The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Sakora J, Sevua J
• Judgment Date: 05 June 1998
• Citation: (1998) SC557
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC557

Supreme Court: Amet CJ, Sakora J, Sevua J

Judgment Delivered: 5 June 1998

SC 557

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SC APPEAL NO. 2 OF 1998

BETWEEN:

THE RT HON SIR JULIUS CHAN

Appellant

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Respondent

Waigani : Amet CJ, Sakora, J & Sevua J

1998 : 5 March & 5 June

N M Cooke QC, for the Appellant.

D Cannings, for the Respondent.

5 June 1998

BY THE COURT: The Appellant appeals against the Judgment and Orders of the National Court constituted by the Honourable Justice Salika given on 10 December 1997 setting aside the order of another National Court constituted by the Honourable Justice Woods made on 10 November 1997 granting leave to the Appellant to apply for Judicial Review.

The Appellant had made an ex parte application to the Court pursuant to O 16, r 3 (2) of the National Court Rules (Rules) for leave to seek judicial review of the Respondent Ombudsman Commission's investigation and report into the purchase of the Cairns Conservatory by the Public Officers' Superannuation Fund Board. The Court granted three main orders ex parte; leave to apply for judicial review, injunction against distribution of any report of the investigation, pending determination of the application for judicial review and that the Ombudsman Commission give discovery of all documents relating to the investigation.

The Ombudsman Commission filed Notice of Motion in the National Court seeking, inter alia, the following orders:

The orders made on 10 November 1997 be set aside pursuant to O 12, r 8 of the Rules, that the Respondent be granted leave to appear on the Application for Leave and that the Application for Leave be refused.

On 10 December 1997 Justice Salika made the following relevant orders:

(i) The Orders of National Court on 10 November 1997 be set aside.

(ii) Leave for Judicial Review be refused.

(iii) The Plaintiff (Sir Julius) be granted four weeks extension within which to be heard in relation to the Cairns Conservatory deal.

(iv) The Ombudsman Commission be restrained from publishing its final report within the four weeks extension.

Appellant's Submissions

The Appellants principal ground of appeal is that the learned trial judge was led into error by the Respondent applying under O 12 r 8(3) of the Rules to set aside all the orders made by Woods J on 10 November, 1997 including the order made under O 16 r 3 granting leave for judicial review.

It was submitted that an application for leave for judicial review made under O 16 r 3 is specifically authorised to be made ex parte and so there are no other parties other than the applicant. Consequently, it was submitted, O 12 r 8(3) has no application.

The Appellant submitted that if the Respondent wished to set aside, quash or vary Woods J's orders granting leave they should have appealed to the Supreme Court pursuant to O 12 r 11 and not applied to set aside the orders in the National Court under O 12 r 8(3).

These submissions were made before Salika, J and His Honour dealt with them.

Respondents Submissions

The Respondent's first submission in response is that the National Court has the power to set aside an order granting leave for judicial review and ancillary orders. This power was derived from two separate sources, it was submitted; O 12 r 8 of the Rules and the Courts inherent powers conferred by s 155(3)(b) of the Constitution.

It was submitted that the National Court has broad discretion to set aside or vary orders made in the absence of one of the parties, in special circumstances. Relevant considerations will be:

q The reason why the party failed to appear.

q Whether there was any undue delay by the absent party in making the application to set aside.

q Whether there would be any prejudice to the party in whose favour the order has been made.

q Whether "common sense" requires that the order be set aside.

It was submitted also that although O 16 makes...