Rimbao v Pandan [2011] PGSC 3; SC1098 (24 February 2011)

SC1098

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCOS 1 OF 2011

ORIGINATING SUMMONS FILED PURSUANT TO
SECTION 18 (1) OF THE CONSTITUTION

BETWEEN:

RONALD RIMBAO
Plaintiff

AND:

DON PANDAN, CLERK OF PARLIAMENT,
PNG NATIONAL PARLIAMENT
First Defendant

AND:

FRANCIS MARUS, ACTING SPEAKER OF
THE PNG NATIONAL PARLIAMENT
Second Defendant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Salika DCJ, Hartshorn J and Kariko J
2011: 21st & 24th February

SUPREME COURT – Originating Summons – s. 18 Constitution - application for a stay - substantive proceeding frivolous and an abuse of process of the court - inherent jurisdiction of the court to ensure the integrity of its process

Facts:

The Plaintiff, by originating summons filed pursuant to s. 18 Constitution, seeks declaratory and other relief that the election of Mr. Michael Ogio as Governor General of Papua New Guinea on 14th January 2011 is unconstitutional and null and void. The Plaintiff now seeks a stay of Mr. Ogio's swearing in as Governor General pending the determination of the proceeding.

Held:

1. A factor to be considered in determining an application for stay orders is whether the applicant has an arguable case: McHardy v. Prosec Security and Communication Ltd [2002] PNGLR 279, PGSC 31. After considering this factor, it is clear to us that Mr. Rimbao does not have an arguable case and does not have any case at all.

2. This proceeding is an abuse of process as it is frivolous. The plaintiff's proceeding is bound to fail if it is heard substantively.

3. The exercise of this Court's authority to dismiss a proceeding as an abuse of process can be by its own motion.

4. The proceeding is dismissed. The costs of the defendants of and incidental to the proceeding are to be paid by the plaintiff.

Cases cited:
Papua New Guinea Cases

Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
Don Polye v. Jimson Papaki & Ors (2000) SC637
McHardy v. Prosec Security and Communication Ltd [2002] PNGLR 279, PGSC 31
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N3050
Tamali Angoya v. Tugupa Association Inc (2009) SC978

Overseas Cases

Tampion v. Anderson [1973] VicRp 32; [1973] VR 321

Counsel:

Mr. P. Ame, for the Plaintiff
Mr. J. Amanu, for the First and Second Defendants
Messrs K. Kua, L. Kandi and T. Tanuvasa, for the Third Defendant

24th February, 2011

1. BY THE COURT: This is an application for the swearing in of Mr. Michael Ogio as Governor General to be stayed pending the determination of this proceeding. There is also a further application for the dismissal of the proceeding.

Background

2. The appointment of Sir Paulias Matane as Governor General dated 25th June 2010 was declared and ordered unconstitutional and invalid by this Court on 10th December 2010. This Court also declared and ordered that for the purposes of nominating the next Governor General all proposals, votes, decisions and other processes made or conducted in May and June 2010 in connection with the appointment of the Governor General are a nullity and shall not be relied on and the process of nominating the next Governor General shall recommence ab initio in accordance with s. 3 (a) Organic Law on the Nomination of the Governor General (Organic Law).

3. The plaintiff, Mr. Rimbao, sought to be a candidate for election as the Parliament's nomination for the consequent vacancy in the office of Governor General, but was not nominated.

4. Mr. Rimbao filed an appeal in the National Court in respect of his non nomination but this appeal was not heard before the election of Mr. Michael Ogio as Parliament's nominee for the vacant office.

5. Mr. Rimbao, by originating summons filed pursuant to s. 18 Constitution, seeks declaratory and other relief that the election of Mr. Michael Ogio on 14th January 2011 is unconstitutional and null and void.

Preliminary

6. Counsel for the State sought an adjournment of Mr. Rimbao's application so that an application to dismiss the proceeding could be filed. Following our refusal of the adjournment application, leave was sought for the State's application to dismiss to be heard together with Mr. Rimbao's application. We ruled that we would determine whether to entertain the State's application during our consideration of Mr. Rimbao's application.

Stay application

7. A factor to be considered in determining an application for stay orders is whether the applicant has an arguable case: McHardy v. Prosec Security and Communication Ltd [2002] PNGLR 279, PGSC 31. After considering this factor, it is clear to us that Mr. Rimbao does not have an arguable case and does not have any case at all, for the following reasons:

a) Mr. Rimbao relies upon s. 5 (4) Organic Law. That section provides that an election of the Parliament's nominee for the office of Governor General shall not be held until all appeals under s. 5 (4) have been dealt with.

b) for there to be an appeal under s. 5 (4), the Clerk of Parliament must have rejected a proposal for nomination. For that to occur there must be a proposal for the Clerk to reject.

c) the grounds of Mr. Rimbao's appeal purportedly made under s. 5 Organic Law, include that his proposal of 28th May 2010 was rejected by the Clerk.

d) this Court has declared and ordered that proposals made or conducted in May and June 2010 are a nullity and shall not be relied upon. So any proposal made or conducted in respect of Mr. Rimbao in May or June 2010 is a nullity and cannot be relied upon.

e) Mr. Rimbao concedes that there was no other proposal for his nomination.

f) as there are no proposals in respect of Mr. Rimbao, there are no such proposals that the Clerk could have rejected and there cannot be a valid appeal under s. 5 Organic Law.

g) further, Mr. Rimbao alleges in his grounds of appeal and in this proceeding that the Clerk failed in his duty to provide Mr. Rimbao with a proposal form before 11th January 2011. There is no requirement in the Organic Law that the Clerk provide a proposal for nomination form to a person who wishes to be a candidate for election as Parliament's nominee for the position of Governor General. In the absence of such a requirement, there cannot be a failure of a duty. The submissions by counsel for Mr. Rimbao that the Clerk owes a duty to provide a proposal form to every person who wishes to be a candidate and to the effect that persons wishing to be candidates should queue outside the Clerk's office to receive the proposal form, demonstrate a misreading and misunderstanding of the Organic Law and demean the integrity, status and position of the Office of the Governor General.

h) in any event, an alleged failure of duty is not a ground for an appeal under s. 5 Organic Law.

i) it is clear for the above reasons that Mr. Rimbao does not have the necessary standing to file an appeal under s. 5 and is not able to rely upon s. 5 (4) as he purports.

Abuse of process

8. In determining that Mr. Rimbao does not have any case we are satisfied that this proceeding is an abuse of process as it is frivolous. Proceedings have been held to be frivolous if the plaintiff would be bound to fail if the matter went to trial: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N3050 and Tampion v. Anderson [1973] VicRp 32; [1973] VR 321. We are satisfied that Mr. Rimbao's proceeding is bound to fail if it was heard substantively.

9. As to this Court's authority where it determines that there is an abuse of process, in Tamali Angoya v. Tugupa Association Inc (2009) SC978, this Court referred to the case of Don Polye v. Jimson Papaki & Ors (2000) SC637 where this Court said:

"This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."

10. The exercise of this Court's authority can be by its own motion: Tamali Angoya (supra). As we are satisfied that there is an abuse of process as referred to, pursuant to this Court's inherent jurisdiction, it is ordered that this proceeding is dismissed.

11. Given this decision it is not necessary to consider the other arguments of counsel. The costs of the defendants of and incidental to this proceeding are to be paid by the plaintiff.

_________________________________________________________

Ame Lawyers: Lawyers for the Plaintiff
Kelly Naru Lawyers: Lawyers for the First and Second Defendants
Posman Kua Aisi: Lawyers for the Third Defendant