Peter O’Neill v Pondros Kaluwin

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 January 2015
• Citation: (2015) N5843
• Court: National Court
• Year: 2015
• Judgement Number: N5843

Full : OS NO 810 of 2014; Peter O’Neill v Pondros Kaluwin, in his capacity as Public Prosecutor of Papua New Guinea and the Leadership Tribunal comprising, the Right Honourable Sir Peter Blanchard KNZM PC,the Honourable John Von Doussa AO QC and the Honourable Salatiel Lenalia (2015) N5843

National Court: Cannings J

Judgment Delivered: 8 January 2015

N5843

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 810 0F 2014

PETER O’NEILL

Plaintiff

V

PONDROS KALUWIN, IN HIS CAPACITY AS

PUBLIC PROSECUTOR OF PAPUA NEW GUINEA

First Defendant

THE LEADERSHIP TRIBUNAL COMPRISING

THE RIGHT HONOURABLE SIR PETER BLANCHARD KNZM PC,

THE HONOURABLE JOHN VON DOUSSA AO QC AND

THE HONOURABLE SALATIEL LENALIA

Second Defendant

Waigani: Cannings J

2015: 7, 8 January

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

INJUNCTIONS – interim injunctions – orders sought to restrain Public Prosecutor from referring matter to a leadership tribunal, continuing proceedings under Leadership Code – order sought for stay of leadership tribunal proceedings – relevant considerations to take into account when determining whether such orders should be granted.

The plaintiff on 20 November 2014 commenced proceedings by originating summons, seeking declarations and injunctions regarding the decision of the Public Prosecutor to refer him to a leadership tribunal on a matter of alleged misconduct in office. The plaintiff sought, in relation to the Public Prosecutor: declarations that the Public Prosecutor is not entitled to refer that matter to the tribunal and is not entitled to bring such proceedings against him, and a permanent injunction restraining the Public Prosecutor from referring that matter to a tribunal and from continuing proceedings concerning that matter. The plaintiff also sought, through an amended originating summons, in relation to the tribunal: a declaration that it is not entitled to inquire into and determine that matter and a permanent stay of the tribunal’s proceedings concerning the matter. After the appointment of the tribunal and prior to the scheduled commencement of its proceedings, 26 January 2015, and prior to commencement of the trial on the amended originating summons, the plaintiff filed on 6 January 2015 an amended notice of motion seeking two general sorts of orders: First, referral of constitutional questions to the Supreme Court under Section 18(2) of the Constitution. Secondly, interim injunctions to restrain the Public Prosecutor from proceeding with the matter and a stay of the leadership tribunal proceedings, pending final determination by the Supreme Court of various constitutional issues the plaintiff wants resolved. The Public Prosecutor opposed the making of both sorts of orders, arguing that the amended notice of motion was an abuse of process, as the question of whether any constitutional questions should be referred to the Supreme Court was properly a matter for the tribunal, which is the proper forum in which the question of referral to the Supreme Court of any constitutional questions should be raised, and the application for referral of constitutional questions, injunctions and a stay of the tribunal’s proceedings was simply an attempt to prevent the tribunal from convening on 26 January 2015. This was the hearing of the notice of motion filed 9 December 2014.

Held:

(1) The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law, and, by Section 18(2) obliges the National Court, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

(2) Questions of constitutional interpretation and application have arisen in these proceedings, viz whether the Public Prosecutor, having had a matter of alleged misconduct in office referred to him by the Ombudsman Commission under Section 29(1) of the Constitution and Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership, is permitted to: (a) seek further evidence from the Commission before considering whether that the matter should be proceeded with; and (b) amend the matter that he proceeds with by for example adding to or varying the allegations of misconduct in office that relate to the matter referred to him by the Commission; and whether, if (a) or (b) is answered in the negative, a leadership tribunal would have jurisdiction in circumstances in which the Public Prosecutor refers a matter to the tribunal after, in fact, having done either of those things he is not permitted to do.

(3) None of those questions is (a) trivial, (b) vexatious or (c) irrelevant, in that they: (a) are not frivolous or unarguable or so simple and straightforward that they do not require interpretation, (b) have not been raised for any obviously improper motive or for the purpose of obfuscation or in a manner that is an abuse of process, (c) have not been determined previously or have no bearing on the outcome of the trial of the amended originating summons or are an unnecessary duplication of questions already referred to the Supreme Court for determination.

(4) The Court was therefore obliged to refer the questions to the Supreme Court.

(5) The primary considerations to be taken into account when the Court decides how to exercise its discretion whether to grant an interim injunction are: (a) are there serious questions to be tried and does an arguable case exist? (b) has an undertaking as to damages been given? (c) would damages be an inadequate remedy if the interim injunction is not granted? (d) does the balance of convenience favour the granting of the interim injunction? (e) do the interests of justice favour granting the interim injunction?

(6) Here: (a) there are serious questions to be tried and the plaintiff has a serious not merely speculative case; (b) an undertaking as to damages has been given; (c) damages would be an inadequate remedy; (d) the balance of convenience favours granting an injunction as it would reduce the risk of time, resources and effort of the Public Prosecutor and the tribunal being wasted in the event that the Public Prosecutor and the tribunal continue to perform their constitutional powers and functions, only to have the exercises of those powers and functions ruled by the Supreme Court (and perhaps by the National Court) unconstitutional; and (e) the interests of justice favour the grant of the injunction as it will not operate as a permanent restraint on the Public Prosecutor or unnecessarily encroach on the exercise of his constitutional independence, and no persons or bodies including the Public Prosecutor, the tribunal and the People of Papua New Guinea will be unduly prejudiced by its being granted.

(7) The Court therefore as a matter of discretion granted the interim injunction against the Public Prosecutor.

(8) It followed as a matter of course that the tribunal’s proceedings should be stayed.

(9) Thus the orders sought for referral of constitutional questions to the Supreme Court and for interim injunctions to restrain the Public Prosecutor from proceeding with the matter and a stay of the leadership tribunal proceedings were granted. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Alois Kingsley Golu v Regett Marum (2013) N5104

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Phoebe Sangetari (2011) SC1118

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

Hon Patrick Pruaitch MP v Chronox Manek (2011) SC1093

Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052

Isaac Lupari v Sir Michael Somare (2008) N3476

Lowa v Akipe [1992] PNGLR 399

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

O’Neill v Kaluwin (2015) N5839

O’Neill v Ombudsman Commission OS (JR) No 383 of 2014, 03.12.14, unreported

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

Re Public Prosecutor’s Power to Request the Chief Justice to appoint a Leadership Tribunal (2008) SC1011

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

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

NOTICE OF MOTION

This was an application for referral of constitutional questions to the Supreme Court and for interim injunctions and a stay of proceedings of a leadership tribunal.

Counsel

M M Varitimos QC & P Tabuchi, for the Plaintiff

N B Kubak & G B Kubak, for the First Defendant

R Yansion, for the Second Defendant

8th January, 2015

1. CANNINGS J: The Public Prosecutor proposes to refer a matter concerning the plaintiff, Peter O’Neill, the Prime Minister, to a...