N11525
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO  289 OF 2024

BETWEEN
ANDREW ROBERTSON FORBES
Plaintiff

AND
DANIEL BAULCH
First Defendant

AND
GRAHAM GILL
Second Defendant

WAIGANI: MAKAIL J
19 SEPTEMBER, 13 OCTOBER 2025

CONSTITUTIONAL LAWS – Independent Commission Against Corruption – Complaint of suspected or alleged corrupt conduct – Complaint made against Commissioner of Independent Commission Against Corruption – Complaint made to Independent Commission Against Corruption and Police – Process of investigation by Independent Commission Against Corruption – Constitution – Sections 220B & 220D – Organic Law on Independent Commission Against Corruption, 2020 – Sections 1, 14, 15, 21, 22, 34 & 127 – Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders – Sections 5, 7 & 8 

PRACTICE & PROCEDURE – Application to dismiss proceedings – Grounds of – Failure to disclose reasonable cause of action – Whether issues raised disclosed an arguable case – Whether cause of action is unsustainable or obviously and incontestably bad – Frivolous and vexatious – Whether proceedings causing vexation and harassment – Whether proceedings is a sham and cannot possibly succeed – Abuse of process – Proper mode of proceedings – Order sought appropriate in judicial review proceedings Constitution – Section 220F – National Court Rules – Order 12, rule 40(1)(a)-(c) 

Facts

The plaintiff is the Commissioner, and the defendants are Deputy Commissioners of the Independent Commission Against Corruption.  The defendants reported an alleged or suspected corrupt conduct of the plaintiff to the Independent Commission Against Corruption Appointments Committee and later, the Commissioner of Police.  Subsequently, the Independent Commission Against Corruption commenced investigation into the alleged or suspected corrupt conduct of the plaintiff.  Pursuant to an Originating Summons which was subsequently amended, the plaintiff sought amongst others, an order in the nature of a declaration that the decision of the defendants to initiate, direct and carry out an investigation into him was unlawful and therefore, null and void.  The defendants applied by notice of motion to dismiss the within proceedings for failing to disclose a reasonable cause of action, being frivolous and vexatious and an abuse of process pursuant to the Court’s inherent powers under Section 155(4) of the Constitution and Order 12, rule 40(1)(a)-(c) of the National Court Rules.

Held:

1.	The Independent Commission Against Corruption has a constitutional mandate to initiate and investigate complaints of alleged or suspected corrupt conduct on its own initiative or on complaints received pursuant to Sections 220D of the Constitution and Section 34 of the Organic Law on the Independent Commission Against Corruption, 2020. 

2.	It is arguable that the Independent Commission Against Corruption should not initiate and investigate the complaint of alleged or suspected corrupt conduct of the plaintiff by its very own Deputy Commissioners and a different constitutional process should be adopted to investigate the complaint against the plaintiff once a complaint is made to the Independent Commission Against Corruption Appointments Committee pursuant to Sections 5 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders and Sections 14 and  21(1)(a) of the Organic Law on the Independent Commission Against Corruption, 2020.
 
3.	These conflicting views raised significant constitutional questions on the process of initiation and investigation of a complaint of an alleged or suspected corrupt conduct of a Commissioner of the Independent Commission Against Corruption and the defendants failed to establish that the within proceedings failed to disclose a reasonable cause of action and should be dismissed pursuant to Order 12, rule 40(1)(a) of the National Court Rules.

4.	In addition to the significant constitutional questions on the process of initiation and investigation of a complaint of an alleged or suspected corrupt conduct of a Commissioner of the Independent Commission Against Corruption, a further significant constitutional question arises as to whether in addition to the Police Force, the Independent Commission Against Corruption is conferred investigative and prosecutorial powers where the criminal offence involved the element of corrupt conduct pursuant to Section 220D(b) of the Constitution and Sections 34 and 53(1)(a) of the Organic Law on the Independent Commission Against Corruption, 2020 and the defendants failed to establish that the within proceedings is a sham, frivolous and vexatious and should be dismissed pursuant to Order 12, rule 40(1)(b) of the National Court Rules.

5.	There is a clear expressed provision in Section 220F(2) of the Constitution that says that “The proceedings and decisions of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceed its jurisdiction.”	The expression “review” in Section 220F(2) should be given a narrow interpretation as opposed to a wide one because of the nature and function of the ICAC, it being a body established by Parliament to investigate complaints of suspected or alleged corrupt conduct against any person and should not be subject to unnecessary interference.  

6.	The within proceedings is an abuse of process and is dismissed pursuant to Order 12, rule 40(1)(c) of the National Court Rules because an incorrect mode of proceedings was used to commence it.  

Cases cited
PNG Forest Products Pty Ltd and Inchape Berhad v The State [1992] PNGLR 85
Theresa’s Pty Ltd & PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283
Rimbink Pato v Anthony Manjin [1999] PNGLR 6
Pius Nui v Mas Tanda (2004) N2765
Grand Chief Sir Michael Somare v Ila Geno & Ombudsman Commission (2008) N3406
Simon Ketan v Lawyers Statutory Committee & Anor (2001) N2290
Ronny Wabia v BP Exploration Operating Co Ltd & The State [1998] PNGLR 8
Telikom PNG Limited v Independent Consumer and Competition Commission [2008] PNGLR 303;(2008) SC906  
Stanis Hulahau v Independent Commission Against Corruption (2025) N11472

Counsel
Mr H Leahy with Mr A Lyandenge, for plaintiff
Ms C Copland with Ms L Akane, for defendants

RULING

1.	MAKAIL J: Pursuant to an Originating Summons filed on 10 November 2024 the plaintiff seeks the following:

“1.	An order in the nature of a declaration that the Plaintiff is the duly appointed Commissioner of the Independent Commission Against Corruption.

2.	An order in the nature of a declaration that the Plaintiff is duly authorized and empowered under the Organic Law in the Commission Against Corruption Law 2020 to exercise, perform and discharge the powers and function of his office as Commissioner of the Independent Commission Against Corruption.

3.	A permanent injunction restraining the Defendants and any officers of ICAC under the direction of the Defendants from conducting, pursuing, maintaining or carrying out an investigation into the Plaintiff pending outcome of the investigation by the Appointments Committee.

4.	A permanent injunction restraining the Defendants from discussing, publishing or otherwise divulging any information concerning the Plaintiff or the ICAC in any manner but not limited to publication in print media and internet media, pending the outcome of the investigation into the Plaintiff by the Appointments Committee.

5.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from interfering with the Plaintiff’s exercise, perform and discharge his powers and functions as Commissioner of the Independent Commission Against Corruption.

6.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from conducting, pursuing, maintaining and carrying out any investigation into the Plaintiff pending the outcome of the investigation by the Appointing Committee and or pending hearing and determination of these proceedings.

7.	 An order in the nature of an interim and or interlocutory injunction restraining the Defendants from directing or authorizing any officer, employee or member of the Independent Commission Against Corruption from conducting, pursuing, maintaining and or carrying out any investigation into the Plaintiff pending the outcome of the investigation by the Appointing Committee into the complaints made by the Plaintiff and Defendants respectively and or pending hearing and determination of these proceedings.

8.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from discussing, publishing or otherwise divulging any information concerning the Plaintiff or the Independent Commission Against Corruption in any manner including but not limited to publications online or in the print media pending the outcome of the investigations by the Appointment Committee into the complaints made by the Plaintiff and Defendants respectively and or pending hearing and determination of these proceedings.

9.	The Defendants pay the Plaintiff’s costs of the proceedings.

10.	Such further orders the Court deems appropriate.”

2.	After eight months, on 24 July 2025 the plaintiff filed an amended Originating Summons and seeks the following:

“1.	An order in the nature of a declaration that the Plaintiff is the duly appointed Commissioner of the Independent Commission Against Corruption.

2.	An order in the nature of a declaration that the Plaintiff is duly authorized and empowered under the Organic Law in the Commission Against Corruption Law 2020 to exercise, perform and discharge the powers and function of his office as Commissioner of the Independent Commission Against Corruption.

3.	An order in the nature of a declaration that the decision of the First and Second Defendants to initiate, direct and carry out an investigation into the Plaintiff (known as “Operation North”) was unlawful and therefore null and void.

4.	Further, an order setting aside the arrest warrant against the Plaintiff issued 8 November 2024 by the Waigani District Court.

5.	A permanent injunction restraining the Defendants from conducting, pursuing, maintaining or carrying out any investigation into the Plaintiff as Commissioner of the Independent Commission Against Corruption.

6.	A permanent injunction restraining the Defendants from discussing, publishing, causing to publish or otherwise divulging any information concerning the Plaintiff in any media including publications on the internet and any print media.

7.	A permanent injunction restraining the Defendants and any officers of ICAC under the direction of the Defendants from conducting, pursuing, maintaining or carrying out an investigation into the Plaintiff pending outcome of the investigation by the Appointments Committee.

8.	A permanent injunction restraining the Defendants from discussing, publishing or otherwise divulging any information concerning the Plaintiff or the ICAC in any manner but not limited to publication in print media and internet media, pending the outcome of the investigation into the Plaintiff by the Appointments Committee.

9.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from interfering with the Plaintiff’s exercise, perform and discharge his powers and functions as Commissioner of the Independent Commission Against Corruption.

10.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from conducting, pursuing, maintaining and carrying out any investigation into the Plaintiff pending the outcome of the investigation by the Appointing Committee and or pending hearing and determination of these proceedings.

11.	 An order in the nature of an interim and or interlocutory injunction restraining the Defendants from directing or authorizing any officer, employee or member of the Independent Commission Against Corruption from conducting, pursuing, maintaining and or carrying out any investigation into the Plaintiff pending the outcome of the investigation by the Appointing Committee into the complaints made by the Plaintiff and Defendants respectively and or pending hearing and determination of these proceedings.

12.	An order in the nature of an interim and or interlocutory injunction restraining the Defendants from discussing, publishing or otherwise divulging any information concerning the Plaintiff or the Independent Commission Against Corruption in any manner including but not limited to publications online or in the print media pending the outcome of the investigations by the Appointment Committee into the complaints made by the Plaintiff and Defendants respectively and or pending hearing and determination of these proceedings.

13.	The Defendants pay the Plaintiff’s costs of the proceedings.

14.	Such further orders the Court deems appropriate.”

3.	Meanwhile, the defendants filed a notice of motion on 9 December 2024 seeking an order to dismiss the within proceedings for:

(a)	failing to disclose a reasonable cause of action because the within proceedings is inconsistent with or contravenes Sections 220B(1) and 220F(1) and (2) of the Constitution and Sections 164 and 165 of the Organic Law on the Independent Commission Against Corruption Law, 2020 (“ICAC Law”). 

(b)	being frivolous or vexatious because the within proceedings is inconsistent with or contravenes Sections 220B(1) and 220F(1) and (2) of the Constitution and Sections 164 and 165 of the ICAC Law. 
.	
(c)	being an abuse of process because the within proceedings should have been by judicial review proceedings pursuant to Order 16 of the National Court Rules (“NCR”).

4.	The notice of motion was to dismiss the Originating Summons but was not moved by the time the amended Originating Summons was filed.  While the plaintiff sought to dismiss the notice of motion on the ground that it had outlived the expiry date and contrary to Order 4, rule 49(17) of the NCR at the hearing, that application was refused and the defendants were allowed to rely on it.  Accordingly, it suffices to say that the Court will determine the issue of dismissal of the within proceedings based on the amended Originating Summons pursuant to the notice of motion.

5.	Proceeding on this premise, it is noted that the notice of motion engages the jurisdiction of the Court under Order 12, rule 40(1)(a)-(c) of the NCR in addition to the Court’s inherent power under Section 155(4) of the Constitution to dismiss the within proceedings.

Brief Facts

6.	From the various affidavits filed by the parties, it is uncontested that the defendants made a complaint against him in their individual capacity, but for their roles carried in their official capacities as Deputy Commissioners of Independent Commission Against Corruption (“ICAC”) for authorising the commencement of a criminal investigation into his alleged corrupt conduct, re; insertion of Regulation 16 of the ICAC Regulations 2024 without approval from the ICAC and the National Executive Council (“NEC”). 

7.	The complaint was made to the Independent Commission Against Corruption Appointments Committee (“ICAC Appointments Committee”) on 31 July 2024.  On the next day, 1 August 2024 the defendants made a complaint to the Commissioner of Police (“Police”) that they suspected that the plaintiff had committed a criminal offence of abuse of office under Section 92(1) of the Criminal Code and asked the police to investigate the complaint. 

8.	On 4 September 2024 the second defendant and the Executive Director of Investigation, Intelligence and Assessment of ICAC Mr John Lynch served a letter dated 6 August 2024 informing the plaintiff of the complaint to ICAC Appointments Committee and search warrants on the plaintiff and executed  them by seizing from the plaintiff, his personal and work phones and work computer including from Mrs Alice Tembari, her personal phone and work computer.

9.	Fast forward to 2025, on 20 June , the plaintiff and both defendants were suspended from their respective offices as Commissioner and Deputy Commissioner of ICAC by the ICAC Appointments Committee through the Head of State acting on advice.  This was provided for in the National Gazette No. G605 dated 20 June 2025.

10.	On the same day Acting Commissioner and Acting Deputy Commissioners were appointed by the ICAC through the Head of State acting on advice by the ICAC Appointments Committee.  These appointments were published in the National Gazette No. G606 of 20 July 2025. 

Failure to disclose a reasonable cause of action

11.	On the question of whether the proceedings disclose a reasonable cause of action, the defendants’ counsel points out that the defendants do not contest the relief sought at paragraph 1 of the amended Originating Summons because except that the plaintiff has been suspended, he is the incumbent Commissioner of the ICAC, hence no controversy for the Court to adjudicate on. The controversy is in relation to paragraphs 2, 3 and 4 while paragraphs 5 and 6 of the amended Originating Summons are consequential or dependant on the orders sought in the earlier paragraphs.  

12.	Also, the defendants do not contest the plaintiff’s submissions that his grievance is about the process adopted by them that they made a complaint against him in their individual capacity, but for their roles carried in their official capacities as Deputy Commissioners of ICAC for authorising the commencement of a criminal investigation into his alleged corrupt conduct, re; insertion of Regulation 16 of the ICAC Regulations 2024 without approval from the ICAC and the NEC. 

13.	However, they submit that the within proceedings fails to disclose a reasonable cause of action because the plaintiff including them have been suspended from their respective offices by the ICAC Appointments Committee.  Because of this, they are not directly engaged in the management of ICAC or investigation of the plaintiff by the ICAC and there is no utility in maintaining and prosecuting the within proceedings for an order to permanently restrain the ICAC criminal investigations against the plaintiff.  

14.	The plaintiffs’ submissions that the defendants’ submissions lacked merit is upheld and the defendants’ submissions will be dismissed because neither the plaintiff nor the defendants have been terminated from their respective offices.  They have only been suspended.  A decision in relation to whether their suspensions should be lifted or that they be terminated is pending before the ICAC Appointments Committee.  Accordingly, the process of investigation and likelihood of the plaintiff being arrested by the Police has been set in motion by the defendants’ complaint of suspected or alleged corrupt conduct to the ICAC Appointments Committee and the Police.

15.	A relevant consideration which arises from the facts is whether the within proceedings discloses a reasonable cause of action because of the process adopted by the defendants to investigate the plaintiff.  According to the defendants’ submissions, the ICAC should be a party but is not in the within proceedings and the plaintiff cannot permanently restrain it from carrying out its mandated function for commencing a criminal investigation for corruption conduct, even if the person investigated is the plaintiff.  In addition, there is no evidence that the ICAC Appointments Committee and the appointed Tribunal by the Chief Justice would conclude its investigation and findings.   

16.	One of the issues which arises from the order sought at paragraph 3 of the amended Originating Summons is whether a Deputy Commissioner can initiate, direct and carry out an investigation into a complaint of alleged or suspected corrupt conduct against the plaintiff as the Commissioner of ICAC. 

17.	Given the set-up of the ICAC, it is arguable that the process adopted by the defendants is flawed because according to Section 220B of the Constitution, the plaintiff as the Commissioner and the defendants as the two Deputy Commissioners make up the ICAC.  Thus, the proposition is that the ICAC should not initiate and conduct the investigation of the complaint by its very own Deputy Commissioners.  Section 220B states:

“(1)	There shall be an Independent Commission Against Corruption consisting of a Commissioner and two Deputy Commissioners.

(2)	There shall be an Independent Commission Against Corruption Appointments Committee.

(3)	The members of the Commission shall be appointed by the Head of State, acting on, and in accordance with, the advice of the Appointments Committee.

(4)	…….

	(5)	…….”
	
18.	Further, Section 15 of the ICAC Law provides for the appointment of the Commissioner and the Deputy Commissioners of the ICAC by the Head of State acting on advice of the ICAC Appointments Committee.  Section 15 states:

“APPOINTMENT OF COMMISSIONER AND DEPUTY COMMISSIONERS. 

(1)	The Head of State, acting with, and in accordance with, the advice of the Appointments Committee is to appoint the Commissioner and two Deputy Commissioners.

(2)	……..

(3)	…….”

19.	The proposition that ICAC should not initiate and investigate a complaint against its own Commissioner is reinforced by Section 220D of the Constitution where the ICAC on its own initiative or on complaints received by it of an alleged or suspected corrupt conduct may initiate or commence an investigation.  Section 220 D states:

“Subject to any Organic Law made for the purposes of Section 220E, the functions of the Commission are – 

(a)	……; and

(b)	to investigate, on its own initiative or on complaints received, alleged or suspected corrupt conduct; and

(c)	….; and

(d)	…..; and

(e)	…..; and

(f)	where the Commission, after conducting an investigation, is of the opinion that a person has committed an offence involving corrupt conduct, to refer the matter to the Public Prosecutor or the Police Force together with a statement of reasons for its opinion; and 

(g)	….; and

(h)	…..”

20.	The constitutional mandate of the ICAC to investigate alleged or suspected corrupt conduct is reinforced by Section 34 of the ICAC Law which states:

“(1)	Without limiting how the Commission may prevent and reduce corrupt conduct, the Commission may - 

(a)	investigate alleged or suspected corrupt conduct, including offences mentioned in Subsection (2), and perform functions or exercise powers under Parts IV. V and VI and

(b)	prosecute indictable offences relating to corrupt conduct in accordance with Part V11.

(2)	The Commission may investigate –

	(a)	offences under this Organic Law; and

(b)	other offences under the Criminal Code Act 1974 that fall within the definition of corrupt conduct; and

(c)	offences under any other laws that fall within the definition of corrupt conduct.”

21.	Further, the ICAC derives its power to initiate and investigate alleged or suspected corrupt conduct from Section 53 of the ICAC Law which states:

	“INVESTIGATIONS GENERALLY

(1)	The Commission may conduct an investigation into alleged or suspected corrupt conduct -

	(a)	on its own initiative; or

	(b)	in response to a complaint made; or

(c)	in response to a report or reference made to it by another agency or body.
(2)	The Commission may conduct an investigation even if no public official or public body is implicated.”

22.  On the other hand, as a member of the Commission under Section 1 of the ICAC Law includes “the Commissioner or a Deputy Commissioner”, it could be argued that pursuant to Section 21(1)(a) of the ICAC Law the correct process to adopt is for the defendants as members of the Commission or ICAC to report the alleged or suspected corrupt conduct of the plaintiff to the ICAC Appointments Committee.  Section 21 states:

	“SPECIAL CONDITIONS OF APPOINTMENT. 

(1)	A member of the Commission must, as soon as practicable, report any suspected corrupt conduct of – 

(a)	the Commissioner to the Appointments Committee; or
(b)	a Deputy Commissioner to the Commissioner; or
(c)	any other Commission officer to the Commissioner.  

(2)	……..” (Emphasis added).

23.	In addition, it is arguable that pursuant to Section 127 of the ICAC Law it is open to a Commission or ICAC officer other than the defendants to report the suspected or alleged corrupt conduct of the plaintiff to the ICAC.  Section 127 states:

	“DUTY TO REPORT CORRUPT CONDUCT.

(1)	Members of the Commission must immediately report any suspected corrupt conduct of a Commission officer to the Commissioner in accordance with the Code of Conduct.

(2)	A Commission officer other than a member of the Commission must, as soon as practicable, report any suspect corrupt conduct by – 
 
(a)	the Commissioner to the Appointments Committee; and
(b)	a Deputy Commissioner to the Commissioner; and
(c)	any other Commission officer to the Commissioner.”  (Emphasis added).

24.	Whether a complaint is made against the plaintiff under Section 21 or Section 217, as the plaintiff submits a different constitutional process comes into play where Section 5 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Officer-holders (“Organic Law on Constitutional Office-holders”) applies.  Section 5 states:

	“5.	REFERRAL OF MATTERS TO THE TRIBUNAL.

(1)	If the appointing authority is satisfied that the question of the removal from office of a constitutional officer-holder should be investigated, it shall, by notice in writing to the Chief Justice, request that he appoint three Judges to be the Chairman and members of the tribunal to hear and determine the matter.

(2)	Nothing in Subsection (1) prevents the Chief Justice from appointing himself as the Chairman or a member of the tribunal.”

25.	This is because pursuant to Section 14 of the ICAC Law, a Commissioner is a Constitutional Officer-holder.  Section 14 states:

	“CONSTITUTIONAL OFFICER HOLDERS.

The Commissioner and Deputy Commissioners are declared to be Constitutional Officer-holders for the purposes of Part IX (Constitutional Officer-holders and Constitutional Institutions) of the Constitution.”  

26.	Moreover, Section 22 of the ICAC Law provides for grounds for removal from office of a member of the Commission as follows:

	“REMOVAL FROM OFFICE.

(1)	A member of the Commission may be removed from office if - 
(a)	the person becomes disqualified from remaining a member under Section 18, or 
		(b)	the person breaches a condition mentioned in Section 21; or
(c)	on the grounds set out in Section 7 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or 
(d)	the person fails to comply with Section 24 or 44.

(2)	The process for removal is to be determined in accordance with the Organic Law on the Guarantee of the Rights and Independence of Constitutional Officer-holders.”

27.	Section 22(2) (supra) reinforces the plaintiff’s submissions that a separate constitutional process is initiated where a complaint of a suspected or alleged corrupt conduct is made against him by the defendants.  The process will include a decision by the ICAC Appointments Committee in relation to whether the plaintiff should be removed from office in relation to the complaint, a request by the ICAC Appointments Committee of the plaintiff to the Chief Justice to appoint a three Judges tribunal to hear and determine the matter and may amongst others, suspend the plaintiff from office pending the report of the tribunal under Section 5(1) and Section 9 of the Organic Law on Constitutional Office-holders respectively.  

28.	Significantly, the grounds of removal of a constitutional office-holder are set out in Section 7 of the Organic Law on Constitutional Office-holders.  These are:

(a)	inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or

	(b)	for misbehaviour; or 

(c)	in accordance with Division III.2 (leadership code) of the Constitution, for misconduct in office; or

(d)	for a breach or contravention of a condition of employment laid down in the Organic Law relating to the Office-holder.

29.	Moreover, the tribunal is conferred power under Section 8 of the Organic Law on Constitutional Office-holders to report to the ICAC Appointments Committee that the plaintiff be removed from office.  Section 8 states:

“REMOVAL FROM OFFICE

(1)	The appointing authority shall, at the same time as it takes action under Section 5, refer the matter of removal of the constitutional office-holder from office, together with a statement of reasons for its opinion, to the tribunal for investigation and report back to it.

(2)	If the tribunal reports that the constitutional office-holder should be removed from office, the appointing authority shall, by notice in writing to the office-holder, remove him from office.

(3)	The appointing authority shall send a copy of the notice, together with a copy of the report of the tribunal to the Speaker for presentation to the Parliament.”

30.	Based on the undisputed facts above, the defendants complied with Section 21(1)(a) (supra) when they reported the alleged or suspected corrupt conduct of the plaintiff to the ICAC Appointments Committee on 31 July 2024.  But they went further.  They investigated their own complaint by obtaining search warrants and executing them on the plaintiff and Mrs Tembari.  This is where the controversy arises.  If the defendants reported the alleged or suspected corrupt conduct of the plaintiff to the ICAC Appointments Committee, should it be a matter for the ICAC Appointments Committee to decide whether to investigate it.  The converse of that is, should the ICAC investigate the complaint as it did in this case?  Will there be a conflict of interests or bias or unfairness in the ICAC’s investigations of the complaint which is the plaintiff’s concern here?

31.	These conflicting views raise significant constitutional questions on the process of initiation and investigation of a complaint of an alleged or suspected corrupt conduct of a Commissioner of ICAC.  Accordingly, a legal proceeding will fail to disclose a reasonable cause of action where it fails to disclose an arguable case, and the cause of action is unsustainable or obviously and incontestably bad as was held in PNG Forest Products Pty Ltd and Inchape Berhad v The State [1992] PNGLR 29 and adopted in Theresa’s Pty Ltd & PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283.  In the present case, the defendants failed to establish that the allegations of fact upon where findings have been made, failed to disclose an arguable case and that the cause of action is unsustainable or obviously and incontestably bad such that the within proceedings failed to disclose a reasonable cause of action and should be dismissed under Order 12, rule 40(1)(a) of the NCR.  Accordingly, this ground is dismissed.

Frivolous and Vexatious Proceedings

32.	The other issue is whether this is an appropriate case for the National Court to intervene and restrain the Police from investigating the complaint by the defendants given that there is case authority in this jurisdiction holding that it is in the interests of justice that investigations by the Police or Ombudsman Commission or other Statutory Bodies like the Lawyers Statutory Committee should not be restrained by the Court: see Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Pius Nui v Mas Tanda (2004) N2765, Grand Chief Sir Michael Somare v Ila Geno & Ombudsman Commission (2008) N3406 and Simon Ketan v Lawyers Statutory Committee & Anor (2001) N2290.

33.	The defendants submit that based on case authority and reinforced by Section 220D(b) (supra), Section 34 (supra) and Section 53(1)(a) (supra), their actions were within the scope of their official duties and were proper and lawful.  Consequently, they were authorised to commence criminal investigations and prosecutions of any criminal offences involving the element of corrupt conduct as expressed in Section 220D(b) (supra) and Section 34 (supra).  However, it is arguable that Section 220D(b), Section 34 (supra) and Section 53(1)(a) are very broad powers which may conflict with the investigative and prosecutorial powers of the Police under Section 197(2) of the Constitution which states:

“(2)	Subject to Subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.”

34.	These conflicting views bring up the question whether in addition to the Police Force, the ICAC is conferred investigative and prosecutorial powers where the criminal offence involved an element of corrupt conduct. Is intended by these provisions in the ICAC Law that the investigation and prosecution of the Commissioner of ICAC for a criminal offence which involves an element of corrupt conduct run parallel with police investigative and prosecutorial powers under Section 197(2) (supra)?  If the defendants engaged the powers of the ICAC under Section 220D(b) (supra), Section 34 (supra) and Section 53(1)(a) (supra) to investigate and prosecute the plaintiff for the offence of abuse of office under Section 92(1) of the Criminal Code. Based on the uncontested finding of fact that on 1 August 2024 they made a complaint to the Police that they suspected the plaintiff had committed a criminal offence of abuse of offence under Section 92(1) of the Criminal Code and asked the police to investigate it, the question remains if they acted within their powers to do that.

35.	Proceeding on this premise, there is no further evidence that the defendants’ complaint against the plaintiff was recorded in an Occurrence Book at a police station and a member of the police was assigned to investigate the complaint including obtaining statements from the defendants as is the standard police investigation practice in the Police Force.  The absence of such evidence to establish that there is a police criminal investigation is further reinforced by the Commissioner of Police in his affidavit contesting the within proceedings on the ground that he is not a party that:

“5.	The alleged complaint against the ICAC Commissioner, Mr Andrew Forbes was a result of an ICAC investigation and did not arise from a criminal or police complaint lodged at a police station or a complaint lodged to my office…. 
	6.	…….
7.	………
8.	I state that while constructively aware of a Warrant of Arrest issued for the Plaintiff, I have not seen or been provided with a copy of the said warrant.  It is my understanding that that said warrant was sought by and issued to the ICAC, and that the RPNGC was not party to that application.  I further say that as the warrant was sought by the ICAC, any reference to a member of the RPNGC in the said warrant of the related proceedings is premature and/or inappropriate.”	

36.	The upshot of this is that the defendants led the plaintiff to believe that there is a complaint made to the Police for a police criminal investigation to be commenced and the likelihood of him being arrested is imminent.  In addition, based on the discussions at [15] to [31] (supra), the within proceedings bring up significant constitutional questions on the process of initiation and investigation of a complaint an alleged or suspected corrupt conduct of the plaintiff.  In Ronny Wabia v BP Exploration Operating Co Ltd & The State [1998] PNGLR 8, it was held that a proceeding is frivolous if it draws to the notice of the Court issues that are “not worth serious attention or manifestly futile” and it is vexatious if it is “causing vexation or harassment” or cause “harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham or which cannot possibly succeed.”

37.	The facts of this case shows that the within proceedings is not frivolous because the issues drawn to the notice of the Court are not issues that are “not worth serious attention or manifestly futile” and it is not vexatious because it is “causing vexation or harassment” or cause “harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham or which cannot possibly succeed.” This ground is dismissed.

Abuse of Process 

38.	Under the ground of abuse of process, the defendants submit that their actions and that of ICAC are not subject to the directions and control of the Court because their actions did not exceed their jurisdiction pursuant to Section 220F of the Constitution.  The appropriate mode of proceedings to commenced to challenge the exercise of power by the ICAC as the decision-making authority is by judicial review proceedings pursuant to Section 220F (supra).  First, the plaintiff failed to name the ICAC as a defendant in the within proceedings and secondly, failed to file an application for judicial review pursuant to Order 16 of the NCR to question the ICAC’s decision to initiate and investigation the complaint of alleged or suspected corrupt conduct against him.  Based on the submissions of the defendants, Section 220F (supra) states:

“(1)	In the performance of its functions and powers, the Commission is not subject to the direction and control of any person or authority.

(2)	The proceedings and decisions of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceed its jurisdiction.

(3)	……..

(4)	…….”

39.	The plaintiff relies on the case of Telikom PNG Limited v Independent Consumer and Competition Commission [2008] PNGLR 303;(2008) SC906  contests the defendants’ submissions on the ground that because Order 16, rule 1(2) of the NCR makes it optional to seek a declaration in an application for judicial review and as he seeks number of declarations in the amended Originating Summons other than mandamus or certiorari, it is open to him to commence the within proceedings by Originating Summons using Order 4, rule 3 of the NCR.  Also, the plaintiff relies on the following statement by the Supreme Court in the Telikom v ICCC case (supra) at [128] of the judgment:

“We do not consider that it is correct to say that whenever a person wishes to challenge the decision of a governmental body or a public authority, the challenge must be made by using Order 16.  It is a matter of considering the relief being sought and applying Order 16, Rule 1 to see whether Order 16 is mandatory (Rule 1(1) or optional (Rule 1(2).”

40.	However, the Telikom v ICCC case (supra) is distinguishable from this case because in this case there is a clear expressed provision in Section 220F (supra) that says that “The proceedings and decisions of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceed its jurisdiction.”	The expression “review” in Section 220F (supra) should be given a narrow interpretation as opposed to a wide one because of the nature and function of the ICAC, it being a body established by Parliament to investigate complaints of suspected or alleged corrupt conduct against any person and should not be subject to unnecessary interference.    

41.	Where a person is aggrieved by the proceedings and decisions of the ICAC the appropriate mode of proceedings to challenge them is by judicial review under Order 16 of the NCR.  This is where the grievance will be vetted through the leave process for only the meritorious and genuine cases to go on to substantive hearing. Moreover, Section 220F(2) is very specific in relation to the ground to challenge the proceedings and decisions of the ICAC.  The aggrieved person must plead and rely on the ground that the ICAC “has exceeded its jurisdiction”.   The ground that the ICAC “has exceeded its jurisdiction” is commonly found in judicial review proceedings.

42.	Significantly, the defendants’ submissions that ICAC should be a party to the within proceedings will be upheld because it is the proceedings and decisions of the ICAC which the plaintiff is being aggrieved by and challenges in the within proceedings.  In essence, a decision was made to investigate the plaintiff on a complaint of an alleged or suspected corrupt conduct by the defendants.  The proceedings commenced by the ICAC applying and obtaining search warrants which were subsequently executed on the plaintiff and Mrs Tembari.  Consequently, the questions/issues identified at [30], [31] and [34] (supra) in relation to the proceedings and decisions of the ICAC can be adequately and appropriately pleaded and addressed in the ground on excess of jurisdiction in judicial review proceedings under Order 16 of the NCR. Likewise, the relief in the nature of a declaration should be sought in the judicial review proceedings for the Court to declare the correct legal position and importantly, a corrective remedy in the nature of certiorari be sought for the Court to call up the proceedings and decisions of the ICAC and have them quashed: Order 16, rule 1(1)&(2) of the NCR.

43.	Finally, the case of Stanis Hulahau v Independent Commission Against Corruption (2025) N11472 which the plaintiff relies on appears to be the first of the ICAC cases as it dealt with the ICAC Law since it was passed by the Parliament in 2020 is of persuasive value and not binding on this Court.  It is doubted if a person aggrieved by the proceedings and decisions of the ICAC should be permitted to file a human rights application when there is clear expressed provision in Section 220F(2) (supra) providing for review by the National Court or Supreme Court. 

44.	For these reasons, it is considered that in judicial review proceedings, the Court will control and manage grievances by persons in relation to the proceedings and decisions of the ICAC and prevent abuse of its processes by litigants.  The within proceedings is an abuse of process and is dismissed pursuant to Order 12, rule 40(1)(c) of the NCR because an incorrect mode of proceedings was used to commence it.  

Costs

45.	The plaintiff has raised genuine and significant constitutional issues in relation to the process of initiation and investigation of complaint of alleged or suspected corrupt conduct against him by the ICAC save for an incorrect mode of proceedings that it is fair and appropriate to order each party to bear their own costs of the within proceedings.

Order 

46.	The order of the Court is as follows:

1.	The defendants’ notice of motion filed on 9 December 2024 is upheld in part.

2.	The within proceedings is dismissed as being an abuse of process.

3.	Each party shall pay their own costs of the proceedings.

4.	Time shall be abridged.
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Lawyers for plaintiff: Pacific Legal Group Lawyers
Lawyers for defendants: SML Legal Practice