Review Pursuant to the National Constitution; In the Matter of the Organic Law on the Nomination of Governor–General and In the Matter of an Application to Recall and Review a Supreme Court Decision in Relation to the Nomination of Governor General of Papua New Guinea; Application by Sir Pato Kakaraya; Sir Pato Kakaraya v Sir Albert Kipalan, Ila Geno, Chief Ombudsman, The National Parliament, Jeffrey Nape—Acting Speaker of National Parliament, Ano Pala, Clerk of National Parliament, The National Executive Council and The Rt Hon Sir Michael Somare, Prime Minister (2004) SC752

• Jurisdiction: Papua New Guinea
• Date: 18 June 2004
• Citation: (2004) SC752
• Docket Number: SC Review No 23 of 2004
• Court: Supreme Court
• Year: 2004

Full Title: SC Review No 23 of 2004; Review Pursuant to the National Constitution; In the Matter of the Organic Law on the Nomination of Governor–General and In the Matter of an Application to Recall and Review a Supreme Court Decision in Relation to the Nomination of Governor General of Papua New Guinea; Application by Sir Pato Kakaraya; Sir Pato Kakaraya v Sir Albert Kipalan, Ila Geno, Chief Ombudsman, The National Parliament, Jeffrey Nape—Acting Speaker of National Parliament, Ano Pala, Clerk of National Parliament, The National Executive Council and The Rt Hon Sir Michael Somare, Prime Minister (2004) SC752

Supreme Court: Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sawong J

Judgment Delivered: 18 June 2004

1 Supreme Court—Jurisdiction to reopen—Application under slip–rule principle—Decision in an action brought under Constitution, s18(1) (Original jurisdiction)—Misapprehension of fact, mixed fact and law or law alone—Process of electing National Parliament's nominee to position of Governor–General—No misapprehension established—Application an abuse of process—Application dismissed with costs.

2 Charles Maino v Moi Avei [2000] PNGLR 404, Avia Aihi v The State (No 1) [1981] PNGLR 81, Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, Sir Julius Chan v Ephraim Apelis (No 2) [1999] PNGLR 187, Haiveta v Wingti (No 1) [1994] PNGLR 160, Haiveta v Wingti (No 3) [1994] PNGLR 197, SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214,Henzy Yakham v Stuart Merriam [1998] PNGLR 555, David Lambu v Peter Ipatas (No 4) [1999] PNGLR 634, Don Pomb Pullie Polye v Jimson Sauk Papaki (1999) SC643, SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170, Richard Dennis Wallbank and Jeannette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78, Re Election of Governor–General (No 1) (2003) SC721, SCR No 3 of 1999 (No 2) (Unreported and Unnumbered Judgment of the Supreme Court dated 23 February 2001 or 23 July 2001), SCR 3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722 referred to

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By the Court: This is an application to the Supreme Court by Sir Pato Kakaraya ("the Applicant") for the Court to reopen and review this Court's decision delivered on 31 March 2004 in SC 3 of 2003, (Re Election of Governor–General (No 2) (2004) SC728). The application is made in the nature of what is commonly referred to in our jurisdiction as a "slip–rule application."

The orders sought to be reviewed are as follows:

1. The decision of the National Parliament made on 4 December 2003 that Sir Pato Kakaraya is the Parliament's nominee for appointment as the next Governor–General of Papua New Guinea is declared null and void ab initio.

2. Consequently, the National Executive Council's advice given to the Queen and Head of State, Her Majesty Queen Elizabeth the Second under s88(1) of the Constitution, on 16 December 2003 and the appointment by Her Majesty of Sir Pato Kakaraya as the Governor–General, are both declared null and void ab initio.

3. The National Executive Council advise Her Majesty, the Queen and Head of State that as a result of this decision, there is a vacancy in the officer of Governor–General.

4. The Acting Speaker of the Parliament, advice the Parliament in accordance with s3 of the Organic Law on the Nomination of the Governor–General that as a result of this decision, there is a vacancy in the office of the Governor–General.

5. The Clerk of the Parliament Mr Ano Pala and the Speaker of the Parliament, the Honourable Bill Skate shall conduct and supervise a new election for the Parliament's nominee for the office of the Governor–General in accordance with the Constitution and the Organic Law on the Nomination of the Governor–General, as interpreted by this Court.

6. . . . "

Facts

The background facts to this application are that on 4 December 2003, the National Parliament voted on three candidates and elected the Applicant as its nominee for the post of Governor–General of Papua New Guinea. On 16 December 2003, the Queen and Head of State executed an instrument of appointment, appointing the Applicant as Governor–General, with effect from midnight 19 November 2003. On the next day, Sir Albert Kipalan (the First Respondent) filed proceedings in the Supreme Court in SC OS No 3 of 2003 challenging the election of the Applicant as Governor–General. On 31 March 2004, the Supreme Court handed down its decision declaring that the Parliament's decision to nominate the Applicant as Governor–General and his subsequent appointment as such, was null and void (Re Election of Governor–General (No 1) (2003) SC721). The Court also made some consequential orders and for a fresh election to be conducted for the post of Governor–General.

On Wednesday 21 April 2004, the Applicant filed a Notice of Motion seeking to reopen and review the Supreme Court judgment of 31 March 2004. That matter came up before Sakora J as a single judge of the Supreme Court. His Honour heard the application and on 26 April 2004 he dismissed the application as being mischievous and without any merit. This decision is not the subject of review before us.

On Tuesday 27 April 2004, the Parliament was recalled by the Acting Speaker and proposals for nominations were called for. The Applicant was one of the persons proposed. The Clerk of the Parliament was to conduct a ballot on 11 May 2004.

On 29 April 2004, the Applicant filed the present application. On Tuesday 11 May 2004 the National Parliament met to elect its nominee but the Acting Speaker notified Parliament that all proposals had been rejected by the Clerk. Two days later on 13 May 2004, the Acting Speaker recalled the Parliament and it met and fresh proposals were called for. The closing date for the proposals was set for 20 May 2004 and the election was set for 27 May 2004.

On 13 May 2004, the matter came before Kapi CJ for directions hearing. Pursuant to directions issued, the Applicant filed an Amended Application on 19 May 2004.

The Applicant did not seek an order restraining the Parliament from proceeding to elect its nominee. The Applicant was proposed as a candidate in this election. It is agreed between the parties before us that the Applicant through his counsel indicated to the Chief Justice during the directions hearing that if his client won this election, he would not pursue the present application. On 27 May 2004 the Parliament met to nominate the next Governor–General. Sir Paulias Matane was elected as the Parliament's nominee. The Applicant was not a successful candidate. There are no proceedings filed in Court to contest this nomination.

Soon after the Parliament decided to nominate Sir Paulius Matane to be the Parliament's nominee for the position of Governor–General, the Applicant returned to this Court to prosecute the present proceedings.

The Supreme Court's decision dated 31 March 2004.

On 31 March 2004 this Court in a unanimous decision, declared, amongst other things that the Parliament's election of the Applicant was invalid and that his subsequent appointment by the Queen and Head of State was null and void. The reasoning of the Court may be summarised as follows:

The Supreme Court held that the Applicant's Proposal Form was defective, in that it was not in the prescribed form as required under the Organic Law on the Nomination of the Governor–General ("Organic Law"). When the Proposal Form was handed to the Clerk, he failed to reject it and in doing so allowed the Applicant's defective form to progress to the floor of Parliament.

In its decision the Court rejected the Applicant's arguments on the interpretation of s4 of the Organic Law on the Nomination of the Governor–General. The Court found that the ballot that was conducted was in breach of s9(5) of the Organic Law on the Nomination of the Governor–General. The Court also considered s86(4) of the Constitution. It held that provision did not make the decision of the Queen and Head of State, to appoint the Applicant the Governor–General, non–justiciable. However the nomination of the Applicant was done in a manner contrary to the provision of the Constitution and the Organic Law on the Nomination of the Governor–General. The Court in its decision also considered and rejected the Applicant's submissions regarding the application of Sch2.11 of the Constitution.

We now turn to the grounds for review in this application.

Grounds for review

The Applicant has raised thirty–three (33) grounds on which, he submits, the Court's judgment of 31 March 2004 should be re–opened and reviewed. It is not necessary to set out each of those grounds separately. They fall into two broad categories,—namely errors of fact and mixed fact and law or errors of law. Each of the grounds will be summarised...