Special Reference by the Honourable Davis Steven [2020] PGSC 129; SC2041 (1 December 2020)

SC2041

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF 4 OF 2020 (IECMS)

SPECIAL REFERENCE PURSUANT TO CONSTITUTION
SECTION 19

SPECIAL REFERENCE BY THE HONOURABLE DAVIS
STEVEN, LLB MP, ATTORNEY GENERAL OF PAPUA NEW
GUINEA and Principal Legal Adviser to the
National Executive Council

Waigani: Salika CJ, Manuhu J, Hartshorn J, Makail J, Anis J
2020: 27^th November, 1^st December

Application for a stay of two final Supreme Court judgments and orders pending the determination of this Special Reference

Cases Cited:
Reference by the Ombudsman Commission (2010) SC1027

Counsel:

Mr. L. Kandi, for the Referrer
Mr. M.M. Varitimos QC, Mr. D. Wood and Mr. L. Evore, for the Intervener

1^st December, 2020

1. SALIKA CJ: I have had the opportunity to read the draft decisions of Hartshorn J and Makail J. I agree with the reasoning, observations and conclusions contained therein and have nothing further to add.

2. MANUHU J: I agree with the orders proposed.
3. HARTSHORN J: This is a decision on a contested application for a stay. The application is made by the referrer. The referrer is the Attorney General of Papua New Guinea and the Principal Legal Adviser to the National Executive Council (Attorney General). He seeks to stay the judgments and orders (orders) in two Supreme Court proceedings, referred to as SCM12 and SCM13 pending the determination of this Special Reference. The referrer contends that the stay is necessary to preserve the substantive rights of the Executive arm of the Government under the Constitution, otherwise irreparable prejudice would be occasioned to the National Executive Council and the State. The intervener, Barrick (Niugini) Limited (BNL), contends that the application for stay is an abuse of process as amongst others, this is the fourth application by the State or representatives or agencies of the State for such a stay in materially the same terms, the other three applications being unsuccessful.

Background

4. BNL amongst others, operated the Porgera Gold Mine in Enga Province and applied to extend the term of its Special Mining Lease. This application to extend was refused and the National Court dismissed judicial review proceedings brought by BNL challenging this refusal. Before ordering the dismissal, the National Court had refused to allow BNL to amend its judicial review Order 16 statement and had refused to allow certain discovery which BNL had sought. These refusals were successfully appealed by BNL and resulted in the orders in SCM12 and SCM13.

5. The Attorney General has commenced this Special Reference as he contends that it will provide clarity as to the circumstances under which decisions of the National Executive Council and the Head of State may be reviewed and the basis upon which the National Executive Council may assert executive privilege should a litigant seek production of confidential and highly sensitive Cabinet papers or “non justiciable” advice given to the Head of State.

Consideration

6. The referrer seeks a stay pursuant to Order 3 Rule 2(b) Supreme Court Rules. That Rule provides that where any proceedings which relate to a matter or question within the original jurisdiction of the Supreme Court are pending before the Court, an interim order to prevent prejudice to the claims of the parties may be made by a Judge.

7. The referrer seeks to stay the orders in two Supreme Court proceedings, referred to as SCM12 and SCM13. These orders are final orders of each Supreme Court. Each Supreme Court was comprised of three Judges.

8. The referrer contends that this Court has the jurisdiction to grant the stay sought and relies upon Reference by the Ombudsman Commission (2010) SC1027. The intervener contends that this Court does not have the jurisdiction to grant the stay sought and that this application for a stay is an abuse of process. The decision in Reference by the Ombudsman Commission (supra) does not consider whether this Court has the jurisdiction or power to stay a final judgment or order of another Supreme Court. It did hold however, that an application under Order 3 Rule 2(b) must be made before the full Court. This has occurred in this instance.

9. The first issue that arises is whether Order 3 Rule 2(b) Supreme Court Rules is able to provide a Supreme Court with the jurisdiction to be able to stay the final judgment and orders of another Supreme Court.

10. A Rule of Court is not able to provide a jurisdiction to the Supreme Court which the Constitution does not.

11. Pursuant to s. 155 (2) Constitution:

(2) The Supreme Court—

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

12. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.

13. The Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court. As the Supreme Court does not have this jurisdiction or power it does not have the jurisdiction or power to be able to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders.

14. Order 3 Rule 2(b) Supreme Court Rules, to the extent to which it purports to do, is not able to confirm a jurisdiction upon the Supreme Court which conflicts with the jurisdiction conferred upon the Supreme Court by the Constitution and is not able to provide this Court with the jurisdiction to be able to grant a stay of the orders of SCM12 and SCM13. Consequently, the application for stay should be dismissed.

15. Counsel for the referrer only relied upon Order 3 Rule 2(b) Supreme Court Rules as the jurisdiction for the stay application and informed that he abandoned reliance upon s. 5(1) (a) and (b) Supreme Court Act. For completeness however, in my view, none of the other jurisdictional bases referred to in the application being s. 5 (1) (a) and (b) Supreme Court Act, s. 155(4) Constitution and Order 11 Rule 32(1) Supreme Court Rules would have been able to be relied upon successfully. Section 5 (1) (a) and (b) Supreme Court Act may only be relied upon where an appeal is pending - this is not an appeal; s.155(4) Constitution does not confer a primary right and Order 11 Rule 32(1) Supreme Court Rules is concerned with a slip rule application.

16. Further, I concur with counsel for the intervener that apart from there not being any legislative basis to permit a Supreme Court to be able to stay a final judgment or order of another Supreme Court, there is also no jurisprudential basis for such relief to be granted. A final decision of the highest Court in a common law jurisdiction such as Papua New Guinea, is final. This is in the interests of the finality of litigation and in the interests of justice.

17. Given the above, it is not necessary to consider the other submissions of counsel apart from as to costs. Costs should follow the event. The question of whether they should be awarded against the referrer on an indemnity basis should be reserved for further argument.

Orders

18. It is ordered that:

a) The application for stay of the referrer filed 30^th October 2020 is dismissed;

b) The question of whether the costs to be awarded against the referrer should be on an indemnity basis is reserved.

19. MAKAIL J: I have read the draft judgment of Hartshorn J and agree with his reasons and conclusion. I want to make some few observations in relation to what I would describe as a peculiar nature of this Special Reference by the Attorney-General. As is required by Order 4, rule 5 of the Supreme Court Rules (SCR), amongst others, a Special Reference under Section 19 of the Constitution shall state the question, the subject of the Reference and the circumstances in which it arises.

20. I said this Special Reference appeared peculiar because unlike past Special References that I can recall, the circumstances which give rise to this Special Reference are from a legal proceeding commenced in the National Court and were subsequently concluded in the Supreme Court in two separate appeals. The circumstances briefly stated are: the Intervener, Barrick Niugini Limited (Barrick) instituted judicial review proceedings in OS (JR) No. 5 of 2020 to review the decision of the National Executive Council (NEC) not to grant its application to extend the Special Mining Lease (SML) for Porgera Gold Mine.

21. In the interim, Barrick applied for leave to amend the Statement made pursuant to Order 16, rule 3(2)(a) of the National Court Rules which I shall refer to as Order 16 Statement. Its application was declined. It also applied for discovery of certain documents from the NEC and other State agencies which was declined.

22. Barrick appealed the decisions to refuse its applications in two separate appeals. In SCM No. 12 of 2020, Barrick appealed against the decision to refuse its application for leave to amend its Order 16 Statement. In SCM No. 13 of 2020, it appealed against the decision to refuse its application for discovery of documents.

23. On 1^st October 2020, in SCM No. 12 of 2020 the Supreme Court comprising of Kirriwom, Batari and Cannings JJ upheld the appeal, and granted leave to Barrick to amend its Order 16 Statement. On 6^th October 2020, in SCM No. 13 of 2020, the Supreme Court comprising of the same justices upheld Barrick’s appeal and ordered the NEC and State agencies to give discovery of documents. These documents are said to be relevant to the determination of the issues in the judicial review proceeding. Meanwhile, on 1^st September 2020, the National Court summarily dismissed the judicial review proceeding as being an abuse of process.

24. These are the base facts which give rise to this Special Reference, and specifically, the questions posed for the Supreme Court to give an opinion, which amongst others, are:

“(a) On its proper construction and application, does section 86(4) of the Constitution allow a Court to question the validity of the decision made by the Head of State (acting on advice) where there appears to be non-conformity between the gazettal notice (ie. that records the decision of the Head of State) and the decision of the National Executive Council?

(b) If the answer to the questions under paragraph 5(a) is in the affirmative, then under what circumstances can a Court question validity of such decision by the Head of State (acting on advice), noting the doctrine of separation of powers provided under section 99 of the Constitution?”

25. As I understood the submissions of Mr Kandi of counsel for the Referrer, the questions are relevant for future cases because they will clarify the law in Section 86(4) of the Constitution in terms of what documents are discoverable or what are not. It is for this reason that it may defeat the purpose of the Special Reference if there is no order to stay the decisions of the Supreme Court in SCM No.12 of 2020 and SCM No. 13 of 2020. In addition, the judicial review proceeding has been summarily dismissed and it would serve no purpose if the decisions of the Supreme Court will be given effect to. For us to grant an order to stay the decisions would be in order and we can make that order pursuant of our power under Order 3 rule 2(b) of the Supreme Court Rules (SCR) or even under Section 155(4) of the Constitution.

26. If what I heard from counsel is correct, that this Special Reference is for future cases then, there is no need for the Referrer to seek an order to stay the decisions of the Supreme Court in SCM No. 12 of 2020 and SCM No. 13 of 2020. By seeking an order to stay them, therein lies the problem. There is no power conferred on us as a differently constituted Supreme Court to stay decisions of another Supreme Court, which have been concluded. Furthermore, neither have I seen nor has counsel been able to refer us to a case authority either in this jurisdiction or overseas which held that one Supreme Court has power to stay a decision of another Supreme Court. And more to the point, the application for stay will be dismissed for want of jurisdiction.

Orders

27. It is ordered that:

a) The application for stay of the referrer filed 30^th October 2020 is dismissed;

b) The question of whether the costs to be awarded against the referrer should be on an indemnity basis is reserved.

28. ANIS J: I have read the draft decisions of Hartshorn J and Makail J and agree with the reasoning, observations and conclusions contained therein. I agree with the proposed orders and have nothing further to add.

29. BY THE COURT: For the above reasons the Court makes the following order:

1. The application for stay of the referrer filed 30^th October 2020 is dismissed;

2. The question of whether the costs to be awarded against the referrer should be on an indemnity basis is reserved.

__________________________________________________________________
M. S. Wagambie Lawyers: Lawyers for the Referrer
Ashurst PNG: Lawyers for the Intervener