Kill v Auali [1996] PGNC 132; [1997] PNGLR 369 (13 December 1996)

[1997] PNGLR 369

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN KILBURN KILL

V

HON. VINCENT AUALI (M.P.);
THOMAS NIKINTS; and
THE STATE

MOUNT HAGEN: AKURAM J
13 December 1996

Facts

On an application for orders to produce documents relating to expenditure of funds allocated to Members of Parliament:

Held

1. Courts cannot interfere in administrative decisions of the Executive because this runs counter to the principles of responsible Government. If the court does so, it may become no more than a part of the Administration and thereby loose its distinctive and independent character.
   
2. The Constitution provides for separation of powers, duties and functions of each arm of the Government and creates statutory authorities such as the Ombudsman Commission to monitor activities of leaders. Courts should be the last resort rather than first instance.
   

Papua New Guinea cases cited

The Application of Paul Undipe [1991] PNGLR 297.
Dickson Wari and Rex Wanjil v The Police Appeal Tribunal (Unreported) N1258 of 1994.

Kuringi Nepo v The Police Appeal Tribunal (Unreported) N1256 of 1994.

Counsels

Mr Waine, stood in for plaintiff.
Mr Tamutai, for first defendant.
Mr Kwimberi, for second defendant.
Mr Kumura, for third defendant.

13 December 1996

This is an application for orders that:

1. A declaration that the defendants are accountable, the first defendant as current member of the National Parliament and second defendant as the former, to the plaintiff and the people of Tambul-Nebilyer Open Electorate for their respective terms in office as elected representatives as to any matter concerning the and/or affecting the Electorate in so far as their duties and responsibilities bind them.
   
2. A declaration that the defendants, during their respective terms in office received from the Independent State of Papua New Guinea, various funds (monies) on a yearly basis for the purposes of identifying and bringing development infrastructure only within the Tambul-Nebilyer Open Electorate and such funds include the Rural Development Fund (formerly Electoral Development Fund) and the Transport Sectoral Fund.
   
3. A declaration that such funds were received by the defendants and expended and or used.
   
4. A declaration that the plaintiff and the people of Tambul-Nebilyer Open Electorate have a right to know, where, how, who and on what purpose or item these monies were spent or used or expanded in each given year.
   
5. An order that the first defendant give and file a complete account of all monies received from the State from June 1992 till the date of filing this proceedings and such account shall state names of recipients, purposes, projects expanded on in detail.
   
6. An order that the second defendant given and file in court a complete account of all monies received from the State from 1982 up to June 1992 and such account shall state in precise the names of recipients, purposes, and projects expended on.
   
7. An order that the Department of Administrative Services responsible for the disbursement of such funds and of keeping records of the expenditure of the funds give and file in Court all returns submitted by both defendants in their respective term of office.
   
8. An order that such accounts be taken and filed one month prior to the issuance of the Writ for the 1997 General Elections.
   
9. An order that the accounts given and filed be verified and or confirmed to the plaintiff’s and the people of Tambul-Nebilyers’ satisfaction by an independent body, either by the Auditor General’s Office or the Ombudsman Commission.
   
10. An order that should the defendants fail to give such account, they be barred, restrained or refrain from being nominated to contest and consequently elected to hold any public office.
    

There is a notice of intention to defend filed. Mr. Kwimberi on behalf of the second defendant submitted that before the plaintiff summon other parties to produce documents, the court must satisfy itself whether there is a cause of action. The proceedings have been misconceived in that the defendants are by law made accountable. He submitted that the plaintiff is asking the court to interfere with the executive arm of the Government to duplicate the services of the State and the Ombudsman Commission. First and second defendants are accountable and has since been accountable to the appropriate authorities such as the Department of Administrative Services and the Ombudsman Commission. Those documents are public and he has access to them unless those authorities refuse to do so.

His second argument is that the court is going to intervene in the executive function of the Government and would obviously disturb good administration and good government because it will open the floodgates to anybody to approach the Court to ask for such relief. The Government in its wisdom has instituted authorities in which the defendant will be accountable for example, the Ombudsman Commission, Department of Administrative Services - and do represent the people and the plaintiff as well.

He therefore submitted that this proceeding is misconceived, frivolous and vexatious as it is wasting Court’s time, defendant’s time and money. He therefore asked that the matter be dismissed.

Mr Tamautai for the first defendant submitted that he had the same arguments as the counsel for the second defendant had submitted. He further added that the question on what a member does with moneys from the Rural Development Fund and the Transport Sectoral Fund is purely an administrative decision and does not call for courts to interfere.

On the question of exhausting of possible remedies, this has not been done. The plaintiff did not go to Finance Department or Department of Administrative Services, etc., but came directly to the court. Therefore, he submits the action is frivolous and agree with second defendant that it be dismissed with costs.

Mr Kumura submitted that his instructions are same as those is the fax message from the Department of Finance to plaintiff. He also follow suit with the submissions of second and third defendants.

Mr Waine who stood in for the plaintiff had requested that the matter be adjourned as the plaintiff is the lawyer in the matter and that he will be arriving in the afternoon from Port Moresby.

Mr Waine than attempted to respond to the above submission by the defendants’ counsels by saying that the plaintiff has locus standi as he is from Tambul/Nebilyer electorate. The question is whether he goes direct to the Department of Administrative Services or the Court.

I then asked Mr Waine whether he got further instructions to represent the plaintiff in order to make submission in his absence. Mr Waine said no.

Mr Kwimberi than submitted that there is no notice of motion or supplementary affidavit in support filed. All counsels objected to adjournment.

I adjourned to 1.30 pm for ruling on two matters, one of request for adjournment of the proceedings and second of ruling on the defendant’s submissions.

At 1.30 pm Mr. Waine advised that plaintiff is still unable to make it from Port Moresby. He is on waiting list for 3.00 pm flight so he requested another adjournment.

Mr Kwimberi then responded by objecting to further adjournment. His submission is that the plaintiff has summoned persons to appear and produce documents. The court has jurisdiction to consider whether there is a cause of action as per the originating summons and that the court has discretion to exercise its discretion on this issue.

Mr Kera from the Department of Administrative Services appeared in person and advised the Court that he was one of the persons summoned to appear and it is costing him over K1,000.00 to appear. If the matter is to be adjourned, it should then be to March next year for him to appear again.

I made the following oral rulings:

1. Application to adjourn refused.
   
2. The proceedings are pre-mature and misconceived, as other ways have not been exhausted by the plaintiff in obtaining the documents requested.
   
3. As it is a matter that is asking this court to interfere with the executive arm of the Administration and Government, I refuse the applications sought in the originating summons.
   
4. I order costs against the plaintiff to be taxed if not agreed.
   

I now write my reasons in full after being requested by one of the counsel’s of the defence.

In my oral ruling, I said the following:

I have looked at the orders sought in the originating summons and they’re really going into an area where the court will be asked to interfere in the proper administration of the government. We have got various governmental authorities such as the Ombudsman Commission, Auditor General, Internal Revenue Commission, Finance Department and Administrative Services Department all these have various duties to perform in the system. Even the National Parliament has it’s own system where parliamentary administrative services cater for the members and how they request - how they administer their own funds allocated to them either EDF or whatever electoral development funds and whatever they have or whatever the government has allocated to them as part of the allocations to them for them to perform their duties as members in various electorates. Now, all these various divisions, departments, authorities have a system in place already. Now the documents requested through by order of this court to direct them to give, there is nothing in the file saying there were attempts made to go through those before these orders can be given. The court is the last resort – court should not be the first avenue. When people want to do these things they must go through the system first. Failing that, exhausting all the remedies, all the avenues, then you can come to court and say, "look, I have done all this, no one is listening to me, can the court assist," subject to proper procedures and legal requirements court will consider, not in this sort of situation here. The orders sought goes back to 1986 and 1987 right up to now. It is a very long period and the only reason I can see from the documents is that plaintiff just want to know whether these officers - these two members, the defendants, first and second defendants, have properly accounted for the funds allocated to them. That appears to be the only reason. We can get it from the various people concerned - there is no other reason.

Now as to the issue of locus standi, I am not going to say anything because there was nothing on that. The affidavit of the plaintiff does say something on that but that is an issue, which I have not heard anything on, but just on the question of whether this is the right step to take. I am of the view that plaintiff may be asking this court to do something which it should not be doing.

I make the following rulings:

(1) The application to adjourn is refused.

(2) Proceedings are misconceived, as the plaintiff in obtaining the documents requested has not exhausted other avenues.

(3) As it is a matter that is telling this court to interfere with the executive arm of the administration, I refuse the applications. I therefore dismiss the proceedings.

(4) And finally, I award the cost against the plaintiff to be taxed, if not agreed.

I understand that the plaintiff is having difficulties with his flight hence he is not here but in the nature of this matter it is very important that parties must be present. The other party has acted on that, they have appeared and that is very serious - they have already incurred costs therefore I order costs in this regard. So that is all. Now, he can always appeal if he is not happy with the decision.

The plaintiff also summoned three Departmental heads as noted above namely, Rupa Mulina of Finance Department, Julius Piele Kera of Administrative Services Department and Miria Ume of Transport and Works Department to produce certain documents. This I set out as per the Schedule in summons for production:

1. The files containing the acquittals submitted to your office by former MP of Tambul Nebilyer Open Electorate, Mr Thomas Nikints on the Expenditure of all Electoral Development Funds (now Rural Action Program Funds) for the years commencing in 1982 and ending in 1992 inclusive.
   
2. The files containing the acquittals submitted to your office by current member of Parliament for Tambul Nebilyer Open Electorate, Mr Vincent Auali on the Expenditure of all Electoral Development Funds (now Rural Action Program Funds) for the years commencing in 1992 and ending in 1996 inclusive.
   

All three summons for production contained the above schedule, which are similar in wording.

In addition to what I have said in my oral ruling, I adopt the views expressed by His Honour, Woods, J in The Application of Paul Undipe [1991] PNGLR 297 and repeated in subsequent two cases of Dickson Wari and Rex Wanjil v The Police Appeal Tribunal (Unreported) N1258, and Kuringi Nepo v The Police Appeals Tribunal (Unreported) N1256 both of 1994 that:

"Whilst the National Court can review such disciplinary findings the Court must be sure that there has been an error or a miscarriage of justice before it should interfere in the internal operation of a Disciplined Force. It was open to the Commissioner to find disgraceful conduct, and the Appeal Tribunal has agreed with that. In reviewing the decision of Executive arms of Government and the internal decisions of Disciplined Forces the National Court must not be seen to be interfering in the operation of responsible government and the operation of authorities given their own status and role under the Constitution. The power to intervene with or set aside executive policy runs counter to the theory of responsible government. This court cannot merely interfere in administration decisions of the Executive or Disciplined Forces merely because on the facts the Court may have formed a different view. If the National Court does that it becomes no more than a part of the Administration or Force and thereby loses its distinctive and independent character. I must be careful not to step into the shoes of the Commissioner in the case before me now. I can only interfere if I am clearly satisfied that there has been a miscarriage of justice in the internal operation of the Police Force." (Emphasis added).

Although the above principle is based on the facts of a judicial review application of policemen in the Police Force, it is also applicable here. That is, the power to intervene with the executive policy runs counter to the theory of responsible government. This court cannot merely interfere in Administration decisions of the Executive merely because on the facts the Court may have formed different view and ordered the documents in question to be delivered to the plaintiff. If the court does that it becomes no more than a part of the Administration and thereby loses its distinctive and independent character. I must be careful not to step into the shoes of the Ombudsman Commissioner, Department of Finance and Department of Transport and Works and Parliamentary Administrative Services. The Constitution has provided for separation of powers, duties or functions of each arm of the Government and also created Statutory Authorities such as the Ombudsman Commission to properly monitor activities of leaders. If the plaintiff feels aggrieved by action of the first two defendants, he should refer them to the Ombudsman Commission who has very wide powers to do such investigations.

For the above reasons, I have made orders accordingly.

Lawyer for plaintiff: Kil Lawyers.
Lawyer for first defendant: Tamutai Lawyers.
Lawyer for second defendant: Dowa Lawyers.
Lawyer for third defendant: Solicitor General.