Application by Hon Belden Namah [2021] PGSC 14; SC2082 (15 March 2021)

SC2082

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 9 OF 2020

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE
BELDEN NORMAN NAMAH MP

Waigani: Cannings J, David J, Kariko J, Anis J, Miviri J
2021: 15^th March

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether application compliant with Supreme Court Rules – whether application stated facts out of which request for interpretation of Constitutional Law provisions arose – whether application stated whether questions of fact arose for determination – Supreme Court Rules 2012, Order 4, Rules 1 and 3 and Form 1 – whether substantial compliance with form was sufficient.

The first intervener to an application under s 18(1) of the Constitution (which challenged the constitutionality of the 2021 National Budget passed by the Parliament on 16 December 2020 and the decision of the Parliament on that day to adjourn to 20 April 2021 objected to competency of the application on two grounds: (1) the application failed to plead the facts out of which the request for interpretation of Constitutional Law provisions arose, as required by Order 4, Rules 1 and 3(d) and Form 1, paragraph 4 of the Supreme Court Rules; and (2) the application failed to plead whether a question of fact arises for determination by the Court, as required by Order 4, Rules 1 and 3(e) and Form 1, paragraph 5 of the Supreme Court Rules. The applicant argued that the objection to competency was not properly before the Court and should be dismissed, but if it were heard on its merits it ought to be dismissed as the application was substantially compliant with the Rules and had sufficiently invoked the jurisdiction of the Court.

Held:

(1) The objection was compliant with the Rules and ample notice of it and the grounds on which it was based had been given to the applicant. The objection was properly before the Court.

(2) The application was non-compliant with the Rules in the two respects underlying the grounds of objection. Both grounds exposed significant defects in the originating process.

(3) Strict compliance with the Rules was necessary in view of the special and significant nature of the application, it being an attempt to apply directly to the Supreme Court for relief against alleged breaches of the Constitutional Laws.

(4) The application did not meet the standard of strict compliance required, and further, did not, even if the standard of substantial compliance were applied, meet that lesser standard.

(5) The application was materially non-compliant with the Rules. The jurisdiction of the Court was not properly invoked. The objection to competency was upheld. The proceedings were entirely dismissed.

Case Cited
The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Application by Hon Peter O’Neill MP (2020) SC2043
Application by Morobe Provincial Government (2012) SC1190
Namah v Pato [2013] 1 PNGLR 205
Re Reference by Ken Norae Mondiai (2010) SC1087
Reference by Hon Belden Norman Namah MP (2020) SC1934
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Special Reference by Morobe Provincial Executive (2010) SC1089

OBJECTION
This was an objection to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
P Kuman, for the First Intervener, the Attorney-General
L Henao & R Kawat, for the Second Intervener, the Speaker of the National Parliament

15^th March, 2021

1. BY THE COURT: This is a ruling on an objection to competency of an application to the Supreme Court under s 18(1) of the Constitution.

2. The application was filed by the applicant the Honourable Belden Norman Namah MP on 18 December 2020. He challenges the constitutionality of the 2021 National Budget passed by the Parliament on 16 December 2020 and the decision of the Parliament on that day to adjourn to 20 April 2021, despite the applicant having submitted a motion of no confidence in the Prime Minister on 14 December 2020, which was pending processing.

3. The Attorney-General, Dr Eric Kwa, and the Speaker of the National Parliament, the Honourable Job Pomat MP, have been granted leave to join the proceedings as first and second intervener respectively. The first intervener (supported by the second intervener) objects (by a notice of objection filed 11 January 2021) to competency of the application on two grounds:

(1) the application failed to plead the facts out of which the request for interpretation of Constitutional Law provisions arose, as required by Order 4, Rules 1 and 3(d) and Form 1, paragraph 4 of the Supreme Court Rules; and

(2) the application failed to plead whether a question of fact arises for determination by the Court, as required by Order 4, Rules 1 and 3(e) and Form 1, paragraph 5 of the Supreme Court Rules.

4. The applicant argues that the objection to competency is not properly before the Court and should be dismissed, but if it is heard on its merits it still ought to be dismissed as the application is substantially compliant with the Rules and has sufficiently invoked the jurisdiction of the Court.
OBJECTION TO COMPETENCY OF OBJECTION

5. We are satisfied that the objection to competency is properly before the Court. The notice of objection is compliant with the Rules, but even if it were not, we could still entertain the grounds and if they are good grounds, uphold the objection and dismiss the proceedings. The Supreme Court emphasised in Amet v Yama [2010] 2 PNGLR 87 that the issue of jurisdiction can be raised at any time. An objection to competency is a challenge to the jurisdiction of the Court, and the Court has an inherent power to itself question whether a party has validly invoked its jurisdiction.

6. The first intervener’s notice of objection to competency was filed on 11 January 2021 and presumably served soon thereafter. Ample notice that there was an objection and the grounds on which the objection is based, has been given. There is no good reason not to deal with the grounds of objection on their merits, which we now will do, after setting out the relevant provisions of the Supreme Court Rules.

SUPREME COURT RULES
7. Order 4, Rules 1 and 3 and Form 1 of the Supreme Court Rules prescribe the requirements for commencement of an application under s18(1) of the Constitution.

8. Order 4, Rule 1 states:

An application under Constitution Section 18(1) shall be instituted by an application in Form 1 and shall —

(a) be entitled under Constitution Section 18(1) with the year and number of the reference; and

(b) be endorsed with —
(i) the name of the person making the application;

(ii) an application for a declaration that the applicant has standing to make the application;

(c) be signed by the person making the application; and

(d) be filed in the Registry.

9. Order 4, Rule 3 states:

An application under Constitution Section 18(1) shall state —

(a) the basis on which the applicant claims standing to make the application;

(b) the Section of a Constitutional Law the applicant requests to have interpreted;

(c) the answer or interpretation and relief for which the applicant contends;

(d) the facts out of which the request arises;

(e) whether a question of fact arises for determination by the Court on the application;

(f) the names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant.

10. Form 1 is set out as follows:

GENERAL FORM OF APPLICATION (CONSTITUTION S 18(1))

IN THE SUPREME COURT SCA No of 20
OF JUSTICE (Insert number and year)

Application Pursuant to
Constitution Section 18(1)

Application by (Insert name of person making application)

APPLICATION

To the Supreme Court:

APPLICATION TO INTERPRET SECTION... (insert Section number)... OF (Insert Constitution or the name of the Constitutional Law)

1. The applicant requests the Court to declare that the applicant has standing to make this application, and after that declaration, the finding sought in paragraph 3 below.
   
2. The basis on which the applicant claims standing to make this application is:
   
3. The applicant requests the Court to declare that the proper interpretation or application of Section... of... (Insert the Constitution and relevant Section or name of a Constitutional Law and Section) is:
   

4. The facts out of which the request arises are:

5. Whether a question of fact arises for determination by the Court on the application. (If questions of fact need to be determined the Court may, in accordance with Order 3, Rule 3 direct a Judge to find the facts, before the issue of constitutional interpretation is referred to the Supreme Court.)
   
6. The names of the persons or bodies whose interests may be directly affected by the interpretation sought by the person making the application are: (insert names of persons whose interests may be affected, with a positively or adversely).
   

DATED:

Sgd
___________ (To be signed by person
making the application)

FILED BY: (Form 17)

Application for Directions

Application will be made to a Judge of the Supreme Court Waigani at ... am on the day of ... 20...

______________
Registrar

A respondent or intervener may file a Statement of Response.

GROUND 1: FAILURE TO PLEAD FACTS

11. The interveners rely on Order 4, Rule 3(d), which states:

An application under Constitution Section 18(1) shall state ... the facts out of which the request arises.

12. Also the interveners refer to paragraph 4 of Form 1, which requires that the statement of fact be preceded by these words:

The facts out of which the request arises are: ...

13. The problem with the application, highlighted by the interveners, is that the facts are not stated, or pleaded, in the application. The facts are alluded to in the following way:

The facts on which the request arises are set out in the affidavit of the applicant sworn and filed this 17^th day of December 2020.

14. We uphold the submission of the interveners that the application is non-compliant with the requirement that the facts out of which the request for interpretation of Constitutional Law provisions arose, be stated in the application. Clearly the purpose of this requirement is to put the onus on the applicant to state his case at the outset: to plead the facts which he claims give rise to a cause of action in constitutional law.

15. Stating, in the application, that the facts are set out in an affidavit, which happened to be filed on the same day as the application was filed, does not meet the requirement that the applicant state his case in the application. This amounts to a significant defect in the originating process.

16. We are applying a rather strict standard of compliance, being mindful of the fact that the application before the Court is an attempt to invoke the jurisdiction of the Court directly under the Constitution.

17. The principle of strict compliance with the Rules has been developed in the context of the filing of Special References under s 19 of the Constitution. References have been dismissed as incompetent for failure to meet the signing requirements of the Rules: SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249, SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, Special Reference by Morobe Provincial Executive (2010) SC1089, Application by Morobe Provincial Government (2012) SC1190. The Court has recognised the need to protect the processes of the Court from abuse. If a party approaches the Court directly under the Constitution, the Court must insist that its procedures are strictly complied with.

18. We have considered the submission of Mr Sheppard, for the applicant, that the method of stating facts in the present application is consistent with that used in SCCOS 7 of 2020 (Application by Hon Peter O’Neill MP (2020) SC2043). That was a s 18(1) Constitution application, which successfully challenged the Speaker’s decision to recall Parliament on 17^th November 2020, and is the precursor to the present application. In SCCOS 7 of 2020, the facts were stated in the same way as in the present application: by stating that the facts are set out in an accompanying affidavit. Mr Sheppard stressed that in SCCOS 7 of 2020, no issue was taken by the Court with the method used to state the facts, and our approach should be consistent with that approach.

19. We are not bound by what happened or did not happen in SCCOS 7 of 2020. It is clear, however, that if there were an objection to the competency of SCCOS 7 of 2020 on the ground of failure to plead facts, the objection was not pursued and it was unnecessary for the Court to rule on the issue.

20. We determine ground 1 of the objection on its merits. It is a significant ground of objection and we uphold it.

GROUND 2: FAILURE TO STATE WHETHER QUESTIONS OF FACT ARISE

21. The interveners rely on Order 4, Rule 3(e), which states:

An application under Constitution Section 18(1) shall state ... whether a question of fact arises for determination by the Court on the application.

22. Also the interveners refer to paragraph 5 of Form 1, which requires that the application state:

whether a question of fact arises for determination by the Court on the application.

23. It is notable that there has been complete non-compliance with this requirement. Nothing is stated at all as to whether any questions of fact arise for determination by the Court. This is a significant requirement of the Rules, as it is the means by which the Court is alerted to the need to determine how facts will be determined prior to the hearing of the application.

24. We uphold ground 2 of the objection to competency.

EFFECT OF UPHOLDING GROUNDS

25. We now consider the applicant’s argument that despite any defects in the application, it is in a form substantially compliant with the Rules. We appreciate that there is an argument that the Supreme Court Rules are subject to the Interpretation Act (due to the broad provisions of s 1 of that Act, which provide that the Act applies to Rules of Court) and s 27(1), in particular, which states:

Substantial compliance with a form contained in a provision is sufficient.

26. We stated above that strict compliance with the Rules is necessary in the case of a person who seeks to invoke the original jurisdiction of the Supreme Court in constitutional matters. However, if we were, as contended for by Mr Sheppard, to relax the standard of compliance and say that substantial compliance is sufficient, we would conclude that the form used in this case is not substantially compliant with the Rules. It is materially defective in the two respects underlying the grounds of objection.

27. We appreciate that the facts of the present case can to some extent be distinguished from two other cases (both coincidentally involving the same applicant) that were dismissed upon the upholding of objections to competency.

28. In Namah v Pato [2013] 1 PNGLR 205, a s 18(1) Constitution application was dismissed as incompetent due to it being framed as an originating summons, discordantly with Form 1 of the Rules (and it was also signed by the applicant’s lawyer, rather than by the applicant, as required by the Rules).

29. In Reference by Hon Belden Norman Namah MP (2020) SC1934, a purported s 18(1) Constitution application was incorrectly entitled as a reference, contrary to the Rules and Form 1. This was a material error, which created confusion as to the jurisdiction of the Court that the applicant was seeking to invoke. The Supreme Court has no power, as pointed out in the leading case, Re Reference by Ken Norae Mondiai (2010) SC1087, to entertain references under s 18(1) of the Constitution, so the proceedings were fundamentally misconceived and dismissed as incompetent.

30. We acknowledge that the application in the present case appears to be in a proper form. It comes closer to being a valid invocation of the Court’s jurisdiction than the applications in both the other Namah cases referred to. But not close enough.

31. The two defects in the application exposed by our upholding both grounds of objection prevent this Court finding that the application is substantially compliant with the Rules.

CONCLUSION

32. The application is non-compliant with the Rules in the two respects underlying the grounds of objection. Both grounds exposed significant defects in the originating process. Strict compliance with the Rules is necessary in view of the special and significant nature of the application, it being an attempt to apply directly to the Supreme Court for relief against alleged breaches of the Constitutional Laws.

33. The application does not meet the standard of strict compliance required, and further, does not, even if the standard of substantial compliance were applied, meet that lesser standard.

34. The application is materially non-compliant with the Rules. The jurisdiction of the Court has not been properly invoked. The objection to competency is upheld. The proceedings must be entirely dismissed. Costs will follow the event.

ORDER

(1) The objection to competency filed on 11 January 2021 is upheld.

(2) The proceedings are entirely dismissed.

(3) The applicant shall pay the interveners’ costs of the proceedings on a party-party basis which shall, if not agreed, be taxed.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kuman Lawyers: Lawyers for the First Intervener
Kawat Lawyers: Lawyers for the Second Intervener