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Attorney-General v Sogavare; Attorney-General v Einfeld [2006] SBHC 62; HCSI-CC 311 of 2006; HCSI-CC 312 of 2006 (4 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 311 of 2006
and
Civil Case No. 312 of 2006

1. ATTORNEY-GENERAL

–v-

THE HONOURABLE MANESSEH D SOGAVARE, MP

2. ATTORNEY-GENERAL

–v-

HONOURABLE MARCUS EINFIELD Q.C.,
WAETA BEN TABUSASI AND GABRIEL SURI

Date of Hearing: 4th August 2006

Date of Ruling: 4th August 2006

Mr. N. Moshinsky, QC & Ipo for Attorney-General for the Plaintiff

RULING

Ex Parte application for leave to apply for prerogative writ of certiorari and consequential injunctive orders in accordance with Order 61 r. 2 of the High Court Rules.

Brown, J: The application that comes before me is an application for leave to apply for an order of certiorari. The question of leave really relates to the standing of the applicant.

Mr. Moshinsky, the Solicitor-General, says that the Attorney-General’s right to standing is clear beyond measure and he refers me to a number of authorities which are in the publication "Judicial Review of Administrative Action." I am satisfied that the Attorney, in this case, does have standing because he is pleading a public right or interest to bring these proceedings for review of the action of the Prime Minister in relation to this Commission of Inquiry. Mr. Moshinsky does not object to the Commission of Inquiry per se but only to particular subjects of inquiry. Firstly, the direction to investigate, examine and determine the role of any member of parliament including those two Honourable members named and secondly, a review of the circumstances relating to the arrest, charge and detention of those accused persons as well as to investigate and evaluate the basis upon which their continued detention in custody was reasonably justified and not politically motivated so as to deprive them and their constituents of their constitutional rights and responsibilities.

Mr. Moshinsky says that the public interest in this case clearly calls for the writ of certiorari to bring up and quash those particular terms of reference since they will impinge on the right of the Court to investigate existing criminal charges. He refers me to affidavits which have been filed in support of his application, affidavits by Prosecutors in the Director of Public Prosecutions Office. Those two officers depose to the nature and seriousness of the charges which these two Honourable members face. The principle authority on which he relies to show that there may well be a question of interference with the proper administration of justice is that case of Victoria and the Australian Building Federation [1982] HCA 31; (1982) 152 CLR 25. He refers particularly to the judgment of Justice Steven at page 100 and of course to the Chief Justice’s dicta at page 86 and 87.

I am satisfied on the material that he has argued that there is a serious issue to be tried so far as the public interest in the possible conflict between the holding of the Commission of Inquiry into these two particular terms and the right of the Courts to administer justice freely and fairly without interference or possible prejudice.

That issue of course will need to be argued in the hearing for I am satisfied that leave should be granted in this case. I make orders Mr. Moshinsky has sought for I am satisfied on balance that this serious issue does justify an order to allow the Attorney to apply for certiorari and further because of the short time between the grant of leave and the hearing of the substantive application, I make orders staying the terms of reference in relation to those two particular terms until determination of the question whether the terms are in fact lawful.

THE COURT