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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCCOS NO 4 OF 2021
APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)
BY JUSTICE FOUNDATION FOR PORGERA LIMITED
Waigani: Cannings J, David J, Tusais J
2022: 1st, 7th July
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 signed by applicant company in accordance with Rules – Supreme Court Rules 2012, Order 4, rules 1 and 3 and Form 1.
An intervener to an application under s 18(1) of the Constitution (which challenged the constitutionality of provisions of the Constitution and the Mining Act vesting exclusive ownership of minerals on customary land in the State) objected to competency of the application on the ground that
it was not signed by the person making the application, as required by Order 4, rules 1 and 3(d) and Form 1, of the Supreme Court Rules. The fourth intervener argued that because the applicant is a company, the application had to be executed under its common seal and
meet other requirements before it could be said to have been signed by the applicant. The objection was supported by the first, second
and fourth interveners and opposed by the applicant.
Held:
(1) Though there is no express requirement in the Rules that a s 18(1) application by a company has to be executed under its common seal, Order 4 rule 1(c) and Form 1 require that a s 18(1) application be signed by the applicant, and it is reasonably to be inferred that in the case of a company, it can only “sign” the application when the common seal is affixed.
(2) The signing requirement for a s 18(1) Constitution application by a company is that the application be signed by a proper officer of the company who states that they are, under the company’s common seal, signing for and on behalf of the company, by reference to the date and resolution number of the meeting of the board of directors by which authorisation of the making and signing of the application was given.
(3) Strict compliance with the signing requirement 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 declarations that laws made by Parliament are invalid.
(4) The present application failed to comply with the signing requirement as it was not signed under the common seal and did not refer to the date and resolution number of the decision of the board of the company to authorise the making of the application.
(5) The failure to comply with the signing requirements meant that the applicant had not invoked the jurisdiction of the Supreme Court under s18(1) of the Constitution. The objection to competency was upheld and the proceedings were entirely dismissed.
Cases Cited:
Papua New Guinean Cases
The following cases are cited in the judgment:
Application by Justice Foundation for Porgera Ltd (2022) SC2235
Application by Morobe Provincial Government (2012) SC1190
Application by Namah (2020) SC1934
Namah v Pato [2013] 1 PNGLR 205
NHC v Audela Ltd (2020) N8436
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126
Rustproof Ltd v Eastpac Ltd (2015) N7038
SC Ref No 2 of 2010; Reference by Attorney-General (2010) SC1078
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
SC Ref No 4 of 2010; Reference by Morobe Provincial Executive (2010) SC1089
Telikom PNG Ltd v ICCC (2007) N3143
Walker v Total Cleaning Services Ltd (2020) SC1924
Overseas Cases
Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146
Counsel
L R Henao & E Injia, for the Applicant
T Tanuvasa, for the First Intervener, the Attorney-General
M M Varitimos & D Wood, for the Second Intervener, Barrick (Niugini) Ltd
A Mana, for the Third Intervener, Lihir Gold Ltd
I Molloy & W Mai, for the Fourth Intervener, Ok Tedi Mining Ltd
7th July, 2022
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 a company incorporated under the Companies Act called Justice Foundation for Porgera Ltd on 10 December 2021. It challenges the constitutionality of s 212B(1) of the Constitution and s 5(1) of the Mining Act 1992, which vest exclusive ownership of minerals on customary land in the State. It seeks declarations that both of those laws are inconsistent with s 53 of the Constitution and are therefore invalid.
3. The Attorney-General and three companies, Barrick (Niugini) Ltd, Lihir Gold Ltd and Ok Tedi Mining Ltd, have been granted leave to join the proceedings as first, second, third and fourth intervener respectively (Application by Justice Foundation for Porgera Ltd (2022) SC2235).
4. The fourth intervener objects (by a notice of objection filed 28 March 2022) to competency of the application on the ground that it does not comply with the signing requirements for a s 18(1) Constitution application.
5. The application is signed as follows:
............[ signed] ...............................
Justice Foundation for Porgera Limited
Signed for and on behalf of the
Applicant by Jonathan Mangope Paraia,
Director and Chairman of the Board of
Directors of Justice Foundation for
Porgera Limited
(Applicant)
6. The fourth intervener argues that because the applicant is a company, the application had to be executed under its common seal.
Only when the company seal is affixed to the signature of the person claiming to sign on behalf of the company, can it be said that
the application has been signed by the company.
7. The applicant argues that the application has been properly signed for and on behalf of the applicant by the chairman of the
board of directors of the company. Mr Henao, counsel for the applicant, stressed that there was nothing in the Supreme Court Rules that imposed the extra requirements contended for by the fourth intervener and that the Court should refrain from introducing into
the Rules requirements that are not stated. Mr Henao submitted that under s 111 of the Companies Act, a company’s director may execute any legal documents on behalf of the company. Here, Mr Paraia is the applicant’s managing
director and chairman of the board of directors and is fully authorised to sign the application.
SUPREME COURT RULES
8. Order 4, rules 1 and 3 and Form 1 of the Supreme Court Rules 2012 prescribe the requirements for commencement of an application under s 18(1) of the Constitution.
9. 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.
10. 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.
11. 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).
4. The facts out of which the request arises are:
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.
12. The signing requirements for a s 18(1) application emerge from Order 4 rule 1(c) (an application “shall be signed by the person making the application”) and the signature panel in form 1 (which requires that the application “be signed by person making the application”).
HOW DOES A COMPANY SIGN AN APPLICATION?
13. We reject the applicant’s argument that Mr Paraia was authorised to sign the application by virtue of s 111 of the Companies Act. Section 111 (delegation of powers) states:
(1) Subject to any restrictions in the constitution of the company, the board of a company may delegate to a committee of directors, a director or employee of the company, or any other person, any one or more of its powers other than its powers under any of the sections set out in Schedule 3.
(2) A board that delegates a power under Subsection (1) is responsible for the exercise of the power by the delegate as if the power had been exercised by the board, unless the board—
(a) believed on reasonable grounds at all times before the exercise of the power that the delegate would exercise the power in conformity with the duties imposed on directors of the company by this Act and the company's constitution; and
(b) has monitored, by means of reasonable methods properly used, the exercise of the power by the delegate.
14. There is nothing on the face of the s 18(1) application to show that the board of the applicant delegated to Mr Paraia the authority to make the application or to sign it on behalf of the applicant.
15. It is the board of the applicant that should authorise the making of the application and its signing, in accordance with s 109 (management of company) of the Companies Act, which states:
(1) The business and affairs of a company shall be managed by, or under the direction or supervision of, the board of the company.
(2) The board of a company has all the powers necessary for managing, and for directing and supervising the management of, the business and affairs of the company.
(3) Subsections (1) and (2) are subject to any modifications, exceptions, or limitations contained in this Act or in the company's constitution.
16. We uphold the submissions of the fourth intervener, supported by the first and second intervener, that it is necessary for the company’s common seal to be affixed to the signature of a person who is authorised to sign for and on behalf of the company.
17. Though there is no express requirement in the Rules that a s 18(1) application by a company be executed under its common seal, it is reasonably inferred that such a requirement exists, for these reasons.
18. First, there are similarly strict signing requirements for prescribed authorities making s19 Constitution references to the Supreme Court. For example, a s19 reference by a provincial executive must be signed by a proper representative of the provincial executive, not by the referring authority’s lawyer (SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249). A proper officer of the provincial executive should state that they sign for and on behalf of the provincial executive and show the date and description of the decision of the provincial executive that authorised the making of the reference (SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917). Strict signing requirements exist for making s 19(1) references to the Supreme Court and it is sensible to impose similar requirements for s 18(1) applications.
19. Secondly, the reason for imposing strict signing requirements for s 19(1) references (to guard against the risk of unauthorised approaches being made directly to the Supreme Court, as explained in SC Ref No 2 of 2010; Reference by Attorney-General (2010) SC1078 and SC Ref No 4 of 2010; Reference by Morobe Provincial Executive (2010) SC1089) applies equally to s 18(1) applications. The Court must be vigilant in protecting its processes from abuse and imposing strict signing requirements is one way of minimising that risk.
20. Thirdly, the Supreme Court and the National Court have developed strict requirements for companies providing an undertaking as to damages in applications for injunctions. The undertaking must be given under the common seal of the company (PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, Walker v Total Cleaning Services Ltd (2020) SC1924, (2007) N3143, Rustproof Ltd v Eastpac Ltd (2015) N7038). It is sensible and logical, in fact the case is stronger, to impose the same requirement for making a s 18(1) application directly to the Supreme Court.
21. Fourthly, affixing a company’s common seal to any legal document is the conventional way in which the company’s intention to be bound by the document is manifested (NHC v Audela Ltd (2020) N8436, Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146).
22. It was suggested in submissions that not only must the common seal of the company be affixed to the signature of the person signing for and on behalf of the company, the person actually signing should state that they sign for and on behalf of the company and show by reference to the date and resolution number of the meeting of the board of directors of the company that the company has authorised the making and signing of the application. We agree with that suggestion. A similar requirement exists regarding the making of special references under s 19 by provincial executives (SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917). We see no good reason the same requirement should not apply to s 18(1) applications.
23. To summarise, these are the signing requirements for a company making a s 18(1) Constitution application to the Supreme Court:
24. Only when those requirements are complied with can it be said that the application has been signed by the applicant, as required by the Rules.
STRICT COMPLIANCE
25. Strict compliance with these requirements is necessary as the applicant is making a direct approach to the Supreme Court and seeking to invoke its original jurisdiction under the Constitution. It is a special and significant application, as it seeks declarations that laws made by Parliament are invalid (Application by Namah (2020) SC1934).
26. The signing requirements were not complied with in the present case as:
RESULT OF FAILURE TO COMPLY WITH SIGNING REQUIREMENTS
27. The result is that the application has not been signed by the applicant. This is a fatal defect, which goes to the jurisdiction of the Court (Namah v Pato [2013] 1 PNGLR 205, Application by Morobe Provincial Government (2012) SC1190) and renders the application incompetent.
CONCLUSION
28. The application is non-compliant with the signing requirements of the Rules. Strict compliance with the Rules is necessary. The application does not meet the standard of strict compliance required. 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 28 March 2022 is upheld.
(2) The proceedings are entirely dismissed.
(3) The applicant shall pay the first, second and fourth interveners’ costs of the entire proceedings on a party-party basis which shall, if not agreed, be taxed.
________________________________________________________________
SLM Legal Practice: Lawyers for the Applicant
Solicitor-General: Lawyer for the First Intervener
Ashurst: Lawyers for the Second Intervener
Corrs Chambers Westgarth: Lawyers for the Third Intervener
Allens: Lawyers for the Fourth Intervener
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