In re Application by Morobe Provincial Government - Review Pursuant to Constitution Section 155(2)(b) [2012] PGSC 22; SC1190 (29 June 2012)

SC1190

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 76 of 2011

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)
APPLICATION BY MOROBE PROVINCIAL GOVERNMENT

Waigani: David, Yagi & Kariko JJ
2012: 26th & 29th June

PRACTICE AND PROCEDURE – Objection to Competency – Application for Review under Constitution, s. 155(2)(b) – special jurisdiction of the Supreme Court - application by a Provincial Government - application must strictly comply with Supreme Court Rules, O 5 r. 1 - application signed by lawyer and not by the applicant or a proper officer of the Provincial Government – application incompetent.

Facts

The Respondent made an application to strike out an application under Section 155(2)(b) of the Constitution on the ground that it was not signed by the applicant Provincial Government or a proper officer on its behalf, as it was signed by the Provincial Government's lawyer contrary to Order 5, Rule 1(e) and (f) of the Supreme Court Rules.

Held:

(1) Order 5, Rules 1(e) and (f) of the Supreme Court Rules, which requires that a Section 155(2)(b) application be signed by a proper officer on behalf of the applicant, is a rule of practice and procedure that must be strictly complied with.

(2) A application signed by the applicant's lawyer does not comply with Supreme Court Rules, Order 5, Rule 1(e) and (f).

(3) The requirement that an applicant or in appropriate circumstances a proper officer sign the application exists for sound reasons: to ensure that the special nature of Section 155(2)(b) proceedings is preserved, that the power to make such application is properly controlled and that the decision to make the application is considered carefully by the applicant.

(4) The requirements of Order 5 Rule 1 of the Supreme Court Rules are fundamental matters affecting the validity of the application. A failure to comply renders the application a nullity and hence not properly before the Court and is therefore incompetent.

Cases cited:

SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Hilary Singat v Commissioner of Police (2008) SC910.
Supreme Court Reference No. 13 of 2002, Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Reference by Fly River Provincial Executive (2007) SC917
SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Kukari v Don Polye & Ors (2008) SC907

Counsel:

G. Konjib, for the Applicant/Respondent
I. Shepherd, for the Respondent/Applicant

DECISION

29th June, 2012

1. BY THE COURT: This is a ruling on the objection made by Air Niugini Limited (ANL) as to the competency of the application for review filed by the Morobe Provincial Government (MPG).

2. On 18th November 2011, the MPG filed an application for review pursuant to Constitution, s. 155(2)(b). In the application, the MPG sought to review a decision or order of the National Court made on 4th November 2010. It is not disputed that the application was signed by Greg M. Konjib, as the lawyer for the MPG.

3. The decision of the National Court related to a proceeding under Order 16 of the National Court Rules where ANL was granted leave to have certain decisions of the Minister for Lands & Physical Planning reviewed. Those decisions related to grant of a State Lease and Urban Development Leases over parcels of land in the city of Lae.

4. As there is no specific provision under the Supreme Court Rules prescribing the procedure for filing of an objection to competency in respect to an application for review under s. 155(2)(b) of the Constitution, ANL applied for and was granted leave on 9th December 2011 to file such objection.

5. Pursuant to that leave, ANL therefore filed a notice of objection to competency. It was filed on 12th December 2011. There are 3 grounds of objection raised by ANL. These are:

"Ground 1. The AFR (Application for Review) does not comply with Order 5 Rule 1(e) or (f) of the Supreme Court Rules (SCR) in that the application has been signed by Greg M Konjib, lawyer for the "Applicant/Second Appellant" and not the Applicant Morobe Provincial Government.

Ground 2. The Orders sought at paragraph 4 of the AFR cannot be granted by the Supreme Court on an application for review under Section 155(2)(b) of the Constitution. The only relief that can be granted is in the nature of certiorari, injunction, either prohibitive or mandatory or a declaration and in this instance:

(a) 4(a) seeks leave to review an order of the National Court whereas it ought to be seeking leave to review a decision of the National Court.

(b) 4(b) seeks an extension of time to review an order of the National Court.

(c) 4(c) is essentially a repeat of 4(a); and

(d) 4(d) seeks to set aside or dismiss an order of the National Court.

Ground 3. An application for leave to apply for judicial review of a National Court decision should be made separately pursuant to directions under Order 11 Rule 9 of the Supreme Court Rules in the absence of any prescribed procedure on the authority of SCR No. 90 of 1997 and unreported decision of the Supreme Court in SCR No. 21 of 2010."

6. Ground 1 of the objection is a threshold issue that goes to the jurisdiction of the Court. If this ground alone is upheld by the Court, then grounds 2 and 3 becomes redundant and irrelevant. For this reason we propose to first deal with ground 1.

7. Mr. Shepherd, for ANL submitted that the application for review is incompetent on the basis that it is not in accordance with the form prescribed by the Supreme Court Rules to the extent that it was not duly signed by the applicant or its proper officer as required under Order 5 Rule 1(e) and (f). Order 5 deals with application for review of judicial acts of the National Court under s. 155(2)(b) of the Constitution and subrule (1) prescribes the form that is to be adopted. This Rule provides:

"ORDER 5—REVIEW OF NATIONAL COURT

Division 1.—Form of review application

1. An application to the court under Constitution Section 155(2)(b) shall be instituted by an application to review and shall—

(a) be entitled under the Section of the Constitution by which it is made together with the year and number of the application;

(b) be entitled with the name of the person making the application;

(c) state briefly particulars of the judicial act to be reviewed;

(d) the order sought in lieu thereof;

(e) be in accordance with form 5;

(f) be signed by the person seeking the review; and

(g) be filed in the registry." (our emphasis and underlining)

8. Mr. Konjib, for the MPG concedes that the application for review was not signed by the applicant namely MPG, however, argues that he being a lawyer having instructions to act for and on behalf of the MPG, had ostensible authority and therefore there is due compliance with the requirements of the Rule. Reliance was placed on the judgment of the Supreme Court in Hilary Singat v Commissioner of Police (2008) SC910. With respect, we reject the submission by Mr. Konjib. The Singat case (supra) is clearly distinguishable on both facts and law. In that case, the appellant appealed against a decision by the National Court refusing to enter judgment by default in his favour notwithstanding that a notice of intention to defend and defence were filed. The State and its instrumentalities were defendants in the action. It was argued that the notice of intention to defend and defence were filed by the Solicitor General without instructions and authority of the Attorney General. The Supreme Court held that the Solicitor General as lawyer for the State had ostensible authority to sign and file court documents. That case involved exercise of general power by the National Court. In this instance, it related to invoking of special powers of the Supreme Court in its special jurisdiction.

9. We are not aware of any past cases where objection to competency of an application for review under Constitution, s. 155(2)(b) was made specifically under Order 5 Rule 1of the Supreme Court Rules. Indeed both counsels were unable to refer us to any past decisions of this Court.

10. The jurisdiction of this Court under s. 155(2)(b) of the Constitution is a unique and special jurisdiction. It is special because it vests in the Court inherent powers to review all judicial acts of the National Court which otherwise could not be dealt with under its normal appellate jurisdiction. However, not all judicial acts of the National Court are liable for review under s. 155(2)(b).

11. In Supreme Court Reference No. 13 of 2002, Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution, this Court made it plainly clear that only 3 categories of cases fall under this special jurisdiction of the Court; and these are cases were:

1. there is no statutory right of appeal

2. there is a statutory right of appeal but the prescribed time has expired

3. the right to appeal is prohibited or limited

12. In this instance, the MPG had a right to appeal the decision of the National Court but failed to do so within the prescribed time. This case therefore falls into category 2.

13. The Supreme Court has also stated that where a party is seeking to invoke the Court's special jurisdiction that party must strictly comply with all the requirements of the law including due compliance with the prescribed form. This principle was clearly emphasised in Reference by Fly River Provincial Executive (2007) SC917 where the Court stated"

"29. ........................................................... The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nitpicking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.

30. It is necessary to insist on strict compliance with Order 4, Rule 1(e) to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled. It is not sufficient, as suggested by Mr Narokobi, to comply with the other requirements of the Rules and miss out on Rule 1(e)."

14. The Supreme Court echoed the same sentiment in Kukari v Don Polye & Ors (2008) SC907 where it was stated:

"The need for strict compliance with the mandatory requirements of the Rules was emphasised by the Supreme Court in the case of; In the Matter of Section 19 of the Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006). In that case, the issue was whether the Reference should be struck out for non-compliance with the mandatory requirements of Order 4 r1(e) of the Rules, which provide that a Reference – "be signed by the person, court, tribunal, or authority or proper officer on behalf of the authority as required by law, making the reference." The Reference in that case was signed by the lawyer acting for the Fly River Provincial Executive, who was not an authorised officer under the rule."

15. In that case the Court reasoned that the need to maintain strict compliance is because s.19 reference is a special jurisdiction and therefore it is necessary to ensure that the integrity of its procedures are preserved and controlled.

16. The Fly River Provincial Executive (supra) case involved a reference under s. 19 of the Constitution where the Court recognised that s.19 references involve special jurisdiction of the Court. In acknowledging this point the Court adopted and applied what the Supreme Court said earlier in relation to its special jurisdiction in SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249 where the Court said:

"A Section 19 reference is a very special proceeding. There are very few countries in the world whose constitutions allow certain authorities to seek the opinion of their highest Courts without there being any substantive legal action as the basis thereof. The Constitutional Planning Committee (CPC) recognized this and in recommending what is now Section 19 it said, inter alia, as follows:

"It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances." (CPC Report, p 8/16.)

And the procedure is so exceptional that only a few public office-holders and institutions are allowed to use it, a Provincial Executive being one of these authorities. It is because of the special nature of a Section 19 reference that the authority which makes it must consider the matter and sign the reference. In the case of a Provincial Executive the matter should be considered by that body and the reference signed by either the Premier or a member of the Executive. Order 4, Rule 1(e) has added that the reference may be signed also by a "proper officer on behalf of the authority as required by law". We consider that this means two things: (a) that only a person employed by the Authority can sign the reference and (b) that there must be authorisation for such a person to do this on behalf of the Referring Authority.

So Order 4 is a special rule sanctioned by Section 19 of the Constitution. In our opinion, therefore, it cannot be allowed to be overridden by any general rule. It is also inherent in the wording of Order 4, Rule 1(e), that no other person other than those mentioned may sign a special Constitutional Reference."

17. We are firmly of the view that there is no reason why the same principles cannot be adopted in relation to applications for review under s. 155(2)(b) of the Constitution. Proceedings under s.19 and s.155(2)(b) are both special proceedings and therefore the respective rules of practice and procedure must be treated the same. The Rules governing the practice and procedure with respect to these special jurisdictions are very similar in wording and are also in mandatory terms. We are unable to see any good reason to depart from the rationale and approach taken in the Fly River Provincial Executive and Arnold Kukari cases (supra) in considering the requirements of Order 5 Rule 1 of the Supreme Court Rules. These requirements must also be strictly complied with and failure to comply with any one or more of them is fatal.

18. In this instance, we find that the application for review was not signed by the MPG or its proper officer, and the application is therefore incompetent. We uphold the objection in respect of ground 1. As we earlier stated, ground 1 is a threshold issue and the effect of our finding and conclusion means that the Court's jurisdiction has not be correctly invoked and accordingly the proceeding is struck out with costs to be taxed on party-party basis, if not agreed. We view it unnecessary to consider the remaining grounds.
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Konjib & Associates Lawyers: Lawyer for Morobe Provincial Government
Ashurt Lawyers: Lawyer for Air Niugini Limited