SC2611

PAPUA NEW GUINEA
 [IN THE SUPREME COURT OF JUSTICE]

SCCA NO. 3 OF 2024

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18 (1)
APPLICATION BY THE HON. DOUGLAS TOMURIESA, MP
Applicant

AND
SPEAKER OF THE NATIONAL PARLIAMENT, HON. JOB POMAT, MP
First Intervenor

AND
ATTORNEY GENERAL OF PAPUA NEW GUINEA, HON. PILA NININGI, MP
Second Intervenor

Waigani: David J, Yagi J, Murray J, Kangwia J & Polume-Kiele J
2024: 29th & 31st July

SUPREME COURT - Practice & Procedure – Notice of Motion – Whether a notice of motion in Form 4 under the Supreme Court Rules is appropriate in the circumstances

SUPREME COURT - Jurisdiction, Supreme Court Rules, Order 11 Rules 25 and 26 – Whether jurisdiction was correctly and properly invoked in the circumstances of the case.

By way of a Notice of Motion filed on 22nd July 2024, the Second Intervenor, who was supported by the First Intervenor, moved an application to set aside orders of a single Supreme Court Judge, made on 19 July 2024 and to substitute those with orders proposed in the said Motion.  

Held:
1.	The use of Form 4 provided under the Supreme Court Rules 2012 was appropriate in the circumstances of the case.

2.	 Order 11 Rule 25 of the Supreme Court Rules 2012 gives a party aggrieved a right to apply to the Full Court to reconsider a direction or order made by a single Judge of the Supreme Court.

3.	Order 11 Rule 26 of the Supreme Court Rules 2012 provides the mandatory 	requirements for the exercise of the right under Order 11 Rule 25.

4.	The facts and circumstances of the present case do not satisfy the requirements of Order 11 Rule 26 of the Supreme Court Rules.

5.	The jurisdiction of the Court has not been correctly and properly invoked; hence, the Notice of Motion is deemed incompetent.

6.	The First and Second Intervenors shall pay the Substantive Applicant’s costs of and incidental to this application in equal amounts, to be taxed, if not agreed.  

Cases Cited
National Executive Council v Toropo (2022) SC2193
Reference by the Ombudsman Commission Pursuant to Constitution Sections 19 (1) (2019) SC1821
Hegele v Kila (2011) SC1124

Counsel:

Mr G. Kult, for the Substantive Applicant
Mr L.A Jurth with Mr D. Mel, for the Second Intervenor
Mr R. Kawat, for the First Intervenor

RULING
31st July 2024

1.	BY THE COURT: This is our ruling on the Notice of Motion filed on 22 July 2024 by the Second Intervenor and heard on 29 July 2024.

Brief Background

2.	The Second Intervenor in this Notice of Motion is the Minister for Justice & Attorney General, Hon. Pila Niningi, LLB, MP; and he has filed this Notice of Motion (Application) in that capacity.

3.	On 19 July 2024, several directions and orders were issued by his Honour, Hartshorn J, sitting as a single Judge of the Supreme Court (Orders of 19 July) for the purposes of progressing to hearing the Substantive Application filed on 10 June 2024 under Section 18 (1) of the Constitution, (Substantive Application) by the Leader of the Opposition, Hon. Douglas Tomuriesa, MP (the Substantive Applicant). The Substantive Application seeks various declarations from the Court as to the proper interpretation and application of Sections 11, 111, 135, 145 and 155(4) of the Constitution. 

4.	The Second Intervenor being aggrieved by the Orders of 19 July 2024 filed this Application seeking firstly directions pursuant to Section 185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules 2012 (SC Rules), and secondly, pursuant  to Order 11 Rules 25 and 26  of the SC Rules, an order that the Orders of 19 July 2024 be set aside and substituted with an order that, the application by the Substantive Applicant, filed 1st July 2024 for leave to amend the substantive application be set down for hearing before the Full Court on 1st  August 2024. 

5.	The Orders of 19 July 2024 are as follows:
(1)	Any application to withdraw the application to amend the substantive application shall 	be heard by the Full Court on 1 August 2024 at 9.30 am.
(2)	Any application to withdraw as referred to in paragraph 1 above shall be filed and served by close of business on 22 July 2024.
(3)	Any application to dismiss the substantive application and any objection to competency of the substantive application shall be filed and served by close of business 24 July 2024.
(4)	The Applicant shall draft a draft index of the Application Book for the substantive hearing and forward it to the Intervenors for comments by close of business on 22 July 2024.
(5)	The Intervenors shall respond with comments concerning the draft index to the Application Book by 24 July 2024.
(6)	The Applicant shall compile an Application Book and forward to the Intervenors for their certification by or before 26 July 2024.
(7)	The Applicant shall file and serve the certified Application Book by close of business on 29 July 2024.
(8)	Any application to withdraw the application to amend the substantive application, any application to dismiss the substantive application, any objection to competency of the substantive application and the substantive appeal are set down to be heard at 9.30 am 1 August 2024.
(9)	Parties shall file extract of submissions and submissions by close of business on 26 July 2024.

Submissions

6.	In addressing the first part of the motion, counsel for the Second Intervenor submits that the procedure adopted in this Application is sufficient and proper for purposes of setting aside and or substituting the Orders of 19 July 2024 pursuant to Section 185 of the Constitution, Order 11 Rule 9 of the SC Rules and Order 4 Rules 27, 38, 39, 40, 42 and 44 of the National Court Rules and Form 11 of the National Court Rules (with such modifications as required). He also submits this is the proper form to use in this application as adopted by the Second Intervenor. He further submits that Form 15 as prescribed under Order 10 of the SC Rules relates to appeals and thus not appropriate in this application. In relying on the case of National Executive Council v Toropo (2022) SC2193, it is submitted by counsel that this Application be deemed sufficient and proper before this Court. 

7.	As to the second part of the Application, it is submitted that, the Orders of 19th July 2024 should be set aside and substituted as proposed for the following reasons:
(a) The matter is not ready for final hearing as numerous steps including one for filing of affidavits and determination of facts are yet to be undertaken;
(b) No prior notice was given that such directions will be made; 
(c) Practical compliance with those directions are not possible and 
(d) The said directions give rise to a breach of natural justice.

8.	Mr. Kawat for the First Intervenor essentially supports the Second Intervenor’s Application and adopts the submission made by counsel in its entirety.

9.	Mr. Kult for the Substantive Applicant in his response submits that the Application is not properly before the Court, is incompetent and should be dismissed for two reasons. Firstly, it is not in the proper form as required by the SC Rules and the judgment by the Court in the case of Reference by the Ombudsman Commission Pursuant to Constitution Sections 19 (1) (2019) SC1821. Secondly, the Application as filed is an irregular document in that it has not been recognised by the SC Rules. For the Motion to be recognised, before filing it, the Second Intervener ought to have filed an application in accordance with Form 4 seeking a direction under s.185 of the Constitution and or Order 11 Rule 9 of the SC Rules. Once a Court grants the direction sought, then the form of the motion can be regarded as a document properly before the Court. That did not happen in this case. For that reason, the Application should be dismissed.

10.	Furthermore, he submits that, if this Court is not minded to uphold his arguments on the competency of the Application, then the orders sought in the application must still be refused and the application dismissed with costs on the ground that no good reasons have been advanced by the Intervenors to set aside the Orders of 19 July 2024.

11.	In reply, Mr. Jurth submits that the Substantive Applicant’s submission on the competency issue is misleading in that, the rules relied upon by Mr. Kult are from the old SC Rules. The current SC Rules permits the Application as filed and that is supported by the judgment in the case of National Executive Council v Toropo (supra).

Consideration and decision

12.	From the Application and submissions, essentially two main issues have emerged for our consideration. The first issue is whether the Application should be dismissed for being incompetent; and the second is whether the application to set aside the Orders of 19 July 2024 and be substituted with the orders as they proposed in the motion, should be granted.

Competency of the Motion

13.	We accept that a party in a court proceeding may invoke s 185 of the Constitution in circumstances where no provision, or no adequate provision is made in respect to practice or procedure of the Court as the basis for the Court to give ad hoc directions to remedy the lack of or inadequacy in terms of practice or procedure as was observed in Hegele v Kila (2011) SC1124

14.	Similarly, Order 11 Rule 9 of the SC Rules provides for situation where a party who desires to take any steps in proceedings and the manner or form of the procedure is not prescribed, the party may apply to a judge for directions. 

15.	It is common ground that both the First and Second Intervenors did not file nor move any application before the single Judge of the Court on 19 July 2024 seeking directions and or orders.

16.	We accept the Intervenors submission that the form is sufficient and in accordance with the current SC Rules: NEC v Toropo (supra). 

17. 	We have carefully considered the submission of all the parties. It is plain, the application before the Court is brought pursuant to Order 11 Rules 25 and 26 of the SC Rules to set aside the Orders of 19 July 2024 and substitute in their place, the orders proposed in the Application.

18.	Order 11 Rule 25 gives a party who is dissatisfied with a direction or order given by a single Judge of the Supreme Court a right to have that direction or order reconsidered by the Full Court. At the same time, it confers power or jurisdiction upon the Full Court.

19.	The exercise of the power under Rule 25 is subject to the requirements as specified under Order 11 Rule 26 which provides:
“26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.”

20. 	The requirements of Order 11 Rule 26 are:

(1)	application must be made by a notice of motion 
(2)	the notice of motion must seek the same orders as sought before the single Judge.

21.	Both Rules 25 and 26 should be read conjunctively. We reiterate that the right given in Rule 25 must be exercised in accordance with the mandatory requirements of Rule 26. 

22.	In this case, the orders sought in the Notice of Motion were not sought before the single Judge. Moreover, the directions and orders, the subject of the complaint were not a result of an application, but rather directions or orders given by the single Judge for the purpose of facilitating the hearing of the Substantive Application.

23.	In our considered view, the application under Order 11 Rule 25 is incompetent because the requirements specified under Order 11 Rule 26 have not been complied with. 

24.	For that reason alone, the jurisdiction of this Court has not been correctly and properly invoked. The application is therefore incompetent.

Merits of the Application

25.	Notwithstanding our conclusion on the jurisdictional issue, for completeness, we are minded to express a general remark that the grounds or reasons advanced by the Intervenors are really grounds challenging the directions and orders of the single Judge. We have heard counsel on their submissions and are not persuaded that there are compelling reasons for this Court to disturb the orders of 19 July 2024. We would also dismiss the application as having no merits.

Conclusion

26. 	For the above reasons, the Application is dismissed with costs. 

Orders

27.	The formal orders of the Court are:
(1)	The Second Intervenor’s Application is incompetent, without merit and is dismissed.
(2)	Cost of and incidental to the application is awarded in favour of the Substantive Applicant and such cost to be taxed, if not agreed.

Young & Williams Lawyers: Lawyers for the Substantive Applicant
Kawat Lawyers: Lawyers for the First Intervenor
Mel & Henry Lawyers: Lawyers for the Second Intervenor