SCA NO. 74 OF 2011 & SCA NO. 86 OF 2011; 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 Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, comprising the Leadership Tribunal and The Independent State of Papua New Guinea (2011) SC1134

• Jurisdiction: Papua New Guinea
• Judge: Batari, J, David, Gabi, JJ
• Judgment Date: 20 October 2011
• Court: Supreme Court
• Citation: (2011) SC1134
• Year: 2011
• Judgement Number: SC1134

Full Title: SCA NO. 74 OF 2011 & SCA NO. 86 OF 2011; 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 Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, comprising the Leadership Tribunal and The Independent State of Papua New Guinea (2011) SC1134

Supreme Court: Batari, J, David, Gabi, JJ

Judgment Delivered: 20 October 2011

SC1134

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 74 OF 2011

&

SCA NO. 86 OF 2011

BETWEEN:

HON. PATRICK PRUAITCH MP

Applicant

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, Comprising the Ombudsman Commission

First Respondent

AND:

JIM WALA TAMATE, the Public Prosecutor

Second Respondent

AND:

HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising the Leadership Tribunal

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Batari, J, David, Gabi, JJ

2011: 13th September & 20th October

PRACTICE AND PROCEDURE – APPEAL - Application for Leave to Appeal a National Court interlocutory directive orders – Application for a stay pending Appeal hearing - Tests to be applied in applications for leave to appeal - Trial Judge continued dealing with proceedings while Supreme Court has seized of the matter – Propriety of – Trial Judge was member of Supreme Court bench that had made adverse comments against same proceedings – Bias – Apprehension of - Arguable case established - sufficient cause shown – Leave to appeal granted

PRACTICE AND PROCEDURE – National Court directive orders for further dealings with matter – Stay of - Factors to consider - Interests of justice favour grant of stay of proceedings – stay order granted

Facts:

The appellant seeks leave to appeal and to stay directive orders of the National Court. The directive orders purported to vacate the initial orders the Supreme Court had stayed. The National Court further ordered that the proceedings come before another judge for expedited hearing.

Held:

1. The appellant has established that it has an arguable case. Sufficient cause has been shown to interrupt the trial process by an appeal. Leave to appeal is granted.

2. The overall interests of justice favour the grant of a stay of proceedings pending the determination of the appeal.

Cases cited:

Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240

McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279

Matiabe Oberia v. Police & The State (2005) SC801

Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011

Counsel:

MM Varitimos & F Griffin, for the Applicant

H. Maliso, for the First Respondent

T Tanuvasa, for the Second, Third and Fourth Respondents

20 October, 2011

1. BY THE COURT: OVERVIEW: On 15 July 2011, the Applicant obtained leave in SCA. 74 of 2011 to appeal against interlocutory orders in the form of directional orders made by the National Court in respect of proceedings OS. No. 34 of 2011. The Supreme Court also granted stay orders of the interlocutory orders.

2. Subsequent to the grant of leave and the stay orders, the Applicant filed a Supplementary Notice of Appeal on 21 July 2011. That Supplementary Notice of Appeal is objected to by the respondents in their Notice of Objection to Competency filed on 28 July 2011. In the meantime, the Applicant filed a further Application for leave to Appeal in SCA 86 of 2011.

3. This is a consolidated hearing of three applications brought under SCA 74 of 2011 and SCA 86 of 2011. The applications namely; an Objection to Competency of Supplementary Notice of Appeal, SCA 74 of 2011, Application for Leave to file Notice of Appeal in SCA 86 of 2011 and Application for Stay of the Court Orders the subject of appeal in SCA 86 of 2011 were heard together and ruled on by this Court in that order. The three Applications are contested.

Background

4. These applications arise from the proceedings before the National Court in OS No. 34 of 2010, Hon. Patrick Pruaitch v. Chronox Manek, Chief Ombudsman & Ors filed on 4 February 2010. The relief being sought is against the decision of the Ombudsman Commission to refer the Applicant to the Public Prosecutor for prosecution on allegations that he committed misconduct in office. The action was also against the Public Prosecutor’s decision to request the Chief Justice to appoint a leadership tribunal to investigate the allegations.

5. The proceedings in OS 34 of 2010 were preceded by a similar application for judicial review of the decision of the Ombudsman Commission filed by Applicant in OS 456 of 2009 under O 16 of the National Court Rules. He was there, challenging his referral arguing inter alia, that he had been denied the right to be heard in respect of the allegations in the referral. The application for leave for judicial review was dismissed by Hartshorn J on 8 September, 2010.

6. Upon establishment of the tribunal the Applicant filed the proceedings in OS 34 of 2010 under Constitution s. 23 seeking the same relief for which leave was denied in OS 456 of 2009. Kariko J dismissed the entire proceedings in OS 34 of 2010 on the grounds that it amounted to multiplicity of proceedings and that a plea of res judicata had been made. The res judicata doctrine was held to be applicable as the National Court had earlier on, dismissed an application for leave for a judicial review of the same decisions.

7. The Applicant appealed the National Court decision in OS 34 of 2010 and the Supreme Court in SC1093 allowed the appeal, reinstated the proceedings and ordered that the matter be heard by another Judge. Following that successful appeal, the First Respondent again filed a Notice of Motion seeking a dismissal of the entire proceedings for disclosing no reasonable cause of action and in the alternative, directive orders for expedited hearing.

8. Following the Supreme Court decision, OS 34 of 2010 was initially listed before Kandakasi J but deferred due to his Honour’s unavailability. Then On 14 June 2011, his Honour called the matter. Notwithstanding that the case was not on the list of matters to be heard by the judge; that counsel for all the parties were not present and that no opportunity were given to the parties to be heard on the application, the court ordered inter alia:

“7. The matter shall return for motion and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No. 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SCA Originating Summons No. 2 of 2011, if it is decided and delivered before the matter returns to Court on 20 July 2011.”

9. His Honour Kandakasi J was a member of the Supreme Court in the matter of Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011 where it was held in relation to the proceedings commenced by Hon. Patrick Pruaitch, MP (OS No. 34 of 2010):

“19. …Applying the principles we have set out above, Kariko .J correctly in our respectful view, dismissed the proceedings for abuse of process (OS No. 34 of 2010)”.

10. Aggrieved by the manner in which the proceedings leading up to the making of the directional orders were conducted, the Applicant filed an Application for Leave to Appeal the directional orders, (SCA 74 of 2011). On 15 July 2011 his Honour Injia CJ sitting as a single Supreme Court Judge hearing the leave application ordered inter alia:

“1. The Application for Leave to Appeal is granted.

2. Pursuant to Order 7 r 5 (2) of the Supreme Court Rules the order sought, in paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the Notice of Appeal.

3. The matter is fixed on Friday 22 July at 9:30am for directions to be issued in order for the substantive appeal to be listed for hearing by the full Court in the August sittings of the Supreme Court.

4. The Applicant shall prepare, file and serve a draft index to the Appeal Book and a draft Appeal Book for the Court’s consideration and endorsement by Wednesday 20 July, 2011.

5. If Order No. 4 is not complied with, the Court will consider referring the appeal to the full Court for summary determination in the August sittings of the Supreme Court pursuant to R.16 (b) of the Supreme Court Listings Rules 2010.

6. The matter is adjourned to Monday, 18 July 2011, at 9:30am, for hearing and arguments on the question of costs of this application and the application for stay.”

11. The Chief Justice granted these orders after being satisfied that, an arguable case of apprehension of bias and denial of fair hearing has been made out. His Honour stated:

“14. That much said, I consider that those arguments do not provide a satisfactory answer to the perceived or apprehended bias that may arise or occur on the part of the Court or trial Judge in the future conduct of the...