[1999] PNGLR 6

PAPUA NEW GUINEA

[supreme court of justice]

RIMBINK PATO

V

ANTHONY MANJIN
ABRAHAM HULAPMONI also known as ABRAHAM MONI; BRUNO (a male);
MASKET IANGALIO, MP; and
PETER IPATAS, MP

waigani: sheehan, sevua, akuram jj
27 and 30 April 1999

Practice and Procedure — Application for leave to appeal — Interlocutory injunction by National Court restraining police officers from investigating and arresting applicant — Discharge of interlocutory injunction by National Court — Whether leave required to appeal — Whether leave should be granted to appeal against discharge of interlocutory injunction — Section 14(3)(b) Supreme Court Act.

Facts

The applicant Mr Rimbink Pato commenced proceeding by originating summons initially against the first three respondents for conspiracy. The applicant claimed that the first three respondents conspired with the fourth and fifth respondents to have him charged and arrested with criminal offences allegedly committed by the applicant during the 1997 General Elections. The applicant sought interlocutory injunction in the National Court and was granted the same restraining the first, second and third respondents from investigating and arresting him. On application by the respondents the interlocutory injunction was subsequently discharged.

Held

1.	The grant of leave pursuant to s 14(3)(b) of the Supreme Court Act is in the discretion of the Court and is neither automatic nor granted as a matter of course.

2.	For leave to be granted, an applicant must advance consent and convincing reasons or exceptional circumstances; there must be clear legal grounds meriting an appeal, and he must have an arguable case.

3.	The balance of convenience did not favour the applicant thereby warranting the sustenance and extension of the interlocutory injunction.

4.	The applicant has the right under s 57 Constitution to enforce his constitutional rights in respect of a criminal prosecution if he alleges that his rights have been violated. Similarly, he has the right to sue for defamation under the Defamation Act if he claims his reputation has been injured and his character defamed.

5.	Leave is refused in both applications.

Papua New Guinea case cited

Henzy Yakham & Anor v Merriam & Merriam [1999] PNGLR 591.

Counsel

I Molloy, for applicant.
C Coady, for first, second and third respondents.
B Andrew, for fourth respondent.
L Henao, for fifth respondent.

30 April 1999

By the court. The applicant has filed two applications for leave for this Court's determination. The first application is in respect of orders made by Woods, J on 4 and 11 December 1998. The second application relates to the orders of Woods, J made on 17 December 1998.

The applicant commenced proceedings by originating summons (OS 565 of 1998) against the first three respondents initially. The proceedings were in respect of claims by the applicant that the respondents had conspired with the fourth and fifth respondents to injure his reputation as a prominent lawyer and a politician and also to breach his constitutional rights by arresting him and charging him with criminal offences relating to the 1997 National Elections in Enga.

On 23rd October 1998, Sheehan, J granted an interim injunction order. Order No. 3 states:

"Pending further order, the defendants and each of them by themselves, and by their respective fellow police officer (sic), servants and agents restrained (sic) from attempting or purporting to arrest the plaintiff or to otherwise interfere with his liberty on the basis of any matter connected with an alleged investigation of alleged actions of members of the Papua New Guinea Defence Force in connection with the 1997 National Elections".

The applicant claims in his first application that he was refused an adjournment on 4th December, 1998, on a motion filed by the fourth respondent on 23rd November, 1999 seeking the dismissal of the proceedings pursuant to Order 12 Rule 40(1) of the National Court Rules. He also claims that the trial Judge had refused to hear and determine his application for a direction under Order 4 Rules 31 and 35.

Firstly, we consider that the applicant's first claim is misconceived. The trial Judge did in fact adjourn the balance of the fourth respondent's notice of motion seeking dismissal of the proceedings to 17 December 1998 (see page 264 of the appeal book). It is not correct that the trial Judge refused the applicant's application for adjournment on that motion. The trial Judge did however proceed to hear the fourth respondent's application to be joined as a party and he refused an adjournment sought by Mr Carter who appeared for the applicant then. The basis for Mr Carter's application was that senior counsel from overseas had been briefed, but was not available to argue the fourth respondent's motion .It is not necessary to state the second reason.

We consider that the applicant’s application for an adjournment had no merit. Whilst the Court acknowledges the applicant's constitutional right, we are of the view that the fourth respondent's application to be joined as a party did not, and could not in any way, prejudice the applicant's interest. The applicant in OS 565 of 1998 has made very serious allegations against the fourth respondent and in law, the fourth respondent is entitled, to be joined as a party. No one can deny that right. It could not be said with convincing reason that overseas counsel was required to argue that application. In our view, neither the granting of the order joining the fourth respondent as a party, nor the refusal to grant an adjournment prejudiced the applicant’s right or interest. He should have joined the fourth respondent as a party in the first place; after all, he had made very serious allegations against the fourth respondent. He failed to do that so the fourth respondent himself came to Court and asked to be joined as a party as a matter of law. We see nothing wrong, unfair or prejudicial about that. We dismiss the applicant's first claim in his first application.

The trial Judge adjourned the applicant's notice of motion for direction to 17th December, at which date, he was going to hear the fourth respondent's application to dismiss the proceedings for showing no cause of action. We see no error in that order. The trial Judge was exercising his discretion in adjourning the applicant's notice of motion.

He wanted to hear both motions on the same date. We see nothing wrong with that. The applicant has failed to establish that the trial judge fell into error in the exercise of his discretion. We would dismiss this claim as well.

On 17th December 1998, the interim injunction was discharged on application by the first, second and third respondents. The applicant contends that without the injunction continuing, he will suffer damages.

In our view, the merits of, and basis for which, the interim orders were granted on 23rd October 1998 need to be considered. We start with the premise that one of the fundamental requirements for granting an interlocutory injunction was not satisfied. That is, the applicant never filed or gave an undertaking as to damages.

Nevertheless, the most important consideration of all, in our view, is whether a civil Court should restrain a criminal investigation by police exercising their constitutional functions to investigate, charge and prosecute a person suspected of having committed a crime or criminal offence. That to us is the most fundamental issue here.

We consider that the submissions advanced by Mr Sheppard on 17th December 1998, were of persuasive force, which the trial Judge accepted. We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution.

If he claims such rights are violated, he has recourse pursuant to s 57 Constitution. We can’t see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act.

In our view, the grant of leave pursuant to s 14(3)(b) of the Supreme Court Act is in the discretion of the Court, and is neither automatic, nor granted as a matter of course. We are unable to find any Supreme Court decision which sets out the law on the grant of leave pursuant to s 14(3)(b) since the decision in Henzy Yakham & Anor v Meriam & Meriam [1999] PNGLR 591 in which the Court held that an application for leave is to be heard and determined prior to the hearing of the appeal proper if leave is granted.

However, we are of the opinion that an application for leave pursuant to s 14(3)(b) should establish some grounds for which leave should be granted. We think more along the lines of the principles in respect of application for review under Constitution s 155(2)(b). It is our view that for leave to be granted, an applicant must advance cogent and convincing reasons or exceptional circumstances. There must be clear legal grounds meriting an appeal, and he must have an arguable case. We hold that these principles be the guiding principles in an application pursuant to s 14(3)(b).

With respect, the applicant's case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. It is analogous to a judge being restrained from dealing with a person’s case because that person does not like to be dealt with by the judge.

It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional function of the police.

We reiterate that the applicant has recourse under the Constitution and the Defamation Act if he maintains what he has alleged against the respondents. The Courts should not be drawn into a dispute, which is clearly very political in nature.

For these reasons, we would refuse both applications for leave and dismiss them with costs.

Lawyer for applicant: Pato Lawyers.
Lawyer for first, second, third and fifth respondents: Henao Lawyers.
Lawyer for fourth respondent: Maladina Lawyers.