SC2344

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREF 4 OF 2020 (IECMS)

SPECIAL REFERENCE PURSUANT TO CONSTITUTION
SECTION 19

SPECIAL REFERENCE BY THE HONOURABLE DAVIS
STEVEN, LLB MP, Attorney General of Papua New Guinea
and Principal Legal Adviser to the
National Executive Council

Waigani: Gavara Nanu, Manuhu, David, Hartshorn
and Kariko JJ
2022: 14th December
2023: 16th January

SPECIAL REFERENCE – reference pursuant to s19 brought by the Referrer – reference seeks supreme court’s interpretation of sections 86(4), 99 and 153(2) Constitution – whether reference is an abuse of process – questions raised in the reference were already decided in two appeals filed and determined by two separate supreme courts –referrer is in effect attempting to review or appeal the final decisions of two Supreme Court appeals which involve the same parties including the referrer and the same facts - Reference is an abuse of process - questions posed are vexatious - Court declines to answer them – costs on indemnity basis 

Cases Cited:
Public Prosecutor v. John Aia of Mondo and Ors [1978] PNGLR 224
Derbyshire v. Tongia [1984] PNGLR 148
SCR No 2 of 1982 Re Kunangel [1991] PNGLR 1
Special Reference by the Public Prosecutor [1992] PNGLR 336
Christian v. Namaliu [1996] SC1583
Timothy Patrick v. Pepi Kimas (2010) N3913 
Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC1015
Michael Wilson v. Clement Kuburam (2016) SC1489 
Special Reference by Leslie Mamu (2020) SC2091
Special Reference by the Honourable Davis Steven (2020) SC2041
Philip Kaman v. The State (2022) SC2329

Counsel:

Mr. L. Kandi and Mr. D. Rhem, for the Referrer
Mr. M.M. Varitimos KC, Mr. D. Wood and Mr. L. Evore, for the Intervener

16th January, 2023

1. BY THE COURT: In this Special Reference (Reference) brought pursuant to s.19 Constitution, the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council is the referrer. Barrick Niugini Ltd (BNL) is the only intervener. The referrer requests this Court to provide an opinion on seven stated questions (questions). These questions concern amongst others, the interpretation of sections 86(4), 99 and 153(2) Constitution.

2. The referrer contends that this Court’s determination of the questions will provide clarity as to the circumstances under which decisions of the National Executive Council and the Head of State may be reviewed and the basis upon which the National Executive Council may assert privilege should a litigant seek production of confidential and privileged Cabinet papers or “non-justiciable” advice given to the Head of State.

3. BNL submits amongst others, that this Reference is vexatious and an abuse of process and so this Court should decline to answer the questions.

4. It is not controversial that the referrer has brought this Reference because of two decisions in final judgments of two appeals of the Supreme Court. Those appeals are referred to as SCM 12 of 2020 and SCM 13 of 2020 (SCM 12 and 13). The referrer and BNL were parties in both appeals.

5. The background to SCM 12 and 13 is that BNL applied to extend the term of the Special Mining Lease (SML) pursuant to which it operated the Porgera Gold Mine in Enga Province. The application to extend the SML was refused and the National Court dismissed judicial review proceedings brought by BNL challenging this refusal. Before ordering the dismissal, the National Court had refused to allow BNL to amend its judicial review Order 16 statement and had refused to allow certain discovery which BNL had sought. These refusals were successfully appealed by BNL and resulted in the orders in SCM 12 and 13.

Abuse of process

6. We consider first whether this Reference is an abuse of process.

7. BNL submits that this Reference is an abuse of process as it is an attempted de facto review or appeal of two final decisions of the Supreme Court; the questions were materially the same issues in SCM 12 and 13 and this is admitted by the referrer; there has not been a change in the law or the circumstances giving rise to this Reference which warrants the Reference being brought and events have overtaken any utility of this Reference; the referrer’s intention to in effect appeal or review the decisions in SCM 12 and 13 was demonstrated by the referrer’s unsuccessful attempt to stay the decisions in SCM 12 and 13 pending the determination of this Reference; Section 19 Constitution does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders; this Reference is being improperly used contrary to the principle of finality of litigation, to review or appeal two final decisions of the Supreme Court; the questions in this Reference are vexatious and the referrer does not have a genuine need for their clarification; the referrer has an ulterior or improper motive which is to seek to impugn two final decisions of the Supreme Court.

8. The referrer submits that he is entitled to bring this Reference requesting this Court’s opinion on the questions pursuant to s. 19(3)(c) Constitution, as he is a Law Officer of Papua New Guinea. The referrer further submits that the Supreme Court has held that a Supreme Court may overrule its earlier decision decided by the same number of Judges and that this is the intent of Schedule 2.9(1) Constitution. The referrer relies upon the following five Supreme Court cases for this proposition: Public Prosecutor v. John Aia of Mondo and Ors [1978] PNGLR 224; Derbyshire v. Tongia [1984] PNGLR 148; SCR No 2 of 1982 Re Kunangel [1991] PNGLR 1; Special Reference by the Public Prosecutor [1992] PNGLR 336 and Christian v. Namaliu [1996] SC1583. 

Consideration

9. Schedule 2.9(1) Constitution is in Part 5 of Schedule 2 which is headed “Judicial Precedent”. Schedule 2.9(1) is as follows:

“(1) All decisions of law by the Supreme Court are binding on all other courts but not on itself.”

10. The cases relied upon by the referrer support his proposition that Schedule 2.9(1) Constitution provides for the Supreme Court to review and overrule an earlier decision of the Supreme Court on a question of law. This proposition must be considered however, in the context of judicial precedent – that scenario being that an earlier Supreme Court decision holds or pronounces the law on certain facts. Later, the Supreme Court considers another separate unrelated case, usually with different parties, a different cause of action but which has similar facts. The second Supreme Court is not bound by the decision of the earlier Supreme Court and following amongst others, a careful and cautious review of the earlier Supreme Court decision, the second Supreme Court may decide the law on the similar facts differently and therefore overrule the earlier Supreme Court.

11. In this instance, the referrer is not seeking to have this Court overrule a decision of an earlier Supreme Court in the context of judicial precedent. The referrer is in effect attempting to review or appeal the final decisions of two Supreme Court appeals which involve the same parties including the referrer and the same facts. This is confirmed when the submissions of the referrer are considered. 

12. At [11] of the extract of submissions by the referrer filed 6th December 2022, it is stated:

“11. The Referrer further contends that the outcome in the appeals necessitated the filing of this Special Reference for this Court to review the decisions and also, review a number of other decisions made in this jurisdiction concerning the interpretation and the proper application of Sections 86(4), 99(3) and 153(2) of the Constitution ….” (our highlighting)

and at [41]:

“41. In the circumstances, the decisions in the appeal(s) are not good law. These decisions set bad precedent, opening floodgates for busybodies to challenge decisions of the NEC and the HoS made in the exercise of their prerogative, taking into consideration government policy matters in the overall interest of the people of PNG (the State).”

13. Further, counsel for the referrer, Mr. Kandi, in an exchange with the Court confirmed that the referrer sought to review the decisions in SCM 12 and 13 by this Reference.

14. That the Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court was referred to in this Reference in Special Reference by the Honourable Davis Steven (2020) SC2041 by Hartshorn J (whose decision was unanimously agreed to by Salika CJ, Manuhu, Makail and Anis JJ) at [11] to [13]. Recently in Philip Kaman v. The State (2022) SC2329, the Supreme Court (Manuhu, Kariko and Murray JJ), in a purported application brought pursuant to s. 155(4) Constitution, held that the Supreme Court cannot review a final decision of another Supreme Court.

15. To improperly use the processes of the court has been held to be an abuse of process. In Michael Wilson v. Clement Kuburam (2016) SC1489, Gavara Nanu J stated at [35] that:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

16. The remarks of Gavara Nanu J have been cited with approval in numerous Supreme Court cases including in Special Reference by Leslie Mamu (2020) SC2091 (Kandakasi DCJ, Manuhu, Makail, Kariko and Miviri JJ) in which the Court found that the Reference before it had been incorrectly invoked and was an abuse of process.
17. In this instance we are of the view that this Reference, in seeking to in effect review or appeal two final decisions of the Supreme Court, is an improper use of the processes of the court and is an abuse of process. This is particularly so when what in effect is sought is relief which this Court does not have the power to grant - that is a review or appeal of a final Supreme Court decision.
18. Further, we concur with the submissions of BNL that the referrer has an ulterior or improper motive in prosecuting this Reference which is to seek to impugn two final decisions of the Supreme Court. The questions are vexatious and so pursuant to Order 4 Rule 18 Supreme Court Rules this Court declines to give an opinion on the questions. Given the above, it is not necessary to consider the other submissions of counsel apart from as to costs.
19. BNL seeks an order for its costs to be paid on an indemnity basis if the Court finds that the Reference is vexatious and an abuse of process, which the Court has.
20. The referrer did not oppose an order to this effect or address the submission in his reply and left the question of costs to the discretion of the Court. This is notwithstanding that the referrer was on notice that such an order would be sought as this is disclosed in the submissions of BNL filed 6th December 2022 which was served on the lawyers for the referrer on 6th December 2022.
21. In regard to an application for costs on a solicitor client basis or on an indemnity basis, in Timothy Patrick v. Pepi Kimas (2010) N3913, Gavara Nanu J said as to costs being awarded on a solicitor client basis:
“…the applicant must demonstrate that there are grounds upon which such award may be made; for instance, the applicant having to defend proceedings which are frivolous and vexatious and are an abuse of process. See, Gulf Provincial Government -v- Baimuril Trading Pty Ltd [1998] PNGLR 311; or that the applicant is being dragged into the Court and is made to suffer and incur unnecessary costs. See, Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47.”

22. In Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC1015 (Salika DCJ (as he then was), Gabi and Hartshorn JJ), the Supreme Court stated that:
“The award of costs on an indemnity basis is discretionary.  An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order.  The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”
23. In this instance, the Court has found that the Reference is vexatious and an abuse of process. In our view, the referrer was on notice that this Reference was likely to be an abuse of process when this Court, differently constituted apart from two of its members, refused the referrer’s application to stay the final decisions in SCM 12 and 13 on the basis that this Court does not have jurisdiction to review or appeal a final decision of the Supreme Court. Notwithstanding this refusal of the stay application, the referrer persisted with the Reference and amongst others, made unmeritorious submissions that this Court may review a final decision of the Supreme Court in an application made pursuant to s. 19 Constitution and pursuant to schedule 2.9(1) Constitution. We are satisfied that the conduct of the referrer in this Reference is such that he and by his counsel, have caused BNL to incur unnecessary costs.

Orders
a)	This Reference is an abuse of process.
b)	The questions posed are vexatious and this Court declines to answer them.
c)	The referrer shall pay the costs of the intervener, Barrick Niugini Ltd of and 	incidental to this Reference on an indemnity basis.
__________________________________________________________________
M. S. Wagambie Lawyers:  Lawyers for the Referrer                                                   
Ashurst PNG: Lawyers for the Intervener