SCA NO 105 of 2014; Hon. Ano Pala, Minister for Justice & Attorney-General of PNG and The Independent State of Papua New Guinea v Sam Koim, Chairman of Investigation Task Force Team Sweep and Hon. Peter O’Neill, Prime Minister & Chairman of the National Executive Council and the National Executive Council (2015) and SCA NO 106 of 2014; Hon. Peter O’Neill, Prime Minister & Chairman of the National Executive Council and the National Executive Council v Sam Koim, Chairman of Investigation Task Force Team Sweep and The Independent State of Papua New Guinea (2015) SC1436

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 14 May 2015
• Court: Supreme Court
• Citation: (2015) SC1436
• Year: 2015
• Judgement Number: SC1436

Full Title: SCA NO 105 of 2014; Hon. Ano Pala, Minister for Justice & Attorney-General of PNG and The Independent State of Papua New Guinea v Sam Koim, Chairman of Investigation Task Force Team Sweep and Hon. Peter O’Neill, Prime Minister & Chairman of the National Executive Council and the National Executive Council (2015) and SCA NO 106 of 2014; Hon. Peter O’Neill, Prime Minister & Chairman of the National Executive Council and the National Executive Council v Sam Koim, Chairman of Investigation Task Force Team Sweep and The Independent State of Papua New Guinea (2015) SC1436

Supreme Court: Makail, J

Judgment Delivered: 14 May 2015

SC1436

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 105 OF 2014

BETWEEN

HON. ANO PALA, MINISTER FOR JUSTICE & ATTORNEY-GENERAL OF PNG

First Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Appellant

AND

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP

First Respondent

AND

HON. PETER O’NEILL, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL

Second Respondent

AND

THE NATIONAL EXECUTIVE COUNCIL

Third Respondent

AND

SCA NO 106 OF 2014

BETWEEN

HON. PETER O’NEILL, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL

First Appellant

AND

THE NATIONAL EXECUTIVE COUNCIL

Second Appellant

AND

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2014: 15 October & 2015: 14 May

PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal against grant of leave to apply for judicial review and grant of stay of decision – Executive decision – Decision to disband task force sweep team – Grant of leave discretionary – Principles of leave considered and applied – Arguable case – Whether arguable case established – Recourse in Court below – Whether issues raised in the proposed appeal determinative of primary rights of parties – Supreme Court Act – Section 14(3)(b).

Cases cited:

Wawoi Guavi Timber Company Ltd v. Ken Mondia (2007) SC1028

Matiabe Oberia v. Chief Inspector Michael Charlie & The State (2005) SC801

Paul Tiensten v. Sam Koim (2011) N4420

Alois Kingsley Golu v. National Executive Council (2011) N4425

Momis v. Attorney General (2000) N1951

National Capital District Commission v. Yama Security Services Pty Ltd (2003) SC707

Duma v. Meier (2007) SC898

Yer, Secretary, Department of Finance v. Yama (2009) SC996

Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (2012) N4902

PAC LNG International Limited & Ors v. SPI (208) Limited & Ors: OS No 172 of 2014 (Unnumbered & Unreported judgment of 22 April, 2014)

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:

Mr M. Varitimos, QC for Appellants (SCA No 105 of 2014)

Mr G. Egan with Mr M. Nale, for First Respondent (SCA No 105 of 2014)

Ms. T. Twivey, for Second and Third Respondents (SCA No 105 of 2014)

Ms T. Twivey, for Appellant (SCA No 106 of 2014)

Mr G. Egan with Mr M. Nale, for First Respondent (SCA No 106 of 2014)

Mr M. Varitimos, QC for Second Respondent (SCA No 106 of 2014)

RULING ON APPLICATION FOR LEAVE TO APPEAL

14 May, 2015

1. MAKAIL, J: There are two separate applications for leave to appeal for determination. One in SCA No 105 of 2014 and the other in SCA No 106 of 2014. Leave is being sought to appeal against two separate decisions of the National Court in proceedings OS (JR) 444 of 2014. The decisions are:

(a) the decision of the National Court (Gavara-Nanu J) given on 08 July, 2014 at Waigani in which his Honour granted leave to the first respondent to apply for judicial review of two National Executive Council (“NEC”) Decisions Nos 191 of 2014 and 196 of 2014; and

(b) the decision of the National Court (Gavara-Nanu J) given 28 July, 2014 at Waigani in which his Honour granted a stay of the NEC Decisions pending the determination of the judicial review proceedings.

2. The NEC Decision No. 191 of 2014 dated 18 June, 2014 abolished the Taskforce Sweep Team (“TFS”) and the NEC Decision No. 196 of 2014 dated 24 June, 2014 established an interim office for anti-corruption to replace TFS.

3. The two applications for leave to appeal were consolidated by way of an order made on 03 September, 2014. An appeal lies with leave insofar as the appeal is from interlocutory decisions and orders of the National Court under section 14(3)(b) of the Supreme Court Act (Ch No. 37). The two decisions of the National Court are interlocutory because they do not finally determine the rights between the parties. Thus, leave is required.

4. The appellants rely upon the following documents:

a) Application for leave to appeal filed on 18 August, 2014 in SCA No 105 of 2014;

b) Application for leave to appeal filed on 18 August, 2014 in SCA No 106 of 2014;

c) Affidavit of Nicholas Tame filed on 18 August, 2014; and

d) Affidavit of Steven Manoa filed on 11 September, 2014.

5. The affidavits contained various documents used in the National Court proceedings. One pertinent document is the transcript of the proceedings which may be found in the affidavit of Mr. Manoa.

Background Facts

6. The first respondent applied for leave to have the National Court review the two NEC Decisions. These decisions were a culmination of a number of NEC Decisions dating back to 2011. In a Policy Submission, the NEC set up a Task Force Sweep (“TFS”) pursuant to NEC Decision No 03 of 2011. It was an investigative team made up of existing public servants from various departments and police officers. It was and is not a creature of statute. No-one was engaged to this group that was not already an employee of the State. The group were given Terms of Reference.

7. Further NEC Decisions were made concerning operational guidelines for TFS in NEC Decision No 14 of September, 2011, writing a policy framework for a permanent office in NEC Decision No 11 of 2012, and approval of more members for the TFS group in NEC Decision No 48 of 2013.

8. On 15 May, 2014 the Police Commissioner Sir Toami Kulunga was convicted of contempt of Court. The decision on sentence for Sir Toami was set to be delivered on 13 June, 2014.

9. On 12 June, 2014 a police officer attached to TFS applied for and obtained a warrant of arrest for the Prime Minister. On 13 June, 2014 Sir Toami was sentenced to three separate terms of 7 months imprisonment, to be served concurrently.

10. On 14 June, 2014 Ministers were advised that there was an NEC meeting to be held on 16 June, 2014. The main reason for the NEC meeting was to consider the replacement for the incumbent Police Commissioner, given that the Police Act makes being convicted of an offence a ground for removal of a Police Commissioner.

11. On the morning of 16 June, 2014 Sir Toami caused to be delivered to the Prime Minister at approximately 10.30 am a letter requesting that the Prime Minister attend at an interview at the Police Station at either 11.00 am or 1.00 pm, and attached the warrant of arrest.

12. The Prime Minister did not attend the interview as there was less than half an hour’s notice in the morning and the NEC meeting was scheduled for the afternoon. At the NEC meeting on 16 June, 2014 NEC removed Sir Toami as Police Commissioner and appointed Mr. Geoffery Vaki.

13. On 18 June, 2014 by way of policy submission and NEC Decision No 191 of 2014, the NEC resolved to disband the TFS. The decision also resolved that all TFS staff should return to their previous duty stations or employment.

14. On 24 June, 2014 by way of policy submission and NEC Decision No 196 of 2014, the NEC established the Interim Office of Anti-Corruption to be headed by former Judge, Graeme Ellis.

15. On 28 June, 2014 the Contract of Employment between Department of Justice and Attorney-General and first respondent expired. On 30 June, 2014 the first respondent as Chairman of the TFS Team commenced judicial review proceedings.

16. On 7 July, 2014 the Secretary for Justice Dr. Lawrence Kalinoe called the first respondent to a meeting and in front of and witnessed by 3 senior officers of the Department of Justice and Attorney-General, reminded him that his contract had expired on 28 June, 2014 and that as departmental head, Dr. Kalinoe had been seriously concerned about his constant media releases in local and international media divulging confidential information that had come into his possession as a result of his privileged position related to his work. He advised the first respondent that he was aware that the first respondent had appeared on the 7.30 Report on ABC Australia and spoke on confidential matters involving investigations at TFS and that when the first respondent travelled to Australia to give the interview, he travelled without the endorsement of Dr. Kalinoe and the approval from the Chief Secretary. Dr. Kalinoe informed the first respondent that it was on this basis that he formed the view that the first respondent had committed normal public service disciplinary offences and that the first respondent would be...