SC1548
	            PAPUA NEW GUINEA	
                                    [IN THE SUPREME COURT OF JUSTICE]

SC APP NO 3 OF 2016

BENHAM SATAH & 301 OTHERS
Applicants

V

RABURA MATAIO, CHIEF MIGRATION OFFICER
First Respondent

HON RIMBINK PATO, 
MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
Second Respondent

HON PETER O’NEILL, PRIME MINISTER 
Third Respondent

HON ANO PALA, ATTORNEY-GENERAL
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Cannings J, Poole J, Polume-Kiele J
2016: 27 October 

PRACTICE AND PROCEDURE – application for dismissal of proceedings for failure to comply with requirements of Supreme Court Rules 2012 – applications under Constitution, Section 57, for enforcement of Basic Rights – whether applications must be signed by applicant, whether signature of applicant’s lawyer is sufficient: Supreme Court Rules, Order 6, Rule 3(e) – consequence of failure to comply with signing requirements – whether Court can dispense with requirements of Rules.

The applicants were accommodated at a regional processing centre for asylum seekers. They commenced proceedings in the original jurisdiction of the Supreme Court, under Section 57 of the Constitution, as an application for enforcement of constitutional rights, in particular the right to freedom based on law (Constitution, Section 32), the right to freedom from inhuman treatment (Constitution, Section 36), the right to the full protection of the law (Constitution, Section 37), the right to liberty of the person (Constitution, Section 42), seeking, amongst other things, declarations that they were being unlawfully detained, orders that they be released from detention, and damages. Before trial, the first and second respondents filed an application for dismissal of the entire proceedings on the ground that the Section 57 application had been signed by the applicants’ lawyer, not by the applicants, contrary to Order 6, Rule 3(e) of the Supreme Court Rules 2012. The third, fourth and fifth respondents supported the application. The applicants opposed it. 

Held:

(1)	Per Poole J and Polume-Kiele J; Cannings J dissenting: Order 6, Rule 3(e) of the Supreme Court Rules requires that a Section 57 application “be signed by the person or Law Officer making the application”. Similar signing requirements for other Supreme Court originating processes have been held in a long line of authority to be mandatory and non-compliance has been fatal to the proceedings. The Court must be consistent in its approach to interpretation of the Rules. Order 6, Rule 3(e) imposes a mandatory requirement, which was not met. Therefore the application should be granted and the proceedings dismissed.

(2)	Per Cannings J: It is not a mandatory requirement for applicants to sign a Section 57 application. It can be signed by an applicant’s lawyer, as provided for by Form 6 of the Rules. In any event, in the present case, the applicants’ authorisation for their lawyers to commence the proceedings was annexed to the application, thus the signing requirement was met. Further, if in fact the signing requirement was not complied with, this is an appropriate case, given its human rights significance, in which to dispense with the requirements of the Rules. Therefore the application should be refused and the Section 57 proceedings proceeded with.

(4)	By majority, the application was granted and the entire proceedings dismissed. As to costs, it was decided unanimously that the parties bear their own costs. 

Cases cited:

The following cases are cited in the judgment:

Namah v Pato (2013) SC1241
Reference by the Attorney-General (2010) SC1078
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
SC Rev No 76 of 2011; Application by Morobe Provincial Government (2012) SC1190
Special Reference by Morobe Provincial Executive (2010) SC1089

APPLICATION

This was an application to dismiss proceedings commenced in the Supreme Court as an application for enforcement of Basic Rights under Section 57 of the Constitution. 
	
Counsel:	

R Merkel & P B Lomai, for the Applicants
I Molloy & L P Kandi, for the First & Second Respondent	
T Tanuvasa, for the Third, Fourth & Fifth Respondents

27 October, 2016

1.     CANNINGS J:   I would refuse the application of the first and second respondents, to dismiss the proceedings commenced by the applicants.
2.   The applicants, Benham Satah and 301 others, are non-citizens who have been accommodated for a considerable period at the Manus Island Regional Processing Centre. In March 2015 they commenced proceedings in the original jurisdiction of the Supreme Court, under Section 57 of the Constitution, as an application for enforcement of constitutional rights, in particular:

•	the right to freedom based on law (Constitution, Section 32), 
•	the right to freedom from inhuman treatment (Constitution, Section 36), 
•	the right to the full protection of the law (Constitution, Section 37), and 
•	the right to liberty of the person (Constitution, Section 42).

3.    They sought, amongst other things, declarations that they were unlawfully detained, orders that they be released from detention, and damages.

4.  Before trial, the first and second respondents, on 15 September 2016, filed an application for dismissal of the entire proceedings on the ground that the Section 57 application had been signed by the applicants’ lawyer, not by the applicants, contrary to Order 6, Rule 3(e) of the Supreme Court Rules. The third, fourth and fifth respondents supported the application. The applicants opposed it. 

5.    I would refuse the first and second respondents’ application, for three reasons.
1 Signing by applicants not necessary
I consider that it is not a mandatory requirement for the applicants to sign the application. An application to the Supreme Court under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of Basic Rights, also known as human rights, can in my view be signed by the applicant’s lawyer.

Though Order 6, Rule 3(e) of the Supreme Court Rules 2012 requires that the application be signed “by the person or Law Officer making the application”, ambiguity exists as to whether Rule 3(e) is an exhaustive statement of who can sign by virtue of the wording of Form 6, which states that the application is “To be signed by person making the application or his Lawyer”. And further ambiguity is introduced by the wording of Order 6, Rule 3(d), which provides that the application “shall be in accordance with Form 6”.

Form 6 is in the following terms:
GENERAL FORM OF CONSTITUTIONAL ENFORCEMENT
APPLICATION (CONSTITUTION SECTION 57)

IN THE SUPREME COURT                           SCA No of 20
OF JUSTICE                                                   (Insert number and year)
                                                                        Enforcement Pursuant to
                                                                        Constitution Section 57
                                                                        Application By (insert name
                                                                        of person or Court)

APPLICATION TO ENFORCE CONSTITUTIONAL RIGHTS
1.	THIS ENFORCEMENT of Rights and Freedoms is sought by (name of person)
2.	On Behalf of (person/s to be named)
3.	THIS APPLICATION arises (briefly state the nature and circumstances in which the matter arises).
4.	The CONSTITUTIONAL LAW Provisions, relevant are (state the title of the Constitutional Law and state Section by number and title).
DATED:

Sgd _______________

(To be signed by person
making the application
or his Lawyer)
Filed By: (Form 17)
NOTICE:  (Form 18)

6.    In view of this ambiguity the Court is required to take account of the special nature of a Section 57 application and the lack of any intention expressed in Section 57 that there be strict insistence with form and procedure to invoke the jurisdiction of the Supreme Court to enforce the Basic Rights. Section 57(1) states:

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

7.   It is necessary to read the Supreme Court Rules in a way consistently with the purpose and policy expressed in the equivalent provisions of the National Court Rules, Order 23 (human rights jurisdiction), which is to facilitate quick and easy access to the courts by persons who wish to claim that their human rights have been breached.

8.    Though there are many cases in which the Supreme Court has stated that there needs to be strict compliance with signing requirements for applications to invoke the original jurisdiction of the Court, Section 57 applications are unique and are quite different in nature to special references under Section 19 (special references to the Supreme Court) or applications for enforcement of the Constitutional Laws under Section 18(1) of the Constitution (original interpretative jurisdiction of the Supreme Court).

9.   The facts in the long line of cases beginning with SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249, in which the Court has said that references and other constitutional applications must be signed personally by the authority or the applicant (and I was a member of the Court in a number of those cases) can be distinguished from the facts of the present case. Cases in that line of authority include SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, Reference by the Attorney-General (2010) SC1078, Special Reference by Morobe Provincial Executive (2010) SC1089, SC Rev No 76 of 2011; Application by Morobe Provincial Government (2012) SC1190 and Namah v Pato (2013) SC1241.

10.  Those cases must be distinguished from the present case, not only because the originating process and the jurisdiction of the Supreme Court sought to be invoked were different to the present case, but because in those cases there was no scope for interpreting the Rules in any way other than that the reference or application in question had to be signed by the authority or applicant. The 2012 Rules make it clear that such references and applications must be signed by the referring authority or applicant and no provision is made for the lawyer to sign. The present case is quite different because Form 6 specially allows the lawyer to sign.  

2. Applicants did in fact sign the application
11.   If I am wrong in saying that it is not mandatory for an applicant to sign the application, and the correct position at law is that Section 57 applications must be signed by the applicant, I consider that this requirement has, in fact, been met by the annexure to the application.
12.  The annexure shows that each of the original applicants signed an authority, authorising Lomai & Lomai Attorneys to commence proceedings of this nature on their behalf. In these circumstances the applicants should be regarded as having signed the application. 

3. Requirements of Rules should be dispensed with
13.   If I am wrong in that position and the application has not been signed in accordance with the Rules, I would, in the special circumstances of this case, dispense with the requirements of the Rules. I consider that the Supreme Court, and a member of the Court, can dispense with the requirements of the Rules, due to the combined effect of Order 2, Rule 1(h) (certain rules to apply) of the Supreme Court Rules and Order 1, Rule 7 (relief from rules) of the National Court Rules.
14.   Order 2, Rule 1 of the Supreme Court Rules states:
The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to—

(a)	Sittings and vacations	Order 2 Division 1
(b)	The registry			Order 2 Division 2
(c)	Documents			Order 2 Division 3
(d)	Lawyers			Order 2 Division 5
(e)	Fees				Order 2 Division 6
(f)	Funds in court		Order 2 Division 7
(g)	Contempt of Court		Order 14 
(h)	Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed. [Emphasis added]

15.   Order 1, Rule 7 of the National Court Rules states:
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. [Emphasis added]

16.    I would dispense with the requirements of the Rules, for these reasons:
•	This is a very significant case, which has been allowed to continue for more than a year without the point that is the subject of the application before us, being taken.

•	It would amount to an unnecessary prolongation of resolution of important issues about human rights in Papua New Guinea, as dismissal of the proceedings would not extinguish the rights of the applicants to commence fresh proceedings.

•	The human rights laws of Papua New Guinea are a critical component of our constitutional democracy. Maintenance of the Rule of Law depends on human rights of all people in Papua New Guinea, citizens and non-citizens, being readily enforceable, easily and cheaply. Courts should be slow to dismiss such applications on technicalities.

•	As to the issue of whether the applicants’ lawyers, Lomai & Lomai Attorneys, have authority to act on behalf of the applicants, I consider that, having heard Mr Lomai give an undertaking that his firm has, in fact, instructions and authority to act, the Court should presume and accept without further inquiry – particularly as this point has not been pursued by the respondents – that that firm has, in fact, authority. 

•	The Court should proceed expeditiously to hear and determine the human rights enforcement application that, in my view, is properly before it.
Conclusion

17.    For those reasons I would dismiss the application for dismissal of the proceedings.

18.  POOLE J:  In Supreme Court Application No. 3 of 2015 the first and second respondents have applied to the Court to dismiss the application. They base the most part of their argument on a claim that the applicants have failed to comply with the requirements of Order 6, Rule 3 of the Supreme Court Rules. They argue that those requirements are mandatory. 
19.   Order 6, Rule 3 states:
An application under Constitution Section 57 shall be instituted by an application to enforce constitutional rights and shall—

(a)	be entitled under the Section of the Constitution by which it is made together with the year and number of the application; and
(b)	be entitled with the name of the court, person or Law Officer making the application; and
(c)	state briefly the circumstances giving rise to the application and specify the relevant Constitutional rights provisions; and
(d)	be in accordance with form 6; and
(e)	be signed by the person or Law Officer making the application; and
(f)	be filed in the Registry. [Emphasis added]

It is noted that sub-rules 3(b) and 3(e) have parallel provisions: each refers to the “person or Law Officer making the application”. 

20.    The first and second respondents argue that strict compliance with Order 6, Rule 3(e) is a precondition to the Court exercising jurisdiction. Learned counsel for the first and second respondents, in submissions, has referred the Court to a number of Supreme Court authorities in support of this proposition. Those authorities include SC Ref No 4 of 1987; Re Central Provincial Government & NCDIC [1987] PNGLR 249 and SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, both of which concern special references made under Section 19 of the Constitution. Also there are Special Reference by Morobe Provincial Executive (2010) SC1089, which was a slip rule application, and SC Rev No 76 of 2011; Application by Morobe Provincial Government (2012) SC1190 and Namah v Pato (2013) SC1241.

21.   In all these cases the Supreme Court struck out the reference or application in question because it was not signed by the correct person. These cases were ruled incompetent because they were in breach of the Rules, which require strict compliance. 

22.    Learned counsel for the applicants submits that the application for enforcement of constitutional rights is not incompetent. He relies in particular on Order 6, Rule 3(d), which requires that an application be in accordance with Form 6, which at its foot has two lines. One says ‘dated, colon’ and there is a space behind it. The other line says “Sgd” (meaning signed) and underneath that, in brackets, are the words “To be signed by the person making the application [ie the applicant] or his Lawyer”. The words indicating applicant or his lawyer, which appear in brackets under the space for execution of the form, were, we are informed, added by the Rules Committee at some indeterminate time in the past, but it certainly was there when some of the cases to which we have been referred were determined. 

23.   The schedule to the gazettal notice, which brought amendments to the Rules in place on 19 December 2013, makes specific reference to Order 3, Rule 3(e).  It deleted the words “law officer”, all in lower case, and replaced them with “Law Officer. The capital ‘L’ Law and capital ‘O’ Officer were clearly intended to reflect the meaning of those words in Section 156(1) of the Constitution, which states:

The Law Officers of Papua New Guinea are—

(a)	the principal legal adviser to the National Executive; and
(b)	the Public Prosecutor; and
(c)	the Public Solicitor.

24.   There was also a change to Rule 3(a). But nothing was gazetted to amend any execution provisions. Even if there had been some amendment, with great respect to my learned brother, Justice Cannings, who has a different view, I am unable to accept that the words below the space for execution of the form have the effect of altering the specific wording of Rule 3(e). 

25.   I am unable to accept that the authorised signatory is not only the applicant or Law Officer in whose name the application is made, and that the meaning of the term “Law Officer” can be expanded to include a lawyer acting for the applicant. 

26.    It was argued before us that the words “or his lawyer” are part of the text of the form and have thus created an ambiguity, and that the ambiguity is of the type which, when it occurs in remedial legislation, should be construed liberally and broadly. It is an argument which is attractive at first. But what such an interpretation is asking us to do is to throw over a considerable body of law on this point, which has been decided in a number of Supreme Court cases going back many years, and the Rules of the highest Court in the land. 

27.   The Rules refer to the Constitution, which is the paramount body of law of Papua New Guinea, and should not be lightly construed in a way, so as to create variations with other long established constructions. There should, in my respectful opinion, be no deviation from the Rules in these circumstances. There should be no room for creating exceptions or shades of interpretation in the application of the Rules of the Supreme Court, or for not insisting on strict compliance with the clear words of Order 6, Rule 3(e).

28.   For those reasons I would grant the application of the first and second respondents and dismiss the applicants’ application, for failure to comply with the mandatory requirements whereby such applications can come before the Court. 

29.   I add that the applicants have various other avenues open to them. These include seeking first representation from a Law Officer or giving proper instructions to an independent lawyer to seek appointment. Or if, as has been suggested, the major remaining issue is damages, that is simply corrected by filing a writ and statement of claim within the time allowed. 

30.   So, with respect, I disagree with the interpretation suggested that this provision, by requiring the form which is to institute an application to be in accordance with Form 6, extends the class of people who can sign the application to include the lawyer for the applicants. 

31.    I would grant the application by the first and second respondents to dismiss Supreme Court Application No 3 of 2015.

32.    POLUME-KIELE J:   With regard to the application that was made this morning, I concur with the ruling that is made by Justice Poole and grant the application to dismiss the enforcement of human rights application.

EDITORIAL NOTE

33.    After noting that the decision of the Court, by majority, was to grant the application for dismissal of the proceedings, their Honours, after hearing counsel on the question of costs, ruled unanimously that the parties bear their own costs. 

The final order of the Court was in the following terms:

1.	The application for dismissal of the proceedings, filed 15 September 2016, is granted.

2.	The entire proceedings are dismissed.

3.	The parties shall bear their own costs of the entire proceedings.

Judgment accordingly,
_______________________________________________________________

Lomai & Lomai Attorneys:   Lawyers for the applicants 				
MS Wagambie Lawyers:     Lawyers for the 1st & 2nd respondents			
Solicitor-General:                Lawyer for the 3rd, 4th & 5th respondents