Belden Namah v Justice Goodwin Poole

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 November 2015
• Citation: (2015) N6121
• Court: National Court
• Year: 2015
• Judgement Number: N6121

Full : OS (HR) No 8 of 2015; The Honourable Belden Namah MP,Member for Vanimo Green Open v a Tribunal comprising The Honourable Justice Goodwin Poole, Senior Magistrate Mark Selefkariu and Senior Magistrate Ernest Wilmot and Pondros Kaluwin, Public Prosecutor and Ombudsman Commission of Papua New Guinea (2015) N6121

National Court: Cannings J

Judgment Delivered: 20 November 2015

N6121

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 8 0F 2015

THE HONOURABLE BELDEN NAMAH MP,

MEMBER FOR VANIMO GREEN OPEN

Plaintiff

V

A TRIBUNAL COMPRISING

THE HONOURABLE JUSTICE GOODWIN POOLE,

SENIOR MAGISTRATE MARK SELEFKARIU AND

SENIOR MAGISTRATE ERNEST WILMOT

First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR

Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2015: 18, 20 November

PRACTICE AND PROCEDURE – application by plaintiff for a person to be added to proceeding, as a defendant – National Court Rules, Order 5, Rule 8 (addition of parties) – application by plaintiff to amend originating summons – National Court Rules, Order 8, Rules 50 (general) and 55 (mode of amendment: directions).

INJUNCTIONS – interim injunctions – orders sought to restrain members of a leadership tribunal from convening until determination of originating summons.

CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws: Constitution, Section 18 – whether a leadership tribunal obliged by Constitution, Section 18(2) to refer constitutional questions to Supreme Court – whether questions trivial, vexatious or irrelevant – whether National Court obliged to refer constitutional questions to the Supreme Court.

LEADERSHIP TRIBUNALS – whether proceedings ought to be stayed pending determination of a Supreme Court Reference under Section 18(2) of the Constitution

The plaintiff, a member of the National Parliament, commenced proceedings by originating summons in the National Court, seeking: (a) a declaration that a tribunal, which had been appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against him, had failed in its duty to refer constitutional questions to the Supreme Court; (b) an order that the National Court refer the constitutional questions to the Supreme Court; (c) an injunction to restrain the tribunal from conducting any proceedings; (d) a declaration that the tribunal’s failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff’s right to the full protection of the law under Section 37(1) of the Constitution; and (e) a declaration that the tribunal’s failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution. The plaintiff then applied by notice of motion to the National Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. The National Court, on 5 November 2015, refused to grant an injunction. The plaintiff, on 12 November 2015, filed another notice of motion, seeking the following orders: (1) that the Chief Justice be added as a party, as fourth defendant; (2) that leave be granted to further amend the originating summons; (3) that an injunction be granted restraining the members of the tribunal from proceeding in their inquiry; (4) that the National Court refer constitutional questions to the Supreme Court; (5) that the tribunal’s proceedings be stayed pending a hearing and determination of the proposed Supreme Court Reference.

Held:

(1) The application for an order adding the Chief Justice as a defendant was granted, as a central issue underpinning the relief sought in the originating summons is whether the Chief Justice acted contrary to the Constitution and breached the plaintiff’s human rights in the course of appointing the tribunal; and, for the purposes of Order 5, Rule 8(1) of the National Court Rules, his Honour ought to have been joined as a defendant and his Honour’s addition as a defendant is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on.

(2) Leave was granted to further amend the originating summons as the amendment will enable the Court to determine the real questions in controversy; the amendment will cause no real prejudice or injustice to the defendants; the application for amendment is made bona fide; the defendants can be fairly compensated with costs; the plaintiff is not prevented by his conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings; the interests of justice favour the granting of leave; the proposed amendment is efficacious.

(3) An interlocutory injunction to restrain the tribunal members from proceeding in their inquiry was refused as it could not be said that there was an arguable case of a failure to comply with the duty under Section 18(2) as there was insufficient evidence that such questions had ‘arisen’ “in” the tribunal or that the tribunal had made a decision to refuse or decline or otherwise not to refer constitutional questions to the Supreme Court.

(4) The application for the National Court to refer constitutional questions to the Supreme Court was refused as such questions had not arisen in these proceedings and for the National Court to refer such questions at this stage would be to countenance an abuse of process by the plaintiff.

(5) A stay of the tribunal’s proceedings was refused for similar reasons given for refusing to grant an interim injunction.

(6) In summary: the orders sought and described as (1) and (2) were granted and those described as (3), (4) and (5) were refused.

Cases cited

The following cases are cited in the judgment:

Alois Kingsley Golu v Regett Marum (2013) N5104

Application by Ila Geno (2014) SC1313

Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304

Haiveta v Wingti (No 1) [1994] PNGLR 160

Hon Belden Namah MP v A Tribunal, the Public Prosecutor & the Ombudsman Commission (2015) N6108

Isaac Lupari v Sir Michael Somare (2008) N3476

Kewa v Kombo (2004) N2688

Lowa v Akipe [1992] PNGLR 399

Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60

Ombudsman Commission v Gabriel Yer (2009) SC1011

Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479

Re Petition of MT Somare [1981] PNGLR 265

Re Reference by Ken Norae Mondiai (2010) SC1087

SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405

SCR No 5 of 1982, Berghuser v Aoae [1982] PNGLR 379

Tarsie v MCC (2010) N4141

The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273

Vincent Kaupa v Simon Poraituk (2008) SC955

Zachary Gelu v Sir Michael Somare MP (2008) N3526

NOTICE OF MOTION

This was an application for addition of a party, leave to amend an originating summons, an interlocutory injunction, referral of constitutional questions to the Supreme Court and a stay of leadership tribunal proceedings.

Counsel

G J Sheppard & P Tabuchi, for the Plaintiff

L P Kandi, for the First and Second Defendants

M Efi, for the Third Defendant

20 November, 2015

1. CANNINGS J: This is the ruling on a notice of motion filed on 12 November 2015 by the plaintiff, the Honourable Belden Namah MP, the Member for Vanimo Green Open.

HISTORY

2. On 28 October 2015 the plaintiff commenced proceedings by originating summons in the National Court, seeking the following orders:

(a) a declaration that a leadership tribunal, which had been appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against him, had failed in its duty to refer constitutional questions to the Supreme Court;

(b) an order that the National Court refer the constitutional questions to the Supreme Court;

(c) an injunction to restrain the tribunal from conducting any proceedings;

(d) a declaration that the tribunal’s failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff’s right to the full protection of the law under Section 37(1) of the Constitution; and

(e) a declaration that the tribunal’s failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution.

On 4 November 2015 the plaintiff applied by notice of motion in this Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. The Court, on 5 November 2015, refused to grant the injunction (Hon Belden Namah MP v A Tribunal, the Public Prosecutor & the Ombudsman Commission (2015) N6108). On 12 November 2015 the plaintiff filed another notice of motion. The motion was heard on 18 November 2015.

THE NOTICE OF MOTION FILED ON 12 NOVEMBER 2015

3. The plaintiff seeks five main orders:

(1) that the Chief Justice be added as a party, as fourth defendant (para 2);

(2) that leave be granted to...