Gamato v Augerea [2019] PGSC 46; SC1811 (17 May 2019)

SC1811

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 185 of 2018

BETWEEN:
PATALIAS GAMATO & ELECTORAL COMMISSION OF PNG
Appellant/ Applicant

V

IAN AUGEREA – In His Capacity As Registrar Of National Court And The Supreme Court
Respondent

Waigani: Salika, CJ
2018: 04^th December
2019: 17 May

SUPREME COURT – Practice and Procedure – Application for leave to appeal – Standing of Registrar of National and Supreme Court- to invoke provision of S23 of Constitution – Gamato found to have breached S 50 and 57 of the Constitution.

Cases Cited:

Matiabe Oberia v Michael Charlie (2005) SC 801

Counsel

Ms. A. Kimbu, for the Appellant
Mr. D. Woods, for the Respondent

17^th May, 2019

1. SALIKA CJ: INTRODUCTION: This is an application for leave to appeal. I heard this application on 4 December 2018 and the matter has been pending since then. After I heard the matter, I do not understand how I have allowed time to pass without dealing with the application. The ruling on the application is therefore now overdue by 7 months.
   

Facts

2. On 2 November 2018, the National Court found the First Applicant in breach of Sections 50 and 56 of the Constitution and then invoked S 23 of the Constitution to impose a penalty on him. The Court ordered for Mr. Gamato to be heard on penalty on 6 November 2018.
   
3. On 6 November 2018 all parties appeared before the National Court and on that day the learned trial judge delivered her written decision and distributed copies of the decision to all parties involved in the matter. The matter was then adjourned to 26 November 2018 for hearing on penalty.
   
4. This application for leave to appeal was failed on 26 November 2018 and heard on 4 December 2018.
   

Grounds for Leave

5. The applicant argued that while he was found to have acted in defiance of the decisions of:
   
   1. The Supreme Court dated 29 August 2016 in Reference No 3 of 2013: the Western Highlands Provincial Executive v Andrew Traven and Wai Rapa
   2. The order of the National Court made on 18 May 2016 Punda v Wiyo and others ;and
   3. Orders made on 18 May 2016 Waitipe & Ors v Andrew Traven &Ors

he was never charged for what he has been now “found guilty” of. He argued that no statement of charge was filed and served on him for such non compliance, a requirement under Order 14 Rule 43 of the National Court Rules.

6. The principles on an application for leave to appeal are stated by the Supreme Court in Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC 801 they are set out as follows:
   
   1. Whether there is an arguable or prima facie case or whether it has been demonstrated that the trial judge was wrong
   2. Whether the applicant has other recourse in the Court below
   3. Whether the ruling was within the discretion of the Court and whether it has been shown that the Courts exercise of discretion was manifestly unreasonable and exercised on a wrong principle of law
   4. Whether the decision has any impact on the final determination of the issue between the parties and whether it affects the primary rights of the parties or prevent the determination of the issue.
   5. Whether substantial injustice will be caused if the decision was allowed to stand.
   6. Whether it has been shown that the trial process should be interrupted by an appeal.
      
7. I have read the case authorities relied on by the respondents in this case and the submissions. The respondents’ argument, with respect, is very strong. The applicants’ arguments, with respect too are very strong. I will not enter the debate regarding the merits of each of the parties positions. I will instead allow the parties to argue the issues before the full Court.

8. One reason why I will grant leave is on the question of whether the Registrar of the National and Supreme Courts has a standing to enforce the rights of the people of the Southern Highlands Province, Jiwaka Province, Eastern Highlands Province and Western Highlands Province or should electors, voters and persons who wish to stand for public office from those provinces, take the initiative themselves to enforce their own constitutional rights. Why is the Registrar of the National Court and the Supreme Court involved in these proceedings? Whose interest is he pursing here? What is the role of the Registrar? Was he authorized by the Chief Justice or a Judge to take this action? Who is paying for his legal cost? Should National Judicial Service be paying for the Legal Costs of the Registrar?
   
9. The Registrar is not a Constitutional Officer nor a Law Officer. He is responsible to the Chief Justice for the registry services of the National Court and the Supreme Court. Who gave him the authority to pursue this matter? Whose agenda is he pursuing here? The Registrar is subject to the direction and control of the Chief Justice and other judges. Section 7 of the National Court Act specifically says:

S7 (1) The Judicial and Legal Services Commission may appoint persons to the following offices of the Court:–

(a) Registrar;

(b) Deputy Registrar;

(c) Associates to the Judges of the Court;

(d) such other offices as the Judicial and Legal Services Commission considers necessary for the proper administration of justice by the Court.

(2) A person appointed under Subsection (1) is an officer of the Court and is not, while acting as such, subject to direction or control by any person other than the Chief Justice and the other Judges.

(3) The terms and conditions of service of a person appointed under Subsection (1) shall be determined by the Judicial and Legal Services Commission, after consultation with the Departmental Head of the Department responsible for personnel management matters within the National Public Service.

10. A question arises here: was the Registrar of the National Court and the Supreme Court directed by the Chief Justice or a Judge to pursue this matter after the Supreme Court had given an advisory opinion on the matter?
    
11. I have raised many questions in this short ruling which need answers and I will allow the full Court to answer those questions.

_______________________________________________________________
Kimbu & Associates Lawyers: Lawyers for the Applicant
Ashurst PNG: Lawyers for the Respondent