Namah v Poole [2016] PGSC 24; SC1508 (31 May 2016)

SC1508

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 2 OF 2016

REFERENCE PURSUANT TO CONSTITUTION, SECTION 18(2), RE INTERPRETATION OF SECTION 169(4) (c) OF THE CONSTITUTION

BETWEEN

THE HONOURABLE BELDEN NAMAH MP,
MEMBER FOR VANIMO GREEN OPEN
Plaintiff

AND

A TRIBUNAL COMPRISING
THE HONOURABLE JUSTICE GOODWIN POOLE,
SENIOR MAGISTRATE MARK SELEFKARIU AND
SENIOR MAGISTRATE ERNEST WILMOT
First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR
Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Defendant

THE HONOURABLE GRAND CHIEF SIR SALAMO INJIA KT, GCL, CHIEF JUSTICE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J, David J, Polume-Kiele J

2016: 30, 31 May

PRACTICE AND PROCEDURE – application to summarily dismiss a reference by the National Court under Constitution, Section 18(2) – whether application under Order 13, Rule 16(1)(c) properly before the Court – whether good grounds exist to summarily dismiss a reference that has been set down for hearing.

The Public Prosecutor, who was a party to a reference made by the National Court under Section 18(2) of the Constitution to the Supreme Court of a question of constitutional interpretation and application, filed an application in the Supreme Court, for summary dismissal of the reference. The application was made under Order 13, Rule 16(1)(a) of the Supreme Court Rules 2012 on various grounds: the reference fails to comply with Order 4, Rule 4 of the Supreme Court Rules; the question referred was trivial, vexatious and hypothetical; the proceedings from which the reference arose are an abuse of process; the question referred raised an issue that was non-justiciable; the National Court erred by failing to find sufficient facts on which to base the question; the National Court’s decision to refer the question was made contrary to the principles of natural justice.

Held:

(1) The application was incompetent and was not properly before the Court as the Supreme Court Rules make no provision for such an application and there were other readily available means by which the Public Prosecutor’s grievances could have been raised; and in the event of doubt, he should have applied for directions.

(2) None of the grounds put forward by the Public Prosecutor for dismissing the reference were meritorious.

(3) The Court was satisfied that the reference was properly before it and that it was obliged, in accordance with and subject to Section 18(2) of the Constitution and Order 4 of the Supreme Court Rules, to determine the reference.

(4) The application was refused and the Court ordered that it would hear the reference.

Cases cited

The following cases are cited in the judgment:

Belden Namah v Justice Goodwin Poole (2015) N6121
Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Talibe Hegele v Tony Kila (2011) SC1124

APPLICATION

This was an application under Order 13, Rule 16(1) (a) of the Supreme Court Rules to summarily determine a reference made by the National Court, under Section 18(2) of the Constitution, to the Supreme Court.

Counsel:

G J Sheppard & G Purvey, for the plaintiff
R Bradshaw, for the first defendant
L P Kandi, for the second defendant
M Efi, for the third defendant
D Wood, for the fourth defendant

31^st May, 2016

1. BY THE COURT: The Public Prosecutor, Pondros Kaluwin, applies to summarily determine a reference made by the National Court, under Section 18(2) of the Constitution, to the Supreme Court.

2. The National Court, constituted by Koeget AJ, on 5 February 2016, referred the following question to the Supreme Court:

Was the Chief Justice, in the circumstances of this case, “unable to act” by operation of Section 169(4) (c) of the Constitution to effectively exercise his powers, functions, duties and responsibilities under Section 27(7) (e) of the Organic Law on the Duties and Responsibilities of Leadership?

3.
That question was referred by the National Court in the course of proceedings commenced by the Honourable Belden Namah MP, member for Vanimo Green Open, OS (HR) No 8 of 2015. Those proceedings were commenced as an application for enforcement of human rights pertaining to decisions of various persons, including a leadership tribunal, concerning him, under the Organic Law on the Duties and Responsibilities of Leadership.

PARTIES

4. Mr Namah is the plaintiff in the National Court proceedings. The other parties are:

First defendant : Leadership Tribunal
Second defendant : Public Prosecutor
Third defendant : Ombudsman Commission
Fourth defendant : Chief Justice

5. Those parties are also parties to the Supreme Court reference. For the sake of convenience, it has been decided that the parties will continue, in the Supreme Court proceedings, to carry the descriptions ascribed to them in the National Court proceedings.

THE APPLICATION

6. The second defendant makes the application to dismiss the reference under Order 13, Rule 16(1) (a) of the Supreme Court Rules, which states:

The Court may summarily determine a matter ... on application by a party.

GROUNDS

7. The grounds on which the application is based are set out in the application. They are not concisely stated (as the application reads more like a submission than an application) and it is necessary to summarise the grounds, as we understand them:

1. the reference fails to comply with Order 4, Rule 4 of the Supreme Court Rules;
   
2. the question referred is trivial, vexatious and hypothetical;
   

100. the proceedings from which the reference arose are an abuse of process;
     

4. the question referred raises an issue that is non-justiciable;
   
5. the National Court erred by failing to find sufficient facts on which to base the question;
   
6. the National Court’s decision to refer the question was made contrary to the principles of natural justice.
   

8. The Public Prosecutor argues that the consequence of one or more of those grounds being sustained would be the summary dismissal of the reference.

POSITIONS OF THE PARTIES

9. The application is supported by the first defendant (the tribunal) and the third defendant (the Ombudsman Commission) and opposed by the plaintiff (Mr Namah). The Chief Justice (the fourth defendant) has adopted a neutral position.

DECISION

10. After hearing extensive oral and written submissions yesterday, we have decided to dismiss the application, for three reasons.

1 APPLICATION NOT PROPERLY BEFORE THE COURT

11. The application has been made under a provision of the Supreme Court Rules that does not mention or envisage this sort of application. The application has the character of both, on the one hand, an objection to competency of the reference and, on the other hand, a challenge to the decision of the National Court to make the reference.

12. To the extent that is an objection to competency, the Supreme Court Rules make no provision for such an objection. It is not up to this Court to make such a provision, where none exists (Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886).

13. To the extent that the application is a challenge to the National Court’s decision, the grounds of challenge should have been made the subject of an appeal or application to seek leave to appeal under the Supreme Court Act. Alternatively, an application for leave to seek review under Section 155(2) (b) of the Constitution could have been made.

14. This is a novel application. We know of no other case in which a party to a Section 18(2) Supreme Court reference has made an application to dismiss the reference before it is heard. The best and safest course of action for the Public Prosecutor would have been to apply for directions under Section 185 of the Constitution and/or Order 11, Rule 9 of the Supreme Court Rules (Talibe Hegele v Tony Kila (2011) SC1124).

15. Section 185 of the Constitution 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.

16. Order 11, Rule 9 of the Supreme Court Rules 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.

17. Neither of those ways of seeking clarification of the correct procedure has been invoked. No appeal and no review is before us. The application is not properly before us. It is an incompetent application and must be dismissed, for that reason alone.

2 GROUNDS NOT MERITORIOUS

18. None of the grounds put forward by the Public Prosecutor are meritorious. We comment on them as follows.

1. Reference fails to comply with Order 4, Rule 4 of the Supreme Court Rules
   

19. Order 4, Rule 4 is in these terms:

A reference under Constitution Section 18(2) shall state—

(a) the question to be referred and such facts as are admitted or found by the Judge of the National Court and are necessary for the proper consideration of the question; and

(b) if the facts referred to in sub-rule (a) cannot be conveniently and shortly stated, the findings of the Judge of the National Court shall be annexed to the reference; and

(c) where a question involves the pleadings before the court or tribunal from which it is referred, then so much of the pleadings shall be set out in the reference as raise the question.

20. We are satisfied that the reference meets all these requirements. Ground (a) is rejected.

2. Question referred is trivial, vexatious and hypothetical
   

21. We are not satisfied, at this stage, that the question referred is trivial, vexatious or hypothetical. We point out that it might transpire, during the course of hearing and determining the reference, that we become so satisfied, in which case it might be necessary to invoke Order 4, Rule 18 of the Supreme Court Rules, which states:

The Court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion [of the Court] the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

22. Ground (b) is rejected.

100. Proceedings from which the reference arose are an abuse of process
     

23. There was quite a deal of argument before us to the effect that the National Court proceedings are an abuse of process and that the referral of a constitutional question has exacerbated the abuse. We do not consider that the alleged abuse of process has any bearing on the legal correctness of the decision of the National Court to make the reference.

24. We say in passing that the defendants appear to have had ample opportunity in the National Court to raise the issue of abuse of process. No determination has been made by that Court that the proceedings are an abuse of its processes. We are not in a position to decide the issue. Ground (c) is rejected.

4. Question referred raises an issue that is non-justiciable
   

25. The defendants argue that the reference invites the Supreme Court to determine a question that is non-justiciable. The argument is based on the full text of Section 169, which states:

(1) An office of Chief Justice of Papua New Guinea is hereby established.

(2) The Chief Justice shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Minister responsible for the National Justice Administration.

(3) In addition to his other powers, functions, duties and responsibilities, the Chief Justice, after consultation with the other Judges, is responsible for the organization of the affairs and the administration of the business of the Supreme Court and the National Court (other than, except to the extent allowed by or under an Act of the Parliament, matters relating to the National Public Service).

(4) Where—

(a) there is a vacancy in the office of Chief Justice; or

(b) the Chief Justice is absent from the country or is absent from duty; or

(c) the Chief Justice is unable or unavailable to act; or

(d) the Chief Justice so directs,

the powers, functions, duties and responsibilities (other than as acting Governor-General) of the Chief Justice may be exercised and performed by the next most senior Judge who is available.

(5) The question, whether the occasion for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge under this section has arisen or has ceased, is non-justiciable.

26. The defendants rely on Section 169(5) to argue that this Court is not capable of answering and has no jurisdiction to answer the question referred. We are not, at this stage, persuaded that that is the case. It would appear, in light of the submissions of Mr Sheppard (for the plaintiff) that Section 169(5) has quite a limited operation. The defendants can argue this point further, if necessary, at the hearing of the reference. Ground (d) is rejected.

5. National Court erred by failing to find sufficient facts on which to base the question
   

27. The defendants argue, based on the cases referred to, on this point, in Belden Namah v Justice Goodwin Poole (2015) N6121, that If the National Court is to make a reference under Section 18(2) it must base the questions it refers on findings of fact and the questions must be relevant to those facts. We agree with that proposition.

28. However, we do not agree that the National Court has to as a matter of law conduct a formal hearing to assess and find facts. That is a desirable course of action but is not constitutionally essential. In this case the primary Judge has at paragraphs 2(a) to (e) of the reference, made a sufficient and concise statement of facts, tantamount to formal findings of fact.

29. We take into account also that this appears to be a simple and straightforward reference, constituted by only question, so the statement (and findings) of fact, needed only to be brief. Ground (e) is rejected.

6. National Court’s decision to refer the question was made contrary to the principles of natural justice.
   

30. The defendants argue that they were not given a proper opportunity to be heard on the question of whether there should be a reference made to the Supreme Court. They assert that the primary Judge, egged on by the plaintiff’s counsel, made the decision impulsively, without considering submissions of the defendants.

31. We are not persuaded that his Honour was making a decision that would have a bearing on the defendants’ rights or interests in such a way that it was necessary to give them the opportunity to be heard. If it appears clear to the National Court that it is necessary to refer a constitutional question to the Supreme Court, it will often be unnecessary to conduct a formal hearing on that point. In the present case, we cannot see that the defendants’ interests have been materially prejudiced or that any procedural unfairness has occurred. Ground (f) is rejected.

32. All grounds of the application are rejected, and this is another reason for refusing the application.

3 REFERENCE PROPERLY BEFORE THE COURT

33. We are satisfied that the reference is properly before us and that we are obliged, in accordance with and subject to Section 18(2) of the Constitution and Order 4 of the Supreme Court Rules, to determine the reference.

CONCLUSION

34. The application is refused as it is procedurally defective and without merit. We are satisfied that the reference is properly before us and should be heard as soon as practicable. The question of costs of the application is adjourned.

ORDER

(1) The application by the Public Prosecutor, filed 1 March 2016, under Order 13, Rule 16(1) (a) of the Supreme Court Rules, to summarily determine the reference, is refused.

(2) The Court will proceed to hear the reference in accordance with its directions.

(3) The question of costs of the application will be addressed in the course of hearing the reference.

Judgment accordingly,

_____________________-----------------------______________________________________
Young & Williams Lawyers: Lawyers for the plaintiff
Bradshaw Lawyers: Lawyers for the first defendant
M.S Wagambie Lawyers: Lawyers for the second defendant
Counsel to the Commission: Lawyer for the third defendant
Ashurst Lawyers: Lawyers for the fourth defendant