Nii v Lavutul [2025] PGNC 423; N11562 (26 September 2025)

N11562

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 35 OF 2025

BETWEEN:
HARVEY NII
Plaintiff

AND:
SAMUEL LAVUTUL – MAGISTRATE OF THE WAIGANI COMMITTAL COURT
First Defendant

AND:
SERGEANT ELIJAH ARON OF POLICE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: PURDON-SULLY J
5, 26 SEPTEMBER 2025

JUDICIAL REVIEW – PRACTICE & PROCEDURE – Plaintiff granted leave to judicially review decision committing him to stand trial in the National Court – Whether National Court in its civil jurisdiction should intervene in a criminal process -Appropriateness of – s155(3) of Constitution – Appropriateness of – proceedings dismissed as abuse of process - In the public interest and administration of justice to allow the due process and procedure in criminal proceedings to take their normal course.
JUDICIAL REVIEW – PRACTICE & PROCEDURE - Plaintiff raises grounds of competency – Whether Defendants have relied on correct jurisdictional basis – Court may on its own motion raise abuse of process and whether the machinery of the Court has been used correctly

Cases cited
Agiru v Electoral Commission [ [2002] SC687
Alex Timothy v. Hon Francis Marus (2014) SC1403
Angui v Wagun [2011] N4194
Bluewater International Limited v Mamu [2019] SC1798
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118
Karl Paul v Aruai Kispe [2001] N2085
Keka v Yafaet [2018] SC1673
Koim v O’Neill [2016] N6558
Kwayok v Singomat [2017] N7097
Moran v Lloyds (1981) 1 Lloyds Reports 423
O’Neill v Eliakim [2016] SC1524
O’Neill v Eliakim [2017] 1654
Pala v Bidar [2016] SC1515
R v Inland Revenue Commissioners: Ex parte National Federation of Self Employed and Small Businesses Ltd ( [1981] UKHL 2; [1981] 2 WLR 722
Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police in Relation to Warrants of Arrest issued under the Arrest Act, Chapter 339 and charges of Contempt of Court [2014] PGSC 19; SC1388
Sent v Bidar [2017] PGSC 23; SC1600
Somare v Manek [2011] SC1118
The National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Unde v Samson [2016] PGNC 315; N6520
Wartoto v State [2015] SC144
Zachary Gelu v. Sir Michael Somare (2008) N3526

Counsel
Mr J Simbala for the plaintiff
Mr H Wangi for the State

1. PURDON-SULLY J: This is the Court’s ruling on an application to summarily dismiss as an abuse of process proceedings for judicial review of the decision of the First Defendant to commit the Plaintiff to stand trial in the National Court on serious criminal charges.
2. Notwithstanding clear guidance by the Supreme Court on whether a criminal proceeding can be the subject of a civil proceeding - the conclusion in the negative, applications to that end are increasingly being made in this Court.
3. While the National Court has an inherent power pursuant to s 155(3) of the Constitution to review any exercise of judicial authority, the question is the appropriateness of the Court in its civil jurisdiction exercising its powers of judicial review when the matter is before the same Court in its criminal jurisdiction.
4. Further, as is the case here, on the hearing for summary disposal, what, if any, is the impact of a grant of leave having been made to judicially review the decision.
5. While each case must turn on its own facts and circumstances for the reasons that follow, I have concluded that the proceedings are an abuse of process and should be dismissed for the following reasons:
   1. Where judicial review involves an exercise of judicial discretion at every stage of the process, the grant of leave on an ex parte application does not preclude the Court as the protector of its process from considering whether the proceedings are an abuse, whether or not, as part of that discussion, the State raised, did not raise or withdrew an argument at the leave hearing.
   2. A Court in its civil jurisdiction should proceed with great caution before intervening in criminal proceedings. This is not only because the processes are different or because of the extensive safeguards for an accused person within the criminal process that enable an accused person to challenge any irregularity or error within that process, but the potential risks of such interference to the administration of justice. To that end the legal tests and/or principles enunciated by the Supreme Court in Wartoto v State [2015] SC144 (Wartoto) should be applied strictly (See also Sent v Bidar [2017] PGSC 23; SC1600 (Sent)).
6. During the course of my consideration of the matter I shall address salient points raised by each of the parties.

BACKGROUND

7. The relevant background is outlined in the Plaintiff’s Statement in Support Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules as amended (NCR).
8. The Plaintiff is a lawyer by profession who operates a private legal practice in Port Moresby under the name of Harvey Nii Lawyers.
9. Between 1993 and 2014 the Plaintiff acted for Paul Paraka, a lawyer,
10. On 4 September 2013 the Plaintiff was charged with three (3) criminal offences involving conspiracy to defraud, stealing and money laundering in connection with a payment made by Mr Paraka into the trust account of Harvey Nii Lawyers Trust Account.
11. Mr Paraka was also charged in connection with the same financial transactions. While these charges against Mr Paraka were later discharged, he was convicted in the National Court on charges to do with separate payments.
12. There were delays in prosecution of the charges against the Plaintiff.
13. On 15 April 2024 the Plaintiff filed two applications before the Waigani Committal Court which included an application to dismiss the outstanding charges against him inter alia on the ground of the dismissal of the same charges against Mr Paraka and abuse of process.
14. On 23 August 2024 the Plaintiff was committed to stand trial in the National Court under s 96 of the District Courts Act (the decision).
15. Aggrieved, on 3 April 2025 the Plaintiff sought leave to judicially review the decision.
16. In his Statement in Support the Plaintiff raised as grounds of review:
    1. Error of law/breach of procedure in that the learned Magistrate did not follow the mandatory procedures required by s 96 of the District Courts Act in that he failed to administer the s 96 statement to the Plaintiff or permit him to make a statement in his defence prior to his committal.
    2. Breach of the rules of natural justice (section 59 (2) of the Constitution) and procedural fairness inter alia by denying the Plaintiff’s right to a fair hearing by failing to allow the Plaintiff to make the aforesaid statement and further by failing to show how he had arrived at his decision that there was sufficient evidence to commit the Plaintiff to stand trial.
    100. Jurisdictional error and unreasonableness in not dismissing the charges of stealing and conspiracy to defraud inter alia when the same charges had been dismissed against his alleged co-conspirator Mr Paraka.
17. Specifically, the Plaintiff raised complaint that the learned Magistrate:
    1. failed to address threshold jurisdictional issues raised by the accused and simply said these can be raised before the National Court;
    2. committed the Plaintiff to stand trial without administering the mandatory processes depriving the accused of an opportunity to give a statement in his defence prior to committal;
    100. satisfied himself that the evidence in the police hand up brief was sufficient to satisfy the elements of the charge without reproducing the provisions of the Criminal Code and identifying the elements he said supported the charge.
18. On 16 June 2025 the Plaintiff was granted leave.
19. On 25 June 2025 the Plaintiff filed a substantive Notice of Motion for Judicial review pursuant to Order 16 Rule 5 (1) of the NCR. The Plaintiff seeks relief by way of the prerogative writs of certiorari quashing the decision and dismissal of the charges with the refund of his bail. He further seeks by mandamus that the Waigani Committal Court reconvene to dismiss the charges and discharge the Plaintiff. He further seeks a declaration that the Plaintiff is entitled to damages for malicious prosecution and breach of his constitutional rights.
20. By Notice of Motion filed 24 July 2025 the State sought dismissal of the proceedings in its entirety as an abuse of process.
21. It is contended on behalf of the Defendants that its is an abuse of process for the Plaintiff to seek to invoke the court’s civil jurisdiction to interfere with the powers of the criminal court, the criminal procedure with adequate remedies available to the Plaintiff to ensure that his rights are protected and any error made by the learned Magistrate addressed. The Defendants rely upon the Supreme Court authority of Wartoto and Sent.
22. The Plaintiff raises a number of arguments inter alia:
    1. The Defendants are not entitled to challenge a grant of leave especially on grounds of abuse of process.
    2. The Defendants have not properly invoked the correct jurisdiction of the Court in relying on “Order 16 Rule 13 (13) (2) (b) (a)” of the NCR and not “Order 16 Rule 13(13) (2) (a) and (b)” such that their motion should be dismissed as being incompetent.
    100. Order 16 of NCR does not provide for amendments to defective Notices of Motion.
    4. Abuse of process as a ground of dismissal of proceedings after grant of leave is not provided for by Order 16 of NCR.
    5. The National Court has an inherent power to review any exercise of judicial authority by virtue of s 155(3) of the Constitution. The pronouncements by the Supreme Court in Wartoto and Sent with respect to the appropriateness of judicial review as a procedure to review a decision made during the course of criminal proceedings should be confined to the facts of those cases.

DISCUSSION

23. The principal issue for consideration is whether in seeking to engage this court by way of judicial review in civil proceedings in the National Court at the same time the matter is in its criminal jurisdiction the Plaintiff is abusing the processes of the court.
24. The starting point for this discussion must be Wartoto, a unanimous pronouncement by a five-man (5) bench following a comprehensive consideration of the authorities within this jurisdiction and overseas. It was a pronouncement reinforced, if not extended, in clear terms, by the Supreme Court in Sent.
25. While the facts in Wartoto are distinguishable from the facts in the present matter, as the Supreme Court (Manuhu J, Murray J, Pitpit J) observed in Sent at [19], the legal principles enunciated were not based on the facts of the case but a clear pronouncement of the law.
26. The National Court is a court of unlimited jurisdiction. As earlier observed pursuant to s 155(3) of the Constitution it has inherent power to review any exercise of judicial authority including Committal Court decisions by way of judicial review provided the relevant criteria are met.
27. It also has the discretionary powers provided by s 155(4) of the Constitution to make, in such circumstances as seem to it 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. However, these powers should not be read and applied to readily override the criminal trial process in the National Court as stipulated by the Criminal Code (Wartoto per Injia CJ at [12], [56]; Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118 (Salika DCJ, Kirriwom J and Kandakasi J).
28. The Court’s exercise of its supervisory powers always remains discretionary.
29. Relevantly, there are significant procedural differences between the judicial review process and a criminal process where none of the requirements for leave in judicial review apply in the criminal process. As the authorities articulate they are completely different processes with a different standard of proof. Further, there are a larger range of procedural safeguards built into the criminal process to give full protection of the law to an accused person. The National Court before which the criminal trial is conducted is duty-bound to conduct those proceedings fairly and according to law such that an “accused persons committed to stand trial in the National Court should have no reason for concern” (Wartoto per Injia CJ at [12]; Sent at [20]-[21]).
30. Those avenues and procedural safeguards, described as “elaborate and ...most favourable to the accused”, to give full protection to an accused’s constitutional right to the benefit of presumption of innocence and a fair trial, were outlined in Wartoto (per Injia CJ at [10]-[11]; at [40]-[43] per Sakora J & Kandakasi J).
31. Given the checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country, including the Constitution, which are open to an accused person at any stage of the proceedings within the criminal track to involve the court's inherent powers, there is no vacuum that can be filled by invoking the court's prerogative powers in judicial review through a civil procedure outside the defined criminal practice and procedure guidelines (Wartoto per Kirriwom at [112(v)]).
32. Further, as the authorities make plain, there is good reason for a cautious approach to intervention by a civil court in criminal proceedings, discussed in particular at [31] – [32] in Wartoto, which bears repeating.
33. The risks can involve delay and cost with impacts for the criminal justice process.
34. It can open the floodgates of complaint, Lord Denning in Moran v Lloyds (1981) 1 Lloyds Reports 423 (cited with approval in Wartoto at [31]) describing the “modern phenomenon” where:

We often find that a man (who fears the worst) turns around and accuses those – who hold the preliminary inquiry – of misconduct or unfairness or bias or want of natural justice. He seeks to stop the impending charge against him. It is easy enough for him to make such an accusation. Once made it has to be answered.

35. In Zachary Gelu v. Sir Michael Somare (2008) N3526 (cited with approval in Wartoto at [32]) Cannings J put it this way:

If we do not insist on the rather strict test ... the court will create the environment in which any person who is fearful of exposure by a commission of inquiry or another investigatory agency will come to the court, knowing that they only have to establish an arguable case. The investigation will be stopped in its tracks. Time will be bought. Perhaps time to hide evidence. The courts may unwittingly be protecting those with something to hide rather than protecting the more legitimate interests of those with a right to know: the People of Papua New Guinea.

36. While I hasten to observe that there is no evidence to suggest that the Plaintiff seeks to engage in delay or is motivated by other improper motive, on the evidence it appears to be his actions that brought matters to a head, there is good reason for the age old tradition of non-intervention by a civil court in criminal proceedings.
37. While the court accepts that leave has been granted in the present case, a grant of leave does not preclude the court’s consideration of whether, following that grant, one based on a consideration of particular criteria, the proceedings involve an abuse of court process.
38. Putting to one side the peculiar nature of judicial review which involves two stages, the leave stage having now concluded and the Plaintiff having filed a substantive application for judicial review brought by way of separate application by Notice of Motion, the Plaintiff’s arguments ignore the purpose of the leave hearing and the role the court plays in the management of court business.
39. The purpose of leave, by reference to the well-established criteria of sufficient interest, no undue delay in bringing the application, arguable case or whether the applicant has exhausted all other avenues, is to prevent the time of the court being wasted by “busybodies, cranks and other mischief-makers” with misguided or trivial complaints (R v Inland Revenue Commissioners: Ex parte National Federation of Self Employed and Small Businesses Ltd ([1981] 2 WLR 722 per Scarman LJ at p749; see also Diplock LJ at p 739; O’Neill v Eliakim [2016] SC1524 per Sakora J at [55]).
40. In the context of the discretionary process involved in the court’s consideration of a grant of leave for judicial review, where it is possible for leave to be granted even if all of the requirements for leave are not met or leave refused where all of the requirements have been met, there is no evidence before this court to suggest that the Plaintiff’s complaint could be viewed as trivial or he a busybody.
41. Secondly, the grant of leave does not prevent the court thereafter dismissing the application for reasons that the court thinks would have justified a refusal of leave. The grant of leave is a preliminary procedural step that permits the matter to proceed to a full hearing on its merits. Considerations of leave do not end at that stage. They subsist, it being open to the court to address matters that may not have been fully addressed at the leave stage (Angui v Wagun [2011] N4194 at [25]; Koim v O’Neill [2016] N6558 at [155]; Kwayok v Singomat [2017] N7097).
42. The court should not lightly disregard an application based on a purported abuse of process because the State, for whatever reason, chose to run its case in a particular way before the Judge at a hearing of an ex parte application. The court, even on its own motion, has the power, and a duty, to robustly protect the integrity of its processes at every stage of the proceedings, to weed out actions that do not disclose a reasonable cause of action, that are frivolous, vexatious or an abuse of process or are irregular, to prevent the misuse of its procedural rules or that would otherwise bring the administration of justice into disrepute (Karl Paul v Aruai Kispe [2001] N2085 per Injia J (as he then was), cited with approval in Keka v Yafaet [2018] SC1673 at [26] and Bluewater International Limited v Mamu [2019] SC1798 at [38]; Somare v Manek [2011] SC 1118 at [14]-[15]; Agiru v Electoral Commission [ [2002] SC 687; see also Order 16 Rule 13(13)(2)(a),(b)(ii) of NCR).
43. While an order to grant or refuse to grant leave to apply for judicial review is open to appeal with leave, the parties are at liberty to thereafter pursue interlocutory matters within the provisions of Order 16, including summary determination and dismissal which includes, but is not limited to, the failure to comply with court directions, failure to file a Notice of Motion for substantive judicial review, want of prosecution, no reasonable cause of action and abuse of process (Agiru v The Electoral Commission [2002] SC687; see also Administrative Law and Judicial Review in Papua New Guinea by Christopher Karaiye, Notion Press 2019 at p 255),
44. It is submitted on behalf of the Plaintiff that the procedure under Order 16 is an exclusive procedure such that the other provisions of the NCR do not apply and that to that end the ground to dismiss proceedings for “abuse of process” in judicial review after the grant of leave is not provided for by Order 16 and therefore the Defendants’ motion to dismiss is incompetent and should itself be dismissed.
45. While the court accepts that judicial review is a process exclusively provided by Order 16, in my respectful view, to suggest that the court is unable to dismiss judicial review proceedings on the basis of “abuse of process” and/or to limit the meaning of “any other competency grounds” in Order 16 Rule 13(13)(2(a) as submitted by learned Counsel for the Plaintiff is not only contrary to a proper understanding of the meaning of the words in the sub-rule it would impede the development of the jurisprudence on a case by case basis.
46. As the Supreme Court affirmed in Alex Timothy v. Hon Francis Marus (2014) SC1403 (per Injia CJ, Davani & Gabi JJ at [22]):

Order 16 contains its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason such that it is not necessary to rely upon similar provisions in NCR.

[Underlining added]

47. The proposition contended by the Plaintiff would also offend Supreme Court pronouncement where in Agiru v The Electoral Commission (supra) the Court (Hinchliffe J, Jalina J, Batari J) outlined basic principles to be applied by the court in considering whether or not there has been an abuse of its processes. Those principles in essence are that the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process.
48. The court was not referred to any authority to suggest that these principles did not apply to judicial review. Indeed, they were principles applied by Nablu J in Unde v Samson [2016] PGNC 315; N6520, a judicial review proceeding in which learned Counsel for the Plaintiff in these proceedings appeared for the applicant Fifth Defendant, the court dismissing the application before it as frivolous and an “abuse of the Court’s process”.
49. The phrase abuse of process connotes that the process of the Court must be used properly and bona fide and is not to be abused. If the Court’s machinery is used improperly or incorrectly then the Court has a duty to intervene and prevent the abuse (Wartoto v The State [2015] PGSC 1; SC1411 (per Sakora J and Kandakasi J at [37].
50. Finally, and notwithstanding the arguments raised by the Plaintiff as to what is the meaning of an abuse of process and whether the abuse of process asserted by the Defendants falls within the meaning of “any other competency grounds” in Order 16 Rule 13(13)(2)(a), as the five bench Supreme Court said in The National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264:

It is not wise to indicate the circumstances that may amount to an abuse of process of the court. This can be developed on a case by case basis.

51. While unlike Order 12 Rule 40 of the NCR, the procedure under Order 16 Rule 13(13)(2(a) does not particularise either a lack of reasonable cause of action, frivolity or abuse of process as a particular ground for summary disposal, in my respectful view, if a proceeding met such criteria, it could not be viewed as a matter competently before the court. Each descriptor would go to the validity of the proceedings and thus its competency.
52. Turning now to the principal issue for consideration in the present matter, while the Plaintiff contends that he raised abuse of process and jurisdictional errors before the Committal Court, there is no persuasive evidence to suggest that the arguments raised by the Plaintiff with respect to the errors asserted to have been made by the learned Magistrate cannot be revived before the trial judge in the criminal proceedings now before the National Court (Wartoto per Injia CJ at [14]).
53. Further, and relevantly, there is no evidence to suggest that the Plaintiff has raised or intends to raise with the trial judge in the National Court what he asserts to be an obvious irregularity, defect or error on the part of the Magistrate in committing the Plaintiff to stand trial. Any issue alleging abuse of process should always be raised promptly before the trial Judge at the appropriate level of criminal law proceedings (Wartoto per Sakora and Kandakasi JJ at [51], [60]).
54. In my respectful view it is inappropriate, an abuse and an improper use of the process of the court for the Plaintiff to seek to invoke the court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising those matters before the criminal court and exhausting the avenues available to him at the relevant and appropriate stages and levels in the criminal process notwithstanding the other means afforded by the Constitution available to him (Wartoto per Injia CJ at [14]) per Sakora & Kandakasi JJ at [23]- [52], [60], [64], [72]).
55. That is the principal hurdle in this matter that the Plaintiff has failed to overcome.
56. My conclusion in this regard is supported by the later Supreme Court decision in Sent, handed down on 21 April 2017, the facts of that case and some of the arguments raised before the Supreme Court not dissimilar to the present matter before me.
57. In Sent, the appellant sought judicial review of his committal to stand trial in the National Court on fraud and related charges. The grounds upon which he sought judicial review included a failure by the Magistrate to act fairly in breach of s 59 (2) of the Constitution, in that he did not give any opportunity to the appellant to be fairly heard and in circumstances where he committed the appellant to stand trial in the National Court without first giving him the opportunity to exercise his right to give evidence if he so desired pursuant to section 96 of the District Court Act.
58. On application by the Public Prosecutor, the judicial review proceeding was dismissed on the basis that it did not disclose a reasonable cause of action, it was frivolous and vexatious and an abuse of process. The appellant appealed against that decision.
59. There were six (6) grounds of appeal which I outline in full, with underlining for emphasis:
    1. The primary Judge misapplied the ruling in Wartoto, when he held that the National Court sitting as a civil court having civil jurisdiction had no power to deal with criminal proceedings before the National Court exercising criminal jurisdiction when the court in the Wartoto’s case held that it would be inappropriate, and 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.
    2. The primary Judge erred in concluding that the only recourse for the appellant was to use the process under the Criminal Court as outlined in Wartoto’s case, when the facts of the case were at variance with the cited case in that there were no avenues or recourse available to the appellant except judicial review under Order 16 of the NCR or appeal and the appellant was entitled to institute judicial review proceeding to challenge his committal in circumstances where the Committal Magistrate failed to comply with Section 96 of the District Court Act and consequently denied the appellant the right to be heard.
    100. The primary Judge erred in concluding that there were other processes or avenues available when this issue was already dealt with at the leave stage where the court was satisfied that there were no avenues available to the appellant and it is not open to challenge except by appeal.
    4. The primary Judge erred in concluding that the judicial review proceedings duplicates criminal proceedings when the judicial review proceedings does not deal with the criminal charges but rather the order of the District Court committing the appellant to stand trial at the National Court and further that the issues raised in the criminal proceeding are not the same as issues raised in the judicial review proceeding.
    5. The primary Judge erred in holding that the National Court is seized of the matter in that proceedings in the National Court can only be commenced by indictment upon committal and that no indictment has been presented against the appellant; and
    6. The primary Judge erred in concluding that the appellant failed to inform the Court of the National Court proceedings when such facts have been made known to the Court by the appellant’s counsel during exchanges with the bench on various occasions leading up to the hearing and grant of leave.
60. After determining that the sixth ground of appeal did not raise a significant question of fact or law worthy of any consideration by the court, and after considering the other five grounds which related to the primary Judge’s interpretation and application of Wartoto, in dismissing the appeal the Supreme Court said the following at [19] – [29], with underlining again for emphasis:
    19. The Wartoto case was an application for permanent stay of a criminal proceeding after committal. This case is a judicial review application on grounds of unfairness and procedural breach. The processes and facts are distinguishable but the fundamental question in both cases is whether the National Court in its civil jurisdiction can intervene in the conduct of a criminal proceeding.
    20. There is a significant procedural difference between a judicial review process and a criminal process. In a judicial review proceeding, leave must first be granted. It is granted if the applicant has sufficient interest, if the application is brought within a reasonable time, if there is an arguable case or if the applicant has exhausted all other avenues. Upon grant of leave, the substantive review is then heard and the usual civil procedures, including the civil standard of proof, apply.
    21. That is a totally different process to the criminal law practice and procedure. None of the mentioned requirements apply in the criminal process. In the criminal process, in addition to the much higher standard of proof, mere breach of procedure does not automatically render a judicial act a nullity. It has to be demonstrated that such an error has resulted in a miscarriage of justice.
    22. Thus, under section 230 (2) of the District Court’s Act, an appeal against a decision of the District Court “shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.” Consistently, under section 23 (2) of the Supreme Court Act, the Supreme Court may dismiss the appeal if it considers that no miscarriage of justice has actually occurred notwithstanding that the point raised in the appeal might be decided in favour of an appellant.
    23. In Yaip Avini v The State [1997] PNGLR 212, among numerous other case precedents, not permitting counsel to make a no case submission is an irregularity or a procedural breach but the appeal was unsuccessful because the procedural breach did not result in a miscarriage of justice. The outcome would be different in a judicial review proceeding.
    24. The test for grant of leave and the whole nature of judicial review is totally different and incompatible with criminal law practice and procedure. Judicial review powers should never be used to circumvent a criminal proceeding.
    25. 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. A criminal process begins with police investigation and gathering of evidence, including issuance of a search warrant and a warrant of arrest and then a formal charging of an accused person. In the case of an indictable offence, a formal interview is usually conducted and recorded. There are procedural laws governing all of these processes, all of which are reviewable by the Committal Court and or the National Court exercising criminal jurisdiction.
    26. If the record of interview was conducted in breach of the Constitution, the National Court in its criminal jurisdiction has the power to deal with it. If a search warrant was defective, the National Court in its criminal jurisdiction can deal with it by excluding evidence that was illegally obtained. If the committal of an accused person to stand trial is not supported by evidence, the Public Prosecutor may file a declaration that he would not proceed with the charge or file a nolle prosequi. If he decides to proceed with preferred charges, a fair trial will be conducted and if found guilty, there is a right of appeal and review.
    27. Judicial review powers are designed for review of administrative acts and decisions. Court decisions are not administrative acts. Criminal law practice and procedure is a complete process. It commences with the decision of a police officer to arrest and ends with a finding of guilt or innocence by the National Court. A person convicted has the right of appeal or review. In all of these, there is a duty to ensure that an accused person is given a fair trial, including finality within a reasonable time and there is no miscarriage of justice.
    28. The facts in this case are distinguishable from the Wartoto case but the pronouncement of the law in the Wartoto’s case was not based on the facts – it was based on a fundamental procedural issue, that is, whether a criminal proceeding can be the subject of a civil proceeding, such as a judicial review proceeding. It is for this fundamental issue that a five member bench was empanelled to resolve the issue that should surely have an impact on cases such as this case. The decision was unanimously negative. It means that a criminal proceeding should never be the subject of a judicial review proceeding because the procedures and requirements are incompatible.
    29. For the foregoing reasons, we have reached the same conclusion as Gavara-Nanu J. who correctly applied the principles in the Wartoto’s case. The judicial proceeding does not disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of process. On that basis, the entire appeal has to be dismissed and we so order with costs which, if not agreed, shall be taxed.

[Underlining added]

61. It is submitted on behalf of the Plaintiff that the court in Sent did not consider nor address, and thus erroneously ignored, the National Court’s power of review under s 155(3)(a) of the Constitution as was done by the five-man bench in Wartoto.
62. It is further submitted that it was “erroneous and absurd for the Supreme Court in Sent to say that “judicial review powers are designed for review of administrative acts and decision only” because to do so would restrict the wide powers of review given to the National Court under the Constitution.
63. I am unable to conclude that this court should ignore the decision in Sent for the reasons advanced given that it was alert to the principles in Wartoto.
64. Nor does its failure to refer to s 155(3) of the Constitution suggest that it was necessary for the court to do so and/or again canvass all the matters comprehensively canvassed in the 173 paragraph decision in Wartoto. It can be fairly assumed that the Supreme Court understood that the starting foundation for judicial review is s 155(3) and (4) of the Constitution and the provisions of Order 16 of the NCR. The court observes, for example, that the Plaintiff did not invoke s 155(3) to engage the jurisdiction of the court in its Originating Summons, relying only on Order 16 Rule 3(1).
65. With respect to the court’s pronouncement that “judicial review powers are designed for review of administrative acts and decision only” that is not a matter on which I intend to express a view. Nor is it necessary to do so given that the principles enunciated in Wartoto are and Sent are clear and both decisions are binding on this court.
66. Given the checks and balances within the criminal process and the protections afforded to the Plaintiff under those safeguards, an interference by this court in that process would, in my respectful view, be wrong, contrary to authority and amount to an abuse of process.
67. In reaching that conclusion I have also considered the decisions in O’Neill v Eliakim [2017] 1654 and Pala v Bidar [2016] SC1515.
68. The former concerned an appeal by the then Prime Minister, the Honourable Peter O’Neill and Police Commissioner Gary Baki, arising out of an application by the Prime Minister and the then Police Commissioner to set aside and declare to be null and void the decision of the Chief Magistrate of Papua New Guinea to issue a warrant for the arrest of the Prime Minister. The Supreme Court (Yagi J, Higgins J & Foulds J) found the warrant to be defective on its face and the decision the subject of the appeal equally defective, the court quashing the arrest warrant.
69. Pala v Bidar also concerned a review of a warrant of arrest on administrative law grounds. The Supreme Court (Batari J, Sawong J, Higgins J) found the charge the subject of the warrant was not recognised as criminal by law. It quashed the order of the District Court and declared the warrant of arrest null and void.
70. While both decisions were handed down after Wartoto, I see no divergence on principle with that authority. Both concerned the validity of an arrest warrant, an administrative formality to enable a charge to be laid. Wartoto and Sent, on the other hand, related to a Magistrate’s decision to commit a person to stand trial for indictable offences. The distinction, to my mind, is important.
71. As the Court in O’Neill v Eliakim [2017] 1654 observed at [18]-[19] citing Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police in Relation to Warrants of Arrest issued under the Arrest Act, Chapter 339 and charges of Contempt of Court [2014] PGSC 19; SC1388), there is a clear difference between a person subject to an arrest warrant and one subject to a committal order. The decision to order the arrest of a person at common law is a serious infringement upon the liberty of the subject, the protection from such an infringement in this jurisdiction conferred by s.42 of the Constitution.
72. In the present case, the Plaintiff has been committed for trial for indictable offences. The matter is now before the National Court. That is whether it should remain. On the authorities as discussed it would be a clear abuse of the process of this court for the Plaintiff to resort to any other means to challenge charges against him without first making use of the process and procedures in the criminal justice process. Given that the criminal process is a complete one, I acknowledge however, as did the court in Sent, that the practical effect of that is that judicial review is unlikely to be available to the Plaintiff as a remedy.
73. While it is acknowledged that the Plaintiff feels aggrieved by asserted legal error and other breaches in respect of which he lays complaint, including his constitutional rights to a fair hearing at the committal hearing, and while he would be understandably anxious about the circumstances in which he now finds himself, the charges having laid dormant for years in circumstances where the same charges against an alleged co-conspirator were dismissed on sufficiency of evidence, he should have confidence in the protections afforded to him by the law within that process and the Constitution. I repeat what then Chief Justice Sir Salamo Injia said in Wartoto at [11], namely “accused persons committed to stand trial in the National Court should have no reason for concern”.
74. Finally, while the Plaintiff contends that the Defendants have not invoked the proper jurisdiction of the court in that they have in their Notice of Motion pleaded Order 16 Rule 13(13)(2)(b)(a) of the NCR, it is not necessary to rule on the Plaintiff’s application that the motion before the court is thus incompetent for two reasons.
75. Firstly, the court may raise the issue of the proceedings being an abuse of process on its own motion. It did so during the hearing. The court’s power to summarily dispose of proceedings under Order 16 is grounded in subrule (2)(a). The Court may do so on application by a party (sub-rule (2)(b)(i)), on the court’s own motion (subrule (2)(b)(ii)) or on referral from the Registrar ((2)(b)(iii)).
76. The submission on behalf of the Plaintiff that it is not open to the court to assume in the circumstances what the grounds for dismissal are as relied upon by the Plaintiff, cannot be accepted. There is no surprise nor unfairness to the Plaintiff. The Plaintiff was well prepared, its written submissions comprehensively addressing the principal ground raised, namely the principles enunciated in Wartoto (see for example its conclusion at [3] of written submissions).
77. As noted earlier, if the court is of the view that the proceedings are an abuse of process, the court should not stand idly by because the State has not invoked both (a) and (b) of sub-rule (2) correctly. In this case the need to address the matter promptly, without further delay, is heightened by the criminal proceedings on foot. Having raised the matter on its own motion it is not necessary, then, for the court to consider the further competency objection raised by the Plaintiff, namely with respect to the purported deficiencies in the affidavit of Herzon Wangi Jr filed on 24 July 2025.
78. Secondly, the court is aware, from other matters before it, that the numbering of Order 16 Rule 13(13)(2) as published on the Court website (and possibly elsewhere) is different from the numbering in the court’s hard copy publication of the relevant rule used by Judges of this Court.
79. The rule should read as follows:

(2) Summary disposal.

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
   

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court’s own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

80. The rule numbering appears as follows on the Court website:

(2) Summary disposal.

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
   

b. The Court may summarily determine a matter:

(a) on application by a party; or

(b) on the Court’s own initiative; or

(c) upon referral by the Registrar in accordance with the procedure set out in (3) below.

81. The Defendants rely upon Order 16 Rule 13(13)(2) (b)(a). It is unclear what version was relied upon and whether with respect to the jurisdictional basis relied upon for the orders sought the conjunction “and” is missing between (b) and (a). Given my ruling it is not a productive use of court time to explore the matter further.
82. If the State has proceeded on the basis of a reliance on both (2)(a) and (b) of Order 16 r 13(13)(2) then it should fix its precedent as this is not the first time the matter has been raised before this court against the State. If, however, this is a circumstance that has arisen, in whole or in part, from a discrepancy in the printing of the NCR then attention is directed to that circumstance generally.

CONCLUSION

83. I dismiss the judicial review proceedings as an abuse of process.
84. It is in the public interest and the administration of justice that the due process of the criminal law takes its proper course, for all of the reasons to which the five-man bench in Wartoto was alert and articulated.

ORDERS

85. The Court orders:
    1. The proceedings for judicial review commenced by way of Notice of Motion filed 25 June 2025 are dismissed.
    2. The Plaintiff pay the Defendant’s costs on a party/party basis to be agreed or taxed.
    100. Time to abridge.

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Lawyers for the plaintiff: Harvey Nii Lawyers
Lawyers for the defendants: Solicitor General