Newsat Ltd v Telikom PNG Ltd [2007] PGNC 158; N3449 (7 May 2007)

N3449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1350 OF 2006

NEWSAT LIMITED
Plaintiff

AND

TELIKOM PNG LIMITED
First Defendant

INDEPENDENT CONSUMER AND COMPETITION COMMISSION
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2007: 25, 26 April, 7 May

RULING

PRACTICE AND PROCEDURE – notice of motion filed by a party but motion not moved on the day set down for hearing – whether motion should be adjourned or dismissed.

A contractual dispute arose between two companies, Newsat (the plaintiff) and Telikom (the first defendant). Newsat sued for breach of contract and also declarations that a number of Acts of Parliament regulating the industry in which the companies operated was unconstitutional. Newsat filed a notice of motion, seeking an order for referral of the constitutional issues to the Supreme Court, but on the day set down for hearing the motion, declined to go ahead with it, instead seeking an adjournment. The question arose whether the adjournment should be granted or whether the motion should be dismissed with costs.

Held:

(1) The plaintiff’s motion was given a special fixture for hearing along with six other motions in the same or related proceedings.

(2) The notice of motion was very premature and therefore, at this juncture, an unnecessary and misconceived process, verging on an abuse of process.

(3) The court has a wide discretion to dismiss ill-timed motions and this was an appropriate case in which to exercise that discretion.

(4) The motion was accordingly dismissed, with costs.

Cases cited
Lowa v Akipe [1992] PNGLR 399

APPLICATION
This was a ruling on an application for dismissal of a notice of motion.

Counsel
D Cooper SC, G Poole and T Imal, for the plaintiff
C Scerri QC, I Molloy and A Mana, for the 1st defendant
J Brooks, for the 2nd defendant

7 May, 2007

1. CANNINGS J: This is a ruling on an application by the first and second defendants that a notice of motion filed by the plaintiff should be dismissed, rather than adjourned.

HOW WAS THE MOTION SET FOR HEARING?

2. A contractual dispute arose between two companies, Newsat (the plaintiff) and Telikom (the first defendant). On 19 September 2006 Newsat filed WS No 1350 of 2005. It sued Telikom for breach of contract and sought declarations that a number of Acts of Parliament regulating the industry in which the companies operated was unconstitutional.

3. On 27 March 2007 Newsat filed a notice of motion seeking an order for referral of the constitutional issues to the Supreme Court.

4. The matter was mentioned before me on Monday 2 April 2007, when I was the motions judge at Waigani. The parties requested a three-day special fixture to deal with this plus four other notices of motion. Some of them were in connexion with related proceedings, WS No 1644 of 2006, in which Telikom is suing Newsat, seeking injunctions and declarations on the ground that Newsat is providing telecommunications services in PNG contrary to the Telecommunications Act 1996.

5. They told me the issues were complex and the main protagonists, Newsat and Telikom, had engaged southern counsel. I granted the request later that week and set down three days, 24 to 26 April 2007, to deal with the five motions.

MOTIONS HEARD ON 24-26 APRIL

6. The hearing of the motions started as planned on Tuesday 24 April 2007. Newsat in the meantime filed two extra notices of motion, which brought the total to seven.

7. Most of the first two days of the hearing was devoted to two motions. In one, Newsat was moving the court for an order that Telikom be found guilty of contempt of court. In the other Telikom was applying for a stay of the entire proceedings or in the alternative an order that the part of Newsat’s statement of claim that raised constitutional issues be struck out.

8. Two of the other motions – one by Newsat, one by Telikom – were dismissed with costs, after each of them was not ready to pursue their motion.

APPLICATION FOR DISMISSAL

9. Late on the second day Mr Cooper, for Newsat, asked that Newsat’s motion of 27 March 2007 be adjourned. Mr Scerri, for Telikom, did not consent to an adjournment, instead applying for its dismissal, with costs. Mr Brooks, for the ICCC, supported Telikom’s application. The ICCC was drawn into the case as second defendant, with an inherent interest in the outcome due to Newsat’s claim that its enabling law is unconstitutional.

THE MOTION

10. The motion seeks an order that the questions of constitutional interpretation raised in the statement of claim be referred to the Supreme Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial or vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action, including the adjournment of proceedings, is appropriate.

NEWSAT’S CONCESSIONS

11. Mr Cooper conceded that the motion seeking a Section 18(2) reference was premature. There is an abundance of authority to say that the National Court or any other court or tribunal can only properly refer a constitutional question to the Supreme Court after it finds all the facts necessary to determine the case before it. Section 18(2) is not an avenue by which hypothetical questions are sent to the Supreme Court. Hypothetical questions, including challenges to the constitutionality of an Act of Parliament, can only properly be referred to the Supreme Court under Section 19 of the Constitution. Only institutions and office-holders like the Parliament, the Ombudsman Commission, the Public Solicitor and the Public Prosecutor (the full list is in Section 19(3)) can make a Section 19 reference.

MOTION PREMATURE

12. They were proper concessions by Mr Cooper. The principles he referred to were clearly explained by the Supreme Court in Lowa v Akipe [1992] PNGLR 399. The same things have been said by the Supreme Court in other cases. It seems, however, that Mr Cooper and other members of Newsat’s legal team only belatedly appreciated the significance of those principles. That can be the only explanation for the filing of the notice of motion asking for a special fixture for dealing with it, then dropping it.

13. The motion is extremely premature and, as Mr Brooks submitted, misconceived. The opposing parties have been put needlessly to the time and expense of preparing to respond to it. In fact it is so ill-timed and bereft of efficacy it verges on an abuse of process. The court has a wide discretion to dismiss ill-timed motions and this is an appropriate case in which to exercise that discretion.

ORDER

14. I will make an order in the following terms:

(1) The notice of motion filed by Newsat on 27 March 2007 seeking referral of constitutional questions to the Supreme Court is dismissed.

(2) Newsat shall pay the costs of both Telikom and ICCC, on a party-party basis, to be taxed if not agreed.

(3) The time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.

O’Briens Lawyers: Lawyers for the plaintiff
Allens Arthur Robinson: Lawyers for the first defendant
Gadens Lawyers: Lawyers for the second defendant