N3451

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1644 OF 2006

TELIKOM PNG LIMITED
Plaintiff

AND

NEWSAT LIMITED
Defendant

Waigani: Cannings J
2007: 25, 26 April, 7 May

RULING

PRACTICE AND PROCEDURE – National Court – leave sought to file a draft constitutional reference. 

Telikom is suing Newsat, seeking injunctions and declarations on the ground that Newsat is providing telecommunications services in PNG contrary to the Telecommunications Act 1996. This is an application by Newsat to file and serve a draft constitutional reference.

Held:

(1)	The application is misconceived and premature as the National Court can only refer constitutional questions to the Supreme Court after making findings of fact necessary to provide a platform on which the Supreme Court can determine the questions.

(2)	The trial has not started yet nor have findings of fact been made and there has been no agreement by the parties on the facts.

(3)	The application was dismissed with costs.

Cases cited
No cases are cited in the judgment.

APPLICATION
This was an application to file and serve a draft constitutional reference.

Counsel
C Scerri QC, I Molloy and A Mana, for the plaintiff
D Cooper SC, G Poole and T Imal, for the defendant

7 May, 2007 

1. CANNINGS J: This is a strange application. The defendant, Newsat Ltd, is applying for leave to file and serve a document it calls an "amended reference" under Section 18(2) of the Constitution. It is not clear to me what is meant by that. There is no reference before the court so I don’t know what they want to amend. Newsat is making the application via a notice of motion filed on 24 April 2007.

2. Telikom is suing Newsat, seeking injunctions and declarations on the ground that Newsat is providing telecommunications services in PNG contrary to the Telecommunications Act 1996.

3. Newsat filed a defence within the time permitted by the National Court Rules. It later sought leave, through a notice of motion filed on 19 April 2007, to file an amended defence, raising constitutional issues. I have today refused leave, as the draft defence was so vague and lacking in particularity that it did not facilitate orderly and rational pleadings, which would enable the real issues to be identified.

4. The present motion, as best I can understand it, is not really seeking leave to file an amended reference. Rather it is an application to file and serve a draft constitutional reference. They have even put my name on it:

THIS REFERENCE is made by the Honourable Justice Cannings in the National Court at Waigani for an opinion on certain questions in relation to the interpretation or application of a Constitutional Law.

5. I suppose that could be considered flattering. It is enticing. I have never exercised the power under Section 18(2) of the Constitution to refer a constitutional question to the Supreme Court. I would love to do so. Constitutional questions are exciting. They are uplifting, intellectually. They can be spiritual. They take us to the core of our humanity and rivet us to the search for justice. But before I exercise that special power as a Judge I need to make sure that it is appropriate to do so.

6. The Supreme Court has said time and again that the power of referral in Section 18(2) of the Constitution must be exercised sparingly by Judges. Too much of a good thing and we will lose the plot.

7. This is not an appropriate case in which to refer any constitutional questions. Not yet, anyway. It is far too early to ask me to approve a draft constitutional reference. The application is misconceived and premature as the National Court can only refer constitutional questions to the Supreme Court after making findings of fact necessary to provide a platform on which the Supreme Court can determine the questions.

8. The case needs to get started – the trial needs to be commenced and some findings of fact made or the parties need to agree on a set of facts – before any such draft document should be considered by a Judge.

ORDERS

(1)	Leave to file and serve an "amended reference", per the defendant’s notice of motion, filed 29 April 2007, is refused.

(2)	Newsat shall pay Telikom’s costs of these proceedings on a party-party basis, to be taxed if not agreed.

(3)	The time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Allens Arthur Robinson: Lawyers for the plaintiff
O’Briens Lawyers: Lawyers for the defendant