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N5843 O'Neill v Kaluwin [2015] PGNC 69; N5843 (8 January 2015)

N5843


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO 810 0F 2014


PETER O'NEILL
Plaintiff


V


PONDROS KALUWIN, IN HIS CAPACITY AS PUBLIC PROSECUTOR OF PAPUA NEW GUINEA
First Defendant


THE LEADERSHIP TRIBUNAL COMPRISING THE RIGHT HONOURABLE SIR PETER BLANCHARD KNZM PC, THE HONOURABLE JOHN VON DOUSSA AO QC AND THE HONOURABLE SALATIEL LENALIA
Second Defendant


Waigani: Cannings J
2015: 7, 8 January


CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws, Constitution, Section 18 – referral by National Court of constitutional questions to Supreme Court, Constitution, Section 18(2) whether questions trivial, vexatious or irrelevant.


INJUNCTIONS – interim injunctions – orders sought to restrain Public Prosecutor from referring matter to a leadership tribunal, continuing proceedings under Leadership Code – order sought for stay of leadership tribunal proceedings – relevant considerations to take into account when determining whether such orders should be granted.


The plaintiff on 20 November 2014 commenced proceedings by originating summons, seeking declarations and injunctions regarding the decision of the Public Prosecutor to refer him to a leadership tribunal on a matter of alleged misconduct in office. The plaintiff sought, in relation to the Public Prosecutor: declarations that the Public Prosecutor is not entitled to refer that matter to the tribunal and is not entitled to bring such proceedings against him, and a permanent injunction restraining the Public Prosecutor from referring that matter to a tribunal and from continuing proceedings concerning that matter. The plaintiff also sought, through an amended originating summons, in relation to the tribunal: a declaration that it is not entitled to inquire into and determine that matter and a permanent stay of the tribunal's proceedings concerning the matter. After the appointment of the tribunal and prior to the scheduled commencement of its proceedings, 26 January 2015, and prior to commencement of the trial on the amended originating summons, the plaintiff filed on 6 January 2015 an amended notice of motion seeking two general sorts of orders: First, referral of constitutional questions to the Supreme Court under Section 18(2) of the Constitution. Secondly, interim injunctions to restrain the Public Prosecutor from proceeding with the matter and a stay of the leadership tribunal proceedings, pending final determination by the Supreme Court of various constitutional issues the plaintiff wants resolved. The Public Prosecutor opposed the making of both sorts of orders, arguing that the amended notice of motion was an abuse of process, as the question of whether any constitutional questions should be referred to the Supreme Court was properly a matter for the tribunal, which is the proper forum in which the question of referral to the Supreme Court of any constitutional questions should be raised, and the application for referral of constitutional questions, injunctions and a stay of the tribunal's proceedings was simply an attempt to prevent the tribunal from convening on 26 January 2015. This was the hearing of the notice of motion filed 9 December 2014.


Held:


(1) The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law, and, by Section 18(2) obliges the National Court, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

(2) Questions of constitutional interpretation and application have arisen in these proceedings, viz whether the Public Prosecutor, having had a matter of alleged misconduct in office referred to him by the Ombudsman Commission under Section 29(1) of the Constitution and Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership, is permitted to: (a) seek further evidence from the Commission before considering whether that the matter should be proceeded with; and (b) amend the matter that he proceeds with by for example adding to or varying the allegations of misconduct in office that relate to the matter referred to him by the Commission; and whether, if (a) or (b) is answered in the negative, a leadership tribunal would have jurisdiction in circumstances in which the Public Prosecutor refers a matter to the tribunal after, in fact, having done either of those things he is not permitted to do.

(3) None of those questions is (a) trivial, (b) vexatious or (c) irrelevant, in that they: (a) are not frivolous or unarguable or so simple and straightforward that they do not require interpretation, (b) have not been raised for any obviously improper motive or for the purpose of obfuscation or in a manner that is an abuse of process, (c) have not been determined previously or have no bearing on the outcome of the trial of the amended originating summons or are an unnecessary duplication of questions already referred to the Supreme Court for determination.

(4) The Court was therefore obliged to refer the questions to the Supreme Court.

(5) The primary considerations to be taken into account when the Court decides how to exercise its discretion whether to grant an interim injunction are: (a) are there serious questions to be tried and does an arguable case exist? (b) has an undertaking as to damages been given? (c) would damages be an inadequate remedy if the interim injunction is not granted? (d) does the balance of convenience favour the granting of the interim injunction? (e) do the interests of justice favour granting the interim injunction?

(6) Here: (a) there are serious questions to be tried and the plaintiff has a serious not merely speculative case; (b) an undertaking as to damages has been given; (c) damages would be an inadequate remedy; (d) the balance of convenience favours granting an injunction as it would reduce the risk of time, resources and effort of the Public Prosecutor and the tribunal being wasted in the event that the Public Prosecutor and the tribunal continue to perform their constitutional powers and functions, only to have the exercises of those powers and functions ruled by the Supreme Court (and perhaps by the National Court) unconstitutional; and (e) the interests of justice favour the grant of the injunction as it will not operate as a permanent restraint on the Public Prosecutor or unnecessarily encroach on the exercise of his constitutional independence, and no persons or bodies including the Public Prosecutor, the tribunal and the People of Papua New Guinea will be unduly prejudiced by its being granted.

(7) The Court therefore as a matter of discretion granted the interim injunction against the Public Prosecutor.

(8) It followed as a matter of course that the tribunal's proceedings should be stayed.

(9) Thus the orders sought for referral of constitutional questions to the Supreme Court and for interim injunctions to restrain the Public Prosecutor from proceeding with the matter and a stay of the leadership tribunal proceedings were granted. The parties were ordered to bear their own costs.

Cases cited


The following cases are cited in the judgment:


Alois Kingsley Golu v Regett Marum (2013) N5104
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118
Haiveta v Wingti (No 1) [1994] PNGLR 160
Hon Patrick Pruaitch MP v Chronox Manek (2011) SC1093
Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052
Isaac Lupari v Sir Michael Somare (2008) N3476
Lowa v Akipe [1992] PNGLR 399
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
O'Neill v Kaluwin (2015) N5839
O'Neill v Ombudsman Commission OS (JR) No 383 of 2014, 03.12.14, unreported
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
Re Public Prosecutor's Power to Request the Chief Justice to appoint a Leadership Tribunal (2008) SC1011
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379


NOTICE OF MOTION


This was an application for referral of constitutional questions to the Supreme Court and for interim injunctions and a stay of proceedings of a leadership tribunal.


Counsel


M M Varitimos QC & P Tabuchi, for the Plaintiff
N B Kubak & G B Kubak, for the First Defendant
R Yansion, for the Second Defendant


8th January, 2015


1. CANNINGS J: The Public Prosecutor proposes to refer a matter concerning the plaintiff, Peter O'Neill, the Prime Minister, to a leadership tribunal. The tribunal, comprising three members was on 27 November 2014 appointed by the Chief Justice, Sir Salamo Injia Kt GCL, to inquire into allegations of misconduct in office against the plaintiff. It is due to commence its proceedings on 26 January 2015.


2. The members of the tribunal are the Right Honourable Sir Peter Blanchard KNZM PC (as Chairman), the Honourable John Von Doussa AO QC and the Honourable Salatiel Lenalia.


3. The plaintiff, on 20 November 2014, by originating summons, commenced proceedings which challenge, on constitutional grounds, the Public Prosecutor's exercise of power and the jurisdiction of the tribunal. The Public Prosecutor is the first defendant and the tribunal comprising its three members is the second defendant. On 6 January 2015 this Court ordered that the tribunal comprising its three members be added as a defendant and granted leave to the plaintiff to amend the originating summons (O'Neill v Kaluwin (2015) N5839).


4. The plaintiff is seeking declarations and injunctions regarding the decision of the Public Prosecutor to refer him to the tribunal on a matter of alleged misconduct in office. He is seeking:


5. The plaintiff is also seeking, in relation to the tribunal:


6. The question of whether those declarations, injunctions and orders should be granted is not yet before the Court. Those remedies can only be granted after a trial. This is not the trial.


THE MOTION BEFORE THE COURT


7. While the trial of the originating summons is pending, the plaintiff has applied to this Court, by amended notice of motion filed on 6 January 2015, for two sorts of orders:


8. This is a ruling on that amended notice of motion. The Public Prosecutor opposes the motion. The tribunal neither supports nor opposes it.


Two issues arise:


(1) Should constitutional questions be referred to the Supreme Court?

(2) Should interim injunctions and a stay of the tribunal's proceedings be granted?

(1) SHOULD CONSTITUTIONAL QUESTIONS BE REFERRED TO THE SUPREME COURT?

9. Mr Varitimos for the plaintiff submits that significant questions of constitutional law are raised in the current proceedings and such questions cannot be determined by this Court. They must be referred to the Supreme Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution, which states:


Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.


10. Mr Kubak for the Public Prosecutor submits that though there are some constitutional issues involved in the current proceedings, it is unnecessary to refer any questions to the Supreme Court as the application for referral is an abuse of process. He submits that the issue of whether any constitutional questions should be referred to the Supreme Court is properly a matter for the leadership tribunal, which is the proper forum in which the question of referral to the Supreme Court of any constitutional questions should be raised. The application for referral of constitutional questions, injunctions and a stay of the tribunal's proceedings was simply an attempt to prevent the tribunal from convening on 26 January 2015. In any event, questions of the type that the plaintiff wants referred have already been referred to the Supreme Court by way of a Special Reference under Section 19 of the Constitution, made by the Principal Legal Adviser and Attorney-General, Hon Ano Pala CMG MP, on 18 December 2014, Mr Kubak submitted.


11. Three issues arise at this point:


Have questions relating to the interpretation or application of provisions of Constitutional Laws arisen in these proceedings?


12. Though this case is at a preliminary stage it is apparent that it is in the nature of a constitutional challenge to decisions of the Public Prosecutor to bring proceedings of alleged misconduct in office against the plaintiff. It is a challenge to the exercise of power and decisions made by the Public Prosecutor under Section 177(1)(b) of the Constitution and Sections 27(1) and (2) of the Organic Law on the Duties and Responsibilities of Leadership.


Section 177(1)(b) states:


The functions of the Public Prosecutor are [in addition to controlling the exercise of the prosecution function of the State] ... to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.


Sections 27(1) and (2) of the Organic Law state:


(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—


(a) to the Public Prosecutor; or


(b) to the appropriate tribunal referred to in Subsection (7).


(2) If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).


These proceedings are also a challenge to the jurisdiction of the leadership tribunal. It has been appointed to investigate, inquire into and determine allegations of misconduct in office against the plaintiff in accordance with Section 28(1)(g) of the Constitution and Section 27(4) of the Organic Law.


Section 28(1)(g) of the Constitution states:


For the purposes of this Division, an Organic Law ... shall establish independent tribunals that—


(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and


(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position.


Section 27(4) of the Organic Law states:


The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48), and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.


13. The grounds on which the plaintiff wishes to challenge the decisions of the Public Prosecutor to bring proceedings of alleged misconduct in office against him are twofold. He argues that the Public Prosecutor exceeded, or failed to properly exercise, his powers under the Constitutional Laws in two respects.


14. First, having been referred a matter by the Ombudsman Commission of alleged misconduct in office concerning the plaintiff (on or about 11 August 2014), the Public Prosecutor, without constitutional authority, went back to the Commission with a request for further evidence before making his decisions under Section 177(1)(b) of the Constitution and Sections 27(1) and (2) of the Organic Law on the Duties and Responsibilities of Leadership. This is argued to be wrong in law and unconstitutional as the Public Prosecutor is obliged to confine his consideration to "the matter" referred to him by the Ombudsman Commission. He cannot go beyond "the matter" by asking for further evidence. If he forms the view on "the matter" referred to him that further evidence is required, his duty is to "decline" to bring proceedings, under Section 177(1)(b) of the Constitution, and to "fail" to refer the matter under Section 27(3) of the Organic Law, which states:


Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (7).


15. Secondly, having been referred a matter by the Ombudsman Commission of alleged misconduct in office concerning the plaintiff (on or about 11 August 2014), the Public Prosecutor, without constitutional authority, has amended "the matter". He has written to the plaintiff notifying him of his decision to refer him to a leadership tribunal and requested the Chief Justice to appoint a tribunal in relation to allegations of misconduct that are different to those in "the matter" referred to him by the Ombudsman Commission. He has adduced evidence to demonstrate that the subject of "the matter" referred to the Public Prosecutor by the Ombudsman Commission (described in an Ombudsman Commission instrument entitled "Referral of a Leader for Prosecution" dated 11 August 2014, was allegations that:


(1) the Leader failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of PGK 3 billion loan from Union Bank of Switzerland AG (Australian Branch); and


(2) the Leader having made media release on the sacking of Mr Don Pomb Polye as the Minister for Treasury by saying that Mr Polye caused instability in the Government, when the actual reason was to do with Mr Polye's refusal to sign the UBS Loan Deal which the Prime Minister had unilaterally approved on 6 March 2014; and


(3) the Leader made a misleading statement on EMTV that he had obtained advice from the State Agencies including Bank of Papua New Guinea on UBS AG (Australian Branch) Loan to purchase Oil Search shares was contrary to the evidence received.


16. He has also adduced evidence to demonstrate that when the Public Prosecutor wrote to the plaintiff notifying him of his decision to refer him to a leadership tribunal and requested the Chief Justice to appoint a tribunal in relation to allegations of misconduct, the Public Prosecutor introduced new allegations by stating that they would include allegations that he:


... had failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of a Three Billion Kina loan from the Union Bank of Switzerland AG (Australian Branch) to purchase shares in Oil Search Limited. It is further alleged that the purchasing of the shares was in the interest of Oil Search Limited and not in the interest of the Independent State of Papua New Guinea. [underling added.]


17. The plaintiff argues that in effect the Public Prosecutor has added two allegations, relating to:


18. Further, the Public Prosecutor has dropped two allegations: those numbered (2) and (3) in the Ombudsman Commission instrument of 11 August 2014. Mr Varitimos submits that this shows that the Public Prosecutor proposes to refer and prosecute in January 2015 a different matter to that referred to him by the Ombudsman Commission in August 2014. He is not permitted to do this. The argument is that Sections 27(1) and (2) of the Organic Law require that, having been referred "the matter" by the Ombudsman Commission under Section 27(1), the Public Prosecutor must confine his consideration to that matter; and if he considers under Section 27(2) that "the matter" should be proceeded with, he shall refer "the matter" (together with the Commission's statement of reasons) to the tribunal.


19. It is further argued that because the Public Prosecutor has exceeded his constitutional authority in those two respects ((i) asking for further evidence and (ii) amending "the matter" referred to him), the effect of this is to deprive the tribunal of jurisdiction. To be lawfully established, and to have constitutional authority to investigate, inquire into and determine alleged misconduct in office concerning the plaintiff, the constitutional prerequisites must all be satisfied, and here they have not been, it is argued. The flow-on effect of the Public Prosecutor exceeding his constitutional authority is that the tribunal loses jurisdiction.


20. I do not at this stage express an opinion on the soundness of those arguments. It is sufficient to say that they are arguments that underpin the originating summons. Affidavit evidence has been adduced to support them. The Public Prosecutor has taken no issue with the facts asserted in support of the notice of motion. So it can properly be said that these arguments have arisen in these proceedings.


21. I conclude that yes, questions relating to the interpretation or application of provisions of Constitutional Laws have arisen in these proceedings.


Should questions be referred to the Supreme Court?


22. The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law. It states:


Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.


Section 18(2) obliges the National Court, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant. Are the questions that have arisen in this case trivial, vexatious or irrelevant?


23. I have concluded that they are not trivial. They are not frivolous or unarguable. Mr Kubak suggested that the submissions of Mr Varitimos ignore the constitutional independence of the Public Prosecutor who is entrusted with a very broad discretion under Section 177 of the Constitution when making decisions on what matters to prosecute, whether criminal matters or Leadership Code matters. He refers to the decision of the Supreme Court in Re Public Prosecutor's Power to Request the Chief Justice to appoint a Leadership Tribunal (2008) SC1011 in which the Court indicated that the function of the Public Prosecutor when he decides to refer a matter to the tribunal is to 'present his own version of the allegations'. That is a very good counter-point; however, it is not so good as to show that the arguments being raised are so devoid of merit as to be labelled trivial.


24. The questions are not vexatious. I see no merit in the abuse of process claim or Mr Kubak's suggestion that the tribunal is the only proper forum for a decision on whether the questions should be referred to the Supreme Court. I acknowledge Mr Kubak's point that the Supreme Court indicated in Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118 that this sort of process, involving referral of a leader, including the Prime Minister, to a leadership tribunal, should be permitted to run its constitutional course and that purported constitutional issues should be raised in the first instance before the tribunal. The proceedings of a duly appointed tribunal should not be permitted to be frustrated by needless challenges to the constitutional process.


25. However, the current proceedings in my view are a legitimate challenge to the exercise of constitutional power by the Public Prosecutor and the leadership tribunal. The challenge could have been brought by application for judicial review. It can always be said that leaders who bring such challenges are trying to divert attention from the allegations against them, to buy time, to obfuscate and delay, so that they do not have to face a leadership tribunal. However as Mr Kubak himself pointed out, leaders have the right to the full protection of the law, like every other person in Papua New Guinea. They are entitled to commence legal proceedings to test and challenge decisions that directly affect their reputation, livelihood and other interests.


26. The questions are not irrelevant. On the question of relevance I have had regard to a number of other cases in which decisions have been made whether to refer questions to the Supreme Court under Section 18(2): SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104.


27. I have formed the view that the questions are not so simple and straightforward that they do not require interpretation. They are not unnecessary. They have not been determined previously. It cannot be said that they have no bearing on the outcome of the trial of the amended originating summons. They are not an unnecessary duplication of questions already referred to the Supreme Court for determination.


28. I conclude that yes, the questions should be referred to the Supreme Court. Indeed I am obliged to refer them.


How should the questions be framed?


29. Mr Varitimos handed up a lengthy set of proposed questions which in my view are too complex and rather convoluted. It is of course easy to be critical of the drafting of these sorts of questions. It is much more difficult to frame them in a way that enables their expeditious and proper determination by the Supreme Court. I have decided that the questions will be framed as follows:


Question 1: Is the Public Prosecutor, having had a matter of alleged misconduct in office referred to him by the Ombudsman Commission under Section 29(1) of the Constitution and Section 27(1) of the Organic Law on the Duties and Responsibilities of Leadership, permitted to:


(a) seek further evidence from the Ombudsman Commission before making a decision, under Section 177(1)(b) of the Constitution and Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership, whether to bring proceedings, proceed with the matter and refer the matter to the appropriate tribunal?


(b) amend the matter in respect of which he brings proceedings, proceeds with and refers, by, for example, adding to or varying the allegations of misconduct in office relating to the matter referred to him by the Ombudsman Commission?


Question 2: If 1(a) or (b) is answered in the negative and the Public Prosecutor exercises his power under Section 177(1)(b) of the Constitution to bring proceedings under Division III.2 (leadership code) of the Constitution for misconduct in office, and proceeds and refers a matter under Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership to the appropriate tribunal, after he has, in fact, sought further evidence from the Ombudsman Commission and/or amended the matter that has been referred to him by the Ombudsman Commission, does the tribunal have jurisdiction to investigate, inquire into and determine the matter referred to it by the Public Prosecutor under Section 28(1)(g)(i) of the Constitution and Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership?


(2) SHOULD INTERIM INJUNCTIONS AND A STAY OF THE TRIBUNAL'S PROCEEDINGS BE GRANTED?

Injunctions


30. I will deal first with the issue of injunctions. The question of whether to grant injunctions against the Public Prosecutor to restrain him from continuing with the matter is a matter of discretion. Despite his very high degree of constitutional independence the Public Prosecutor is subject to direction and control by this Court, in accordance with Schedule 1.19 of the Constitution. The primary considerations to be taken into account by the Court when a person seeks an interim injunction were confirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 as being:


(a) are there serious questions to be tried and does an arguable case exist?

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

(c) would damages be an inadequate remedy if the interim order is not made?

(d) does the balance of convenience favour the granting of interim relief?

(e) do the interests of justice require that the interim injunction be granted?

31. Those considerations have been set out so that a 'yes' answer will be a factor weighing in favour of granting an interim injunction and a 'no' answer will work against making such an order.


(a) Are there serious questions to be tried and does the plaintiff have an arguable case?


32. This requires the Court to make an assessment of the prospects of success of the plaintiff's substantive action by looking at the originating process (in this case, the originating summons, as amended) and the evidence that has been adduced to date. The issue is not simply whether the plaintiff has raised serious allegations, but whether he appears to have a reasonable prospect of succeeding in the substantive case (Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878). Put another way, the court assesses whether there are serious questions to be tried and whether the plaintiff has a serious, not merely speculative, case, with a real possibility of ultimate success.


33. I answer this question in the affirmative. There are serious questions to be tried and the plaintiff has an arguable case.


(b) Has an undertaking as to damages been given?


34. Yes. The plaintiff signed and filed an undertaking on 20 November 2014.


(c) If an interim injunction were not granted, would damages be an inadequate remedy?


35. What will happen if the injunction is not granted, but it turns out the plaintiff succeeds at the trial and proves that the defendants have acted unconstitutionally? Would damages be an inadequate remedy? The answer is yes. The plaintiff is not seeking damages. He is seeking declarations and orders only.


(d) Does the balance of convenience favour the granting of the injunction?


36. As I said in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 this requires the court to ask: what is the best thing to do on an interim basis taking into account the conflicting interests?


37. I consider that the balance of convenience favours granting an injunction as it would reduce the risk of the time, resources and effort of the Public Prosecutor and the tribunal being wasted in the event that the Public Prosecutor and the tribunal continue to perform their constitutional powers and functions, only to have the exercise of those powers and functions ruled by the Supreme Court (and perhaps by the National Court) unconstitutional.
(e) Do the interests of justice require that interim injunctions be granted?


38. Yes, granting interim injunctions it will not operate as a permanent restraint on the Public Prosecutor or unnecessarily encroach on the exercise of his constitutional independence, and no persons or bodies including the Public Prosecutor, the tribunal and the People of Papua New Guinea will be unduly prejudiced by their being granted.


39. All considerations favour the granting of interim injunctions generally in the terms sought by the plaintiff.


Stay of tribunal proceedings


40. It follows as a matter of course that the proceedings of the leadership tribunal ought to be stayed. I uphold the submission of Mr Varitimos that it is in the interests of justice that the tribunal not be put in a position of being obliged to conduct its proceedings while constitutional questions that will have an impact on whether it has jurisdiction are in the process of being heard and determined. Such a stay will be ordered.


CONCLUSION


41. Both sorts of orders sought by the plaintiff will be granted. In view of the nature of the proceedings, in which both the plaintiff and the first defendant are public officials subject to the Leadership Code, and constitutional duties and responsibilities are at the centre of the proceedings and there is no finding of bad faith against either, it is appropriate that the parties bear their own costs.


COMMENT


42. My decision to refer constitutional questions to the Supreme Court means that in the space of a little over one month three separate constitutional references will have been made to the Supreme Court. They each relate to decisions of the Ombudsman Commission and the Public Prosecutor concerning suspected or alleged misconduct in office in respect of the plaintiff. The other two emanate from a Section 18(2) reference being made by Makail J following his Honour's decision in O'Neill v Ombudsman Commission OS (JR) No 383 of 2014, 03.12.14, unreported, and from a Special Reference under Section 19 of the Constitution by the Principal Legal Adviser: SC Ref No 7 of 2014.


43. It has been brought to the attention of the Court in the present proceedings, although it is not a live issue in these proceedings, that there is conflicting Supreme Court authority on the question of the timing of suspension of a leader under the Organic Law following the Public Prosecutor's decision to proceed with a matter. See for example Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052 and Hon Patrick Pruaitch MP v Chronox Manek (2011) SC1093, Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118.


44. My suggestion is that perhaps one or more authorities which are authorised to make applications to the Supreme Court under Section 19(1) of the Constitution for the opinion of the Supreme Court on any question relating to interpretation or application of a provision of a Constitutional Law, might consider making such an application to resolve the issue of the timing of a suspension. That issue might then be brought before the Supreme Court at the same time as the other references.


45. I make the following orders in response to the plaintiff's amended notice of motion of 6 January 2015. I have taken the opportunity to include one order (No 2) that relates specifically to my ruling of 6 January 2015 on the amended notice of motion filed 9 December 2014. It concerns the timing of the filing and service of the amended originating summons.


ORDER


(1) Questions relating to the interpretation and application of provisions of Constitutional Laws having arisen in these proceedings, which are not trivial, vexatious or irrelevant, this Court will, under Section 18(2) of the Constitution and in accordance with Order 4 of the Supreme Court Rules 2012, refer the matter to the Supreme Court, the questions being:

Question 1: Is the Public Prosecutor, having had a matter of alleged misconduct in office referred to him by the Ombudsman Commission under Section 29(1) of the Constitution and Section 27(1) of the Organic Law on the Duties and Responsibilities of Leadership, permitted to:


(a) seek further evidence from the Ombudsman Commission before making a decision, under Section 177(1)(b) of the Constitution and Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership, whether to bring proceedings, proceed with the matter and refer the matter to the appropriate tribunal?


(b) amend the matter in respect of which he brings proceedings, proceeds with and refers, by, for example, adding to or varying the allegations of misconduct in office relating to the matter referred to him by the Ombudsman Commission?


Question 2: If 1(a) or (b) is answered in the negative and the Public Prosecutor exercises his power under Section 177(1)(b) of the Constitution to bring proceedings under Division III.2 (leadership code) of the Constitution for misconduct in office, and proceeds and refers a matter under Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership to the appropriate tribunal, after he has, in fact, sought further evidence from the Ombudsman Commission and/or amended the matter that has been referred to him by the Ombudsman Commission, does the tribunal have jurisdiction to investigate, inquire into and determine the matter referred to it by the Public Prosecutor under Section 28(1)(g)(i) of the Constitution and Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership?


(2) Leave having been granted on 6 January 2015 to the plaintiff to amend the originating summons filed 20 November 2014 in terms of the draft amended originating summons annexed to the notice of motion filed 9 December 2014 and marked "A", the amended originating summons shall be filed and served on the defendants by 9 January 2015.

(3) An interim injunction is granted restraining the first defendant, until further order of the Court, from:

(4) The proceedings of the second defendant are stayed:

(5) The sitting of the second defendant scheduled for 26 January 2015 at 9.30 am is vacated.

(6) These proceedings, OS No 810 of 2014, are stayed:

(7) The parties shall bear their own costs of the amended notice of motion filed 6 January 2015.

(8) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.


Young & Williams Lawyers: Lawyers for the Plaintiff
Kubak & Kubak Solicitors & Barristers: Lawyers for the First Defendant
Williams Attorneys: Lawyers for the Second Defendant

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