N3406

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS 246 OF 2008

BETWEEN:

GRAND CHIEF SIR MICHAEL SOMARE
Plaintiff

AND:

ILA GENO, JOHN NERO, PHOEBE SANGETARI
as THE OMBUDSMAN COMMISSIONERS
and THE OMBUDSMAN COMMISSION
Defendants

Waigani: Hartshorn, J.
2008: 15th & 22nd May
: 16th, 17th & 24th June

INJUNCTION - Temporary Injunction seeking to restrain investigation by Ombudsman Commission – Whether serious question to be tried – Whether damages an adequate remedy – Balance of Convenience

Facts:

The Plaintiff has requested this Court to grant certain declarations and a permanent injunction to prevent the Defendants from continuing their investigations into whether the Plaintiff has properly given certain annual statements to the Ombudsman Commission. The Plaintiff also applies for a temporary injunction to restrain the Defendants from continuing with their investigations. The Defendants seek to dismiss the application.

Held:

1. The Court is not satisfied that the Plaintiff has a serious question to be tried.

2. If the Plaintiff had a serious to be tried, damages would be an adequate remedy in the event that he was successful in his substantive proceedings. 

3. If damages are not considered to be an adequate remedy, the balance of convenience does not favour the granting of the interim relief sought.

4. The orders sought in the Plaintiff’s Notice of Motion are refused

Cases cited: 

Papua New Guinea Cases

Robinson v. National Airlines Commission [1983] PNGLR 478 
Markscal Ltd v. MRDC [1996] PNGLR 419 
Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC525 
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 
Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290 
Pius Nui v. Tanda (2004) N2765

Overseas Cases

American Cyanide Company v. Ethicon Limited (1975) 1 All ER 594

Counsel:

Mr. K. Kua and Mr. S. Singin, for the Plaintiff 
Mr. C. Mende, Ms. Waide and Ms. Gaegaming, for the Defendants 

24 June, 2008

1. HARTSHORN, J: The Plaintiff requests this court to grant certain declarations and a permanent injunction to prevent the Defendants from continuing their investigations into whether the Plaintiff has properly given certain annual statements to the Ombudsman Commission. 

2. Pending the determination of the substantive proceedings the Plaintiff applies for a temporary injunction to restrain the Defendants from continuing their investigations. The Defendants seek to dismiss that application.

3. The principles upon which the court can grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanide Company v. Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525.

Serious question to be tried

4. The first question to be determined is does the Plaintiff have a serious question to be tried in the substantive proceedings.

5. This has been interpreted to mean:

What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success….; Robinson v. National Airlines Commission [1983] PNGLR 478 and

….. a strong case which, on the evidence presented would support a permanent injunction; Markscal Ltd v. MRDC [1996] PNGLR 419.

6. The parties have filed affidavits in support of their respective positions. As to the court's consideration of that evidence at this stage, I am mindful of the words of Lord Diplock in American Cyanide (supra):

It is not part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.

7. The Plaintiff seeks 7 declarations and 1 permanent injunction. The declarations that the Plaintiff seeks are to the effect that:

a) a decision not to appoint an independent investigator was null and void as it was not made by a majority of Ombudsman Commissioners, 

b) the Ombudsman Commission lacks jurisdiction to continue to investigate the Plaintiff as the conduct of the investigation so far has been harsh and oppressive, has been subject to excessive delays and has breached the rules of natural justice to act fairly, reasonably and in good faith,

c) the Ombudsman Commission has acquiesced in any misconduct of the Plaintiff because of the delays and is either estopped from further investigating or has waived its rights to further investigate because of its conduct so far.

8. The evidence in support of the contention that the decision not to appoint an independent investigator was not made by a majority of Ombudsman Commissioners is a letter dated 27 December 2006 to the lawyers for the Plaintiff which is only signed by one Commissioner, the Chief Ombudsman.

9. There is also a request made over 2 years later in a letter dated 18 February 2008 from the lawyers for the Plaintiff, for proof that the … full Commission sat and determined our section 19 application.

10. In the letter of 27 December 2006, the lawyers for the Plaintiff are informed inter alia, that the request for the Commission to exercise its powers under s. 19 Organic Law on the Duties and Responsibilities of Leadership has been considered by the Commission but is declined.

11. There is no evidence presently before the court that the s.19 decision was made by 1 Commissioner as opposed to the full Commission apart from the letter of 27 December 2006 being signed by the Chief Ombudsman only. That letter appears to have communicated the decision and is not the actual decision itself.

12. On the interpretations in Robinson (supra) and Markscal (supra), I am not satisfied that there is a serious question to be tried on this issue.

13. The evidence as to the conduct of the investigation being harsh and oppressive, the subject of excessive delays and having breached the rules of natural justice to act fairly, reasonably and in good faith, includes a letter dated 18 October 2006 from the Ombudsman Commission to the Plaintiff.

14. In that letter the Ombudsman Commission detailed allegations concerning the alleged failure by the Plaintiff to give annual statements, the failure to give them on time and providing incomplete statements.

15. The period of time covered is from about 1988 to about 2005. The Plaintiff contends that there have been delays and procrastinations in the investigations in that time and that:

a) this has prejudiced the Plaintiff's ability to defend himself against the allegations through inter alia, loss of evidence,

b) this constitutes a failure to act fairly, reasonably and in good faith

c) the Ombudsman Commission is estopped from continuing its investigations and by its conduct it has acquiesced in the alleged misconduct of the Plaintiff and has waived its rights to further investigate the Plaintiff.

16. In the letter of 18 October 2006, as well as detailing the allegations against the Plaintiff, the Ombudsman Commission detailed correspondence it has written to the Plaintiff. This consisted of forwarding annual statement forms, acknowledgements of receipts of annual statements and reminders in respect of outstanding annual statements. In this latter category, there are references to reminder letters being written almost every year by the Ombudsman Commission to the Plaintiff from 1996 to 2005.

17. To my mind, this is not evidence of there being delays of the magnitude contended by the Plaintiff entitling the Plaintiff to the substantive relief that he seeks. 

18. There are letters written by the lawyers for the Plaintiff to the Ombudsman Commission alleging substantial delays and putting the Ombudsman Commission on notice of relief that may be claimed, but this is not evidence of the delays claimed.

19. The fact that the longest period of time under investigation is about 20 years does not in my view show that there have been delays of the magnitude contended by the Plaintiff. 

20. Again, I am not satisfied that there is a serious question to be tried after considering the evidence. That is, I am not satisfied that the Plaintiff has made out a serious not speculative case which has a real possibility of ultimate success, or a strong case which, on the evidence presented, would support a permanent injunction or the substantive relief sought.

21. Having decided that the Plaintiff has not established that he has a serious question to be tried, it is not necessary for me to consider the next question which is whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought.

Damages 

22. If however, the Plaintiff does have a serious question to be tried, the first consideration in determining the balance of convenience is whether, if the Plaintiff were to succeed at trial in obtaining the relief sought, would he be adequately or appropriately compensated by an award of damages for any loss sustained between being refused the interlocutory relief sought and obtaining the substantive relief.

23. As to the adequacy of damages, the Plaintiff contends that the questions raised by him are not of a commercial nature and that compensation, damages and money is not an issue. The questions raised relate to the Plaintiff's personal and official integrity and that damages will never be an alternative or adequate remedy to the declaratory orders he seeks.

24. If the Plaintiff was successful in enforcing his rights under for instance, s.57 and s. 58 Constitution, one of the remedies to which he could be entitled is compensation. It has long been the case that if a plaintiff is successful in an action for defamation as his reputation is likely to be injured or he is likely to be injured in his profession or trade, he will be awarded damages. This is seen as being an appropriate remedy. The same principle should apply here. In my view, damages would be an appropriate and adequate remedy.

Balance of convenience

25. If damages were not considered to be an appropriate or adequate remedy, the next consideration is whether the balance of convenience favours the grant of an injunction.

26. The Plaintiff contends that the balance of convenience favours him being granted a temporary injunction as:

a) it will not permanently deprive the Ombudsman Commission of the jurisdiction to continue their investigations if the Plaintiff should fail in his substantive application. The Ombudsman Commission can always pick up on their investigations from that point.

b) a temporary injunction should be seen in the context of the 20 years delay in the Ombudsman Commissions investigations into these matters since 1988.

c) the continuation of the investigations will seriously prejudice the Plaintiff. For instance, his ability to respond to matters arising in 1988 have been prejudiced by the passage of time, his movement between different offices, between different positions, changes of membership of support staff, moving of records and files from office to office, moving residences etc.

d) all these raise a number of serious questions to be tried and should be tried expeditiously before the Ombudsman Commission continues to impose upon the Plaintiff to do things which he is no longer able to do.

e) the balance of convenience requires the grant of an injunction to preserve the status quo until the quality of the Ombudsman Commission’s past conduct is thoroughly considered by the court.

27. The Defendants contend that the balance of convenience does not favour an interlocutory injunction being granted as it is not in the public interest that the courts should prevent the Ombudsman Commission from performing its investigative function and that a dangerous precedent would be set if this court granted the interlocutory injunction sought.

28. In the Supreme Court case of Rimbink Pato v. Anthony Manjin [1999] PNGLR 6, an appeal against a National Court decision that set aside an interim injunction restraining police officers from arresting the plaintiff, the Court stated:

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 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 s. 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.

29. The principles enunciated in Pato’s case (supra) have been supported in the National Court decision of Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290. This case involved the Lawyers Statutory Committee investigating a lawyer for professional misconduct. In that case Kandakasi J. 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 (supra) 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 search 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.

30. Then in Pius Nui v. Tanda (2004) N2765, Cannings J., when referring to the principles enunciated by Kandakasi J. stated:

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 and the laws of Papua New Guinea.

31. I am of the view that the principles enunciated in Pato’s case (supra) and Ketan’s case (supra) and supported in the Pius Nui case (supra), apply here. It is not in the interests of justice or the public interest that lawful authorities should be prevented from carrying out their lawful investigations. Any such prevention should only occur in very clear cases of abuse. I am not satisfied on the evidence presently before the court that there is a clear case of abuse here. The balance of convenience to my mind, is not in favour of granting the injunctive relief sought.

Conclusion

32. I am not satisfied that the Plaintiff has a serious question to be tried. If the Plaintiff has a serious question to be tried then damages would be an adequate remedy in the event that he was successful in his substantive proceedings. If damages are not considered to be an adequate remedy, the balance of convenience does not favour the granting of the interim relief sought.

Orders

33. The orders sought in the Plaintiff's notice of motion dated 5th May 2008 are refused. Costs of and incidental to the notice of motion are to be paid by the Plaintiff to the Defendants.

34. Given the above orders it is not necessary for me to consider the notice of motion of the Defendants seeking that the notice of motion of the Plaintiff be dismissed.

______________________________________

Posman Kua Aisi Lawyers: Lawyers for the Plaintiff 
Ombudsman Commission: Lawyers for the Defendants