PNG Lotteries Association Inc v Hon. Arthur Somare

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 19 May 2008
• Citation: (2008) N3377
• Court: National Court
• Year: 2008
• Judgement Number: N3377

Full : OS NO 142 of 2008 (JR); PNG Lotteries Association Inc & Anor,First Plaintiffs and PNG Amusement Ltd, Gold Mercahnts Ltd, Numbers Loto Ltd, Pacific Lotto Ltd and Fortune (PNG) Ltd v The Hon. Arthur Somare Minister for Public Enterprises and National Gaming Control Board and Simon Sanaken Acting Chief Executive Officer and The Independent State of Papua New Guinea, Fourth Respondent (2008) N3377

National Court: Injia DCJ

Judgment Delivered: 19 May 2008

N3377

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 142 OF 2008 (JR)

BETWEEN:

PNG LOTTERIES ASSOCIATION INC & ANOR

First Plaintiffs

AND:

PNG AMUSEMENT LTD, GOLD MERCAHNTS LTD, NUMBERS LOTO LTD, PACIFIC LOTTO LTD AND FORTUNE (PNG) LTD

Second Plaintiffs

AND:

THE HON. ARTHUR SOMARE, MINISTER FOR PUBLIC ENTERPRISES

First Respondent

AND:

NATIONAL GAMING CONTROL BOARD

Second Respondent

AND:

SIMON SANAKE, ACTING CHIEF EXECUTIVE OFFICER

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Injia DCJ

2008: 19 May

JUDICIAL REVIEW – PRACTICE AND PROCEDURE – Interim Injunctions – Application for interim injunctions following grant of leave to apply for judicial review – Relevant principles on grant of interim injunctions – Serious issues to be tried – Determination of arguable case at leave stage – Applicant must show more than an arguable case – Principles discussed – National Court Rules, O16 r 3(8).

Cases Cited:

Ombudsman Commission of Papua New Guinea v The Hon. Justice Sakora & Ors (1996) N1720

Cornelius Ape v The State & Anor (1996) N1498

Nakun Pipoi v Minister for Lands (2001) N2120

The State v National Land Commission (2004) N2918

Peter Tupa v Sam Inguba (2006) N3171

Yama Group of Companies Ltd v PNG Power Ltd (2005) N2831

Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers’ and Seamen’s Union (1982) N392

Craftworks Niugini Pty Ltd v Allan Mott [1988] PNGLR 572

AGC Pacific (NG) Ltd v Andersen (2000) N2062

Golobadana No 35 Ltd v Bank South Pacific Ltd (2002) N2309

Counsel:

R Saulep, for the Plaintiff

C Raurela, for the Second and Third Defendants

T Tanuvasa, for the Fourth Defendant

K Isari, for the Police Commissioner

19 May, 2008

1. INJIA DCJ: Following grant of leave to apply for judicial review on 18th April 2008, I granted interim orders ex parte under O16 r3 (8) of the National Court Rules. The defendants now apply to set aside those orders.

2. All parties filed affidavits which were relied upon and extensive submissions, both written and oral, were made by counsel representing the parties and I reserved my ruling. I have considered those submissions. The main issue is whether the interim orders should be set aside.

3. The principles on grant of interim injunctions and extension of or discharge of interim injunctions are the same. The leading case is the decision of Kapi DCJ (as he then was) in Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers’ and Seamen’s Union (1982) N392. The principles set out in that case were approved by the Supreme Court in Craftsworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572. The main conditions to be satisfied by an applicant are:

1. There are serious issues to be tried.

2. The balance of convenience favours the granting or continuation of the interim injunctions.

3. If damages is an appropriate remedy, the interim injunction should be refused or set aside.

See AGC Pacific (NG) Ltd v Andersen (2000) N2062 and Golobadana No.35 Ltd v Bank South Pacific Ltd (2002) N2309.

Serious Issues to be tried

4. This condition is contested. In ordinary civil proceedings where interim injunction is sought, the seriousness of the issue to be tried is a separate issue to be determined. In judicial review proceedings however, where leave to apply for judicial review is granted under O16 r3, the arguable nature of the issues to be tried is determined at that stage, as it was done in this case. Does it follow that the plaintiff has serious issues to be tried on the substantive review for purpose of an application for interim orders under O16 r3(8)? The case law shows that this issue has not been determined. Cases show however that the arguable nature of the cases in fact involves consideration of the question of whether the applicant for leave to apply for judicial review has serious legal and other issues to be tried at the hearing of the substantive application: See Ombudsman Commission of Papua New Guinea v The Hon. Justice Sakora & Ors (1996) N1720 (per Amet CJ), Cornelius Ape v The State & Anor (1996) N1498 (per Lenalia AJ, Nakun Pipoi v Minister for Lands (2001) N2120 (per sawong J), The State v National Land Commission (2004) N2918 (per Sawong J), Peter Tupa v Sam Inguba (2006) N3171, per Davani J).

5. I would think that although the two issues in some extent overlap in the sense that they both refer to the arguable nature of the issues to be tried at the hearing of the substantive matter, the seriousness of the issues to be tried is a much higher test than the arguable nature of the case. In other words, an applicant for judicial review who seeks a stay or interim injunction under O16 r3(8) must show something more than an arguable case, a case which is serious enough, that the case stands a “high probability of success” at the trial: See Yama Group of Companies Ltd v PNG Power Ltd (2005) N2831, per Lay J.

6. In this case, the primary basis of the challenge in these judicial review proceedings is the decision of the Minister for Public Service (the Minister) to advise the Head of State to declare the lottery game described as “High/Low Lottery” to be an unlawful game and the subsequent declaration to that effect by the Head of State made under s5(3) of the Gaming Control Act 2000. Subsequent actions taken by the National Gaming Control Board (the Board) to enforce the declaration with the assistance of police is also challenged but that appears to be secondary or consequential to the primary basis of the challenge. Although s 5(3) of the Act says the Head of State “may” declare a game to be unlawful, implying as discretionary, it appears the Head of State acts in accordance with a recommendation of the Minister. The date on which the Minister advised the Head of State and the nature of the advise which was given, is not pleaded in the Court documents filed, in particular the Originating Summons and the Statement filed under O16 r3, and also in the affidavit material filed by the plaintiffs. Whilst it is often difficult for ordinary persons and private companies to have access to such information, the Minister’s advice which is usually in document form, is a public document and if the plaintiffs were to have sought a copy of this document, it could be provided to him by the Minister’s office, the National Gaming Board or even the Office of the Head of State. The onus is on the plaintiffs to provide that information. This information will no doubt be discovered before trial and produced in evidence but that is another matter. For purpose of maintaining the interim orders in this case, that information would be relevant and critical in determining whether the plaintiff has serious issues to be tried at the substantive hearing. From that information, this Court would asses the legality, validity or propriety of...