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Kramer v Kangwia [2023] PGNC 290; N10445 (18 August 2023)

N10445

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 70 OF 2023 (IECMS)

IN THE MATTER OF JUDICIAL REVIEW UNDER
ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
BRYAN KRAMER
Plaintiff

AND:
LEADERSHIP TRIBUNAL COMPRISING THE HONOURABLE JUSTICE LAWRENCE KANGWIA AND PROVINCIAL MAGISTRATES JOSEPHINE NIDUE AND EDWARD KOMIA
First Defendant

AND:
PONDROS KALUWIN AS THE PUBLIC PROSECUTOR
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Carey J
2023: 18^th August

JUDICIAL REVIEW – Application for leave – Aggrieved Plaintiff challenged the failure or refusal by the Leadership Tribunal Members – National Court Rules, Order 16, Rule 3 (2) – Applicant did not meet all the prerequisites – Leave refused.

Cases Cited:

Papua New Guinean Cases
Asakusa v Kumbakor (2008) N3303
Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
NTN v PTC [1987] PNGLR 70
PNG Pipes Pty Limited & Venugopal v Sefa, Globes Pty Limited & Macasaet [1998] SC592

Overseas Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119

Held

1. Application for leave for Judicial Review be dismissed.
2. Each party to bear its own costs.
   

Counsel
Mr. Nemo Yalo, for the Plaintiff
Mr. Kevin Kiponge, for the Defendants

JUDGMENT

18^th August 2023

1. CAREY J: This is a leave application for judicial review of the decisions of the Leadership Tribunal made in (LT) 1 of 2022, delivered on the 28^th of February and 1^st May 2023.
   
2. The application is made pursuant to Order 16, Rule 3 (2) of the National Court Rules (NCR) by Bryan Kramer who is the Plaintiff, and, will be referred to hereinafter as (the Applicant).
   
3. The issue that is focused for determination is whether leave should be granted to the Applicant to apply for judicial review.
   
4. If granted leave, the Applicant will apply for judicial review of the first defendant’s ruling on verdict delivered on 28^th February and its ruling on penalty made on 1^st May 2023.
   
5. In addition, pursuant to Order 16, Rule 3 (8) (a) of the National Court Rules (NCR), the Applicant seeks interim orders to stay the said decisions on verdict and penalty and his eventual dismissal from office pending the final hearing and determination of the substantive application.
   
6. The Applicant is aggrieved by the decision of the Leadership Tribunal referred to in paragraph 1 on the following grounds:
   
   1. Ground 1- The First Defendant erred in dismissing the Plaintiff’s preliminary application to dismiss the proceeding on the basis of a constitutional issue of the Ombudsman Commission not according to him full right to be heard in relation to the 14 allegations against him thereby acting in breach of procedural fairness and unreasonableness in the Wednesbury sense.
      
   2. Ground 2- Apprehension of bias in the manner the First Defendant conducted the inquiries into the allegations against the Plaintiff contrary to s.59 Constitution and s.27 (4) Organic Law on the Duties and Responsibilities of Leadership (OLDRL),
      
   100. Ground 3- In respect of Charges 1 & 2, the First Defendant erred in finding a verdict of guilty against the Plaintiff based on procedural irregularity, taking into account irrelevant considerations; selective evidence and in breach of the principles of natural justice and unreasonableness in the Wednesbury sense,
        
   4. Ground 4- In relation to Charge No 5, the First Defendant erred in finding Tolo Enterprises Ltd “a deemed associate” of the Plaintiff, contrary to the definition provided under s.1 OLDRL; acted unreasonable in the Wednesbury sense,
      
   5. Ground 5- In relation to Charge No 6, the First Defendant erred in finding the Plaintiff dishonestly applied K400, 000.00 to an associate company which finding was not supported by evidence and was unreasonable in the Wednesbury sense,
      
   6. Ground 6- In relation to Charge No 7, the First Defendant erred in finding that the Plaintiff unlawfully applied K240, 000.00 DSIP funds towards rental for his electoral office, when not supported by evidence; was contrary to s. 11 (3) District Development Authority Act (DDA Act); and was in breach principles of natural justice,
      
   7. Ground 7- In respect of Charge No 9, the First Defendant erred in finding that the Plaintiff created an illegal staff structure without approval when not supported by evidence; contrary to s. 11 (3) DDA Act; and was made in breach of the principles of natural justice and procedural fairness,
      
   8. Ground 8- In respect of Charge No 10, the First Defendant erred in finding the Plaintiff unlawfully applied DSIP funds on salaries and wages of electoral staff when not supported by evidence; contrary to s. 11 (3) DDA Act; and was in breach of the principles of natural justice and procedural fairness,
      
   9. Ground 9- In relation to penalty, the First Defendant erred in recommending that the Plaintiff be dismissed from office for Charges 1 & 2 based on irrelevant considerations; selective evidence; bias and in breach of principles of natural justice.
      
7. To succeed in an application for leave to apply for judicial review, the law requires the applicant to meet the following requirements:
   
   1. He has sufficient interest in the matter;
   2. He has an arguable case;
   100. There are no other statutory or administrative remedies that have to be exhausted to challenge the decision; and
   4. The application is brought without undue delay or within four months after the date of the decision.
      
8. This is a leave application for judicial review under Order 16, Rule 3 (2) of the NCR by the Applicant.
   
9. The requirement of Order 16 Rule 3(3) having been duly complied with by giving notice of the application to the Solicitor General, by service on him of sealed copies of the originating summons, notice of motion, statement under Order 16 Rule 3 (2) (a) and the verifying affidavit under Order 16 Rule 3 (2) (b) of the NCR.
   
10. I have considered the written submissions of the parties and heard the oral arguments at length to ensure that there was a full opportunity presented to all parties to make their case.
    
11. The principles applicable to leave application for judicial review are enunciated in NTN v PTC [1987] PNGLR 70.
    
12. I am satisfied that the Applicant, has sufficient interest as he is directly affected by the decision of the Leadership Tribunal, has made this application within the time required with that being less than four months since the decision was delivered, and that there are no other statutory or administrative remedies that have to be exhausted to challenge the decision.
    
13. The issue that arises is that of the arguable case, that the Applicant must establish. This court was not engaged in an exhaustive assessment of the merits of the case but on a quick perusal of the materials submitted and the oral arguments made by the parties.
14. In determination as to whether the Applicant has an arguable case, the court is not concerned with determining the merits of the case (Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22).
    
15. Having been strictly scrutinized so that only clearly pleaded and meritorious grounds of review are allowed to proceed to a substantive hearing (Asakua v Kumbakor [2008] N3303), this court was able to make determination that none of the grounds listed in paragraph 6 (a) – (i) had any merit.
    
16. Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617 established principles which were endorsed by the Supreme Court in Geno.
    
17. The test for the apprehension of bias comes from a Supreme Court decision in PNG Pipes Pt. Limited & Venugopal v Sefa, Globes Pty Limited & Macasaet [1998] SC592. “The suspicion or apprehension of bias must be reasonable and not fanciful”. The Applicant did not meet the arguable case requirement in line with the apprehension of bias test.
    
18. The principles of natural justice (the principles) is a fundamental legal concept which indicates fairness and suggests that an individual has a right to a fair trial. The Applicant was not able to show even at a quick perusal of the material before the court that the principles were breached. Judicial review is available where the Leadership Tribunal commits a breach of natural justice (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. I read in painstaking detail through the submissions to identify any area that would potentially be or a breach of the principles and was not persuaded that such was the case.
    
19. On the matter of procedural fairness and the Wednesbury Principle (Associated Provincial Picture Houses Ltd v Wednesbury Coporation [1947] EWCA Civ 1; [1948] 1 KB 223), and having regard for this authority, the Applicant did not establish in any Ground upon which such was relied upon to support the leave application for judicial review that there was a breach.
20. The fact that the oral arguments by the Applicant was allowed to go into detail on the substance of what would be anticipated in a judicial review was to provide every avenue for the Applicant to persuade the court that there was an arguable case.
    
21. However, after a timeframe which was reasonable in terms of a leave application for judicial review it was clear that the case law relied upon by the Applicant and the merits of the submissions did not meet the requisite standard comprising the four things that an application for leave must show.
    

Conclusion

22. I am satisfied that the Applicant did not meet all the requirements as outlined to have an application for leave for judicial review granted and, in particular, an arguable case.
    
23. It is ordered that:
    
    1. The application for leave for judicial review is dismissed or refused.
       
    2. The costs of this application are to be shared by each party.

_______________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants