Application for leave to apply for Judicial Review pursuant to Order 16 (3) of the National Court Rules; Honourable Paul Tiensten, LLM, MP v Sam Koim and Sylvester Kalaut and Timothy Gitua and The National Executive Council and Tom Kulunga as Commissioner of Police and The Independent State of Papua New Guinea (2011) N4420

• Jurisdiction: Papua New Guinea
• Judge: Lenalia; J
• Judgment Date: 14 October 2011
• Court: National Court
• Docket Number: O.S. (Jr) No. 769 of 2011
• Citation: (2011) N4420
• Year: 2011
• Judgement Number: N4420

Full Title: O.S. (Jr) No. 769 of 2011; Application for leave to apply for Judicial Review pursuant to Order 16 (3) of the National Court Rules; Honourable Paul Tiensten, LLM, MP v Sam Koim and Sylvester Kalaut and Timothy Gitua and The National Executive Council and Tom Kulunga as Commissioner of Police and The Independent State of Papua New Guinea (2011) N4420

National Court: Lenalia; J

Judgment Delivered: 14 October 2011

N4420

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. (JR) NO. 769 OF 2011

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 (3) OF THE NATIONAL COURT RULES

BETWEEN:

HONOURABLE PAUL TIENSTEN, LLM, MP

Applicant/Plaintiff

AND:

SAM KOIM

First Defendant

AND:

SYLVESTER KALAUT

Second Defendant

AND:

TIMOTHY GITUA

Third Defendant

AND:

THE NATIONAL EXECUTIVE COUNCIL

Fourth Defendant

AND:

TOM KULUNGA as Commissioner of Police

Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Kokopo: Lenalia; J

2011: 5th & 14th October

JUDICIAL REVIEW – Application for leave to apply for judicial review – Application for leave to apply for judicial review to review the decision of the National Executive Council – Order 16 Rule 3 of the National Court Rules

PRACTICE & PROCEDURE – Judicial Review – An application for leave to apply for judicial review to review the decision of/ by the National Executive Council – Principles – Issue of no-justiciability – National Executive Council decision non-justiciable

APPLICATION FOR LEAVE FOR JUDICIAL REVIEW – Jurisdiction – Applicant has not submitted himself to PNG jurisdiction – Application should be refused – Application for leave to apply for judicial review refused with costs.

Cases cited:

Papua New Guinea Cases

NTN Pty Limited-v-The Board of Post & Telecommunication Corporation and 2 Others [1987] PNGLR 70

Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122

Ila Geno and Others v Independent State of Papua New Guinea [1993] PNGLR 22.

Markscal Limited and Robert Needham-v-MRDC and 2 Others [1996] PNGLR 491

Paul Pora-v-Leadership Tribunal [1997] PNGLR 1

Telikom PNG limited-v-The Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906

Overseas Cases cited.

American Cyanide Company-v-Ethicon Ltd (1975) 1 All E.R 495

Inland Revenue Commissioners-v-National Federation of Self-Employed and Small Business Ltd [1981] 2 All E.R. 93 at 105

Inland Revenue Commissioners, Ex Parte Federation of Self-Employed and Small Business Ltd [1981] 2 W.L.R 722

Counsel:

Mr. P. Yange, for the Plaintiff

Mr. M. Murray, for all Defendants

14th October, 2011

1. LENALIA, J. The Applicant/Plaintiff (plaintiff or applicant) of this case is applying for leave to apply for judicial review of the decision by the National Executive Council which is named as the Fourth Defendant decision No.NG 03/2011 to establish an “Investigation Team” into allegations of corruption at the National Planning & Monitoring Department and the other Departments and the other State Agencies. This is the brief ruling on the Member’s application for leave.

2. The applicant is the current member for Pomio Electorate, East New Britain Province. He was the former Minister for the Department of National Planning and District Development in the former Government. Following the change of Government on 11th August 2011, the Fourth Defendant had a meeting during which it considered a Policy Submission No. NG 04/2011.

3. In its meeting on 12th August 2011, the National Executive Council (N.E.C.) reached a resolution to establish an investigating team to investigate into allegations of corruption in the Department of National Planning & Monitoring and which would later extend to other Departments and State agencies. (See copy of the decision annexed “A” to Member’s Affidavit 3rd October 2011). The NEC then established the task force to investigate the monies appropriated through the Development Budget from 2009 to 2011 amongst others the K125 million for the Kokopo Community Projects and the K10 million which were outside the Development Budget.

Address by Plaintiff’s Counsel

4. Mr. Yange from Warner Shand Lawyers appeared for the plaintiff/applicant, made his submission in relation to the nature of this application saying that, the N.E.C is a body established by the Constitution and is amenable to the judicial review processes. He argued that, the limitations set by s.153(2) & (3) of the Constitution do no apply to the facts of the present application. He said, these Subsections cannot apply to judicial review of decisions by the N.E.C and thus any decisions made are amenable to judicial review.

5. Counsel submitted that, on this type of situation on this particular case, s.155(4) of the Constitution expressly vests in this Court jurisdiction with inherent power to review and if the Court is of the view that, there are overriding considerations of public policy in a particular case it should grant leave. He said, in a case like the circumstances of the current application where the NEC Decision offended against the Constitution, it is appropriate to invoke this Court’s power pursuant to s.155 (5) of the Constitution as the NEC had conducted itself in a manner that was unconstitutional.

6. On the issue of an arguable case, counsel argued that the applicant need only to show that there are reasonable grounds of a prima facie case basis exist for seeking the final relief that the applicant will seek in the final relief. On the Terms of Reference attached to the NEC decision, Mr. Yange argues that it is unconstitutional as counsel quoted the following phrase “Team” to “Prosecute the persons found to be criminally implicated under the laws of Papua New Guinea” was and is an attempt to direct or control the Public Prosecutor or the Police in their investigative functions.

7. Mr. Yange argues that the NEC decision contravenes ss.177(1), 176(3)(a), (5), 197(2) and even s.214 of the Constitution. The latter section deals with the functions of the Auditor General. He submits that, the NEC acted ultra vires its powers and the decision can not be allowed to stand saying this is the reason why the plaintiff applies for leave.

8. He ended his submission by arguing that the gist of the applicant’s complaints is that the decision by the Fourth Defendant cannot be accepted as a lawful exercise of the prosecution powers given to the Office of the Public Prosecutor or the PNG Constabulary prosecution or investigative functions. He said, the balance of convenience cannot favour the process in the Terms of Reference to continue and thus leave for judicial review should be granted. He cited many case law authorities some of which I shall refer to later.

Address in reply by Counsel for all Defendants

9. Mr. Murray of counsel for the Defendants vigorously contested the application. Counsel argued that on the face of this application, the applicant has no sufficient interest on this application because, he had no locus standi since all affidavits containing the applicant’s complaints were filed in Australia. Even if the applicant has sufficient interests, would such right override the public interest which was the underlying reason behind the approval of the establishment of a body which counsel referred to as “National Anti-Corruption Alliance (NACA).

10. Counsel asked the court to consider the issue of jurisdiction properly because on this application, the applicant seeks intervention to stop the progress of a public authority which was properly established to investigate matters of huge public concern which has been the subject of discussion on transparency and good governance. Counsel referred the Court to the affidavit of the First and Fifth Defendants saying those affidavits contain elaborate explanation on the empowerment of NACA by the Fourth Defendant.

11. On the issue of undue delay, counsel conceded that the defendants have no issue with this principle but Mr. Murray stressed that this application was brought under a situation which would be described as “pre-emptive strike” against the decision of the public body properly established which body was and is authorized to carry out “certain functions with the sole objective of putting back some pleasant smile on peoples faces.”

12. On the issue of “arguable case”, counsel argued that, the applicant does not have an arguable case citing ss.22 & 23 of the Constitution for enforcement of constitutional rights and sanctions taking into consideration the fact that if there was lack of procedural law on this type of application, this Court is empowered to consider the National Goals and Directive Principles.

13. Counsel asked a legitimate question of what authority has caused an error, legal or otherwise against the applicant which would warrant the filing of the application for leave to apply for judicial review. According to Mr. Murray, the NEC has not committed any constitutional or statutory breaches and as such the applicant must establish...