Pala v Koim [2015] PGSC 21; SC1436 (14 May 2015)

SC1436

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 105 OF 2014

BETWEEN

HON. ANO PALA, MINISTER FOR JUSTICE & ATTORNEY-GENERAL OF PNG
First Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP
First Respondent

AND

HON. PETER O'NEILL, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND

THE NATIONAL EXECUTIVE COUNCIL
Third Respondent

AND

SCA NO 106 OF 2014

BETWEEN

HON. PETER O'NEILL, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Appellant

AND

THE NATIONAL EXECUTIVE COUNCIL
Second Appellant

AND

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2014: 15 October & 2015: 14 May

PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal against grant of leave to apply for judicial review and grant of stay of decision – Executive decision – Decision to disband task force sweep team – Grant of leave discretionary – Principles of leave considered and applied – Arguable case – Whether arguable case established – Recourse in Court below – Whether issues raised in the proposed appeal determinative of primary rights of parties – Supreme Court Act – Section 14(3)(b).

Cases cited:

Wawoi Guavi Timber Company Ltd v. Ken Mondia (2007) SC1028
Matiabe Oberia v. Chief Inspector Michael Charlie & The State (2005) SC801
Paul Tiensten v. Sam Koim (2011) N4420
Alois Kingsley Golu v. National Executive Council (2011) N4425
Momis v. Attorney General (2000) N1951
National Capital District Commission v. Yama Security Services Pty Ltd (2003) SC707
Duma v. Meier (2007) SC898
Yer, Secretary, Department of Finance v. Yama (2009) SC996
Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (2012) N4902
PAC LNG International Limited & Ors v. SPI (208) Limited & Ors: OS No 172 of 2014 (Unnumbered & Unreported judgment of 22 April, 2014)
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:

Mr M. Varitimos, QC for Appellants (SCA No 105 of 2014)
Mr G. Egan with Mr M. Nale, for First Respondent (SCA No 105 of 2014)
Ms. T. Twivey, for Second and Third Respondents (SCA No 105 of 2014)
Ms T. Twivey, for Appellant (SCA No 106 of 2014)
Mr G. Egan with Mr M. Nale, for First Respondent (SCA No 106 of 2014)
Mr M. Varitimos, QC for Second Respondent (SCA No 106 of 2014)

RULING ON APPLICATION FOR LEAVE TO APPEAL

14 May, 2015

1. MAKAIL, J: There are two separate applications for leave to appeal for determination. One in SCA No 105 of 2014 and the other in SCA No 106 of 2014. Leave is being sought to appeal against two separate decisions of the National Court in proceedings OS (JR) 444 of 2014. The decisions are:
   
   • (a) the decision of the National Court (Gavara-Nanu J) given on 08 July, 2014 at Waigani in which his Honour granted leave to the first respondent to apply for judicial review of two National Executive Council ("NEC") Decisions Nos 191 of 2014 and 196 of 2014; and
     
   • (b) the decision of the National Court (Gavara-Nanu J) given 28 July, 2014 at Waigani in which his Honour granted a stay of the NEC Decisions pending the determination of the judicial review proceedings.
     
2. The NEC Decision No. 191 of 2014 dated 18 June, 2014 abolished the Taskforce Sweep Team ("TFS") and the NEC Decision No. 196 of 2014 dated 24 June, 2014 established an interim office for anti-corruption to replace TFS.
   
3. The two applications for leave to appeal were consolidated by way of an order made on 03 September, 2014. An appeal lies with leave insofar as the appeal is from interlocutory decisions and orders of the National Court under section 14(3)(b) of the Supreme Court Act (Ch No. 37). The two decisions of the National Court are interlocutory because they do not finally determine the rights between the parties. Thus, leave is required.
   
4. The appellants rely upon the following documents:
   
   1. Application for leave to appeal filed on 18 August, 2014 in SCA No 105 of 2014;
   2. Application for leave to appeal filed on 18 August, 2014 in SCA No 106 of 2014;
   100. Affidavit of Nicholas Tame filed on 18 August, 2014; and
   4. Affidavit of Steven Manoa filed on 11 September, 2014.
      
5. The affidavits contained various documents used in the National Court proceedings. One pertinent document is the transcript of the proceedings which may be found in the affidavit of Mr. Manoa.
   

Background Facts

6. The first respondent applied for leave to have the National Court review the two NEC Decisions. These decisions were a culmination of a number of NEC Decisions dating back to 2011. In a Policy Submission, the NEC set up a Task Force Sweep ("TFS") pursuant to NEC Decision No 03 of 2011. It was an investigative team made up of existing public servants from various departments and police officers. It was and is not a creature of statute. No-one was engaged to this group that was not already an employee of the State. The group were given Terms of Reference.
   
7. Further NEC Decisions were made concerning operational guidelines for TFS in NEC Decision No 14 of September, 2011, writing a policy framework for a permanent office in NEC Decision No 11 of 2012, and approval of more members for the TFS group in NEC Decision No 48 of 2013.
   
8. On 15 May, 2014 the Police Commissioner Sir Toami Kulunga was convicted of contempt of Court. The decision on sentence for Sir Toami was set to be delivered on 13 June, 2014.
   
9. On 12 June, 2014 a police officer attached to TFS applied for and obtained a warrant of arrest for the Prime Minister. On 13 June, 2014 Sir Toami was sentenced to three separate terms of 7 months imprisonment, to be served concurrently.
   
10. On 14 June, 2014 Ministers were advised that there was an NEC meeting to be held on 16 June, 2014. The main reason for the NEC meeting was to consider the replacement for the incumbent Police Commissioner, given that the Police Act makes being convicted of an offence a ground for removal of a Police Commissioner.
    
11. On the morning of 16 June, 2014 Sir Toami caused to be delivered to the Prime Minister at approximately 10.30 am a letter requesting that the Prime Minister attend at an interview at the Police Station at either 11.00 am or 1.00 pm, and attached the warrant of arrest.
    
12. The Prime Minister did not attend the interview as there was less than half an hour's notice in the morning and the NEC meeting was scheduled for the afternoon. At the NEC meeting on 16 June, 2014 NEC removed Sir Toami as Police Commissioner and appointed Mr. Geoffery Vaki.
    
13. On 18 June, 2014 by way of policy submission and NEC Decision No 191 of 2014, the NEC resolved to disband the TFS. The decision also resolved that all TFS staff should return to their previous duty stations or employment.
    
14. On 24 June, 2014 by way of policy submission and NEC Decision No 196 of 2014, the NEC established the Interim Office of Anti-Corruption to be headed by former Judge, Graeme Ellis.
    
15. On 28 June, 2014 the Contract of Employment between Department of Justice and Attorney-General and first respondent expired. On 30 June, 2014 the first respondent as Chairman of the TFS Team commenced judicial review proceedings.
    
16. On 7 July, 2014 the Secretary for Justice Dr. Lawrence Kalinoe called the first respondent to a meeting and in front of and witnessed by 3 senior officers of the Department of Justice and Attorney-General, reminded him that his contract had expired on 28 June, 2014 and that as departmental head, Dr. Kalinoe had been seriously concerned about his constant media releases in local and international media divulging confidential information that had come into his possession as a result of his privileged position related to his work. He advised the first respondent that he was aware that the first respondent had appeared on the 7.30 Report on ABC Australia and spoke on confidential matters involving investigations at TFS and that when the first respondent travelled to Australia to give the interview, he travelled without the endorsement of Dr. Kalinoe and the approval from the Chief Secretary. Dr. Kalinoe informed the first respondent that it was on this basis that he formed the view that the first respondent had committed normal public service disciplinary offences and that the first respondent would be suspended pending the charges being dealt with. He invited the first respondent to resign rather than face the disciplinary charges.
    
17. On 8 July, 2014 leave for judicial review was granted ex parte, but the first respondent did not advise the National Court that his contract with the Department of Justice and Attorney-General had expired or that he was to be suspended for disciplinary offences.
    
18. On 28 July, 2014 following an inter parties hearing on 16 July, 2014, the National Court stayed the NEC Decisions 191 of 2014 and 196 of 2014 pending the hearing and determination of the substantive judicial review.
    
19. On 18 August, 2014 the applications for leave to appeal against the grant of leave for judicial review and the grant of stay of the two NEC Decisions were filed.
    

The Law on Leave to Appeal

20. The purpose of seeking leave is for the Court to screen and allow only those cases that are meritorious to go to full hearing. In so doing, it is not intended that the Court descend into the merits of the case but to satisfy itself that the proposed appeal raises issues of law and mixed fact and law which are fairly arguable and require further judicial consideration: Wawoi Guavi Timber Company Ltd v. Ken Mondia (2007) SC1028. In determining the question of leave, the Supreme Court is guided by a number of principles. In Matiabe Oberia v. Chief Inspector Michael Charlie & The State (2005) SC801, Lay J comprehensively reviewed the authorities and listed the following tests that are to be applied to the facts of each application for leave to appeal. I adopt them in this case. They are:

1. Is there an arguable case or prima facie case or has it been established that the trial judge was wrong?
   
2. Does the appellant have other recourse in the Court below?
   

100. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
     

4. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
   
5. Will substantial injustice be caused by allowing the decision to stand?
   
6. Has cause been shown that the trial process should be interrupted by an appeal?
   

Parties' Submissions

21. Parties made lengthy oral submissions as well as written submissions in relation to the application of the above stated principles to the facts of this case. I do not wish to repeat them save to summarise them in the form of main points of contention between the parties in my consideration of the question of leave.
    

Arguable Case

22. Non-Justiciable: The appellants contend the decisions which are the subject matter of the judicial review are decisions of the NEC and pursuant to Section 153(2) of the Constitution are non-justiciable, given the decisions made are Executive acts and policy decisions and do not have prescribed procedures under any Constitutional Law or Act of Parliament. The appellants rely on the cases of Paul Tiensten v. Sam Koim (2011) N4420 (14 October, 2011) and Alois Kingsley Golu v. National Executive Council (2011) N4425 (21 October, 2011) which they contend held that the NEC Decision to appoint the TFS is an executive decision and non-justiciable because it was a policy decision and not made under any law which would make it susceptible to judicial review. Similarly, the decision to disband the TFS is an executive decision and is non-justiciable. Thus, it is not open to judicial review.
    
23. The first respondent contends that the cases relied upon by the appellants should be distinguished from this case because the parties in those cases were not directly affected by the NEC Decisions. In this case, he and other members of the TFS Team are directly affected by the two NEC Decisions. They were not given notice and reasons for the disbanding of the TFS Team and the establishment of the interim office for anti-corruption. As a matter of procedural fairness, they should have been accorded notice and reasons before the NEC Decisions. Thus, the argument on non-justiciable has no weight and should be rejected.
    
24. The appellants' contention that the TFS team is not a creature of a Constitutional Law or statute hence the decision by the NEC to disband it is non-justiciable is meritorious. Equally, there is merit in the first respondent's submission that he and members of the TFS Team are persons directly affected by the NEC Decision to disband the TFS Team and the second NEC Decision to set up an interim office for anti-corruption and are entitled to notice and reasons. I am satisfied it is arguable either way and it warrants a further and proper consideration at the hearing proper.
    
25. Proceedings abuse of process: The appellants further contend the Originating Summons ought to have been dismissed summarily as an abuse of process because it pleaded leave for judicial review, substantive relief and interim relief which is contrary to Order 16, rule 3(2), Order 16, rule 5(1), and Order 16, rule 13(1) which collectively state that:
    
    1. Leave for judicial review should be made ex parte by Originating Summons - Order16, rule 3 (2);
       
    2. The substantive relief sought should be set out in a Statement (and not the Originating Summons), - Order 16, rule 3(2)(a) and Order 16, rule 6 (1);
       
    3. Application for judicial review shall be made by Notice of Motion after grant of leave - Order 16, rule 5(1) (and not in the Originating Summons);
       
    4. All interlocutory applications shall be made by Notice of Motion - Order 16, rule 13(3)(1) (and not in the Originating Summons).
       
26. They rely on past decided cases to support their submission that interlocutory proceedings cannot be used to obtain substantive relief. These cases are Momis v. Attorney General (2000) N1951; National Capital District Commission v. Yama Security Services Pty Ltd (2003) SC707; Duma v. Meier (2007) SC898; Yer, Secretary, Department of Finance v. Yama (2009) SC996; Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (2012) N4902 and recently in PAC LNG International Limited & Ors v. SPI (208) Limited & Ors: OS No 172 of 2014 (Unnumbered & Unreported Judgment of 22 April, 2014). They also contend the first respondent did not sign the Statement in Support. This is in breach of Order 16, rule 3(2)(a) which requires a Statement in Support to be signed by a plaintiff/applicant for judicial review.
    
27. Proceedings abuse of process: Further or in the alternative, the appellant's contend the Notice of Motion ought to have been dismissed as an abuse of process as:-
    
    1. Leave for judicial review is sought in the Notice of Motion whereas it should be in an Originating Summons Order 16, rule 3(2);
       
    2. The substantive relief should be set out in the Statement in Support and not in the Notice of Motion Order 16, rule 3 (2)(a) and Order 16, rule 6(1);
       
    3. An application for judicial review shall be made by Notice of Motion after grant of leave, and not in a Notice of Motion filed before grant of leave, - Order 16, rule 5(1); and
       
    4. A separate Notice of Motion should be filed for interlocutory relief, - Order 16, rule 13(3)(1).
       
28. Proceedings abuse of process: The appellants further contend the Notice of Motion ought to have been dismissed as an abuse of process as if a party seeks in a Notice of Motion relief that is materially the same as that sought in the Originating Summons, the Notice of Motion should be dismissed. Hartshorn J in PAC LNG International Limited and Ors (supra).
    
29. In one response to the appellants' submissions on each case of abuse of process, the first respondent submits the refusal to dismiss the proceedings for being incompetent was within the primary judge's discretion. The primary judge correctly held that the Court must not be rigid in its application of the National Court Rules as judicial review involves exercise of equitable supervisory jurisdiction and unless there is real prejudice, any defect, omission, irregularity or non-compliance should be remedied by amendments.
    
30. He further submits the appellants did not demonstrate during the hearing that they stood to suffer real or substantial prejudice in respect of the application for leave to seek judicial review of the NEC Decisions. Thus, their contention that the primary judge did not exercise his discretion properly or failed to have regard to the law should be rejected.
    
31. I am of the view that it is arguable that failure to comply with the procedures under the National Court Rules relating to judicial review proceedings may render the proceedings incompetent and result in the dismissal of the proceedings. For instance, the Originating Summons must plead leave for judicial review as the sole relief sought by the first respondent in the Court below. Similarly, a Notice of Motion filed under Order 16, rule 5 must be filed and served after grant of leave and as confirmed by the decision in Peter Makeng v. Timbers (PNG) Ltd (2008) N3317, and that it must also plead the substantive relief. Another instance is where prior to grant of leave, a Notice of Motion is filed seeking substantive or final relief. These are procedural compliance issues which go to the foundation of the judicial review proceedings. They make the appellants' call for dismissal of the proceedings in the Court below strong.
    
32. At the same time, the first respondent's contention cannot be ignored or given less consideration. In a case where the interests of justice is an overriding or paramount consideration and the Court is duty bound to dispense justice, unless the appellants can demonstrate that they stand to suffer real or substantial prejudice by reason of the breach of the Court Rules, the argument that the breach of the Court Rules render the proceedings incompetent may be considered as untenable. In the same vein, there may be some substance in the argument that pleading substantive or final relief in the Originating Summons does not necessarily mean that the Court would grant them at the hearing of the application for leave to apply for judicial review. This is because the hearing is restricted to the question of leave.
    
33. In my view, both sides' arguments are meritorious. For these reasons, I am satisfied the points on the procedural requirements of the Court Rules are arguable and require further consideration by the Court.
    
34. The first respondent lacks standing: Finally, the appellants contend the first respondent has no standing or authority to bring the judicial review proceedings because:
    
    1. he has no authority to act on behalf of TFS which is not a legal entity; he was an unattached employee of the public service and formerly a Principal Legal Officer in the Department of Justice and Attorney-General, and whose contract had expired on 28 June, 2014 before the judicial review proceedings were filed to review the NEC Decisions, a fact which he failed to advise the Court; instead he swore a false affidavit advising the Court that he was still a contract Principal Legal Officer.
       
    2. The role of Chairman is not any form of substantive appointment or employment from which rights exist; it is just the leader of a group.
       
    3. The first respondent had been suspended without pay from his role as Principal Legal Officer on disciplinary grounds and cannot remain as Chairman as he is suspended from his employment.
       
35. In response, the first respondent submits that the appellants have put forward all manner of argument on whether he has standing. Some of the arguments are contradictory of themselves, for instance, they say he should not have commenced proceedings in his own name and TFS should have been the correct party, yet they also argue that TFS does not have standing. In the Statement in Support, it clearly states that the first respondent in his capacity as Chairman of the TFS and so the proceedings were commenced by the first respondent as the head of an entity which is a creature of a NEC Decision not having the capacity to sue or be sued.
    
36. The first respondent did not specifically address the appellants' contention that his contract of employment with the State had expired on 28th June, 2014 which was prior to him commencing the judicial review proceedings and obtaining leave to apply for judicial review and an order for stay. What he submits though, is that, at the hearing of the leave application, Ms. Miriam Kias from the Solicitor-General's Office appeared on behalf of the State and by reason of the appearance, the appellant The Honourable Mr. Ano Pala Minister for Justice and Attorney-General did not oppose leave. By their earlier conduct, the Attorney-General and the State are estopped from challenging the grant of leave. For to do otherwise is not only inappropriate and improper, but directly infringes on the rule that an appellant's ground of appeal should be restricted and limited to matters put before the Court below in the first instance.
    
37. The first respondent submits the estoppel argument applies equally to all the appellants in respect of their application for leave to appeal against the second decision. This is so because at the hearing in the Court below, Mr. Varitimos representing the appellant the Prime Minster only made submissions in relation to the competency of the judicial review proceedings. Mr. Tame and Mr. Habuka who appeared for the other parties made no submissions on stay. In any case, the application for leave to appeal filed on behalf of the Prime Minster does not even seek leave to appeal against the second decision. On this basis, the application for leave to appeal against grant of stay should not be considered by the Court.
    
38. There is no serious contest that Ms. Kias of the Solicitor-General's Office appeared at the hearing of the application for leave for judicial review. Her appearance would have been consistent with section 8 of the Claims By and Against the State Act, 1996 which states that ".........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." She would have appeared on behalf of the State. Page 2 of the transcript of the proceedings of 08th July 2014 which may be found at Annexure "SM-2" of the affidavit of Steven Manoa (supra) confirms that she appeared for the State. The transcript does not record her saying that she was also appearing for the appellant, the Minister for Justice and Attorney-General. At the hearing, she did not oppose the application for leave for judicial review.
    
39. Even if it were that she did not represent the appellant, the Minister for Justice and Attorney-General, by not opposing the application for leave and specifically the question of standing, delay and exhaustion of alternative remedies and conceding to the first respondent's submission that there is an arguable case, in my respectful opinion, the appellants in this case are at liberty to raise and argue them at the substantive hearing. This is because while the State was heard on these issues, the appellants were not and in my respectful opinion, they should be heard on these issues at the substantive hearing including the merits of the judicial review.
    
40. With respect to the arguable case, the issues raised can be argued with the merits of the case. The issues are the expiration of the first respondent's contract of employment, his suspension without pay on disciplinary grounds, failure to disclose these matters to the Court at the hearing of the application for leave and swearing a false affidavit. These issues can be raised and argued at the substantive hearing. Similarly, whether the appellants made contradictory submissions when they advanced conflicting submissions in relation to the issue of correct party to commence proceedings in the Court below is also a matter that can be raised and considered at the substantive hearing. Given the broad and wide discretion the Court has in its judicial review jurisdiction, I am satisfied that it is within the discretion of the Court to consider all these matters at the substantive hearing.
    

Other Recourse

41. This leads me to consider whether the appellants have other recourse. The appellants submit they do not have recourse in the Court below regarding the grant of leave and grant of stay, and indeed more importantly the written decision on the stay. They submit by virtue of the decisions, there is now a National Court precedent that holds valid judicial interference with policy decisions of the executive arm of government contrary to Section 153 and Section 99 of the Constitution.
    
42. Whilst the substantive trial may determine the eventual factual outcome differently, there will still remain the written decision on the stay of the NEC Decisions which forms part of the law of Papua New Guinea. The Executive arm of government regards this decision as a gross interference with its constitutionally given powers and this appeal is the only recourse the Executive arm of government has to correct the decisions.
    
43. The first respondent contends otherwise submitting that the issues can be raised and argued at the substantive hearing. The proposed grounds of appeal raise multiple issues. There are issues of procedural compliance requirements of the Court Rules which go to the competency of the proceedings in the Court below, issue of non-justiciabilty of the decisions being challenged by way of judicial review, issue of expiration of the first respondent's contract of employment and suspension from duty on disciplinary grounds which go to challenge the standing of the first respondent to commence the proceedings in the Court below.
    
44. It is clear from the transcript of the proceedings that Ms. Kias who appeared for the State did not raise these issues at the hearing in the Court below. Indeed, she did not oppose the application for leave for judicial review. What this means is that the primary judge did not have the benefit of hearing parties on these issues and quite correctly so because it was an ex parte hearing with the exception of the State: section 8 (supra) and Order 16, rule 3 of the National Court Rules. The Court will have the benefit and the parties will have the opportunity to raise and argue these issues at the substantive hearing. Further, these issues were not put before the primary judge and never ruled on, thus it will offend against the rule that that an appellant's ground of appeal should be restricted and limited to matters put before the Court below in the first instance.
    
45. It is for these reasons that I accept the first respondent's submission. I am of the view that given that the National Court has a broad and wide discretion in its judicial review jurisdiction, it is within its discretion to consider all the matters raised by the parties at the substantive hearing in the Court below. This Court should be the last resort after all other recourses are exhausted. It must allow the process that has began to be completed before it can intervene. In this case, the appellants still have the judicial review proceedings to complete and the issues can be raised and argued at the substantive hearing in the Court below.
    

Exercise of discretion

46. As to whether the decisions to grant leave and a stay were within the discretion of the National Court, the appellants repeat the submissions made on the question of arguable case with specific emphasis on firstly, the primary judge's discretion in waiving the requirements of so many Court Rules, secondly the NEC Decision being executive decisions and are non-justiciable and finally, confusion by the primary judge between jurisdiction of the Court and grounds for judicial review.
    
47. The first respondent also repeats his earlier submissions on recourse in the Court below, that is, the appellants still have the substantive hearing to respond to the application for judicial review and also the grant of stay. He also submits that the circumstances that underlie the issues between the parties are of national importance and public interest as the issue directly relate to good, transparent and democratic governance and the fight against endemic corruption, therefore, the overall interests of justice overrides any other consideration.
    
48. While I agree with the appellants' submission that the primary judge's exercise of discretion under the circumstances may be unreasonable, I also accept the first respondent's submission that it was in the interests of justice that the primary judge made the decisions. This is because the disbanding of the TFS is and was of national importance and public interest and the Court below was entitled to grant the relief it did until the final determination of the matter. In my view, the grant of leave and stay are a temporary relief. At the end of the day, the Court will always revisit the decisions and may either affirm them or set them aside. Thus, this consideration can go either way.
    

Bearing on final determination

49. In relation to whether the decisions have a bearing on the final determination of the issues between the parties, the appellants submit they do. This is because if the first respondent is successful on any of his grounds then the decisions on grant of leave and stay will stand or even if the judicial review is dismissed, the decisions will also stand and they will have no way of challenging the jurisdiction of the Court to review the NEC Decisions, abuse of process and standing.
    
50. The first respondent submits the decisions do not have a bearing on the final determination of the issues between the parties because the appellants are at liberty to raise the same arguments at the substantive hearing. He says that the appellants' right to defend the NEC decisions are preserved and will be avail of at the substantive hearing.
    
51. As I explained earlier, except for the State, the appellants were not heard on the application for leave for judicial review. As to the application for stay, they were heard through their counsel Mr. Varitimos, Mr. Tame and Mr. Habuka, the latter two counsels adopting Mr. Varitimos' submissions. They raised and argued the grounds on jurisdiction (non-justiciablity argument), procedural non-compliance and standing of the first respondent in their attempt to have the Court set aside the stay order. These are the same grounds and issues raised in these proposed appeals. I do not agree with the appellants that they have no other way to raise them and the decisions will stand unchallenged. This submission is misconceived.
    
52. In my view, the decisions do not affect the primary rights of the appellants or their right to be heard on these grounds or issues is not lost. As I said earlier, the grant of leave and stay are a temporary relief. The Court will always revisit the decisions and may either affirm them or set them aside. Thus, I accept the first respondent's submission that the appellants' primary rights to defend the NEC decisions are preserved and intact, and will be avail of at the substantive hearing. In so doing, they will have the opportunity to challenge the National Court decisions by drawing to the Court's notice why the decisions are wrong in law and should be set aside based on the grounds raised earlier in the Court below and which grounds are also raised before this Court.
    

Substantial injustice

53. In relation to whether the decisions have resulted in substantial injustice, the appellants repeat the same arguments made in support of an arguable case and exercise of discretion. They emphasised that there will be substantial injustice caused to them if leave to appeal is not granted because firstly, the first respondent swore a false affidavit on 30 June, 2014 when he stated he was a contract Principal Legal Officer in the Office of the Solicitor-General. This is false because his contract as a Principal Legal Officer had expired on 28 June, 2014. He has and had no standing to bring the proceedings.
    
54. Secondly, the first respondent filed another false affidavit on 10 July, 2014 stating he had been called into a meeting with Dr. Kalinoe and 3 other senior legal officers and had been told by Dr. Kalinoe that Dr Kalinoe had been "receiving enormous political pressure to remove" him from the Department and they had been "searching for any possible grounds to effect the political directives" to remove him. Dr. Kalinoe and the other 3 senior legal officers have all sworn and filed affidavits denying the assertions by the first respondent.
    
55. Thirdly, this case goes to the very heart of democracy in Papua New Guinea. The question as to the separation of powers of the executive arm of government and the two other arms is relevant every day in the running of the country. NEC meetings are conducted often, and the uncertainty as to whether or not the NEC is free to make policy decisions as mandated by virtue of the Ministers' positions and by their electorates will continue.
    
56. If leave is given to appeal the decisions, and the appeal proceeds to a conclusion, law and order in the Royal PNG Constabulary will be restored. If TFS is abolished, contrary to what the primary judge stated in his decision on stay, the investigative files will not be misplaced or lost; those on police matters will be held by the police. The problem at hand is that the police officers attached to TSF will still not recognize the command of the new Police Commissioner, will not abide by his directions and will not produce files requested for review by him. The stay order is contributing to an ongoing rift in the police force which cannot be allowed to continue, in the light of peace and good order in Papua New Guinea.
    
57. The concerns raised by the appellants are valid. But I must agree with the first respondent, who repeats the submission that the appellants have recourse in the Court below and these concerns and issues can be raised and argued at the substantive hearing. In my view, they have not shown any real or substantial prejudice. The primary rights of the appellants are preserved and intact. The concerns they have drawn to this Court's attention can be addressed when the time comes and that will be at the substantive hearing in the Court below.
    

Should the trial process be interrupted?

58. Having covered all the issues raised by the parties, while there is a prima facie case made out for grant of leave, I am not satisfied that the appellants have no other recourse to address those issues except the Supreme Court. They do have recourse in the National Court and that is why the trial process in the National Court should not be interrupted.
    

Order

59. The orders are:
    
    1. The application for leave to appeal in SCA No 105 of 2014 is refused.
       
    2. The application for leave to appeal in SCA No 106 of 2014 is refused.
       
    3. The proceedings are dismissed.
       
    4. The appellants shall pay the first respondent's costs of the proceedings, to be taxed, if not agreed.

________________________________________________________________

Nicholas Tame Lawyers: Lawyers for the Appellants (SCA No 105 of 2014)
Jema Lawyers: Lawyers for the First Respondent (SCA No 105 of 2014)
Twivey Lawyers: Lawyers for the Second & Third Respondents (SCA No 105 of 2014)
Twivey Lawyers: Lawyers for the Appellants (SCA No 106 of 2014)
Jema Lawyers : Lawyers for the First Respondent (SCA No 106 of 2014)
Nicholas Tame Lawyers: Lawyers for the Second Respondent (SCA No 106 of 2014)