N4647

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 376 OF 2009

BETWEEN:

PAUL PARAKA trading as PAUL PARAKA LAWYERS
Plaintiff

AND:

HON. SIR MICHAEL THOMAS SOMARE, MP, PRIME MINISTER
First Defendant

AND:

CHIEF COMMISSIONER, MAURICE SHEEhan, COMMISSIONERS JUSTICE CATHERINE DAVANI AND DON MANoA COMPRISING THE COMMISSIONER OF INQUIRY INTO MANAGEMENT GENERALLY of public monies by the department of finance.
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu J
2009:	14th & 17th August

PRACTICE AND PROCEDURE – Commission of Inquiry - Counsel Assisting – Powers and functions of a Commission of Inquiry - Functions of Counsel Assisting – Independence of the Counsel Assisting - Proceedings before a Commission of Inquiry - Terms of Reference for a Commission of Inquiry.

PRACTICE AND PROCEDURE – Evidence – Application for leave for judicial review –Matters raised for leave for judicial review not raised before the Commission of Inquiry – No decision made by the Commission of Inquiry on matters raised in the application for leave for judicial review – No arguable case -Application vexation and an abuse of process – No breach of natural justice.

PRACTICE AND PROCEDURE – Costs - Discretion of the Court – Application for leave for judicial review having no merit – Costs ordered on solicitor and client basis.

Cases cited:
Papua New Guinea

Benny Balepa -v- The Commissioner of Police & The Independent State of Papua New Guinea (1995) N1374
Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. 
Gulf Provincial Government -v- Baimuru Trading Pty Ltd [1998] PNGLR 311
Latham -v- Henry Peny [1997] PNGLR 435
Salvation Army (PNG) Property Trust -v- Jorgen & Rex Vagi (also know as Vevao Pyama) N1644

Other cases cited

Bradley v. Field (1913) 13 SR (NSW) 451 
Clough v Leahy [1905] CLR 139
Gouriet v. Union of Post Office Workers [1977] 1 All ER 696
Johns & Waygood Ltd v. Utah Australia Ltd [1963] VR 70
McGuinness v. The Attorney General (Vic.) [1940] 63 CLR 73
R v. Collins; Ex parte A.C.T.U. Solo Enterprises Pty Ltd 8 ALR 691 
Rajah Ratnagopal v. Attorney Genral [1970] AC 974
Re Marginal Lands Board Commission [1980] 2 NZLR 395
Testro v. Tait [1963] 109 CLR 353
Ex parte Leahy. Ex parte Rayment (1904) 4 SR (NSW) 401

Counsel

G. Garo, for the Plaintiff
B. Lai, for the 1st & 3rd Defendants 
S.Kassman and G. Gorua, for the 2nd Defendant

17 August, 2009 

1.	GAVARA-NANU J:	On 14 August, 2009, the plaintiff's application for leave for judicial review was dismissed and the decision on costs was reserved. Submissions on costs related to the issue of whether costs should follow the event and if so whether such costs should be awarded on a solicitor and client basis. I now deliver my decision.

2.	The second defendant has asked for costs on solicitor and client basis arguing that plaintiff's application has no basis because the plaintiff did not appear before the Commission of Inquiry ("Commission") and there is nothing for which the plaintiff could seek review. It was submitted that application for leave was vexations and an abuse of process, as there was no serious issue to be tried at all for which leave could be granted.

3.	Mr. Garo of counsel for the plaintiff submitted that the application before the Court nevertheless raises new and genuine points or issues of law, thus it was proper for the plaintiff to make the application so that the Court could decide the issues and the plaintiff should not be penalised with costs for raising those issues. It was submitted that each party should pay their own costs. Mr. Garo also submitted that pursuant to Order 16 r 3 (2) of the National Court Rules leave applications are made ex-parte, thus in this case the defendants had no right to be heard on plaintiff's leave application. 

4.	The second part of Mr. Garo's submission is easy to disposed of, that is, the defendants had no right to be heard on plaintiff's leave application because the application should have been made ex-parte. This argument is clearly misconceived because the defendants sought leave to be heard on plaintiff's leave application and the Court after considering the application granted leave for them to be heard. The reason for granting such leave was that plaintiff's application raised issues of public interest.

5.	 As to the first leg of Mr Garo's submission, which is, the issues raised in plaintiff's application raised new and genuine points of law, and the Court should not penalize the plaintiff with costs, I am of the opinion that this argument is also misconceived.

6.	The plaintiff applied for leave to apply for judicial review of the decisions he says the second defendant made, but the evidence before the Court shows clearly that the second defendant did not make any decision in respect of the matters for which the plaintiff sought leave. The purported grounds upon which the plaintiff sought leave essentially challenged the jurisdiction of the Commission. They do not relate to any decision made by the second defendant. The application challenged the power of the first defendant (the Prime Minister) to extend the term of the Commission and the powers of the Commission to ask the plaintiff to appear before it as a witness to assist it in its inquiries into the payments made by the State to Mr. Isaac Lupari. These issues were also not raised before the Commission of Inquiry. The plaintiff's application is therefore clearly frivolous and vexatious and an abuse of process, I accept the defendant's argument that there was no serious issue to be tried. I hold the same view on plaintiff's contention that advice he gave to Mr. Lupari were privileged and the Commission had no power to inquire into them. This issue was also not raised before the Commission and the Commission did not make any decision on it. 

7.	It is noted that the Commission was told by Mr. Garo in one of its sittings when Mr. Garo appeared on behalf of the plaintiff that plaintiff was going to appear but he was not able to appear before the Commission at that time because he was overseas seeking medical attention. The undertaking given by Mr. Garo was that the plaintiff would appear before the Commission upon his return from overseas. However, when the plaintiff was asked to appear before the Commission after he returned from overseas, he decided through his lawyer to challenge the powers of the Commission in a letter in which the plaintiff told the Commission that he would not appear before the Commission because the Commission had no power to call him as a witness. 

8.	The Court has a wide discretion when deciding issues relating to costs and the Court must take into account the overall circumstances of the case, including the conduct of the plaintiff in bringing this action. I have already found that the plaintiff's application for leave was frivolous and vexatious and an abuse of process. The plaintiff also argued that he was denied natural justice because he was not heard by the Commission, I find this argument mischievous because it was him who refused to appear before the Commission.

9.	In regard to the contention by Mr. Garo that each party should pay their own costs, if the Court was to make such an order, it would be a departure from the norm which is costs should follow the event. In my opinion the circumstances I have outlined above do not warrant or justify such a departure. The costs should therefore follow the event. The only issue I have to decide now is whether costs should be awarded on solicitor and client basis. A quick survey of case law on awarding costs on solicitor and client basis shows that such costs may be awarded where a defendant denies a claim without a real or genuine defence then fails to defend the claim: Benny Balepa -v- The Commissioner of Police and The Independent State of Papua New Guinea (1995) N1374; or in a case where notice of intention to defend and defence have not been filed and the conduct of the defendant is a public disgrace and nuisance and the plaintiff had been subjected to fear, insult and indignation: Latham -v- Henry Peni [1997] PNGLR 435; or in a case where there is no real defence and the plaintiff is a charity organization in nature and is forced to incur unnecessary costs and expenses to prove its claims: Salvation Army (PNG) Property Trust -v- Jorgen and Rex Vagi (also know as Vevao Pyama) N1644; or in a case where proceedings are plainly frivolous and vexatious and an abuse of process: Gulf Provincial Government -v- Baimuru Trading Pty Ltd [1998] PNGLR 311; or in a case where the defendant has misread and misunderstood Court orders or the law and out of such ignorance has acted in contempt of the Court orders and failed to seek clarification of the orders and the law from the Court thus causing the plaintiff to incur further unnecessary expenses and costs by being forced to seek redress in Court: Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. 

11.	 In this case, I found that the plaintiff's application for leave for judicial review had no merit and going by what Mr. Garo told the Court, it is clear that plaintiff's leave application was made as a result of his misapprehension of the law relating to the role and functions of a Commission of Inquiry, but that cannot assist the plaintiff: Concord Pacific Ltd -v- Thomas Nen (supra).

12.	The Commission of Inquiry is not a Court of law, it does not discharge judicial functions and it does not administer justice. The Commission of Inquiry also does not inquire into private matters or interests: Ex parte Leahy Ex parte Reyment (1904) 4 SR (NSW) 401 at 417 and 422; Clough v. Leahy [1905] CLR 139 at 154 and 157; Mc Guinness v. The Attorney General [1940] 63 CLR 73 and Johns & Waygood Ltd v. Utah Australia Ltd [1963] VR 70 at 73. A Commission of Inquiry is appointed at the discretion of the government of the day through the relevant Minister and it is empowered by virtue of its appointment to make a public inquiry into matters of public interest under its Terms of Reference and report its findings to the government: Royal Commission and Boards of Inquiry (1982) By Leonard Authur Hallet at pp 8 – 25. Such being the nature of the function of the Commission of Inquiry, it should not be unnecessarily hindered or stopped from performing its functions by unmeritorious applications like the one by the plaintiff: R v. Collins, ex parte A.C.T.U Solo Enterprises Pty Ltd 8 ALR 691 at 694 to 695. The application by the plaintiff has also unnecessarily caused the Commission to justify its work and to defend itself. As a result, the Commission has been forced to incur unnecessary costs and expenses in defending the plaintiff's application. That said, it should be noted that if in the performance of its functions the Commission infringed upon private rights, that would justify injunctive orders being granted against it by the Court: Gouriet v. Union of Post Office Workers [1977] 1 All E.R 696. In such a situation, the Commission would have acted outside its Terms of Reference. That of course is not the case here, thus there is nothing at all warranting the application by the plaintiff.

13.	The plaintiff's application has forced the defendants to incur unnecessary costs and expenses in defending the application which has been found to be frivolous, vexatious and an abuse of process. In the circumstances the plaintiff should pay the defendants' costs on solicitor and client basis. 

14.	I consider it appropriate that I should make some general observations regarding the functions of a Commission of Inquiry and a Counsel Assisting for better appreciation and understanding of their respective functions. The function of a Commission of Inquiry is to acquire information on the subject of its inquiries under its Terms of Reference for the government. The findings and recommendations made by the Commission after such inquiry are aimed at assisting the government to formulate better and relevant policies for public good and they should help restore public confidence in the government. For this reason the Counsel Assisting stands in the shoes of the Attorney General who represents the interests of the public as the Principle Legal Advisor to the government. In that sense, the Counsel Assisting is fully independent in his functions even from the Commission. The role and function of the Counsel Assisting is primarily to assist the Commission in collating evidence and presenting it before the Commission. This includes identifying and calling of witnesses, including subpoenaing witnesses to assist the Commission in its inquiries into matters covered by its Terms of Reference. The Commission has the ultimate power to control the inquiry. It is not the function of the Commission of Inquiry to discover, assemble and present evidence, these are functions or duties of the Counsel Assisting. Every witness that appears before a Commission of Inquiry is regarded as a witness for the Counsel Assisting even if the witness is not called by the Counsel Assisting. This should also be reflected in his final submission and summation of the overall evidence presented to the Commission by all the parties. The Council Assisting is independent and neutral in that regard. Technical rules of evidence do not apply in proceedings before a Commission of Inquiry and the proceedings before it are not adversarial: Procedural Aspects of a Royal Commission Part 1 by Murray V. VcInerney 24 ALJ 386 at 387. 

15.	A Commission of Inquiry can only make recommendations to the government based on its findings, but the recommendations are not binding. It would be up to the government to take whatever actions it may consider necessary on the recommendations: Testro v. Tait [1963] 109 CLR 353. However, whilst the government has a discretion whether to act on the findings and recommendations of the Commission of Inquiry or not, the government should feel obligated to act on such findings and recommendations because the failure to do so would not only defeat the whole purpose behind the government setting up the Commission of Inquiry but the public may also lose confidence in the government.

16.	It is important to note that a Commission of Inquiry would only have power to make inquiries during the life of its term, including exercising its coercive powers in respect of matters that are within the Terms of its Reference, these would include orders to produce documents which are relevant to the subject matters of its inquiries: Johns & Waygood Ltd v. Utah Australia Ltd (supra), Rajah Ratnagopal v. Attorney General [1970] AC 974 and Re Marginal Lands Board Commission [1980] 2 NZLR 395. A Commission of Inquiry cannot lawfully exercise such powers after its appointment has expired: Bradley v. Field (1913) 13 SR (NSW) 451. It is clear that the applicant has misapprehended the functions of the second defendant. The application is wholly misconceived. 

17.	 In respect of costs for the first and third defendants, I am of the firm opinion that they should pay their own costs because as I said, the Counsel Assisting stands in the shoes of the Attorney General who ordinarily would be the Counsel Assisting, thus the Counsel Assisting represents their interests. Thus there is no need for the first and third defendants to engage counsel besides the Counsel Assisting. I also note and I might say rightly so that, Mr. Kassman who is the Counsel Assisting told the Court that he is the lawyer representing the first and third defendants. I accept this argument as correct in law: Royal Commissions and Boards of Inquiry (supra) at pp. 210 -214. 

18.	 For the foregoing reasons, the plaintiff will pay the second defendant's costs on solicitor and client basis. The first and third defendants will pay their own costs.
______________________________________________
Paul Paraka Lawyers: Lawyer for Plaintiff/Applicant
Counsel Assisting COI: Lawyer for Defendants