Section 155(4) gives the Supreme and National Courts power to make "such other orders as are necessary to do justice". Litigants cite it for everything. This case explains what it can and cannot do.
Enforcement pursuant to Constitution section 57; Application by Behrouz Boochani and 730 others v The State, National Executive Council and Minister for Foreign Affairs and Immigration [2017] PGSC 4; SC1566
Supreme Court, Waigani — Injia CJ, Salika DCJ and Hartshorn J, 13 March 2017. SCAPP 17 of 2016.
What happened
On 26 April 2016, in Namah v Pato (2016) SC1497, the Supreme Court declared the detention of asylum seekers at the Manus Island Regional Processing Centre unconstitutional, contrary to section 42 of the Constitution and beyond the powers of the Migration Act, and ordered both governments to end it.
Mr Boochani and 730 others then brought their own enforcement application under section 57. Within it they sought an interlocutory injunction restraining the State from deporting to their home countries those transferees whom it had determined to be “non-refugees”.
What was argued
The applicants relied for jurisdiction on section 57(1), (3) and (6), on section 155(4), and on Order 6 rule 1 of the Supreme Court Rules. On section 155(4) they cited the National Court decision in Mauga Logging Pty Ltd v South Pacific Oil Palm Pty Ltd [1977] PNGLR 80 as authority that the provision itself founds interlocutory injunctions. The State said none of the provisions relied on gave the Court power to make the order sought.
What the Court decided
Section 57(3) is concerned with the grant of a substantive order or declaration by a court that has jurisdiction under section 57(1). It does not confer jurisdiction to grant interlocutory relief, and neither do sections 57(1) or (6). The State v Transferees (2015) SC1451 referred to.
Section 155(4) confers jurisdiction to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law. It is not the source of any substantive right. As Kidu CJ said in SCR No 2 of 1981 [1981] PNGLR 150, rights and interests are determined by other constitutional laws, statutes and the underlying law; section 155(4) exists to ensure they are enforced or protected if existing laws are deficient. The Court applied Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156 and Powi v Southern Highlands Provincial Government (2006) SC844, and preferred those later Supreme Court decisions to Mauga Logging.
The application for an interlocutory injunction was refused.
The Court noted that the Supreme Court Rules require every application for interlocutory orders to contain a concise statement of the Court’s jurisdiction to grant them. The applicants’ difficulty began there: none of the provisions they named supplied it.
Did it make new law?
No National Court decision was affirmed; the Court declined to follow the National Court’s 1977 approach in Mauga Logging in favour of its own later authority. The decision’s value is as a clear, three-judge restatement of the settled limits of section 155(4), applied in a case where the temptation to stretch the provision was considerable. It is now cited alongside Medaing and Powi whenever a party invokes section 155(4) as a free-standing source of relief.
Why it matters
Find the primary right first. Section 155(4) can help enforce a right that exists under the Constitution, a statute or the underlying law. It cannot create one.
Use the specific power where one exists. In the Supreme Court, stays come under section 19 and interim orders under section 5(1)(b) of the Supreme Court Act. Where those apply, later decisions refuse to entertain section 155(4) at all.
What it does not decide
Boochani decided an interlocutory application. It did not decide the substantive enforcement claim, the lawfulness of any deportation, or the content of the transferees’ rights under Namah v Pato. Nor does it limit the National Court’s power to grant interlocutory injunctions under its own Rules in an ordinary civil case.
Recent cases applying it
- Uhadi Iarogaha Incorporated Land Group v Hari [2021] PGSC 113; SC2207 — Hartshorn J: section 155(4) may be relied on to protect primary rights only in the absence of other relevant law; since sections 19 and 5(1)(b) applied, relief under section 155(4) was refused.
- Amanab Forest Products Ltd v Sai’i [2021] PGSC 70; SC2142 — the same reasoning on a contested application to restrain logging.
- The State v Kalaut [2021] PGSC 57; SC2130 — section 155(4) not available where Order 13 rule 16 of the Supreme Court Rules already provided the remedy, citing Powi, Medaing and Boochani.
Sources
- Boochani v The State [2017] PGSC 4; SC1566 (Injia CJ, Salika DCJ and Hartshorn J, 13 March 2017)
- Namah v Pato [2016] PGSC 13; SC1497
- Constitution — ss 42, 57, 155(4)
- SCR No 2 of 1981; Re s 19(1)(f) Criminal Code [1982] PGSC 18; [1982] PNGLR 150
- Uhadi Iarogaha Incorporated Land Group v Hari [2021] PGSC 113; SC2207; Amanab Forest Products Ltd v Sai’i [2021] PGSC 70; SC2142; The State v Kalaut [2021] PGSC 57; SC2130
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156 and Powi v Southern Highlands Provincial Government (2006) SC844 are cited as they appear in the judgment and were not separately opened for this brief.
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