Benham Satah v Rabura Mataio

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Poole J, Polume-Kiele J
• Judgment Date: 27 October 2016
• Citation: (2016) SC1548
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1548

Full : SC APP No 3 of 2016; Benham Satah & 301 Others v Rabura Mataio, Chief Migration Officer and Hon Rimbink Pato, Minister for Foreign Affairs & Immigration and Hon Peter O’Neill, Prime Minister and Ano Pala, Attorney-General and the Independent State of Papua New Guinea (2016) SC1548

Supreme Court: Cannings J, Poole J, Polume-Kiele J

Judgment Delivered: 27 October 2016

SC1551

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 3 OF 2016

BENHAM SATAH & 301 OTHERS

Applicants

V

RABURA MATAIO, CHIEF MIGRATION OFFICER

First Respondent

HON RIMBINK PATO,

MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION

Second Respondent

HON PETER O’NEILL, PRIME MINISTER

Third Respondent

HON ANO PALA, ATTORNEY-GENERAL

Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Cannings J, Poole J, Polume-Kiele J

2016: 27 October

PRACTICE AND PROCEDURE – application for dismissal of proceedings for failure to comply with requirements of Supreme Court Rules 2012 – applications under Constitution, Section 57, for enforcement of Basic Rights – whether applications must be signed by applicant, whether signature of applicant’s lawyer is sufficient: Supreme Court Rules, Order 6, Rule 3(e) – consequence of failure to comply with signing requirements – whether Court can dispense with requirements of Rules.

The applicants were accommodated at a regional processing centre for asylum seekers. They commenced proceedings in the original jurisdiction of the Supreme Court, under Section 57 of the Constitution, as an application for enforcement of constitutional rights, in particular the right to freedom based on law (Constitution, Section 32), the right to freedom from inhuman treatment (Constitution, Section 36), the right to the full protection of the law (Constitution, Section 37), the right to liberty of the person (Constitution, Section 42), seeking, amongst other things, declarations that they were being unlawfully detained, orders that they be released from detention, and damages. Before trial, the first and second respondents filed an application for dismissal of the entire proceedings on the ground that the Section 57 application had been signed by the applicants’ lawyer, not by the applicants, contrary to Order 6, Rule 3(e) of the Supreme Court Rules 2012. The third, fourth and fifth respondents supported the application. The applicants opposed it.

Held:

(1) Per Poole J and Polume-Kiele J; Cannings J dissenting: Order 6, Rule 3(e) of the Supreme Court Rules requires that a Section 57 application “be signed by the person or Law Officer making the application”. Similar signing requirements for other Supreme Court originating processes have been held in a long line of authority to be mandatory and non-compliance has been fatal to the proceedings. The Court must be consistent in its approach to interpretation of the Rules. Order 6, Rule 3(e) imposes a mandatory requirement, which was not met. Therefore the application should be granted and the proceedings dismissed.

(2) Per Cannings J: It is not a mandatory requirement for applicants to sign a Section 57 application. It can be signed by an applicant’s lawyer, as provided for by Form 6 of the Rules. In any event, in the present case, the applicants’ authorisation for their lawyers to commence the proceedings was annexed to the application, thus the signing requirement was met. Further, if in fact the signing requirement was not complied with, this is an appropriate case, given its human rights significance, in which to dispense with the requirements of the Rules. Therefore the application should be refused and the Section 57 proceedings proceeded with.

(4) By majority, the application was granted and the entire proceedings dismissed. As to costs, it was decided unanimously that the parties bear their own costs.

Cases cited:

The following cases are cited in the judgment:

Namah v Pato (2013) SC1241

Reference by the Attorney-General (2010) SC1078

SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917

SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249

SC Rev No 76 of 2011; Application by Morobe Provincial Government (2012) SC1190

Special Reference by Morobe Provincial Executive (2010) SC1089

APPLICATION

This was an application to dismiss proceedings commenced in the Supreme Court as an application for enforcement of Basic Rights under Section 57 of the Constitution.

Counsel:

R Merkel & P B Lomai, for the Applicants

I Molloy & L P Kandi, for the First & Second Respondent

T Tanuvasa, for the Third, Fourth & Fifth Respondents

27 October, 2016

1. CANNINGS J: I would refuse the application of the first and second respondents, to dismiss the proceedings commenced by the applicants.

2. The applicants, Benham Satah and 301 others, are non-citizens who have been accommodated for a considerable period at the Manus Island Regional Processing Centre. In March 2015 they commenced proceedings in the original jurisdiction of the Supreme Court, under Section 57 of the Constitution, as an application for enforcement of constitutional rights, in particular:

• the right to freedom based on law (Constitution, Section 32),

• the right to freedom from inhuman treatment (Constitution, Section 36),

• the right to the full protection of the law (Constitution, Section 37), and

• the right to liberty of the person (Constitution, Section 42).

3. They sought, amongst other things, declarations that they were unlawfully detained, orders that they be released from detention, and damages.

4. Before trial, the first and second respondents, on 15 September 2016, filed an application for dismissal of the entire proceedings on the ground that the Section 57 application had been signed by the applicants’ lawyer, not by the applicants, contrary to Order 6, Rule 3(e) of the Supreme Court Rules. The third, fourth and fifth respondents supported the application. The applicants opposed it.

5. I would refuse the first and second respondents’ application, for three reasons.

1 Signing by applicants not necessary

I consider that it is not a mandatory requirement for the applicants to sign the application. An application to the Supreme Court under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of Basic Rights, also known as human rights, can in my view be signed by the applicant’s lawyer.

Though Order 6, Rule 3(e) of the Supreme Court Rules 2012 requires that the application be signed “by the person or Law Officer making the application”, ambiguity exists as to whether Rule 3(e) is an exhaustive statement of who can sign by virtue of the wording of Form 6, which states that the application is “To be signed by person making the application or his Lawyer”. And further ambiguity is introduced by the wording of Order 6, Rule 3(d), which provides that the application “shall be in accordance with Form 6”.

Form 6 is in the following terms:

GENERAL FORM OF CONSTITUTIONAL ENFORCEMENT
APPLICATION (CONSTITUTION SECTION 57)

IN THE SUPREME COURT SCA No of 20
OF JUSTICE (Insert number and year)

Enforcement Pursuant to
Constitution Section 57

Application By (insert name
of person or Court)

APPLICATION TO ENFORCE CONSTITUTIONAL RIGHTS

1. THIS ENFORCEMENT of Rights and Freedoms is sought by (name of person)

2. On Behalf of (person/s to be named)

3. THIS APPLICATION arises (briefly state the nature and circumstances in which the matter arises).

4. The CONSTITUTIONAL LAW Provisions, relevant are (state the title of the Constitutional Law and state Section by number and title).

DATED:

Sgd _______________

(To be signed by person
making the application
or his Lawyer)

Filed By: (Form 17)

NOTICE: (Form 18)

6. In view of this ambiguity the Court is required to take account of the special nature of a Section 57 application and the lack of any intention expressed in Section 57 that there be strict insistence with form and procedure to invoke the jurisdiction of the Supreme Court to enforce the Basic Rights. Section 57(1) states:

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

7. It is necessary to read the Supreme Court Rules in a way consistently...