Honourable Peter O’Neill, Prime Minister of Papua New Guinea v Nerrie Eliakim Chief Magistrate and the Independent State of Papua New Guinea and Matthew Damaru & Timothy Gitua as the Director & Deputy Director of National Fraud & Anti-Corruption Directorate and Geoffrey Vaki, Commissioner of Police in his capacity as the Police Commissioner of PNG and Gari Baki, in his capacity as the Police Commissioner of PNG (2016) SC1539

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Hartshorn & Kassman JJ
• Judgment Date: 29 September 2016
• Court: Supreme Court
• Citation: (2016) SC1539
• Docket Number: SCA No 7 of 2016
• Year: 2016
• Judgement Number: SC1539

Full Title: SCA No 7 of 2016; Honourable Peter O’Neill, Prime Minister of Papua New Guinea v Nerrie Eliakim Chief Magistrate and the Independent State of Papua New Guinea and Matthew Damaru & Timothy Gitua as the Director & Deputy Director of National Fraud & Anti-Corruption Directorate and Geoffrey Vaki, Commissioner of Police in his capacity as the Police Commissioner of PNG and Gari Baki, in his capacity as the Police Commissioner of PNG (2016) SC1539

Supreme Court: Kandakasi, Hartshorn & Kassman JJ

Judgment Delivered: 29 September 2016

SC1539

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 7 OF 2016

BETWEEN:

HONOURABLE PETER O’NEILL,

PRIME MINISTER OF PAPUA NEW GUINEA

Appellant

AND:

NERRIE ELIAKIM

CHIEF MAGISTRATE

First Respondent

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Second Respondent

AND:

MATTHEW DAMARU & TIMOTHY GITUA

as the Director & Deputy Director of National

Fraud & Anti-Corruption Directorate

Third Respondents

AND:

GEOFFREY VAKI,

COMMISSIONER OF POLICE in his capacity as the Police Commissioner of PNG

Fourth Respondent

AND:

GARI BAKI,

in his capacity as the Police Commissioner of PNG

Fifth Respondent

Waigani: Kandakasi, Hartshorn & Kassman JJ

2016: 2nd ,29thSeptember

APPEAL against joinder of parties to an application for judicial review

Cases cited:

Alex Timothy v. Francis Marus (2014) SC1403

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported

Isaac Lupari v. Sir Michael Somare (2010) SC1071

James Marape v. Peter O’Neill (2015) SC1458

Mek Kuk v. Peter O’Neill (2014) SC1331

Peter O’Neill v. Nerrie Eliakim (2016) SC1522

PNG Power Ltd v. Ralph Gura (2014) SC1402

Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45

Powers and Functions of the Commissioner of Police (2014) SC1388

Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016

State v. Sam Akoita & Ors (2009) SC977

Timbani Longai v. Steven Maken (2008) N4021

Titi Christian v. Rabbie Namaliu (1996) OS no. 2 of 1995, delivered on 18th July 1996

Watt (formerly Carter) v. Ahsan [2007] UKHL 51

Counsel:

Mr. M.M. Varitimos QC, Mr. D. Kipa and Mr. J. Sioni, for the Appellant

Mr. R. Saulep, for the First and Second Respondents

Mr. I.R. Molloy and Mr. C. Wara, for the Fifth Respondent

Messrs M. Damaru and T. Gitua ,Appeared in person as the Third Respondents

29th September, 2016:

1. BY THE COURT: This is a decision on a contested appeal from a National Court decision that joined the third respondents, Messrs Mathew Damaru and Timothy Gitua in the National Court proceeding. That National Court proceeding is an application for judicial review (judicial review proceeding). It seeks to judicially review the decision of the first respondent, the Chief Magistrate Ms. Nerrie Eliakim, to grant a warrant of arrest against the appellant, Hon. Peter O’Neill, the Prime Minister.

2. The appeal is supported by the first, second and fifth respondents and opposed by the third respondents. The fourth respondent did not enter an appearance in the appeal.

Background

3. On 18th July 2014, the National Court granted leave to the appellant to judicially review the decision of the first respondent as a District Court Magistrate dated 12th June 2014 to grant a warrant of arrest against him.

4. On 2nd December 2015, the National Court ordered that the fifth respondent be joined as the third plaintiff in the judicial review proceeding consequent upon his appointment as Commissioner of Police in place of the fourth respondent who had ceased to hold office and to take an active interest in the proceeding.

5. On 7th December 2015, upon application by the third respondents pursuant to Order 5 Rule 8(1) National Court Rules the National Court ordered that the third respondents be joined as third defendants in the judicial review proceeding (joinder decision). The third respondents’ application for joinder had been opposed by the appellant and the second and fifth respondents on jurisdictional and other grounds.

6. On 23rd February 2016, leave to appeal the joinder decision was granted.

This appeal

7. In essence the grounds of appeal are that the National Court erred in:

a) accepting the notice of motion for joinder as the applicants had failed to properly engage or invoke the jurisdiction of the Court;

b) ordering the joinder of the third defendants in circumstances where the Royal Papua New Guinea Constabulary was already represented in the proceedings by the Police Commissioner;

c) allowing the joinder of the third defendants on the basis of res judicata.

8. The third respondents contend that the appeal should be dismissed as:

a) an application for joinder in a judicial review proceeding commenced by Order 16 National Court Rules is able to be made by reliance upon Order 5 Rule 8 National Court Rules;

b) the issues concerning the joinder of the third respondents as between the same parties were determined by the Supreme Court in James Marape v. Peter O’Neill (2015) SC1458 and so the appellant is estopped from contending that the third respondents should not be joined in the judicial review proceeding by virtue of the doctrine of issue estoppel;

c) the primary judge did not fall into error in exercising his discretion to grant the joinder application.

Review of exercise of discretion by primary judge

9. This Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. We reproduce the following passage from that decision:

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

10. This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977, Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016, Isaac Lupari v. Sir Michael Somare (2010) SC1071 and PNG Power Ltd v. Ralph Gura (2014) SC1402.

Whether the jurisdiction of National Court engaged

11. The appellant supported by the first, second and fifth respondents contends that as the National Court proceeding is a judicial review proceeding, it is governed by the Rules in Order 16 National Court Rules and any interlocutory application in such proceedings must be brought within the Rules in Order 16. As the third respondents applied for their joinder pursuant to Order 5 Rule 8(1) National Court Rules, they had not engaged the jurisdiction of the National Court. The primary judge fell into error in hearing and granting the application in such circumstances it is contended. Reliance is placed upon the cases of Timbani Longai v. Steven Maken (2008) N4021 and Alex Timothy v. Francis Marus (2014) SC1403.

12. The third respondents contend that an application for joinder in a judicial review proceeding is able to be made pursuant to Order 5 Rule 8 National Court Rules as Order 16 Rule 8 and 13(13)(1) provide that, “any interlocutory application” may be made in proceedings on an application for judicial review. Reliance is placed upon the Supreme Court case of Mek Kuk v. Peter O’Neill (2014) SC1331. Further, the third respondents contend that there are no relevant provisions in Order 16 to which they could have...