SC1263

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 874 of 2011

Between:

HON. PATRICK PRUAITCH MP
Applicant

And:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI,
comprising the Ombudsman Commission
First Respondent

JIM WALA TAMATE, The Public Prosecutor
Second Respondent

And:

HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising the Leadership Tribunal
Third Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Injia, CJ
2011: 15th July

SUPREME COURT – Appeal – Application for leave to appeal against interlocutory orders of National Court – Relevant principles on grant of leave – Relevant considerations – Interlocutory orders tainted with reasonable apprehension of bias - Leave to appeal granted

Counsel:

N M Cooke QC with MM Varitimos & F Griffin, for the Applicant
H Maliso, for the First Respondent
L Kandi, for the Second, Third & Fourth Respondents

15th July, 2011

1. INJIA CJ: This is an application for leave to appeal against certain interlocutory orders in the form of directional orders made on 14th June 2011 by the National Court in respect of proceedings OS No. 34 of 2010. It is made under s 14 (3) (b) of the Supreme Court Act (Ch. No. 37). The application is contested.

2. Counsel representing both parties made their submissions on Monday this week. I reserved my ruling which I now deliver. 

3. I consider the material and submissions of counsel placed before me. 

4. I start with the relevant principles on grant of leave which are not in dispute. The onus is on the applicant to establish a meritorious case for appeal. He must persuade the Court that there is an arguable case that the decision was wrong and that substantial injustice will be done if the decision is not corrected on appeal. The onus of proof is heavier in respect of interlocutory orders that are made in civil cases which involve exercise of judicial discretion. In that regard, a passage from the decision of the Supreme Court in Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240 which is quoted by Mr Maliso of counsel for the First Respondent is pertinent to the statement I have just made in respect of the standard of persuasion. The passage appears in the judgment of the majority at p 258, as follows:

"So to obtain leave to appeal an interlocutory judgment, it is not simply a matter asserting there is an arguable case; that there has been some error. It is not the case that every error will effect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but that the error effects a party's substantive rights or will prevent the proper determination of the issues." 

5. Also relevant to take into account are two other important considerations as follows: 

•	Does the appellant have recourse in the Court below?
•	Has cause been shown that the trial process should be interrupted by an appeal?
 (see Matiabe Oberia v Police and the State (2005) SC 801).

6. By way of background, the proceedings before the National Court relate to an action brought by the applicant in OS No. 34 of 2011 Hon. Patrick Pruaitch v Chonox Manek, Chief Ombudsman & others in which he challenged a decision of the Ombudsman Commission ("the Commission") to refer him to the Public Prosecutor for prosecution on allegations of misconduct in office made against him. He also challenged the Public Prosecutor's decision to request the Chief Justice to appoint a leadership tribunal to investigate allegations. The National Court dismissed those proceedings by reason of the application of the doctrine of res judicata in that, earlier on, the National Court dismissed an application for leave for a judicial review of the same decisions. The applicant appealed the decision. The Supreme Court quashed the decision, restored the proceedings and remitted the matter to the National Court for hearing. At the time the matter came before the National Court, the Commission moved a Notice of Motion seeking orders that the proceedings be dismissed or alternatively, that the Court issue directional orders to prepare the matter for trial. The Court did not deal with orders sought for dismissal of the proceedings. The Court issued directional orders, as follows: 

(1)	Leave is granted to dispense with the requirement to have the matter mediated.

(2)	The plaintiff shall file and serve affidavits of evidence he relies on in support of the application by 5 July 2011.

(3)	The Defendants are to file and serve their affidavits by 12 July 2011.

(4)	The plaintiff shall draft and forward to the defendants by 5 July 2011, a draft Statement of Agreed and Disputed Facts and Issues clearly setting out relevant facts and which facts are disputed and why they are factual and the factual legal questions that arise.

(5)	The Defendants are to respond and provide their comments by 12 July 2011.

(6)	Parties are to meet in conference to settle the Statement by 14 July 2011, after which the Plaintiff shall file and serve the Statement with the Defendants' endorsement by 18 July 2011.

(7)	The matter shall return for mention and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SC Originating Summons No.2 of 2011, if it is decided and delivered by the matter returns to Court on 20 July 2011.

(8)	Time is abridged to the time of settlement by the Registrar, which shall take place forthwith.

7. This appeal is concerned with the manner in which the proceedings leading up to the making of those orders were conducted by the Court and the issuance of the directional orders, especially order No. 7. 

8. I am unable to find any trace of the decision in SCR No 8 of 2009 referred to in order No. 7 amongst my own records of judgments delivered by the Supreme Court and so I cannot consider its relevance to the case at hand.

9. In respect of SCOS 2 of 2011 Grand Chief Sir Michael Somare v Chronox Manek & others, it appears the matter had been argued before the Supreme Court and reserved for decision when the proceedings in OS No. 34 of 2010 came before the National Court. It appears that the trial Judge knew about the pending decision in SCOS No. 2 of 2011 and as it became apparent later, the Judge was a member of the Supreme Court that heard SCOS No. 2 of 2011. Mr Cooke QC of counsel for the applicant referred me to parts of the transcript of proceedings in the National Court in OS No. 34 of 2010 in which the Judge made reference to the pending judgment in SCOS 2 of 2011. Mr Cooke's submissions were largely based on the Judge's alleged failure to disclose the nature of the case for decision in SCOS 2 of 2011 in order to give the parties an opportunity to be heard on those matters and denial of natural justice that followed. Those passages are as follows: 

. " HIS HONOUR: "Okay, that is one aspect but what about the – we could do all of those but what if for instance, the Supreme Court comes to a decision based on section or which in fact looks at section 215(6), would that not be dispositive of the proceedings and we might be just wasting all our time and energy and resource going around?" (p.12 of transcript).
. 
" HIS HONOUR: "So, I am left no guidance so to speak other than the other case law on point, the latest of which is Agiru case and again also in the Somare case which the Supreme Court reserved on, it is an abuse of process. The facts are somewhat similar here. You know, process is denied, you commence fresh proceedings, can you do that from abuse of – your point, argument was put before the Supreme Court. And I think you also argued in the context of 215 that there can be only one cause of action.

MR NAROKOBI: That is right.

HIS HONOUR: Which is judicial review and not any other. So if for instance the Supreme Court goes your way, the Ombudsman Commission was, well, could, these proceedings be allowed to stand is the question. So that is why I am saying should we progress the interim steps that need to be taken or should you want to wait for the outcome of the decision?" (p. 13 of transcript)

. " HIS HONOUR: Yes, I am making it 20 July then for allocation of a date for trial. Further order, parties to give serious consideration as to the further conduct of this matter in the light of the Supreme Court decision in Supreme Court reference, and what was it, Mr Narakobi? The one the referral from the Ombudsman Commission or the Public Prosecutor?

MR NAROKOBI: Your Honour, SCR 8 of 2009.

HIS HONOUR: All right, SCR 8 of 2009, referral by I think it is the Ombudsman, is it or was it the Public Prosecutor? And the decision of the Supreme Court in, was it SC? Supreme Court originating summons number 2 of 2011?" (pp. 15, 16 of transcript). 

10. The applicant was not given an opportunity to be heard on the specific issues that were being considered by the Supreme Court in SCOS No. 2 of 2011. 

11. The decision in SCOS No. 2 of 2011was delivered on 1 July 2011. In its unanimous decision, the Court discussed two earlier decisions of the Supreme Court which involved the applicant in this present case: see Hon Patrick Pruaitch v Chronox Manek & Ors ( 2010) SC 1052 ( Pruaitch Case No. 1) and Hon Patrick Pruaitch v Chronox Manek & Ors ( 2010) SC 1093 (Pruaitch Case No. 2 ). The Court also discussed the decision of the National Court dismissing the application for leave to apply for judicial review. The Supreme Court noted that the National Court "correctly in our respectful view, dismissed the proceedings for abuse of process". The Court also noted that that decision went on appeal and the previous Supreme Court dismissed the appeal for reasons in law (Hon Patrick Pruaitch v Chronox Manek & Ors ( 2010) SC1093 ( Pruaitch Case No. 2 )) which the present Supreme Court did not agree with. 

12. The submissions for the respondents focus on the recourse open to the applicant in the National Court and lack of justification for interrupting the trial. It is argued that it is a gross abuse of process of this Court to raise issues going to apprehension of bias when the same points can be raised before the trial judge in any application for recusal of the judge from the case when the matter returns before the Judge on 20 July 2011. It is also argued that more time would be wasted by an appeal process that would stall the trial process. It is in the public interest that the National Court proceedings should be concluded expeditiously by refusing leave to appeal. 

13. The arguments for the respondents have a certain degree of persuasiveness. It seems to me this appeal is about removing the trial Judge from continuing with the case for suspected apprehension of bias. It is a correct say that now that the Supreme Court has handed down its decision in SCOS 2 of 2011, it is open for any party who feels their substantive rights may be prejudiced by the continued handling of this matter by the presiding Judge, to make an application for the Judge's recusal from the case. The arguments that have been made on perception of bias before this court could equally be made before the trial Judge in the context of an application for recusal made by the applicant. The same arguments could also be made in the context of the Court's deliberation under directional order No 7, which appears to facilitate an opportunity for parties to consider their position in the light of the Supreme Court's decision in SCOS No 2 of 2011. Also the issue of recusal did not arise in the Court below and that Court too should be given the opportunity to address the issue if it is raised by the parties. 

14. That much said, I consider that those arguments do not provide a satisfactory answer to the perceived or apprehended bias that may arise or occur on the part of the Court or trial Judge in the future conduct of the proceedings. The applicant's right to a fair hearing in the future conduct of the case in all its procedural and substantive aspects of the case is fundamental to the dispensation of justice in the case. That is the pivotal point raised in these appeal proceedings. It is most unusual and out of procedure for a Judge of first instance presiding in a case before the National Court to make any reference, mention or comment, even by way of a passing mention, reference or comment; on a case pending decision before the Supreme Court in which that Judge is a member of the Court, which decision might adversely affect or impact upon the merits of the case before the National Court. When that occurs, it raises serious questions concerning a fair trial hearing on all aspects of the future conduct of the case in the National Court before the same Judge. Those include a fair consideration of parties' compliance with the directional orders, a fair consideration of penalties to be levied for failure of a party to comply or sufficiently comply with the directional orders, a fair consideration of the application of summary disposal procedures to dispose of the substantive claim, a fair handling of any application for recusal and a fair trial on the substantive claim . Questions over impartiality also arise as to whether the judge's anticipated position in the pending Supreme Court decision, in a matter unrelated to the matter before the National Court, influenced the nature of the directional orders issued. 

15. I am satisfied on the face of those material before me that an arguable case has been made out that the trial Judge erred in taking into account the impending decision in SCOS No. 2 of 2011 which was not properly before that Court, and in so doing the directional orders and in particular Order No 7 is tainted with a reasonable apprehension of bias. I am also satisfied that there was an error which is not only patent but that it adversely affected the applicant's right to a fair hearing of his claim and stood to prevent a fair and proper determination of the issues in the trial. For the foregoing reasons I am inclined to grant leave to appeal

16. In conclusion, as with any legal proceedings concerning leaders occupying elective office, time is of essence. It is common knowledge that the term of office of elected members of the National Parliament such as that of the applicant runs concurrently with the 5-year term of the Parliament and there is just under 12 months to run before the writs for the 2012 elections are due to be issue.

17. I note that the outcome of the substantive appeal, one way or the other, will not be dispositive of the National Court proceedings in OS 34 of 2010 and more time could be soaked up in the process. It is in the interest of good public administration that these appeal proceedings and the proceedings in the Court below are expedited and brought to finality in good time before the writs for the 2012 elections are issued. For this reason, I will issue directions to expedite the hearing of the substantive appeal. 

18. The formal orders of this Court are as follows:

(1)	The application for leave to appeal is granted.

(2)	Pursuant to O 7 r 5 (2) of the Supreme Court Rules, I grant the order sought in paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the notice of appeal;

(3)	 The matter is fixed on Friday 22nd July 2011 at 9:30am for directions to be issued in order for the substantive appeal to be listed for hearing by the full Court in the August sittings of the Supreme Court;

(4)	 The applicant shall prepare, file and serve a draft Index to the appeal book and a draft Appeal Book for the Court's consideration and endorsement by Wednesday 20th July, 2011.

(5)	 If order No. 4 is not complied with, the Court will consider referring the appeal to the full Court for summary determination in the August sittings of the Supreme Court pursuant to r 16 (b) of the Supreme Court Listings Rules 2010.

19. I will now hear counsel on the question of costs of this application and the application for stay.
__________________________________________________________
Young & Williams: Lawyer for the Applicant
Virgil Narokobi: Lawyer for the First Respondent 
Solicitor-General: Lawyer for the Second, Third and Fourth Respondent