SC1779

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF 6 of 2017

SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19
REFERENCE BY THE NEW IRELAND PROVINCIAL EXECUTIVE

BETWEEN:
MINERAL RESOURCE AUTHORITY
First Intervener

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Intervener

AND:
ATTORNEY GENERAL AND PRINCIPAL
LEGAL ADVISOR
Third Intervener

Waigani: Kirriwom J, Hartshorn J, Nablu J
2019: 25th & 27th February

Application to set aside a referral for summary determination

Cases Cited

SCR No 2 of 1981 [1981] PNGLR 150
Ume More v. UPNG (1985) 401
Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 
Behrouz Boochani v. The State (2017) SC1566

Counsel:

Mr. N. Yalo, for the Referrer
Ms. E. Heagi, for the Second Intervener

27th February, 2019

1. BY THE COURT: The referrer, the New Ireland Provincial Executive, applies to set aside an order made by a single Supreme Court Judge to list this Reference for a summary determination hearing (summary determination referral).

Background

2. The referrer seeks this court’s opinion by Special Reference in regard to amongst others, the Constitutional right of a Provincial Government to be consulted concerning the development of mineral and forest resources.

This application

3. The referrer relies upon s. 155(4) Constitution to set aside the summary determination referral. The second intervener, the only other party that made an appearance before the court on the hearing of this application, did not take a position on the application.

4.      Section 155 (4) is as follows:
“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

5.      Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401 at 402.
6. In Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 at [11], reproduced by Salika DCJ (as he then was) and Hartshorn J in Behrouz Boochani v. The State (2017) SC1566 at [39], it was stated:
“6.      Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):
“The provision under reference…. does not…. vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”
7.      We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:
“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
3. Where remedies are already provided for under other law, the provision does not apply;
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.” 
8. We respectfully agree with the views expressed in Powi (supra).”

7. In this instance the summary determination referral sought to be set aside is a referral by a Judge of the Supreme Court for summary determination: Order 13 Rule 16(1)(b) Supreme Court Rules. A “matter” referred to in Order 13 Rule 16(1), is defined as including a proceeding on the “General List” and the General List means the list of all matters filed in the Supreme Court Registry: Order 13 Rule 1 Supreme Court Rules.

8. Order 11 Rule 25, a Rule of General Application, provides for amongst others, a party dissatisfied with a direction or order by a Judge, “under these rules”. 

9. In our view, Order 11 Rule 25 provides the jurisdiction for the order and the remedy that the referrer seeks. As there is therefore, such a Rule upon which the referrer should have relied, the referrer should not have relied upon s. 155(4) Constitution: Powi (supra). Consequently, the application of the referrer filed 29th August 2018 should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

10. The Court orders that:

a)	The application of the referrer filed 29th August 2018 is dismissed;

b)	No order as to costs. 
__________________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Referrer                                                          
Ashurst Lawyers: Lawyers for the Second Intervener