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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCCA NO 1 OF 2025
IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)
APPLICATION BY THE HONOURABLE JAMES NOMANE MP,
MEMBER FOR CHUAVE OPEN &
DEPUTY LEADER OF THE OPPOSITION
WAIGANI: SALIKA CJ, CANNINGS J, KARIKO J, DINGAKE J
26, 28 MAY 2025
SUPREME COURT – PRACTICE AND PROCEDURE – application made following a final decision of Supreme Court on a s 18(1) Constitution application for clarification of effect of the decision and for an order that a constitutional amendment has no effect on the subject matter of the decision – whether that application should be summarily determined – whether that application is frivolous, vexatious or an abuse of process.
Seventeen days after delivery of the final judgment of the Supreme Court on an application under s 18(1) of the Constitution, the applicant (who had obtained the relief that he sought) filed an application in the Court seeking clarification of the effect of the judgment and an order that a certain constitutional amendment had no effect on the subject matter of the judgment. The second intervener filed, with leave, a notice of objection to competency of the application and an application for its summary determination on the grounds that it was frivolous, vexatious, failed to disclose a reasonable cause of action and an abuse of process. The Court heard the objection to competency and the application for summary determination and reserved judgment.
Held:
(1) The post-judgment application was an abuse of process as it did not allege any error on the part of the Supreme Court but simply sought clarification of a final decision of the Supreme Court. It is not necessary or appropriate for the Supreme Court to clarify a final decision on any matter unless leave to make a slip rule application is granted or special and exceptional circumstances make it necessary to issue clarification. This was not a slip rule application and no special or exceptional circumstances existed to warrant clarification of the judgment.
(2) Furthermore, the application sought the Court’s opinion on the interpretation and application of a provision of the Constitution that was not the subject of the s 18(1) application that was finally determined by the Court. The applicant was, through the application, raising a new cause of action, and could only properly do so by commencing a fresh s 18(1) Constitution application.
(3) The post-judgment application was therefore summarily determined and dismissed on application by the second intervener under Order 13 rule 16(1)(a) of the Supreme Court Rules. It was unnecessary to consider the other grounds of summary determination relied on or the objection to competency.
Cases cited
Application by Nomane (2025) SC2721
Motor Vehicles Insurance Ltd v Yama Security Services (2009) SC1004
NCDC v Sixth Estate Ltd (2022) SC2346
Polye v Papaki (1999) SC643
Tai v ANZ Banking Group Ltd (2018) SC1681
Wallbank v The State [1994] PNGLR 78
Counsel
P Mawa for the applicant
S Ranewa for the first intervener, the Speaker of the National Parliament
D Mel & N Pilamb for the second intervener, the Attorney-General
1. BY THE COURT: This is our ruling on an application for summary determination of an application that was filed after a final decision of the Supreme Court.
2. The background is that on 31 March 2025 we delivered a final decision on an application by the applicant, Hon James Nomane MP, under s 18(1) of the Constitution regarding a motion of no confidence in the Prime Minister dated 27 November 2024.
3. We ruled amongst other things that the decision of the Private Business Committee of the National Parliament to reject that motion was unconstitutional. We ordered that the Speaker (the first intervener) take all steps necessary to recall the Parliament on 8 April 2025 and to facilitate debate on the motion of no confidence (Application by Nomane (2025) SC2721).
4. Our order was complied with. The Parliament convened on 8 April 2025. On 15 April 2025 the motion of no confidence was debated and voted on and it was unsuccessful.
5. Two days later, on 17 April 2025, which was 17 days after the final decision of the Court, the applicant filed an application (a ‘post-judgment application’) in the Court seeking clarification of the effect of the judgment and an order that a certain constitutional amendment has no effect on the subject matter of the judgment.
6. The application, in addition to seeking directions to remedy the lack of form and procedure provided by the Supreme Court Rules, seeks orders under Order 11 rule 32(1) of the Rules and s 155(4) of the Constitution that:
(a) the decision and orders of the Supreme Court made in this proceeding on 31 March 2025 be clarified in respect of the extent of the application of Constitutional Amendment No 48 (Motions of No Confidence) Law 2025 to the motion of no confidence of 27 November 2024; and
(b) the ancillary order be made that the Constitutional Amendment No 48 (Motions of No Confidence) Law 2025 has no application whatsoever to the motion of no confidence in the Prime Minister of 27 November 2024, which was dealt with by the Parliament on 15 April 2025.
Constitutional Amendment No 48 amended s 145 of the Constitution by inserting a new subsection (5), which states:
Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.
7. That amendment came into operation, under s 110 of the Constitution, on the date of certification by the Speaker, 17 March 2025.
8. We took judicial notice of Constitutional Amendment No 48 in our judgment of 31 March 2025, commenting as follows:
We digress at this point to note that very recently, the Parliament made a law that amended s 145 of the Constitution. We understand that by Constitutional Amendment No 48 (Motions of No Confidence) Law 2025, s 145 has been amended by insertion of a new s 145(5). The new subsection provides that where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister shall not be moved for a period of 18 months commencing on the date that the motion of no confidence was unsuccessful.
We understand that Constitutional Amendment No 48 is not expressed to operate retrospectively. Therefore under s 110(1) of the Constitution it came into operation on the date of certification by the Speaker. We understand that it was certified on 17 March 2025.
None of the parties made submissions on the effect of Constitutional Amendment No 48 on these proceedings. We consider that it has no effect. We will interpret and apply the law, including s 145 of the Constitution, as it was on 27 November 2024.
9. The applicant now wants us to elaborate on those comments and clarify that the 18-month period after an unsuccessful motion of no confidence in the Prime Minister, within which a fresh motion of no confidence in the Prime Minister shall not be moved, has no application to the motion of no confidence in the Prime Minister dated 27 November 2024.
10. The applicant apparently wants to argue that that motion of no confidence should have been allowed to be moved on 27 November 2024 or soon thereafter, but because of the unconstitutional actions of the Private Business Committee, that did not happen. So, the fact that it was unsuccessful on 15 April 2025, should not be a trigger to the 18-month period referred to in the new s 145(5) of the Constitution.
OBJECTION TO COMPETENCY AND APPLICATION FOR SUMMARY DETERMINATION
11. On 9 May 2025 the second intervener, the Attorney-General, filed, with leave, a notice of objection to competency of the applicant’s application of 17 April 2025 and an application for its summary determination.
12. The first intervener, the Speaker of the National Parliament, supports both the objection to competency and the application for summary determination of the application of 17 April 2025.
13. The application for summary determination is made under Order 13 rule 16(1)(a) of the Supreme Court Rules, which provides that the Court “may summarily determine a matter ... on application by a party”. The application is made on the grounds that the application of 17 April 2025 is frivolous, vexatious, fails to disclose a reasonable cause of action and an abuse of process.
14. We heard extensive argument on both the objection to competency and the application for summary determination. We first address the application for summary determination and in particular the ground of abuse of process.
15. We are satisfied that the applicant’s application of 17 April 2025 is an abuse of process. The application does not allege any error on the part of the Supreme Court but simply seeks clarification of a final decision of the Supreme Court. This is offensive to the principle of finality of litigation.
16. The Supreme Court is the highest court in the land. When it makes a final decision in a case, that is the end of the case, and with very limited exceptions, that should be and is the end of the matter (Wallbank v The State [1994] PNGLR 78, Polye v Papaki (1999) SC643, Motor Vehicles Insurance Ltd v Yama Security Services (2009) SC1004, Tai v ANZ Banking Group Ltd (2018) SC1681, NCDC v Sixth Estate Ltd (2022) SC2346).
17. It is not necessary or appropriate for the Supreme Court to clarify a final decision on any matter unless leave to make a slip rule application is granted under the procedure provided for in Division 11.16 (applications subsequent to disposal of proceedings) of the Supreme Court Rules or special or exceptional circumstances make it necessary to issue clarification.
18. This was not a slip rule application and no special or exceptional circumstances exist to warrant clarification of the effect
of the judgment of 31 March 2025.
19. Furthermore, the application of 17 April 2025 seeks the Court’s opinion on the interpretation and application of s 145(5)
of the Constitution. That provision was not, however, as we pointed out above, considered by the Court in its judgment of 31 March 2025.
20. The applicant is, through the application of 17 April 2025, raising a new cause of action. He can only properly do that by commencing a fresh s 18(1) Constitution application. He or any other like-minded member of the Parliament could organise a fresh motion of no confidence in the Prime Minister and if, like the motion of no confidence dated 27 November 2024, it is rejected by the Private Business Committee or by the Speaker, perhaps on the ground that it is prohibited by s 145(5) of the Constitution, then the applicant or other mover of such a motion, could approach the Supreme Court with a fresh s 18(1) Constitution application. Then the question of interpretation and application of s 145(5) would be properly before the Court.
21. Alternatively, the issues the applicant wishes to have determined by the Court could be raised by an appropriate authority making a reference to the Supreme Court under s 19 of the Constitution, seeking the Court’s binding opinion on the interpretation and application of s 145(5).
22. To sum up, there are a number of ways by which the issues that the applicant wants clarified can properly be brought before the Supreme Court. Making a post-judgment application to get the Court to clarify the effect of its final decision is not one of those ways. Hence our determination that the application of 17 April 2025 is an abuse of process.
CONCLUSION
23. The application of 17 April 2025 is an abuse of process. It must be summarily determined and dismissed. It is unnecessary to consider the other grounds for summary determination raised by the second intervener. It is also unnecessary to consider the objection to competency. Costs will follow the event.
ORDER
_____________________________________________________________
Lawyers for the applicant: Mawa Lawyers
Lawyers for the first intervener: Kawat Lawyers
Lawyers for the second intervener: Mel & Hennry Lawyers
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URL: http://www.paclii.org/pg/cases/PGSC/2025/45.html