Peter O’Neill v Pondros Kaluwin

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 January 2015
• Citation: (2015) N5839
• Court: National Court
• Year: 2015
• Judgement Number: N5839

Full : OS NO 810 of 2014; Peter O’Neill v Pondros Kaluwin, in his capacity as Public Prosecutor of Papua New Guinea (2015) N5839

National Court: Cannings J

Judgment Delivered: 6 January 2015

N5839

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 810 0F 2014

PETER O’NEILL

Plaintiff

V

PONDROS KALUWIN, IN HIS CAPACITY AS

PUBLIC PROSECUTOR OF PAPUA NEW GUINEA

Defendant

Waigani: Cannings J

2015: 5, 6 January

PRACTICE AND PROCEDURE – motion to add a party – National Court Rules, Order 5, Rule 8 (addition of parties) – whether joinder of members of a tribunal as second defendant is necessary.

PRACTICE AND PROCEDURE – motion to amend originating summons – National Court Rules, Order 8, Rule 50 (general) – whether amendment necessary for the purpose of determining the real questions raised or otherwise depending on the proceedings.

On 14 November 2014 the Public Prosecutor notified the plaintiff that he had requested the Chief Justice to appoint a leadership tribunal to inquire into allegations of misconduct in office against him. On 20 November 2014 the plaintiff commenced proceedings by originating summons against the Public Prosecutor, as sole defendant, seeking a declaration that he was not entitled to refer the matter of alleged misconduct in office to a leadership tribunal and a permanent injunction restraining him from referring the matter to such a tribunal. The plaintiff also on 20 November 2014 filed a notice of motion seeking an interim injunction to restrain the Public Prosecutor from referring the matter to the tribunal and an order referring a question of constitutional interpretation and application arising from the proposed referral, to the Supreme Court under Section 18(2) of the Constitution. On 27 November 2014 the Chief Justice appointed a tribunal consisting of three persons. On 9 December 2014 the plaintiff filed a notice of motion seeking two principal orders: (1) under Order 5, Rule 8 of the National Court Rules, that the leadership tribunal comprising its three members be added to the proceedings as second defendant; and (2) under Order 8, Rule 50 of the National Court Rules, that the originating summons be amended in accordance with a draft amended originating summons annexed to the notice of motion. This was the hearing of the notice of motion filed 9 December 2014.

Held:

(1) A person may be added as a party under Order 5, Rule 8(1)(b) of the National Court Rules where his “joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on”.

(2) Joinder of the tribunal comprising its members was necessary to ensure the effectual and complete determination of the matters in dispute as (a) the originating summons was a vehicle for challenging not only exercise of power by the Public Prosecutor but also the jurisdiction of the tribunal; (b) it would reduce the prospect of a multiplicity of proceedings if the tribunal were joined to the proceedings, in that in the event that a declaration or injunction were made restraining it from inquiring into alleged misconduct in office of the plaintiff, it would be directly made aware of and be bound to give effect to the decision of the Court.

(3) It was therefore a matter of discretion whether to order that the tribunal comprising its members be joined as a defendant. The Court made the order sought as: (a) the application was made in good faith, for good reason and without delay, (b) neither the tribunal comprising its members nor the Public Prosecutor or any other person was likely to be prejudiced by the joinder and (c) the joinder was not likely to unreasonably delay or frustrate the constitutional process of which the proposed referral by the Public Prosecutor of the plaintiff to the tribunal was a part.

(4) The Court can grant leave to a plaintiff to amend an originating summons under Order 8, Rule 50(1) of the National Court Rules “for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings”.

(5) Amendment of the originating summons in the terms proposed would facilitate a more expeditious determination of the real questions raised by the proceedings (the constitutionality of the Public Prosecutor’s decisions relating to referral of alleged misconduct in office to the tribunal and the jurisdiction of the tribunal to inquire into that matter) and avoid the prospect of a multiplicity of proceedings.

(6) Thus the orders sought for joinder and for amendment of the originating summons were granted. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118

Kewa v Kombo (2004) N2688

Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158

Pius Nui v Senior Sergeant Mas Tanda (2004) N2765

Raroki Investment Ltd v Councillor Dos Roltinga (2013) N5296

Tarsie v Ramu Nico (MCC) Ltd (2010) N4141

The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273

NOTICE OF MOTION

This was an application for joinder of persons as a defendant and for amendment of an originating summons.

Counsel

M M Varitimos QC & P Tabuchi, for the Plaintiff

G B Kubak, for the Defendant

6th January, 2015

1. CANNINGS J: This is a ruling on a motion by the plaintiff, Peter O’Neill, seeking orders for the addition of a party as a defendant to an originating summons and for amendment of the originating summons.

2. The plaintiff is the Prime Minister of Papua New Guinea. The defendant, Pondros Kaluwin, is the Public Prosecutor. On 14 November 2014 the Public Prosecutor notified the plaintiff that he had requested the Chief Justice, Sir Salamo Injia Kt GCL, to appoint a leadership tribunal to inquire into allegations of misconduct in office against the plaintiff.

3. On 20 November 2014 the plaintiff commenced proceedings by originating summons against the Public Prosecutor, as sole defendant, seeking a declaration that he was not entitled to refer the matter of alleged misconduct in office to a leadership tribunal and a permanent injunction restraining him from referring the matter to such a tribunal. The plaintiff also on 20 November 2014 filed a notice of motion seeking an interim injunction to restrain the Public Prosecutor from referring the matter to a tribunal and an order referring a question of constitutional interpretation and application arising from the proposed referral of the matter to the tribunal to the Supreme Court under Section 18(2) of the Constitution. That motion has not yet been heard.

4. On 27 November 2014 the Chief Justice appointed a tribunal consisting of three members, the Right Honourable Sir Peter Blanchard KNZM PC (as Chairman), the Honourable John Von Doussa AO QC and the Honourable Salatiel Lenalia, and notified the plaintiff of the appointment and fixed the commencement date of the tribunal’s inquiry as 26 January 2015.

5. On 9 December 2014 the plaintiff filed the notice of the motion that is now before the Court for determination. The plaintiff seeks:

(1) an order that the leadership tribunal comprising its three members be added to the originating summons proceedings as second defendant; and

(2) an order that the originating summons be amended in accordance with a draft amended originating summons annexed to the notice of motion.

The motion is opposed by the Public Prosecutor.

(1) SHOULD THE TRIBUNAL BE ADDED AS A DEFENDANT?

6. The plaintiff applies for an order adding the tribunal as a defendant under Order 5, Rule 8 of the National Court Rules, which states:

Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

7. As I pointed out in Tarsie v Ramu Nico (MCC) Ltd (2010) N4141, Rule 8(1) operates in this way. To order that a person be added as a party the court must first be satisfied that the person:

(a) “ought to have been joined as a party”; or

(b) “is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on”.

8. If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the person the subject of the application be added as a party. If neither (a) nor (b) is satisfied, the court has no power under Order 8(1) to order the proposed party’s joinder. The plaintiff relies on Rule 8(1)(b). The question is whether the joinder of the tribunal comprising its members is necessary to ensure that all matters in dispute in the proceedings may be...