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Augerea v Gamato [2018] PGSC 77; SC1745 (23 November 2018)

SC1745

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 182 OF 2018

IN THE SPECIAL PROCEEDING OF ENFORCEMENT OF BASIC RIGHTS PURSUANT TO SECTION 57 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

BETWEEN:
IAN AUGEREA
Appellant

AND:
PATILIAS GAMATO as the
Electoral Commissioner of Papua New Guinea
First Respondent

AND:
THE ELECTORAL COMMISION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2018: 21 November

Cases Cited:

NCDC v Namo Trading Ltd (2001) SC 663
Punagi v Pacific Plantation Timber Ltd (2011) PG SC38

Counsel:

Ms. Alice Kimbu, for the Appellant
Mr. Derek Wood, for the Respondents

23 November, 2018

1. DINGAKE J: This is an application for Stay of the Orders of the National Court delivered on the 2^nd of November, 2018, pending the determination of the substantive appeal.
2. The appeal relates to the decision of the National Court (per Polume-Kiele J) in which the Court found Mr. Patilius Gamato, in his capacity as the Electoral Commissioner of Papua New GUinea accountable for breaches of Section 50 and 56 of the Constitution.
3. The decision of the Court followed an originating Summons filed by Ian Augerea, on the 23^rd of November, 2017, in his capacity as the Registrar of the National & Supreme Courts of Papua New Guinea, in proceedings for the enforcement of basic rights pursuant to Section 57 of the Constitution of PNG.
4. The originating summons (OS No. 907 of 2017) sought a declaration that the failure by the applicant(s) to hold the elections as required by the Supreme Court and National Court, resulted in a breach of the constitutional rights of the people of Southern Highlands Province, Jiwaka Province, Eastern Highlands Province and Western Highlands Province to vote in elections and stand for public office pursuant to Section 50 and 56 of the Constitution.
5. In order to appreciate the context of this application, it is important to outline, albeit briefly, the background facts.
6. On the papers filed of record, it would seem that Supreme Court in SCREF No. 3 of 2013 (Special Reference pursuant to Section 19 of the Constitution by the Western Highlands Provincial Government), and the National Court in proceedings OS(JR) No. 543 of 2013 (Punda v Wiyo & Ors) and OS(JR) No. 684 of 2013 (Hon. Nathan Wantepe & Ors v Andrew Trawen & Ors) made orders that the Electoral Commissioner and the Electoral Commission hold supplementary LLG elections in a number of highlands provinces.
7. On 2^nd November, 2018, the National Court delivered its judgment holding that the appellants had breached Sections 50 and 56 of the Constitution. The Court then invoked Section 23 of the Constitution which empowers it to impose sanctions for breaches of constitutional rights and ordered a return date to hear submissions on penalty. The hearing on penalty is scheduled for the 26^th of November, 2018.
8. Section 23 of the Constitution provides that:
   • “23. Sanctions.
   • (1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—
     • (a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
     • (b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,
     • or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.
   • (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 a breach of a provision of this Constitution.
   • (3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).”
9. On the 15^th of November, 2018, the applicant filed a notice of appeal, seeking to overturn the decision of the National Court delivered on the 2^nd November, 2018, on a number of grounds captured in the applicant’s notice of appeal.
10. The respondent has taken a preliminary issue, being that the notice of appeal filed on the 15^th of November, 2018, is incompetent because the decision of the National Court of the 2^nd of November, 2018, which is the subject of appeal is an interlocutory decision and that the appellants should have sought leave to appeal by filing application for leave to appeal.
11. The test to be applied in determining whether a judgment is interlocutory or final was enunciated in the case of NCDC v Namo Trading Ltd (2001) SC 663, at page 3, paragraph 7, in the following terms:
    
    • “In our view, the test to be applied is whether the judgment and order is final in that it "finally disposes of the right of the disputing parties" or "there is no substantive issue(s) afoot that remains to be tried" (La Jarden Collected Agency Pty Ltd v Richard Hill; Ors Supra SC 597 [1998], or "because the order results in the rights of the parties in those proceedings being terminated or extinguished" (NCDC v PNG Water Ltd & Ors SC 624 (199).”
12. It is plain from the above authority that the Order is final if it finally determines the matter in litigation.
13. At the end of the day the issue of final or interlocutory depends on the nature and effect of the order made and the circumstances of each case (Punagi v Pacific Plantation Timber Ltd (2011) PG SC38).
14. Having regard to the evidence filed of record, and in particular the judgment of the National Court dated 2^nd November, 2018, it is clear to me that the process commenced with respect to the originating summons initiated by the respondent has not been completed. The process shall only end, once the applicant has been heard on penalty and an appropriate sentence imposed. It follows therefore that the decision of the Court sought to be challenged or appealed against is interlocutory in nature.
15. I am fortified in the conclusion, I have reached and on what amounts to an interlocutory order and or judgment by the full bench decision of this Court, comprising five (5) justices in the case of Punagi, cited above.
16. In my mind, it would be wrong to fragment the proceedings in the manner the applicant seeks to do. The decision of the Court taken on the 2^nd November, 2018, finding the Commissioner of Elections liable has no practical effect until sentence is passed.
17. It follows in my view that the decision of the Court sought to be appealed against is interlocutory in nature and does not finally dispose of the right of the parties. In the circumstances, the applicant should have filed an application for leave to appeal. For competences, I state that I have considered Section 14(3) (b) of the Supreme Court Act that requires leave from an interlocutory judgment made. The exceptions therein are inapplicable. Although there is a potential for the applicant’s liberty to be affected, it would be speculative and premature to say that his liberty has been affected as the Court has not pronounced its decision yet.
18. In my respectful opinion, having regard to nature and effect of the order and or decision sought to be appealed against and the circumstances of this case it would be an abuse of the process to seek to separate liability from penalty.
19. In the result, the stay application is without merit and it is refused with costs.

___________________________________________________________
Kimbu & Associate Lawyers: Lawyers for the Applicant
Ashurst PNG Lawyers: Lawyers for the Respondent