Re Constitution S18(2); IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR PURSUANT TO S57 AND S155(4) OF THE CONSTITUTION AND IN THE COMMISSIONER OF CORRECTIONAL SERVICES[1982] PNGLR 405

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Bredmeyer J
• Judgment Date: 17 December 1982
• Citation: [1982] PNGLR 405
• Docket Number: Supreme Court Reference No 3 of 1982
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC242

Full Title: Supreme Court Reference No 3 of 1982; Re Constitution S18(2); IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR PURSUANT TO S57 AND S155(4) OF THE CONSTITUTION AND IN THE COMMISSIONER OF CORRECTIONAL SERVICES[1982] PNGLR 405

Supreme Court: Kidu CJ, Kapi DCJ and Bredmeyer J

Judgment Delivered: 17 December 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 3 OF 1982. IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR PURSUANT TO SS. 57 AND 155 (4) OF THE CONSTITUTION

AND IN THE COMMISSIONER OF CORRECTIONAL SERVICES

Waigani

Kidu CJ Kapi DCJ Bredmeyer J

17 July 1982

17 December 1982

CONSTITUTIONAL LAW — Constitutional reference — "When" any question of interpretation or application of any Constitutional Law arises — Findings of fact to be made by court or tribunal referring question — Constitution, s. 18 (2).

PRACTICE AND PROCEDURE — Constitutional reference — Interpretation or application of any Constitutional Law — "When" question arises — Findings of fact to be made by court or tribunal referring question — Constitution, s. 18 (2).

Section 18 (2) of the Constitution, provides that where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of the proceedings) is appropriate.

Held

In matters referred under s. 18 all findings of fact necessary for the interpretation or application of a Constitutional Law must be made by the court or tribunal before making the reference; until this is done it cannot be said that any question relating to the interpretation or application of any provision of a Constitutional Law has arisen in any court or tribunal.

Cases Cited

S.C.R. No. 5 of 1982; Re petition of Hugo Berghauser (1982) P.N.G.L.R. 379.

Reference

This was a reference to the Supreme Court, purporting to be made under s. 18 (2) of the Constitution, of matters raised by virtue of ss. 57 and 155 (4).

Counsel

N. R. P. Kirrowom and S. J. Cox, to argue the affirmative case.

G. M. H. Delaney, to argue the negative case.

P. V. Young, for the State Solicitor.

Cur. adv. vult.

17 December 1982

KIDU CJ KAPI DCJ BREDMEYER J: This Reference was heard in July, 1982. We adjourned sine die to consider the questions referred to us by the National Court.

It is unfortunate that parties had to wait for four months for the decision of the court. However, we have been extremely busy this year because of extra work that we had not expected both in the National Court and in the Supreme Court.

The Reference, in our opinion, was premature because we hold the view that certain findings of fact should have been made by the National Court before the Reference was embarked upon.

There is no evidence or finding of fact as to what the detainees mentioned in the petition of the Public Solicitor wanted to see him about. The Public Solicitor should have had some or all of these detainees called under s. 21 of the Corrective Institutions Act 1957 to...