N6991
  PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

  OS (JR) 730 of 2017

BETWEEN:

SIR BERNARD SAKORA
Plaintiff

AND:
JUDICIAL AND LEGAL 
SERVICES COMMISSION
First Defendants

AND:
THE TRIBUNAL
Second Defendants

AND:
THE INDEPENDENT STATE 
OF PAPUA NEW GUINEA
Third Defendant

    Waigani: Hartshorn, J 
                     2017:18th, 19th  September
                  
Application for Leave to Apply for Judicial review 

Cases cited:
Papua New Guinea Cases 

Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22 
John Mua Nilkare v. Ombudsman Commission (1996) SC498
Melchior Pep v. Jack Pambel and Ors (2007) N3128 
Ombudsman Commission v. Yama (2004) SC747 
Pora v. Leadership Tribunal [1997] PNGLR 1 
Raho Hitolo v. Ila Geno (2004) N2700
Vela Konivaro v. Theo Zurenuoc (2014) N5846

Overseas case

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617

Counsel:

Mr. L. R. Henao, for the Plaintiff

19th September, 2017

1. 	HARTSHORN J: This is a decision on an ex parte application for leave to apply for judicial review by His Honour Justice Sir Bernard Sakora (Sakora J). There was no representation on behalf of the third defendant, the State. I was satisfied however, that the State had been served with the relevant documentation, that it had been made aware of the hearing date and time of the application and therefore had been afforded an opportunity to be heard pursuant to s. 8 Claims By and Against the State Act.

2. 	The decision sought to be reviewed by Sakora J is:

“The decision of the First Defendants on 1st June 2017 to appoint the Second Defendants to investigate the Plaintiff to determine, whether the Plaintiff should be removed from office as required by section 180(1)(a) Constitution.” (Decision)

3. 	The first defendants are described as the Judicial and Legal Services Commission, comprising of the Minister for Justice & Attorney General Honourable Ano Pala, MP in his capacity as the Chairman, the Chief Justice, Sir Salamo Injia (member), the Deputy Chief Justice, Sir Gibbs Salika (member) and the Chief Ombudsman, Michael Dick (member) (JLSC). The second defendants are described as The Tribunal comprising of Justice Sir Bruce Robertson in his capacity as the Chairman, Justice William Neill (member) and Justice Lawrence Kangwia (member) (Tribunal).

4. 	Sakora J, seeks to judicially review the Decision on the grounds that:

a)	it was made contrary to law and in breach of s. 9(4) Organic Law on the Judicial and Legal Services Commission as on 1st June 2017, the decision to appoint the Tribunal was not decided with a majority of votes;

b)	it was made contrary to law and in breach of s. 180(1)(b) Constitution as the purported statement of reasons are minutes of a meeting which expressed and recorded the views of individual members of the JLSC and therefore do not constitute the reasons for its opinion;

c)	there are no charges in the Notice of Appointment of Tribunal provided to Sakora J to which he could have responded.

5.	 An application for leave for judicial review involves the exercise of discretion.  The discretion must be exercised judicially.  The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

6.	 As to what is required in an application for leave, in the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock, in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644; 

“If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application”. 

7. 	This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. 

Consideration

8. 	Clearly Sakora J has sufficient interest to bring this proceeding seeking the relief that he does.

9. 	As to delay, it is submitted on behalf of Sakora J that as Order 16 Rule 4(2) National Court Rules stipulates that in an application for certiorari, the period of filing an application seeking to quash a decision is four months, and the appointment of the Tribunal was by an instrument dated 14th July 2017, this application for leave is well within the four month period.

10. 	Order 16 Rule 4(2) National Court Rules refers to an application, “…for an order of certiorari, to remove any judgement, order, conviction or other proceeding for the purpose of quashing it,….” These are certain classes of certiorari. The Rule does not refer to or include all applications for certiorari. The Decision sought to be reviewed and quashed in this instance is not a judgement, order, conviction or other proceeding. Consequently, Order 16 Rule 4(2) does not apply.

11. 	The date of the Decision sought to be reviewed is 1st June 2017. The notification of the Appointment of Tribunal to Sakora J was on 14th July 2017. One of the submissions of counsel for Sakora J is that notwithstanding that the Notice of Appointment of Tribunal informed amongst others that, “Enclosed is a copy of the decision and reasons of the Commission.”, they were not enclosed, contrary to s. 180 (1)(b) Constitution.

12. 	Sakora J has had at least since 14th July 2017 to make an application for judicial review in respect of the Decision made on 1st June 2017 by the JLSC and as notified to him on 14th July 2017. His application was filed on 15th September 2017, being just over two months after his notification.

13. 	As I said in Melchior Pep v. Jack Pambel and Ors (2007) N3128, this time delay is similar to that in Raho Hitolo v. Ila Geno (2004) N2700. In that case the plaintiff waited almost two months after the Public Prosecutor’s decision to refer him to a Leadership Tribunal before filing proceedings and applying ex parte for interim injunctive relief, at the time that the Leadership Tribunal had been constituted and had commenced its preliminary hearing. 

14. 	In Hitolo (supra), Injia DCJ (as he then was) found that although the plaintiff’s application was made within the four months prescribed by Order 16 Rule 4(2) National Court Rules, there was an undue delay.

15. 	The Supreme Court considered the importance of time in John Mua Nilkare v. Ombudsman Commission (1996) SC498. Injia J (as he then was) said:

“Under O16 r 4(1), the notion of undue delay must be considered together with the issue of whether the granting of the relief would be detrimental to good administration. Each case must depend on its own circumstances.”

16. 	In this instance, this proceeding seeking judicial review was filed 63 days after the Notification of Appointment of the Tribunal was given to Sakora J, and after the Tribunal had commenced its sitting and then adjourned, and on a Friday before the Tribunal is to resume on the next Tuesday morning - that is this morning. In my view, in the circumstances prevailing, this constitutes undue delay under the first part of Order 16 Rule 4(1) National Court Rules.

17. 	As to whether, this undue delay is detrimental to good administration, (Order 16 Rule 4(1) (2nd part) National Court Rules), I am mindful of the comments of Makail J in Vela Konivaro v. Theo Zurenuoc (2014) N5846 at [34] with which I respectfully agree:

“The end of the process is the hearing before the Tribunal.  It is for this very reason that I accept the defendants’ submission based on well established case authorities as cited by the defendants in their submissions in Rimbink Pato v. Manjin (1999) SC622; Simon Ketan v. Lawyers Statutory Committee (2001) N2290; Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765 and many more that the Court should not interfere with administrative steps of an inquisitorial or investigative process.  The process must be allowed to take its course and be completed.”

18. 	Further, in my view, it is detrimental to good administration for a tribunal that has been specifically appointed to perform a function under the Constitution, to be prevented from performing that function, because of a challenge by a person who is the subject of that function and the reason why the tribunal was appointed, when that challenge is able to be considered and dealt with by the tribunal. It is also a waste of resources.

19. 	That the Tribunal is able to hear a challenge to its jurisdiction and that the rights of an applicant such as Sakora J will not be prejudiced if his application for leave to apply for judicial review is not granted is acknowledged in numerous judicial statements.

20. 	As Injia DCJ said in Hitolo (supra):
“It is in his own interest (the Plaintiff) that the matter proceed before the Tribunal without further delay so that the allegations are investigated and determined before his term expires.     It will not substantially prejudice his rights if leave was refused and the matter allowed to proceed before the Tribunal because it is open for him to raise the same matters before the Tribunal.   It is open for him and the Commission to produce evidence on OLDRL, s 19 before the Tribunal and get its determination on the issue.”

21.	 Similarly, in Ombudsman Commission v. Yama (2004) SC747  the Court said:

“If the Respondent has any grievances about any unfairness on the part of the Public Prosecutor in  acting on the referral …….., it is open for him to raise these concerns before the Tribunal”.

22.	 Then more recently in Konivaro v. Zurenuoc (supra), Makail J said in his judicial review decision concerning a challenge to a referral to a Constitutional Office Holders Rights Tribunal at [25]:

“And I accept the first and fourth defendants’ submission that he is not prejudiced if procedures were not followed to suspend and refer him to the Tribunal for investigation, ……….. I accept the reason they gave for this proposition and that is when the plaintiff appears before the Tribunal, it must first determine whether it has jurisdiction to deal with the matter.  

26.	The plaintiff has the opportunity to raise issues of competency and jurisdiction at this stage which would include questions on “whether proper procedure prescribed by law have been followed in referring the matter to the tribunal.” see Supreme Court Reference: Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011.”

23. 	As I am of the view, pursuant to Order 16 Rule 4(1) National Court Rules that there has been undue delay in making the application for judicial review and that in my opinion, the granting of the relief sought in the judicial review application would be detrimental to good administration for the reasons given, the application for leave to apply for judicial review should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

24.   The orders of the Court are:

a)	All of the relief sought in the notice of motion of the plaintiff dated 15th September 2017 and filed 16th September 2017 in this proceeding is refused;

b)	Time is abridged.
____________________________________________________________
Henaos Lawyers: Lawyers for the Plaintiff