SC1236

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 3 0F 2011

SPECIAL REFERENCE PURSUANT TO CONSTITUTION, 
SECTION 19 BY THE EAST SEPIK PROVINCIAL EXECUTIVE

AND 21 RELATED MATTERS

Waigani: Cannings J
2013: 21, 29 May, 5, 25 June, 3 July

PRACTICE AND PROCEDURE – summary disposal of Supreme Court matters: Supreme Court Rules 2012, Order 13, Rule 16 – distinction between powers of Judge and those of Court.

PRACTICE AND PROCEDURE – withdrawal of proceedings – when leave of the Court required: Supreme Court Rules 2012, Order 11, Rule 29.

COSTS – discretion as to costs may be exercised at any stage or after conclusion of proceedings: Supreme Court Rules 2012, Order 13, Rule 16.

The Chief Justice directed that in relation to a Supreme Court special reference under Section 19 of the Constitution and 21 related matters, all proceedings, interlocutory applications and consequential matters be referred to a single Judge of the Supreme Court for mention and directions. That Judge called each of the 22 matters for mention, heard from the parties, assessed the status of each matter and gave directions and/or orders with a view to bringing each matter to an expeditious finality.

Held:

(1)	Three of the matters (Nos 1, 2 and 3 on the schedule) have unresolved applications for costs (as well as un-prosecuted applications to set aside rulings) so these matters were referred to the full court of the Supreme Court for determination.

(2)	One matter (No 4) was discovered to be unrelated to the other matters in the schedule and was adjourned to the Registry.

(3)	Six matters (Nos 5, 6, 7, 8, 12 and 16) have had no activity on the file for a long period and were referred to the full court of the Supreme Court for summary determination.

(4)	Seven matters (Nos 9, 10, 11, 13, 14, 15 and 20) were disposed of, notices of withdrawal having been filed in accordance with Order 11, Rule 29 of the Supreme Court Rules 2012.

(5)	Three of the matters (Nos 17, 18 and 19) were the subject of orders under Section 155(4) of the Constitution, having regard to the circumstances of each matter.

(6)	One matter (No 21) was discovered to have already been completed.

(7)	One matter (No 22) was referred to the full court of the Supreme Court to determine whether leave to discontinue the proceedings should be granted.

Cases cited

The following cases are cited in the judgment:

Fred Yakasa v Toami Kulunga and the State (2012) N4550
Haiveta v Wingti (No 3) [1994] PNGLR 197
Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88
Lemba Takail v William Wulat (1982) N371 (M)
Reference by the Morobe Provincial Executive (2012) SC1202
SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive (2011) SC1154
SC Ref Nos 1 & 2 of 2012, References by the Attorney-General and the National Parliament (2012) SC1187
SCR Nos 12 and 12A of 1984; Joe Parakas v The State [1985] PNGLR 224
Somare v Nape OS No 728 of 2011, 20.09.11 unreported
Somare v Nape SCOS No 3 of 2012, 04.04.12 unreported
Tama Nou v The State (1990) N892
The State v Junior Steven Gawi [1988-89] PNGLR 118
The State v Simon Paul Korai (2009) N3820

DIRECTIONS

This was a series of directions hearings by a Judge of the Supreme Court pursuant to directions of the Chief Justice.

3 July, 2013

1. CANNINGS J: I have been required by directions of the Chief Justice Sir Salamo Injia given on 3 May 2013 to call up and mention and where necessary give directions regarding the proceedings known as Supreme Court Reference (SC Ref) No 3 of 2011: Special Reference by the East Sepik Provincial Executive. His Honour required that I deal with these matters in my capacity as a Judge of the Supreme Court.

2. SC Ref No 3 of 2011 was a Special Reference under Section 19 of the Constitution which raised 33 questions of constitutional interpretation and application regarding the appointment on 2 August 2011 of Hon Peter O'Neill MP as Prime Minister. The Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J and Gavara-Nanu J) largely determined the matter by delivery of judgment on 12 December 2011. However there appeared to be some issues outstanding including the question of costs and charges of contempt of court in connection with SC Ref No 3 of 2011. I have seen it as my task to clarify what issues remain unresolved and to determine them in so far as I am able as a single Judge of the Supreme Court to do so and where I am not able to do so, to make orders aimed at bringing the proceedings to an expeditious finality.

3. The Chief Justice's directions of 3 May 2013 required that I also call up and mention and where necessary give directions regarding 21 other matters, which are considered to be connected with SC Ref No 3 of 2011. The upshot is that I have inquired into the status of 22 matters listed in the schedule to the Chief Justice's directions. I conducted hearings on 21 May, 29 May, 5 June and 25 June 2013.

1	SC REF NO 3 0F 2011: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY THE EAST SEPIK PROVINCIAL EXECUTIVE

W Thomas & J A Kumbari for the referrer, East Sepik Provincial Executive
P Tabuchi for the first & sixth interveners, Hon Dr Allan Marat MP & Hon Belden Namah MP
T Twivey-Nonggorr for the second intervener, Speaker of the National Parliament
M N Wilson & C Karaiye for the fifth intervener, Hon Peter O'Neil MP
J Gawi & S P Pokawin for the seventh intervener, National Alliance Inc
P J Wright & J Wohuinangu for the eighth intervener, Grand Chief Sir Michael Somare MP

4. This special reference was filed on 5 August 2011, three days after the appointment of Hon Peter O'Neil MP as Prime Minister. It was substantively determined by delivery of judgment on 12 December 2011 (Reference by the East Sepik Provincial Executive (2011) SC1154). The questions of constitutional interpretation and application were by majority (Injia CJ, Kirriwom J, Gavara-Nanu J; Salika DCJ, Sakora J dissenting) largely decided in the manner contended for by the referrer and the Court made the following order:

1	The Hon Sir Michael was not lawfully removed from office as Prime Minister by Parliament on 2 August 2011.

2	The Hon Peter O'Neill was not lawfully appointed as Prime Minister by Parliament on 2 August 2011.

3	The National Court has exclusive jurisdiction to determine any questions as to whether the seat of a member has become vacant.

4	The Speaker's decision of 6th September 2011 to declare that Sir Michael Somare had lost his seat was in breach of Constitution s 104(2)(d), s 135 [and] s 228 and s 229 of the Organic Law on National and Local-level Government Elections.

5	The Hon Sir Michael is not a person of unsound mind within the meaning of s 103(b) of the Constitution and the Public Health Act (Ch 226).

6	The Hon Sir Michael Somare is restored to office as Prime Minister forthwith.

5. There are four outstanding matters:

(a)	an application filed on 28 March 2012 by the fifth intervener Hon Peter O'Neil MP seeking amongst other things orders that the Supreme Court judgment of 12 December 2011 be set aside;

(b)	an application filed on 29 March 2012 by the second intervener the Speaker of the National Parliament seeking amongst other things orders that the Supreme Court set aside its ruling of 12 December 2011;

(c)	a notice of motion filed on 27 May 2013 by the seventh intervener National Alliance Inc seeking amongst other things costs on a solicitor-client basis against the first, second, fifth and sixth interveners;

(d)	a notice of motion filed on 27 May 2013 by the eighth intervener Grand Chief Sir Michael Somare MP seeking amongst other things costs on a solicitor-client basis against the first, second, fifth and sixth interveners (the interveners who argued against the propositions advanced by the referrer).

6. During the course of the hearings before me counsel for the parties involved in the above unresolved applications and motions suggested that it was likely that these matters would be resolved and that a draft consent order would be handed up for my consideration. By the last hearing on 25 June 2013 more than a month had passed since the first hearing on 21 May 2013 and I expressed the view that that was enough time and that it was preferable in the absence of agreement amongst the parties that I make a decision on what should be done. There was no objection to that proposal so I have decided as follows.

7. As to (a) and (b) I note that 16 months have passed since the applications were filed. The applicants have failed to prosecute the applications and there has been no application by other parties to have them summarily determined. The two applications appear ripe for summary disposal under Order 13, Rule 16 (summary disposal) of the Supreme Court Rules 2012, which states:

The Court may summarily determine a matter:

(a)	on application by a party; or
(b)	on referral by a Judge; or
(c)	on the Court's own initiative; or
(d)	upon referral by the Registrar in accordance with the procedure set out in sub-rule (2) below or pursuant to s 11 of the Act.

8. A single Judge of the Supreme Court does not have the power to summarily determine a "matter" "(including applications of the type in (a) and (b)) that is before the Supreme Court. The power of summary determination is given to "the Court", which is defined by Order 1, Rule 7(1) (definition and forms) of the Rules to mean "the full court of the Supreme Court of Justice", which by practice and convention consists of at least three Judges. The Rules, like the Supreme Court Act Chapter No 37, draw a distinction between the powers and functions of the Court and those of a Judge, which means according to Order 1, Rule 7(1) "a Judge of the Supreme Court of Justice". These definitions are subject to the qualifier "unless the contrary intention appears". In the case of Order 13, Rule 16(1) I discern no contrary intention. I, as a Judge, have no power to summarily determine the applications but I do have the power under Order 13, Rule 16(1)(b) to refer them to the Court for summary determination, and that is what I will do.

9. As to (c) and (d) these applications for costs were made only a little over a month ago so the question of their summary disposal does not arise. The fact that the applications were made after the conclusion of the proceedings is not necessarily of any consequence. Order 12, Rule 4 (time for dealing with costs) states:

The Court or a Judge may in any proceeding of which the Court or Judge is seized exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding.

10. However, I have no power as a single Judge to determine applications for costs that have been filed in proceedings before the full court of the Supreme Court. Such applications must be determined by the full court. The Supreme Court recently ruled in Reference by the Morobe Provincial Executive (2012) SC1202 that it was appropriate to award costs in a Section 19 Special Reference proceeding despite the special and unique nature of the proceedings. It was observed that the Court's power to award costs had in fact been exercised in a number of previous Special References. There is ample precedent for determining the sort of applications that have been filed by the seventh and eighth interveners. I will refer those applications to the Court.

11. In light of the above I order that:

(1)	There being no steps taken since March 2012 in relation to the application filed on 28 March 2012 by the fifth intervener Hon Peter O'Neil MP, that application is under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

(2)	There being no steps taken since March 2012 in relation to the application filed on 29 March 2012 by the second intervener the Speaker of the National Parliament, that application is under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

(3)	The notice of motion filed on 27 May 2013 by the seventh intervener National Alliance Inc seeking costs on a solicitor-client basis is under Order 12, Rule 5 of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for determination. 

(4)	The notice of motion filed on 27 May 2013 by the eighth intervener Sir Michael Somare seeking costs on a solicitor-client basis is under Order 12, Rule 5 of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for determination.

2	SC REF NO 1 0F 2012: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY DR ALLAN MARAT, ATTORNEY-GENERAL; AND

3	SC REF NO 2 0F 2012: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY THE NATIONAL PARLIAMENT

12. T Twivey-Nonggorr for the referrer in SC Ref No 1 of 2012, the Attorney-General and for the Attorney-General, an intervener in SC Ref No 2 of 2012 
P Donigi for the referrer in SC Ref No 2 of 2012, the National Parliament
M N Wilson& C Karaiye for Hon Peter O'Neil MP, intervener
P Tabuchi for Hon Belden Namah MP, intervener
D Mel, R Lains & T Injia for East Sepik Provincial Executive, intervener
P J Wright & J Wohuinangu for Rt Hon Sir Michael Somare and Sir Arnold Amet, interveners

13. These special references were made under Section 19 of the Constitution in the six-week period after delivery of the opinion of the Supreme Court on 12 December 2011 in SC Ref No 3 of 2011. SC Ref No 1 of 2012, a reference by the Attorney-General, containing 29 questions, was filed on 13 January 2012. SC Ref No 2 of 2012, a reference by the National Parliament, containing four questions, was filed on 25 January 2012. The questions arose out of a series of decisions of the National Parliament on 9, 12 and 21 December 2011 and the response by the Governor-General to those decisions. In particular:

•	the Parliament's decision of 9 December 2011 to rescind its earlier decision to grant leave of absence to Sir Michael Somare for the May 2011 meeting of the Parliament;

•	the Parliament's decision of 12 December 2011 to enact the Prime Minister and National Executive Council (Amendment Act) 2011;

•	the Parliament's decision of 12 December 2011 to declare a vacancy in the office of the Prime Minister;

•	the Parliament's decision of 12 December 2011 to re-elect Hon Peter O'Neil MP as Prime Minister;

•	the actions of the Governor-General Sir Michael Ogio on 13 December 2011 to recognise and give effect to the Supreme Court's decision given on 12 December 2011 invalidating the appointment of Mr O'Neill as Prime Minister on 2 August 2011 and restoring Sir Michael as Prime Minister;

•	the actions of the Speaker of the National Parliament and Acting Governor-General, Hon Jeffrey Nape MP, on 14 December 2011 to recognise the Parliament's re-election of Peter O'Neill as Prime Minister;

•	the subsequent actions of the Governor-General Sir Michael Ogio in retracting his earlier recognition of the government of Prime Minister Sir Michael Somare and recognising the re-appointment of Mr O'Neill; and

•	the Parliament's decision of 21 December 2011 to enact the Prime Minister and National Executive Council (Amendment No 2) Act 2011.

14. These special references were heard together on 2, 3, 4 and 5 April 2012. The referrers generally supported each other's contentions, which were regarded as 'the affirmative case', and were supported by the interveners Hon Peter O'Neil MP, the Deputy Speaker Hon Francis Marus MP, Hon Jamie Maxton-Graham MP and Hon Sam Basil MP. The negative case was represented by interveners Hon Sir Michael Somare, Sir Arnold Amet and the East Sepik Provincial Executive.

15. Both references were substantively determined by delivery of judgment on 21 May 2012 (SC Ref Nos 1 & 2 of 2012, References by the Attorney-General and the National Parliament (2012) SC1187). The questions of constitutional interpretation and application were by majority (Injia CJ, Kirriwom J, Gavara-Nanu J; Salika DCJ and Sakora J declining to give opinions) largely decided in favour of the negative case, contrary to the affirmative case. The Court on 23 May 2012 made the following order to give effect to the opinions of the majority delivered on 21 May 2012:

The Court declares/orders that:-

1	The Supreme Court's judgment and orders given under s 19 of the Constitution, on 12th December 2011, in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, that Sir Michael Somare is the legitimate Prime Minister and the appointment of Peter O'Neill as Prime Minister is unconstitutional and invalid, is confirmed.

2	Parliament's decision made on 9th December 2011 to rescind leave of absence granted to Sir Michael Somare for the May 2011 meeting is inconsistent with s 50 of the Constitution and s 11, s 19, s 155(6) and s 157 of the Constitution; and therefore declared unconstitutional, invalid and of no effect.

3	The Prime Minister and National Executive Council (Amendment) Act 2011 passed by the Parliament on 21st December 2011 and certified by the Speaker is inconsistent with s 38 and s 50 of the Constitution and declared unconstitutional, invalid and of no effect.

4	The Prime Minister and National Executive Council (Amendment No 2 ) Act 2011 passed by the Parliament on 12th December 2012 and certified by the Speaker is inconsistent with s 11, s 19, s 38, s 50, s 155(6) and s 157 of the Constitution and therefore declared unconstitutional, invalid and of no effect.

5	The election of Peter O'Neill as Prime Minister on 12th December 2011 and his subsequent confirmation by the Speaker of Parliament the Hon Jeffrey Nape, in his capacity as Acting Governor-General, on 14th December 2011 are inconsistent with s 142(1) and (2) of the Constitution as interpreted and applied in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, and therefore, declared unconstitutional, invalid and of no effect.

6	That at all material times, Sir Michael Somare was and is the member for the East Sepik Provincial seat; and, the legitimate Prime Minister of Papua New Guinea until the writs for the 2012 National elections are returned and a new Prime Minister is elected in the first sitting of the next Parliament pursuant to s 142 of the Constitution.

7	That Prime Minister Sir Michael Somare shall be accorded full privileges and benefits as Prime Minister and member of Parliament for East Sepik Provincial seat, effective from 2nd August 2011.

8	Pursuant to s 153(4) of the Constitution, and subject to the Constitution generally, the bona fide decisions and actions made and implemented by the de facto government of Peter O'Neill as Prime Minister and any of those of ministers appointed by him, between 2nd August 2011 and 20th May 2012, are not open to challenge.

9	Pursuant to s 11, s 19(2), and s 155(6) of the Constitution, it is the duty of all persons, including the Governor-General, and the Speaker of Parliament and all other members of the executive government officers, bodies and agencies, are under a duty, so far as within their respective lawful powers; to give full effect to and comply with the binding opinions and orders issued by this Court in SCR No 1 and 2 of 2012.

10	Costs is reserved to be considered with costs reserved in SCR No 3 of 2011.

16. There are two outstanding matters:

(a)	a slip rule application filed on 23 May 2012 by the National Parliament seeking amongst other things orders that the Supreme Court in SC Ref Nos 1 and 2 of 2012 forthwith set aside its rulings, opinions and/or decisions dated 21 May 2012; and

(b)	the question of costs.

17. As to (a) I note that 13 months have passed since the application was filed. The applicant has failed to prosecute the application and there has been no application by other parties to have it summarily determined. It appears ripe for summary disposal and I will refer it to the full court for that purpose.

18. As to (b), no application for costs has been filed. However as order No 10 of 23 May 2012 specifically states that the question of costs was reserved to be considered with the question of costs reserved in SC Ref No 3 of 2011 I will refer the question of costs to the full court.

19. I reiterate that I have no power as a single Judge of the Supreme Court to summarily determine the slip rule application or to determine the question of costs arising from proceedings before the full court.

20. I order that:

(1)	There being no steps taken since May 2012 in relation to the slip rule application filed on 23 May 2012 by the National Parliament, that application is under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

(2)	The question of costs arising in these proceedings is in accordance with order No 10 of 23 May 2012 and Order 12, Rule 5 of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for determination.

4	SC REF NO 4 0F 2011: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY DR ALLAN MARAT, ATTORNEY-GENERAL

J Tindiwi for the referrer
L Kari for former members of four Provincial Governments, interveners

21. This special reference raises a number of questions of constitutional interpretation and application regarding the Organic Law on Provincial Governments and Local-level Governments 1995, in particular the nature and extent of the State's obligation to compensate members of provincial assemblies who were displaced when that Organic Law commenced operation. I was persuaded by the submissions of Mr Kari for the interveners that the proceedings are not related to SC Ref No 3 of 2011 or any of the other 20 matters listed in the schedule to the Chief Justice's directions of 3 May 2013.

22. I ordered on 29 May 2013 that:

The proceedings are adjourned to the Registry.

5	SC REF NO 3 0F 2012: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY SIR ARNOLD AMET, ATTORNEY-GENERAL

P J Wright & J Wohuinangu for the referrer

23. Sir Arnold Amet filed this special reference on 28 February 2012, asserting that he was the Attorney-General appointed in December 2011 by Sir Michael Somare following the Supreme Court's decision in SC Ref No 3 of 2011 which restored Sir Michael to the position of Prime Minister. The reference raises a number of questions of interpretation and application concerning Section 19(2) (special references to the Supreme Court) of the Constitution, which states that "an opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court". Amongst other things the reference asked the question whether all parties to SC Ref No 3 of 2011 were obliged to give effect to, obey and carry out the terms of the opinion and order of the Supreme Court given on 12 December 2011 in SC Ref No 3 of 2011.

24. The only movement in this matter since the date of commencement was the filing on 14 March 2012 of an application to intervene by Hon Belden Norman Namah MP, Deputy Prime Minister. That application has never been heard. The questions raised by this special reference appear to have been answered by the Supreme Court through its decision in SC Ref Nos 1 and 2 of 2012, handed down on 21 May 2012. SC Ref No 3 of 2012 appears to be ripe for summary disposal.

25. I order that:

There being no steps taken in these proceedings since March 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

6	SC REF NO 4 0F 2012: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY EAST SEPIK PROVINCIAL EXECUTIVE

D Mel, R Lains & T Injia for the referrer
T Twivey-Nonggorr for the Speaker of the National Parliament, intervener

26. The East Sepik Provincial Executive filed this special reference on 28 February 2012, the same date that SC Ref No 3 of 2012 (see matter No 5 above) was filed. The reference raises similar questions to those raised by SC Ref No 3 of 2012 concerning Section 19(2) (special references to the Supreme Court) of the Constitution: whether all parties to SC Ref No 3 of 2011 were obliged to give effect to, obey and carry out the terms of the opinion and order of the Supreme Court of 12 December 2011 in SC Ref No 3 of 2011.

27. Like SCR No 3 of 2012 the only movement in this matter since the date of commencement was the filing on 14 March 2012 of an application to intervene and supporting affidavit by Hon Belden Norman Namah MP, Deputy Prime Minister. That application has never been heard. The questions raised by this special reference appear to have been answered by the Supreme Court through its decision in SC Ref Nos 1 and 2 of 2012, handed down on 21 May 2012. SC Ref No 4 of 2012 appears ripe for summary disposal.

28. I order that:

There being no steps taken in these proceedings since March 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

7	SC REF NO 5 0F 2012: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY MOROBE PROVINCIAL EXECUTIVE

D Mel, R Lains & T Injia for the referrer
T Twivey-Nonggorr for the Speaker of the National Parliament, intervener
M N Wilson & C Karaiye for Hon Peter O'Neil MP, intervener
P J Wright & J Wohuinangu for Sir Michael Somare and Sir Arnold Amet, interveners
D Wood for the Registrar of the Supreme Court

29. The Morobe Provincial Executive filed this special reference on 4 April 2012. The reference challenges the constitutionality of the Judicial Conduct Act 2012, the date of commencement of which was made retrospective to 1 November 2011. The Act prescribed the circumstances in which a Judge was required to disqualify himself or herself and allowed the Parliament in the event that a Judge failed to disqualify himself or herself to refer the Judge for investigation by a tribunal, a process that could culminate in the Judge's removal from office.

30. Numerous directions hearings were conducted, a number of parties were granted leave to intervene and the reference was set down for hearing in the August 2012 sittings of the Supreme Court. However, on 22 August 2012 the hearing date was vacated and the matter was set for a further directions hearing in October 2012. No further substantive action has been taken by the Court or any of the parties to progress the matter to hearing or have it dismissed for want of prosecution. The Judicial Conduct Act 2012 was repealed by the Judicial Conduct (Repeal) Act 2013, which came into operation by virtue of Section 110(1) (certification as to making of laws) of the Constitution on the date of its certification by the Speaker, 5 February 2013. SC Ref No 5 of 2012 appears to be ripe for summary disposal.

31. I order that:

There being no steps taken in these proceedings since August 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

8	SC RES NO 1 OF 2012: FRED YAKASA V TOAMI KULUNGA, PETER O'NEIL, MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL, JEFFREY NAPE AND THE STATE

D Dotaona for the applicant
L Okil for the first respondent
M N Wilson & C Karaiye for the second respondent
T Twivey-Nonggorr for the third and fourth respondents

32. This was a reservation of various points of law by the National Court (Davani J) to the Supreme Court under Section 15(1) (cases or points of law reserved for Supreme Court) of the Supreme Court Act, which states:

A Judge or Judges of the National Court sitting in the exercise of any jurisdiction other than criminal jurisdiction—

(a)	may reserve any case or any point in a case for the consideration of the Supreme Court; or
(b)	may direct any case or point in a case to be argued before the Supreme Court,

and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued.

33. Justice Davani on 25 January 2012 made the decision to reserve points of law for the Supreme Court's consideration in the course of hearing an application in the National Court in OS No 958 of 2011 by the plaintiff Fred Yakasa for a declaration that he was the Commissioner of Police duly appointed by the Government of Sir Michael Somare (Fred Yakasa v Toami Kulunga and the State (2012) N4550). The defendant was Toami Kulunga who claimed that he was the Commissioner of Police, having been appointed by the Government of Mr Peter O'Neil.

34. Her Honour took into account that following the order of the Supreme Court in SC Ref No 3 of 2011 on 12 December 2011 Sir Michael Somare was restored as Prime Minister, the Parliament had met soon afterwards and passed an amendment to the Prime Minister and National Executive Council Act 2002. The amending legislation had the effect of creating a vacancy in the office of Prime Minister and Mr O'Neill was then re-appointed as Prime Minister, replacing Sir Michael. Soon after that, Mr Yakasa's appointment as Commissioner of Police was revoked.

35. Her Honour considered that she could not determine the primary question for trial – ie who was the Commissioner of Police? – without a judicial determination being made as to who was the lawfully appointed Prime Minister. Her Honour queried whether the National Court could make such a determination, or whether only the Supreme Court had such a power. Her Honour queried whether the decision of the Supreme Court in Haiveta v Wingti (No 3) [1994] PNGLR 197 gave the National Court power to call evidence as to the proceedings in the Parliament as to Mr O'Neil's election as Prime Minister and whether the National Court was authorised to make findings as to who should represent the State in the National Court proceedings. Her Honour recommended that a number of other National Court proceedings filed by individuals affected by decisions of the O'Neil government should await the outcome of the reservation. Those proceedings included:

•	OS No 977 of 2011, Gabriel Yer v Steven Gibson;
•	OS (JR) No 982 of 2011 Graham Osborne v Jamie Maxton-Graham;
•	OS (JR) No 14 of 2012 Hudson Ramatlap v Dr Allan Marat; and
•	OS No 17 of 2012 Joseph Klapat v National Executive Council.

36. This Reservation and the National Court proceedings referred to by her Honour appear to have been mentioned in the Supreme Court on 7 February 2012 in accordance with an order of the Supreme Court dated 2 February 2012. Since February 2012, however, nothing has been done to progress the Reservation, evidently because the points of law raised by it were subsumed by SC Ref Nos 1 and 2 of 2012, the decision on which was handed down on 21 May 2012. There would appear to be no utility in pursuing the Reservation. It appears ripe for summary disposal.

37. I order that:

There being no steps taken in these proceedings since February 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

9	SCOS NO 8 OF 2012: IAN AUGEREA, REGISTRAR OF THE NATIONAL COURT AND THE SUPREME COURT V HON POWES PARKOP MP

R Diweni for the plaintiff
P Parkop, the contemnor, in person

38. On 22 May 2012 the Registrar Mr Augerea filed an originating summons seeking an order that Hon Powes Parkop MP (the contemnor) was guilty of contempt of court. In a statement of charge filed the same day it was alleged that the contemnor on 11 January 2012 caused to be published in the Post-Courier a statement critical of the Supreme Court for making serious errors of fact and law in its decision in SC Ref No 3 of 2011 and causing confusion. It was alleged that by publishing the statement the contemnor amongst other things scandalised the Supreme Court, sought to incite public outrage and disrespect for the authority of the Supreme Court and the Judges, implied that the Judges misapplied the law and were not impartial in the discharge of their duties, and that his conduct constituted contempt of the Supreme Court.

39. Neither the originating summons nor the statement of charge has been served on the contemnor and no appearance has been filed by him. When the matter was called the Registrar's counsel Mr Diweni indicated that the Registrar wished to withdraw the proceedings under Order 11, Rule 29 (withdrawal) of the Supreme Court Rules, which states:

A party making an application or claiming any relief may withdraw the proceedings so far as concerns the whole or any part of his application or claim for relief —

(a)	without leave before the filing of an appearance by respondents;

(b)	with the consent of all of the parties appearing or leave of the Court before a date is set for hearing;

(c)	with the leave of the Court once a date has been set for hearing.

40. The effect of Order 11, Rule 29 is that a party making a claim for relief can withdraw the proceedings or any part of them in the following circumstances:

•	before the filing of appearances by the respondents: without consent of the respondents and without leave of the Court (Rule 29(a));

•	after filing of an appearance by respondents and before a date is set for hearing: with the consent of all parties who have filed an appearance or with leave of the Court (as distinct from a Judge) (Rule 29(b));

•	after a date has been set for hearing: with the leave of the Court (Rule 29(c)).

41. The issue of costs arising from withdrawal of proceedings is addressed in Order 11, Rule 30, which states:

(1)	Leave to withdraw may be granted by the Court unconditionally or upon such conditions as to the Court seem just.

(2)	Unless the Court otherwise orders, the party withdrawing proceedings shall bear the costs of all parties who have entered an appearance in the proceedings up to and including the day on which notice of withdrawal is served on each of those other parties.

42. On 25 June 2013 a notice of withdrawal of the whole proceedings was filed. The notice is compliant with Order 11, Rule 29(a) as no appearance had been filed by the contemnor. The contemnor has not sought an order for costs or any other order so the matter is ripe for closure.

43. I order that:

(1)	A notice under Order 11, Rule 29(a) of the Supreme Court Rules 2012 of withdrawal of the whole proceedings having been filed by the plaintiff on 25 June 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court.

(2)	The parties will bear their own costs.

10	SCOS NO 1 OF 2012: GRAND CHIEF SIR MICHAEL SOMARE MP & THREE OTHERS V HON PETER O'NEIL MP, HON BELDEN NAMAH MP, HON DR ALLAN MARAT MP, ALL MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL APPOINTED BY HON PETER O'NEIL MP, HON JEFFREY NAPE MP, HON FRANCIS MARUS MP, MANASUPE ZURENUOC & TIFFANY TWIVEY

P J Wright & J Wohuinangu for the applicants
M N Wilson & C Karaiye for the first & eighth respondents
P Tabuchi for the second respondent
L P Kandi for the seventh respondent

44. These were contempt proceedings commenced by originating summons on 30 January 2012, supported by a statement of charge, which sought to have each of the respondents found guilty of contempt of court for amongst other things preventing, frustrating and blockading implementation of the decision of the Supreme Court in SC Ref No 3 of 2011 of 12 December 2011 and engaging in other related contumelious conduct.

45. The originating summons and statement of charge were served on the seventh respondent on 2 February 2012. The other respondents have not been served. None of the respondents has filed an appearance in the proceedings. When the matter was called before me the applicants' counsel Mr Wright indicated that the applicants were considering withdrawing the proceedings. On 27 May 2013 a notice of discontinuance was filed by the first applicant. I consider that, though filed in the name of the first applicant only, it is reasonably to be inferred that the other applicants have no interest in the proceedings. The notice is substantially compliant with Order 11, Rule 29(a) of the Supreme Court Rules 2012. As none of the respondents has opposed the discontinuance or made any application seeking an order for costs or any other orders, the matter is ripe for closure.

46. I order that:

(1)	A notice under Order 11, Rule 29(a) of the Supreme Court Rules 2012 of discontinuance of the proceedings having been filed by the first applicant on 27 May 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court.

(2)	The parties will bear their own costs.

11	SCOS NO 2 OF 2012: IAN AUGEREA, REGISTRAR OF THE NATIONAL COURT AND THE SUPREME COURT V TOAMI KULUNGA, SIMON KAUBA & DAVID MANNING

R Diweni for the plaintiff
M N Wilson & C Karaiye for the contemnors

47. On 9 March 2012 the Registrar Mr Augerea filed an originating summons seeking an order that the Commissioner of Police Toami Kulunga and two senior members of the Police Force, Acting Deputy Commissioner Simon Kauba and Superintendent David Manning (the contemnors) were guilty of contempt of court. In a statement of charge filed the same day, amended on 27 April 2012, it was alleged that the contemnors had jointly or individually committed contempt in five ways:

•	failing to give effect to a Supreme Court order of 10 November 2011 relating to the arrest of Hon Belden Namah MP and Hon Dr Allan Marat MP;
•	organising a Police blockade of the Waigani courthouse on 3 February 2012;
•	preventing the Chief Justice from gaining entry to the Waigani courthouse on 6 February 2012;
•	detaining and arresting the Chief Justice on 6 March 2012; and
•	making a public statement scandalising the Judges and in particular the Chief Justice on 12 March 2012.

48. The originating summons and the statement of charge were served on the contemnors and on 20 March 2012 Warner Shand Lawyers of Port Moresby filed notices of appearance on their behalf. Numerous affidavits were filed by the plaintiff and the contemnors in the period March to May 2012. However, there was no directions hearing conducted. There was no movement on the file after 15 May 2012 until a notice of change of lawyers for the plaintiff (from Stevens Lawyers to Diwenis Lawyers) was filed on 17 May 2013. When the matter was called before me Mr Diweni for the plaintiff and Mr Wilson for the contemnors indicated that they were discussing withdrawal of the proceedings. On 30 May 2013 Diwenis Lawyers filed a notice of withdrawal of the whole proceedings, endorsed with the consent of the contemnors. The notice of withdrawal is compliant with Order 11, Rule 29(b) of the Supreme Court Rules 2012. The contemnors have not sought an order for costs or any other order so the matter is ripe for closure.

49. I order that:

(1)	A notice under Order 11, Rule 29(b) of the Supreme Court Rules 2012 of withdrawal of the whole proceedings having been filed by the plaintiff on 30 May 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court.

(2)	The parties will bear their own costs.

12	SCOS NO 3 OF 2012: HON SIR MICHAEL SOMARE & HON SIR ARNOLD AMET V HON JEFFREY NAPE, HON DR ALLAN MARAT, HON PETER O'NEIL, MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL AND THE STATE

P J Wright & J Wohuinangu for the applicants
T Twivey-Nonggorr for the second respondent
M N Wilson & C Karaiye for the third respondent

50. On 3 April 2012 the applicants commenced these proceedings under Section 18(1) (original interpretative jurisdiction of the Supreme Court) of the Constitution, seeking to challenge the constitutionality of the Judicial Conduct Act 2012.

51. The originating summons and supporting affidavits were served on the respondents the next day, 4 April 2012. Notices of appearance were filed on that day by Twivey Lawyers for the first respondent Hon Jeffrey Nape MP and by Warner Shand Lawyers for the second respondent Hon Dr Allan Marat MP. On 4 April 2012 Justice Hartshorn, sitting as a single judge of the Supreme Court, refused a motion by the applicants seeking an interim injunction to restrain the Parliament from implementing the Judicial Conduct Act 2012 (Somare v Nape SCOS No 3 of 2012, 04.04.12 unreported). 

52. Since April 2012 nothing has been done to progress the matter, evidently because the points of law raised by it were also raised in SC Ref No 5 of 2012, Reference by Morobe Provincial Executive (matter No 7 above), filed on 4 April 2012. The Judicial Conduct Act 2012 was repealed by the Judicial Conduct (Repeal) Act 2013, which came into operation by virtue of Section 110(1) (certification as to making of laws) of the Constitution on the date of its certification by the Speaker, 5 February 2013. There would appear to be no utility in pursuing the matter. It appears to be ripe for summary disposal.

53. I order that:

There being no steps taken in these proceedings since April 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

13	SCOS NO 4 OF 2012: IAN AUGEREA V HON DR ALLAN MARAT MP ATTORNEY-GENERAL, HON JEFFREY NAPE MP, THE INDEPENDENT STATE OF PAPUA NEW GUINEA REPRESENTING THE NATIONAL PARLIAMENT & HON PETER O'NEIL MP PRIME MINISTER & ALL MEMBERS OF PARLIAMENT WHO VOTED IN FAVOUR TO ENACT THE JUDICIAL CONDUCT BILL AS LISTED IN SCHEDULE 1

D Wood, J Shepherd & W Neill for the applicant
M N Wilson & C Karaiye for the fourth respondent

54. The applicant Ian Augerea (the Registrar of the Supreme Court and the National Court) commenced these proceedings on 5 April 2012 under Section 18(1) (original interpretative jurisdiction of the Supreme Court) of the Constitution, seeking to challenge the constitutionality of the Judicial Conduct Act 2012. These were the third proceedings commenced in the space of two days that involved a challenge to that Act; the others being SCOS No 3 of 2012, Sir Michael Somare & Sir Arnold Amet v Hon Jeffrey Nape MP & Others (commenced on 3 April 2012, matter No 12 above) and SC Ref No 5 of 2012, Reference by Morobe Provincial Executive (commenced on 4 April 2012, matter No 7 above).

55. A notice of appearance was filed on 10 April 2012 by Warner Shand Lawyers for the fourth respondent Hon Peter O'Neil MP Prime Minister. On 16 April 2012 Justice Sawong in his capacity as a single judge of the Supreme Court granted leave to the applicant to discontinue the proceedings. However the applicant did not file a notice of discontinuance or take any other step in the proceedings, evidently because on 23 April 2012 the fourth respondent filed an application seeking an order for costs on a solicitor-client basis against Mr Augerea. The application for costs remained unheard and there was no movement on the file after May 2012 until the matter was called before me in May 2013. On 5 June 2013 I ordered with the consent of the applicant and the fourth respondent that the fourth respondent's application for costs of 23 April 2012 was dismissed and that the applicant and the fourth respondent pay their own costs in regard to that application and the whole proceedings. On 6 June 2013 the applicant filed a notice of discontinuance concerning the whole of the claim for relief. The notice is compliant with Order 11, Rule 29(b) of the Supreme Court Rules 2012 as the consent of the only respondent who filed an appearance (the fourth respondent) has been given. The matter is ripe for closure.

56. I order that:

(1)	A notice under Order 11, Rule 29(b) of the Supreme Court Rules 2012 of withdrawal of the whole of the claim for relief having been filed by the plaintiff on 6 June 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court.

(2)	The parties will bear their own costs.

14	SCOS NO 6 OF 2012: IAN AUGEREA, REGISTRAR OF THE NATIONAL COURT AND THE SUPREME COURT V HON PETER O'NEIL MP PRIME MINISTER, PHILIP AME, NATHAN AGIPE, STANLEY BOVARO & NICK LAPA

R Diweni for the plaintiff
M N Wilson & C Karaiye for the first defendant

57. On 10 May 2012 the Registrar Mr Augerea filed an originating summons seeking an order that Hon Peter O'Neil MP Prime Minister and his lawyer Philip Ame and three other persons, Nathan Agipe, Stanley Bovaro and Nick Lapa (the defendants) were guilty of contempt of court. In a statement of charge filed the same day it was alleged that the defendants had colluded in having Messrs Agipe, Bovaro and Lapa commit perjury. It was alleged that those defendants had in affidavits filed in support of an application to disqualify the Chief Justice from handing down a decision in SC Ref No 3 of 2011 made fantastic, unbelievable and patently untrue allegations about an alleged meeting between the Chief Justice and Hon Arthur Somare MP at 2.00 am on 4 November 2011 at Ela Beach Hotel. It was further alleged that the conduct of the defendants was an attempt to intimidate the members of the Supreme Court, in particular the Chief Justice, who were about to deliver judgment in SC Ref No 3 of 2011.

58. Neither the originating summons nor the statement of charge has been served on the defendants. No notices of appearance have been filed on their behalf. The plaintiff filed a notice of motion and supporting affidavit on the same day as commencement of the proceedings, 10 May 2012, but that was the last movement on the file until a notice of change of lawyers for the plaintiff (from Stevens Lawyers to Diwenis Lawyers) was filed on 17 May 2013. On 30 May 2013 Diwenis Lawyers filed a notice of withdrawal of the whole proceedings. The notice of withdrawal is compliant with Order 11, Rule 29(a) of the Supreme Court Rules 2012. As it has been filed before filing of an appearance for any of the respondents neither the consent of the respondents nor the leave of the Court is required for withdrawal. There are no applications pending so the matter is ripe for closure.

59. I order that:

(1)	A notice under Order 11, Rule 29(a) of the Supreme Court Rules 2012 of withdrawal of the whole proceedings having been filed by the plaintiff and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court. 

(2)	The parties will bear their own costs.

15	SCOS NO 7 OF 2012: IAN AUGEREA, REGISTRAR OF THE NATIONAL COURT AND THE SUPREME COURT V TIFFANY-TWIVEY-NONGGORR

R Diweni for the plaintiff
M N Wilson & C Karaiye for the contemnor

60. On 22 May 2012 the Registrar Mr Augerea filed an originating summons seeking an order that the contemnor was guilty of contempt of court. In a statement of charge filed the same day it was alleged that the defendant on 24 April 2012 published on the internet a paper under her name entitled "Democracy and Constitution being destroyed by Supreme Court". It was alleged that a number of statements made by the defendant were intended to have the effect of influencing the then pending decision of the Supreme Court in SC Ref Nos 1 and 2 of 2012 or undermining the authority of and denigrating, scandalising, humiliating and embarrassing the Supreme Court, the Judges in general and certain Judges in particular.

61. Neither the originating summons nor the statement of charge has been served on the contemnor and no notice of appearance has been filed on her behalf. There was no movement on the file after 22 May 2012 until a notice of change of lawyers for the plaintiff (from Stevens Lawyers to Diwenis Lawyers) was filed on 17 May 2013. On 30 May 2013 Diwenis Lawyers filed a notice of withdrawal of the whole proceedings. The notice of withdrawal is compliant with Order 11, Rule 29(a) of the Supreme Court Rules 2012. As it has been filed before filing of an appearance for the contemnor neither the consent of the contemnor nor the leave of the Court is required for withdrawal. There are no applications pending so the matter is ripe for closure.

62. I order that:

(1)	A notice under Order 11, Rule 29(a) of the Supreme Court Rules 2012 of withdrawal of the whole proceedings having been filed by the plaintiff on 30 May 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court. 

(2)	The parties will bear their own costs.

16	SCOS NO 5 OF 2011: GRAND CHIEF SIR MICHAEL SOMARE MP V HON JEFFREY NAPE MP, SPEAKER OF THE NATIONAL PARLIAMENT

D Mel, R Lains & T Injia for the applicant

63. On 7 December 2011 Grand Chief Sir Michael Somare MP filed an originating summons seeking an order that the defendant Hon Jeffrey Nape was guilty of contempt of court. In a statement of charge filed the same day it was alleged that the defendant on 6 September 2011 in the Parliament while making rulings in his role as Speaker expressed his personal views to the Parliament as to issues then pending before the Supreme Court in SC Ref No 3 of 2011 including declaring that the issue of whether any member of the Parliament had ceased to be a member was an issue that was for him and the Parliament to decide to the exclusion of others including the Supreme Court. It was alleged that the defendant's deliberate and wilful conduct attempted to prejudge issues pending before the Supreme Court, attempted to influence the Supreme Court in its decision in SC Ref No 3 of 2011 and tended to bring the Supreme Court into disrepute.

64. The originating summons and the statement of charge were served on the defendant on 12 December 2011, however no notice of appearance has been filed on his behalf. On 8 February 2012 the proceedings were stayed pending the hearing and determination of SC Ref Nos 1 and 2 of 2012 by order of the Supreme Court (Salika DCJ, Sakora J and Kirriwom J). SC Ref Nos 1 and 2 of 2012 were determined by the order of the Supreme Court of 21 May 2012, so the stay order of 8 February 2012 was dissolved on that date. However, there has been no further movement on the file. There are no applications pending so the matter is ripe for summary disposal.

65. I order that:

There being no steps taken in these proceedings since February 2012, the proceedings are under Order 13, Rule 16(1)(b) of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for summary determination.

17	SC REF NOS 1 & 2 0F 2012: SPECIAL REFERENCES BY THE ATTORNEY-GENERAL AND THE NATIONAL PARLIAMENT; RE SUSPENDED CONTEMPT PROCEEDINGS AGAINST TIFFANY TWIVEY BEFORE INJIA CJ ON 24 MAY 2012

R Diweni for the Registrar of the Supreme Court
M N Wilson & C Karaiye for the contemnor

66. On 23 May 2012 the Chief Justice ordered Ms Tiffany Twivey, counsel for the referrer in SC Ref No 1 of 2012 and for an intervener in SC Ref No 2 of 2012, to appear before his Honour on 24 May 2012 "to be dealt with for contempt committed in the face of the Court with regard to her deliberate and persistent conduct in disturbing Court proceedings and refusing to sit down and resume her seat when ordered to do so by the presiding Judge, on Monday 21 May 2012, pursuant to s 37(2) and s 160 of the Constitution".

67. On 24 May 2012 Ms Twivey appeared before the Chief Justice as ordered. She was represented by Mr Wilson. His Honour was dealing with the matter as an allegation against Ms Twivey of contempt of court when the proceedings of the Court were interrupted, according to reports in the media of which I take judicial notice, confirmed by my examination of the transcript of the proceedings, by entry into the courtroom of Hon Belden Namah MP and other persons who attempted to arrest and detain the Chief Justice. Consequently the proceedings concerning Ms Twivey were abruptly suspended.

68. I am satisfied that Ms Twivey appeared before the Chief Justice on 24 May 2012, and was "dealt with" in so far as the circumstances permitted, so she complied with the order of 23 May 2012. It appears to me that no steps have been taken by the Chief Justice or the Registrar to recall the suspended proceedings. Nor have any steps been taken to initiate any proceedings arising from the allegation of contempt in the face of the Court. Mr Diweni for the Registrar indicated that it was not proposed to re-agitate the allegation of contempt. The Supreme Court Rules are silent on what should be done in such a situation so I will invoke two provisions of the Constitution, Sections 155(4) and 185, which authorise a Judge to make orders and give directions tailor-made to unusual circumstances such as these.

69. Section 155(4) (the national judicial system) states:

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.

70. Section 185 (lack of procedural provision) states:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

71. I think the most appropriate course of action is to declare that the order of 23 May 2012 has been complied with and that the allegation of contempt in the face of the Court referred to in that order has been dealt with and to direct that Ms Twivey is not required in the absence of an order of the Supreme Court to further answer to that allegation. A declaration and a direction in those terms is I consider necessary to do justice in the circumstances of this particular case, given that no provision is made in the Supreme Court Rules or any other law about how an allegation of contempt in the face of the court should be dealt with in circumstances where a person has appeared in Court to be dealt with in respect of such an allegation and the proceedings have been suspended and not re-agitated after a considerable period (in this case 12 months).

72. I order that:

(1)	It is declared under Section 155(4) of the Constitution that Ms Tiffany Twivey has complied with the order of the Supreme Court, made by a Judge of the Supreme Court, Hon Sir Salamo Injia, Chief Justice, dated 23 May 2012 and that the allegation of contempt in the face of the Court referred to in that order has been dealt with.

(2)	It is directed pursuant to Section 185 of the Constitution that Ms Twivey is not required in the absence of an order of the Supreme Court to further answer to the allegation of contempt in the face of the Court referred to in the order of 23 May 2012.

(3)	The parties will bear their own costs.

18	SC REF NO 3 OF 2011 AND SC REF NOS 1 & 2 0F 2012: SPECIAL REFERENCE BY EAST SEPIK PROVINCIAL EXECUTIVE; SPECIAL REFERENCES BY THE ATTORNEY-GENERAL AND THE NATIONAL PARLIAMENT; RE SUSPENDED BAIL REVOCATION PROCEEDINGS INVOLVING HON BELDEN NAMAH MP BEFORE INJIA CJ ON 24 MAY 2012

R Diweni for the Registrar
P Tabuchi for the contemnor

73. On 23 May 2012 the Chief Justice ordered that Hon Belden Namah MP be arrested and brought before the Supreme Court at Waigani on 24 May 2012 to be dealt with according to law. The order for arrest, issued to all members of the Police Force, stated that Mr Namah had held a media conference on 23 May 2012 and demanded the resignation of Chief Justice Sir Salamo Injia, Justice Nicholas Kirriwom and Justice Les Gavara-Nanu for reasons to do with the exercise of their judicial functions in giving judgment in SC Ref No 3 of 2011 and SC Ref Nos 1 and 2 of 2012; that Mr Namah's statement constituted a breach of conditions of bail pursuant to existing contempt proceedings against him arising out of SC Ref No 3 of 2011; and that the statement also constitutes contempt of court pursuant to Sections 37(2), 157 and 160 of the Constitution. In my view the order for the arrest of Mr Namah dated 23 May 2012 is properly regarded as a warrant for his arrest.

74. Mr Namah appeared before the Chief Justice on 24 May 2012 but not in the manner contemplated by the order of 23 May 2012. I take judicial notice of the fact that at about 1.47 pm Mr Namah and other persons entered the courtroom and attempted to arrest and detain the Chief Justice while his Honour was dealing with an allegation against Ms Tiffany Twivey of contempt of court (the subject of matter No 17 above) and the question of whether Mr Namah's bail granted on 15 November 2011 should be revoked. The proceedings concerning Ms Twivey and Mr Namah were abruptly suspended. No further action has been taken by the Court regarding the allegations against Mr Namah referred to in the order for his arrest dated 23 May 2012 or the courtroom incident of 24 May 2012.

75. During the course of the hearings before me I asked Mr Diweni, counsel for the Registrar of the Supreme Court, to ascertain from the Registrar, in consultation with the Chief Justice, whether any further action was contemplated regarding the original charge of contempt of court against Mr Namah (the subject of matter No 18 below), the order of 23 May 2012 for Mr Namah's arrest or the suspended bail revocation proceedings of 24 May 2012 involving Mr Namah. The Registrar's response was that no further action was contemplated.

76. How should these issues be resolved? The question of how the original charge of contempt of court against Mr Namah should be dealt with is addressed in matter No 19 below.

77. As to the order of 23 May 2012 for Mr Namah's arrest, different considerations arise. I note that there is no provision in the Supreme Court Rules or any other law as to how an order of a single Judge of the Supreme Court for the arrest of a person who is alleged to have committed a breach of their bail conditions and committed contempt of court should be dealt with when a considerable period (in this case 13 months) has elapsed since the order was made and the order (which is tantamount to an arrest warrant) remains unexecuted. I consider, in light of the fact that the Registrar has indicated that no further action is contemplated, that the most appropriate course of action is to invoke Section 155(4) of the Constitution and to order that the order for arrest be set aside.

78. As to the courtroom incident of 24 May 2012 I propose to make no order as no processes of the Court have yet been initiated in response to that incident.

79. I order that:

The order of 23 May 2012 for the arrest of Hon Belden Namah MP is under Section 155(4) of the Constitution set aside.

19 	SC REF NO 3 OF 2011: SPECIAL REFERENCE BY EAST SEPIK PROVINCIAL EXECUTIVE; IN THE MATTER OF CONTEMPT OF COURT AGAINST HON DR ALLAN MARAT MP & HON BELDEN NAMAH MP

D Wood, J Shepherd & W Neill for the Registrar
P Tabuchi for the contemnors

80. Hon Dr Allan Marat MP and Hon Belden Namah MP were the first and sixth interveners respectively in SC Ref No 3 of 2011. On 10 November 2011 a member of the full court of the Supreme Court that had heard argument and reserved its opinion in SC Ref No 3 of 2011, Justice Sakora, ordered their arrest and detention pending formal charges of contempt of court against them being laid by the Registrar of the Supreme Court. Justice Sakora's order stated that there had been a television announcement earlier on 10 November 2011 by Hon Dr Allan Marat MP as Attorney-General and Hon Belden Namah MP as Acting Prime Minister that the Chief Justice had been suspended from office, that a tribunal had been appointed to investigate allegations against his Honour, that his Honour had not been duly served with a notice of suspension, that his Honour had presided over the hearing of SC Ref No 3 of 2011 and that the decisions and actions of the National Executive Council regarding the suspension of the Chief Justice amounted to contempt of the Supreme Court.

81. As well as dealing with the arrest and detention of Dr Marat and Mr Namah the order stayed the decision of the National Executive Council to suspend the Chief Justice.

82. On 14 November 2011 Dr Marat and Mr Namah were arrested and granted police bail, and the National Executive Council reconsidered the suspension, and the suspension of the Chief Justice was subsequently revoked. (The Chief Justice was on 1 February 2012 suspended for a second time, which suspension was also stayed by order of the Supreme Court, and on 14 June 2013 that suspension was, as notified in the National Gazette No G254 of 20 June 2013, removed.)

83. On 15 November 2011 Dr Marat and Mr Namah appeared before the full court of the Supreme Court and were granted bail in the sum of K5,000.00 each. The Registrar on 6 December 2011 filed a statement of charge alleging that Dr Marat and Mr Namah were guilty of contempt of court in a number of respects. Bail was extended by the Supreme Court on 13 December 2011 on condition that they not by themselves or their agents, servants or principals "interfere with these contempt proceedings in any manner whatsoever". An amended statement of charge, which inserted additional charges of contempt of court regarding events in the Parliament on 9 and 12 December 2011, was filed on 22 December 2011. Bail was extended further on 13 February 2012.

84. The Chief Justice on 23 May 2012 ordered the arrest of Mr Namah and on 24 May 2012 a bail revocation hearing involving Mr Namah was abruptly suspended (see matter No 18 above).

85. There has since May 2012 been no attempt by the Registrar to prosecute the contempt charges. Neither Dr Marat nor Mr Namah has been called upon to answer the charges. When the matter was called before me on 21 May 2013 I enquired of counsel whether the Registrar proposed to take any further action. The response on 29 May 2013 was that no further action was proposed. I was presented with a draft order the terms of which were consented to by Ashurst Lawyers and Young & Williams Lawyers, lawyers for the Registrar and the contemnors respectively. The draft order was compliant with Order 11, Rule 29(b) of the Supreme Court Rules 2012 so I endorsed it and it thereupon became an order of the Supreme Court made on 29 May 2013, stating:

1	The Supreme Court discontinues the charges of contempt laid respectively against the first intervener [Dr Marat] and the sixth intervener [Mr Namah].

2	The first intervener and the sixth intervener are to pay their own respective costs in regard to the charges of contempt.

3	The Supreme Court makes no order for any costs of the Court in regard to the charges of contempt.

4	Time abridged for the entry of this order by the Registrar and which shall be forthwith.

86. At the last hearing before me on 25 June 2013 Mr Tabuchi for the contemnors pointed out that the question of refund of bail still needed to be addressed and applied for an order refunding the full amount of K5,000.00 to each contemnor. There was no opposition to that application but I still have a discretion to exercise on this matter.

87. The question of whether there should be a refund of bail arises in a number of situations, eg where an accused who has been on bail is convicted and committed to custody, where an accused person has been acquitted of a criminal charge or as in this case where the charge against a contemnor has not been pursued. In whatever circumstances in which the question of refund of bail arises the court has a discretion to exercise. Refund of bail is not a right. The question of refund must be considered in the light of Section 22(1) (forfeiture of security) of the Bail Act Chapter No 340 which provides that if a person granted bail contravenes or fails to comply with his bail obligations the court may make an order forfeiting the whole or part of the security given by the person granted bail to secure his bail obligations. The paramount consideration is whether the accused has complied with the conditions of his bail; and where there has been a breach, whether the nature and extent of the breach warrants a full or partial forfeiture of bail (SCR Nos 12 and 12A of 1984; Joe Parakas v The State [1985] PNGLR 224, Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88, Lemba Takail v William Wulat (1982) N371 (M), The State v Junior Steven Gawi [1988-89] PNGLR 118, Tama Nou v The State (1990) N892, The State v Simon Paul Korai (2009) N3820).

88. I am satisfied that Dr Marat complied with his bail obligations so I will order that his bail be fully refunded.

89. As for Mr Namah, he breached the bail obligation imposed by the order of 13 December 2011 that he "shall not interfere with these contempt proceedings in any manner whatsoever" on at least two occasions. First on 23 May 2012 by holding a press conference in which amongst other things he called for the resignation of three Judges of the Supreme Court in regard to the performance of their judicial functions in SC Ref Nos 1 and 2 of 2012. Secondly on 24 May 2012 by his entry into the courtroom in which the Chief Justice was presiding and attempting to arrest and detain the Chief Justice. I find that on both occasions Mr Namah breached his bail obligations in a very serious and extensive manner. It would seem to follow that as a matter of course the whole of his bail of K5,000.00 should be forfeited. I am aware that I did not expressly say to Mr Tabuchi that I was considering forfeiture of bail. However it is such an obvious issue arising from the facts that I have decided that it was not necessary to expressly put it to counsel. It must also be observed that under Section 22(3) of the Bail Act a person affected by an order for forfeiture of bail may within 14 days after the making of the order apply to the court making the order for variation or revocation of the order. It is in the interests of justice that Mr Namah's bail be forfeited and I will make an order to that effect.

90. I will also clarify that both Mr Namah and Dr Marat are relieved of their bail obligations.

91. I order that:

Further to the order of 29 May 2013 discontinuing the contempt charges against Hon Dr Allan Marat MP and Hon Belden Namah MP ("the contemnors"):

(1)	The whole of the security in the sum of K5,000.00 given by Hon Dr Allan Marat MP to secure his bail obligations shall be refunded to him forthwith.

(2)	The whole of the security in the sum of K5,000.00 given by Hon Belden Namah MP to secure his bail obligations is under Sections 22(1) and (2)(b) of the Bail Act forfeited and shall be paid into the Consolidated Revenue Fund.

(3)	The contemnors are relieved of all bail obligations.

20	SCA 31 0F 2012: PETER O'NEIL V SIR MICHAEL SOMARE MP, SIR ARNOLD AMET MP & EAST SEPIK PROVINCIAL EXECUTIVE

M N Wilson& C Karaiye for the applicant
P J Wright & J Wohuinangu for the first and second respondents
W Thomas for the third respondent

91. This was an application by Hon Peter O'Neil MP for leave to appeal against Justice Kirriwom's decision in the Supreme Court on 3 April 2012 not to disqualify himself from continuing to hear and determine SC Ref No 3 of 2012. The application was filed on 4 April 2012 but no steps were taken to prosecute the matter and the application was never heard.

92. On 31 May 2013 a notice of discontinuance was filed. The notice is compliant with Order 11, Rule 29(a) of the Supreme Court Rules 2012. The matter is ripe for closure.

93. I order that:

(1)	A notice of withdrawal of the proceedings having been filed by the applicant on 31 May 2013 and there being no applications pending, these proceedings are closed and shall be regarded for all purposes as having been disposed of by the Court.

(2)	The parties will bear their own costs.

21	SCA 81 0F 2012: DR ALLAN MARAT, NATIONAL EXECUTIVE COUNCIL, VELA KONIVARO & THE STATE V HUDSON ALOIS RUMATLAP

M N Wilson & C Karaiye for the applicants
R Lains for the respondent

94. This was an application for leave to appeal against my decision of 18 June 2012 in the National Court to refuse a motion to dismiss as frivolous the respondent's judicial review proceedings (OS (JR) No 14 of 2012) regarding the revocation of his appointment as First Legislative Counsel. The matter is connected to SC Ref No 3 of 2011 because the applicants argued that revocation of the respondent's appointment was protected by order No 8 of the Supreme Court made on 21 May 2012 in SC Ref Nos 1 & 2 of 2012 which stated that "the bona fide decisions and actions made and implemented by the de facto government of Peter O'Neill as Prime Minister and any of those of Ministers appointed by him, between 2nd August 2011 and 20th May 2012, are not open to challenge".

95. The application for leave to appeal was filed on 5 July 2012 but no steps were taken to prosecute the matter and the application was dismissed with costs for want of prosecution on 21 September 2012. After dismissal of the application for leave was brought to my attention on 21 May 2013 I made the following order:

.. having been satisfied that the application for leave to appeal was dismissed on 21 September 2012, the proceedings [shall] be regarded as completed.

22 	SCA 108 0F 2011: GRAND CHIEF SIR MICHAEL SOMARE V HON JEFFREY NAPE SPEAKER OF THE NATIONAL PARLIAMENT, DON PANDAN CLERK OF THE PARLIAMENT, HON PETER O'NEIL & HON DR ALLAN MARAT MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

P J Wright & J Wohuinangu for the appellant
P Tabuchi for the first, third & fourth respondents
T Twivey-Nonggorr for the second respondent

96. This appeal relates to a declaration on 6 September 2011 by the Speaker of the National Parliament Hon Jeffrey Nape MP that Sir Michael Somare was disqualified under Section 104(2)(d) (normal term of office) of the Constitution from being a member of the Parliament for being absent without leave of the Parliament during three consecutive meetings of the Parliament and that there was a vacancy in the East Sepik Provincial seat. Sir Michael commenced proceedings on 12 September 2011 by originating summons (OS No 728 of 2011) in the National Court seeking declarations and orders that the Speaker's declarations and pronouncements were null and void and of no effect.

97. On 20 September 2011 Justice David in the National Court refused an application by the plaintiff for an injunction that would have restrained implementation of the Speaker's declarations and pronouncements pending trial of the originating summons (Somare v Nape OS No 728 of 2011, 20.09.11 unreported). A notice of appeal against Justice David's decision was filed on 23 September 2011. On 7 October 2011 a notice of appearance was filed by Young & Williams Lawyers for the first, third and fourth respondents. On 12 October 2011 a notice of appearance was filed by Twivey Lawyers on behalf of the second respondent. A draft index to the appeal book was prepared in October 2011 but that was the last activity on the file. The issues raised by the originating summons have been resolved by the order of the Supreme Court in SC Ref No 3 of 2011 (confirmed by the order in SC Ref Nos 1 & 2 of 2012) which included a declaration that the Speaker's declaration of 6 September 2011 that Sir Michael Somare had lost his seat was unconstitutional and invalid.

98. On 28 May 2013 a notice of discontinuance was filed. As it was filed after filing of an appearance by the respondents and before a date was set for hearing of the appeal it requires, to be effective, under Order 11, Rule 29 of the Supreme Court Rules 2012 the consent of the respondents or the leave of the Court. Though there was no objection by the respondents and no application for costs has been made the notice of discontinuance does not bear the consent of the respondents, so it is necessary for the leave of the Court to be obtained. I as a single Judge of the Supreme Court am not in a position to grant leave so this matter will need to be referred to the full court of the Supreme Court. 

99. I order that:

A notice of discontinuance of the proceedings having been filed by the appellant on 28 May 2013 after filing of an appearance by the respondents and without the consent of all the parties appearing, these proceedings are pursuant to Order 11, Rules 29(b) and 30 of the Supreme Court Rules 2012 referred to the full court of the Supreme Court for determination of the question whether leave of the Court for withdrawal should be given and if leave is granted the conditions, if any, to which it is subject.

SUMMARY

100. The following table summarises the orders I have made in relation to each of the 22 matters listed in the schedule to the Chief Justice's directions of 3 May 2013.

No	File ref	Short name of proceedings 	Order summary	Date of order(s) 	
1.		SC Ref 3/2011	Reference by East Sepik Provincial Executive 	Applications by 5th and 2nd interveners to set aside ruling of 12/12/11 referred to full court for summary determination. 
Notices of motion by 7th& 8th interveners seeking costs referred to full court for determination.	03.07.13	
2.		SC Ref 1/2012	Reference by Attorney-General	Slip rule application by National Parliament referred to full court for summary determination. 
Question of costs referred to full court for determination.	03.07.13	
3.		SC Ref 2/2012	Reference by National Parliament 	Slip rule application by National Parliament referred to full court for summary determination.
Question of costs referred to full court for determination.	03.07.13	
4.		SC Ref 4/2011	Reference by Attorney-General	Adjourned to Registry.	29.05.13	
5.		SC Ref 3/2012	Reference by Attorney-General	Proceedings referred to full court for summary determination.	03.07.13	
6.		SC Ref 4/2012	Reference by East Sepik Provincial Executive
	Proceedings referred to full court for summary determination.	03.07.13	
7.		SC Ref 5/2012	Reference by Morobe Provincial Executive	Proceedings referred to full court for summary determination.	03.07.13	
8.		SC Res 1/2012	Yakasa v Kulunga 	Proceedings referred to full court for summary determination.	03.07.13	
9.		SCOS 8/2012	Augerea v Parkop	Proceedings closed. 	03.07.13	
10.		SCOS 1/2012	Somare v O'Neil 	Proceedings closed.	03.07.13	
11.		SCOS 2/2012	Augerea v Kulunga 	Proceedings closed.	03.07.13	
12.		SCOS 3/2012	Somare v Nape 	Proceedings referred to full court for summary determination.	03.07.13	
13.		SCOS 4/2012	Augerea v Marat 	Proceedings closed.	03.07.13	
14.		SCOS 6/2012	Augerea v O'Neil 	Proceedings closed.	03.07.13	
15.		SCOS 7/2012	Augerea v Twivey	Proceedings closed.	03.07.13	
16.		SCOS 5/2011	Somare v Nape 	Proceedings referred to full court for summary determination.	03.07.13	
17.		SC Ref 1 & 2/2012	Suspended contempt proceedings re Twivey	No further action without leave of Court.	03.07.13	
18.		SC Ref 3/2011 & SC Ref 1 & 2/2012	Suspended bail revocation proceedings re Namah	Order of arrest set aside.	03.07.13	
19.		SC Ref 3/2011	Contempt charges re Marat & Namah	Contempt charges discontinued; bail money of Dr A Marat refunded; bail money of Hon B Namah forfeited to State.	29.05.13,
03.07.13	
20.		SCA 31/2012	O'Neil v Somare 	Proceedings closed.	03.07.13	
21.		SCA 81/2012	Marat v Rumatlap	Proceedings completed.	21.05.13	
22.		SCA 108/2011	Somare v Nape 	Proceedings referred to full court: whether leave to discontinue should be granted.	03.07.13	

Ordered accordingly.
_____________________

LAWYERS
1: SC Ref 3/2011
Thomas & Co Lawyers: Lawyers for the referrer 
Young & Williams Lawyers: Lawyers for the 1st & 6th interveners 
Twivey Lawyers: Lawyer for the 2nd intervener 
Warner Shand Lawyers: Lawyer for the 5th intervener 
John K Gawi Lawyers: Lawyers for the 7th intervener 
Posman Kua Aisi: Lawyers for the 8th intervener 

2: SC Ref 1/2012
Twivey Lawyers: Lawyers for the referrer 
Warner Shand Lawyers: Lawyers for the 1st intervener 
Young & Williams Lawyers: Lawyers for the 2nd intervener 
Steeles Lawyers: Lawyers for the 3rd intervener 
Posman Kua Aisi Lawyers: Lawyers for the 4th & 5th interveners 
3: SC Ref 2/2012
Warner Shand Lawyers: Lawyers for the referrer 
Twivey Lawyers: Lawyers for the 1st intervener 
Warner Shand Lawyers: Lawyers for the 2nd intervener 
Young & Williams Lawyers: Lawyers for the 3rd intervener 
Steeles Lawyers: Lawyers for the 4th intervener 
Posman Kua Aisi Lawyers: Lawyers for the 5th & 6th interveners 

4. SC Ref 4/2011
Solicitor-General: Lawyer for the referrer 
PNG Legal Services: Lawyers for the interveners 

5. SC Ref 3/2012
Posman Kua Aisi Lawyers: Lawyers for the referrer 
6. SC Ref 4/2012
Steeles Lawyers: Lawyers for the referrer 
Twivey Lawyers: Lawyers for the intervener 

7: SC Ref 5/2012
Steeles Lawyers: Lawyers for the referrer 
Twivey Lawyers: Lawyers for the 1st intervener 
Warner Shand Lawyers: Lawyer for the 2nd intervener 
Posman Kua Aisi Lawyers: Lawyer for the 3rd & 4th interveners 
Ashurst Lawyers: Lawyer for the 5th intervener 

8: SC Res 1/2012
Dotaona Lawyers: Lawyers for the applicant 
Parua Lawyers: Lawyers for the 1st respondent 
Warner Shand Lawyers: Lawyer for the 2nd respondent 
Twivey Lawyers: Lawyer for the 3rd & 4th respondents 

9: SCOS 8/2012
Diwenis Lawyers: Lawyers for the plaintiff 

10: SCOS 1/2012
Posman Kua Aisi Lawyers: Lawyers for the applicants 
Warner Shand Lawyers: Lawyers for the 1st & 8th respondents 
Young & Williams Lawyers: Lawyer for the 2nd respondent 
Solicitor-General: Lawyer for the 7th respondent 
 
11: SCOS 2/2012
Diwenis Lawyers: Lawyers for the plaintiff 
Warner Shand Lawyers: Lawyers for the contemnors 

12: SCOS 3/2012
Posman Kua Aisi Lawyers: Lawyers for the applicants 
Twivey Lawyers: Lawyers for the 2nd respondent 
Warner Shand Lawyers: Lawyer for the 3rd respondent 

13: SCOS 4/2012
Ashurst Lawyers: Lawyers for the plaintiff 
Warner Shand Lawyers: Lawyers for the 4th respondent 

14: SCOS 6/2012
Diwenis Lawyers: Lawyers for the plaintiff 
Warner Shand Lawyers: Lawyers for the 1st defendant 

15: SCOS 7/2012
Diwenis Lawyers: Lawyers for the plaintiff 
Warner Shand Lawyers: Lawyers for the contemnor 

16: SCOS 5/2011
Steeles Lawyers: Lawyers for the applicant 

17: SC Ref 1 & 2/2012
Diwenis Lawyers: Lawyers for the Registrar 
Warner Shand Lawyers: Lawyers for the contemnor 

18: SC Ref 3/2011 & SC Ref 1 & 2/2012
Diwenis Lawyers: Lawyers for the Registrar 
Young & Williams Lawyers: Lawyers for the contemnor 

19: SC Ref 3/2011 
Diwenis Lawyers: Lawyers for the Registrar 
Young & Williams Lawyers: Lawyers for the contemnors 
20: SCA 31/2012
Warner Shand Lawyers: Lawyers for the applicant 
Posman Kua Aisi Lawyers: Lawyers for the 1st & 2nd respondents 
Thomas & Co Lawyers: Lawyer for the 3rd respondent 

21: SCA 81/2012
Warner Shand Lawyers: Lawyers for the applicants 
Steeles Lawyers: Lawyers for the respondent 

22: SCA 108/2011
Posman Kua Aisi Lawyers: Lawyers for the appellant 
Young & Williams Lawyers: Lawyers for the 1st, 3rd & 4th respondents 
Twivey Lawyers: Lawyer for the 2nd respondent