Kramer v O'Neill [2020] PGSC 31; SC1940 (1 May 2020)

SC1940

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 10 OF 2020

HON BRYAN KRAMER MP
Applicant

V

HON PETER O’NEILL MP,
PRIME MINISTER OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J
2020: 30^th April, 1^st May

PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory judgment of National Court –Supreme Court Act, s 14(3) – objection to competency of application for leave – whether National Court judgment was a case of granting an injunction – whether s 14(3)(b)(ii) applied, making leave unnecessary – whether an unnecessary leave application is incompetent.

The applicant applied for leave to appeal against an interlocutory judgment of the National Court, consisting of ten orders. At the hearing of the leave application, the respondent made an oral objection to competency of the leave application, arguing that it was unnecessary as the interlocutory judgment of the National Court was an injunction and therefore leave to appeal was not required by virtue of s 14(3)(b)(ii) of the Supreme Court Act, which states: “No appeal lies to the Supreme Court without leave of the Supreme Court ... from an interlocutory judgement made or given by the National Court except ... in cases of granting or refusing an injunction ...”.The respondent further argued that if the application for leave to appeal is ruled to be unnecessary, it is incompetent and ought to be summarily dismissed. The Court heard the parties on the objection, and also heard the parties on the merits of the leave application and reserved a ruling.

Held:

(1) Though the interlocutory judgment of the National Court contained one discrete declaration and two directions to a non-party, the bulk of it was in the nature of an injunction that restrained the applicant and other persons as to certain matters relating to the National Court proceedings.

(2) Though the interlocutory judgment of the National Court was given on the own motion of the Court, it was a ‘case of granting an injunction’ for the purposes of s 14(3)(b)(ii) of the Supreme Court Act.

(3) Leave to appeal against that judgment, to the extent it was an injunction, was not required.

(4) An unnecessary leave application is incompetent and must be dismissed.

(5) The objection to competency was upheld and the application for leave was dismissed with costs.

Cases Cited

The following cases are cited in the judgment:

Paul Bari v John Raim (2004) SC768
Pere v Ningi (2003) SC711
Ramu Nico Management (MCC) Ltd v Eddie Tarsie [2010]1 PNGLR 88
Rea Joseph v Manau Sereva (2011) SC1152
Steven Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92
Turia v Nelson (2008) SC949

OBJECTION AND APPLICATION

This was an objection to competency of an application for leave to appeal against an interlocutory judgment of the National Court, which application was heard on its merits.

Counsel

S Dewe & B Kumo, for the Applicant
D Kipa, for the Respondent

1^st May, 2020

1. CANNINGS J: The applicant, Hon Bryan Kramer MP, applied for leave to appeal against an interlocutory judgment of the National Court of Kandakasi DCJ, consisting of ten orders, dated 5 March 2020. At the hearing of the leave application, the respondent, Hon Peter O’Neill MP, made an oral objection to competency of the leave application, arguing that it was unnecessary as the interlocutory judgment of the National Court was an injunction and therefore leave to appeal was not required by virtue of s 14(3)(b)(ii) of the Supreme Court Act, which states:

No appeal lies to the Supreme Court without leave of the Supreme Court ... from an interlocutory judgement made or given by the National Court except ... in cases of granting or refusing an injunction.

2. The respondent further argued that if the application for leave to appeal is ruled to be unnecessary, it is incompetent and ought to be summarily dismissed.

3. I heard the parties on the objection, and also on the merits of the leave application and reserved a ruling. Two questions arise. First, should the objection to competency be upheld, and the application for leave summarily dismissed? If not, should leave to appeal be granted?

4. Before addressing those issues, I set out the orders of the National Court that are the subject of the application for leave.

THE ORDERS OF 5 MARCH 2020

5. In the course of defamation proceedings, WS No 184 of 2019, commenced by the respondent against the applicant, the primary Judge made these orders on the own motion of the Court:

ORDERS

1. Pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, and in accordance with Section 196 of the Constitution and the Supreme Court Decision on the Supreme Court Reference No. 1 of 1982: in the Matter of a Board of Inquiry appointed under Public Service (Interim Arrangements) Act 1973 Re Alleged Disciplinary offences in Office Mr Philip Bouraga [1982] PGSC 11; [1982] PNGLR 178 (23 March 1982) (Re Philip Bouraga) the Minister for Police does not have the power of command or direction or control over the Commissioner of Police or any other police officer such that he may lawfully issue orders requiring advice, briefings and information generally, including but not limited to daily operational matters, transferring of police officers, complaints against persons, ongoing investigations, arrests and charging of persons, by reason of which the Defendant in his capacity as the Minister of Police shall act strictly in accordance with Section 196 of the Constitution as interpreted and clarified by the Supreme Court decision Re Philip Bouraga.
   
2. Pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, and in accordance with Section 196 of the Constitution as interpreted and clarified by the Supreme Court decision in Re Philip Bouraga the Minister for Police Hon Bryan Kramer MP be restrained from:
   
   1. requiring advice, briefings and information generally, including but not limited to daily operational matters, transferring of police officers, complaints against persons, ongoing investigations, arrests and charging of persons;
      
   2. Issuing commands, directives and orders to the Police Commissioner or any police officer of the Royal Papua New Guinea Constabulary, including but not limited to requiring complaints to be investigated, requiring persons to be arrested and charged;
      
   100. directing transfer of police personnel and interfering with the organisational structure and chain of command of the Royal Papua New Guinea Constabulary;
        
   4. publishing details by written or spoken word of any police operational or organizational matters in any form including social media and mainstream media, including but not limited to detail of investigations, current complaints, arrests of persons, charges of persons and movement of police personal operational or organizationally; and
      
   5. from discussing, instructing on, directing procedure of, or requiring the details of matters concerning Hon. Peter O’Neill and/or any of the allegations concerning Peter O’Neill as published by Hon. Brian Kramer on social media with Police Commissioner or with any other police officer of the Royal Papua New Guinea Constabulary.
      
3. Pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, and in accordance with Section 196 of the Constitution as interpreted and clarified by the Supreme Court decision in Re Philip Bouraga the Minister for Police Hon Bryan Kramer is restrained from receiving complaints to the Police from the public through Facebook or through any other source, and he shall remove any existing Facebook posts which solicit such complaints from the Public and should any member of the public attempt to use him as the forum, the Minister shall immediately inform such member of the public to attend to the nearest police station and lay their complaint.
   
4. The terms of this order applies to all other cases in respect of which police are required to carry out their constitutional powers and functions.
   
5. Except only to report to Police and relevant authorities like the Ombudsman Commission with the necessary and relevant supporting evidence, the Defendant, his servants, agents, friends, network of social media friends and followers are also restrained from using his own or his servants, agents, friends, network of social media friends and followers, social media pages and any other mode of communication or platforms to comment on how a particular complaint is been or should be investigated, at what stages they are at, when an accused person will be arrested and how an accused person will or should be dealt with.
   
6. Except only to report to Police and other relevant authorities like the Ombudsman Commission with the necessary and relevant supporting evidence, the Defendant, his servants, agents, friends, network of social media friends and followers are also restrained from using his own or his servants, agents and friends or followers social media pages and any other mode of communication to comment upon or otherwise publish or give his or her opinion or views that defames or otherwise attacks a person(s) character without first stating the proper context and disclosing and providing the relevant and necessary evidence supporting such publications.
   
7. The Hon Allan Bird the regional member for East Sepik Province is required to appear in Court on 8^th April 2020 at 9:30 am and show cause why he should not be dealt with for contempt of court for raising these proceedings in particular specific orders made by this Court on the floor or Parliament when the matter is and was sub-judice at the relevant time.
   
8. A copy of these orders shall be served on the Hon Allan Bird by the Registrar of the Supreme and National Court or any of the Assistant Registrars in the provincial locations or in Waigani or any member of the police force.
   
9. The substantive matter is adjourned to return on 9 April 2020 at 9:30 am or soon thereafter to confirm the outcome or status of the court ordered mediation.
   
10. The time for the entry of these orders is abridged to take place forthwith upon the court signing them.
    

BY THE COURT

KANDAKASI DCJ

OBJECTION TO COMPETENCY

6. The applicant argued that the objection to competency should be dismissed as this is a case in which leave to appeal is necessary under s 14(3)(b) of the Supreme Court Act. Section 14 states:

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

7. Mr Dewe, for the applicant, submitted that the general rule is that an appeal against an interlocutory judgment requires leave, and that although there are exceptions to that general rule, and one of them is “in cases of granting or refusing an injunction”, this is not such a case, for two reasons. First, not all of the ten items comprising the orders of 5 March 2020 were injunctions, eg No 1 was a declaration and Nos 7 and 8 were directions to a non-party (Hon Alan Bird MP). Secondly, the orders could not be described as an injunction “granted” by the Court, as there was no application for these orders – they were made on the own motion of the Court.

8. Mr Dewe further submitted that if I ruled that this case falls within s14(3)(b)(ii) and that leave is not required, I should not dismiss the application, but rather exercise the discretion of the Court to allow the application to be regarded as an appeal.

9. As to whether the orders of 5 March 2020 are an injunction, I consider that they are. Though the ten items comprising the orders containa discrete declaration, as distinct from an order, (order No 1), and two directions to a non-party (Nos 7 and 8), and two procedural directions (Nos 9 and 10), the bulk of the orders are in the nature of an injunction: in particular orders 2, 3, 4, 5 and 6.

11. No 2 restrains the applicant from engaging in certain activities including requiring advice, issuing commands, directing transfer of police, publishing details of operational matters and from discussing matters concerning the respondent.
    
12. No 3 restrains the applicant from receiving complaints about Police from the public through Facebook or through any other source, and orders him amongst other things to remove any existing Facebook posts which solicit such complaints from the public.
    
13. No 5 restrains the applicant and other persons from using social media to comment on how a particular complaint is being or should be investigated.
    
14. No 6 restrains the applicant and other persons from using social media to comment upon or otherwise publish any opinion that defames or attacks a person’s character without first stating the proper context and disclosing and providing the relevant and necessary evidence supporting such publications.
    
15. Those orders are so extensive in scope and detailed and mandatory and prohibitive in their terms as to confer on the whole of the orders the character of an ‘injunction’, and to make this a ‘case of an injunction’ under s 14(3)(b)(ii).
    
16. As to the significance of the orders of 5 March 2020 being made on the own motion of the Court, I consider that that mode of making the orders does not take them outside the scope of s 14(3)(b)(ii). I can see the literal sense in the argument of Mr Dewe. To grant an injunction implies that the injunction follows an application or motion (and here there was none); and this is to be distinguished from issuing an injunction on the own motion of the Court(which is what happened here). However, to draw such a fine distinction between the circumstances in which orders are made would be to lose sight of the purpose of the exceptions, in s 14(3)(b), to the general rule that appeals against interlocutory judgments require leave.
    
17. Section 14(3)(b) recognises that there are certain types of interlocutory judgments that are so significant in their nature and effect that leave to appeal against them is not required. The purpose of s 14(3) was explained in those terms by the Supreme Court (Davani J, Hartshorn J, Sawong J) in Ramu Nico Management (MCC) Ltd v Eddie Tarsie [2010] 1 PNGLR 88:
    

The occasions prescribed in s 14(3)(b)(i) and (ii) Supreme Court Act where leave to appeal an interlocutory judgment is not required, are occasions when the relief appealed, although interlocutory, has substantive effect: liberty of a subject, custody of an infant, grant or refusal of an injunction and the appointing of a receiver.

As the effect is substantive, lawmakers in various jurisdictions have acted to ensure that there remained an automatic right of appeal for such occasions. In this regard we note that our s 14(3) Supreme Court Act has its origins in the English Supreme Court of Judicature (Procedure) Act 1894.

To require an appellant to seek leave to appeal an order that sets aside or varies or continues an injunction seems to us to defeat the purpose or the intention of the subsection.

18. In that case the question was whether an appeal to the Supreme Court against an order of the National Court that refused to set aside an interim injunction, required leave. The respondents argued that it did, and that the appeal made without leave against the refusal to set aside the injunction was incompetent. The Court refused the objection and held that leave in such circumstances was not necessary. A purposive approach to interpretation of 14(3)(b)(ii) was taken: the purpose was to put orders relating to interlocutory injunctions in a special category, so that leave to appeal against such orders is not required.
    
19. I follow that approach here. The orders of 5 March 2020 are in the nature of an interlocutory injunction and that is sufficient to bring the orders within the scope of s 14(3)(b)(ii). This was a ‘case of granting an injunction’. Leave to appeal against those orders was not required. It was unnecessary. The applicant could have appealed as of right under s 14(1) of the Supreme Court Act.
    
20. Does this mean that the leave application is incompetent? Mr Dewe submitted, no, an unnecessary leave application does not make the application incompetent. The Court has a discretion to exercise. It has the power to treat the unnecessary leave application as an appeal and allow the appeal to proceed on that basis. Mr Dewe referred to two decisions, Pere v Ningi (2003) SC711 and Turia v Nelson (2008) SC949, which, following other Supreme Court decisions in which this approach was favoured, allowed unnecessary leave applications (which had been filed within 40 days after the National Court judgment sought to be appealed from) to proceed; or at least stated that unnecessary leave applications ought not to be summarily dismissed as incompetent. Mr Dewe pointed out that I was a member of the Court (Kirriwom J, Cannings J, Yagi J) in Turia v Nelson, in which it was stated:
    

The first respondent could perhaps have argued that the effect of Salika J’s judgment was to grant an injunction (as his Honour ordered Mr McKay to vacate the property within 14 days and permitted Mr Nelson to move in); and that being the case, leave was not required, by virtue of Section 14(3)(b)(ii). It is clear that an appeal from an interlocutory judgement granting an injunction does not require leave (Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279).

However, even if that argument had been raised and we had upheld it, it would still not have made the application for leave incompetent. Nor would it have rendered the appeal incompetent. If an appellant files an application for leave to appeal within 40 days, it does not necessarily matter if it is later realised by the parties or ruled by the court that leave was not required. In the ordinary course of events the court will not order that such an application or any subsequent notice of appeal is incompetent. Rather, the court would grant leave to file a notice of appeal outside the 40-day period (Boyepe Pere v Emmanuel Ningi (2003) SC711, Oio Aba v MVIL (2005) SC779, The State v John Talu Tekwie (2006) SC843).

21. Those authorities have, however, in effect, been overturned by the subsequent decisions of a five-Judge Supreme Court bench (Cannings J, Manuhu J, Gabi J, Hartshorn J, Yagi J) in two cases decided on the same day, 6 December 2011: Steven Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92 and Rea Joseph v Manau Sereva (2011) SC1152. In those cases, the conflicting lines of authority (eg inPaul Bari v John Raim (2004) SC768 it was held that an unnecessary leave application is incompetent), were discussed,and the confusion that existed as to the effect of an unnecessary leave application was acknowledged. The Court considered that it was desirable to make the position clearand the position reached was simply this: an unnecessary leave application is incompetent and must be dismissed.
    
22. I follow that approach here. The applicant’s leave application is incompetent and must be dismissed.
    

CONCLUSION

23. As the leave application is dismissed, it is unnecessary to deal with its merits. If the applicant remains concerned about the effect of the orders of 5 March 2020 on his ability to discharge his powers, functions, duties and responsibilities as Minister for Police, he might consider making an application to the National Court to set aside or vary the orders or making an application under s 155(2)(b) of the Constitution for leave to seek review by the Supreme Court. Those are matters for the applicant.
    
24. As to costs, Mr Dewe submitted that if I dismissed the application for leave as incompetent I should allow the parties to bear their own costs because of the confusion and uncertainty over the correct procedure. However, I am persuaded by the submission of Mr Kipa, for the respondent, that in fact, the situation is neither confusing nor uncertain. The procedure that ought to have been invoked was clear. In these circumstances, costs will follow the event.
    

ORDER

(1) The application for leave to appeal is dismissed as being unnecessary by virtue of s 14(3)(b)(ii) of the Supreme Court Act and therefore incompetent.

(2) The applicant shall pay the respondent’s costs of the application, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
__________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Twivey Lawyers: Lawyers for the Respondent