N5919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 37 OF 2015

BETWEEN:

FLY RIVER PROVINCIAL EXECUTIVE COUNCIL
First Plaintiff

AND:

KISAKIU POSMAN AND GOIYE GILENG
Second Plaintiff

AND:

WARWICK ANDREW AS COMMISSIONER FOR THE COMMISSION OF INQUIRY INTO PROCESSES AND PROCEDURES USED TO BRIEF-OUT MATTERS TO LAW FIRMS AND THE PROCESSES AND PROCEDURES FOR PAYING PUBLIC MONIES TO LAW FIRMS
First Defendant

AND:

HONOURABLE PETER O'NEILL, CMG, MP, PRIME MINISTER OF PAPUA NEW GUINEA
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Nablu, AJ
2015: 5th & 24th March

JUDICIAL REVIEW – Application for leave to apply for judicial review – Requirement for arguable case – Whether Commission of Inquiry Report reviewable – Exercise of Discretion – Commission of Inquiry Act (Chapter 31), ss 15 and 17 – Leave granted. 

PRACTICE AND PROCEDURE – Whether Affidavit of Verification necessary – Order 16 Rule 3(2)(b) of the National Court Rules. 

Cases cited:
Papua New Guinea Cases

 Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
 Golu v. National Executive Council (2011) N4425
 Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
 Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Wilson Kamit v. Marshall Cooke (2003) N2369
Issac Lupari v. Chief Commissioner (2009) N4650
Paul Paraka v. Hon Sir Michael Thomas Somare (2009) N4647

Overseas Case cited:

Mahon v. Air New Zealand Ltd & Others [1984] AC 808

Counsel:

G M Egan and R Raka, for the Plaintiffs
N Tame, for the First and Second Defendants
I Mugugia, for the State

24th March, 2015

1. NABLU, AJ: This is an application for leave to apply for judicial review. The plaintiffs make their application for leave pursuant to their further amended originating summons filed on 26th February 2015.

2. This matter came before me on 6th February 2015 where the plaintiffs applied for an interim injunction to restrain the defendants, in particular, the Honourable Prime Minister from tabling the Commission of Inquiry's Report in Parliament. Interim injunctions were granted and the plaintiffs were directed to amend and expedite their application for leave. 

3. I also directed that the State should be joined as a party on the premise that the State was an interested party. The State was joined as a defendant on 12th February 2015. Therefore, as a defendant, the State was afforded the statutory right under s. 8 of the Claims By and Against the State Act to be given the opportunity to be heard at the leave stage.

4. Another preliminary issue which was raised by me, was in regard to a Supreme Court application which was pending. In that matter the parties were the same as in this application for leave. I directed that on the next return date, the plaintiffs counsel address the Court on the status of these proceedings and whether there were any implications that may affect this application for leave.

5. Mr Egan of counsel for the plaintiffs did inform the Court that the directions were compiled with.

6. The State was joined as the third defendant.

7. Mr Egan also made submissions outlining the difference between this application for leave for judicial review and the Section 19 Supreme Court Reference – SCR No. 6 of 2014.

8. I have reviewed the submission handed up by the plaintiffs with respect to the Supreme Court Reference. I am satisfied that there is no abuse of process. Both applications are different in respect of the process and nature of the proceedings. The only commonality is that they arise from the same facts and involve the same parties. In the Supreme Court Reference, the plaintiffs have referred a number of questions to the Supreme Court for its opinion. The questions relate to the application and interpretation of the Commission of Inquiry Act and whether the said Act is constitutionally valid. However, in this application for leave the plaintiffs seek leave to apply for judicial review of the decision and the conduct of the first defendant. I am satisfied that both proceedings are different and do not raise the same legal issues. Therefore, the application for leave does not constitute an abuse of process and can be determined on its own merits.

9. Another preliminary issue, raised was whether Mr. Tame of counsel for the first and second defendants could be heard at the leave stage. 

10. An application for leave is strictly, made ex parte. The onus is on the applicant to establish that all four requirements for leave have been met. The only party that has the opportunity to be heard at the leave stage is the State. The State is given the statutory right to be heard by virtue of Section 8 of the Claims By and Against the State Act. I am of the view that the State's interest is protected by statute for two reasons. First, the State is not an ordinary defendant. Second, the administrative decisions or lack of decision which the applicants seek to review are made by State bodies and instrumentalities, therefore the State must be afforded the right to make submissions at the leave stage.

11. In some cases, the Court has granted leave to the defendant's counsel to make submissions at the leave stage. I am of the view that only in exceptional circumstances should leave be granted to the defendant's counsel to make submissions.

12. Applications for leave are not the substantive hearing of the matter. The Court should be cautious and not determine the merits of the application during an application for leave: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317.

13. Order 16 Rule 3(2) of the National Court Rules (NCR) provides that an application for leave is made by originating summons ex parte. The applicant is however required to give notice to the Secretary of Justice and serve the Statement in support, an Affidavit verifying facts and Affidavit in support at least two (2) days before the application for leave is made.

14. On that basis, I permitted Mr. Tame to announce his appearance but refused leave to make any submissions. The State was adequately represented by Ms. Mugugia, and was afforded the right to be heard.

15. Another preliminary issue raised by Ms. Mugugia was that the applicant had not filed an Affidavit Verifying Facts, with the Statement in Support. Order 16 Rule 3 (2)(b) of the NCR provides that an application for leave must be supported by a Statement in support and by an Affidavit which should be filed before the application is made, verifying the facts relied on.

16. It is noted that legal pracitioners differ in their approach. Some file Affidavits of Verification on the other hand, others only file affidavits in support with the Statement in support. 

17. I am of the view that Order 16 Rule 3(2)(b) of the NCR requires the applicant to file an Affidavit verifying the facts pleaded in the statement in support. I am of the view that the supporting affidavit deposing to the facts on which the plaintiff relied on, for their application for leave is sufficient.

18. The relevant principles applicable in an application for leave are well established in this jurisdiction, see for instance the case of Golu v. National Executive Council (2011) N4425. I adopt and apply the principles as succinctly set out by His Honour, Gavara-Nanu, J in Golu v. National Executive Council (supra) at page 13 to 14 of that judgement. 

19. The State opposed the application for leave. Ms. Mugugia of counsel for the State submitted that the applicants did not have an arguable case. In particular there was no "decision" to review. There was no evidence of a decision by the defendants. This was a fundamental prequisite to an application for leave. In the absence of that decision, there was nothing to judicially review. The absence of a decision means that there is no administrative act to review.

20. Ms. Mugugia also submitted that the final Report of the Commission was pending. The plaintiffs' grounds for review were based on assumptions. She said the plaintiffs were before the Court prematurely. They did not have strong arguable case for judicial review.

21. Ms. Mugugia further submitted that the Commission of Inquiry had since fulfilled their Terms of Reference accordingly, they are "functus officio" and therefore did not have the legal capacity to sue or be sued.

22. In regard to the State's submissions that the Commission of Inquiry was "functus officio" and they cannot be sued because they have fulfilled their Terms of Reference, I do not accept these submissions on the basis that a Commission of Inquiry is a body empowered by its Terms of Reference and the Commission of Inquiry Act to make public inquiries and recommendations into matters of public interest. It is not a Court of law. Its purpose is to collect, collate and make findings of fact and recommendations.

23. In my view, such findings are administrative in nature and maybe subject to judicial review (see Wilson Kamit v. Marshall Cooke (2003) N2369, Issac Lupari v. Chief Commissioner (2009) N4650 and Paul Paraka v. Hon Sir Michael Thomas Somare (2009) N4647).

24. Once its' Terms of Reference had expired, the Commission of Inquirys', power to subpoena witnesses or produce documents ceases (Paul Paraka v. Hon Sir Michael Thomas Somare (supra) per Justice Gavara-Nanu at page 9). It is clear that the State's submission is misconceived. The Commission of Inquirys' findings in its' Report may be subject to judicial review. They cannot lawfully exercise their power under the Terms of Reference after it expires, but their Report may be subject to judicial review.

25. There was no contest as to the other three (3) requirements, namely sufficient interest, delay and exhaustion of administrative remedies. However, I am of the view that based on the submissions by the State's counsel, two requirements namely, that of arguable case and exhaustion of administrative remedies are contested and require determination.

26. I will deal with the requirement of arguable case first.

Arguable Case 

27. The State argues that the plaintiffs do not have an arguable case. The State also argued that there was no decision per se before the Court.

28. Firstly, I will deal with the issue of whether there is a decision before the Court.

29. Judicial review is an equitable remedy and very much discretionary. Order 16 of the NCR provides the process on how an aggrieved person can seek judicial review. The nature of judicial review is that it is not to review the decision with a view of substituting the Courts own decision but rather to review the decision-making process undertaken to arrive at that decision (Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122).

30. Judicial review is not only to review administrative actions, it is wide enough to review the lack of action, or failure to act by the public authority. 

31. His Honour Injia, J (as he then was) outlined the procedure for an application for leave to apply for judicial review in the case of Peter Makeng v. Timbers (PNG) Ltd (supra). His Honour stated that a Statement filed under Order 16 Rule 3(3) of the NCR should contain a concise description of the decision made or required to be made, the subject of review including particulars of the decision-maker, the statutory provision under which the decision was made, or should have been made.

32. Turning to the present case, the decision which is subject of review is the decision of the first defendant in failing to notify or inform the Fly River Provincial Government and the second plaintiff when they were summoned to give evidence that an adverse findings may be made against them. The plaintiffs argue that this failure denied them the right to natural justice. Accordingly, the Commissioner committed an error of law and breached the process. Consequently, the report the first defendant prepared, and submitted to the Prime Minister is defective, invalid, null and void.

33. The plaintiffs challenge the decision on a number of grounds as provided in their Statement filed under Order 16 Rule 3(3) of the NCR. The plaintiffs argue that the first defendant has acted ultra vires, breached the rules of natural justice and that the decision was unreasonable. Alternatively, they argue that the decision contravened section 41 of the Constitution.

34. I am of the view that despite the fact that there is no decision, that is, the fact that the report is not in evidence before the Court, the evidence provided by the plaintiffs show that a Report was completed and handed to the Prime Minister for tabling in Parliament. At this stage, the plaintiffs evidence is not contested. The dispute is the content of that Report. The evidence by the plaintiffs is that they have written to the second defendant requesting him to advice whether there are any adverse findings against them. There was no response. Therefore, the plaintiffs had no choice but to come to Court to protect their interests and their reputation from any irreparable harm that may be caused, if the Report was made public when tabled in Parliament.

35. There is no dispute that a report has been made and furnished. The report constitutes the decision. The plaintiffs have the right to seek leave to apply for judicial review of the decision and the process the Commission undertook to arrive at the decision.

36. There is futility in the States argument that there is no report and that the report is still pending. The Report has been furnished to the Prime Minister. If there had been a response to the plaintiffs' request then maybe we would not be in Court today. However the lack of response has forced the plaintiffs to bring the matter to Court.

37. Mr Egan of counsel for the plaintiffs referred me to the case of Mahon v. Air New Zealand Ltd & others [1984] AC 808 as authority to support the proposition that, a Commission of Inquiry must observe the rules of natural justice and inform persons represented at an inquiry that an adverse finding may be made against them, inorder to give them an opportunity to respond and adduce evidence that may deter the Judge from making such adverse findings.

38. Counsel also referred me to a number of cases from other jurisdictions in the Commonwealth which followed the principles in Mahon's case. I note that in this jurisdiction, this issue has not been determined by the Courts. This only strengthens my view that the plaintiffs have an arguable case and this is a serious issue which should be tried and determined by the Court.

39. Notwithstanding that the report is not in evidence, it is not disputed that a Report was made. Given that judicial review is not concerned with the decision but the decision making process and bearing in mind that an application for leave is only to quickly peruse the material to see whether any serious issue arise; I am satisfied that the plaintiffs have an arguable case and that there are serious issues to be tried at the substantive hearing upon evidence from all parties.

Exhaustion of Administrative Remedies

40. Ms. Mugugia of counsel for the State, argued that there was no decision, which in my mind, gives rise to the issue of whether all administrative remedies have been exhausted.

41. Judicial Review is not available to applicants who have not exhausted all administrative remedies. (Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417 and Kekedo v. Burns Philip (PNG) Ltd (supra)).

42. In the present case, Section 15 of the Commissions of Inquiry Act, provides that a report of its proceedings and the results of its inquiry is made to the Minister. Section 17 provides that the Minister then tables the report on the first day of the second meeting of the Parliament after he receives the Commissions' Report. 

43. The provisions of the Act are clear that the plaintiffs do not have any other administrative remedies to exhaust. The furnishing of a report is final.

44. In the circumstances, the plaintiffs are correct in coming to Court to seek leave for judicial review. I am satisfied that they have exhausted all the administrative remedies available to them.

45. I find that the plaintiffs have met all the requirements for leave to be granted.

46. For the forgoing reasons, leave is granted to the plaintiffs to apply for judicial review.

47. With regard to the plaintiffs' interim restraining orders. I will adjourn the plaintiffs amended notice of motion filed on 11th February 2015 so that all parties can prepare and argue the application. In the meantime, I will order that the interim orders granted on 6th February 2015 and extended to 24th March 2015 is further extended to a date convenient for the counsels.

Court Orders

1. Leave is granted to the plaintiffs to apply for judicial review pursuant to Order 16 Rule 3(2) of the NCR.

2. The plaintiffs to file and serve the Notice of Motion pursuant to Order 16 Rule 5(1) of the NCR within 14 days from today.

3. Costs be in the cause.

4. The balance of the plaintiffs amended Notice of Motion filed on 11th February 2015 is adjourned to Tuesday 14th April 2015 at 9:30am.

5. The interim restraining orders, ordered on 6th February 2015 and extended to 3rd March 2015 and 24th March 2015 is further extended to Tuesday 14th April 2015 at 9:30am.

Posman Kua Aisi: Lawyers for the Plaintiffs
Solicitor General's Office: Lawyers for the State
Tame Lawyers: Lawyers for the First & Second Defendant