N5771
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 582 OF 2014

BETWEEN

VELA KONIVARO
Plaintiff
 
AND

HON. THEO ZURENUOC, MP
SPEAKER OF PARLIAMENT
First Defendant

AND

HON. PETER O'NEILL, CMG, MP
CHAIRMAN AND OTHER MEMBERS OF PARLIAMENT COMPRISING THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND

PODI KOHU, AS ACTING CLERK OF PARLIAMENT
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J
2014: 24th September & 03rd October

JUDICIAL REVIEW – Application for stay – Stay sought following grant of leave to apply for judicial review – Stay of decision to refer and suspend Clerk of Parliament – Referral of Clerk of Parliament to Tribunal for investigation – Allegations of misconduct in office – Grant of leave does not operate as a stay – Stay is discretionary – Principles of stay – Organic Law on Certain Constitutional Officer-holders – Section 7 – Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders – Section 9 – National Court Rules – Order 16, rule 3(8)(a).

Cases cited:

Vela Konivaro v. Hon. Theo Zurenuoc, Speaker of the National Parliament & Ors (2014) N5724
Gary Mc Hardy v. Prosec Security & Communication Ltd [2000] PNGLR 279; (2000) SC646
 Zachary Gelu v. Sir Michael Somare & Ors (2008) N3526
Roderick Kamburi v. Chronox Manek, Chief Ombudsman & Ors (2009) N3895
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853

Counsel:

Mr J. Issack, for the Plaintiff 
Mr P. Kuman, for the First and Fourth Defendants
No appearance, for the Second, Third and Fifth Defendants

RULING ON STAY
03rd October, 2014

1. MAKAIL, J: This is an application for stay pursuant to Order 16, rule 3(8)(a) of the National Court Rules. It is being sought following grant of leave to apply for judicial review. The application for judicial review arises from the decision by the Head of State, acting with, and in accordance with, the advice of the third defendant, the National Executive Council ("NEC") to:

•	Suspend the plaintiff as Clerk of the Parliament;

•	Appoint the fourth defendant as Acting Clerk of the Parliament; and

•	Request the Chief Justice to appoint a Tribunal to investigate allegations of misconduct in office against the plaintiff.

Brief Facts

2. The background facts are set in the decision on leave in Vela Konivaro v. Hon. Theo Zurenuoc, Speaker of the National Parliament & Ors (2014) N5724 and can be restated briefly as, the plaintiff is the Clerk of the National Parliament of Papua New Guinea. He was appointed to that position in May 2013. On 07th August 2014, the second and third defendants made a decision to suspend him and requested the Chief Justice to set up a Tribunal to investigate allegations against him. In that same decision, the fourth defendant was appointed as acting Clerk of Parliament. The decision was published in the National Gazette on 13th August 2014 and communicated to him on 20th August 2014. On 24th August 2014, he commenced proceeding to have the Court review the decision. Subject to grant of leave, he also filed an application to stay the decision.
Principles of Stay

3. A grant of leave does not automatically stay the decision. It remains a discretionary matter for the Court because Order 16, rule 3(8)(a) states that"[w]here leave to apply for judicial review is granted, then – (a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders.....;". 

4. The Court must exercise the discretion based on proper principles. As to the principles, Mr Issack of counsel for the plaintiff invited the Court to apply the principles applicable to an application for stay under section 19 of the Supreme Court Act. These principles are those formulated by the Supreme Court in the often cited case of Gary Mc Hardy v. Prosec Security & Communication Ltd [2000] PNGLR 279; (2000) SC646. 

5. These principles were adopted and applied in the judicial review cases some of which are Zachary Gelu v. Sir Michael Somare & Ors (2008) N3526 and Roderick Kamburi v. Chronox Manek, Chief Ombudsman & Ors (2009) N3895. Mr Kuman of counsel for the first and fourth defendants generally seemed to accept these principles and submitted that the Court has discretion to grant a stay and in this case, it should not be exercised in favour of the plaintiff. It is worthwhile to restate these principles. They are:

•	Whether leave to appeal is required and whether it has been obtained.

•	Whether there has been any delay in making the application.

•	Possible hardship, inconvenience or prejudice to either party.

•	The nature of the judgement sought to be stayed.

•	The financial ability of the applicant.

•	Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.

•	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.

•	The overall interest of justice.

•	Balance of convenience.

•	Whether damages would be sufficient remedy.

6. In Zachary Gelu's case (supra), the Court applied the normal principles for granting interim injunctions. The applicant must show that:

(a) there are serious questions to be tried and that an arguable case exists;

 (b) an undertaking as to damages has been given;

 (c) damages would not be an adequate remedy if a stay is not granted;

 (d) the balance of convenience favours the granting of a stay 

 (e) the interests of justice require that there be a stay.

7. As to whether there are serious questions to be tried, the Court followed the decision in Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853 and held that the Court should make an assessment of the strength of the arguments; the standard applicable being higher than at the stage of granting leave for judicial review. I adopt these principles.

Application of Principles

8. Mr Issack submitted that there are serious questions to be tried in this case because the application for judicial review raised important points of law in relation to the procedure relating to referral and suspension of a Clerk of Parliament pending the investigation by a Tribunal for misconduct in office. This view is also reflected in the decision by this Court when it granted leave and held that there were important points of law on matters of procedure and natural justice and it is arguable that procedures were not followed and plaintiff was denied natural justice in the decision making process.

9. As to the question of balance of convenience, it was submitted that the plaintiff stands to be the party most adversely affected because if a stay is refused, he will remain suspended, a Tribunal will be established and proceed to investigate the allegations against him. 

10. As to damages being an adequate remedy instead of a stay order, the plaintiff submitted that they are not because he would not be adequately compensated if the Tribunal were to be established, conduct the investigation and make appropriate recommendations. If that were to occur, it would defeat the whole purpose of bringing the application for judicial review to have the Court review the decision to refer and suspend him and irreparable damage would occur.

11. As to the stay of the appointment of the fourth defendant as Acting Clerk of Parliament, Mr Issack submitted firstly the fourth defendant has been appointed Acting Deputy Clerk of Parliament and is not qualified to be appointed Acting Clerk of Parliament. This is because only a holder of a substantive position, in this case, Deputy Clerk of Parliament is qualified to be appointed Acting Clerk of Parliament. Secondly, the plaintiff is well qualified and experienced and Parliament needs his services to guide and move it forward, especially when the Parliament is in session. 

12. Mr Kuman submitted that firstly, there is no merit in the application for judicial review by pointing out that the main complaint by the plaintiff is that he has been denied natural justice. But this is misconceived because he will be given an opportunity to be heard when he attends the Tribunal to respond to the allegations of misconduct in office. 

13. Secondly, there is no breach of law and no error is apparent in the decision making process because a referral and a suspension of the Clerk of the Parliament are part of the whole decision making process, the end being the establishment of a Tribunal by the Chief Justice to investigate the allegations of misconduct and its findings. 

14. Thirdly, the referral and suspension must be understood in the context of the relationship between the Speaker as Head of the Parliament and the plaintiff as the Head of the Parliamentary Services. Serious allegations of misconduct have been raised against the plaintiff as the Clerk of Parliament and needed to be investigated. 

15. An example Mr Kuman gave is that it has been alleged that the plaintiff had made unauthorised amendments to bills passed by the Parliament. The function to amend bills is the responsibility of the Parliament and not the Clerk of Parliament and investigations confirmed the allegation. The Speaker considered that it was appropriate that it and other allegations be referred to the second and third defendants to make a decision as to whether the allegations be further investigated by a Tribunal. 

16. It was in that context that the Speaker referred the allegations to the first and second defendants and a decision was made to request the Chief Justice to set up a Tribunal to investigate the allegations and that the plaintiff be suspended pending the investigation. He will be given the opportunity to respond to the allegations when the Tribunal commences the hearing. For this reason, there is no basis for the plaintiff to say that he has been denied natural justice or that the contention that he has been denied natural justice is misconceived.

17. Finally, Mr Kuman submitted that the plaintiff did not plead that the decision was made in bad faith, biased – real or otherwise and unreasonable and it is not open to him to rely on these grounds to support the application for judicial review and in turn rely on them to establish that there are serious questions to be tried and a stay should be granted.

Consideration of the Application

18. I start on the premise that there are three parts to the decision, the subject of the application for judicial review. In the beginning of the ruling, I highlighted them and I restate them here. They are:

•	Suspension of the plaintiff as Clerk of the Parliament;

•	Appointment of the fourth defendant as Acting Clerk of the Parliament; and

•	Requesting the Chief Justice to appoint a Tribunal to investigate allegations of misconduct in office against the plaintiff.

19. Having considered the submissions and evidence of the parties, I am not satisfied that a stay of the whole decision is appropriate in the circumstances of the case. I propose to stay part of the decision because the balance of convenience does not favour staying it in its entirety. 

20. I accept Mr Issack's submission that the plaintiff will be the party whose interest will be most affected if the request to the Chief Justice to appoint a Tribunal to investigate allegations of misconduct against the plaintiff is not stayed. I accept the submission that if a stay is refused, the plaintiff will remain suspended, a Tribunal will be established and proceed to investigate the allegations against him. The plaintiff is at risk of been recommended for dismissal from office by the Tribunal.

21. It would defeat the purpose to which the application for judicial review has been filed if that part of the decision is not stayed, a Tribunal is established, proceeds to investigate and recommend the dismissal of the plaintiff from office while the question on the procedure for referral and suspension is pending determination by the Court. 

22. The other reason is that given that the Tribunal has discretion to recommend dismissal of the plaintiff from office, irreparable damage would occur and the plaintiff would not adequately be compensated by damages if the referral is not stayed, the Tribunal is appointed, investigates and recommends the dismissal of the plaintiff from office. 

23. The defendants have not shown how their interests will be prejudiced or how they will be inconvenienced if a stay is granted against the referral of the plaintiff, except to say that the fourth defendant has been appointed as Acting Clerk of Parliament and returning the plaintiff would frustrate and inconvenience the fourth defendant and the administration of the Parliament. When I consider the interests of the parties, the possible prejudice, hardship and inconvenience that will be caused to the parties, I am satisfied that the plaintiff will be the party who will greatly suffer for the reasons I have given should a stay is refused. 

24. When the possible prejudice, hardship and inconvenience that will be caused to the parties is considered together with the strength of the plaintiff's case, I am satisfied that the case raises serious issues in relation to the procedure on referral and suspension of a Clerk of Parliament. 

25. On the question of leave, the Court held that there were important points of law raised in the application and granted leave. This was after the Court heard from the Plaintiff and the State. Now, the Court has had the benefit from receiving submissions from the first and fourth defendants who were represented by Mr Kuman and is in a position to determine the strength of each party's case. 

26. Mr Kuman's submission that the Speaker as the Head of the Parliament acted on complaints against the plaintiff and referred them to the second and third defendants for decision is accepted. He seemed to accept that the procedure used by the Speaker to carry out the investigation including setting up on a private investigation committee to investigate the allegations and report to the Speaker was proper. 

27. But a contrary view has been put forward by Mr Issack. I accept Mr Issack's submission that is arguable that the referral and suspension of the plaintiff pending investigation by the Tribunal should follow the procedure to appoint the Clerk of Parliament under section 7 of the Organic Law in Certain Constitutional Officer-holders. This procedure entails a report to be presented by the Permanent Parliamentary Committee on Appointments separate from the Speaker to the NEC, as the appointing authority, to make a decision.

28. If a Clerk of the Parliament is appointed by the NEC based on a report by the Permanent Parliamentary Committee on Appointments, then the reverse of that process should be applied when referring and suspending the Clerk of the Parliament.

29. A clarification, or rather, judicial determination of the procedure is necessary given that in his submission, Mr Kuman did not address the authority of the private investigation committee set up by the Speaker to investigate the allegations and report its findings to the Speaker. Mr Issack repeated his submission in support of the leave application. 

30. I am satisfied that it is arguable that the private investigation committee lacked jurisdiction to investigate the allegations against the plaintiff and in turn the second and third defendants made a decision based on recommendations by an illegal body and the decision was illegal.

31. This contention is further supported by the contention that if the authority that investigates the allegations should be the Permanent Parliamentary Committee on Appointments whose report should be presented to the NEC for appropriate decision, then it can reasonably be further argued that the private investigation committee lacked jurisdiction to investigate the plaintiff and that the decision by the NEC based on the report by this committee is void abinitio. Given this, the plaintiff's submissions raise the second important issue and that is, what is the legal authority of the private investigation committee?

32. Finally, Mr Kuman submitted that the plaintiff did not plead that the decision was made in bad faith, biased – real or otherwise and unreasonable and it is not open to him to rely on these grounds to support the application for judicial review and in turn rely on them to establish that there are serious questions to be tried and a stay should be granted.

33. With respect, this submission fails to acknowledge the factual circumstances leading up to the decision pleaded at paragraphs 13 to 26 and further, under the grounds on which the relief are being sought pleaded at paragraphs 10 to 14 of the Statement made pursuant to Order 16, rule 3(2)(a) in Support of an Application for Judicial Review. 

34. In my view the plaintiff has pleaded, with clarity, that the decision was made in bad faith, biased – real or otherwise and unreasonable. Based on these pleadings, he argued that the decision was also made in bad faith, was biased – real or otherwise and unreasonable. These grounds are arguable and will require proper ventilation at the full trial.

35. For these reasons, I will stay the request to the Chief Justice to appoint a Tribunal to investigate the allegations against the plaintiff until the review is determined. 

36. As to the stay of the appointment of the fourth defendant as Acting Clerk of Parliament and suspension of the plaintiff pending investigation by the Tribunal, the plaintiff is on full pay and he does not deny this. This is consistent with the law under sections 9(2) of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders which states "[u]nless otherwise determined by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, the suspension shall be on full pay." 

37. The privileges that come with the position are intact with no reduction in monetary benefits and the plaintiff continues to draw from his salary and other benefits while suspended. It is a decision that the defendants have made and will have to foot the bill while he is suspended. If the defendants are prepared to pay the bills for the plaintiff while he is off duty so to speak, then it is a decision they have made and I can only lament that the State is prepared to pay someone who is not working.

38. The other reason is this. I agree with the Speaker that it is in the best interest of the Parliament that the plaintiff remains suspended pending the investigation of the allegations against him and also the determination of the review. I say this because the allegations raised against the plaintiff are serious and maintaining the current status quo would allow that space between the office of the Speaker and the office of the Clerk of Parliament to ventilate the issues for the hearing of the review.

39. The fourth defendant has been appointed to act as Clerk of the Parliament. To change the status quo after he has been appointed would, in my respectful opinion, cause unnecessary inconvenience and chaos in the administration of the Parliament. The plaintiff's assertion that the fourth defendant has been Acting Deputy Clerk of Parliament and is not qualified to be appointed as Acting Clerk of Parliament is without merit. The appointment of the fourth defendant is only temporary until the allegations against the plaintiff are investigated and decision is made by the Tribunal. 

40. Finally, while it is acknowledged that the plaintiff is well qualified and experienced and Parliament needs his services to guide and move it forward, apart from the assertion that the fourth defendant has been appointed Acting Deputy Clerk of Parliament and not qualified to be appointed Acting Clerk of Parliament, there is no evidence that he has failed in the discharge of his duties from the time of appointment to date so as to support the assertion that he is not qualified or incapable of being the Acting Clerk of Parliament.
 
41. I prefer to maintain the current status quo until the determination of the review. For these reasons, I am not satisfied that I should stay the appointment of the fourth defendant as Acting Clerk of Parliament and the suspension of the plaintiff pending investigation by the Tribunal and also the determination of the review. 

Summary

42. The effect of this decision is the plaintiff will remain suspended, the fourth defendant will remain Acting Clerk of Parliament and the request to the Chief Justice to appoint a Tribunal is stayed until the determination of the review.

Order

43. The orders are:

1. The request to the Chief Justice to appoint a Tribunal to investigate allegations of misconduct in office against the plaintiff is stayed until the determination of the review.

2. The application to stay the appointment of the fourth defendant as Acting Clerk of Parliament and the suspension of the plaintiff pending the Tribunal to investigate allegations of misconduct in office against the plaintiff is refused.

3. The matter is adjourned to Friday 17th October 2014 at 9:30 am for directions hearing. 

 4. Costs of the application shall be in the review.
 
5. Time shall be abridged.

________________________________________________________________
Lawama Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the First and Fourth Defendants
Acting Solicitor-General: Lawyers for the Fifth Defendant