Hon Bryan Kramer MP v Hon Peter O’Neill MP (2020) SC2004

• Jurisdiction: Papua New Guinea
• Judge: Batari J, Mogish J, Cannings J, Manuhu J, Makail J
• Judgment Date: 28 September 2020
• Court: Supreme Court
• Citation: (2020) SC2004
• Docket Number: SC REV NO 4 OF 2020
• Year: 2020
• Judgement Number: SC2004

Full Title: SC REV NO 4 OF 2020; Hon Bryan Kramer MP v Hon Peter O’Neill MP (2020) SC2004

Supreme Court: Batari J, Mogish J, Cannings J, Manuhu J, Makail J

Judgment Delivered: 28 September 2020

SC2004

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 4 OF 2020

HON BRYAN KRAMER MP

Applicant

V

HON PETER O’NEILL MP

Respondent

Waigani: Batari J, Mogish J,

Cannings J, Manuhu J, Makail J

2020: 30th June, 28th September

JUDGMENTS AND ORDERS – interlocutory declarations and orders –whether National Court can make declarations and orders substantive in nature prior to conclusion of proceedings – whether declarations and orders must have connection to cause of action– whether Constitution, s 155(4) authorises orders that do not relate to primary rights of parties.

EVIDENCE – whether National Court can make substantive declarations and orders without conducting a formal hearing on evidence.

CONSTITUTIONAL LAW – human rights – whether order of National Court controlling the use of social media by the Minister for Police and his followers and all members of the public was an infringement of the right to freedom of expression, Constitution, s 46.

PARLIAMENT – privileges of members of the National Parliament – freedom of speech, debate and proceedings – whether the National Court can summon a member of the Parliament to appear before the Court to show cause why the member ought not be dealt with for contempt of court for statements reportedly made by the member on the floor of Parliament – Constitution, s 115.

During the course of defamation proceedings in the National Court, the primary Judge made an order, prior to commencement of the trial, on the own motion of the Court, which declared the nature and extent of the defendant’s powers and functions as Minister for Police. The order also issued injunctions that restrained the defendant and other persons in relation to the discharge of those powers and functions, and summoned a non-party, a member of the Parliament, to appear before the Court to show cause why he should not be charged with contempt of court for statements he had made in the Parliament about the defamation proceedings. The defendant was aggrieved by the order and was granted leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of the decision of the National Court to make the order. The defendant was the applicant in the Supreme Court review. The plaintiff in the National Court became respondent to the application. The applicant relied on nine grounds of review, arguing that the primary judge erred in law, in that: (1) his Honour was (a) functus officio at the relevant time, and (b) made substantive orders, without a proper hearing, prior to commencement of the trial; (2) powers were exercised under s 155(4) of the Constitution without making a determination as to the primary rights of the parties; (3) the order had no foundation in the pleadings and was not related to the cause of action before the Court; (4) the order was made without consideration of the principles governing the granting of interim injunctions; (5) in restraining the applicant in the discharge of his powers and functions as Minister for Police, the primary Judge misinterpreted the leading case, SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178; (6)the order was based on a finding of fact that the applicant had interfered in police operations, which was contrary to the evidence and made without a proper hearing; (7) the particular order that restrained the applicant and others from using social media to comment on the conduct of police investigations of particular complaints was made in breach of the right of the applicant and members of the public to freedom of expression under s 46 of the Constitution; (8) the particular order that restrained the applicant and others from publishing defamatory comments regarding other persons was substantive in nature and prejudged issues of fact and law that could only be properly determined at the trial; and (9) the particular order that summoned a member of Parliament to appear before the Court was made contrary to s 115 of the Constitution, which confers freedom of speech in the Parliament, which cannot be questioned in any court.

Held:

(1) The primary judge was not functus officio. However, there was an error of law by making orders of a substantive nature, on the own motion of the Court, prior to trial. Ground of review 1(a) dismissed. Ground 1(b) upheld.

(2) Orders should only be made pursuant to s 155(4) of the Constitution that follow determination of primary rights and obligations, and here there was no such determination. Ground 2 upheld.

(3) The order had no foundation in the pleadings and there was no direct connection between the cause of action and the order. The question of whether the applicant had acted unlawfully by involving himself in police operations could only be properly heard and determined in separate proceedings. That question was irrelevant to the proceedings before the National Court and ought not to have been made the subject of any orders. Ground 3 upheld.

(4) The order was not made without consideration of the principles governing granting of injunctions. Ground 4 dismissed.

(5) The question of whether the primary judge erred in the interpretation of the principles in Bouraga was not properly before the Supreme Court and it was unnecessary to express any opinion on the competing contentions of the parties. Ground 5 dismissed.

(6) The primary judge erred by making substantial findings of fact, adverse to the applicant, without a proper hearing and without explaining the details of such findings. Ground 6 upheld.

(7) The order that restrained the applicant and others from using social media to comment on police investigations was substantive in nature, unconnected to the cause of action before the National Court, made without a proper hearing, tended to interfere with the rights of all persons in PNG to freedom of expression and of such broad scope and application that it amounted to judicial legislation, made without regard to or compliance with s 46 of the Constitution. Ground 7 upheld.

(8) The order that restrained the applicant and others from publishing defamatory comments regarding other persons was substantive in nature and of such broad scope and application that it amounted to judicial legislation. Ground 8 upheld.

(9) The particular order that summoned a member of Parliament to appear before the Court was made contrary to s 115 of the Constitution, which confers freedom of speech in the Parliament, which cannot be questioned in any court. Ground 9 upheld.

(10) In making the subject order the primary Judge erred in law. It was in the interests of justice, there were cogent and convincing reasons and there were exceptional circumstances warranting a review of the order of the National Court. The order was quashed. The National Court proceedings shall continue. The respondent was ordered to pay the applicant’s costs.

Cases Cited:

Papua New Guinea Cases

The following cases are cited in the judgment:

Avia Aihi v The State (No 1) [1981] PNGLR 81

Avia Aihi v The State (No 2) [1982] PNGLR 44

Bonga v Sheehan [1997] PNGLR 452

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132

Fairweather v Singirok [2013] 2 PNGLR 95

John Momis v Attorney-General [2000] PNGLR 109

Kalinoe v Paraka (2014) SC1366

Kramer v O’Neill (2020) SC1940

NCDC v Yama Security Services (2003) SC707

Public Employees Association v Public Services Commission [1988-89] PNGLR 585

Re Application by Herman Joseph Leahy (2006) SC855

SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178

SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319

Sir Julius Chan v Ombudsman Commission [1999] PNGLR 240

South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761

Southern Highlands Provincial Government v Tepi (2020) SC1962

Yer v Yama (2009) SC996

Yetuin v Dominion Information Systems Ltd (2018) SC1729

Overseas Cases

Demetrio v Independent Police Complaints Commission [2015] EWHC 593

APPLICATION

This was an application for review under s 155(2)(b) of the Constitution of an order of the National Court made, prior to trial, in defamation proceedings.

Counsel

S G Dewe & B Kumo, for the Applicant

D P Kipa, for the Respondent

28th September, 2020

1. BY THE COURT: The applicant, Hon Bryan Kramer MP, applies for review of an order of the National Court, constituted by Kandakasi DCJ, made prior to trial in defamation proceedings against Mr Kramer commenced by the respondent, Hon Peter O’Neill MP.

2. The order, made on 5 March 2020 on the own motion of the primary Judge, declared the nature and extent of Mr Kramer’s powers and functions as Minister for Police. His Honour also issued injunctions that restrained Mr Kramer and other persons in the discharge of those powers and functions, and summoned a non-party, a member of the Parliament, to appear before the Court to show...