Application by Anderson Agiru (2002) SC686

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Salika J, Sakora J, Injia J
• Judgment Date: 24 May 2002
• Citation: [2002] PNGLR 567
• 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
• Judgement Number: SC686

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

SC686

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR No. 13 of 2002

REVIEW PURSUANT TO SECTION 155 (2) (b)

and 155(4) OF THE CONSTITUTION

APPLICATION BY ANDERSON AGIRU

Waigani: Kapi DCJ., Los J., Salika J., Sakora J., Injia J.

29th April, 2nd & 24th May 2002

Constitutional Law – application under Section 155 (2) (b) Constitution – circumstances under which it may be invoked.

Concurrent Existence of Right of Appeal or Leave to Appeal under the Supreme Court Act and Inherent Power of the Supreme Court under Section 155 (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.

G. Sheppard for the applicant

D. Cannings and J. Nonggor for the Public Prosecutor.

24th May 2002

KAPI DCJ: This is an application for judicial review under s 155 (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 s 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and s 27 (1) (b), 27 (1) (c), 27 (1) (d), 27 (2) and 27 (5) (b) of the Constitution.

The Tribunal found the applicant guilty on 16th 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 18th 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 20th January 2002.

On 22nd January 2002, the applicant filed originating summons in the National Court seeking leave for judicial review of the decision of the Tribunal under O 16 r 3 of the National Court Rules. The application for leave for judicial review was heard on 12th February and on the 14th February 2002 Sheehan J refused leave for judicial review.

On 25th March 2002, the applicant filed application for two distinct remedies against the decision of the National Court; an application for judicial review under s 155 (2) (b) and orders under s 155 (4) of the Constitution.

At the initial hearing before us on 29th 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 s 155 (2) (b) only. The application was heard on the 2nd May 2002.

An application for judicial review under s 155 (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 [1982] PNGLR 44.

Abuse of the Process of the Court.

Counsel for the Public Prosecutor, Dr Nonggor 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 O 16 of the National Court Rules may be appealed to the Supreme Court under s 17 of the Supreme Court Act. Such an appeal may be brought by way of notice of motion (see O 10 of the Supreme Court Rules and O 16 r 11 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 s 155 (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 s 155 (2) (b) 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 s 155 (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 8th 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 matter would have to be sent back to the National Court for substantial judicial review hearing under O 16. He argues that if the applicant is not successful on the merits, there would not be enough time for the applicant to exercise his right of appeal under the Supreme Court Act before the National Elections which are scheduled to be held in June 2002.

Counsel for the applicant intended that if leave is granted, he would then apply for the transfer of proceedings in the National Court to the Supreme Court under s 155 (4) of the Constitution. He argues that this would enable the Supreme Court to deal with the decision of the Tribunal before the elections in June.

Section 155 (2) (b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State (supra) held that the Court may in its absolute discretion allow a limited class of cases for review under s 155 (2) (b).

There are three categories of cases where judicial review has been exercised under this provision:

(1) Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (supra)).

(2) Where right of appeal is prohibited or limited by law (Election Petition cases where appeal is prohibited)

(3) Where there is no other way of going to the Supreme Court (see Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 where the State had no other way of coming to the Supreme Court)

In the present case, the applicant had the right to appeal under the Supreme Court Act, but deliberately chose not to appeal and proceeded by way of s 155 (2) (b). The applicant therefore does not come under any of the categories where parties have been allowed to invoke the discretionary power of the Court under s 155 (2) (b).

The question we have to determine is whether, this Court may allow the applicant to invoke the discretionary power under s 155 (2) (b) for the reasons advanced by the applicant.

The first reason is that if he appealed under the Supreme Court Act, the applicant could not obtain an interim order to nominate. This is not a valid reason. In an appeal under the Supreme Court Act, the Court has power to make such orders under s 5 (1) (a) and (b) and possibly under s 19 of the Supreme Court Act. In fact, such an order was made by the Chief Justice in Peter Peipul v Sheehan J, Ori Karapo and Iova Geita, Ombudsman Commission and The State (SCM No. 2 of 2002), an appeal against the decision of the National Court in a judicial review proceeding against the decision of the Leadership Tribunal.

The second reason is that by coming to Court under s 155 (2) (b), it may be quicker to determine all the issues including the decision of the Leadership Tribunal. This is also not a valid reason. If the matter came by way of s 155 (2) (b), the Court would only be concerned with the application for leave for judicial review. Any such review if successful would only result in sending the matter back to the National Court to deal with the merits of the judicial review.

In this regard, the applicant could have challenged the decision of the Leadership Tribunal by coming directly to the Supreme Court under its inherent powers under s 155 (4) of the Constitution. The Supreme Court and the National Court have concurrent jurisdiction in this regard. The applicant did not choose to do this. He chose to go to the National Court under O 16 and that Court is seized of the matter. The applicant must complete the process under O 16 of the National Court Rules.

The applicant appears to have treated the right of appeal under the Supreme Court Act and review under...