Patrick Pruaitch v Chronox Manek

• Jurisdiction: Papua New Guinea
• Judge: Manuhu, J, Murray, J & Pitpit, J
• Judgment Date: 09 June 2017
• Citation: (2017) SC1593
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1593

Full : SCA No 1 of 2015; Hon Patrick Pruaitch v Chronox Manek, John Nero & Pheobe Sangetari, 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 (2017) SC1593

Supreme Court: Manuhu, J, Murray, J & Pitpit, J

Judgment Delivered: 9 June 2017

SC1593

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 1 OF 2015

BETWEEN:

HON. PATRICK PRUAITCH

Appellant

AND:

CHRONOX MANEK, JOHN NERO & PHEOBE SANGETARI, 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: Manuhu, J, Murray, J & Pitpit, J

2015: 16th December

2017: 9th June

PRACTICE AND PROCEDURE – Discovery – Appellant sought discovery of Ombudsman Commission’s investigation documents – National Court Rules, Order 9 Rules 5, 7 & 16 – Public Interest – Private Interest – Maturity of cause of action – Merits of cause of action.

Cases cited

Wartoto v. The State (2015) SC1411,

Nilkare v Ombudsman Commission [1999] PNGLR 333,

Albert Karo v Ombudsman Commission of PNG [1995] PNGLR 547

The State v Paul Loi (2009) N4058,

Hon Pruaitch v Manek (2009) N3903.

Counsel:

Mr. M Varitimos & Mr. P Tabuchi, for the Appellant

Mr. M Efi, for the First Respondent

Mr. L Kandi, for the Second, Third & Fourth Respondents.

9th June, 2017

1. BY THE COURT: INTRODUCTION: This is an appeal against a ruling by Kassman J refusing a motion for discovery under Order 9 Rules 5 and 7 of the National Court Rules. The motion was made in conjunction with a proceeding commenced by way of an originating summons (“The OS proceeding”) filed by the Appellant where he sought, among others, a declaration that his referral was unconstitutional, in excess of jurisdiction and therefore illegal, invalid and of no force or effect because the Ombudsman Commission (“The Commission”) did not accord to him the right to be heard before making the referral.

The Facts

2. The Appellant, as a Leader for the purpose of the Leadership Code, was investigated for misconduct in office, including double dipping of transport operational costs. In the course of the investigation, he appeared before the Commission and made oral submissions in response to the allegations. The Appellant on 30 November 2006 submitted his detailed written response to the allegations.

3. The Commission then summoned Mr. Kanawi Pouru in his capacity as Managing Director of PNG National Forest Authority (“PNGNFA”) to give evidence and produce documents relevant to the investigations. Mr Pouru responded and produced documents in accordance with the summons.

4. The Commission then advised the Appellant on 22 July 2009 that there was evidence of misconduct in office and that he would be referred to the Public Prosecutor for prosecution. The referral was made and a tribunal was empanelled to deal with the allegations.

5. The crux of the substantive proceeding is that the Commission’s decision to refer and the eventual referral of the Appellant to the Public Prosecutor is flawed and invalid in that he was not accorded the right to be heard in relation to the materials that were subsequently produced by Mr. Pouru.

6. The motion then sought pursuant to Order 9 Rule 5 to discover “documents relating to the investigation”. In the alternative, the motion sought an order pursuant to Order 9 Rule 7 for the defendants to file an affidavit stating whether any minutes of meetings relating to any investigations into the allegations is or has been in their possession, custody or power and, if they have been but is not then in their possession, custody or power, when they parted with them and what has become of them. Interestingly, the Appellant did not specifically seek discovery of documents produced by Mr. Pouru.

Grounds of appeal in a nutshell

7. Public interest appears to be the main reason for the Trial Judge’s refusal of the motion. The seven grounds of appeal, in a nutshell, is that the motions Judge failed to consider the submissions and the legal principles in relation to discovery pursuant to Order 9 Rules 5 and 7 and erroneously refused the motion.

Main Issue

8. In the circumstances, the decisive issue, in our opinion, is whether discovery, disclosure or inspection of documents in question would be injurious to the public interest? This is a procedural law issue.

Relevant procedural law

9. Order 9 Rule 16 of the National Court Rules provides that discovery and inspection of documents “does not affect any rule of rule which authorises or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest”.

10. What is the rule of law? The rule of law is the principle that all persons and institutions are subject to and accountable to law that is fairly applied and enforced. Public interest is welfare or wellbeing of the general public. The relation between these two principles is explained, as an example, in the criminal case of The State v Paul Loi (2009) N4058, by His Honour Batari J, thus:

“A decision to call evidence is such a heavy responsibility not to be taken lightly by prosecuting Counsel. The election must be based on a duty to act fairly and in the interest of promoting criminal justice administration. It must be guided by proper principles and application of the “rule of law.” The maintenance of the “rule of law” requires the involvement of a fair, impartial prosecutor, consistent with ethical considerations of his role and the practice and procedure of the Court, to properly discharge his duty both to the State and the Court. At stake is the public interest which is to see that those charged with serious criminal offences such as unlawful killings are properly prosecuted in a Court of Law. The public interest represented by the State Prosecutor demands that, Counsel takes all reasonable steps to secure and adduce evidence as a general rule before prosecution case is closed. After all, that is the paramount consideration of a fair trial under s. 37(3) of the Constitution…”

Application of procedural law to the facts

11. In this case, the Appellant seeks discovery of documents relating to the investigation and of meeting minutes. Interestingly, the Appellant does not seek discovery of Mr. Pouru’s documents, which are the very basis for taking out the OS proceeding.

12. In relation to meeting minutes, we are unable to see the reasons why the Appellant wants to discover them. We take into account that under the Organic Law, investigations of the Commission are conducted in private. Such privacy would cover their discussions and deliberations in meetings. The Commission is not obliged, for that reason, to disclose its meeting minutes to the Appellant. In any case, meeting minutes are not evidence. It serves no useful purpose for meeting minutes to be provided to the Appellant.

13. In relation to “documents relating to the investigation” we note that the Appellant has the right to challenge the proceeding of the Commission but it is also in the public interest that the proceeding of the Commission, or the Leadership Tribunal, should not be compromised and tampered with. In this case, documents which are the subject of the motion are not mere records in the possession, custody or control of the Commission. They are materials obtained by law for a specific purpose, that is, to present to the Leadership Tribunal as evidence. Until they are presented, it is not in the public interest for those materials to be released to and used by the Appellant in an irrelevant proceeding.

14. We are also of the view that it is not in the public interest for proceedings of the Commission to be subjected to other civil proceedings. Such is the growing undesirable judicial development in the country which has to be discouraged by proper exercise of discretion. In criminal cases, it was held in Wartoto v. The State (2015) SC1411, that the National Court sitting in its civil jurisdiction should not interfere with criminal proceedings. An accused person still has the right of protection of the law under Section 37 of the Constitution and he or she can still exercise the other avenues for redress available to him or her under the Criminal Justice System, the Criminal Code and Criminal Practice Rules.

15. In relation to proceedings under the Leadership Code, we are also of the view that the National Court in its civil jurisdiction should not interfere with proceedings of the process under the Leadership Code. Proceedings under the Leadership Code are sanctioned by an Organic Law - not any ordinary Act of Parliament. For that...