Unreported National Court Decisions
N864
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 21 OF 1990
BETWEEN: THE WATERBOARD
PLAINTIFF
AND: THE NATIONAL CAPITAL DISTRICT INTERIM COMMISSION
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT
Waigani
Brown J
9-10 April 1990
BROWN J:  Yesterday counsel for the first defendant indicated that he would call this morning the Secretary of the National Executive Council (NEC). During cross-examination of Mr Montford (the General Manager of the Waterboard and a witness for the plaintiff), counsel for the first defendant had shown to Mr Montford, NEC decision 6/87, which directed that implementation of a previous NEC decision be deferred pending a report. On cross-examination Mr Montford was asked:
Q:      Do you hold the view that no formal decision to proceed need be made?
A:       Yes I do.
In his case Mr Donigi read that NEC decision which was admissible in form and formed part of an affidavit of Mr Gaudi Kidu, the Deputy General Manager (Technical) of the Interim Commission. Mr Donigi indicated that the Secretary to the NEC, Mr Eka, had been subpoenaed to give evidence before this Court this morning. He indicated he would seek “an interpretation” of the decision made in 1987. Having cross-examined on Mr Kidu’s document and obtained no answers which impinged on the accuracy of the NEC minute but which elicited the approach adopted by the witness Mr Montford, there is no ground established to impugn NEC decision 6/87. The NEC document produced is the best evidence and its construction is a matter of law.
Consequently there is no basis to call the Secretary on the accuracy or otherwise of that decision and in fact no point was made by any counsel as to its veracity. It has been properly authenticated and on its face is admissible. Further as his own document, Mr Donigi cannot call in aid s 22 of the Evidence Act dealing with contradictory statements of witnesses. There is no contradictory statement of his witness Mr Kidu nor on the evidence so far is there any contradictory statements by the NEC affecting decision 6/87.
The contradictory verbal statement if you like is that answer of Mr Montford. It is not available to Mr Donigi to call the Secretary of NEC to seek to refute Mr Montford’s opinion but rather it is the function of this Court to decide that very question; whether Mr Montford was entitled to hold that view. By enquiring of the Secretary this Court would only be misdirecting itself on its duties to determine the facts in issue.
Mr Donigi also submitted that he sought to call the Secretary to ask whether or not a subsequent decision of Cabinet is required and to ask whether the report requested in NEC 6/87 had been tabled or accepted. Today Mr Donigi indicated he would refer the Secretary to previous NEC minutes and show him the last minute 6/87. He would ask him whether such a report had been presented to Cabinet and seek a yes or no answer. Mr Donigi also referred me to s 153 of the Constitution which deals with validity of Executive Acts, pointing out that such Acts were non-justiciable, then addressed me on that aspect.
This Court may have an inherent power to review judicial acts, but having regard to the specific executive functions of the Council (Constitution s 149), I am of the view it could be improper for this Court to allow general far-ranging questions of the Secretary, NEC on matters of executive policy. It will only cause to confuse and appear to impinge on the executive workings of this Government. It is not a valid exercise of the powers of this Court to summons witnesses in this case to enquire into the executive workings of the Council.
Further I consider if the first defendant wished to call evidence, it should have done so by affidavit in the course of the normal conduct of this case leading up to the hearing. There has been no inconsistent statement of a witness for the purposes of s 22 of the Evidence Act so that it is not available to the first defendant to call the Secretary to rebut, as it were, Mr Montford’s opinion.
I do not permit the Secretary to be called.