Nilkare v Ombudsman Commission of Papua New Guinea [1996] PNGLR 413 (7 June 1996)

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[1996] PNGLR 413 - SCM No 8 of 1996; John Nilkare v The Ombudsman Commission of Papua New Guinea

JUSTICES - Where a Judge is unable to exercise his function as a Judge - Remaining Judges to continue appeal unless one of the parties does not agree - This option must be exercised before judgment is delivered.

The applicant is seeking an order that the Leadership Tribunal proceedings be stayed until further order of the Court. The reason for seeking a stay was because one of the justices of the Supreme Court that heard the matter is unable to further proceed.

1. That in the course of an appeal and at any time before judgment a judge is unable to exercise his functions as a judge any of the parties may object to the remaining judges continuing with the appeal.

2. The applicant did not do this so the Court is obliged to proceed to judgment.

AMET CJ KAPI DCJ LOS INJIA JJ: This matter has come before us by way of notice of motion filed on 31 May, 1996. The applicant has applied for an order that the proceedings of the Leadership Tribunal (hereinafter referred to as “the Tribunal”)appointed to inquire into allegations of misconduct against him be stayed until futher order of the Court.

It is necessary to set out the facts which gave rise to this application. The Ombudsman Commission in the exercise of its powers under the Organic Law on the Duties and Responsibilities of Leadership brought certain allegations of misconduct in office by the applicant to the Public Prosecutor for prosecution.

The applicant sought judicial review of this decision and the National Court dismissed the application.

The applicant then appealed to the Supreme Court. The matter was heard by members of this Court including Mr Justice Hinchliffe of 29 November 1995. We reserved our decision. The judgment of the Court was handed down on 3 May 1996 (see Nilkare v Ombudsman Commission (1995) unreported N 1344. The judgment of the court was handed down by the present members of the Court only. Mr Justice Hinchliffe was unable to participate in the delivery of the judgment because his appointment as a judge of the Supreme Court expired in December 1995.

The effect of the decision of the Court was that the misconduct charges before the Tribunal should proceed. On 30 May 1996 a preliminary hearing was convened by the Chairman of the Tribunal, His Honour Mr. Justice Woods. He indicated that the Tribunal would convene on 31 March 1 996 and formally take the Public Prosecutor's referral. The lawyer for the applicant sought to adjourn the Tribunal, proceedings until the applicant had the opportunity to deal with two matters:

(a) To seek clarification of the order made by Mr Justice Injia on page 106 of the judgment; and

(b) To seek an order from the Supreme Court to set aside it’s decision (SC498) and have the appeal reheard.

His Honour Mr. Justice Woods declined to adjourn the proceedings of the Tribunal indicating that he would only adjourn if directed to do so.

The Notice of Motion now before us was filed primarily to get an order to stay the proceedings of the Tribunal.

We convened the sittings of the Court on 5 June 1996 primarily to rectify an error on page 106 of the judgment. The error relates to final orders made by Mr. Justice Injia in relation to the final result appeal. When the Chief Justice announced the orders on behalf of His Honour on 3 May 1996, he correctly announced the final decision reached by His Honour namely, that the misconduct charges against the applicant should proceed to hearing in the Tribunal. Apparently when we hand down our judgments on May, by mistake the Court staff published an ealier draft orders proposed by Mr. Justice Injia instead of the final draft as announced by the Chief Justice. We rectified this error by replacing page 106 with the correct orders. No consequential matters arise from this correction.

We agreed to hear the motion. Motion filed herein. We pointed out to Mr Lowing, lawyer for the applicant, that the motion before us seeks a stay of the proceedings only without any substantive matter he wished to argue before us is the meaning and application of s 3 of the Supreme Court Act (Ch 37) (hereinafter referred to as “the Act”). Mr Lowing raised this matter in correspondence with the Associate to the Chief Justice. In a letter dated 24 May 1996 he indicated that directions may be sought under s 185 of the Constitution on how this matter may be commenced in Court.

No such directions have been given and no formal application has been brought before us to determine the issues raised under s 3 of the Act. However, all parties indicated that they were ready to argue s 3 and in view of the urgency of the matter, we direct that the matter should proceed before us and we dispensed with the need for any directions and a formal application. We directed the parties to argue the following matters:

(a) The meaning and application of s 3 to the circumstances of the case before us; and

We heard full arguments by both parties. Section 3 of the Act is in the following terms:

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgment, a judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge-

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

(b) in any case, there is only one Judge remaining able to hear the appeal, the appeal shall be reheard”.

Counsel for the applicant has submitted that the Court proceed to hand down judgment in this matter in absence of Mr Justice Hinchliffe without the applicant indicating whether he agrees to the remaining Judges continuing to hear the appeal. The applicant has instructed his counsel that he does not want the remaining members of the Court to continue to hear the appeal.

For this reason this court should set aside its decision (SC498) and the appeal should be reheard. He further submitted that if we make this ruling, we must stay the Tribunal proceedings.

Counsel for the Ombudsman Commission has submitted that a party has a right to exercise the option in terms of s 3(2)(a) of the Act but he can only do so at any time before judgment but not after judgment is given.

Before we deal with these submissions, there is a preliminary issue we have to deal with, namely, whether we have any power to reopen this matter after judgment has been given. Both counsel proceed on the assumption that we have inherent jurisdiction to do so.

We find that there is an inherent jurisdiction in the Court of last resort to reopen a matter if there is a misapprehension or a mistake in respect of the law or the facts. The nature of this jurisdiction is fully discussed by the High Court of Australia in the case of Autodesk Inc v Dyson [No. 2] [1993] HCA 6; (1992-1993) 176 CLR 300. This power may be exercised before formal orders are taken out. This principle has been adopted by the Court in Wallbank v PNG [1994] PNGLR 78 at pages 100-103 (see also Jaha Development Corporation Pty Ltd v Ilagi [1995] PNGLR 76.

In this matter no formal orders have been taken out pursuant to the decision of the Court and therefore we may proceed to consider whether we should set aside our judgment.

The nature of the mistake alleged in this case is that the remaining members of the Court gave judgment contrary to s 3 of the Act. We have already set out the arguments by the parties.

Section 3 of the Act is applicable where in the course of an appeal and at any time before delivery of judgment a Judge of the Supreme Court is unable to attend the proceedings or exercise his functions as a Judge. In the instant cases as we have already indicated Mr. Justice Hinchliffe participated in the hearing of the appeal but was unable to participate in the delivery of the judgment on 3 May 1996 because his appointment as a Judge of the Supreme Court expired in December 1995.

The question is whether or not we fell in to error when we proceed to hand down judgment without Mr Justice Hinchliffe. Where a judge is unable to attend the proceedings or otherwise unable to exercise his functions as a judge, s 3(1) of the Act enables the remaining judges to proceed to give judgment. This is subject to s 3(2) of the Act. If one of the parties does not agree to the remaining Judges continuing to hear the appeal or where there is only one judge remaining able to continue with the appeal, then the appeal should not proceed further but it should be reheard. Section 3(2)(b) is not relevant.

We would summarise the effect of s 3 as follows; if in the course of an appeal and at any time before judgment, a judge is unable to exercise his functions as a judge, any of the parties may object to the remaining judges continuing with the appeal. If this option is exercised, the appeal must be reheard. We also find that the party who wishes to exercise his option in terms of s 3(2)(a) of the Act must do so at any time before judgment is entered. We do not accept the view that is permissible for a party to exercise this option after judgment is delivered.

Mr Lowing conceded that on the morning of the delivery of judgment of the court, he was aware that Mr Justice Hinchliffe was not part of the bench and was unable to particiapte in the delivery of the judgment. It was open to his client at that time to exercise the option in terms of s 3(2)(a) of the Act. He did not do this and the Court proceeded to deliver judgment. He can not exercise that option after judgment. The only explaination that may be given for not exercising this option before judgment was that the applicant and his lawyers were not fully aware of the implications of s 3 of the Act. That of course is not a reasonable explaination. Ignorance of the law is not an excuse.

Counsel for the applicant further sought to argue that as the question of costs is yet to be argued and decided, the applicant may exercise the option in terms of s 3(2)(a) of the Act. We reject this argument. Giving of judgment for the purposes of s 3(1) of the Act in this case was delivery of judgement by the Court on 3 May 1996.

We do not find that the judgment delivered by this court on 3 May 1996 is contrary to s 3 of the Act.

It follows from our decision that we cannot stay the proceedings of the Tribunal.

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Papua New Guinea Law Reports

Nilkare v Ombudsman Commission of Papua New Guinea [1996] PNGLR 413 (7 June 1996)

PNG Law Reports 1996