Hon James Marape in his capacity as Minister for Finance v Hon Peter O’Neill in his capacity as Prime Minister and Hon Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and the Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2015) SC1458

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Makail and Sawong JJ
• Judgment Date: 29 September 2015
• Court: Supreme Court
• Citation: (2015) SC1458
• Docket Number: SCA 87 of 2014
• Year: 2015
• Judgement Number: SC1458

Full Title: SCA 87 of 2014; Hon James Marape in his capacity as Minister for Finance v Hon Peter O’Neill in his capacity as Prime Minister and Hon Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and the Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2015) SC1458

Supreme Court: Hartshorn, Makail and Sawong JJ

Judgment Delivered: 29 September 2015

SC1458

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance

Appellant

AND:

HON. PETER O’NEILL in his capacity as Prime Minister

First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice

Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers

Third Respondent

AND:

ROYAL CONSTABULARY OF PNG

Fourth Respondent

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National

Fraud & Anti-Corruption Directorate

Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National

Fraud & Anti-Corruption Directorate

Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ

2015: September 2nd, 29th

SUPREME COURT – PRACTICE & PROCEDURE –– Application to discharge orders made by a Supreme Court Judge for the joinder of parties - Joinder granted by single Judge – Discretionary – Relevant principles – Sufficient interest – Joinder necessary – Supreme Court Rules – Order 11, rules 11, 25 & 26.

SUPREME COURT – PRACTICE & PROCEDURE – Application for joinder – Competency of application – Proper form for application – Form 4 – Application shall state grounds – Failure to state grounds – Supreme Court Rules – Order 13, rule 10 – Form 4.

Cases Cited:

Papua New Guinea cases

Rimbink Pato v. Anthony Mundjin [1996] PNGLR 6

PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126

Kawaso Limited v. Oil Search Limited (2010) SC1082

John Midan & Anor v. Oscar Lisio (2010) SC1086

Kara v. Public Curator of Papua New Guinea (2010) N4048

Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638 Coecon Ltd v. Westpac Bank (PNG) Ltd (2012 ) N5097

Bobby Enda v. Kanawi Pouru (2013) N5314

Barava Limited v. Mamalau (2013) SC1301

National Executive Council v. Vele Pat Ila’ava (2014) SC1332

Supreme Court Reference Nos 2, 3 and 5 of 2014: Re: Powers of Commissioner of Police – Warrant of Arrest (2014) SC1388

Joel Luma v. John Kali and 2 Ors (2014) unreported Supreme Court, SCM 14/14 delivered 25th April 2014

Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408

Eremas Wartoto v. The State (2015) SC1411

Overseas Cases

Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33

Counsel:

Mr. R. Leo, for the Appellant

Mr. M.M. Varitimos QC, Ms. T. Twivey and Mr. D. Kipa, for the First Respondent

Mr. R. Saulep, for the Second and Fifth Respondents

Mr. R. Kasito, for the Third Respondent

Mr. I.R. Molloy and Mr. N. Tame, for the Fourth Respondent

Mr. G.M. Egan, Mr. M. Nale and Mr. T.G. Lambert, for the Sixth and Seventh Respondents

29th September, 2015

1. HARTSHORN J (Dissenting): This is a decision on an application to discharge orders made by a single Judge of this Court. Those orders were that Messrs Matthew Damaru and Timothy Gitua be joined as the sixth and seventh respondents to this proceeding.

2. I have had the opportunity of reading the draft decision of my brothers Makail J. and Sawong J. I find myself in the minority as I respectfully do not agree with their Honours’ determination that the sixth and seventh respondents should remain joined to the appeal.

3. The application is made by the appellant. It is supported by all of the respondents apart from the sixth and seventh respondents who not surprisingly, oppose the application.

Background

4. This is an appeal from a decision of the National Court that refused an application for interlocutory orders by consent. The orders that were sought were amongst others that members of the Royal Papua New Guinea Constabulary (Police) be restrained from arresting the appellant and first respondent herein, and that senior members of the Police be restrained from taking any action against other members of the Police involved in the investigation into the payment by the fifth respondent herein of legal bills of the third respondent herein.

5. A notice of appeal dated 3rd July 2014 was filed on 7th July 2014 in which the appellant claims that the primary Judge erred in law and/or mixed fact and law on thirteen grounds. It is unnecessary to restate the grounds of the Appeal for present purposes.

This application

6. The application is made pursuant to Order 11 Rule 25 Supreme Court Rules. The heading to that Rule is “….. Appeal & application to court from orders or directions of judge.”, although there is no reference to “appeal” in the wording of Rules 25 and 26. These Rules are as follows:

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.”

7. Order 10 is as follows:

“ORDER 10—APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1.—Institution of appeal

1. (a) An appeal under this Order shall be instituted by a notice of motion.

(b) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.

2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; and

(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c) be in accordance with form 15; and

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

Division 2.—certain rules to apply

4. The following rules shall apply to matters under this part with regard to—

(a) filing and service: Order 7 Division 4; and

(b) affidavits: Order 7 Rules 56, 57, 58, 59.

(c) where an application for leave to appeal has been filed: Order 7 Rule 6 (time to file a Notice of Appeal) and Order 7 Rule 11 (notice of appeal deemed given on filing of an Application for Leave to Appeal) with the necessary modifications.

5. Where leave to appeal is required pursuant to s14 of the Supreme Court Act, application shall be made in Form 7.”

8. During the course of submissions the court queried whether the notice of motion by which the application was made was competent and complied with Rule 26 and Order 10 Supreme Court Rules.

9. Counsel for the appellant submitted that the notice of motion substantially complied with Order 10 and that copies of all necessary documents, although not annexed to the notice of motion, are annexed to the affidavit in support.

10. Counsel for the first respondent submitted that the sixth and seventh respondents have not filed an objection to competency of the notice of motion. Further, as this application is not an appeal from a different court and is an application within an existing appeal, and so all of the appeal documents are before this Court, it is not necessary that all of the documents which were before the single judge of this Court, be annexed to the notice of motion. To require otherwise would result in unnecessary duplication and is not what Rule 26 envisages.

11. Counsel for the sixth and seventh respondents submitted that the wording of Rule 26 is clear. Proceedings under Rule 25 shall be instituted as if it was an appeal. Reliance was placed on amongst others, the decision of Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408.

12. Notwithstanding that this application is made pursuant to Order 11 Rule 25 Supreme Court Rules, the jurisdiction to discharge or vary a direction or order of a Judge of the Supreme Court is conferred by s. 5 (3) Supreme Court Act.

13. In this regard I have had recourse to the decisions of National Executive Council v. Vele Pat Ila’ava (2014) SC1332, and Joel Luma v. John Kali and 2 Ors (2014) unreported Supreme Court, SCM 14/14 delivered 25th April 2014 (Injia...