Hon Peter O'Neill v Cosmos Bidar and Kila Tali and David Manning and The Independent State of Papua New Guinea (2019) SC1899

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 16 December 2019
• Court: Supreme Court
• Citation: (2019) SC1899
• Docket Number: SCM 27 of 2019
• Year: 2019
• Judgement Number: SC1899

Full Title: SCM 27 of 2019; Hon Peter O'Neill v Cosmos Bidar and Kila Tali and David Manning and The Independent State of Papua New Guinea (2019) SC1899

Supreme Court: Hartshorn J

Judgment Delivered: 16 December 2019

SC1899

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 27 of 2019

BETWEEN:

HON. PETER O'NEILL

Appellant

AND:

COSMOS BIDAR

First Respondent

AND:

KILA TALI

Second Respondent

AND:

DAVID MANNING

Third Respondent

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Hartshorn J,

2019: 12th & 16th December

Application for interim orders pursuant to s. 5(1)(b) Supreme Court Act

Cases Cited:

Papua New Guinea Cases

Eremas Wartoto v. The State (2015) SC1411

Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614

Marape v. O'Neill (2014) SC1378

Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388

Overseas Cases:

New South Wales Food Authority v. Nutricia Australia Pty Ltd (2008) 74 NSWLR 148

Counsel

Mr. G. Sheppard and Mr. G. Purvey, for the Appellant

Mr. D. Wood, for the Respondents

16th December, 2019

1. HARTSHORN J: This is a decision on a contested application for a restraining order. The order is sought to prevent the arrest of the appellant Hon. Peter O'Neill, in respect of a complaint made against him on 11th October 2019 by Hon. Bryan Kramer, Minister for Police. The order is sought pending the determination of the substantive appeal by the appellant of a decision made by the National Court in a judicial review proceeding.

Background

2. The appellant appeals against a National Court decision which refused leave for him to judicially review two decisions of the District Court. These decisions were in essence to issue a warrant for the arrest of the appellant and then a decision to withdraw that warrant.

3. On 29th November 2019 this Court, following an urgent ex parte hearing, granted an order in the nature of a restraining order to prevent the Royal Papua New Guinea Constabulary, its employees, servants or agents, David Manning in his capacity of Acting Commissioner of Police or any Police Officer under his command from making any arrest or attempt of arrest of the appellant in association of or in connection with the complaint made by the Minister of Police, Hon. Bryan Kramer, on 11th October 2019 pending the hearing and determination of the appellant's appeal (restraining order).

4. The Court further ordered that the matter return for an inter partes hearing to determine whether the restraining order should be extended. This is the decision following that hearing.

Preliminary

5. I consider the respondents' objections of moment. The respondents' objected to the appellant's reliance upon s. 5 Supreme Court Act on the basis that the appellant should have specified which subsection of s. 5 he is relying upon as there are five subsections. As paragraph 4 of the amended application of the appellant refers to s.5 Supreme Court Act and also that a restraining order is sought, I am satisfied that the respondents would have correctly determined that relief was being sought pursuant to s. 5(1)(b), being an interim order to prevent prejudice to the claims of the parties, as apart from s. 5(1)(a), which refers to a direction and not an order, the other subsections are not applicable. No prejudice has been occasioned to the respondents in my view and this is reflected by the respondents making later submissions concerning s. 5(1)(b). This objection is rejected.

6. The respondents' also objected to the amended application on the basis that it is not in the correct form and that it did not detail documentation relied upon. I note from the evidence that the respondents' were served with the necessary documentation as ordered. Again, I am not satisfied that any prejudice has been caused by any non-compliance as to form. This objection is rejected.

Section 5(1)(b) Supreme Court Act

7. In regard to an application made pursuant to s. 5(1)(b) Supreme Court Act, I reproduce the following passage, relied upon by the respondents, from Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [24] - [26] with which, I respectfully agree:

"24. An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge: Peter Makeng v Timbers (PNG) Limited (2008) N3317 (Injia DCJ, as the Chief Justice then was). ......

25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focussed on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice? There is nothing in the text of the provision which requires an applicant for such an order to demon strate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.

26. Identifying the claims of the parties does not entail reaching any final conclusion on the merits of the claim advanced by the applicant for the interim order, only that the applicant has an arguable case. The claims are to be found in the grounds specified in the notice of appeal or, as the case may be, application for leave to appeal and in the bases upon which those grounds are contested. Where the claim of the applicant appears to strongly arguable, even comparatively minor prejudice might warrant the making of an interim order (and the converse may also warrant the making of an interim order in the circumstances of a particular case). What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case."

The claims of the appellant

8. The respondents' submit that a summary of the appellant's claims, being the grounds in the Supreme Court motion, are that the warrant of arrest was not, "effectively" and "legally" withdrawn by the respondents', that the District Court does not have jurisdiction to withdraw the warrant of arrest and that the primary judge fell into error in finding that the application for leave to apply for judicial review would serve no utility and so his s. 37 Constitutional rights were breached.

District Court jurisdiction

9. The respondents' submit in regard to the claim that the District Court does not have jurisdiction to withdraw a warrant of arrest, that to the contrary, it does. Consequently, the applicant does not have an arguable case on this point it is submitted. They cite the Supreme Court decision of Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388 in which at 64, the Court stated that the Police Commissioner, ".... would need to make an application to the court that issued the warrant, to withdraw, set aside or dissolve the warrant."

10. The appellant submits that the Supreme Court was referring to the Police Commissioner only and not the District Court and its jurisdiction. The District Court is created by statute and has no jurisdiction to order an act unless the provision of an enactment specifically provides. There is no specific provision that gives the District Court the jurisdiction to withdraw a warrant of arrest, it is submitted.

11. I concur with the submissions of the appellant on this point. The District Court is an inferior court created by statute. It may only act if authorised to do so. I am satisfied that the appellant has an arguable case on this point.

Civil and criminal jurisdiction

12. The respondents' submit that the appellant is attempting to halt a police investigation and criminal processes and procedures, by way of a civil proceeding, which is not permitted. They rely upon the Supreme Court case of Eremas Wartoto v. The State (2015) SC1411. In that case the Supreme Court dismissed an application for a permanent stay of criminal proceedings.

13. I note however, that in the judgment of Sakora J and Kandakasi J (as he then was), at [56], reference is made to an exception to it being inappropriate, an abuse and improper for an accused to invoke the civil jurisdiction in regard to criminal matters. That exception is in regard to judicial review. In this instance, the appellant is appealing against orders made in a judicial review proceeding which concerned criminal matters.

14. I refer...