Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Amet J, Wilson J
• Judgment Date: 06 April 1987
• Citation: [1987] PNGLR 249
• Docket Number: Special Constitutional Reference No 4 of 1987
• Court: Supreme Court
• Year: 1987
• Judgement Number: SC335

Full Title: Special Constitutional Reference No 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249

Supreme Court: Kidu CJ, Amet J, Wilson J

Judgment Delivered: 6 April 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL CONSTITUTIONAL REFERENCE NO 4 OF 1987; RE CENTRAL PROVINCIAL GOVERNMENT AND NATIONAL CAPITAL DISTRICT INTERIM COMMISSION

Waigani

Kidu CJ Amet Wilson JJ

31 March 1987

6 April 1987

PRACTICE — Constitutional reference — Form of — "Signed by authority or proper officer on behalf of the authority" — Special nature of reference — Signature of lawyer not sufficient — Supreme Court Rules, O 2, r 1; O 4, r 1 (e) — National Court Rules, O 2, r 33.

PRACTICE — Striking out — Grounds for — Failure to comply with order for directions — Constitutional reference struck out.

COURTS AND JUDGES — Rules of Court — Interpretation — Special and general provisions — Constitutional reference — To be "signed by authority or proper officer" — Signature of lawyer not sufficient — Supreme Court Rules, O 2, r 1; O 4, r 1 (e) — National Court Rules, O 2. r 33.

The Supreme Court Rules, O 4, r 1 (e), provides:

" (1) A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall:

(e) be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference;..."

Held

(1) (Amet J dissenting). As the reference procedure under s 19 of the Constitution is a special procedure to be resorted to only in exceptional circumstances it should be signed as required by O 4, r 1 (e); a signature of the lawyer for the Referring Authority will not suffice.

For the purposes of the rule a signature "by a proper officer on behalf of the authority as required by law" means two things: (a) that only a person employed by the authority can sign the reference and; (b) that there must be authorization for such a person to do this on behalf of the referring Authority.

(2) Failure to comply with a court order giving directions may result in the matter being struck out.

(3) In the circumstances a reference under s 19 of the Constitution should be struck out on the ground that the Referring Authority had failed to comply with directions given as to the conduct of the matter.

Constitutional Reference

This was an application to strike out a reference to the Court made pursuant to s 19 of the Constitution.

Counsel

G Powell, for the applicant, the National Capital District Interim Commission.

P Steele and P Pato, for the respondent, Central Provincial Government.

6 April 1987

KIDU CJ WILSON J: Application to strike out this reference was filed on 31 March 1987 and heard on 6 April 1987. We made the following orders:

1. We strike out the reference on the ground that the Referring Authority has failed to comply with the directions given in the orders made by Bredmeyer J on 27 February 1987.

2. (Kidu CJ and Wilson J, Amet J dissenting.) We would strike out the reference as it is not signed by the Referring Authority as required by s 19 of the Constitution and O 4, r 1 (e) of the Supreme Court Rules.

We now give our reasons for these two orders.

BACKGROUND

On 25 February 1987 Steeles, Lawyers, acting for the Provincial Executive of the Central Provincial Government filed a Special Constitutional Reference in the Supreme Court under s 19 of the Constitution. It reads, inter alia, as follows:

"SPECIAL REFERENCE

1. THIS REFERENCE is made by the Provincial Executive of the Central Provincial Government an authority referred to in s 19 of the Constitution ...

2. THE QUESTION IS:

Is s 43 of the National Capital District Government (Preparatory Arrangements) Act of 1982 as amended invalid and ineffective in that it is inconsistent with the provisions of s 56 and 57 of the Organic Law of Provincial Government?

Dated: 25th February 1987.

Signed by Steeles, Lawyers for the Provincial Executive of the Central Provincial Government ..."

On 27 February 1987, Mr Steele and Mr Pato of Steeles for the Referrer, Mr Tadabe for the Principal Legal Adviser and Mr Powell for the National Capital District Interim Commission, saw Bredmeyer J for directions and the following orders were made:

"1. That the form and content of the question to be decided by the Court is:

(1) As in the Reference

(2) To be supplied within 14 days.

2. That the case for the Affirmative answer to the question asked be argued by Messrs Steeles on behalf of the Provincial Executive of the Central Provincial Government and the case for the Negative to be argued by the National Capital District Interim Commission and the Principal Legal Advisor.

3. That all parties have the right to adduce evidence in affidavit or other documentary form.

4. That the parties shall submit brief extracts of argument in writing.

5. Mr Powell for the National Capital District Interim Commission shall provide to the Court and the parties a list of National Capital District Interim Commission statutes challenged, copies of and Gazettal dates.

6. That the question in the Reference be set down for hearing at 9.30 am on 31 March 1987.

7. That the Reference Book shall consist of:

(a) The title page;

(b) The index;

(c) The Special Reference by the Provincial Executive of the Central Provincial Government;

(d) List of statutes challenge;

(e) A certificate signed by all counsel that the Reference Book is correct;

8. That the Lawyers for the Referring Authority file and serve copies of the Reference Book five days before the hearing date.

9. That the costs of these directions be costs in the Reference.

10. I grant leave for National Capital District Interim Commission to appear as a party.

11. Leave granted to the Referror to amend the Special Reference to include new matters provided it is done within two weeks. Copy of the amended reference to be served on National Capital District Interim Commission the Principal Legal Advisor for the State. Documents to be headed 'Amended Special Reference'."

The orders made by Bredmeyer J were never entered and no Reference Book was certified by counsel or served on parties. But what happened was that the Lawyers for the Referring Authority on 30 March 1987 notified the Registrar that the hearing of the reference was not proceeding. This was done without prior notification to the other parties. So on 31 March 1987 Mr Powell for the National Capital District Interim Commission filed the present application.

GROUNDS OF APPLICATION

Mr Powell advanced three grounds for the application to strike out the reference and these were:

(1) Non-compliance with orders made by Bredmeyer J on 27 February 1987.

(2) The Reference was not signed by the Referring Authority as required by O 4, r 1 (e) of the Supreme Court Rules.

(3) The Reference does not contain the circumstances under which it arose as required by O 4, r 3 (b) of the Supreme Court Rules.

1. Non-compliance with directions given by Bredmeyer J

The directions given by Bredmeyer J (in his capacity as a Judge of the Supreme Court) were issued under O 4, r 8 of the Supreme Court Rules (Ch No 37) and were issued, as already stated, a month before the date fixed for hearing of the Reference.

Under these directions the Lawyers for the Referring Authority were directed to file an amended reference, within 14 days of the date of the directions, have the Reference Book certified by all Lawyers involved and have the Reference Book filed and served on the other parties five days before the hearing date. None of these directions were complied with although Lawyers for the Referring Authority had a month to comply with them.

The only excuse advanced by the Lawyers for the Referring Authority is that they had difficulty getting instructions from their client on the matter of the proposed amendment to the reference. But if this was the case the simple solution was for the Lawyers to return to Bredmeyer J or another Judge of the Supreme Court either to have the matter...