Namah v Pato [2013] PGSC 46; SC1287 (11 September 2013)

SC1287

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 84 OF 2013

Application pursuant to Constitution Section 18(1)

APPLICATION BY
BELDEN NORMAN NAMAH, MP Leader of the Opposition
Applicant

AND

HON. RIMBINK PATO, Minister for Foreign Affairs & Immigrations
First Respondent

AND

NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kassman, J
2013: 10th & 11th September

SUPREME COURT – Practice and procedure - Application for leave to amend substantive Application – leave is sought if a party intervenes and if hearing of application has commenced – leave not required where no party intervenes - named respondents have intervened in this proceedings which requires the grant of leave to amend – a judge has power to grant leave – no objection by the respondents – leave to amend granted - Order 4 Rule 10 (a) & (b) of the Supreme Court Rules

Cases cited

Fred Yakasa v. Toami Kulunga & The State N4550
Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2773
Legislations cited:

Sections 18(1), 42 and 185 Constitution
Order 4 Rule 25(b) Supreme Court Rules
Order 4 Rules 16 and 17 Supreme Court Rules
Order 4 Rule 10(a) and (b) Supreme Court Rules
Order 4 Rule 12(a) Supreme Court Rules
Order 11 Rule 9 Supreme Court Rules

Counsel:

Mr Loani Henao, for the Applicant
Mr Peter Kuman, for the Respondents

DECISION

11th September, 2013

1. On 1 August 2013, the Leader of the Opposition in the Papua New Guinea National Parliament Hon. Belden Namah MP ("the Applicant") filed an Application pursuant to Section 18(1) of the Constitution to interpret Section 42 of the Constitution in respect of matters arising under a Memorandum of Understanding between the Governments of Papua New Guinea and Australia signed on 8 September 2012 ("the first MOU").
   
2. On 20 August 2013, this Court granted leave to intervene in the proceedings to the Hon. Rimbink Pato MP in his capacity as Minister for Foreign Affairs and Immigration, the National Executive Council and the State. They are now named in the proceedings as First, Second and Third Respondents respectively. There was no objection by the Applicant to the request for leave to intervene and in fact the Applicant supported the inclusion of the Respondents as parties in the proceedings.
   
3. When the Respondents were granted leave to intervene, this court also directed they file and serve by 27 August 2013 Statement of Response as required by Order 4 Rule 25(b) of the Supreme Court Rules stating whether they support or oppose the standing of the Applicant to make the application. The Supreme Court Registry refused attempts by the Respondents to file their Statement of Response a day after the deadline. With the consent of the Applicant, this Court granted leave to the Respondents to file and serve their Statement of Response on 10 September 2013.
   
4. In the Respondents' Statement of Response, they say they oppose the substantive application. The Respondents state three reasons for their objection. Firstly, they say "the Applicant does not have standing to bring the application". Secondly, they say "The application is an abuse of process and the proper process would be pursuant to Section 57 of the constitution and order 6 of the Supreme Court Rules 2012 for enforcement of constitutional rights." Thirdly, the Respondents say "The facts pleaded in support of the application is incorrect and refers to an MOU dated 8 September 2012 which has been superseded by the Regional Resettlement Agreement signed on 19 July 2013 and an MOU signed on 6 August 2013 which makes the application incompetent as being based on incorrect facts." I will return to this below.
   
5. It was agreed that pursuant to Order 4 Rules 16 and 17 of the Supreme Court Rules, the Supreme Court must first determine the question of standing of the Applicant before the constitutional reference is set for hearing. This has yet to take place. It was also agreed the issue of standing must be determined by the Supreme Court and not by the court sitting as a single judge of the Supreme Court.
   
6. The Applicant now applies for leave to amend his substantive Application. The application seeking leave to amend was filed on 5 September 2013 and is made pursuant to Order 4 Rule 10(b) of the Supreme Court Rules which provides the applicant may amend the application, with the leave of the court or a judge, if a party has intervened. By Rule 10(a), leave is not required where no party has intervened. However, where the hearing of the application has commenced and before the court has given its opinion, leave is required.
   
7. In this proceeding now, the three named Respondents have intervened so the Applicant may amend the application only with leave of the court or a judge. Sitting as a single judge of the Supreme Court, I find that I have the power to grant leave to amend. There was no objection to this interpretation by any of the parties.
   
8. The affidavit filed in support of the application is sworn by Mr Loani Henao, the lawyer for the Applicant.
   
9. The Applicant says that after commencement of these proceedings on 1 August 2013, the first MOU was superseded by a Memorandum of Understanding between the Governments of Australia and Papua New Guinea signed respectively on 5 and 6 September 2012 ("the second MOU"). For this reason, the Applicant seeks leave of the court to amend the Application to reflect or refer to and seek interpretation of the second MOU in addition to that of the first MOU.
   
10. In Fred Yakasa v. Toami Kulunga & The State N4550, Justice Davani adopted a common law principle that an amendment to a pleading will be allowed where the amendment enables the court to determine the real questions in controversy between the parties. In that matter, the National Court was considering an application to amend an originating summons. The power to amend was found under the National Court Rules although it was not specifically stated in the judgment.
    
11. In the Yakasa matter, the application to amend was opposed on the basis the proposed amendment raised a new issue unrelated to the proceeding on foot. It was argued the proposed amendment did not correct any defect or error as was done in Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2773. In The Yakasa matter, the National Court found the amendments sought would determine the real questions in controversy between the parties as it provided the foundation and the basis on which the court then issued directions to take the matter forward. Relying on the amended originating summons, the National Court stated a case and points of law for determination by the Supreme Court.
    
12. Mr Henao for the Applicant did not refer to any judgment of the Supreme Court on point or applying Order 4 Rule 10(a) or (b) of the Supreme Court Rules and neither did Mr Kuman for the Respondents. It was agreed these were among a number of changes recently made to the Supreme Court Rules but the common law principles discussed above in the Yakasa matter were appropriate and applicable. I find this to be the correct approach.
    
13. The Respondents agreed this court has the discretion to give leave to amend the Application but they opposed the application for the grant of leave to amend on the basis that the form of the application for leave to amend is incompetent.
    
14. The Respondents say the form of the application for leave to amend filed by the Applicant on 5 September 2013 does not comply with the requirements of Order 4 Rule 12(a) of the Supreme Court Rules. This rule provides "notice of amendment or an application for leave shall be in accordance with Form 6 or 14 whichever is applicable". It was agreed Form 6 was not applicable. Form 14 appears to be applicable as it is stated at the top of the form as being applicable to "Order 4 Rule 12" but it is titled "GENERAL FORM NOTICE OF AMENDMENT OR WITHDRAWAL OF REFERENCE". This suggests the form is used once leave to amend is granted. This appears to be so when reading the prescribed wording in the body of the form which states on the first line "Pursuant to leave granted by ...." and on the second line "The Amendment is as follows ..."
    
15. It was agreed the wording of the prescribed Form 14 both in its title and the wording in the body of the form was applicable where leave to amend was granted and that form would be completed and filed to give notice of the amendment or withdrawal, whichever was applicable, following the grant of leave by the court. Here, leave to amend has yet to be granted.
    
16. In response, Mr Henao for the Applicant argued the application for leave to amend filed on 5 September 2013 was prepared following Form 4 of the Supreme Court Rules and that was in compliance with Order 4 Rule 15. On further deliberation in court, Mr Henao conceded he was not aware of the changes to the rules and forms to the Supreme Court Rules made in May 2013 which are what Mr Kuman for the Respondents was relying on.
    
17. There appears to have been general consensus between Mr Henao and Mr Kuman that some of the rules and forms in the recently amended Supreme Court Rules were causing confusion for lawyers. Despite this consensus, Mr Kuman urged the court to strictly apply the rules as Order 4 Rule 12(a) was in mandatory terms "notice of amendment or an application for leave shall be in accordance with Form 6 or 14 whichever is applicable" (underlining mine) by the use of the word "shall". Mr Kuman also argued the Applicant had not formally sought directions of the court in light of the lack of procedural provision which is provided under Order 11 Rule 9 of the Supreme Court Rules. Further, the Respondent had already filed their Statement of Response where they respond to the Application by making reference to the first MOU.
    
18. The Applicant argued this court should exercise its inherent jurisdiction to allow the form of the application for leave to amend as filed. It was argued there have been serious breaches of human rights under the Constitution especially section 42 which provides the right to liberty of the person. The Applicant also submitted that applications for constitutional interpretation were approached by parties in cooperation with a view to having the facts and issues clearly posed and stated without undue delay. In civil and criminal proceedings the processes and procedures envisage a combative manner with each party taking the liberty to contest each and every point, procedural and on the merits of the respective claims and defenses and counter-claims.
    
19. Although counsel did not refer to a specific section in the Constitution, I agree that I have the power under Section 185 of the Constitution to give ad hoc directions to remedy the lack of or inadequacy in the form of the application for leave to amend.
    
20. I will grant the application for leave to amend the Application.
    
21. Any prolonged delay in the determination of this matter does not serve the interests of any party and neither will it assist with good case and time management.
    
22. The court is also mindful that the various MOU between the governments of Papua New Guinea and Australia have been relied on to transfer persons commonly called "asylum seekers" from Australia to Manus Island in Papua New Guinea and the Applicant says this is in serious breach of the rights of such persons right to personal liberty guaranteed by the section 42 of the Constitution of Papua New Guinea.
    
23. On the first page of the second MOU immediately above the preamble, it is stated the second MOU supersedes the first MOU. A determination of the real questions in controversy between the parties will not be possible without referral and consideration of the second MOU.
    
24. I also note in the Respondents' Statement of Response, they say they oppose the substantive application for three reasons. In the third ground, the Respondents say "The facts pleaded in support of the application is incorrect and refers to an MOU dated 8 September 2012 which has been superseded by the Regional Resettlement Agreement signed on 19 July 2013 and an MOU signed on 6 August 2013 which makes the application incompetent as being based on incorrect facts."
    
25. Not only do the Respondents conceded the second MOU supersedes the first MOU but they also contend there is a third document that is relevant which is the Regional Resettlement Agreement signed on 19 July 2013. That will be a matter for the parties to deal with but clearly the Respondents are aware of and have in essence raised the need for the substantive application to be amended to conclusively deal with the issues between the parties. In other words, the amendment to the application will enable the Supreme Court to determine the real questions in controversy between the parties.
    
26. The formal orders of the court are:
    
    • (i) The application for leave to amend filed by the Applicant on 5 September 2013 is accepted for purposes of the consideration and determination of the Applicant's application for leave to amend the Application filed on 1 August 2013.
      
    • (ii) The Applicant is granted leave to amend the application filed 1 August 2013.
      
    • (iii) The Applicant shall file and serve the Amended Application by 25 September 2013.
      
    • (iv) The Respondents shall file their Statement of Response to the Applicant's Amended Application by 2 October 2013.
      
    • (v) The parties will return for further direction on 7 October 2013.
      

Judgment accordingly:

____________________________________
Henaos Lawyers: Lawyers for the Applicant
Kuman Lawyers: Lawyers for the Respondent