O'Neill v Bidar [2019] PGSC 127; SC1899 (16 December 2019)

SC1899

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 27 of 2019

BETWEEN:
HON. PETER O'NEILL
Appellant

AND:
COSMOS BIDAR
First Respondent

AND:
KILA TALI
Second Respondent

AND:
DAVID MANNING
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J,
2019: 12^th & 16^th December

Application for interim orders pursuant to s. 5(1)(b) Supreme Court Act

Cases Cited:
Papua New Guinea Cases

Eremas Wartoto v. The State (2015) SC1411
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Marape v. O'Neill (2014) SC1378
Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388

Overseas Cases:

New South Wales Food Authority v. Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148

Counsel

Mr. G. Sheppard and Mr. G. Purvey, for the Appellant
Mr. D. Wood, for the Respondents

16^th December, 2019

1. HARTSHORN J: This is a decision on a contested application for a restraining order. The order is sought to prevent the arrest of the appellant Hon. Peter O'Neill, in respect of a complaint made against him on 11^th October 2019 by Hon. Bryan Kramer, Minister for Police. The order is sought pending the determination of the substantive appeal by the appellant of a decision made by the National Court in a judicial review proceeding.

Background

2. The appellant appeals against a National Court decision which refused leave for him to judicially review two decisions of the District Court. These decisions were in essence to issue a warrant for the arrest of the appellant and then a decision to withdraw that warrant.

3. On 29^th November 2019 this Court, following an urgent ex parte hearing, granted an order in the nature of a restraining order to prevent the Royal Papua New Guinea Constabulary, its employees, servants or agents, David Manning in his capacity of Acting Commissioner of Police or any Police Officer under his command from making any arrest or attempt of arrest of the appellant in association of or in connection with the complaint made by the Minister of Police, Hon. Bryan Kramer, on 11^th October 2019 pending the hearing and determination of the appellant's appeal (restraining order).

4. The Court further ordered that the matter return for an inter partes hearing to determine whether the restraining order should be extended. This is the decision following that hearing.

Preliminary

5. I consider the respondents' objections of moment. The respondents' objected to the appellant's reliance upon s. 5 Supreme Court Act on the basis that the appellant should have specified which subsection of s. 5 he is relying upon as there are five subsections. As paragraph 4 of the amended application of the appellant refers to s.5 Supreme Court Act and also that a restraining order is sought, I am satisfied that the respondents would have correctly determined that relief was being sought pursuant to s. 5(1)(b), being an interim order to prevent prejudice to the claims of the parties, as apart from s. 5(1)(a), which refers to a direction and not an order, the other subsections are not applicable. No prejudice has been occasioned to the respondents in my view and this is reflected by the respondents making later submissions concerning s. 5(1)(b). This objection is rejected.

6. The respondents' also objected to the amended application on the basis that it is not in the correct form and that it did not detail documentation relied upon. I note from the evidence that the respondents' were served with the necessary documentation as ordered. Again, I am not satisfied that any prejudice has been caused by any non-compliance as to form. This objection is rejected.

Section 5(1)(b) Supreme Court Act

7. In regard to an application made pursuant to s. 5(1)(b) Supreme Court Act, I reproduce the following passage, relied upon by the respondents, from Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [24] - [26] with which, I respectfully agree:

"24. An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge: Peter Makeng v Timbers (PNG) Limited (2008) N3317 (Injia DCJ, as the Chief Justice then was). ......

25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focussed on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice? There is nothing in the text of the provision which requires an applicant for such an order to demon strate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.

26. Identifying the claims of the parties does not entail reaching any final conclusion on the merits of the claim advanced by the applicant for the interim order, only that the applicant has an arguable case. The claims are to be found in the grounds specified in the notice of appeal or, as the case may be, application for leave to appeal and in the bases upon which those grounds are contested. Where the claim of the applicant appears to strongly arguable, even comparatively minor prejudice might warrant the making of an interim order (and the converse may also warrant the making of an interim order in the circumstances of a particular case). What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case."

The claims of the appellant

8. The respondents' submit that a summary of the appellant's claims, being the grounds in the Supreme Court motion, are that the warrant of arrest was not, "effectively" and "legally" withdrawn by the respondents', that the District Court does not have jurisdiction to withdraw the warrant of arrest and that the primary judge fell into error in finding that the application for leave to apply for judicial review would serve no utility and so his s. 37 Constitutional rights were breached.

District Court jurisdiction

9. The respondents' submit in regard to the claim that the District Court does not have jurisdiction to withdraw a warrant of arrest, that to the contrary, it does. Consequently, the applicant does not have an arguable case on this point it is submitted. They cite the Supreme Court decision of Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388 in which at 64, the Court stated that the Police Commissioner, ".... would need to make an application to the court that issued the warrant, to withdraw, set aside or dissolve the warrant."

10. The appellant submits that the Supreme Court was referring to the Police Commissioner only and not the District Court and its jurisdiction. The District Court is created by statute and has no jurisdiction to order an act unless the provision of an enactment specifically provides. There is no specific provision that gives the District Court the jurisdiction to withdraw a warrant of arrest, it is submitted.

11. I concur with the submissions of the appellant on this point. The District Court is an inferior court created by statute. It may only act if authorised to do so. I am satisfied that the appellant has an arguable case on this point.

Civil and criminal jurisdiction

12. The respondents' submit that the appellant is attempting to halt a police investigation and criminal processes and procedures, by way of a civil proceeding, which is not permitted. They rely upon the Supreme Court case of Eremas Wartoto v. The State (2015) SC1411. In that case the Supreme Court dismissed an application for a permanent stay of criminal proceedings.

13. I note however, that in the judgment of Sakora J and Kandakasi J (as he then was), at [56], reference is made to an exception to it being inappropriate, an abuse and improper for an accused to invoke the civil jurisdiction in regard to criminal matters. That exception is in regard to judicial review. In this instance, the appellant is appealing against orders made in a judicial review proceeding which concerned criminal matters.

14. I refer also to the Supreme Court case of Marape v. O'Neill (2014) SC1378 which granted an interim injunction restraining amongst others, the police in respect of criminal matters. This was in the course of an appeal from a National Court civil proceeding. This case, although decided earlier, was not referred to in Wartoto's case (supra).

15. Further, I refer to the case of New South Wales Food Authority v. Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148, relied upon by the appellant, which was applied in Thompson v. Kalaut (2011) N4265. At [34], Davani J said:

"34. The issue now is whether the National Court sitting as a Civil Court, can stay District Court Criminal proceedings. In New South Wales Food Authority v. Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148, Simpson .J said;

“There is nothing controversial or complex about the basis upon which the Court will intervene to stay a criminal prosecution. It may properly do so where it would be an abuse of process for the prosecution to proceed. It is an abuse of process, inter alia, where there is no prospect that the prosecution will result in a conviction”. (see generally Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Walton v. Gardiner (1993) 177 CLR 378; Rogers v. The Queen [1994] HCA 42; (1994) 181 CLR 251; Williams v. Spantz [1992] HCA 34; (1992) 174 CLR 509)."

16. In addition, it is to be noted that s. 5(1)(b) Supreme Court Act only fetters this Court in the exercise of its discretion to order interim relief which prevents prejudice to the claims of the parties.

17. In the absence of any other fetter, it is open to this Court on the wording of s.5(1)(b) Supreme Court Act, to grant an interim order which concerns criminal matters in a civil appeal, if it is satisfied that such relief will prevent prejudice to the claims of the parties in the civil appeal.

18. Taking this and the other matters to which I have referred into account, I am satisfied that the appellant is entitled to seek the orders which he does as he has.

Whether the restraining order is necessary to prevent prejudice

19. The respondents' submit that the restraining order sought is concerned with seeking to restrain the appellant being arrested in respect of the complaint by Mr. Kramer, as distinct from the arrest warrant the subject of the appeal. It is submitted therefore, that the restraining order sought does not seek to prevent prejudice to the appellant's substantive claim in this appeal and consequently the restraining order sought should be refused.

20. The substantive relief sought by the appellant is concerned with the subject warrant of arrest. The evidence given by the appellant, uncontested by the respondents, is that he will be arrested on a charge of conspiracy to pervert the course of justice in relation to the same warrant to arrest being, "fake".

21. If the appellant is arrested as foreshadowed, such arrest will likely taint and call into question the validity and authenticity of the warrant of arrest the subject of the appellant's appeal. It will also expose the appellant to the allegations of being involved in forgery and criminal conduct. To my mind, this is likely to be prejudicial to the appellant's claims and their consideration by this Court.

22. Further, the foreshadowed arrest is in circumstances where the allegation of the warrant of arrest being fake was not raised in the District or National Courts and in circumstances where the second respondent, in his affidavit in support of his application to withdraw the warrant, annexes a true copy of the warrant issued by the District Court, the same copy of the warrant relied upon by the appellant. The allegation of the warrant being "fake" is in contradiction to the evidence relied on by the police.

23. It is also worthy of comment and significant in my view, that the respondents' have not taken the opportunity to give any evidence on this application and to refute the serious allegations made by the appellant in his affidavit in support of his application.

24. To my mind, in the absence of any evidence from or on behalf of the respondents and the evidence of the appellant being uncontested, I find merit in the submission that an arrest of the appellant as foreshadowed would be an abuse of process for amongst others, being an attempt to undermine the processes of the Supreme Court and an attempt to undermine the prospects of success of the appeal.

25. Consequently, for the above reasons I am satisfied that the restraining order sought which was initially granted, should be extended until the determination of the appellant's appeal. Given this it is not necessary to consider the other submissions of counsel.

Orders

26. It is ordered that:

a) The relief sought in paragraph 4 of the amended application of the appellant filed 29^th November 2019 is granted;

b) The costs of the appellant of and incidental to paragraph 4 of the said application shall be paid by the respondents.
__________________________________________________________________
Young & Williams: Lawyers for the Appellant
Ashurst: Lawyers for the Respondents