Application by Rex Kiponge [2024] PGSC 35; SC2566 (26 April 2024)

SC2566

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA NO 1 OF 2023

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)
APPLICATION BY REX KIPONGE

Waigani: Cannings J, Frank J, Purdon-Sully J
2024: 23^rd & 26^th April

SUPREME COURT – objection to competency of application under Constitution, s 18(1) – whether application compliant with Supreme Court Rules – whether application pleaded interpretation of Constitutional Laws and relief for which the applicant contends – whether sufficient pleading of facts – Supreme Court Rules, Order 4 rule 3(c), (d).

Both interveners to an application under s 18(1) of the Constitution (which challenged the constitutionality of the Civil Aviation (Amendment No 1) Act 2022 and decisions made regarding the applicant’s suspension and revocation of appointment as managing director of the National Airports Corporation) objected to competency of the application on grounds that it did not state the interpretation of the Constitutional Laws and the relief for which the applicant was contending and the facts out of which his request arises and was therefore non-compliant with Order 4 rules 3(c) and (d) of the Supreme Court Rules.

Held:

(1) To comply with the Supreme Court Rules, a s 18(1) application must under Order 4 rule 3(c) and (d) state “the answer or interpretation [of the constitutional provisions the subject of the application] and relief for which the applicant contends” and “the facts out of which the request arises”.

(2) Paragraph 3 of the application seeks declarations that the whole or part of the Civil Aviation (Amendment No 1) Act 2022 is unconstitutional due to its breach of specified provisions of the Constitution and that decisions of the Minister for Transport and Civil Aviation and the board of National Airports Corporation Ltd and the National Executive Council regarding the applicant’s suspension and revocation of appointment as managing director of the National Airports Corporation are unconstitutional. The application complied with Order 4 rule 3(c).

(3) Paragraph 4 of the application sets out the facts out of which the applicant’s request for a declaration as to his standing arises. Though it contains some submissions of law, that does not nullify the statement of facts, which is clearly articulated. The application complied with Order 4 rule 3(d).

(4) All grounds of objection failed. The objections to competency were refused.

Cases Cited
Application by Namah (2021) SC2082
Application by Namah (2021) SC2105

Counsel
B Poki, for the Applicant
S Ranewa, for the First Intervener, the Minister for Transport & Civil Aviation
K Kipongi, for the Second Intervener, the Attorney-General

26^th April 2024

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

2. The application was filed by the applicant, Rex Kiponge, on 1 February 2023 and amended on 11 October 2023. He challenges the constitutionality of the Civil Aviation (Amendment No 1) Act 2022 and decisions of the Minister for Transport and Civil Aviation and the board of National Airports Corporation Ltd and the National Executive Council regarding his suspension and revocation of his appointment as managing director and chief executive officer of the National Airports Corporation.

3. The Minister, Hon Walter Schnaubelt MP, and the Attorney-General, Hon Pila Niningi MP, have been granted leave to join the proceedings as first intervener and second intervener respectively.

4. Both interveners object to competency of the amended application (the first intervener by a notice of objection filed 25 October 2023, the second intervener by a notice of objection filed 18 December 2023) on three grounds. They assert that the amended application does not state:

(1) the interpretation of the Constitutional Laws for which the applicant is contending, which is a requirement of Order 4 rule 3(c) of the Supreme Court Rules;

(2) the relief for which the applicant is contending, which is another requirement of Order 4 rule 3(c) of the Supreme Court Rules; and

(3) the facts out of which his request arises, which is a requirement of Order 4 rule 3(d) of the Supreme Court Rules.

5. Their argument is that the amended application is non-compliant with the Rules, that it does not engage the jurisdiction of the Supreme Court, that it is a constitutional application and strict compliance with the Rules is necessary and that it is incompetent.

6. The applicant argues that the amended application meets all those requirements and that the objections to competency ought to be refused, with costs.

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 s 18(1) of the Constitution. Those that the interveners assert are not complied with are Order 4 rules 3(c) and (d). 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.

[Emphasis added.]

STRICT COMPLIANCE WITH RULES NECESSARY

8. We have no difficulty with the interveners’ contention that strict compliance with the Supreme Court Rules is necessary and that if an application is non-compliant with the Rules, this is a matter that goes to competency of the application. We adopt what was said by this Court in a successful objection to competency in Application by Namah (2021) SC2082: a rather strict standard of compliance must be adhered to as we are dealing with an application that seeks to invoke the original jurisdiction of the Supreme Court under the Constitution.

THE GROUNDS OF OBJECTION

Ground of objection (1)

9. The interveners argue that Order 4 rule 3(c), which requires the application to state “the answer or interpretation ... for which the applicant contends”, is not complied with. They argue that the amended application does not in clear terms provide the answer or interpretation of the Constitutional Laws that the applicant is contending for.

10. We reject that argument. Paragraph 3 of the amended application begins with these words:

The applicant requests the Court to declare that the proper interpretation or application of ss 37, 38, 39, 41, 48, 59, 208A, 208B and schedule 2.11 of the Constitution renders the whole or part of the Civil Aviation (Amendment No 1) Act 2022 unconstitutional, as follows.

11. It then proceeds in three parts. Part I pleads that the provisions of the Civil Aviation (Amendment No 1) Act 2022 that amend the Civil Aviation Act 2000 by inserting new ss 147AF (appointment of managing director) and 147AG (appointment of acting managing director) are inconsistent with or in breach of specified provisions of the Constitution (ss 37, 38, 39, 41, 48, 59, 208A and 208B and schedule 2.11) and are therefore unconstitutional.

12. Part II pleads that the Civil Aviation (Amendment No 1) Act 2022 is invalid as it is in conflict with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and the Civil Aviation Act 2000 in various ways.

13. Part III pleads that by reason of the unconstitutionality and invalidity of the Civil Aviation (Amendment No 1) Act 2022, decisions in 2022 and 2023 of the Minister for Transport and Civil Aviation and the board of National Airports Corporation Ltd and the National Executive Council regarding the applicant’s suspension and revocation of his appointment as managing director and chief executive officer of the National Airports Corporation are unconstitutional and invalid.

14. We agree with the interveners’ argument that part II of paragraph 3 raises questions of statutory interpretation and application that do not appear to be constitutional in nature, which might be irrelevant if the application goes for trial.

15. However, we are satisfied that parts I and III of paragraph 3 sufficiently plead the answers and interpretations of Constitutional Law that the applicant is contending for. The first requirement of Order 4 rule 3(c) – that the application set out the answers and interpretations contended for – is complied with. The first ground of objection fails.

Ground of objection (2)

16. The interveners argue that the second limb of Order 4 rule 3(c), which requires the application to state “the ... relief for which the applicant contends”, is not complied with. They argue that the amended application does not in clear terms plead the relief being sought.

17. We reject that argument. Part III of paragraph 3 of the amended application pleads clearly that as a consequence of the unconstitutionality of the Civil Aviation (Amendment No 1) Act 2022 the decisions in 2022 and 2023 of the Minister for Transport and Civil Aviation and the board of National Airports Corporation Ltd and the National Executive Council regarding the applicant’s suspension and revocation of his appointment as managing director and chief executive officer of the National Airports Corporation are unconstitutional and invalid. It is apparent that the applicant is seeking declarations to that effect.

18. The interveners assert that this is not substantive relief but only consequential relief. We fail to appreciate the significance of distinguishing between those two types of relief.

19. The interveners appear to be arguing that more particulars have to be provided as to how and why it is alleged that particular provisions of the Civil Aviation (Amendment No 1) Act 2022 are inconsistent with or in breach of particular provisions of the Constitutional Laws. We reject that argument too. The Supreme Court pointed out in Application by Namah (2021) SC2105 that:

There is no need in a s 18(1) application to separately plead the interpretation of the constitutional provisions being sought and the relief being sought. It is proper and compliant with the Supreme Court Rules to combine those two requirements of the Rules.

20. The matters pleaded provide sufficient particulars from which it is clear that the applicant will assert, as to decisions regarding suspension and revocation of the applicant’s appointment, that the application of s 208B of the Constitution will be brought to bear on the issue as to the application of ss 147AF and 147AG of the Civil Aviation Act, and thus the constitutional validity of those decisions.

21. We consider that the relief sought by the applicant is sufficiently particularised. The second ground of objection fails.

Ground of objection (3)

22. The interveners argue that Order 4 rule 3(d), which requires the application to state “the facts out of which the request arises”, is not complied with. They argue that paragraph 4 of the amended application contains statements, opinions and submissions, not facts.

23. We agree that paragraph 4 contains some submissions of law, which do not belong in a statement of facts. However, the inclusion of that irrelevant material does not nullify the statement of facts, which is clearly articulated in the paragraph. The amended application complies with Order 4 rule 3(d). The third ground of objection fails.

CONCLUSION

24. The amended application is compliant with the Rules. It meets the standard of strict compliance required. The jurisdiction of the Court has been properly invoked. All grounds of objection fail. Both objections to competency are refused. Costs will follow the event.

ORDER

(1) The objections to competency filed by the first intervener on 25 October 2023 and by the second intervener on 18 December 2023 are refused.

(2) The first and second interveners shall pay the applicant’s costs of each objection on a party-party basis, which shall, if not agreed, be taxed.

(3) The application is referred to the duty judge for directions re hearing of the application for a declaration as to standing.

_____________________________________________________________
Warner Shand Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Intervener
Solicitor-General: Lawyer for the Second Intervener