Attorney General v Hamidian-Rad [1999] PGSC 37; [1999] PNGLR 444; SC630 (27 August 1999)

[1999] PNGLR 444

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ATTORNEY GENERAL - MICHAEL GENE;
THE INDEPENDENT STATE OF PAPUA NEW GUINEA;
INTERNAL REVENUE COMMISSIONER – MR DAVID SODE

V

DR. PIROUZ HAMIDIAN-RAD

WAIGANI: KAPI DCJ; SHEEHAN, SALIKA JJ
24, 27 August 1999

Facts

The respondent, pursuant to a direction by the third appellant under s 266 of the Income Tax Act, was prevented from leaving the country. He sought and was granted an order restraining the third appellant from preventing him from leaving the country.

Held

1. The nature of the order sought before the National Court was in the nature of certiorari.
   
2. The proper procedure for obtaining an order for certiorari is provided by O 16 of the National Court Rules.
   
3. The procedure followed in the National Court was in breach of the requirements under O 16 of the National Court Rules and amounted to an abuse of the Court’s process.
   

Papua New Guinea cases cited

Application by Aiten Maniho v Luther Wenge & Chief Magistrate [1999] PNGLR 472.
Chan v Ombudsman Commission (Unreported judgment of the Supreme Court SC557 dated 5th June 1998).

Francis Kawage v Solicitor-General & The State (1999) N1875 Unreported.

NEC v PEA [1993] PNGLR 264.

Other cases cited

O’Reilly v Mackman [1983] UKHL 1; [1982] 3 WLR 1096.

Counsel

H D Polume-Kiele, for the first and second appellant.
G Sheppard, for the third appellant.
P Parkop, for the respondent.

27 August 1999

BY THE COURT. This is an appeal against the decision of the Chief Justice dated 13th August 1999 wherein he granted permission for the respondent to leave the country and to return on the 29th September 1999.

In view of the urgency of the matter, the Court expedited the hearing of the appeal. We quashed the decision of the Chief Justice on the 27th August and remitted the matter back to the National Court to be dealt with in accordance with the procedures set out under O 16 of the National Court Rules (Rules) with full reasons to be published at a later date. This we now do.

It is helpful to set out the narrative of events leading up to the appeal. The respondent, a non-citizen, was employed as an economic advisor to the National Government under the terms of a contract of employment. It is not necessary to set out the full details of the contract of employment for the purposes of this appeal.

The Secretary of Foreign Affairs issued an administrative ban on preventing the respondent from leaving the country. The respondent obtained a National Court Order on the morning of 24th July 1999 effectively lifting the ban to travel and restrained the Secretary for Foreign Affairs, Minister for Foreign Affairs, their agents and employees from preventing the respondent from leaving the country.

After having obtained the orders, the respondent proceeded to leave the country on an Air Niugini flight bound for Singapore on the same afternoon. However, the Secretary and the Minister for Foreign Affairs obtained a National Court Order preventing the respondent from leaving the country. The Air Niugini flight was prevented from leaving and the respondent was taken off the flight pursuant to this order.

On the 26th July 1999, the Internal Revenue Commissioner issued a notice of assessment on the respondent for payment of income tax under the provisions of the Income Tax Act.

On the 27th July 1999, the Commissioner for Internal Revenue Commission (the third appellant) issued a direction to all carriers under s 266 of the Income Tax Act directing them not to carry the respondent outside the country.

Also on the 27th July 1999, the respondent obtained a National Court Order effectively setting aside the earlier National Court Orders restraining him from leaving the country obtained on the afternoon of 24th July 1999.

The only obstacle effectively preventing the respondent from leaving the country was the direction given under s 266 of the Income Tax Act.

In the mean time, the respondent was arrested by the police for false pretence and misappropriation. The respondent appeared in the District Court in respect of these charges on 29th July 1999 and was allowed out on bail. On 31st July 1999, the respondent applied for and obtained permission under s 23 of the Bail Act to leave the country pending the determination of criminal charges.

On the 6th August 1999, the respondent filed a motion in the National Court seeking amongst others, an order to restrain the third appellant from preventing the respondent from leaving the country. The motion was heard by the Chief Justice and he effectively nullified the direction given under s 266 of the Income Tax Act and gave permission for the respondent to leave the country and return on 26th September 1999.

The appellants appealed against the whole of the decision of the Chief Justice. It is this appeal which came before us for determination. The grounds of appeal are as follows:

"(1) The learned trial judge erred in law in falling to uphold the appellants’ submission that the Notices issued under s 266 of the Income Tax Act could only be validity challenged by way of a judicial review under Order 16 of the National Court Rules, and the respondent had failed to demonstrate any good reasons for departing from the requirement of Order 16.

(2) the learned trial judge erred in law in failing to require the respondent to comply with the Notice issued by the third appellant pursuant to s 266 of the Income Tax Act.

(3) The trial judge erred in law in failing to order the immediate execution of the Notice issued by the third appellant on the Westpac Bank (PNG) Limited pursuant to s 266 of the Income Tax Act.

(4) The learned trial judge erred in law in failing to make orders to protect the revenue of the second appellant.

(5) The learned trial judge erred in law in failing to properly exercise his discretion in that:-

(i) He failed to give weight to the appellants’ submission as to the likelihood of the respondent not returning to Papua New Guinea.

(ii) He failed to give due weight to the appellants’ submission that the respondent had attempted to leave Papua New Guinea after the service upon him of the Section 266 Notice.

(iii) He failed to give due weight to the appellants’ submission as to the likelihood of the respondent dealing with the bank accounts outside of Papua New Guinea.

(iv) There was no evidence or no sufficient evidence to support the requirement for the grant, refusal or discharge of the injunction of the balance of convenience, such convenience weighing in favour of the appellants.

(6) The learned trial judge erred in law in failing to give proper weight to the evidence tendered before the Court that the respondent had transferred or otherwise dealt with assets in apparent breach of the Order made on the 24th of July 1999.

(7) The learned trial judge erred in law in failing to give proper weight before the Court that the respondent has been charged with indictable offences under the Criminal Code relating to dishonesty."

Ground 1

Counsel for the appellants submitted that in essence the order sought by the respondent in this case is in the nature of prerogative writ of certiorari and the proper procedure for obtaining this remedy is provided for by Order 16 of the Rules. They submitted that the order granted by the Chief Justice is in breach of the Rules and therefore an abuse of the process of the Court.

Alternatively, they submitted that insofar as there is discretion in the Court to waive or dispense with the Rules of Court, the circumstances in this case did not warrant the exercise of discretion waiving the application of the procedure under Order 16.

Counsel for the respondent conceded in the Court below and before us that O 16 provides the proper procedure for obtaining a prerogative writ but contended that the trial judge was correct in proceeding to deal with the substantive matters without recourse to those procedures. He sought to support the decision on alternative bases under s 57, s 155(4) of the Constitution and the principles of equity.

We wish to point out that the grounds of appeal before us do not deal with the merits of the case, namely, whether the Internal Revenue Commissioner has exercised his discretion lawfully under the Income Tax Act. The question before us is, whether, the procedure adopted before the Chief Justice is in breach of O 16 and therefore an abuse of the process of the court?

There is no question that the National Court has jurisdiction to make orders in the nature of certiorari (see common law as adopted under Schedule 3.2 of the Constitution, s 155(4) (first part) of the Constitution). While s 155 (4) grants this power to both the Supreme Court and the National Courts, in this matter, we are concerned only with the power of the National Court.

The question which has arisen in this ground of appeal relates to the proper procedure for obtaining a prerogative writ in the National Court.

Section 184 of the Constitution grants legislative power to the judges to make provision for practice and procedure in the National Court. The Rules have been made in accordance with this provision. Order 16 provides for procedure for obtaining orders in the nature of prerogative writs. On 27th August 1999, we concluded in our brief reasons as follows:

"1. The nature of the order sought before the Chief Justice was in the nature of certiorari.

2. O 16 of the National Court Rules provide the proper procedure for obtaining such an order.
   
3. The proceeding before the Chief Justice was in breach of O 16 and amounts to an abuse of the process of the court."
   

The question of the proper procedure to be adopted was considered in NEC v PEA [1993] PNGLR 264. The National Court action was commenced by way of originating summons for a declaration that the appointment of Luke Lucas as Secretary of Department of Justice was illegal and therefore null and void. The Supreme Court concluded that in so far as a declaration may be made, O 16 r (2) of the National Court Rules does not provide for an exclusive procedure. It provides that: "An application ... made for a declaration...may be made by way of an application for judicial review..." (emphasis added). In this regard, the Court adopted the opinion of Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; [1982] 3 WLR 1096. The Court was reinforced in its opinion in this regard by the right given to parties to choose between the procedures available by O 4 r 3 of the Rules.

The Court also considered the question of the abuse of the process of Court. In this regard the Court adopted the general rule propounded by Lord Diplock in O’Reilly v Mackman (supra). The Court however, did not apply the test on the basis that the remedy sought was one of declaration only under O 16 r 2 of the Rules. The assumption that is apparent in that conclusion is that the declaration sought could not be sought by way of a prerogative writ under O 16 r 1 of the Rules. If the Court considered that that was the case, it would have considered exercising its discretion on the question of the abuse of the process of court.

The Court on page 268 makes the distinction between prerogative writs and declarations and injunctions:

"The distinction in O 16 relate to the nature of remedies set out in r 1(1), which provides judicial review as the exclusive procedure, and declaration or injunction under r 1(2) which provide for optional procedures."

O 16 r 1 is expressed in mandatory terms: "An application for an order in the nature of...certiorari....shall be made by way of judicial review in accordance with the provisions of the Order" (emphasis added). The implication is that this is the exclusive procedure. This view is reinforced by the terms of O 16 r 3 of the Rules. This sub-rule was considered by the Supreme Court in Chan v Ombudsman Commission (Unreported judgment of the Supreme Court SC557 dated 5th June 1998). The Court held there that O 16 r 3 provides an exclusive procedure and therefore O 12 r 8 (3) is not applicable.

Injia J. in Application by Aiten Maniho v Luther Wenge & Chief Magistrate [1999] PNGLR 472 and Francis Kawage v Solicitor-General & The State (1999) N1875 Unreported has reached the same conclusion that the procedure for a prerogative writ is exclusively set out under O 16 r 1 of the Rules. In the latter case at pages 3-4 he stated:

I have reservations concerning the regularity of the procedure employed in this application. An application by an interested party for an order for mandamus to compel a statutory authority to perform its statutory duty where it has refused or failed to perform that duty is required to be commenced by an application for judicial review under Order 16 of the National Court Rules. Order 16 r (1) provides that: ‘An application for an order in the nature of mandamus, prohibition, certiorari or quo warrant shall be made by way of an application for judicial review in accordance with this Order’. The requirement under O 16 r (1) is mandatory. A person aggrieved by the failure of a statutory authority to perform its statutory duty has no right to seek an order for mandamus in the Courts. He only does so by leave of the National Court; O 16 r 3. This is the normal procedure to be adopted when the Court is asked to intervene to compel an administrative authority to perform its statutory duty function.

We have reached the conclusion that a person who is desirous of applying for an order in the nature of a prerogative writ is required to apply under O 16 of the Rules. This is an exclusive procedure provided by the Rules (O 16 r 1). This procedural point was taken up by counsel for the appellants and was conceded by counsel for the respondent at the outset of the proceedings in the National Court. In our view, the Chief Justice fell into error when he rejected these submissions.

We have considered the power of the National Court to dispense with the National Court Rules under O 1 r 7 but counsel for the respondent has not submitted any ground upon which the Chief Justice could exercise his discretion to dispense with compliance with O 16 of the Rules. This cannot be a valid basis for upholding the decision.

Counsel for the respondent sought to rely on s 57 of the Constitution to support the judgment. However, when asked to address us on this issue, counsel for the respondent was unable to point to any right under the Constitution, which could be enforced under s 57. The only right which may be relevant is the freedom of movement under s 52 of the Constitution. This is a right reserved for citizens only and is not applicable to the respondent who is a non-citizen.

Counsel for the respondent sought to rely on s 155(4) of the Constitution. We agree that s 155(4) of the Constitution grants jurisdiction to the National and Supreme Courts to make orders in the nature of prerogative writs. The provision does not deal with the manner in which these orders may be obtained. Section 184 of the Constitution authorizes the judges to make rules of court to regulate practice and procedure. Order 16 has been made in accordance with this provision and regulates the manner in which orders in the nature of prerogative writs may be obtained. We have already dealt with this issue. Section 155(4) of the Constitution has no bearing on the practice and procedure.

For all these reasons, we allowed the appeal and sent the matter back to the National Court to be dealt with in accordance with the procedure set out under O 16.

It is not necessary to deal with the other grounds of appeal.

Lawyers for the first and second appellants: A/Solicitor-General.
Lawyers for the third appellants: Maladinas.
Lawyers for the respondent: Powes Parkop.