In The Matter of An Application for Judicial Review Pursuant to Constitution, Section 155(4) And In The Matter of An Application Relating to The Interpretation and/or Application of a Provision of The Constitution Requiring The Original Jurisdiction of The Supreme Court under The Constitution, Section 18(1); Hon Bill Skate And Hon Peter O'Neil, MP and Members of The Parliament In The Opposition v Hon Jeffrey Nape, MP, Speaker of Parliament, Hon Patrick Pruaitch, MP, Leader of Government Business, Rt Hon Sir Michael T Somare, Kt GCMG, MP, Prime Minister, Ano Pala, Clerk of Parliament and The Independent State of Papua New Guinea (2004) SC754

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Hinchliffe J, Batari J
• Judgment Date: 09 July 2004
• Court: Supreme Court
• Citation: (2004) SC754
• Docket Number: SC OS No 3 of 2004
• Year: 2004
• Judgement Number: SC754

Full Title: SC OS No 3 of 2004; In The Matter of An Application for Judicial Review Pursuant to Constitution, Section 155(4) And In The Matter of An Application Relating to The Interpretation and/or Application of a Provision of The Constitution Requiring The Original Jurisdiction of The Supreme Court under The Constitution, Section 18(1); Hon Bill Skate And Hon Peter O'Neil, MP and Members of The Parliament In The Opposition v Hon Jeffrey Nape, MP, Speaker of Parliament, Hon Patrick Pruaitch, MP, Leader of Government Business, Rt Hon Sir Michael T Somare, Kt GCMG, MP, Prime Minister, Ano Pala, Clerk of Parliament and The Independent State of Papua New Guinea (2004) SC754

Supreme Court: Kapi CJ, Hinchliffe J, Batari J

Judgment Delivered: 9 July 2004

1 Practice and Procedure—Supreme Court of Justice—Interim Order to prevent prejudice—Jurisdiction of the Supreme Court—Particular circumstances involving application to restrain the Speaker from performing his duties—Pending the determination of originating Summons under s18(1) of the Constitution.

2 Norah Mairi v Alkan Tololo (No 1) [1976] PNGLR 59, Avia Aihi v The State (No 1) [1981] PNGLR 81, American Cyanamid Co v Ethicon Ltd [1975] AC 396 referred to

___________________________

SC754

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SC OS NO. 03 OF 2004

IN THE MATTER OF AN

APPLICATION FOR JUDICIAL REVIEW

PURSUANT TO CONSTITUTION, SECTION 155(4)

AND IN THE MATTER OF AN APPLICATION

RELATING TO THE INTERPRETATION AND/OR

APPLICATION OF A PROVISION OF THE

CONSTITUTION REQUIRING THE ORIGINAL

JURISDICTION OF THE SUPREME COURT

UNDER THE CONSTITUTION, SECTION 18(1)

BETWEEN:

HON. BILL SKATE

First Plaintiff

AND:

HON. PETER O’NEIL, MP AND MEMBERS OF THE

PARLIAMENT IN THE OPPOSITION

Second Plaintiff

AND:

HON. JEFFREY NAPE, MP, SPEAKER OF

PARLIAMENT

First Defendant

AND:

HON. PATRICK PRUAITCH, MP, LEADER OF

GOVERNMENT BUSINESS

Second Defendant

AND:

RT. HON. SIR MICHAEL T. SOMARE, KT. GCMG,

MP, PRIME MINISTER

Third Defendant

AND:

ANO PALA, CLERK OF PARLIAMENT

Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW

GUINEA

Fifth Defendant

Waigani: Kapi CJ., Hinchliffe J., Batari J.

1st, 2nd, 9th July 2004

Practice and Procedure – Supreme Court of Justice – Interim Order to prevent prejudice – Jurisdiction of the Supreme Court – Particular circumstances involving application to restrain the Speaker from performing his duties – Pending the determination of originating Summons under s 18(1) of the Constitution.

A. Jerewai for the First Plaintiff

P. Korowi for the Second Plaintiff

J. Nonggor for the First Defendant

J. Yagi for the Second Defendant

L. Henao with S. Singin for the Third Defendant

S. Reid for the Fourth Defendant

T. Sirae for the Fifth Defendant

9th July 2004

By The Court: This is an application by the Hon. Bill Skate M.P. (Applicant) to restrain the Hon. Jeffrey Nape M.P. (First Defendant), the present Speaker of the National Parliament from performing his duties as Speaker until the substantive action in this matter is tried and determined by the Supreme Court.

The circumstances leading to this application are these. The Applicant has been the Speaker of the National Parliament since the general elections in 2002. At the relevant time, he was acting as Governor-General under s 95(2) of the Constitution during the period the office of the Governor-General was vacant. During his absence, the First Defendant who was the Deputy Speaker, acted as Speaker of the National Parliament.

On or about the 26th May 2004, the Applicant gave notice that he would step down as Governor-General and instead resume his office as the Speaker of the National Parliament and preside on 27th May to elect the new Governor-General. However, the Applicant decided not to resume duty as Speaker after receiving further legal advice.

The National Parliament resumed its sittings on 27th May 2004 with the First Defendant presiding as the Acting Speaker and the Parliament nominated the new Governor-General.

On 28th May, 2004 Parliament resumed sittings and elected the First Defendant as the new Speaker of the National Parliament.

The First Defendant was sworn in as the Speaker following his election. Upon his swearing in as the Speaker, he became the Acting Governor-General under s 95(2) of the Constitution.

The Applicant filed originating summons on 4th June 2004 in the Supreme Court challenging his removal and the subsequent election of the First Defendant as Speaker. The originating summons was amended on 23rd June 2004. The amended summons seeks the following orders:

“(a) That the notice of motion given and moved by the Second Defendant in the session of Parliament on 28th May 2004 for the removal of the First Plaintiff as Speaker of the Parliament was and still is ultra vires the Constitution and thus invalid, null and void. …

(b) That the resolution carried in favour of the notice of motion as aforesaid and the resultant removal of the First Plaintiff as Speaker on the 28th was and still is ultra vires the Constitution and thus invalid, null and void. …

(c) That the actions as set out in the preceding sub-paragraphs 2(a) and 2(b) hereto were in violation and breach of the Constitution, Section 59(2), and were unconstitutional, null and void. …

(d) That the nomination of the First Defendant to be elected as Speaker of the Parliament was and still is a nullity. …

(e) That the election of and the declaration of the First Defendant as Speaker of the Parliament on the 28th was and still is a nullity. …

(f) That in even if the First Plaintiff was duly removed pursuant to the Constitution Section 107(3) and Section Schedule 1.10, which is denied, then the nomination, election and declaration of the First Defendant as Speaker of the Parliament was and still is a nullity for non-compliance with Parliament Standing Orders 5 and 12.”

The new Governor-General was sworn in on 29th June 2004 in the presence of the Parliament and the First Defendant resumed his duties immediately as the Speaker thereafter.

The Parliament is presently sitting with the First Defendant presiding as the Speaker.

The Applicant filed notice of motion on 30th June 2004 seeking to restrain the First Defendant from further performing any of the duties as Speaker until the Supreme Court determines the originating summons. It is this motion which has come before us for determination.

Jurisdiction

Where an originating proceeding is pending before the Supreme Court, the Court has power to make interim orders under O 3 r 2 (b) of the Supreme Court Rules. We will return to consider the jurisdiction of the Court under this provision.

There are various proceedings which may come before the Supreme Court. They are:

1. An appeal to the Supreme Court (s 6 of the Supreme Court Act)

2. A Judicial Review by the Supreme Court (s 155 (2) (b) of the Constitution)

3. An originating process (s 18 (1) of the Constitution)

4. Points of law reserved for decision by the Supreme Court (s 15 and s 21 of the Supreme Court Act)

5. Point of law for the opinion of the Supreme Court (s 26 of the Supreme Court Act)

6. Reference for the opinion of the Supreme Court on a constitutional law (s 18 (2) of the Constitution)

7. Reference for the opinion of the Supreme Court on a constitutional law (s 19 of the Constitution)

Each of these proceedings is different in nature and may require different considerations in respect of interim orders in accordance with the applicable law.

It is not necessary to discuss all these proceedings for the present purposes. We should make reference to s 5(1)(b) of the Supreme Court Act with respect to an appeal because it is expressed in exactly the same terms as O 3 r (2) (b) of the Supreme Court Rules. Section 5(1)(b) provides:

“5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court –

. . . . .

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

. . . . .

may be made by a Judge.”

However, counsel did not refer us to any relevant case on this provision.

Section 6 (1) (b) of the Supreme Court Act 1975 was expressed in the same terms as s 5(1)(b) of the Supreme Court Act. Dr Nonggor referred us to Norah Mairi v Alkan Talolo & Others [1976] PNGLR 59. That case involved a reservation of a point of law for decision by the Supreme Court under then s 5 of the Supreme Court Act 1975. Frost CJ there considered a motion for interlocutory orders pending the consideration of points of law reserved. The Chief Justice made reference to the then s 6 (1) (b) of the Supreme Court Act 1975. He does not say so in terms but he appears to have adopted the terms of s 6 by way of analogy as well as the principles of common law laid down in the case, American Cyanamid Co v Ethicon Ltd...