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O'Neill v Eliakim [2016] PGSC 40; SC1524 (23 February 2016)

SC1524


PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]


SCA 07 OF 2016


BETWEEN


HON. PETER O’NEILL

PRIME MINISTER OF PAPUA NEW GUINEA
Applicant


AND


NERRIE ELIAKIM, CHIEF MAGISTRATE
First Respondent


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent


AND


MATHEW DAMARU, as Director for National Fraud & Anti-Corruption
Directorate and TIMOTHY GITUA, as Deputy Director for National Fraud & Anti-Corruption Directorate
Third Respondents


AND


GEOFFREY VAKI, Commissioner of Police
Fourth Respondent


AND


GARI BAKI, Commissioner of Police
Fifth Respondent


Waigani: Sakora J
2016: 4 & 23 February


PRACTICE & PROCEDURE – Supreme Court – Application for Leave to Appeal – Application for Stay of the decision below to be challenged on appeal – Proper parties – Joinder of Parties - Supreme Court Act & Rules, ss 4, 5 (1)(a), 10 (1)(a) & 14 (3)(b), National Court Rules, Order5 Rules 2, 6, 7, 8 & 9; Order 12 Rule 40; Order 16 Rules 3(2) & 5(2).

PRACTICE & PROCEDURE – Rights of Appeal & Review – Commissioner of Police - Constitution, ss 37 (1), (15) and (16); 197, 198; 155 (2)(b), (3)(a) & (4).


Cases Cited:
The following cases are cited in the judgment:


Alex Timothy v Hon Francis Marus & Ors [2014] PGSC 50; SC 1403 (29 October 2014)
Boyepe v Emmanuel Ningi (2003) SC 71
Carn v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC 853
Colonial Sugar Refinery Ltd v Cigua Insurance Australia Ltd (1997) 189 CLR 345 at 391
Commissioner of Taxation v The Myer Emporium Ltd (no 1) [1986] HCA 13; (1986) 160 CLR 220
Gary McHardy v Prosec Security and Communications Ltd [2000]PNGLR 279, SC 646
Griffith v Australian Postal Commission (1987) 87 FLR 139 at 141
Hall v Nominal Defendant [1981] HCA 20; [1981] 147 CLR 246
Hon James Marape v Prime Minister Peter O’Neill.
Hon Ano Pala, The State & Ors SCA No. 87 of 2014 (Unnumbered & Unreported Judgment of 29 September 2015
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 684
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564
Nakitu Fast Food & Restaurant Limited v The State SCR 113 of 2012
Pruaitch v Manek & Ors SC 1134
Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police (2014) SC 1388
R v IRC, ex p. National Federation of Self-Employed & Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
R v HM Inspector of Taxation, ex p. Kissane [1986] 2 All ER 37
R v Secretary of State for Home development, ex p. Rukshanda Begum and Angur Begum [1990] COD 107
Smith Kline & French Laboratories (Aust) Ltd v Commonwealth [1991] HCA 43; (1991) 173 CLR 194


Counsel:


Mr M. Varitimos QC with Ms T. Twivey & Mr D. Kipa, for the Applicant.
Mr G.M. Egan QC with Mr M. Nale, for the Third Respondents.
Mr I. Molloy QC with Mr N. Tame, for the Fifth Respondent


23 February 2016


Preliminary Comments


1. SAKORA J: In the light of what transpired at the conclusion of the submissions by Mr Varitimos and Mr Molloy, learned counsel for the applicant Prime Minister and the fifth respondent Commissioner of Police respectively, following the luncheon adjournment when the court invited Mr Egan of counsel to make his submissions in reply on behalf of the third respondents, I intended to make brief mention of what it was all about at this preliminary juncture.

2. It is a matter of record that, instead of making his reply as was his turn, Mr Egan rose and embarked upon what I would without hesitation characterise as an aberration on and deviation from the well-accepted procedures associated with legal proceedings such as the one before me. Without prior notice, least of all before the luncheon adjournment, and without discussion it with his professional colleagues on the other side[1], he proffered a document that unilaterally and purportedly was intended to terminate the proceedings here and now.


3. The plot does thicken, even at the early stages of the two applications before me, as the document unilaterally crafted by Mr Egan (and/or his briefing lawyers) was intended to abort the applications for leave to appeal[2] and grant of stay.[3] As I understand from Mr Egan, it was then intended, by this devious strategy[4], to have the parties proceed to the judicial review hearing that had been, with respect, inexplicably given a hearing date when these two applications were and are still pending.


4. According to the unilateral orders proffered by Mr Egan for the court’s ‘rubber-stamping’ to effect the intention adverted to above, the ‘price’, as it were, for the third respondents was supposed to be an undertaking by them to not participate in the judicial review proceedings[5].


5. After eliciting from both Mr Varitimos and Mr Molloy that they had no inkling of what Mr Egan was about, nor participated in the crafting of the orders that counsel for the third respondents was proffering, the court refused to hear him on this and ordered the two applications to proceed.


6. It should be mentioned also that without the benefit of such an experience[6] in the last 24 years on the Bench[7], I sought the assistance of Mr Egan as to his own experience; whether he has engaged in such aberrant tactics before in jurisdictions other than this. Unfortunately, full and definitive response was not forthcoming on my query. So, it may be that such things do happen elsewhere than here that I am not aware of!


7. Be that as it may, as far as this court is concerned, what Mr Egan unilaterally and without notice attempted here, in my respectful opinion, qualify for epithets such as: aberration; unconventional; unprecedented; and irregular. Mischievous would quite comfortably qualify also.


8. For anyone with an ounce of intelligence, not to mention common sense, such blatantly irregular and unconventional methods become mere invented nonsense, riding on the coat-tails of mischief.


9. Finally, on this interruptive and mischievous incident, the game of rugby analogy may be pertinent here. Those of us who have played (or watched) a rugby game will know that the ‘five eighth’ (now the # 10) is a smart/tricky player on the field whose task it is to, employing all manner of evasive and avoiding tactics against the opposing players, get the ball that the tough and rugged forwards won to the fast moving backline players, the ‘glory boys’, to score in the opponent’s goal/try line.[8] Another term that can conjure up a picture of the guile of this player is the ability to execute ‘side-steps’. I will not insult the phrase ‘legal gymnastics’ to ascribe to what counsel for the third respondents intended here.


10. What Mr Egan did, and did not do, and intended by these, all point inexorably to the suggestion that counsel was driven by arrogance, peppered with demonstrable disrespect and lacking in professional courtesy to other counsel at the Bar table, not to mention the court before whom he was purportedly practising the profession of law. And it was inherently patronising to and of the court, not to mention condescending.


11. One does not suffer fools gladly! There was just no 'rhyme and reason' to or for what the third respondents did or intended through their senior counsel and briefing lawyers.


Introduction


12. Before me are two applications filed on behalf of the Prime Minister, the Hon Peter O’Neill MP. The first seeks leave to appeal the decision of the National Court made on 7 December 2015, and, the second seeks an order staying the execution of that decision, a judgment of the Hon Justice Makail. The second relief, if granted, is intended to be of temporary duration, in the usual way of such interlocutory reliefs, pending the hearing and determination of the substantive appeal if leave for that is granted.


13. If granted leave, the applicant intends to, pursuant to a notice of appeal, challenge the decision of the learned primary judge granting an application by the third respondents to be joined as parties to the substantive judicial review proceedings filed by the former Commissioner for Police.[9] On 18 July 2014, leave to apply for judicial review was duly granted with certain ancillary orders.


14. The pending substantive judicial review application challenges and seeks review of the decision of the first respondent, the Chief Magistrate, made on 12 June 2014 to grant the application of the third respondents in the District Court to issue an Arrest Warrant against the Prime Minister.


15. Between then and these applications, there had been, firstly, a constitutional reference[10] for the opinion of the Supreme Court as to the ‘standing’ of the Police Commissioner to challenge the issuance of a warrant of arrest, and its 2 October 2014 opinion; and, secondly, an application by the third respondents to be joined as parties to the judicial review application and the court’s decision on it.[11]


16. It is not without significance to note that, following the grant of leave on 18 July 2014 to the fourth respondent and the Prime Minister,[12] to apply for judicial review of the decision of the first respondent, a Notice of Motion was filed by Jema Lawyers on 30 July 2014 seeking, inter alia, an order that third respondents “be jointly added and styled (sic) as Third Defendants.”[13]


17. On 9 October 2014, Jema Lawyers filed yet again another Notice of Motion,[14] also invoking Order 5 Rule 8 (1) of the National Court Rules (NCR). Additionally, the amended Notice of Motion purportedly sought to “set aside forthwith” the orders of Justice Gavara-Nanu, which, amongst other orders, “stayed” the decision of the first respondent to issue the Arrest Warrant in question; and, to dismiss the entire judicial review proceedings, purportedly invoking Order 12 Rule 40 of the NCR.


18. The pending judicial review application is to challenge and have reviewed the decision of the first respondent to issue the Warrant of Arrest against the Prime Minister. By the Amended Statement filed by the plaintiffs pursuant to Order 16 Rule 3 (2) NCR, they seek four (4) principal reliefs: order in the nature of certiorari to remove into the National Court and quash the decision of the first defendant (respondent) dated 12 June 2014; declaratory orders that, firstly, the first defendant “acted without or in excess of jurisdiction . . .”; and, secondly, the first defendant “erred in law in issuing the warrant for arrest . . .“ [15]


19. It is not without significance to note also that the substantive judicial review application does not seek any relief (s) against the two third respondents, the police officers who sought and obtained the Arrest Warrant in question. It is the Chief Magistrate’s judicial decision to issue the Arrest Warrant that is being challenged pursuant to Order 16 NCR. Challenged, as I understand it, on the basis of ultra vires exercise of power going to jurisdiction, and error of law on the face of the record. Thus, there is no legal challenge afoot, or contemplated, by way of application for judicial review, against both or either of the third respondents for what they did or did not do that the applicant would be aggrieved about.


20. None of these grounds and reliefs advanced for judicial review involve and challenge what the two officers did in the purported discharge of their investigatory duties and functions under the Police Act. That, I would suggest, would have been the very reason why they had not been joined as parties initially by the plaintiffs. Because to do so would have, in my opinion, offended against the well established principles and rules regarding proper and necessary parties to litigation.


21. Needless to say, judicial review involves very serious challenges to the exercise of State powers, this time the judicial powers of a magistrate. By its very nature, questions in relation to assumption of jurisdiction and exercise of powers within this jurisdiction are serious affairs, raising issues of public and private interests. Thus, these challenges need to be attended to and determined expeditiously, according to law.


22. It is a matter of public record that the Warrant of Arrest was granted by the Chief Magistrate on 12 June 2014. Leave to apply for judicial review of the grant of that Warrant was granted by Justice Gavara-Nanu on 18 July 2014. Until such time as the substantive application for judicial review is heard and determined, no action or decision can be taken on that Warrant of Arrest. That is the law and procedure of our courts! Unless, of course, the applicant decides to withdraw the application for judicial review.


The Application for Leave to Appeal


23. The appeal lies with ‘leave’ insofar as the intended appeal is from an interlocutory judgment of the court below that does not fall within the exceptions contained in s 14 (3) (b) of the Supreme Court Act.


24. It is the case for the applicant that there are a number of ‘independent and separate reasons why it is arguable that the decision is wrong in law, and accordingly, why leave to appeal should be granted’.


25. Firstly, it is intended to be argued at the substantive appeal, if leave is granted, that the joinder of the two police officers as parties to the substantive judicial review by the primary judge was against the law as enunciated in the Supreme Court Reference Nos 2, 3 & 5 of 2014[16], wherein the court unanimously ruled that the Commissioner of Police, pursuant directly to ss 197 and 198 Constitution, and the provisions of the Police Act, has standing to challenge the validity of a Warrant of Arrest issued by a District Court on the application of investigating police officers.


26. The Supreme Court, acknowledging that by law[17] the Commissioner of Police, as the head of this disciplined State Service,[18] possessed extensive powers and command and control responsibilities over the entire Police Force. Thus, under s 198 Constitution, the Commissioner of Police has the mandatory responsibility “for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament.”


27. Thus, it will be argued, it is contended, in consonance with the original challenge by the former Commissioner of Police to the issuance of the Arrest Warrant in the first place, and the opposition by the current Commissioner to the joinder of Director Damaru and Deputy Director Gitua, that:


Secondly, it is contended here, and will be argued again before the appellate court that there were legitimate issues affecting the application for joinder that the learned primary judge appeared to have misconstrued and/or misapplied. There was, and is (as will be) contended, an error in dealing with the issue of res judicata, such that the pertinent law on this issue was never properly acknowledged and applied to the facts as in existence before the court.


28. This error was, as contended before me and will be before the appellate court, magnified by what can be described as the two applicants for joinder not properly invoking the jurisdiction of the court. The very fact that Order 5 Rule 8 of the NCR was invoked and relied on in a judicial review proceedings under Order 16 NCR. Therefore, it was argued before his Honour, as will be before the appellate court if granted leave, that the court lacked jurisdiction to entertain the application of the two third respondents.


29. His Honour had before him a 30 July 2014 Notice of Motion filed relying on Order 5 Rule 8 NCR seeking joinder of the two police officers. This was followed up with an Amended Notice of Motion filed on 9 October 2014, seeking similar relief and invoking similar Order 5 Rule 8 NCR. About a year later in October 2015, the two officers had filed on their behalf a Further Amended Notice of Motion relying once again on Order 5 Rule 8.


30. Inconceivably, or more pertinently, inexplicably, as well as deleting in the Amended Notice of Motion the name of a former Police Commissioner of Police,[19] the two third respondents sought to “set aside forthwith” an earlier order of his Honour Justice Gavara-Nanu that had ‘stayed’ the decision of the first respondent, the Chief Magistrate, pending the hearing and determination of the application for judicial review. Furthermore, that amended Notice of Motion sought to have the entire judicial review proceedings dismissed, purportedly relying on Order 12 Rule 40 NCR.


31. The applicant intends to argue, as was before the primary court, if granted leave, that the Notice of Motion, the Amended Notice of Motion and the Further Amended Notice of Motion were in substance all incompetent, justifying dismissal.


32. Mr Varitimos of counsel for the applicant rounds off the submissions for grant of leave by asserting that the Supreme Court’s opinion on the Reference[20] ought to have settled the issue as to the powers, duties and responsibilities of the Commissioner of Police vis-à-vis the members of the Police Force.


33. Finally, part of the surrounding circumstances put before this court for consideration in its determination of the two applications is the fact that, inexplicably, the substantive application for judicial review[21] has been listed for hearing on 3 March 2016.


34. The fifth respondent supports the two applications to enable the challenge against the decision of the National Court made on 7 December 2015. As discussed already, that decision was in respect of the judicial review proceedings OS (JR) No. 484 of 2014, wherein the third respondents were ordered to be joined as parties.[22]


35. In support of the application for leave, the fifth respondent also raises the jurisdictional issue vis-à-vis the third respondents’ invoking of and reliance on Order 5 Rule 8 NCR for their application to be joined in the judicial review proceedings. The other ground to be relied on and argued at the appeal that is advanced here in support of the application for leave is based on an assertion of error of law on the face of the record in the primary judge’s decision.
Both the applicant and the fifth respondent submit that the grounds of the intended appeal, as canvassed in this application, demonstrate ‘an arguable case’ for this court to grant leave so that those serious issues raised in the grounds can be substantively raised and argued before the full Supreme Court.


36. The third respondents oppose both applications: leave to appeal against the order of the court below made on 7 December 2015, and the necessary order for stay to enable the intended appeal to be heard and determined by the full Supreme Court unhindered. The third respondents basically adopt the reasons of the learned primary judge. This entails accepting, firstly, the judge’s opinion on the issue of res judicata, which relied on the majority decision of the Supreme Court in Marape v O’Neil & Ors.[23]


Secondly, the opposition to grant of leave relies on an assertion that joinder of parties in judicial review proceedings do not have to rely on procedures under Order 16 of the National Court Rules, thus distinguishing the principles laid down in the earlier National Court cases[24] holding otherwise. Neither of these cases has been overturned on appeal! It is, therefore, the contention of the third respondents that the primary judge had jurisdiction to hear and join them as parties to the judicial review proceedings.


Thirdly, the two third respondents rely on the trial court’s insistence on their being not served the documents in the application for judicial review.


The Application for Leave: General Principles


37. The term ‘leave’, used as a noun simply means permission to do something or other. In the context of formal legal proceedings, ‘leave of the court’ connotes the formal ‘permission obtained from a court to take some action which, without such permission, would not be allowable’[25]. And in respect directly of a ‘leave to appeal’, it means the formal permission that is granted by a court[26] such as the one I constitute here, ‘to appeal against the decision of a court’.


38. Section 4 of the Supreme Court Act[27] confers on an aggrieved party in legal proceedings the right to challenge the decision by appealing to the Supreme Court from a decision of a National Court. As provided under sub-s (2), the appeal lies in respect of any civil or criminal proceedings. In respect of conviction and sentence for criminal offences, the Constitution specifically provides, under s 37 (15) and (16), right to review and appeal respectively, under the umbrella of the Basic Rights provisions,[28] headed 'Protection of the Law', sub-s (1) of which is in the following terms:


Every person has the right to the protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.


Section 14 of the Act[29] provides for civil appeals to the Supreme Court.


39. For the application before me, sub-s (3) (b) of s14 in the following terms is pertinent:


(3) No appeal lies to the Supreme Court without the leave of the Supreme

Court –

(a) . . .

(b) From an interlocutory judge (sic) made or given by the National Court except -

(i) where the liberty of the subject or the custody

of the infant is concerned; or

(ii) in cases of granting or refusing an injunction

or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of

Court as are in the nature of final decisions; or

(c) . . .


The 'exceptions' above under sub-para (b) (i) - (iii) inclusive would be inapplicable here.


40. The judgment or decision of the National Court sought to be appealed against, and, if successful, replaced or set aside is or was on an interlocutory application for joinder of new parties, by the two third respondents. That decision in no way determined the respective rights and liabilities of the “principal” parties.[30]


41. Leave to appeal, as envisaged under s 14 (3) (b) of the Act, is generally required from interlocutory orders. As can be appreciated, therefore, the appellate jurisdiction of our courts is conferred by statute, and governed by the Rules of Court.[31]


42. The requirement for leave to appeal against interlocutory orders is necessary, firstly, because such orders are the subject of exercise of discretion on the part of the court. This is based on the universally accepted care (to be taken by) and reluctance of appellate courts and tribunals to disturb the decisions of the primary courts reached through exercise of discretion, unless serious and meritorious grounds are demonstrated.


Secondly, this prerequisite enables and ensures that a filtering process is judicially undertaken,[32] to ascertain and allow only legitimate and meritorious challenges to decisions and orders of primary courts and tribunals are subjected to scrutiny by appeal or review.


43. The Constitution confers further protection of the right to review under s 155 (2) (b), (3) (a) and (4) before the Supreme Court, by virtue of the fact that this is the final and highest court in the land.


44. The term ‘discretion’ is defined in one sense as: ‘freedom or authority to act according to one’s judgment’; or ‘in accordance with his or her decision.’[33] The Oxford Dictionary of Law[34] defines ‘judicial discretion’ as: ‘the power of the court to take some step, grant a remedy, or admit evidence or not as it thinks fit.’ Many rules of procedure and evidence are in discretionary form or provide for some element of discretion.[35] Discretion involves, therefore, the reasonable exercise of power or right to act in an official capacity; it involves the idea of choice, of an exercise of the will.[36]


45. In this definition, for emphasis, the freedom or authority to act is: according to one’s judgment, not anybody else’s, and has to be his or her decision. This exercise of discretion arises directly from the fact that the trial court or primary judge or tribunal was there seeing and witnessing the case at first hand, seeing witnesses give evidence (if any), and observing their demeanor. The appellate or reviewing court would not have had that first-hand experience and benefit.


46. Rather than being a mandatory requirement, discretion vests in the court a choice to be exercised, taking into due consideration all the pertinent and relevant factors, and undertaking also a balancing act, as it were, over seemingly opposing but nonetheless important factors.


Purpose of Leave


47. The judgment or decision of a judge at first instance invariably faces, or is subjected to, examination and scrutiny inherent in the appellate process. There are now factors recognized as necessarily exerting a corrective influence on judges. These are intended to, and ought, therefore, inhibit, the much-feared wayward judge who might be prone to aberrant or idiosyncratic decisions. To inhibit and keep in check a judge who might be disposed to ‘go off the rails’, as it were.


48. The appellate system also enables and ensures a supervisory and correcting role over decisions of lower courts that demonstrate errors that have been made in the legitimate exercise of jurisdiction, either in the finding of facts or application of pertinent laws, or both.


49. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under or by any outside influence, and/or taking into account irrelevant factors.


50. The requirement of leave is designed to filter out applications or intended substantive appeals which are groundless or hopeless at an early stage. This filtering process is allowed by law to be undertaken without having to embark upon a consideration of the substantive merits or otherwise of the case.


51. Employing the judicial review analogy here, which I respectfully suggest is pertinent, the purpose of leave (to appeal) is to prevent the time of the court being wasted by “meddlesome busybodies with misguided or trivial complaints....”[37] As such, the aim is to prevent a wasteful use of judicial time by meddlesome busybodies who are either not legitimate parties or what may be characterized as “sore losers” who lack genuine and legitimate grievance (s) or real interest in the outcome of the appeal.


52. It can be said, with respect, that the leave requirement also enables an individual litigant to obtain a quick and relatively cheap judicial consideration of whether his case has any prospect of success. It is designed as a threshold or filter that will be considered by a quick perusal of the supporting documentation, and the court at this threshold juncture, as this court is now, is not intended to go into the merits or otherwise of the substantive grounds of appeal or substantive issues that are raised. The overall aim must be to exclude hopeless or clearly groundless cases. Sections 4, 6, 8 and 14 of the Supreme Court Act (the 'Act') vest the appellate jurisdiction of the Supreme Court.


53. And the leave for exercise of this jurisdiction if required is available pursuant to, firstly, s 5 (1) (a), and, secondly s 10 (1) (a) of the Act. These are provisions concerned with incidental directions and interim orders by a court such as this, and the powers that may be exercised by a judge, respectively. It is respectfully suggested here that it is not without consequence to note that under s 11 of the Act, the Registrar has vested in him a discretion to refer any appeal to the Supreme Court for summary determination if he is of the opinion that a notice of appeal or a notice of an application for leave to appeal does not demonstrate any meritorious grounds of appeal.


54. This is yet another legislative device for a filtering process on the legitimacy and integrity of the challenges to judicial decisions, this time to be exercised quasi-judicially by the Registrar who formally is not a judicial officer as defined. I note and emphasise these for the purpose of restating the principles applicable to seeking leave.


55. The requirement for leave is designed to filter and flush out, as it were, applications or intended substantive appeals which are groundless or hopeless (according to law) at an early stage. Employing the judicial review analogy here, which I respectfully suggest is pertinent, the purpose of leave (to appeal) is to prevent the time of the court being wasted by ‘meddlesome busybodies with misguided or trivial complaints . . . .’[38] Thus, through this process of scrutiny, what can properly be described as the frivolous and vexatious complaints of ‘sore losers,’ which are not capable of being legally maintained, are cast aside and removed, according to law.


The Application for Stay


56. The power of a common law court to 'stay' a proceeding (or an order or decision of a court) is part of the court's implied or inherent power to prevent its own processes being used to bring about an injustice: see; Colonial Sugar Refinery Ltd v Cigua Insurance Australia Ltd (1997) 189 CLR 345, at 391. To justify a stay, the applicant has to satisfy the court of two conditions:


57. The law recognises that the party (or parties) in whose favour a decision or an order has been made ought to enjoy the 'fruits' of the decision or order. Subject always to the right of a losing litigant to seek appeal or review of the decision or order. And both legislation and the rules of court provide the procedures and processes, and the appropriate circumstances under which all these can be availed of.


58. The rules of court confer a discretion on the court to grant 'stay'

pending the determination of an appeal. And the power enabling the

exercise of discretion is generally described as the 'inherent power of

the judiciary', meaning the 'power that is essential to the existence,

dignity, and functions of the court from the very fact that it is a

court'[39] (of law). The powers of the court under its inherent

jurisdiction are complementary to its powers under the rules of court.

That is to say, one set of powers supplements and reinforces the other.


59. An appeal rarely operates as a ‘stay’ of a judgment or decision of the court below. In order to obtain ‘stay’, the appellant must apply to the trial court concerned or the appellate court[4] and demonstrate special circumstances. Until the Supreme Court’s seminal unanimous decision in the case of: Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279, ‘special’ circumstances was the accepted test for grant of stay pending appeal.[40] Similarly, the test of ‘exceptional’ circumstances.


60. Special circumstances, according to the Australian High Court case of Commissioner of Taxation v The Myer Emporium Ltd (No.1) [1986] HCA 13; (1986) 160 CLR 220, may be demonstrated in cases:


Where it is necessary to prevent the appeal, if successful, from being nugatory . . . Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering monies paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.


61. Another case before the High Court in the same year: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 684, had Brennan J. describing the jurisdiction to grant a stay as "extraordinary" and was exercisable only in "exceptional circumstances."[41]


62. The Supreme Court in the oft-cited and followed case of Gary McHardy v Prosec Security Communication Ltd[42]considered the ‘special’ and ‘exceptional’ circumstances tests enunciated in some Australian cases such as the above-referenced case[43], concluding with the opinion that these were restrictive of the unfettered discretion vested under s 19 of the Act (stay of proceedings on appeal). The court considered also the “a reason” or “an appropriate case” test. These latter tests are an adoption by our earlier courts of the tests applied in the New South Wales Court of Appeal case of Alexander v Cambridge Credit Corporation Limited,[44] where the “special or exceptional” circumstances test was rejected in favour of “a reason” or “an appropriate case.”


63. The court in McHardy settled on a less rigid formulation of the test in the following way:


To conclude that the test for a successful application for stay should be whether are “special” or ‘exceptional circumstances or that there is a “good reason” or that it is an appropriate case” is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.


64. The court also considered ten (10) factors and circumstances that should be taken into account in the exercise of the discretion as to whether or not grant stay. These have been referred to and discussed in detail by both Mr Varitimos and Molloy in their respective submissions for grant of stay here. Subsequent Supreme Courts have cited with approval the McHardy test,[45]and applying, whenever appropriate, any one or more of the ten factors or circumstances.


65. From the tenor of the departure from the special and exceptional circumstances test, it is clear that the ten (10) factors and circumstances listed by the court are not exhaustive, and that:


“they must necessarily vary from case to case and from time to time depending on differing circumstances”[46]


66. It is clear also that the court did not consider that there were, or should be, any hard and fast pre-conditions to the grant of stay. Whilst the use of the terms ‘special’ and ‘exceptional’ circumstances were declared to be too restrictive of the court’s discretion, it has to be acknowledged here that the factors considered in Commissioner of Taxation v The Myer Emporium Ltd (No.1)[47] are still relevant factors to be taken into overall account: the need to prevent a successful appeal being rendered nugatory, and the successful appellant being unable, thereby, to be restored substantially to his former position if the appealed judgment against him has already been executed in the absence of a 'stay' order in place.


67. Needless to say, this court is bound by the Supreme Court’s decision on the formulation of a test to be applied, depending on the circumstances presented before it.


68. The authoritative McHardy decision would, with respect, appear to reflect the opinion of the then Chief Justice of the Australian Capital Territory, Justice Miles, in the case of Griffith v Australian Postal Commission (1987) 87 FLR 139 at 141, where he said that it was: "misleading and probably putting it too high" to say that special circumstances must exist for the court to grant stay. Acknowledging the cases where special circumstances were required, his Honour thought that the distinction between the two lines of authority was more apparent than real.


69. Finally, the underlying reason for these tests and operating factors or circumstances has to do with the main concern in the maintenance of the status quo in the circumstances before the actions were taken by either or both parties that purportedly created a legal dispute invoking the jurisdiction of the court. And if the determination of that dispute in the court below is the subject of an appeal, then apart from the requirements of statute and rules of court governing the exercise of appellate jurisdiction, it just makes eminent sense to ensure that nothing is done by way of effecting or executing the challenged judgment before the appellate court exercises its jurisdiction over it.


Parties to litigation: Joinder


70. The joinder of the third respondents as parties to the pending judicial review proceedings is the subject of the pending appeal if leave is granted by this court. Without in any way intending to second guess or pre-empt, and thereby render superfluous, the consideration and determination of the grounds pleaded for the appeal by the full Supreme Court, I only make brief comments here in relation to the well-established principles governing joinder of parties and causes of action in legal proceedings.[48]


71. All parties may join legal proceedings, whether as plaintiffs or defendants who are necessary and proper parties for the final resolution of a legal dispute.[49] Proceedings raise causes of action and defences only between the correct parties.[50]


72. The starting point here for ordinary civil proceedings is, of course, Order 5 of the National Court Rules (NCR), under which Rule 2 provides for joinder of parties generally as follows:


Two or more persons may be joined as plaintiffs or defendants in any proceedings –

(a) Where –
(b) Where the court gives leave to do so.

73. The court would grant orders for joinder where there were joint rights to any relief or common liabilities claimed.[51] Rules (6) and (7) vest in the court powers in respect of inconvenient joinder and misjoinder respectively. Similarly, Rule (9) for removal of parties. Under Rule (8), parties are added to the proceedings:


(1) Where a person who is not a party –

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.


(2) A party shall not be added as plaintiff without his consent.

(3) . . .

No joinder will be ordered if joinder of a party would be likely to cause embarrassment or delay in the trial of the proceedings or would otherwise be inconvenient.


74. These Rules have been developed to govern the appropriateness or otherwise of joining various parties and causes of action in order to ensure that all proper and necessary parties are able to be joined in legal proceedings. They ensure in the process the maintenance of control of proceedings lest so many parties and issues be joined, making the litigation unwieldy and oppressive, rendering the attainment of certainty and finality in the resolution of the dispute nigh on impossible.


75. Determining whether or not a party should be joined to proceedings involves the court exercising discretion. A situation that would present a classical test for the determination would be, I respectfully suggest, where the parties are liable or entitled to a remedy, jointly, severally, or in the alternative, but with respect to one cause of action.


76. In other jurisdictions,[52] rules determining who are ‘real parties in interest’ and who are ‘necessary or indispensable parties’ to actions govern joinder and removal of parties. Whilst couched in slightly different terms, these rules serve similar functions,[53]one of which is to ensure that the named plaintiff is the person ‘who possesses the substantive right being sued upon.’[54] Conversely, the defendant is protected from potentially harassing and duplicative litigation. Such rules are important also in relation to the direct effect of the eventual judgment and any ancillary orders for costs.


77. In respect of the pending application for judicial review, at the risk of sounding like a broken record, it is obvious that the applicant Prime Minister is only aggrieved by the exercise of judicial power by the first respondent. Needless to say, the third respondents are not within the immediate contemplation of the source of the applicant’s grievance, and the application to have this source judicially reviewed and set aside as being incompetent and/or unlawful.


78. Finally, by way of emphasis, the rules on joinder of parties and causes of action[55] are designed to avoid multiplicity of proceedings and inconsistency of result, and to promote finality in litigation.[56] It goes without saying that the principles governing these rules expect the resolution of all matters under or of dispute in the same proceedings.


79. The two third respondents are, indisputably, not the judicial decision-maker whose decision is sought to be reviewed, nor to be directly affected by a decision of the judicial review court.


80. In the normal course of events, there being no obvious misjoinder, the proper and necessary respondents are as originally pleaded: the decision-maker (the first respondent), and the employer of the first respondent (the second respondent), asserting vicarious liability.[57]


81. It is not without significance to note that, in proceedings other than
ordinary civil litigation, such as constitutional challenges and references; and public law proceedings such as applications for judicial review challenging exercise of statutory powers, separate and specific rules apply governing who should be entitled to invoke these jurisdictions. The tests in these entail considering and determining who has ‘standing’ or locus standi. Case law abound with precedents on this subject in this jurisdiction as well as in other common law jurisdictions.


82. Order 16 Rule 5(2) NCR obliges the applicant to serve the Notice of Motion[58] on:


all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the judge is to be made, on the Judge. (underlining mine)


83. Once again, it is not without significance and importance to note that when granting leave to the Prime Minister to apply for judicial review, Justice Gavara-Nanu ordered the new Police Commissioner, Gari Baki, to be joined as the third plaintiff in the proceedings. It is suggested, therefore, that that was the appropriate time and juncture to order other interested and affected parties to be joined.[59] No other persons or authorities, it seems, were considered 'interested' and 'affected' parties to have been entitled to be served, pursuant to Order 16 Rule 5 (2) NCR.


Conclusion: Leave to appeal


84. The discussions above on the applicable principles with supporting judicial precedent lead me to the respectful conclusion that the applicant has discharged his onus of demonstrating to the satisfaction of the court that he has an arguable case, for which leave should be granted to proceed to appeal against the decision to join the third respondents as parties to the pending application for judicial review.


85. The grounds of appeal relied on and pleaded in the notice of appeal raise, in my opinion, legitimate and appellable issues surrounding the decision of the court below. These have merit,[60] deserving of consideration by the appellate court. They could never be characterized as either frivolous and vexatious, or the product of mischievous and unmeritorious grievance of a ‘sore loser’.


86. First of these is the serious question of jurisdiction, when the primary judge entertaining an application for joinder of the third respondents to a judicial review proceedings under Order 16 NCR, exercised power under Order 5 Rule 8 (1) NCR.


87. Restating the pronouncement of the Supreme Court in the case of Timothy v Marus [2014] PGSC 50, SC 1403:


Order 16 provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. The Supreme Court held that the lower court erred in accepting the notice of motion under Order 4, which had no application to judicial review proceedings, and that this resulted in a fundamental error going to jurisdiction.[61]


88. Similarly, Order 5 Rule 8 which has no relevance to judicial review proceedings. Just how misconceived that October 2015 further amended notice of motion for the third respondents, invoking ordinary civil proceedings rules of court in a judicial review proceedings, is well demonstrated by seeking to have the entire Order 16 proceedings dismissed pursuant to Order 12 Rule 40 NCR.


89. Order 12 is concerned with ‘Judgments and Orders’, and Rule 40, headed ‘Frivolity, etc.’ is concerned with ‘reasonable cause of action’; ‘frivolous and vexatious proceedings’; and, ‘abuse of the process of the court,’[62] as grounds for staying or dismissing proceedings. And this in the face of an existing grant of leave to apply for judicial review ordered by the National Court (Justice Gavara-Nanu) on 18 July 2014! Interestingly, the further amended notice of motion of the third respondents was filed over a year from the grant of leave. Another instance of blatant mischief-making?


90. Secondly, the applicant, supported by the fifth respondent, advances and asserts ‘error of law’ on the part of the primary judge in granting order for joinder in the face of the unanimous decision of the Supreme Court,[63] wherein ‘the extensive powers and authority of the Commissioner of Police, including specifically in the context of challenging a warrant of arrest issued by the District Court Magistrate on an application of a police officer and to direct and control the members of the Police Force’, had been unanimously acknowledged.


91. The ‘arguable case’ contention is supported also by the assertion that another instance of the judge falling into error of law was constituted by not considering the law on res judicata[64] properly, because, it is intended to argue, if he had then he would have concluded that it did not support joinder in this case.


92. In the end result, I am well satisfied that an arguable case has been demonstrated here by the applicant for leave to be granted to enable those serious grounds to be substantively ventilated before the appellate court for its consideration and determination. The full bench of the Supreme Court is the main and final repository of dissatisfaction with the decision of lower courts. And it is my respectful judgment that the grounds of appeal are proper for invoking the appellate jurisdiction of this court.


93. Needless to say, the arguments advanced in support of the third respondents' opposition to grant of leave I discount as being without merit. They merely rely on and adopt the primary judge's decision on the issues raised, and the reasons for this. It is just there, it seems to me, that Mr Egan’s written argument breaks down. And these are being challenged by the applicant and the fifth respondent in their grounds for leave to appeal and the intended the substantive appeal itself.


Conclusion: Stay


94. From the foregoing discussions on the applicable principles and case precedents, the court is satisfied that grant of stay of stay of the court below is appropriate and necessary, so that the challenges to the integrity of that decision can be properly entertained and determined, unencumbered, according to law. To not grant this interim relief to the applicant would amount to, amongst other consequences adverted to above, an invitation to interfere with the exercise of this court's legitimate jurisdiction over the challenges being mounted against the decision of the court below.


95. The law is well settled in this jurisdiction on when it is appropriate to suspend or put on hold, even temporarily, a judgment or order of a court pending an appeal. In this respect, on the basis of well enunciated principles from judicial precedents, the court rejects the third respondents' arguments opposing grant of stay.


96. It is the considered opinion of this court that 'stay' order be granted on the decision of the National Court made on 7 December 2015.


97. The court, therefore, makes the following orders in the terms listed hereunder.


ORDERS:


  1. The Applicant/Appellant is granted leave to appeal the judgment of the Hon Justice Makail given on 7 December 2015 in proceedings OS (JR) 485 of 2014.

  1. The judgment of the Hon Justice Makail given on 7 December 2014 in proceedings OS (JR) 485 of 2014 is stayed pending the hearing and determination of this appeal.
  2. The National Court proceedings OS (JR) 485 of 2014 is stayed from further prosecution pending the hearing and determination of this appeal.
  3. The hearing of the proceedings OS (JR) 485 of 2014 listed for 3 March 2016 is hereby vacated.
  4. The cost of and incidental to these applications be costs in the appeal.

________________________________________________________________


Twivey Lawyers: Lawyer for the applicant
Jema Lawyers: Lawyer for the third respondents
Nicholas Tame Lawyers: Lawyer for the fifth respondent


[1] As professional courtesies would normally dictate.
[2] Against the National Court decision to join the third defendants as parties to the applicant’s pending judicial review application to challenge the grant of the warrant of arrest against the Prime Minister.
[3] Of the orders granting joinder as parties to the third respondents.
[4] Using the court as a mere ‘rubber stamp’ and the other parties as uninvolved mere spectators in proceedings that directly involved and affected them and their interests,
[5] What? Against or in the face of an existing court order that had joined them? Where is this coming from?
[6] Of being asked by counsel in the midst of inter partes applications such as the ones before me now, to abort and grant orders sought under these circumstances.
[7] Not to mention 20 years in practice and teaching before the Bench.
[8] The rugby league equivalent of # 10 is the # 6. Then there are the #s 9 and 7 respectively.
[9] OS (JR) 485 of 2014; the former and current Commissioners (Vaki and Baki respectively) and the Prime Minister being joint plaintiffs, with the Chief Magistrate and others being named as defendants. The third respondents in this proceedings were not joined as parties initially.
[10] Pursuant to s 18 Constitution
[11] Made 7 December 2015.
[12] Having being joined as a second plaintiff to the judicial review proceedings OS (JR) 485 of 2014 by the one of the orders of Justice Gavara-Nanu on 18 July 2014. The original plaintiff for judicial review was (and is) the former Police Commissioner Geoffrey Vaki.
[13] Para. 2 (a) of the Notice of Motion.
[14] This time an ‘Amended Notice of Motion’ still seeking an order in terms of para. 2 (a) of the original Notice of Motion.
[15] See para. 5 of the amended Statement.
[16] In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC 1388 (2 October 2014).
[17] Constitution and the Police Act, supra.
[18] Section 188 (1) (b) Constitution.
[19] Sir Toami Kulunga as an applicant for joinder also.
[20] On the powers etc of the Police Commissioner [2014] PGSC 19, supra
[21] For which leave had already been granted.
[22] As 3rdrespondents.
[23] Unnumbered and unreported SC 1458.
[24] For instance, Longai v Maken (2008) PGSC 253; and, Alex Timothy v The Hon Marus (2014) PGSC 50, SC 1403.
[25] Oxford Pocket Dictionary, new edition, 1988.
[26] Usually an appellate court.
[27] Hereinafter, the Act.
[28] Division 3 of Part 111, Basic Principles of Government.
[29] Located in Part111 - Appeals to the Supreme Court
[30] See for example, Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564; Hall v Nominal Defendant (1981) 147 CLR 246.
[31] The National and Supreme Court Acts, and the Rules of the National Court and of the Supreme Court, respectively.
[32] Hopefully, judiciously too.
[33] Oxford Pocket Dictionary, new edition, 1988.
[34] 6th edition, OUP, 2006.
[35] Ibid.
[36] Law Dictionary, Steven H Gifis, Barron’s.
[37] See, the powerful dicta of Lord Diplock in R v IRC, ex p. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, especially 643.
[38]Ibid
[39] In re Integration of the Nebraska State Bar Ass'n, 275 NW.265, 267 (Neb.1937), cited in Inherent Powers of the Courts, by Felix F Stumpf, (NJC, 1994), page 7.
39 As provided by statute governing the appeal.
[40] See, PNG cases such as: State v Kapal [1987] PNGLR 302; PNG v Gulf Provincial Government [1994] PNGLR 34; PNG v Daniel Mollen [1997] PNGLR 193; and, Post PNG Ltd v Westpac Bank Limited [1999] PNGLR 582; see also, Alexander v Cambridge Credit Corp Limited [1985] 2 NSWLR 586.
[41] See also, J C Scott Constructions v Mermaid Waters Towers Pty Ltd (no 2) [1983] 2 Qd R 255 at 259).
[42] SC 646, SCA 39 of 2000, supra.
[43] Adopted and applied in earlier PNG cases such as PNG v Gulf Provincial Government [1994] PNGLR 34.
[44] [1985]2 NSWLR 586.
[45] Pruaitch v Manek [2011] PGSC 35 and Motor Vehicle Insurance Ltd v Kunjil [2012] PGSC 18.
[46] Ibid, at pages 285-7.
[47] Supra.
[48] And only in respect of parties here.
[49] Bernard Cairns: Australian Civil Procedure, 7th ed; LBC (2007), Ch 9, page 227.
[50] Ibid.
[51] Rules (3) and (5) respectively of Order 5 NCR.
[52]For instance, in the United States, the Supreme Court has issued several amendments to the federal civil procedure rules that include ‘joinder of parties and claims’. See, Mary Kay Kane: Civil Procedure, West Publishing Co. (1996), pp. 108-127.
[53] As adverted to already.
[54] Ibid.
[55] Which, incidentally, are derived from the English Judicature Act of 1873 (UK).
[56] See, Roberts v Gippsland Agriculture and Earth Moving Contracting Pty Ltd [1956] VicLawRp 21; [1956] VLR 555 at 564.
[57] Pursuant to s 1 (1) Wrongs (Miscellaneous) Act, and the Claims by and against the State Act, respectively.
[58] Pursuant to Rule 5 (1) NCR.
[59] Not over a year later in a court not concerned with judicial review cases, and invoking Rules of the court other than under Order 16.
[60] See the more recent Supreme Court cases governing reasons for grant of leave, referred to and relied on by learned counsel for the 5th respondent: Boyepe v Emmanuel Ningi (2003) SC711; and, Chief Collector of Taxes v Bougainville Copper Limited (2007) SC 853.
[61] Respectfully extracting from the summary of the case decision in the submission s on behalf of the 5th respondent.
[62]See also, Order 8 Rule 27 NCR: Embarrassment, etc
[63] In SC Ref Nos 2, 3, and 5 of 2014 (Powers and Functions of the Commissioner of Police) (2014) SC 1388.
[64] Another common law doctrine sometimes referred to as: ‘cause of action estoppel’.

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