Application by Anderson Agiru (2002) SC686

• Jurisdiction: Papua New Guinea
• Citation: [2002] PNGLR 567
• Date: 24 May 2002
• Docket Number: Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution
• Court: Supreme Court
• Year: 2002

Full Title: Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686

Supreme Court: Kapi DCJ, Los J, Salika J, Sakora J, Injia J

Judgment Delivered: 24 May 2002

1 Constitutional Law—application under s155(2)(b) Constitution—circumstances under which it may be invoked.

2 Concurrent Existence of Right of Appeal or Leave to Appeal under the Supreme Court Act and Inherent Power of the Supreme Court under s155(2)(b) Constitution—inherent power cannot be invoked where a right of appeal or leave to appeal concurrently exists—to do so is an abuse of the process of the court.

3 Application by Jeffrey Balakau [1998] PNGLR 437, Avia Aihi v The State (No 1) [1981] PNGLR 81, Avia Aihi v The State (No 2) [1982] PNGLR 44, SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433, Peter Peipul v Sheehan J, Orim Karapo and Iova Geita, Ombudsman Commission and The Independent State of Papua New Guinea (SCM No 2 of 2002) (Unnumbered and Unreported Supreme Court Judgment dated 24 May 2002, Kapi DCJ and Others), SC Review No 78 of 1997; Application for Review Pursuant to s155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539), Viviso Seravo and Electoral Commission v John Giheno (1998) SC555, Wauni Wasia Ranyeta v Masket Iangalio (1998) SC562, David Lambu v Peter Ipatas (No 3) [1999] PNGLR 207, John Mua Nilkare v The Tribunal, SCA No 46 of 1996 (Unnumbered and unreported Supreme Court judgment (Los J, Jalina J, Andrew J) handed down on 17 December 1996), Application by John Mua Nilkare [1998] PNGLR 472 and Ombudsman Commission v Donohoe [1985] PNGLR 348 referred to

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Kapi DCJ:

This is an application for judicial review under s155(2)(b) of the Constitution.

The circumstances leading to this review are these. The applicant was charged with 15 allegations of misconduct before the Leadership Tribunal under s4(6)(a) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and s27(1)(b), s27(1)(c), s27(1)(d), s27(2) and s27(5)(b) of the Constitution.

The Tribunal found the applicant guilty on 16 January 2002 of allegations numbered 1, 2, 4, 5, 6, 7, 8, 10, 11, 12 and 15 and not guilty of allegations 3, 9, and 14.

On 18 January 2002, the Tribunal recommended that the applicant pay a fine of K1,000.00 on each of the allegations numbered 1, 2, 4, 5, 6, 12 and 15. For allegation 7, 8, 10, 11 and 13 the Tribunal recommended dismissal from office.

The Acting Governor General, acting in accordance with the advice of the Tribunal, dismissed the applicant from office, and imposed a total fine of K7,000.00 on 20 January 2002.

On 22 January 2002, the applicant filed originating summons in the National Court seeking leave for judicial review of the decision of the Tribunal under O16 r3 of the National Court Rules. The application for leave for judicial review was heard on 12 February and on 14 February 2002 Sheehan J refused leave for judicial review.

On 25 March 2002, the applicant filed application for two distinct remedies against the decision of the National Court; an application for judicial review under s155(2)(b) and orders under s155(4) of the Constitution.

At the initial hearing before us on 29 April 2002, the Court sought clarification of the nature of the application and dealt with other preliminary issues. Counsel for the applicant clarified matters by amending the application and confined the application to s155(2)(b) of the Constitution only. The application was heard on 2 May 2002.

An application for judicial review under s155(2)(b) of the Constitution is discretionary and may be granted by the Court in circumstances set out in the leading case of Avia Aihi v The State (No 2) [1982] PNGLR 44.

Abuse of the Process of the Court.

Counsel for the Public Prosecutor, Dr Nonggorr raised the preliminary point that this application is an abuse of the process of the court and should be dismissed. He argues that a refusal for leave for judicial review under O16 of the National Court Rules may be appealed to the Supreme Court under s17 of the Supreme Court Act. Such an appeal may be brought by way of notice of motion (see O10 of the Supreme Court Rules and O16 r11 of the National Court Rules). He argues that when this application was filed, the applicant had a right of appeal under the provisions referred to above, and he chose not to appeal. He argues that an application under s155(2)(b) under these circumstances is an abuse of the process of the court and should be dismissed.

Counsel for the applicant confirmed that a deliberate decision was taken not to appeal under the Supreme Court Act, but instead applied for judicial review under s155(2)(b) of the Constitution for two reasons. The first reason is that if an appeal was instituted under the Supreme Court Act, the applicant could not have obtained an interim order to allow him to nominate for the 2002 National Elections pending the determination of such an appeal. He argues that by filing s155(2)(b) application, he could apply to the Supreme Court and obtain an interim order to allow the applicant to nominate for the National Elections. In fact counsel for the applicant did obtain such an order from the Chief Justice on 8 April 2002 and the applicant has nominated.

The second reason is that if an appeal was filed under the Supreme Court Act and was successful, the...