Ian Molloy

Barrister

Constitutional and Judicial Review

Ganim v Abal (16 July 2013, Hartshorn J)
Election petition – National Government Elections – objection to competency – prerequisite of s 208(a) and 209 of the Organic Law on National and Local-level Government Elections – winning margin – result affected or likely to be affected - allegations of ‘illegal practices’, ‘errors’ or ‘omissions’.

Talita v Ipatas (16 July 2013, Lenalia J)
Election petition – National Government Elections – objection to competency – prerequisite of s 208(a) and 209 of the Organic Law on National and Local-level Government Elections – allegations of ‘illegal practices’, ‘errors’ or ‘omissions’.

Namah v Pato (4 July 2013, Cannings, Kassman & Murray JJ)
Practice & procedure – application under s 18 (1) of the Constitution – Supreme Court Rules 2012 – objection to competency – applicant required to sign – interpretation and application of constitutional law – Manus refugee centre.

Open Bay Timber Limited v Tzen Plantations Limited (Cannings J, 26 March 2013)
Judicial review – Forestry Act s 139A – right of occupancy – Land Act – State leases – Land Registration Act – vacant land – indefeasibility of title – exemption from advertisement – meaning of fraud – Land Board – natural justice – unreasonableness.

Honourable Leo Dion v Sir John Kaputin (Davani J, 13 February 2013)
Election petition – General Election – competency – bribery and undue influence – pre-requisites – material facts.

Wawoi Guavi Timber Company Limited v Mondiai (Davani J, 12 October 2012)
Application for leave to appeal – refusal to stay or dismiss proceedings as an abuse of process - principles governing grant of leave – discretionary judgment – same arguments available on substantive hearing – application refused.

PNG Forest Industries Association v Kora (26 September 2012, Kirriwom J)
Judicial review – application for leave – principles.

Aipa v Samson [2012] PGNC 185; N4777
Judicial review – decision of Deputy Registrar of Titles to cancel title of grantee of State lease – whether procedure for cancellation in Land Registration Act, ss 160 and 161, followed – natural justice – decision cancelling title quashed.

In re Honourable Arthur Somare (Leadership Tribunal - 24 July 2012)
Leadership Tribunal - Organic Law on Duties and Responsibilities of Leadership – proof of misconduct - evidence – charges misconceived.

In re Constitution Section 19(1) - Special reference by Allan Marat; In re Constitution Section 19(1) and 3(a) - Special reference by the National Parliament [2012] PGSC 20; SC1187
Constitution s 19 (2) – binding effect of opinions of the Supreme Court in Supreme Court References – doctrine of separation of powers – Constitution ss 99 (3), 9, 10, 11 and 155 (2) (b) – Supreme law making powers of the Parliament - Supreme Court has unlimited jurisdiction – inherent power – scheme of the Constitution - Supreme Court Act ss 1 and 7 – interpretation and application of constitutional law – amendments to Prime Minister and Executive Council Act 2002 – amendments having retrospective effect - appointment of Prime Minister – doctrine of res judicata – justiciability of advice to the Head of State – justiciability of decisions of the Head of State – Whether the Head of State has discretion on advice by Parliament regarding election of the Prime Minister – Constitution s. 142 (2) – scheme of the Constitution - Organic Law on National and Local-level Government Elections - constitutional safeguard and protection over executive acts - Prime Minister occupying office without legal right – de facto Prime Minister – de facto government – Meaning of a de facto government - neither Parliament nor elected Members of Parliament, individually or collectively, exempted from complying with court orders, judgments, decisions, rulings or opinions.

Re Judicial Conduct Act 2012 [2012] PGSC 12; SC1178
Constitutional reference – jurisdiction to grant interim relief – parliamentary privilege.

Somare v Nape [2012] PGSC 21; SC1175
Interim injunction – restraining members of Parliament – Constitution s 115(3) – Judicial Conduct Act 2012.

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Kimas v Boera Development Corporation Ltd [2012] PGSC 8; SC1172
Appeal - judicial review – application for leave – standing – whether Minister should be named as a defendant where decision of delegate of Minister – whether claims that particular provisions of Act of Parliament are unconstitutional can be included in a judicial review – need for applicant to exhaust administrative remedies – whether undue delay in making application for leave – whether procedural requirements under Order 16 met – effect of application for leave seeking declarations and orders that bear no direct connection to the matter to which the application relates.

Reference pursuant to Constitution s 19(1); Allan Marat [2012] PGSC 1; SC1149
Constitutional reference – interveners – objection to competency – political and constitutional issues.

Medaing v Ramu Nico Management (MCC) Limited (SC 22 December 2011)
Appeal – cross-appeal – refusal of quia temet injunction - discretionary judgment – principles – declarations not sought – public and private nuisance – elements of causes of action – Constitution - justiciability of National Goals and Directive Principles – appeal dismissed – cross-appeal allowed.

National Capital Limited v Bank of Papua New Guinea (NC 18 December 2011)
Judicial review – application for leave – principles – arguable case – revocation of licence – Superannuation (Special Provisions) Act 2000.

Rabaul Shipping Limited v PNG Ports Corporation Limited (NC 12 December 2011)
Judicial review – application for leave to apply – delay – satisfactory explanation – Regulations – ultra vires.

Special Reference No 3 of 2011; East Sepik Provincial Executive; Re Office of Prime Minister (SC 12 December 2011)
Constitution – occasion for election of Prime Minister – vacancy in office – powers of Parliament – Prime Minister and NEC Act – Public Health Act – soundness of mind – absence from Parliament – vacancy in seat – powers of Speaker.

Mondiai v Wawoi Guavi Timber Company Limited (NC 19 October 2011)
Judicial review - application to dismiss – futility – issues overtaken by events - Forestry (Timber Permits Validation) Act.

Arthur Somare v Honourable Justice Lenalia (NC 17 October 2011)
Judicial review – referral to Leadership Tribunal – Public Prosecutor – delegation of powers – State Prosecutor - Constitution – alleged ultra vires – Organic Law on Duties and Responsibilities of Leadership.

Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) PGSC 17
Original jurisdiction of the Supreme Court - case brought under s. 18(1) of the Constitution

Arthur Somare v Ilo Geno (NC 3 June 2011)
Judicial Review – Ombudsman Commission – Organic Law on Duties and Responsibilities of Leadership – right to be heard – bias – irrelevant considerations - investigation – referral.

Jim Simatab SCR No 31 of 2008 (SC May 2011)
Slip rule – elections petition – right to be heard.

Re Grand Chief Sir Michael Thomas Somare (Leadership Tribunal – 24 March 2011)
Leadership Tribunal – Constitution - Organic Law on Duties and Responsibilities of Leadership – penalty following findings of misconduct – principles – suspension from office for two weeks.

Re Grand Chief Sir Michael Thomas Somare (Leadership Tribunal – 22 March 2011)
Leadership Tribunal – Constitution - Organic Law on Duties and Responsibilities of Leadership – findings of misconduct – standard of proof – evidence – unnecessary charges.

Re Grand Chief Sir Michael Thomas Somare (Leadership Tribunal – 15 March 2011)
Leadership Tribunal – Constitution - Organic Law on Duties and Responsibilities of Leadership – suspension of Prime Minister pending hearing and determination – discretion – principles.

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Timbers (PNG) Limited v Valentine Kambori (2010) N4282
Application to dismiss - proceeding bound to fail if allowed to proceed to a substantive hearing - conflict with an existing order of the Supreme Court.

SCR No 7 of 2008; Constitution s18(1) Reference; Re Forestry Act (2010) SC1087
Reference by citizen – Forestry (Timber Permits Validation) Act 2007 – objection to competency – section 18(1) jurisdiction – Supreme Court Rules – inconsistency with Constitution – validity of rule – reference incompetent.

SCR No 5 of 2005; Constitution s19 Reference by Ombudsman Commission (2010) SC1086
Constitutional law – special reference – Forestry Act 1991 – National Goals and Directive Principles – non-justiciable.

Tarsie v Wari Iamo [2010] PGNC 39 N4033
Judicial review – application for leave to seek review of decisions of Director of Environment to grant amendment to environment permit – Environment Act, Section 71 – requirements for granting of leave – whether an arguable case exists – whether there has been undue delay – leave refused.

Madang Timbers Ltd v Kambori [2009] PGSC 18 SC1000
Statutory interpretation - whether the National Forest Board has power to enter into a project agreement that has not been submitted by a Provincial Forest Management Committee under section 71(b) of the Forestry Act 1991 - whether National Forest Board can consider more than one project agreement.

Constitution s155(2)(b) Application by Herman Joseph Leahy [2009] PGSC 17 SC994
Appeals and reviews – decision of National Court to allow amendment of indictment that had been presented under Criminal Code, section 526 – application for leave to seek review under section 155(2)(b) Constitution – criteria to be satisfied.

Gelu v Sir Michael Somare [2009] PGNC 21 N3647
Application to dismiss judicial review proceeding for want of prosecution – Order 4 Rule 36 National Court Rules - likelihood of prejudice caused to defendants by delay in prosecuting proceedings to be considered - onus upon applicants to prosecute their claim especially in judicial review proceedings - applicants not properly prosecuting proceeding with due despatch – application to dismiss proceedings for want of prosecution granted.

Gelu v Sir Michael Somare [2008] PGNC 166 N3526
Judicial review – application for stay of proceedings following grant of leave to seek judicial review – National Court Rules, Order 16, Rule 3(8) – principles to apply when determining whether to grant a stay of proceedings.  

Gelu v Sir Michael Somare [2008] PGNC 174 N3524
Judicial review – application for leave to seek judicial review – whether undue and unjustifiable delay in making application – whether alleged breaches of the Constitution can form grounds on which judicial review is sought – whether judicial review procedure can be used to challenge constitutional validity of an Act of the Parliament – whether applicant has an arguable case.

Telikom PNG Ltd v Newsat Ltd [2007] PGNC 160 N3451
National Court – leave sought to file a draft constitutional reference -  application misconceived and premature - National Court can only refer constitutional questions to the Supreme Court after making findings of fact necessary to provide a platform on which the Supreme Court can determine the questions.

Makeng v Timbers (PNG) Ltd [2008] PGNC 78 N3317
Judicial review – whether Court has jurisdiction to grant stay or other interim relief before grant of leave to apply for judicial review – Order 16 r 3 (8), National Court Rules, Constitution, s 155 (4).

Wawoi Guavi Timber Company Limited v Mondiai [2007] PGSC 47 SC1028
Appeal –application for leave to appeal from an interlocutory judgment granting leave to apply for judicial review – leave to appeal against grant of leave for judicial review necessary –- s.14 Supreme Court Act, Order 16 rule 3 National Court Rules  

SC Ref No 3 of 2006; In the Matter of Section 19 of the Constitution of the Independent State of Papua New Guinea; Ruling on Costs [2007] PGSC 43 SC918
Costs – constitutional reference struck out – whether referrer should pay costs of interveners.

In the Matter of Section 19 of the Constitution of the Independent State of Papua New Guinea; Reference by Fly River Provincial Executive [2007] PGSC 42 SC917
Constitutional law – special references under Constitution, Section 19 – practice and procedure – whether a special reference must be signed by a proper officer on behalf of the referring authority – whether an authority’s lawyer can sign the reference – Supreme Court Rules, Order 4, Rule 1(e) – consequences of non-compliance with Rules – whether reference should be struck out.

Mondiai v Wawoi Guavi Timber Co Ltd [2007] PGSC 6 SC886
Supreme Court  Rules -Order 10 appeal- objection to competency – whether any provision for  – adding appellant after 40 days – whether rule constrained by Supreme Court Act s17 – whether leave required for person not a party to appeal – meaning of “sufficient interest” National Court Rules 016 r 3(5).

Enhanced Cooperation between PNG and Australia Act [2005] SC785
Constitutional law - Special Reference by Morobe Provincial Executive under Section 19 of the Constitution – whether the Enhanced Cooperation between Papua New Guinea and Australia Act 2004 is inconsistent with the Constitution – Constitution breached – Act unconstitutional.

Validity of Value Added Tax Act 1998: SCR No 1 of 2000 [2002] SC693
Special Reference under Section 19 of the Constitution – Constitutional validity of Value Added Tax Act – Act invalid.

Sir Mekere Morauta v Aloysius Eviaisa [2002] SC685
Administrative law - appeal from judicial review under National Court Rules – recommendation for appointment under the Public Officers Superannuation Fund Act – whether recommendation secured by threat, duress or intimidation – court’s function.

Garamut Enterprises Limited v Steamships Trading Company Ltd [1999] SC625
Application for leave to apply for judicial review – Leave granted – Appeal against Grant of Leave – Appeal incompetent – National Court Rules – Supreme Court Act and Rules.

Rimbink Pato v Anthony Manjin [1999] SC622
Application for leave to appeal – Interlocutory injunction restraining police from investigation and arresting Applicant – Discharge of interlocutory injunction – Whether leave required – Refusal of leave.

SCR No 35 of1996: TST Holdings Pty Ltd v Tom Pelis [1997] SC534
Review pursuant to Sections 155(2)(b) and 155(4) of the Constitution – jurisdiction to review – leave required – statutory requirements – demonstration of an arguable case.

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National Executive Council v Public Employees Association [1993] PNGLR 264
State Services – appointment of a departmental head – compulsory retirement at 60.
Constitutional law – qualified rights – freedom of employment – whether compulsory retirement at age unconstitutional.

Independent State of Papua New Guinea v NTN Pty Limited [1992] PNGLR 1
Constitutionality – invalidating legislation – qualifying qualified rights – freedom of expression – compliance with manner and form requirements. Legislation regulating broadcasting licence – Radiocommunications Act – non-compliance with Constitutional requirements.

Papua New Guinea Coffee Industry Board v Panga Coffee Factory Pty Ltd [1990] PNGLR 363
Statutory powers and duties – licence conditions conflicting with contractual provisions - whether licensing power fettered by contractual provisions of coffee stockpiling agreement.

Public Employees Association of Papua New Guinea v Public Services Commission [1988-1989] PNGLR 585
Interlocutory injunction – principles upon which granted – serious question for determination – balance of convenience. State Services – public servants – strike action – breach of Public Service Act – nature of breach – disciplinary offence only – no constitutional protection.

Ross Bishop v Bishop Bros Engineering Pty Ltd [1988-1989] PNGLR 533
Contempt – civil contempt – disobedience of court order – order must be clear and unambiguous – proper service – wilful disobedience – standard of proof beyond reasonable doubt – rights of contemnor – same constitutional rights as person charged with an offence – Constitution, s 37.

Bougainville Copper Foundation v Minister for Trade and Industry
[1988-1989] PNGLR 110

Judicial review of administrative acts – natural justice – revocation of statutory licence or exemption – scope of power to revoke – revocation affecting livelihood – duty to give prior notice, grounds for an opportunity to be heard – Minister acting on report of departmental officer – revocation of statutory exemption to foreign enterprise – rules of natural justice breached – National Investment and Development Act.

Supreme Court Review No 5 of 1987, Re Central Banking (Foreign Exchange And Gold) Regulations (Ch No 138) [1987] PNGLR 433
Ruling on demurrer before plea taken – no acquittal – no appeal procedures available – important question of law – review procedure available – Constitution, s 155(2). Banks and banking – offences – foreign exchange control – validity of regulations – offence of sending foreign currency out of country – regulation within power – Central Banking Act – Central Banking (Foreign Exchange and Gold) Regulations.

Review pursuant to Constitution S155(2)(b); Application by Acting Public Prosecutor [1987] PNGLR 216
Public Prosecutor – standing and role of – no standing to seek judicial review on demurrer to indictment – Constitution ss 156, 177 – Public Prosecutor (Office and Functions) Act – Supreme Court Act.

NTN Pty Limited v Post & Telecommunication Corporation [1987] PNGLR 70
Judicial review application – discretion – grounds for exercise of – where application out of time – National Court Rules, O 16, rr 3, 4 – Constitution, s 60.

NTN Pty Limited v The State [1986] PNGLR 167
By-laws and regulations – validity – regulatory power – whether prohibitory power included – regulation invalid - Radiocommunications Act.

Michael John Carter v Korobosea Developments Pty Ltd [1986] PNGLR 157
Practice – Supreme Court – reservation of points of law – National Court – where dependent on disputed facts – reservation not appropriate – need to advance or dispose of litigation – Supreme Court Act (Ch No 37), s 15.

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The Ship “Federal Huron” v Ok Tedi Mining Ltd [1986] PNGLR 5
Shipping and navigation – admiralty jurisdiction – law and practice for Papua New Guinea – Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed as underlying law - adoption of pre-Independence laws - reception of common law – “notwithstanding” revision by statute – meaning and effect of – statutory modifications excluded - Constitution, Schs 2.3, 2.4, 2.6(2).

Ume More v University of Papua New Guinea [1985] PNGLR 401
Enforcement proceedings under Constitution – basic rights - relevant practice of civil law applicable. Representative orders – when available – sanctions for anticipated breach not available – National Court Rules, O 5, r 13. Injunctions – availability of criminal sanctions – failure to take any steps to invoke criminal sanctions.

Kevin Masive v Iambakey Okuk [1985] PNGLR 263
Parliament – elections – candidate’s qualifications disputed – jurisdiction of National Court before polling commenced – Organic Law on National Elections – Constitution – right to stand for election - right enforceable against candidate not properly qualified.

Korobosea Developments Pty Ltd v Michael John Carter [1984] Unreported
Constitution section 18 – interpretation of Constitution - referral of question to Supreme Court – need to determine facts – referral premature.

Public Employees Association v Public Service Commission [1982] PNGLR 206
State Services – public servants – strike action – breach of Public Service Act – nature of breach – disciplinary offence only – not criminal offence – Public Service Act, (Ch. No. 67), s.85 – Constitution s.37(3).

Re James Allan Sannga Deceased [1983] PNGLR 142
Automatic citizen – absolute right to make statutory will – limitations as to property that may be so disposed of – customary land excepted – Wills, Probate and Administration Act 1966 - Native Regulations (Papua).

Papua New Guinea Air Pilots Association v Director of Civil Aviation
[1983] PNGLR 1

Declaratory orders – locus standi of Air Pilots Association to intervene between Director of Civil Aviation and Air Niugini. Civil Aviation – regulation of air navigation – licensing of aerodromes – safety requirements and standards – powers.

Gumanch Plantations Pty Limited v Thomas Kavali [1980] Unreported, Miles J
Interlocutory injunction – principles – compulsory acquisition of plantation - serious question – Anisminic case – sufficiency of damages.

In the Matter of the Industrial Relations Act 1962 Between Peter Lindsay Condon and the National Airline Commission of Papua New Guinea
[1978] PNGLR 1

Industrial law – jurisdiction and power of industrial tribunals – “industrial dispute” – retrospectivity of award – termination of services – meaning of expression “dispute arising from a contract of employment the particulars of which are contested by either party” – Industrial Relations Act 1962, s.27 - Industrial Organizations Act 1962, s.4.

Brian Michael Costello v Controller of Civil Aviation (No. 2) [1977] PNGLR 476
Civil aviation – pilot’s licence – appeal against refusal on ground that applicant by reason of colour vision defect did not meet vision standards – failure to prove requirements of medical standards met – Civil Aviation (Interim Arrangements) Act 1973, Civil Aviation Regulations 1975.

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