SCA NO. 84 OF 2013; Application pursuant to Constitution s18(1); Application by Belden Norman Namah, MP Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigrations and National Executive Council and The Independent State of Papua New Guinea (2013) SC1287

• Jurisdiction: Papua New Guinea
• Judge: Kassman, J
• Judgment Date: 11 September 2013
• Court: Supreme Court
• Citation: (2013) SC1287
• Year: 2013
• Judgement Number: SC1287

Full Title: SCA NO. 84 OF 2013; Application pursuant to Constitution s18(1); Application by Belden Norman Namah, MP Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigrations and National Executive Council and The Independent State of Papua New Guinea (2013) SC1287

Supreme Court: Kassman, J

Judgment Delivered: 11 September 2013

SC1287

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 84 OF 2013

Application pursuant to Constitution Section 18(1)

APPLICATION BY

BELDEN NORMAN NAMAH, MP Leader of the Opposition

Applicant

AND

HON. RIMBINK PATO, Minister for Foreign Affairs & Immigrations

First Respondent

AND

NATIONAL EXECUTIVE COUNCIL

Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Kassman, J

2013: 10th & 11th September

SUPREME COURT – Practice and procedure - Application for leave to amend substantive Application – leave is sought if a party intervenes and if hearing of application has commenced – leave not required where no party intervenes - named respondents have intervened in this proceedings which requires the grant of leave to amend – a judge has power to grant leave – no objection by the respondents – leave to amend granted - Order 4 Rule 10 (a) & (b) of the Supreme Court Rules

Cases cited

Fred Yakasa v. Toami Kulunga & The State N4550

Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2773

Legislations cited:

Sections 18(1), 42 and 185 Constitution

Order 4 Rule 25(b) Supreme Court Rules

Order 4 Rules 16 and 17 Supreme Court Rules

Order 4 Rule 10(a) and (b) Supreme Court Rules

Order 4 Rule 12(a) Supreme Court Rules

Order 11 Rule 9 Supreme Court Rules

Counsel:

Mr Loani Henao, for the Applicant

Mr Peter Kuman, for the Respondents

DECISION

11th September, 2013

1. On 1 August 2013, the Leader of the Opposition in the Papua New Guinea National Parliament Hon. Belden Namah MP (“the Applicant”) filed an Application pursuant to Section 18(1) of the Constitution to interpret Section 42 of the Constitution in respect of matters arising under a Memorandum of Understanding between the Governments of Papua New Guinea and Australia signed on 8 September 2012 (“the first MOU”).

2. On 20 August 2013, this Court granted leave to intervene in the proceedings to the Hon. Rimbink Pato MP in his capacity as Minister for Foreign Affairs and Immigration, the National Executive Council and the State. They are now named in the proceedings as First, Second and Third Respondents respectively. There was no objection by the Applicant to the request for leave to intervene and in fact the Applicant supported the inclusion of the Respondents as parties in the proceedings.

3. When the Respondents were granted leave to intervene, this court also directed they file and serve by 27 August 2013 Statement of Response as required by Order 4 Rule 25(b) of the Supreme Court Rules stating whether they support or oppose the standing of the Applicant to make the application. The Supreme Court Registry refused attempts by the Respondents to file their Statement of Response a day after the deadline. With the consent of the Applicant, this Court granted leave to the Respondents to file and serve their Statement of Response on 10 September 2013.

4. In the Respondents’ Statement of Response, they say they oppose the substantive application. The Respondents state three reasons for their objection. Firstly, they say “the Applicant does not have standing to bring the application”. Secondly, they say “The application is an abuse of process and the proper process would be pursuant to Section 57 of the constitution and order 6 of the Supreme Court Rules 2012 for enforcement of constitutional rights.” Thirdly, the Respondents say “The facts pleaded in support of the application is incorrect and refers to an MOU dated 8 September 2012 which has been superseded by the Regional Resettlement Agreement signed on 19 July 2013 and an MOU signed on 6 August 2013 which makes the application incompetent as being based on incorrect facts.” I will return to this below.

5. It was agreed that pursuant to Order 4 Rules 16 and 17 of the Supreme Court Rules, the Supreme Court must first determine the question of standing of the Applicant before the constitutional reference is set for hearing. This has yet to take place. It was also agreed the issue of standing must be determined by the Supreme Court and not by the court sitting as a single judge of the Supreme Court.

6. The Applicant now applies for leave to amend his substantive Application. The application seeking leave to amend was filed on 5 September 2013 and is made pursuant to Order 4 Rule 10(b) of the Supreme Court Rules which provides the applicant may amend the application, with the leave of the court or a judge, if a party has intervened. By Rule 10(a), leave is not required where no party has intervened. However, where the hearing of the application has commenced and before the court has given its opinion, leave is required.

7. In this proceeding now, the three named Respondents have intervened so the Applicant may amend the application only with leave of the court or a judge. Sitting as a single judge of the Supreme Court, I find that I have the power to grant leave to amend. There was no objection to this interpretation by any of the parties.

8. The affidavit filed in support of the application is sworn by Mr Loani Henao, the lawyer for the Applicant.

9. The Applicant says that after commencement of these proceedings on 1 August 2013, the first MOU was superseded by a Memorandum of Understanding between the Governments of Australia and Papua New Guinea signed respectively on 5 and 6 September 2012 (“the second MOU”). For this reason, the Applicant seeks leave of the court to amend the Application to reflect or refer to and seek interpretation of the second MOU in addition to that of the first MOU.

10. In Fred Yakasa v. Toami Kulunga & The State N4550, Justice Davani adopted a common law principle that an amendment to a pleading will be allowed where the amendment enables the court to determine the real questions in controversy between the parties. In that matter, the National Court was considering an application to amend an originating summons. The power to amend was found under the National Court Rules although it was not specifically stated in the judgment.

11. In the Yakasa matter, the application to amend was opposed on the basis the proposed amendment raised a new issue unrelated to the proceeding on foot. It was argued the proposed amendment did not correct any defect or error as was done in Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2773. In The Yakasa matter, the National Court found the amendments sought would determine the real questions in controversy between the parties as it provided the foundation and the basis on which the court then issued directions to take the matter forward. Relying on the amended originating summons, the National Court stated a case and points of law for determination by the Supreme Court.

12. Mr Henao for the Applicant did not refer to any judgment of the Supreme Court on point or applying Order 4 Rule 10(a) or (b) of the Supreme Court Rules and neither did Mr Kuman for the Respondents. It was agreed these were among a number of changes recently made to the Supreme Court Rules but the common law principles discussed above in the Yakasa matter were appropriate and applicable. I find this to be the correct approach.

13. The Respondents agreed this court has the discretion to give leave to amend the Application but they opposed the application for the grant of leave to amend on the basis that the form of the application for leave to amend is incompetent.

14. The Respondents say the form of the application for leave to amend filed by the Applicant on 5 September 2013 does not comply with the requirements of Order 4 Rule 12(a) of the Supreme Court Rules. This rule provides “notice of amendment or an application for leave shall be in accordance with Form 6 or 14 whichever is applicable”. It was agreed Form 6 was not applicable. Form 14 appears to be applicable as it is stated at the top of the form as being applicable to “Order 4 Rule 12” but it is titled “GENERAL FORM NOTICE OF AMENDMENT OR WITHDRAWAL OF REFERENCE”. This suggests the form is used once leave to amend is granted. This appears to be so when reading the prescribed wording in the body of the form which states on the first line “Pursuant to leave granted by ….” and on the second line “The Amendment is as follows …”

15. It was agreed the wording of the prescribed Form 14 both in its title and the wording in the body of the form was applicable where leave to amend was granted and that form would be completed and filed to give notice of the amendment or withdrawal, whichever was applicable, following the grant of leave by the court. Here, leave to amend has yet to be granted.

16. In response, Mr Henao for the Applicant argued the application for leave to amend filed on 5 September 2013 was prepared following Form 4 of the Supreme Court Rules and that was in...