In the matter of an application for leave Judicial Rview under Order 16 of the National Court Rules; Zachery Gelu and Paul Paraka v Maurice Sheehan, Justice Cathy Davani and Don Manoa as former Chief Commissioner and Commissioners Respectively Comprising the Commission of Inquiry into the Management Generally of Public Monies by the Department of Finance and Sir Michael Somare, MP; Prime Minister & Appointing Authority of the Commission of Inquiry into the Department of Finance and as Chairman of the National Executive Council and Manly Ua, Seretary to the National Executive Council and Manasupe Zureouc, Acting Chief Secretary to Government and The Independent State of Papua New Guinea (2013) N5498

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 01 December 2013
• Docket Number: OS (JR) 89 OF 2010
• Citation: (2013) N5498
• Court: National Court
• Year: 2013
• Judgement Number: N5498

Full Title: OS (JR) 89 OF 2010; In the matter of an application for leave Judicial Rview under Order 16 of the National Court Rules; Zachery Gelu and Paul Paraka v Maurice Sheehan, Justice Cathy Davani and Don Manoa as former Chief Commissioner and Commissioners Respectively Comprising the Commission of Inquiry into the Management Generally of Public Monies by the Department of Finance and Sir Michael Somare, MP; Prime Minister & Appointing Authority of the Commission of Inquiry into the Department of Finance and as Chairman of the National Executive Council and Manly Ua, Seretary to the National Executive Council and Manasupe Zureouc, Acting Chief Secretary to Government and The Independent State of Papua New Guinea (2013) N5498

National Court: Injia, DCJ

Judgment Delivered: 1 December 2013

N5498

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 89 OF 2010

Between:

IN THE MATTER OF AN APPLICATION FOR LEAVE JUDICIAL RVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

ZACHERY GELU

First Applicant

AND:

PAUL PARAKA

Second Applicant

AND:

MAURICE SHEEHAN, JUSTICE CATHY DAVANI AND DON MANOA AS FORMER CHIEF COMMISSIONER AND COMMISSIONERS RESPECTIVELY COMPRISING THE COMMISSION OF INQUIRY INTO THE MANAGEMENT GENERALLY OF PUBLIC MONIES BY THE DEPARTMENT OF FINANCE

First respondent

AND: SIR MICHAEL SOMARE, MP; PRIME MINISTER & APPOINTING AUTHORITY OF THE COMMISSION OF INQUIRY INTO THE DEPARTMENT OF FINANCE AND AS CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL

Second Respondent

AND:

MANLY UA, SERETARY TO THE NATIONAL EXECUTIVE COUNCIL

Third Respondent

AND:

MANASUPE ZUREOUC, ACTING CHIEF SECRETARY TO GOVERNMENT

Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Injia, DCJ

2013: 22, 23 November & 1 December

ADMINISTRATIVE LAW – Leave for Judicial review - Appointment of members of Commission of Inquiry Into Department of Finance – Whether Leave should be Granted – Exercise of Discretion – Commission of Inquiry Act (Ch 31), ss 2, 15 and 17; National Court Rules O 16 r 3(1)

Cases cited:

Papua New Guinea Cases

Wilson Kamit v Marshall Cooke (2003) N2369.

Sasau v PNG Harbours Board (2006) N3253

Ombudsman Commission v Peter Yama (2004) SC 747

Phillips v Nova Scotia (Westray Inquiry) [1995] SCR 97

Overseas Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) ALR 577

Furnell v Whangerei High Schools Board [1973] AC 660

Mc Guiness v Attorney General (Vic) (194) 63 CLR 73 at 90

Medical Board of Queensland v Byrne (1958) 100 CLR 582

R v Collins; Ex parte CTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473

R v Fowler; Ex parte MacAurthur [1958] Qd R 41

Stow v Mineral Holdings (Australia) Ltd [1973] Tas SR 25

Testro Bros Pty Ltd v Tait (1963) 109 CLR 353

Counsel:

H Nii, for the Applicants

P Kuman, for the Respondents

1 December, 2013

1. INJIA, CJ: This is an application seeking leave to apply for judicial review of various decisions of certain statutory authorities made under the Commission of Inquiry Act (Ch 31) (the Act). It is made under the provisions of National Court Rules, O 16 r 3 (NCR). If leave were granted, the applicant will apply for various relief of which the main one is an order in the nature of certiorari. The respondents contest the application.

2. Parties filed affidavits based on which counsel made submissions for my consideration. Also before me for my consideration are the matters set out in the Statement filed in support of the application for leave pursuant to NCR, O 3 r (3) (the Statement). My consideration of those matters are embodied in my ruling.

3. The background facts which are not disputed, in brief are as follows. On 3rd May 2008, by instrument published in the National Gazzette, the Prime Minister appointed retired Justice Maurice Sheehan as Chief Commissioner of the Commission of Inquiry into the Department of Finance (CoI). On 12 May 2008 by publication of another instrument in the National Gazette, Justice Catherine Davani and Don Manoa were appointed as Commissioners. A term of 9 months was fixed in the instrument for the CoI to be completed. The inquiry was conducted and the CoI was unable to complete its inquiry within that term. The term was “extended” twice. On 29 October 2009, the CoI produced the final report and presented it to the Prime Minister. On 3 March 2010, the Prime Minister tabled the Report in Parliament. After the Prime Minister’s speech, a motion was put by the Hon Paul Tiensten MP “That the report and its recommendations be adopted”. The motion was agreed to by Parliament.

4. The decisions the subject of the application for leave are threefold as follows:

(1) The Prime Minister’s decision to appoint the tribunal by issuing more than one (1) instrument of appointment, inclusive of statement of the case, appointment of the Commissioners and their term of appointment, not fixing a quorum for the inquiry: Act,s.2 (First decision)

(2) The Prime Minister’s decision to fix a period for the inquiry and extending the term of the inquiry after the expiration of the period. (Second decision)

(3) The CoI’s decision to produce a Report for the Prime Minister as the CoI’s appointing authority: Act, s 15. (Third decision)

5. The Prime Minister’s decision to table the report in Parliament is not challenged: Act, s 17. Also unchallenged is Parliament’s “decision” to adopt the Report and its recommendations.

6. For purpose of completeness, I reproduce ss 2, 15 and 7 of the Act hereunder:

“2. Commissions of Inquiry.

(1) The Minister may, whenever he deems it advisable, by instrument appoint a Commission of Inquiry consisting of a Commissioner or Commissioners, authorizing him or them, or any of them, to inquire into any matter in which an inquiry would, in the opinion of the Minister, be for the public welfare.

(2) The instrument shall—

(a) specify the subject of inquiry; and

(b) be accompanied by a statement of the case on which the inquiry was ordered.

(3) The instrument may—

(a) direct where and when the inquiry shall be made and the report made; and

(b) if there are two or more Commissioners—

(i) appoint one of them to be the Chairman; and

(ii) fix a quorum for meetings of the Commission.

(4) Subject to Subsection (5), the inquiry shall be held in public but the Commission may exclude any particular person or persons for the preservation of order, the due conduct of the inquiry or for any other reason.

(5) The Commission may, with the approval of the Minister, order that all or any evidence given before it be given in private.”

“15. Report by Commission.

(1) The Commission shall make a report of its proceedings and of the results of its inquiry to the Minister, and shall record the reasons for its conclusions.

(2) A Commissioner dissenting from the conclusions, or any of them, shall give the reasons for his dissent.”

“17. Tabling Commissioners' report in Parliament.

(1) Subject to Subsection (2), the Minister shall, not later than the first day of the second meeting of the Parliament after he receives the Commissions' report under Section 15, lay the report before the Parliament.

(2) The Minister may decline to lay a report of a Commission before the Parliament if he lays before the Parliament a certificate to the effect that he considers that the tabling of the report would be contrary to the public interest.”

7. The criteria for grant of leave are settled. There are our criteria all of which must be satisfied by the applicant. Those are the following:

(1) The applicant must have sufficient interest or standing to bring the application;

(2) The application must be brought within four months of the decision if he were to seek an order in the nature of certiorari;

(3) The applicant must have exhausted other statutory or administrative remedies that may be available to him to address his grievance; and

(4) The applicant must demonstrate an arguable case for review.

8. The respondents’ counsel conceded that the applicants have standing to bring the application and that grounds for review set out in the Statement raise arguable issues. The respondents contest the application criteria (2). The respondents also contest the application on what I term “discretionary grounds” based on various matters that fall outside of the strict definitions of the four criteria referred to. Those discretionary matters include matters pertaining to the appropriateness of the decision the proper subject of judicial review, alternative causes of action open under law to challenge those decisions and matters pertaining to abuse of court process.

9. I will first deal with the points argued under criteria (2). It is clear that the application was filed out of time with respect to all four decisions. For instance, the application was filed 1- 6 days after the latest decision (third decision) was made. Taking the date of the latest decision (third decision), the delay is by 1- 6 days. I do not consider this period of delay to be a long period.

10. Counsel for the respondent argued that the delay in prosecuting the application before the Court should also be counted for purposes of computing the...