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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 444 OF 2014
BETWEEN:
SAM KOIM, the Chairman of Task Force Sweep
Plaintiff/Applicant
AND:
HON. PETER O'NEIL - as Prime Minister & Chairman
of the National Executive Council
First Defendant
AND:
THE NATIONAL EXECUTIVE COUNCIL
Second Defendant
AND:
HON. ANO PALA, Minister for Justice & Attorney General
Third Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Gavara-Nanu, J
2014: 10, 11, 16 & 28 July
PRACTICE AND PROCEDURE – Judicial Review – Stay – National Court Rules; Order 16 r. 3 (8) (a) – Principles relating to Stay discussed.
PRACTICE AND PROCEDURE – Judicial Review – Pleadings – National Court Rules; Order 16 rr. 3 (2) (a) and 13 (2) – Motions (Amendment) Rules, 2005 r. 9 – Requirements of the rules – Substantial compliance with the rules – National Court Rules; Order 1 rr. 7 and 8 – Amendments to processes – Direction by the Court to amend processes – Whether proceedings incompetent and an abuse of process – Amendments to processes not prejudicial to the respondents – Non-compliance amounting to procedural irregularities – Proceedings not incompetent or an abuse of process.
Cases cited:
Papua New Guinea cases
Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (2012) N4902
Alois Kingsley Golu v. National Executive Council (2011) N4425
Asakusa v. Kumbakor (2008) N3303
Bougainville Copper Ltd v. Commissioner General of Internal Revenue (2009) SC1020
Dr Allan Marat and The State v. Hanjung Power Ltd SC 1357
Duma v. Meier (2007) SC 898
Halifax Group of Companies Ltd v. Papua New Guinea Land Board (2012) SC 1150
Gabriel Yer, Secretary for Department of Finance v. Peter Yama (2009) SC990
Gabriel Yer, Secretary for Department of Finance v. Peter Yama [2009] PGSC 28; SC 996
Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279
Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (OS JR. 64 of 2014) 17 March, 2014
In re. Constitution Section 19 (1) – Special Reference by Dr Allan Marat [2012] PGSC 20
Isaac Lupari v. Sir Michael Somare and Ors N3476
Isaac Lupari v. Sir Michael Somare and Ors SC1071
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Les Curlewis and Ors v. David Yuapa (2008) SC1274
Luke Yaluma v. The State (2010) N4088
Markscal Limited v. Mineral Resources Development Co. Ltd [1996] PNGLR 419
Momis v. Attorney General [2000] PNGC 15; N1951
National Capital District Commission v. Yama Security Services Pty Ltd [2003] PGSC 7; SC 707
PAC LNG International Ltd and Ors v. SPI (208) Limited and Ors (OS. JR. 177 of 2014) 22 April, 2014
Peter Makeng v. Timbers (PNG) Ltd N3317
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC 1075
Robison v. National Airlines Commission [1983] PNGLR 476
The Honourable Peter O'Neil v. Ombudsman Commission of Papua New Guinea N5642
The Independent State of Papua New Guinea v. Phillip Kapal [1987] PNGLR 417
Tiensten v. Koim [2011] PGNC 127; N4420
Vincent Kaupa v. Simon Poraituk (2008) SC 955
Water Board v. National Capital District Interim Commission (1990) N864
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Overseas Cases cited:
Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R 1155
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 W.L.R 722
R.v Secretary of State for Education and Science, exp. Avon County Council [1991] 2 All E.R 282
Counsel:
M. Nale with C. Karaiye, for the plaintiff
M.M. Varitimos QC with W. Kapipi, for the first defendant
R. Habuka, for the second defendant
N. Tame, for the third and fourth defendants
28th July, 2014
1. GAVARA-NANU J.: This is an application by the plaintiff to stay two decisions of the National Executive Council (NEC) made on 18 and 24 June, 2014 respectively. The decision of 18 June, 2014 which is No. 191 of 2014, abolished the Investigation Task Force Sweep (ITFS) chaired by the plaintiff with immediate effect and the decision of 24 June, 2014, No. 196 of 2014, established the Interim Office of Anti-Corruption (IOAC) which was to replace the ITFS. In the 24 June, 2014, decision the ITFS was also directed to transfer all its working files to the new IOAC. Former Judge Graham Ellis was appointed to head the IOAC. The IOAC was to operate initially for six months with a possibility of its term being extended.
2. The brief background of how the ITFS became established and how it has been working up to its abolition are these: on 11 August, 2011 the NEC by its decision No. NG03 of 2011, set up an investigation team to investigate corrupt deals allegedly committed within the Department of National Planning and Monitoring. The team was also tasked to investigate the controversial K125m funding for Kokopo Community Projects. The same NEC decision also established a multi-agency investigation team comprised of public servants, key technical advisors and members of the Royal Papua New Guinea Constabulary (Police Force). This team later became commonly known as the Investigation Task Force Sweep (ITFS), with the plaintiff as its Chairman. The decision by the NEC to appoint the ITFS was following a Policy Submission made to the NEC which recommended setting up of a National Anti-Corruption Alliance which would fight corruption at all levels of public and private sectors. The ITFS had its Terms of Reference which defined the scope of its work.
3. In the same meeting on 11 August, 2011, besides approving ITFS' Terms of Reference the NEC also appointed members of ITFS.
4. The following people were appointed as ITFS members:
2. Deputy Chairman – Superintendent Sylvester Kalaut, Provincial Police Commander, East New Britain Province;
3. Chief Inspector Timothy Gitua, Director of Frauds and Anti-
Corruption Squad, under him were six Investigators, one Forensic expert, one Police Prosecutor, two Financial Intelligence Unit Officers
and six Mobile Squad members;
4. A lawyer from the Public Prosecutor's Office;
5. An officer with the Department of Treasury;
6. An accountant from the Office of the Auditor-General;
8. An officer of the Department of Provincial and Local-Level Government Affairs; and
9. A medical officer.
5. The following are the Terms of Reference for ITFS:
TERMS OF REFERENCE
The following are the Terms of Reference (TOR) for the Team:
(Management) Act, Public Service (Management) Act and the Criminal Code Act, etc were breached;
6. By NEC Decision No. NG 11 of 2012 in Meeting No. NG 05 of 2012, held on 27 January, 2012, and pursuant to the Policy Paper No. NG 15 of 2012, the NEC among other things:
7. The plaintiff as the Chairman and head of ITFS put together an Operational Guidelines for ITFS' use. The Guidelines became known as Operational Orders. Those Orders were approved by the NEC in its Decision No. NG31 of 2011 on 14 September, 2011.
8. The ITFS also devised a "modus operandi" for allocation of cases to its investigation teams. Each investigation team had a leader. The investigation teams were set up under ITFS' Operational Orders.
9. On 27 January, 2012, the NEC by its Decision No. NG 10 of 2012 extended ITFS' Terms of Reference. Under its Terms of Reference, the ITFS was also empowered to investigate cases that the Government and the members of the public referred to it. In the same meeting on 27 January, 2012, the NEC in its Decision No. 11 of 2012, approved the establishment of a permanent office for ITFS and instructed the Department of Personnel Management to review and approve the ITFS structure. The plaintiff was involved in that exercise with a couple of his key technical advisors, namely Mr. John Toguata and Mr. Andrew Felton of PNG Law and Justice Sector Program.
10. The ITFS structure was approved in the middle of 2012 by the Central Agencies Co-ordination Committee (CACC) chaired by the Chief
Secretary. The ITFS structure was to provide a framework for ITFS to eventually attain a Departmental status which would then eventually
lead to the creation of a permanent Anti-Corruption Agency through constitutional amendments. The ITFS structure was to be based
on a Cabinet Submission made by the Department of Personnel Management. The Submission was to be jointly sponsored by the Minister
for Public Service and the Prime Minister.
11. On 21 February, 2013, the NEC by its Decision No. 48 of 2013, approved a recruitment drive for ITFS to recruit more staff. The
ITFS subsequently carried out its recruitment exercise with the assistance of its technical advisors.
12. On 13 May, 2013, the Prime Minister issued a Prime Ministerial Directive to Ministers Hon. James Marape (Finance); Hon. Sir Puka Temu (Public Service); Hon. Kerenga Kua (Justice); Hon. Nixon Duban (Police); Hon. Don Polye (Treasury) and Hon. Charles Abel (National Planning and Monitoring), directing them to investigate all the payments made to law firms by the State in legal fees and all the out of court settlements endorsed by the Department of Finance. In that directive the Prime Minister stressed that the Attorney-General is the only authority that can brief out work to legal firms and authorize settlement of legal fees, including out of court settlements. The Prime Minister among other things gave the following direction:
"In view of the seriousness of this matter, a high level investigation must be conducted into the legality of the payments and settlements. The investigating team should be made up members of Task Force Sweep and Police Fraud Squad, with the support of the Australian Federal Police and Interpol".
13. The affidavit sworn by Sergent Michael Awagl of National and Anti-Corruption Division of the Department of Police, who is the ITFS Police Prosecutor, shows that currently there are at least 27 high profile cases pending prosecution, Paul Paraka and his alleged accomplices are part of this group. Most, if not all the accused have been charged with misappropriation, conspiracy to defraud, official corruption and abuse of office, money laundering and false pretence. The amounts of money misappropriated total in the millions of Kina.
14. Sergent Michael Awagl has also adduced documentary evidence showing that some of the persons charged have filed applications in the Waigani Committal Court, seeking orders that their cases be withdrawn because ITFS having been abolished, can no longer do its work, which includes prosecuting them. One such application was made by Harvey Nii, a lawyer who is an alleged accomplice of Paul Paraka. That application has already been dismissed. More recently Sam Bonner, the lawyer acting for the Police Commissioner was also arrested and charged as an accomplice of Paul Paraka.
15. In early January, 2014, the Police National Fraud and Anti-Corruption Squad took out a warrant of arrest to arrest the Prime Minister. The warrant was later set aside by the District Court. Subsequently, the Prime Minister issued a public statement saying ITFS was the only competent body that could take out such warrants. About that time, the plaintiff advised the then Police Commissioner Toami Kulunga, in a brief, that evidence against the Prime Minister was weak.
16. On 5 May, 2014, after receiving new evidence against the Prime Minister, the plaintiff submitted another brief to the Police Commissioner. Subsequently, on 12 June, 2014, the Police obtained a warrant of arrest from the District Court to arrest the Prime Minister for official corruption under s. 87 (2) of the Criminal Code.
17. On the morning of 16 June, 2014, a letter written by Police Commissioner Toami Kulunga to the Prime Minister inviting the Prime Minister to attend an interview with the Police National Fraud and Anti-Corruption Squad at Police Head Quarters, Konedobu, was delivered to the Prime Minister with his warrant of arrest by Assistant Police Commissioner Thomas Eluh. The Prime Minister has since launched a number of court challenges resulting in the stay of his arrest. The Prime Minister still has not gone to the Fraud Squad for an interview. The Prime Minister has made public statements in the media claiming that the warrant of arrest issued against him was politically motivated.
18. As noted earlier, on 18 June, 2014, the NEC, in its Decision No. 191 of 2014, in a specially convened meeting chaired by the Prime Minister approved to abolish the ITFS with immediate effect. The NEC also directed all the ITFS staff to return to their previous duty stations or employment. The contractors engaged by ITFS were also terminated effectively and "immediately".
19. The following related events are also worth noting:
2. On 17 June, 2014, the following events occurred:
(a) the former Attorney General and Minister for Justice Hon. Kerenga Kua was decommissioned and replaced with Hon. Ano Pala.
(b) the new Attorney-General Hon. Ano Pala and the then Acting Police Commissioner Geoffery Vaki, instructed Messrs Paul Mawa of Paul Mawa Lawyers to act for the Police in the stay application by the Prime Minister that was before the National Court in proceeding OS No. 155 of 2014, thus replacing the Police in-house lawyer Chief Superintendent Nicholas Miviri who had been acting for the police up to that day. It is to be noted that the police had previously, through their lawyer Chief Superintendent Miviri, strongly opposed the application by the Prime Minister to stay the warrant of arrest issued against him.
(c) the new Attorney-General Hon. Ano Pala issued instructions to the Acting Solicitor-General Jubilee Tindiwi, to concede to the Prime Minister's stay application in proceeding OS No. 155 of 2014.
(d) Deputy Police Commissioner Simon Kauba held a press conference calling for the Prime Minister to voluntarily make himself available for interview with the Fraud Squad.
(e) ITFS filed an affidavit in proceeding OS No. 155 of 2014 objecting to the application by the Prime Minister to stay the execution of his warrant of arrest.
20. On 18 June, 2014, Deputy Police Commissioner Simon Kauba was removed and replaced with Jim Andrews as Deputy Police Commissioner- Operations.
21. On 21 June, 2014, Assistant Police Commissioner Thomas Eluh, who was the lead investigator in the Prime Minister's case, was suspended by Acting Police Commissioner Geoffery Vaki.
22. On 27 June, 2014, the then Acting Solicitor-General Jubilee Tindiwi was removed and replaced with Faith Barton.
23. In this case leave for judicial review was granted on 8 July, 2014. It should be noted that the lawyer for the State at that time, Ms. F. Kia, did not oppose the leave application. Following grant of leave, Mr. McRonald Nale of counsel for the plaintiff, submitted that certiorari being one of the orders sought in the application for judicial review, pursuant to Order 16 r 8 (a) of the National Court Rules (NCR), leave should operate as a stay of the two NEC decisions which the plaintiff is seeking to review. The Court decided to grant an interim stay and adjourned the matter to 10 July, 2014, for the issue of stay to be argued inter-partes. On 10 July, 2014, the parties were not quite ready, so the matter was further adjourned to 16 July, 2014, when the issue was fully argued.
24. The stay the plaintiff is seeking here is not only to stay the actual decisions that are being challenged, but also the decision making process by which those decisions were reached: R v. Secretary of State for Education and Science, exp. Avon County Council [1991] 2 All E.R 282; The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417 and Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122.
25. It is a settled principle that whilst a stay order may be technically different to an injunctive order, they are same in that they both operate to preserve the status quo until the full hearing: Vincent Kaupa v Simon Poraituk (2008) SC955 and Peter Makeng v. Timbers (PNG) Limited [2008] PGNC 78; N3317. Thus, the principles applicable to an injunction may be applied in deciding the issue of stay. Stressing this point Lay J, in Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831 said:
"Most of the English, Australian and PNG cases from which the above principles are established are cases on preservation of property and business rights in actions in torts. They are general principles however they are equally applicable in judicial review proceedings where the court is asked to consider the grant of stay following grant of leave, under Order 16 Rule 3 (8)".
26. In Yama Group of Companies Ltd, the learned trial judge formulated nine factors which the court should consider when deciding whether or not to grant an injunction. Those factors apply generally and may be applied in a stay application under Order 16 r 3 (8). Clearly not all these factors are applicable to this case. In the leading case of Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279, the Supreme Court formulated ten factors. Again not all those factors can apply in every situation, only those which are relevant to the merits of the particular case; and when particular factors are applied they should in their collective application enable the Court to reach a fair decision and do justice in the case: Gabriel Yer, Secretary for Department of Finance v. Peter Yama (2009) SC990 and Bougainville Copper Ltd v. Commissioner General of Internal Revenue (sic.), (2009) SC1020.
27. A stay as an equitable remedy is discretionary, but the exercise of the discretion in deciding whether, for example to grant or to refuse a stay as in this case, must be based on proper principles and on proper grounds.
i) whether leave for judicial review has been granted;
ii) whether an undertaking as to damages has been filed;
iv) the nature of the decisions sought to be stayed;
v) financial ability of the applicant;
vi) whether there is a serious issue to be tried;
vii) where does overall interest of justice lie;
viii) balance of convenience; and
ix) whether damages would be sufficient remedy.
29. Before I decide the issue of stay, I need to first address the submissions made by Mr. Mal Varitimos QC, of counsel for the first defendant. His submissions were limited to competency of the proceeding. He tried to demonstrate that the proceeding is incompetent by attacking the competency of the originating summons, the notice of motion and the Statement in Support. It was submitted that these processes are defective for not complying with the requirements of the relevant Rules under Order 16 of the NCR. He argued that non-compliance with these Rules by the plaintiff are so serious that they render the application incompetent and the proceeding should be subject to summary determination under Order 16 r 13 (2). In his submissions he did not specifically address the issue of stay. His submissions were focused more on attacking the competency of the proceeding. His approach, as I understood it, was that it was not necessary for him to address the issue of stay or the factors which are relevant to the issue of stay because the proceeding is incompetent and an abuse of process, and should be dismissed.
30. Firstly, it was argued that the originating summons is incompetent because it seeks substantive relief besides leave. For this argument reliance was placed on Peter Makeng v. Timbers (PNG) Ltd (supra). The competency of the amended originating summons was attacked for the same reason. It was also submitted that the plaintiff's failure to file a substantive notice of motion under Order 16 r 5 after the plaintiff was directed by the Court to do so is fatal to the plaintiff.
31. Secondly, again relying on Peter Makeng it was submitted that the notice of motion pursuant to which leave was sought and obtained is also incompetent because besides seeking leave it also sought stay and other interlocutory relief.
32. Thirdly, it was argued that the other reason why the notice of motion is incompetent is because it also seeks substantive relief.
For this argument reliance was placed on Momis v. Attorney-General [2000] PNGC 15; N1951; National Capital District Commission v. Yama Security Services Pty Ltd [2003] PGSC 7; SC707, Duma v. Meier (2007) SC898; Yer, Secretary for Department of Finance v. Yama [2009] PGSC 28; SC996; PAC LNG International Limited and Ors v. SPI (208) Limited and Ors (OS. 177 of 2014), 22 April, 2014, and Agmark Pacific Limited v. Cocoa Board of Papua New Guinea [2012] N4902.
33. Fourthly, it was submitted that the amended originating summons and the amended notice of motion are also incompetent and an abuse
of process because they seek identical relief. For this argument, reliance was placed on PAC LNG International Limited and Ors v. SPI (208) Limited and Ors (supra) and Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (supra). In Agmark Pacific Limited, the learned trial Judge, Kariko J, said:
"To my mind, there is another reason why the relief sought in the motion should be refused.
The notice of motion seeks orders for the appointment of a receiver to hold and manage the assets of the Cocoa Board to satisfy the Judgment Debt. These are essentially the same orders sought in the originating summons.
Order 4 Rule 49 (9) of the NCR states that except as otherwise expressly provided by the Rules; motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.
It is well settled rule of practice and procedure that the notice of motion procedure should not be used as a vehicle to obtain substantive relief. This rule was codified as a result of the National Court decision of Kapi DCJ in Momis v. Attorney-General [2000] PNGLR 109 and the Supreme Court decision in NCDC v. Yama Security Services Pty Ltd (2003) SC707". (my underlining).
34. Fifthly, it was also submitted that the Statement in Support is also incompetent because it is unsigned, thus is in breach of Order 2 r 30 of the NCR. It was argued that this defect affects the competency of the whole proceeding because the Statement in Support is part of the process that commences a proceeding. For this argument reliance was placed on Asakusa v. Kumbakor [2008] N3303.
35. The sixth line of argument attacked the competency of the whole proceeding on the basis that it seeks to review the decisions of the NEC which are either non-justiciable or are at least not of a kind that the Court should interfere with. It was argued that the decision to establish the ITFS was a policy decision and ITFS not being a creature of a statute or a constitutional law, it was within NEC's power to abolish the ITFS by another policy decision and the Court has no power to interfere with the decision. It was submitted that the Court cannot interfere with the decisions of the NEC as a matter of principle and law based on the doctrine of separation of powers as entrenched in s. 99 (2) and (3) of the Constitution. For this argument reliance was placed on Tiensten v. Koim [2011] PGNC 127; N4420 and Golu v. National Executive Council [2011] PGNC 134; N4425; Isaac Lupari v. Sir Michael Somare N3476; Waterboard v. National Capital District Interim Commission (1990) N864 and Helifax Group of Companies Ltd v. Papua New Guinea Land Board (2012) SC1150.
36. The seventh and final argument was that the plaintiff's contract had expired before this proceeding was filed therefore he cannot continue working for ITFS. It was also submitted that the plaintiff cannot seek specific performance against the State. The Court was urged to exercise its inherent jurisdiction in favour of the defendants and refuse the plaintiff's application for a permanent stay of the subject decisions. It was argued that the plaintiff's remedy lies in damages. The case of Isaac Lupari v. Sir Michael Somare (supra) was relied upon for this submission. It was also argued that leave having been granted after only a cursory examination of the materials that were before the Court, now that the Court having had the benefit of full arguments based on added materials, and the defendants having demonstrated that there is no serious issue to be tried, there is no basis for the interim stay to be made permanent.
37. Turning now to the submissions by Mr. Nale, it was submitted at the outset that this proceeding would be futile if the decisions being challenged are not stayed permanently.
38. Mr. Nale discussed five factors as grounds to make the interim stay permanent. The five factors are:
i) whether there are serious questions to be tried;
ii) balance of convenience;
iii) whether damages would be adequate remedy;
iv) undertaking as to damages; and
v) the overall interests of justice.
39. All these factors fall within the nine factors I have deduced for consideration in this case. Thus, to address the factors discussed by Mr. Nale it suffices for me to address the nine factors I have deduced.
(i) Leave and Undertaking as to Damages
40. From the nine factors 'Leave' and 'Undertaking as to Damages' can be easily disposed of. In regard to 'Leave' it has already been granted to the plaintiff to seek judicial review, it therefore does not arise for further determination. In regard to 'Undertaking as to Damages' it has already been filed and served by the plaintiff, therefore it too does not arise for determination. It follows that the Court must find in favour of the plaintiff in regard to these two factors.
(ii) Possible hardship, inconvenience or prejudice to either party
41. Whilst it is true that ITFS was established by a policy decision of the NEC and not under any statutory or constitutional law, the fact that the NEC decision was to abolish the ITFS with immediate effect would clearly cause hardship, inconvenience and prejudice to the plaintiff more than the defendants. In considering this factor I have had regard to the fact that members of ITFS were appointed from various Government Departments and agencies with specific Terms of Reference. They have charged and prosecuted many high profile cases, some of which have resulted in conviction and offenders jailed, while other cases are still pending. Many have been charged with stealing millions of Kina. Paul Paraka alone has been charged with stealing 71 million Kina from the State. This and other cases for Paul Paraka's accomplices are still pending prosecution. The members of ITFS have been told to return to their previous employment immediately. Contractors engaged by ITFS had been terminated effectively and immediately. All these kinds of treatment clearly are likely cause hardship, inconvenience and prejudice to the plaintiff. Any hardship, inconvenience and prejudice that NEC may suffer if stay is granted are minimal, if any, compared to that which the members of ITFS will suffer.
(iii) The nature of the decisions sought to be reviewed
42. The two decisions sought to be reviewed are administrative decisions of the NEC. In Alois Kingsley Golu v. National Executive Council (2011) N4425, this Court said the decisions of the NEC may be reviewed if such decisions are made in excess of its powers or are unreasonable in the Wednesbury sense. The NEC decisions can also be reviewed if they were made in bad faith: Dr Allan Marat and The State v. Hanjung Power Ltd SC1357. These principles have been affirmed and applied in many other cases: The State v. Philip Kapal (supra) and In re Constitution Section 19 (1) – Special Reference by Dr Allan Marat [2012] PGSC 20. Given that ITFS was abolished with immediate effect with its members being told to return to their previous work stations or employment, the issues of unreasonableness, ultra vires and bad faith in regard to the subject decisions and the process by which these decisions were reached are strong and bona fide, they are not speculative. These factors clearly deserve a permanent stay.
(iv) Financial ability of the plaintiff
43. This issue does not arise because the plaintiff and the members of ITFS are either public servants or are servants and agents of the State. They were appointed by the NEC. What is at stake here is the security of the files relating to the criminal cases that ITFS has investigated and prosecuted under its Terms of Reference. The files relate to persons who have committed offences against the State, hence the people of Papua New Guinea. In this regard, the Undertaking as to Damages is only to meet the requirement of a stay.
(v) Whether there is a serious issue to be tried
44. In The Honourable Peter O'Neil v. Ombudsman Commission of Papua New Guinea N5642, this Court held that the fact that the Court has already found an arguable case or a serious issue to be tried at the leave stage is a relevant matter to be taken into account in a subsequent application for a stay, if after the grant of leave the materials upon which an arguable case or a serious issue to be tried was found, had not changed substantially. In this case I do not think the materials which the Court had regard to at the leave stage have changed much. That is not to say that the plaintiff no longer has the onus to prove a serious issue to be tried. The plaintiff still has the onus to prove that there exists a serious issue to be tried and show that his case has a real possibility of succeeding. The plaintiff must show that he has a strong and a bona fide case based on the evidence presented and that it deserves a permanent stay. The plaintiff's chances of succeeding must not be based on speculation: Robinson v. National Airlines Commission [1983] PNGLR 476 at 482; Markscal Limited v. Mineral Resources Development Co. Ltd [1996] PNGLR 419 and Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1075. Applying these principles to this case, the plaintiff has in my view demonstrated on evidence that he has a strong and bona fide case which deserves a permanent stay.
(vi) Overall interest of justice
45. Where does the overall interest of justice lie? As noted, ITFS is not just an ordinary body. It is a body especially and specifically set up by the NEC to fight corruption at all levels of public and private sectors. ITFS has its Terms of Reference to guide it in its work. It has special funding by the Government, and is staffed by senior public servants, technical advisors and experts. Some of the staff are from the Police National Fraud and Anti-Corruption Squad, Senior Police Detectives, Prosecutors and Forensic experts. These people are specially trained with special skills and expertise in their own fields. Together as ITFS members under the chairmanship of the plaintiff, they have investigated, charged and prosecuted many high profile cases. As noted, some have been found guilty and are serving time in gaol. Some investigations are ongoing. Some of those charged have allegedly stolen money from the State in the millions. One of them is Paul Paraka who has been charged with stealing 71 million Kina from the State. His accomplices have also been charged with stealing money from the State in hundreds of thousands and millions of Kina. In the circumstances the Court is of the firm view that the interest of justice favours a permanent stay.
(vii) Balance of convenience
46. Clearly from the observations I have made in regard to the foregoing factors, including the views I have expressed regarding "the overall interest of justice" the status quo needs to be maintained. If the stay is lifted there is a serious and a real risk of the files relating to ongoing investigations done by the ITFS being lost, misplaced, tampered with or even destroyed. There cannot be a guarantee that those files will be safe because they will be out of ITFS' control and custody. If these files are lost, or destroyed or even tampered with, the end result is that many who have been charged with serious criminal offences against the State will escape justice. If this happens, the State viz; the people of Papua New Guinea will suffer serious injustice. Clearly the balance of convenience favours a grant of a permanent stay.
(viii) Whether damages would be sufficient remedy
47. The decision to abolish the ITFS was made with immediate effect. The members of the ITFS were told to return to their previous employment "immediately" and the contractors engaged by ITFS were also terminated effectively and "immediately". The events leading up to the NEC decisions to abolish the ITFS also raise serious and bona fide issues as to how ITFS members were treated. This is a strong factor which warrants a permanent stay: Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R 1155 at 1160; [1982] 3 W.L.R 141 at 143. I think what is relevant and critical in deciding this issue is what damages would be suffered and by whom. It is clear that the State will be the one to suffer irreparable damage if ITFS files are lost, damaged or tampered with. All the hard work that ITFS has put into those cases and time and money spent to do such work will be a total waste and the people accused of committing serious crimes will not be brought to justice. Clearly, damages will not be a sufficient remedy.
48. It follows that when considering Mr. Nale's submissions alone, I am satisfied that the plaintiff has made out a strong case for the interim stay to be made permanent. However, this is not the end of the matter as I still have to consider the competency issue raised by the first defendant. Although this issue is not relevant in an application for a stay, since it has been raised with the related issue of an abuse of process, I need to consider and decide the issues.
49. Thus turning now to the submissions made by Mr. Varitimos, QC, it was submitted that the originating summons, the notice of motion and the Statement in Support are incompetent because they have not been pleaded properly. The submissions were based on the claim that pleadings in these processes do not comply with the requirements of the relevant Rules under Order 16 and Order 2 r 30 of the NCR. Order 2 r 30 has been raised because the original Statement in Support has not been signed. When this issue was put to Mr. Nale he told the Court that his copy of the Statement in Support had been signed but could not explain why the original copy in the Court file has not been signed. This issue was raised for the first time in Court by the counsel for the first defendant. There is no dispute that the amended Statement in Support has been signed.
50. It is important to note that the issue of competency relates to the amended originating summons, Statement in Support and notice of motion. These processes were amended following directions given by the Court. So what the Court has to consider here is whether the amended processes are incompetent. In regard to the pleading in the amended originating summons one must first consider as to what has been pleaded. In Peter Makeng v. Timbers (supra) in paragraph 7 of the judgment, the learned trial Judge, Injia DCJ (as he then was) said:
"In terms of the procedure for grant of leave for judicial review, and application for judicial review is made by a Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized". (my underlining).
51. I respectfully agree with his Honour. In this passage his Honour was partly stating the requirement of Order 16 r 3 (2). It is important to note that the Rule only provides for an application for leave for judicial review to be made by originating summons. The Rule is silent on what an originating summons should contain or how an originating summons should be pleaded, a notice of motion on the other hand is required under r. 9 Motions (Amendment) Rules, 2005, to plead or seek interlocutory relief only, so as a Statement in Support which is specifically required under Order 16 r. 3 (2) (a), to set out the name and description of the applicant, the relief sought and the grounds for review.
52. Judicial review is a public law remedy regulated by Order 16 of the NCR, which was adopted from Order 53 of the United Kingdom Supreme Court Practice Rules, 1993. It should be noted that the current Order 53 (UK) replaced the old Order 53 by amendment to make the procedural requirements easier and flexible. It follows that Order 16 should also provide procedural requirements which are easier and flexible to follow and apply. It should also provide a uniform and a comprehensive code of procedure. The Rules in this way, should and do give the National Court a wide discretionary power in the exercise of its supervisory jurisdiction: Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 W.L.R 722 at 735 and 743. However, it appears that in practice, despite this clear legislative intent most procedural aspects under Order 16 remain unclear, this has in my view resulted in the lack of uniformity in pleadings. Some of the uncertainties regarding procedure have been addressed through judicial pronouncements, ironically though such pronouncements have also given rise to divided judicial opinions on procedural issues, including pleading.
53. Judicial review involves the exercise of equitable supervisory jurisdiction thus, the application of the Rules by the Court should not be rigid: Les Curlewis and Ors v. David Yuapa (2008) SC1274. The Rules should be flexible in their application and be the means to do justice, so that where there is a defect or irregularity in the pleadings, or an omission or a non-compliance with the requirements of the Rules, if such defect, omission, irregularity or non-compliance do not result in the prejudice to the opposing side, then such defect, omission, irregularity or non-compliance should be remedied with amendments. In Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (OS JR. 64 of 2014) 17 March, 2014), this Court in the exercise of its discretion under Order 1 rr. 7 and 8 of NCR, allowed the plaintiff to amend the originating summons to plead the subject decision which had not been pleaded. The amendment was allowed because the subject decision was pleaded in the Statement in Support. The Court was of the view that this was substantial compliance with the Rules. Furthermore, the amendments did not prejudice the opposing party.
54. The liberal and flexible application of the Rules by the Court is in my view, demonstrated clearly in John Momis v. Attorney-General (supra) and Luke Yaluma v. The State (2010) N4088. In John Momis v. Attorney-General, the plaintiff sought substantive relief in a notice of motion, the learned trial Judge, Kapi DCJ (as he then was) said that was an abuse of process. His Honour said:
"So far as the balance of the motion is concerned, it seeks orders in exactly the same terms as the originating summons. Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the Rules. I suspect that these orders are sought in the notice of motion to determine the issues raised in the originating summons in a speedy manner. In my opinion, this is an abuse of the process of the court and I would dismiss the balance of the motion on this basis". (my underlining).
55. Two things are clear from this passage. First, the applicant not only pleaded the substantive relief in the notice of motion but also sought them by seeking to have the substantive issues determined in a "speedy manner". Second, the whole motion was not dismissed, only the "balance" of the motion that offended against the Rules was dismissed.
56. In Luke Yalume v. The State, the whole notice of motion was dismissed for abuse of process because it not only pleaded the substantive relief but also sought the relief. See also NCDC v. Yama Security Services Pty Ltd (supra). In these cases the applicants tried to do a "short cut" by making applications for the substantive relief to be determined to avoid going through trial. There cannot be any doubt that these were cases of blatant abuse of process.
57. This case is different from the cases cited above including Agmark Pacific Ltd in which a notice of motion "was used as a vehicle to obtain substantive relief". In this case firstly, in the originating summons, the plaintiff has pleaded leave and the jurisdictional basis of the Court to grant leave; secondly, in the notice of motion, the plaintiff has also pleaded leave and the jurisdictional basis of the Court to grant leave. In both processes the substantive relief have been pleaded but not sought. That is the difference between this case and the cases cited above. In this case no application was made under the notice of motion for the substantive issues to be determined. The pleadings in the two processes may not have strictly complied with the requirements of the Rules, especially the notice of motion, but they do not in any way, at least not in any substantive way, prejudice the defendants. In regard to the Statement in Support, the amended Statement in Support has been signed. I am therefore of the firm opinion that the processes in question have been sufficiently pleaded and having regard to the provisions of Order 1 rr. 7 and 8 of the NCR, I find that the proceeding is not incompetent and is not an abuse of process.
58. The first defendant elected to argue the issue of competency only. He really did not respond to the submissions by the plaintiff on the issue of stay. The end result is that the findings I made in favour of the plaintiff on the issue of stay prevail. I made this finding after having rejected the argument by the first defendant that the proceeding is incompetent and an abuse of process. There is no need for me to decide the other issues raised by the first defendant: Isaac Lupari v. Sir Michael Somare SC1071. Nonetheless, it is sufficient for me to state that those issues like the issues of competency and an abuse of process are irrelevant to the issue of stay.
59. It follows that the Court must find in favour of the plaintiff. The Court therefore orders that the interim stay granted on 8 July, 2014, be made permanent.
60. The effect of this Order is that the NEC Decisions respectively Numbered 191 and 196 of 2014, which were respectively made on 18 and 24 June, 2014, in which the NEC decided to abolish the ITFS and for ITFS to transfer all its working files to the new Interim Office of Anti-Corruption (IOAC) to be headed by former Judge, Graham Ellis are permanently stayed until the said decisions are heard and fully determined by the Court.
61. The plaintiff's costs of and incidental to the application be paid by the defendants.
62. Orders accordingly.
___________________________________________________
Jema Lawyers: Lawyers for the Plaintiff
Twivey Lawyers: Lawyers for the First and Second Defendants
Nicholas Tame Lawyers: Lawyers for the Third and Fourth Defendants
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