N8571

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 767 OF 2019

BETWEEN:
JURGEN RUH
First Plaintiff

AND:
ISLAND SALVAGE AND TOWAGE LIMITED
Second Plaintiff

AND:
GEORGE KERKER in his capacity as the Magistrate sitting in the Committal Court in Rabaul
First Defendant

AND:
BANK OF PAPUA NEW GUINEA
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Kokopo: Suelip AJ
2020: 19th August & 8th October

CIVIL - Practice and procedure- plaintiff is seeking review of the decision by the magistrate in Committal Court to commit both plaintiffs to stand trial at the National Court -first plaintiff an individual - second plaintiff a company - plaintiffs not in Court when magistrate received evidence from the Bank- plaintiffs absence in Court waved plaintiffs right to be heard- magistrate's decision to deliberate only on the Bank's evidence breached natural justice pursuant to s.59 of the Constitution - plaintiffs not accorded opportunity to make submission on sufficiency of evidence thereby breaching Section 94B(2) and Section 96(1) & (2)(a) & (b) of the District Court Act-sections 95, 96, 97 and 100 of the District Court Act - magistrate's decision to commit plaintiffs to stand trial was ultra vires the Committal Court procedures of the District Court - error committed by magistrate - Bank did not file any charges against the second plaintiff - decision for first and second plaintiff to stand trial at the National Court is quashed - charges against plaintiffs remitted to the District Court for another committal hearing - costs awarded to the plaintiffs 

Cases Cited 

Tkatchenko v. Dessy Magaru (2000) N1956 
Jimmy Mostata Maladina v. Posain Poloh (2004) N2568 

References 

District Court Act Constitution. 
Superannuation (General Provisions) Act 2000. 

Counsel 

Gretel Kogora, for the First & Second Plaintiffs
Jeff Mesa, for the Second Defendant 
Elsie Takoboy, for the First & Third Defendants 

RULING 
8th October, 2020 
	1. 	SUELIP AJ: 	The plaintiffs are seeking judicial review of the 
decision dated 28 June 2019 made by the first defendant, His Worship Magistrate George Kerker, when he sat as the Committal Court Magistrate. in Rabaul, and committed both plaintiffs to stand trial in the National Court without according them the right to make submissions as to the sufficiency of evidence as is required by Section 94B(2) and Section 96(1) & (2)(a) & (b) of the District Court Act. 
2.	Leave was granted on 20 November 2019. 
3.	    Whilst granting leave, the Court granted interim injunctive orders to stay eight (8) criminal proceedings against both plaintiffs in the Kokopo National Court pending the determination of these proceedings. 

  4. 	I heard the substantive matter on 19 August 2020, and I had reserved my ruling. This is now my ruling. 
  Brief background 

  5. 	The second defendant, with consent of the Public Prosecutor, commenced private prosecution against the first plaintiff where he was charged on four counts of failure to pay employees' Superannuation Contributions pursuant to Section 33, Section 78(1), Section 76, and Section 77(4) of the Superannuation (General Provisions) Act 2000. 

	6. 	Whilst the first plaintiff is an individual, the second plaintiff is a company incorporated under the Investment Promotion Act. 
Grounds for review 
	7. 	In their Statement, the plaintiffs rely on the following grounds upon 
which the relief is sought:- 
	(i) 	The first defendant failed to give the plaintiffs an opportunity to make submission as to sufficiency of evidence prior to the handing down of the decision pursuant to Sections 96, 94B (2)(b), 94(3) of the District Court Act and Section 59 of the Constitution. 
	(ii) 	The first defendant has committed an error of law when committing the plaintiffs to stand trial in the National Court when relying on his past experience. 
	(iii) 	The first defendant had committed an error of law in committing the plaintiffs to stand trial in the National Court when the initial information laid in the District Court by the Public Prosecutor dated 11 December 2018 was only against the first plaintiff. 
Evidence 
Plaintiffs
8.	The plaintiffs rely on the affidavits of Jurgen Ruh:- 
(i) sworn 27 October 2019 and filed 28 October 2019; and (ii) sworn 16 December 2019 and filed 20 December 2019. 

 9. 	These affidavits were tendered into evidence and marked as Exhibits 
"Pl" and "P2" respectively. 

First & third defendants; 

10.	The first and third defendants filed two affidavits: 

	(i) 	The affidavit of George Kerker sworn and filed 13 March 2020 
	(i) 	The affidavit of Elsie Tako boy sworn and filed 17 March 2020 
11.	   Only the first defendant's affidavit was tendered into evidence and marked as Exhibit "Dl". 

Second defendant; 
12.	The second defendant filed three affidavits as follows: - 
	(i) 	The affidavit of Nonza Makap sworn 16 January 2020 and filed 17 February 2020 
	(ii) 	The affidavit of Elizabeth Gima sworn 15 January 2020 and filed 17 February 2020 
	(iii) 	The affidavit of Jeff Mesa sworn 15 January 2020 and filed 17 February 2020 
13. None of the affidavits were tendered into evidence. 

Issues 
14. In the Statement of Agreed & Disputed Facts and Legal Issues for Trial filed 16 March 2020, the parties agreed that the legal issues for determination by the Court are:  
	(i) 	Whether the first defendant did not accord the plaintiffs an opportunity to make submissions as to sufficiency of evidence prior to making his decision on the 28 June 2019? 
	(ii) 	Whether the first defendant's decision in committing the plaintiffs to stand trial in the National Court was made in breach of Section 94B (2) (b)~ Section 96 (1) (2) (a) (b) (c) and Section 97 of the District Court Act?

	(iii) 	Whether the first defendant's decision in committing the plaintiffs to stand trial in the National Court was made in breach of section 59 of the Constitution? 
	(iv) 	Whether the first defendant's decision in committing the plaintiffs to stand trial in the National Court was ultra vires the Committal Court procedures in the District Court? 
	(v) 	Whether the first defendant's decision made on 28 June 2019 
should be quashed? 
15. 	The State relies on Tkatchenko v. Dessy Magaru (2000) N1956 where the 
plaintiff was charged and went before the defendant presiding as the Waigani Committal Court, who committed the plaintiff to the National Court to stand trial on charges against him. The defendant declared she was satisfied that there was sufficient evidence to support the four charges. The plaintiff then applied for leave to review the defendant's decision, and leave was granted. The grounds of review set out in the statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules were, error of law on the face of the record, want of jurisdiction, breach of the rules of natural justice, and unreasonable under the Wednesbury Principles. 
16. 	The Court in that case held that inter alia, there was a breach of natural 
justice as the defendant failed to give an opportunity to the plaintiff to exercise his rights under ss.95 (3) and 96 of the District Court Act, therefore judicial review is available. Despite that, the Court refused to grant a pray for a dismissal of the charges and instead, remitted the matter back to the District Court for a fresh committal hearing before a different magistrate. The Court 
also held that an order in the nature of mandamus to have the charges dismissed and the plaintiff discharged unconditionally was not available in that application as the plaintiff was not seeking a review of police procedures in respect of their investigations and their decision to charge the plaintiff.
17. 	All parties cite the case of Jimmy Mostata Maladina v. Posain Poloh 
(2004) N2568. This was an application for judicial review of the decision of Waigani District Court to commit the applicants to stand trial on seventeen (17) criminal charges. Leave to apply for review was granted and the two (2) grounds of review, were first, the committal proceedings were conducted in breach of principles of natural justice and secondly, the Court erred in law in failing to follow the mandatory procedure prescribed by s.94(1A) and 94(C)(I), (2)(b) of the District Court Act. 
	18. 	In that case, His Honour Injia DCJ (as he was then) stated that: - 

"In my view, under phase two (2) provisions under S.96, there is no question of the defendant's right to be heard, before a final decision is made under S.100 or 103. This would be the time for him or his counsel, to stand up and present his written submissions and speak orally or even given evidence. 
The administration of S.96 statement must be meaningful and administrated fairly, not only in the literal administration of the S.96 statement by the Magistrate but also the manner in which it is administered, so that there is no apprehension or misapprehension in the minds of the public and the parties, that S:96 administration is a mere formality; that the Magistrate already having decided on the sufficiency of the evidence under S.95 "to put the defendant to stand trial", the Magistrate is pre-disposed to making a decision under S.100 to commit the decision to stand trial, irrespective of what the defendant says under S.96;" 

19. The Court then quashed the decision to commit the defendant to stand trial in the National Court. It was stated therein that: - 

"This decision however does not spell the end of the Committal proceedings in respect of the information(s) then under inquiry. I order that the matter be referred back to the District Court, before a different Magistrate, for a re-hearing under S.95, 96 and 100 of the District Court Act." 

Discussions on issues 

20.	Issue 1: Whether the first defendant did not accord the plaintiffs an opportunity to make submissions as to sufficiency of evidence prior to making his decision on the 28 June 2019? 
21.	  The plaintiffs failed to appear in Court when the second defendant appeared at the committal hearing to present its file on 27 March 2019 before the first defendant and so they never sought for themselves the opportunity to be heard or respond to the second defendant's file when it was tendered then. The second defendant's lawyer requested for a two-month adjournment to study the file and prepare for submission on sufficiency of evidence. In response, the first defendant made the decision not to hear any submission then but rather deliberate on decision on Committal which would be based on evidence of the prosecution file. 
22.	In the first defendant's affidavit at paragraph 6, be attests that he did not accord the plaintiffs the opportunity to make submissions as to sufficiency of evidence prior to making his decision to commit the plaintiffs on 28 June 2019. Therefore, this is not an issue of contention. 
23.	   Issue 2: Whether the first defendant's decision in committing the plaintiffs to stand trial in the National Court was made in breach of Section 94B (2) (b), Section 96 (1) (2) (a) (b) (c) and Section 97 of the District Court Act Chapter 40. 
24.	These sections of the District Court Act make this process a mandatory requirement and as held in Jimmy Mostata Maladina v. Posain Poloh (2004) 
N2568 where it establishes that: - 

"The administration of S.96 statement must be meaningful and administered fairly, not only in the literal administration of the S.96 statement by the Magistrate but also the manner in which it is administered, so that there is no apprehension or misapprehension in the minds of the public and the parties, that S.96  administration is a mere formality ". 
25.	The State says that there is no doubt that these sections are fundamental requirements and the failure to observe these requirements does amount to a breach. The first defendant in this own affidavit attest to this at paragraphs 10 and 11 but he says it was not his intention to breach these sections but rather due to the non-attendance of the plaintiff when the prosecution file was handed up so the requirements were waved for the plaintiff to pursue at the National Court. In fact, the plaintiff never filed any written submission to indicate its desire to say something about its charges, between the dates of 27 March 2019 until the 28 June 2019 when the decision to commit the plaintiffs to stand trial in the National Court. 
26.	Issue 3: Whether the first defendant's decision in committing to the plaintiffs to stand trial in the National Court was made in breach of 
section 59 of the Constitution? 
27.	Section 59 of the Constitution states: 

"59. Principles of natural justice· 

Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed 'for control of judicial and administrative proceedings. 
The minimum requirement of natural justice is the duty to act fairly and in principle, to be seen to act fairly." 
28.	The plaintiff did not discuss this issue properly. However, the State refers to Tkatchenko v. Dessy Magaru (supra) where the Court held the view: - 

" ... that there was indeed a breach of natural justice when the defendant failed to give an opportunity to the plaintiff to exercise his right under ss.95 (3) and 96 of the District Court Act .... That is, the defendant committed the plaintiff to stand trial without giving him the opportunity to exercise his right: to give evidence if he so desire pursuant to s.96 of the Act. That is a fundamental error, which cannot be overlooked in this application. That alone, can be the basis of granting this application." 
29.	Although the State concedes the first defendant is required to comply with section 96 of the District Court Act, it is argued that the Plaintiffs made no attempt to utilize that right and put their case forward. The State argues that in Magaru and Maladina cases, the plaintiffs were present during the committal hearing when the prosecution file was presented and filed written submissions on sufficiency of evidence. However, in this case, the State says the plaintiffs were not present when the file was handed up and made no indication to the Court of their intentions. 
30. In this case, the first defendant only received the second defendant's evidence and went onto accept it as sufficient to commit the plaintiffs to trial under Section 95 of the District Court Act. The State argues that the requirement of natural justice was not totally disregarded as the first defendant considered then in the absence of the plaintiff that they still had an opportunity at the National Court to be heard. 
31.	Issue 4: Whether the first defendant's decision in committing to the plaintiffs to stand trial in the National Court was ultra vires the Committal Court procedures in the District Court. 
32.	The plaintiffs argue that although only four charges were laid against the first plaintiff by the Public Prosecutor, the first defendant found the second plaintiff also guilty of four similar counts. 
33. The second plaintiff is a company incorporated under the Investment Promotion Act, and the Public Prosecutor did not consent to prosecution against the company. Nevertheless, the first defendant found the second plaintiff also guilty on four similar charges and committed the company to stand trial in the National Court with the first plaintiff. 
34. The plaintiffs argue that the first defendant's decision in committing an individual and a company to equally stand trial in the National Court is ultra 
vires the powers of the first defendant. 

35. The Bank (second defendant) argues that it brought a proceeding against the first plaintiff in the District (Committal) Court by filing the four (4) Information. The Bank did not file any information against the second plaintiff and therefore, no case was initiated against the second plaintiff at all. Thus, the Bank submits that the committal of the second plaintiff in absence of any information, was an error by the Court as there were no proceedings initiated against the second plaintiff. 
36.	Issue 5: Whether the first defendant's decision made on 28 June 2019 
should be quashed? 
37. The plaintiffs argue that there was been an error of law committed by the first defendant when the first defendant proceeded to deliberate on the evidence of the Prosecution only under Section 95 without administering Section 96 and committing the plaintiffs to stand trial in the National Court. 
38. Further, the plaintiffs further argue that the first defendant admitted in his own written judgement of28 June 2019 that he decided to not afford the plaintiff Section 96 and his reasons amongst others, is that the plaintiffs would make a 'no case submission in the National Court' was an irrelevant consideration, and without merit, and in fact the first defendant lacked the power to make the decision in question or exceeded his powers to make that decision. In summary, the plaintiffs submit that they have made out a case for judicial review of the first defendant's decision of28 June 2019. 
39. The Bank submits that the Court. erred procedurally in not affording the first plaintiff opportunity to address the sufficiency of evidence in the prosecution file in submissions before the Court. made a decision on committal and therefore, his procedurally erroneous committal should be quashed and this matter be remitted to another magistrate for rehearing. 
40. Further, the Bank submits that since no proceedings were initiated against the second plaintiff by the Bank as prescribed by law, the Court was in error to commit the second defendant in absence of any information against it and so, the second defendant's committal should be quashed. 
41. The State however, argues that the first defendant's decision to commit the plaintiffs to stand trial in the National Court was made in view of the evidence, that is, what the evidence comprised of is for the Criminal Court to consider and not an issue for review. Further, the State submits that the plaintiffs seek to quash the decision of the first defendant made on the 28 June 2019, which decision the first defendant was mandated to make. 

42. Further, the State argues that the plaintiffs failed to appear in the Committal Court on 27 March 2019, when the first defendant made the decision to consider the second defendant's evidence alone for committal. Therefore, it submits that the plaintiffs' charges should be reverted to the Committal Court for rehearing under Sections 95, 96 and 100 of the District Court Act. 
Conclusion 
43. Regarding the first issue, all parties agreed that first defendant did not accord the plaintiffs the opportunity to make submissions as to sufficiency of evidence prior to making his decision to commit the plaintiffs on the 28 June 2019. His affidavit at paragraph 6, he attested to this fact. Therefore, this is not an issue of contention. 

44. As to the second issue, there is no doubt that Section 94B (2) (b), Section 96 (1) (2) (a) (b) (c) and Section 97 of the District Court Act are fundamental requirements and the failure to observe these requirements does amount to a breach. The first defendant in this own affidavit attests to this at paragraphs 10 and 11 but he says it was not his intention to breach these section but rather due to the non-attendance of the plaintiff when the prosecution file was handed up so the requirements were waved for the plaintiff to pursue at the National Court. In fact, the plaintiff never filed any written submission of its desire to challenge the charges, between the dates 27 March 2019 and 28 June 2019 when the decision to commit the plaintiffs to stand trial in the National Court 
45. In relation to the third issue, although the State concedes the first defendant is required to comply with section 96 of the District Court Act, it argues that the plaintiffs made no attempt to utilize that right and put their case forward. The State made a comparison to the Magaru and Maladina cases, where the plaintiffs were present during the committal hearing when the prosecution filed was presented and filed written submissions on sufficiency of evidence, however in this case the plaintiffs were not present when the file was handed up and made no indication to the Court of their intentions. 
46. In this case, the first defendant only received the second defendant's evidence and went on to accept it as sufficient to commit the plaintiffs to trial under Section 95 of the District Court Act. The requirement of natural justice was disregarded as the first defendant considered then in the absence of the plaintiff that they still had an opportunity at the National Court to be heard. 
47. For the fourth issue, the Bank brought private proceedings against the first plaintiff in the District (Committal) Court by filing the four (4) Information. The Bank did not file any information against the second plaintiff and therefore, there was an error by the Court as there were no proceedings initiated against the second plaintiff. The magistrate's decision to commit the second plaintiff is ultra vires.
48. On the last issue, following on from discussions of issues 1 to 4, it must now follow that the first defendant's decision made on 28 June 2019 will be quashed. 
Orders 
49. Upon the evidence adduced before me, I am satisfied that there is a prima facie case against the defendant when he did not accord the plaintiffs the opportunity to make submissions as to sufficiency of evidence prior to making his decision to commit them to the higher court. 
50. The plaintiffs are asking for a review of the magistrate's decision that committed them to the higher Court and are therefore entitled to an order for certiorari. 
51. I am thus satisfied that plaintiffs have made out a case for judicial review of the decision of the first defendant and in doing so, I order in the nature of certiorari as follows:- 

	(i) 	the decision of the first defendant made on 28 June 2019 to commit the first and second plaintiffs to the National Court to stand trial in respect of the charges is quashed. 
	(ii) 	this matter is remitted to the District Court before another magistrate for another committal hearing. 
	(iii) 	Costs of these proceedings is awarded to the plaintiffs on a party/party basis to be taxed if not agreed, and taxed costs is to be paid in equal amounts by the defendants. 
____________________________________________________________
Namani Lawyers: 	Lawyers for the First and Second Plaintiffs 
Corr Chambers Westgate Lawyers: 	Lawyers for the Second Defendants
Solicitor General: Lawyers for the First and Third Defendants 	 

 

			

	 

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