Hon Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2019) SC1884

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Shepherd and Berrigan JJ
• Judgment Date: 06 December 2019
• Court: Supreme Court
• Citation: (2019) SC1884
• Docket Number: SCA NO. 107 OF 2018
• Year: 2019
• Judgement Number: SC1884

Full Title: SCA NO. 107 OF 2018; Hon Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2019) SC1884

Supreme Court: Kandakasi DCJ, Shepherd and Berrigan JJ

Judgment Delivered: 6 December 2019

SC1884

PAPUA NEW GUINEA

[IN THE SUPREMECOURT OF JUSTICE]

SCA NO. 107 OF 2018

BETWEEN

HON PATRICK PRUAITCH MP

Appellant

AND

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, COMPRISING THE OMBUDSMAN COMMISSION

First Respondent

AND

JIM WALA TAMATE, THE PUBLIC PROSECUTOR

Second Respondent

AND

HON DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, COMPRISING THE LEADERSHIP TRIBUNAL

Third Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Kandakasi DCJ, Shepherd and Berrigan JJ

2019: 28thAugust, 6th December

SUPREME COURT – Appeal against dismissal by the National Court of proceedings as abuse of process – Power of National Court to review proceedings of Ombudsman Commission restricted to cases where the Commission has exceeded its jurisdiction – S.155(3)(e) and S.217(6) of Constitution and s.24 of Organic Law on Ombudsman Commission – Abuse of process for litigant who has selected one mode of proceedings and failed to prosecute same cause of action by an alternative proceeding – Both Supreme Court and National Court have inherent power to intervene at any stage of proceedings to prevent abuse of process – Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must take into account circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.

LEADERSHIP TRIBUNAL - Delay in commencement of Leadership Tribunal’s hearing of charges caused by piecemeal interlocutory applications to National Court and multiple appeals to Supreme Court can constitute abuse of process – Constitutional process under Leadership Code sanctioned by Organic Law on Duties and Responsibilities of Leadership should be completed before any judicial challenge against that process may be brought in National and Supreme Courts, including judicial challenges against decisions made by the Ombudsman Commission, the Public Prosecutor or a Leadership Tribunal.

Cases Cited:

Papua New Guinea Cases

Patterson Lowa, Minister for Minerals and Energy and Others v. Wapula Akipe and Others [1991] PNGLR 265

Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264

Nilkare v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 333

Anderson Agiru v. Electoral Commission and The State (2002) SC687

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Pruaitch v. Manek (2009) N3903

Pruaitch v. Manek (2010) N4149

Pruaitch v. Manek (2010) SC1052

Pruaitch v. Manek (2011) SC1093

Somare v. Manek (2011) SC1118

Pruaitch v. Manek (2012) SC1168

Wartoto v. The State (2015) SC1411

Micah v. Lua (2015) SC1445

Special Reference by the Attorney General pursuant to Constitution, Section 19 (2016) SC1534

Jacob Popuna v. Ken Owa (2017) SC1564

Pruaitch v. Manek (2017) SC1593

Telikom (PNG) Ltd v. Rava (2018) SC1694

Pruaitch v. Manek (2018) N7379

Overseas Cases Cited:

Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529

Batistatos v. Roads and Traffic Authority of NSW (2006) 226 CLR 256

Legislation and other materials cited:

Sections 18, 23, 29, 155(4) and 217(b) of the Constitution

Sections 20, 27 of the Organic Law on the Duties and Responsibilities of Leadership

Section 24 of Organic Law on the Ombudsman Commission

Order 12 Rule 40 of the National Court Rules

Counsel

Mr G. Shepherd and Mr P. Tabuchi, for the Appellants

Mr V. Narokobi and Mr M. Kirk, for the First Respondent

Mr L. Kandi, for the Second and Fourth Respondents

DECISION ON APPEAL

06th December, 2019

1. BY THE COURT: This is an appeal against the whole of the decision of the National Court delivered on 19 June 2018 dismissing the entire proceedings in OS No. 34 of 2010(OS No 2) on the basis that the proceedings were an abuse of process: Pruaitch v. Manek (2018) N7379.

2. The decision was made out of two motions:one filed by the Appellant on 12th February 2018 seeking to refer questions to the Supreme Court by invoking s. 18(2) of the Constitution; and the other by the First Respondent filed on 23rd February 2018 seeking to dismiss the proceedings pursuant to Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules for failing to disclose a reasonable cause of action, for being frivolous and vexatious, and for being an abuse of process.

3. The First Respondent’s Motion was filed in response to the Appellant’s Motion. For completeness, we also note that a third motion, filed by the Fourth Respondents on 18 December 2017, seeking the same relief as that of the First Respondent, was also before the Court, and heard together with the latter.

FACTUAL AND PROCEDURAL BACKGROUND

4. The matter has a long history:

· On 29thSeptember 2006 the First Respondent (the Commission) wrote to the Appellant pursuant to s. 20(3) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and informed him of his right to be heard on 11 allegations of misconduct in office.

· In October 2006 the Appellant appeared in person before the Commission and gave a verbal response to the allegations. In late November 2006, in further exercise of his right to be heard, the Appellant submitted a detailed written response to all 11 allegations.

· On 22ndJanuary 2008 the Commission issued a summons requiring Mr Kanawi Pouru, Managing Director of PNG Forest Authority, to provide certain information. Mr Pouru responded to the Commission on 4thFebruary 2008.

· On 22ndJuly 2009 the Commission wrote to the Appellant advising that it had considered his responses to the 11 allegations and decided to refer 8 of those allegations to the Public Prosecutor for possible prosecution under ss. 20(4) and 27(1)(a) of the OLDRL and s. 29(1) of the Constitution.

· On 20thAugust 2009 the Appellantfiled judicial review proceedings OS No. 456 of 2009 (OS No 1) challenging the referral pursuant to Order 16 of the National Court Rules on the basis that the Commission had, inter alia, exceeded its jurisdiction and that he had been denied the right to be heard on the allegations.

· On 8th September 2009 Hartshorn J refused leave for judicial review on the basis that there was no arguable case that the Appellant had not been duly heard on all 8 allegations: Pruaitch v. Manek (2009) N3903. The appellant did not appeal that decision.

· The Public Prosecutor subsequently wrote to the Chief Justice requesting the appointment of an appropriate tribunal to inquire into the matter. On 3rd February 2010 Chief Justice Sir Salamo Injia appointed the Third Respondent (the Leadership Tribunal).

· On 4thFebruary 2010, almost five months after leave for judicial review had been refused, the Appellant filed a new set of proceedings, OS 34 of 2010 (OS No 2), pursuant to ss. 23, 155(4) and 217(b) of the Constitution seeking declaratory, preventative, injunctive and stay orders, including declaratory orders that the Commission’s referral to the Public Prosecutor was unconstitutional, in excess of jurisdiction and therefore illegal, invalid and of no force and effect on the basis, again,that the Appellant had been denied his right to be heard on the allegations. It is these proceedings that are the subject of this appeal.

· On 12thFebruary 2010 Kariko J dismissed the proceedings in OS No 2 on the basis that the Appellant was in effect seeking to bring the same claim as that made in OS No 1, that there was therefore a multiplicity of proceedings that was bad for abuse of process, and, further that the matter was res judicata: Pruaitch v. Manek (2010) N4149.

· On the same day the Appellant appealed against the decision of Kariko J by filing proceedings SCA No 7 of 2010.The Appellant argued that Kariko J should have found as a fact that there were further investigations done by the Commission against him when Mr Pouru was summoned to provide information. Further, that the Commission should have given him an opportunity to be heard on the information provided by Mr Pouru before deciding whether to refer the matter to the Public Prosecutor. The Appellant argued that Kariko J erred when he found that the materials contained in Mr Pouru’s affidavit were not new.

· On 19th February 2010 the Appellant obtained an ex parte stay...