N2765
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 149 OF 2003

PIUS NUI
Plaintiff

V

SENIOR SERGEANT MAS TANDA
First Defendant

ASSISTANT COMMISSIONER TOM KULUNGA
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

MT HAGEN: CANNINGS J
17 NOVEMBER, 21 DECEMBER 2004

RULING ON MOTION

Practice and procedure – application to set aside interim order of National Court to restrain officers of Police Force from arresting a person in relation to suspected criminal conduct – murder – interim order expressed to be made by consent of parties – application to dismiss proceedings for malicious prosecution on grounds that no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and an abuse of process – elements of tort of malicious prosecution – whether the proceedings should be dismissed – whether an interim order, expressed to be made by consent of parties, can and should be set aside – relevant considerations – application of considerations – remarks on constitutional significance of orders interfering with Police investigations – relevant principles to apply – similar principles applicable to investigations conducted by other agencies exercising investigatory powers and functions.

Cases cited:
Anderson Agiru v Electoral Commission and The State (2002) SC687
Bank of Papua New Guinea and Wilson Kamit v Marshall Cooke QC and Cyprian Warokra and Others (2003) N2369
Bernard Hagoria v Ombudsman Commission (2003) N2400
Dan Salmon Kakaraya v Ombudsman Commission (2003) N2478
David Haluya v The State (2001) N2109
Drew v Towers Investments [1973] PNGLR 450
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001
Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915
Justin Tkatchenko v Dessy Magaru (2000) N1956
Justin Tkatchenko v National Capital District Commission and The State (2002) N2196
Kiee Toap v The State and Others (2004) N2731
Lucas Roika v Peter Wama and Others (1995) N1373
Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308
Mainland Holdings Ltd and Others v Stobbs and Others (2003) N2522
Mark Ekepa and Others v William Gaupe and Others (2004) N2694
Paul Torato v Sir Tei Abal [1987] PNGLR 403
Peter Aigilo v Sir Mekere Morauta and Others (2001) N2102
PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85
Re Peter Naroi [1983] PNGLR 176
Rimbink Pato v Anthony Manjin and Others (1999) SC622
Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8 
Simon Ketan v Lawyers Statutory Committee and PNG Law Society (2001) N2290
Simon Mali v The State (2002) SC690
The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2002) N2322
The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2003) SC716

Counsel:
K J Peri for the plaintiff
J Kolkia for the defendants

CANNINGS J: 

INTRODUCTION

This is a ruling on a motion by the defendants. They are seeking two orders: to set aside a previous order of the National Court; and to dismiss the substantive proceedings.

In the substantive proceedings the plaintiff is suing the defendants for malicious prosecution.

BACKGROUND 

Incident in June 2002

This case arises from an incident in Mt Hagen during the 2002 general election, in which a man, Bill Noah, was shot dead. The incident happened at a polling booth at the Mt Hagen General Hospital, in the middle of June 2002. There was apparently a shootout between the supporters of two candidates.

Shortly after the incident, officers of the Police Force based at Mt Hagen commenced a murder investigation. During the course of investigation, they interviewed the plaintiff, Pius Nui, at least twice. He is a businessman from Togoba village, in the Western Highlands Province. It seems that in January 2003 the Police were preparing to arrest and charge the plaintiff with the murder.

Writ filed: 7 February 2003

On 7 February 2003 the plaintiff’s lawyers, Warner Shand, filed a writ of summons in relation to the Police investigation. The statement of claim attached to the writ asserts that the first and second defendants, who are Police officers, are guilty of malicious prosecution of the plaintiff and that the third defendant, the State, is vicariously liable for their action. The plaintiff seeks general and exemplary damages. 

In support of those claims the plaintiff asserts the following:

•	in August 2002 he was picked up at his village by Sergeant Patrick Towingo, taken to Mt Hagen Police Station, and questioned about Bill Noah’s death; 

•	Sergeant Towingo found no evidence against the plaintiff and shelved the investigation; 

•	in September 2002 he was again picked up at this village, taken to Mt Hagen Police Station, this time by Sergeant Thomas Pundu, and questioned about Bill Noah’s death;

•	Sergeant Pundu found no evidence against the plaintiff and shelved the investigation;

•	on or about 13 December 2002 the first defendant, Senior Sergeant Mas Tanda, and the second defendant, Assistant Commissioner Tom Kulunga, held a private meeting in a village outside Port Moresby, to work out how to reopen the investigation into Bill Noah’s death; 

•	on 30 January 2003 the first defendant drove to the plaintiff’s village and requested the plaintiff to attend Mt Hagen Police Station on 31 January 2003 for another interview in connection with Bill Noah’s death; and 

•	both the first and second defendants have a direct interest in the outcome of the investigation and prosecution of the plaintiff.

Plaintiff’s notice of motion filed: 7 February 2003

On the same day that the writ of summons was filed, 7 February 2003, the plaintiff filed a notice of motion. He sought an order that all officers of the Police Force be restrained from arresting him, pending the outcome of a coronal inquest under the Coroners Act, and that the matter be referred to the Coroner’s Court.

In support of his motion, the plaintiff swore an affidavit, which elaborated on some of the allegations made in his statement of claim. He deposed, amongst other things, that:

•	the shootout at the hospital was between supporters of William Duma, who won the election, and Stanley Nui;

•	Stanley Nui is his son; 

•	the first defendant is from Bill Noah’s village;

•	the second defendant is from Koglamp village, Western Highlands Province, which is where William Duma comes from;

•	he was present when Bill Noah was shot and fired a shot in the air when he was being pursued; and 

•	there is an inconsistency between the post mortem report on Bill Noah’s death and the certificate of death.

Order of 7 February 2003

On 7 February 2003 the notice of motion, filed that day, came before Hinchliffe J at Mt Hagen. His Honour was apparently handed a draft consent order. It had been endorsed by Mr K Peri, of Warner Shand, Mt Hagen, and by Mr B Ovia, of the Office of the Solicitor-General, Mt Hagen. Hinchliffe J made an order, expressed as a consent order, in the following terms:

1	Pending the outcome of the coronial inquest pursuant to Section 7 of the Coroners Act Chapter No 32, the first defendant or other policemen be restrained from arresting the plaintiff.

2	The matter be referred to the Coroner’s Court.

Events since February 2003

On 6 March 2003 the Solicitor-General, Zacchary Gelu, filed a notice of intention to defend on behalf of the three defendants.

On 20 May 2003 the Acting Solicitor-General, John Kumura, filed a defence. This focussed on Section 197 of the Constitution, which prescribes the primary functions of the Police Force, and the defence that there is no cause of action. It was stated that the plaintiff contributed to his own detriment by not cooperating with the Police.

On 13 January 2004 Paul Paraka Lawyers, of Mt Hagen, commenced acting for the defendants. 

On 28 June 2004 Paul Paraka Lawyers filed three affidavits: by Francis Kuvi, Mas Tanda and Thomas Pundu.

Francis Kuvi, Acting Solicitor-General, swore an affidavit on 29 April 2004. He indicated that Mr Ovia endorsed the consent order without instructions.

Mas Tanda, the first defendant, swore an affidavit on 12 May 2004. He deposed to his belief that there is overwhelming evidence that the plaintiff was responsible for the murder committed on 18 June 2002 in the vicinity of Mt Hagen General Hospital. He described the steps he had taken to investigate the murder. He denied the plaintiff’s claim that the murder investigation had been shelved. He stated that he was just about to charge the plaintiff for murder and was surprised to be served with a restraining order. He was not consulted before the order was obtained.

Thomas Pundu is a sergeant in the Police Force, attached to the Criminal Investigation Division at Mt Hagen Police Station. He deposes in an affidavit of 24 May 2004 that he did some preliminary investigations into Bill Noah’s murder. To his knowledge the file on the murder was not shelved.

Defendants’ notice of motion filed: 26 August 2004

On 26 August 2004 the defendants filed a notice of motion, seeking two principal orders:

•	that the order of 7 February 2003 be set aside; 

•	that the entire proceedings be dismissed pursuant to Order 12, Rule 40(1) of the National Court Rules.

That notice of motion is the subject of this ruling.

In support of the notice of motion was an affidavit by Johnny Kolkia, the lawyer from Paul Paraka Lawyers with carriage of this case. He deposes that the plaintiff has not been charged or brought before a committal court.

On 20 October 2004 Paul Paraka Lawyers filed an affidavit by Francis Damem, Attorney-General. He deposes that the consent order of 7 February 2003 was not obtained on instructions from his office.

Hearing: 17 November 2004

On 17 November 2004 the matter was argued before me at Mt Hagen. Both Mr Kolkia, for the defendants, and Mr Peri, for the plaintiff, filed written submissions. 

No inquest

There has never been a coronial inquiry into the death of Bill Noah.

DEFENDANTS’ SUBMISSIONS

First order sought

Mr Kolkia submitted that the Court should set aside the consent order of 7 February 2003. It was an interim order and the Court had power to dissolve it. The Court should consider the circumstances in which the order was made, particularly the fact that Mr Ovia consented to it without consulting all the defendants and without obtaining instructions. The originating process and the notice of motion which led to the consent order were all filed on the day that the order was made, 7 February 2003. It was practically impossible for Mr Ovia to have obtained instructions. 

Officers of the Solicitor-General must yield to instructions from the Attorney-General. In support of that proposition, Mr Kolkia referred to the decision of the Supreme Court in The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2003) SC716, Amet CJ, Kapi DCJ, Los J. In that case the Court upheld an appeal against the judgment of Kandakasi J in The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2002) N2322. The Supreme Court also held that the case of Peter Aigilo v Sir Mekere Morauta and Others (2001) N2102, National Court, Kandakasi J, was wrongly decided. Kandakasi J’s view had been that the Solicitor-General was entitled to act independently and was not obliged to take instructions from the Attorney-General. The Supreme Court, however, held that, in exercising the primary statutory function of appearing as an advocate for the State in matters before the courts, the Solicitor-General must accept instructions from the Attorney-General, who is the Principal Legal Adviser to the National Executive.

Furthermore Mr Kolkia submitted that the Court order of 7 February 2003 was made contrary to the constitutional principle that the Police Force should not be restrained by the Courts from investigating matters. In support of that proposition Mr Kolkia relied on the Supreme Court’s decision in Rimbink Pato v Anthony Manjin and Others (1999) SC622, Sheehan J, Sevua J, Akuram J and the National Court’s decision in Justin Tkatchenko v Dessy Magaru (2000) N1956, Sevua J.

Second order sought

As to the second order, Mr Kolkia highlighted the fact that the plaintiff had not been arrested or charged by the Police. He has not been prosecuted. Therefore he cannot establish malicious prosecution. The whole proceedings are premature and an abuse of process.

PLAINTIFF’S SUBMISSIONS

First order sought

Mr Peri submitted that the manner in which the Police Force conducted the investigation of the plaintiff was malicious. The plaintiff had been picked up by the Police on several occasions. The Police were picking on the wrong person. The more appropriate course of action was to allow the Coroner to investigate Bill Noah’s death. The investigation would then be done impartially and independently. There was consultation with the Solicitor-General’s lawyer in Mt Hagen, Mr Ovia, who agreed that the Coroner was best placed to investigate the matter. 

Mr Peri argued that the order of 7 February 2003 was not an interim order – it was a final order. It was a consent order and any application to set it aside must be treated with extreme caution. Though it was a consent order, it could have been appealed against if exceptional circumstances were shown. But the defendants have sat on the matter for well over a year. If they were serious about setting aside the order, they should have filed fresh proceedings and relied on the grounds of fraud or mistake. (Re Peter Naroi [1983] PNGLR 176, National Court, Andrew J; Paul Torato v Sir Tei Abal [1987] PNGLR 403, National Court, Bredmeyer J; Simon Mali v The State (2002) SC690, Supreme Court, Hinchliffe J, Sakora J, Batari J.) The defendants did not appeal against the order and did not file fresh proceedings to quash it. Their application to set it aside should therefore be viewed with extreme caution and refused.

Mr Peri submitted that it was now too late for the Coroner to inquire into Bill Noah’s death. He pointed out that under Section 7(3) of the Coroners Act (Chapter No 32), an inquest cannot be held more than 12 months after the date of a death (or the date of finding a dead body) unless the Principal Legal Adviser otherwise orders. In this case the death was in June 2002. An inquest should have been held by June 2003. There was no inquest and the Principal Legal Adviser has not made an order. There cannot be an inquest now. Mr Peri argued that this was another reason the Court order of 7 February 2003 should not be disturbed.

Second order sought

As to the defendants’ submission that there is no cause of action, Mr Peri argued that the plaintiff deserves the right to the full protection of the law under Section 37(1) of the Constitution. A person who is being maliciously pursued by the Police ought not have to wait until Police investigations are completed or until he is charged, before obtaining the protection of the law.

TWO MAJOR ISSUES

The defendants’ notice of motion raises two major issues. I will deal with them in the reverse order to the way in which they are framed in the notice of motion.

The first major issue is whether the plaintiff’s case should be summarily dismissed. The defendants rely here on the grounds that the case does not disclose a cause of action and is frivolous or vexatious and an abuse of process. This is a threshold issue. If the defendants succeed on it, the second major issue will necessarily be resolved in their favour.

The second major issue is whether the order of 7 February 2003 should be set aside. It will only be necessary to address this issue in detail, if the first issue is decided against the defendants.

THE FIRST MAJOR ISSUE: SHOULD THE PLAINTIFF’S CASE BE SUMMARILY DISMISSED?

The defendants rely on Order 12, Rule 40 of the National Court Rules, which states:

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2)	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

The defendants rely on each of Rules 40(1)(a), (b) and (c), and particularly on (a): that the proceedings do not disclose a reasonable cause of action. 

WHAT IS THE PLAINTIFF’S CAUSE OF ACTION?

The plaintiff’s cause of action is malicious prosecution. This is a tort, ie a civil wrong. It was part of the common law of England immediately before Independence Day, 16 September 1975. The common law relating to malicious prosecution is not inconsistent with any Constitutional Law or statute. It is not inapplicable or inappropriate to the circumstances of the country. It is not inconsistent with custom. Therefore the principles and rules relating to that tort are part of the underlying law of Papua New Guinea by virtue of Schedule 2.2 of the Constitution.

The statement of claim does not refer to any provision of the Constitution. The plaintiff is not seeking to enforce any of his Basic Rights under the Constitution. He is not expressly seeking to enforce any of the rights or freedoms conferred by Section 37 (protection of the law) on persons in custody or charged with offences. Mr Peri referred to Section 37 in his submissions, but it is not referred to in the statement of claim. 

The plaintiff does not claim that he has been deprived of his personal liberty contrary to Section 42 (liberty of the person). Nor does he assert any breach of Section 44 (freedom from arbitrary search and entry) or Section 49 (right to privacy) or Section 59 (principles of natural justice). 

I mention these constitutional provisions as, in my view, they are the ones that would normally be breached if a Police investigation were conducted unlawfully. However, a person in the plaintiff’s position can still elect to pursue a common law action, which he has done. 

The plaintiff commenced these proceedings by relying exclusively on the common law tort of malicious prosecution as his cause of action. 

PREVIOUS CASES ON MALICIOUS PROSECUTION

The National Court has in a number of cases applied and enforced the tort of malicious prosecution as part of the underlying law.

In Lucas Roika v Peter Wama and Others (1995) N1373, National Court, Woods J, the plaintiff was the Premier of Western Highlands Province. He was charged with misappropriation and committed for trial. When the trial was about to commence in the National Court the Public Prosecutor filed a nolle prosequi (notice of abandonment of the prosecution) on the ground that there was insufficient evidence to support the charge. The following year, the plaintiff was charged again in relation to the same money that was the subject of the first charge. When this second trial was about to start in the National Court, the Public Prosecutor again filed a nolle prosequi. The plaintiff brought proceedings for malicious prosecution concerning the laying of the second charge. Woods J held that there were no reasonable or good reasons for "hounding" the plaintiff. Malice, aimed at harassing and discrediting the plaintiff, could be inferred. Judgment was entered against the State, which was held vicariously liable for the conduct of the Police officers involved. The plaintiff was awarded K9,000.00 damages.

In Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308, National Court, Akuram AJ, the plaintiff was a Police officer. He was charged with raping a female detainee in a Police cell. The matter was struck out at a committal hearing but proceeded to trial in the National Court via an ex officio indictment. The Public Prosecutor then filed a nolle prosequi. Akuram AJ was not satisfied that the charge and the criminal proceedings were actuated by malice and dismissed the claim of malicious prosecution.

In David Haluya v The State (2001) N2109, National Court, Sakora J, the plaintiff was the proprietor of a liquor outlet in the Koroba district of Southern Highlands Province. He was arrested, charged with selling beer without a licence and kept in custody. Thirty cartons of beer were confiscated. He was tried in the Tari District Court and acquitted. One month later the plaintiff asked the Police for the return of his beer. But it was not available. Instead the Police re-charged him, with the same offence of which he had previously been acquitted. The plaintiff was again tried in the District Court. This time he was found guilty and sentenced to six months imprisonment, which he served. He sued for wrongful arrest, false imprisonment, malicious prosecution, breach of constitutional rights and conversion. The State did not file a defence, so he obtained default judgment. At the trial on assessment of damages Sakora J concluded that there had been a blatant manipulation of the legal and judicial system and deliberate abuse of State powers. His Honour awarded the plaintiff K18,200.00 damages on account of the malicious prosecution (included in a total judgment against the State of K57,100.00).

In Justin Tkatchenko v National Capital District Commission and The State (2002) N2196, National Court, Salika J, the plaintiff was arrested and charged with misappropriation. He was detained in custody for three hours. In committal proceedings in the District Court, the charge was dismissed. The plaintiff then sued for malicious prosecution. He claimed that officers of the first defendant had maliciously made a false complaint to the Police Fraud Squad; and that Fraud Squad officers maliciously and without reasonable cause laid the charge of misappropriation. Salika J held that the officers of the National Capital District Commission who complained to the Police had every right to do so. His Honour held that the claim for malicious prosecution was misconceived. The Fraud Squad officers did what was required of them by arresting, charging and detaining the plaintiff. There was good reason for them to take that action. The evidence they collected in their investigation was capable of implicating the plaintiff in a fraud. It was a normal, routine Police process. The case was dismissed as frivolous and vexatious. 

ELEMENTS OF MALICIOUS PROSECUTION

The above cases show that to successfully sue for malicious prosecution, a plaintiff must prove the following elements:

•	the defendant has used the criminal process to initiate proceedings against the plaintiff;

•	the defendant has acted maliciously; and 

•	the plaintiff has suffered damage to his fame, person or property.

The first element focuses on things that the alleged tortfeasor (the defendant) has done to subject the alleged victim (the plaintiff) to the criminal process. The defendant must do something tangible, eg bring the matter to court or, at least, arrest, detain or charge the plaintiff. The more advanced is the criminal process, the more likely that this element of the tort will be established. In both Roika and Haluya this element was established by the conduct of the defendant in re-charging the plaintiff, resulting in a second set of court proceedings after the plaintiff had been brought to trial previously.

The second element concerns the state of mind of the defendant. In Ignote, Akuram AJ stated that the court must determine whether, when the defendant took action concerning the plaintiff, he did not believe that the plaintiff was guilty or a reasonable person would not believe that the plaintiff was probably guilty. Put more simply: was the defendant motivated by ill-will and a desire to use the criminal process to harm the plaintiff? In Roika, Woods J inferred malice from the way in which the defendants hounded the plaintiff. However, if, as Salika J concluded in Tkatchenko, the defendant was just undertaking routine Police duties, it will be difficult to prove this element. 

As to the third element, it will often be the case, as pointed out by Salika J in Tkatchenko, that a person arrested or detained will be greatly injured in their credit, character and reputation. They may suffer considerable inconvenience, anxiety and expense. But, even if the plaintiff is taken to court and the charge is dismissed, it does not necessarily follow that the persons responsible for laying the charge are guilty of malicious prosecution. The third element – which requires the plaintiff to prove that he or she has suffered some damage – must be proved in addition to the other two elements.

PRINCIPLES REGARDING APPLICATIONS TO DISMISS PROCEEDINGS FOR FAILURE TO DISCLOSE A REASONABLE CAUSE OF ACTION

I recently reviewed the law on applications to strike out proceedings for not disclosing a reasonable cause of action, in Kiee Toap v The State and Others (2004) N2731. The following principles emerged: 

•	If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable. (PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85, National Court, Sheehan J.)

•	If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out. (Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915, National Court, Kirriwom J.)

•	If the statement of claim just leaves a defendant guessing as to what the plaintiff’s allegations are, it should be struck out. (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001, National Court, Sevua J.)

In Toap I also pointed out that whenever a person brings a case to court, the originating document – in the present case, the writ of summons and statement of claim – must demonstrate that the plaintiff has a ‘cause of action’. The document must clearly set out:

•	the legal ingredients or the elements of the claim; and 

•	the facts that support each element of the claim.

The plaintiff does not have to say what evidence there is of the facts being alleged. In fact, the National Court Rules prohibit that. But the plaintiff must outline the claim and demonstrate that it has a clear legal basis. If the plaintiff’s originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action. 

DO THESE PROCEEDINGS FAIL TO DISCLOSE A REASONABLE CAUSE OF ACTION?

That is the critical question raised by the defendants’ notice of motion and I answer it ‘yes’, for the following reasons:

•	First, the facts alleged in the statement of claim fail to demonstrate that anything sufficiently tangible has been done by the defendants to activate the criminal process. The plaintiff has not been arrested or charged. He has only been interviewed. The first element of the tort of malicious prosecution has therefore not been pleaded.

•	Secondly, it is not reasonably possible to infer malice on the part of the defendants from the manner in which the investigation has been conducted. The facts as alleged in the statement of claim are indicative of a routine Police investigation. The second element of the tort of malicious prosecution has not been pleaded.

•	Thirdly the statement of claim does not adequately plead that the plaintiff suffered damage to his fame, person or property. Therefore the third element of the tort of malicious prosecution has not been pleaded.

None of the three essential elements of the tort of malicious prosecution have been pleaded in the statement of claim. I conclude that it is plain and obvious that if the case goes to trial, the plaintiff will not obtain the relief that he is seeking. Thus the statement of claim fails to disclose a reasonable cause of action. 
ARE THE PROCEEDINGS FRIVOLOUS OR VEXATIOUS?

Another ground on which a case can be summarily dismissed is if the proceedings are frivolous or vexatious. As I pointed out in Toap’s case, Sevua J clearly set out what that means in Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8. 

Frivolous proceedings

If a case can be characterised in the following way, it is frivolous:

•	the plaintiff’s claim is so obviously untenable that it cannot possibly succeed; or 

•	the plaintiff would be bound to fail if the matter went to trial.

Vexatious proceedings

Proceedings are vexatious where:

•	the case amounts to harassment of the defendant; or

•	the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed.

Present case

I accept Mr Kolkia’s submissions on this issue. If this case went to trial, the plaintiff would have no chance of success. He is bound to fail. Therefore the proceedings are frivolous. The defendants are being put to the trouble and expense of defending a case, which cannot possibly succeed. Therefore the proceedings are vexatious.

ARE THE PROCEEDINGS AN ABUSE OF PROCESS?

Principles

The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes were summarised by the Supreme Court in Anderson Agiru v Electoral Commission and The State (2002) SC687, Hinchliffe J, Jalina J, Batari J. The Court stated:

Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process. … 

In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that: "mere motive, however reprehensible, will not be sufficient" (to constitute abuse of process) "it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable". 

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding. 

Present case

I have already concluded that the proceedings commenced by the plaintiff fail to disclose a reasonable cause of action and that they are frivolous and vexatious. It follows, almost inexorably, that the proceedings are an abuse of process. It is important to make that declaration so that the Court is seen to be protecting the dignity and integrity of its procedures. 

In my view these proceedings were a deliberate ploy to thwart a routine Police investigation. That was not a proper motive. The remedy being sought – putting a stop to the Police investigation – was also improper. The effect of that remedy was to interfere with the constitutional function and responsibility of the Police Force to investigate suspected criminal conduct. 
The proceedings are an abuse of process. 

CONCLUSION ON FIRST MAJOR ISSUE

The proceedings commenced by the plaintiff will be dismissed as they fail to disclose a reasonable cause of action, are frivolous and vexatious and an abuse of process. 

THE SECOND MAJOR ISSUE: SHOULD THE ORDER OF 7 FEBRUARY 2003 BE SET ASIDE?

As the whole proceedings are dismissed, there is nothing to sustain the order of 7 February 2003. An order preventing the Police from arresting a person cannot exist in a vacuum. However, the issues raised by the spectre of a State lawyer consenting to such an order are so significant that it is necessary to address them. I will do that by posing the following question:

•	If the whole proceedings were not dismissed, would the application to set aside the order of 7 February 2003 have been successful? 

In answering that question, it is useful to consider first the status of the order.

STATUS OF THE ORDER OF 7 FEBRUARY 2003

Two characteristics

The order of 7 February 2003 has two characteristics worthy of note. 

First, it is an interim order. I cannot accept Mr Peri’s argument that it is a final order. The primary relief sought in the statement of claim was damages. The order of 7 February 2003 does not address the question of damages. It is an interlocutory injunction. 

Secondly, the order of 7 February 2003 was expressed to be a consent order.

The status of the order gives rise to two questions:

•	Can the National Court set aside an interim order?

•	If yes, can the Court set aside an interim order that has been made by consent? 

CAN THE NATIONAL COURT SET ASIDE ITS OWN INTERIM ORDERS?

The answer to this question is ‘yes’. The National Court has power to set aside an earlier interim order, even when the order was made by a different Judge to the Judge dealing with an application to set it aside.

Recent case

I recently set out the basis of this power, and the considerations to take into account when deciding whether to exercise it, in Mark Ekepa and Others v William Gaupe and Others (2004) N2694. That was a case about management and control of the Porgera Landowners Association. Manuhu AJ made an interim order. Then an application was made to set it aside. I concluded that there was power to set it aside. But the circumstances did not warrant exercising that power. So the application was declined.

The National Court’s power to set aside its earlier interim orders derives from both the National Court Rules and the Constitution.

National Court Rules 

Order 12, Rule 8(3)(a) deals specifically with setting aside or varying ex parte orders. 

It states:

The Court may, on terms, set aside or vary an order … where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order. 

Order 12, Rules 8(4) and 8(5) deal with setting aside or varying interim orders generally – not only those made ex parte. 

Rule 8(4) states: 

In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

Rule 8(5) states: 

This Rule does not affect any other power of the Court to set aside or vary a judgment or order.

Constitution

The Constitution provides that the National Court is a superior court of record. Subject to the role of the Supreme Court, it has an inherent power to review the exercise of judicial authority. It has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs or such other orders as are necessary to do justice in the circumstances of a particular case. It is obliged, generally, to apply and enforce, as part of the underlying law, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England. (See Constitution, Sections 163(2), 155(3)(a), 155(4) and Schedule 2.2.)

Considerations to take into account when deciding whether to exercise the power to set aside a previous interim order

In Ekepa v Gaupe I relied on the judgment of Injia DCJ in Mainland Holdings Ltd and Others v Stobbs and Others (2003) N2522 and summarised the major considerations as follows:

•	Has there been any change in circumstances since the previous order was made, which render its continuation unnecessary or inappropriate?

•	What has been the relative conduct of the parties since the earlier order was made? In particular, has the conduct of the party applying to have the earlier order set aside, been proper?

•	Are there previously undisclosed relevant facts, which have been discovered since the interim order was made? 

•	Has it subsequently been discovered that the order was granted on an erroneous legal basis? 

•	Were the grounds relied on to support the setting aside or variation of the interim order, argued before the Court when it granted the earlier order? Or did the party wanting to set aside or vary the earlier order have the opportunity to raise those grounds?

•	Was the Court misled when it issued the interim injunction? If yes, was that attributable to the conduct of the party who sought the injunction? 

These considerations have to be weighed in the balance. The more that are answered in the affirmative the more likely it is that the circumstances will be ripe for the Court to set aside its earlier order.

APPLICATION OF RELEVANT CONSIDERATIONS RE SETTING ASIDE INTERIM ORDERS TO THE PRESENT CASE

I now apply the above considerations to the present case. First there appears to have been no material change in circumstances since the order of 7 February 2003 was made. That consideration does not support the setting aside of the order. 

However, all the other considerations favour setting it aside.

The conduct of the defendants appears to be proper and bona fide. The first defendant, Senior Sergeant Tanda, has sworn an affidavit deposing to his view as to the state of the evidence against the plaintiff arising from the investigation he was conducting.

Both the Acting Solicitor-General and the Attorney-General swore an affidavit deposing that the lawyer who consented to the order, Mr Ovia, acted without authority or instructions and without consulting the first defendant. This is a significant fact that was not evident when the order of 7 February 2003 was made.

There is a strong argument to say that the order was made on an erroneous legal basis, in that it seemed to violate the constitutional principle that the Police Force should be permitted to conduct criminal investigations unhindered by interference from the Courts. I will elaborate on that point below. It is very significant.

That important constitutional principle was evidently not raised when the matter was heard on 7 February 2003.

Furthermore, the Court was, in effect, misled. Hinchliffe J was entitled to presume that Mr Ovia had authority to consent to the order, when, in fact, Mr Ovia had received no instructions. 

For those reasons, I would have been inclined to set aside the interim order of 7 February 2003. However I would have taken into account that it was expressed to be a consent order.

CAN THE NATIONAL COURT SET ASIDE A CONSENT ORDER?

The answer to this question is also ‘yes’. 

Leading case

In Simon Mali v The State (2002) SC690, the Supreme Court (Hinchliffe J, Sakora J and Batari J) confirmed that the National Court has inherent power to set aside consent orders, even when they are determinative of the relief sought (ie they are final, not just interim orders). 

That case was an appeal against an order by Sheehan J in the National Court at Mt Hagen. His Honour upheld an application by the State to set aside an earlier order purported to have been made by himself, in chambers, with the consent of the parties. The earlier order was endorsed by Sheehan J and then entered on the same day by the Assistant Registrar. The earlier order authorised the entry of judgment for K279,616.45 against the State arising from a Police raid on various villages. The beneficiaries of the earlier order were aggrieved when it was set aside. They appealed to the Supreme Court. Their appeal was dismissed. 

Source and nature of power

The Supreme Court held that the National Court has inherent power under Section 155(4) of the Constitution to set aside a consent order. There are at least two situations in which this power can be exercised:

•	First, where there are errors on the face of the Court’s record. 

•	Secondly, where it is evident that there were procedural irregularities associated with the obtaining of the consent orders.

Error on the face of the record

The Supreme Court held that Sheehan J properly concluded that there were a number of persons expressed to be beneficiaries of the consent order who were not actually plaintiffs. Their names were not on the writ. Nor was there evidence that they had consented to being parties to the proceedings. Thus there was a patent error on the face of the Court’s record. For that reason alone the consent order could be set aside.

Procedural irregularity

The Supreme Court also held that Sheehan J was entitled to set aside the consent order as the customary procedures for obtaining and entering consent orders were not adhered to. Those procedures were set out in Drew v Towers Investments [1973] PNGLR 450, pre-Independence Supreme Court, Frost SPJ. Thus: written consent to the order, of all parties or their lawyers, must be evidenced by endorsement on a draft; the Judge should also endorse the draft order; an application to enter a consent order should not generally be made ex parte or in chambers; but if it is considered necessary to determine an application ex parte or in chambers, a proper record of the proceedings must be kept.

APPLICATION OF PRINCIPLES RE SETTING ASIDE CONSENT ORDERS TO THE PRESENT CASE

I now apply the above principles to the present case.

Error on the face of the record

I can detect no error on the face of the record, of the type that was apparent in Mali’s case. So that does not provide a basis for setting aside what was expressed to be a consent order.

Procedural irregularities

The first thing to note is that the order of 7 February 2003 was not made in chambers. It was made in open court. So it was not procedurally irregular, to that extent. But, having regard to what the Supreme Court said in Mali’s case about the need to adhere to customary practices for entry of consent orders, a number of procedural irregularities are apparent. 

There is no draft order endorsed by all parties affected by the order, on the Court’s file. When the matter was argued before me on 17 November 2004, Mr Peri, for the plaintiff, handed up a copy of a document entitled "Consent Order", expressed in similar terms as the order of 7 February 2003. It appears to have been signed by Mr Peri. It also contains an endorsement stating "I consent to the within orders", which appears to have been signed by Mr Ovia, for "Zacchary Gelu, Lawyer for the Defendants". However, this document does not meet the requirements of Mali’s case, for the following reasons: 

•	First, the document is not on the Court’s file. 

•	Secondly, it is undated. 

•	Thirdly, it does not contain the endorsement of the Judge. 

•	Fourthly – as is now apparent – Mr Ovia had no authority to sign the document, as he had been given no instructions to consent to such an order and he had not consulted all the defendants. In particular, he did not consult the first defendant, Senior Sergeant Tanda. 

•	Fifthly, the first paragraph of the draft order states only that "the first defendant is restrained from arresting the plaintiff"; whereas the actual order that was made states "the first defendant or other policemen be retrained from arresting the plaintiff". That is a material and significant addition. As the order was restraining all members of the Police Force from doing something – arresting a suspect in relation to a murder charge – that otherwise they would have been entitled to do, the consent of the head of the Police Force, the Commissioner of Police, to the proposed order, should have been evidenced. 

For those reasons I would have set aside the order of 7 February 2003, even though it was expressed to be a consent order. 

CONCLUSION ON SECOND MAJOR ISSUE

If these proceedings were not dismissed, I would have ordered that the interim order of 7 February 2003 be set aside.

REMARKS ON APPROPRIATENESS OF THE COURTS INTERRUPTING POLICE AND OTHER INVESTIGATIONS

Constitutional issues

Before expressing the formal order of the Court I wish to make some remarks on the constitutional significance of what happened in this case. A State lawyer agreed that it would be all right for the Court to make an order preventing all officers of the Police Force from arresting a person who was being interviewed in the course of a murder investigation. Then the National Court sanctioned that. The only condition imposed was that the matter would be referred to the Coroner. But it never was. Now it is too late for a coronial inquest to be held. 

If these proceedings had not been commenced and the proceedings dismissed, the investigation into the murder of a man would have been permanently halted. Or at least that part of the investigation, which targeted the plaintiff as a suspect, would have been halted. All of those involved in the criminal justice system need to consider these issues very carefully before this sort of thing is allowed to happen again.

The Rule of Law

In a representative democracy such as Papua New Guinea’s, considerable responsibility for upholding the Rule of Law is given to the Police Force. The Constitution, Section 197, states that the primary functions of the Police Force are to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner.

Plaintiff’s concerns

The plaintiff in the present case was concerned that the Police investigation was not impartial. He says that the first defendant comes from the murdered man’s village. The second defendant comes from his son’s political opponent’s village. The plaintiff suggests that both defendants, who are senior Police Officers, had a direct interest in the outcome of the murder investigation and that they acted maliciously.

If these were genuine grievances, the plaintiff should have taken his concerns elsewhere, before commencing court action. He could have made a complaint to the Commissioner of Police. Or he could have made a complaint to the Ombudsman Commission.

It was premature to take this matter to Court in the way that the plaintiff did.

Investigations by Police and other agencies

To discharge its constitutional functions the Police Force must conduct investigations. Other agencies are also given investigatory powers and functions. For example, the Ombudsman Commission and leadership tribunals; the Auditor-General; the Public Services Commission; the Public Accounts Committee. All these institutions derive their investigatory powers directly from the Constitution or the Organic Laws. Then there are other agencies that derive investigatory and/or disciplinary powers from Acts of the Parliament. For example, Commissions of Inquiry, the Lawyers Statutory Committee, the Internal Revenue Commission. 

All these agencies are empowered by law to carry out investigations into alleged or suspected criminal or other misconduct by various classes of persons. All these institutions must conduct their investigations in accordance with law. The People repose a considerable amount of trust in each of them to do that. It is not blind trust. If the investigating agency clearly breaches the constitutional rights of a person in the course of an investigation, and there is no other way of remedying the matter, an application can be made to the National Court for relief. 

However, the Courts must be very cautious when dealing with any attempt to interfere with, disrupt, delay or thwart such investigations. This does not mean that there should never be judicial review of decisions made during an investigation or that the Court should never interfere by, for example, granting an interim injunction that puts an investigation on hold. However, it is clear that the Courts should be extremely cautious in entertaining such applications. Only in a blatant case of abuse of power or excess of jurisdiction should the Court contemplate disrupting an investigation. 

Leading case on efficacy of Court orders which halt Police investigations: Pato v Manjin

The leading case on these principles is Rimbink Pato v Anthony Manjin and Others (1999) SC622, Supreme Court, Sheehan J, Sevua J and Akuram J. The National Court granted an interim injunction restraining officers of the Police Force from arresting the plaintiff, Rimbink Pato, who was the subject of a Police investigation concerning his suspected criminal conduct during the course of the 1997 general election, in which he was a candidate. The plaintiff asserted that certain members of the Police Force conspired with two other candidates, Masket Iangalio and Peter Ipatas, to have him arrested. The National Court later made an order setting aside the interim injunction. The plaintiff then appealed to the Supreme Court against that order. His appeal was dismissed. The Supreme Court focused on the issue of whether it was right for a Court to interrupt a criminal investigation. 

The Supreme Court stated, at page 5:

Nevertheless, the most important consideration of all, in our view, is whether a civil Court should restrain a criminal investigation by Police exercising their constitutional functions to investigate, charge and prosecute a person suspected of having committed a crime or criminal offence. That to us, is the most fundamental issue here.

We consider that the submissions advanced by Mr Sheppard on 17th December 1998 [for the defendants] were of persuasive force which the trial Judge accepted. We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. 

Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to Section 57 Constitution. We can't see how he can suppress and prevent, by injunction, a criminal investigation by Police, which is a constitutional function.

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act. …

With respect, the applicant's case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the Police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. It is analogous to a Judge being restrained from dealing with a person's case because that person does not like to be dealt with by the Judge.

It is our view that the restraining order against the Police, is not only outrageous and spurious, but an interference with the constitutional function of the Police. [Emphasis added]

Kandakasi J’s judgments re other investigatory agencies

Further support for the principles outlined above is found in a string of National Court judgments by Kandakasi J, in which his Honour refused leave for judicial review of decisions of various institutions exercising investigatory powers. These cases are:

•	Simon Ketan v Lawyers Statutory Committee and Papua New Guinea Law Society (2001) N2290. A matter of suspected professional misconduct as a lawyer by Simon Ketan was referred by the National Provident Fund Commission of Inquiry to the Law Society, which then referred the matter to the Lawyers Statutory Committee, which then commenced an investigation and wrote to the lawyer seeking a response to allegations. The lawyer was aggrieved. He applied for judicial review of the Law Society’s decision to refer the matter to the Statutory Committee and an interim order to restrain the Statutory Committee from continuing its investigation. His applications were refused.

•	Bank of Papua New Guinea and Wilson Kamit v Marshall Cooke QC and Cyprian Warokra and Others (2003) N2369. The conduct of the plaintiffs, the Central Bank and its Governor, Wilson Kamit, was inquired into during the course of the Commission of Inquiry into the sale of the Papua New Guinea Banking Corporation to Bank South Pacific Ltd. The plaintiffs were aggrieved by the manner in which the Inquiry was proceeding. They applied for leave for judicial review of the Inquiry’s proceedings, on the grounds of bias and denial of natural justice. They were seeking an order prohibiting the Inquiry proceeding further and making adverse findings against them. Their application was refused. 

•	Bernard Hagoria v Ombudsman Commission (2003) N2400. The Ombudsman Commission conducted an investigation into suspected misconduct in office by the plaintiff, Bernard Hagoria, a member of the Parliament, and, having found a prima facie case of misconduct in office, referred him to the Public Prosecutor for prosecution before a leadership tribunal. The plaintiff applied for leave to seek judicial review of his referral on the ground that he had been denied natural justice and the Commission had acted unreasonably. Leave was refused.

•	Dan Salmon Kakaraya v Ombudsman Commission (2003) N2478. The Ombudsman Commission conducted an investigation into suspected misconduct in office by the plaintiff, Dan Kakaraya, the Managing Director of Mineral Resources Development Company Ltd, and, having found a prima facie case of misconduct in office, referred him to the Public Prosecutor for prosecution before a leadership tribunal. The plaintiff applied for leave to seek judicial review of his referral on the ground that the Commission lacked jurisdiction, he had been denied natural justice and the Commission was actuated by ulterior motives. Leave was refused. In 2004 the Supreme Court (Los J, Salika J and Sawong J), in SCM No 17 of 2003, upheld an appeal against that decision and granted the application for leave. That was done apparently on the basis that Kandakasi J had gone beyond considering whether there was an arguable case and considered the merits of the case. The Supreme Court did not publish a written judgment and apparently did not express any disagreement with Kandakasi J’s reasons for refusing leave. 

Independence of investigatory agencies

In all the above cases Kandakasi J regarded the application for leave to seek judicial review as premature. Each of the applicants had not exhausted other avenues of addressing their grievances. In each case the effect of the Court’s decision was to protect the position and independence of the investigating agency and ensured that its procedures were not unduly interfered with. His Honour relied on Pato v Manjin to support that approach. In Ketan his Honour noted that the plaintiff was seeking to prevent the Lawyers Statutory Committee from investigating his alleged misconduct. In a passage subsequently relied on in the other three cases referred to, his Honour stated:

[The plaintiff] is seeking to prevent the Committee from investigating into the alleged misconduct. This brings Mr Ketan’s case almost on all fours with Rimbink Pato v Anthony Manjin (supra). The only difference between that case and the present is that, Mr Pato’s case concerned criminal investigations while Mr Ketan’s case concerns professional misconduct, which is insignificant, in so far as the principles are concerned.

In my view, as the Supreme Court said in Rimbink Pato v Anthony Manjin … neither the Police Force nor any other public institution charged with a statutory duty to investigate into alleged professional or other misconducts, should be restrained from carrying out their constitutional or statutory obligations. The reason is simple. Persons concerned with such investigations have the right to defend themselves once a formal charge has been laid. If there is say an allegation of defamation of one’s character, separate proceedings could be issued for defamation. But it is no reason to prevent such lawful authorities from carrying out their lawful investigations. If the courts were to readily come into the sphere of investigations and make orders effectively preventing such authorities from carrying out their investigations, it would interfere in the process of proper investigations and bringing those responsible for any criminal or other misconduct, to the appropriate authorities to be dealt with according to law. In my view, nothing drastic happens at the investigations stage against persons covered by such investigations and none of their rights get suppressed even to the point of being charged and being brought before a court of law. The Constitution provides safeguards for persons charged with criminal offences so as to ensure that they are fairly and properly dealt with according to law. Similarly disciplinary process and procedures are in place to deal with people who are charged with administrative or disciplinary processes. In my view therefore, judicial review is not a remedy available at the investigation stage and is therefore an inappropriate case for grant of leave for judicial review of a decision to investigate into the conduct of a person. [Emphasis added] 

Only very clear cases warrant halting investigations

I agree with the principles stated by Kandakasi J. Those principles should be conscientiously considered whenever any person who is under investigation by the Police or any other investigating authority applies to the Court to put a halt to an investigation. Each case must be considered on its merits. However, it is only in a very clear case that the Court should consider ordering a halt to an investigation that is being conducted by a proper authority under the laws of Papua New Guinea. 

ORDER

The order of the Court is that:

1	the proceedings commenced by the plaintiff are summarily dismissed;

2	the order of 7 February 2003 is discharged;

3	for the avoidance of doubt, the defendants and their officers, servants and agents may continue, at their lawful discretion, to conduct criminal investigations into the conduct of the plaintiff in relation to the death of Bill Noah at Mt Hagen in June 2002; and

4	the plaintiff shall pay the defendants’ costs of these proceedings, to be taxed, if not agreed.
________________________________________________________________

Lawyers for the plaintiff		:	Warner Shand Lawyers
Lawyers for the defendants		:	Paul Paraka Lawyers