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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV NO 4 OF 2020
HON BRYAN KRAMER MP
Applicant
V
HON PETER O’NEILL MP
Respondent
Waigani: Batari J, Mogish J,
Cannings J, Manuhu J, Makail J
2020: 30th June, 28th September
JUDGMENTS AND ORDERS – interlocutory declarations and orders –whether National Court can make declarations and orders substantive in nature prior to conclusion of proceedings – whether declarations and orders must have connection to cause of action– whether Constitution, s 155(4) authorises orders that do not relate to primary rights of parties.
EVIDENCE – whether National Court can make substantive declarations and orders without conducting a formal hearing on evidence.
CONSTITUTIONAL LAW – human rights – whether order of National Court controlling the use of social media by the Minister for Police and his followers and all members of the public was an infringement of the right to freedom of expression, Constitution, s 46.
PARLIAMENT – privileges of members of the National Parliament – freedom of speech, debate and proceedings – whether the National Court can summon a member of the Parliament to appear before the Court to show cause why the member ought not be dealt with for contempt of court for statements reportedly made by the member on the floor of Parliament – Constitution, s 115.
During the course of defamation proceedings in the National Court, the primary Judge made an order, prior to commencement of the trial, on the own motion of the Court, which declared the nature and extent of the defendant’s powers and functions as Minister for Police. The order also issued injunctions that restrained the defendant and other persons in relation to the discharge of those powers and functions, and summoned a non-party, a member of the Parliament, to appear before the Court to show cause why he should not be charged with contempt of court for statements he had made in the Parliament about the defamation proceedings. The defendant was aggrieved by the order and was granted leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of the decision of the National Court to make the order. The defendant was the applicant in the Supreme Court review. The plaintiff in the National Court became respondent to the application. The applicant relied on nine grounds of review, arguing that the primary judge erred in law, in that: (1) his Honour was (a) functus officio at the relevant time, and (b) made substantive orders, without a proper hearing, prior to commencement of the trial; (2) powers were exercised under s 155(4) of the Constitution without making a determination as to the primary rights of the parties; (3) the order had no foundation in the pleadings and was not related to the cause of action before the Court; (4) the order was made without consideration of the principles governing the granting of interim injunctions; (5) in restraining the applicant in the discharge of his powers and functions as Minister for Police, the primary Judge misinterpreted the leading case, SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178; (6)the order was based on a finding of fact that the applicant had interfered in police operations, which was contrary to the evidence and made without a proper hearing; (7) the particular order that restrained the applicant and others from using social media to comment on the conduct of police investigations of particular complaints was made in breach of the right of the applicant and members of the public to freedom of expression under s 46 of the Constitution; (8) the particular order that restrained the applicant and others from publishing defamatory comments regarding other persons was substantive in nature and prejudged issues of fact and law that could only be properly determined at the trial; and (9) the particular order that summoned a member of Parliament to appear before the Court was made contrary to s 115 of the Constitution, which confers freedom of speech in the Parliament, which cannot be questioned in any court.
Held:
(1) The primary judge was not functus officio. However, there was an error of law by making orders of a substantive nature, on the own motion of the Court, prior to trial. Ground of review 1(a) dismissed. Ground 1(b) upheld.
(2) Orders should only be made pursuant to s 155(4) of the Constitution that follow determination of primary rights and obligations, and here there was no such determination. Ground 2 upheld.
(3) The order had no foundation in the pleadings and there was no direct connection between the cause of action and the order. The question of whether the applicant had acted unlawfully by involving himself in police operations could only be properly heard and determined in separate proceedings. That question was irrelevant to the proceedings before the National Court and ought not to have been made the subject of any orders. Ground 3 upheld.
(4) The order was not made without consideration of the principles governing granting of injunctions. Ground 4 dismissed.
(5) The question of whether the primary judge erred in the interpretation of the principles in Bouraga was not properly before the Supreme Court and it was unnecessary to express any opinion on the competing contentions of the parties. Ground 5 dismissed.
(6) The primary judge erred by making substantial findings of fact, adverse to the applicant, without a proper hearing and without explaining the details of such findings. Ground 6 upheld.
(7) The order that restrained the applicant and others from using social media to comment on police investigations was substantive in nature, unconnected to the cause of action before the National Court, made without a proper hearing, tended to interfere with the rights of all persons in PNG to freedom of expression and of such broad scope and application that it amounted to judicial legislation, made without regard to or compliance with s 46 of the Constitution. Ground 7 upheld.
(8) The order that restrained the applicant and others from publishing defamatory comments regarding other persons was substantive in nature and of such broad scope and application that it amounted to judicial legislation. Ground 8 upheld.
(9) The particular order that summoned a member of Parliament to appear before the Court was made contrary to s 115 of the Constitution, which confers freedom of speech in the Parliament, which cannot be questioned in any court. Ground 9 upheld.
(10) In making the subject order the primary Judge erred in law. It was in the interests of justice, there were cogent and convincing reasons and there were exceptional circumstances warranting a review of the order of the National Court. The order was quashed. The National Court proceedings shall continue. The respondent was ordered to pay the applicant’s costs.
Cases Cited:
Papua New Guinea Cases
The following cases are cited in the judgment:
Avia Aihi v The State (No 1) [1981] PNGLR 81
Avia Aihi v The State (No 2) [1982] PNGLR 44
Bonga v Sheehan [1997] PNGLR 452
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132
Fairweather v Singirok [2013] 2 PNGLR 95
John Momis v Attorney-General [2000] PNGLR 109
Kalinoe v Paraka (2014) SC1366
Kramer v O’Neill (2020) SC1940
NCDC v Yama Security Services (2003) SC707
Public Employees Association v Public Services Commission [1988-89] PNGLR 585
Re Application by Herman Joseph Leahy (2006) SC855
SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319
Sir Julius Chan v Ombudsman Commission [1999] PNGLR 240
South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761
Southern Highlands Provincial Government v Tepi (2020) SC1962
Yer v Yama (2009) SC996
Yetuin v Dominion Information Systems Ltd (2018) SC1729
Overseas Cases
Demetrio v Independent Police Complaints Commission [2015] EWHC 593
APPLICATION
This was an application for review under s 155(2)(b) of the Constitution of an order of the National Court made, prior to trial, in defamation proceedings.
Counsel
S G Dewe & B Kumo, for the Applicant
D P Kipa, for the Respondent
28th September, 2020
1. BY THE COURT: The applicant, Hon Bryan Kramer MP, applies for review of an order of the National Court, constituted by Kandakasi DCJ, made prior to trial in defamation proceedings against Mr Kramer commenced by the respondent, Hon Peter O’Neill MP.
2. The order, made on 5 March 2020 on the own motion of the primary Judge, declared the nature and extent of Mr Kramer’s powers and functions as Minister for Police. His Honour also issued injunctions that restrained Mr Kramer and other persons in the discharge of those powers and functions, and summoned a non-party, a member of the Parliament, to appear before the Court to show cause why he should not be charged with contempt of court for statements he made in the Parliament about the defamation proceedings.
3. Mr Kramer was aggrieved by the order. He first applied for leave to appeal against it. However, the application was dismissed as incompetent (Kramer v O’Neill (2020) SC1940). He later applied for and was granted leave, on 29 May 2020, to apply for review under s 155(2)(b) of the Constitution of the decision of the National Court to make the order.
4. He relies on nine grounds of review, and seeks an order quashing the order of 5 March 2020 in its entirety. Mr O’Neill opposes the relief sought and opposes each ground of review. He also raises a preliminary argument that all grounds of review ought to be summarily dismissed as they rely on arguments not put before the National Court. Before addressing the preliminary argument and determining the grounds of review, we set out the background to the application.
BACKGROUND
5. On 13 March 2019 Mr O’Neill commenced the defamation proceedings against Mr Kramer, WS No 184 of 2019, pleading that on ten separate occasions in the period from 18 October 2018 to 3 February 2020, Mr Kramer unlawfully published defamatory statements about him on various Facebook pages under Mr Kramer’s control. The statement of claim was later amended to plead two additional allegedly defamatory publications made on 18 and 20 May 2019.
6. From the date of commencement of the proceedings until late May 2019 Mr O’Neill was the Prime Minister of Papua New Guinea. Mr Kramer was the member for Madang Open in the National Parliament, and not aligned with the Government. In late May 2019 Mr O’Neill ceased to be Prime Minister. In the Government led by the new Prime Minister Hon James Marape MP, Mr Kramer was in June 2019 appointed as the Minister for Police. He continues to hold that position.
7. On 11 February 2020 Mr O’Neill filed a notice of motion in WS No 184 of 2019, applying for an injunction in the following terms:
Pursuant to Order 12, Rule 1 of the National Court Rules and/or Section 155(4) of the Constitution [and] to the inherent jurisdiction of the Court to take control of its proceedings, the defendant and Minister for Police, Hon Bryan Kramer, the Royal PNG Constabulary, its employees, servants or agents, the Police Commissioner, David Manning or any police officer under his command be restrained from arresting or attempting to arrest the plaintiff, Hon Peter O’Neill MP, pending the hearing and determination of the notice of motion for contempt filed on the 10th of January 2020.
8. That notice of motion was heard by Kandakasi DCJ on 3 March 2020. His Honour ruled on it the following day, 4 March 2020. The application for an injunction to restrain Mr Kramer and the Police from arresting Mr O’Neill was declined as the application did not relate to the subject matter of the defamation proceedings and the primary relief sought by Mr O’Neill, which was damages. His Honour also considered that granting the application would involve the Court in interfering with the exercise by the Police Force of its constitutional functions. His Honour stated:
I accept the defendant’s [Mr Kramer’s] argument and learned counsel for the defendant’s argument that I do not have before me a real summons or any court proceeding, originating proceeding, that raises the issue of interference, or abuse of police powers, or usurping of police powers, in the context of which I am invited to consider the application and grant it. Instead, I am asked to exercise the court’s discretionary powers to intervene in police work in the context of defamation proceedings.
The ultimate relief that will be granted in the end if the plaintiff succeeds is damages for defamation. It does not concern an issue of interference or police being directed or controlled which has the likely effect of certain adverse consequences against the applicant.
So I am finding the process adopted somewhat strange, in that an injunction is being sought on a proceeding that is not necessarily related and directly dealing with the – now established, as I said, by the affidavits of interference by the Minister for Police who is the ... defendant in this proceeding.
9. In the course of his oral ruling, his Honour expressed concern about evidence that Mr Kramer was unduly involving himself as Minister for Police in Police operational matters. His Honour stated:
Section 196 of the Constitution reads and I quote: “The Police Force is subject to the control of the National Executive Council through a Minister.” Subsection(2): “The Minister has no power of command within the Police Force, except to the extent provided for by a Constitutional Law or any Act of the Parliament.” I am not aware if there is any new law that has been passed that allows for a Minister of Police to be directly involved in the investigations into certain complaints from investigations to warrants of arrest, to the actual arrest, laying of charges and prosecutions, those that detail operational matters for the Police Force, Minister has no duty nor responsibility nor power whatsoever in those aspects of police duties. His duties in short only lies in policy matters.
The material I refer to or alluded to simply makes obvious that the Honourable Minister, the defendant in this proceeding has gotten himself into police operations in respect of possible allegations or charges against the former Prime Minister. I will leave for counsel on that finding as to what particular orders I should make as against the Minister for Police. So from hereon after it is clearer as to his duty and responsibility as Police Minister, and for him to keep away from the day to day operations of the Police Force. Police Force are supposed to be functioning without any direction or control whatsoever, except as provided for by the Constitution. And the express provision is by the National Executive Council, unless of course we are not aware there has been a delegation by the National Executive Council....
Now, returning to the case before me, the facts that I have outlined from the affidavit material that has been filed, the Honourable Minister has gone into specifics which seemed to suggest he has gone into operational matters more than policy matters. And as I say, I will come back to counsel as to what should be done in respect of that. ...
What it does – what this application does if it does not succeed as might become clearer now on the application for a blanket injunction against the police from carrying out their work and therefore the Minister as well, it should become clearer that the Minister has no power, no right whatsoever to interfere into the day to day operation of the Police Force, and in particular, he has no power, duty or responsibility to get into the specifics of a particular complaint or complaints. The day he does that he has crossed the line. That is where he needs to keep away. If the law was not clear, the Supreme Court decision in the re Bouraga case made it abundantly clear that he cannot simply do that. And if they do then this application, in my view, would serve as appropriate warnings and signals that his conduct and how he is carrying on, his duties as Minister is being watched. And if after today there is no restraint on the kind of activity I have just articulated earlier goes on, that gives cause and rise to another course of action and I hope that will not be the case....
Formal orders then: Application for injunction in term 3 of the motion filed on 11 February 2020 is declined. Parties are required to return to court tomorrow at 9.30 am to address the court on what orders the court should make in the light of the defendant not respecting the law as represented in Section 196 of the Constitution as elaborated by the Supreme Court decision in SCR 1 of 1982, re Phillip Bouraga.
10. The parties returned to court the next day, 5 March 2020. His Honour began by stating that he intended to make orders that would prevent Mr Kramer from interfering in Police operations. There followed an exchange between his Honour and counsel (Mr Kipa appearing for Mr O’Neill and Mr Dewe for Mr Kramer). That led to his Honour discussing a draft order put before the Court by Mr Kipa and modifying it and adding to it where his Honour considered it appropriate. It is instructive to refer to the transcript of the proceedings from 10.27 am to 11.13 am to appreciate the process by which the order of 5 March 2020, the subject of these proceedings, was made:
HIS HONOUR: I am finding that there is evidence of direct interference, control, direction, et cetera, from the defendant in the day-to-day police operations and counsel were to assist today on the drafting or coming to appropriate orders that will prevent that from further occurring. And so that is one aspect and I did indicate I will have to make orders that reinforces or follows on from the Supreme Court reference decision in Re – sorry, SCR – yes, SC reference – I think it is 20 – I am sorry, 2 and section 196 of the Constitution.
I have also raised with counsel before I go into the orders, when one might be a positive order directing the minister to carry out his powers and functions in accordance with section 196 of the Constitution as interpreted and clarified by the Supreme Court in Re – sorry, SCR 1 of 1982, Re Philip Bouraga [1982] PNGLR 178.
MR KIPA: Thank you, your Honour. On our part, we have drafted some orders which, as your Honour has indicated or intimated, to assist the court in terms of what should be ordered in the circumstances. I have shown a draft to my friend this morning.
HIS HONOUR: Yes.
MR KIPA: If I can hand up a copy as well.
HIS HONOUR: Yes, you may. That is one aspect of it. That is the – the second aspect is the restraint on further interference and the appropriate wording of that. And because there is – because the defendant chooses to use the social media, an order as to issue that captures his favourite forum and the need for people to be reminded that freedom of expression exists but they are not – it is not an unqualified right. The freedom of expression or each of our rights and freedoms are dependent on our recognising and respecting the rights and freedoms of others. So, we should not be putting pen to paper or utterance of words that give a negative impression of a person unless the context is properly put for proper understanding and they are factually correct and the evidence is there to back it up.
So, I think the time has come for some control. In some places, Facebook is outlawed; they do not exist because of this careless, reckless use by faceless people.
Some people identify themselves just by pen name, others say what they want to say knowing that their identity is and cannot be traced. I am also going to be seeking counsel’s advice as to why I should not invoke section 57 of the Constitution because while some people may be exercising their freedom of expression, they are infringing upon the rights and freedoms of others who cannot defend themselves and these persons cannot be held to account for their careless, reckless utterances of common suggestions and publications of all sorts.
So, yes, counsel, I will need your input on what can be done, I wish to call upon the regulator, NICTA, the telecommunications companies as to why platforms like Facebooks are being allowed to continue to publish false accusations, accusations that have no foundation or make comments and take things out of context. So that is one aspect I will get into. The other aspect is whilst this matter has been in court, reserved, and interim suggestions or directions were issued, the matter has been raised in Parliament, the matter has been sub judice so I need to get into the possibility of calling or directing, ordering the member concerned to come and show cause why he should not be cited for contempt.
The same thing could be said of all people going on social media or the media commenting upon matters that are sub judice. I repeat myself as I did previously. The earliest case known on contempt of court is Nahau Rooney – Mrs Nahau Rooney. She did nothing of the type we see in the media, of the type some leaders are engaging themselves in, all she did was did a letter to the minister. For that she got imprisoned. When can a matter be worse if we are not able to see the worst things happening as we speak today. Court processes, its orders, have to be respected, otherwise we might as well close and let Facebook judges become the judges for society. Would that be a proper thing to do? That spells disaster. It cannot be.
So, yes counsel, let us get to your draft orders and then we will have some discussion. Yes Mr Dewe?
MR DEWE: Thank you, your Honour. Your Honour, we have conveyed your directions to our client and that we have instructions that our client will not concede to any orders.
HIS HONOUR: Yes, he does not have to.
MR DEWE: And - - - -
HIS HONOUR: So he is arguing against any orders restraining him?
MR DEWE: There is no restraining orders against him but - - - -
HIS HONOUR: Sorry?
MR DEWE: There is no restraining orders against him.
HIS HONOUR: He is asking for no restraining orders against him, is he?
MR DEWE: Yes, our client’s position is that he maintains that the court has already made orders and that he did not want to concede to any consent orders but if the court wishes to make any orders, that is at the court’s discretion.
HIS HONOUR: Yes, I did say we will make those orders and I was seeking counsel’s assistance as to the appropriate orders that can issue. It is not a question of whether I will or I will not make orders restraining. That decision has already been made.
MR DEWE: Thank you, your Honour. We have prepared a draft proposed order just like the previous orders your Honour has made and we would like – also like to hand this copy up for court’s consideration.
HIS HONOUR: All right, have you given a copy to your friend?
MR DEWE: Not yet, your Honour.
HIS HONOUR: All right, you may do so. And you have seen your friend’s draft?
MR DEWE: Yes, yes.
HIS HONOUR: And so we need to try and use one of these to be the template to work from and then we will subtract as we go. All right, let me see your version of the draft orders. All right, well, the draft is – term 1 – so I will have to consider what orders I can make and your draft is just only just one restraining order. I outlined what I proposed to do so I can get to some of those orders today. The others, I might open for – allow myself to be properly assisted by counsel for or against the proposed interventions by the court. So, maybe I will get straight to the issue on restraining the defendant as Minister for Police. I do not need to go to section 155(4) of the Constitution, nor order 12 rule 1 of the National Court Rules. But just for clarity, we will have those provisions as per the draft presented to me by counsel for the plaintiff.
The first order will read. 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 Board of Inquiry appointed under Public Service (Interim Arrangements) Act 1973 Re Alleged Disciplinary Offences in Office by Philip Bouraga [1982] PNGLR 178 or simply referred to as SCR 1 of 1982 Re Philip Bouraga, the Minister for Police does not have the power of 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, conferring on police officers’ complaints against persons, ongoing investigations, arrests and charging of persons.
And I will add to that draft, the minister – sorry, the defendant in his capacity as Minister for Police shall strictly act in accordance with section 196 of the Constitution as interpreted and clarified by the Supreme Court decision in Re Philip Bouraga.
And term 2 is a repeat. Mr Kipa, almost a repeat. I cannot see the difference there.
MR KIPA: Maybe, if we can include the word “command” in paragraph one – pardon me, item 1 order number 1, I will say, that will sufficiently cover - - - -
HIS HONOUR: All right, where do you wish the word to be inserted?
MR KIPA: It does not have the power of command, direction or control, is that right?
HIS HONOUR: Yes, all right, I will have that word inserted to make that clearer. So I will not make orders in terms of draft 2. There will obviously have to be an order that specifically restrains the Minister from continuing with his interference with the operations of the Police Force in respect of the complaints as against the plaintiff or any person that is charged or that is under police investigations, that is not restricted to Honourable O’Neill but any other person. Simply put the Police Minister has no power whatsoever in respect of actual individual or general complaints lodged with the police, police investigating into complaints going for arrest warrants, execution of arrest warrants, arresting of persons and prosecution of persons who are found or were found through their investigations to have committed an offence.
And so I will have to make one order that will read in the following terms.
MR DEWE: Under paragraph 3 we put the types of restraining orders which your Honour could consider and the suggestion by yourself could be an addition to the drafts that we have put as A, B, C, D and E or it may be that one of them might capture what your Honour said.
HIS HONOUR: Yes. I will just change the wording in subparagraph E to not only focus on Honourable Peter O’Neill but any other person who is of police interest.
MR DEWE: Your Honour, if - - - -
HIS HONOUR: That is what this is all about. The Minister has to stay away from how the police are dealing with individual cases or the day to day operations of the Police Force. He is supposed to function without interference without direction, without control of the Minister.
MR DEWE: Your Honour, paragraph 3 of the proposed orders, the order appears to be involving administrative matters such as the transferring of police officers. Some of these matters are administrative matters.
HIS HONOUR: Yes, he stays out. He has no right whatsoever, does he? Does he have the power to be involved? The effect of that order is to leave the discretion as it is constitutionally to the Commissioner; not to the Minister. We are not restraining the Police Commissioner. You understand?
MR DEWE: Yes, your Honour.
HIS HONOUR: That is within the command and control of the commissioner. That is his entire discretion. But no minister should intervene. That is what Philip Bouraga case says. So, the first order I make is for your client to re-read section 196 and Philip Bouraga and operate within that ambit of the rule. These orders are not seeking to restrain him from exercising a power that he already has. He has no power. As I say, restating what section 196 of the Constitution says as elaborated by the Re Philip Bouraga decision. And to avoid ambiguity and clarity, these individual items need to be listed so there is clarity.
MR DEWE: Thank you, your Honour.
HIS HONOUR: All right, so term 3 as per the draft but I am amending (e) to include – maybe an additional, (f), to read, 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.
MR KIPA: Your Honour, the terms of these orders meaning item 3 or is it – does it cover the first order made as well?
HIS HONOUR: Yes, I think we – I will take the suggested (f) to become a final order that will apply to everybody in all cases. So, that could become an appropriate order at the end of the process. So, let us hold that for now. Leave three as per the draft.
MR KIPA: Your Honour, we could, I think, leave paragraph (f) as your Honour has highlighted. We could read the terms of these orders referring to item 3 of the draft only as it – that is the only part that concerns restraining the defendant. The others are more or less declaratory in nature.
HIS HONOUR: Yes, but that applies in all contexts and it is not just restricted to your client.
MR KIPA: Your Honour.
HIS HONOUR: The simple message is the Minister has to stay away from operational matters.
MR KIPA: Yes.
HIS HONOUR: He should, for example, focus his mind on how to improve terms and conditions of police officers as a government, policy around that, the rundown houses in which the police are residing. In some places, there are no vehicles; in some places, police ask for refuelling.
Those are matters that should be squarely his immediate attention, not an individual complaint matters that are entirely within the discretion of the Police Commissioner and his men or women under his command.
MR KIPA: Your Honour pleases.
HIS HONOUR: There is also allegations of corruption in the Police Force, that should be his priority number one to weed out corruption within the Police Force and get the police into a force of integrity and that requires a holistic look at the entirety of the Police Force, and its set up and how terms and conditions could be improved, comparable status could be undertaken. For instance, Singapore, how is the police there efficient, effective, corruption free, things like that should be his focus, not getting involved in individual complaints of certain offences committed by certain persons. That is a matter for the Police Commissioner. I do not need to go on and on.
There is a whole lot of things that the Minister could do and focus his attention on. Some provincial governments that I know of are providing support to the Police Force. Police Minister should be focusing on properly equipping the Police Force, properly giving them space, facilities. In some instances, even the court is providing computers and laptops and others and printing stuff for prosecution. Those are things that the Minister should be focusing on and not on individual case prosecutions. That is not his territory so that is why I want to have an order that covers all possible other scenarios as well so the Minister is kept well away from individual complaints and how they are processed and prosecuted.
Of course if he is concerned with the way in which the police are carrying on, he can ask for a report but the way he can ask for a report has been already highlighted and specified and clarified by the Supreme Court in the re Bouraga case so there should be no confusion.
MR KIPA: Your Honour pleases.
HIS HONOUR: Okay, so I will retain suggested (f) to be an order on its own later. Let us go to draft 4. Yes, that is appropriate. That squarely touches the concerns that I have raised and how the police works. He is not a member of the Police Force. He is not within the command and control of the Commissioner or part of the Police Force. He is the Minister so he cannot be receiving complaints or getting directly involved and Facebook is certainly not the vehicle to use. All right, so term 4 in its entirety, I make orders in those terms. I will not be going into those details as per the attachment and the orders themselves should be sufficient so I will not make orders in terms of draft 5.
And then the order as suggested as (f) (1) will now become 5. That should read, “the foregoing orders applies to other cases which require the police to carry out their powers and functions.”
Okay, we might also like to add a further order and that will be order number 6. Except only to report to the police and relevant authorities like the Ombudsman Commission with the necessary and relevant supporting evidence, the defendant, his servants, agents and friends and his network of social media friends and followers are also restrained from using his own or his servants, agents and friends and the followers’ social media pages and any other mode of communication to comment upon and give his or her opinion or views on how a particular complaint is being or should be investigated, at what stages they are at, whether or not an accused person will be arrested and how accused persons will or should be dealt with.
The next order will be order number 7. Except only to report to the police and other relevant authorities like the Ombudsman Commission with the necessary and relevant supporting evidence, the defendant, his servants, agents and friends and his 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.
Now, in this context, it has also come to my light and I need counsel to address me on whether I should make any orders or not that there are two complaints against the minister – Honourable Minister first by the Chief Justice which has been disclosed in the evidence filed in the context of the motion, that has been dealt with yesterday. The other is the complaint by the plaintiff, Honourable Peter O’Neill.
In the case of the complaint by Peter O’Neill, there seemed to be – or the plaintiff is saying there is no word on progress in respect of his complaint by the police. And also in the case of – there is no word on where we are at on the complaint lodged by the Chief Justice and that is part of the evidence before the court. Should I or should I not make any orders for an update on where those complaints are at?
MR DEWE: Your Honour, these are totally different matters to these proceedings and so we are not aware of these proceedings. I have no instructions from my client.
HIS HONOUR: It is in the evidence I found yesterday. It is there.
MR DEWE: Yes - - - -
HIS HONOUR: The affidavit material that have been filed. So, you cannot possibly say you are not aware.
MR DEWE: Yes, insofar as the progress of the two complaints is concerned, these are police matters. We are not in a position or are not able to assist the court on this.
HIS HONOUR: Appreciate it but in the context of your client’s direct interference, involvement, does not a bystander take the view that those two complaints are ignored? Is not the issue of conflict there?
MR DEWE: Your Honour, we maintain that these are two separate matters and should be dealt accordingly in their respective forums.
HIS HONOUR: Okay. Mr Kipa?
MR KIPA: Your Honour, we will submit that given that these are police investigation matters, a complaint has been lodged and it will not be proper to make an order as to the investigation and where we can receive an update as it is. But we would suggest this that the Police Commissioner may be can inform the respective complainants as to the status of the matter so it could be a private matter dealt with the complainant and the Police Commissioner instead of we making that issue that probably the public is also made aware of that.
HIS HONOUR: All right. I can safely make the observation. It gives the suggestion that these two complainants have been ignored and with the involvement of the Minister but we will not go – I will not go as far as making any orders but is sufficient to put the Commissioner on notice that he has got to give equal attention to all complainants and not just one line of complaints by certain individuals. Every complainant requires action on his complaint in a timely manner. And so I think we will leave it at that.
MR DEWE: Your Honour pleases.
HIS HONOUR: I have also indicated that I wish to invoke section 57 of the Constitution as a matter of human rights if the court can raise any possible violation apparent however remote that might appear to be for the court to intervene in its own motion. The issue of social media has been the subject of a number of complaints in court. I am not too sure of the application of the Cybercrime Act. I do not know what responsibilities the regulator, NICTA, has, each of the Telikom companies have and so I will be invoking that provision and notice will go out in sufficient time for the relevant authorities to come and inform the court as to what steps they have taken or are in place to protect the rights of the persons who will be subjected to various and spurious allegations. Some against politicians, some against judges, some against bureaucrats, some against business people, not that I go there but that is what I am hearing sitting in court and the kind of complaints that come through, something has to happen and we need to know what regulations are in place.
So I will be sending out an appropriate instrument pursuant to section 57 of the Constitution and that does not have to be part of any order today. What I will get into is the matter of – the matter being sub judice and raised on the floor of Parliament. From what I am informed and stand to be corrected, it is the Honourable Regional Member for East Sepik, Allan Bird, has raised this matter on the floor of Parliament when it was before me. The matter has been sub judice. So counsel, I am seeking your input, I wish to make an order for the Honourable Member to appear in court and show cause why he should not be dealt with for contempt.
Are you able to assist, Mr Kipa?
MR KIPA: Your Honour- - - -
HIS HONOUR: This may not necessarily be strictly in your client’s instructions but as an officer of this court I am seeking counsel.
MR KIPA: Yes, I was going to say that as the first thing. It is the discretion of this court to proceed with any of those allegations that your Honour has highlighted and we would submit that that is something the court can consider and give directions to the relevant Honourable Member and we have not instructions as far as we are concerned.
HIS HONOUR: Yes, you do not have to have your instructions. This is an issue the court is taking; contempt of court either in the face of the court or outside court.
MR KIPA: That is correct.
HIS HONOUR: And obviously once a matter is sub judice, nobody is at any liberty to raise anything and the last of persons that should be expected or can be expected to comment upon are members of parliament. They should be responsible leaders recognising due process and refrain. It is enough damage out there by the social media. It is worse when a member of parliament does not recognise the boundaries.
MR KIPA: Yes, your Honour.
HIS HONOUR: Mr Dewe, any comment from you?
MR DEWE: Your Honour, in relation to the honourable minister’s comment in the floor of parliament, we say that the – any discussions in the floor of parliament are privileged information – discussions and if the court wishes to make any directions, should take into consideration.
HIS HONOUR: Okay, you are suggesting that parliamentary privilege should be used to engage in discussion or debate; they are not authorised? There are bounds and limits. Immunity, they are all – as long as you are lawfully conducting yourself, even here, you are protected; one would assume. But the question does arise – does that privilege extend to a member of parliament to raise a matter that is already sub judice? That is a legal question, is it not? And that is why the minister has to come and show cause why he should not be – the member has to come to court and show cause why he should not be dealt with for contempt.
MR DEWE: Thank you, your Honour, it is at your discretion.
HIS HONOUR: Yes. All right, then I will make that order. Now, just to correct, I am not – it is Allan Bird, I understand, has been the person who has raised the subject in the floor of parliament. So, I will make that order that the Honourable Allan Bird, Regional member for East Sepik, is required to appear in court on 8 April at 8.30 – sorry, 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 in the floor of parliament when the matter is still sub judice – is and was sub judice at the relevant time.
Next order. A copy of these orders shall be served on the Honourable Allan Bird by the Registrar of the Supreme and National Court or any of the assistant registrars in the provincial locations or in Waigani and/or any member of the police force. All right, and time abridgement. Anything further? We addressed the issue of costs yesterday and it is part of the orders made yesterday. Next, return of the matter. Did I fix that? I think I did when in the context of the mediation taking place next week or so. Cross-check your notes, Mr Dewe and Mr Kipa. I think the matter comes back on 7 April. Mr Associate, are you able to – no, okay. Okay, then, if there has been an earlier date, that will be substituted. It will be the 7th – no, I think the 7th I have a number already so make it 9 April at 9.30 am. By that time we will know if the matter has been resolved by mediation or it needs to be progressed to resolution by trial.
MR KIPA: Your Honour pleases.
HIS HONOUR: All right, thank you. We have no other matter so we will have the court adjourned, please, associate. Thank you.
11. The order of 5 March 2020 was subsequently issued in the following terms:
ORDER
BY THE COURT
KANDAKASI DCJ
PRELIMINARY ARGUMENT
12. Mr O’Neill’s preliminary argument is that each of the nine grounds of review is incompetent and ought to be summarily dismissed as each ground relies on arguments that were not raised before the primary Judge. He refers to the recent decision of the Supreme Court in Southern Highlands Provincial Government v Tepi (2020) SC1962, in which the Court (Batari J, David J, Frank J) stated:
We accept the respondent’s argument that it is highly improper for a party to deliberately avoid proceedings before the court of original jurisdiction and then belatedly seek to invoke the jurisdiction of this Court in an appeal or a review of the matters they failed to put forward or defend in the primary court. This is incontestably against the fundamental principles of fairness, one aspect of which is to give the primary opportunity to consider and rule or decide on the matters raised in the appeal or judicial review. It is trite that the Supreme Court should only allow a review of a decision that had been argued by the parties and a decision is made on it by the trial judge.
13. We agree with that explanation of the general principle that an appellant or applicant for review cannot raise a new argument before the Supreme Court if a reasonable opportunity to raise it has not been utilised in the National Court. However, it should be noted that there are nuances of that principle, which were explained by the Supreme Court (Mogish J, Cannings J, Poole J) in Fairweather v Singirok [2013] 2 PNGLR 95 in these terms:
The Supreme Court takes a strict approach when a party appealing against or seeking review of a decision of the National Court wishes to raise a new point of law not raised in the National Court. In fact it can be said to take two approaches as there are conflicting lines of authority as to how the Supreme Court should deal with such a situation. Both are strict approaches: one could be described as strict, and the other very strict.
The strict approach says that a party can raise in the Supreme Court a point of law not put before the National Court, but only if it seeks and obtains the leave of the Supreme Court to do so, this being the approach taken in cases such as Van Der Kreek v Van Der Kreek [1979] PNGLR 185, The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC855, Telikom PNG Ltd v ICCC (2008) SC906 and Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.
The very strict approach is the one that says that under no circumstances can a party raise in the Supreme Court a point of law not put before the National Court, this being the approach taken in cases such as MVIT v James Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (2002) SC694, Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.
14. Whichever approach is taken, it is necessary to consider the circumstances in which the decision of the National Court, which is the subject of appeal or review, was made. Special circumstances existed in the present case. The order of 5 March 2020 was not made in a conventional manner. There was no motion before the Court in which orders of the sort made were sought. The order was made on the Court’s own initiative. Though there was an indication given by the primary Judge in the hearing on 4 March 2020 of the type of orders that he thought should be made, his Honour did not put before the parties a draft order or give them any written notice of the details of the order that he proposed to make. His Honour simply invited the parties to draft an order so that it might be discussed in Court.
15. At the start of the hearing of 5 March 2020 his Honour accepted the draft order handed up by Mr Kipa, for Mr O’Neill, and there then followed a rather informal discussion between his Honour, Mr Kipa and Mr Dewe, for Mr Kramer, on what should go in the order. Even after that process was followed through (in a way that must, with respect, be viewed as haphazard and rapid-fire, rather than systematic and measured) his Honour did not formally pronounce the terms of the order in Court.
16. It must be inferred from the transcript that the details of the order only became known to the parties when the order was entered and copies were provided to the parties. It is a very detailed order, which was pronounced only in general terms in court. There was no reasonable opportunity given to Mr Kramer to make the detailed arguments that he now raises. Having said that, we consider that Mr Dewe did a commendable job in responding, in difficult conditions, to a number of contentious aspects of the order.
17. In these special circumstances, we find that Mr Kramer is not estopped from relying on any of the nine grounds of review by the apparent failure of his counsel to raise the points of law underlying those grounds, before the primary judge. We dismiss Mr O’Neill’s preliminary argument. Each ground of review is competent and will be dealt with on its merits.
GROUNDS OF REVIEW
18. Mr Kramer argues that the primary judge erred in law, in that:
GROUND 1: COURT WAS FUNCTUS OFFICIO AND MADE SUBSTANTIVE ORDERS, PRIOR TO COMMENCEMENT OF TRIAL
19. Ground 1 raises two separate arguments: (a) the judge was functus officio; and (b) his Honour made substantive orders, prior to trial, improperly.
(a) Functus officio
20. It is argued that his Honour discharged his functions in relation to Mr O’Neill’s motion, filed 11 February 2020, seeking orders to restrain Mr O’Neill’s arrest, by ruling on it on 4 March 2020 and refusing to grant the restraining orders sought. Having made that ruling, the question of whether those or similar restraining orders should be granted was resolved. It was not open to his Honour to reagitate such issues of his own motion.
21. We dismiss this argument. While it is correct that his Honour resolved the questions arising from Mr O’Neill’s motion, it is not correct to say that this rendered his Honour functus officio regarding all issues related to that motion. We refer to the description of the term functus officio provided by Burnett LJ in Demetrio v Independent Police Complaints Commission [2015] EWHC 593, adopted by Collier J in South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761:
Functus officio means no more than that a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it. It is a Latin tag still in universal use and usually abbreviated to the short statement that someone is “functus”.
22. We consider that the primary Judge would only be properly regarded as functus officio when all matters of liability, and if necessary damages, have been finally determined in the defamation proceedings, WS No 184 of 2019. We adopt the dicta of Sheehan J and Jalina J in Sir Julius Chan v Ombudsman Commission [1999] PNGLR 240:
Plainly a Court in making interlocutory decisions is not functus officio ie unable to reconsider an order afresh. Rulings so made, are open, upon application pursuant to the rules of that Court to vacate or vary them.
23. The primary Judge’s order of 4 March 2020, dismissing the application for an injunction to restrain the arrest of the respondent, was an interlocutory order, made before commencement of the trial. It did not render his Honour functus officio.
(b) Substantive orders made prior to trial
24. We agree with the observation of Mr Dewe, counsel for Mr Kramer, that the order of 5 March 2020 contains matters of a type that are not usually found in interlocutory orders. We adopt the categorisation by Cannings J in Kramer v O’Neill (2020) SC1940 of the ten particular orders comprising the order of 5 March 2020.
25. Order No 1 is largely a declaration, as distinct from an order, as to the nature and extent of the powers, functions, duties and responsibilities of Mr Kramer as Minister for Police in light of the decision of the Supreme Court in Bouraga’s case. Whereas order Nos 2, 3, 4, 5 and 6 are injunctions.
26. No 2 restrains Mr Kramer from engaging in certain activities including requiring advice, issuing commands, directing transfer of police, publishing details of operational matters and from discussing matters concerning Mr O’Neill.
27. No 3 restrains Mr Kramer 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.
28. No 4 confirms that the order applies to all cases (not just in the case of the police investigation regarding the respondent) in which Police powers and functions are carried out.
29. No 5 restrains Mr Kramer and other persons from using social media to comment on how a particular complaint is being or should be investigated.
30. No 6 restrains Mr Kramer 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.
31. Nos 7 and 8 are in the nature of a summons addressed to a non-party, Hon Allan Bird MP, requiring his appearance in Court to show cause why he should not be dealt with for contempt of court.
32. Nos 9 and 10 are procedural directions and are uncontentious.
33. We consider that order Nos 1 to 6 (the declaration and the injunctions) are so extensive in scope and detailed and mandatory and prohibitive in their terms, and are expressed in such final and conclusive language, without being couched in terms that make them interim or temporary or intended to preserve the status quo pending further hearing, they are orders of a substantive and final character. They are unconventional orders, to say the least, to make in interlocutory proceedings. We consider, with respect, that it was neither necessary nor appropriate to make such substantive and final orders. It was wrong in law to make such orders as their making was not preceded by a proper hearing.
34. We respectfully consider that order Nos 1 to 6 offended against a basic principle of practice and procedure applying in all National Court proceedings: that substantive and final orders ought not be made in interlocutory proceedings. The leading National Court decision on this principle is that of Kapi DCJ in John Momis v Attorney-General [2000] PNGLR 109. It has been endorsed by the Supreme Court in cases such as NCDC v Yama Security Services (2003) SC707, Yer v Yama (2009) SC996, Kalinoe v Paraka (2014) SC1366 and Yetuin v Dominion Information Systems Ltd (2018) SC1729.
35. We therefore dismiss ground of review 1(a) (functus officio), but uphold ground 1(b) (substantive orders made prior to trial).
GROUND 2: ORDERS MADE UNDER CONSTITUTION,SECTION 155(4) WITHOUT DETERMINATION OF PRIMARY RIGHTS
36. Mr Kramer argues that the primary Judge erred by invoking s 155(4) of the Constitution expressly as a source of jurisdiction to make order Nos 1, 2 and 3, and impliedly in making order Nos 4, 5 and 6, as there had been no determination of the primary rights of the parties. Section 155(4) states:
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.
37. Mr O’Neill agrees that orders are properly made under s 155(4) when the purpose is to protect the primary rights of the parties. Reliance was placed on the following dicta of Kearney DCJ in Avia Aihi v The State (No 1) [1981] PNGLR 81:
I agree with the views of Prentice CJ and Andrew J in Constitutional Reference No. 1 of 1979; Premdas v Papua New Guinea [1979] PNGLR 329 ... that the Constitution, s 155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s 155(4) cannot affect the primary rights of parties; these are determined by law.
38. Mr Kipa, counsel for Mr O’Neill, submitted that although the primary Judge had refused Mr O’Neill’s application, by the notice of motion filed 11 February 2020, to restrain the Police from arresting him, his Honour had found in the course of determining that application that there had been substantial interference by Mr Kramer in Police operations with regard to Mr O’Neill. It was submitted that, by making the orders of 5 March 2020, his Honour was properly preventing Mr Kramer from interfering in Police operations in a way that would defeat the claims of Mr O’Neill for defamation. Mr Kipa pointed out that it was Mr O’Neill’s claim, at the hearing of the notice of motion filed 11 February 2020, that Mr Kramer was interfering with Police operations to try to force an arrest of Mr O’Neill so that he would be able to retrospectively validate his previous defamatory publications regarding Mr O’Neill (which are the subject of the defamation proceedings) and in order to justify publication of further defamatory publications about Mr O’Neill.
39. We are not persuaded by those submissions. Though it is possible to detect a link between the order of 5 March 2020 and the primary rights of Mr O’Neill, the link is tenuous and indirect. Orders should only be made pursuant to s 155(4) of the Constitution that follow a proper determination of primary rights and obligations of the parties, and here there was no such determination. We uphold ground of review 2.
GROUND 3: ORDER HAD NO FOUNDATION IN THE PLEADINGS
40. Mr Kramer argues that the order of 5 March 2020 did not have any foundation in the pleadings and was not related to the cause of action before the National Court, which was defamation.
41. Mr O’Neill replies that the order of 5 March 2020 was interlocutory in nature and therefore did not have to be pleaded in the statement of claim. Furthermore, the order was made under s 155(4) of the Constitution, as it was an order that was properly regarded as necessary to do justice in the circumstances of the particular case, given the substantially undisputed evidence that Mr Kramer had been discussing Police operational matters concerning the respondent through his Facebook publications.
42. We reject Mr O’Neill’s contention that the order of 5 March 2020 was interlocutory in nature, for the reasons given for upholding ground of review 1(b). Order Nos 1 to 6 are substantive and final in nature. Such remedies were not sought in the statement of claim, therefore the Court was not in a position to grant them. We reject the contention that the order was properly made under s155(4) of the Constitution for the reasons given for upholding ground of review 2.
43. We reject the contention that significance ought to be attached to the fact that evidence, relied on by Mr O’Neill, of the applicant discussing Police operational matters concerning the respondent through his Facebook publications, was substantially undisputed. It is sufficient to note that it was made clear by Mr Dewe that Mr Kramer did not agree with the proposition that he had unlawfully or improperly discussed Police operational matters concerning Mr O’Neill through his Facebook publications or that he had unlawfully or improperly interfered in Police operations regarding any matter.
44. We uphold Mr Kramer’s argument that the order of 5 March 2020 had no foundation in the pleadings. Furthermore, the cause of action before the National Court was defamation. It was and remains a standard defamation case in which Mr O’Neill, as plaintiff, is suing Mr Kramer, as defendant, in relation to 12 allegedly defamatory statements published by Mr Kramer in the period from 18 October to 20 May 2019. All those statements were published before Mr Kramer became Minister for Police.
45. With respect the question of whether Mr Kramer had been unlawfully or improperly interfering in Police operational matters is irrelevant and unconnected to the cause of action in the defamation proceedings. The subject matter of the order of 5 March 2020 and the defamation proceedings are very different.
46. We consider that the question of whether Mr Kramer acted unlawfully or improperly by involving himself in Police operations can only be properly heard and determined in separate proceedings, either in the National Court or in the Supreme Court. That question was unrelated to the cause of action being prosecuted in the National Court in WS No 134 of 2019 and ought not to have been made the subject of any orders. We uphold ground of review 3.
GROUND 4: LACK OF CONSIDERATION OF PRINCIPLES GOVERNING INTERIM INJUNCTIONS
47. Mr Kramer argues that the order of 5 March 2020 was made in error, without consideration of the principles governing granting of interim injunctions set out in the leading cases Public Employees Association v Public Services Commission [1988-89] PNGLR 585 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. It is argued that his Honour ought to have addressed the following considerations:
48. We agree with the submission of Mr Kipa that, given the circumstances in which the order of 5 March 2020 was made – it was an order made on the own motion of the Court following a finding of fact made on 4 March 2020 that Mr Kramer was interfering in Police operational matters – it was not necessary for his Honour to expressly address the conventional criteria governing the granting of interim injunctions. Besides that, order Nos 1 to 6 were not interim injunctions. As we concluded in our determination of ground of review 1, they were substantive and final orders. We dismiss ground of review 4.
GROUND 5: MISINTERPRETATION OF BOURAGA’S CASE
49. Mr Kramer argues that, in making orders 1, 2 and 3 of 5 March 2020, which restrain him in the discharge of his powers and functions as Minister for Police, the primary Judge misinterpreted the leading case, SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178 in a number of respects. For example, it is argued that:
50. In response, Mr O’Neill points out that in Bouraga the Supreme Court drew a distinction between the Minister issuing orders requiring advice, briefings and information, in contrast to the Minister requesting such things from the Commissioner. Mr O’Neill argues that the purpose of the order of 5 March 2020 was simply to ensure that Mr Kramer performed his ministerial duties in accordance with the requirements of the Constitution, the practical details of which were explained in Bouraga’s case.
51. We acknowledge the viability of the competing arguments of the parties. However, we do not wish to spend time addressing them. That would be a fruitless exercise. The question of whether the primary judge erred in the interpretation and application of the principles in Bouraga and of the relevant provisions of the Constitution regarding the powers, functions, duties and responsibilities of the Minister for Police, in particular ss 142, 148 and 196, is not properly before the Supreme Court.
52. That question would only properly be before this Court if the primary Judge had, in the proper exercise of jurisdiction, determined the questions of constitutional interpretation and application that he did by making the order of 5 March 2020. Or if his Honour had referred such questions to this Court under s 18(2) of the Constitution, which states:
Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
53. We respectfully consider that his Honour was acting outside the proper scope of the jurisdiction of the National Court by himself determining questions of interpretation and application of provisions of the Constitution. Determination of such questions falls within the domain of the Supreme Court under s 18(1) (original interpretative jurisdiction of the Supreme Court) of the Constitution, which provides:
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
54. We consider that the arguments that have been made by the parties before us as to the interpretation and application of the principles in Bouraga and of the relevant provisions of the Constitution regarding the powers, functions, duties and responsibilities of the Minister for Police, could only properly be made in separate Supreme Court proceedings, after a full and proper hearing, either:
We therefore dismiss ground of review 5.
GROUND 6: ORDER BASED ON A FINDING OF FACT CONTRARY TO EVIDENCE AND WITHOUT A PROPER HEARING
55. Mr Kramer argues that the order of 5 March 2020 was based on a finding of fact, made in the course of his Honour’s ruling of 4 March 2020, that he had interfered with Police operational matters, and that finding of fact was made without evidence.
56. In response Mr O’Neill asserts that there was ample evidence showing substantial interference by Mr Kramer in the operations of the Police.
57. We will determine this ground of review by making three observations.
58. First, it is agreed by the parties and it is correct that on 4 March 2020 in the course of ruling on Mr O’Neill’s notice of motion filed on 11 February 2020, his Honour made general comments, tantamount to a finding of fact, to the effect that Mr Kramer had interfered in the operations of the Police. His Honour repeated that finding on 5 March 2020. For example, on 4 March 2020 his Honour commented that:
The Honourable Minister, the defendant in this proceeding has gotten himself into police operations in respect of possible allegations or charges against the former Prime Minister.
59. His Honour directed, prior to adjourning to 5 March 2020:
Parties are required to return to court tomorrow at 9.30 am to address the court on what orders the court should make in the light of the defendant not respecting the law as represented in Section 196 of the Constitution as elaborated by the Supreme Court decision in SCR 1 of 1982, re Phillip Bouraga.
60. At the start of the hearing on 5 March 2020, his Honour stated:
I am finding that there is evidence of direct interference, control, direction, et cetera, from the defendant in the day-to-day police operations and counsel were to assist today on the drafting or coming to appropriate orders that will prevent that from further occurring.
61. Secondly, his Honour’s comments on Mr Kramer’s interference in Police operations, and therefore the findings of fact, were general in nature and were not based on any detailed assessment of evidence.
62. Thirdly, and in this regard we agree with the thrust of Mr Kramer’s argument on the findings of fact, there was no actual hearing of any evidence, at any time. All that happened on 3 March 2020, when Mr O’Neill’s notice of motion filed 11 February 2020 was heard, was that various affidavits that had been filed by the parties in connexion with that motion, were referred to by counsel in their submissions. Then, in the ruling of 4 March 2020, some of those affidavits were referred to by his Honour to support the finding of fact that Mr Kramer had interfered in Police operational matters.
63. There was no procedure adopted by which affidavits were tendered, objections were called for and determined, and the affidavits were admitted into evidence. Nor was there any separate process by which submissions were made based on the evidence that had been admitted. There was no evidence, as such, before the Court. His Honour did not engage in any formal process of assessment of the evidence or weighing of the competing evidence. The Court proceeded to make substantive orders in an evidentiary, and factual, vacuum. This is not permissible (Bonga v Sheehan [1997] PNGLR 452).
64. As there was no hearing on the evidence, there was a lack of due process in the making of the finding of fact, which formed the basis of order Nos 1 to 6. We therefore uphold ground of review 6.
GROUND 7: ORDER RESTRAINING USE OF SOCIAL MEDIA MADE IN BREACH OF CONSTITUTION, SECTION 46
65. This ground of review is directed at order No 5 of 5 March 2020, which states:
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 being 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. 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.
66. Mr Kramer argues that the order offends against s 46 (freedom of expression) of the Constitution, which states:
(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law—
(a) that imposes reasonable restrictions on public office-holders; or
(b) that imposes restrictions on non-citizens; or
(c) that complies with Section 38 (general qualifications on qualified rights).
(2) In Subsection (1), "freedom of expression and publication" includes—
(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b) freedom of the press and other mass communications media
(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations—
(a) for the communication of ideas and information; and
(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,
and generally for enabling and encouraging freedom of expression.
67. Mr O’Neill argues that order No 5 was properly made to restrain Mr Kramer and his followers from commenting on how particular complaints were being investigated and what stages those investigations were at, and on whether certain accused persons would be arrested. It is argued that the order was necessary and appropriate as time and again Mr Kramer and his followers had commented on the status of police proceedings involving Mr O’Neill when such information should be in control of the Commissioner of Police, not the Minister for Police. Mr O’Neill argues that the order does not restrain Mr Kramer and his followers from commenting on anything other than information that Mr Kramer would have obtained unlawfully; it is a preventative order as it restrains further breaches of the law by Mr Kramer and restrains further defamatory material being published by him.
68. We do not intend to make a formal determination of whether order No 5 was made contrary to the rights of Mr Kramer or members of the public under s46 of the Constitution. It is neither necessary nor appropriate to do so. It suffices to say that the arguments put forward by both parties are viable.
69. We find, consistently with our determination of other grounds of review, that order No 5, which restrains Mr Kramer and others from using social media to comment on police investigations, is:
70. For those reasons we respectfully conclude that the learned primary Judge erred in law in making order No 5. We uphold ground of review 7.
GROUND 8: ORDER RESTRAINING PUBLICATION OF DEFAMATORY COMMENTS SUBSTANTIVE AND PRE-JUDGMENTAL
71. This ground of review is directed at order No 6 of 5 March 2020, which states:
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.
72. Mr Kramer argues that the order has been made in error as it is substantive in nature and involves prejudgment of issues that will arise in the defamation proceedings, WS No 184 of 2019.
73. We reject the argument that his Honour has engaged in prejudgment of issues that will arise in the defamation proceedings. We find that his Honour, although expressing concern about the apparent tendency of Mr Kramer to publish defamatory comments about Mr O’Neill on social media, has not actually made any finding that such publications are unlawful.
74. Mr Kramer referred us to various parts of his Honour’s ruling of 4 March 2020, in which his Honour stated, for example:
The substantive proceedings started in 2019 after years of defamatory publication or public defamatory publications or comments by the honourable Minister. ...
The commencement of these proceedings did not stop the defamatory publications and on 18 May 2019, the honourable Minister published two further statements, saying the plaintiff had dual citizenship of Australia and Papua New Guinea. ...
The plaintiff reported the matter to police in May 2019 as a breach of the Cybercrime Act. Nothing has been done by the police to date. ...
To now, two of separate publications and a restraining order was given on 30 August 2019. This did not stop the defendant. Instead, ... after being made Minister for Police he was determined to continue his attempts to defame and discredit the plaintiff by this time in his capacity as Minister for Police. The Honourable Minister filed a complaint to the police on 7 October concerning conduct in 2012 and four days later an arrest warrant was obtained. ...
75. We are satisfied that in making those statements, his Honour was summarising Mr O’Neill’s case for obtaining an injunction, pursuant to the notice of motion filed 11 February 2020, to restrain Mr Kramer and the Police from arresting Mr O’Neill. His Honour was not making findings of fact or law. He was simply outlining Mr O’Neill’s case.
76. However, we find that order No 6 is problematic in other respects. The order tends to gloss over the elements of a cause of action in defamation, which are, as explained by the Supreme Court in Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132, that:
77. We consider, with respect that it was neither necessary nor appropriate to make order No 6, as it is an order that is:
78. For those reasons we respectfully conclude that the learned primary Judge erred in law in making order No 6. We uphold ground of review 8.
GROUND 9: ORDER SUMMONING MEMBER OF PARLIAMENT CONTRARY TO CONSTITUTION, SECTION 115(2)
79. This ground of review is directed at order No 7 of 5 March 2020, which states:
The Hon Allan Bird the regional member for East Sepik Province is required to appear in Court on 8th 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.
80. It is evident from the transcript of the proceedings of 5 March 2020 that his Honour was concerned about comments about the defamation proceedings reportedly made by the Honourable Allan Bird MP on the floor of Parliament. His Honour was of the view that there should be no public discussion in any forum such as social media or in the Parliament, about ongoing court proceedings, as any such discussion was prohibited under the doctrine of sub judice.
81. Mr Kramer argues that order No 7 offends against s 115 (parliamentary privileges etc) of the Constitution, which states:
(1) The powers (other than legislative powers), privileges and immunities of the Parliament and of its members and committees are as prescribed by or under this section and by any other provision of this Constitution.
(2) There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).
(3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).
(4) No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.
(5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—
(a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or
(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.
(6) Members of the Parliament are free from arrest for civil debt during meetings of the Parliament and during the period commencing three days before, and ending three days after, a meeting when they are travelling from their respective electorates to attend the meeting or are returning to their electorates from the meeting.
(7) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament (as defined by or under an Act of the Parliament) while it is sitting.
(8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—
(a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and
(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.
(9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purposes of this section that are triable within the National Judicial System.
82. Specifically, Mr Kramer argues that order No 7 is impermissible under s115(2) as it interferes with freedom of speech in the Parliament and it involves a questioning of the exercise of those freedoms.
83. Mr O’Neill responds that the order is prima facie a proper exercise of judicial power under s 163(2) (establishment of the National Court) of the Constitution, which states:
The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court. [Underlining added.]
84. Mr O’Neill argues that order No 7 is innocuous as it does not involve a determination that contempt of court has occurred. The order simply seeks that Hon Allan Bird MP attend court and explain the situation and make submissions as to whether he should be charged with contempt; any submission as to parliamentary privilege can be made then.
85. We consider that order No 7 can only be regarded as an unusual and significant and probably unprecedented order. We are unaware of any previous occasion on which a member of the National Parliament has been required by an order of any court to appear in Court in relation to something said by the member during the course of proceedings in the Parliament. It is a special sort of order as it is peremptory in nature. It is not expressed in the form of a request or an invitation. It is in the nature of a summons that orders Hon Allan Bird MP to do two things: (1) “appear in Court” at a specific time; and (2) “show cause why he should not be dealt with for contempt of Court”.
86. Order No 7 clearly has constitutional implications. We uphold the submissions on behalf of Mr Kramer that the order has been made contrary to s115(2) of the Constitution as it is an infringement of freedom of speech in the Parliament, and it amounts to the questioning in a Court of the exercise of freedom of speech, debate and proceeding in the Parliament.
87. The importance of s 115 of the Constitution was emphasised by the Supreme Court in SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319, at para 269:
The rights and privileges accorded to members by s 115 are given by Constitutional Law and privileges and they cannot be taken away by any other law, especially the freedoms of speech, debate and proceedings which are pertinent to this Reference. These are essential aspects of a Member’s duties and responsibilities to engage in full and meaningful debates in the Parliament on behalf of his people. Thus, any law which interferes with and takes away these rights and privileges would be in direct contravention of s 115 of the Constitution.
88. Order No 7, on its terms:
89. We respectfully consider that the learned primary Judge has acted imprudently, precipitously and rather too heavy-handedly in making an order, on his own motion, to not only summon a member of Parliament to appear before the Court over something he reportedly said on the floor of Parliament, but require the member to show cause why he should not be dealt with for contempt, without sufficient regard to its constitutional implications. We do not question the genuineness of his Honour’s concerns about what had been reported in the media about what Hon Allan Bird MP had said in Parliament. However, there were other more measured ways in which to manifest that concern, such as:
90. We conclude that the learned primary Judge erred in law in making order No 7 as it is an unconstitutional order. We uphold ground of review 9.
CONCLUSION
91. We have upheld grounds of review 1(b), 2, 3, 6, 7, 8 and 9. We have dismissed grounds of review 1(a), 4 and 5. We have concluded that the learned primary Judge erred in law in making the order of 5 March 2020 in several respects:
92. Having upheld the bulk of Mr Kramer’s grounds of review, we now pause to consider (as this is a review, not an appeal) whether the criteria set out in, Avia Aihi v The State (No 2) [1982] PNGLR 44 have been satisfied, viz whether:
(a) it is in the interests of justice; and
(b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision.
93. Those requirements were explained by the Supreme Court in Re Application by Herman Joseph Leahy (2006) SC855:
In the present case the above criteria did not have to be satisfied in order for the applicant to be granted leave. However, having granted him leave, and now that it is about to embark on a substantive review of the National Court decision, the Supreme Court needs to be satisfied of those criteria before it will uphold the review and consider granting any of the orders sought by the applicant (SCR No 55 of 2004; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827, Supreme Court, Hinchliffe J, Batari J, Cannings J).
94. We apply those criteria and state that we are satisfied that:
(a) it is in the interests of justice; and
(b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest and the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision of the National Court to issue the order of 5 March 2020.
95. We will order that the order of 5 March 2020 be quashed. Costs will follow the event as the application for review has been vigorously opposed. The National Court proceedings shall resume.
ORDER
(1) The application for review of the order of the National Court of 5 March 2020 in WS No 184 of 2019 is granted.
(2) The whole of the order of the National Court of 5 March 2020 in WS No 184 of 2019 is quashed.
(3) All orders of this Court, staying the National Court proceedings in WS No 184 of 2019, are dissolved.
(4) The proceedings WS No 184 of 2019 shall resume and be conducted in accordance with the reasons for judgment of this Court.
(5) The respondent shall pay the applicant’s costs of these proceedings, 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
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