Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557 (5 June 1998)

Unreported Supreme Court Decisions

SC557

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC APPEAL NO 2 OF 1998
BETWEEN
THE RT HON SIR JULIUS CHAN - APPELLANT
AND
THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA - RESPONDENT

Waigani

Amet CJ Sakora Sevua JJ
5 March 1998
5 June 1998

Counsel

NM Cooke QC for the Appellant

D Cannings for the Respondent

5 June 1998

Amet CJ Sakora Sevua JJ

AMET CJ SAKORA SEVUA JJ: The Appellant appeals against the Judgment and Orders of the National Court constituted by the Honourable Justice Salika given on 10 December 1997 setting aside the order of another National Court constituted by the Honourable Justice Woods made on 10 November 1997 granting leave to the Appellant to apply for Judicial Review.

The Appellant had made an ex parte application to the Court pursuant to O 16, r 3 (2) of the National Court Rules (Rules) for leave to seek judicial review of the Respondent Ombudsman Commission’s investigation and report into the purchase of the Cairns Conservatory by the Public Officers’ Superannuation Fund Board. The Court granted three main orders ex parte; leave to apply for judicial review, injunction against distribution of any report of the investigation, pending determination of the application for judicial review and that the Ombudsman Commission give discovery of all documents relating to the investigation.

The Ombudsman Commission filed Notice of Motion in the National Court seeking, inter alia, the following orders:

The orders made on 10 November 1997 be set aside pursuant to O 12, r 8 of the Rules, that the Respondent be granted leave to appear on the Application for Leave and that the Application for Leave be refused.

On 10 December 1997 Justice Salika made the following relevant orders:

(i) The Orders of National Court on 10 November 1997 be set aside.

(ii) Leave for Judicial Review be refused.

(iii) The Plaintiff (Sir Julius) be granted four weeks extension within which to be heard in relation to the Cairns Conservatory deal.

(iv) The Ombudsman Commission be restrained from publishing its final report within the four weeks extension.

APPELLANT’S SUBMISSIONS

The Appellants principal ground of appeal is that the learned trial judge was led into error by the Respondent applying under O 12 r 8 (3) of the Rules to set aside all the orders made by Woods J on 10 November, 1997 including the order made under O 16 r 3 granting leave for judicial review.

It was submitted that an application for leave for judicial review made under O 16 r 3 is specifically authorised to be made ex parte and so there are no other parties other than the applicant. Consequently, it was submitted, O 12 r 8 (3) has no application.

The Appellant submitted that if the Respondent wished to set aside, quash or vary Woods J’s orders granting leave they should have appealed to the Supreme Court pursuant to O 12 r 11 and not applied to set aside the orders in the National Court under O 12 r 8 (3).

These submissions were made before Salika J and His Honour dealt with them.

RESPONDENT’S SUBMISSIONS

The Respondent’s first submission in response is that the National Court has the power to set aside an order granting leave for judicial review and ancillary orders. This power was derived from two separate sources, it was submitted; O 12 r 8 of the Rules and the Courts inherent powers conferred by s. 155 (3) (b) of the Constitution.

It was submitted that the National Court has broad discretion to set aside or vary orders made in the absence of one of the parties, in special circumstances. Relevant considerations will be:

· The reason why the party failed to appear.

· Whether there was any undue delay by the absent party in making the application to set aside.

· Whether there would be any prejudice to the party in whose favour the order has been made.

· Whether “common sense” requires that the order be set aside.

It was submitted also that although O 16 makes provision for an appeal to the Supreme Court against an order granting or refusing leave, it does not prescribe a mandatory or exclusive procedure. Order 16 does not prescribe a stand-alone exclusive procedural code for dealing with applications for judicial review. Order 16 cannot be read in isolation. It must be interpreted in the context of other parts of the Rules, including O 12.

It was further submitted that there is no indication in the Rules that the only avenue available for a party aggrieved by an order granting leave for judicial review is to appeal to the Supreme Court. Appeal to the Supreme Court is one option only available to an aggrieved party. But the existence of the option does not have the effect of excluding the right to apply to the National Court to have the orders set-aside, provided that the order granting leave was made in the absence of the party which seeks to exercise that right.

The English Privy Council case of Minister for Foreign Affairs v Vehicles and Supplies Ltd [1991] 4 ALL ER 65 was further relied upon for the submission that, an ex parte order is, in it’s nature, provisional only and the existence of a right of appeal to a higher court against an ex parte order does not impliedly oust any reconsideration of the matters either by the same or a different judge.

The second source of power relied upon by the Respondent to support the submission that the National Court has the power to set aside an ex parte order by itself or another judge, is s. 155 (3) of the Constitution.

The case of SCR No 10 of 1996; Re Mune and Poto, Unreported Supreme Court Judgement No SC 508 of 27 September, 1996 was relied on for the proposition that, s. 155 (3) (b) confers the inherent common law powers of a superior court of record on the National Court to be able to correct its own mistakes, and that a party affected does not have to appeal to the Supreme Court to correct such mistakes.

It was further submitted this power allows the National Court to correct mistakes made unilaterally by the Court and also mistakes caused by a party to the proceedings leading the court into error.

A number of English common law cases were relied upon for the further propositions that; the inherent powers of a superior court of record, such as the National Court, include the power to set aside its own ex parte order, and that it is appropriate for a court which has granted leave for judicial review, to later set it aside, as an alternative to appealing to a higher court.

The relevant provisions of O 16 r 3 are as follows:

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported:

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filled before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4) ...

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

Order 16 rule 11 states that:

An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a judge granting or refusing an application for leave under Rule 3 or any application for judicial review.

Order 12 rule 8 (3) (a) states that:

“The Court may, on terms, set aside or vary an order:

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order.”

It should firstly be noted that the Application for leave to move for judicial review is made ex parte, pursuant to O 16 r 3 (2). By r 3 (3), the applicant is required to give notice to the Secretary for Justice, not later than two days before the application is made, together with copies of the statement and affidavits in support.

There is no requirement to give notice to any other party, and consequently there is no automatic right given to any party to be heard in opposition to the application for leave. There are strictly therefore no other parties to the application, other than the applicant. The State only is entitled to be given notice pursuant to the Claims By and Against the State Act 1996 and to be heard on application for leave.

Order 12 r 8 (3) (a) is applicable “where the order has been made in the absence of a party...” It also envisages that the matter would have a proper party which could have been expected to have been given notice of the motion for the order, and that the party would have been expected to give notice of intention to defend.

In our opinion, O 12 r 8 (3) (a) does not apply to an ex parte order made pursuant O 16 r 3, because an application made pursuant to O 16 r 3 does not have any other parties. It cannot properly be said by any person that the order under O 16 r 3 was made in their absence, to bring an application under O 12 r 8 (3) (a), to set it aside.

We believe this opinion is reinforced by the specific terms of O 16 r 11 which provides for appeal by way of motion to the Supreme Court to set aside or discharge any order granting or refusing an application for leave under Rule 3 or indeed an application for judicial review. This right of appeal is given further effect in the Supreme Court Rules Order 10.

We consider that O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules do provide the exclusive procedure for reviewing application for judicial review or applications for leave. Indeed when O 16 rs 3 and 11 and O 12 r 8 (3) (b) are read together it becomes clear that it was not intended the O 12 r 8 (3) (a) should apply as an alternative that O 16 r 11. We believe O 12 r 8 (3) (b) apply to ordinary inter partes actions when one of the parties was not present. An application for leave is not such an inter partes action.

We consider therefore that, in the face of a very specific appeal provision in O 16 r 11, the application by the Respondent pursuant to O 12 r 8 (3) (b) was misconceived and led Justice Salika into error. In principle we do consider it good policy and practice to be able to apply to set aside an order under O 12 r 8 (3) (a) as well as the option to appeal to the Supreme Court by O 16 r 11.

We find therefore that Justice Salika lacked jurisdiction to entertain the applications by the Respondent, pursuant to O 12 r 8 (3) (a). The Respondents recourse was to appeal by virtue of O 12 r 11, to the Supreme Court.

We do not consider it necessary to consider the submissions on the next head of power relied upon under Constitution s. 155 (3) (b). The short answer, however, is that it only becomes necessary to consider an inherent head of power if jurisdiction or power is not conferred by the Constitution or statute law. We have found that power is vested exclusively in the Supreme Court by virtue of O 16 r 11 and not in the National Court.

It is not necessary for the purposes of this judgement, but we do refer to the proposition relied upon from the case of SCR No 10 of 1996; Re Mune and Poto (Supra) that s. 155 (3) (b) confers a inherent common law powers of a superior court of record on the National Court to be able to correct is own mistakes. We wish to record that we do not consider the National Court and the Supreme Court need to go to the English Common Law to find the source of their inherent power. This inherent power is sourced from the source of the authority and power that vests jurisdiction in these courts, the People of Papua New Guinea, if it is not specifically vested in the Courts by the Constitution.

Constitution s. 155 (4) however, specifically vests in the Supreme and National Courts inherent powers “to make such...orders as are necessary to do justice in the circumstances of a particular case”.

We do not consider it necessary to consider the other grounds of appeal raised and addressed because this threshold issue is determinative of the appeal. The National Court had no jurisdiction to entertain the applications. It therefore erred in making all the orders. All the orders of the National Court made on 10 December, 1997 are set aside and orders of 10 November, 1997 are restored, and the application for review proceed to hearing.

Costs to the Appellant.

Lawyers for the Appellant: Maladinas Lawyers

Lawyer for the Respondent: D Cannings