Independent State of Papua New Guinea v Charlie [2019] PGSC 78; SC1836 (27 June 2019)

SC1836

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 36 of 2018

BETWEEN:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
First Appellant

AND:
SOLOMON KANTHA
acting in his capacity as the Chief Migration Officer
Second Appellant

AND:
PAPUA NEW GUINEA IMMIGRATION
AND CITIZENSHIP AUTHORITY
Third Appellant

AND:
DANIEL FRANK CHARLIE
Respondent

Waigani: Gavara Nanu J., Hartshorn J. Polume Kiele J.
2019: June 25^th, 27^th

APPEAL

Cases Cited:

Gabriel Yer v. Peter Yama (2009) SC990
John Momis v. Attorney General [2000] PNGLR 109
Logona v. Roaveneo (2016) SC1498
PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681

Counsel:

Mr. G. Akia, for the Appellants
Ms. E. Wurr and Ms. J. Kambao, for the Respondent

27^th June, 2019

1. BY THE COURT: This is a decision on an appeal from National Court orders that were made in an application for the enforcement of human rights. The orders appealed are that, the State/appellants unlawfully allowed the respondent into Papua New Guinea, that he be provided immediate humanitarian support and that reasonable compensation be paid for five weeks accommodation.

Background

2. The respondent claims that he was born on Daru Island in 1973, that before the independence of Papua New Guinea his family moved to Darnley Island, Torres Strait, Queensland, Australia, and that he was aged about two years at that time.

3. The respondent further claims that following him being convicted of crimes in Australia and serving terms of imprisonment, he was flown from Australia to Papua New Guinea without any valid documentation and was granted a 30 day visa. He has no family in Port Moresby and has been living on its streets. He seeks by originating summons orders that amongst others, he is not an automatic citizen of Papua New Guinea and that he has a right to residence in Australia.

Appeal

4. The first ground of appeal is that the primary judge fell into error by granting substantive relief which was sought in the originating summons, after hearing and then ruling on a notice of motion, contrary to Order 4 Rule 49(9) National Court Rules.

Consideration

5. The first order made by the primary judge after hearing argument on the notice of motion was:

“Pursuant to section 57(1) and (3) of the Constitution the Court hereby declares that the Defendants unlawfully allowed the Plaintiff entry into the Country, Papua New Guinea.” ( first order)

6. The first order grants the relief sought in paragraph two of the originating summons and in paragraph one of the notice of motion. Order 4 Rule 49(9) National Court Rules is as follows:

“9. Motions for interlocutory matters only.

Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.”

7. The first order grants substantive relief. By this relief being sought in paragraph one of the notice of motion, Order 4 Rule 49(9) is offended as substantive relief cannot be sought in a notice of motion. Further, it has been held to be an abuse of process to seek the same relief which is sought in an originating summons, in a notice of motion: Gabriel Yer v. Peter Yama (2009) SC990 at [45]. See also Logona v. Roaveneo (2016) SC1498; PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681, John Momis v. Attorney General [2000] PNGLR 109.

8. The respondent submitted that at the hearing of the notice of motion, the defendants now appellants, did not raise issue with the primary judge that he could not make substantive orders on the hearing of a motion. There is a reference in the transcript to counsel for the defendants questioning the jurisdictional basis for the orders sought concerning citizenship, but not concerning substantive relief being sought at an interlocutory stage.

9. In this instance however, the court’s jurisdiction to grant substantive orders on the hearing of a motion had not properly been engaged, there not being any reference in the transcript to the reliance by the primary judge upon a provision permitting the court to grant substantive relief at an interlocutory stage (if there is such a provision). Further, given that this court has held that to seek substantive relief in a motion constitutes an abuse of process: Yer v. Yama (supra), we are of the view that the primary judge fell into error in not satisfying himself that he had the power to make the substantive order that he did, in the circumstances that he did, when in hearing a motion only, he did not have such power. Consequently, the appeal should be upheld in regard to the first order that the primary judge granted.

10. As to the second and third orders appealed, they do not in our view comprise substantive relief. They comprise interlocutory and consequential relief and so the first ground of appeal in regard to the second and third orders should be rejected.

11. As to the second ground of appeal, that the primary judge fell into error in granting the orders as the respondent had not invoked the concise jurisdictional basis for the orders to be obtained, contrary to Order 4 Rule 49(8) National Court Rules, as we have already made a determination in respect of the first order, it is only necessary for us to consider the second and third orders. Here, the transcript does not reveal that the appellants had raised with the primary judge the issue of non-compliance with Order 4 Rule 49(8) National Court Rules.

12. During the hearing of the appeal, counsel for the appellants submitted that s.57(1) and (3) Constitution could be relied upon for the grant of interlocutory relief. We are of the view that the primary judge was able to make the second and third orders, as s. 57(1) and (3) Constitution were cited in the notice of motion as the jurisdictional basis for the second order. Further, the third order is in effect, consequential to the second order.

13. Consequently, the second ground of appeal in regard to the second and third orders is rejected. Given the above, the appeal should be dismissed as to the second and third orders.

Orders

14. The Court orders that:

1. The appeal is upheld in part;

2. Paragraph one of the order dated 6^th March 2018 in proceeding OS (HR) 3 of 18, Waigani, is quashed;

3. Proceeding OS (HR) 3 of 18, Waigani, is remitted back to the National Court for further hearing;

4. The costs of and incidental to this appeal shall be costs in the cause.
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Office of the Solicitor General: Lawyers for the Appellants Office of the Public Solicitor: Lawyers for the Respondent