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Onea and Lam; Ex Parte Viula, The State v [1980] PNGLR 186 (31 July 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 186 - The State v Viula Onea and Minnie Lam; Ex Parte Amy Viula 

[1980] PNGLR 186

SC179

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

VIULA ONEA AND MINNIE LAM EX PARTE AMY VIULA

Waigani

Andrew Pratt Miles JJ

31 July 1980

PREROGATIVE WRITS - Habeas corpus - Order for custody - Order nisi to show cause - Not to be made returnable before Supreme Court as a general practice - Application for writ always treated as urgent - Procedure not to be used for custody application unless exceptional circumstances.

An order nisi to show cause why a writ of habeas corpus should not issue, should not be made returnable before the Supreme Court as a general practice.

An application for a writ of habeas corpus should not be used as a means of seeking custody unless there are exceptional circumstances which make that method more appropriate than the normal procedure under the Infants Act 1956.

Habeas Corpus — Practice Direction

This was the return of an order nisi for a writ of habeas corpus directed to two respondents and requiring them to produce a child of the applicant in their de facto custody; the order nisi was made returnable before the Supreme Court by a judge of the National Court as a result of which the following practice direction was made.

31 July 1980

ANDREW PRATT MILES JJ: This is an application for a writ of habeas corpus directed to Viula Onea and Minnie Lam of Apeava Village, Abau sub-province in the Central Province, requiring them to produce to the court the child of the applicant who is at present in their de facto custody. An ex parte application for the writ was made to a judge of the National Court. His Honour made an order nisi to issue, returnable at the Supreme Court, Waigani.

Under O. 82, r. 1 of the Supreme Court Rules applications for writs of habeas corpus may be made to the court or a judge. They may be made ex parte. Order 82, r. 2 provides that the court or a judge may make an order absolute in the first instance or may make an order calling upon the person who would be required to obey the order to show cause why the writ should not be issued. The practice is not the same for the issue of writs of certiorari, mandamus or prohibition. The order, where such a writ is sought, must be an order to show cause before the Supreme Court “unless the matter appears to be one of urgency”: O. 81, r. 2. However the position in relation to those writs may be affected by s. 155(4) of the Constitution which gives both the Supreme Court and National Court an inherent power in such circumstances as seem to them proper to make orders in the nature of prerogative writs. See In Re Sudi Yaku[ccciv]¹, but see Ex parte Kana Keapau and Anor.[cccv]²

An application for a writ of habeas corpus is always treated as an urgent matter. It takes precedence over all other business: See R. v. Kerr, Ex parte Groves[cccvi]³.

The object of the writ is to protect the liberty of the subject by speedy and summary interposition.

There are good grounds therefore for saying that an order to show cause why a writ should not issue should not be made returnable before the Supreme Court as a general practice.

As was said in Secretary of State for Home Affairs v. O’Brien[cccvii]⁴ “I think it right further to observe that urgency is written all over the face of habeas corpus proceedings. ‘Preventing delay’, ‘immediate determination of the right to the applicant’s freedom’, the avoidance of ‘the delay and uncertainty of ordinary litigation’— these expressions are significant of urgency as an essential quality of the proceedings.”

That being so, it may be that custody proceedings by way of habeas corpus may be appropriate in cases of extreme emergency. One such example might be where a child is being threatened with removal from the jurisdiction. But the writ is directed to the production of the child to the court: See Nora Ume v. Martin Beni[cccviii]⁵ and the writ does not command that the child be returned to either parent or to anyone else.

Applications for custody should normally be made to the National Court under the Infants Act 1956 and not by way of writ of habeas corpus unless there are exceptional circumstances.

Directed accordingly.

[ccciv] Unreported, judgment No. N217, 28th March, 1980, Andrew J.

[cccv] Unreported, judgment, 26th June, 1980, Pratt J. (M.P. 20 of 1980).

[cccvi] [1973] Qd.R. 314.

[cccvii] [1923] A.C. 603 at pp. 643-4.

[cccviii] [1978] P.N.G.L.R. 71.