N5839

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 810 0F 2014

PETER O'NEILL
Plaintiff

V

PONDROS KALUWIN, IN HIS CAPACITY AS PUBLIC PROSECUTOR OF PAPUA NEW GUINEA
Defendant

Waigani: Cannings J
2015: 5, 6 January

PRACTICE AND PROCEDURE – motion to add a party – National Court Rules, Order 5, Rule 8 (addition of parties) – whether joinder of members of a tribunal as second defendant is necessary.

PRACTICE AND PROCEDURE – motion to amend originating summons – National Court Rules, Order 8, Rule 50 (general) – whether amendment necessary for the purpose of determining the real questions raised or otherwise depending on the proceedings.

On 14 November 2014 the Public Prosecutor notified the plaintiff that he had requested the Chief Justice to appoint a leadership tribunal to inquire into allegations of misconduct in office against him. On 20 November 2014 the plaintiff commenced proceedings by originating summons against the Public Prosecutor, as sole defendant, seeking a declaration that he was not entitled to refer the matter of alleged misconduct in office to a leadership tribunal and a permanent injunction restraining him from referring the matter to such a tribunal. The plaintiff also on 20 November 2014 filed a notice of motion seeking an interim injunction to restrain the Public Prosecutor from referring the matter to the tribunal and an order referring a question of constitutional interpretation and application arising from the proposed referral, to the Supreme Court under Section 18(2) of the Constitution. On 27 November 2014 the Chief Justice appointed a tribunal consisting of three persons. On 9 December 2014 the plaintiff filed a notice of motion seeking two principal orders: (1) under Order 5, Rule 8 of the National Court Rules, that the leadership tribunal comprising its three members be added to the proceedings as second defendant; and (2) under Order 8, Rule 50 of the National Court Rules, that the originating summons be amended in accordance with a draft amended originating summons annexed to the notice of motion. This was the hearing of the notice of motion filed 9 December 2014.

Held:

(1)	A person may be added as a party under Order 5, Rule 8(1)(b) of the National Court Rules where his "joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on".

(2)	Joinder of the tribunal comprising its members was necessary to ensure the effectual and complete determination of the matters in dispute as (a) the originating summons was a vehicle for challenging not only exercise of power by the Public Prosecutor but also the jurisdiction of the tribunal; (b) it would reduce the prospect of a multiplicity of proceedings if the tribunal were joined to the proceedings, in that in the event that a declaration or injunction were made restraining it from inquiring into alleged misconduct in office of the plaintiff, it would be directly made aware of and be bound to give effect to the decision of the Court.

(3)	It was therefore a matter of discretion whether to order that the tribunal comprising its members be joined as a defendant. The Court made the order sought as: (a) the application was made in good faith, for good reason and without delay, (b) neither the tribunal comprising its members nor the Public Prosecutor or any other person was likely to be prejudiced by the joinder and (c) the joinder was not likely to unreasonably delay or frustrate the constitutional process of which the proposed referral by the Public Prosecutor of the plaintiff to the tribunal was a part.

(4)	The Court can grant leave to a plaintiff to amend an originating summons under Order 8, Rule 50(1) of the National Court Rules "for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings".

(5)	Amendment of the originating summons in the terms proposed would facilitate a more expeditious determination of the real questions raised by the proceedings (the constitutionality of the Public Prosecutor's decisions relating to referral of alleged misconduct in office to the tribunal and the jurisdiction of the tribunal to inquire into that matter) and avoid the prospect of a multiplicity of proceedings.

(6)	Thus the orders sought for joinder and for amendment of the originating summons were granted. The parties were ordered to bear their own costs.

 Cases cited

The following cases are cited in the judgment:

Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118
Kewa v Kombo (2004) N2688
Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158
Pius Nui v Senior Sergeant Mas Tanda (2004) N2765
Raroki Investment Ltd v Councillor Dos Roltinga (2013) N5296
Tarsie v Ramu Nico (MCC) Ltd (2010) N4141
The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273

NOTICE OF MOTION

This was an application for joinder of persons as a defendant and for amendment of an originating summons.

Counsel

M M Varitimos QC & P Tabuchi, for the Plaintiff
G B Kubak, for the Defendant

6th January, 2015 

1. CANNINGS J: This is a ruling on a motion by the plaintiff, Peter O'Neill, seeking orders for the addition of a party as a defendant to an originating summons and for amendment of the originating summons.

2. The plaintiff is the Prime Minister of Papua New Guinea. The defendant, Pondros Kaluwin, is the Public Prosecutor. On 14 November 2014 the Public Prosecutor notified the plaintiff that he had requested the Chief Justice, Sir Salamo Injia Kt GCL, to appoint a leadership tribunal to inquire into allegations of misconduct in office against the plaintiff.

3. On 20 November 2014 the plaintiff commenced proceedings by originating summons against the Public Prosecutor, as sole defendant, seeking a declaration that he was not entitled to refer the matter of alleged misconduct in office to a leadership tribunal and a permanent injunction restraining him from referring the matter to such a tribunal. The plaintiff also on 20 November 2014 filed a notice of motion seeking an interim injunction to restrain the Public Prosecutor from referring the matter to a tribunal and an order referring a question of constitutional interpretation and application arising from the proposed referral of the matter to the tribunal to the Supreme Court under Section 18(2) of the Constitution. That motion has not yet been heard.

4. On 27 November 2014 the Chief Justice appointed a tribunal consisting of three members, the Right Honourable Sir Peter Blanchard KNZM PC (as Chairman), the Honourable John Von Doussa AO QC and the Honourable Salatiel Lenalia, and notified the plaintiff of the appointment and fixed the commencement date of the tribunal's inquiry as 26 January 2015.

5. On 9 December 2014 the plaintiff filed the notice of the motion that is now before the Court for determination. The plaintiff seeks:

(1) an order that the leadership tribunal comprising its three members be added to the originating summons proceedings as second defendant; and

(2) an order that the originating summons be amended in accordance with a draft amended originating summons annexed to the notice of motion.

The motion is opposed by the Public Prosecutor.

(1)	SHOULD THE TRIBUNAL BE ADDED AS A DEFENDANT?

6. The plaintiff applies for an order adding the tribunal as a defendant under Order 5, Rule 8 of the National Court Rules, which states:

 Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

7. As I pointed out in Tarsie v Ramu Nico (MCC) Ltd (2010) N4141, Rule 8(1) operates in this way. To order that a person be added as a party the court must first be satisfied that the person:

(a) "ought to have been joined as a party"; or

(b) "is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on".

8. If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the person the subject of the application be added as a party. If neither (a) nor (b) is satisfied, the court has no power under Order 8(1) to order the proposed party's joinder. The plaintiff relies on Rule 8(1)(b). The question is whether the joinder of the tribunal comprising its members is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on.

9. Ms Kubak for the Public Prosecutor submits that the joinder of the tribunal is unnecessary as the plaintiff has no cause of action or grievance against the tribunal. No complaint has been made that the tribunal has been unlawfully appointed, so it should be allowed to perform its constitutional functions. A constitutional process is under way. The Supreme Court has shown in Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118 that this sort of process, involving referral of a leader, including the Prime Minister, to a leadership tribunal, should be permitted to run its constitutional course and that purported constitutional issues should be raised in the first instance before the tribunal. The proceedings of a duly appointed tribunal should not be permitted to be frustrated by needless challenges to the constitutional process, Ms Kubak submitted.

10. Those are valid considerations. I agree that the Court should be vigilant against the spectre of leaders using the Court's processes to unnecessarily delay or frustrate the processes of investigation, prosecution and inquiry carefully put in place under the Constitution to make leaders accountable for their conduct under the Leadership Code (Pius Nui v Senior Sergeant Mas Tanda (2004) N2765). However, in my view this is a genuine application for joinder, which I will grant for the following reasons.

11. I am satisfied that joinder of the tribunal comprising its members is necessary to ensure the effectual and complete determination of the matters in dispute as:

(a) the originating summons is a vehicle for challenging not only exercise of power by the Public Prosecutor but also the jurisdiction of the tribunal;

(b) it would reduce the prospect of a multiplicity of proceedings if the tribunal were joined to the proceedings, in that in the event that a declaration or injunction were made restraining it from inquiring into alleged misconduct in office of the plaintiff, it would be directly made aware of and be bound to put into effect the decision of the Court under Section 155(6) of the Constitution, which states:

Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

12. It is therefore a matter of discretion whether to order that the tribunal comprising its members be joined as a defendant (Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158). I will exercise that discretion by making the order sought as:

(a) I consider that the application has been made in good faith, for good reason and without delay; and

(b) neither the tribunal comprising its members nor the Public Prosecutor or any other person is likely to be prejudiced by the joinder; and

(c) the joinder is not likely to unreasonably delay or frustrate the constitutional process of which the proposed referral by the Public Prosecutor of the plaintiff to the tribunal is a part.

13. I conclude that yes, the tribunal should be added as a party and I will make an order to that effect.

(2)	SHOULD LEAVE BE GRANTED FOR AMENDMENT OF THE ORIGINATING SUMMONS?

14. The plaintiff applies for an order granting leave for amendment under Order 8, Rule 50 of the National Court Rules, which states:

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.

(4) This Rule does not apply to the amendment of a minute of a judgement or order.

15. As Gavara-Nanu J pointed out in the leading case The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273, Order 8, Rule 50 gives the Court a wide discretion, when it is required to determine an application for an order to amend a document, including any pleadings. 

16. Though it is not expressly stated in the Rule, and the Rule appears in Order 8, headed "Pleadings" and though an originating summons is not a pleading (as defined by Order 1, Rule 1) I am satisfied that there is no indication in the wording of the Rule that requires it to be read down as applying only to amendment of pleadings. I therefore adopt the approach of Poole J in Raroki Investment Ltd v Councillor Dos Roltinga (2013) N5296 and find that the power of amendment applies to originating summonses.

17. Mr Varitimos for the plaintiff quite rightly pointed out that the courts have traditionally taken a liberal approach to amendment of documents, including pleadings. In The Papua Club case the Court granted an application by the plaintiff to amend its statement of claim on the third day of a trial that was due to last more than four days.

18. Gavara-Nanu J listed five considerations that the Court should weigh in the balance when determining applications for amendment. They are:

1	Will the amendment enable the Court to determine the real question in controversy between the parties?

2	Will the amendment correct any defect or error in the proceedings?

3	Will the amendment cause real prejudice or injustice to the other party?

4	Is the application for such amendment made mala fide or bona fide?

5	Can the other party be fairly compensated with costs for the amendment?

In Kewa v Kombo (2004) N2688, I suggested that following considerations might also be relevant:

6	Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend the document?

7	Where do the interests of justice lie?

8	Is the proposed amendment efficacious? Is it a proper amendment?

19. Ms Kubak submits that leave for amendment should be refused. She posited the same reasons as were provided in opposition to the joinder application: a constitutional process is under way, it should be permitted to run its course and the Public Prosecutor and the leadership tribunal should be permitted to carry out their constitutional obligations unhindered by unnecessary challenges to their processes and jurisdiction.

20. Those are valid considerations. However, I will grant leave for amendment of the originating summons for the following reasons.

(a)	Amendment of the originating summons in the terms proposed will facilitate a more expeditious determination of the real questions raised by the proceedings (the constitutionality of the Public Prosecutor's decisions relating to referral of alleged misconduct in office to the tribunal and the jurisdiction of the tribunal to inquire into that matter) and avoid the prospect of a multiplicity of proceedings.

(b)	The proposed amendment will not cause real prejudice or injustice to the Public Prosecutor, the leadership tribunal or any other person.

(c)	It is a bona fide application for amendment.

(d)	The plaintiff is not prevented by his conduct or the manner in which the proceedings have progressed from being permitted to amend the originating process. He has acted quickly after appointment of the tribunal in making this application.

(e)	He wishes to amend the originating summons so that he can more efficiently bring a constitutional challenge to the exercise of power by the Public Prosecutor and the jurisdiction of the leadership tribunal. It is in the interests of justice that this challenge, which at this stage, on the face of what is proposed, is not obviously frivolous or vexatious, be able to be tested and that the constitutional issues are crystallised.

(f)	The proposed amendments are efficacious, in that they will clarify that declarations and injunctions are sought not only in relation to the exercise of power by the Public Prosecutor but also the jurisdiction of the leadership tribunal.

21. I conclude that yes, leave should be granted to amend the originating summons.

CONCLUSION

22. Both orders sought by the plaintiff will be granted. In view of the nature of the proceedings, in which both the plaintiff and the defendant are public officials subject to the Leadership Code, and constitutional duties and responsibilities are at the centre of the proceedings and there is no finding of bad faith against either, it is appropriate that the parties bear their own costs.

ORDER

(1)	The leadership tribunal comprising the Right Honourable Sir Peter Blanchard KNZM PC, the Honourable John Von Doussa AO QC and the Honourable Salatiel Lenalia is added as second defendant to the within proceedings, on terms that the existing defendant, Pondros Kaluwin, in his capacity as Public Prosecutor of Papua New Guinea, be designated as first defendant.

(2)	Leave is granted to the plaintiff to amend the originating summons filed 20 November 2014 in terms of the draft amended originating summons annexed to the notice of motion filed 9 December 2014 and marked "A".

(3)	The parties shall bear their own costs of the notice of motion filed 9 December 2014.

(4)	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 
Kubak & Kubak Solicitors & Barristers: Lawyers for the Defendant