Paraka v Peng [2016] PGSC 86; SC1622 (29 March 2016)

SC1622

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 157 of 2015

BETWEEN:
PAUL PARAKA
Appellant

AND:
SENIOR CONSTABLE PlUS PENG & CHIEF INSPECTOR
TIMOTHY GITUA OF POLICE OF DEPARTMENT
First Respondents

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:
RABURA MATAIO, CHIEF MIGRATION OFFICER,
DEPARTMENT OF FOREIGN AFFAIRS
Third Respondent

AND:
RIMBINK PATO, THE HON MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
Fourth Respondent

AND:
BETTY PALASO, COMMISSIONER FOR INTERNAL REVENUE COMMISSION
Fifth Respondent

Waigani: Injia CJ
2016: 24, 29 March

PRACTICE & PROCEDURE - Application for stay and interim relief under s 19 & s 5 (1) (a) & (b) of the Supreme Court Act; s 155 (4) of the Constitution - Seeking orders to stay District Court committal proceedings, Cancellation of Passport and Travel ban imposed by Minister for Foreign Affairs & Immigration & Chief Migration Officer, Income Tax assessments and travel ban imposed by Commissioner of Internal Revenue, and for variation of bail conditions to travel out of the country for medical attention and other purposes – Jurisdiction - Exercise of discretion - s 19 & s 5(1)(a) &(b) of the Supreme Court Act and s 155 (4) of the Constitution, s 219 of the District Courts Act, Bail Act s 22, s 266 of Income Tax Act, s12(1) (b) & (2) (d), (3) & (4)

PRACTICE & PROCEDURE- National Court- Appeals & reviews- Committal proceedings- Appeals from interlocutory rulings in- Whether appealable or reviewable - Appeal not available

Counsel:

P Paraka, in person
S Constable Pius Peng, in person
No appearance for Chief Insp. Timothy Gitua
No appearance for Second Respondent
B Kua, for Third and Fourth Respondent
S Sinen, for Fifth Respondent

29^th March, 2016

1. INJIA CJ: The appeal under which this interlocutory application is made arises from a decision of the National Court made on 20^th November 2015 in which the Court dismissed the appellant's appeal from certain interlocutory rulings made by the District Court sittings at Waigani in its Committal Court jurisdiction. On 11 December 2015, the appellant appealed the decision. On 22 March 2016, the appellant filed this interlocutory application and moved it on 24^th March.

2. The third, fourth and fifth respondents were not parties to the appeal but were joined by leave of this court. They contested the application. The second respondent appeared unprepared and chose not to make any submissions. The first respondent was served with the application but made no appearance.

INTERLOCUTORY APPLICATION: STAY & INTERIM RELIEF

3. The appellant seeks a number of interlocutory orders under s 19 & s 5 (1) (a) & (b) of the Supreme Court Act and s 155 (4) of the Constitution as follows:
   • a stay of District Court committal proceedings (Application, para A.1)
   • a stay of District Court bail conditions, Variation of District Court Bail and Permission to
     leave the country ((Application, para A2, 3 and 4)
   • a stay of Tax assessments and lifting of travel ban (Application, para AS. 1)
   • a stay of cancellation of passport & travel ban by Foreign Affairs and Immigration, issue of
     new passport and lifting of travel ban (Application, para AS.2 (a), (b) & (c))

• stay of travel ban imposed by IRC (Application, para AS.2 (d) & (e))

4. None of those interlocutory orders seek to stay the National Court decision the subject of the appeal. The decision of the National Court under appeal is an order dismissing an appeal against certain interlocutory ruling made by the District Court sitting in its committal jurisdiction. The ruling allowed three related committal proceedings involving the same parties to be consolidated for purposes of the hearing. The appellant appealed the interlocutory decision. The trial judge found that s 219 of the District Court Act under which the appeal was brought did not permit an appeal from an interlocutory decision of a District Court and dismissed the appeal. The appellant does not seek an order to stay this decision. Instead he seeks the other interim relief referred to.
   
5. A stay under s 19 of the Supreme Court Act is available to put a temporary stop to the enforcement of the judgment appealed from or to halt the continuation of the proceedings, from which the interlocutory orders the subject of the appeal in the court below arise, pending the determination of the appeal. A stay order is made under Section 19 of the Supreme Court Act. Section 5 is not a stay provision: Hon Havila Kapo, MP, Member for Gulf Provincial Seat v Hon Mark Maipakai, MP (2010) SC1067. Any interim relief other than a stay of the decision the subject of the appeal should be pursued under s 5 (l) (b) of the Supreme Court Act.
   
6. The interlocutory relief sought in the present case all come under s 5 (1) (b) of the Supreme Court. To the extent that the present application for various stay orders are pursued under s 19, those applications are misconceived and are dismissed for that reason. With the exception of the application for permission to leave the country, all the other prayer for stay sought listed above fall under this ruling.
   
7. Can the applications for stay be treated as an application for interim relief under s 5(1)(b)? It appears to me that the appellant is using the word "stay" to mean interim relief under s (l)(b). He is not alone. Often lawyers and parties use the word "stay" to mean, for want of better expression, an interim relief of one kind or another pursuant to s 5 (l)(b). For this reason, I proceed to deal with those applications under s 5(1) (b).
   

PRINCIPLES

8. I agree with the appellant that the criteria for grant of interim relief under s 5 (1 )(b) of the Supreme Court Act is the same as those applicable to stay that the full Court enunciated in Gary McHardy v Prosec Security and Communications Ltd, trading as Prosec Security

[2000] PNGLR 279. According to that decision, the grant or refusal of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the fruits of the judgment. There are other ten (10) other matters which are enumerated in that case which may be considered. The onus is on the applicant to persuade the Court to exercise its discretion in his or her favour.

9. I have in many cases that have before me construed the import of the McHardy decision in this way. The consideration of the multiple matters set out in that case do not involve the Court engaging in some form of mathematical calculation of matters for and against a party and reaching its decision. Though each of those matters are to be considered separately, it is the totality of all those matters that are relevant to the case at hand that is considered in arriving at a decision that reflects the aggregate of those matters. There may be occasions where the all of the matters set out in McHardy may be taken into account, and in other cases the circumstances of case may warrant some or a few matters to be taken into account. All that is in the discretion of the Court.

10. With regard to the material to be considered, the determination of these criteria usually involves a consideration of the matters contained in the notice of appeal or application for leave to appeal and other relevant material including affidavits and records of proceedings in the court below that is produced by the parties. The exercise involves a preliminary assessment of the material before the Court to determine whether the criteria set out in McHardy have been satisfied to warrant a stay. When the court is assessing the material before it to decide on these matters, the Court is not of course determining the merits of these matters. On a quick perusal and assessment of these material, the Court should be able to form its view on these matters. In some cases though, the circumstances may present a clear case of an unmeritorious appeal and the Court should not shy away from saying so.
11. In the present case, apart from the notice of appeal, the appellant relies on his affidavit. The respondents did not rely on any affidavits due to time constraints. The appellant made submissions which the respondents countered with arguments of their own.

DISTRICT COURT COMMMITTAL PROCEEDINGS

12. I find the critical matters under the Mc Hardy case that arise for consideration in the circumstances of the case at hand to be as follows -
    • Nature of the judgment appealed from.
    • Error on the face of the record of the judgment
    • Arguable case on appeal
    • Possible hardship, inconvenience or prejudice to either party
    • Balance of convenience
    • Overall interest of justice

Nature of the judgment appealed from.

13. The first interim relief sought by the appellant is a stay of the District Court committal proceedings in NCC No. 1289-1306 of 2013 (CB No.8696 of 32013) Chief Insp Timothy Gitua v Paul Paraka, NCC N0.33-36 of 2014 (CB No.153 of 2014) Chief Inspector Timothy Gitua v Paul Paraka; and NCC No.942-956 of 2014 (CB No. 4641 of 2014) Chief Inspector Timothy Gitua v Paul Paraka.
14. A decision of a judicial or quasi judicial tribunal and appeals or reviews from those decisions are provided by statute. A committal proceeding is a judicial proceeding. Judicial intervention in the committal process by the National Court is not by appeal but by way of judicial review on the grounds of excess of jurisdiction: see Ex parte Rush [1984] PNGLR 124, Tohian v Geita (No. 2) [1990] PNGLR 479, Thachenko v Magaru (2000) N1956, Lak v Magaru (1999) N1950, Kasieng v Biagry (2004) N2562, Maladina v Poloh (2004) N2568; and Application by Herman Joseph Leahy (2006) 5C855.
15. As a matter of law, public policy and of good practice too, an interim relief under 5 (1)(b) of the Supreme Court Act should not be pursued and granted under that provision. An interim relief should be more appropriately pursued in the context of a judicial review application in the National Court.
    • Error on the face of the record of the judgment
    • Arguable case on appeal
16. These two matters can be dealt with together as they are related. They are important matters to be considered and may of themselves prove to be critical and determinative of the application in most cases. For if no error is demonstrated that raises an arguable case on appeal, there is little or no utility in a stay or interim order being granted.
17. The appellant argues that the appeal raises a new and important point of law that needs to be argued and settled. The trial judge was wrong in arriving at the conclusion that s 219 only permitted appeals from final a decision. This in itself raises an arguable case.

18. The appeal before the National Court was from an interlocutory decision in three committal proceedings between the same parties and related subject matters. Committal proceedings, though judicial in nature, are not susceptible to appeals. No error on the face of the judgments has been demonstrated.

19. Judicial review is the appropriate procedure to be invoked by a person aggrieved by a decision of the Committal Court. Therefore, an appeal from the interlocutory ruling given in committal proceedings in this case was wrongly brought before the National Court. Even if the appeal were properly brought, s 219 of the District Court Act clearly allows an appeal against a final decision made after a full hearing on the merits. In the case of a committal decision, it is arrived at after a consideration of the whole evidence. An appeal would lie from the decision to commit the appellant to stand trial in the National Court. That has always been the law and the trial judge was correct in arriving at the same conclusion. The fact that there are to my knowledge no reported case of an appeal from an interlocutory decision of the District Court bears testimony to the obvious- that no appeal lies to the National Court from an interlocutory decision in a civil or criminal case let alone committal proceedings. For these reasons, I am not persuaded that there exists an error of law on the face of the judgment or an arguable case that raises serious issues to be argued on the appeal.

• Possible hardship, inconvenience or prejudice to either party
• Balance of convenience

20. The committal proceedings are pending. An appeal from an interlocutory decision to consolidate the various related committal proceedings involving the same parties does not result in any determination that affects or prejudices the interest of any one party. In fact consolidation is a useful case management tool that is often used to streamline and consolidate common issues between the same parties and cut litigation costs and should be welcomed by the parties.

Overall interest of justice

21. Given that there is no error on the face of the record to be found and no arguable case on appeal, the interest of justice lies in not disturbing the decision of the National Court and interfering with the committal proceedings.

DISTRICT COURT BAIL & PERMISSION TO LEAVE THE COUNTRY

22. The jurisdiction and procedure for grant or refusal of bail by this Court presided over by a single judge is governed by statute. Appellants seeking this Court's decision on any matter concerning bail must bring the matter within the statutory framework.

23. Section 10 (1) of the Supreme Court Act gives a single judge of the Supreme Court power to grant bail pending appeal. The appellant is not seeking bail pending appeal. He is seeking permission to leave this country to travel overseas to Singapore for personal reasons. He is seeking a "stay" of the bail conditions imposed by the District Court to enable him to travel to Singapore. He also seeks a variation of the bail conditions to allow him freedom to travel within PNG and overseas at any time to attend to his professional, family and tribal (customary obligations). The orders are sought under s 5 (1)(a) and (b) of the Supreme Court Act, s 155(4) of the Constitution, s20, and s23 of the Bail Act and 013 r 15 of the Supreme Court Rules.

24. The application for permission to leave the country temporarily under s 23 of the Bail Act, it is clear to me, is the primary relief sought and the rest incidental or consequential or facilitative of that relief. The main issue is whether the appellant has made out a case for the grant of that permission. I propose to determine the main issue first and deal with the other consequential matters.

25. If the appellant were to pursue those other orders on their own, those should be taken up with the District Court that granted the bail with the conditions.

26. Permission to leave the country is sought under Section 23 of the Bail Act which is in the following terms:

23. Permission to leave the country in certain cases.

(1) Where for urgent personal reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National Court or Supreme Court for permission to do so.

(2) Permission shall not be granted under Subsection (1) unless the court is satisfied that the person will return to Papua New Guinea for the proceeding.

(3) A permission granted under this section may be subject to conditions.

(4) A person may apply for permission under this section at the same time that he applies for bail.

(5) Where permission is granted under this section, a note to that effect shall be endorsed on the copy of the bail certificate held by the person granted bail.

27. Section 23 grants original jurisdiction to the Supreme Court and the National Court, to grant a person charged with an offence and released on bail, ,permission to leave the country temporarily for a fixed period for specified purposes of an urgent nature. This jurisdiction should be properly invoked by bringing an original application supported by affidavit. The application should be duly served on the respondents in order to give them an opportunity to be heard. The respondents in the application are either the Public Prosecutor or the police informant or arresting officer. The rules of court require three clear days notice of the application. The application should be moved inter partes and the Court should determine the application on the merits after a full hearing. If the application is made in the Supreme Court, the application should not be loaded on a Supreme Court appeal as an interlocutory relief. I do not consider it proper for a s 23 application to piggy- back on an unrelated appeal and moved as an interlocutory application in the appeal. An interlocutory application for permission to leave the country made in that manner defeats the purpose of an original application because the application is usually rushed and the full merits of the case unreached by the Court.

28. That said, I am satisfied the conditions prescribed by s 23 for making the application have been met. And given the urgency of the case at hand, I am prepared to deal with the application before me as if it were an original application.

29. There is affidavit evidence before me produced by the appellant that he requires urgent medical treatment in Singapore. He has made appointment with doctors in Singapore to see him on 28^th March 2016 which has come to pass but I am informed that the booking can be changed. There is also evidence before me to show that his daughter who is attending a college in Singapore is graduating on 2^nd April and he wishes to attend the event. I am satisfied that those conditions satisfy the requirements of s 23 (1). I am also satisfied that the appellant is a citizen of this country and has every intention of returning to his country after his short trip to Singapore. In the circumstances, I propose to impose some conditions that will ensure that he returns in good time to continue with the committal proceedings and prosecute this appeal.

IRC TAX ASSESSMENTS

30. The appellant seeks a stay of various tax assessments already issued for which he has lodged objections some 2 years ago. IRC is yet to determine those objections. He seeks a stay of future tax assessments. He seeks a stay of certain garnishee notices issued by IRC. He also seeks a stay of travel ban imposed by IRC under s 266 of the Income Tax Act.

31. With regard to the tax assessments and garnishee notices, I accept submissions of Mr Sinen of counsel for the IRC that the tax assessments and garnishee notices have been lawfully issued under the Income Tax Act and this Court has not power to stay those assessments. There are avenues already provided in the Income Tax Act for persons aggrieved by the decision of the IRC to assess tax and rulings on objections and those avenues will have to be exhausted before judicial intervention occurs. If judicial intervention were to occur, a person aggrieved should commence original proceedings in the National Court either by way of judicial review or declaratory or injunctive orders and that court should have jurisdiction to deal with such matters. The application should not be made to ride on an appeal before this Court in an unrelated matter.

32. With regard to the travel ban, I am of the view that that should be lifted to enable the appellant to travel abroad. I do not see the purpose of the ban in terms of a citizen leaving the country temporarily to return. Ban on overseas travel is more appropriate where a non citizen resident in the country will evade tax liability by leaving PNG. However the ban was issued under a law and its utility and legality needs to be properly and fully determined before the whole ban is lifted. The appellant should challenge the ban in the normal way by filing proceedings in the National Court by way of judicial review or for injunctive and declaratory orders. This Court lacks jurisdiction to stay the travel ban, except temporarily to allow him to travel to Singapore form his medical attention and to attend his daughter's graduation. This is a matter which is incidental or consequential to the grant of permission under s 23 of the Bail Act. The ban should be temporarily lifted for the brief period that I will grant him leave to travel to Singapore.

CANCELLATION OF PASSPORT & TRAVEL BAN BY MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION AND CHIEF MIGRATION OFFICER

33. The cancellation of the appellant's passport was made by the Acting Foreign Affairs and Immigration Minister on 12 November 2013. The Minister exercised his powers under s 12 (1)(b) and (2)(d) and (4) of the Passport Act. These provisions provide:

12. Power to refuse issue and cancellation of passport.
(1) Subject to Subsection (2), the Minister may-
(b) cancel a Papua New Guinea passport issued under this Act.

(2) The powers conferred on the Minister under Subsection (1) shall not be exercised unless the Minister is satisfied that the person-

(d) is the subject of a court order prohibiting his departure from Papua New Guinea;
(3) Where the Minister has-
(b) cancelled a Papua New Guinea passport,

he shall give written notice of, and the reasons for, his decision to the person concerned.

(4) Where the Minister cancels a Papua New Guinea passport under Subsection (1), the passport is immediately void.

34. The decision to cancel the passport was made under law and the same law provides a statutory review process in s 13 and s14 which provide as follows:

13. Committee of Review.

(1) A person may, within 28 days after the receipt of the notice under Section 12(3), by written application to the Prime Minister request that the decision of the Minister be reviewed by a Committee of Review.
14. Appeal against decision of Committee.

Subject to Section 155(5) (the national judicial system) of the Constitution, a decision of the Committee of Review under Section 13 is not open to review or challenge in any court on any grounds.

35. The appellant has not utilized the statutory review process. The appellant has recourse to the National Court and he has not utilized that process either. I do not consider it appropriate that he should seek to stay the decision of Minister and Chief Migration Officer under an appeal before this Court that is unrelated to the to their decisions.

36. However, there appears to have been an erroneous exercise of such power that is apparent on the face of the record to which this Court should not turn a blind eye. The decision was made based on a misunderstanding of the second bail condition issued by the District Court which stated:

"Defendant shall reside at Section 46 Allotment 3, Karu Street, East Boroko, National Capital District all times.

37. In his decision letter to the appellant dated 12th November 2013, the Minister gave two (2) reasons for decision as follows:

(i) That you had been named and are currently subject to the processes of legal proceedings brought against you by the Independent State of Papua New Guinea; and

(ii) That you are currently out on bail, and the bail conditions include the restriction on your travelling out of the country.

38. I accept the appellant's submissions which is conceded by counsel for the third and fourth respondents, that the bail condition in question did not prohibit the appellant from leaving the country. The condition restricted his place of residence to one location only. There was no express prohibition of the type envisaged by s 12 (2)(d) contained in the bail conditions. Section 12 (2)( d) speaks of "a court order prohibiting his departure from Papua New Guinea. " The fact that the appellant was charged with offences and that a bail condition restricted him to a particular place of abode at all times within the country fell far short of a Court order prohibiting his departure from Papua New Guinea.

39. For this reason, notwithstanding the statutory review process under the Passport Act and judicial review process have not been invoked by the appellant, I am prepared to stay the
decision temporarily, to allow the Department to reissue a new passport only for the purpose of facilitating the appellant's travel to Singapore for a fixed period, and upon his return, the
passport is to be surrendered to the third and fourth Respondents or alternatively to the
Registrar of the National and Supreme Courts. I agree with counsel for the third and fourth
respondents that the passport cancelled by the Minister is no longer valid and a new one will
have to be issued to the appellant in accordance with law.

40. Following the decision of the Minister and upon his instructions, the fourth respondent issued a travel ban to all airlines and carriers. This decision consequently will have to be stayed temporarily to allow the appellant to travel to Singapore for the said purposes for a fixed period.

41. For the forgoing reasons, I issue the following orders:

(1) The application for stay is dismissed in its entirety except for the orders set out in the succeeding
paragraphs.

(2) The appellant is granted permission to temporarily leave and return to Papua New Guinea between
29^th March 2016 and 30^th April 2016.

(3) The appellant shall submit to the respondents his travel schedule to and from Singapore in the
period referred to in Order (2) above, forthwith.

(4) The respondents shall, severally or jointly, permit and facilitate the appellant's departure from
Papua New Guinea to travel to and from Singapore in the period specified in Order (2) ,by taking all
necessary actions including the following:

(a) The third and fourth respondents shall process the appellant's application for a new passport and issue him a new passport in accordance with requirements under law;

(b) The fourth respondent shall lift the travel ban issued on 12 November 2013 forthwith for the period referred to in Order (2) above; and

(c) The fifth respondent shall lift the travel ban issued on 4 March 2014 forthwith for the period referred to in Order (2) above.

(5) The appellant shall upon return to Papua New Guinea from Singapore surrender his passport to the third and fourth respondents or to the Registrar of the National and Supreme Courts within 24 hours of arrival in Papua New Guinea.

(6) The appellant shall supply to the first respondents his residential address, his telephone and email address in Singapore upon arrival in Singapore.

(7) The respondents shall give seven (7) days notice of any action they intend to take with regard to the continuation of the committal proceedings and continuation of these appeal proceedings.

(8) The bail conditions imposed by the District Court are deemed to have been varied to render consistency with these orders.

(9) In the event that any of the parties to these proceedings encounter practical difficulty in complying with any of these orders within the time frame stipulated herein, I grant liberty to all the parties to apply to vary these orders on three (3) clear days notice to the other parties.

(10) Costs of the application shall be in the cause of the appeal.
________________________________________________________________________
Paraka Lawyers: Lawyers for the Appellant
First and second respondents in person
Foreign Affairs & Immigration In-house Lawyers: Lawyers for the Third & Fourth Respondents
IRC In-house Lawyers: Lawyers for the Fifth respondent

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