SC1156 

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 84 OF 2011

BETWEEN:

LOUIS MEDAING and 1083 others
Appellants

AND:

RAMU NICO MANAGEMENT (MCC) LIMITED
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

DR WARI IAMO 
in his capacity as the Director of the Environment
Third Respondent

Waigani: Davani, Hartshorn and Kariko JJ.
2011: 29th August,
: 2nd September

Application to set aside a dismissal of an application for an interlocutory injunction

Facts:

This is an application brought under s.5 Supreme Court Act and s. 155(4) Constitution to set aside a Supreme Court Order that dismissed an application for an interlocutory injunction pending the hearing and determination of an appeal. The respondents oppose the application to set aside and submit that neither of those provisions provides any jurisdictional basis for the orders sought by the appellants.

Held:

1. As the dismissal order was not a direction or order made under s. 5 (1) Supreme Court Act by a Judge, s. 5 (3) Supreme Court Act is not able to be relied upon to set aside the dismissal order.

2. Section 155 (4) Constitution has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law (SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401 at 402). It is not the source of any substantive rights (Per Kidu CJ in SCR No 2 of 1981).

3. If an application is made for a remedy, but the application is unsuccessful or dismissed, as in this instance, s. 155 (4) Constitution is not available to give a further opportunity either by way of review, appeal or setting aside. 

Cases cited: 

SCR No 2 of 1981 [1981] PNGLR 150
Ume More v. UPNG [1985] 401 
Powi v. Southern Highlands Provincial Government (2006) SC844 

Counsel: 

Ms. T. G. Twivey, for the Appellants
Mr. I. R. Molloy and Mr. G. Gileng, for the First Respondent
Mr. T Tanuvasa, for the Second and Third Respondents 

2nd September, 2011

1. BY THE COURT: The appellants apply to set aside (application to set aside) an order of the Supreme Court that dismissed an application for an interlocutory injunction pending the hearing and determination of their appeal (dismissal order). The appellants rely upon s. 5 Supreme Court Act and s. 155 (4) Constitution in their application to set aside. The respondents oppose the application to set aside and submit that neither of those provisions provides any jurisdictional basis for the orders sought by the appellants.

2. The dismissal order was made when the appellants' lawyer failed to attend on 19th August 2011 at 9.30 am, as directed by the Chief Justice.

Jurisdiction

3. The lawyer for the appellants in submissions makes reference to sections 160, 158 (2) Constitution and s. 8 (1) (e) Supreme Court Act as being the powers of this Court to make interim orders, to vary or set them aside, the Court's discretion and that the Court has supplemental power to exercise powers of the National Court in the Supreme Court. These particular sections though, are not stated in the application to set aside and no application was made to amend the application to set aside to include references to the above sections. As such, these sections are not able to be relied upon as founding the jurisdictional basis upon which this Court is able to grant the orders sought.

4. In this regard we refer to Order 13 Rule 15 Supreme Court Rules which provides relevantly:

"All applications for interlocutory orders must contain a concise statement of the Court's jurisdiction to grant the orders being sought."

5. The application to set aside only contains a reference to s. 5 Supreme Court Act and s. 155 (4) Constitution as being the Court's jurisdiction to grant the orders sought. We now consider these provisions.

Section 5 Supreme Court Act

6. Section 5 Supreme Court Act is as follows:

"(1) Where an appeal is pending before the Supreme Court-

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail, 

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court."

7. In answer to questions from the Court, the lawyer for the appellants submitted that the dismissal order was made under s. 5 (1) and that the application to set aside was being made under s. 5 (3). The dismissal order though, was a unanimous decision of this Court and was not a decision made by a single Judge of this Court as contemplated in s. 5 (1). As the dismissal order was not a direction or order made under s. 5 (1) by a Judge, s. 5 (3) is not able to be relied upon to set aside the dismissal order, as the appellant's lawyer submits.

Section 155 (4) Constitution

8. The lawyer for the appellant submits that, "The power for a Judge of the Supreme Court to make interim orders and to set aside or vary interim orders are found by combination (sic) of Section 5 of the Supreme Court Act and Section 155 (4) of the Constitution."

9. Section 155 (4) is as follows:

"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

10. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401 at 402.

11. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):

"The provision under reference…. does not…. vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement."

12. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:

"1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as are necessary to do justice in the particular circumstances of each case" before the Court;

2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;

3. Where remedies are already provided for under other law, the provision does not apply;

4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and

5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law." 

We respectfully agree with the views expressed in Powi (supra).

13. In this instance, the application to set aside contains one provision, (which we have found is not able to be relied upon), apart from s. 155 (4) Constitution, upon which reliance was placed, but in submissions the appellants rely upon three other provisions that they submit provide jurisdictional bases for the Court to grant the relief sought.

14. The appellants do not submit in the words of Kidu CJ that, "existing laws are deficient to render protection or enforcement.", they submit in essence that existing laws are not so deficient. In making that submission though, the appellants fall within the third feature or attribute listed in Powi (supra), which is that where a remedy is already provided for under other law, s. 155 (4) does not apply.

15. Specifically, we are of the view that if an application is made for a remedy, but the application is unsuccessful or dismissed, as in this instance, s. 155 (4) Constitution is not available to give a further opportunity either by way of review, appeal or setting aside, as such a circumstance does not come within the parameters of, "such other orders as are necessary to do justice in the circumstances of a particular case."

16. For the above reasons we are not satisfied that the appellants have identified any jurisdictional basis in the application to set aside, for the orders sought. Given this finding it is not necessary to consider the other submissions made on behalf of the parties apart from those made for the substantive appeal to be expedited.

Orders

17. The Orders of this Court are:

a)	the relief sought in the application of the appellants filed 19th August 2011 is refused.

b)	the appellants shall pay the respondents' costs of and incidental to the application.

c)	the court transcription service is ordered to complete the transcript of the National Court proceeding that is required for this appeal, as soon as possible.

__________________________________________________________

Twivey Lawyers: Lawyers for the Appellants 
Posman Kua Aisi Lawyers: Lawyers for the First Respondent 
Solicitor-General: Lawyer for the Second and Third Respondents