Application by Hon. Powes Parkop, Governor of National Capital District [2022] PGSC 67; SC2268 (27 July 2022)

SC2268

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS 1 OF 2022

APPLICATION PURSUANT TO
CONSTITUTION SECTION 18(1)

APPLICATION BY
HON. POWES PARKOP, GOVERNOR
OF NATIONAL CAPITAL DISTRICT

Waigani: Batari J., Mogish J., Hartshorn J.
2022: 14^th & 27^th July

SUPREME COURT – practice and procedure - Application for a declaration as to standing – whether application should be brought before the Court by interlocutory application – Order 4 Rule 1(b)(ii) Supreme Court Rules considered

Cases Cited:

Papua New Guinean Cases

Nil
Overseas Cases
MIR Holdings Pty Ltd v. Marina Square Retail Pty Ltd [2020] NSWCA 286

Counsel:

Ms. G. Sikre, for the Applicant
Mr. T. Tanuvasa, for the First Intervener
Mr. G. Wayne, for the Second Intervener
27^th July, 2022

1. HARTSHORN J., with whom BATARI J. and MOGISH J. agree:
This is a decision on whether the issue of the standing of a substantive Applicant in an Application made pursuant to s. 18(1) Constitution should be brought before this Court by an interlocutory application.

Background

2. At the beginning of the hearing to determine whether the substantive Applicant has standing to make this substantive Application, with reference to Order 4 Rule 1(b)(ii) Supreme Court Rules, the question arose as to whether that issue of standing should be brought before this Court by an interlocutory application. A separate hearing was ordered and conducted by this Court on that question.

Consideration

3. The submissions of the interveners are in essence that the issue of the standing of a substantive Applicant in an Application made pursuant to s. 18(1) Constitution should be brought before this Court by an interlocutory application, that such an application is provided for in Order 4 Rule 1(b)(ii) Supreme Court Rules and that such an application is mandatory. The Applicant submits otherwise, that such an interlocutory application is not necessary. It was not brought to the Court’s attention that this question has been specifically considered and argued before this Court before and I am not aware that this question has been considered by this Court before.

4. It is submitted that Order 4 Rule 1(b)(ii) Supreme Court Rules provides for such an application because of the words “be endorsed with - an application ....”. It is submitted that “endorsed with” should be interpreted as meaning “attached” and that an application concerning standing should comprise a separate document which is attached to the substantive Application.

5. In considering this submission, I note that the word “endorsement” is used in this jurisdiction to mean added or included on or on to something. This usage is in Order 4 Rules 19, 20(1) and (3), and Rule 21 National Court Rules and concerns a statement of claim being endorsed on a writ. Order 4 Rules 19 and 20 are derived from former Rules of the High Court of the United Kingdom.

6. Order 4 Rule 19 states that “before a writ of summons is issued, it must be endorsed with a statement of claim.” That such an endorsement is on the writ and not attached to it, is revealed by Order 4 Rule 20(3) which refers to an affidavit “verifying the endorsement on the writ.”

7. I am satisfied therefore that “endorsed with” may mean an addition or inclusion on a document and is another or alternative interpretation to that preferred by the interveners.

8. Form 1 of the Supreme Court Rules, by which “An Application under the Constitution Section 18(1) shall be instituted”, in clauses 1 and 2, has wording that amongst others, requests the Court to declare that the applicant has standing to make the application pursuant to s. 18(1) Constitution. To my mind, this constitutes the endorsement referred to in Order 4 Rule 1(b)(ii) Supreme Court Rules. I am not satisfied that Order 4 Rule 1(b)(ii) Supreme Court Rules should be interpreted to mean that a separate application concerning standing must be attached to the substantive Application, given the interpretation of “endorsement” in the National Court Rules to which I have referred.

9. A more fundamental point however, is that the issue of standing in the context of a s. 18(1) Constitution Application is referred to in Order 4 Rule 1(b)(ii) Supreme Court Rules as “an application for a declaration that the applicant has standing .....”.

10. To seek a declaration is to seek substantive and not interlocutory relief. If a declaratory order is made, it is final.

11. In this regard I refer to the recent New South Wales of Australia Court of Appeal judgment of MIR Holdings Pty Ltd v. Marina Square Retail Pty Ltd [2020] NSWCA 286. At [38] and [39], Bell P. with whom Bathurst CJ and Leeming JA agreed, said:

“38.... The making of a declaration on an interlocutory basis is problematic: see Meagher Gummow Lehane at [19-140] which notes, citing Upjohn LJ’s statement in International General Electric Co of New York Ltd v Commissioner of Customs and Excise [1962] Ch 784 at 789, that “[i]t follows from the very nature of declaratory relief that it is final relief, and that there can be no such thing as an interlocutory declaration”. See also d. Wright, Remedies (1^st ed, Federation Press, 2010) at 283.

39. In Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540; [2002] HCA 54, Gummow and Hayne JJ held (at[128]) that:

“‘Interlocutory’ declaration is a form of order not known to the law ....””

12. To seek substantive relief, such as a declaration, an originating document must be used and not a document that seeks interlocutory relief. Form 1 Supreme Court Rules by which an application under s. 18(1) Constitution shall be instituted, is such an originating document. As referred to, Form 1 in clauses 1 and 2, has wording that requests the Court to declare that the applicant has standing to make the application pursuant to s. 18(1) Constitution. What is being sought by that request is substantive relief. That the issue of standing must be determined first before the other substantive relief sought is considered, does not detract from the declaration as to standing which is sought, being substantive relief.

13. Consequently for the above reasons, I am satisfied that an interlocutory application is not required to bring the issue of standing in a s. 18(1) Constitution Application, before the Court. The standing application is already contained in the originating document – Form 1. Form 1 sets out all the substantive relief sought in the substantive Application.

14. Given this, it is not necessary to consider the other submissions of counsel. The costs of and incidental to this hearing shall be costs in the Application.
__________________________________________________________________
Mawa Lawyers: Lawyers for the Applicant
Solicitor General: Lawyers for the First Intervener
Kessadale Lawyers: Lawyers for the Second Intervener