Lupari v Somare [2008] PGSC 33; SC951 (10 November 2008)

SC951

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 14 OF 2008

ISAAC LUPARI
Appellant

V

SIR MICHAEL SOMARE MP,
PRIME MINISTER & CHAIRMAN,
NATIONAL EXECUTIVE COUNCIL
First Respondent

RIGO LUA,
CHAIRMAN, PUBLIC SERVICES COMMISSION
Second Respondent

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Respondent

Waigani: Cannings J
2008: 7, 10 November

JUDGMENTS AND ORDERS – application for interim orders pending appeal against judgment of the National Court – Supreme Court Act, Section 5(1)(b).

The appellant commenced proceedings against the respondents in the National Court, challenging, by judicial review, the revocation of his appointment to a public office. The National Court quashed the decision to revoke his appointment but refused to reinstate him. He appealed to the Supreme Court against the judgment of the National Court, mainly on the ground that the National Court had erred in law in refusing to order that he be reinstated. While the appeal was pending, he applied for two interim orders under Section 5(1)(b) of the Supreme Court Act:

• that no substantive appointment be made to the office he previously held; and
• that no steps be taken to abolish the office he previously held.
  

This is a ruling on the application for interim orders.

Held:

(1) The question of whether to grant an application for interim orders under Section 5(1)(b) is a matter of discretion, which must be exercised after taking into account all the circumstances of the case, including:

• whether leave to appeal is required and whether it has been obtained;
• whether there has been any delay in making the application;
• possible hardship, inconvenience or prejudice to either party;
• the nature of the judgment sought to be stayed;
• the financial ability of the applicant;
• preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
• whether on the face of the record of the judgment there may be indicated apparent errors of law or procedure;
• the overall interests of justice;
• the balance of convenience;
• whether damages would be a sufficient remedy.
  

(Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279 applied.)

(2) As to an order restraining the making of a substantive appointment, a number of factors favour the granting of such an order, viz – leave to appeal is not required; the appellant has acted quickly to file his appeal and make the application for interim orders; the appellant would be prejudiced if interim orders are not granted; the appellant has an arguable case; the interests of justice and the balance of convenience require that interim orders of some sort be granted; and the nature of the appeal is such that it should be able to be prepared for hearing and determined quickly.

(3) However, as to the order that is sought to prevent abolition of the office previously held by the appellant, such an order has significant constitutional implications and it is neither necessary nor desirable to make such an order as, even if he wins the appeal and is reinstated, the appellant would have no right, capable of protection, not to have his office abolished.

(4) The application for the first interim order was accordingly granted, but the application for the second was refused.

Cases cited

The following cases are cited in the judgment:
Buka Huinj v Kundapen Tila (2004) SC743
Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279
Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776
Lupari v Somare and The State (2008) N3476
National Superannuation Fund Ltd v Pacific Equities and Investments Ltd (2006) SC845
PNG Air Traffic Controllers Association Inc v Civil Aviation Authority SCA No 89 of 2008, 03.10.08
Samson Jubi v Susan Edna Fraser (2004) SC735
Telikom PNG Ltd v Newsat Ltd SCA No 101 of 2008, 01.10.08
Wep Kilip v An Application By The Liquidator, Hugh Mosley (2005) SC784

APPLICATION

This is a ruling on an application for interim orders pending a Supreme Court appeal.

Counsel
H Nii, for the appellant
G Emang, for the third respondent

10 November, 2008

1. CANNINGS J: This is a ruling on an application for interim orders pending a Supreme Court appeal.

2. The application is made by the appellant, Isaac Lupari, the former Chief Secretary to Government. He has filed an appeal against a judgment of the National Court constituted by Injia DCJ on 22 September 2008 in judicial review proceedings he commenced against the Prime Minister and the State (Lupari v Somare and The State (2008) N3476).

3. Mr Lupari’s appointment as Chief Secretary was revoked by the Governor-General, acting on the advice of the National Executive Council, in April 2008. He applied for judicial review in the National Court and succeeded in proving that the NEC’s decision was wrong in law, on the primary ground that the Public Services Commission was not consulted, as required by the Constitution and the Public Services (Management) Act. However, the trial Judge refused to make an order reinstating him to the office of Chief Secretary, instead saying that he had a remedy in damages, which he was invited to pursue.

4. Mr Lupari’s grounds of appeal are that the trial Judge erred in law by:

• admitting a number of irrelevant affidavits into evidence;
• not considering in detail all the grounds of review he had put forward; and
• refusing to order that he be reinstated.
  

5. It is the last ground of appeal that appears to be the main one.

6. The appeal was filed on 8 October 2008 and on the same day Mr Lupari filed an application seeking interim orders under Section 5(1)(b) of the Supreme Court Act:

7. Section 5(1)(b) (incidental directions and interim orders) states:

Where an appeal is pending before the Supreme Court ... an interim order to prevent prejudice to the claims of the parties may be made by a Judge.

8. The two orders Mr Lupari is seeking are:

• that no substantive appointment be made to the office of Chief Secretary; and
  
• that no steps be taken to abolish the office of Chief Secretary he previously held,
  

until his appeal is heard and determined.

9. I am satisfied that the application is properly before the court and that I have jurisdiction, sitting as a single Judge of the Supreme Court, to make the type of orders that are being sought.

INTERIM ORDERS ARE A MATTER OF DISCRETION

10. The question of whether to grant an application for interim orders under Section 5(1)(b) is a matter of discretion, which must be exercised after taking into account all the circumstances of the case, including:

• whether leave to appeal is required and whether it has been obtained;
• whether there has been any delay in making the application;
• possible hardship, inconvenience or prejudice to either party;
• the nature of the judgment sought to be stayed;
• the financial ability of the applicant;
• preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
• whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
• the overall interests of justice;
• the balance of convenience;
• whether damages would be a sufficient remedy.
  

11. An applicant for interim orders does not have to prove that there are special or exceptional circumstances to warrant the making of interim orders. There are no hard and fast pre-conditions that have to be satisfied. Provided that the court exercises its discretion justly and reasonably and in accordance with the principles of natural justice or procedural fairness, the discretion available to the Judge or the Court when deciding whether to grant the interim orders, is very broad. These are the principles emerging from the leading case of Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279. They have been followed by single-Judge Supreme Court decisions in many cases, including:

• Samson Jubi v Susan Edna Fraser (2004) SC735, Injia DCJ – application for interim orders refused;
• Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776, Kapi CJ – application granted;
• Buka Huinj v Kundapen Tila (2004) SC743, Hinchliffe J – application granted;
• Wep Kilip v An Application By The Liquidator, Hugh Mosley (2005) SC784, Lay J – application refused;
• National Superannuation Fund Ltd v Pacific Equities and Investments Ltd (2006) SC845, Lay J – application partially granted;
• Telikom PNG Ltd v Newsat Ltd SCA No 101 of 2008, 01.10.08, Gabi J – application granted;
• PNG Air Traffic Controllers Association Inc v Civil Aviation Authority SCA No 89 of 2008, 03.10.08, Cannings J – application granted.
  

SHOULD AN ORDER BE MADE TO PREVENT A SUBSTANTIVE APPOINTMENT BEING MADE?

12. There are a number of considerations that favour the making of this sort of order. In particular:

• Leave to appeal is not required as it is an appeal against a final (not an interlocutory) judgment and the grounds of appeal are on questions of law or mixed fact and law. There is a right of appeal under Sections 14(1)(a) and (b) of the Supreme Court Act.
  
• Mr Lupari acted quickly to file his appeal and make the application for interim orders. He took both of those steps 16 days after the National Court judgment.
  
• Mr Lupari will be prejudiced if the order is not granted. If a substantive appointment is made before his appeal is decided, his chances of being reinstated would tend to be reduced – even if he won the appeal.
  
• He has an arguable case and the issues of law raised by the appeal are significant. Indeed the trial judge noted in his judgment that the case raised the contentious issue of whether a public servant (in particular a departmental or statutory head) who enters into a contract of employment has his or her rights, in the event of termination of employment, determined in accordance with public law or private law principles.
  
• The interests of justice and the balance of convenience require that interim orders be granted. There is evidence that there has been an acting appointment in place for some months now. Though it is not generally desirable for an acting appointment in such a high public office to continue for any extended period, there is no evidence that the workings of government are being unduly hampered by the office of Chief Secretary to Government being filled on an acting basis.
  
• The nature of the appeal is such that it should be able to be prepared for hearing and determined quickly. Mr Nii, for Mr Lupari, indicated that he would be ready to present the appeal at the end of this month, if a date could be secured.
  

13. I consider that Mr Lupari has made out a good case for an interim order that will prevent prejudice to his interests. I am not satisfied that the respondents will be unduly prejudiced by putting a substantive appointment to the position of Chief Secretary on hold. I will therefore grant the application for this order.

SHOULD AN ORDER BE MADE TO PREVENT ABOLITION OF THE OFFICE OF CHIEF SECRETARY?

14. With this order, very different considerations arise. I agree with the submissions of Mr Emang, for the State, that the making of such an order has significant constitutional implications.

15. If the Court were to prevent the Prime Minister or any member of the Executive from initiating any legislative steps to abolish the position of Chief Secretary, it would be tending to interfere in the law making function of the Parliament. It may also undermine the right of any member of the Parliament under Section 111 of the Constitution to introduce bills into the Parliament. This is not the sort of order that the Supreme Court should make, other than in the most exceptional of circumstances, eg if it were proven that the National Executive Council or the Parliament were acting in a way that was clearly unconstitutional. This is not such a case.

16. Mr Nii pointed out that during the course of the National Court proceedings, the trial Judge made an order preventing abolition of the office of Chief Secretary, and that was done to preserve the status quo pending the outcome of the judicial review. That is not a good reason for me to make similar orders. Perhaps the constitutional implications of the order were not brought to the trial judge’s attention. Whatever the case, I am not bound by what happened in the National Court. Fundamentally, I consider that such an order has a tendency to offend against the separation of powers and that is not a desirable thing.

17. Furthermore, even if he wins the appeal and is reinstated, Mr Lupari would have no right, capable of protection, not to have the office of Chief Secretary abolished.

18. I will refuse the application for the second order.

ORDER

1. Pending hearing and determination of the appeal, the respondents by their servants and agents are restrained from making substantive appointments to the offices of Secretary of the Department of Prime Minister and National Executive Council and Chief Secretary to Government.
   
2. The application for an order restraining the respondents from taking steps to abolish the office of Chief Secretary to Government, is refused.
   
3. Time abridged.
   
4. The parties shall bear their own costs.
   

Ordered accordingly.

Harvey Nii Lawyers: Lawyers for the appellant
Solicitor-General: Lawyer for the third respondent