[1997] pnglr 230

PAPUA NEW GUINEA

[supreme court of justice]

brian curran

v

the independent state of papua new guinea;
the minister for foreign affairs; and
arnold marsipal; bernard narokobi; and lucas waka as members of a ministerial committee of review

waigani: amet cj; kapi dcj; los, injia, sawong jj
1 December 1995, 28 November 1997

appeal – The burden of proof in judicial review proceedings – Proof of other judicial proceedings, Evidence Act (Ch 48) s 44.

appeal – Breach of natural justice.

Facts

The appellant of British nationality entered Papua New Guinea in 1991 to work as a lawyer with a private law firm for three years. In 1992 the appellant acted through his firm as the lawyer for a Mr LeBlance whose presence and activities in the country caused a huge political controversy. Mr LeBlance was consequently deported from the country. The appellant’s entry visa was cancelled by the second respondent and ordered to leave. The appellant appealed to the third respondent who upheld the Minister’s decision. 

The appellant then sought judicial review of the decision of the Ministerial Committee of Review in the National Court. The National Court dismissed the application. The appellant appealed to the Supreme Court arguing inter alia, the trial judge fell into error when he relied on other evidence adduced before other judges in related matters.

Held

1.	Evidence issued in a prior proceeding can be used by a trial judge in a current proceeding only if it meets the requirements under s 44 of the Evidence Act (Ch 48).

2.	An enquiry initiated by the trial judge to assist him in determining a matter must comply with s 41 of the Constitution. And where a trial judge makes such an inquiry he or she must apply the principles of natural justice provided under s 59 of the Constitution.

Counsel

P Payne, for the appellant.
F Damen, for the respondents.

28 November 1997

Amet cj. I agree with the opinion of the Deputy Chief Justice and have nothing further to add.

Kapi dcj. Mr Brian Curran (hereinafter referred to as the "appellant") is a British citizen and was employed as a lawyer by Blake Dawson Waldron, a firm of lawyers in Port Moresby. He was issued with an entry permit No. C/007558/91 on 20 December 1991 pursuant to the provisions of the Migration Act (Ch 6) (hereinafter referred to as "the Act") which permitted him to enter and remain in Papua New Guinea until 10 March 1993 for the sole purpose of employment with Blake Dawson Waldron Lawyers.

On 24 June 1992 the appellant was served with a notice dated 23 June 1992 by the then Minister for Foreign Affairs cancelling his entry permit pursuant to s 6 of the Act. At the same time he was served with a removal order under s 12 of the Act. By a letter dated 25 June 1992, the appellant sought a review of the Minister’s decision before a Committee of Review pursuant to s 6 (2) of the Act. In a letter dated 17 July 1992 the Secretary of the Department of Foreign Affairs and Trade advised the appellant that the Review Committee had reviewed the cancellation of the permit and it had upheld the decision of the Minister. He requested that the appellant should leave the country within seven days of the letter.

The appellant sought judicial review of this decision in the National Court. The nature of the review sought was in the nature of a declaration that the decision of the Minister and the Review Committee was harsh and oppressive or not warranted by or disproportionate to the requirements of the particular case or is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society pursuant to s 41 of the Constitution. The matter came before Mr Justice Brown for hearing. He dismissed the application on 6 July 1994. On 12 August 1994 the appellant filed an appeal against the whole of the decision of the National Court. The appeals are:

"Grounds

(a)	The Trial Judge erred in law in failing to conduct a review of the decisions of the second and third respondents on the evidence before him as he was required to do and in lieu thereof in conducting an inquiry in relation to matters not before him and in relation to which he afforded to the appellant no opportunity to be heard.

(b)	The Trial Judge erred in law in taking into account extraneous matters which were not admitted into evidence at the trial and then in breach of the rules of natural justice in failing to advise the parties or their counsel that he intended to base his decision on extraneous matters not in evidence at the trial of the matter.

(c)	The Trial Judge erred in fact at page 16 of the judgement where he found "the convoluted events which followed are due in some part to the fact that these orders[s] and the actions of the Minister in ordering the cancellation of Mr Curran’s visa no doubt flow from the circumstances in which the Director-General felt obliged by the Court Order to grant Mr LeBlanc a temporary entry visa and the frustration he experienced as a result" when there was no evidence at all to support this finding.

(d)	The Trial Judge erred in fact at page 22 of the judgement where he found that the appellant "must, at least by the 15 May, have been fully appraised of all the various applications by Mr LeBlanc and have had the reasons given by Hinchliffe J for the Judge’s refusal to review the Director’s failure to issue a visa for Mr LeBlanc in the first instance, back in October and November 1991" when there was no evidence at all to support this finding.

(e)	The Trial Judge erred in fact at page 22 of the judgment where referring to the Affidavit of Arthur LeBlanc sworn 4 May 1992 and filed in separate proceedings, his Honour found that the appellant "must be presumed to have knowledge of its contents and acquiesced in its remaining on file" when there was no evidence at all before the Court on which to base this finding.

(f)	The Trial Judge erred in law and in fact at page 23 of the judgment in holding the appellant, in his capacity as counsel for Arthur LeBlanc, responsible for the use of affidavits sworn by Arthur LeBlanc in separate proceedings.

(g)	The Trial Judge erred in law and in fact in finding at page 23 of the judgment that the appellant’s use of an affidavit sworn by Arthur LeBlanc sworn on 4 May 1992 was open to the gravest censure.

(h)	The Trial Judge erred in fact at page 24 of the judgment in finding "I consider that knowledge in Mr Curran of these facts is particularly relevant for it goes to an understanding of the Minister’s justification for taking the steps that he had, to cancel Mr Curran’s visa" when there was no evidence at all or to support this finding.

(i)	The Trial Judge erred in fact at page 25 of the judgment in finding "the justification then for the Minister’s act against Mr Curran clear also goes to the factual statements quoted of Mr Curran, factual statements which were not true. Those erroneous factual statements could he said to show little respect for the Minister’s office or for the Commonwealth" when there was no evidence at all before the Trial Judge to support this finding and when neither the second nor third respondents proffered any such basis for their decisions.

(j)	The Trial Judge erred in law at page 29, of the judgment in finding that the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233 were not applicable in an application to review the decisions of the Minister for Foreign Affairs under the Migration Act Chapter 16.

(k)	The Trial Judge erred in law and in fact in finding at page 30 of the judgment "In this present case I am satisfied there can arise no "legitimate expectation" on the facts. I consider that in law such an approach to migration affairs of this nature has no place". The evidence before the Trial Judge was that the appellant was the holder of a valid entry permit issued for a period of more than six months.

(l)	The Trial Judge erred in law at page 32 of the judgment in finding that the Court should be very wary of granting leave in applications for judicial review against decisions under the Migration Act Chapter 16 unless exceptional circumstances can be shown. The proper test is that the applicant is only required to show that he has an arguable case.

(m)	The Trial Judge erred in law and in fact in finding at page 33 of the judgment in basing his decision on material apparently obtained from the Trial Judge’s own enquiries and not as a result of any evidence before the Court.

(n)	The Trial Judge erred in law and in fact in finding at page 33 of the judgement that "I am further satisfied that the comments attributed to Mr Curran in the newspaper report, not denied by Mr Curran, were factually wrong". The newspaper report was not in evidence before the Court. There was no requirement upon the appellant to confirm or deny the accuracy of a newspaper report not in evidence. The substance of the newspaper report related to matters, which were not the subject of the proceedings before the Trial Judge.

(o)	The Trial Judge erred in law and in fact in finding at page 36 of the judgment that the appellant’s "actions in permitting the filing and continued use of Mr LeBlanc’s affidavit of [4 May 1992] as unwarrantably subordinating his duties to the Court to the duty of [sic] the client". There was no evidence before the Court as to the affidavit of Arthur LeBlanc sworn on 4 May 1992 and in particular whether the affidavit was drafted by the appellant, read by the appellant in evidence or whether, as at 15 May 1992, the appellant had any personal knowledge of the facts deposed to in the affidavit.

(p)	The Trial Judge erred in fact at page 37 of the judgment in finding that the appellant’s possession of Arthur LeBlanc’s passport unduly caused the lawful expulsion of Mr LeBlanc to be delayed. There was no evidence to indicate that a request had been made to either the appellant or to Mr LeBlanc for the production of Mr LeBlanc’s passport to the servants or agents of the second respondent during the period of 15 May 1992 to 21 June 1992.

(q)	The Trial Judge erred in law in failing to consider the appellant’s submissions that the acts of the second and third respondents in cancelling the appellant’s entry permit were not warranted by or disproportionate to the requirements of the appellant’s particular case.

(r)	The Trial Judge erred in law in failing to take into account the appellant’s submissions that the second and third respondents in making their decisions took into account the following irrelevant matters:

(i)	allegations that the appellant refused to deliver the passport of Arthur LeBlanc when those allegations were not supported by evidence;

(ii)	Alternatively, evidence of the allegations referred to at sub-paragraph (i) above when the evidence was false."

In so far as the grounds of appeal raise matters of fact alone the appellant has sought leave in respect of those findings in a separate application for leave to appeal. The grounds which raise findings of fact only are 3 (c), (d), (e), (h), (i) and (p). The ground relied upon for leave to appeal against these findings is that the findings are unsupported by evidence before the trial judge. These grounds of appeal give rise to the proper consideration of the nature of a judicial review hearing and the manner in which matters of fact should be proven in judicial review hearings. These are important issues, which should be determined by this Court. I would therefore grant leave to appeal on these ground of appeal.

Counsel for the appellant has conveniently divided the grounds of appeal into two categories. The first category deals with the findings of the trial judge based on material, which was not led in evidence at the trial. The grounds of appeal that fall under this category are 3 (a), (b), (c), (e), (h), (i), (m), (o) and (p).

It would be convenient at this point to set out the evidence admitted at the trial.

At the trial, Mr Payne for the appellant read two affidavits: the affidavit of the appellant sworn 25 June 1992 and the affidavit of Henry V. Henry which annexed the affidavit of the appellant that was read at a previous proceedings, before the Chief Justice. The previous affidavit of the appellant was read without any objection by counsel for the respondent, Mr Damem. Mr Damem did not read any affidavits, but the Department of Foreign Affairs & Trade file (Exhibit 1) in respect of the appellant was admitted by consent. Counsel for the appellant has submitted that the trial judge has gone outside the evidence presented before him. He made a general enquiry and admitted evidence which was not led in evidence and that the parties were not given an opportunity either to call or rebut the evidence.

The trial judge considered matters that were not placed before him at the hearing. In his judgment he made reference to facts in proceedings conducted before Sakora J and Hinchliffe J. The Evidence Act (Ch 48), s 44 deals with how evidence of judicial proceedings and documents may be admitted in another trial. It is in the following terms:

"Evidence of

(a)	a judgment, decree, rule, order or other judicial proceeding of-

(i)	a court of Papua New Guinea, the High Court or a Federation Court of Australia or a court of a State or Territory of Australia; or

(ii)	a Judge, justice or magistrate of any such court; or

(b)	an affidavit, pleading or legal document filed or deposited in any such court, may be given in a court by the production of a document purporting to be a copy of it, and – 

(c)	proved to be an examined copy of it; or 

(d)	purporting to be sealed with the seal of the court; or

(e)	purporting to be certified as a true copy by a registrar or chief officer of the court."

The trial judge admitted evidence of prior proceedings in breach of this provision. The trial judge justified his actions by stating that:

"The Court is not precluded from an enquiry into the relevant issues on a section 41 application where the Minister decides not to give reasons. The Court has a duty to properly address the question in any event."

In my view the trial judge fell into error. He concluded that he could conduct an enquiry of his own outside normal rules of evidence under s 41 of the Constitution. Under s 41 (2), the burden of proof is expressly placed on the person who alleges an unlawful act. The standard of proof is on the balance of probabilities. The nature of this inquiry is no different to other civil proceedings. Section 41 does not give inquisitorial powers to the Court as is found in the European continent.

In so far as evidence from previous proceedings did influence the trial judge, the use of the evidence by the trial judge resulted in denial of natural justice to the appellant in that he was not notified that this was being done. As a result he was not given an opportunity to he heard on those matters. The principles of natural justice are part of the underlying law pursuant to s 59 of the Constitution. This Court has applied these principles in numerous cases since Independence. It’s not necessary to refer to any authority. I find that the trial judge breached the principles of natural justice and thereby fell into error. I would therefore allow the appeal on these grounds and quash the decision of the trial judge.

The question then arises whether the Court should consider the other grounds of appeal. In considering this it is relevant to have regard to the fact that the period for which the appellant expected to stay for the balance of his visa has long expired and he has physically left the jurisdiction. Counsel for the appellant submitted that no further consequential action will be taken in view of the fact that the appellant has left the country and does not intend to return. He submitted that the primary concern of the appellant is to quash the decision of the trial judge so that his name is cleared as far as adverse findings against him are concerned. In view of the fact that I have allowed the appeal on the basis of breach of principles of natural justice, it is not necessary to consider the other grounds of appeal.

I would allow the appeal with costs and quash the decision of the trial judge.

Los j. I agree with the opinion of the Deputy Chief Justice and have nothing further to add.

Injia j. I agree with the opinion of the Deputy Chief Justice and have nothing further to add.

Sawong j. I agree with opinion of the Deputy Chief Justice and have nothing further add.

Lawyers for the appellant: Blake Dawson Waldron.
Lawyers for the respondents: Solicitor General.