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Kakaraya v National Parliament [2004] PNGLR 6 (22 July 2004)

SUPREME COURT OF JUSTICE

SIR PATO KAKARAYA

V

THE NATIONAL PARLIAMENT;
HON. JEFFREY NAPE, SPEAKER OF NATIONAL PARLIASMENT;
ANO PALA, CLERK OF PARLIAMENT; SIR PAULIAS MATANE;
THE NATIONAL EXECUTIVE COUNCIL; AND
RT. HON. SIR MICHAEL SOMARE, PRIME MINISTER.

WAIGANI: KAPI CJ

15 & 22 July 2004

PRACTICE AND PROCEDURE – Originating process pending in the Supreme Court – Interim Order to prevent prejudice to the claims of parties, Order 3 r 2(b) of the Supreme Court Rules – The meaning and scope of the Rules – Application of common law principles.

Facts

The applicant and the fourth respondent together with three others were proposed for nomination as candidates for the Governor General of Papua New Guinea under the constitutional laws. This was after inter alia a number of nominations by the National Parliament had been challenged in several court proceedings. On the 27 May, 2004 the National Parliament nominated the fourth respondent as its nominee for appointment as Governor-General of Papua New Guinea. The fourth respondent was subsequently appointed by Her Majesty the Queen in accordance with s.88 (1) of the Constitution. He was sworn in as the Governor-General in the presence of the Parliament on 29 June 2004 in accordance with s.90 of the Constitution.

On 28 June 2004, the applicant filed an Originating Summons challenging the nomination of the fourth respondent and Notice of Motion (amended) seeking an interim order to restrain the 4th respondent from performing or continuing to perform his duties as Governor-General, unless and until the Court determines the Constitutional validity of his election.

Held

1. The common law principles applicable to interlocutory injunctions pending trial in the National Court may be applied by way of analogy and they come within the ambit of o 3 r 2 (b) of the Rules. (Sir Albert Kipalan v National Parliament & 5 Others (SCOS 3 of 2004) and Norah Mairi v Alkan Tololo (supra) applied)

2. There is a serious question to be tried relating to the conducting of the process of nomination by National Parliament contrary to s.3 of the Organic Law on the Nomination of Governor-General (Organic Law) which if successful will have serious consequences.

3. The applicant has failed to demonstrate or satisfy the Court that the claims would be prejudiced by the fourth respondent continuing to perform his duties.

4. Having regard to the circumstances in having to fill the vacancy in the office of Governor-General and the lack of any explanation for the delay in instituting the action and the motion for interim orders, I would not in the exercise of my discretion readily grant the orders sought. (Sir Albert Kipalan v National Parliament & 5 Others (SCOS 3 of 2004 distinguished).

Papua New Guinea cases cited

State v Nape [2004] PGSC5; SC754
Sir Albert Kipalan v National Parliament & 5 Other [2004] PGSC 42; SC728
Norah Mairi v Alkan Tololo [1976] PNGLR 59

Counsel

R. Leo, for the applicant.
S. Reid, for the first and second respondents.
R. Williams, for the third respondent.
L Henao, for the fourth respondent.
F. Kuvi, for the fifth respondent.
S. Singin for the sixth respondent.

22 July 2004

Kapi cj. In the amended Notice of Motion filed on 2 July 2004, Sir Pato Kakaraya (applicant) sought orders that:

"1 The manner and mode of bringing this application be deemed appropriate pursuant to Section 185 of the Constitution.

2. An INTERIM ORDER that the 4th Respondent be restrained from performing or continuing to perform his duties as Governor-General, unless and until the Court determines the Constitutional validity of the election of the 4th respondent by the 1st respondent as its Nominee for Appointment as the Governor-General of Papua New Guinea."

The background to this application is as follows. The nomination by the National Parliament of its nominee as the Governor-General of Papua New Guinea under the Constitutional Laws has been challenged in several court proceedings. The Parliament first nominated Sir Albert Kipalan. This nomination was challenged in Court and the Supreme Court declared the nomination invalid and of no effect. The Court directed the National Parliament to make a new nomination in accordance with the law.

As a consequence, the National Parliament nominated the applicant. This nomination was once again challenged and the Supreme Court declared the nomination invalid and of no effect and directed the National Parliament to make a new nomination.

Consequently, when the Parliament met on 27 April 2004, the Acting Speaker informed the Parliament that there was a vacancy in the office of the Governor-General and called for new proposals for nomination. At the same time, the Acting Speaker fixed 11 May 2004 as the date for the election of the Parliament's new nominee.

Both the applicant and Sir Paulius Matane (fourth respondent) were proposed as candidates together with two others. However, on 11 May 2004, the Clerk of Parliament in the exercise of his discretion under the Organic Law on the Nomination of the Governor-General (Organic Law) rejected all four proposals on the basis that they were defective.

Consequently, the Acting Speaker called for new proposals and fixed 27 May 2004 as the new date for the election of the Parliament's nominee.

The applicant and the fourth respondent were again proposed for nomination together with three others.

On the 27 May, 2004 the National Parliament nominated the fourth respondent as its nominee for appointment as Governor-General of Papua New Guinea. The fourth respondent was subsequently appointed by Her Majesty the Queen in accordance with s 88 (1) of the Constitution. He was sworn in as the Governor-General in the presence of the Parliament on 29 June 2004 in accordance with s.90 of the Constitution.

On 28 June 2004, the applicant filed Originating Summons (SCOS 4 of 2004) challenging the nomination of the fourth respondent. On the same date, the applicant filed Notice of Motion seeking an interim order to restrain the National Parliament (first respondent) and the Speaker of the National Parliament (second respondent) from taking further steps in pursuance of s.90 of the Constitution for the fourth respondent to take the Oath of Allegiance and Making the Declaration of Loyalty.

The Originating Summons and the Notice of Motion were not served on any of the parties and the motion was not fixed for hearing. Hinchliffe J. gave chamber directions as follows:

"1. The applicant is to serve all relevant documents including a copy of the Order on the respondents forthwith.

2. The applicant file affidavits of service regarding No. 1 above.

The matter is adjourned for mention on the 2 July 2004 at 9.30 am in Waigani."

Consequently, the fourth respondent was sworn in as the Governor-General in the presence of the Parliament on 29 June 2004.

Subsequently, at a Directions hearing before me, counsel for the respondents pointed out that the act sought to be restrained by the applicant in the initial Notice of Motion had already taken place and therefore the Notice of Motion should be dismissed. Counsel for the applicant then indicated he would amend the Motion. He subsequently filed amended Notice of Motion on 2 July 2004. It is this motion which has come before me for determination.

In the recent case, Hon Bill Skate & Hon Peter O'Neil v Hon. Jeffrey Nape & Others (Unreported Judgment of the Supreme Court dated 9 July 2004, SC754), the Supreme Court established the proposition that the Court has power to make interim orders in accordance with o 3 r 2 (b) of the Supreme Court Rules (Rules) which provides:

"ORDER 3 – PROCEDURE

DIVISION 1 – COMMENCEMENT AND CONTINUANCE OF PROCEEDINGS

1. Proceedings which relate to a matter or question within Court of Justice and shall be commenced and continued in accordance with these Rules.
   

2. Where any proceedings under Rule (1) are pending before the Court –

(a) ...

(b) an interim order to prevent prejudice to the claims of the parties;

(c) ...

(d) ...

may be made by a Judge"

The exercise of this discretion is to be guided by the words "to prevent prejudice to the claims of the parties". The provision has narrow scope in that the prejudice is to "the claims of the parties" and not to the claims of others at large. In Hon. Bill Skate & Hon Peter O'Neil v Hon Jeffrey Nape & Others (supra) the Court held that it cannot by judicial act enlarge the scope of the provision to prejudice to any other party at large.

As to what is "prejudice to the claims of the parties", the Court did not address this issue in view of the fact that counsel for the Hon Bill Skate and Hon Peter O'Neil conceded that there was no prejudice to the plaintiffs. The Court did not find it necessary to consider the application of the common law principles.

In the present case, the question has arisen as to whether the common law principles come within the ambit of the words "...to prevent prejudice to the claims of the parties."All counsel are agreed that the scope of the jurisdiction of the Court is determined by o 3 r 2 (b) of the Rules. The rationale behind the exercise of this discretion is that if there is delay in prosecuting the substantive matter, the question then arises, whether the claims of parties may be prejudiced by the delay.

Counsel are all agreed that the common law principles applicable to interlocutory injunctions pending trial in the National Court may be applied as coming within the ambit of the meaning of words "to prevent prejudicial to the claims of the parties". I am in agreement with counsel that the common law principles may be applied by way of analogy and they come within the ambit of o 3 r 2 (b) of the Rules.

This conclusion is consistent with the view I held in Sir Albert Kipalan v National Parliament & 5 Others (SCOS 3 of 2004) on a similar application made by Sir Albert Kipalan. In an unpublished ruling, I applied the common law principles adopted in Norah Mairi v Alkan Tololo [1976] PNGLR 59, I held:

"Chief Justice Frost then applied the principles relating to interlocutory injunction in the case before him. I should indicate that in the present case this is not an appeal but an originating process pending trial. The position in the case before me is more analogous to an interim injunction pending trial. For these reasons, I would adopt the principles relating to interlocutory injunctions.

These principles may be briefly stated. First, whether there is a serious question to be tried and secondly, whether the balance of convenience lies in favour of granting or refusing the interlocutory relief."

The common law principles have to be considered and applied within the context of particular circumstances of each case. In Norah Mairi v Alkan Tololo[1976] PNGLR 59, the principles of common law were applied in so far as they were applicable. Chief Justice Frost however, held the view that the requirement for undertaking for damages was not applicable to the circumstances of the case before him.

The applicable principles may be briefly stated as follows:

(a) that the court must be satisfied that there is a serious question to be tried.

(b) Whether the balance of convenience lies in favour of granting the interim order.

(c) That this is a discretionary power and the court may have regard to considerations such as preservation of the status quo until the matter is tried.

Is there a serious question to be tried in the present case? The major argument in the substantive action is that the National Parliament conducted the process of nomination contrary to s.3 of the Organic Law on the Nomination of Governor-General (Organic Law).

Counsel for the applicant submits that when the fourth respondent was nominated on 27 May 2004, this was well outside the period of 10 days stipulated by s.3 of the Organic Law.

He submits that when the initial date was fixed on 27 April 2004 for the process of nomination to take place on 11 May 2004, the Parliament ought to have conducted the nomination by 13 May 2004. He submits that the 10 days is calculated from 27 April 2004 and the time had long expired by the time the fourth respondent was nominated on 27 May.

On the other hand, counsel for the respondents submit that in the present case, it was impossible to conduct the process of nomination on the initial date of 11 May or on 13 May because there were no valid proposals to go before the Parliament because the Clerk of Parliament in the exercise of his discretion under the Organic Law rejected all the proposals for not complying with the Organic Law. There was no appeal filed against the decision of the Clerk of Parliament. They submit that the Clerk was obliged to call for new proposals and fixed the 27 May for the process of nomination to take place. They submit that the Parliament conducted the nomination of the fourth respondent in accordance with the Organic Law.

On the face of these submissions, it may be concluded that there is a serious question to be tried. However, the submission by counsel for the applicant on close examination is premised on an argument which has serious consequences. If the submission by counsel for the applicant is correct, the result is that the nomination of the fourth respondent may be declared invalid. The consequences are that there is no further provision under the Organic Law to nominate the Parliament's nominee for appointment as Governor-General. The upshot of this argument is that there may be a gap in the law and there is no provision for the appointment of the Governor-General in the circumstances of this case. The result is that there would be no Head of State.

It is not necessary for me to determine the merits of this argument. This issue will be determined at the trial if this matter proceeds to trial. I simply highlight the issue for the parties to carefully consider before proceeding to trial.

The question that remains to be considered is whether the claims of the applicant may be prejudiced if the fourth respondent is not restrained between now and the trial of the substantive action?

Counsel for the applicant submits that if the fourth respondent is not restrained from continuing to perform his duties, the claims of the applicant would be prejudiced.

Counsel for the respondents submit that the applicant has failed to demonstrate or satisfy the Court that the claims of the applicant would be prejudiced by the fourth respondent continuing to perform his duties.

I repeatedly asked counsel for the Applicant to indicate in what way the applicant's claim would be prejudiced between now and the trial of the substantive action. He failed to answer this question satisfactorily. I fail to see how the claims of the applicant would be prejudiced by the delay. The grounds on which the applicant seeks to rely on will not in any way be affected by the fact that the fourth respondent continues to act.

In considering the interim order, I considered what the status quo is. I agree with counsel for the respondents that the status quo is that the fourth respondent has been nominated by the National Parliament in accordance with the Organic Law, and subsequently appointed by Her Majesty the Queen and sworn in as the Governor-General of Papua New Guinea in accordance with the Constitution. If the status quo is to be preserved, it is to preserve the appointment of the fourth respondent and the continual performance of his responsibilities until the matter is determined by the Court.

In considering this, I also have regard to the delay in bringing the substantive action and the motion for interim orders before the Court. The fourth respondent was nominated by the Parliament on 27 May 2004. No action was filed by the applicant until 28 June 2004. During the period, the process of installing the Governor-General in accordance with the law was allowed to progress to the point of swearing in of the fourth respondent. Counsel for the applicant has not given any explanation for the delay in allowing the appointment of the Governor-General to progress this far. Having regard to the circumstances in having to fill the vacancy in the office of Governor-General and the lack of any explanation for the delay in instituting the action and the motion for interim orders, I would not in the exercise of my discretion readily grant the orders sought.

Counsel for the sixth respondent raised an interesting point. He submits that where a person wishes to make a claim against the Head of State or the Governor-General, such a claim should be made against the Attorney-General who shall be the nominal defendant in accordance with s 3 of the Claim By and Against the State Act 1996 (as amended) which provides:

"3. Suit against the Head of State.

A person making a claim against the Head of State, or Governor-General, acting on advice, shall, in the proceedings, make such claim against the Attorney-General who shall be the nominal defendant on behalf of the Head of State and Governor-General."

This point may be relevant to the question of whether the Governor-General should be made a party to this proceeding. Clearly the naming of the Governor-General as a party is inconsistent with this provision. In my view it does not in any way supports the exercise of discretion to restrain the fourth respondent.

I have also considered that in SCOS 3 of 2004, the application by Sir Albert Kipalan to restrain the applicant from being sworn in as Governor-General was successful. However, that case can be distinguished from the present case. In the present case, the fourth respondent has been appointed, sworn in and is performing the duties of the Governor-General.

In the end result, the applicant has failed to satisfy me that I should restrain the fourth respondent from continuing to perform his duties. I dismiss the motion with costs to the respondents.

Lawyers for the applicant: Leo Lawyers.
Lawyers for the first respondent: Melanesian Legal Group.
Lawyers for the second respondent: Melanesian Legal Group.
Lawyers for the third respondent: Nonggor & Associates.
Lawyers for the fourth respondent: Henao Lawyers.
Lawyers for the fifth respondent: Solicitor-General.
Lawyers for the sixth respondent: Singin.