Grand Chief Sir Michael Somare v Ila Geno, John Nero, Phoebe Sangetari as the Ombudsman Commissioners and The Ombudsman Commission (2008) N3406

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, J
• Judgment Date: 24 June 2008
• Court: National Court
• Citation: (2008) N3406
• Docket Number: OS 246 OF 2008
• Year: 2008
• Judgement Number: N3406

Full Title: OS 246 OF 2008; Grand Chief Sir Michael Somare v Ila Geno, John Nero, Phoebe Sangetari as the Ombudsman Commissioners and The Ombudsman Commission (2008) N3406

National Court: Hartshorn, J

Judgment Delivered: 24 June 2008

N3406

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS 246 OF 2008

BETWEEN:

GRAND CHIEF SIR MICHAEL SOMARE

Plaintiff

AND:

ILA GENO, JOHN NERO, PHOEBE SANGETARI

as THE OMBUDSMAN COMMISSIONERS

and THE OMBUDSMAN COMMISSION

Defendants

Waigani: Hartshorn, J.

2008: 15th & 22nd May

: 16th, 17th & 24th June

INJUNCTION - Temporary Injunction seeking to restrain investigation by Ombudsman Commission – Whether serious question to be tried – Whether damages an adequate remedy – Balance of Convenience

Facts:

The Plaintiff has requested this Court to grant certain declarations and a permanent injunction to prevent the Defendants from continuing their investigations into whether the Plaintiff has properly given certain annual statements to the Ombudsman Commission. The Plaintiff also applies for a temporary injunction to restrain the Defendants from continuing with their investigations. The Defendants seek to dismiss the application.

Held:

1. The Court is not satisfied that the Plaintiff has a serious question to be tried.

2. If the Plaintiff had a serious to be tried, damages would be an adequate remedy in the event that he was successful in his substantive proceedings.

3. If damages are not considered to be an adequate remedy, the balance of convenience does not favour the granting of the interim relief sought.

4. The orders sought in the Plaintiff’s Notice of Motion are refused

Cases cited:

Papua New Guinea Cases

Robinson v. National Airlines Commission [1983] PNGLR 478

Markscal Ltd v. MRDC [1996] PNGLR 419

Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC525

Rimbink Pato v. Anthony Manjin [1999] PNGLR 6

Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290

Pius Nui v. Tanda (2004) N2765

Overseas Cases

American Cyanide Company v. Ethicon Limited (1975) 1 All ER 594

Counsel:

Mr. K. Kua and Mr. S. Singin, for the Plaintiff

Mr. C. Mende, Ms. Waide and Ms. Gaegaming, for the Defendants

24 June, 2008

1. HARTSHORN, J: The Plaintiff requests this court to grant certain declarations and a permanent injunction to prevent the Defendants from continuing their investigations into whether the Plaintiff has properly given certain annual statements to the Ombudsman Commission.

2. Pending the determination of the substantive proceedings the Plaintiff applies for a temporary injunction to restrain the Defendants from continuing their investigations. The Defendants seek to dismiss that application.

3. The principles upon which the court can grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanide Company v. Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525.

Serious question to be tried

4. The first question to be determined is does the Plaintiff have a serious question to be tried in the substantive proceedings.

5. This has been interpreted to mean:

What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success….; Robinson v. National Airlines Commission [1983] PNGLR 478 and

….. a strong case which, on the evidence presented would support a permanent injunction; Markscal Ltd v. MRDC [1996] PNGLR 419.

6. The parties have filed affidavits in support of their respective positions. As to the court's consideration of that evidence at this stage, I am mindful of the words of Lord Diplock in American Cyanide (supra):

It is not part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.

7. The Plaintiff seeks 7 declarations and 1 permanent injunction. The declarations that the Plaintiff seeks are to the effect that:

a) a decision not to appoint an independent investigator was null and void as it was not made by a majority of Ombudsman Commissioners,

b) the Ombudsman Commission lacks jurisdiction to continue to investigate the Plaintiff as the conduct of the investigation so far has been harsh and oppressive, has been subject to excessive delays and has breached the rules of natural justice to act fairly, reasonably and in good faith,

c) the Ombudsman Commission has acquiesced in any misconduct of the Plaintiff because of the delays and is either estopped from further investigating or has waived its rights to further investigate because of its conduct so far.

8. The evidence in support of the contention that the decision not to appoint an independent investigator was not made by a majority of Ombudsman Commissioners is a letter dated 27 December 2006 to the lawyers for the Plaintiff which is only signed by one Commissioner, the Chief Ombudsman.

9. There is also a request made over 2 years later in a letter dated 18 February 2008 from the lawyers for the Plaintiff, for proof that the … full Commission sat and determined our section 19 application.

10. In the letter of 27 December 2006, the lawyers for the Plaintiff are informed inter alia, that the request for the Commission to exercise its powers under s. 19 Organic Law on the Duties and Responsibilities of Leadership has been considered by the Commission but is declined.

11. There is no evidence presently before the court that the s.19 decision was made by 1 Commissioner as opposed to the full Commission apart from the letter of 27 December 2006 being signed by the Chief Ombudsman only. That letter appears to have communicated the decision and is not the actual decision itself.

12. On the interpretations in Robinson (supra) and Markscal (supra), I am not satisfied that there is a serious question to be tried on this issue.

13. The evidence as to the conduct of the investigation being harsh and oppressive, the subject of excessive delays and having breached the rules of natural justice to act fairly, reasonably and in good faith, includes a letter dated 18 October 2006 from the Ombudsman Commission to the Plaintiff.

14. In that letter the Ombudsman Commission detailed allegations concerning the alleged failure by the Plaintiff to give annual statements, the failure to give them on time and providing incomplete statements.

15. The period of time covered is from about 1988 to about 2005. The Plaintiff contends that there have been delays and procrastinations in the investigations in that time and that:

a) this has prejudiced the Plaintiff's ability to defend himself against the allegations through inter alia, loss of evidence,

b) this constitutes a failure to act fairly, reasonably and in good faith

c) the Ombudsman Commission is estopped from continuing its investigations and by its conduct it has acquiesced in the alleged misconduct of the Plaintiff and has waived its rights to further investigate the Plaintiff.

16. In the letter of 18 October 2006, as well as detailing the allegations against the Plaintiff, the Ombudsman Commission detailed correspondence it has written to the Plaintiff. This consisted of forwarding annual statement forms, acknowledgements of receipts of annual statements and reminders in respect of outstanding annual statements. In this latter category, there are references to reminder letters being written almost every year by the Ombudsman Commission to the Plaintiff from 1996 to 2005.

17. To my mind, this is not evidence of there being delays of the magnitude contended by the Plaintiff entitling the Plaintiff to the substantive relief that he seeks.

18. There are letters written by the lawyers for the Plaintiff to the Ombudsman Commission alleging substantial delays and putting the Ombudsman Commission on notice of relief that may be claimed, but this is not evidence of the delays claimed.

19. The fact that the longest period of time under investigation is about 20 years does not in my view show that there have been delays of the magnitude contended by the Plaintiff.

20. Again, I am not satisfied that there is a serious question to be tried after considering the evidence. That is, I am not satisfied that the Plaintiff has made out a serious not speculative case which has a real possibility of ultimate success, or a strong case which, on the evidence presented, would support a permanent injunction or the substantive relief sought.

21. Having decided that the Plaintiff has not established that he has a serious question to be tried, it is not necessary for me to consider the next question which is whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought.

Damages

22. If however, the Plaintiff does have a serious question to be tried, the first consideration in determining the balance of convenience is whether, if the Plaintiff were to succeed at trial in obtaining the relief sought, would he be adequately or appropriately compensated by an award of damages for any loss sustained between being refused...