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Christian v Namaliu [1996] PGSC 34; SC1583 (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:
    1. In the most exceptional circumstances;
    2. When the Chief Justice is presiding, unless the Chief Justice is being asked to reverse one of his own decisions;
    1. 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;
    1. 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] [1993] HCA 6; (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 [1979] UKPC 21; [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] UKHL 13; [1981] 3 AER 727
John v Federal Commission [1989] HCA 5; [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] EWCA Civ 1; [1955] 1 AER 708, C.A
Nana Ofori Atta II v Nana Abu Bonsra II [1957] 3 A.E.R. 559
Queensland v Australia [1977] HCA 60; [1976-77] 139 CLR 585
Queensland v The Commonwealth of Australia and Others [1977] HCA 60; [1976-77] 139 CLR 585
Queensland v. The Commonwealth [1977] HCA 60; (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] HCA 4; [1949] 77 CLR 493
Western Australia v the Commonwealth [1975] HCA 46; [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. Section123 established in each province an Interim Provincial Government, the composition of which was established by s 125 to include: (a) all members of the National Parliament from that province; and (b) the person occupying the office of Premier in the previous Provincial Government. Section 125(5) provided that the Premier of the previous Provincial Government shall become the interim Deputy Governor of the Province and the interim Deputy Chairman of the Interim Provincial executive Council unless he decides not to be a member within 21 days from the date of the establishment of the Interim Provincial Assembly.


5. The constitutional laws were certified by the Speaker of the National Parliament on the 19th July 1995. On 11th July 1995 Isidore Kaseng, the then premier of the Western Province filed application pursuant to s 18(1) of the Constitution seeking the following declarations:


(1) that the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 enacted by the National Parliament of Papua New Guinea on the 27th June 1995 is unconstitutional and null and void;

(2) that the Organic Law on Provincial Governments and Local-Level Governments 1995 enacted by the National Parliament of Papua New Guinea on the 27th June 1995 is unconstitutional and null and void;

(3) that the other laws purportedly passed under the Organic Law on Provincial Governments and Local-Level Governments 1995 be declared invalid. These include:

6. These declarations were sought on the following grounds:


(1) That the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 was not passed in accordance with the requirements of the provisions of s 14 of the Constitution of Papua New Guinea in that:

(2) That the Organic Law on Provincial Governments and Local-Level Governments Law 1995 was not passed and on enacted in accordance with the requirement of ss12 and 14 of the Constitution of Papua New Guinea in that:

7. That application was ruled upon by this Court on 20th September 1995 in Unreported Supreme Court Judgement No. SC 487. The Court by a majority of three to two ruled that the amendments to the Constitution and the Organic Law on Provincial Governments were validly enacted and were not unconstitutional. By a majority of four to one the Court also held that the requirement by s 14 of the Constitution, that circulation of proposed amendments to the Constitution and the Organic Laws to members of the Parliament by made not less than one month prior to their introduction into the Parliament is mandatory, but s 14 was not fully in effect as the Standing Orders for the manner of circulation were in not in existence as required and that in these circumstances s 14 could only be directory. There had been sufficient compliance with s 14 could only be directory. There had been sufficient compliance with s 14 in these circumstances although circulation had been less than one month. Thirdly, the Court by a majority of four to one also ruled that the constitutional requirements that there be opportunity to debate a proposed law to alter the Constitution and an Organic Law (s 14(2)) had been complied with the amendments were not unconstitutional. And finally the Court by a majority of three to two held that the Constitutional requirement by s 12(1)(a) that an Organic Law may be made by the Parliament that is for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by the Constitution had been passed which had expressly authorised the Organic Law at the time that it was made.


8. The unsuccessful applicant Isidore Kaseng, not being satisfied with the Supreme Court’s ruling filed another application purportedly pursuant to Schedule 2.9(1) of the Constitution seeking a review by the Supreme Court for that earlier ruling. The basis for the second application was pleaded in the following terms:


(1) Such a small split decision of the Supreme Court by three to two still leaves the interpretation ascribed to the Constitution by the Court in uncertainty and doubt. As such, the applicant seeks a differently constituted Supreme Court to review the decision to have the issues raised conclusively determined and put to rest.

(2) The applicant, Isidore Kaseng seeks to have the decision reviewed, and possibly overruled on the basis that the majority decision was clearly wrong in law.

(3) The following three questions were posed by the application:

9. The Court dismissed the application on the basis that the issues raised were the same in form and substance and involved the same parties as those in unreported Supreme Court judgment No. SC 487 of 20th September 1995.


10. On 5th December 1995 Titi Christian, the former Premier of the Morobe Provincial Government filed application OS No. 2 of 1995 also pursuant to 18(1) of the Constitution seeking the following declarations:


(1) that he is still the Premier of the Morobe Provincial Government;

(2) that the Morobe Tutumang is still the legitimate Government of the people of Morobe Province.

(3) That all the elected members in the Morobe Tutumang are all legally in office.

11. It was pleaded that these declarations were sought on the basis that the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 and Organic Law on (Provincial Governments and Local-Level Governments) 1995 as enacted by the National Parliament on the 27th June 1995 are invalid and of no effect on the basis that:


(i) they have been enacted contrary to the mandatory requirements of s 14(2) of the Constitution in that the proposed Constitutional Laws were circulated to members of Parliament in 21 days, which was less than the minimum period of one month circulation before formal introduction of the laws to the Parliament as required by s 14(2) of the Constitution.

(ii) that the proposed Organic Law ‘was passed or taken through under s 14 of the Constitution without there being in force a proper constitutional provision authorising the Organic Law contrary to the mandatory requirement of s 12(1)(a) of the Constitution.

12. It becomes immediately evident that the basis upon which these declarations are sought raised similar issues that were raised and determined in the application of Isidore Kaseng in SC 487. This was in fact a primary acknowledgment on the part of the application Titi Christian. It was submitted that the majority decision in Kaseng’s case was given per in curiam, and that in itself is sufficient basis for this application. It was submitted that the decision was per in curiam in that it was clearly wrong in law as a result of inadvertence and oversight in that it was given without reference to other relevant sections of the Constitution, in particular ss 13, 22, 23(2), Schs. 1.1, 1.16, and 1.9. It was contended that had the Court adverted its mind to these provisions, the decision of the Court could have been different.


13. For these reasons, it was submitted that the Court would be invited to review and overrule its earlier decision.


14. From this factual historical background of this application and these primary submissions, several preliminary issues are apparent and arise for consideration before the substantive issues that were addressed in Isidore Kaseng’s case can be addressed again together with submissions on the additional provisions that are now being referred to in this application.


15. The first preliminary issue which is apparent in this application is whether the applicant is prevented by the principles of res judicata and or issue estoppel, from making this application, as the issues raised in this application are principally the same as those raised and determined in Isidore Kaseng’s case.


16. The applicant in his submission acknowledged that these were the preliminary issues and addressed them. It was submitted that these principles do not apply it this case, because the issues of res judicata and issue estoppel applied between the same parties, in the subsequent proceedings as were in the earlier proceedings. It was submitted therefore that it was no bar to different parties in the subsequent proceedings. It was submitted therefore that it was no bar to different parties in the subsequent proceedings from raising the same cause of action or raising the same issues as were raised in the earlier proceedings. It was contended that in such a subsequent proceedings involving different parties the relevant issues are not of res judicata or issue estoppel but the principles of the doctrine of stare decisis, that is whether the earlier case should be applied or followed in the subsequent case.


17. The First Respondent the Speaker of the National Parliament made no specific submissions in relation to this preliminary issue. The Second Respondent, the State, did submit that the principles of res judicata estopped the applicant from proceeding with this application as it involved the same cause of action or raising the same issues as were raised in the earlier proceedings. It was contended that in such a subsequent proceedings involving different parties the relevant issues are not of res judicata or issue estoppel but the principles of the doctrine of stare decisis, that is whether the earlier case should be applied or followed in the subsequent case.


18. The First Respondent the Speaker of the National Parliament made no specific submissions in relation to this preliminary issue. The Second Respondent, the State, did submit that the principles of res judicata estopped the applicant from proceeding with this application as it involved the same cause of action as was determined in the Isidore Kaseng’s case.


19. I consider that the principles of res judicata and estoppel are relevant to the circumstances of this application. They raise fundamental issues as to whether same issues and or cause of action in substance can be re-litigated by a party who may not have been specifically a party in the earlier proceeding, but one who had sufficient interest in the outcome of an earlier proceeding. Can such a party raise the same legal or constitutional issues, although the primary cause of action might appear to be different? I propose therefore to deal with these as preliminary issues going to the jurisdiction of this court.


20. It is useful therefore to re-state as succinctly as possible the basic principle of the doctrine of res judicata and issue estoppel.


21. In the text the Doctrine of Res-Judicata by Spencer Bower and Turner, the following introductory statement succinctly summarise the effect of res judicata:


“A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause of matter in litigation, and over the parties thereto, disposes once and for all the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is two-fold.


In the first place, the judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgement, decree or order necessarily established as the legal foundation or justification of the conclusion reached by the court.


In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgement which is pronounced. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.


22. Also in Halsbury Laws of England 4th Ed Re-issue at para 973 the following statement is made:


“The most usual manner in which questions of estoppel has arisen on judgements inter partes has been where the defendant in an action raised a defence of res judicata, which he could do where former proceedings for the same cause of action by the same plaintiff had resulted in the defendant’s favour, by pleading the former judgment by way of estoppel. In order to support that defence it was necessary to show that:


(1) the subject matter in dispute was the same, namely that everything that was in controversy in the second suit as the foundation of the claim for relief was also in controversy or open to controversy in the first suit;

(2) it came in question before a court of competent jurisdiction; and

(3) the result was conclusive so as to bind every other court.”

23. At para 977 the following statement is made on issue estoppel:


“An estoppel which has come to be known as “issue estoppel” may arise where a plea of res judicata made not be established because the causes of action are not the same.


A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is on eof fact or one of law, or one of mixed fact and law. The conditions for the application of the doctrine have been stated as being that:


(1) the same question was decided in both proceedings;
(2) the judicial decision said to create the estoppel was final; and

(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raise dor their privies.

The scope of the doctrine depends on whether a court taken a narrow or wide view of the extent of the issue determined in the earlier case. Where a cause of action is held not to fall within the scope of issue estoppel, it may nonetheless be struck out as vexatious or frivolous; to relitigate a question which is substance has already been determined is an abuse of process.”


24. At para 990 on Parties and Privies, the following statement of principles is again enumerated:


“A judgement in personam or inter partes raises an estoppel only against the parties to the proceedings in which it is given and their privies, for example those claiming or deriving title under them. Privies are of three classes:


(1) privies in blood, for example, ancestor and heir;
(2) privies in law, for heir-at-law and tenant by the curtesy or in dower, and others that came in by act in law, for example testator and executor, intestate and administrator, bankrupt and trustee in bankruptcy;
(3) privies in estate or interest, for example testator and devisee, vendor and purchaser, landlord and tenant a husband and his wife claiming under his title etc.

It is not easy to detect from authorities what amounts to a sufficient interest. The question seems to be determined by an examination of the factual identity of interests of the parties and the fairness of binding them by a decision in which they were not represented.”


APPLICATION OF PRINCIPLES OF RES JUDICATA AND ISSUE ESTOPPEL


25. The first observation to make is that the parties in this case are not the same. The applicant is different. The legal issues however are the same that is the constitutional validity of the Constitutional Amendment and the Organic Law. The decision is Isidore Kaseng was final. It is suggested that the cause of action in this case and the applicant is different and so he is entitled to have his rights determined by this court.


26. It is true that the declarations sought by Titi Christian in this application are different to the Isidore Kaseng application, but Isidore Kaseng could also have sought the same declarations that this applicant Titi Christian now seeks. The fundamental primary issues of constitutional law remain the same as those in Isidore Kaseng’s case, in that the success of these applications depend upon the successful challenge to the validity of the Constitutional Amendment and the Organic Law. In reality and in substance the cause of action really are the same as they were in the Isidore Kaseng case. The only real difference is that the applicant in this case is different.


27. I consider, however, that the fact that the applicant party in this application is different to the applicant Isidore Kaseng in OS No. 1 of 1995 is not altogether fatal or determinative of the application of the principles of issues estoppel.


PRIVITY OF INTEREST


28. I consider that, in the circumstances of this application and the Isidore Kaseng application and the legislations in question and their applications, there is sufficient privity of interest between this applicant Titi Christian and applicant Isidore Kaseng in OS No. 1 of 1995 for this applicant to be estopped by res judicata.


29. As stated in Halsbury above, it is not easy to detect from English authorities what amounts to a sufficient interest but the issue is capable of being determined by an examination of the factual identity of interest of the parties and the fairness of binding them by a decision in which they were not represented.


30. In the English case of Carl – Zeiss – Stiftung v Rayner and Keeler, ltd and Others (No. 2) 1966 2 A.E.R. 536 Lord Guest at p 566, in posing the same question said:


“The next requirement is that the judgement should have been between the same parties or their privies. ....... Who are the other parties? I am unable to agree that the Council of Gera is a party. The Council does not appear on the proceedings as a party, it is not represented, and no order for costs could be made against it. In these circumstances, the only other possible parties to the proceedings are the solicitors, Messrs. Courts & Co., to whom the summons is directed. As they were not parties to the West German proceedings, they would only be obnoxious to the plea of res judicata if they were the privies of the Council of Gera. There is a dearth of authority in England on the question of privies. “Privies” have been described as those who are” privy to the party in estate or interest.” Before a person can be privy to a party there must be community or privity of interest between them.”


31. The Oxford dictionary defines privy in law as: “A person having a part or interest in any action, matter, or thing.”


32. The following facts and circumstances of this application and the Constitutional Laws being challenged and their applications to the applicant Isidore Kaseng and this applicant Titi Christian, affirm in my judgement Titi Christian’s privity of interest in the outcome of Kaseng’s application, that this application should b estopped by res judicata. The Constitutional Amendment provided for Provincial Governments and Local-Level Governments to be provided for by the Organic Law. The Organic Law made provisions for the establishment of Provincial Governments and immediately repealed the previous Organic Law and established Interim Provincial Governments. The new Constitutional Laws affected all 19 Provincial governments in the country. They affected the status of all members of then existing Provincial Governments and the principle office holders, the Premiers, the Deputy Premiers and the Speakers. All former Premiers in previous Provincial governments were replaced by operation of the new laws and became Interim Deputy Governors of the Interim Provincial Governments. Isidore Kaseng was the former Premier of the Western Province as was Titi Christian the former Premier of the Morobe Province. Although Isidore Kaseng had not sought similar declarations to ones that Titi Christian seeks, yet the outcome of the declarations sought, that the laws were unconstitutional would have been the same, that Isidor Kaseng would have remained Premier of the Western Province, that the former Provincial Government remained the legitimate Government of the people of Western Province and that all elect members in the Western Provincial Government are still legally in office. Indeed the effect of a successful application by Isidore Kaseng would have had universal application to all Provincial Governments.


33. In all of these circumstances, it is my opinion that all former premiers and all former members of former Provincial Governments who were adversely affected by the new laws had sufficient privity of interest in the outcome of the application by Isidore Kaseng to be considered privies, such that they should now be estopped by res judicata from making similar applications raising the same legal issues against the same parties, being the speaker of the National Parliament and the Independent State.


34. This proposition is of course not without comparable precedent overseas. There are several English Court of Appeal decisions in 1990 and one Privy Council decision on appeal from the West African Court of Appeal of 1957 which are of very strong persuasive value which I now refer to and which I consider are of relevance and are appropriate for application to the circumstances of this country to be adopted as part of the underlying law, to the extent that they are not inconsistent with a Constitutional Law. I consider the basic principles of jurisprudence to be of eminent value and application to the development of the underlying law jurisprudence in this country.


35. The first case is that of Nana Ofori Atta II v Nana Abu Bonsra II [1957] 3 A.E.R. 559, a Privy Council decision on appeal from the West African Court of Appeal. The short facts from the headnote of this case are as follows:


“On a claim by the appellant stool against the neighbouring respondent Stool to certain lands in Ghana the respondent alleged that in proceedings 16 years previously a subordinate Stook of the appellant had failed to establish title to the lands now in dispute as against a subordinate Stool of the respondent, and that the appellant, having knowingly stood by whilst the title was fought out by its subordinate in the same interest in the earlier suit – in which the appellant and respondent were not parties – was estopped by conduct from litigating the question of title against the respondent.”


Lord Denning delivering the judgement of the Privy Council stated:


“Akim Abuakwa and Adansi were not parties to these proceedings, but they undoubtedly knew of them and of the disputes that had been going on for years before. ......


Under the rules of the court, it would have been open to Akim Abuakwa or Adansi to apply to be joined as parties in those proceedings, but neither of them did so.


Such being the facts there is, as between Muronam and Banka, a clear estoppel by res judicata because they were parties; but their Lordships have to say whether there is an estoppel between Akim Abuakwa and Adansi, who were not parties.


The general rule of law undoubtedly is that no person is to be adversely affected by a judgement in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. But this general rule admits of two exceptions: one is that a person who is in privity with the parties, a “privy” as is called, is bound equally with the parties, in which case is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct. Their Lordships propose in this case to consider first estoppel by conduct.


English law recognises that the conduct of a person may be such that he is estopped from litigating the issue all over again.”


36. His Lordship referred to examples of conduct of parties by active participation in previous proceedings and continued:


“Those instances do not, however, cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watchingthem fought out or at most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle stated by Lord Penzance in Wytcherley v Andrews (2)[1871] L.R. 2 P. & D. 327 at p 328. The full passage is in these words:


‘...........there is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case. That principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter t be re-opened.”


37. In response to submission by counsel for the appellant that the principle stated by Lord Penzance was confined to wills and representative actions only and had not been extended further, Lord Denning said:


“No decision, however, was cited to their Lordships which confines the principle to wills and representative actions. Their attention, was indeed, drawn to one case where a like principle was applied to mortgages in somewhat special circumstances. But assuming, without deciding that the English decision have hitherto been so confined, their Lordships would point out that there is nothing in the principle itself which compels it to be limited to wills and representative actions. The principle, as Lord Penzance said, is founded on justice and commonsense. It may have been found appropriate in England only in special conditions. But there is no reason why in West Africa it should not be applied to conditions which are found appropriate for it there, but which have no parallel in England.”


38. Lord Denning then referred to observations in the Supreme Court where the principles stated by Lord Penzance was firs applied and then referred to the affirmation of that principle in the Court of Appeal by Manyo-Plange J. who said:


“......What should the Omanhene of Akim Abuakwa have done in the circumstances? In my view he should have applied to be joined as co-plaintiff. It took no such course. Being cognisant of the proceedings, he was content to stand by the see his battel fought by somebody else in the same interest: the interest is the same, because the matter to be determined in the present action was the same as was determined in the former action, namely, Muronam’s title to the land in dispute, without which Akim Abuakwa cannot establish an interest in the land. Having stood by and seen the battel fought to a finish to the disadvantage of Muronam, he goes to sleep for nearly five years, than suddenly wakes up and tries to re-open the question of Muronanm’s title to the land in dispute which had been determined in the former action.”


39. Lord Denning then concluded the opinion of the Privy Council thus:


“Their Lordships are of opinion that the principles stated by Lord Penzance should be applied in this case unless technical legal reasons exist which prevent its application. Their Lordships are unable to find any such reasons and are therefore of opinion that the principle was correctly applied.”


40. I consider with respect that the basic principle enunciated as long ago as 1871 by Lord Penzance, as adopted and applied by the West African Court of Appeal in 1952 and subsequently affirmed by the Judicial Committee of the Privy Council in 1957 are founded on justice and commonsense and apply to the circumstances of this application. In principle I do not consider that any suggestion that this is a constitutional interpretation application detracts from the validity of this basic principle of justice and commonsense. As the Privy Council remarked unless technical legal reasons exist which prevent the application of this principle to this case in this jurisdiction by adoption pursuant to Sch 2 of the Constitution, it is in my opinion relevant and appropriate for application to the circumstance of this case and this country in the development of the underlying law jurisprudence.


41. The applicant Titi Christian is therefore, in my opinion estopped by conduct. He also had sufficient privy of interest in the application by Isidore Kaseng. He could have applied to be joined. He took no such action even though he stood to benefit if the application were successful.


ABUSE OF PROCESS TO RE-LITIGATE SAME ISSUES


42. In the alternative if this cause of action and application does not to fall within the scope of issue estoppel, it may nonetheless be struck out as vexatious or frivolous; because to re-litigate a question which in substance has already been determined is an abuse of process. This application in my opinion is such a re-litigation of the same issues and it amounts to an abuse of the process of this Court.


43. I refer to examples from English Court of Appeal decisions on this principle of abuse of process. In Ashmore v British Coal Corporation [1992] AER 981, [1992] WLR 1437 the following factual circumstances gave rise to the discussion of the same issues.


“About 1500 applications for equal pay were made by women canteen workers, including the appellant, employed by the respondent employer, claiming that they were doing like work with male comparators on less favourable terms. On the direction of the industrial tribunal 14 cases were selected as sample cases and the proceedings in the other applications, including the appellant’s, were stayed. On the hearing of the sample cases the applications were dismissed on the grounds that none of the claimants were employed on like work with the selected male comparator and the variation in pay between him and the claimants was generally due to a material factor other than the difference in sex. The appellant then applied to have the stay on her application removed and the case listed for hearing, on the ground that in her case she was employed on like work with the selected male comparator.


The industrial tribunal struck out the claim on the grounds that although the decision in the sample cases was not technically binding on the appellant it would be an abuse of processed to relitigate the same and actual issue that had been decided in those cases and the appellant’s claim was bound to fail.


The appellant appealed to the Court of Appeal, contending that in the absence of res judicata, issue estoppel or an agreement to be bound by the findings in the sample cases the appellant had an absolute right to have her claim litigated.


The Court of Appeal held that:


A litigant’s right to have his claim litigated was subject to that claim not being frivolous, vexatious or an abuse of process. What constituted such conduct depended on all the circumstances of the case. In particular, abuse of process was not limited to sham claims and those that were not honest or bona fide; instead, having regard to public policy and the interests of justice, it could be an abuse of process to seek to relitigate the same issue in the absence of such fresh evidence as would entirely change the aspect of the case. Accordingly, where sample cases had been chosen so that all the relevant evidence could be investigated as fully as possible by the adjudicating tribunal and findings had been made on that evidence it would be contrary to the interest of justice and public policy to allow those same issues to be relitigated unless there was fresh evidence which justified reopening the issue.”


44. In another English case of Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 AER 727 at 729, Lord Diplock, with whose speech the rest of the House of Lords agreed said:


“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied.”


45. In yet another English Court of Appeal decision in 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, Lord Justice Kerr said at 173:


“To take the authorities first, it is clear that an attempt to relitigate to another action issues which have been fully investigated and decided in a former action may constitute an abuse of process, quite apart from any question of res judicata or issue estoppel on the ground that the parties of their privies are the same.”


46. In Ashmore v British Coal Corporation, Stuart-Smith LJ said:


“Moreover, it is not in the interest of justice that the time of the court or tribunals is taken litigating claims that have effectively been already decided. Furthermore, if the appellant is to be at liberty to persue a claim, I can see no reason in principle why the 1486 other applicants, who were not among the sample claimants, should not also have a similar right.”


47. The principles enunciated in these cases on the issue of abuse of process sin relitigating the same issues, are appropriate for adoption and application in this case for the following reasons. The Constitutional Laws under examination applied to all 19 Provincial Governments in the country. Their provisions applied to all members of the provincial Governments and the Premiers and other office holders that were replaced by the new Constitutional Laws. The decision and the ruling in the application of Isidore Kaseng bound and applied to all Provincial Governments and members of the Provincial Governments including Premiers and other office holders. The ruling in Isidore Kaseng is therefore applicable to this applicant Titi Christian as well as all of the 18 other Premiers and other members of former Provincial Governments.


48. If this applicant, whose rights and interests were also determined conclusively in the application of Isidore Kaseng, is to be at liberty to pursue this application, then there can be n reason in principle why the other 18 Premiers, and all other displaced members of former Provincial Governments, should not also have a similar right. This of course would not be in the interest of justice and public policy to permit to occur. There must be some finality in judicial decision making and the courts of justice have the inherent power to prevent such abuse of its processes.


49. Another English Court of Appeal case wherein similar statements of principles were enunciated, was House of Spring Gardens Ltd and Others v Waite and Others [1992] AER 990. In that case the plaintiff brought proceedings in the Republic of Ireland against the defendant and two of his business associates, claiming damages for misuse of confidential information and breach of copy right. Those proceedings are settled by agreement. The plaintiff later discovered that the defendants had entered into a second contract without notifying the plaintiff and as a result launched proceedings in the Irish Courts dismissed the defendant’s actions and their subsequent appeal. The plaintiffs then brought proceedings in England to enforce the Irish judgement obtained against the there defendants as a debt at Common Law. The defendants contended that the judgement was impeachable on the basis of fraud and should be set aside, contending, inter alia, that the decision in the second Irish action, which held that the prior judgement had not been obtained by fraud, was irrelevant.


50. The third defendant contended that even if the Irish decision was relevant to the English proceedings, it did not bind him because he had not been a party to the second action. The Judge held; (i) that the decision in the second Irish action was final and conclusive on the issue of whether the prior judgement was obtained by fraud and could not itself by impeached in the absence of any supporting evidence or fraud, with the result that the defendants were estopped from raising the defence of fraud and; (ii) that the third defendant, although he was not party to the second Irish action, was nevertheless bound by estoppel from alleging that the Irish judgement had been obtained by fraud because of the privity of interest between himself and the other defendants. The third defendant appealed.


51. The Court held, inter alia, that:


“Even if the judgement in the second action did not create an estoppel, it would be an abuse of process for the defendant to re-litigate the very same issue in the English Courts on which he had failed in the foreign jurisdiction, particularly in circumstances where he had chosen that forum and it was the natural forum in which to challenge the judgement.


(2) Where combined defendants were estopped form pleading that a foreign judgement had been obtained by fraud in consequence of a judgement in a separate, second action in the foreign jurisdiction, a defendant who had not been a party to the second action would nevertheless, because the privity of interest between himself and the defendants, be bound by the estoppel if he had been aware of the proceedings and would have been entitled to be joined in them but he had decided without explanation not to apply to be so joined. Accordingly, the third defendant was privy to the estoppel binding the other defendants and was therefore bound by the decision in the second Irish action that the prior judgement had not been obtained by fraud.”


52. Lord Justice Stuart-Smith, in the leading judgment at page 998 said:


“Mr Macleod was not a party to the actions; but n estoppel will bind those who are privy to the parties bound. The requisite privity is said to be a privity of either blood, of title or of interest. ..........A mere interest in the outcome of the litigation is not sufficient.”


53. His Lordship then quoted from the case of Gleenson v J Wippell and Co Ltd [1977} 3 AER 54 at 60 what Megarry VC stated as the test for privity of interest thus:


“But it does seem to me that, having due regard to the subject-matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase “privity of interest.”


54. Stuart-Smith, LJ continued in House of Spring Gardens LTD v Waite (Supra) at p 998:


“There is a further principle which in my judgement supplements what was said in that case by Megarry VC. It is to be found in the judgment of the Privy Council in Nana Ofori Atta II v Nana Abu Bonsra II (Supra).


55. His Lordship quoted the remarks of Lord Denning quoted earlier, and continued at p 999:


“Mr Macleod was well aware of those proceeding. He could have applied to be joined in them, and no one could have opposed his application. He chose not to do so and he was vouchsafed no explanation as to why he did not. .........Instead, he was content to sit back and leave others to fight his battle, at no expense to himself. In my judgement, that is sufficient to make him privy to the estoppel; it is just to hold that he is bound by the decision of Egan, J.”


56. His Lordship continued at page 1000 under the sub-heading Abuse of Process and said this:


“Sir Peter Pain did not find it necessary to deal with the question of abuse of process. In my opinion the same result can equally well be reached by this route, which is untrammelled by the technicalities of estoppel. The categories of abuse of process are not closed: see Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 AER 727 at 729.”


57. His Lordship then quoted from the remarks of Lord Dilock also quoted earlier in this judgment continued:


“The principle has recently been applied in this court to analogous case, where issues of fact have been litigated exhaustively in sample cases; it is an abuse of the process for a litigant, who was not one of the sample cases, to re-litigate again all the issues of fact on the same, or substantially the same evidence: see Ashmore v British Coal Corp. [1990] 2 ALL E.R. 981.


The question is whether it would be in the interests of justice and public policy to allow the issue of fraud to be litigated again in this court. It having been tried and determined by Egan J in Ireland. In my judgment it would not; indeed, I think it would be travesty of justice. Not only would the plaintiffs be required to re-litigate matters which have twice been extensively investigated and decided in their favour in the natural forum, but it would run the risk of inconsistent verdicts being reached, not only as between the English and Irish courts, but as between the defendant’s themselves. .......What could be a greater source of in justice, if in years to come, when the issue is finally decided, a different decision is reached in Mr Macleod’s case/ Public policy requires that there should be an end of litigation and that a litigant should not be vexed more than once in the same cause.”


58. In my opinion the essence of these principles from these several United Kingdom, the West African Court of Appeal and the Privy Council decisions are to the effect that 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. To re-litigate in a subsequent application amounts to an abuse of the process of the court in the interests of justice and public policy.


59. And so in my judgement the applicant Titi Christian in this application has sufficient privity of interest with the applicant Isidore Kaseng to have applied to be joined, because he and all other premises of former Provincial governments and members of those Provincial Governments were vitally interested in the outcome of the application of Isidore Kaseng, and not having done so Titi Christian is now estopped from re-litigating the issues because to permit him to do so would amount to an abuse of process. It Titi Christian is permitted this instance to reopen the issues then in principle the other 18 Premiers of the former Provincial governments and all other displaced members of the former Provincial Governments are also entitled to make similar applications.


PER IN CURIAM


60. The principal basis upon which this application was instituted, it was submitted by the applicant, was that the decision was per in curiam, and was clearly wrong in law. It was submitted that the decision by the majority in Kaseng’s case was per in curiam because reference wasn’t made to other relevant sections of the Constitution, in particular sections 13, 22, 23(2), Schedules 1.1, 1.16, 1.9. It was submitted that had the court adverted its mind to those provisions, the decision of the Court could have been different.


61. The Second Respondent referred to the basic definition of the expression per in curiam plus statements of the principle in several case authorities in England and Australia in making the submission that the alleged error must be such as to have an obvious or demonstrable effect on the decision being revisited. It was submitted that it is not enough if the error relates to an argument that could have been put before the earlier court but was not.


62. I commence by reference to the definition of per in curiam in the text, Words and Phrases Legally Defined, by J B Saunders Vol 4, where in two statements from English Courts are stated. In the first in Huddersfield Police Authority v Watson, [1947] 2 AER 193, Lord Goddard, CJ said at page 196:


“What is meant by giving a decision per in curiam is giving a decision when a case or statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute.”


63. In Morelle, Ltd v Wakeling, [1955] EWCA Civ 1; [1955] 1 AER 708, C.A., Evershed, M.R. at p 718 said:


“As a general rule the only cases in which decisions should be held to have been given per in curiam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per in curiam must, in our judgement, consistently with the stare decisis rule which is an essential feature of our law, be ..... of the rarest occurrence.”


64. I also refer to several other Australian and English cases in which the principle of per in curiam decision is explained in succinct terms. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443, Lord Simon explains the per in curiam doctrine at p 477 thus:


“A court should only hold a judgement to have been given per in curia if it is satisfied, first, that such judgement was given in inadvertence to some authority (Judge – made, statutory or regulatory) apparently binding on the court giving such judgement and, secondly, that, if the court giving such judgement had been advertent to such authority, it would have decided otherwise than it did – would, in fact, have applied the authority.”


65. In Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court held that it was not bound to follow a decision of its own if it is satisfied that the decision was given per in curiam, where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.


66. In the Australian case of Queensland v The Commonwealth of Australia and Others [1977] HCA 60; [1976-77] 139 CLR 585, much relied upon by the applicant, Gibbs J stated at p 599:


“It would be futile to attempt to state any succinct general principle by which the court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the other hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgement which had been given per in curiam, and was in conflict with some other decision of the court, or which some well established principle, might be readily reviewed.”


67. It would seem from research that there has not been a case in this jurisdiction directly dealing with this principle of whether a judgement had been given per in curiam. I consider therefore these English and Australian decisions are of persuasive relevance and the principles stated therein are appropriate for adoption and application in this case in the development of the underlying law in this jurisdiction. The following statement of principle can therefore be made upon this basis; that 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.


68. I am not persuaded at all that the decision in Isidore Kaseng’s case is such a judgement given per in curiam. Each and all of the provisions of the Constitution which are alleged to have bene overlooked or not referred to, do not necessarily make the decision in Isidore Kaseng’s case per in curiam. Indeed the provisions were available and open to Counsel in Isidore Kaseng’s case to address, who incidentally is the same in this case. The provisions were available to the Court to have considered and indeed s 13 in particular was referred to by a member of the court. Quite simply because no specific reference is made to any of the other provisions, is not to say that the Court did not necessarily refer to them. The submission therefore is misconceived. It is in my view, a disguise for counsel’s omission in not addressing them in Isidore Kaseng’s case who now wishes to argue them to supplement the same arguments put in that case. T hey simply are arguments that could have been put before the earlier court but were not. They are most definitely not authoritative and conclusive nor binding on this court such that the decision in Kaseng’s case would have been different. They simply remain provisions which are possibly arguable.


69. For these reasons the decision in Isidore Kaseng’s case does not fall into the category of a decision given per in curiam such that this court would be at liberty to overturn it easily.


REVIEW BY SUPREME COURT OF ITS OWN DECISION – CONSTITUTION SCHEDULE 2.9(1) AND PRINCIPLES OF STARE DECISIS


70. Schedule 2.9(1) of the Constitution provides:


“(1) All decisions of law by the Supreme Court are binding on all courts, but not on itself.”


71. The effect of this provision has been ruled upon by the Supreme Court in a number of cases since Independence. The first case post-independence was Public Prosecutor v John Aia of Mondo and Others [1978] PNGLR 224, in which the effect of this provision and the court’s power to review and overrule its earlier decision was considered. Only Wilson, J ventured to give an opinion on the effect of Sch 2.9 and the legal doctrine of stare decisis. He said at page 232:


“I realise that the Supreme Court is no bound by earlier decisions of the Supreme Court (see Sch 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled great caution and in a clear case.”


In the subsequent case of SCR No. 2 of 1982: Re: Opai Kunangel Amin Unreported Supreme Court Judgement SC 231 of 6 August 1982, Kapi, DCJ said at pages 10-11 as follows:


“Counsel for the Public Prosecutor in his submission questioned the correctness of the decision in re: Joseph Auna (Supra). The case was decided by a five-member bench in December 1980. With the exception of one member of that Court, this bench is made up of different judges. As a matter of practice, care should be taken when questioning the decisions of the Supreme Court in such short time with different judges. If this is encouraged then the parties may be led to challenge the decision of the Supreme Court before a bench composed of different judges in a short period of time. This could lead to a degree of some uncertainty of the principles of flaw pronounced by the Supreme Court. This is not desirable. However, where the principles of law pronounced by the Supreme Court are clearly wrong, they should be challenged as the opportunity arises as the Supreme Court is not bound by its own decisions.”


72. In SC Reference No. 2 of 1992 [1992] PNGLR 336, the majority of Kidu CJ, Amet Los and Andrew JJ said:


“We do not believe that it is wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to over-rule its earlier decision decided by the same number of judges. This is clearly the intent of Sch. 2.9(1).”


73. In Derbyshire v Tongia [1984] PNGLR 148 at p 150 the Court, comprising Pratt, Kaputin, and McDermott JJ said:


“It has not been seriously suggested that this Court should reverse or alter in any way the decision of the Supreme Court in Sannga. Quite properly both parties concede that such a course would be most unusual. Mr Molloy has drawn our attention to several very pertinent common law authorities, and this Court itself has already enunciated, on at least two occasions to our knowledge, firstly, that it would only depart from any earlier statement it had made on the law in the most exceptional circumstances and secondly, that such a departure should as a matter of practice, only occur when the Chief Justice is presiding with a bench of four. This rule of practice may of course be affected by whether his Honour the Chief Justice is being asked to reverse one of his own decisions. Obviously for a court consisting of three judges to decide one way last year and a different way this year simply because different judges make up the later court would lead to nothing but chaos.”


74. In Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 608 at p 610 the Court comprising Kidu CJ, Amet & Cory JJ said:


“Although this Court is not bound by its previous decisions (see sch 2.9(1) of the Constitution), it will not depart from them unless exceptional circumstances exist.”


75. Similar expressions of qualification have been applied in Australian and English cases. It is helpful to consider the practices and decisions on stare decisis in those jurisdictions to obtain some assistance. In Cain v Malone [1942] 66 CLR at p 15 Latham CJ said that the power to over-rule a prior decision should be exercised with great caution and only in a clear case where the prior decision is manifestly wrong. In Thomas Case [1949] HCA 4; [1949] 77 CLR 493 at p 495 Latham CJ said that continuity and coherence in the law demand that, particularly in the High Court which is the highest Court of Appeal in Australia, the principle of stare decisis should be applied save in very exceptional cases. He continued that the strongest reason for over-ruling is that a decision is manifestly wrong and its maintenance is injurious to the public interest.


76. The next Australian High Court decision relied upon by the applicant in support of this application is Queensland v Australia [1977] HCA 60; [1976-77] 139 CLR 585. In an earlier case of Western Australia v the Commonwealth [1975] HCA 46; [1975], 134 CLR 201, the High Court by a majority upheld the validity of the Senate (Representation of Territories) Act 1973 (CTH). Queensland was a party to that application in 1975. In the 1977 actions same parties, except that Queensland was joined by the Attorney-General, sought similar declarations that the provisions of the Act were unconstitutional and invalid. The defendant, the Commonwealth of Australia demurred to the statement of claim in each action.


77. Gibbs J said at p 597:


“This Court has already pronounced on the validity of the Senate (Representation of Territories) Act 1973. It did so as recently as 10th October 1975, Western Australia v the Commonwealth. In that case a majority of the Court held that Act to be valid. The majority was comprised of McTiernan, Mason, Jacobs and Murphy JJ. Barwick CJ: Stephen J and myself dissented. The State of Queensland which now challenges that Act, was a party to the earlier challenge. It was submitted that in those circumstances the matter was res judicata. For reasons which will appear I need to discuss the principles governing res judicata and issue estoppel with a view to deciding whether there is any substance in this submission. I may however say that I entertain the gravest doubt as to whether either of those principles can have any application where a State and the Commonwealth are in contest as to the effect of a provision of the Constitution.”


78. After some further brief remarks his Honour continued at p 598 thus:


“It then becomes necessary for me to decide whether I ought to follow the decision of the majority in Western Australia v The Commonwealth notwithstanding that I believe it to be wrong. There is of course no doubt that this Court is not bound by its own decisions. Further, it has been said, and with some justification, that, “the doctrine of stare decisis should not be so rigidly applied to the Constitutional as to other laws” because in such cases the Parliament cannot legislate to correct he errors of the Courts. It has been said, too, that since this court has the duty of maintaining the Constitution, it has a duty to over-rule an earlier decision if convinced that it is plainly wrong.


But like most generalisations, this statement can be misleading. No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgement as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of refer which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.


Having considered all the circumstances that I have mentioned I have reached the conclusion that it is my duty to follow Western Australia v The Commonwealth, although in my view it was wrongly decided.


I feel bound to state now a qualification to the conclusion I have just expressed. I have said that in reaching that conclusion I have been influenced by the fact that the only circumstance that has occurred since the decision Western Australia v The Commonwealth was given that might justify a reconsideration of that decision is that one Justice has gone and another has taken his place. The other supervening circumstance, that the legislation there upheld as valid has been given effect by the election of senators, provides an argument against, not for, a review of the decision.”


79. At page 602 Stephen J said:


“None of these actions can succeed unless the decision of this Court in Western Australia v The Commonwealth is now to be overruled. ...... Thus, although questions of res judicata and issue estoppel may also arise, as does a distinct question concerning the jurisdiction of this Court, it is to the question for the application of the principle of stare decisis, which arises so acutely in these cases , that I turn at the outset.


This Court has always asserted its power to review its previous decisions; however to do so is exceptional and will only be undertaken 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. These two propositions require no citation of authority, they are axioms of our judicature. They are, however, propositions which differ very much in their respective qualities. The first is absolute in character and unqualified in meaning. The second is replete with adjectival qualifications and it is its precise application to the present case that I regard as decisive of the outcome of these actions.


Despite the powerful submissions which have been urged justifying a reconsideration of Western Australia v The Commonwealth submissions the attraction of which has not been diminished by the fact that I formed one of the minority in that case, I have concluded that it should not be reviewed but should be regarded as an authority determinative of this appeal. I will not set out all the rival considerations which have been urged but will confine myself to those matters which, together, have, for me, proved conclusive.


The first concerns the nature of the precedent authority in question. It is a very recent decision in which all members of the Court participated and in which, after full argument, a majority, in elaborately reasoned judgements, dealt in specific terms and as the principal point for decision with the very matter now in question, the effect of the concluding words of s 122 of the Constitution. The second relates to the nature of the subject matter for decision; what was in issue was the interpretation of the words of the section in their context. There existed no precedent cases nor any settled principles of the law which provided clear guidance. The case was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principle or to precedent. In such a context phrases such as “plainly wrong” and “manifest error,” which have gained currency in this filed, are merely pejorative.


The third matter concerns the consequences involved in a reconsideration. As a result of Western Australia v The Commonwealth the peoples of the Territories have not attained representation in the Senate. To deny the citizens of Australia the right to representation in the national Parliament was a course to which I considered that the words of the Constitution compelled me when writing my judgement in that case. I also recognised that the effect of my judgement might be to jeopardise their existing rights of representation in the House of Representatives. These considerations made more difficult the task of arriving at a decision perceived operation of the mandatory effect of the Constitution; it is quite another to regard the as the acceptable price of a personal decision to treat a particular precedent authority as appropriate for reconsideration. The force of this consideration is not, I think, diminished by an appreciation that continued Territory representation in the legislature involves a corresponding dilution of the strength of the representation of peoples of the States in that legislature.


These are the principal reasons which have led me to conclude that I should regard myself as bound to follow the precedent authority of Western Australia v The Commonwealth; this despite the fact that the arguments of counsel in the present cases would not have led me to decide that case at all differently.”


80. At page 606 Mason J said:


“It seemed to me then in 1975, as it seems to me now on further reflection, that the arguments which support the view that s 122 should be construed according to its terms and that it should prevail are the stronger and are to be preferred. This is not to say that the contrary opinion deserves to be described as wrong, incorrect or erroneous: it is merely to say that in resolving what is by no means an easy quest ion I have found that one of the two preferred solutions is more acceptable than the other....”


81. I also adopt respectfully what Brennan, J (as he then was) said in Baker v Campbell [1983] 153 CLR 53 at pp 102-103:


“This Court ha snot regarded itself as bound by its previous decisions, but it would be wrong to depart from an earlier decision, albeit a majority decision, merely on the ground that a different conclusion now commends itself to a majority of the Court. I respectfully adopt what Lord Weilberforce said in Fitzleet Estates v Cherry (56) in reference to a departure by the House of Lords from a previous decision: ‘.... doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it. .... To regard the judgements of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed n a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions often times turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor, as the judgements n the present case illustrate. In such cases, the decisions itself determines which solutionis, for the purpose of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is between supported by legal theory. Such an approach would diminish the authority and finality of the judgements of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration.


A party who seeks reconsideration of one of this Court’s decisions, particularly a decision recently given, has a heavy burden to discharge. It is not possible to identify in advance the circumstances in which it is proper to depart from an earlier decision, though it can be said in constitutional cases the Court does not readily depart from precedent. Nevertheless, where a broad issue of great importance is involved and the issue has not been considered by a Court composed of all justices, reconsideration of an earlier decision may be warranted. When the opinion of two or three members of the Court prevails as a majority opinion in a particular case, the authority of the decision is no less than the authority of a decision by a full bench of the Court, but the Court may, in its own discretion, give leave to re-argue the issue by a bench of all justices available to sit.”


82. Again I adopt with respect remarks reinforcing this views by Brennan, J (as he then was) in John v Federal Commission [1989] HCA 5; [1988-89] 166 CLR 417 at p 45:


“That fact that a case was a majority decision reached on differing grounds and over a cogent dissenting judgement is not, in my opinion, something which diminishes its authority or denies weight to the considerations in favour of following the case. The authority of this Courts decisions and the reliance which can and must be placed upon them are not dependent on the Constitution of the Court or on the cogency of dissenting reasons: see Baker v Campbell (46). If it were otherwise, the responsibility which rests on this Court to declare the law for future application would be lightened and the authority of the judgements of this Court would be sapped by speculation about their influence in future cases. That does not mean that a critical appreciation of the persuasiveness of judgements delivered in this Court by justices past or present may not affect the development of the law either here or elsewhere, but a decision of this Court has authority as a precedent precisely because it is the Court’s decision, not because it is the decision of the participating justices or a majority of them. The overruling of a decision of the participating justices or a majority of them. The overruling of a decision is in a sense a diminution of the Court’s authority as well as an acknowledgment of Justices’ past error. An overruling must therefore be an exceptional course to adopt.”


83. The position in the United Kingdom is largely similar. The House of Lords will depart from precedent when it appears right to do so, where too rigid an adherence may lead to injustice in a particular case and undue restriction on the proper development of the law but not merely where the House considers that a decision was wrongly decided, or that it was illogical, or generally where questions of construction are involved. The House of Lords also bears in mind the consequences of departing form an earlier decision.


84. The House of Lords will require much more than doubts as to the correctness of an opinion to justify departing from it. An appellant was not permitted to argue that an earlier decision of the House should not be followed merely because it was wrong. Before the House would depart from an earlier decision some other ground such as material change of circumstances had to be shown.


85. This Court’s decisions establish the following principles. The Supreme Court is not bound by its previous decisions, by virtue of Sch 2.9(1) of the Constitution. In principle the Supreme Court can overrule its earlier decision decided by the same number of judges. Nevertheless the legal doctrine of stare decisis and the principles of judicial comity, which have been adopted and applied in this jurisdiction as being appropriate, are such that an earlier decision of this Court should only be overruled after carefully taking into account the following factors. 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 n a short period of time, which could lead to uncertainty in the principles of law pronounced by the Supreme Court. This would be undesirable unless the principles of law pronounced by the Court are clearly wrong.


86. The Supreme Court should firstly, only depart from an earlier statement it had made on the law in the most exceptional circumstances; and secondly, that such a departure should as a matter of practice, only occur when the Chief Justice is presiding, but this rule of practice may of course by affected by whether the Chief Justice is being asked to reverse one of his own decisions. For a principle of law to be decided differently in a later case simply because the Court is differently constituted would lead to confusional and uncertainty in the development of the law.


87. The Australian decisions which are referred to for their persuasive relevance express similar qualifications in questioning the High Court’s power to review an earlier decision of itself. It is established that the power to overrule a prior decision should be exercised with great caution and only in a clear case where the prior decision is manifestly wrong. It was held as early as 1949 that continuity and coherence in the law demand that, particularly in the High Court which is the highest court of appeal in Australia, the principle of stare decisis should be applied except in very exceptional cases. The strongest reason for overruling its earlier decision is that a decision is manifestly wrong and its maintenance is injurious to the public interest. Only after the most carefully and respectful consideration of the earlier decision, and after given due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. The Court would be slow to disturb a decision which applies a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgement which had been given per in curiam, and was in conflict with some other decision of a Court, or with some well established principle, might be readily reviewed. The Court’s power to review its previous decision is exceptional and will only be undertaken 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.


88. In the Untied Kingdom the House of Lords has held that it will depart from precedent when it appears right to do so, where too rigid an adherence may lead to injustice in a particular case and an undue restriction on the proper development of the law, but not merely where the House considers that a decision was wrongly decided, or that it was illogical, or generally where questions of construction are involved. The House of Lords will bear in mind the consequences of departing from the decision. It will require much more than doubts as to the correctness of an opinion to justify departing from it.


APPLICATION OF THESE PRINCIPLES TO THIS APPLICATION


89. The final issue that remains to be considered is whether the decision in SC 487 should be reviewed and overruled in this applicant’s favour. Applying all of the principles enunciated in the Supreme Court as well as the persuasive relevant in Australian and United Kingdom cases, does this application meet those requirements for a review of the decision in SC 487?


90. It is trite that this Court is not bound by its previous decision by virtue of Sch 2.9(1) of the Constitution. But case authorities have established authoritatively that this provision and the power vested in the Court is not absolute. The qualifications and the basis upon which the Supreme Court may correctly invoke and exercise this power to review its own earlier decision should only be in a clear and proper case with the exercise of great caution in the most exceptional circumstances where the earlier decision can be said to be clearly and manifestly wrong and that is maintenance in injurious to the public interest. The Court being invited to review and reconsider its earlier decision will only do so after the most careful and respectful consideration of the earlier decision and after giving weight to all the circumstances, before a Justice may give effect to his own opinions in preference to an earlier decision of the Court. A decision to review and overturn an earlier decision will only be justified if the earlier judgement was given per in curiam, that is it was in conflict with some other decision of the court or with some well established principle that were binding on it. The Court reviewing and overturning an earlier decision will also have to consider what may be the consequences of doing so.


91. Applying these principles to the circumstances of this application, can it be said that this is a clear and proper case, where the circumstances are so exceptional and that the decision of a five member court presided over by the Chief Justice is so clearly or manifestly wrong and that its maintenance is injurious to the public interest that it should be reviewed and overruled?


92. In my respectful opinion, the plain answer to the question is NO. In my view the circumstances giving rise to this application do not warrant a review of the decision in SC 487, let along overruling it. This is not a proper case to invoke the per vested in this Court under Sch 2.9(1) of the Constitution. There are no exceptional circumstances in this case. The decision of the Court by a majority cannot be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be in conflict with some binding authority or decision of this Court or another Court which this Court is bound by, or that it was in conflict with some well established principle which would permit this Court to readily review it. Nor, indeed can it be said that its maintenance would be injurious to the public interest.


CONSEQUENCES OF OVERRULING AN EARLIER DECISION


93. I adopt with respect the further enunciation by the High Court of Australia and the House of Lords in the United Kingdom of the principle that the fact the legislation had been given effect to provided an argument against a review of the decision. I agree with what my brother Andrew J has said in relation to this.


94. I believe that it is an important factor to be taken into account as well. This Court does not exist in isolation of the possible consequences of its decision and it must not ignore them as being irrelevant.


95. I have already answered the question posed as to whether the decision in Isidore Kaseng’s application was clearly, manifestly or plainly wrong; in the negative. As Gibbs, J said and I would adopt his observation as most apposite that like most generalisations, this statement can be misleading. It cannot be said that the decision of the Court albeit by a majority, is clearly, plainly or manifestly wrong. No Justice is entitled to ignore the decisions and reasoning of his predecessors or colleagues, and to arrive at his own judgement as thought the pages of that judgement were blank. It is a very recent decision in which all members of that Court participated and in which, after full argument, a majority, in reasoned judgements dealt in specific terms with the issues the very matters now again being put into question. The case, in the words of Stephen J again, was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principles or to precedent. In such circumstances and context phrased such as “plainly wrong”, “clearly wrong” and “manifestly wrong”, which have gained currency and used extravagantly are merely pejorative or depreciatory of the opinions of learned Justices of the Court.


96. Again I find great wisdom and soundness of judgement in what another eminent former Chief Justice of the High Court, Mason J (as he then was) said at page 606:

“This is not to say that the contrary opinion deserves to be described as wrong, incorrect or erroneous: it is merely to say that in resoling what is by no means an easy question I have found that one of the two proffered solutions is more acceptable then the other.”


97. I also adopt with respect the sound words of Justices Stephen and Mason that these kinds of applications involving fundamental issues of constitutional interpretations are by no means easy of resolution. They are cases upon which different minds might reach different conclusions. No one view being inherently entitled to any pre-eminence as confirming better than others to principle or to precedent. Justices of this final Court of appeal and the final Court vested with the original jurisdiction to interpret and apply provisions of the Constitution will invariably, in the discharge of their judicial functions in resolving complex issues and disputes arrive at different opinions on interpretation and application of the laws and provisions of the Constitution in particular.


98. I dismiss the application with costs.


99. KAPI, DCJ. Mr Titi Christian (hereinafter referred to as “the Applicant”) was the Premier of Morobe Provincial government under the Organic Law on Provincial Government (hereinafter referred to as “the Old Organic law”). On 27 June 1995, the National Parliament enacted the Constitutional Amendment (Provincial and Local-Level Government) Law 1995 (hereinafter referred to as “the Constitutional Amendment” and Organic Law on Provincial and Local-Level Government 1995 (Hereinafter referred to “the New Organic Law”). These laws came into force on 19 July 1995 when they were certified by the Speaker.

100. Under the New Organic Law, the applicant became the Deputy Governor of the Province.

In an originating summons, the applicant sought declarations:

(1) That he is still the Premier of Morobe Provincial Government;
(2) That Morobe Tutumung is still the legitimate Government of the people of Morobe Province;
(3) That all the members in the Morobe Tutumung are still legally in office.

101. These declarations are sought on the following basis:

(i) That the Constitutional Amendment and the New Organic Law were invalid and of no effect on the basis that they were enacted contrary to the mandatory requirements of s 14(2) of the Constitution in that the proposed laws were circulated to members of Parliament 21 days before the laws were formally introduced in the Parliament, which was less than the minimum period of one month as required by s 14(2) of the Constitution.
(ii) That the New Organic Law was passed without there being in force a proper constitutional provision authorising the said New Organic Law contrary to the mandatory requirement of s 12(1)(a) of the Constitution.

Alternatively, the applicant sought the following declarations:

(1) That he is the interim governor and interim Chairman of Morobe Provincial and Local-Level Government;
(2) That all members of the former Morobe Tutumung are entitled to serve in the interim Provincial Assembly of Morobe Province.

102. These alternative declarations are sought on the basis that s 125 of the New Organic Law was amended contrary to s 14(3) of the Constitution in that:

(i) The proposed amendment to s 124 of the Proposed Organic Law is gazetted was not circulated to members of Parliament before the end of the meeting of the Parliament at which the first opportunity for debate occurred.
(ii) That the amendment to s 124 of the Proposed Organic Law was gazetted was moved in the Parliament without the proposed amendment being circulated to all members of Parliament.
(iii) That the proposed amendment to s 124 of the Proposed Organic Law as gazetted was not moved during the second meeting of Parliament at which the second required opportunity for debate occurred.

103. This matter was set down for hearing on 27 February 1996. At the hearing, counsel for the applicant indicated to the Court that the applicant did not wish to pursue the alternative declarations dealing with the question of amendment of the proposed laws.

104. It became clear then that the remedies that remained to be considered raise the same questions of law as were raised and decided by the Supreme court in Application by Isidore kaseng (see Unreported judgment of the Supreme Court dated 20 September 1995, SC 487). Counsel for the applicant indicated that as conclusions of law in relation to the Kaseng case would be questioned in this matter, that the Chief Justice should empanel a Court of seven judges as the Kaseng case was decided by a five member bench. This request was acceded to by the Chief Justice and so this Court has been empanelled with seven judges. We heard the case on 5 March 1996.

105. At the hearing, the question of the proper principles that should guide the Court in revisiting a decision of the Supreme Court with a view to overruling that decision was raised. It is therefore necessary to set out the proper principles applicable to this case.

Preliminary Objection – Principles of Res Judicata and Issue Estoppel

106. First, I should deal with a preliminary issue, whether the applicant tin this case is prevented from raising the issues of law by the common law principles of res judicata and or issue estoppel.

107. Counsel for the second respondent did raise the argument in her submissions but my impression was that this was not a major point of contention. Counsel for the first respondent conceded that the principles of res judicata and issue estoppel were not strictly applicable in this case.

108. For the purposes of determining this issue, it is necessary to cite two authorities which define the two doctrines.

In Blair v. Curran & Others [1939] 62 CLR 646, at p 531, Dixon J said: -

“a judicial determination directly involving an issue of fact or of law disposes once for all of the issues, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money be recovered or that the doing an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.” (emphasis added).


109. In Lawlor v. Gray [1984] 3 ALL E R 345, Gibson, J said at pp 349-350:-


“The estoppel relied on by counsel for Mr Gray is estoppel per rem judicatam. However, as Diplock LJ pointed out in Thoday v. Thoday [1964] 1 ALL ER 341 at 352, [1964] P 181 at 197-198, that it a generic term which in modern law includes to distinct species. One cause of action estoppel, is that which prevents party to an action from asserting or denying against the other party the existence of a particular cause of action, the existence or non-existence of which has already been determined by a court of competent jurisdiction in previous litigation between the same parties. The cause of action is merged in the judgement on the previous determination and its place by the rights created by the judgement, so that no second action may be brought in that cause of action. The other species, issue estoppel, is that prevents a party to an action from raising against the other party any issue whether of fact or law which has already been determined by a court of competent jurisdiction in previous litigation between the same parties. Issue estoppel, therefore, prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause of action the subject of the previous determination.”


110. It is clear from these authorities that doctrines of res judicata and issue estoppel apply as between the same parties. Mr. Titi Christian was not a party to the proceedings in Kaseng’s case.


111. The next question is whether the applicant was a privy to the application by Mr. Kaseng. The law in relation to who may be a privy to a proceeding is set out in the judgement of the Chief Justice. It may be argued following these common law cases that the applicant had a sufficient degree of identification with Mr Kaseng to make him a privy to the proceedings in Kaseng’s case.


112. I accept that these principles would be applicable to the class of cases dealt with in the common law cases. However, this line of authority cannot be readily applied to the present case before us for two reasons. Their first is that on of the cases involved an application in the subsequent case that there was an alleged misapprehension of the law in the previous case. Where the subsequent proceeding is sought on the basis of an alleged misapprehension of the law (as is the case before us), there is no question that this Court being the Highest Court in the country has inherent jurisdiction to correct the mistake. Such as case my be reopened even as between the same parties and in the same cause of action (Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1992-1993) 176 CLR 300; Richard Dennis Wallbank & Deanette Minifie v The State [1994] PNGLR 78 at pages 100-103; Jaha Development Corporation Pty Ltd v Gei Ilagi, Secretary of Department of Manus (Unreported judgment of the Supreme Court, SC 485; Suresh Charan & Another v Syed M. Shah & Others, Civil Appeal No. 20 of 1994 (Fiji Court of Appeal)). The principles of res judicata and issue estoppel or the question of abuse of the process are not applicable. The Court will reopen the matter and consider whether there is misapprehension of the law and if there is a mistake it will correct the error.


113. The second reason for non applicability of the common law cases is that in the present case not only does the present case raise that there has been an alleged misapprehension of the law, the present case deals with an alleged misapprehension of the interpretation and application of the Supreme Law of the county, the Constitution. This Court has demonstrated in the past that where it is dealing with constitutional issues it will not allow general principles of common law to prevent the Court from getting to the real issues of justice according to the Constitution. In the Petition of M. T. Somare [1981] PNGLR 265, the majority refused to be bound by the narrow concept of locus standi in common law. Thus a wider concept of locus standing was developed to enable Mr Somare as Leader of the Opposition as well as a citizen to bring a constitutional issue to be determined by the Court. If such a liberal application was not adopted, the Supreme Court would not have determined the constitutional issues in relation to the use of our Defence Forces overseas.


114. The same approach has been taken in relation to the common law principles of construction of ordinary legislation in their application to construction of constitutional provisions. Lord Wilberforce speaking for the Judicial Committee of the Privy Council in Minister for Home Affairs v. Fisher [1979] UKPC 21; [1980] AC 319 at 329 said:


“.......it would be to treat a constitutional instrument such as this as ‘sui generis,’ calling for principles of interpretation of its own, suitable to its characters as already described, without necessary acceptance of all the presumption that are relevant to legislation of private law.”

115. This principle of interpretation has been adopted and applied in this jurisdiction in interpreting the provisions of the Constitution in many cases (see State v NTN Pty Ltd [1992] PNGLR 1; Haiveta v Wingti (No. 3) [1994] PNGLR 197 to mention only a few).


116. This approach is consistent with the principle that the Constitution is of a special nature and character which deal with fundamental rights and basic principles of government; it embodies the hopes and aspirations of the people; it projects certain basic values and it sets out certain objectives and goals. It therefore must be treated differently.


117. The underlying philosophy in adopting such an approach is to ensure that consideration of important Constitution issues and justice are not prevented from consideration by the Supreme Court by narrow principles or procedures of common law.


118. This Court was prepared to even go outside a limitation imposed by the legislature on a person who has lost his right of appeal under the Supreme Court Act to give such person a right to invoke the inherent power of the Supreme Court to review a decision of the National Court on limited grounds which relate very much to questions of justice. Avia Aihi v The State [1981] PNGLR 81. In the words of Kearney DCJ. who wrote the leading judgment at page 93 said the discretion to review should be exercised “only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity.” (see also Avia Aihi v The State (No. 2) [1982] PNGLR 44 at pp 46-47 per Kidu CJ. And Andrew J.; Danny Sunnu v The State [1984] PNGLR 305 at 307 per Pratt and McDermott JJ.; PNG v Colbert [1988] PNGLR 138.)


119. The approach taken by this Court as outlined above is consistent with the dispensation of justice as required by s 158 (2) of the Constitution.


120. It would follow from the foregoing that where there is an alleged misapprehension of a constitutional provision, the principles of res judicata, issue estoppel and abuse of the process should not deprive the Supreme Court of the ability to examine the constitutional issues raised such as in this case.


121. The case which is very identical to the case before us is Queensland v. The Commonwealth [1977] HCA 60; (1977) 139 CLR 585. This case involved a question of whether a constitutional issue decided previously by the High Court of Australia was decided correctly.


122. This case is more relevant than the common law cases. The State of Queensland and the Attorney general of the State sued the Commonwealth in the High Court claiming a declaration that the Senate (representation of Territory) Act 1973 (Cwt) was beyond the powers of the Commonwealth parliament. There were two other actions brought by the State of Western Australia and the Attorney-General of the State. For the purposes of determining the issues raised by the doctrines of res judicata and issue estoppel it is not necessary to set out the details of the other two causes of action. Preliminary objections were taken against the maintenance of the suit by the State of Queensland and the Attorney-General of the State on the basis that the question of the validity of the Senate (representation of Territories) Act 1973 was decided by the High Court in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201. The State of Queensland but not the Attorney-General was a party to the earlier challenge. It was submitted that the matter cannot proceed because of the doctrines of res judicata and issue estoppel. Aikin J. considered the issue and reached the following conclusion at p 605:

“........... I have formed the view that the presence of the Attorney-General as an addition party prevents an issue estoppel from arising. Generally speaking when an Attorney-General seeks to enforce a public right or liberty he does so as representing Her Majesty’s subjects, and not the body politic of the government unit in which he holds office. The presence of the State of Queensland as a plaintiff adds emphasis to the Attorney’s separate role, even though he appears by the same counsel as the State. So regarded, the position is the same as that dealt with in the Second Uniform Tax Case (Victoria v. The Commonwealth) [1957] HCA 54; 1957) 99 CLR 575 at p 654), per Fullagar J. Accordingly these preliminary points do not prevent a consideration; or rather a reconsideration, of the merits of the propositions put forward in the first of these actions.”


123. Barwick C.J. agreed with Aikin J. (see p 594)


124. Gibbs J. (as he then was) at p 597 said:


“For reasons which will appear I need not discuss the principles governing res judicata and issue estoppel with a view to deciding whether there is any substance in this submission. I may however say that I entertain the gravest doubts as to whether either of those principles can have any application where a State and the Commonwealth are in conflict as to the effect of a provision of the Constitution.”


125. Gibbs J. expressed the view that doctrines of res judicata and issue estoppel are not applicable when a State and the Commonwealth are contesting the effect of a provision of the Constitution.


126. Stephen J. at p 602 made reference to the issue but nevertheless went ahead and considered the issue of stare decisis. At p 605 he then stated:

“So far as concern question of res judicata and issue estoppel and their application to constitutional litigation, especially when it arises between entities of the federation, I prefer to reserve my decision until an occasion arises which calls for it. I do, however, note in passing that to apply either doctrine to such cases may lead, in isolated but possibly very important instances, to just that rigidity in Constitution interpretation which the Court has otherwise successfully avoided in the application of the doctrine of precedent to its previous decision.”


127. Jacob J. at pp 607-608 said:

“The question raised in this action, namely, the validity of the Senate (Representation of Territories Act 1973, is the same as that which fell to be decided in Western Australia v. The Commonwealth. I have reconsidered my conclusion in that matter, as I was bound to do when the question was reargued. The question is one of considerable importance in the parliamentary framework of our Constitution and should be settled If the earlier decision was a consequence of a chance Constitution of the Court, now is the time for it to be reviewed. A recent decision, it were thought by the Court or a majority of the Court as it is now constituted to be wrong, should be corrected earlier and not later.”


128. Jacobs J. had no regard for the preliminary objection made, it was important that he reconsidered the matter even though it was a recent decision.


129. Likewise Murphy J. had no regard to the preliminary objection and went ahead and reconsidered the issue previously decided in Western Australia v The Commonwealth (supra).


130. All of the Justices in the High Court reconsidered the previous decision on the merits and expressed a view. They applied a less restrictive concept of the principles of res judicata and issue estoppel in so far as they were applicable. On the other hand they considered it was more important to settle important principles of constitutional law as opposed to allowing the principles of common law to frustrate their attempt to deal with important constitutional issues.


131. The approach taken by the High Court is consistent with the approach this Court has taken in applying principles of common law to constitutional issues in the cases I have discussed above.
132. In the present case before us, the same issues of law decided in Kaseng’s case have been raised, namely, the validity of the Constitutional Amendment as well as the New Organic Law. The issues raised here are no different to those raised in Queensland v. The Commonwealth (supra). There the Attorney-General was a new party. In the present case Titi Christian is completely a different party. In this matter he seeks declarations that he is still the Premier of Morobe Provincial government and that the old Provincial Assembly is still the legitimate government of the people of the Morobe Province. This cause of action was not determined in Kaseng’s case. Mr Christian is entitled to have his rights determined by this Court.


133. In so far as principles of res judicata and issue estoppel are applicable in constitutional cases, the applicant is a different party from Mr Kaseng. They are two different individuals occupying position of Premier of two different Provincial governments. Every Premier is independent and is entitled to make a decision on whether to go to Court on any matter. They represent different interests.


134. I do not accept that a Premier can be said to represent the interest of a Provincial Government. He can only represents the office of the Premier. The Provincial Government is the body politic in the Government. If it were held that Mr Kaseng represented the Western Highlands Provincial government then it can be said that Mr Christian represents the Tutumung. Even at this level, Western Highlands Provincial Government is a different party to the Tutmung. They represent entirely different political interests. In Queensland v. The Commonwealth (supra), there was no question of res judicata and issue estoppel raised against State of Queensland on the basis that their interest was decided in the earlier case of Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 in that State of Western Australia represented all the States of Australia under the Federal Constitution.


135. On the other hand it is clear that all Justices in Queensland v. The Commonwealth (supra) considered that where the Court is concerned with important constitutional issues, the common law principles of res judicata and issue estoppel cannot prevent the Court from dealing with those constitutional issues.


136. As was held by other Justices in Queensland v. The Commonwealth (supra) this case raises a most fundamental issue concerning the proper interpretation of the provisions of the Constitution and the principles of res judicata and issue estoppel cannot stand in the way.


137. It is true the cause of action instituted by the applicant involves a consideration of the validity of the Constitutional Amendment and the New Organic Law as was decided in Kaseng’s case; but that is a different issue, namely, whether this Court is bound by the decision in Kaseng’s case. That is dealing with the principles of stare decisis. That is a separate issue and it is to this issue I now turn.

Doctrine of Judicial Precedent (Stare Decisis)

138. First, the doctrine of stare decisis is applicable to all other Courts. (see Sch 2.8 Part 5 of the Constitution). The Supreme Court is expressly exempted from this (see Sch. 2.9 (1)). Where a party raises a question of law that has already been decided in a previous case, there can be no objection to jurisdiction in a subsequent case merely on the basis that the Supreme Court has decided the point of law in a previous case.

139. However, this does not mean that the Supreme Court should review its own decisions as a matter of course in every case. There should be some guidelines setting out the circumstances in which the Court may review a previous decision.

140. The general principles of law and practice in relation to this issue has been considered by this Court on numerous occasions (see Public Prosecutor v John Aia [1978] PNGLR 224; Re Opai Kunangel [1991] PNGLR 1; Derbyshire v Tongia [1984] PNGLR 148; Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 236; SC Reference No. 2 of 1992 [1992] PNGLR 336; Papua New Guinea Law Society v McEniery [1993] PNGLR 76). There is no need to restate those principles again in this case.

141. The applicant in this case seeks to review the decision in Kaseng’s case on the grounds that the questions of law decided by the Court are wrong. Counsel for the applicant has submitted that the decision in Kaseng’s case is wrong in that the Court did not take into account or give effect to ss 22, Sch 1.16, s 12(3) and s 13 of the Constitution. This is a legitimate ground on which a previous decision of the Supreme Court may be reviewed. In this regard I adopt what I said in Opai Kunangel (supra):

“However, where the principles of law pronounced by the Supreme Court are clearly wrong, they should be challenged as the opportunity arises as the Supreme Court is not bound by its own decisions.”


142. Whether, or not, there is an error in law is to be determined on a case by case basis after the merits of the arguments are carefully weighed. In Opai Kunangel (supra) the Court concluded that there was no error in the decision of the Court in Re Joseph Auna [1980] PNGLR 500; see also SC Reference No. 2 of 1992 [1992] PNGLR 336. In Papua New Guinea Law Society v McEniery [1993] PNGLR 76 the Court found that there was an error in the decision of the Supreme Court in Lash v PNG Law Society [1993] PNGLR 53. As Gibbs J. rightly pointed out in Queensland v. The Commonwealth [1977] HCA 60; (1976-77) 139 CLR 585 at 599:-

“It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the other hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgement which had been given per in curiam, and was conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed.”

143. Gibbs J. in this passage set out some guidance as to the criteria in deciding whether to overrule a previous decision. A Court should overrule if the decision is plainly or clearly wrong, or alternatively, where it is given per in curiam (an example of the latter is the overruling of Albert Karo v Ombudsman Commission of Papua New Guinea, SCA 89 of 1995 in John Nilkare v Ombudsman Commission (Unreported Judgment of the Supreme Court, dated 3 May 1996, SC 498) on the question of application of s 17 of the Organic Law on Ombudsman Commission.


144. On the other hand, the Court would be reluctant to overrule a decision where the principle had been worked out in a succession of cases and had been more than once reaffirmed. An example of this is the decision of the Supreme Court In re Joseph Auna [1980] PNGLR 500 which was reaffirmed in In Re Kunangel (supra) and the Court refused to overrule it in S.C. Reference N. 2 of 1992 [1992] PNGLR 336.


145. In the present case, it is also important to bear in mind that we have been called upon to review a decision dealing with the proper interpretation of the Constitution. The issues raised involve a question of fundamental importance, namely the proper procedure for amending the Constitution itself and the Organic Laws. It is helpful at this point to refer to judgment of Barwick CJ in Queensland v The Commonwealth of Australia & Others [1977] HCA 60; (1976-77) 139 CLR 585 at 593 in which he expresses the proper approach a court should take in reviewing previous decisions interpreting constitutional provisions:

“In the case of the Constitution, it is the duty, in my opinion, of each Justice, paying due regard to the opinions of other Justices past and present, to decide what in truth the Constitution provides. The area of constitutional law is pre-eminently an area where the paramount consideration is the maintenance of the Constitution itself. Of course, the fact that a particular construction has long been accepted is a potent factor for consideration: but it has hitherto been accepted as effective to prevent the members of the court from departing from an earlier interpretation if convinced that it does not truly represent the Constitution. There is no need to refer to the instances in which the curt has departed from earlier decisions upon the Constitution, some of long standing. The Constitution may be rigid but that does not imply or require rigidity on the part of the Court in adherence to prior decisions. No doubt to depart from them is a grave matter and a heavy responsibility. But convinced of their error, the duty to express what is the proper constructions paramount. It is worthwhile, I think, to recall what Sir Isaac Isaccs said in Australian Agriculture Co. v Federate Engine-Drivers and Fireman’s Association of Australia (33)(1913) [1913] HCA 41; 17 CLR 261 at 278

The oath of Justice of this Court is ‘to do right to all manner of people according to law’. Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously though it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation, it is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right.’

What I have written relates to longstanding decisions. Reluctance to depart from them when thought to be wrong springs from the length of time they have stood and apparently been accepted. But that reluctance can have no place, in my opinion, in relation to a recent decision. To refuse to decide in a constitutional case what one is convinced is right because there is a recent decision of the Court is to my mind, to deny the claims of the Constitution itself and to substitute for it a decision of the Court. If both old and new decisions construing the Constitution, of Sir Isaac’s expression, perpetuation of error rather than the maintenance of the Constitution becomes the paramount duty. I find no validity in the submission that the recency of the Court’s former decision gives it a quality which precludes critical examination of it or, indeed, departure from it.”


146. In this passage, Sir Garfield Barwick was making reference to the Constitution of Australia. With respect, I would adopt this passage as most apt and applicable when considering issues relating to the interpretation of our Constitution.


147. Gibbs J. expressed the same approach at pp 598-599


148. Stephen J. expressed the same sentiments at page 603 where he made reference to the history of constitutional interpretation and as the final Court of Appeal there should not be any rigidity in reconsidering previous decisions.

149. Jacobs J. referred to the considerable importance of settling the parliamentary framework in the Constitution as the basis for reconsidering the matter.

150. Murphy J. at p 610 said:

“Stare decisis. Past judicial decisions should not be elevated to a status higher than the Constitution itself. The doctrine of stare decisis is not part of the Constitution and the High Court is not debarred from altering its previous decisions. As I have said before, the task is to apply the Constitution, not the judicial decisions (buck v. Barone) [1976] HCA 24; (1976) 135 CLR 110 at p 137.”

151. In addition, the provisions of our Constitution have not received extensive consideration by the Courts in its brief twenty years of existence. These are clearly the formative years and therefore this Court should not be so rigid so as to exclude a critical examination of previous decisions dealing with interpretation of the Constitution in appropriate cases.

152. The paramount consideration is to ensure that the correct interpretation and the application of the Constitution is reached. That is the reason for Sch. 2.9(1) of the Constitution. As Murphy J. rightly pointed out in Queensland v. The Commonwealth (supra) past decisions are not to be elevated above the Constitution itself.

153. It is clear from the principles I have discussed, that this court should reconsider Kaseng’s case. The issues raised are of considerable importance to the constitutional law of this country.


154. The key question for the Court under sch 2.9(1) is whether Kaseng’s Case was wrongly decided? In particular,, there are two questions First, whether the Court was wrong in finding that the mandatory provisions of s 14(2) of the Constitution is directory only and whether the Court has power to deem 21 days circulation as sufficient compliance with s 14 (2)?

155. The second question is whether the Court in Kaseng’s Case was wrong in concluding that the New Organic Law was authorised on 27 June 1995 (the day it was passed in Parliament) before the Constitutional Amendment was brought into operation on 19 July 1995.
156. The correctness or otherwise of the decision in Kaseng’s Case cannot be determined if the Court cannot re-examine the decision. The intention of Sch. 2.9 of the Constitution is to give this Court the ability to review its own decisions. The Court can do one of two things. Either it can reaffirm a previous decision as correct or overrules it for being the wrong decision. It cannot simply refuse to reopen a previous decision. For a Court to simply refuse to do that would be to fail in its constitutional duty to settle and determine important questions of law. In this regard I have read the draft opinion of Doherty J. in which she made reference to s 14(2) of the Constitution and expressed the view “If I were free to give effect to my own opinions I would hold (a different opinion).” By this I take her to mean that she would not follow the majority decision in Kaseng’s case. She then went on to say that this matter has been litigated and cannot be re-opened. It is regrettable with respect that Her Honour feels unable to do anything about this error in view of the clear terms of Sch 2.9(1) of the Constitution. With respect it is the duty of all judges to uphold the Constitution and especially to correct an error.
Review of Kaseng’s Case


157. In reviewing a previous decision it is not sufficient to simply suggest that the decision was wrong. That does not make a decision wrong. It is necessary to carefully examine the decision and demonstrate why it is wrong.


158. I will now consider the merits of the arguments on whether there is any error in the decision of the Court in Kaseng’s Case. First let me state the issues of law that were decided by the Court.


159. The two issues of law which form the basis of the application in Kaseng’s Case as well as the present application were:

(1) The Constitutional Amendment and the New Organic Law are invalid in that the proposed laws were not distributed to the Members of the Parliament one month before they were formally introduced into the Parliament contrary to s 14(2) of the Constitution.
(2) That the New Organic Law is invalid in that it was made by the Parliament when there was no provision in the Constitution which authorised such an Organic Law.

160. The Supreme Court in Kaseng’s Case decided these two issues as follows:


(1) That it was not mandatory to circulate the proposed laws one month before the said laws were introduced in the Parliament. The question was whether the circulation of the proposed laws 21 days before they were introduced substantially complied with the requirement for circulation under s 14(2) of the Constitution. The majority (4 to 1) concluded that 21 days circulation was sufficient compliance.
(2) In relation to the second issue the majority (3 to 2) decided that even though the Constitutional Amendment and the New Organic Law were passed simultaneously, in reality the Constitutional Amendment was passed first in time expressly authorising the making of the New Organic Law and therefore it was passed in accordance with s 12(1)(a) of the Constitution.

Requirement for One month Circulation of Proposed Laws.


161. It is necessary to analyse the reasons for decision by the majority. The proposed laws were circulated 21 days before they were formally introduced into the Parliament. The question therefore arose whether the requirement for circulation one month before the proposed laws were introduced into Parliament is mandatory. On this issue, the Court was unanimous in reaching the conclusion that this is a mandatory requirement. This conclusion is not questioned in the application before us.


162. However, the majority decision further concluded that the mandatory requirement for one month circulation could not be given effect to because the Parliament had not passed Standing Orders in respect of the method or the manner of circulation of proposed laws as required by s 14(2) of the Constitution.


163. The Chief Justice reached the following conclusion:

“Because circulation could not be validly affected in accordance wit the Standing Orders of the Parliament, because there are no Standing Orders in existence, I do not consider it can be validly asserted that the mandatory requirements of s 14(2) were not complied with. Whilst ever there are no Standing Orders, the whole of s 14(2) cannot be minatorily complied with.

The effect therefore, in my view, is that the requirements to circulate the proposed laws to Members of the Parliament not less than one month remains directory only until the prescription of the Constitution is complied with by Parliament to make Standing Orders in respect of the manner or method of circulation.

Additionally, no Member of Parliament has complained that he was not given ample time to prepare for debate or to cast his vote. The overwhelming majority vote militates against holding the passage of the laws invalid on the basis only that the proposed laws were circulated 21 days only before the formal introduction and not at least one month before.”


164. Los J. agreed with the joint judgement of Hinchillife J. and Andrew J. They concluded that:

“We agree with Counsel that there are no relevant Standing Orders regarding circulation. To our minds it follows that at the moment the requirement as to circulation could not possibly be mandatory assist would only be mandatory if there were accompanying Standing Orders. Then and only then would it become mandatory. That point does not seem to have been raised in SCR 2 of 1982: Re Organic Law (supra).

Therefore we are of the view that was the circulation requirement in the said s 14(2) s only directory at the moment, it must therefore be considered whether or not substantial compliance has occurred.”

They then discussed the circulation of the proposed laws 21 days before the formal introduction of the proposed laws in Parliament and then concluded:

“There seems to be no complaint from any of the Members about the short circulation and none of them seem to have been affected in casting their votes.

We are therefore of the view that under all the circumstances the requirement regarding circulation has been substantially complied with and no invalidity has arisen because of the circulation occurring 21 days rather than one month prior to the formal introduction into Parliament.”


165. I have already stated that the conclusion by all judges that the requirements of s 14 (2) are mandatory is correct.
166. The next issue that has been discussed relate to the lack of Standing Orders in respect of the manner or method of circulation of proposed laws to Members of Parliament. This issue arises out of the words in s 14(2):

“......and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament.....”.


167. This provision directs that the method or manner of circulation should be determined by the Parliament in Standing Orders.


168. What then is the effect of the lack of Standing Orders on the question of the manner of circulation of proposed laws to the Members of Parliament? In dealing with this issue, it is important to enquire into the intention of the Parliament. In carrying out this exercise, it is important to bear in mind the principle that the Constitution has to be read as a whole (Sch 1.5(1) of the Constitution). In my opinion there are important provisions of the Constitution which are relevant to the issue. These provisions were not discussed or referred to by the majority in Kaseng’s Case.


169. The first relevant provision is s 22 of the Constitution. In so far as it is relevant to this case, it is as follows:

“The provisions of this Constitution that.....impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directives Principles, and by way of analogy from other laws, general principles of justice and generally accepted doctrine.”


170. I have no doubt in my mind that this provision is applicable to the lack of Standing Orders in respect of the method of circulation of the proposed laws. The manner of circulation of proposed laws in this context comes within the meaning of “supporting machinery or procedural laws” under s 22. In this provision, the Parliament expressed its intention as to what should happen in this situation.


171. First, where there is such lack of machinery or supporting laws such as in this case, s 22 provides that constitutional provisions that impose a duty (such as the duty on the Speaker to circulate proposed laws as well as the time frame in which to circulate the same) “shall not be left without effect.” It is clear from this that the mandatory nature of s 14(2) of the Constitution was not intended to be affected by the lack of procedural or machinery provisions. The view that some how the mandatory provisions become directory because of the lack of supporting or machinery provisions is inconsistent with this express intention.


172. Secondly, the provision goes on to provide for the only way this lack of procedural provision may be remedied. The power to fill the gap is given to the National Court to make procedural laws in the light of the National Goals and Directive Principles and by way of analogy from other laws, general principles of justice and generally accepted doctrine. This power is in the nature of delegated legislation similar to the power of law-making under s 184 of the Constitution. It is clear that the Supreme Court has no jurisdiction in the matter. The National Parliament, the Speaker or the Clerk of the Parliament could have sought directions from the National Court to fill the gap.


173. It follows from this that no other authority has the power to determine the manner or method of circulation of the proposed laws. The Speaker or the Clerk of Parliament cannot determine the method of circulation. In law, there can be no circulation in accordance with s 14(2). The Chief Justice agreed with this proposition in law when he said:

“Whilst ever there are no Standing Orders, the whole of s 14(2) cannot be minatorily complied with.”


174. The Chief Justice, however, fell into error when he further concluded that the effect of the lack of Standing Orders was that the requirement for circulation no less than one month was directory only.


175. The lack of Standing Orders in respect of the method of circulation is fatal to the validity of Constitutional Law Amendment and the New Organic Law. In law the Clerk of the Parliament has no power to determine a method or manner of circulation of the proposed laws.


176. I should, however, point out that Mr Kaseng did not challenge the method or manner of circulation of the proposed laws. That was a non issue. All members were served by the Clerk by leaving a copy of the proposed laws in members office in the Parliament building. All parties were agreed about this. It was on the basis of this agreement that the period of 21 days was calculated. The lack of Standing Orders in respect of the manner of circulation is irrelevant. What was in issue was the mandatory requirement of s 14(2) to circulate the proposed laws within a month.


177. The reasoning by the majority has two legs. The first is that the lack of Standing Orders has rendered a mandatory provision into a directory provision. I have already found that this is inconsistent with the express intention of Parliament in s 22 of the Constitution.


178. The second legal of reasoning by the majority is that the requirement to circulate the proposed laws one month before their formal introduction in the Parliament is directory, the Supreme Court has the power to declare or deem any period of circulation less than one month to be sufficient compliance. As indicated before, circulation was effected only 21 days before the proposed laws were formally introduced into the Parliament. Several questions immediately arise for consideration. Who determines the time frame in which circulation should be effected? Does the Supreme Court have any power to declare or deem any period less than the one month to be sufficient compliance?


179. As to the first question, it is clear intention of the Parliament expressed in s 14 (2) that the time frame in which to circulate proposed laws is one month and that the requirement is mandatory. Can this mandatory provision become a directory provision by virtue of the lack of provision in relation to the manner of circulation of proposed laws in the Standing Orders? As to this question I have already held that the lack of provision cannot render a mandatory provision into a directory provision. Such a conclusion would be inconsistent with s 22 of the Constitution which expressly states that a lack of procedural laws shall not leave the mandatory provisions of the Constitution “without effect.”


180. Where the lack of provision in relation to manner of circulation is filed by an order of the National Court under s 22 of the Constitution, or where the manner of circulation was a non issue as in this case, the requirement for circulation to take place one month before introduction of the proposed laws into Parliament is another matter and the minimum time requirement must be complied with. The second issue (that is the minimum period of time in which proposed laws are circulated to Members of Parliament) can only arise if the proposed laws are circulated in the proper manner. For the purposes of the second issue the parties assumed or accepted that the proposed laws were circulated in the proper manner.


181. But even if the argument that the lack of provision in the Standing Orders result in the mandatory provision becoming a directory provision, those who support the validity of the Constitutional Laws in question cannot get any comfort from this fact. The Supreme Court cannot declare the 21 days circulation as sufficient compliance unless it has the power to do so. There must be a provision which gives this Court power to do that. What criteria would the Court use to determine substantial compliance? What would be the ground for reducing the one month period to 21 days? The majority opinion did not provide any answers to these questions in Kaseng’s case. It is interesting to note that no explanation whatsoever has been given why the one month period required by the Constitution was reduced to a period of 21 days. The lack of explanation can hardly satisfy any criteria for reducing the period of one month to 21 days.

182. During argument I asked both counsel for the Parliament and the State whether there is any provision which gives the Supreme Court power to declare a circulation less than one month to be sufficient compliance. They conceded that there is no such provision in the Constitution. I have searched through the Constitution in search of such power and I have been unable to find any such provision. In my opinion the lack of such power is fatal to the majority decision that there was sufficient compliance. In my dissenting opinion in Kaseng’s case, I pointed out that the power to reduce the period of circulation is expressly given to the Parliament. Under s 15 of the Constitution, the Parliament is the only authority given power to waive any of the requirements under s 14(2) of the Constitution. This includes the power to waive the time frame in which proposed laws may be circulated. The power to waive such requirement could only be done on the ground of urgency. How can the Supreme Court in the face of this clear provision assume such power? With respect the majority opinion in Kaseng’s case fell into error in this regard.

183. There is another provision in the Constitution which bears upon this issue. This provision is Sch 1.16 which is in the following terms:

“Schedule 1.16 Effect of time limits.

(1) Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.
(2) The operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.”

184. Counsel for the applicant has submitted that this provision indicates the proper interpretation that should be given to the effect of s 14 (2) of Constitution. He submitted that the requirement for circulation of proposed laws one month before their introduction into Parliament under s 14(2) is a Constitutional law where “a time limit is imposed for the doing of an act.” Counsel for the Parliament simply submitted that this provision was not applicable to s 14(2).

185. I accept the submission by counsel for the applicant that this provision is applicable to the time limit set out in s 14 (2). The words “time limit” are to be given a wide and a liberal interpretation (sch. 1.5 (2) of the Constitution). Some assistance can be gained from subsec (2) which talks about “a time limit or a maximum time limit.” The latter deals with a particular type of time limit, namely, a “maximum time limit.” An example of this type of maximum time limit is the requirement for a petition to be filed in the Registry of the National Court at Port Moresby within two months after declaration of result of an election (see s 209(e) of Organic Law on National Elections). The words “a time limit” is wider and would include all kinds of time limit including those that provide for a minimum time limitation. The one month requirement under s 14 (2) comes within this category. That is to say, the circulation of proposed laws may be circulated at any time well before they are introduced into the Parliament but that circulation must be at least one month before they are introduced into the Parliament. That in my opinion is “a time limit” within the meaning of Sch. 1.16 of the Constitution. It follows from this that the rest of the provision is applicable. It was within the power of the movers of the proposed laws under this provision not to introduce the laws until one month had expired from the date of the circulation. Or alternately, the formal introduction of the laws in the Parliament or the first reading of the proposed laws could have been adjourned until the required period of one month for circulation was satisfied. This was not done and in my opinion it is fatal to the validity of the laws in question.

186. It is true that this provision is concerned with extension of the period of time in order to comply with the time limit and this was not the issue in Kaseng’s case. The point is this; that under this provision, time may be extended in order to comply with the time requirement. This provision emphasises the need to comply with the time limits. It applies regardless of whether or not the time limit is mandatory, directory or permissive. There is no suggestion in this provision that the minimum time limitation may be reduced further to less than the one month requirement under s 14(2) of the Constitution. This cannot be the basis upon which the majority opinion may find support for the power for reducing the one month time limitation set out in s 14(2) of the Constitution.

187. In effect what the majority opinion has done is reduced the status of the Constitution (supreme law) and Organic Laws in terms of their amendments to the status of an ordinary Act of Parliament. The time required for circulation of ordinary bills is at least 21 days (see s 200 (2) Standing Orders). The conclusion that circulation of the proposed laws 21 days before the Parliament was in compliance runs contrary to the status of the Constitution as clearly set out in ss 9 and 11(1).

Voting in the Parliament

188. In supporting their opinion, the majority expressly relied on the fact that no member of the National Parliament made any complaints about circulation of the proposed laws within 21 days and that the circulation did not affect the way the members of Parliament caste their votes. With the greatest respect, this has no relevance whatsoever to the question of complying with the mandatory requirement of circulation of proposed laws within one month pursuant to s 14(2) of the Constitution.

189. The question of voting in the Parliament in this matter was clearly a matter of politics. This is obvious to everyone. This is a matter which ought not to form part of the reasoning process of this Court. This process of reasoning can only lead to the criticism that the Court allows political considerations in researching its decisions. For my part, whether or not there was political support for the reforms in the Parliament, is totally irrelevant to the question of law we have to determine. With respect the majority erred in law in making reference to a political consideration and thereby allowing such a consideration to influence their decision.

Was the Parliament authorised by the Constitution to make the New Organic Law at the Time it was Made?

190. In respect of this issue, the challenge relates to the validity of the New Organic Law only.

191. In Kaseng’s case the Chief Justice reached the following conclusion:


“I am of the opinion that s 12 (1)(a) is descriptive only of the kind of law that as Organic Law is; that is that, it is to be a special class of laws made by the Parliament, only in respect of any matter that the Constitution expressly give authority to be made by an Organic Law. In other words, unlike an ordinary statute that Parliament has power to enact in respect of any matter an Organic Law can only be made by Parliament if a Constitutional provision expressly authorities the making of the Organic Law in respect of particular subject matter.

This is all that s 12(1)(a) is concerned with. It is not in my view, concerned with how an Organic Law is made by Parliament, or what procedures are not be followed or majority necessary for its making, such as are required under s 14.

Viewed from this perspective, on the facts of the legislative process involved in the making of these two pieces of constitutional laws, the enabling Constitution Part VI A ss 187 A. 187 C were made on 27th June, 1995 first in time, thus expressly authorising the making of the Organic Law, ss 187 B and 187 C.”

192. The joint judgment of Hinchliffe and Andrew JJ. Approached the issue differently. After setting out the arguments they said:

“These submissions immediately raise the question of whether or not these are matters which are justiciable. Section 134 of the Constitution provides:

‘Section 134 Proceedings non-justiciable.

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have bee complied with, is non-justiciable, and a certificate by the Speaker under s 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.”

There has never been a definition of what is ‘procedure’ or procedural in this context.

Firstly, it has been emphatically laid down that the settled practice is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law and the proper tie of the Court to intervene is after the completion of the law making process: see Hughes v Vale Pty Ltd [1954] HCA 73; (1954) 90 CLR 203; Clayton v Heffron (1960) 105 CLR at p 235; and per Gibbs J, Cormack v Cope (1974) 131 CLR 447 at 467.

The Courts in the United Kingdom have traditionally refrained from any interference in the law-making activities of the Parliament. But in Papua New Guinea (and in Australia), the law making process of the Parliament is controlled by a written Constitution. It has been pointed out by the Privy Council in unequivocal language in the case of Bribery Commissioner v Ranasinhe [1964] UKPC 1; [1965] AC 172, that where the law making process of a legislative is laid down by its constituting instrument, the courts have a right and duty to ensure that that law-making process is observed: per Barwick CJ in Cormack v Cope (supra at p 352) and further at p 453: “where the Constitution requires that various steps be validly taken as part of the law-making process......the Court has the right and duty to interfere if the constitutionality required process of law-making is not properly carried out.’

It is firmly established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority includes the completion of the parliamentary process to turn a bill into an Act. See also Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 92. Further, s 109 of the Constitution provides that the general law-making power of the Parliament is subject to the Constitution and the authority of SCR No. 2 of 1982: Organic Law (Supra) makes it quite clear that the requirements of s 14 of the Constitution are mandatory.

But whilst this Court has jurisdiction in matters involving the constitutionality of the law-making process, including the amendment of the Constitution itself, it does not have jurisdiction to enquire into what has been described as ‘intra-mural deliberative activities of the Parliament’ or the intermediate procedures of Parliament. These are matters which are procedural or the proceedings of Parliament and whilst there has never been a complete definition of this term, in its wider sense it has been used to include matters connected with or ancillary to the formal transaction of business in the Parliament: see Halsbury Laws of England 4th Ed vol 34 para 1486. The power to make the law as it has emerged from the law-making process is one thing but the actual process of law-making is another thing.

In the present case it is clear that the amendment to the Constitution and the Organic Law were “made” on the 27th June 1995 when both completed their stages through the Parliament. That is proved by the Certificate of the Speaker of the National Parliament issued under s 14 of the Constitution (which by s 134 of the Constitution is conclusive). It is also clear that the amendment to the Constitution (Constitutional Amendment No. 16 – Provincial Governments and Local-Level Governments) was ‘made’ first in point of time and the new Organic Law was made’ immediately after. The amended provisions of Part VI(A) of the Constitution were in force on the 27th June 1995 and they provided express authorisation for the new Organic Law. The authorisation begins with s 187A which provides: “There shall be a system of Provincial Government in accordance with this Part.”

Section 187 provides for certain matters to be dealt with by way of Organic Law. Section 187A deals with “a system of Provincial Government” and the succeeding provisions of s 187A make provision for various matters relating to the system of provincial government and provide for an Organic Law to spell out the detail of the matter.

Section 12(1)(a) of the Constitution requires:


(a) provision for or in respect of a matter by way of an Organic Law;
(b) be expressly authorised by this Constitution.

Thus there is only a requirement that there be “provision” for an Organic Law to deal with a matter. Since Organic Laws are themselves to spell out the detail ‘provision’ for which is made by the Constitution, there does not have to be a detailed statement providing for or in respect of a matter.

In our opinion there has been no breach of s 12(1)(a) of the Constitution. As already indicated the constitutional amendment was ‘made’ on the 27th June 1995 and the Organic Law on Provincial Governments and Local-Level governments was then ‘made’. As counsel for the Respondents has submitted, a law is ‘made’ when it has passed though all the required stages set out in the Standing Orders for the Parliament and when it is ‘passed’ and before it is certified under s 110 of the Constitution. The making of a law is to be distinguished from the commencement of a law. The later is the point of which the law becomes effective in terms of its application. Under s 110 of the Constitution the Speaker certifies that a law has been ‘made’ by the Parliament. Clearly therefore a law is made prior to certification. There is no equivalent in Papua New Guinea to the position in the United Kingdom where a law is not made until it receives the Royal Assent. The Parliament is the supreme law-making body, subject only to the Constitution and the legislative power of the People is vested in the National Parliament (s 100 of the Constitution). There is no provision in the Constitution for the assent of the Head of State. Certification operates to bring a law into operation rather than the making of the law.

Accordingly, in our opinion the Constitutional amendment had been made and passed and had become law and that Constitutional law properly and expressly gave authorisation for the new Organic Law on Provincial Governments and Local-Level Governments. There has been no breach of s 12(1)(a) of the Constitution.

It follows from what has already been said that this Court does have jurisdiction in this matter insofar as it is alleged that the Constitutional requirements for the amendment of the Constitution had been breached. But insofar as it is argued that the manner of the passage of the amendments through Parliament breached parliamentary procedures, these are matters which involve the internal procedures of Parliament and are non-justiciable (s 134 of the Constitution).”

193. First, I will deal with the basis of the decision by the Chief Justice. He simply dismissed s 12(1)(a) as descriptive only and of no substantial legal requirement. If the Chief Justice is correct about s 12(1), then he must be correct about ss 12(2) and (3). With respect, His Honour cannot be right. Section 12 is to be read as a whole and it is a substantive provision and proper legal effect must be accorded to it. In re Moresby North East Election Petition [1977] PNGLR 429 at 433 Prentice DCJ said:

“Where the Constitution provides for a particular procedure to be followed in law-making, then any law purportedly passed in any other fashion is null and void. What the Constituent Assembly (which passed the Provincial Organic Law) tried to do was avail itself of the provisions of s 12(3)(a) of the Constitution. This it may do and its resulting legislation would have the effect of a simple act of parliament (s 266(2) of the Constitution).”

194. In the same case, Williams J. and Pritchard J. referred to the provisions of s 12 of Constitution (pp 440 and 443-445 respectively).


195. Section 12 was again considered in SCR No. 2 of 1982(No.1); Re Organic Law [1982] PNGLR 214. At p 219 Chief Justice Kidu said:

“Section 12(2) of the Constitution says in no uncertain terms that an Organic Law may only be altered by another Organic Law or an alternation to the Constitution. Section 86(c) of the Organic Law on National Elections, whether it operates as an Act of the Parliament or constitutional law, may only be altered by a constitutional law. Once a provision is contained in an Organic Law (a Constitution law) the only way to alter such a provision is categorically laid down by the Constitution, s 12(2). The only concession alleged by the constitution, s 12(3), is that a provision contained in an Organic Law, that might be made by an Act of the Parliament, requires only the same majority required for an Act of Parliament.”

196. At page 223 Kearney DCJ said:

“However the Constitution, s 12(3)(a), makes it quite clear that:

(a) it is quite in order to regulate the Constitution, s 50(1) right by an Organic Law; and that, if that course is adopted, as here,

(b) such Organic Law (in this case, s 86(c)) can be altered by a simple majority in the Parliament.

What the Constitution, s 12(3)(a), does not do, or purport to do, is to change the nature of s86 (c), which remains an Organic Law. Nor does s 12(3)(a) affect or purport to affect, the impact of the Constitution, s 12(2); so s86(c) can only be amended by an Organic Law. But because of the Constitution, s 12(3)(a), s 86(c) is an Organic Law which may be altered by an Organic Law carried by a simple majority vote.”


197. It is clear from these opinions that the whole of s 12 is a substantive provision and must be complied with. If the Constitution intended this to be a descriptive provision only it would have said so as it did in the case of s 99(4) of the Constitution.


198. With respect, the Chief Justice reached his conclusion on an erroneous view of s 12 (1)(a) of the Constitution.


199. The joint judgment of Hinchliffe and Andrew JJ. reached their conclusion on two basis. The first is that the issues involved are breaches of parliamentary procedures in amendments of Constitution Laws. They concluded that these are internal procedure so Parliament and therefore are non-justiciable under s 134 of the Constitution.


200. The issue was not one of whether the procedures of Parliament in Standing Orders had been complied with. In fact the majority proceeded on the basis that there was lack of provision in Standing Orders on the method of circulation of proposed laws on amendments of Constitutional Laws. The real issue was whether the national Parliament had complied with the law-making-process set out in s 12(1)(a) of the Constitution. That is a matter of Constitutional interpretation and application. Section 134 deals with procedures that are set out under the Standing Orders and therefore not applicable. As I pointed out in my dissenting judgment, Mr Henao, counsel for the Parliament expressly conceded that the question of non-justiciability under s 134 was not an issue. With respect the decision of Hinchliffe and Andrew JJ. should not be followed in this regard.


201. The second basis of their decision is to be found in the following passage:


“It is clear that the amendment to the Constitution (Constitutional Amendment No. 16 – Provincial Governments and Local-Level Governments) as ‘made’ first in point of time and the new Organic Law was ‘made’ immediately after. The amended provisions of Part VI(a) of the Constitution were in force on the 27th June 1995 and they provided express authorisation for the new Organic Law. That authorisation begins with Section 187A which provides: ‘There shall be a system of Provincial Government in accordance with this Part.”


202. Nowhere in their judgement did they attempt to interpret the meaning of s12(1)(a). However, their Honours in this passage purported to give some meaning to s12(1)(a) of the Constitution. They concluded that:


“The amended provisions of Part VI(A) of the Constitution were in force on the 27th June 1995 and they provided express authorisation for the new Organic Law.”


203. With respect, their Honours misunderstood the meaning of s 12(1)(a) and its practical application to the circumstances in Kaseng’s case. I have already set out the proper meaning to be given to s 12(1)(a) in my dissenting judgment in Kaseng’s case. There must be a provision of the Constitution which expressly authorises a matter or provision to be made by Organic Law. Where the authority to make such Organic Law is contained in an amendment to the Constitution, I have interpreted this to mean that the amendment must be made by the Parliament but in addition to that it must be brought into force. Under our law, making of a law by the Parliament is one thing. This process is set out in s 14 of the Constitution. A law made by Parliament can have no effect until it is certified in accordance with s 110 of the Constitution. An amendment to the Constitution does not come into fore upon making of the same by the Parliament. It comes into force upon certification by the Speaker under s 110 of the Constitution. This is expressly stated in s 13 of the Constitution. If an amendment is passed by the Parliament and it is not certified, the amendment is not in force. It is possible for Parliament to make a law and not bring this law into force such as the controversial Internal Security Act. The effect is that it has no force of law and cannot be said to authorise any matter. According to s 110 of the Constitution a law comes into force as from the date of certification. That is a necessary part of the law-making process under our Constitution if the law is to have any binding force. The words “......Organic Law is expressly authorised by this Constitution;....” Under s 12(1)(a) means that there is a provision of the Constitution;.....” under s 12(1)(a) means that there is a provision of the Constitution which is in force. Where the provision relied upon is an amendment to the Constitution, that amendment has to be in force.


204. The question then arises: when did the Constitutional Amendment come into force? The answer is clear: on the 19 July 1995 when it was certified by the Speaker. That is the effective date on when it can be said that the Constitution authorised the New Organic Law.


205. With respect their Honours were wrong when they concluded that the “amended provisions of Part VI(A) of the Constitution were in force on the 27th June 1995 and they provided express authorisation of the new Organic Law.” (emphasis added)


206. The process of law-making in respect of the New Organic Law commenced on 28 March 1995 and was completed on 27 June 1995. During the whole of that process, there was no provision of the Constitution in force which authorised the Parliament to make the New Organic Law. The authority to make the New Organic Law came into being after the new Constitutional Amendment came into force on 19 July 1995. All the requirements for the making of the New Organic Law should have commenced only after the 19 July 1995. It is clear from this that the making of the New Organic Law which was completed on 27 June 1995 was done without a provision of the Constitution to that effect in force at that time.


207. Should I follow the majority decision in Kaseng in view of the fact that I have found it be decided wrongly. It has been suggested that even though I have found the Kaseng decision to be wrong, nevertheless I should follow it. The basis for this view is said to be found in the judgments of Gibbs and Stephen JJ. In Queensland v The Commonwealth (supra). Both Justices dissented in Western Australia v The Commonwealth (supra) and still held the view that the majority was wrong but chose to follow the majority opinion. It is therefore necessary to closely examine the basis of their decision.


208. At page 599 Gibbs J. set out the category of cases in which a previous decision may be overruled. On the one extreme there are cases which are clearly wrong and on the other hand there are cases which have been carefully reasoned and have been reaffirmed more than once. He suggested that in the former the previous decision should not be followed; whereas in he latter the Court would be reluctant to depart from the previous decision. Then significantly His Honour stated the nature of the issue and the category under which Queensland v The Commonwealth (supra) falls:


“However the present case does not lie at either of these extremes, and I have had much difficulty in deciding what course my duty requires.”


209. At page 603 Stephen J. likewise stated the nature of the issue before the Court:


“The second relates to the nature of the subject matter for decision; what was in issue was the interpretation of the words of the section in their context. There existed no precedent cases nor settled principles of the law which provided clear guidance. The case was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principle or precedent.”


210. In my opinion the reason Gibbs and Stephen JJ. Chose to follow the majority opinion was because the legal issue which divided the Court was a difficult one and the two competing views were evenly balanced. As Mason J. who formed part of the majority opinion said, the minority opinion was not necessarily wrong or erroneous. In those circumstances it was open to the two Justices to choose to follow the majority opinion. The manner in which Gibbs J. and Stephen J. chose to follow the majority opinion was therefore peculiar to the nature of the legal issue in that case.


211. The question is; whether the legal issue in the case before us can be described as falling under the same category as in Queensland v The Commonwealth (supra). With respect the legal issue in this case falls within the category which Gibbs J. described as clearly wrong. As I have pointed out before, the legal issues are quite clear. The first question relate to compliance with circulation of the proposed laws within one month before the Parliament meets. That requirement is as clear as black and white and there is no authority which may dispense with the one month requirement. With respect there is no competing view to the contrary. The second question relate to when the Constitutional Amendments came into force which then authorises the Parliament to pass the New Organic Law. The answer is clear. It came into force on 19 July 1995. All the steps required for passing an Organic Law were taken well before the Constitutional Amendment came into force. Again with respect there is no competing view to the contrary.


212. With due respect the weaknesses show in the majority opinion in Kaseng’s case have not been answered satisfactorily. I cannot choose to follow an opinion which I consider to be clearly wrong.


213. There is another ground which is attributed to Gibbs and Stephen JJ. upon which it has been suggested that even though the majority opinion may be wrong, it should be followed in view of the fact that Senators have been elected under the law that has been held to be valid by the majority opinion; and to reverse the decision would be to defeat the expectations of the people (see Gibbs J. at page 600, per Stephen J. on page 603). First, this argument is not applicable where the decision sought to be reversed is clearly wrong as is the case here. The nature of the constitutional provision which was breached in this case relate to a mandatory provision and it is so fundamental that what was done cannot be valid. This is not a discretionary matter. The legal issue in Queensland v The Commonwealth (supra) does not fall into the same category as in Kaseng’s case. Section 14(2) is mandatory and anything that is done in defiance of such a provision ought to be declared invalid. To hold otherwise in my opinion is to condone and encourage future breaches of the Constitution in the same manner. For my part no person or authority should be given the slightest encouragement to breach any mandatory provision of the Constitution.


214. In any case in the present case no elections have taken place under the new reforms and therefore the same considerations do not apply here.


215. The relevant question is; what consequences would follow if Kaseng’s case is overruled. This is not a light matter and I have given it careful consideration. If the majority opinion is reversed it would have the effect of restoring the old regime before the new reforms came into force. I have considered the democratic and the political rights of our people and I have concluded that these rights would not be adversely affected. In fact if one examines the rights of our people under both regimes, the people have greater participation in the democratic and political process in the old regime. As to which of these regimes should become the law in this country is not a matter for this court. The body which is given the responsibility to decide these issues is the National parliament. I take this matter into account in so far as it is relevant to the question for what consequences would follow if Kaseng is reversed and the new regime is declared invalid. This case can be distinguished from the issue that fell to be considered in Queensland v The Commonwealth (supra). In that case the Territories stood to lose all representation in the Senate if the provisions decision were to be reversed. That is not the case here. As I have pointed out before if the new reforms are declared invalid, there is an existing regime which gives all our citizens the right to participate in a political and democratic system of government set out under the Constitution.


216. After careful consideration for this issue I have reached the conclusion that Kaseng should be overruled.


217. The Constitutional Amendment as well as the New Organic Law are invalid for not complying with the mandatory requirement of one month circulation of the proposed laws before they were introduced in the Parliament. In addition the New Organic Law is invalid in that it was made at a time when the Constitutional Amendment had not come into force.


218. The effect of this reasoning is that the old Constitutional provisions and the Old Organic Law are still in force. I would make the declarations sought in this matter.


219. LOS, J: The applicant is the former Premier of the Morobe Provincial Government on the basis that the Constitutional Amendment (Provincial Government and Local-Level Government Law) 1995 and the Organic Law on Provincial and Local-Level Government 1995 are invalid and of no effect. For convenience I call the former the “Constitutional Amendment” and the latter the “New Organic Law.” Other alternative declarations were also sought but were abandoned at the hearing.


220. The First and Second Respondents (the respondents) opposed the proceedings on the basis that the issues had been adequately determined twice by the Supreme Court in the Unreported Supreme Court Judgment SC 487 of 20 September 1995 (the First Decision) and in the Unnumbered decision O.S. No. 1 of 1995 dated 31 October 1995 (the Second Decision) respectively. In the Second Decision it was held that the purported application for review under Schedule 2.9(1) of the Constitution was misconceived. That court said:


“Schedule 2.9(1) does not confer any rights in a unsuccessful applicant or appellant before the Supreme court to seek review of that Supreme Court decision before another Supreme Court, differently Constituted by the same members or constituted by a larger number of Judges. Furthermore Schedule 2.9(1) does not confer any power of review on the Supreme Court to review its own decision in an earlier case involving the same parties and the same issues in form and substance which had been finally determined in the earlier proceedings.”


221. It is not disputed as matters of fact that the issues advanced by the applicant for determination have been decided upon in the two earlier decisions. The basis upon which the declarations sought are:


The constitutional amendment and the New Organic Law were not enacted in accordance with the requirement of section 14(1) and 14(2) of the Constitution in that:


(1) The Gazetted version of the proposed Constitutional Amendment and the proposed Organic Law were circulated to members of the Parliament less than the mandatory period of one month before finally being introduced into Parliament.

(2) Alternatively that the Organic Law is invalid in that at the time the Organic Law was made on the 27th June 1995, there was no proper constitutional provision authorising it.

222. The first issue before the court is whether the Supreme Court has jurisdiction to review its own decision. The second is, if so, under what circumstances the court may review its own decision. Thirdly, has the applicant shown that the Supreme Court as a matter of law must review its previous decision. The Respondents raised the common law principles of issue estoppel and res judicata as preventing the applicant from raising the same issues. It is apparent that though the issues are the same the applicant was not party to the previous proceedings. At any rate there is a specific constitutional provision namely Schedule 2.9 that allows the Supreme Court to revisit its previous decisions. The schedule 2.9(1) of the Constitution says:


“All decisions of law by the Supreme Court are binding on all other courts, but not on itself.”


223. The Supreme Court has held in various cases since the Constitution came into existence that the court can review its own decision. However, a review must be done on certain stringent conditions. Some conditions that have been developed so far are:


(1) That great caution must be taken and only in most exceptional circumstances that the Supreme Court may review its own decision: Daisy Derbyshire v Graham Tongia [1984] PNGLR 148.

(2) That the same number of judges should not review an earlier decision for it may have implications for general administration: Public Prosecutor v John Aia of Mondo & Ors [1978] PNGLR 224.

(3) That for any review of a previous decision full argument must be presented for consideration: SC Reference No. 2 of 1992 [1992] PNGLR 336.

(4) That care should be taken when questioning the decisions of the Supreme Court in such a short time: Re Opai Kunangel Amin SC 231 of 6 August 1982; also Derbyshire’s case.

(5) That the Supreme Court may depart from its earlier decision but as a matter of practice such a departure should only occur when the Chief Justice is presiding: Derbyshire case.

224. The applicant argued that the First Decision was clearly wrong in law because it was reached as a result of inadvertence and oversight. Using the words of Aicken, J in an Australian case Queensland v The Commonwealth of Australia & Ors [1977] HCA 60; (1976-77) 139 CLR 585 at 630 the counsel for the applicant submitted that the decision needed reviewing because the errors were “so fundamental” (to) a provision of the constitution” or relating to “vital constitutional importance” and “its consequences are likely to be far reaching even though not immediately foreseeable.” He argued that mistakes had been made because certain constitutional provisions were not brought to the attention of the Court. If they had been brought to the attention of the Court, the decision would have been different. This being the case, the decision was per in curiam. It must therefore be overruled. The provisions of the Constitution he referred to were sections 13, 22, 23, Schedules 1.1, 1.9, and 1.16(1).


225. The lawyers for First Respondent joined by the Second Respondent agreed that as a matter of law the Supreme Court was not bound by its earlier decision but could only revisit the decision on stringent conditions. They agreed generally with the principles advanced by the applicants lawyer. They submitted however that there was no basis for reviewing the First Decision because:


(1) the decision was very recent;
(2) the decision was arrived at following full argument;
(3) the court was a 5 member bench such as was usually constituted for significant constitutional cases;
(4) the decision was not manifestly wrong or indeed wrong at all;
(5) there had been no change in circumstances since the decision of the court and the maintenance of the decision cannot be said to be injuries to the public interest; and
(6) any change in the decision would be disruptive to present arrangements and the court can properly have regard to that fact. In other words a review would be detrimental to good administration.

226. On the per in curiam argument, the counsel for Respondent submitted that the court could only revisit an earlier decision if the court was satisfied that the decision was demonstrably wrong in that decision. It was not enough if the error was that certain argument which should have been put before the earlier court but was not. They argued that Schedule 1.6 was not relevant and the submission on Sections 22 and 23 were misconceived, because the court had found that Section 14 was directory only on the basis that no Standing orders had been made by the Parliament to regulate the circulation.


227. As to the application of s 13 of the Constitution it was argued that the section had been referred to in the submission on behalf of the National Parliament and was superficially mentioned by the Deputy Chief Justice. Further, the consideration of s 12 would have necessarily involved s 13 so it could not be assumed that s 13 was not in the courts mind. At any rate if the section had not been put to the court, the argument is not sufficient ground for revisiting the early decision.


228. The first analysis involves the decision on section 14(2) of the constitution. The section says:


“(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been –


(a) during different meetings of the Parliament; and
(b) separated in time by at least two months

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all embers of the Parliament not less than one month before it is formally introduced into the Parliament. [underline is mine for emphasis].


229. The issue subject of the First Decision relating to s 14(2) was whether it was mandatory and as such failure to comply with any of the requirement of the provisions relating to any act would result in that act being void. The ‘act’ concerned was the circulation of the proposed amendments. The mandatory provision was a one month period within which no circulation was to be affected until at least after that period. It was conceded that the proposed amendments were distributed nine days short of the month requirement. The court’s view by majority in the First Decision was that the requirement to circulate the proposed amendments was mandatory but because no standing orders as to the manner of circulation were in existence, the one month period could only be directory. It was concluded therefore that “there had been sufficient compliance with s 14 in these circumstances.”


230. I will discuss the schedules followed by sections 22 and 23(2), of the Constitution. Schedule 1.1 contains a general provision which says:


“(1) The Rules contained in this Schedule apply unless the contrary intention appears, in the interpretation of the Constitution of the Organic Laws.”


231. The first specific Schedule referred to is 1.9 which says:


“Where no time is prescribed or allowed within which an act is required or permitted by a constitutional law to be done, the act shall or may be done as the case may be with all convenient speed and as often as the occasion arises.”


232. It is my view that Schedule 1.9 does not apply in consideration of section 14 of the Constitution. Section 14 prescribes a minimum time limit of one month; Schedule 1.9 applies where no time limit is prescribed by a constitutional law.


233. The applicant has also sought to rely on Schedule 1.16(1) of the Constitution which say:


“(1) Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.”


234. The essence of this provision is that when an act required to be done in a specified time in a constitutional law is practically impossible to complete, the time limit is extended automatically by whatever time is needed to complete the act. In other words, the emphasis is on completing the act rather than rigidly observing the time limit. There is an exception provided in Schedule 1.1, that is the observance of time requirement must strictly be enforced when a “contrary intention appear” in a specific provision of a constitutional law.


235. See SCR No. 4 of 1982 [1982] PNGLR 342. The one month period required in section 14(2) of the Constitution is strict, but it is a minimum time limit requirement. Schedule 1.16(1) has no application here.


236. Sections 22 and 23(2) of the Constitution:


“22. Enforcement of the Constitution

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.”


“23. Sanctions


(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were breach of a provision of this Constitution.”


237. Put the sections together, they emphasis the duty of the court to enforce any mandatory provisions of the Constitution and any constitutional law. The duty comes to play when a dispute or reference is before the court. The procedures required of the Parliament in relation to s 14 are standing orders to regulate distribution of constitutional amendments and proposed Organic Laws. There is no evidence that lack of procedure or rules regulating the method of distribution was the cause of the distribution of the proposed constitutional amendments and the new organic law 9 days before the minimum time limit. It is my respectful view that whatever the procedure or rules in existence would have been subject to the requirement of the one month period. To the extent that the submission that the Clerk of the Parliament should have applied to the National Court for a direction as to the method of distribution, that suggestion is misconceived.


238. Despite my conclusion in relation to the submissions on sections 22 and 23 of the Constitution, should I as a matter of policy consideration entrenched in the legal principles that I referred to in the cases cited earlier, decline to revisit the earlier decision? The first Respondent’s Lawyer Mr. Baker invited the Court to take note that any change in the earlier decision would be disruptive to the present arrangements: the new Organic Law has been in force since July 1995, since the new system of provincial and the local level government had been introduced many appointments including the appointments governors were made under that system. Also the 1966 Appropriation Act had been framed in accordance with the requirement of the new regime. Mrs Mogish for the Second Respondent joined in by submitting that the applicant was the Deputy Governor of Morobe Province under the new regime hence any change to the present law would be detrimental to good administration.


239. All those considerations are important. I think however that the Parliament has legislative ability to adjust the law. With respect the principles are at stake. The force and combined effect of sections 22 and 23 of the Constitution convince me that the court must enforce the mandatory provisions of the Constitution and not minimise or delay their operations because of an absence of some procedure or rules and for that matter a Standing Order. Section 134 was relied on for an argument that the court could not delve into the internal running of the Parliament. That submission is correct in so far as how the circulation of the proposed law may be effected but the one month requirement is part of the substantive provision of section 14 of the Constitution. The Parliament, like the court, is subject to the Constitution. The Parliament and the court cannot do what they like but act and decide in accordance with the provisions of the Constitution. I consider therefore that the court was in glaring error when it held that because of the absence any standing orders the period of “not less than one month” was directory only. I therefore reconsider my view in the First Decision and the Second Decision. The court must overrule its earlier decision.


The sections 12 and 13 Argument


240. My view under this argument remains the same as in the First Decision. That is the new Organic Law is null and void. An Organic Law made under s 12(1) must expressly be authorised by the Constitution. Section 12(1) says:


“(1) For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is –


(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by this Constitution; and
(b) not inconsistent with this Constitution; and
(c) expressed to be an Organic Law.”

241. It is accepted as matters of fact that the constitutional amendment which was meant to authorise the new organic law on Provincial Government and Local Level government and that law were passed simultaneously and certified together although in different sequence as a matter of practicality. A law comes into operation only when it is certified by the Speaker in accordance with s 110(1) of the Constitution. There may be exceptions authorised by subsections (2) and (3) but they do not apply in this case. It is clear that right from the beginning that is from the drafting to debate and to certification of the new Organic Law, there existed no constitutional provision that could authorise the new Organic Law. There is nothing to show, as in the terms of s 110(2), that the constitutional amendment was expressed to come into effect retrospectively. I express doubt that such a method is meant to be used in such an important Constitutional and Organic Law amendment. The provisions of section 12, 13, 14 show that making and passing of Constitutional and Organic Law must be treated with respect. Full consideration and debate on each must take place before passing. They cannot be lumped and dumped together. I would therefore allow the application and grant the declarations sought.


242. SALIKA, J: The facts of this matter have been thoroughly outlined by the Chief Justice, The Deputy Chief Justice, Los J, and Doherty J. I do not wish to repeat them.


243. I agree with the Chief Justice that the basis upon which the applicant seeks the declarations raise the same issues which were argued and have been determined in SC 487 (Isidore Kaseng’s application). The Supreme Court in the Kaseng application after hearing full arguments by all parties declared by a majority that the Constitutional Amendment (Provincial And Local Level Government) Law 1995 and the Organic Law On Provincial And Local Level Government 1995 WERE ENACTED VALIDLY BY PARLIAMENT. Titi Christian the applicant in this application is asking this Court to overturn those declarations. I have read the draft judgement of the Chief Justice and Doherty J and I respectfully agree with them in relation to arguments on Stare decisis, issue estoppel and the per in curium argument.


244. The only aspect on I respectfully differ is in relation to the argument relating to the interpretation of s. 14 of the Constitution. I agree with the argument advanced by the Deputy Chief Justice in relation to that point.


245. The conclusion in the Kaseng application that S. 14 of the Constitution is directory because there are not standing orders to effect it is in my respectful view clearly wrong. Any standing orders or procedure that is adopted whether it is adhoc or permanent relating to circulation pursuant to s. 14 of the Constitution must in my respectful view comply with the mandatory requirements under that section. The procedure must be subject to the constitutional provision and not the other way round as decided in the Kaseng application. The Constitutional provision must remain supreme and not be allowed to be watered down. It has been said that the Court is the custodian of the Constitution. Let the Court be seen as such.


246. I am mindful of the doctrine of Stare decisis and Judicial comity that earlier Supreme Court decisions “should only be overruled after great caution in a clear case.” The Court here is dealing with the proper interpretation of a very important constitutional law. In my view it is proper to correct an earlier error than to ignore and allow the error to stand. In my view this is a “clear case” where the previous decision of the Supreme Court ought to be overturned in relation to its declaration concerning the amendment to the Constitution and the Organic Law on Provincial and Local Level Governments.


247. On that basis along I would rule that the Constitutional Amendment and the amendment to the Organic Law are invalid for that reason and would grant the declarations sought by the applicant in his Originating Summons.


248. DOHERTY, J: This matter comes before the Court by way of an originating summons seeking declarations that –


  1. the applicant is still the Premier of Morobe Provincial government;
  2. that Morobe Tutumang is still the legitimate Government of the people of Morobe province;
  1. that all the elected members of the Morobe Tutumang are still legally in office.

and stating that the declarations are sought on the basis that the Constitutional Amendment (Provincial and Local-Level Government) Law 1995 and the Organic Law on Provincial and Local Level Government 1995 as enacted by the National parliament on 27th June 1995 are invalid and of no effect because –


(i) they were enacted contrary to the mandatory requirements of S.14(2) of the Constitution as they were circulated to Members of Parliament in 21 days which was less and the minimum period of one month provided in S. 14(2) for circulation before formal introduction of the Law to the Parliament; and

(ii) the organic Law was passed under S. 14 of Constitution without the mandatory provisions of S.12(1)(a) of the Constitution for authorisation of the law being complied with.

249. Alternate declarations sought were not pursued.


250. The dates etc. preceding the certification of the laws were not disputed by any of the parties and it is common ground that they were gazetted on the 27th February 1995, circulated on the 7th March 1995 introduced into Parliament on 28th March 1995, a second reading was on the 29th March 1995 and the third reading on the 27th June 1995 and they were certified by the Speaker on the 19th June 1995 and so brought into effect.


251. The constitutionality of the laws was challenged in the Supreme Court by Isidore Kaseng the former Premier of Fly River Provincial Government. His challenge was filed on the 11th June 1995 (i.e less than a month after certification) and argued before the Supreme Court on the 25th July 1995. A decision was given on the 20th September 1995 upholding the validity of the laws. A subsequent application to review that decision was refused on the 30th October 1995.


252. In submission counsel for the applicant was referred to the effect of the decision of the Supreme Court in Isidore Kaseng v. Rabbie Namaliu & The Independent State of Papua New Guinea SC 487 (hereinafter referred to as the Isidore Kaseng decision) and has sought to argue that that decision, despite the fact that it ruled on the constitutionality of the same laws, is not binding on this Court. He bases his argument on the provisions of Sch 2.9 of the Constitution saying the decision was per in curiam, because the Court was not addressed on or/and did not take account of the provisions of S. 13, 22, 23 and Sch 1.16, 1.19 and 1.1 of the Constitution. He further submits that the applicant before this Court is by a different person and seeks different declarations so is a different issue than that put before the Court in the Isidore Kaseng decision, finally stating the Isidore Kaseng decision is wrong and this Court, being bound to uphold the Constitution, must over rule it.


253. I will refer first to the arguments on the doctrine of stare decisis. The powers of the Supreme Court to reconsider its own decisions are contained in Sch 2.9(1) of the Constitution which provides –


“All decisions of law by the Supreme Court are binding on all of the Courts, but not on itself.”


254. All three counsel have referred the Court to various examples where the provisions of the Sch 2.9(1) were discussed and principles enunciated.


255. In SCR No. 2 of 1982 Re: Opai Kunangel Amin SC 231 it was held:

“as a matter of practice care should be taken when questioning the decisions of Supreme Court in such short time with different judges. If this is encouraged then the parties may be led to challenge the decision of the Supreme court before a bench composed of different judges in a short period of time. This could lead to a degree of some uncertainty of the principles of law pronounced by the Supreme Court. This is not desirable.”


256. It was further considered in Daisy Derbyshire v. Tongia [1984] PNGLR 148 at p. 150 that the Court should only depart from an earlier statement that had been made on the law in the most exceptional of circumstances and secondly that such a departure should as a matter of practice should only occur when the Chief Justice is presiding with a bench of four. The concept of exceptional circumstances was repeated in Motor Vehicles Insurance (PNG) Trust v. Reading [1988] PNGLR 236.


257. Public Prosecutor v. John Aia [1978] PNGLR 224 held at 232 “the Supreme Court is not bound by earlier decisions of the Supreme Court (see Sch 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be overruled after great caution in a clear case” “...the Supreme Court should not consider overruling one of its earlier decisions, assuming it considers this earlier decision to be wrong, unless it has heard full argument ... as to the desirability of otherwise ....”


258. The time between the decision and seeking to overrule it is also a pertinent consideration. In the Public Prosecutor v. John Aia [1978] PNGLR 224 changing circumstances and developments from the time the original decision was made were matters that the Supreme Court could bear in mind when considering and reviewing a previous decision. Despite this it did not hold that the lapse of years and changing circumstances were enough to warrant overruling an earlier decision. At page 233 Wilson, J. makes it clear that if the earlier decision must be wrong, there should be full argument as to desirability or otherwise of changing the law by judicial as opposed to legislative decision.


259. Hence the precedents appear to show that in exercising these powers under Sch 2.9(1) the Supreme Court should have regard to the time since the prior decision was made, exceptional circumstances calling for reversal of the previous decision, concepts of comity in judicial decision and the possibility of confusion in the law that can result from changes in decisions of the Supreme Court. There is no doubt that the Supreme Court has overruled previous decision within a comparatively short period of time.


260. Counsel for the applicant and the first respondent has referred us to the decisions of the Supreme Court in the case of Papua New Guinea Law Society v. McEniery [1993] PNGLR 76 which overruled an earlier decision of the Supreme Court in the same year in Lash v. The PNG Law Society [1993] PNGLR 53 on the basis that “the majority decision in Lash should not be followed for there is clearly discernible in the legislation a policy and an intention to restrict the admission of foreign lawyers in Papua New Guinea to those applicants who comply with the strict provisions of S.25 of the Act ...” The Court considered that S. 25 of the Act imposed strict requirements and the policy on which it was based should not be defeated.


261. A further example, not referred to by counsel is Mai Kuri v. The State [1991] PNGLR 311 where a five member bench of the Supreme Court overruled a decision of a Supreme Court in Abiari v. The State [1990] PNGLR 250 stating at p. 312 “We pointed out from the outset that the Court was specifically constituted of five Justices to determine the conflict of opinion that has arisen on S. 8 of the Supreme Court Act Ch. 37”.


262. Hence whilst these cases show that the Supreme Court has overruled its previous decision it has only done so when clearly and unequivocally satisfied that there was an error in the previous decision. The same must apply here. To overrule a previous decision that has not been shown to be wrong is to go against the concepts of Judicial comity and leads to confusion.


263. The counsel for the applicant says that the previous decision is wrong because it was made per in curiam of the provisions of S 13, 22, 23 and Schedules of the Constitution. He refers to the leading authority of Young v. Bristol Aeroplane Co. Ltd [1944] KB 718 where the English Court of Appeal, considering the principles of the doctrine of per in curiam, held that its true meaning depended on the facts, if the Court was not referred to and did not have in mind either a rule, or law, or a previous decision and it considered that “where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of statute the position is very different. It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when the decision was made that provision was not present in its mind.”


264. Hence the doctrine depends on a decision having been made in ignorance of the terms of a statute, rule or decision. Counsel for the respondent has submitted a definition of the term from Stroud Words and Phrases Judicially Defined, which I respectfully adopt, “what is meant by giving a decision per in curiam is giving a decision when a case or statue has not been brought to the attention of the Court and they have given a decision in ignorance or forgetfulness of the existence of that case or that statute.” However, clearly from the precedents it is not enough that the decision was given in ignorance or forgetfulness of the existence of a case or statute. It must be a statue or decision “which covers the point’ to adopt the words of Lord Green M.R. in Young v. Bristol Aeroplane Co. Ltd (supra) It must also, by reason thereof, be decided wrongfully. I apply these principles to the factual situation in the Isidore Kaseng’s decision.


265. Counsel for the applicant submits the decision was per in curiam and to Ss. 13, 22, 23, Sch 1.16 and 1.9 of the Constitution. He says they were not referred to in argument despite the fact that he himself was counsel in the Isidore Kaseng decision. This is factually incorrect. His Honour Deputy Chief Justice at page 13 of the decision refers to S. 13 on more than on occasion and says “submissions in relation to S13(b) and 14 can be considered together.”


266. Counsel also refers, orally and in written submission to S. 22 and 23 but does not say how these could or should have affected the case. S. 22 empowers the National Court to supply procedures to enforce those constitutional provisions dealing with “rights of individuals (including Corporations and Associations)” and “those which confer powers or impose duties on public authorities.” It is an enabling section but there is no argument showing that individual rights or a public authority’s powers or duties required remedial action by the National Court. If it is implied that these provisions relate to S. 14(6) Constitution then S.14(6) was referred to and considered in the judgement. S. 23 provides for sanctions for breaches of constitutional provisions where no other laws make provision. Again there is no submission how S.23 could or should affect the decision and I cannot logically relate its provisions to the Isidore Kaseng decision.


267. Of the 3 schedules Counsel for the applicant refers to Sch. 1.1 is a general statement concerning interpretation, Sch. 1.16 provides for extension of time limits and if anything mitigates against the applicant and Sch 1.19 states the general power to control or direct vested in a court – a power obviously exercised in fact by the bringing of the challenged before the Supreme Court. There is no requirement for the Court to cite its powers when giving a decision.


268. I am unable to see how any of these foregoing sections and schedules were on the point and so could have affected the Isidore Kaseng decision.


269. I do not consider that the decision was per in curiam and I do not uphold this application on such a ground.

270. The applicant further submits that the parties are different and are seeking different relief. There is no doubt that a citizen can come to the Supreme Court on constitutional matters (SCR 4 of 1980; Petition of M.T. Somare [1981] PNGLR 265) but to say the parties are different, to my mind confuses the individual with the position he holds. Mr. Christian was the Premier of Morobe and states this categorically in the originating summons. Mr Kaseng was also a Premier of a Provincial Government and both applied to this Court in their positions as Premiers of their respective provinces. They do not apply as private citizens with a personal cause of action. The action emanates from their official capacity. Under the previous law, the Organic Law on Provincial Government S.12 determined the status of a Provincial Government, there was no distinction drawn between the status or powers of the different Provincial Governments. S. 14 enforces that sameness, it refers to “all provinces.” S. 17(3)(a) provided for a head of each Provincial Executive, the term “premier” was not used in the Organic Law on Provincial Government nor in S. 187 Constitution. Each Provincial Head of Executives had the same status and power. Means of appointing the Provincial Head may have varied from Province to Province but the legal status was the same.


271. I do not consider that these are 2 individual citizens applying to challenge a law. They are heads of Provincial Governments with exactly the same powers and status and the rights and status of these governments have been heard and determined. To try and argue that they are in some way different, with some different locus standi that would enable the court to re-open the issues overlooks the real legal status and is misleading. The status of the new laws in relation to the Provincial Heads of Provincial Government has been heard and determined.


272. Similarly the applications sought whilst different in wordings from the application and the Isidore Kaseng decision, if upheld, would have the same effect as the declarations sought by Mr Kaseng, viz that the two constitutional laws would be declared invalid. I consider that there is no basis for using this argument to seek to have this Court overrule a previous decision.


273. If the Court is to consider each Province has a different legal status then it must follow that the remaining 17 can, one by one, challenge the law, fruitless controversy and litigation (to use the words for the former S. 187D(3) Constitution).


274. Despite the foregoing all counsel have pointed to the duty of the Supreme Court to uphold the Constitution and the rule of law. Counsel for the applicant stressed at considerable length the ruling by the High Court of Australia in the case of The State of Queensland & Another v. Commonwealth of Australia [1977] HCA 60; [1976-1977] 139 C.L.R. 585. The duty of the Court and the justice of Court was restated at p. 593


“no doubt to part from them (previous decisions) is a grave matter and a heavy responsibility. But convinced of their error, the duty to express what is a proper construction is paramount. It is worthwhile I think to recall what Sir Isaac Isaac said ....” The oath of justice of this Court is “to do right to all manner of people according to law”. Our sworn loyalty is to the law itself, and to the organic Law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we have for any of our predecessors erroneously thought it to be, we have, as I conceive no right to chose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong then it should be ultimately right.”


275. The wording of our oath is also “...in all things uphold the Constitution” ... and “do right to all manner of people ...”. So whilst I consider that this Court should not and cannot lightly overturn a previous reasoned decision I apply this principle to the law before me and ask myself was the previous decision “glaringly in error” on the grounds submitted by counsel for the applicants.


276. Counsel for the applicant basically submits again points of law on S. 14 certain procedures to be followed and asks the court to rule that the law is invalid because procedures for its introduction did not accord with the provisions of S. 14(2) of the Constitution. He points again to the period of less than one month when the proposed constitutional amendment was circulated to members of Parliament. This is basically the same argument as put forward in Isidore Kaseng case.


277. The law on the point has been ruled upon between the Provincial Governments and the same two defendants. Whilst, like some of the Judges in Queensland v. Commonwealth of Australia (supra), I have my reservations about the mandatory provisions of S.14(2) and “if I were free to give effect to my own opinions I would hold ( a different opinion).” The Constitution’s mandatory directives must be respected but I consider this matter has been litigated upon between all Provincial Governments and the National Government and cannot be re-opened.


278. I would dismiss this application.


279. ANDREW, J: I have had the advantage of reading the reasons for judgement of Doherty J. I agree with those reasons. I also agree with the judgement and reasons of the Chief Justice and I agree that this application is an abuse of process. I would add only the following:


280. No Justice is entitled to ignore the decision and reasoning of his predecessors and to arrive at his own judgement as though the pages of the law reports were blank, as though the authority of a decision did not survive beyond the rising of the Court. A Justice unlike a legislator cannot introduce a programme of reform which sets at nought decisions formerly made the principles formerly established, see per Gibbs J. in Queensland v Commonwealth {1977-87) [1977] HCA 60; 139 CLR 585 at 599. The earlier decision in Isidore Kaseng v Rabbie Namaliu and The Independent State of Papua New Guinea Unreported Judgement, SC 487, which is now sought to be overturned dealt with exactly the same grounds as are now being argued again. That was not a decision given per in curiam and is not a decision in conflict with some other decision of the court or with some well established principle. Moreover that decision has been acted upon.


281. It seems to me that there has been absolutely no consideration given to what the consequences would be in overruling Kaseng’s case. Stephen j in Queensland v. The Commonwealth (supra) at p 602 said:


“This Court has always asserted it powers to receive its previous decisions; however to do so is exceptional and will only be undertaken 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. These two propositions require no citation of authority, they are axioms of our judicature.”


282. Apart from the obvious consequence of the damage to the standing of the court in the public esteem if it keeps changing its mind, there is the consequence that an entire new system of Government has been introduced throughout the country and has been in operation for around one year. The Constitutional amendments introducing that reform have been declared by this Court to have been validly enacted and Constitutional. To reverse the decision in Kaseng (supra) would be chaotic and irresponsible when there is no legal basis for doing so. The consequence would be that an entire system of Government would be displaced and the people would be unrepresented. It is irrelevant whatever this Court might consider to be the preferred system of Government. It is a fundamental error to say that the rights of the applicant here have not been decided. It is not open for every former Provincial Government or a member of such to repeatedly challenge the Constitutional amendments, on the same grounds when there is no change of circumstances and when those amendments have been declared to be Constitutional by this Court.


283. Finally, there appears to be great reliance on the decision in Queensland v The Commonwealth (Supra) as authority for the proposition that this Court is not bound by its earlier decisions in Constitutional cases and can immediately review those decisions as it sees fit. That case is not authority for that proposition and is a good example of why there should be caution in relying on foreign judgments as authority in the interpretation of the Papua New Guinea Constitution. Firstly, the powers of the Australian Parliament to alter the Constitution of Australia are vastly different to the powers of the Papua New Guinea Parliament to amend the Constitution of Papua New Guinea. Secondly, the Court in Queensland v The Commonwealth (Supra) considered whether it should follow its decision, given some three years earlier, in Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201. Whilst the High Court was of the view that the earlier decision would have to be overruled if the case was to succeed, it was clear that different legislation was being considered and in any event the Constitution of Australia had been amended in the meantime. Three Justices held that the earlier decision was correctly decided, two considered that the earlier decision was wrong but that in the circumstances it should be followed and two considered that the earlier decision should be overruled. All of that is a far cry from this case where absolutely nothing has occurred to justify the reconsideration of a judgement given some four months earlier.


284. If ever there was a case for the application for the rule of STARE DECISIS, this is that case.


285. I would dismiss the application with costs to the Respondent.


286. SEVUA, J: This is an application by Titi Christian (former Premier of Morobe Provincial Government) by way of originating summons where in he seeks certain declarations, one of which is that, he is still the premier of Morobe. He relies on the following grounds: -


  1. That the Constitutional Amendment and the New Organic law were invalid and of no effect on the basis that they were enacted contrary to the mandatory requirements of s.14(2) of the Constitution in that the proposed laws were circulated to members of Parliament 21 days before the laws were introduced to the Parliament, which was less than the minimum period of one month as required by s 14(2) of the Constitution.
  2. That the New Organic Law was passed without there being in force a proper constitutional provision authorising the said New Organic Law contrary to the mandatory requirement of s 12(1)(a) of the Constitution.

287. In order to determine these issues, I consider it important to refer to the two previous Supreme Court decisions that dealt with these similar issues in the case of Isidore Kaseng v Rabbie Namaliu and The State, SC 487 of 20 September, 1995, unreported decision for the Supreme Court. The five member bench of the Supreme Court by a majority of three to two held that the amendments to the Constitution and the Organic Law on Provincial governments were validly enacted and were not unconstitutional. Subsequently, the applicant filed an application for review, in which he asked the Supreme Court to review what was determined by the same five Justices who determined the original application on 20 September, 1995.


288. For purpose of clarity, I set out the terms of the declarations which Isidore Kaseng sought in OS No. 1 of 1995 on 20 September, 1995:-


289. That the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 is unconstitutional and null and void;


  1. That the Organic Law on Provincial Governments and Local-Level Governments 1995 is unconstitutional, null and void;
  2. That the other laws purportedly passed under the Organic Law on Provincial governments and Local-Level Governments 1995 are invalid. These laws are:

290. In the subsequent application for review, Isidore Kaseng sought the same declaration as were sought in his original application. These declarations were in the following terms:-


  1. DECLARATION
  1. That the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 and the Organic Law on Provincial Governments and Local-Level Government Law 1995 enacted by the National Parliament of Papua New Guinea on 27 June, 1995 is invalid and of no effect on the basis that Parliament had breached Section 14(2) of the Constitution in that –
  2. Alternatively, that the Organic Law on (Provincial Governments and Local-Level Governments) Law, 1995 (“Organic Law”) is invalid and of no effect on the basis that there was no proper constitutional provision in force authorising the enactment of the “Organic Law” contrary to the requirements of Section 12(1)(a) of the Constitution. That is:-
  1. CONSEQUENTIAL AMENDMENTS

291. If the Court declares the “Constitutional Amendment” and the “Organic Law” invalid and of no effect then the following consequential amendments by the Parliament also be declared invalid and of no effect:-


(i) Local-Level Government System (Interim and Transitional Arrangements) Law 1995;
(ii) Provincial Governments and Local-Level Governments (Consequential) (Amendments) Law 1995;
(iii) Provincial Government and Local-Level Government (Consequential) (Repeal) Law 1995.

292. The respondents in that application for review filed a motion objecting to the competency of that application on the basis that, firstly the application was an abuse of the Court’s process in that it has not been commenced in compliance with the Supreme Court Rules, secondly, that the Supreme Court lacks jurisdiction to hear that application in that Schedule 2.9(1) of the Constitution does not confer any power of review on the Supreme Court, and thirdly, the Supreme Court lacks jurisdiction to hear and determine that application as the issues the Court was asked to determine, were the same in form and substance as those in OS No. 1 of 1995 and which have finally been determined on 20 September, 1995 and as such, were “res judicata.”


293. As the applicant (Isidore Kaseng) had purportedly sought the review under Schedule 2.9(1) of the Constitution, the Supreme Court consisting of the same five Judges held, inter alia that,


“Schedule 2.9(1) does not confer rights in an unsuccessful applicant or appellant before the Supreme Court to seek a review of that Supreme Court decision before another Supreme Court differently constituted, constituted by the same members or constituted by a large number of Judges. The application for review is therefore incompetent.”


294. In the present application before us, the issues are similar except that, the applicant is different, but the same respondents as were in OS No. 1 of 1995. The Chief Justice has empanelled a seven member bench to determine issues which are similar as those that had already been determined.


295. The applicant in the present case argues that, this Court should revisit the earlier decision of the Supreme Court and over-rule it because he claims the Supreme Court (in Isidore Kaseng’s case) was wrong. He maintains that the Constitutional Amendments were invalid and unconstitutional therefore the applicant must be declared Premier of Morobe.


296. Counsel for the applicant referred to the principles of res judicata and issue estoppel which are discussed by the Deputy Chief Justice and which I do not intend to canvass.


297. He also raised the principle of per in curiam – that the Court can revisit its earlier decision. He maintains that the earlier decision in Kaseng’s case was per in curiam on the basis of Constitution Schedules 1.6, 1.9, 1.1, s.22 and s.23 (2) and repeated the earlier arguments on 2.14 of the Constitution, which I consider, had already been determined. As I alluded to earlier, the Supreme Court in Isidore Kaseng’s case, SC 487, by a majority of three to two held that the amendments to the Constitution and the Organic Law on Provincial Governments were validly enacted and were not unconditional.


298. The Court also held that the requirements of s. 12 and s. 14 of the Constitution as to the manner and form requirements of amendments to the Constitution and the Organic Law are mandatory. The Court by a majority of four to one further held that,


“the requirement that circulation of proposed amendments to the Constitution and the Organic Laws to members of Parliament be made not less than one month prior to their introduction into Parliament (by s.14 of the Constitution) is mandatory, but s. 14 was not fully in effect as the standing orders as to the manner of circulation were not in existence as required by s. 14 and that in these circumstances, s 14 could only be directory ..........and the amendments were not unconstitutional”.


299. In support of the per in curiam argument, counsel referred to the Australian case of Queensland v Commonwealth of Australia & Ors [1977] HCA 60; [1976-1977] 139 CLR 585 and specifically referred to Chief Justice Barwick’s judgment at p 593. I do not think that any of the members of this Court have any difficulty in following the principle in that case. The basis for this principle has already been decided in our jurisdiction. In SCR NO. 2 of 1992[1992] PNGLR 336, the majority of four to one said that Schedule 2.9(1) of the Constitution prescribed clearly that the Supreme Court is not bound by its own earlier decisions. The Court further said, we do not believe that it is wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to over-rule its earlier decision decided by the same number of Judges. This is clearly the intent of Sch. 2.9(1).

300. It is clear that, based on that provision of the Constitution Isidore Kaseng had purportedly sought a review of the Supreme Court decision of 20 September, 1995. The Supreme Court on 31 October, 1995 decided that the application for review by Isidore Kaseng should be dismissed because it was incompetent and an abuse of the process of the Court. Again, I reiterate what the Supreme Court said, in Kaseng’s case, OS 1 of 1995, 31 October, 1995 at p 5,


“Schedule 2.9(1) does not give the Supreme Court jurisdiction nor power or right in an unsuccessful applicant or appellant before an earlier Supreme Court to seek a further review or appeal before another Supreme Court, whether differently constituted, by a larger number of Justices or by the same number of Justices.”


301. Counsel has maintained that this Court should revisit the earlier decision in Isidore Kaseng and overturn it because he maintains that, that decision was wrong in law. However, I consider that, the issue of review or revisiting had already been done and determined on 31 October, 1995. Where in the Constitution or the Supreme Court Act, is there a provision, which confers a right to an applicant to seek a review of a Supreme Court decision twice? I cannot find any such provision under the Constitution and the Supreme Court Act, and I am of the view that the argument by the applicant in the present case, vis a vis, to review the decision in Isidore Kaseng, is tantamount to an abuse of the process of the Court, which should not be entertained nor condoned by this Court.


302. I agree with the learned Chief Justice that these proceedings are an abuse of the process and should therefore be dismissed. I consider that the application borders on Contempt of Court. In my view, the decision in Isidore Kaseng was neither plainly wrong nor manifestly wrong. It is therefore my judgment that that decision was not made per in curiam and this application should also be dismissed for this reason.


303. Whilst the applicants in the present proceedings and in OS No. 1 of 1995 are different, the respondents are the same. I consider that counsel’s submission that the parties are different and are seeking different relief has no basis. It is misleading and in my view, cannot be used to have this Court overturn an earlier decision. I will reiterate that the status of the new legislation now being challenged has already been determined. I agree with Doherty, J’s discussion on this aspect. I am of the view that her discussions are quiet well considered and I am in full agreement with her on that aspect.


304. I would dismiss this application with costs to the respondents.

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