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Kennedy v Cheah [2021] PGNC 158; N8890 (21 June 2021)


N8890


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (POC) (FC) No. 1 OF 2020


JEFFERY DEAN KENNEDY
Plaintiff


AND
ADAM CHIN CHEAH
First Defendant


AND
MARILYN ESPOLONG
Second Defendant


AND
ALEXIS SAMUEL ALAISTAIR TAM
Third Defendant


AND
JULIAN PETER BIANCO in his capacity as the Liaison Officer of the Australian Federal Police in Papua New Guinea
Fourth Defendant


AND
REECE KERSHAW in his capacity as the Commissioner of Australian Federal Police
Fifth Defendant


KATARINA CARROL in her capacity as the Commissioner of the Queensland Police Service
Sixth Defendant


Waigani: Kandakasi DCJ,
2020: 21st October
2021: 21st June


COURTS – Judicial comity – nature of – not a rule of law but one of practice, convenience, and expediency - courts recognize the powers and functions of each and avoid taking any step or action that might amount to an interference with or otherwise adversely affect proceedings pending in another court – criminal proceeding to proceed unimpeded – civil proceedings for appropriate remedies can be issued after conclusion of criminal proceeding - proceedings stayed pending the hearing and conclusion pending criminal proceeding.


HUMAN RIGHTS – Application for enforcement of pursuant to s. 155 (4) of the Constitution – allegations of evidence for criminal proceedings outside the jurisdiction obtained illegally within the jurisdiction – objective of proceedings – retrieve and destroy evidence – authoritative pronouncement of the Supreme Court in The State v. Eremas Wartoto (2015) SC1411 – Use of s. 155 (4) of the Constitution amounts to an abuse of process - plaintiff at liberty to seek exclusion of evidence in the pending criminal court – plaintiff also at liberty to sue for damages or other reliefs in PNG but only after conclusion of pending criminal proceeding – current proceeding amounts to an abuse of process – proceeding stayed pending conclusion of pending criminal proceedings.


PRACTICE & PROCEDURE – Conditional notices of intention to defend by defendants – application for dismissal of proceedings based on Court not have jurisdiction to deal with the substantive matter – whether the provisions of O.7,r.8 of the National Court Rules preclude such application – Court has wide powers under s. 155 (4) of the Constitution and also has power to dispense with strict compliance of the rules to do justice – defendants entitled to raise issue of lack of jurisdiction and seek dismissal of proceedings.


Facts


The plaintiff was arrested and charged with two serious criminal offences of rape and indecent treatment of a child under 16 in Queensland, Australia. Whilst those charges were pending, the plaintiff applied through civil proceedings in the National Court seeking amongst other orders for a retrieval and destruction of evidence produced by the first three defendants. This was based on allegations of breaches of s.38, 49 of the Constitution or the plaintiff’s constitutional rights and breaches of the Protection of Private Communications Act (PPCA) and the Mutual Assistance in Criminal Matters Act 2005 (MACMA). The plaintiff alleged the breaches were in the first defendant disclosing and providing to the second and third defendants without his consent private telephone screenshots, text, and audio messages. Further, the plaintiff alleged that, the rest of the defendants used information provided by the first, second and third defendants to conduct criminal investigations outside the process provided for under the MACMA and used the evidence thus obtained to have him arrested and charged in Australia. The first to the third defendants responded by filing conditional notices of intention to defendant and then by motion sought a dismissal of the proceeding. They advanced two grounds for their application; (1) abuse of process of the court by filing proceedings that could be filed and pursuing in the pending criminal proceeding and (2) a failure to disclose a reasonable cause of action. The plaintiff responded with arguments that (1) he could not seek and get the reliefs he was seeking in this proceeding from the Australian court in which the criminal proceedings are pending; (2) the defendants were precluded from bringing their application as they have not submitted to the jurisdiction of the National Court by their filing of their conditional notice of intention to defend which restricts their reliefs only to those provided for under O.7. r. 8 of the National Court Rules; and (3) his proceedings disclose a reasonable cause of action.


Held:

  1. A defendant who files a conditional notice of intention to defend is entitled to raise the issue of the Court’s jurisdiction to deal with the substantive matter and the Court may in the exercise of the wide powers it has under s. 155 (4) of the Constitution dismiss the proceedings if it finds it is without jurisdiction and the Court is therefore not necessarily restricted to the reliefs provided for under O.7, r. 8 of the National Court Rules.
  2. It is settled law that a person charged with a criminal offence is precluded from filing civil proceedings seeking reliefs for constitutional and other breaches of the law leading to or connected with pending criminal proceedings. The plaintiff would be entitled to raise the same issues and seek the same reliefs in the pending criminal proceeding.
  3. In the absence of the plaintiff demonstrating to the contrary, he would be entitled or would be in a position to apply for the same reliefs he is seeking from this Court through this proceeding from the relevant criminal court in Australia given the similar legal systems between Australia and PNG with PNG adopting and applying the Queensland Criminal Code with its systems and processes.
  4. The plaintiff may have a possible valid cause of action and would be able to seek an enforcement of his constitutional rights under s. 57 of the Constitution and breaches of the PPCA but the main relief he sought in this proceeding outside the pending criminal proceeding pursuant to s.155(4) of the Constitution amounted to an abuse of the process of the Court, which could lead to an immediate dismissal of the proceeding.
  5. Judicial comity and the disclosure of a possible cause of action available in PNG warranted a stay rather than a dismissal of the proceeding pending a hearing and final determination of the criminal proceedings that were pending in Australia.
  6. Upon final determination of the pending criminal proceeding, the plaintiff would be at liberty to decide whether to pursue the proceeding in the current form seeking the same reliefs or in a different form with different reliefs.

PNG Cases Cited:


Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] SC488.
Alex v. Golu [1983] PNGLR 117.
SCR No. 1 of 1977 [1977] PNGLR 362.
Philip Takori v. Simon Yagari (2008) SC905.
Lasco Development (15) Ltd v. Total E & P PNG Ltd (2019) N7987.
Christopher Smith v. Ruma Construction Limited (2002) SC695.
Joel Luma v. John Kali (2014) SC1608.
Amet v. Yama (2010) SC1064.
Mountain Catering Ltd v. Punangi (2013) SC1225.
Kuk v. O’Neill (2014) SC1331.
Nominees Niugini Limited v. Independent Public Business Corporation (2017) SC1646.
The Independent State of Papua New Guinea v. Lohia Sisia [1987] PNGLR 102.
Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677.
Constitutional Reference No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362.
Eremas Wartoto v. The State (2015) SC1411.
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6.
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844.
Pius Pundi v. Chris Rupen (2015) SC1430.
Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785.
Francis Potape v The State (2015) SC1613.
Private Nebare Dege v. The State (2009) SC1308.
Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855.
Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea (2006) N3950.
Philip Takori v. Simon Yagari & Ors (2008) SC905.
Michael Kuman v. Digicel (PNG) Ltd (2013) SC1232.
In Kein Wanire v. Chillion Biloi (2018) SC1721.
William Powi v. Niugini Building Supplies Ltd (2016) SC1501.
Jackson Tuwi v. Goodman Fileder International Ltd (2016) SC1500.
Kipahi v. Nambos (2020) N8437.


Overseas Cases Cited


Tolofson v. Jensen [1994] 3 S.C.R. 1022.
Mast, Foos, & Co. v. Stover Mfg. Co. 8 [1900] USSC 107; 177 U. S. 485, 488 (I900).


Counsel:


Mr. M. Nale and Mr. S. Dewe, for the Plaintiff

Mr. G. Shepherd, for the First, Second and Third Defendants
Mr. D. Wood, for the Fourth, Fifth and Sixth Defendants


21st June, 2021


  1. KANDAKASI DCJ: By notice of motion, the first to the third defendants (the defendants are seeking either a set aside or a dismissal of this proceeding on two main grounds. The grounds are:
  2. In response, Kennedy submits his proceeding discloses a reasonable cause of action. He also submits, he is entitled to bring the proceeding under s.155(4) of the Constitution for an enforcement of his rights, a remedy he claims he cannot seek and receive from the relevant Australian courts. Further, he argues that, since the defendants have filed a conditional notice of intention to defend, they are not entitled to the remedy of dismissal but a stay or a set aside of the proceeding.

Relevant issues or questions


  1. Thus, the issues or questions the Court must determine are these:
  2. Of these questions, I will deal with the second question first because that question concerns the defendants’ ability to raise the issues they are raising. Depending on an answer to that question, I will then proceed to deal with the first question next to be followed by the third question. But first the relevant factual background.

Relevant background facts


  1. The facts are straight forward. On 13th October 2019, Kennedy was arrested and charged at the Brisbane Airport, Australia on one count of rape under s.349(1) and another count of indecent treatment of a child under 16, under s. 210(1) (a) of the Queensland Criminal Code Act. Kennedy denies the allegations in their entirety, and claims they are lies. He is currently on bail. The relevant facts supporting the charges as Kennedy has discovered through the criminal proceedings are these:
  2. With these facts in mind, I now turn to a consideration of the second issue first.

Issue (2) - Whether the Defendants who have conditionally entered a notice of appearance are precluded from raising the issue of the Court’s jurisdiction and seek a dismissal of this proceeding?


  1. As far as my knowledge and awareness goes, I note, the issue is being raised for the first time in this proceeding. The parties confirm that position by their lack of reference in their respective submissions to any case on point that deals with the question.
  2. The provisions of the National Court Rules that are relevant to the question O.7 rr.7 and 8. These provisions relevantly stipulate in these terms:

“7. Conditional notice.


(1) The giving of a notice of intention to defend does not constitute a submission to the jurisdiction of the Court.

(2) A defendant shall be entitled, either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service on him of the writ or of notice of the writ or to discharge the order authorizing the service on the ground that —

(a) the Court has no jurisdiction to determine all or part of the plaintiff's claim; or

(b) the issue or service of the writ was irregular; or

(c) an order giving leave to serve the writ or notice of the writ out of the jurisdiction ought not to have been made; or

(d) the defendant has been served as a partner in a firm of which he was not a partner or liable as such at any material title.

(5) After the service of the notice of motion the plaintiff shall not be entitled to enter judgement in default of defence or take any other step in the action without the leave of the Court.

  1. Setting aside originating process, etc. (11/8)

The Court may, on motion made by a defendant under Rule 7, by order —

(a) set aside the originating process; or

(b) set aside the service of the originating process on the defendant; or

(c) declare that the originating process has not been duly served on the defendant; or

(d) discharge any order giving leave to serve the originating process outside Papua New Guinea or confirming service of the originating process outside Papua New Guinea.” (My underlining)


  1. As already noted, Kennedy submits that, by filing their conditional notice of intention to defend, the defendants have not submitted to the jurisdiction of this Court. They are therefore, only entitled to a set aside or stay of the proceeding under anyone of the four grounds under O.7, r.7 (2) (a), (b) (c) or (d) and not a dismissal of the proceeding. In support of his argument, learned counsel refers to the decision of the Supreme Court in Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] SC488 (Settin Bay Lumber Company). Reliance is placed on a passage the Court adopted from the authors of Halsbury’s Laws of England 4th Edition, Vol.1 at para 353 which is in the following terms:

“‘353 FORUM NON CONVENIENS. The court may stay an action if there is another forum in which the case can be more conveniently tried. Account is taken not only of convenience and expense, but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum. In ascertaining the most appropriate forum the court searches for the country with which the case has its most real and substantial connection.

If a foreign court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him by suing in England. A common instance of this in Admiralty proceedings is the opportunity for the plaintiff to secure his claim by the arrest of the vessel as an action in rem. Other examples from the decided cases are the availability in England of a more generous limitation period, a speedier or cheaper trial, a more generous measure of damages, or a more favourable rule of substantive law. Particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant. Normally however the court will not compare the quality of justice available in England with that dispensed elsewhere, and allegations that a fair trial would not be obtainable in the foreign jurisdiction must be supported by cogent evidence. Ultimately the courts task is to weigh in the balance the factors both for and against a stay, so that even if the plaintiff can point to a legitimate advantage in suing in England, this will not be decisive if another jurisdiction is clearly the more appropriate forum.’”

  1. Counsel accepts that the circumstances in that case and the present case are not the same. However, counsel goes onto argue that the principles are applicable. He then submits his client is before this Court for an enforcement of his rights pursuant to s.155 (4) of the Constitution and enforcement of the protection accorded him under the PPCA. In support of that submission, counsel cites the decisions in Alex v. Golu [1983] PNGLR 117 and SCR No. 1 of 1977 [1977] PNGLR 362, without any submission on how these decisions are of any relevance and application to the issues at hand.
  2. Then through his learned counsel, Kennedy submits there has been a clear case of breaches of his Constitutional rights under s.37, 38 and 49 of the Constitution and the protection provided to him by the provisions of the PPCA coupled with a breach of certain provisions of the MACMA. He goes on to argue that his client’s cause of action arose in PNG and the correct forum is in the PNG Courts and not Queensland or an Australian court. He therefore submits, his client is entitled to issue this proceeding and seek the reliefs he is now seeking.
  3. With the greatest of respect, I find there are number of problems with these submissions. Firstly, the decision in Stettin Bay Lumber Company (supra) concerns a case of choice of forum in a civil case out of a contractual relationship between two companies and their businesses in two different countries. The provisions of O.7, rr.7 or 8 were not considered in that case. The Supreme Court in Philip Takori v. Simon Yagari (2008) SC905 commented on the application of these provisions of the National Court Rules briefly. There are several National Court decisions such as the one in Lasco Development (15) Ltd v. Total E & P PNG Ltd (2019) N7987 which acknowledge the existence of these provisions and how they could be made use of. Unfortunately, the parties have not assisted with any submissions as to how to better understand the effect of a defendant filing a conditional notice of intention to defend and whether the remedies prescribed under O.7, r.8, are the only reliefs that the Court can grant.
  4. Secondly, the decision in the Stettin Bay Lumber Company, concerned the doctrine of “forum non conveniens”. Whenever this doctrine is raised, it gives rise to two considerations and or questions: (1) whether the court has jurisdiction to hear and determine the substantive claim or action; and (2) whether the court will, in its discretion, stay the action. Apart from the case cited by learned counsel, there is no meaningful consideration and application of the doctrine and attendant issues within our jurisdiction. Going abroad, I came to a decision of the Canadian Supreme Court in Tolofson v. Jensen [1994] 3 S.C.R. 1022. That case discusses several other decisions on point as well. I also came across the decisions of other Canadian courts.[1] These decisions make it clear that, the way in which the two questions presented here must be understood is by first, considering and determining if the Court has the necessary jurisdiction over the substantive proceeding. If the answer is in the affirmative, the court must next consider if it should use its discretion to stay the proceeding and hence any further exercise of its jurisdiction. These are two distinct matters. In other words, the question of whether a court has jurisdiction to hear and determine a matter is a different question to the question of whether the court should decline to exercise its jurisdiction because another forum is the more convenient forum. Of the two, the second question needs to be considered only once the court has decided that it has the necessary jurisdiction to deal with the matter on its substantive merits.
  5. Thirdly, in the absence of any authoritative statement to the contrary, my considered view is that the answer to the question under consideration is in the relevant rules themselves. A closer reading of the provisions of O.7, rr. 7 (1) and (2) and r. 8 makes the following clear:

(1) Filing a conditional notice of intention to defend does not constitute a submission to the jurisdiction of the Court;

(2) A defendant is entitled to file a motion before giving his or her conditional notice or within 14 days of giving such notice to set aside the service on him or her of the writ or of notice of the writ or to discharge the order authorizing service of the proceeding;

(3) The grounds for such an application are as spelt out in O.7, r.7 (2) (a) – (d) from the Court having no jurisdiction to determine all or part of the plaintiff’s claim to incorrect service; and

(4) Where any of these grounds exist, a defendant may apply for any of the reliefs under O.7 r.8.
  1. Of the grounds specified in r.7(2)(a) – (d), I note the Court having no jurisdiction to determine, all or a part of a plaintiff’s claim is first on the list. This is not surprising. A court’s power or jurisdiction to deal with a matter, goes into the heart of all proceedings going before any court. In some cases, particular courts are expressly vested with the necessary jurisdiction to deal with a particular matter or cause to the exclusion of other courts as in the case of any question relating to the interpretation or application of any provision of a Constitutional Law. Subject to the Constitution itself, that power is vested exclusively in the Supreme Court. A failure, therefore, to correctly invoke a court’s jurisdiction in any matter going before it, would render the court proceeding without any jurisdiction. In such a case, any decision by the court will always be open to challenge and set aside. There is a large body of Supreme and National Court decisions on point. An example of a case on point is the Supreme Court’s decision in Christopher Smith v. Ruma Construction Limited SC695. There, the Supreme Court said, the National Court lacked jurisdiction to review a dismissal of proceedings order in the National Court because the National Court would have to apply the principles relevant to an appeal, which powers are vested in the Supreme Court only. Another example is the decision of the Supreme Court in Joel Luma v. John Kali (2014) SC1608. In that case, the Supreme Court reconfirmed the position at law that the National Court would lack jurisdiction to deal with an interim injunction or stay application prior to a grant of leave for judicial review.
  2. Fourthly, there is ample authority for the proposition that, given the importance of a court’s jurisdiction in any matter, it is always open for any party or even a court on its own motion to raise the issue at any stage of the proceeding: Amet v. Yama (2010) SC1064, Mountain Catering Ltd v. Punangi (2013) SC1225, Kuk v. O’Neill (2014) SC1331 and Nominees Niugini Limited v. Independent Public Business Corporation (2017) SC1646. To that, I venture to add that, raising the issue sooner or earlier on in a proceeding is preferable and better. This is necessary because an earlier application would spare the parties and the court much time, effort, and costs if there is a delay in raising the issue and more steps were allowed to be taken in a proceeding.
  3. Finally, I note s.155 (4) of the Constitution vests in both the Supreme and National Courts inherent powers in the following terms:

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”


  1. This is a wide or broad power, which cannot be restricted by any court rule or even an Act of Parliament except as may be permitted by the Constitution itself. Many decisions of the Supreme and National Courts acknowledge this power. One of the earliest statements on this power by the Supreme Court was in The Independent State of Papua New Guinea v. Lohia Sisia [1987] PNGLR 102, per Bredmeyer J, who said:

“The courts have enormous power under s 155 to review the decision of any minister, tribunal or court. In exercising that power we can ignore any time limits imposed on appeal or review by statute, and any statutory ‘ouster’ provisions excluding review or appeal, of which there are many, such as s 9 of the National Land Registration Act.”


  1. It should naturally flow from this that, the National Court Rules cannot restrict the wide or enormous power that is vested in the Court by the Constitution. In that respect, I note that O.1, rr.7 and 8 provide for relief from a strict compliance of the Rules to do justice in a case in the following terms:

“7. Relief from Rules. (1/12)

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.


8. Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.”


  1. The Supreme Court in Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677 held, O.1, r.7 compliments s.155 of the Constitution in this way:

“In any case, O.1 r.7 of the NCRs, compliments s. 155 of the Constitution by giving the Court the power to dispense with a non-compliance of the rules either before or after the need to do so has arisen in the interest of justice. It is now settled law that, the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed with in the circumstances of a particular case. For more discussion on this see Anthony John Polling -v- Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228 at page 230 and The South Pacific Post Pty Ltd -v- Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38 at page 46. It should be borne in mind that, the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. Their application was thus intended to be flexible: See Andrew Kimberi of Paulus & Dowa Lawyers -v- The State Unreported Judgement of the Supreme Court delivered in 1988) SC 545 at page 22.”

(Underlining mine)


Applying the law to the present case


  1. In the present case, the defendants are saying two things. Firstly, they are not submitting to the jurisdiction of this Court by the filing of their conditional notices of intention to defend. Secondly, the substantive matter in this proceeding is related to criminal proceedings pending in an Australia court in respect of which, they are witnesses. Given that, they argue that Kennedy cannot through this civil proceeding seek to raise issues and get the remedies he is chasing as he is at liberty to raise the same issues and seek the same reliefs in the pending criminal proceedings. The first of what the Defendants are saying in my view, falls under the forum non conveniens category while the second goes into the Court’s jurisdiction to deal with the substantive matter. Of the two, the question of whether the Court has the jurisdiction to deal with the substantive matter must first be answered and only if it is answered in the affirmative the Court can then go on to consider the issue of forum non conveniens.
  2. Given the importance of the critical nature of the issue of this court having the necessary jurisdiction to deal with the substantive matter and the discussion of the law on point, I am of the view that r.8 of O.7, cannot be read restrictively to limit the Court’s power to only the reliefs specified in that provision. Doing so would go against the wide powers the Court is vested with by s.155 (4) of the Constitution and the power it has under O. 1, r.7 to dispense with strict adherence to or of the Court’s rules to do justice. In my respectful view therefore, a defendant who files a conditional notice of intention to defendant is entitled to raise the issue of the Court’s jurisdiction to deal with the substantive matter, where that is open. The provisions of O.7, r.7 (a) forms the necessary foundation for that. Consequently, and correspondingly, a defendant who is raising such an issue is therefore entitled to seek a dismissal of the proceeding on account of the Court lacking jurisdiction to deal with the substantive matter and not necessarily be restricted to the reliefs stipulated in O 7, r 8. Consequently, restricting this Court to grant only any one of those reliefs would also go against the Court’s inherent and wide powers it is vested with by s.155(4) of the Constitution, which in my view also includes, amongst others, the power to dismiss proceedings in appropriate cases for lack of jurisdiction.

Answer to the second question


  1. For these reasons, I answer the question in the second issue in the negative. That is to say, the defendants who have filed conditional notices of intention to defendant are not precluded from raising the issue of the Court’s jurisdiction to deal with the substantive matter and seek a dismissal of the relevant proceeding.
  2. I now turn to a consideration of the question presented in the first main issue.

Issue 1 - Does s.155 (4) of the Constitution authorise the grant of a relief outside the criminal justice system while a related criminal proceeding is pending in a foreign jurisdiction?


  1. There are two parts to this question. The first concerns a proper application of the provisions of s.155(4) of the Constitution in the context of a pending criminal proceeding in PNG. The second concerns an application of the same provisions in the context of a criminal proceeding that is pending outside PNG’s territorial jurisdiction. I will deal firstly with the first part first.
  2. When it comes the enforcement of human rights as enshrined in the Constitution, the correct Constitutional provision to use is s.57 (1) which specifically grants the power to any Court to enforce any of the human rights provided for or guaranteed by the Constitution. The provision in clear terms reads:

“57. Enforcement of guaranteed rights and freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.”
  1. But as subsection (6) of the same provision provides these powers are:

“(6) ... in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”

(Underlining mine)

  1. Kennedy earlier sought to amend his originating summons to included s. 57 also as the foundation for his application. That application was declined for reasons given and is the subject of an appeal now pending before the Supreme Court according to counsels’ indications in Court. Section 57 has been the subject of several applications in both the Supreme and National Courts. Of all the cases on point, the decision in Constitutional Reference No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362, is most relevant. There, what Frost CJ (as he then was) said:

“A Court that has jurisdiction under s. 57 is given the plenary power to make all such orders and declarations as are necessary and appropriate for the purposes of the section (subs. (3)), and further ancillary powers are added in subsections (4) and (5). That power must include the making of an order or declaration that a statement made by an accused person following non-compliance with s. 42 (2) be excluded from evidence, which is the most effective form of relief for any accused person. The jurisdiction and powers of the Courts under s. 57, it is expressly provided, are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution subs. (6)), which include of course the jurisdiction to award compensation under s. 58. As that section is also expressed to be in addition to and not in derogation of s. 57, (s. 58 (1)), the result presumably is that each section is to be given an independent operation. Whilst the requirement that the right or freedom shall be protected by the Court in s. 57 (1) would by its mandatory terms seem to be paramount, under s. 58 there is an additional and independent entitlement, conferred upon a person whose rights or freedoms declared or protected by Div. 3 are infringed, to reasonable damages, and if the Court thinks proper exemplary damages (s. 58 (2)).”

(Underlining mine)


  1. His Honour went on to say:

“However, in the case of non-compliance with the Constitution, s. 42 (2), it may be thought inadequate for a Court to admit the accused’s statement, and simply allow action to be taken under any other provision. In the ordinary case of a breach of s. 42 (2), particularly of sub-paragraphs (b) and (c), the Court may well feel bound to adopt the analogy of relief by way of restitutio in integrum, or restoration of the accused to the position as if s. 42 (2) had been complied with, taking into account the real possibility that the accused would have exercised his right to silence, and thus to exclude the admission under s. 57. There is no reason why such an order should not be made in the course of a criminal proceeding before the National Court.”


(Underlining mine)


  1. A consideration of almost all the relevant case authorities clearly points to the fact that, the powers vested in the Courts under Constitutions s 57 were not intended to and do not have the effect of overriding, restricting, annulling or relaxing the jurisdictions and powers already vested in the Courts by other provisions of the Constitution. Instead, the powers under s 57 are complementary to or are in addition to such jurisdictions and powers. It follows therefore that, s. 57 does not grant or vest any power in any Judge or a Court or any authority to adopt a process and procedure outside or in competition to or contrary to that which is already provided for by other relevant and applicable substantive and procedural law.
  2. How this would work out is obvious. Where a need for the enforcement of a person’s human rights arises whilst a related civil or criminal proceeding is on foot, the necessary application must be made within the relevant proceedings as suggested by Frost CJ in Reference 1 of 1977 (supra) and not in any other way. But where the proceedings are concluded, any application for the enforcement of one’s human rights must be brought within an appeal or review against the primary decision where either of these processes are available and not otherwise.
  3. Turning specifically to how s.57 could be invoked in a criminal proceedings context, there had been two lines of authorities until the 5-member Supreme Court decision in Eremas Wartoto v. The State (2015) SC1411 (Eremas Wartoto). One line of authorities allowed for persons facing criminal charges to come to this Court with applications and takeout orders effectively interfering with and or stop criminal proceedings in their tracks. The other line of authorities precluded such applications. Those who allowed the applications were contrary to the clear import of the decisions of the Supreme Court in Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118. The conflicting directions was eventually put to rest by the most authoritative 5-member Supreme Court decision in the Eremas Wartoto which clarified and settled the law.
  4. In the Eremas Wartoto case, the appellant sought in the National Court through a separate civil action pursuant to s. 155(4) of the Constitution a permanent stay of criminal proceedings brought against him by the State which were pending also before the National Court in its criminal jurisdiction. That came after going through the committal process. The National Court’s crimes jurisdiction was at the point of mentioning the case and issuance of directions for further conduct of the proceeding. The 5 members of the Court of which I was one, in separate opinions came to a unanimous decision. The Court held:
  5. The president of the Court, Injia CJ (as he then was) said:

“9. The pertinent facts which gives rise to the first issue is indeed peculiar one for which there appears to be no case precedent. This perhaps is a clear indication that such practice where a civil action is brought to stay a criminal proceeding before the same court constituted by the same judge or a different judge, is virtually non-existent in common law jurisdictions. The standing practice all along has been that the criminal process and the civil process in the National Court are set apart by the law and rules of Court, and that any recourse to judicial relief, interim or substantive, is to be found in their respective domain. It is clearly out of procedure for the National Court, constituted by the same judge or a different judge, to be invited to give itself the power through a civil proceeding to review and stay a criminal proceeding before it.


10. In my view, there are adequate avenues provided in the Criminal Code, for an accused person to have recourse to, to contest the State case against him or her at each critical phase of the criminal trial process once that process is set in motion in the National Court.” (Underlining mine)


  1. His Honour thereafter went on to outline the avenues that were open for an accused person to use under the criminal process from the charging of an accused person to trial and appeals and or reviews. Thereafter, the learned Chief Justice concluded:

“11. These procedural safeguards are in-built into the criminal process to give full protection to the constitutional right of the accused to the benefit of presumption of innocence and a fair trial. To my mind those safeguards are elaborate and most favorable to the accused. Some of these procedural safeguards and the Courts’ to perceived preoccupation with some of them have been criticized in some circles in PNG as heavily favoring an accused person to the detriment of the society’s interest in ensuring that offenders are brought to justice and punished. Be that as it may, the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern. If they have not been treated according to law during the investigations and prosecuted without reasonable or probable cause, they will be vindicated by the National Court, in the course of the criminal trial proceedings.


12. For the foregoing reasons, I do not consider the Constitutional notion that the National Court is a Court of unlimited jurisdiction coupled with the discretionary powers provided by s 155(4) of the Constitution, as argued by the appellant, should be read and applied to override the criminal trial process in the National Court that is expressly stipulated in the Criminal Code.”

(Underlining mine)


  1. In our joint judgment, Sakora J and I went into a detailed survey of the relevant case law on point. That included the decisions of this Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118 and the decision in Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and as well as a string of National Court decisions. Thereafter, we discussed the various criminal process stages, and the avenues open to accused persons to seek a remedy for any breach of their rights from the point of arrest to appeals and or reviews following convictions and sentences. We then concluded:

“51. We reiterate, if anything should be clear from the foregoing discussions is the fact that, any issue around irregularity, defect or otherwise an abuse of process, must be raised promptly at the appropriate level. If it concerns any abuse at the Police investigation or District Court committal stages, they must be first raised and resolved at those levels. Any matter beyond the reach of the District Court can be raised and sorted out with the Public Prosecutor at the first instance or failing that, the National Court when the matter enters the National Court in accordance with the process and procedure stipulated under the Criminal Code and Criminal Practice Rules of the Court. Finally, if the abuse is at the National Court level, again it must first be raised and dealt with at that level. If the issue is appropriately raised at the National Court level and the Court fails to deal with, it would properly be a subject for appeal or review. Finally, the Supreme Court would deal with any abuse or improper use of its process, including any appeals or reviews on point and abuse of the National Court process which could not be corrected at that level by the National Court.


52. Given the procedural safeguards outlined and discussed above and the hierarchy of the Courts with their specific jurisdictions, it would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it. This would be the case because, such an issue can be fully raised and could be adequately and satisfactory dealt with by the National Court in its criminal jurisdiction when the matter is before the National Court through the normal process. The National Court would be usurping the powers of the Police, the District Court or that of the Public Prosecutor if it assumes jurisdiction and deals with a criminal matter in its civil jurisdiction or even in its criminal jurisdiction prior to the matter properly getting before it in its criminal jurisdiction, and more so in a case where the process at the Police investigation and District Court levels have not yet been exhausted.”

(Underlining mine)


  1. Thereafter, we made several additional observations and eventually concluded:

“60. It should follow therefore that, unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages as discussed above, anything else would be an abuse of processes of the Courts or any prescribed procedure. Any such attempt should not be permitted in line with the various pronouncements we have discussed above. For our criminal justice system is one which is regulated by both substantive and procedural law, from the Constitution to the court rules and pronouncements of both this and the National Courts for the good order and peaceful existence and development of our country.


  1. His Honour and I also specifically dealt with the application of s. 155 (4) of the Constitution. In so doing we had regard to the Supreme Court’s own decision in William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844. There, the Court noted that, s.155 (4) has been the subject of abuse more than its proper use. After carefully reviewing the authorities on point, the Court concluded, there are about 5 important features or attributes of s. 155 (4) in these terms:

“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:


1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as a necessary to do justice in the particular circumstances of a case” before the Court;


2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;


3. Where remedies are already provided for under other law, the provision does not apply;


4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of the number it is constituted, except as may be provided for by any law; and


  1. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”
  2. We then commented:

“We can only reiterate what this Court said above as it resonates well with one of the cardinal principles in judicial review. That principle as I (sic) also noted already, is the requirement for a person seeking judicial review to demonstrate amongst other requirements that he has exhausted all available remedies unless, such a person can show he or she is in the same setting as in the Avia Aihi case.


  1. Thereafter at paragraph 64 we concluded:

“Hence, it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code, and the National Court’s Criminal Practice Rules....”


  1. Ultimately, we applied the law as stated and discussed to the case at hand at paragraph 72 in the following terms:

“Having regard to our answers and the discussions under each of the questions presented before us, we find Mr. Wartoto abused the National Court process. He had the opportunity to raise any concerns or issues he had first with the Police investigator, or at the District Court level or wait and take the appropriate steps once an indictment was formally presented by the Public Prosecutor against him in the National Court in its criminal jurisdiction. Provisions like s. 558 or 567 of the Criminal Code are there for accused persons like Mr. Wartoto to make use of at the appropriate stage if they so wish. Hence, it would be a clear abuse of the process of any court for an accused to resort to any other means, not even s. 155(4) of the Constitution to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. What happened in this case is clearly an abuse of the process of the National Court and should not be repeated. Arguments for Mr. Wartoto on whether all of the essential elements of an anticipated charge exist or not goes into his defence to the charge against him. This should be raised in response to a formal indictment presented against him by way of his defence at the National Court in its criminal jurisdiction and the Court should be able to deal with it at the appropriate stage in the process. But, it cannot be summarily determined at the instigation of an accused. Public interest, public policy, good governance and good order in society require a proper trial before there can be a final determination on the charges against Mr. Wartoto. We note that, this is the law even in civil cases where the burden of proof is on the lower standard of “balance of probability” especially were a cause of action known to law is disclosed. Whether the claim, and in this case the charge, can be sustained is a matter for trial and not for any summary determination.”


  1. Late Kirriwom J who was one of the other members of the Court, agreed with the views expressed by the then Chief Justice and Sakora J and I. At the same time, his Honour went onto make observations and discussions of his own on the criminal process and procedure and concluded that the appellant abused the process of the Court and pointed out aspects of abuse as follows at paragraph 112:

“When considered from this perspective, the inevitable answer is that the primary judge did not fall into any error when he refused the application for permanent stay of the appellant’s prosecution for criminal charges of misappropriation. There are number of reasons including:


(i) Criminal trial was hi-jacked since completion of the Committal Court jurisdiction after finding of prime facie case in which forum evidentiary issues supporting the charge or charges are weighed and determined.


(ii) Evidence contained in the committal depositions are only relevant for purposes of establishing prima facie case for committal court to examine and determine and that starts off or sets in motion a criminal trial on indictment.


(iii) Prosecution had no obligation to tender any evidence in the court below in response to the applicant’s application to permanently stay his prosecution when that was not the forum that would determine his guilt or innocence.


(iv) The application was misconceived in the way it was presented when there were sufficient avenues open within the criminal track for the appellant to have challenged the charges against him instead of invoking a civil procedure to stop or derail a criminal process that had already begun.


(v) There are more than adequate checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country including the National Constitution which are open to the accused at any stage of the proceedings within the criminal track to involve the court’s inherent powers and there is no vacuum that can be filled by invoking the court’s prerogative powers through a civil procedure outside the defined criminal practice and procedure guidelines adopted by Statutes and Criminal Practice Rules of the Court.


(vi) This was not such a hopeless case without any prospect at all of even establishing a prima facie basis for criminal prosecution to lie, a determination of which had already been exercised by the committal court.”


  1. Finally, the final member of the Court, Her Honour Davani J, came to the same conclusion. After considering discussions in several relevant local and overseas decisions she concluded:

“In this case, the appellants are no doubt looking to the O.12 R.40 National Court Rules remedy, where proceedings can be dismissed for being frivolous and vexatious. That doctrine, practise or remedy, has no place in criminal law, and in the Common Law jurisdiction because it is unheard of and in my view, an abuse of both the criminal and civil process. It is a metamorphosis of a civil remedy into an alien concept, unknown to the practise of Criminal Law and is a practise that is frowned upon by the Courts in the Common Law jurisdiction, as shown in my discussions, above.”


  1. The Decision in Eremas Wartoto has been endorsed, approved and or applied by many subsequent decisions of the Supreme Court. In Pius Pundi v. Chris Rupen (2015) SC1430 for example the Court said:

“... An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process. This principle was recently affirmed by the Supreme Court in Eremas Wartoto v The State (2015) SC1411.”


  1. It should clearly follow that s.155(4) of the Constitution cannot be used to apply for an enforcement of one’s human rights. An attempt to do so would amount to an abuse of process and the provision itself, especially when s. 57 of the Constitution provides for the enforcement of one’s human rights. Even if Kennedy included s. 57 of the Constitution as the basis for his application, that would not have been of any help to him. As the foregoing discussions would make it clear, the powers vested in the Courts under Constitutions s.57 are not intended to and do not have the effect of overriding, restricting, annulling, or relaxing the jurisdictions and powers already vested in the Courts by other provisions of the Constitution. Instead, the powers under s. 57 (1) are complementary to or are in addition to such jurisdictions and powers. That being the case, I am of the view that s.57 does not grant or vest any power in any person, a Judge, or a Court to adopt a process and procedure outside or in competition to or contrary to that which is already provided for by other relevant and applicable substantive and procedural law. Consequently, a party or a person or a Court wishing to take steps to enforce a person’s human rights, needs to use the relevant and available processes to properly invoke the jurisdiction of the Court. The way this was intended to work out in my view, is this. Where a need for the enforcement of one’s human rights arises whilst a related civil or criminal proceeding is on foot, the necessary application must be made within the relevant and existing proceedings as suggested by Frost CJ in Reference 1 of 1977 (supra) and not in any other way, such as the filing of separate civil proceedings.

Applying the law to the present cases


  1. Based on the foregoing discussions of the law on s. 57 and 155(4) of the Constitution, it is abundantly clear that Kennedy who is facing criminal charges cannot resort to this Court in its civil or even its criminal jurisdiction and plead for the reliefs he is seeking. Also, he cannot seek to invoke the provisions of s. 155(4) of the Constitution when the correct provision to invoke is s. 57 (1). His employment of s. 155 (4) runs contrary to the clear pronouncement of the Supreme Court’s decisions in William Powi v. Southern Highlands Provincial Government (supra) Eremas Wartoro and others and an obvious abuse of this Court’s process. This is so in the light of Kennedy not meeting the tests specified in the first of these decisions. The correct way for him or indeed anyone concerned with human rights enforcement to come to this court is by an application under s. 57. But that must be within the criminal justice process and not otherwise. An application of the kind now before this Court seeking an exercise of its civil jurisdiction over a criminal matter is an abuse of the Courts process and is open to immediate dismissal. It does not really matter what issue such an applicant is raising. As the Supreme Court said in Reference 1 of 1977, if the issue concerns as in this case, the way in which evidence in the case were obtained, the accused is entitled to raise the relevant issues and ask for the appropriate reliefs in the relevant criminal proceeding. If it is other kinds of abuses leading to an applicant being arrested and charged and is in a criminal court, again as the majority (Injia CJ (as he then was), Sakaro and Kandakasi JJ (as we then were) with whom Kirriwom J (as he then was agreed)) said in the Eremas Wartoto case, those are matters that must be raised appropriately with the police, the prosecution, the committal court, or the trial court.
  2. Proceeding on basis of the foregoing statement of the law and discussions, the present case is an abuse of process because: (a) the wrong provision of the Constitution, s. 155(4) has been invoked; (b) even if the correct provision, s. 57 was invoked, civil proceedings cannot be used for reliefs that could impede or otherwise interfere with criminal proceedings that are pending. The correct process to employ is for the appropriate applications to be made within the pending criminal proceeding in Australia. The proceedings before this Court could be dismissed right away save for only for two complicating factors. The first of the two factors is the pending criminal case outside PNG’s territorial. I turn to a consideration of that issue now.
  3. As already noted, Kennedy argues that the Australia courts in their civil jurisdiction lack the jurisdiction to deal with the issues he is raising in this proceeding. He goes on to submit that, only this Court has the jurisdiction to hear and determine the issues presented as these are PNG’s domestic law issues under the Constitution, the PPCA and MACMA. Kennedy goes on further to submit that, if the reliefs he is seeking are granted and he seeks to enforce them in Australia pursuant to Australia’ Foreign Judgments Act 1991 and Foreign Judgements Regulation of 1992 of Australia, the defendants can raise the issues they are now raising against these proceedings. Reliance is place on the decision of the Supreme Court in Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785 (the ECP case).
  4. Kennedy relies especially upon the following passage from the ECP case:

“This Article is worded widely to oust the civil jurisdiction of the courts in any civil matter arising out of acts or omissions done within the course of, or incidental to official duties. This kind of approach is to be distinguished from abolition of causes of action which may arise from acts or omissions of DRP. An Act of Parliament may abolish a principle of the underlying law (Schedule 2.3 (1) (a) of the Constitution). Equally an Act of Parliament may repeal a cause of action given by an earlier Act (see s 4 of ECP Act).


This Article is expressed in general terms and covers any cause of action under constitutional laws over which the courts have jurisdiction. In this regard, human rights granted by the Constitution may be enforced by the National Court under s 57 of the Constitution. There are other constitutional remedies such as compensation under s 58 of the Constitution.


Section 23 of the Constitution grants power to the National Court to sanction any breach of a prohibition, restriction or duty imposed by a constitutional law.


To the extent that Article 11.1 affects the rights of persons to enforce these rights before the courts in Papua New Guinea, it is inconsistent with the Constitutional provisions relating to the jurisdiction of the courts over those matters under the Constitution and therefore invalid.”


  1. I am of the view that, that decision is not relevant and applicable to the case at present. Here is why I have arrived at that view. The article the Court considered in that case was Article 11.1, which read:

“Article 11

Claims and Civil Jurisdiction

  1. Designated Persons shall not be subject to the civil jurisdiction of the courts and tribunals of Papua New Guinea with respect to acts or omissions done within the course of, or incidental to, official duties.”
  2. The issue concerning that article was whether the provision was unconstitutional to the extent that it ousted the civil jurisdiction of the courts in PNG for Australian Federal Police officers engaged under the ECP arrangement. That was the proper context in which the ECP case and its decision should be viewed. Kennedy and his learned counsel are taking us way away from the context in which the ECP case was determined and the context of the case that is at hand. The case before this Court has nothing to do with an ouster of the jurisdiction of this or any other court in PNG. Instead, this is a case in which Kennedy is alleging certain breaches of his rights as guaranteed by our Constitution and alleges breaches of certain provisions of the PPCA and MACMA and he is effectively seeking this Court’s intervention in a criminal case that is pending before a criminal court in Australia. As already noted, such an application in PNG cannot be permitted.
  3. The basic or fundamental human rights which are enshrined in our Constitution are universal. Australia subscribes to those rights and in appropriate cases enforces them. The following passage from the Australian Government’s Attorney Generals website best states Australia’s position regarding the enforcement of human rights:

“Australia is founded on the rule of law and has a strong tradition of respect for the rights and freedoms of every individual. Human rights are recognised and protected across Australia through a range of laws at the federal and state and territory levels, the Australian Constitution, and the common law.”[2]


  1. The only difference between PNG and Australia is s.57 (1) of the PNG Constitution in so far as a court or a Judge is empowered to initiate proceeds for the enforcement of a person’s human rights without waiting for an appropriate application by an affected or interested party. Australia and most other countries do not have such self-initiating powers. Instead, they act on the complaints or applications made by those whose rights have been breached or are likely to be breached.
  2. Additionally, as we already noted, the criminal proceedings are pending in Queensland, Australia. It is a well-known fact that PNG’s Criminal Code was adopted from the Queensland Criminal Code upon independence: See R. v. Ebulya [1964] P & NGLR 200. After independence, there has been some changes with either a complete removal or an addition of offences and in some cases, there has been variations: See Francis Potape v. The State (2015) SC1613 at [21 – 24 (wrongly numbered 23, 24, 23]; Private Nebare Dege v. The State (2009) SC1308 at [34]; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855 at [152].
  3. Further, Australia and PNG have the same legal system with some variation, but the due process of the law is the same. Both are part of commonwealth of nations following the common law system with a Westminster system of government. With that came the process and procedures except for a few aspects such as jury trial. Even civil practice and procedure including the rules of evidence are very similar to Australia.[3] Statutory interpretation in PNG is materially the same as in Australia and many other common law countries.[4] Also, like PNG, Australia has her Mutual Assistance in Criminal Matters Act 1987 (Federal No. 85). Section 57 of the PNG MACMA provides for exclusion of foreign evidence if it “appears to the court’s satisfaction that the interests of justice would be better served if the foreign material were not adduced as evidence.” There might be similar provisions in the Australian legislation which Mr. Kennedy could make use of and object to “the evidence” he is seeking to have retrieved and destroyed in PNG and ask for the same similar kinds of reliefs there.
  4. Given the similarity in the law and practice especially in the criminal justice system in Queensland, Australia, and PNG with their respective legally systems, Kennedy had the obligation to, but he failed to demonstrate in any manner or form as to how he will or is precluded from raising the same issues and seek the same kinds of reliefs he is seeking here in the relevant Australian criminal court. In these circumstances, and in the absence of any evidence and or demonstration to the contrary, I am of the view that, it is open for Kennedy to raise the same issues he is raising and seek the same or similar reliefs he is seeking through this proceeding in the relevant Australian criminal court before which the relevant proceedings are pending.
  5. In arriving at the above view, I also note that, policing was historically defined by territorial limits between states within states as in the case of the Australian states or between countries. This saw cases of hot pursuits and border incursions and territorial limits causing serious problems for policing and law enforcement. Offenders in some cases were able to flee the jurisdiction in which they committed offences and hide in another. Advancing into the 21st Century saw much improvement in international criminal policing. Cross border police cooperation developed significantly from unilateral hot pursuits and border incursions in pursuit of offenders to now advanced and complex systems of intelligence gathering and information sharing between different jurisdictions made possible in some cases by international agencies such as the International Criminal Police Organisation or Interpol for short. PNG is a member of Interpol with a unit in PNG called INTERPOL National Central Bureau coming directly under the Police Commissioner.[5] It has now become increasingly the concern of all states to track down offenders across borders and have them prosecuted. Some of the offences such as those Kennedy has been charged with are common or similar offences amongst many countries. It is now possible than ever before for offenders to be tracked down caught and charged and prosecuted even if they cross borders and go into hiding. The enactment of the MACMA in 2005 was in line with those advancements. Yet, at the same time, there are serious challenges attending all the relevant processes and procedures from securing the relevant evidence and producing them at the trial, to arresting, charging, and promptly bringing an accused to a fair trial. Whatever the difficulties are, once a person is charged and brought before a criminal court having the necessary territorial jurisdiction, that court is often left to deal with all the issues presented, unless the case presents a rear case of conflict of laws or choice of law challenge in which case the principles governing the doctrine of forum no conveniens would apply. This case does not present strictly speak, a case for consideration of the doctrine.
  6. Additionally, I note this is one case in which the principle or doctrine of judicial comity also applies. Neither counsel assisted this Court with any submissions on this point. Looking for help elsewhere, I came to the decision of Justice Brown of the US in Mast, Foos, & Co. v. Stover Mfg. Co. 8 [1900] USSC 107; 177 U. S. 485, 488 (I900), where his Honour said:

“Comity is not a rule of law, but one of practice, convenience, and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has a substantial value in securing uniformity of decision and discouraging repeated litigation of the same question. But its obligation is not imperative. ... Comity persuades; but it does not command. It declares not how a case shall be decided, but how it may with propriety be decided. It recognizes the fact that the primary duty of every court is to dispose of cases according to the law and the facts; in a word, to decide them right. ...”


  1. As will be apparent from the above statement of the principle, judicial comity is not a rule of law but is one of practice, convenience, and expediency. Through this practice, courts in different countries extend the courtesy of recognizing the powers and functions of each other in any given case and always try to avoid taking any step or action that might amongst others, amount to an interference with or otherwise adversely affect proceedings already commenced and pending in another court. This could result in a dismissal or a stay of proceedings pending the hearing and conclusion of the proceedings that are pending in the other court. This is necessary to possibly secure uniformity of decisions, discourage repeat litigation of the same question or issue, avoid taking much of the courts time and increased costs to the parties and the courts.
  2. In the present case, there is no dispute that the court that is seized of the pending criminal matter is the relevant Australian court and as already noted, this does not present a case for consideration and application of conflict of laws principles to determine which of the courts, this Court, or the Australian court has the necessary jurisdiction to deal with the pending criminal proceeding. Kennedy’s main concern here is his claim of the evidence against him in the pending criminal proceeding being obtained in breach of certain provisions of the PNG Constitution, the PPCA and MACMA by reason of which, he is seeking a retrieval into and destruction of the evidence in question in PNG and thereby effectively deprive the Australian criminal court of those evidence. As much as Kennedy wants justice, the victims of his alleged offence also demand justice. These competing demands for justice need to be carefully considered and a well considered decision must be arrived in the interest of doing justice. That can only happen within and in the context of the pending criminal proceeding in Australia. As noted, if it were not for the fact that the criminal proceedings that are pending in Australia, Kennedy is not entitled as a matter of law in PNG to come to this Court in its civil jurisdiction and obtain the relief he is seeking outside the relevant criminal process and proceeding.
  3. In these circumstances, I consider the most sensible approach would be for this Court to refrain from arriving at any decision that has the effective of adversely affecting or interfering in any manner or form with the Australian criminal court dealing with the proceedings that are pending before it. That means the pending Australian criminal proceeding must be allowed to take their normal cause in the relevant Australian court. That Court will amongst others deal with the question of the admissibility of the evidence Kennedy is seeking to have retrieved into PNG and destroyed through this proceeding. This is necessary to avoid any possible conflicting outcomes or decisions, duplication of proceedings and costs and taking up of much of the limited judicial time by two separate proceedings in two different courts in two different countries.

Answer to the question presented


  1. Based on foregoing statement of the relevant law and discussions, I answer the first main question in this proceeding in this way. No, s.155(4) and s. 57 of the Constitution do not authorise a grant of a relief outside the criminal justice system while a related criminal proceeding is pending in a domestic or foreign court or jurisdiction. The party making such an application must make his or her application within the existing criminal proceeding, wherever that might be.
  2. Turning then to the second complicating factor presented against a ready dismissal of the proceedings for abuse of process, is what appears to be a disclosure of a possible cause of action. That issue is the subject of the third and remaining main issue or question presented in this case. I turn to a consideration of that question now.

Issue (3) - Does the proceeding fail to disclose a reasonable cause of action and must therefore be dismissed?


  1. The principles of law govern the subject is well settled in our jurisdiction. In Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea (2006) N3950, I looked up most of the case law up to that time from both within PNG and overseas and summed up the relevant principles in this way (footnotes omitted):

“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.


  1. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
  2. The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.” In other words, “the object of the rule was to get rid of frivolous actions.”
  3. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
  4. A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
  5. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
  6. The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:

‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.’


  1. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
  2. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
  3. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is ‘obviously and almost incontestably bad.’ In other words, this discretion can be exercised only in cases that ‘are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks’ for.”
  4. To this I added:

“... the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O. 1, r.7 of the Rules18 in appropriate cases.”


  1. As would be apparent for summary of the principles the Courts power to summarily dismiss a claim:

“must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is ‘obviously and almost incontestably bad.’ In other words, this discretion can be exercised only in cases that ‘are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks’ for.”


  1. The Supreme Court in its decision in Philip Takori v. Simon Yagari & Ors (2008) SC905, endorsed that summation of the principles and the addition I made in this way:

“We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O 12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments.”


  1. The decision in Takori v. Yagari inclusive of my decision in Kerry Lero’s case were cited with approval in Michael Kuman v Digicel (PNG) Ltd (2013) SC1232. In Kein Wanire v. Chillion Biloi (2018) SC1721, the Supreme Court cited the decision in Takori v. Yagari and Kerry Lero’s cases as authorities on the meaning of the phrase “cause of action”. In William Powi v. Niugini Building Supplies Ltd (2016) SC1501, the Supreme Court cited the decision in Takori v. Yagari as authority for the emphasis on the need for the Court to be satisfied that the case before it is “obviously and almost incontestably bad” before it can proceed to dismiss a proceeding summarily. There are other decisions of the Supreme Court which similarly endorse these principles of law: See Jackson Tuwi v. Goodman Fileder International Ltd (2016) SC1500.
  2. Applying these principles of the law to the present case, I note Kennedy’s Originating Summons clearly claims declaratory reliefs on the basis of which, he is seeking the consequential reliefs for retrieval from Australia and into PNG and thereafter a destruction of the evidence the subject of this proceeding. He is also seeking orders restraining the defendants from using “the evidence” in any manner or form. The basis for asking for these reliefs are clear allegations of violations of his right of privacy which constituted breaches or violations of certain provisions of the Constitution, the MACMA and the PPCA namely, (in order of pleadings), ss. 1, 2, 197, 51, 37, 38 and 49 of the Constitution, ss. 7, 11, 13, 14, 16, 17 and 20 of the MACMA and ss. 3 and 4 of the PPCA. These claims are based on allegations of breach of specified Constitutional and other statutory rights, process, and procedures in PNG and enforceable only in PNG and not Australia or else where. The basis for alleging the various breaches is also stated or disclosed in the Originating Summons.
  3. Claims for remedies for breach of a person’s constitutional or human rights is a well-trodden road in our jurisdiction. Damages in various amounts have been awarded. I reviewed some of the relevant cases on point and awarded K8,000.00 for injuries caused to the plaintiff in Kipahi v. Nambos (2020) N8437. Most of these cases are for breach of constitutional or human rights resulting in personal injuries or loss or damage to properties. I am not aware of any case on breach of one’s privacy as claimed here and as guaranteed by the Constitution and protected by the PPCA. Whether Kennedy’s claims can be sustained and all or only some of the reliefs he is seeking can be granted is not an appropriate and relevant consideration at this stage. That is a matter for trial.

Conclusion and answer to the question Issue 3


  1. Kennedy is not through this proceeding seeking damages for alleged breaches of his constitutional or statutory rights. He is instead seeking to ultimately secure a retrieval and destruction of evidence that are relevant and concern the pending Australian proceeding, a remedy provided for by s. 6 of the PPCA. This proceeding is therefore effectively an attempt at running Kennedy’s defence outside the criminal proceeding that a pending against him. But is that sufficient to dismiss this proceeding? I have not been assisted with any submissions by the defendants as to the application of the PPCA and the reliefs it expressly provides for. In these circumstances I find this case does not present an “obviously and almost incontestably bad” case, such that it must be summarily determined. Instead, I find the proceeding does disclose a possible cause of action which can only be pursued in PNG. Consequently, I consider it appropriate and fair to all parties that this proceeding should be stayed pending the outcome of the criminal proceedings in Australia. Upon final determination of the pending criminal proceeding the plaintiff would be at liberty to decide whether to pursue the proceeding in the current form seeking the same reliefs or in a different form with different reliefs.

Final Decision and Orders


  1. Going by the foregoing reasons and answers to the questions presented, I have ultimately arrived at the following decision and orders:

__________________________________________________________________
Jema Lawyers: Lawyers for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendants

[1] Most of these decisions are discussed in an article by C. D. Dusten and S.G.A. Pitel, The Right Answers to Ontario's Jurisdictional Questions: Dismiss, Stay or Set Service Aside, Advocates Quarterly, Vol. 30, p. 297, 2005, which provides the basis for the points made here.


[2] Found at https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-protections
[3] See D. H. Katter, R. J. Gordon and E. G. Anderson, Civil Procedure in Papua New Guinea (LexisNexis, 2006) and S.Injia, Injia on Evidence in Papua New Guinea and the Pacific (UPNG Press, 2013).
[4] See S. Injia, Injia on Statutory Interpretation in PNG and the Pacific (UPNG Press, 2013).
[5] https://www.interpol.int/en

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