Election petitions are one of the few proceedings in Papua New Guinea where representation is not assumed.
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.
— Organic Law on National and Local-level Government Elections
Subsection (1) is a prohibition with two gateways. Representation requires either the consent of all parties or the leave of the National Court. Absent one of those, a party appears in person.
Subsection (2) is absolute. “In no case” — there is no consent or leave gateway. Even where representation is allowed, only one counsel may appear for a party.
Note that section 233 applies section 222 to references under Division 2 as well, so far as applicable.
Rule 13(3)(a)
Rule 13(3) of the Election Petition Rules 2017 lists twelve matters the Judge Administrator shall consider, and the first is whether a party shall be represented by a lawyer.
It is dealt with first because everything else at the directions hearing depends on it.
Rule 13(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. The same requirement is repeated for the pre-trial conference (r 14(2)) and the status conference (r 15(2)).
So representation does not relieve a petitioner or respondent of attending in person at the three pre-trial events. And the lawyer who attends must be the one who will conduct the trial — not an agent.
The application
Consent of all parties. Every petition has at least two respondents — the successful candidate and the Electoral Commission — so consent must come from all of them. In practice all sides usually want representation, so consent is often the shorter route. Obtain it in writing before the directions hearing.
Leave of the National Court. Where consent is not forthcoming, the Court decides. Matters likely to bear on it include the complexity of the grounds pleaded, whether the case turns on the construction of the Organic Law, the volume of evidence, whether other parties are represented, and the practical ability of the party to conduct the case.
The question arises at the directions hearing, which takes place within 28 days after the date of filing. But work will already have been done by then — drafting the petition, arranging service, filing the affidavit of service.
Section 222 restricts representation in the proceeding. It does not prevent a party from obtaining legal advice, or from having a petition drafted with professional assistance — though the petition must still be signed by the petitioner personally under section 208(c).
What a party must still do
Section 210 applies whether or not a party is represented: proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
So an unrepresented petitioner must still get the facts, relief, signature, two attesting witnesses with occupations and addresses, the 40 days, and the K5,000 deposit right.
And Rule 18 applies: 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 order that the petition be dismissed where the defaulting party is the petitioner.
Section 217 — the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
Rule 22(2) and (3) — substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient, and no petition shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.
Those provisions protect a party against being defeated by drafting. They do not protect against a missing witness, a late filing, or an unpaid deposit — Rule 22(4): nothing in this rule excuses a failure to comply with a requirement of the Organic Law.
Schedule 3
The costs scale in Schedule 3 provides an allowance of up to K450.00 per hour for pre-trial work, fixed amounts for a directions hearing, other applications, and appearing and arguing a petition, and K350.00 for taking a deferred judgment.
Consistently with section 222(2), a second lawyer is allowed only on certification: where the trial Judge has certified the fees, costs and expenses of a second lawyer resident within the jurisdiction or for an overseas counsel — there shall be allowed the same amount as for the first lawyer. That is a costs allowance, and does not displace the rule that only one counsel may appear.
Part 5 allows an unrepresented party actual travel and accommodation expenses and reasonable costs for meals, hire car or taxi for every hearing and trial attended. See costs.
Because leave or consent is required, a party should approach a lawyer early — before the petition is drafted, not after the directions hearing. The law firms directory lists practitioners, and the Office of the Public Solicitor is the first point of contact for those who cannot afford private representation.
Sources
- Organic Law on National and Local-level Government Elections — ss 208–210, 217, 222, 233
- Election Petition Rules 2017 — rr 13–15, 18, 22; Sch 3
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.