N6108
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 8 0F 2015

HON BELDEN NAMAH MP, MEMBER FOR VANIMO GREEN OPEN
Plaintiff

V

A TRIBUNAL COMPRISING HON JUSTICE GOODWIN POOLE, SENIOR MAGISTRATE MARK SELEFKARIU AND SENIOR MAGISTRATE ERNEST WILMOT
First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR
Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2015: 4, 5 November

INJUNCTIONS – INTERIM INJUNCTIONS – orders sought to restrain members of a leadership tribunal from convening until determination of constitutional questions by Supreme Court – relevant considerations to take into account when determining whether interim injunction should be granted.

CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws: Constitution, Section 18 – whether a leadership tribunal obliged by Constitution, Section 18(2) to refer constitutional questions to Supreme Court. 

The plaintiff is a member of the Parliament subject to the Leadership Code. The Ombudsman Commission conducted an investigation into alleged misconduct in office by the plaintiff and referred him to the Public Prosecutor for prosecution. The Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to inquire into the matter. The Chief Justice appointed a tribunal, comprised of the first defendants. The tribunal convened and, prior to the referral to it by the Public Prosecutor of the matter referred to him by the Ombudsman Commission, the plaintiff raised a number of constitutional questions regarding the appointment of the tribunal, which, he argued, required the tribunal to refer to the Supreme Court under Section 18(2) of the Constitution. The tribunal did not refer any such questions to the Supreme Court. It adjourned its proceedings to the following week to amongst other things receive the referral to it from the Public Prosecutor. The plaintiff then commenced proceedings by originating summons in the National Court, seeking: (a) a declaration that the tribunal had failed in its duty to refer constitutional questions to the Supreme Court, (b) an order that the National Court refers the constitutional questions to the Supreme Court, (c) an injunction to restrain the tribunal from conducting any proceedings, (d) a declaration that the tribunal's failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff's right to the full protection of the law under Section 37(1) of the Constitution and (e) a declaration that the tribunal's failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution. 
Having commenced those proceedings, the plaintiff applied by notice of motion to the National Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. This is the National Court's ruling on that motion.

Held:

(1)	The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law, and, by Section 18(2) obliges a leadership tribunal, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

(2)	A tribunal, in an appropriate case, will be subject to a duty to refer constitutional questions to the Supreme Court. If it is proven that it has failed to comply with that duty, the National Court could grant the sort of relief sought in the originating summons.

(3)	In the present case, there was no arguable case of a failure to comply with the duty under Section 18(2) as there was insufficient evidence that constitutional questions had 'arisen' in the tribunal. There was no transcript of the tribunal's proceedings and no other official record of how and in what circumstances and form the plaintiff applied to the tribunal to have constitutional questions referred to the Supreme Court.

(4)	Further, there was insufficient evidence that the tribunal had been put in a position where it was required to make a decision on such an application or that it had refused such an application or decided not to refer any constitutional questions to the Supreme Court.

(5)	The absence of an arguable case meant there were not at this stage any serious issues to be tried in the National Court; and in these circumstances an interim injunction was not justified.

(6)	All relief sought in the notice of motion was refused and a prior interim injunction was dissolved.

 Cases cited

The following cases are cited in the judgment:

Alois Kingsley Golu v Regett Marum (2013) N5104
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Haiveta v Wingti (No 1) [1994] PNGLR 160
Isaac Lupari v Sir Michael Somare (2008) N3476
Lowa v Akipe [1992] PNGLR 399
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379

NOTICE OF MOTION 

This was an application for an interim injunction to restrain the members of a leadership tribunal from convening the tribunal until such time as the Supreme Court has determined constitutional questions regarding the tribunal's jurisdiction.

Counsel

G J Sheppard & G Purvey, for the Plaintiff
L P Kandi, for the first and Second Defendants
M Efi, for the Third Defendant

5th November, 2015 

1. CANNINGS J: The plaintiff, the Honourable Belden Namah MP, applies by notice of motion for an interim injunction to restrain the members of a leadership tribunal from convening until such time as the Supreme Court has determined constitutional questions regarding the tribunal's jurisdiction. The tribunal is constituted by the first defendants. It has been appointed by the Chief Justice, Chief Sir Salamo Injia Kt GCL, to inquire into and determine allegations of misconduct in office against the plaintiff. This is a ruling on the plaintiff's application made by an amended notice of motion filed on 3 November 2015.

BACKGROUND
 
2. The plaintiff is a member of the Parliament subject to the Leadership Code. The Ombudsman Commission conducted an investigation into alleged misconduct in office by the plaintiff. The following events then occurred during 2015.

3. On 13 April the Ombudsman Commission referred him to the Public Prosecutor for prosecution.

4. On 14 August the Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to inquire into the matter.

5. On 9 October the Chief Justice appointed the tribunal, comprised of the first defendants.

6. On 26 October the tribunal convened. Prior to the referral to it by the Public Prosecutor of the matter referred to him by the Ombudsman Commission, the plaintiff, through his counsel Mr Sheppard, raised a number of constitutional questions regarding the appointment of the tribunal. It was evidently argued that the fact that such questions had arisen, required the tribunal to refer those questions to the Supreme Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

7. The tribunal evidently adjourned to the next day to state its position on the constitutional questions. I keep saying 'evidently' as there is, before me, no transcript or any other official record of what happened in the tribunal. I am relying on a supporting affidavit by the plaintiff, which explains in rather general terms what happened, the contents of which have not been objected to by the defendants.

8. On 27 October the tribunal evidently reconvened and indicated that it was not referring any such questions to the Supreme Court and adjourned its proceedings to 3 November to amongst other things receive the referral to it from the Public Prosecutor.

9. On 28 October the plaintiff commenced the present proceedings by originating summons in the National Court. The principal causes of action, as I understand them, that he wishes to prosecute, are:

First, that the tribunal has been unconstitutionally appointed by the Chief Justice. He proposes to argue that, because the Chief Justice is at the centre of one of 15 categories of misconduct in office (in that it is alleged that the plaintiff several years ago "stormed" a courtroom in which the Chief Justice was presiding and threatened physical violence), the Chief Justice was put in a position of a conflict of interests, such that the Constitution required that his Honour not appoint this tribunal.

Secondly, that the tribunal has failed in its duty to refer constitutional questions to the Supreme Court.

10. The relief he seeks through the originating summons, which was subsequently amended on 29 October, can be summarised as follows:

(a) a declaration that the tribunal has failed in its duty to refer constitutional questions to the Supreme Court,

(b) an order that the National Court refer the constitutional questions to the Supreme Court,

(c) an injunction to restrain the tribunal from conducting any proceedings,

(d) a declaration that the tribunal's failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff's right to the full protection of the law under Section 37(1) of the Constitution, and

(e) a declaration that the tribunal's failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution.

11. The precise terms of the relief sought are:

1 Orders and declarations under Sections 18, 23, and 57(1) and (3) of the Constitution as follows:

An order under Section 23(2) of the Constitution for such orders as the Court deems proper for remedying a breach of the duty of the defendants imposed under Section 18(2) of the Constitution upon them, including:

a.	A declaration that the defendants failed in their duty under Section 18(2) of the Constitution to refer to the Supreme Court questions relating to the interpretation and application of certain provisions of constitutional laws, which have arisen before them, including:

(i)	Whether, in the circumstances of this case, the Chief Justice is "unable or unavailable to act" (within the meaning of those words as they are used in Section 169(4)(c) of the Constitution, by reasons of the operation of law, including Section 59 (natural justice) of the Constitution, to exercise or perform his powers, functions, duties and responsibilities under Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership (the OLDRL) to appoint the defendants as "the appropriate tribunal" in the matter of the referral of allegations of misconduct in office by the Ombudsman Commission against the plaintiff under Section 27(1) of the OLDRL; and

(ii)	Whether, the purported appointment by the Chief Justice of the defendants as "an appropriate authority" under Section 27(7)(e) of the OLDRL is, in the circumstances of this case, unconstitutional, invalid and ineffective for the reasons set out in the previous paragraph; and

(iii)	If the Chief Justice is found to be unable or unavailable to act,

1.	Does this deprive the defendants of jurisdiction to inquire into any allegation referred to them in this matter; and

2.	Would the defendants be acting in breach of the Constitution and the OLDRL if they were to proceed in any respect in this matter.

(iv)	Whether, in the circumstances of this case, the powers, functions, duties and responsibilities under Section 27(7)(e) of the OLDRL ought to have been performed and exercised by the next most senior Judge in accordance with Section 169(4) of the Constitution.

(v)	Whether in the circumstances of this case, the Ombudsman Commission ought to have issued directions pursuant to Section 27(4) and Section 218 of the Constitution, to the Chief Justice, to the effect that he is "unable or unavailable to act" in this matter, and requiring the next most senior Judge to perform and exercise the powers, functions, duties and responsibilities of the Chief Justice under Section 27(7) of the OLDRL in this matter.

b.	An order under Section 18(2) of the Constitution, referring the questions set out in the previous paragraph for determination by the Supreme Court, and such other consequential orders as this court sees fit.

c.	Interlocutory or alternatively permanent injunctions, to prevent the defendants, from convening the Tribunal or conducting any proceedings whatsoever, or until such time as the Supreme Court has heard and determined the questions referred to above.

d.	A declaration that the facts, matters and circumstances referred to in paragraph 1(a)(i)(v) hereof, and in particular the failure of the defendants to discharge their duty under Section 18(2) of the Constitution, breach the plaintiff's right under Section 37 of the Constitution to the full protection of the law; and

e.	In the alternative, a declaration that facts, matters and circumstances referred to in paragraph 1(a)(i)(v) and in particular the failure of the defendants to discharge their duty under Section 18(2) of the Constitution, in that such actions:

(i)	Are harsh and oppressive, or

(ii)	Are not warranted by or are disproportionate to, the requirements of the particular circumstances or of the particular case, or

(iii)	Are otherwise no, in the particular circumstances, reasonably justified in a democratic society having a proper regard for the rights and dignity of mankind, and

(iv)	Are consequently unlawful acts, and are unconstitutional, invalid and ineffective.

2 An order under Section 23(1)(b) of the Constitution.

3 Costs.

4 For such further or other orders or declarations as the Court considers necessary or appropriate.

12. On the same day that the originating summons was filed, 28 October, the plaintiff filed a notice of motion seeking an interim injunction to restrain the tribunal from convening on 3 November.

13. On 29 October, I heard that motion and granted an interim injunction to restrain the tribunal from convening until 6 November and adjourned a full hearing of the motion to 4 November. The Public Prosecutor and the Ombudsman Commission were joined to the proceedings.

14. On 3 November the amended notice of motion, which I am now ruling on, was filed. It principally seeks an order in the following terms:

Pursuant to Order 12, Rule 1 of the National Court Rules, Section 12 of the Laws of Adoption and Adaptation Act 1975, Sections 155(4), 18(2), 23 and 57 of the Constitution, and the inherent jurisdiction of the Court, until further order, the first defendants, are restrained from convening the Tribunal in LT No 6 of 2015 until such time as the Supreme Court has determined the Constitutional questions referred to in the Originating Summons.

SHOULD AN INTERIM INJUNCTION TO RESTRAIN THE TRIBUNAL FROM CONVENING, BE GRANTED?

15. The question of whether to grant an interim injunction against the tribunal is a matter of discretion. The primary considerations to be taken into account by the Court when a person seeks an interim injunction of this nature were confirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 as being:

(a)	are there serious questions to be tried and does an arguable case exist?

(b)	has an undertaking as to damages been given?

(c)	would damages be an inadequate remedy if the interim order is not made?

(d)	does the balance of convenience favour the granting of interim relief?

(e)	do the interests of justice require that the interim injunction be granted?

Consideration (b) has been satisfied but I am not satisfied as to the others. In particular, and most significantly, I am not satisfied as to (a).

Consideration (a) requires the Court to make an assessment of the prospects of success of the plaintiff's substantive action by looking at the originating process (in this case, the amended originating summons) and the evidence that has been adduced to date. The issue is not simply whether the plaintiff has raised serious issues, but whether he appears to have a reasonable prospect of succeeding in the substantive case (Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878).

16. Some basic propositions underpinning the plaintiff's case are non-contentious: the Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law, and, by Section 18(2) obliges a leadership tribunal, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

17. It is also non-contentious that a tribunal, in an appropriate case, will be subject to a duty to refer constitutional questions to the Supreme Court. If it is proven that it has failed to comply with that duty, the National Court could grant the sort of relief sought in the originating summons.

18. In the present case, however, it cannot be said that there is an arguable case of a failure to comply with the duty under Section 18(2). Why? Because there is a dearth of evidence that such questions have 'arisen' in the tribunal. There is, as I said before, no transcript of the tribunal's proceedings. There is no other official record of how and in what circumstances and form the plaintiff applied to the tribunal to have constitutional questions referred to the Supreme Court.

19. Further, there is insufficient evidence that the tribunal has been put in a position where it was required to make a decision on such an application. I am not convinced that it has refused such an application or that it has decided not to refer any constitutional questions to the Supreme Court.

20. I am persuaded by the submissions of Mr Kandi (for the tribunal and the Public Prosecutor) and Mr Efi (for the Ombudsman Commission) that the application for an injunction is, at this stage, premature.

21. Section 18(2) of the Constitution is not an avenue by which hypothetical constitutional questions are to be referred to the Supreme Court. The Court or a tribunal must base the questions it refers on findings of fact and the questions must be relevant to those facts (SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104).

22. The absence of an arguable case means that there are not at this stage any serious issues to be tried in the National Court. For the substantive case to have any reasonable prospect of success the plaintiff must establish a factual foundation on which the case can proceed. He must prove:

•	that the constitutional questions have arisen in the tribunal; and

•	that the tribunal has refused to refer the questions to the Supreme Court; and

•	that the questions are not trivial, vexatious or irrelevant.

The plaintiff has not proven those things, so I refuse to grant the injunctions sought.
 
CONCLUSION

23. An interim injunction is not justified. The tribunal will be allowed to reconvene. I will make no order for costs at this stage. The originating summons will remain on foot. I am not persuaded by Mr Kandi's submission that the proceedings are an abuse of process and ought to be dismissed. All relief sought in the notice of motion will be refused. The interim injunction of 29 October 2015 will be dissolved.

ORDER

(1)	All relief sought in the plaintiff's amended notice of motion filed on 3 November 2015 is refused.

(2)	Order 1 of 29 October 2015 is dissolved.

(3)	For the avoidance of doubt the first defendants may at their discretion reconvene the tribunal at any time they consider appropriate.

(4)	Argument as to costs arising from the proceedings is adjourned sine die.

(5)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ordered accordingly,
_______________________________________________________________

Young & Williams Lawyers: Lawyers for the Plaintiff 
MS Wagambie Lawyers: Lawyers for the First & Second Defendants 
OC In-house Lawyer: Lawyer for the Third Defendant