N3258

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 720 OF 2006 (JR)

BETWEEN:

PACIFIC EQUITIES
AND INVESTMENT LIMITED
Plaintiff

AND:

DON SAWONG in his capacity as the 
COMMISSIONER of the Commission of Inquiry 
into matters relating to the Pacific Balanced Fund
First Respondent

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, DCJ.
2006: 18 October

JUDICIAL REVIEW – Leave application – Decision of Commission of Inquiry to proceed with inquiry – Ground of review - Subject matters of enquiry also subject to various Court proceedings – Specific judicial proceedings and common issues not identified – Sub-judice Court must relate to issues in specific cases before the Court which are also the subject of inquiry by Commission of Inquiry – Application refused.

PNG Cases cited:

Kekedo v Burns Philp [1988-89] PNGLR 122
PNG Harbours Ltd v Pex Avosa (2006) N3065

Overseas cases cited:

Clough v Leady (1904) 2 CLR 139 
Emial Campbell in Contempt of Royal Commissions 
Hammond v The Commonwealth of Australia & Ors [1982] 56 ALJR 767
Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70
Re Winnetc, Ex Parte Australian Building Construction Employees and Builders Federation (1982) 56 ALJR 506 

Counsel:

Mr Stevens, for the Plaintiff
Mr Cherake with Ms Kias, for 1st Respondent
Mr Brooks, for Nasfund and IPBC
Mr Murray, for Melanesian Trustees Investment Ltd and 
 Melanesian Metal Corporation Ltd
Mr Tongawu, for Securities Commission

18 October, 2006

1. INJIA, DCJ: The plaintiff is the fund manager of a number of Unit holders of Pacific Balanced Fund (PBF), one of the main Unit holder being Nasfund. It applies under O.16 r.3(2) of the National Court Rules, for leave to apply for judicial review of the Prime Minister’s decision to appoint the First Respondent to inquire into a terms of reference regarding the administration of PBF. The proposed grounds of review are set out in the amended Statement filed under O.16 r.3. The application is normally heard ex parte but I granted leave to the Securities Commission, Nasfund, the Independent Public Business Corporation (IPBC) and Melanesian Trustees Services Ltd (MTSL) to be heard on the application.

2. Of the four requirements for grant of leave, it is not contested that the plaintiff has locus standi to bring the application and there is no delay in making the application. The issues for determination are whether the applicant has an arguable case and whether other statutory or administrative avenues for appeal or review have been exhausted.

3. The background of this application is that on 10 August 2006, the First Respondent was appointed by the Prime Minister under s. 2 of the Commission of Inquiry Act (Ch. 3). The terms of reference together with the instrument of appointment was published in the National Gazette. The Commission commenced its sittings on 4 September 2006 and continued to sit on 3 October 2006. The plaintiff appeared on a Summons to Produce Documents and Give Evidence in relation to terms of reference No. 5 and 7. On 3 October 2006, the plaintiff objected to the Commission assuming jurisdiction over item No. 5 and 7. Its principal argument was that terms of reference No. 5 & 7 concerned some four (4) Court proceedings commenced in the National Court by the plaintiff, which were pending determination. Those terms of reference interfered with those proceedings and therefore the Commission lacked jurisdiction. The Commission dismissed the objection. Consequently, the plaintiff filed these proceedings.

4. During argument, I closely scrutinized the Statement filed under O.16 r.3 to ensure that the relief sought and the grounds pleaded therein were appropriate for judicial review, and made certain observations as to their propriety. After hearing full arguments from counsel for the parties and in particular the plaintiff, I am not persuaded that the relief sought in par. 3.2, 3.3, 3.4 and 3.5 of the Statement are available in judicial review. They seek declaratory orders on the basis of breaches of the Constitution, s.155 (and s.158). Judicial review is not available to grant declaratory orders as a primary relief. The primary relief available under O.16 r.1 are in the "nature of mandamus, prohibition, certiorari, or quo warranto." Consequential orders in the nature of declaratory orders are available under O.16 r.(2) but they themselves are not available as primary relief.

5. Similarly, to the extent that the eight (8) grounds of review (Grounds 5.1 – 5.8) raise grounds of the unlawfulness or unconstitutionality of the decision of the Prime Minister and the Commission, these grounds are not available in judicial review.

6.	The only proper relief sought is found in Clause 3.6 which seeks "orders in the nature of prohibition against the First Respondent from continuing with any further inquiry into the matters raised in paragraph 5 and 7 of the Terms of Reference." The ground in support of this relief is not pleaded at all or clearly and specifically pleaded but the Respondent submits it may be discerned from a combination of grounds 5.1 – 5.8. The plaintiff’s case is that the Commission’s performance of its functions under the Act should be supervised and controlled by the Courts in the exercise of its inherent power under s.155 of the Constitution because if it is not done, the Commission will interfere with the judicial proceedings. The plaintiff is also fearful that if the Commission is allowed to continue with its inquiry, it will allow publication of other reports and publish its own report which will be adverse to the plaintiff. The plaintiff’s case is not that the Commission lacks jurisdiction. It has jurisdiction over the matters referred to in Clause 5 and 7 of the terms of reference but that the same subject matter of the inquiry is before the Courts. 

7.	The respondents’ case is that the Commission has jurisdiction to inquire into the terms of reference including Clauses 5 and 7 and it should be allowed to perform its statutory function and if the plaintiff is aggrieved by its proceedings and report, then it should seek review of the report and recommendations that adversely affect it.

8. At common law, the appropriate relief available in judicial review where a tribunal or statutory authority lacks jurisdiction, conferred by law, to inquire into or entertain a matter in which it lacks jurisdiction, is prohibition. The principle is also well settled in this jurisdiction: see PNG Harbours Ltd v Pex Avosa (2006) N 3065 .

9. Any other relief such as certiorari or mandamus is available where the public authority fails to discharge a duty imposed by law in the course of its inquiry; or makes a decision, or findings and recommendations in the form of a report which is made in breach of prescribed procedure; abuses its power; reaches an unreasonable decision or exceeds its jurisdiction: Kekedo v Burns Philp [1988 – 89] PNGLR 122. These relief are normally available after the decision-making authority has completed its statutory task. 

10. Mr Stevens for the plaintiff relies on two decisions of the Australian High Court, in particular statements of principles by Gilles, J that say a Commission of Inquiry should not inquire into or deal with matters that are subject of criminal proceedings in a Court of law: Re Winnetc, Ex Parte Australian Building Construction Employees and Builders Federation (1982) 56 ALJR 506 and Hammond v The Commonwealth of Australia & Ors [1982] 56 ALJR 767. Further statements of the same principle appear in the judgment of Griffin, CJ in Clough v Leady (1904) 2 CLR 139 and Sholl J in Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70. Mr Steven submits the same principles apply with equal force in both criminal cases and civil cases: Emial Campbell in Contempt of Royal Commissions, at page 6.

11. The Respondents describe the plaintiff’s arguments as one of sub-judice. They submit the issue is not one of lack of jurisdiction. They submit the principle of sub-judice is a common law principle which is subject to the powers of Commission conferred by statute. It is available where there is a real risk of interference in the administration of justice. They submit the matters raised in the four Court proceedings relate to specific issues and exercise of statutory power by the Securities Commission and the Governor of the Central Bank whereas the terms of reference encompass the entire financial operation of PBF. The Commission does not determine any rights. It merely investigates and reports to Parliament through the Minister. It will simply report on its findings to the Minister who will present the report to the Parliament. The evidence given at the inquiry will not be admissible before any criminal or civil proceedings. As such, the proceedings of the Commission will not affect the determination of the Court proceedings. They submit it is open for the plaintiff to apply under the four (4) Court proceedings, for appropriate order if it feels that the same matters and issues before the Court are being dealt with by the Commission. 

12. Mr Stevens submits this is a new area of the law in this country and the Court should follow the Australian approach.

13. Mr Stevens makes reference to Mr Ruimb’s affidavit to demonstrate that certain reports now filed in CIA 19 OF 2006 by the Securities Commission have been copied and made available to parties appearing before the Commission. The publicity of the report also shows it is likely to interfere with the proceedings in CIA 19 OF 2006.

14. Mr Stevens submits both the Prime Minister and the Commission ought to know that par. 5 & par. 7 of the terms of reference directly affect Court proceedings now pending before the Court and should not be included in the terms of reference. The issues before the Court in respect of the four (4) proceedings relate to the operations of the plaintiff’s Management of Unit holders and these proceedings have not been determined.

15. In my opinion, in a case such as this, the Commission’s lack of jurisdiction is the only proper ground for judicial intervention under the judicial review procedure in O.16. The jurisdiction of the statutory body is founded on statute. Sub-judice is founded on judicial discretion on matters which the statutory body has jurisdiction. Sub-judice may be raised in relation to a specific case which is before the Court. If it is raised properly under specific Court cases, the evidence and issues will become more clearer and the Court may as well make a ruling on it which may or may not affect the proceedings of the tribunal. I do not think sub-judice is open to be raised in judicial review proceedings under some expanded notion of jurisdiction. 

16. Further, I am not satisfied that the grounds of review as pleaded in the Statement filed under O.16 r.3 and advanced before me by the plaintiff are arguable. I am not satisfied that lack of jurisdiction has been pleaded or sufficiently pleaded in the grounds set out in the Statement. They lack specificity and clarity. In my view, the grounds of review are misconceived or too general and the evidence is too general and scanty and they do not raise any arguable case on a point of law as to jurisdiction. 

17. The procedural issues as to Summons issued to the plaintiff although covered in the grounds of review are matters within the wide powers of the Commission which determines its own procedures. They per se do not raise any important jurisdictional issue which this Court should deal with.

18. For these reasons, I dismiss the application with costs to the respondents and the interested parties who have been joined.
_________________________

Stevens Lawyers: Lawyer for the Plaintiff
Solicitor- General: Lawyer for the First & Second Respondent
Moses Murray & Associates: Lawyer for MTIL & MMCL 
Alex Tongawu: Lawyer for Security Commissions
Gadens Lawyers: Lawyer for Nasfund and IPBC