Titi Christian v Rabbie Namaliu

• Jurisdiction: Papua New Guinea
• Judge: Amet, CJ, Kapi DCJ, Los, Salika, Doherty, Andrew & Sevua JJ
• Judgment Date: 18 July 1996
• Court: Supreme Court
• Judgement Number: SC1583

Full : SC OS No 2 of 1995; Titi Christian v Rabbie Namaliu and the State (1996) SC1583

Supreme Court: Amet, CJ, Kapi DCJ, Los, Salika, Doherty, Andrew & Sevua JJ

Judgment Delivered: 18 July 1996

SC1583

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC OS No. 2 of 1995

TITI CHRISTIAN

V

RABBIE NAMALIU

AND

THE STATE

Waigani: Amet, CJ, Kapi DCJ,

Los, Salika, Doherty, Andrew & Sevua JJ

1996: 18 July

CONSTITUTION s18(1) APPLICATION – CONSTITUTION ss12(a),13,14 ,22, 23(2), Sch.1.1, 1.16, and 1.9.

RES JUDICATA, meaning of; PER IN CURIAM, meaning of; ISSUE ESTOPPEL, meaning of; PRIVITY OF INTEREST.

Facts

The Premier of a provincial government made application to the Supreme Court for declarations that repeal and replacement made by the Parliament to the Organic Law on Provincial and Local Level Government were invalid, principally on grounds that the passage of the amendments through Parliament had not observed procedural requirements of the Constitution, in particular s14 which required a proposed amendment to the Constitution to be distributed to Members of Parliament at least 1 month before the Bill is introduced into Parliament. The application was refused, further application was made which was found to be res judicata and the application incompetent for want of right to apply. The applicant in these proceedings, also the Premier of a provincial government has made application to the Supreme Court on a similar basis and for similar orders.

Held

1. where the issues have been fully litigated and definitely resolved by a court of competent jurisdiction, a different party in the subsequent litigation who was not a party in the earlier judgement is nevertheless estopped from pursuing the litigation because of the privity of interest between himself and the other party in the earlier case in which issues fell into judgement; if because of the privity of interest between himself and the other party he had been aware of the proceedings and would have been entitled to be joined in them but had decided without explanation not to be so joined, per Amet CJ, Salika J at [244] and Andrew J at [280] agreeing;

2. the parties have the same legal status and the orders sought would have the same legal effect, Doherty J at [272-273] Sevua J agreeing at [302 & 315] and, per Doherty J the issues have been litigated and cannot be re-opened, at [278], Sevua J agreeing at [301];

3. a prior judgement is per in curiam if the earlier decision was given in inadvertence of some well established principle, or some other decision of a Court apparently binding on the court giving such judgement, which if the court were adverted to, it would have affected the decision given, such that the Court would have decided otherwise than it did, if in fact the Court had applied the authority or principle, per Amet CJ, Salika J at [244] and Andrew J at [280] agreeing; Doherty J to the same effect at [263-274];

4. Care should be taken when questioning decisions of this Court in a short period of time when the later Court is constituted by different judges, because if this is encouraged then unsuccessful parties may challenge decisions of this Court before differently constituted benches in a short period of time, which could lead to uncertainty in the principles of law pronounced by the Supreme Court; per Amet CJ, Los J to the same effect at [224], Salika J at [244] and Andrew J at [280] agreeing with the Chief Justice;

5. The Supreme Court should only depart from an earlier statement it had made on the law:

a. In the most exceptional circumstances;

b. When the Chief Justice is presiding, unless the Chief Justice is being asked to reverse one of his own decisions;

c. after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so;

d. where the earlier decision can be said to be clearly and manifestly wrong, or in conflict with some other decision of the Court or well established principle, and that its maintenance is injurious to the public interest, per Amet CJ, Los J to the same effect at [224], and Salika J at [244] and Andrew J at [280] agreeing with the Chief Justice;

6. The application is an abuse of process per Amet CJ at [42], Andrew J at [280] and Sevua J at [301] agreeing with the Chief Justice

7. Application dismissed (Kapi DCJ, Los J and Salika J dissenting).

PNG Cases Cited

Albert Karo v Ombudsman Commission of Papua New Guinea, SCA 89 of 1995 [1995] PNGLR 547

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

Avia Aihi v The State [1981] PNGLR 81

Danny Sunnu v The State [1984] PNGLR 305

Derbyshire v Tongia [1984] PNGLR 148

Haiveta v Wingti (No. 3) [1994] PNGLR 197

Isidore Kaseng v. Rabbie Namaliu & The Independent State of Papua New Guinea (1995) SC 487; [1995] PNGLR 481

Jaha Development Corporation Pty Ltd v Gei Ilagi, Secretary of Department of Manus ( SC 485) [1995] PNGLR 76

John Nilkare v Ombudsman Commission (Unreported Judgment of the Supreme Court, (1996) SC 498; [1996] PGSC 2

Lash v PNG Law Society [1993] PNGLR 53

Mai Kuri v. The State [1991] PNGLR 311

Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 608

Papua New Guinea Law Society v McEniery [1993] PNGLR 76

Petition of M. T. Somare [1981] PNGLR 265

PNG v Colbert [1988] PNGLR 138

Public Prosecutor v John Aia of Mondo and Others [1978] PNGLR 224

Re Joseph Auna [1980] PNGLR 500

re Moresby North East Election Petition [1977] PNGLR 429

Re Opai Kunangel [1991] PNGLR 1

Richard Dennis Wallbank & Deanette Minifie v The State [1994] PNGLR 78

SC Reference No. 2 of 1992 [1992] PNGLR 336

SCR No. 2 of 1982 (No.1); Re Organic Law [1982] PNGLR 214.

SCR No. 2 of 1982: Re: Opai Kunangel Amin SC 231 of 6 August 1982 [1991] PNGLR 1

State v NTN Pty Ltd [1992] PNGLR 1

Overseas Cases Cited

Ashmore v British Coal Corporation [1992] AER 981, [1992] WLR 1437

Autodesk Inc v Dyason [No 2] (1992-1993) 176 CLR 300

Baker v Campbell [1983] 153 CLR 53

Blair v. Curran & Others [1939] 62 CLR 646

Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd; Alster Marine Insurance Co. Ltd v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyds Rep 132

Cain v Malone [1942] 66 CLR

Carl – Zeiss – Stiftung v Rayner and Keeler, Ltd and Others (No. 2) 1966 2 A.E.R. 536

Gleenson v J Wippell and Co Ltd [1977] 3 AER 54

Home Affairs v. Fisher [1980] AC 319

House of Spring Gardens Ltd and Others v Waite and Others [1992] AER 990

Huddersfield Police Authority v Watson, [1947] 2 AER 193

Hunter v Chief Constable of West Midlands [1981] 3 AER 727

John v Federal Commission [1988-89] 166 CLR 417

Lawlor v. Gray [1984] 3 ALL E R 345

Miliangos v George Frank (Textiles) Ltd [1976] AC 443

Morelle, Ltd v Wakeling, [1955] 1 AER 708, C.A

Nana Ofori Atta II v Nana Abu Bonsra II [1957] 3 A.E.R. 559

Queensland v Australia [1976-77] 139 CLR 585

Queensland v The Commonwealth of Australia and Others [1976-77] 139 CLR 585

Queensland v. The Commonwealth (1977) 139 CLR 585

Suresh Charan & Another v Syed M. Shah & Others, Civil Appeal No. 20 of 1994 (Fiji Court of Appeal))

Thomas Case [1949] 77 CLR 493

Western Australia v the Commonwealth [1975] 134 CLR 201

Young v Bristol Aeroplane Co Ltd [1944] KB 718

Statutes Cited

Constitution

Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995

Local-level Governments System (Interim and Transitional

Local-level Governments System (Interim and Transitional Arrangements) Law 1995

National Capital District (Amendment) Law 1995

Organic Law on Provincial Governments and Local-Level Governments 1995

Provincial Governments and Local-Level Governments (Consequential Amendment) Law 1995

Provincial Governments and Local-Level Governments (Consequential Amendment) Law 1995

Other references

Doctrine of Res-Judicata by Spencer Bower

Halsbury Laws of England 4th Ed

Stroud Words and Phrases Judicially Defined

Words and Phrases Legally Defined, by J B Saunders

18 July, 1996

1. AMET CJ: This is an application by Titi Christian the former Premier of the Morobe Provincial Government, pursuant to s 18(1) of the Constitution, seeking interpretation of several provisions of the Constitution and consequential declarations on the basis that two constitutional laws enacted by Parliament are unconstitutional and invalid.

CHRONOLOGY OF HISTORICAL FACTS

2. On the 27th of June 1995 the National Parliament enacted the following constitutional laws:

(a) Constitutional Amendment No. 16 – Provincial Governments and Local-Level Governments 1995. (Constitutional Amendment)

(b) Organic Law on Provincial Governments and Local-Level Governments 1995. (Organic Law).

3. The Constitutional Amendment repealed and replaced Part VIA of the Constitution that provided for Provincial Governments and Local-Level Governments. The Organic Law consequently also repleaded and replaced the Organic Law on Provincial Governments.

4. Part VI Division 3 of the Organic Law provided for Interim Savings and Transitional Arrangements. Section 122 there under abolished all previously constituted Provincial Governments under the repealed Organic Law....