By the time a petition reaches trial it has passed through a directions hearing, a pre-trial conference and a status conference.
Rule 14
The Judge Administrator shall consider and as far as is practicable determine —
- the place of trial;
- number of witnesses;
- confirmation of filing of affidavits;
- statement of agreed and disputed facts;
- number of trial days;
- legal issues;
- exhibits;
- statement of the petitioner’s case and the respondent’s defence(s);
- necessity to issue summonses to compel witnesses to attend and/or produce documents;
- necessity for interpreters;
- fixing trial dates; and
- arrangements for hearing of any notice of objection to competency.
As at the directions hearing, a represented party shall attend … with his or her lawyer who will be appearing at the trial.
A statement of agreed and disputed facts narrows the trial to what is genuinely in issue. In a petition depending on whether the result of the election was likely to be affected, agreeing the polled figures and the winning margin leaves only the disputed conduct to be proved.
Item 10 — interpreters — matters in a jurisdiction where witnesses may give evidence in any of many languages. Raise it here, not on the morning of trial.
Rule 15
A status conference shall be conducted by the Judge Administrator 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.
Again, a represented party shall attend at the status conference with the lawyer who will represent them at the trial.
Rule 16 and section 212
The Court shall deal with the petition and any objections to the competency of the petition at the trial of the petition.
The National Court shall sit as an open court and may, amongst other things —
(a) adjourn; (b) compel the attendance of witnesses and the production of documents; (c) 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; (d) order a re-count of ballot-papers in an electorate; (e) examine witnesses on oath; (f) declare that a person who was returned as elected was not duly elected; (g) declare a candidate duly elected who was not returned as elected; (h) declare an election absolutely void; (i) dismiss or uphold a petition in whole or in part; (j) award costs; and (k) punish contempt of its authority by fine or imprisonment.
By subsection (3), the Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
Section 217
The National 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.
Section 217 relieves the Court of strict evidentiary form. It does not lower the burden on the petitioner, and it does not dispense with the requirements of the Organic Law — Rule 22(4) of the Election Petition Rules 2017 says exactly that, while directing the Court to pay close regard to the requirements of s 217.
Nor does it override the specific evidential bars in sections 214, 218(2) and 219.
Sections 214, 218 and 219
Section 214 — the Court shall inquire whether or not the petition is duly signed, and as to Rolls and voting may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.
Section 218(2) — where an elector was prevented from voting by an officer’s absence, error or omission, the Court shall not, in deciding whether the result was affected, admit evidence of the way in which the elector intended to vote.
Section 219 — the Court shall not admit the evidence of a witness that he was not permitted to vote unless the witness satisfies the Court that he claimed to vote … under that provision of this Law under which he was entitled or might be permitted to vote, and that he complied with the requirements of this Law relating to voting by electors in so far as he was permitted to do so.
A witness who says only “I was turned away” will not be heard. Each such witness must first establish that they claimed to vote under the applicable provision and that they complied with the requirements so far as permitted.
Draft the affidavits with those two elements expressly addressed.
Rule 17
(1) There shall be no “consolidation” of petitions, however, where two or more petitions relating to the same election or return are filed, then unless good cause is shown for separate trials, they shall be heard together in a joint trial.
(2) The Judge shall ensure that, for filing and case management purposes, each petition is separately recorded.
(3) Nothing in this rule requires a Judge to give separate judgments in the case of a joint trial.
Section 216 requires the Registrar, where the Court finds that a person has committed an offence under this Law or any other law, to promptly report the finding to the Speaker, the Electoral Commission, the Public Prosecutor and the Commissioner of Police, and to forward all papers relevant to the finding to the Commissioner of Police.
Section 221 requires a copy of the order to be forwarded to the Clerk of the Parliament. On the orders available, see what the Court can order.
Sources
- Election Petition Rules 2017 — rr 13–18, 22
- Organic Law on National and Local-level Government Elections — ss 212–219, 221
Rules 17 and 22 were repealed and replaced by rules 1 and 2 of the Election Petition (Miscellaneous Amendments) Rules 2022.
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.