SC1093 
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 7 OF 2010

BETWEEN:

HONOURABLE PATRICK PRUAITCH MP
Appellant

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SENGATARI, comprising the Ombudsman Commission
First Respondents

AND:

JIM WALA TAMATE, The Public Prosecutor
Second Respondents

AND:

HONOURABLE DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM
Third Respondents

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Sakora, Lenalia & Manuhu, JJ
2010: June 30
2011: March 31

PRACTICE AND PROCEDURE – Abuse of process – Multiplicity of proceedings – Doctrine of res judicata – Application for leave to apply for judicial review – Leave refused – No substantive review on the merits - Fresh proceeding instituted under the Constitution –Same issues in both proceeding – National Court Rules, O16, rr 1, 3(1) and (2).

ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP - Leadership Code –Leadership Tribunal – Allegations of Misconduct in Office – Referral of Leader – Suspension of Leader – Original jurisdiction on suspension - Organic Law on Duties and Responsibilities of Leadership, ss 27 and 28. 

The Appellant appeals against decision of motions judge to dismiss his proceeding where he claims denial of right to be heard before referral by Ombudsman Commission to the Public Prosecutor for misconduct in office. He had initially applied for leave for judicial review which application was heard ex parte and refused. The Appellant also complains about his suspension following earlier decision by Supreme Court which dealt with his applications for leave to appeal on questions of fact and for stay of proceeding under the Organic Law on Duties and Responsibilities of Leadership ("The Organic Law"). 

Held:
(1) The refusal of leave to apply for judicial review does not determine the substantive matter for judicial review on its merits. 

(2) The substantive matter that would have been reviewed but for the refusal of leave remains unresolved and may be raised with or without leave in a court of competent jurisdiction. 

(3) The decision refusing leave, in an ex parte application, was not a final order made following an inter partes hearing. 

(4) It would be unfair for the Appellant to be denied his constitutional right to seek redress in a court of law on the basis that his ex parte application for leave for judicial review had been refused. 

(5) The motions judge erred in finding that the subsequent proceeding amounted to duplicity of proceeding and was an abuse of process. 

(6) The motions judge erred in his findings on res judicata. 

(7) The question of suspension, pursuant to the combined effects of sections 27 and 28 of the Organic Law, falls exclusively within the original jurisdiction of a Leadership Tribunal and comes into effect upon presentation of charges and statement of reasons before Leadership Tribunal. 

(8) The decision of the Supreme Court on suspension of the Appellant was obiter. 

(9) The Supreme Court exceeded its jurisdiction when it considered, on its own motion, the question of suspension.

Cases cited in the judgment:

Anderson Agiru v Electoral Commission and The State Unreported (2002) SC687
Telikom PNG Limited v The Independent Consumer and Competition Commission and Digicel Unreported (2008) SC 906
Titi Christian v Rabbie Namaliu (1995) Unnumbered
Honourable Patrick Pruaitch MP v Chronox Manek & Ors (2009) N3903.
Hon Patrick Pruaitch, MP v Chronox Manek & Ors (2010) SC1052
Hon Patrick Pruaitch, MP v Chronox Manek & Ors (2010) N4149

Counsel:

M. Cooke QC & M. Varitimos, for the appellant.
V. Narakobi, for the first respondents.
N. Miviri, for the second respondents.
T. Tanuvasa, for the third and fourth respondents.

31 March, 2011

1. BY THE COURT: This is an appeal by Honourable Patrick Pruaitch, MP, ("The Appellant") against the decision of Kariko, J., (Hon Patrick Pruaitch, MP v Chronox Manek & Ors (2010) N4149) sitting as motions Judge in Waigani on 12th February 2010 dismissing the proceeding commenced by the Appellant following a successful application by the Ombudsman Commission ("The Commission"). 

2. The Appellant was in the court below seeking declarations principally that, pursuant to sections 23(2), 155(4) and 217(6) of the Constitution, the referral by the Commission of the Appellant to the Public Prosecutor for prosecution for misconduct in office was unconstitutional, ultra vires and therefore illegal, invalid and of no force and effect. That was because the Commission did not accord the Appellant the right to be heard before making the referral, in breach of its duty to do so under section 20(3) of the Organic Law on the Duties and Responsibilities of Leadership ("The Organic Law)". 

3. There is no dispute that the Commission had been investigating the Appellant, who was then the Minister for Forest in the National Alliance led Government, in respect of certain allegations of misconduct in office. On 29 September 2006, the Commission, whose members then were Chief Ombudsman Ila Geno and Commissioners Peter Masi and John Nero, informed the Appellant of his right to be heard in respect of its investigations into 11 allegations of misconduct in office against him. 

4. The Appellant personally presented himself before the Commission in October 2006. He then submitted his written responses on 30 November 2006. The Commission did not take any further action upon receipt of these responses until two years later. 

5. By then, Chief Ombudsman Ila Geno and Commissioner Peter Masi had left office. The Commission, comprising of Chief Ombudsman Chronox Manek, and Commissioners John Nero and Phoebe Sangetari, issued a summons on 22nd January 2008 for Mr. Kanawi Pouru, Managing Director of Papua New Guinea Forest Authority, to provide further relevant materials to the Commission. 

6. Mr. Pouru responded on 4th February 2008. His response was in relation to the alleged debt of K20,000 and what the Appellant's entitlements were at the relevant period. On 22 July 2009, the Commission advised the Appellant that his responses (on 30th November 2006) had been considered and he would be referred to the Public Prosecutor for prosecution on 11 allegations of misconduct in office. 

7. The Appellant was aggrieved by the Commission's decision to refer him and sought leave for judicial review of the referral before Hartshorn, J (Honourable Patrick Pruaitch MP v Chronox Manek (2009) N3903). As we understand it, the Appellant's argument was that after a lapse of two years, the Commission comprising of new members had obtained additional incriminating materials from Mr. Pouru and that he was not given the opportunity to respond in respect of those further materials. It is also suggested on his behalf that in view of lapse of time of two years the Commission had decided that he would not be referred to the Public Prosecutor for prosecution. 

8. The application before Hartshorn, J was heard ex parte and refused. A Leadership Tribunal, following the refusal, was empanelled by the Chief Justice at the request of the Public Prosecutor. The Appellant then filed the proceeding, which dismissal by Kariko, J., is the subject of this appeal.

9. The Commission's application before Kariko, J was on the basis that: the proceeding disclosed no reasonable cause of action; was frivolous and vexatious; and, thus an abuse of process. In his reasons, his Honour considered the similarities in the causes of action in both proceedings. His Honour found that the cause of action in the subsequent proceeding could have been included in the first proceeding. His Honour reasoned that the Appellant did not give any good reason "why these current proceedings were filed even though the same claims in respect of the right to be heard were raised" in the leave application. 

10. His Honour was of the view also that the Appellant had "reframed his claims and relief sought and instituted this different mode of proceedings" which, in his opinion, seemed to be an attempt to avoid the scrutiny of Order 16 of the National Court Rules ("The Rules"). His Honour saw this to have amounted to multiplicity of proceedings and was an abuse of process. His Honour concluded also that res judicata, for the same reason, was established. 

11. The Appellant argues that the motions judge erred in his finding that he had instituted multiple proceedings and erred in his finding that a plea of res judicata had been established. This is because the earlier proceeding was not decided on the merits. It was an ex parte application for leave for judicial review. The decision to refuse leave was not a final order made after the hearing of all the evidence and the parties had addressed the issues on their merits. The respondents were not parties. When leave was refused, the judicial review application could not be proceeded with, and was not therefore pending when the subsequent proceeding was filed. 

12. The Commission contends that facts and circumstances relied upon by the Appellant are the same in both proceedings. The Appellant, it is argued, is raising the same issue that he was not given the right to be heard before the referral. In addition, the proper mode of proceeding, it is argued, is under Order 16 of the National Court Rules which the Appellant had invoked and failed. The Appellant, it is argued, is using a different mode of proceeding instead of appealing to raise the same matter. 

13. The appeal raises the principles of multiplicity of proceedings and res judicata. In the former, a litigant having selected one mode of proceeding and having failed to obtain a remedy cannot generally be entitled to institute another proceeding and seek the same remedy that was denied in the previous proceeding: Telikom PNG Limited v The Independent Consumer and Competition Commission and Digicel (2008) SC 906 and Anderson Agiru v Electoral Commission and The State (2002) SC687. 

14. The principle of res judicata is settled in this jurisdiction: see Titi Christian v Rabbie Namaliu (1995) Unreported and Telikom PNG Limited v The Independent Consumer and Competition Commission and Digicel (supra). 

15. On the materials before us, the parties in both proceedings are substantially the same except that members of the Leadership Tribunal and the State were included as respondents in the subsequent proceeding. Secondly, the Appellant's claim that the Commission did not accord him the right to be heard and exceeded its jurisdiction when it made the referral was one of the issues in the ill-fated judicial review. 

16. However, in our opinion, a refusal of grant of leave does not determine the substantive matter for judicial review on the merits. Similarly, a grant of leave does not determine the substantive matter for judicial review on the merits. A substantive matter that would have been reviewed but for the refusal to grant leave remains unresolved and may be raised with or without leave in a court of competent jurisdiction. 

17. The Appellant made an ex parte application for leave to apply for judicial review. The application was refused. This means that substantive matter for review was not heard, could not be heard and determined when leave was refused by Hartshorn, J. The decision to refuse leave, application for which was heard ex parte, was not a final order made after hearing inter partes all the evidence. The refusal of leave did not determine judicially the merits or otherwise of the Appellant's grievance(s). 

18. It would be unfair for the Appellant to be denied his constitutional right to seek redress in a court of law on the basis that his ex parte application for leave for judicial review was refused. Even an appeal against the refusal would not resolve on the merits the substantive matters for judicial review. 

19. In the end result, we find ourselves at odds with the motions judge in respect of his finding that the Appellant had filed proceedings which are substantially similar when the refusal to grant leave was not a decision on the substantive matter for judicial review. Putting it another way, the Appellant's grievance of being denied the right to be heard (before the referral by the Commission to the Public Prosecutor) was never reviewed in the way Order 16 of the Rules envisages. The refusal of leave by Hartshorn, J did not permit him to do so. 

20. Accordingly, we conclude that the motions judge erred in his finding that the subsequent proceeding amounted to duplicity of proceeding and was an abuse of process. We also conclude that the motions judge erred in his findings in relation to the plea of res judicata. The refusal to grant leave was not a finding on the substantive matter for judicial review on the merits. 

21. We must, therefore, allow the appeal.

22. The Appellant has also raised the issue of his suspension. The issue was introduced by the Supreme Court in Hon Patrick Pruaitch, MP v Chronox Manek & Ors (2010) SC1052 on its own motion. It was not raised by any party in that proceeding. The Supreme Court was dealing with applications for leave to appeal on questions of fact and for stay of the referral. The issue of suspension was introduced as "part and parcel of the issues" by the Supreme Court. The Supreme Court concluded that the Appellant was automatically suspended upon the appointment of the Leadership Tribunal on 3rd February 2010 and ordered accordingly. 

23. We also note that neither the Supreme Court nor the National Court has the original jurisdiction to deal with the question of suspension of a leader under the Organic Law. In that earlier Supreme Court, the application for leave to appeal on question of facts, and the application for stay of referral were properly before it and within its powers to deal with. 

24. On the other hand, the question of suspension, pursuant to the combined effect of sections 27 and 28 of the Organic Law, falls exclusively within the original jurisdiction of a Leadership Tribunal and comes into effect upon presentation of charges and statement of reasons before the Leadership Tribunal. Suspension does not take effect elsewhere. 

25. For clarity, section 28 of the Organic Law provides that where a matter has been "referred to a tribunal" under section 27 the person alleged to have committed misconduct in office is suspended from duty. Section 27 (2) relevantly provides:
 
"If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal..."

26. The allegations of misconduct in office are referred by the Public Prosecutor when charges and statement of reasons are presented to the appointed Leadership Tribunal, which then assumes jurisdiction over the matter, and the leader so referred is automatically suspended from office there and then. Until then, a leader under investigation is not suspended. 

27. In this case, the Leadership Tribunal had yet to be convened. The charges and the statement of reasons had not been presented or had not been referred to the Leadership Tribunal. The Appellant therefore remains unaffected by the suspension provisions. The Appellant should not have been suspended by the Supreme Court.

28. In the circumstances, we are of the view that the previous decision of the Supreme Court on the suspension of the Appellant is obiter. We are also of the view that the Supreme Court exceeded its jurisdiction when it considered the question of suspension, and suspended the Appellant.

29. In the light of our foregoing findings and conclusions, we make orders in the following terms:

 (a) The Appeal is allowed;

(b) The ruling and order of the National Court made on 12 February 2010 in OS No. 34 of 2010 – Honourable Patrick Pruaitch MP v Chronox Manek & Ors is quashed;

(c) Proceeding OS No. 34 of 2010 – Honourable Patrick Pruaitch MP v Chronox Manek & Ors is reinstated and shall be heard by the National Court presided over by another judge;

(d) Pursuant to sections 23(2), 23(2) and 155(4) of the Constitution and until the hearing and determination of all of the Appellant's claims herein, the Respondents, their officers, servants, agents or whomsoever, are hereby restrained from taking any further actions or steps or conducting any further inquiries under the Organic Law or otherwise pursuant to the referral;
 
(e) Order 3 of Supreme Court Orders made on 31st May 2010 on suspension is discharged, and; 

(f) The First, Second and Fourth Respondents shall pay costs of the Appellant in the appeal, including cost of overseas Counsel.

_____________________________

Young & William Lawyers: Lawyer for the Appellant
Counsel for the Commission: Lawyer for the First Respondents
Public Prosecutor: Lawyer for the Second Respondents 
Solicitor General: Lawyer for the Third & Fourth Respondents