Papua New Guinea Law Reports - 1987
[1987] PNGLR 249
SC335
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SPECIAL CONSTITUTIONAL REFERENCE NO 4 OF 1987; RE CENTRAL PROVINCIAL GOVERNMENT AND NATIONAL CAPITAL DISTRICT INTERIM COMMISSION
Waigani
Kidu CJ Amet Wilson JJ
31 March 1987
6 April 1987
PRACTICE - Constitutional reference - Form of - “Signed by authority or proper officer on behalf of the authority” - Special nature of reference - Signature of lawyer not sufficient - Supreme Court Rules, O 2, r 1; O 4, r 1(e) - National Court Rules, O 2, r 33.
PRACTICE - Striking out - Grounds for - Failure to comply with order for directions - Constitutional reference struck out.
COURTS AND JUDGES - Rules of Court - Interpretation - Special and general provisions - Constitutional reference - To be “signed by authority or proper officer” - Signature of lawyer not sufficient - Supreme Court Rules, O 2, r 1; O 4, r 1(e) - National Court Rules, O 2. r 33.
The Supreme Court Rules, O 4, r 1(e), provides:
“(1)    A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall:
(e)      be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference;...”
Held
(1)      (Amet J dissenting). As the reference procedure under s 19 of the Constitution is a special procedure to be resorted to only in exceptional circumstances it should be signed as required by O 4, r 1(e); a signature of the lawyer for the Referring Authority will not suffice.
For the purposes of the rule a signature “by a proper officer on behalf of the authority as required by law” means two things: (a) that only a person employed by the authority can sign the reference and; (b) that there must be authorization for such a person to do this on behalf of the referring Authority.
(2)      Failure to comply with a court order giving directions may result in the matter being struck out.
(3)      In the circumstances a reference under s 19 of the Constitution should be struck out on the ground that the Referring Authority had failed to comply with directions given as to the conduct of the matter.
Constitutional Reference
This was an application to strike out a reference to the Court made pursuant to s 19 of the Constitution.
Counsel
G Powell, for the applicant, the National Capital District Interim Commission.
P Steele and P Pato, for the respondent, Central Provincial Government.
6 April 1987
KIDU CJ WILSON J: Application to strike out this reference was filed on 31 March 1987 and heard on 6 April 1987. We made the following orders:
1.       We strike out the reference on the ground that the Referring Authority has failed to comply with the directions given in the orders made by Bredmeyer J on 27 February 1987.
2.       (Kidu CJ and Wilson J, Amet J dissenting.) We would strike out the reference as it is not signed by the Referring Authority as required by s 19 of the Constitution and O 4, r 1(e) of the Supreme Court Rules.
We now give our reasons for these two orders.
BACKGROUND
On 25 February 1987 Steeles, Lawyers, acting for the Provincial Executive of the Central Provincial Government filed a Special Constitutional Reference in the Supreme Court under s 19 of the Constitution. It reads, inter alia, as follows:
“SPECIAL REFERENCE
1.       THIS REFERENCE is made by the Provincial Executive of the Central Provincial Government an authority referred to in s 19 of the Constitution ...
2.       THE QUESTION IS:
Is s 43 of the National Capital District Government (Preparatory Arrangements) Act of 1982 as amended invalid and ineffective in that it is inconsistent with the provisions of s 56 and 57 of the Organic Law of Provincial Government?
Dated: 25th February 1987.
Signed by Steeles, Lawyers for the Provincial Executive of the Central Provincial Government ...”
On 27 February 1987, Mr Steele and Mr Pato of Steeles for the Referrer, Mr Tadabe for the Principal Legal Adviser and Mr Powell for the National Capital District Interim Commission, saw Bredmeyer J for directions and the following orders were made:
“1.      That the form and content of the question to be decided by the Court is:
(1)      As in the Reference
(2)      To be supplied within 14 days.
2.       That the case for the Affirmative answer to the question asked be argued by Messrs Steeles on behalf of the Provincial Executive of the Central Provincial Government and the case for the Negative to be argued by the National Capital District Interim Commission and the Principal Legal Advisor.
3.       That all parties have the right to adduce evidence in affidavit or other documentary form.
4.       That the parties shall submit brief extracts of argument in writing.
5.       Mr Powell for the National Capital District Interim Commission shall provide to the Court and the parties a list of National Capital District Interim Commission statutes challenged, copies of and Gazettal dates.
6.       That the question in the Reference be set down for hearing at 9.30 am on 31 March 1987.
7.       That the Reference Book shall consist of:
(a)      The title page;
(b)      The index;
(c)      The Special Reference by the Provincial Executive of the Central Provincial Government;
(d)      List of statutes challenge;
(e)      A certificate signed by all counsel that the Reference Book is correct;
8.       That the Lawyers for the Referring Authority file and serve copies of the Reference Book five days before the hearing date.
9.       That the costs of these directions be costs in the Reference.
10.     I grant leave for National Capital District Interim Commission to appear as a party.
11.     Leave granted to the Referror to amend the Special Reference to include new matters provided it is done within two weeks. Copy of the amended reference to be served on National Capital District Interim Commission the Principal Legal Advisor for the State. Documents to be headed ‘Amended Special Reference’.”
The orders made by Bredmeyer J were never entered and no Reference Book was certified by counsel or served on parties. But what happened was that the Lawyers for the Referring Authority on 30 March 1987 notified the Registrar that the hearing of the reference was not proceeding. This was done without prior notification to the other parties. So on 31 March 1987 Mr Powell for the National Capital District Interim Commission filed the present application.
GROUNDS OF APPLICATION
Mr Powell advanced three grounds for the application to strike out the reference and these were:
(1)      Non-compliance with orders made by Bredmeyer J on 27 February 1987.
(2)      The Reference was not signed by the Referring Authority as required by O 4, r 1(e) of the Supreme Court Rules.
(3)      The Reference does not contain the circumstances under which it arose as required by O 4, r 3(b) of the Supreme Court Rules.
1. Non-compliance with directions given by Bredmeyer J
The directions given by Bredmeyer J (in his capacity as a Judge of the Supreme Court) were issued under O 4, r 8 of the Supreme Court Rules (Ch No 37) and were issued, as already stated, a month before the date fixed for hearing of the Reference.
Under these directions the Lawyers for the Referring Authority were directed to file an amended reference, within 14 days of the date of the directions, have the Reference Book certified by all Lawyers involved and have the Reference Book filed and served on the other parties five days before the hearing date. None of these directions were complied with although Lawyers for the Referring Authority had a month to comply with them.
The only excuse advanced by the Lawyers for the Referring Authority is that they had difficulty getting instructions from their client on the matter of the proposed amendment to the reference. But if this was the case the simple solution was for the Lawyers to return to Bredmeyer J or another Judge of the Supreme Court either to have the matter properly stood over to another Judge of the Supreme Court or to have the matter properly stood over to another sitting of the Court or to request an extension of time to comply with the directions. It appears that this solution did not occur to the Lawyers. They left the directions unattended to until the day before the hearing date when they informed the Registrar that they were not proceeding with the hearing of the reference on the fixed date.
This non-compliance of orders made by the Court is not to be tolerated. As far as we are concerned if Lawyers and their clients fail to obey court orders and give no good reasons adverse consequences will follow and in this case the consequence is having their reference struck out.
2. Reference not signed by Referring Authority
Order 4, r 1(e) of the Supreme Court Rules is as follows:
“(1)    A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall:
(e)      be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; ...”
The reference was signed by Steeles, Lawyers for the Referring Authority and Mr Steeles argued that such a course of action was sanctioned by O 2, r 33 of the National Court Rules, which was adopted by O 2, r 1 of the Supreme Court Rules. This adopted rule provides as follows:
“(1)    Every matter or thing which under an Act or these Rules is required or allowed to be done by a party may be done by a solicitor.
(2)      Sub-rule (1) does not apply where the context or subject matter otherwise indicates or requires.”
So there is no open authority given to Lawyers by the rule. We hold the view that a s 19 Reference should be signed by the Referring Authority. The following are the reasons for our view.
A s 19 reference is a very special proceeding. There are very few countries in the world whose Constitutions allow certain authorities to seek the opinion of their highest Courts without there being any substantive legal action as the basis thereof. The Constitutional Planning Committee (CPC) recognized this and in recommending what is now s 19 it said, inter alia, as follows:
“It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.” (CPC Report, p 8/16.)
And the procedure is so exceptional that only a few public office-holders and institutions are allowed to use it, a Provincial Executive being one of these authorities. It is because of the special nature of a s 19 reference that the authority which makes it must consider the matter and sign the reference. In the case of a Provincial Executive the matter should be considered by that body and the reference signed by either the Premier or a member of the Executive. Order 4, r 1(e) has added that the reference may be signed also by a “proper officer on behalf of the authority as required by law”. We consider, that this means two things: (a) that only a person employed by the Authority can sign the reference and (b) that there must be authorisation for such a person to do this on behalf of the Referring Authority.
So O 4 is a special rule sanctioned by s 19 of the Constitution. In our opinion, therefore, it cannot be allowed to be overridden by any general rule. It is also inherent in the wording of O 4, r 1(e), that no other person other than those mentioned may sign a special Constitutional Reference. The Rule comes under the exception mentioned in O 2, r 33(2) of the adopted National Court Rules.
3. Reference does not state circumstances in which it arrives as required by O 4, r 3(b)
The reference does state the circumstances under which it arises and these are contained in par 2 of the reference. So the objection to the reference based on O 4, r 3(b), is misconceived and therefore without substance.
AMET J: The second ground upon which the application to strike out the reference was made was that the reference was not signed by a proper officer on behalf of the Referring Authority in breach of O 4, r 1(e) of the Supreme Court Rules.
Order 4, r 1(e), provides that:
“1.      A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall:
(e)      be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; ...”
The reference was signed by Steeles, Lawyers, in the following style:
“Signed by Steeles, Lawyers for the Provincial Executive of the Central Provincial Government:” (Steeles)
The reference was entitled correctly in compliance with O 4, r 1(b), thus:
“Reference by the Provincial Executive of the Central Provincial Government.”
It was submitted in support of the application that O 4, r 1(e), only permits the referring authority or a properly authorised officer on its behalf, as required by law, to sign the reference. It did not permit a lawyer to sign the reference on its behalf. It was submitted that Steeles, Lawyers, signed the reference purportedly on behalf of the Referring Authority, but there was nothing on the face of the reference to indicate that it was being taken out by a person having the required constitutional standing.
I consider that that is the very purpose of the requirement of O 4, r 1(b), to indicate the authority or person making the reference. It is sufficiently indicated in this reference, that it was the Provincial Executive of the Central Provincial Government that was making the reference, an authority entitled to make application pursuant to s 19(3)(eb).
The issue still is whether a lawyer can sign a reference on behalf of the referring authority.
The referring authority has submitted that the Supreme Court Rules by O 2, r 1, permitted Lawyers to sign on behalf of persons or parties who are otherwise required to sign their own documents and processes.
Order 2, r 1 provides as follows:
“1.      Application of National Court Rules.
The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to ...
(4)      Lawyers Order 2 Division 5.”
Order 2 Div 5, r 33, of the National Court Rules provides as follows:
“33.    Power to Act by Solicitors
(1)      Every matter or thing which under an Act or these Rules is required or allowed to be done by a party may be done by his solicitor.
(2)      Sub-rule (1) of this rule does not apply where the context or subject matter otherwise indicates or requires.”
Order 2, r 33 of the National Court Rules adopted as rules of the Supreme Court applies to the whole of the Supreme Court Rules, with necessary modifications. It does not apply subject to express provisions of a particular order and rule.
The only proviso to the application of O 2, r 33(1) is to be found in r 33(2). In my view r 33(1) is quite explicit that—
“Every matter or thing which under ... these Rules is required ... to be done by a party may be done by his solicitor,” (emphasis mine)
except:
“where the context or subject matter otherwise indicates or requires”.
It is true that O 4, r 1(e), expressly requires the person, authority or a properly authorised officer of the authority, making the reference to sign the reference, but it is in my respectful view, the very kind of requirement which O 2, r 33(1) permits “may be done by his solicitor”, unless “the context or subject matter otherwise indicates or requires”. In my view “the context or subject matter” of O 4, r 1(e) does not otherwise indicate or require that r 33(1) shall not apply. Order 4, r 1(e), is in the same terms as other similar requirements which are allowed to be done by lawyers. It is on the same level as the other requisites of the “form of reference” under O 4, r 1. It is not elevated to a special place above the other requirements. For instance can it be argued that non-compliance with any of the other requirements of r 1 (a)-(f) should lead to the striking out of a Reference. I consider that these are procedural and form requirements which can be rectified for the most part.
In O 5, on the review of National Court decisions, is a similar provision in relation to the form of the review application. Rule 1(f) provides that:
“1.      An application to the court under Constitution Section 155(2)(b) shall be instituted by an application to review and shall:
(f)      be signed by the person seeking the review; ...”
I consider that O 2, r 33(1) of the National Court Rules, by virtue of O 2, r 1 of the Supreme Court Rules, enables an O 5 application to be signed by a lawyer on behalf of the applicant. By O 5, r 1(b), the application would be expressly entitled with the name of the person making the application, so that just the same as in O 4, r 1, there cannot be any doubt as to who is the party or authority making the application, though it is signed by a lawyer on behalf of the applicant.
Again I pose the question, can it be argued that it was intended that only the aggrieved party in person should sign the application and that failure to so sign should lead to the application being struck out. I do not believe that was the intention of the framers.
Order 6 on the enforcement of constitutional rights under s 57 of the Constitution re-affirms this view. Rule 3(b) and (e) provide as follows:
“3.      An application under Constitution Section 57 shall be instituted by an application to enforce constitutional rights and shall ...
(b)      be entitled with the name of the court, person or law officer making the application; ...
(e)      be signed by the person or law officer making the application....”
Again it will be noted that where the application is by a private individual through lawyers, then lawyers have been and are permitted by the same r 33 to sign on behalf of the applicants. The reference to the law officer is in relation to a special interest vested in that law office pursuant to the Constitution, s 57(2), in the protection and enforcement of the rights and freedoms referred to in Div 3 of the Constitution. Indeed, it is my experience and view that an application by a “law officer” on his own initiative, need not be signed by that law officer in person but may be signed by a delegate on his behalf but the application would still be in the name of that law officer.
These are constitutional applications of no less importance than Constitution, s 18 or s 19 references. I do agree that a Constitutional Reference is a unique right vested in a select class of persons and authorities. I do not consider, however, that that derogates from the legal convention that lawyers are presumed to be acting upon instructions and are therefore permitted to sign documents and appear in court on behalf of their clients. Action in that capacity is not questioned or challenged unless one has specific instructions asserting that such a lawyer has no such instructions or authority to so act. It is this legal convention that has been embodied in O 2, r 33 of the National Court Rules, except where “the context or subject matter otherwise indicates or requires”— r 33(2).
I agree that O 4 is enabled by Constitution, s 19(4), but with respect, I do not consider that the requirement that the reference “be signed by the person ... making the reference” attains a special fatal significance thereby. Indeed, as I have illustrated, similar requirements in O 5 and O 6 of the Rules are allowed to be complied with by lawyers, by virtue of O 2, r 1 of the Supreme Court Rules applying O 2, r 33 of the National Court Rules. The requirements in O 5 and O 6 are in substantially the same form and on the same plane as O 4, r 1(e).
For the foregoing reasons, I am of the opinion that O 2, r 33 of the National Court Rules, as adopted by O 2, r 1 of the Supreme Court Rules, applies to the whole of the Supreme Court Rules including O 4, r 1(e). I do not consider that the context or subject matter of O 4, r 1(e), indicates or requires that O 2, r 33(1) not apply. It is my view therefore that it is permissible for lawyers to sign the reference on behalf of the referring authority.
Reference struck out
Lawyers for the Central Provincial Government: Steeles.
Lawyers for the National Capital District Interim Commission: G Powell.