O'Neil v Bidar [2019] PGNC 404; N8072 (16 October 2019)

N8072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 720 OF 2019

HON. PETER O'NEIL
Plaintiff

V
COSMOS BIDAR in his capacity as Principal Magistrate of Waigani Committal Court
First Defendant

And
KILA TALI in his capacity as Detective Senior Constable & Investigating Officer
Second Defendant

And
DAVID MANNING in his capacity as Acting Commissioner of Police - Royal Papua New Guinea Constabulary
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 16^th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of Motion – Interim Stay – affidavit of service – affidavit in support – Application ex parte – duty of court to consider despite – no delay – no hardship inconvenience – financial ability – exceptional circumstances shown – balance discharged – interim stay granted – cost in cause.

Cases Cited

Misima Mines Ltd v Collector of Customs, Internal Revenue Commission [2007] PGNC 91; N3206
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831
Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853

Counsel

G. Shepperd & G. Lau, for Plaintiff
No representation for Defendants

RULING

16^th October, 2019

1. MIVIRI, J: This is the Ruling on the Motion of the Plaintiff/Applicant seeking Interim Stay pending the substantive hearing of the review. Leave has not been granted but given the facts he relies upon Order 16 Rule 3 (8) (a) of the National Court Rules as a basis including Section 155 (4) of the Constitution.
   
2. Service has been effected as deposed to in the Affidavit of Douglas Ure who deposes service of the Notice of Motion and supporting affidavits accompanying court documents as set out particulars in his affidavit upon the Secretary for Justice and Attorney General Sir Buri Kidu Haus Waigani today the 16^th October 2019 at 10.30am.
   
3. Included here with is Undertaking as to Damages by the Applicant/Plaintiff duly signed to pay any damages arising from the orders pursuant. A Notice of Application for Leave pursuant to Order 16 Rule 3 (3), an Affidavit Verifying the Facts, Statement pursuant to Order 16 Rule 3 (2) (A) of the Rules, Notice of Motion detailing the interim relief sought as, pursuant to Order 16 Rule 13 (14) and Order 16 Rule 13 (13) and Order 1 Rule 7 of the National Court Rules and Section 155 (4) of the Constitution is moved to dispense with Leave in the circumstances and the Application to the Secretary of Justice filed within shall be served with the Originating Summons and supporting affidavits immediately after the hearing of this Application (Notice of Motion).
   
4. Pursuant to Order 16 Rule 13 (14) and Order 16 Rule 13 (13) and Order 1 Rule 7 of the National Court Rules and Section 155 (4) of the Constitution the requirements of service of the following documents be dispensed with leave within the circumstances and to be served immediately after the hearing of this notice of motion
   

(a) Originating Summons;

(b) Affidavit Verifying Statement of Peter O' Neil sworn 15^th October 2019.

(c) Statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules (as amended)

(d) Notice of Motion

(f) Affidavit in Support of Peter O'Neil sworn 15^th October 2019

(g) Undertaking as to Damages dated the 15^th October 2019.

5. Pursuant to Order 16 Rule 3 (8) and Order 16 Rule 13 (13) (1) and Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution the Defendants and their agents, servants, associates, or officers under their command and control be restraint forthwith from further arresting and or executing the Warrant of Arrest dated the 11^th October 2019 until the hearing and determination of this proceeding or further orders of this Court.
   
6. Alternatively pursuant to Order 16 Rule 13 (14) and Order 16 Rule 13 (13) (1) and Order 1 Rule 7 of the National Court Rules and Section 155 (4) of the Constitution, Order 16 Rule 3 (8) of the National Court Rules be dispensed with in the circumstances and an order be granted for the defendants and their agents, servants, associates, or officers under their command and control be restraint forthwith from further arresting and or executing the warrant of Arrest dated the 11^th October 2019 until the hearing and determination of this proceeding or further orders of this Court.
   
7. Costs be in the cause.
   
8. Time for entry of this Order be abridged to the date of settlement by the Registrar forthwith.
   
9. Any other order the Court deems fit.
   
10. The Notice of Motion is supported by the Applicant Plaintiff's own affidavit dated where he deposes that he is the current member of Parliament for Ialibu Pangia and is former Prime Minister. That he is aware of the Warrant of Arrest being issued against his arrest dated the 11^th October 2019 and information dated the same date. He attaches it as Annexure "POI" the warrant and "PO2" the information.
    
11. He verily believes that it is defective as there is no tick in the space deemed necessary for a warrant of arrest and that he is always available for interview or request to provide information relating to the allegation.
    
12. That the purported charge is also defective in that it fails to state where the money was diverted to and who was it diverted to. And that he denies the allegation in total.
    
13. He attests that if the Warrant of Arrest is not stayed or restraint from being executed I am likely to suffer irreparable damages caused from a defective warrant of arrest that will lead to my detention. It is only proper that a court of law determines the validity of this warrant before it is executed. The affidavit is sworn 15^th October 2019.
    
14. This argument is meritous viewed with reference to Misima Mines Ltd v Collector of Customs, Internal Revenue Commission [2007] PGNC 91; N3206 (22 June 2007). And here I so discharge. I determine and adjudge that there is arguable case prima facie that the applicant will be arrested on a warrant that is defective prima facie.
    
15. There is no delay on the part of the applicant in seeking this matter to delay it any further would be injustice to the applicant and unnecessary hardship and inconvenience where even damages would not equate if continued as it is. Prima facie given what is set out in his affidavit an interim stay would be in order.
    
16. The Application for an interim stay after consideration of McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (30 June 2000) and Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005) is well set given. There are special or exceptional circumstances demonstrated and there is a good reason. It is an appropriate case considering that his liberty is at stake and that incarceration is imminent and will cause irreparable damages even if damages were to be sought given his facts here.
    
17. Accordingly, the Motion for Interim Stay is granted pending the hearing of the substantive matter. I am fortified and take due regard of Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 (2 February 2007) in adjudging and firming the directions now that interim stay will be granted to hence forthwith until Monday 21^st October 2019 at 9.30am when the matter returns for inter party hearing on the leave application and the continuance of this interim stay. The interim stay will accompany the Applicant in the following terms as per the Notice of Motion filed dated the16^th October 2019.
    
18. The interim stay will extend to the Monday the 21^st October 2019 at 9.30am when the matter will be called upon at the directions hearing then. Parties are granted liberty to extend or otherwise at that directions hearing. All other orders will be as in the notice of motion filed.
    
19. Interim Stay granted in the terms of the Motion filed.
    
20. The costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Niuage Lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for the Defendants