Gagma v Meava [2022] PGNC 37; N9480 (11 March 2022)

N9480

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 7 OF 2022
BETWEEN:
CAMILLUS MONDIA GAGMA
Plaintiff/Applicant

AND:
FIRST CONSTABLE KAISER MEAVA, Police Informant of Kundiawa Police Station
First Defendant

AND:
SERGEANT ANTON WUS, Police Prosecutor at Kundiawa District Court
Second Defendant

AND:
MAGISTRATE PONING MAKAP, Senior Provincial Magistrate, Kundiawa District Court Sitting in its Criminal Jurisdiction
Third Defendant

AND:
THE ASSISTANT REGISTRAR, National Court of Justice at Kundiawa
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Goroka: Mugugia, AJ
2022: 1^st, 11^th March

JUDICIAL REVIEW – application for leave for judicial review – review of Committal Court decision which committed the Plaintiff/Applicant to stand trial in the National Court – criteria to be satisfied when applying for leave for judicial review – whether the Plaintiff has an arguable case – considerations - based on documents relied on, Plaintiff does not have an arguable case – whether the Plaintiff has exhausted all available administrative remedies – considerations - the Plaintiff has not exhausted all available administrative remedies – application for leave for judicial review is refused.

Cases Cited:
Papua New Guinea Cases

Asakusa v. Kumbakor (2008) N3303
Innovest Limited v. Pruaitch (2014) N5494
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417.

Overseas Cases

R v. Somerset County Council, ex parte Fewings [1995] EWCA Civ. 24
Sent v. Principal District Court Magistrate Cosmas Bidar (2017) SC1582

Counsel:

B. Koningi, for the Plaintiff/Applicant
No appearance for the Defendants

RULING

11^th March, 2022

1. MUGUGIA, AJ: On 15 November 2021, the Plaintiff, a lawyer by profession, was committed by the Committal Court in Kundiawa to stand trial in the National Court in Kundiawa on two counts of misappropriation, and two counts of conspiracy to defraud under the Criminal Code Act. The Committal Decision was made by the Third Defendant sitting as the Committal Court Magistrate in the Kundiawa District Court in its criminal jurisdiction. Aggrieved by this Committal Decision, the Plaintiff filed this judicial review proceedings in the National Court in Goroka on 18 January 2022.
   
2. The Plaintiff is now before me with his application seeking leave from this Court to review the Committal Decision. Two preliminary issues relating to the competency of the Originating Summons, and the right of the State to be heard at the leave stage were raised by the Court. The Plaintiff’s lawyer Mr Koningi was given an opportunity to address the Court on these issues. I will deal with these two issues first.
   

COMPETENCY OF THE ORIGINATING SUMMONS

3. The Plaintiff sought leave in paragraph one of his Originating Summons filed on 18 January 2022. In paragraph two, he sought a direction pursuant to Order 16, Rule 3(8)(a) of the National Court Rules for stay. The issue I was faced with was: “Whether the Originating Summons renders the proceedings incompetent?”
   
4. An application for leave must be made ex parte by Originating Summons pursuant to Order 16, Rule 3(1) and (2) of the National Court Rules. An applicant must not plead any other relief in the Originating Summons apart from leave to apply for judicial review. See Innovest Limited v. Pruaitch (2014) N5494 and Kalinoe v. Paul Paraka Lawyers (2014) SC1366.
   
5. When asked by the Court whether the Originating Summons was in order, the Plaintiff’s lawyer Mr Koningi submitted that he will only rely on paragraph one of the Originating Summons. In the exercise of my discretion, I will not dismiss the proceedings because I am of the view that the relief for leave has been clearly pleaded in the Originating Summons. If I dismiss the proceedings because of this technical issue, it will not do justice to the Plaintiff. The other relief sought in the Originating Summons is struck out for being incompetent.
   

THE RIGHT OF THE STATE TO BE HEARD AT THE LEAVE STAGE

6. The State is named as a Defendant in this proceeding. The Claims By and Against the State Act 1996 provides for claims by and against the State. Pursuant to Section 8 of this Act, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard. This is a mandatory requirement.
   
7. The Solicitor General is the advocate for the State in matters coming before the courts. The Plaintiff’s evidence showed that the Solicitor General was advised of the judicial review matter, and the hearing date of the leave application. Koningi Lawyers’ letter dated 24 February 2022 to the Secretary for Justice was copied to the Solicitor General. The letter was received by the Solicitor General’s Executive Assistant namely Tau Embora. No State lawyer appeared in Court at the hearing of the leave application. I allowed Mr Koningi to proceed with his client’s application for leave as I was satisfied that the State was advised of the hearing date.
   

CRITERIA TO BE SATISFIED WHEN APPLYING FOR LEAVE FOR JUDICIAL REVIEW

8. An applicant for leave is required to satisfy the following requirements for leave:
   

(a) Locus standi.
(b) Undue delay.
(c) Arguable case.
(d) Exhaustion of administrative remedies.

9. The issue for determination at this leave stage is whether the Plaintiff has satisfied all the requirements for leave.
   
10. I have considered the relevant documents before me and submissions of Counsel. I have formed the view that the Plaintiff has sufficient interest in this matter because the Committal Decision directly affects him. The Committal Decision was made on 15 November 2021, and the judicial review proceedings was filed on 18 January 2022. There has been no undue delay in bringing the matter to Court. These two requirements have been satisfied by the Plaintiff. Based on a quick perusal of the materials before me, I am of the view that the application for leave does not present an arguable case, and the requirement of exhaustion of administrative remedies has not been satisfied by the Plaintiff. I refuse the Plaintiff’s leave application. I set out my reasons for decision below.
    

WHETHER THE PLAINTIFF HAS AN ARGUABLE CASE

11. The Plaintiff relied on his Statement in Support and Affidavit in Support both filed on 18 January 2022. Under the grounds in the Statement in Support, the Plaintiff referred to Section 33 of the Public Hospitals Act 1994, and Section 8 of the Audit Act 1989. It is pleaded that the Third Defendant failed to take into account relevant considerations in terms of evidence and submissions on law, and took into account irrelevant considerations based on the Prosecutor’s submissions, and thereby committed an error in law on the face of it. As such, it was unreasonable and in breach of the Wednesbury rule of unreasonableness. The Plaintiff alleged breach of Section 59 of the Constitution by the Third Defendant in that she failed to consider the Plaintiff’s submissions on legality of information and prosecution.
    
12. The decision which is the subject of review in this proceedings is the Third Defendant’s Committal Decision of 15 November 2021. Committal proceedings are conducted by a Committal Court Magistrate in accordance with the procedures found in Part VI of the District Courts Act. The District Courts Act is the applicable statute here.
    
13. There will be an error of law if the Committal Court failed to comply with a mandatory statutory requirement in the District Courts Act. There will be a breach if the Committal Court Magistrate failed to take into account relevant considerations prescribed by a statutory provision in the District Courts Act, or took into account irrelevant considerations.
    
14. In R v. Somerset County Council, ex parte Fewings [1995] EWCA Civ. 24, Lord Justice Simon Brown identified three types of considerations which are:
    

“First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so.”

15. The test which Injia DCJ (as he then was) referred to as the proper and sufficient pleading test in Asakusa v. Kumbakor (2008) N3303 is whether the grounds pleaded in the Statement in Support contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached, with reference to established grounds of review which the law recognizes as proper grounds for review.
    
16. In the present case, the Plaintiff has failed to plead those considerations clearly identified by the District Courts Act as considerations to which regard must be had. The Plaintiff has not shown those considerations clearly identified by the District Courts Act as considerations to which regard must not be had. The Plaintiff failed to plead the relevant statutory provisions in the District Courts Act which are relied on.
    
17. I will apply the proper and sufficient pleading test here. On a quick perusal of the Plaintiff’s Statement in Support and Affidavit in Support, I am of the view that the grounds pleaded in the Statement in Support do not contain a clear and concise description of the specific statutory provision(s) in the District Courts Act alleged to have been breached by the Third Defendant. The Plaintiff did not clearly plead the statutory and procedural role or duty under the District Courts Act that the Third Defendant is alleged to have breached.
    
18. The Plaintiff referred to the Public Hospitals Act 1994, and the Audit Act 1989 in his Statement in Support which are not applicable in the present case. The grounds of review in the present case fail to meet the proper and sufficient pleading test. The grounds are incompetent and not arguable. Further, the supporting affidavit does not support the grounds of judicial review pleaded in the Statement in Support. There is no clear evidence of error of law in the Committal Decision.
19. With regard to the ground that the Plaintiff breached Section 59 of the Constitution, the Plaintiff’s supporting affidavit does not support this ground. His affidavit shows that both the Plaintiff’s submissions titled ‘Submissions on Sufficiency of Evidence and Preliminary Issues of Legality of Prosecution’ and the prosecution’s response to the Plaintiff’s submissions were filed and before the Committal Court for consideration.
20. Based on documents relied on, the Plaintiff does not have an arguable case.
    

WHETHER THE PLAINTIFF HAS EXHAUSTED ALL AVAILABLE ADMINISTRATIVE REMEDIES

21. The applicant for leave must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417, and Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
    
22. One of the requirements in the judicial review process is that all avenues should first be exhausted. If this requirement is applied properly and strictly, no criminal process should ever be the subject of a judicial review: Sent v. Principal District Court Magistrate Cosmas Bidar (2017) SC1582.
23. Annexure “D” in the Plaintiff’s affidavit in support is the Notice of Committal dated 15 November 2021, and the Committal Proceedings Worksheet containing the Ruling on Sufficiency of Evidence. Term 2 of the Committal Order reads:

“Matter shall be listed on the next Criminal Call-Over of the National Court on a date and time convenient for the National Court.”

24. The Plaintiff’s evidence clearly shows that the criminal process is still in motion and not exhausted. The plaintiff has not exhausted this criminal process yet which is available to him.
    

CONCLUSION

25. For the foregoing reasons, I refuse the Plaintiff’s application for leave for judicial review. Since there was no appearance for the State, no order for costs will be made.
    

COURT ORDERS

26. I make the following orders:
    

1. The Plaintiff’s application for leave for judicial review is refused.

2. I make no order as to costs.

3. Time for entry of these orders is abridged to the date and time of settlement of these

orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
B. Koningi: Lawyer for the Plaintiff