Brian Curran v The Independent State of Papua New Guinea, The Minister for Foreign Affairs and Arnold Marsipal, Bernard Narokobi and Lucas Waka as members of a Ministerial Committee of Review

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J
• Judgment Date: 28 November 1997
• Court: Supreme Court
• Citation: [1997] PNGLR 230
• Year: 1997
• Judgement Number: SC531

Supreme Court: Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J

Judgment Delivered: 28 November 1997

SC531

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

CA N0. 28 OF 1994

BETWEEN:

BRIAN CURRAN

Appellant

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

First Respondent

AND:

THE MINISTER FOR FOREIGN

AFFAIRS

Second Respondent

AND:

ARNOLD MARSIPAL,

BERNARD NAROKOBI and

LUCAS WAKA as members of

a Ministerial Committee of

Review

Third Respondents

Waigani: Amet CJ, Kapi DCJ, Los, Injia, Sawong JJ

1st December 1995, 28th November 1997

Appeal — the burden of proof in a judicial review proceedings — proof of other judicial proceedings, Evidence Act (Ch 48), s 44.

Appeal — breach of natural justice.

Mr Philip Payne for the Appellant

Mr Francis Damen for the Respondents

28th November 1997

Amet CJ. I agree with the opinion of the Deputy Chief Justice and have nothing further to add.

Kapi DCJ. Mr Brian Curran (hereinafter referred to as the "Appellant") is a British citizen and was employed as a lawyer by Blake Dawson Waldron, a firm of lawyers in Port Moresby. He was issued with an entry permit No. C/007558/91 on 20 December 1991 pursuant to the provisions of the Migration Act (Ch 6) (hereinafter referred to as "the Act") which permitted him to enter and remain in Papua New Guinea until 10 March 1993 for the sole purpose of employment with Blake Dawson Waldron Lawyers.

On 24 June 1992 the appellant was served with a notice dated 23 June 1992 by the then Minister for Foreign Affairs cancelling his entry permit pursuant to s 6 of the Act. At the same time he was served with a removal order under s 12 of the Act.

By a letter dated 25 June 1992, the appellant sought a review of the Minister's decision by a Committee of Review pursuant to s 6 (2) of the Act. In a letter dated 17 July 1992 the Secretary of Department of Foreign Affairs and Trade advised the appellant that a Review Committee had reviewed the cancellation of the permit and it had upheld the decision of the Minister and requested that the appellant should leave the country within 7 days of the letter.

The appellant sought judicial review of this decision in the National Court. The nature of the review sought was in the nature of a declaration that the decision of the Minister and the Review Committee was harsh and oppressive or not warranted by or disproportionate to the requirements of the particular case or is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society pursuant to s 41 of the Constitution.

The matter came before Mr Justice Brown for hearing and he dismissed the application on 6 July 1994. On 12 August 1994 the appellant filed an appeal against the whole of the decision on the following grounds of appeal:

"Grounds

(a) The Trial Judge erred in law in failing to

conduct a review of the decisions of the second and third respondents on the evidence before him as he was required to do and in lieu thereof in conducting an inquiry in relation to matters not before him and in relation to which he afforded to the appellant no opportunity to be heard.

(b) The Trial Judge erred in law in taking into

account extraneous matters which were not admitted into evidence at the trial and then in breach of the rules of natural justice failing to advise the parties or their counsel that he intended to base his decision on extraneous matters not in evidence at the trial of the matter.

(c) The Trial Judge erred in fact at page 16 of

the Judgement where he found "the convoluted events which followed are due in some part to the fact that these order[s] and the actions of the Minister in ordering the cancellation of Mr Curran's visa no doubt flow from the circumstances in which the Director-General felt obliged by Court Order to grant Mr LeBlanc a temporary entry visa and the frustration he experienced as a result" when there was no evidence at all to support this finding.

(d) The Trial Judge erred in fact at page 22 of

the Judgement where he found that the appellant "must, at least by the 15 May, have been fully appraised of all the various applications by Mr LeBlanc and have had the reasons given by Hinchliffe J for the Judge's refusal to review the Director's failure to issue a visa for Mr LeBlanc in the first instance, back in October and November 1991" when there was no evidence at all to support this finding.

(e) The Trial Judge erred in fact at page 22 of

the Judgment where referring to the Affidavit of Arthur LeBlanc sworn 4 May 1992 and filed in separate proceedings, His Honour found that the appellant "must be presumed to have knowledge of its contents and acquiesced in its remaining on file" when there was no evidence at all before the Court on which to base this finding.

(f) The Trial Judge erred in law and in fact at

page 23 of the Judgment in holding the appellant, in his capacity as counsel for Arthur LeBlanc, responsible for the use of affidavits sworn by Arthur LeBlanc in separate proceedings.

(g) The Trial Judge erred in law and in fact in

finding at page 23 of the Judgment that the appellant's use of an affidavit sworn by Arthur LeBlanc sworn 4 May 1992 was open to the gravest censure.

(h) The Trial Judge erred in fact at page 24 of

the Judgment in finding "I consider that knowledge in Mr Curran of these facts is particularly relevant for it goes to an understanding of the Minister's justification for taking the steps that he had, to cancel Mr Curran's visa" when there was no evidence at all or to support this finding.

(i) The Trial Judge erred in fact at page 25 of

the Judgment in finding "the justification then for the Minister's act against Mr Curran clearly also goes to the factual statements quoted of Mr Curran, factual statements which were not true ... Those erroneous factual statements could be said to show little respect for the Minister's office or for the Commonwealth" when there was no evidence at all before the Trial Judge to support this finding and when neither the second nor third respondents proffered any such basis for their decisions.

(j) The Trial Judge erred in law at page 29 of

the Judgment in finding that the principles in Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948] 1...