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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 570 of 2000
JIM KAS
Plaintiff
THE HONOURABLE MR JUSTICE MARK SEVUA, THEIR WORSHIPS MR SITION PASSINGAN AND MR MARK PUPAKA
First Defendants
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani : Sakora J
ADMINISTRATIVE LAW – Judicial Review – Application for Leave – General Principles – Grounds for – Notice of claim or application for leave to be served on the State – National Court Rules, O. 16, rr 3 and 4 – Claims By and Against the State Act, s. 5.
ADMINISTRATIVE LAW – Judicial Review – Application for Leave – Leadership Tribunal – Procedures and Decisions of – Claim against Head of State or Governor-General contemplated – Attorney General nominal defendant – Claims By and Against the State Act, s. 3.
Cases Cited:
The following cases are cited in the judgment:
Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB. 223
Ombudsman Commission v. Donohoe [1985] PNGLR 348
Amadio Pty Ltd v. Mt Kare Holdings Pty Ltd [1992] PNGLR 218
The Application of Demas Gigimat Unreported N1076, June 1992
Kekedo v. Burns Philp (PNG) Ltd & Ors. [1988-89] PNGLR 122
Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417
NTN Pty Ltd v. PTC [1987] PNGLR 70
Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216
Lohia Raka & 32 Ors v. Leo Tohichem & Ors (Unreported, N1997 of 20/10/00 per Sakora J)
Counsel:
Mr Sheppard for the Plaintiff.
Mr Lambu for the Defendants.
24th October 2000
SAKORA, J: This is an application for leave to apply for judicial review pursuant to O. 16, rr. 1 and 3 National Court Rules (NCR). The requirement of r. 3(3) having been complied with by the giving of notice of the application to the Attorney-General, by the service on him of sealed copies of the Originating Summons, Notice of Motion, Statement under r. 3(2)(a) and the Verifying Affidavit under r. 3(2)(b) NCR; the defendants were represented by counsel on this application, though such applications are usually made ex parte, unless, as we shall see soon the State is a defendant in a matter for review.
Objection to Application for Leave
Before embarking upon the application, the Court entertained a preliminary point of objection from the defendants. Learned counsel for the defendants rose to object to the hearing of the plaintiff’s application on the basis that there had been no notice given as required under or by s. 5 Claims By and Against the State Act, (for convenience, referred to hereinafter as the CBAS Act 1996). It is to be noted that the State’s Notice of Motion and the supporting affidavit sworn by the learned counsel himself which had been filed on 11 October were in fact served on the plaintiff’s counsel on the very morning of the hearing. Learned counsel did not seem to think it important or necessary to mention this "bit" of non-compliance with a requirement of the NCR (rr. 38(1)) and 42) by the short service, whilst at the same time insisting upon compliance on the part of the plaintiff/applicant with a statutory requirement.
Mr Lambu, having deposed to the fact that he had the carriage of the matter on behalf of the defendants and, as such, was authorised and entitled to swear to the facts therein, added the following:
It was the contention of the defendants that the Notice referred to in the preceding paragraphs of the learned counsel’s affidavit did not constitute Notice envisaged by s. 5 of the Act, as it was given on the same day as the claim or proceedings was filed. Section 5 of the CBAS Act reads as follows:
on sufficient cause being shown, allows.
(3) A notice under Subsection (1) shall be given by –
- (a) personal service on an officer referred to in Subsection (1); or
- (b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45am and 12 noon, or 1.00 pm and 4.06 pm; or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Ch. 321).
Two comments are necessitated here by the assertions of the State. Firstly, paragraph (2) of Mr Lambu’s affidavit is not entirely correct, directly because evidence to the contrary transpires, and also because of what he deposes to soon after in paragraphs (3) and (4). It is not correct to say that there was "no Notice . . . prior to the institution of this proceeding on 25th September 2000". If the defendants acknowledge that the notice was served on 25th September they must or should only argue that that notice was "short-served" (as indeed their own Notice of Motion on this objection was), on the same day or date as the filing of the claim or application, and that the law requires adequate prior notice. To say that there was no notice merely because a "notice" was served on the same day as the filing is really to indulge in what can colloquially be expressed as "splitting hairs".
In the absence of an affidavit of service giving specific exact time and circumstance as to the service of that notice on that day, what is there preventing the Court from inferring that the plaintiff’s legal representatives had served the notice prior to and on the way to the Court House to file the application on the same day (morning or afternoon)?
Subject to direct evidence to the contrary, what is there, under the circumstances, preventing the Court from inferring that, whilst the notice of intention to claim was served on the same day as the claim (or application) itself was filed, the notice was given (or served) some hours before. And it is mentioned that the Court was not assisted by any authorities on adequacy of notice under provision(s) such as s. 5 CBAS Act (supra).
The second comment is that, in any case, the State’s application was misconceived and wasteful of time. As learned counsel for the plaintiff quite correctly and properly pointed out in his reply and objection, there had in fact been sufficient prior notice of intention to claim (or apply). Learned counsel directed the Court’s attention to the endorsements on the document (Notice) itself, which document became Annexure "A" to Mr Lambu’s affidavit, and relied upon by the defendants for the objection. Those endorsements were the undoing of the objection by the defendants.
That notice by the plaintiff, and described as "Notice under Section 5 . . ." was dated 18 September 2000. It had a receipt stamp on it, indicating it had been served on and received by a "Linda Wonuhal at 2.09 pm. 18 Sep 2000". There were instructions endorsed under the stamp, for creating a new file and acknowledging the letter (the covering letter or the Notice itself). And on those endorsements can be seen Mr Lambu’s own name.
This is the document learned counsel for the defendants relies upon to object to the competency of the plaintiff’s application for leave on the basis of s. 5(1) CBAS Act. He has, therefore, sworn a false affidavit. The plaintiff gave notice, as required, some 7 days before filing the application for leave.
Learned counsel for the State was obviously and definitely in grievous error when he swore that purportedly supporting affidavit when he deposed to, firstly, perusing the incoming mail and documents at the Solicitor-General’s and Attorney-General’s offices, and, secondly, finding no notice under s. 5 CBAS Act as required. By way of an attempt at damage-control, Mr Lambu returned to the Court after the luncheon adjournment armed with a notice dated 25 September and served 25 September (notice in similar terms to one dated and served 18 September). That, as Mr Sheppard acknowledged, was a second notice to make doubly sure that the State was in fact aware of the intended application. But the point is that that was not the notice that was relied on for the objection and annexed to the affidavit.
It requires no emphasising that a little more care and diligence would have avoided what amounted to, in my opinion, carelessness bordering on negligence on the part of counsel for the State. The Court then dismissed the State’s objection as being without merit, and as being misconceived and mischievous.
Application for adjournment
Following the dismissal of the State’s application, Mr Lambu applied to have the hearing adjourned to enable him to prepare
his case. It would appear that the State had "put all its eggs in one basket", as it were, depending on the success of the s. 5 CBAS
Act argument and not bothering to prepare for the leave application. Not a wise move, not a sensible strategy, in my view! In the
absence of any good reason or cause for adjournment being demonstrated to my satisfaction, I refused to grant adjournment and directed
the hearing to proceed.
Application for Joinder and Amendments
Mr Sheppard of counsel for the plaintiff then moved the Court on the Notice of Motion filed 29 September 2000, seeking only the reliefs sought under paragraphs (2) and (3). The former sought the following order:
That Sir Silas Atopare be joined in these proceedings as Third Defendant.
After much discussion between Bench and Bar, it transpired that what was intended could be achieved through s. 3 of the CBAS Act where it was envisaged that the Attorney-General could be joined as the "nominal defendant" where a claim against the Head of State, or Governor-General was contemplated for any decision or action taken, acting on advice.
This is a special provision in the legislation dealing with litigation involving the State and any of its arms or instrumentalities and agencies which become (or are contemplated as) parties. Thus, it is different and separate from other powers, functions and duties of the Attorney-General (or the Principal Legal Adviser) as provided for in a very detailed manner under the Attorney-General Act 1989.
And, as the Attorney-General acted for the Independent State of Papua New Guinea (interchangeably as PNG or the State), encompassing as it does all arms, instrumentalities and agencies of government, both executive and administrative (and, indeed, judicial as here), there was no need to join him as a party now, the State being a party on record already.
Consequent upon this preliminary ruling, learned counsel for the plaintiff sought amendments to the Originating Summons in the terms of the Notice of Motion, paragraph (3), together with other consequential re-arrangements to the Schedule under paragraph (1). There was no objection to these amendments, and they were granted. Thus, the amendments, with the addition of sub-paragraph (1)(d), and the re-arrangement and re-wording of the Schedule, would read as follows:
(d) The Recommendation of the Leadership Tribunal made on the 27th September 2000.
Schedule
An order in the nature of certiorari quashing the Decision of the Leadership Tribunal of the 14th September, 2000.
An order in the nature of certiorari quashing the Recommendation of the Leadership Tribunal of the 27th September, 2000.
An order in the nature of certiorari quashing the Dismissal by the Governor-General dated 5th October 2000.
Such further and other relief as to this Honourable Court may seem just . . .
Factual Background (and submissions)
The Statements of Facts filed pursuant to O. 16, r. 3(2)(a) NCR sets out the relief sought, which are in similar terms to those in the Originating Summons, paragraph (1) (as amended). The Grounds relied upon for the application are reproduced hereunder as follows:
In making:
the First Defendants acted without or in excess their (sic) jurisdiction . . .
And these Grounds are particularised in detail, from paragraphs (1) – (94), containing some 19 pages. Learned counsel for the plaintiff carefully took the Court through each of these grounds and their respective particulars.
It should be mentioned that the details or particulars of the circumstances giving rise to the application as found in the Statement of Facts are intended to be verified, as required by O. 16, r. 3 (2) (b) NCR, in or by the very detailed affidavit of the applicant himself, sworn 25 September and filed of even date.
Mr Sheppard took the Court, firstly, to Annexure "A" of the affidavit, which is the formal Referral to the Public Prosecutor and the Statement of Reasons (from the Ombudsman Commission). The Referral contains the Statement of Charges and the Summary of Facts, and the evidentiary material relied on for the referral. It is contended by the plaintiff that paragraph (3.17) of Annexure "A" contains the only charge or allegation to which he pleaded, and pleaded to, he maintains, in a clear and unequivocal manner. It is in the following terms:
3.17 While the aircraft was stationary, facing north at the eastern sub-taxiway, the vehicle containing Mr Kas stopped a few metres from the aircraft’s left wing tip.
The Referral itself contained some four (4) charges initially. It is contended that the multiple nature of these allegations was put to the learned prosecutor who conceded that these charges could conveniently be reduced to just one, and that was the charge under paragraph (3.17) (supra).
On 6 September, 2000, when the Leadership Tribunal convened to formally put the charges to the plaintiff, only one (1) charge was put to him, and which charge was the only one he pleaded to (supra). Then the Tribunal adjourned for a week to consider whether or not to accept or confirm the "plea of guilty". This was done in pursuance of an agreement between the parties at the outset of the Tribunal’s inquiry to adopting "the procedures akin to a criminal trial in a plea of guilty . . . . " Then on 14 September, the Tribunal reconvened and delivered a 16 page ruling or, what it termed, a "Decision" (Annexure "B" to the Kas affidavit, supra). This is what the Tribunal said at the beginning of its Decision (page 2, Annexure "E", supra):
The leader, Mr Jim Kas, pleaded guilty to one charge of misconduct in office on 6th September, having satisfied itself of the unequivocal plea and that the evidence in the statement of reasons supported such a charge.
(italics mine).
The contents of that Decision are objected to, contending that it contained quite a number of statements that demonstrated an appearance of bias on the part of the Tribunal. The plaintiff refers particularly to these at paragraph (21) of his affidavit, setting out in detail, and verbatim, what the Tribunal said in its decision, sub-paragraphs (a) – (j) inclusive. There is, in my view, no need to reproduce these here, but suffice it to note that these offending or objectionable statements in the submissions of the plaintiff appear in seven (7) pages of the 16 page Decision: pages 5, 8, 9 – 11, 15 and 16. It is argued, therefore, that what appear in these pages are vastly different from what is alleged under paragraph (3.17) (supra), facts that he maintains he agreed to plead to.
Furthermore, it is submitted on his behalf that the comments in the Decision and the allegations under paragraph (3.17) raise vastly different degrees or levels of culpability. Thus, immediately after the 14 September Decision the plaintiff instructed his legal advisers to apply to the Tribunal for the members to disqualify themselves from further involvement in the inquiry and investigation.
It was and is the plaintiff’s claim that the Leadership Tribunal acted in excess of its jurisdiction when it handed down a Decision which contained statements or comments that were not in agreement with the facts under paragraph (3.17) of the charges in the Referral. And more particularly when they were made before the plaintiff was formally heard (himself and through his lawyer) on the question of penalty for the admitted "misconduct in office".
The plaintiff’s application for the Tribunal to disqualify itself was entertained on 20 September and ruled on 21st September (Annexures "D") and "E" respectively to the plaintiff’s affidavit, supra).
The plaintiff argued, therefore, that the Tribunal should disqualify itself, because its decision of 14 September 2000, was, firstly, contrary to the Constitution; and, secondly, was in excess of its jurisdiction having regard to its terms of reference; and, finally, contrary to the principles of natural justice. Thus, it was submitted, all of these grounds were capable of leading, individually or cumulatively, to a reasonable apprehension of bias.
Learned counsel for the plaintiff once again carefully took the Court through the Tribunal’s ruling on that disqualification application (Annexure "E", supra). I have perused the submissions of both counsel there, as well as the exchanges between Tribunal members and counsel.
The plaintiff adverts to both Annexures at paragraphs 29 and 31 of his affidavit (supra), setting out in detail the "offending" or "objectionable" statements or comments in each document. In the plaintiff’s written submissions handed up to the Tribunal (constitutes pages 41 – 53 of the transcripts of the disqualification application, Annexure "D") appear the following (at page 45, line 20):
It was argued before the Tribunal (and before me as well) that, for instance, the Tribunal did not have before it, and had not heard any formal allegations of "disgraceful or improper conduct". He had only been charged with misconduct in office. Furthermore, the plaintiff submitted that the Tribunal’s comments that the leader’s actions ". . . were conduct unbecoming of a leader. These were conduct (sic) that were improper and amounted to a national disgrace" (page 14 of the 14th September Decision, Annexure "B" to the plaintiff’s affidavit, reproduced at para. 21(f), supra) is a determination in respect of which there has been no allegation.
Mr Sheppard then took the Court to the comments of the Tribunal (in its Decision, page 3, Annexure "E", supra) suggestive of unfairness of the plaintiff and his lawyer in attacking the integrity of the members of the Tribunal. The plaintiff adverts to these in his affidavit, paragraph 21 (a) to (e)).
In this application learned counsel deals with this matter by submitting that the application to disqualify was not done with any intention to discredit the Tribunal. He suggests that the application was moderate and proper on full notice, and that the plaintiff was scrupulously correct in this action.
Finally, learned counsel submits that the Decision (refusing to disqualify itself) is replete, as demonstrated in the various instances cited (supra), with comments not appropriate for a judicial tribunal about to pass penalty. They given rise to, it is suggested, reasonable apprehension of pre-judgment of the issues and of bias. Thus, it is further submitted, with a Decision on these terms the plaintiff had no hope of ever convincing the Tribunal on mitigation of penalty. It, as counsel puts it, "ran off the rails as far as jurisdiction is concerned", with comments that were heavily biased, taking into account matters that it ought not have.
Therefore, it is argued finally, there has been demonstrated error on the face of the record, and the Tribunal having demonstrated unreasonableness in its decision-making process in the Wednesbury sense. The plaintiff has a case ripe for leave to be granted for substantive review, Mr Sheppard submits.
Learned counsel then adds in conclusion that there has been no delay in bringing this application, the duration between the decision aggrieved of and the institution of this proceedings being less than one month. As far as locus standi is concerned, there is no problem here, the plaintiff having suffered detriment in his leadership role as well as in his personal capacity. And there are no other avenues for the plaintiff to avail of except come for judicial review.
Mr Lambu of counsel for the defendants objects to the grant of leave, submitting that the comments made by the Tribunal in accepting the guilty plea of the plaintiff were supported by the evidence before the Tribunal, such evidence including the pilot’s version of the location of the plaintiff’s motor vehicle vis-à-vis the aircraft. It is said in this respect that the Tribunal was entitled to refer to and consider the Depositions, the material in the Referral. The plaintiff admitted everything, so that what was alleged in paragraph (3.17) was accepted by the plaintiff along with all other facts put before the Tribunal. Thus, learned counsel submits, the guilty plea was the cumulative effect of all the facts put before the Tribunal.
It is the State’s contention, therefore, that there was nothing wrong in saying what they said in confirming the guilty plea. Those comments were made not in the course of imposing penalty, but in the process of confirming the plaintiff’s plea. They (comments) were, therefore, reasonable and justified upon the evidence.
The Law
The purpose of the requirement for notice to the Attorney-General is so as to enable the State to appear on the preliminary proceedings, and, if necessary, to oppose the grant of leave if the application relates to a matter affecting the interests of the State. The State has the right to be heard on a leave application. In fact, to be more precise, the State does not have to be heard, but rather must be accorded an opportunity to be heard. This comes from s. 8 of CBAS Act, 1996, which reads:
Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.
In this proceedings the State itself is named as a party (third defendant). It ought to be mentioned also that each of the other defendants was duly served with the pertinent documents (supra). The Office of the Solicitor-General represents all the defendants. Thus, as the State is a party, in its various forms, in the proceedings, the reference to ex parte hearing in O. 16, r. 3 (2) NCR does not apply here because of the operation of s. 8 CBAS (supra). Perhaps this is the situation envisaged by Lord Diplock’s dicta in Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722, where (at 738) his Lordship said:
The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself. The former, or ‘threshold’ stage is regulated by rule 3. The application for leave to apply for judicial review is made initially ex parte, but may be adjourned for the persons or bodies against whom relief is sought to be represented.
At this preliminary, but threshold, juncture of the application for judicial review, the Court is and ought to be concerned only with the issue of whether or not leave should be granted to make the substantive application. It is noted that with the State’s representation I would have had the benefit of full arguments on both sides, if the State had objected to the grant of leave. In this instance, learned counsel for the defendants indicated the State was not contesting leave. Thus the situation is as if it were a straight-forward ex parte application where, as Amet J (as he then was) observed in the Supreme Court decision in Ombudsman Commission v. Donohoe [1985] PNGLR 348 at 361:
On an application for leave to file an application for judicial review the Court need only be satisfied as to the requirement of O. 16, rr. 2, 3 and 5. The application, of course, is ex parte and so the Court does not have any other material contesting the application.
The law on applications for judicial review is well-settled in this jurisdiction. I have had occasion recently to consider some of the case law on the subject in Lohia Raka & 32 Ors v. Leo Tohichem & Ors (Unreported N1997 of 20/10/00), and what follow are reproduced from that case. As noted already here, such applications are usually ex parte (with the notable exception now as adverted to, supra). In the 1992 National Court decision in Amadio Pty Ltd v. Mt Kare Holdings Pty Ltd [1992] PNGLR 218 Justice Woods emphasised the established principles in seeking judicial review, noting (at 221) that:
The Court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but, rather, the decision-making process itself.
Prior to this, the learned judge acknowledged that "the argument on a leave application is limited to whether there is an arguable case to review the decision sought to be reviewed" (at p. 220, italics provided).
In the same month in 1992 as the decision in Amadio Pty Ltd (supra), Woods J, had the occasion to re-visit the established principles on judicial review in The Application of Demas Gigimat (unreported N1076, June 1992, at p. 3):
The established principles in seeking leave for judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision making process itself.
(italics mine)
His Honour was, of course, echoing the same sentiments as expressed previously in other cases, but more particularly, Ombudsman Commission v. Donohoe (supra, his Honour being a member of that Supreme Court); Kekedo v. Burns Philp (PNG) Ltd & Ors. [1988-89] PNGLR 122; and Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417 (His Honour being a member of this Supreme Court as well).
The requirements for leave to be obtained before an applicant can proceed to impugn the decision of a public body or tribunal provide protection against unmeritorious, trivial and vexatious applications. Apart from the possible adverse effects on the public image and integrity of the public officer, body or tribunal concerned, there is also the important consideration that operations and management of public bodies or institutions ought not be hampered or adversely affected in any other way having their decisions and actions rendered uncertain by the Courts having before them challenges that have no legal merits.
The leave requirements also enable the Courts to have control over their proceedings. The flood-gates effect on litigation is prevented and, in the process, abuse of the judicial process is discouraged. Tardy, groundless and unmeritorious challenges upon the validity or legality of administrative and, indeed, judicial and quasi-judicial decisions are detected from the very outset and removed (by dismissal) before they clog up the system.
Lord Diplock expressed the purpose(s) in somewhat different but very succinct terms in the Inland Revenue Commissioners case (supra) as follows:
Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived . . . (at 730)
(italics mine)
Thus, as in ordinary private law litigation, if the originating process disclosed no reasonable cause of action, if it is (the claim or allegation) scandalous, frivolous or vexatious, or if it otherwise constitutes an abuse of the process of the Court, the action or application may be dismissed.
Order 16, r. 3(5) NCR requires the applicant to demonstrate sufficient interest in the subject-matter of the intended litigation. This enables the Court to be satisfied that the applicant is not a "meddlesome busy body". Thus, through this sub-rule the issue of locus standi is determined at the outset. The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. Thus, once again, only meritorious interests gain access into the Courts. Some commentators use the term real interest to convey the same notion, as opposed to, for instance, an ideological concern in the outcome. Perhaps, yet another way of describing this requirement is as others have where they use the phrase genuine grievance rather than, say, litigation out of spite or malice.
The law on this is quite clear and well-settled now, from a line of decisions in recent times within the (Commonwealth) common law jurisdictions of the world, following the authoritative pronouncements of Lord Diplock in the Inland Revenue Commissioners case (supra). See also: the judgment of Lord Wilberforce, particularly on the requirements of leave providing safeguards. Lord Diplock, whilst explaining the procedure under Order 53 of the English Rules of the Supreme Court (RSC), identical to our O. 16 (NCR), added this:
Rule 3 (5) specifically requires the court to consider at this stage whether ‘it considers that the applicant has a sufficient interest in the matter to which the application relates’. So this is a ‘threshold’ question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.
It is, with respect, helpful in my opinion to note what Lord Wilberforce said in the same case (at 727):
There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates.
Two Papua New Guinea (PNG) cases (amongst many in recent times) on this point are: NTN Pty Ltd v. PTC [1987] PNGLR 70; and Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216.
As acknowledged already (in the cases cited, supra) the applicant carries the onus of establishing to the satisfaction of the Court that he has an arguable case that warrants, by law, determination by way of review. Once again reference to and support must be had from the authoritative statements in the judgment of Lord Diplock in the oft-cited case of Inland Revenue Commissioners (supra) where he said this:
The whole purpose of requiring that leave should first be obtained to make application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.
(italics mine)
Another prerequisite before the Court can exercise its discretion in favour of grant of leave is that the applicant must show that he has exhausted all administrative avenues and remedies for relief or resolution. The PNG case authorities on this reflect the common law position, so that in PNG v. Kapal (supra), the Supreme Court (Kidu CJ; Kapi DCJ and Woods J) held that (headnotes):
Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedure provided for in the Organic Law on Provincial Government have not been completed or exhausted.
The learned Chief Justice and Woods J (in a joint judgment) said this (at pp. 421 – 422):
The second matter we wish to comment upon is what we would call a "threshold question" in the decision as to whether or not to judicially review the NEC decision to provisionally suspend. One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg; statutory provisions for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used: see, eg; R v. Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 per Sir John Donaldson (with Purchas concurring). This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice.
The learned Deputy Chief Justice acknowledged the existence of the "process set out under the terms of the Organic Law on Provincial Government ...", and concluded that the trial judge ought to have allowed that process to go ahead before intervening (at 426). In that case the proceedings were brought immediately after the NEC suspended the provincial government.
The law on this point as enunciated in PNG v. Kapal (supra) was subsequently confirmed in Kekedo v. Burns Philp (supra). The Supreme Court there (Kapi DCJ; Amet J (as he then was) and Cory J) held that: It would be an abuse of process for the National Court to grant an application for leave to apply for judicial review whilst alternative appeal procedures were being pursued.
Finally, the Court entertaining an application for leave must consider whether or not there has been delay in the making of the application. Whilst O. 16 (NCR) does not prescribe any time limit (except application for an order of certiorari: r. 4(2)) for making the application, discretion is vested in the Court to refuse leave if there has been undue delay. Rule 4 of O. 16 is in the following terms:
(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant –
- (a) leave for the making of the application; or
- (b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights, of any person or would be detrimental to good administration.
(italics mine).
(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
CONCLUSION
I am of the view that the comments made at the stage intended for accepting or confirming the plea of guilty, though perhaps judgmental and condemnatory, at that juncture, were not such that any reasonable objective member of the public having full appreciation of the facts and circumstances of the incident in question would perceive that the Tribunal was biased against the plaintiff. An ordinary member of the public, with some educated inkling of or familiarity with the procedures in a criminal trial following plea of guilty, may undoubtedly have felt some dismay or discomfort, and may have expressed some concern or disquiet about the Tribunal launching into a 16 page "Decision" when all that was needed to be done then was to accept or confirm the plea, or declare that the material (that had been perused and considered) did not support the charge nor the plea of guilty.
But that is not to say that those comments were not justified by the factual circumstances. A sentencing court in a criminal trial (procedures of which had been adopted in this Tribunal by the parties’ mutual consent) reserves comments on the nature and circumstances of the commission of the offence in question, not to mention the seriousness or otherwise of it, for the actual sentencing stage and time, and only after having heard the prisoner (himself upon Allocatus, and through his legal counsel) and the prosecution on the serious question of an appropriate penalty or punishment. Thus, it may not have been, in fact it was not, the appropriate or propitious time for such comments.
Needless to say, the Tribunal did acknowledge this when it said (at page 6 of the Decision, Annexure "E") the following:
Perhaps the Tribunal should not have used the words now complained of because it is obvious they offended the leader.
But it is correct to say that the truth can offend, just as lies can! The Tribunal said that the intention and purpose of making such statement (sic) were to highlight the type of conduct or behaviour of the leader . . . " (ibid). Further on, the Tribunal added that it was its view that "the words used here were merely descriptive of the conduct of the leader which we had significantly found to have amounted to misconduct in office. We did not then, and do not now, consider these words as amounting to an offence which the leader has not been charged with" (ibid).
It is instructive to reproduce hereunder what the Tribunal finally said about those comments (at page 10 of the Decision, Annexure "E"):
. . . it is important to highlight, if not re-emphasized (sic) that, we have not made a finding of fact that improper or disgraceful conduct was an offence. Those were words descriptive of the behaviour of Mr Kas at the material time. We also reiterate that the offence under inquiry here is misconduct in office, which we have found him guilty of. Taking the whole scenario at Madang Airport on 21st February 1998 into account, if Mr Kas’ conduct could not be described as improper and disgraceful, we don’t know how else his conduct could be described. Of course, it amounted to misconduct in office as that is the leadership offence.
With respect, learned counsel for the plaintiff concedes the point made by the Tribunal (supra) in his submissions (Annexure "D", page 56, lines 5 – 11):
Mr Chairman, it is not disputed so much that the conduct was disgraceful or improper, it is disputed that it was found as a fact when determining the allegations against him. It is the point at which that finding was made, not so much the finding itself. Had the tribunal made that comment during its sentencing, during its determination as to penalty, there would be no room to quibble, there will (sic) be no room to challenge.
(underlining mine).
The Tribunal, when confirming the guilty plea (Annexure "B", page 14) said the following:
The leader has neither disputed nor refuted any of the evidence contained in the Ombudsman Commission’s statement of reasons. That is why we say the leader’s plea of guilty was unequivocal. The Tribunal, having considered all the evidence against the leader in this matter, is satisfied that the evidence supports the plea of guilty, and we therefore accept the plea of guilty.
In my view, the plaintiff’s insistence now that the allegation under paragraph (3.17 of Annexure "A") contains the only charge he pleaded to has to be appreciated in its proper perspective. The plaintiff and his motor vehicle did not just drop out of the sky to land "a few metres from the aircraft’s left wing tip". They must have come from somewhere, nearby, through something or someone, saying and doing other things, to get to where they were on the runway (or the tarmac). They surely must have had to negotiate their way towards the aircraft. And these are, in my opinion, circumstances pertinent for the Tribunal’s appreciation of the circumstances surrounding the commission of the misconduct in question.
It is, therefore, wrong in my view to assume or expect that the Tribunal could or ought to have considered the allegation under paragraph (3.17 supra) in isolation from anything and everything else.
As noted (supra), if leave is granted the applicant intends to seek review of the following decisions:
There are no problems with three of the four prerequisites for grant of leave: locus standi; undue delay; and alternative avenues for remedy. No issues or contests arise in respect of them, so the court need not address those here. The facts as demonstrated and accepted here amply satisfy the court of those requirements.
Thus, the only requirement that I am concerned with is as to whether or not there is an arguable case. Applying the law’s requirement to the factual circumstances canvassed here, I am of the firm view that the plaintiff has not discharged his onus to my satisfaction. He has not, in my view, demonstrated to my satisfaction that there is an arguable case in respect of each of the decisions of the Leadership Tribunal that would warrant this court granting the leave sought to have substantive judicial review of those decisions.
It is instructive to pause and note here that, in any case, except for the circumstances surrounding and giving rise to the 14 September 2000 ‘Decision’, the other decisions sought to be challenged by a judicial review do not involve, in my firm view, any element of procedure such that judicial review could properly be launched against. In this the court has only to respectfully refer to and rely upon the Supreme Court’s authoritative decision in Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122, where the learned Deputy Chief Justice, after reviewing a couple of the English case authorities on the subject, adopted and set out the principles that emerged, the last two of which are pertinent to this application, and I note these hereunder:
Thus, the ‘Decision’ of the Tribunal on the penalty and the recommendation (to the Head of State) respectively, and of the Governor-General on the dismissal, were decisions made by those two constitutional authorities in the legitimate exercise of their respective powers. I am not persuaded, therefore, that the Leadership Tribunal and the Head of State (acting with and in accordance with advice . . . ) fell into any error, jurisdictionally or procedurally, such that an arguable case can properly be said to have been demonstrated to my satisfaction for me to exercise this Court’s discretion in favour of grant of leave. And the applicant seems to me to be wanting to have those decisions reviewed and substituted (because he is not happy with their effect or result), rather than pointing to and demonstrating their respective illegality, irrationality and procedural impropriety (in the language of Lord Diplock in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680, CA).
As for the 14 September 2000 decision, though unfortunate and premature those remarks were, as has been repeatedly described already, was based on factual circumstances that were properly before the Tribunal. And the Tribunal was quite justified in referring to these in those comments or remarks. I am of the very strong opinion that in so doing the Tribunal did not take into account matters it ought not have or omitted to take into account those matters that it properly ought to have.
I conclude, therefore, that the Leadership Tribunal, in the discharge of its Constitutional and Organic Law duties and functions here did not fall into or commit any errors whereby it acted in excess or want of its jurisdiction.
No arguable case, as required from the oft-cited and well-recognised principles, has been advanced and demonstrated here such that it could properly be said that the ‘Decision’ and its accompanying statements in any way influenced and rendered subsequent proceedings and decisions legally objectionable.
Similarly, as concluded already (supra), the decision to not disqualify itself. That decision necessarily follows from the comments. It is possible to say that the Tribunal may have been defensive, over-sensitive, questioning the bona fides of the plaintiff and his lawyer in the application to disqualify. The application itself is a normal procedure and, thus, was not wrong. The only proviso, in my view, would be that there was bona fides in the application which necessarily had to demonstrate proper legitimate grounds, and did not venture into personal attacks. Such an application is part of the legal process and procedure, useful in appropriate cases. Whilst the Tribunal may have appeared to be dealing with the plaintiff and his lawyer with "its back to the wall" defensively, it cannot properly be said that this attitude was or is demonstrative of bias or giving rise to reasonable apprehension of bias on the part of the Tribunal.
In relation to the Tribunal’s decision on penalty (supra), the first point to make (only briefly because of my views expressed already, supra) is that the Tribunal would have to have been guided by s. 28 of the Constitution. It will be noted that the provision had been amended by Constitutional Amendment No. 4, and the punishments there are further set out in the Leadership Code (Alternative Penalties) Act (Ch. No. 1A) (the Alternative Penalties Legislation), which legislation was enacted to implement s. 28 (1A) Organic Law on the Duties and Responsibilities of Leadership (OLDRL).
The sanctions or punishments open to the Tribunal are as follows:
The penalties referred to in paragraphs 2 to 5 (supra) come from s. 2 of the Alternative Penalties legislation. The penalties set out in the legislation apply where the Tribunal finds:
As for the Recommendation for dismissal from office made to the Head of State dated 27 September 2000, this power (to recommend) was exercised pursuant to s. 28 (1) (g) (ii) Constitution and s. 27(5)(a) OLDRL, following directly from a finding of serious culpability on the party of the leader. I find that no arguable case has been demonstrated to my satisfaction for leave to be granted to review this exercise of power by the Tribunal.
Similarly the ‘Dismissal’ under the hand of the Governor-General dated 5 October 2000. The appropriate authority envisaged by s. 28(34)(a) Constitution and s. 27(7)(e) OLDRL, and exercising powers conferred by s. 28(2) Constitution, the Governor-General could not properly be said to have fallen into or committed any error in the discharge of his Constitutional and Organic law duties and responsibilities. In any case, no arguable case has been made out to my satisfaction.
For all of the foregoing reasons, it is the judgment of this Court that leave to apply for judicial review should be refused.
________________________________________________________________
Lawyers for the Plaintiffs: Maladinas Lawyers
Lawyers for the Defendants: Solicitor-General
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