OS NO. 34 OF 2010; Hon. Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising The Ombudsman Commission and Jim Wala Tamate, The Public Prosecutor and Hon Deputy Chief Justice Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2010) N4149

• Jurisdiction: Papua New Guinea
• Judge: Kariko J
• Judgment Date: 12 February 2010
• Court: National Court
• Citation: (2010) N4149
• Docket Number: OS NO. 34 OF 2010
• Year: 2010
• Judgement Number: N4149

Full Title: OS NO. 34 OF 2010; Hon. Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising The Ombudsman Commission and Jim Wala Tamate, The Public Prosecutor and Hon Deputy Chief Justice Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2010) N4149

National Court: Kariko J

Judgment Delivered: 12 February 2010

N4149

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 34 OF 2010

BETWEEN:

HON. PATRICK PRUAITCH MP

Plaintiff

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, COMPRISING THE OMBUDSMAN COMMISSION

First Defendants

AND:

JIM WALA TAMATE, THE PUBLIC PROSECUTOR

Second Defendant

AND:

HON DEPUTY CHIEF JUSTICE SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, COMPRISING THE LEADERSHIP TRIBUNAL

Third Defendants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Kariko J

2010: 10, 12 February

LEADERSHIP TRIBUNAL - Practice and procedure - two motions before court - Plaintiff seeks interim injunctive and stay orders to prohibit Referral - First Defendant seeks to have these proceedings dismissed – plaintiff should have brought application by way of judicial review pursuant to Order 16 as mode of proceeding- Plaintiff having failed in his bid for a judicial review under O16, has now tried to make the same claim but by using a different mode of proceedings – plaintiff estopped from further applications based on same ground by virtue of the doctrine of res judicata – proceedings dismissed as an abuse of process – order 16 National Court Rules, s 20 Organic Law on Duties and Responsibilities of Leadership, ss20 & 29, Schedule 1.12 Constitution

Cases Cited

Honorable Patrick Pruaitch MP v Chronox Manek and ors (Unreported Judgement dated 8 September 2009) (“OS 456/09”),

Sausau v Kumgal and PNG Harbours Board (2006) N3253

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

Zachery Gelu v Sir Michael Somare MP (2008) N3524,

Counsel:

G Sheppard & F Griffin, for the Plaintiff

V Narokobi, for the First Defendant

N Miviri, for the Second Defendant

No appearances for the Third and Fourth Defendants

RULING

1. KARIKO J: On or about 22 July 2009, the Ombudsman Commission (“the Commission”) referred to the Public Prosecutor 8 allegations of misconduct in office (“Allegations”) against the Plaintiff, who is the Member of Parliament for Aitape-Lumi. The Referral was made pursuant to the Organic Law on the Duties and Responsibilities of Leadership (“the OLDRL”). The Public Prosecutor in turn referred the Allegations to the Office of the Honourable Chief Justice and requested for the establishment of a Leadership Tribunal to enquire into the Allegations. Consequently, His Honour the Chief Justice earlier this month nominated a Leadership Tribunal, being the Third Defendants.

2. The Plaintiff has instituted proceedings to challenge the validity of the investigation of the Allegations and their referral by the Commission (“the Referral”). The challenge is mounted pursuant to Section 23 of the Constitution.

Facts

3. From the affidavit material before the court, and as outlined by Mr Sheppard of counsel for the Plaintiff, the undisputed factual background to these proceedings are as follows.

4. On or about 29 September 2006, the Ombudsman Commission (comprising Commissioners Ila Geno, Peter Masi and John Nero) wrote to the Plaintiff and informed him, pursuant to section 20(3) of the OLDRL, of his right to be heard on 11 allegations of misconduct against him.

5. In or about October 2006, the Plaintiff personally attended before the Commission (comprising the same members) and presented his oral submissions to each and all the said 11 allegations.

6. On or about 30 November 2006, in the further exercise of the Plaintiff’s right to be heard, the Plaintiff responded in detail and writing to each of the same 11 allegations.

7. On 31 June 2009, Mr. Ila Geno’s term as Chief Ombudsman expired and was not renewed.

8. By and before 21 July 2009, Mr. Peter Masi’s term as an Ombudsman expired and was not renewed.

9. In 2009, Mr. Chronox Manek was appointed as the Chief Ombudsman.

10. Since July 2009, the Ombudsman Commission has comprised of Mr. Chronox Manek, Mr. John Nero and Ms. Phoebe Sangetari.

11. On or about 22 July 2009, the current Ombudsman Commission wrote to the Plaintiff and advising the Plaintiff that it considered his response to the said 11 allegations and intended to refer 8 of those allegations against him to the Office of the Public Prosecutor pursuant to section 20(2), 20(4) of the OLDRL and section 29(1) of the Constitution.

12. On 20 August 2009, the Plaintiff filed judicial review proceedings in this court (OS No. 456 of 2009) challenging the Referral arguing, amongst other things, that he had been denied the right to be heard in respect of the allegations contained in the Referral.

13. On 8 September 2009, Hartshorn J refused the Plaintiff’s application for leave for the judicial review.

14. On 4 February 2010, the daily newspapers published that the Public Prosecutor had requested the Honourable Chief Justice to appoint a leadership tribunal to hear the allegations against the Plaintiff.

15. The Honourable Chief Justice has appointed the tribunal, the Third Defendant.

16. Following the announcement of the establishment of the tribunal, the Plaintiff filed these proceedings.

17. The Commission however disputes the suggestion by the Plaintiff that after exercising his right to be heard in 2006, there were further investigations, new allegations raised which are included in the Referral and to which he was not given the right to be heard.

Motions

18. There are two motions before me which were heard together. Briefly, the Plaintiff seeks interim injunctive and stay orders to prohibit the Referral being acted upon any further, while the First Defendants, the Commission, seeks to have these proceedings dismissed.

19. I will address the application by the Commission first because I consider that if I accept the Commission’s application, it would be then unnecessary for me to deliberate on the motion by the Plaintiff.

Application by the Commission

20. The Commission has contended that:

(a) The plaintiff has already sought judicial review of the same matter, that is the Referral, in which Hartshorn J refused leave on 8 September 2009 (OS No. 456 of 2009), and the plaintiff now seeks a judicial review again of the Referral based on the same facts and circumstances, arguing the same issues but using a different mode of proceedings.

(b) The proper mode of proceedings should be pursuant to Order 16 of the National Court Rules (“NCR”).

(c) Hartshorn J has already deliberated on the matter (and in particular the issue of the right to be heard) so by virtue of the doctrine of res judicata, the plaintiff is estopped from bringing these proceedings.

(d) These proceedings are in the circumstances an abuse of process.

Mode of proceedings

21. The Originating Summons filed by the Plaintiff seeks, inter alia:

1. A declaration pursuant to sections 23(2), 155(4) and 217(6) of the Constitution that the referral of the matter of an investigation of the Plaintiff for misconduct in office by the First Defendants to the Second Defendant (“the Referral”) under section 20(4) of the Organic Law on the Duties and Responsibilities of Leadership (“the Constitutional Law”) is unconstitutional, in excess of the jurisdiction of the First Defendant and therefore illegal, in valid and of no force or effect, because the First Defendants did not afford the Plaintiff a right to be heard before making the Referral, in breach of their duty to do so under section 20(3) of the Constitutional Law.

2. A declaration pursuant to section 23(2), 155(4) and 217(6) of the Constitution that the Referral under section 20(4) of the Organic Law on the Duties and Responsibilities of Leadership (“the Constitutional Law”) is unconstitutional, in excess of the jurisdiction of the First Defendant and therefore illegal, invalid and of no force or effect, because the First Defendants did not afford the Plaintiff a further right to be heard after conducting further investigations after October 2006 and before making the Referral, in breach of their duty to do so under section 20(3) of the Constitutional Law.

22. As I understand it, the alleged breaches of duty under section 23 of the Constitution are that:

(1) The Plaintiff was not given the opportunity by the Commission to be heard on new allegations of misconduct after 2006 pursuant to section 20(3) of the OLDRL; and

(2) The decision by the Commission concerning the Referral was in breach of Sch. 1.12 of the Constitution.

23. It is clear to me that these proceedings are in effect a judicial review. Fundamentally, the Plaintiff is arguing that the Commission did not afford him the right to be heard on the allegations, the subject of the Referral. The Plaintiff’s contention is that it was the duty of the Commission under section 20(3) of the OLDRL to provide that right to the Plaintiff but the Commission failed to do so.

24. What is the proper mode of proceedings for judicial review where a breach of the constitution is pleaded? Mr Narokobi argued that O16 governs the procedure...