In the matter of s225 of the Constitution and in the matter of continuous power failure in Madang; PNG Power Ltd v Ian Augerea as Registrar of the National Court (2013) SC1245

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Manuhu, Kawi, JJ
• Judgment Date: 07 August 2013
• Court: Supreme Court
• Citation: (2013) SC1245
• Docket Number: SCA 135 OF 2006
• Year: 2013
• Judgement Number: SC1245

Full Title: SCA 135 OF 2006; In the matter of s225 of the Constitution and in the matter of continuous power failure in Madang; PNG Power Ltd v Ian Augerea as Registrar of the National Court (2013) SC1245

Supreme Court: Kandakasi, Manuhu, Kawi, JJ

Judgment Delivered: 7 August 2013

SC1245

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 135 OF 2006

IN THE MATTER OF SECTION 225 OF THE CONSTITUTION

AND:

IN THE MATTER OF CONTINUOUS POWER FAILURE IN MADANG

AND:

PNG POWER LTD

Appellant/Applicant

AND:

IAN AUGEREA AS REGISTRAR OF THE NATIONAL COURT

Respondent

Waigani: Kandakasi, Manuhu, Kawi, JJ.

2010: 1st September

2013: 7th August

CONSTITUTIONAL LAW – Application of s.225 of the Constitution – Applicable in appropriate cases to ensure and enable a smooth functioning of “all constitutional institutions and that of all constitutional office-holders – All “governmental bodies” duty bound to discharge duty under s.225 – National Court can invoke s. 255 summarily in appropriate cases.

CONSTITUTIONAL LAW – WORDS & PHRASES - “governmental bodies” - Means the National Government; or a provincial government; or an arm, department, agency or instrumentality of the National Government or a provincial government; or a body set up by a statute or administrative act; for governmental or official purposes – Test to determine if - All entities established by the National Government or a provincial government or a local level government, with some form of government control and ownership and funding for an important public purpose or function is a governmental body despite having a private corporate status.

APPEALS & REVIEWS – When available? – Once a final decision has been arrived at by the court or lower tribunal and there is no opportunity to vary or set aside the decision or orders – No power in superior courts to interfere – Appeal against an order subject expressly to a variation, revocation or amendment amounts to an abuse of the process of the Supreme Court.

CONTEMPT OF COURT – Only unwritten offence for which a person can be charged and dealt with – Definition of - Types of contempt – Contempt in the face of the Court and contempt outside court’s witness – Contempt in the face of the court can be dealt with summarily and without any formal Court proceedings – Court to observe alleged contemnors right to be heard before judgment – Section 37 of the Constitution.

Papua New Guinea Cases Cited:

Philip Takori v Simon Yagari (2008) SC905.

Shelley v. PNG Aviation Services Pty. Limited [1979] PNGLR 119.

Boyepe Pere v. Emmanual Ningi (2003) SC711.

The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.

Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.

Telikom PNG Ltd v ICCC (2008) SC906.

The Attorney-General & Ors v. Dr Pirouz Hamadian – Rad (1999) SC 618.

Andrew Kwimberi of Paulus M Dowa Lawyers v The Independent State of Papua New Guinea (1998) SC545.

Metta v. State [1992] PNGLR 176.

Poka v. Papua New Guinea [1988] PNGLR 218.

SCR No. 3 of 1984; Ex-parte Callick and Koroma [1985] PNGLR 67.

Re Passingan Taru [1982] PNGLR 292.

Re Rooney (No. 2) [1979] PNGLR 448.

Re Paul Luben & David Poka (1987) N612.

Poka v. Papua New Guinea [1988] PNGLR 218.

The State v. Mark Taua:Re Awaita [1985] PNGLR 179.

The State v. Raymond Tupundu (1996)N1536.

The State v. Lucas Sosorua (1996) N1494.

The State v. Foxy Kia Kala; Corney Wiyam (1994) N1192.

Stephen John Rose v. Neville Devete (2007) N3327.

Ross Bishop & Ors v. Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533.

Public Prosecutor v. Nahau Rooney (No 2) [1979] PNGLR 448.

Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67.

Robinson v. The State [1986] PNGLR 307.

Leto Pup v Yangao Mara (Unreported, National Court, 3/4/1996).

The Papua New Guinea University of Technology v. National Academic Staff Association of the Papua New Guinea University of Technology (2007) N

Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435.

Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82.

Paias Wingti v. Kala Rawali (2010) N3959.

In the Matter of Re-Election of the Governor-General; Reference by the Morobe Provincial Executive (2010) SC1089.

Motu Koita Assembly v National Capital District Commission (2011) N4429.

PLAR No. 1 of 1980 [1980] PNGLR 326.

SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693.

The State v. Downer Constructions (PNG) Limited (2009) SC979.

Inakambi Singorom v. Klaut [1985] PNGLR 238.

Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853.

Norah Mairi v. Alkan Tololo, Secretary for Education [1976] PNGLR 125.

Jennifer Jean Scott v. Micheal George Scott (2009) N3881.

Internal Revenue Commission v. Dr Pirouz Hamidian-Rad (2002) SC692.

Misima Mines Ltd v. Collector of Customs (2003) N2497.

Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672.

National Capital District Commission v. Jim Reima, on behalf of himself & 120 Youth Groups of Moresby North East (2009) SC993.

Mt Hagen Urban Local Level Government v. National Housing Corporation (WS 1194 of 2002 unreported decision of 20th April 2004 - Mogish J.

Okam Sakarius v. Chris Tep (2003) N2355.

Albert Areng v. Gregory Babia (2005) N2895.

Naomi Vicki John v. National Housing Corp (2005) N2770.

Wamena Trading v. Civil Aviation Authority (2006) N3058.

Naomi Vicky John v. National Housing Corporation (2005) N2770.

Konze Kara v. Public Curator of PNG (2010) N4048.

Sengus Investment Ltd v National Broadcasting Corporation (2010) N4129.

Anave Megaraka Ona v. National Housing Corporation (2009) N3623.

Sarakuma Investment Ltd v Peter Merkendi (2004) N2629.

Overseas cases cited:

Attorney-General v. Times Newspapers [1974] AC 273.

Ambard v A-G for Trinidad & Tobago [1936] AC 322.

Balog v. Crown Court at St. Albans [1974] 3 ALL ER 283.

Weston v. Central Criminal Court's Administrator [1977] QB 32.

Counsel:

Mr. F. Waleiliai, for the Appellant

Mr. W. Hagaguno, for the Respondent

7th August, 2013

1. BY THE COURT: PNG Power Limited is appealing against a decision and orders of the National Court under s. 225 of the Constitution for a continuous supply of electricity supply by PNG Power Limited to the National Court in Madang when the Court sits. Those orders continue to apply until they are varied, revoked or amended by a Judge of the National Court.

Relevant Issues

2. PNG Power pleads 7 grounds for its appeal. But all of these can be classified into only two main grounds. These are: (1) whether PNG Power and its employees were accorded their right to be heard before the decision; and (2) whether the National Court correctly applied the provisions of s. 225 of the Constitution? There are a number of subsidiary issues such as the right to legal representation and service of the originating process. These can be mentioned where appropriate and determined in the course of answering these main issues.

Preliminary Issue

3. But before we get into the substantive issues, there is a preliminary point that can be readily and easily dealt with. This concern the nature of the orders appealed against. The orders read as follows:

“It is ordered that:

1. In the event of a planned or unplanned power outage, PNG Power Limited in Madang must maintain power supply to the National Court premises in Madang at all times.

2. This order applies when the National Court is sitting in Madang.

3. These orders shall remain in force until varied, revoked or amended by a Judge of the National Court.”

4. As can be easily noted, these orders are not final in nature. PNG Power’s right to go back to a Judge of the National Court for variation, revocation or amendments are expressly retained. The law in relation to appeals and reviews is trite both in our jurisdiction and overseas with judicial systems similar to ours. The appeal and or review processes are available only in cases where, a court of competent jurisdiction has come to a final decision and is not open for variation, revocation or amendment by the same Court.

See for authorities on point: Philip Takori v Simon Yagari (2008) SC905; Shelley v. PNG Aviation Services Pty. Limited [1979] PNGLR 119; Boyepe Pere v. Emmanual Ningi (2003) SC711; The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.

1 Where the Court or a lower tribunal is still seized of the matter or there is no serious legal impediment to the parties going before the lower Court or the tribunal, the higher court has not and cannot assume jurisdiction under...