Rules provides:

�An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.�

Clearly there is not a writ of summons or originating summons involved in this election petition. As the objection was not taken I do not propose to comment further.

Section 212(1)(i) of the Organic Law on National Elections (Ch No 1) provides:

�(1)��� In relation to any matter under this Part the National Court shall sit as an open court and may, amongst other things�...

(i)������ dismiss or uphold a petition in whole or in part.�

There is no dispute that the petition was served on the first respondent some six months after it was filed in the National Court.

Mr Bolam, who appears for the applicant, referred to Samara v Numa and the Electoral Commissioner [1988] PNGLR 18. That was a decision of Woods J where his Honour struck out a petition which had not been served on the first respondent or the Electoral Commissioner (the second respondent) four months after the petition had been filed. His Honour found that there had been unreasonable and unwarranted delay in serving the petition such that it was an abuse of the processes provided for in the Organic Law on National Elections.

The present case is somewhat different in the sense that the second respondent was served two days after the filing of the petition and that at the time of this application the first respondent had been served seven weeks previously.

Although s 208(e) of the Organic Law on National Elections is clear on the time for filing a petition, there is no section that covers the service or time for service of a petition. Indeed at first glance one wonders whether the petition needs to be served on a respondent at all. Needless to say it is only common sense that a respondent be served as he is a party to the proceedings.

I am of the view that where there is no provision for service then a petitioner should not be bound to any specific time for service. Clearly it is in the interests of the petitioner to have the petition served as soon as possible. It is he who claims that he should have been elected to the Parliament and therefore keen to have the petition dealt with. I also would have thought that his witnesses would perform more admirably when all the matters were reasonably fresh in their minds.

On the other hand the first respondent is not affected in the sense that he is sitting in Parliament representing the people of the electorate.

Mr Bolam suggested that the people will suffer until the petition is decided, but I am unable to agree with him. The people have a representative in Parliament who hopefully is doing all he can for them.

The fact that the Organic Law on National Elections does not mention the manner of service on the respondents causes considerable difficulty for petitioners. In particular those who elect to proceed without the assistance of a lawyer. That is what happened in this case and clearly the petitioner attempted to serve the first respondent personally. It was not until he acquired the services of a lawyer that he received advice to serve the petition by post. It seems to me that an appropriate way to serve the elected candidate would be by pre-paid post to him at Parliament House. Personal service would be far too difficult as politicians are forever on the move and it could well turn into a very expensive exercise on the part of the petitioner.

I am of the view that an election petition should only be struck out as a very last resort. A person�s constitutional right is at stake. To place a time limit on the service of a petition when the manner of and time for service is not even clear, I consider, is asking too much of the petitioner. Mr Warena affected service as soon as he received some legal advice. He certainly served the second respondent very soon after filing the petition and that in itself indicated to me that he was genuine in his endeavours.

Therefore I am satisfied that this application should be refused.

Order that costs be costs in the cause.

Application to strike out refused

Lawyer for the petitioner: Elliot Stubbs & Bonutto.

Lawyer for the first respondent: Blake Dawson Waldron.

Lawyer for the second respondent: State Solicitor.