Honourable Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sengatari, comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Honourable Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim and The Independent State of Papua New Guinea (2011) SC1093

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2011) SC1093
• Docket Number: SCA No. 7 OF 2010
• Year: 2011

Full Title: SCA No. 7 OF 2010; Honourable Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sengatari, comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Honourable Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim and The Independent State of Papua New Guinea (2011) SC1093

Supreme Court: Sakora, Lenalia & Manuhu, JJ

Judgment Delivered: 31 March 20011

PRACTICE AND PROCEDURE—Abuse of process—Multiplicity of proceedings—Doctrine of res judicata—Application for leave to apply for judicial review—Leave refused—No substantive review on the merits - Fresh proceeding instituted under the Constitution—Same issues in both proceeding—National Court Rules, O16, r1, r3(1) and (2).

ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP - Leadership Code—Leadership Tribunal—Allegations of Misconduct in Office—Referral of Leader—Suspension of Leader—Original jurisdiction on suspension - Organic Law on Duties and Responsibilities of Leadership, s27 and s28.

The Appellant appeals against decision of motions judge to dismiss his proceeding where he claims denial of right to be heard before referral by Ombudsman Commission to the Public Prosecutor for misconduct in office. He had initially applied for leave for judicial review which application was heard ex parte and refused. The Appellant also complains about his suspension following earlier decision by Supreme Court which dealt with his applications for leave to appeal on questions of fact and for stay of proceeding under the Organic Law on Duties and Responsibilities of Leadership (“The Organic Law”).

Held:

(1) The refusal of leave to apply for judicial review does not determine the substantive matter for judicial review on its merits.

(2) The substantive matter that would have been reviewed but for the refusal of leave remains unresolved and may be raised with or without leave in a court of competent jurisdiction.

(3) The decision refusing leave, in an ex parte application, was not a final order made following an inter partes hearing.

(4) It would be unfair for the Appellant to be denied his constitutional right to seek redress in a court of law on the basis that his ex parte application for leave for judicial review had been refused.

(5) The motions judge erred in finding that the subsequent proceeding amounted to duplicity of proceeding and was an abuse of process.

(6) The motions judge erred in his findings on res judicata.

(7) The question of suspension, pursuant to the combined effects of s27 and s28 of the Organic Law, falls exclusively within the original jurisdiction of a Leadership Tribunal and comes into effect upon presentation of charges and statement of reasons before Leadership Tribunal.

(8) The decision of the Supreme Court on suspension of the Appellant was obiter.

(9) The Supreme Court exceeded its jurisdiction when it considered, on its own motion, the question of suspension.

Cases cited in the judgment:

Anderson Agiru v The Electoral Commission (2002) SC687; Telikom PNG Limited v The Independent Consumer and Competition Commission and Digicel Unreported (2008) SC906...