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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR 3 OF 2011
REFERENCE PURSUANT TO
CONSTITUTION s. 19 BY THE:
EAST SEPIK PROVINCIAL EXECUTIVE
Referrer
AND:
HON. DR. ALLAN MARAT, MP as Minister for Justice and Attorney General; HON. JEFFERY NAPE, MP as Speaker of Parliament, THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA, HON. SAMUEL ABAL, MP, HON. PETER O’NEILL, MP as Prime Minister of Papua New Guinea, HON. BELDEN NAMAH, MP as Deputy Prime Minister of Papua New Guinea, NATIONAL ALLIANCE INC. and GRAND CHIEF SIR MICHAEL THOMAS SOMARE, MP
First to Eighth Interveners
Waigani: Hartshorn J,
2020:21st & 25th September
SUPREME COURT REFERENCE – practice and procedure - Application to dismiss a notice of motion for want of prosecution and an application to review a decision of a taxing officer
Cases Cited:
Sakarea Akom Takole v. Vincent Tauli (2018) N7223
Wamu Abari v. Willie Gumaim (2020) SC1925
Counsel:
Mr. J. Kumura, for the Eighth Intervener
Mr. T. Tanuvasa, for the State
25th September, 2020
1. HARTSHORN J: This is a decision on a contested application to dismiss a notice of motion which seeks to review tax costs (review motion), for want of prosecution. If that application is unsuccessful the court will then consider the review motion.
2. The application to dismiss is made by the eighth intervener to this Reference, Grand Chief Sir Michael Somare (Sir Michael). The review motion is made by the State.
Background
3. The East Sepik Provincial Executive commenced this proceeding in 2011. It was filed after decisions were made by the Parliament to declare a vacancy in the office of the Prime Minister, then held by Sir Michael and to appoint Hon. Peter O’Neill as the Prime Minister. In its judgment, the majority of the Supreme Court held that amongst others, Sir Michael was not lawfully removed as Prime Minister.
4. On 28th August 2013 the Supreme Court ordered amongst others, that:
“(1) The State will on behalf of the first, second, third, fifth and sixth interveners pay costs to date remaining unpaid on a solicitor-client basis to the referrer, fourth, seventh and eighth interveners, to be agreed through the Solicitor-General or taxed.
(2) Overseas counsel engaged by the referrer and third, fourth, seventh and eighth interveners shall be certified.
(3) the parties will discontinue all proceedings relating to SC Ref 3 of 2011 in both the National Court and the Supreme Court.”
5. The costs of Sir Michael were taxed and a Certificate of Taxation was issued on 2nd December 2019 for K6,791,001.30. The State filed its review motion on 16th December 2019.
Application to dismiss
6. Sir Michael makes application for a Judge of the Supreme Court to dismiss the review motion pursuant to Order 11 Rule 28(b), Order 7 Rule 48(a) and Order 13 Rule 16(1)(a) Supreme Court Rules. The jurisdiction which may be exercised under these Rules is by the Court and not by a Judge – “Court” being defined in Order 1 Rule 7 as, “the full Court of the Supreme Court of Justice” and “Judge” being defined as “a judge of the Supreme Court of Justice”. Consequently, to the extent that the application seeks the relief under the above Rules upon application before a Judge, it is incompetent.
7. Sir Michael also seeks relief in his application pursuant to Order 2 Rule 1(h) Supreme Court Rules and Order 4 Rule 49(17) National Court Rules.
8. As to Order 2 Rule 1(h) Supreme Court Rules, it is as follows:
"Application of National Court Rules
1. The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to—
........
(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."
7. As was stated in Wamu Abari v. Willie Gumaim (2020) SC1925 (Salika CJ, Hartshorn J, Dingake J) at [10], for Order 2 Rule 1(h) Supreme Court Rules to be enlivened, there must be a matter where there is a relevant provision in the National Court Rules and no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. All three prerequisites must be satisfied.
8. Order 4 rule 49(17) National Court Rules provides amongst others for a motion to be struck out or dismissed if it is not prosecuted within one month after it is filed, or if it is adjourned twice. For Order 4 Rule 49(17) to be able to be relied upon, Order 2 Rule 1(h) must be enlivened.
9. As to whether there is no provision in the Supreme Court Rules, Order 3 Rules 2(a) and (b), which apply to proceedings within the original jurisdiction of the Supreme Court, this proceeding being such a proceeding, provide for a Judge to make a direction not involving a final decision upon the proceedings and an interim order to prevent prejudice to the claims of the parties. Sir Michael could have made application under Order 3 Rule 2(a) and (b) for the review motion to be dismissed for want of prosecution as such application would not involve a final decision upon the proceedings and would prevent prejudice to his claim for tax costs.
10. As it is not the position that there, “is no provision in the Supreme Court Rules”, Order 2 Rule 1(h) has not been enlivened as all three prerequisites, as referred to, have not been satisfied. Consequently, Sir Michael is not able to rely upon Order 4 Rule 49(17) National Court Rules.
11. As none of the jurisdictional bases for the review motion to be dismissed for want of prosecution may be successfully relied upon, the relief sought in paragraphs 1(c) and (d) of the application of Sir Michael dated 8th September 2020 is refused.
Review motion
12. The State in its review motion seeks to dismiss the Certificate of Taxation. Alternatively, it seeks to review the Certificate of Taxation.
13. The State seeks to dismiss the Certificate of Taxation pursuant to Order 2 Rule 1(h) Supreme Court Rules and Order 12 Rule 40(1)(a), (b) and (c), and Order 12 Rule 1 National Court Rules. As referred to, for Order 2 Rule 1(h) Supreme Court Rules to be enlivened, there must be a matter where there is a relevant provision in the National Court Rules and no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. All three prerequisites must be satisfied.
14. Order 12 Rule 40 provides for amongst others, proceedings to be stayed or dismissed generally or in relation to any claim for relief in the proceedings. Order 12 Rule 1 National Court Rules, is a Rule of general application and provides for any relief to be granted. As to whether there is no provision in the Supreme Court Rules, again, Order 3 Rules 2(a) and (b) which apply to proceedings within the original jurisdiction of the Supreme Court, this proceeding being such a proceeding, provide for a Judge to make a direction not involving a final decision upon the proceedings and an interim order to prevent prejudice to the claims of the parties.
15. The State could have made application under Order 3 Rule 2(a) and (b) for the Certificate of Taxation to be dismissed as such application would not have involved a final decision upon the proceedings and would prevent prejudice to its claim for a review of the taxed costs of Sir Michael or for a reduced amount of costs to be paid.
16. As it is not the position that there, “is no provision in the Supreme Court Rules”, Order 2 Rule 1(h) has not been enlivened as all three prerequisites, as referred to, have not been satisfied. Consequently, the State is not able to rely upon Order 12 Rule 40 or Order 12 Rule 1 National Court Rules and so its application to dismiss the Certificate of Taxation is refused.
17. Alternatively, the State seeks to review the Certificate of Taxation. It relies upon Order 12 Rule 37(1), (2) and (3) Supreme Court Rules which are:
“(1) A Court or a Judge may review the decision of a Taxing Officer, only if the taxing officer has given a certificate in accordance with that decision.
(2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer’s decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.
(3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.”
18. Order 12 Rule 37(2) requires that the party aggrieved by the taxed costs, may within 14 days from the date of issue of the certificate of taxation, apply to a Court or a Judge, for leave to review the taxing officer’s decision. The certificate of taxation was issued on 2nd December 2019. It was personally served at the office of the Solicitor General on 4th December 2019. The application of the State was filed on 16th December 2019 and so is within 14 days from the date of issue of the certificate of taxation. Further, leave to review is sought in paragraph 3 of the State’s notice of motion and the lawyer for Sir Michael confirms being served with a sealed copy of the notice of motion of the State and affidavit in support. I am satisfied therefore, that the State has filed its notice of motion containing the application for leave pursuant to Order 12 Rule 37(2), competently.
19. The next consideration is whether leave should be granted. In my view, there is an implied discretion given to the Court or a Judge in Order 12 Rule 37(2) as to whether leave should be granted. There is no fetter on how the discretion is to be exercised. In the normal course, when leave is required to take a next step in a proceeding, an applicant is required to show an arguable case.
20. It is submitted on behalf of Sir Michael that leave to review, or a review of his tax costs should not be granted as the current Prime Minister has ordered the Attorney General and the Solicitor General to settle Sir Michael’s costs and that the Solicitor General has paid other parties costs without requiring taxation.
21. In regard to the Solicitor General paying other parties’ costs without requiring taxation, this is not a relevant consideration for this court in its determination as to whether leave should be granted to review the taxed costs of Sir Michael. In regard to the alleged orders by the current Prime Minister, I repeat what I said in Sakarea Akom Takole v. Vincent Tauli (2018) N7223 at [9] and [10]:
“9. This court is bound by the decisions in Manorburn (supra) and Polem (supra). In Manorburn (supra) the Court said:
“Not only is the SG appointed by AG but, ...... its functions are made subject to instructions by the AG.”
“In practice, where the State is a party in any litigation before the courts, the SG may act as an advocate if instructed to do so by the AG in accordance with s. 13(2) of AG Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.”
10. I note also in Yer, Secretary, Department of Finance v. Yama (2009) SC996, the Supreme Court said at [69]:
“If the Solicitor General wishes to enter into a deed of settlement, this can only be done on the instructions, i.e. approval,
of the Attorney General. The Solicitor General cannot act independently. In Manorburn the Supreme Court overturned its previous decision
in Simon Mali v. The State (2002) SC690.””
22. There is no evidence before the court that the Attorney General has instructed the Solicitor General to settle the costs or taxed
costs of Sir Michael. Consequently, I need not consider this aspect further.
23. To my mind, from a perusal of the affidavit in support of the review motion which amongst others, sets out the objections of the State I am satisfied that the State has established that it has an arguable case that the Certificate of Taxation should be reviewed. Consequently, leave should be granted.
Orders
24. It is ordered that:
__________________________________________________________________
Kumura Lawyers: Lawyers for the Eighth Intervener
Office of the Solicitor General: Lawyers for the State
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