Application by the Honourable Peter O'Neill, MP [2023] PGSC 60; SC2400 (26 May 2023)

SC2400

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA 9 OF 2022 (IECMS)

APPLICATION PURSUANT TO CONSTITUTION
SECTION 18(1)

APPLICATION BY THE HONOURABLE
PETER O’NEILL, MP

Waigani: Kandakasi DCJ, Batari J, Mogish J,
Hartshorn J, Makail J.
2023: 24^th April, 26^th May

PRACTICE & PROCEDURE - Supreme Court – Original Application under s. 18 of the Constitution - Objections to competency and application to dismiss after a declaration that the Applicant has standing to make an application pursuant to s. 18(1) Constitution – Consistent with current practice – Effectively allows for a review of decision on standing - Court cannot review final decision on standing – Current practice be changed to allow for all issues of competence and other preliminary issues to be dealt with at same time as hearing on application for declaration of standing – Relevant practice and procedure suggested.

Cases Cited:
Re Petition of MT Somare (No.1) [1981] PNGLR 265
Namah v. Pato (2014) SC1304
Application by Rt Honourable, Sir Mekere Morauta KCMG v. Ano Pala & Ors (2016) SC1529
In Application By Justice Sir Bernard Sakora (2020) SC1980
Application by Honourable Belden Namah (2020) SC1932
Application by James Yali (2022) SC2288
Application by Hon. Powes Parkop (2022) SC2286
Application by Hon. Belden Namah (2014) SC1342
Special Reference by the Hon. Davis Steven (2020) SC2041
Arran Energy Ltd & Ors v. Hon. Kerenga Kua & Ors (2023) N10268
Pondros Kaluwin v. Hon. Chris Haiveta & Ors (2023) SC2384
Kumbu v. Mann (2018) SC1710
Hagahuno v. Tuke (2020) SC2018
Lovika v. Malpo (2019) SC1895
Dekena v. Kuman (2018) SC1715
The State v. Tamate (2021) SC2132
Amet v. Yama (2010) SC1064
Mountain Catering Ltd v. Frederick Punangi (2013) SC1225
Kuk v. O’Neill (2014) SC1331
Application by Anderson Agiru (2003) SC704
Application by Joseph Kintau (2011) SC1125
Popuna v. Oua (2017) SC1564

Counsel:
Mr. R. Webb SC and Mr. G. Kult, for the Applicant
Mr. L. A. Jurth, Mr. D. Mel and Mr. R. Kebaya, for the First Intervener
Mr. M. Nale and Mr. S. Dewe, for the Third Intervener
Mr. K. Kawat, for the Fourth Intervener
Mr. P. Kuman, for the Fifth Intervener
Mr. N. Kopunye, for the Sixth Intervener

26^th May, 2023

1. KANDAKASI DCJ: The interveners through three contested applications (the applications) seek to dismiss this proceeding (the Application). The applications consist of two objections to competency and one application to dismiss. All these applications were filed after the full Supreme Court declared the Applicant, Honourable Peter O’Neil (the Applicant) has the necessary standing to bring the Application.
   

2. I had the privilege of reading the draft decision of my brothers Hartshorn J and Makail J. I agree with their Honours that the applications should be dismissed. I agree with the reasons their Honours offer but wish to express them in my own words.

Nature of the applications, background and arguments

3. The nature of the objections and the application to dismiss the proceeding, the relevant background and the parties’ submissions are as set out in the decision of Hartshorn J and Makail J. I wish not to repeat them except as may be necessary in the course of dealing with each of them.

Consideration

4. Applications under s. 18 (1) of the Constitution (s. 18 (1)) are a special category or kind of litigation. Given that special status, a party seeking to invoke the Court’s jurisdiction under s. 18 (1) must first satisfy the Court that he or she as the necessary standing to do so. It is now established practice and procedure that an applicant under s.18 (1) must first apply for a declaration as to his or her standing before proceeding any further. The standing of a party to bring an application under s. 18 (1) thus becomes the first and foremost issue to be determined by the Court. Once such an application is considered and is determined in favour of an application, the applicant is effectively permitted to proceed with a hearing and determination on the substantive merits of his or her application.

5. The relevant principles governing an application of declaration as to one’s standing are now trite law. They were first developed by the decision in Re Petition of MT Somare (No.1) [1981] PNGLR 265 (Somare case). The Subsequent decision of the Supreme Court in Namah v. Pato (2014) SC1304 at [24] summarised the principles enunciated in the Somare case in these terms:

“The first point to make is that the question of whether an applicant under Section 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court. The discretion is to be exercised in accordance with the rules of the underlying law formulated in Somare and developed in subsequent cases, which can be summarised as follows:

1. The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:
   • has personal interests or rights that are directly affected by the subject matter of the application; or
   • is a citizen who has a genuine concern for the subject matter of the application;
   • is the holder of a public office, the functions of which relate to the subject matter of the application.
2. The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.
3. The applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.
4. The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing. The applicant does not have to demonstrate that he has approached persons whose personal interests are directly affected and encouraged them to bring an action to enforce their personal rights, eg under Section 23 or 57 of the Constitution. Nor does the applicant have to approach one of the authorities entitled to apply to the Supreme Court under Section 19 of the Constitution for a binding opinion on questions of constitutional interpretation or application, and ask that authority to make a special reference under Section 19(1). These are things that can be taken into account in considering whether the applicant has a genuine concern for the subject matter and whether as a matter of discretion the Court should declare that the applicant has standing, but they are not preconditions to be satisfied before an applicant is granted standing.”
   
6. All these requirements are important for an applicant to meet to secure a declaration of standing. At the time of hearing, considering, and determining such an application, the Court carefully goes through a consideration of each of the requirements, including the correct form and way in which such an application must be filed and pursued. But of all the requirements, the most critical requirement is the second requirement, which is the need to demonstrate to the satisfaction of the Court that the applicant is raising significant and not trivial, vexatious, hypothetical, or irrelevant constitutional issues or questions. That requirement is at the heart of the matter or the cause of action for an application under s. 18 (1). The Supreme Court in its decision in the Application by Rt Honourable, Sir Mekere Morauta KCMG v. Ano Pala & Ors (2016) SC 1529, confirmed that position in these terms at [30]:
   

“Nowhere is there in any of these paragraphs or elsewhere in the application, a clear statement of the kind of proper interpretation and or application of any of the Constitutional provisions that may be required is specifically mentioned or set out. This is very critical from three perspectives. Firstly, clarity in a statement of the issues presented will help enable the Court and the parties to know if the matter before the Supreme Court is a matter in which the Supreme Court has the necessary jurisdiction to consider and deal with. Without any such clear statement, the Court cannot be expected to assume any jurisdiction and deal with the matter. Secondly, such a clear statement will help enable the Court and all parties to know what Constitutional law provision is required to be interpreted and or applied and in what particular way. This will enable the opposing party to know the case they may have to meet and enable them to properly prepare and present their arguments. Finally, such a clear statement would enable the Court and the parties to ascertain if the issue has been raised before or the issue is one only of application of a Constitutional provision without the need for any interpretation. For if the provisions have been already considered in earlier proceedings or they are very clear, there would be no reason to re-agitate the same issues again or ask for any interpretation.”

7. A quick survey of the published decisions on point reveals that the outcome of each of the applications was dependent very much on whether a significant constitutional question was presented or not. The decision in the In Application By Justice Sir Bernard Sakora (2020) SC1980 is an example of his application for declaration as to his standing was granted because the Supreme Court was of the view at [8] – [10] that:
   

“8. The applicant wishes to raise constitutional issues as to the interpretation and application of provisions of the Constitutional Laws relating to the procedures to be complied with prior to removal from office of a Judge. We consider that these issues are inherently significant. The questions are not trivial, vexatious, hypothetical or irrelevant.

9. Though there is some case law on the general subject of appointment of tribunals to inquire into the removal of Judges and other constitutional office-holders (eg Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011, Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported) we know of no case that has addressed the particular arguments that the applicant proposes to advance, if this matter proceeds to trial.

10. Though the applicant has resigned and determination of the issues have lost some of their direct relevance for him, whatever interpretation of the Constitutional Laws is given by the Court will be of benefit and practical significance for the future.”

8. Similarly, in the Application by Honourable Belden Namah (2020) SC1932, the Supreme Court granted his application because the Court found at [18] that:
   

“Though the interveners have raised valid issues as to the prospects of the application succeeding, the appointment of the Prime Minister is made under s 142 of the Constitution and a challenge to that decision intrinsically raises serious issues. Those issues cannot be properly regarded at this stage of the proceedings as trivial, vexatious, hypothetical or irrelevant. We are satisfied that the application raises significant constitutional issues.”^[1]

9. On the other hand, other applications such as the Application by James Yali (2022) SC2288, was not granted because the Supreme Court held at [38] that:
   

“In the circumstances, we hold that the Applicant does not raise any significant constitutional issue, and we find the question concerning whether the Constitutional Amendment was properly certified by the Speaker was answered by the Supreme Court in SC Ref 6/22.”

10. That was despite the Court finding the Applicant meeting the sufficient interest test.
    
11. From this survey of the cases on point, it is clear to me that, in order to determine an application for declaration of standing, the Supreme Court has always considered all aspects attending an application from the use of the correct form, to meeting all the relevant requirements of the Rules of the Court, including proper and sufficient pleadings and disclosure of significant constitutional issues as opposed to trivial, vexatious, hypothetical or irrelevant issues. In my humble view, this means effectively that, an applicant had to satisfy the Court that his or her application is competent to convince the Court to grant his application for a declaration that he has the standing to bring the application. It should necessarily follow therefore that, any question of competence of an application under s. 18 (1) should be a consideration during the Court’s deliberation on whether an applicant has the requisite standing to make an application at the first place.
    
12. I appreciate the above suggestion is a shift from the prevailing practice of the Court entertaining objections to competency of s.18 (1) applications after a decision declaring an applicant has the necessary standing to make the application. When viewed carefully, the suggestion brings consistency and a logical follow through with the fact that, a decision on standing is a deliberate and final decision on one of the main reliefs often sought in s. 18 (1) application. The decision of the Supreme Court in Application by Hon. Powes Parkop (2022) SC2268, at [9] – [10] confirms the finality in the decision position in the following terms.
    

“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.”

13. Once such a final decision is arrived at, this Court has no jurisdiction to review such a decision either directly or indirectly. The decision in Special Reference by Hon. Davis Steven (2020) SC2041 confirms that position in these terms at [12] – [13] and [16]:
    

“12. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.

13. The Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court. As the Supreme Court does not have this jurisdiction or power it does not have the jurisdiction or power to be able to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders.

...

16. Further, I concur with counsel for the intervener that apart from there not being any legislative basis to permit a Supreme Court to be able to stay a final judgment or order of another Supreme Court, there is also no jurisprudential basis for such relief to be granted. A final decision of the highest Court in a common law jurisdiction such as Papua New Guinea, is final. This is in the interests of the finality of litigation and in the interests of justice.”

14. Once the Court has come to a decision on the issue it becomes functus officio. Unlike administrative decisions that are open for revisit as confirmed by provisions like that of s. 35 of the Interpretation Act or similar legislative provisions: See Arran Energy (Elevala) Ltd & Ors v. Hon. Kerenga Kua & Ors (2023) N 10268 at [28] – [34].
    
15. At the same time, I remind myself and accept the fact that, the Supreme Court is not bound by its own decision going by the dictates of Sch. 2.9 (1) of the Constitution. The provision clearly states that “[a]ll decisions of law by the Supreme Court are binding on all other courts, but not on itself.” As was recently restated by the Supreme Court in its decision in Pondros Kaluwin, Public Prosecutor v. Honourable Chris Haiveta & Ors (2023) SC 2384 at [23] – [25]:
    

“It is also trite law that, even though the Supreme Court is not bound by its own decisions, it cannot readily and easily overturn its earlier decisions. There are well established principles or requirements that must be met before the Supreme Court can correctly depart from any of its earlier decisions. Kandakasi J (as he then was), in Paru Aihi v. Peter Isoaimo (2013) SC1276, with the agreement of Yagi J, reviewed in some detail the relevant Supreme Court decisions on point. That included the decision in Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628, per Amet CJ., Kapi DCJ., Woods, Los, Sheehan, Sakora and Sevua JJ. Kapi, DCJ., (as they then were). Kandakasi J summed up the principles as follows:

‘A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society's guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:

(i) the earlier decision clearly misinterpreted, misconceived; mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”^[2]

16. Clearly the Supreme’s ability to depart from its earlier decisions must be done consciously and in accordance with the established principles. But that would be the case on the question of a binding prior decision as a precedent to a subsequent or new case. If, however, there was any advocation for an application of the notion of the Supreme Court not being bound by its own prior decision in the same case it is presently dealing with, the relevant and applicable principles would obviously preclude any departure from its earlier decision on standing.
    
17. Having regard to the above positions of the law, I consider the practice of allowing competency issues to be raised and dealt with after a decision declaring standing in favour of an applicant is effectively allowing for a review of the final decision on standing. This cannot be because the Court does not have the necessary power or the jurisdiction to do as was clearly stated and explained by the decision in Special Reference by Hon. Davis Steven (supra).
    
18. I note the prevailing practice is consistent with the general position on the issue of competence of any other process, such as appeals and reviews before the Supreme Court. The prevailing practice also allows for the issue of competency to be raised at any stage of the proceedings prior to judgment if the competency issue goes into the jurisdiction of the Court to deal with the matter: See Amet v. Yama (2010) SC1064, Mountain Catering Ltd v. Frederick Punangi (2013) SC1225 and Kuk v. O’Neill (2014) SC1331.
    
19. The correctness or otherwise of the current practice was not the subject of any prior consideration and decision of the Supreme Court. The issue was raised and argued before us for the first time. I have given serious consideration to the submissions of learned counsel and have come to a decision. The decision is that the current practice of objections to competency of proceedings filed under s. 18 (1) of the Constitution and or entertained after a decision to declare an applicant has standing is inappropriate and inapplicable to such applications. Two main reasons have led me to that conclusion. Firstly, as noted above, a hearing and determination on the question of standing gives the parties and the Court the opportunity to consider the competence of such applications as a whole. Without a finding that an applicant has presented a competent application by meeting the Somare and Namah v. Pato cases requirements, an applicant cannot be granted standing. Once the Court finds for an applicant’s standing, it is also effectively determining the competence of the proceeding too. As already noted, such a decision is final and is not open for review by the Supreme Court, however, it is constituted: Application by Anderson Agiru (2003) SC704; Application by Joseph Kintau (2011) SC1125 and Popuna v. Oua (2017) SC 1564.
    
20. Secondly, the source of litigation for an application under s.18(1) Constitution is derived from the Constitution as opposed to a statute or common law and equity. This means such applications are no ordinary litigation where an objection to competency may be raised at any time. They are specific and peculiar litigation in that they seek to ventilate significant and not trivial, vexatious, hypothetical, or irrelevant constitutional questions. Once a decision on standing has been arrived at in favour of an applicant in those terms, that decision declares both the applicant’s standing and the competence of the application. Allowing the ordinary practice of raising issues of competency at any stage of a proceeding to apply, will continue to reduce the significance of both the requirement and a decision in favour of an applicant having the necessary standing to bring the application and defeat their purpose, especially if an objection is to be entertained and decided against an application without a hearing on its merits. In contrast, the interveners would still have the opportunity to raise at the hearing of the substantive application whatever issues they might have as against the application for the Court’s consideration and decision as part of a hearing and determination of the substantive matter.
    
21. Before concluding and going onto the final orders, I also considered the sixth intervener’s objection to competency. By reason of that intervener intervening after the decision on standing it argues its objection is in a different category to that of the first intervener. It therefore argues that its objection should be heard and determined on its merits. That in my respectful view makes no difference. Repeating what I have already said, to consider the sixth intervener’s objection to competency would have this Court effectively review its final order which declared that the applicant has standing. That this Court cannot revisit because of the special nature of applications under s. 18 (1) of the Constitution and the decision on standing and all issues connected to that have been finally determined. Also, the other interveners will have the opportunity to be heard on the merits of the Application before a final decision.
    
22. For the forgoing reasons, I would dismiss the two objections to competency.
    
23. The third intervener’s application seeking a dismissal of the proceeding, in my view should also be dismissed. The foregoing discussions and the reasons apply equally with appropriate modification to that application. In short, the questions of whether a reasonable cause of action is disclosed in this proceeding or whether the proceedings amount to an abuse of process are questions that were effectively considered in the context of considering and determining the Applicant’s standing issue.
    
24. As will be apparent from the forgoing, all issues of competence, abuse of process or a failure to disclose a reasonable cause of action and any other preliminary matter should all be dealt with at the same time as the hearing of an application for the Applicants standing. This will clearly save the parties and the Court’s much time and costs. It will also enable an expedited hearing and disposal of an application under s. 18 (1), once all preliminary issues including any competency issues are dealt with and the substantive issue of standing are determined. Accordingly, I would go on to suggest in the absence of any specific provision in the Supreme Court Rules to the contrary the following be the practice process and procedure after the filing of an application under s. 18 (1) of the Constitution:
    

(1) applicants bringing proceedings under s.18 (1) of the Constitution serve their applications on the parties who stand to be affected and are named pursuant to Order 4, r. 3 (f) of the Supreme Court Rules, within 21 days from the date of filing.

(2) all who wish to intervene in the application whether served with the application or not, file and serve their application to intervene, in the required form within 21 days of service of the proceeding.

(3) all applications for intervention be heard and disposed of separately.

(4) any objection as to the competency of an application be filed in Form 9 with appropriate modifications and be filed and served within 21 days of decision granting leave to intervene.

(5) any party taking issue with an application under s. 18 (1) that is not a competency issue, file and serve his application in Form 4 within 21 days of decision granting leave to intervene.

(6) an applicant’s application for declaration as to standing by the Supreme Court and any objection to competency filed under (d) or any other application under (e) be all heard and determined at the same time.

(7) a decision on standing, objection to competency and or any other application shall be final.

Orders

25. These are my reasons for my decision to have the objections and the application to dismiss refused. Consequently, I would make the following orders:

(1) The objections to competency of the first and sixth interveners are refused.

(2) The application for dismissal of the third intervener is also refused.

(3) The costs of and incidental to the objections to competency and the application for dismissal be costs in the Application.

26. BATARI J: I have read the draft decisions of the Deputy Chief Justice and of Hartshorn J and Makail J. I agree with the orders proposed. I also agree with the important procedural points covered in the reasoning of the Deputy Chief Justice and with the reasoning in the decision of Hartshorn J and Makail J.

27. MOGISH J: I have read the draft decisions of the Deputy Chief Justice and of Hartshorn J and Makail J. I agree with the orders proposed.

28. HARTSHORN J and MAKAIL J: This is a decision on three contested applications which seek to dismiss the substantive application (Application). The applications consist of two objections to competency and one application to dismiss. They are moved or supported by all the appearing interveners.

Background

29. The substantive Applicant, Hon. Peter O’Neill, makes application pursuant to s.18(1) Constitution for this Court’s interpretation on certain provisions of the Constitution and three Organic Laws. This is in respect of his contentions that amongst others, Parliament was not constitutionally called to sit on 9^th August 2022.

30. Upon application by the Applicant on 24^th October 2022, this court declared that the Applicant has standing to make this application under s. 18(1) Constitution.

Objections to competency and application to dismiss

31. The first intervener, the Attorney General of Papua New Guinea, objects to the competency of the Application on the grounds that it discloses no cause of action and does not seek relief; that in the absence of jurisdiction to do so, it has been brought in substance as a Constitutional Reference by a private citizen; that it has not enlivened s. 18(1) Constitution and that it does not plead the factual basis upon which the purported Constitutional questions arise.

32. The sixth intervener, the Acting Registrar of Political Parties, objects to the competency of the Application on two grounds to the effect that the original jurisdiction of the Supreme Court under s.18(1) Constitution has not been invoked.

33. The third intervener, the Pangu Pati Inc., seeks that paragraphs 3 and 4 of the Application be dismissed on the grounds that no reasonable cause of action is disclosed and for being an abuse of process of this court.

Abuse of process

34. The Applicant submits that the objection to competency of the first intervener and the dismissal application of the third intervener are an abuse of process. This is because the first and third interveners opposed the application by the Applicant for a declaration as to his standing, which was made and granted on 24^th October 2022. The matters now sought to be raised by the first and third interveners are matters which should have been raised in opposing the application for the declaration as to standing. It is an improper use of the court processes to raise them now, the Applicant submits.

35. The first intervener, supported by the other appearing interveners, submits that the matters considered on an application for a declaration as to standing do not concern a consideration of whether the Application is competent. If the submissions of the Applicant are to be preferred this will result in an application for a declaration as to standing being concerned with competency issues and to a greater extent than hitherto has been the case. Further, the case law does not indicate that the hearing of an Application made pursuant to s. 18(1) Constitution has developed in the manner that the submissions of the Applicant would suggest.

Further submissions of the Applicant

36. The Applicant submits that at the hearing on the application for standing by him, the first and third interveners set out in their written submissions the test applied by the Court in considering whether to exercise its discretion to grant standing. The Applicant submits that the first intervener did so by reproducing the statement of the rule from Namah v. Pato (2014) SC1304 as follows:

“6. In the case of Namah v. Pato (2014) SC1304 at paragraph 24, the Supreme Court summarised the rules in Somare case as follows:

“The first point to make is that the question of whether an applicant under Section 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court. The discretion is to be exercised in accordance with the rules of the underlying law formulated in Somare and developed in subsequent cases, which can be summarised as follows:

1. The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

• has personal interests or rights that are directly affected by the subject matter of the application; or
• is a citizen who has a genuine concern for the subject matter of the application;
• is the holder of a public office, the functions of which relate to the subject matter of the application.

2. The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.
3. The applicant must not be a mere busybody meddling in other people's affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.
4. The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing. The applicant does not have to demonstrate that he has approached persons whose personal interests are directly affected and encouraged them to bring an action to enforce their personal rights, eg under Section 23 or 57 of the Constitution. Nor does the applicant have to approach one of the authorities entitled to apply to the Supreme Court under Section 19 of the Constitution for a binding opinion on questions of constitutional interpretation or application, and ask that authority to make a special reference under Section 19(1). These are things that can be taken into account in considering whether the applicant has a genuine concern for the subject matter and whether as a matter of discretion the Court should declare that the applicant has standing, but they are not preconditions to be satisfied before an applicant is granted standing.”
   

37. The Applicant submits further that:

“7. The 1^st intervener opposed the grant of standing on the basis that:

a) the applicant did not have sufficient standing to bring the application, i.e., that he did not have the interest required by the first element of the test formulated in Somare and set out in paragraph 7 above: ....

b) The application did not raise a significant constitutional issue for consideration, i.e., that the second element of the test in Somare was not satisfied: ....

8. The grounds now asserted by the 1^st intervener in his Objection are all matters relevant to whether the applicant satisfied the test in Somare and, consequently, whether the Court’s declaration that he had the necessary standing. Thus:

a) Ground I raises a matter relevant to whether the applicant has a sufficient interest in the matter the subject of the proceedings; and

b) Grounds II to V all raise matters relevant to whether a significant constitutional issue is raised by the Further Amended Application.

9. In other words, the 1^st Intervener’s Objection seeks to raise and argue matters which were relevant to the very elements of the test for standing which it addressed in resisting the standing application in October 2022 and, additionally, were undoubtedly relevant to the exercise of the discretion of the court in granting standing then. It should have raised them. Having not done so it is an improper use of the Court’s procedure for it to now seek to introduce them in the guise of an objection to competency. It is an attempt to have a “second bite of the cherry”.

10. The Application of the 3rd Intervener is in the same category as the objection of the 1st Intervener. In the hearing as to standing it is submitted that:

a) There was no significant Constitutional issue: .....

b) And that the Applicant was not genuine in bringing the application. It made this submission in the context of the 3^rd requirement in the Somare test but it necessarily carries with it the proposition that the Applicant did not have a sufficient interest as per the 1^st requirement of the test: ...

11. The arguments the 3rd Intervener now advances ... are intimately bound up with its submissions in respect of standing and were relevant to the exercise of the discretion the Court exercised at that time. The proper time to put the arguments was in October 2022 in relation to standing. Having failed on that issue, it is not a proper use of the Court processes for him to seek to advance them in the present application.

12. For those reasons both the 1^st Intervener’s Objection and the 3^rd Intervener’s Application of abuse of process and should be dismissed.”

Consideration

38. It is the case that in determining whether an applicant has standing to make an application under s. 18(1) Constitution, one of the rules formulated in Re Petition of MT Somare (No.1) [1981] PNGLR 265 and developed in subsequent cases (see Namah v. Pato (2014) SC1304 at [24]) is that the application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues. It is arguable that to be able to raise such a significant constitutional issue, the issue must be competently raised. The competency of the issue therefore, should be a consideration in the court’s deliberation on whether an applicant has the requisite standing to make an application under s. 18(1) Constitution.

39. A further consideration is that when this Court makes a declaration that an applicant has standing to make an application under s.18(1) Constitution, it is making a determination on substantive relief sought. A declaration that an applicant has standing is a final order of the Court: Application by Hon. Powes Parkop (2022) SC2268, [9] – [12]. As a declaration that an Applicant has standing is a final order of the Supreme Court, the Supreme Court does not have the power or jurisdiction to review such an order: Special Reference by the Hon. Davis Steven (2020) SC2041 at [12] – [15]. To question the competency of an Application made under s. 18(1) Constitution after the Supreme Court has made a final order declaring that the Applicant has standing to make the Application, when the question of whether a significant constitutional issue and by implication its competency, is a factor to be considered by the Supreme Court in its determination of whether the applicant has standing, is effectively requesting the Supreme Court to review its final order.

40. As to the objection to competency of the sixth intervener, it is in a different category to that of the first intervener, by virtue of the sixth intervener intervening in this Application after the declaration as to standing was made. Again however, to consider the sixth intervener’s objection to competency would have this Court effectively review its final order which declared that the applicant has standing.

41. Finally, given that the source of litigation of an Application under Section 18(1) Constitution is derived from the Constitution as opposed to statute or common law and equity, it is no ordinary litigation where an objection to competency may be raised at any time. If it were, otherwise, it would defeat the purpose of an applicant who has been granted standing, to ventilate significant constitutional issues that are not trivial, vexatious, hypothetical, or irrelevant.

42. Consequently, for the above reasons the two objections to competency and application to dismiss are refused as this Court does not have the power or jurisdiction to review a final order of this court. Given this, it is not necessary to consider the other submissions of counsel.

43. As a consequence of the above decision and result, it is suggested that the procedure for an Application made under s. 18(1) Constitution should be that at a hearing before the Supreme Court to consider whether the Supreme Court should declare that the Applicant has standing to make the Application, all issues of competency of the Application should be raised and argued. It is acknowledged that there have been s. 18(1) Constitution proceedings in which objections to competency have been filed after a declaration as to standing has been made. The issue of the Supreme Court not being able to review a final order of the Supreme Court such as a declaration as to standing was not raised in those proceedings, however.

44. Further, once a declaration as to standing has been made, that declaration is not susceptible to challenge. A person may not intervene in an Application after a declaration that an Applicant has standing has been made unless exceptional circumstances are shown. If a person is permitted to intervene in an Application after a standing declaration has been made, that intervener may not question the competency of the Application.

Orders

a) The objections to competency of the first and sixth interveners are refused.

b) The application for dismissal of the third intervener is also refused.

b) The costs of and incidental to the objections to competency and the application for dismissal are costs in the Application.

Orders by the Court

45. The formal Orders by the Court are:

a) The objections to competency of the first and sixth interveners are refused.

b) The application for dismissal of the third intervener is also refused.

b) The costs of and incidental to the objections to competency and the application for dismissal are costs in the Application.

__________________________________________________________________
Young &Williams Lawyers: Lawyers for the Applicant
Mel & Hennry Lawyers: Lawyers for the First Intervener
Jema Lawyers: Lawyers for the Third Intervener
Kawat Lawyers: Lawyers for the Fourth Intervener
Kuman Lawyers: Lawyers for the Fifth Intervener
Kopunye Lawyers: Lawyers for the Sixth Intervener

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^[1] See also, the Application by Hon. Powes Parkop (2022) SC2286 at [13]; The Application by Hon. Belden Namah (2014) SC 1342 at [15] – 17.
^[2] Accepted and applied by the decisions in Kumbu v. Mann (2018) SC1710 at [10] and Hagahuno v. Tuke (2020) SC2018 at [70]-[71]; Lovika v. Malpo (2019) SC1895 [24] – [25]; Dekena v. Kuman (2018) SC1715 [14] – [17] and The State v. Tamate (2021) SC2132