Namah v Pato [2013] PGSC 18; SC1241 (4 July 2013)

SC1241

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCOS NO 1 0F 2013

BELDEN NORMAN NAMAH MP
Applicant

V

RIMBINK PATO MP,
MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
First Respondent

THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Cannings J, Kassman J, Murray J
2013: 27 June, 4 July

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, Section 18(1) – whether application must be in form prescribed by Supreme Court Rules 2012 – whether proper to commence proceedings by Supreme Court originating summons – whether necessary for applicant to sign application – whether necessary for all questions of law raised by application under Constitution, Section 18(1) to be questions of constitutional application or interpretation.

The respondents to an application under Section 18(1) of the Constitution that amongst other things challenged the constitutionality of an inter-government agreement relating to asylum seekers objected to competency of the application on three grounds: (1) the application was not in the form prescribed by the Supreme Court Rules 2012; (2) the application was not signed by the applicant as required by the Rules; (3) some questions of law and fact raised by the application are not questions of constitutional interpretation or application and therefore are not proper matters for inclusion in Section 18(1) proceedings.

Held:

(1) An application for relief under Section 18(1) of the Constitution must be instituted by an application in Form 1 of the Supreme Court Rules 2012 and comply with the requirements of Order 4, Rules 1 and 3 of those Rules. A Supreme Court Originating Summons is an entirely different mode of commencement and is not authorised by the Supreme Court Rules 2012.

(2) It is a specific requirement of the Supreme Court Rules 2012 that an application under Section 18(1) be signed by the applicant.

(3) The fact that an application under Section 18(1) raises questions of law that are not questions of constitutional interpretation or application does not necessarily make the application incompetent. If one or more questions of law raise questions of constitutional interpretation or application that would usually be sufficient to render the application competent.

(4) Here, the application under Section 18(1) of the Constitution was not in a proper form and failed to comply with Order 4, Rules 1 and 3 of the Rules and this by itself rendered the proceedings incompetent.

(5) The application was not signed by the applicant, which also rendered the proceedings incompetent.

(6) The originating summons raised at least two significant constitutional questions so the fact that other questions were not constitutional questions was of no consequence.

(7) The objection to competency was accordingly upheld and the proceedings were entirely dismissed.

Case cited

The following cases are cited in the judgment:

Application by Morobe Provincial Government (2012) SC1190
Application of Jim Kas, Governor of Madang (2001) SC670
Coca Cola Amatil (PNG) Ltd v Yanda (unreported, 31.08.12
Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082
Namah v Pato (2013) N4990
Re Reference by Ken Norae Mondiai (2010) SC1087
Rea Joseph v Manau Sereva (2011) SC1152
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Special Reference by Morobe Provincial Executive (2010) SC1089
Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201

OBJECTION

This was an objection to the competency of an application under Section 18(1) of the Constitution.

Counsel

L R Henao, for the applicant
I Molloy & T Boboro, for the respondents

4th July, 2013

1. BY THE COURT: This is a ruling on an objection to competency of an application to the Supreme Court under Section 18(1) of the Constitution. The Section 18(1) application was filed as a Supreme Court originating summons by the applicant Hon Belden Norman Namah MP on 1 March 2013. An amended originating summons was filed on 11 April 2013 by which the applicant amongst other things challenges the constitutionality of the memorandum of understanding between the governments of Papua New Guinea and Australia that has resulted in a number of people who had arrived in Australia seeking refugee status (known generally as 'asylum seekers') being transferred to a regional processing facility at Lombrum Naval Base, Manus Province, Papua New Guinea.

2. The respondents to the application are the Minister for Foreign Affairs and Immigration Hon Rimbink Pato MP (who signed the MOU on behalf of the PNG Government on 8 September 2012), the National Executive Council and the State. The respondents object to the competency of the application on three grounds:

(1) the application is not in the form prescribed by the Supreme Court Rules 2012;

(2) the application is not signed by the applicant as required by the Rules;

(3) many questions of law and fact raised by the application are not questions of constitutional interpretation or application and therefore are not proper matters for inclusion in Section 18(1) proceedings.

GROUND 1: APPLICATION NOT IN A PROPER FORM

3. The respondents argue that the amended originating summons does not comply with the Supreme Court Rules 2012 and that this renders the application incompetent. The applicant agrees that his application does not comply with the Supreme Court Rules 2012 but says that there are very good reasons for that, as the 2012 Rules are confusing and inconsistent with previous decisions of the Supreme Court that stipulate that the correct mode of commencing an application under Section 18(1) of the Constitution is by a Supreme Court originating summons. Mr Henao for the applicant said that the applicant was placed in some difficulty due to the confusion created by the Supreme Court Rules 2012 and a considered view was taken that it was appropriate and necessary to commence the proceedings by originating summons in order to comply with previous Supreme Court decisions.

4. To determine these issues it is necessary to first set out Section 18(1) (original interpretative jurisdiction of the Supreme Court) of the Constitution, then set out the provisions of the 2012 Rules the respondents are relying on and then set out the amended originating summons. Once that is done we will pose the question whether the amended originating summons is compliant with the Rules and if it is not, what are the consequences?

Constitution, Section 18(1)

5. This critical provision of the Constitution states:

Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

6. It was clarified in the leading case Re Reference by Ken Norae Mondiai (2010) SC1087 (Injia CJ, Salika DCJ, Sevua J, Kirriwom J; Davani J dissenting) that Section 18(1) confers jurisdiction on the Supreme Court to entertain a cause of action in a case which involves constitutional issues, brought by a private citizen who has the necessary standing to bring the proceedings. The majority adopted the approach taken in Application of Jim Kas, Governor of Madang (2001) SC670: Section 18(1) allows for prosecution of a cause of action based on issues of constitutional law, but does not authorise the commencement of a Supreme Court reference that raises only hypothetical questions of constitutional law.

Supreme Court Rules 2012

7. These Rules were made by the Judges on 19 December 2012 pursuant to their rule-making power under Section 184 (rules of court) of the Constitution and are deemed to have commenced operation on that date. The 2012 Rules were in force when the present proceedings were commenced in 2013. Order 4 is entitled "Applications and References under the Constitution Sections 18 and 19". It consists of 26 rules and two of them deal with the proper mode of commencement of proceedings under Section 18(1) of the Constitution. Order 4, Rule 1 states:

An application under Constitution s 18(1) shall be instituted by an application in Form 1 and shall —

(a) be entitled under Constitution Section 18(1) with the year and number of the reference; and,

(b) be endorsed with —

(i) the name of the person making the application;

(ii) an application for a declaration that the applicant has standing to make the application;

(c) be signed by the person making the application; and

(d) be filed in the Registry.

8. Order 4, Rule 3 states:

An application under Constitution Section 18(1) shall state —

(a) the basis on which the applicant claims standing to make the application;

(b) the Section of a constitutional law the applicant requests to have interpreted;

(c) the answer or interpretation and relief for which the applicant contends;

(d) the facts out of which the request arises;

(e) whether a question of fact arises for determination by the Court on the application;

(f) the names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant.

9. Form 1 of the Rules has been recently amended by the Supreme Court (Amendment No 1) Rules 2013, made by the Judges on 29 May 2013. The amendments are not substantial and will be explained later. For now it is sufficient to note that in March and April 2013, when the applicant's originating summons and amended originating summons were filed, Form 1 stated:

GENERAL FORM OF APPLICATION (CONSTITUTION S 18(1))

IN THE SUPREME COURT SCA No. of 20

OF JUSTICE Insert number and year)

Application Pursuant to

Constitution Section 18(1)

reference by (Insert name of

person making application)

APPLICATION

To the Supreme Court:

APPLICATION TO INTERPRET SECTION... (insert Section number)... of (Insert Constitution or the Name of the Constitutional Law)

1. The applicant requests the Court to declare that the applicant has standing to make this application, and after that declaration, the finding sought in paragraph 3 below;
   
2. The basis on which the applicant claims standing to make this application is;
   
3. The applicant requests the Court to declare that the proper interpretation or application of Section... of... (Insert the Constitution and relevant Section or name of a constitutional law and Section) is;
   
4. The facts out of which the request arises are;
   
5. Whether a question of fact arises for determination by the Court on the application. (If questions of fact need to be determined the action must be commenced in the National Court and the facts found before the issue of constitutional interpretation is referred to the Supreme Court);
   
6. The names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant are: (insert names of persons whose interests may be affected, with a positively or adversely).
   

DATED:

Sgd

_______________________

(To be signed by person

making the reference

FILED BY: (Form 17)

Application for Directions

Application will be made to a Judge of the Supreme Court Waigani at ... am on the day of ... 20...

______________

Registrar

A Respondent or intervener may file a Statement of Response.

10. The recent amendment to Form 1:

• generally, deletes the word "reference" wherever it appears and replaces it with the word "application";
  
• in item 5, deletes the words "action must be commenced in the National Court and facts found" and replaces them with the words "the Court may, in accordance with Order 3, Rule 3 direct a Judge to find the facts";
  
• in item 6, deletes the word "applicant" and replaces it with the words "person making the application".
  

The amended originating summons

11. It is entitled "SCOS No 1 of 2013" and relevantly states:

AMENDED ORIGINATING SUMMONS

The Applicant applies under Section 18(1) of the Constitution for the following relief:

1. A declaration that the applicant has standing to make this application on the basis that he is a citizen of Papua New Guinea; he is a member of the National Parliament and is the Leader of the Opposition in Parliament.
   
2. A declaration that the Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer and Assessment of Persons in Papua New Guinea, and Related Issues (the MOU) signed on 8th September 2012 by the Hon Rimbink Pato, Minister for Foreign Affairs and Immigration for the Government of the Independent State of Papua New Guinea and Hon Dr Craig Emerson, Minister for Trade and Competitiveness for the Government of Australia is unconstitutional as:
   
   • (a) it purports to authorise the defendants to force the persons seeking refugee status in Australia to enter Papua New Guinea; and
     
   • (b) it purports to authorise the defendants, their servants and agents to deprive the personal liberty of the persons seeking refugee status in Australia as soon as they enter Papua New Guinea, thereby contravening Section 42(1) of the Constitution.
     
3. A declaration that the continuous deprivation of the personal liberty of the persons seeking refugee status in Australia currently detained at Lombrum Naval Base, Manus Province pursuant to the said MOU is in contravention of Section 42(1) of the Constitution and is therefore unconstitutional.
   
4. A declaration that Sections 3(b), 15B, 15C and 20 of the Migration Act 1978 only applies to persons seeking refugee status in Papua New Guinea and does not apply to persons seeking refugee status in other countries.
   
5. Consequential to the declaration sought in paragraph 3 therein, a declaration that the declaration made on 28th November 2012 by the first defendant purporting to be pursuant to his powers under Sections 3(b) and 20 of the Migration Act 1978 which was published in the National Gazette No G463, to exempt the persons transferred to Papua New Guinea from Australia under the terms of the said MOU from holding an entry permit is void and of no effect.
   
6. Consequential to the declaration sought in paragraph 3 herein, a declaration that the direction made on 28th November 2012 by the first defendant purporting to be pursuant to his powers under Section 15C of the Migration Act 1978 which was published in the National Gazette No G463 for those persons seeking refugee status in Australia to be temporarily relocated at the Lombrum Naval Base, Manus Province for the purposes of determining their refugee status is void and of no effect.
   
7. A permanent injunction restraining the defendants from continuing to detain those persons seeking refugee status in Australia who are currently held at the Lombrum Naval Base, Manus Province under the said MOU.
   
8. Such further orders or directions as the court may seem appropriate.
   
9. An order that the defendants pay the plaintiff's cost of and incidental to the proceedings to be taxed if not agreed.
   

....... [signed] .......

LOANI RAVU HENAO

OF HENAOS LAWYERS

Lawyers for the Applicant

Does the amended originating summons comply with the 2012 Rules?

12. Clearly it does not and Mr Henao concedes this. The amended originating summons is non-compliant in that:

• it is an entirely different form to Form 1 of the 2012 Rules;
• it is not "entitled under Constitution Section 18(1)" as required by Order 4, Rule 1(a);
• it does not state "the answer or interpretation and relief for which the applicant contends" as required by Order 4, Rule 3(c);
• it does not state "the facts out of which the request arises" as required by Order 4, Rule 3(d);
• it does not state "whether a question of fact arises for determination by the Court on the application" as required by Order 4, Rule 3(e);
• it does not state "the names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant" as required by Order 4, Rule 3(f).
  

What are the consequences of non-compliance?

13. Mr Henao submits that it is inconsequential that the amended originating summons is non-compliant with the 2012 Rules as the Rules are confusing and do not represent the true state of the law as decided by the two leading cases on Section 18(1) of the Constitution, Mondiai and Kas. Form 1 is confusing as, though it has been recently amended, at the time the amended originating summons was filed, it used the word "reference" in several places, suggesting that it was not the proper form to use if a party wished to file an application as distinct from a reference.

14. Mr Henao submitted that both Mondiai and Kas say that the correct mode of commencement of an application under Section 18(1) is a Supreme Court originating summons. The Judges in the exercise of their rule-making powers under Section 184 of the Constitution can only make rules that comply with the Constitutional Laws and Acts of the Parliament and with decisions of the Supreme Court. If the Rules are non-compliant with those superior laws they must be read down. Mr Henao fell short of arguing that the 2012 Rules are unconstitutional or ineffective but urged the Court to appreciate the confusion created by the 2012 Rules (or at least Order 4, Rules 1 and 3, and Form 1) and to uphold the interpretation of the law he was advancing, in the interests of justice.

15. Mr Henao explained that the decision to file an originating summons was a considered one. The applicant actually filed a Section 18(1) application in accordance with the 2012 Rules on 22 February 2013, and it was allocated the file reference SC App No 2 of 2013. For a short period after 1 March 2013 the applicant had two Supreme Court proceedings on foot concerning the same subject matter before SC App No 2 of 2013 was withdrawn, leaving the SCOS No 1 of 2013 standing alone.

16. We appreciate Mr Henao's point about there being an element of confusion created by the word "reference" appearing in Form 1, rather than "application" (confusion which has been resolved by the recent amendment) but we cannot agree that that provided a sufficient reason to entirely avoid the requirements of the Rules and to file a completely different form to that required. The requirement is in our view clear: an application under Section 18(1) of the Constitution is to be instituted in Form 1 and comply with Order 4, Rules 1 and 3. Any genuine confusion could have been easily resolved by making an application for directions under Section 185 (lack of procedural provision) of the Constitution or Order 11, Rule 9 (lack of procedural provision) of the Supreme Court Rules 2012. Section 185 states:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

17. Order 11, Rule 9 states:

Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.

18. As for the decisions in Mondiai (2010) and Kas (2001), both are very authoritative and persuasive decisions in which the Court suggested the proper mode of commencement of Section 18(1) applications in the context of the practice and procedure of the Supreme Court as it then was. The relevant law in those days was the Supreme Court Rules 1984 and other rules of practice and procedure – including the practice of allowing certain types of proceedings in the original jurisdiction of the Supreme Court to be commenced by originating summons – that then existed. The Supreme Court Rules 1984 have been repealed and replaced by the Supreme Court Rules 2012. The 2012 Rules are a codification of the rules of practice and procedure in the Supreme Court. The 2012 Rules make no provision for Supreme Court originating summonses. That mode of commencement is no longer recognised. If a party wishes to commence proceedings by originating summons the leave of the Court would first have to be obtained or directions given by the Court authorising that mode of commencement.

19. We do not consider that there is any restraint of the type contended for by Mr Henao on the rule-making power of the Judges. The Court in Mondiai and Kas was not saying that the Constitution requires that an application under Section 18(1) be made by originating summons. Rather, the Court was saying that such an application must not be brought by way of a reference (references are only commenced under Sections 18(2) and 19(1)), but should be commenced by some originating process provided for by the practice and procedure of the Court.

20. We uphold the submission of Mr Molloy for the respondents that the amended originating summons is entirely non-compliant with the requirements of the Supreme Court Rules 2012 and that the applicant has used an improper mode of commencement of the proceedings. In such situations in the past the approach of the Court has been to conclude that this is a matter that goes to the jurisdiction of the Court and renders the proceedings incompetent (Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082, Rea Joseph v Manau Sereva (2011) SC1152, Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153). We see no reason to depart from that approach: the applicant has used an improper mode of commencement, the court therefore has no jurisdiction, the proceedings are incompetent. Ground 1 of the objection is upheld.

GROUND 2: ORIGINATING PROCESS NOT SIGNED BY THE APPLICANT

21. It is significant that the amended originating summons is signed by the applicant's lawyer, not the applicant himself. Order 4, Rule 1(c) and Form 1 of the Supreme Court Rules 2012 require that an application under Section 18(1) "be signed by the person making the application", not by his lawyer. In the context of an originating process by which a person seeks to invoke the original jurisdiction of the Supreme Court the requirement that that person signs the originating process is of paramount importance. Failure to comply will be fatal to the proceedings (SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249, SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, Special Reference by Morobe Provincial Executive (2010) SC1089, Application by Morobe Provincial Government (2012) SC1190).

22. The amended originating summons was not signed by the applicant himself, as required by the Rules. This is a fatal defect in the originating process, which renders the proceedings incompetent. Ground 2 of the objection is upheld.

GROUND 3: SOME QUESTIONS DO NOT RAISE CONSTITUTIONAL ISSUES

23. Mr Molloy submitted that though some parts of the amended originating summons seem to raise constitutional issues, others clearly do not, and this makes the proceedings defective.

24. We agree that paragraphs 2 and 3 of the amended originating summons raise questions of interpretation and application concerning Section 42 of the Constitution. As explained by Cannings J in Namah v Pato (2013) N4990 there would appear to be serious questions of constitutional interpretation and application arising from the continuous deprivation of the liberty of asylum seekers at Lombrum allegedly contrary to the right of personal liberty conferred on all persons in Papua New Guinea by Section 42(1) (liberty of the person) of the Constitution, which states:

No person shall be deprived of his personal liberty except—

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

25. We also agree with Mr Molloy that there are some parts of the amended originating summons that appear not to raise directly any questions of constitutional interpretation or application. Paragraphs 4 to 6 would appear to call for an interpretation and application of the Migration Act 1978, which is not a Constitutional Law, and not require determination of any constitutional issue.

26. However we do not agree that Mr Molloy's assessment of the nature of the issues raised has any consequence. Provided a Section 18(1) application raises at least one issue of constitutional interpretation or application, which appears not to be trivial, vexatious or irrelevant (using the language of Section 18(2) of the Constitution) it should be regarded as competent and be allowed to progress to hearing even though it appears to contain other questions that are not of a constitutional nature. We borrow from the reasoning of the Supreme Court in the recent case Coca Cola Amatil (PNG) Ltd v Yanda (unreported, 31.08.12, Lenalia J, Kawi J, Logan J), which was followed in Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201: provided a notice of appeal contains at least one proper ground of appeal, the appeal should be regarded as competent; the inclusion of some improper grounds of appeal does not in these circumstances render the appeal incompetent.

27. Here, the amended originating summons raises significant issues of constitutional interpretation and application. The inclusion of what might appear to be non-constitutional issues is of no consequence in so far as the competency of the proceedings is concerned. Ground 3 of the objection is dismissed.

CONCLUSION

28. We have upheld grounds 1 and 2 of the objection. Each is sufficient to render the proceedings incompetent, which means that the proceedings must be entirely dismissed. The objection must be upheld. Costs will follow the event.

ORDER

(1) The objection to competency is upheld.

(2) The proceedings are entirely dismissed.

(3) The applicant shall pay the respondents' costs of these proceedings on a party-party basis to be taxed if not agreed.

Judgment accordingly.
______________________________________

Henaos Lawyers: Lawyers for the applicant
Kuman Lawyers: Lawyers for the respondents