SC1716

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 36 of 2018

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
SOLOMON KANTHA acting in his capacity as the Chief Migration Officer
Second Appellant

AND:
PAPUA NEW GUINEA IMMIGRATION AND CITIZENSHIP AUTHORITY
Third Appellant

AND:
DANIEL FRANK CHARLIE
Respondent

Waigani:	Batari, J
2018:   18 May, 14 September

SUPREME COURT – interlocutory application - stay – enforcement of human rights - interim reliefs obtained in pursuit of – nature of application sought and nature of orders made by primary court – assessment of - application and the resultant orders finally disposed of the rights of the parties - fair trial – violation of principles of - stay pursuant to s. 19 Supreme Court Act warranted. 

Cases Cited:

Kond v National Development Bank Ltd [2015] PGC 18; SC 1432
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Neville v Independent Public Service Corporation (2012) SC 1193.
North Solomons Provincial Government v Pacific Architecture [1992] PNGLR 145
Pokia v Yallom [2014] PGSC 3; SC 1336; 
Ruma Constructions Pty Ltd v Christopher Hill (1999) SC 560 
Wau Ecology Institution vs. Registrar of Companies (2005) SC794

Counsel:

Mr G. Akia, for the First Appellant
Ms B Potane, for the Second & Third Appellants
Ms E Wurr, for the Respondent

14 September, 2018

1.	BATARI J:	On 1 March 2018 the National Court made certain orders against the appellants in favour of the respondent. The appellants now apply for stay of the effect of those orders.

2.	The respondent, Daniel Frank Charlie aged 45 years was born in 1973 at Daru Island, Western Province. He first arrived in Australia as a three (3) year old toddler with his parents in November, 1976.  The family initially settled at Tami Island in the Torres Straits, a territory of Australia. He had lived all his life in Australia until his long history of criminal convictions caught up with him. In April 2017 the Australian Government deported him back to Papua New Guinea following.

3.	On 21 February 2018, Mr Charlie commenced a human rights action in the National Court at Waigani, seeking the following orders;

i)	A declaration that the Plaintiff is not an automatic citizen of PNG as per s.65 (1) of the Constitution;

ii)	A declaration pursuant to Constitution s.57 (1) (3) that the defendants unlawfully allowed the plaintiff entry into Papua New Guinea, in breach of Constitution s.37 (1);

iii)	Pursuant to Constitution s.65 (4) (a) (b) and s.57 (1) (3), the Plaintiff:

•	Has a right to permanent resident in Australia; or
•	Is an Australian citizen; or
•	Is a stateless person.

4.	On the same date, he filed a Notice of Motion for the following relief;

i)	A declaration pursuant to Constitution s.57 (1) (3) that the Defendants unlawfully allowed the Plaintiff entry into the country, in breach of Constitution s. 37 (1);

ii)	Pursuant to s.57 (1) (3), an order be made against the defendants to provide the plaintiff immediate humanitarian support in terms of shelter, food and reasonable allowance;

5.	Upon hearing of the interlocutory application, his Honour Tamate J made  the following inter alia, orders on 6/3/2018;

i)	Pursuant to s.57 (1) and (3) of the Constitution, the court hereby declared that the Defendants unlawfully allowed the plaintiff entry into the country, Papua New Guinea;

ii)	Pursuant to s.57 (1) and (3) of the Constitution, the defendants are hereby ordered to provide to the plaintiff immediate humanitarian support in terms of shelter, food and reasonable allowances pending the hearing of the substantive matter;

iii)	The Defendants to pay reasonable compensation to a Robert Panau for accommodating the Plaintiff for five (5) weeks.

iv)	The matter returns to Court on 19/3/2018 at 9:30am for further directions hearing;

v)	First Respondent to appear and advise the court on the status of compliance of Order (2);

6.	The appellants’ appeal is based on the grounds that;

a)	The primary judge erred in law when he ruled on the Notice of Motion filed on 21/2/2018 and granted the substantial reliefs sought in the Originating Summons thus rendering finality of the proceedings contrary to O. 4 r. 49(9) of the National Court Rules (the NCR);

b)	The primary judge wrongly exercised his discretion in entertaining and ruling in favour of the respondent on the Notice of Motion that failed to invoke the concise jurisdictional basis to obtain orders unfounded in law, contrary to O. 4 r. 49 (8) of the NCR.     

7.	This application is made under s 19 of the Supreme Court Act. Section 19 provides that unless otherwise ordered by the Supreme Court or a judge, an appeal or an application for leave to appeal to the Supreme Court does not stop the proceedings or the orders of the Court below, taking effect.  

8.	So, this application for interim stay is in order. A grant of the stay sought is subject to the exercise of Court discretion.

Party’s positions

9.	The appellants’ contentions are inter alia, that; 

•	The proposed grounds of appeal raise arguable legal issues;
•	 The court orders are causing them hardship, inconvenience and prejudice; and
•	The overall interest of justice and balance of convenience favour them.

10.	The case for the respondent through his Public Solicitor lawyer is, that;

•	The National Court orders are interim only, pending determination of the substantive regarding the entry of Mr. Charlie into the country and his legal status;
•	The appeal was filed in contravention of s. 14 (3) of the Supreme Court Act because leave to appeal has not been obtained.

11.	Counsel, Mr Akia and Ms Potane for the appellants and Ms Wurr for the respondent, cited McHardy v Prosec Security and Communication Ltd (2000) PNGLR 279 as supporting his/her case. The Supreme Court in McHardy’s case suggests the following guidelines when considering an application for a stay;

•	Whether leave to appeal is required and whether it has been obtained.
•	Whether there has been any delay in making the application.
•	Possible hardship, inconvenience or prejudice to either party.
•	The nature of the judgment sought to be stayed.
•	The financial ability of the applicant
•	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
•	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
•	The overall interest of justice.
•	Balance of convenience.
•	Whether damages would be sufficient remedy.

Whether leave to appeal is required.

12.	It is trite, that the Supreme Court will lack jurisdiction if the terms of the interim orders of the National Court did not bring the proceedings to finality. It is thus, imperative that the reviewing judge carefully examine the nature of the orders the primary court made in an interim application as to its relationship and connectivity effect on the relief sought in the original process. This assessment is essential because, whether a judgment or order is final or interlocutory is not always defined. The case of North Solomons Provincial Government v Pacific Architecture [1992] PNGLR 145 sets out the test as follows at p. 147:

“….whether a judgment or order is final or interlocutory is not always clearly defined, and decisions on the subject are sometimes difficult to reconcile.  Generally, two tests have been propounded as to whether a judgment is final or interlocutory.  The first test is that the court will have regard to the nature of the application not to the nature of the order made.  Thus, a judgment or order must be interlocutory or character unless it is made on an application which must operate in such a way that whatever judgment or order is given or made on it, it must finally dispose of the dispute or the controversy between parties.  The other test is that the court will look at the order made by the court below and not at the nature of the application so that if the order finally disposes of the rights of the parties, it is final; but if it does not, then it is interlocutory.”

13.	See also, Ruma Constructions Pty Ltd v Christopher Hill (1999) SC 560; Neville v Independent Public Service Corporation (2012) SC 1193.

14.	The relevant orders in question as enumerated above are that; in paragraph 6 (i), the court declared under Constitution s.57 (1) and (3), that the defendants unlawfully allowed the plaintiff into the country;  in paragraphs 6 (ii) and (iii) the court made consequential orders against the defendants to provide to the plaintiff, immediate humanitarian support in terms of shelter, food and reasonable allowances and payment of compensation to a Robert Panau for providing the plaintiff, accommodation.

15.	I have assessed the nature of the application before the primary court. I have also examined the nature of the orders made. In both cases, it is apparent, the application and the resultant orders finally disposed of the rights of the parties on the substantive issues central to the whole proceedings. 
  
16.	Because the orders were final in nature, leave is not required under s. 14 (1) (a) of the Supreme Court Act. The appeal is properly before the Court.

Delay in making the application

17.	This issue does not arise. The application has been promptly made.

Possible hardship, inconvenience or prejudice to either party.

18.	The respondent claims he has no relatives and does not know anyone, does not speak any other language apart from English and has no means of support. So, a stay of the National Court orders will cause him great inconvenience and hardship. 

19.	This case is peculiar. It involves a person of Papua New Guinea descent who now claims to be an Australian if not, a persona non grata. It may not be totally correct that Mr Charlie has no relatives here in the National Capital or Daru, Western Province. His dilemma is whether his relatives (if any) will be willing to embrace, accommodate and support him. Too, notwithstanding conventions on traditional border crossings by Western Province villagers and Torres Strait Islanders, Mr Charlie who was born a Papua New Guinean may be deemed an illegal immigrant. That status was rectified when Australia granted him permanent residence.  He did not however, attain Australian Citizenship.
 
20.	Mr Charlie has been deemed by Australia to be undesirable alien due to his criminal records. Consequently, Papua New Guinea Immigration authorities accepted and facilitated his entry into the country without travel documents. On 28 April, 2017 the DFAT (I think, DFAT stands for Department of Foreign Affairs and Trade) issued him a Certificate of Identity which reads;   

“Mr CHARLIE is an involuntary removal and has refused to participate in the removal planning interview it is unknown if he has any family in Australia or Papua New Guinea.”(Sic) 

21.	Accepting that Mr Charlie may face some real difficulties and hardships in a different and strange environment, I must bear in mind also, the possible continuing prejudicial effect of the orders against the appellants’ case.

22.	I also bear in mind, the wider public interest which the State represents. Considerations of humanitarian issues must be properly balanced with the public interest and public policy that expenditure of public funds is lawfully and appropriately procured and expanded. The State’s case is that the respondent is not entitled to the benefit of the orders that were erroneously granted.
 
23.	Furthermore, Papua New Guinea has no law and there is no clear government policy statement on provision of dole or welfare funds for maintenance of the majority impecunious citizens. Evenso, lawyers for the respondents have not referred me to any arrangements under any convention on human rights or refugees or illegal immigrants which addresses a similar type situation the respondent now finds himself in.  This does not assist him.    

24.	The orders of the Court are prejudicial to the appellants’ position in defending the question of whether the respondent is a citizen. The primary court in making the declaration that the appellants unlawfully allowed the respondent into the country had effectively pre-empted the answers to the substantive issues reserved for determination at the trial proper.  

25.	The considerations on possible hardship, inconvenience and prejudice in my view, favour the applicants.

The nature of judgment sought to be stayed.

26.	On 6 March, 2018 the primary court declared, that the applicants unlawfully allowed Mr Charlie into the country. The court also made consequential orders for humanitarian care and compensation payment at public expenses.  The applicants are seeking a stay of the enforcement of those court orders. They are also seeking to stay continuation of the proceedings in the court below. 

27.	I am satisfied, this is a relevant case for grant of a stay of the National Court orders and the proceedings pending the outcome of this appeal.  

Financial ability of the applicant

28.	The principal appellant being the State has the financial ability to pay.  
	
Whether the applicants have an arguable case.

29.	I bear in mind that the court, in an application for stay, need only make a cursory assessment of the strength or otherwise of the grounds of appeal before exercising its discretion to grant or refuse the application.
 
30.	I have set out earlier, the reliefs sought in the Originating Summons, the Notice of Motion, and the subsequent orders of the primary Court.  The nature of the application which sought orders under Constitution s. 57 (1) (3), that the defendants unlawfully allowed the plaintiff, entry into the country and consequential orders that followed, presupposes a proven fact that the respondent is not a citizen.  The declaration arguably disposed of the pending substantive reliefs sought in the Originating Summons and brought the question to finality contrary to law and due process. 

31.	It is apparent then that the trial judge had descended into deciding the substantive issues for trial at the preliminary stages of the proceedings.  The appellants’ contentions which the Court accepts are that the grant of the reliefs sought in the Notice of Motion has violated fundamental principles of a fair trial.  As the appellants will argue, the nature of the orders led to finality of the proceedings in the Court below contrary to O 4 r 49 of the NCR.
  
32.	The grounds of appeal further raise procedural error in that the respondent failed to invoke the concise jurisdictional source on the basis of which the primary court would entertain the application. In failing to do that, the respondent obtained orders, unfounded in law, contrary to O 4 r 49 (8) of the NCR.  This is arguable on the basis that the trial judge had the discretion to hear and determine the motion. See, Pokia v Yallom [2014] PGSC 3; SC 1336; Kond v National Development Bank Ltd [2015] PGC 18; SC 1432.
 
33.	Besides, the trial judge should have been alerted to or taken cognition of the fact that the Notice of Motion was couched in terms that sought a grant of permanent reliefs in the Originating Summons. And the Notice did not indicate if the application is for interim orders.  However, it is clear, the application was for the substantive orders sought in paragraphs 1 and 2 of the Originating Summons. That being so, the failure to state the precise nature and jurisdictional basis for the application arguably led to confusion and misled the primary court into making the orders it did.

34.	What is purportedly left in the Originating Summons for determination by the court below is the question of citizenship. The respondent’s reliance on Constitution s, 65 (1) is an arguable point.  He was born at Daru, Western Province to Papua New Guinea parents.  His parents migrated with him to Australia after Independence. He never attained Australian citizenship and remained a Papua New Guinean by birth.  Section 65 (1) defines a citizen as;

“65.	Automatic citizenship on Independence Day.
(1)	A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.”  

35.	The declaration that the appellant unlawfully allowed Mr. Charlie into PNG by inference pre-empted the answer to the citizenship issue. Arguably, the appellants were denied full protection of the law and the right to be heard. It is also arguably unlikely in my view, that the courts in Papua New Guinea will have jurisdiction to declare him an Australian citizen or a persona non grata given that he was born a Papua New Guinean.

36.	The Court is satisfied that the applicants have an arguable case on the proposed grounds of appeal.

Apparent error of law or procedure shown on the face of the records. 

37.	The same observations I made in the preceding paragraphs also apply under this category. They indicate apparent errors in the application of constitutional law and procedure.  The errors are apparent in the nature of the application for the reliefs sought and the nature of the orders granted. The application and the subsequent orders granted based upon that application erroneously disposed of the substantial reliefs in the Originating Summons.
 
38.	The nature of those errors is fairly raised in the grounds of the appeal.  It is only proper that the Supreme Court considers and determines the proposed grounds of appeal on the merits.

The overall interest of justice.  

39.	The overall interest of justice in whether a stay is justified will, in essence, be determined as between the private interests of an individual on the one hand and on the other hand, the public interest.  The overall public interest in this case concerns the nature of the application and consequential orders which appear to have been obtained contrary to fundamental principles of a fair trial.  As a result, the State has been disadvantaged to expand public funds in compliance with court orders.  Furthermore, the universal application of the law, and equality under Constitution ss. 37 and 55 calls for the serious need to vindicate the law in the public interest. So, those personal or individual considerations for the respondent need to be properly balanced against the factors or considerations for the greater public good.
  
40.	The respondent has the benefit of the orders which appear permanent unless discharged by the Supreme Court upon review.  Prior to the grant of the orders, Mr Charlie was able to find support in the community for nearly a year before taking out this proceeding.  The prospect of good community support and employment is always there for him.
  
41.	It is also untenable to expect him to be maintained on public funding for the rest of his life, needless to say, for the duration of his court case. He will sooner or later adapt to the circumstances of his plight and move on.

42.	The interest of justice in my view, favours the grant of stay of the National Court orders.

Balance of Convenience

43.	On the face of the records, there is high possibility of the appellants succeeding on the proposed grounds of appeal. In the meantime, the State would have incurred considerable public funds in maintaining the respondent and in payment of compensation.  All that would result in wastage if the decision of the Supreme Court favours the appellants and the National Court orders has not been stayed.
  
44.	For the appellant, he did not complain about his predicament, until nearly a year later.  At the time of his court action, he was living with new found friends.  He was not despondent.  His current maintenance at public expense was consequential to his court case.  The court orders have imposed his dependence on public funding.  Without that Mr Charlie would not be without support from the community at large.
  
45.	The balance of convenience from these observations and from the same reasons on the issue of overall interest of justice favours the stay of the National Court orders and proceedings pending hearing of this appeal.

Whether damages would be sufficient remedy

46.	Damages would not be sufficient remedy.  If the State is successful in this appeal and there is no stay, the State will highly unlikely recoup the amount spent from the respondent given his impecunious status.

Conclusion 

47.	In summary, the appeal is competent. It has proper grounds of appeal for determination by the Supreme Court. The interim orders of 6 March, 2018 have/will cause serious and irreparable damage or prejudice to the rights of the applicants in that the orders have in effect determined the rights of the parties in the substantive appeal and an urgent intervention of the full Court of the Supreme Court is warranted: Wau Ecology Institution vs. Registrar of Companies (2005) SC794.  The application for stay should be granted. 

Orders of the Court

a)	The application for stay of the National Court orders of 6 March, 2018 is granted.

b)	The National Court orders of 6 March, 2018 in proceedings OS (HR) 3 of 2018  Daniel Frank Charlie v Solomon Kantha as Chief Migration Officer & Anor is stayed pending the hearing of the appeal.

c)	The National Court proceedings in OS (HR) 3 of 2018  Daniel Frank Charlie v Solomon Kantha as Chief Migration Officer & Anor is stayed pending the hearing of the appeal.

d)	Costs be in the cause.

________________________________________________________________
Solicitor General: Lawyers for Appellant 
Public Solicitor: Lawyers for Respondent