Luma v Kali [2014] PGSC 81; SC1608 (25 April 2014)

SC1608

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 14 of 2014

In the matter of an Application pursuant to Order 11 Rule 25 of the Supreme Court Rules

Between:
JOEL LUMA
Appellant

And:
JOHN KALI, OBE,
SECRETARY FOR THE DEPARTMENT OF PERSONAL MANAGEMENT
First Respondent

And:
THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, CJ; Sakora & Manuhu JJ
2014: 22, 25 April

SUPREME COURT- Practice & procedure- Application to discharge orders of single Judge- Procedure to be followed- Application not to be made by way of Appeal under Order 10- Application to be made by "Application" made within the existing appeal - It is not a fresh appeal or a review from that decision of the single judge - .Reference to appeal in Order 11 Rule 26 to be read accordingly - Supreme Court Act, s 5 (3), Supreme Court Rules 2012, O 11 r 26.

SUPREME COURT - Jurisdiction to grant interim relief - Application for interim relief - Nature of interim relief sought not available to National Court- Interim relief in judicial review proceedings prior to grant of leave for judicial review- Interim relief not available to trial judge, equally not available to Supreme Court on appeal- Supreme Court lacks jurisdiction- Supreme Court Act, s 5(1)(b)

Counsel:

W Mapiso, for the Applicant/Respondent
R Manrai, for the Appellant/Respondent

25^th April, 2014

1. BY THE COURT: The applicants are the respondents in the appeal. They apply for an order to discharge interim orders made by a single judge of the Supreme Court under s 5 (1)(b) of the Supreme Court Act (the Act). The application is made under s 5(3) of the Act but because of the wording of SCR, O 11 r 26, it is documented as if it were an appeal under Order 10 of the Supreme Court Rules (SCR). The fact that such application is commenced by adopting the procedures contained in Order 10 does not alter the real nature and effect of the application that is made under s 5 (3) of the Act.
   
2. A short chronology of events leading to this application is necessary. On 7^th December 2012, the Minister for Works & Implementation suspended the appellant from office and appointed David Wereh, Deputy Secretary – Technical as Acting Secretary until further notice pending investigations into allegations of mismanagement against the respondent.
   
3. The Minister’s decision to suspend the appellant was administratively set aside on advice from the Department of Personal Management that the Minister did not have the power to suspend Heads of Departments.
   
4. The appellant filed an application for leave for judicial review of the Minister’s decision to suspend him on 7 December 2012 in proceedings OS (JR) No. 776 of 2013. This application was eventually dismissed by Cannings J on 14 March 2013. The appellant appealed the decision in SCA No. 20 of 2013. On 24^th June 2013, an application to stay the decision and for interim orders was refused by the Supreme Court.
   
5. In the meantime, the Minister for Pubic Service submitted a Statutory Business Paper to the NEC on 11 February 2013 to deliberate on. The NEC, on 21 March 2013, approved the PSC's recommendation to suspend the appellant and appointed Mr. David Wereh as Acting Secretary.
   
6. The appellant on 9 July 2013 filed a new application for leave to review the NEC decision of 21 March 2013 in OS (JR) NO. 373 of 2013. The application was refused on 27 September 2013. There is no appeal against this refusal.
   
7. The NEC considered a report into the allegations leveled against the appellant and on 12 November 2013 decided to revoke his appointment. The revocation was endorsed by the Head of State on 20 November 2013 and gazetted on 29 November 2013.
   
8. The appellant then filed another application for leave for review of the NEC decision of 12 November 2013. His application for leave was refused by Gavara-Nanu, J on 24 March 2014. The appellant appealed against this refusal on 31 March 2014 and simultaneously applied for interim orders which are the subject of this application.
   
9. On 10 April 2014, Makail J sitting as a single judge of the Supreme Court granted the interim orders under s 5 (1)(b), which amongst other things, restored the appellant to office pending the determination of his appeal. The respondents now seek orders discharging those interim orders. If the orders are granted, the NEC decision to revoke the appellant’s appointment will remain in force pending the determination of the appeal.
   
10. The nature of an application under s 5(3) is explained in several decisions of this Court. It is an application to “vary or discharge” an order of a single Judge; it is not a fresh appeal or a review from that decision. The application is interlocutory in nature and made in the context of the existing appeal: National Executive Council & others v Dr Vele Pat Ila’Ava & another, Unreported judgment of the Supreme Court dated 26^th February 2014, per Gabi, Sawong & Murray JJ. ToRobert v ToRobert (2011) SC1130, Powi v The State (2006) SC844, National Executive Council & others v Dr Vele Pat Ila’Ava & another (supra). As with all proceedings before the Supreme Court, the matter proceeds by way of a rehearing de novo: see s 6 of the Act.
    
11. At the hearing, the parties relied on various affidavits and their counsel made extensive submissions on the correctness or otherwise of the decision made by the single Judge. However it would defeat the purpose of a rehearing de novo for this Court to review the decision as if it were an appeal or a review. This Court in the true spirit of a rehearing de novo is disposed to considering afresh all materials and submissions put before us and to reach our own decision on the application.
    
12. Out of the many matters put to us by the parties, there is one important point that emerged for our consideration and one that may determine the outcome of the application. That is with regard to the jurisdiction of a single judge of the Supreme Court to grant interim relief under s 5 (1) (b), of a type that the Court of first instance (National Court) would have lacked jurisdiction to grant. Mr Mapiso of counsel for the applicant contends that it is not open for the Supreme Court to grant interim relief in an appeal from a decision of the National Court refusing leave for judicial review because the National Court itself would have lacked jurisdiction to grant. The National Court has no jurisdiction to grant a stay or interim relief in a judicial review proceeding brought under O 16 of the National Court Rules (NCR) prior to grant of leave and the institution of a substantive application for judicial review. He relied upon several decisions of this Court and the National Court to support this submission including Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317. Mr Manrai of counsel argued that it was open to the single judge to grant the interim orders under s 5(1)(b) to prevent prejudice to the appellant’s claim and that the judge had correctly exercised that jurisdiction.
    
13. In Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, at para 34, Injia DCJ (as he then was) said:
    

“Under O 16, a plaintiff has no right to seek judicial relief unless leave is granted. No such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or for interim relief and the Court’s jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granted leave. Upon the grant of leave and filing of the application for judicial review, the Court assumes jurisdiction to deal with any interlocutory applications....

“I hold that pursuant to O 16 r 3 (8), the Court has no jurisdiction to grant stay or other interim relief in a judicial review matter brought under O 16 before the grant of leave to apply for judicial review but only after leave is granted.”

14. In Willlie Edo v Margaret Elias (2008) SC1160, Hartshorn J sitting as a single judge of the Supreme Court, referred to the principles in Peter Makeng v Madang Timbers and said:
    

“(I)n my view it would be inconsistent for an applicant who is not able to obtain interim relief in the National Court until he obtains leave, to be able to obtain that interim relief in the Supreme Court before his appeal against a refusal to be granted leave is heard.”

15. The reason for this principle is obvious. There is simply no substantive proceedings on foot upon which to ground a stay or interim relief.
    
16. We consider the principles on procedural law enunciated in these two cases to be appropriate to applications for interim relief in judicial review proceedings filed under NCR, O 16 and adopt them. It follows that it would be inconsistent, to say the least, with the procedural law that governs judicial review proceedings in the National Court, for the Supreme Court to grant a stay or an interim relief in an appeal from refusal of leave for judicial review under NCR O 16 r 3 before the appeal is heard and determined. In fact the Supreme Court would lack jurisdiction to grant such interim relief.
    
17. In the present appeal, the appellant sought various substantive relief that included grant of leave for judicial review under NCR O 16 r 3.
    
18. The appellant also sought a stay of the decision of the NEC and interim orders that would restore him to office pending determination of the appeal. Both interim relief were sought under s 5 (1)(b).
    
19. We are of the view that the single judge and for that matter, this Court clearly lacks jurisdiction to grant interim relief in this appeal from refusal to grant leave for judicial review.
    
20. Having reached our conclusion on this point, it is unnecessary for us to consider the other points raised by the parties.
    
21. We grant formal orders as follows:
    
    • (1) Pursuant to s 5(2) of the Supreme Court Act, the interim orders granted by a single judge of the Supreme Court on 10 April 2014 are discharged forthwith.
    • (2) Cost of the application shall be in the cause.
      

_______________________________________________________________
Guardian Legal Services: Lawyer for the Applicant
Manrai Lawyers: Lawyer for the Respondent