Election petitions are actively managed. The Election Petition Rules 2017 provide for three court events before trial: a directions hearing, a pre-trial conference, and a status conference.
Rule 13(1) and (2)
(1) A directions hearing shall take place within 28 days after the date of filing of the petition or as soon as practicable thereafter.
(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 party must attend — not merely the lawyer. The petitioner or the respondent is expected in court.
The lawyer must be the one who will appear at the trial. Sending an agent or a junior to hold the matter does not comply. The same requirement is repeated for the pre-trial conference (r 14(2)) and the status conference (r 15(2)).
The reason is apparent from the list of matters in Rule 13(3): they cannot usefully be dealt with by someone who will not conduct the trial.
That is a short period, and it overlaps with the service period. The petition must be served within 14 days, the affidavit of service filed within ten days after service, and the respondent’s notice to appear in Form 3 filed within 14 days after service.
Work backwards from the directions hearing date, not forwards from filing.
Rule 13(3)
- whether a party shall be represented by a lawyer;
- identification of legal issues;
- filing and serving of witness statements and or affidavits;
- number of witnesses;
- filing, serving and production of any other relevant documents including: electoral records, summonses and notices to produce; agreed statement of facts;
- number of trial days;
- date, time and place for pre-trial conference;
- manner of presentation of arguments at hearing;
- the place of trial and the desirability of any change of venue;
- subject to Rule 13, any interlocutory matter;
- any objection to competency; and
- such other matters as may aid in the prompt disposition of the petition.
Whether a lawyer may appear
Section 222(1) of the Organic Law: 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. And section 222(2): in no case shall more than one counsel appear on behalf of a party.
That is why representation is the first matter on the Rule 13(3) list. It is dealt with at the outset because everything else depends on it. See representation in election petitions.
Evidence and documents
Be able to state how many witnesses you will call and what each will say; whether their evidence will be by affidavit or witness statement, and when it can be filed and served; and what electoral records you need.
Item 5 expressly mentions summonses and notices to produce — the tools for obtaining ballot-papers, Rolls, tally sheets and returning officers’ records. Under section 212(1)(b) and (c) the Court may compel the attendance of witnesses and the production of documents, and grant to a party leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take extracts.
Item 5 also mentions an agreed statement of facts. In a petition turning on numbers, agreeing the figures early removes a large part of the trial.
The Rules contemplate a possible change of venue. A petition filed at Waigani may concern an electorate where the witnesses and records are provincial; Schedule 1 lists registries and sub-registries across the country.
Venue affects cost and the practicality of calling witnesses, so raise it at the directions hearing rather than later.
Rule 18
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 application, at any stage of the proceeding —
(a) order that the petition be dismissed where the defaulting party is the petitioner; or
(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(c) make such other orders as it deems just.
Directions given at the directions hearing are therefore not advisory. Failure to comply with one exposes a petitioner to dismissal.
Where a respondent fails to file a notice to appear, the Court may proceed to deal with the petition in his or her absence.
A respondent who has not filed Form 3 by the directions hearing is in difficulty.
Rules 14 and 15
Pre-trial conference — conducted by the Judge Administrator within 28 days after the directions hearing or as soon as practicable thereafter, at which fifteen further matters are considered and, as far as is practicable, determined.
Status conference — conducted at least five days before the date of trial to confirm that the matters in Rule 14(3) have been complied with and that the petition is ready for trial.
Sources
- Election Petition Rules 2017 — rr 2, 8–15, 18; Schs 1 and 2
- Organic Law on National and Local-level Government Elections — ss 212, 222
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.