Special Reference pursuant to Constitution, Section 19 In the Matter of the Deed of Settlement of Proceeding Ws No 1315 Of 2002, the Land Act, the Wrongs (Miscellaneous Provisions) Act, the Public Finances (Management) Act 1995 and the Attorney-General Act 1989; Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Lenalia J, Mogish J, Cannings J, Gabi J
• Judgment Date: 26 October 2010
• Citation: (2010) SC1078
• Docket Number: SC REF NO 2 0F 2010
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1078

Full Title: SC REF NO 2 0F 2010; Special Reference pursuant to Constitution, Section 19 In the Matter of the Deed of Settlement of Proceeding Ws No 1315 Of 2002, the Land Act, the Wrongs (Miscellaneous Provisions) Act, the Public Finances (Management) Act 1995 and the Attorney-General Act 1989; Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078

Supreme Court: Sakora J, Lenalia J, Mogish J, Cannings J, Gabi J

Judgment Delivered: 26 October 2010

SC1078

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 2 0F 2010

SPECIAL REFERENCE

PURSUANT TO CONSTITUTION, SECTION 19

IN THE MATTER OF THE DEED OF SETTLEMENT OF PROCEEDING WS NO 1315 OF 2002,

THE LAND ACT, THE WRONGS (MISCELLANEOUS PROVISIONS) ACT, THE PUBLIC FINANCES (MANAGEMENT) ACT 1995 AND THE ATTORNEY-GENERAL ACT 1989

REFERENCE BY

THE ATTORNEY-GENERAL AND

PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE

Waigani: Sakora J, Lenalia J, Mogish J,

Cannings J, Gabi J

2010: 25, 26 October

CONSTITUTIONAL LAW – special references under Constitution, Section 19 – objection to competency – whether reference in a proper form – whether signed by a referring authority – whether questions posed relate to interpretation or application of a Constitutional Law – whether Reference raises issues of already determined in other proceedings – whether res judicata applies to Section 19 references – whether the Supreme Court can and should decline to entertain a Section 19 Reference if it is an abuse of process.

The Principal Legal Adviser filed a special reference to the Supreme Court under Section 19 of the Constitution seeking the Court’s opinion on the constitutionality of a statement of claim in proceedings commenced in the National Court and a deed of settlement of that claim. The reference was comprised of four questions. The plaintiff in the National Court proceedings, who had entered into the deed of settlement with the Solicitor-General, was granted leave to join the reference as an intervener. He objected to competency of the special reference on seven grounds. This is the Court’s ruling on the objection to competency.

Held:

(1) Ground 1 – that the reference was not in a proper form – was dismissed as the reference substantially complied with the Rules.

(2) Ground 2 – that the reference was not properly signed – was upheld as the person who signed the reference did not hold the office of Principal Legal Adviser on the date of filing.

(3) Ground 3 – that the questions raised do not relate to interpretation of Constitutional Laws – was dismissed as the questions sufficiently related to application of such Laws.

(4) Ground 4 – that the reference raises issues of fact already determined by the Supreme Court – was dismissed as there has been no prior determination of contested facts.

(5) Ground 5 – that the reference raises facts that have not been determined by the National Court – was upheld as the reference requires the Supreme Court to act as a tribunal of fact.

(6) Ground 6 – that the matter is res judicata as there is a previous Supreme Court decision on the issues – is dismissed as the issues have not been previously determined by the Supreme Court.

(7) Ground 7 – that the filing of the reference is an abuse of process – is upheld as the referrer had adequate opportunity to raise the constitutional issues he now seeks to agitate in previous proceedings, but failed to do so, and instead agreed to settle those proceedings.

(8) The reference was not properly before the court, the objection was upheld, and the reference was dismissed as incompetent.

Cases cited

The following cases are cited in the judgment:

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

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

Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628

Supreme Court Reference No 3 of 2000; Special Reference under Section 19 of the Constitution by the Governor-General re Sitting Days of the National Parliament (2002) SC722

Yer v Yama (2009) SC996

OBJECTION

This was an objection to competency of a Constitution, Section 19 reference.

Counsel

P Donigi, for the referrer

B Lomai, for the intervener

26 October, 2010

1. BY THE COURT: This is a ruling on an objection by the intervener, Peter Yama, to the competency of a special reference filed under Section 19 of the Constitution in the name of the Attorney-General and Principal Legal Adviser.

THE REFERENCE

2. It challenges the constitutional validity of a statement of claim in National Court proceedings Mr Yama instituted against the State in 2002, WS No 1315 of 2002, and a deed of settlement of that claim.

3. The deed gave effect to an out-of-court settlement of WS No 1315 of 2002. The gist of Mr Yama’s claim was that he had been granted a State Lease over land in Madang town in 1988 but traditional landowners had prevented him developing the land. He claimed that an officer of the State, the Secretary for Lands and Physical Planning, was responsible for what happened and that the State was vicariously liable. He sought damages of K38.69 million and settled the matter for K15.5 million by signing a deed of settlement. The then Solicitor-General, Mr Zachary Gelu, signed the deed on behalf of the State.

4. The constitutional challenge to the statement of claim and deed of settlement is made by putting four questions to the Supreme Court. The first three ask whether the statement of claim and deed of settlement are illegal and/or null and void for being contrary to the basic principles of government laid out in Parts II, III and VI of the Constitution and, in particular, for being contrary to specific provisions within those Parts, namely Sections 32, 41, 49, 53, 154-167, 197, 198 and 222(1). The fourth question asks simply ‘Does the Solicitor-General have the power under any law to create new rules of law?’

5. Though the reference seeks our opinion on the constitutionality of a claim filed, and a settlement of that claim executed, in 2002, it is necessary, to fully appreciate the circumstances in which the reference has been filed, to record events that occurred in 2008, 2009 and 2010.

6. By 2008 the State had not paid anything to Mr Yama pursuant to the deed of settlement. On 2 July 2008 he filed fresh proceedings, OS No 371 of 2008, seeking an order that the Secretary for Finance comply with the November 2002 deed of settlement and pay him K15.5 million. On the same day, he filed a notice of motion seeking an order by way of mandamus to compel the Secretary to release and clear a cheque for K7.75 million drawn in his name, forthwith. The matter came before Paliau AJ in the National Court on 3 July 2008 who on that day ordered immediate payment of K7.75 million to Mr Yama.

7. The Secretary for Finance and the State obtained a stay order against the National Court order of 3 July 2008 and then won an appeal, SCA No 53 of 2008, to the Supreme Court against it (Yer v Yama (2009) SC996). In its decision of 30 October 2009 the Supreme Court quashed the order of 3 July 2008 and remitted OS No 371 of 2008 to the National Court. We are very familiar with the background of this matter as three of the five Judges who presently constitute this court (Sakora J, Mogish J and Cannings J) constituted the Court in that case.

8. After being remitted to the National Court, OS No 371 of 2008 was settled, not out-of court, but by a National Court-sanctioned consent order, made and entered on 15 April 2010, which relevantly states:

1. The deed of settlement entered into between the Independent State of Papua New Guinea, as represented by Zachary Gelu, in his capacity as then Solicitor-General, and Peter Yama, dated the 28th November 2002 is a valid and legally binding document.

2. The parties shall forthwith give full effect and meaning to the purpose and intent of the deed of settlement executed between the Independent State of Papua New Guinea and Peter Yama, dated the 28th November 2002, in respect of the National Court proceedings in WS No 1315 of 2002, Peter Yama v The Independent State of Papua New Guinea and Pepi Kimas, Secretary for Lands & Physical Planning.

9. The special reference that is now before us was signed by Dr Lawrence Kalinoe, as Attorney-General and Principal Legal Adviser to the National Executive, on 7 May 2010, just 22 days after the above National Court order was made. Dr Kalinoe filed the reference on 21 May 2010, two weeks after signing it.

10. Mr Yama filed the notice of objection to competency on 27 May 2010.

SECTION 19 OF THE CONSTITUTION

11. Section 19 allows a limited number of public authorities, including the Law Officers of Papua New Guinea (they are, under Section 156(1) of the Constitution, the Principal Legal Adviser to the National Executive, the Public Prosecutor and the Public Solicitor), to refer questions relating to the interpretation or...