Pacific Equities and Investment Limited v Don Sawong in his capacity as the Commissioner of the Commission of Inquiry into matters relating to the Pacific Balanced Fund and: The Independent State of Papua New Guinea (2006) N3258

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 18 October 2006
• Court: National Court
• Citation: (2006) N3258
• Docket Number: OS NO. 720 OF 2006 (JR)
• Year: 2006
• Judgement Number: N3258

Full Title: OS NO. 720 OF 2006 (JR); Pacific Equities and Investment Limited v Don Sawong in his capacity as the Commissioner of the Commission of Inquiry into matters relating to the Pacific Balanced Fund and: The Independent State of Papua New Guinea (2006) N3258

National Court: Injia, DCJ

Judgment Delivered: 18 October 2006

N3258

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 720 OF 2006 (JR)

BETWEEN:

PACIFIC EQUITIES AND INVESTMENT LIMITED

Plaintiff

AND:

DON SAWONG in his capacity as the COMMISSIONER

of the Commission of Inquiry into matters relating

to the Pacific Balanced Fund

First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Injia, DCJ.

2006: 18 October

JUDICIAL REVIEW – Leave application – Decision of Commission of Inquiry to proceed with inquiry – Ground of review - Subject matters of enquiry also subject to various Court proceedings – Specific judicial proceedings and common issues not identified – Sub-judice Court must relate to issues in specific cases before the Court which are also the subject of inquiry by Commission of Inquiry – Application refused.

PNG Cases cited:

Kekedo v Burns Philp [1988 – 89] PNGLR 122

PNG Harbours Ltd v Pex Avosa (2006) N 3065

Overseas cases cited:

Clough v Leady (1904) 2 CLR 139

Emial Campbell in Contempt of Royal Commissions

Hammond v The Commonwealth of Australia & Ors [1982] 56 ALJR 767

Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70

Re Winnetc, Ex Parte Australian Building Construction Employees and Builders Federation (1982) 56 ALJR 506

Counsel:

Mr Stevens, for the Plaintiff

Mr Cherake with Ms Kias, for 1st Respondent

Mr Brooks, for Nasfund and IPBC

Mr Murray, for Melanesian Trustees Investment Ltd and

Melanesian Metal Corporation Ltd

Mr Tongawu, for Securities Commission

18 October, 2006

1. INJIA, DCJ: The plaintiff is the fund manager of a number of Unit holders of Pacific Balanced Fund (PBF), one of the main Unit holder being Nasfund. It applies under O.16 r.3(2) of the National Court Rules, for leave to apply for judicial review of the Prime Minister’s decision to appoint the First Respondent to inquire into a terms of reference regarding the administration of PBF. The proposed grounds of review are set out in the amended Statement filed under O.16 r.3. The application is normally heard ex parte but I granted leave to the Securities Commission, Nasfund, the Independent Public Business Corporation (IPBC) and Melanesian Trustees Services Ltd (MTSL) to be heard on the application.

2. Of the four requirements for grant of leave, it is not contested that the plaintiff has locus standi to bring the application and there is no delay in making the application. The issues for determination are whether the applicant has an arguable case and whether other statutory or administrative avenues for appeal or review have been exhausted.

3. The background of this application is that on 10 August 2006, the First Respondent was appointed by the Prime Minister under s. 2 of the Commission of Inquiry Act (Ch. 3). The terms of reference together with the instrument of appointment was published in the National Gazette. The Commission commenced its sittings on 4 September 2006 and continued to sit on 3 October 2006. The plaintiff appeared on a Summons to Produce Documents and Give Evidence in relation to terms of reference No. 5 and 7. On 3 October 2006, the plaintiff objected to the Commission assuming jurisdiction over item No. 5 and 7. Its principal argument was that terms of reference No. 5 & 7 concerned some four (4) Court proceedings commenced in the National Court by the plaintiff, which were pending determination. Those terms of reference interfered with those proceedings and therefore the Commission lacked jurisdiction. The Commission dismissed the objection. Consequently, the plaintiff filed these proceedings.

4. During argument, I closely scrutinized the Statement filed under O.16 r.3 to ensure that the relief sought and the grounds pleaded therein were appropriate for judicial review, and made certain observations as to their propriety. After hearing full arguments from counsel for the parties and in particular the plaintiff, I am not persuaded that the relief sought in par. 3.2, 3.3, 3.4 and 3.5 of the Statement are available in judicial review. They seek declaratory orders on the basis of breaches of the Constitution, s.155 (and s.158). Judicial review is not available to grant declaratory orders as a primary relief. The primary relief available under O.16 r.1 are in the “nature of mandamus, prohibition, certiorari, or quo warranto.” Consequential orders in the nature of declaratory orders are available under O.16 r.(2) but they themselves are not available as primary relief.

5. Similarly, to the extent that the eight (8) grounds of review (Grounds 5.1 – 5.8) raise grounds of the unlawfulness or unconstitutionality of the decision of the Prime Minister and the Commission, these grounds are not available in judicial review.

6. The only proper relief sought is found in Clause 3.6 which seeks “orders in the nature of prohibition against the First Respondent from continuing with any further inquiry into the matters raised in paragraph 5 and 7 of the Terms of Reference.” The ground in support of this relief is not pleaded at all or clearly and specifically pleaded but the Respondent submits it may be discerned from a combination of grounds 5.1 – 5.8. The plaintiff’s case is that the Commission’s performance of its functions under the Act should be supervised and controlled by the Courts in the exercise of its inherent power under s.155 of the Constitution because if it is not done, the Commission will interfere with the judicial proceedings. The plaintiff is also fearful that if the Commission is allowed to continue with its inquiry, it will allow publication of other reports and publish its own report which will be adverse to the plaintiff. The plaintiff’s case is not that the Commission lacks jurisdiction. It has jurisdiction over the matters referred to in Clause 5 and 7 of the terms of reference but that the same subject matter of the inquiry is before the Courts.

7. The respondents’ case is that the Commission has jurisdiction to inquire into the terms of reference including Clauses 5 and 7 and it should be allowed to perform its statutory function and if the plaintiff is aggrieved by its proceedings and report, then it should seek review of the report and recommendations that adversely affect it.

8. At common law, the appropriate relief available in judicial review where a tribunal or statutory authority lacks jurisdiction, conferred by law, to inquire into or entertain a matter in which it lacks jurisdiction, is prohibition. The principle is also well settled in this jurisdiction: see PNG Harbours Ltd v Pex Avosa (2006) N 3065 .

9. Any other relief such as certiorari or mandamus is available where the public authority fails to discharge a duty imposed by law in the course of its inquiry; or makes a decision, or findings and recommendations in the form of a report which is made in breach of prescribed procedure; abuses its power; reaches an unreasonable decision or exceeds its...