The Attorney–General Michael Gene, The Independent State of Papua New Guinea and Internal Revenue Commissioner, Mr David Sode v Dr Pirouz Hamidian–Rad (1999) SC630

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kapi DCJ, Sheehan J, Salika J
• Judgment Date: 27 August 1999
• Citation: [1999] PNGLR 444
• Judgment Number: SC630
• Year: 1999
• Docket Number: SCA No 73 of 1999

Supreme Court: Kapi DCJ, Sheehan J, Salika J

Judgment Delivered: 27 August 1999

SC630

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA No. 73 of 1999

BETWEEN:

THE ATTORNEY GENERAL

MICHAEL GENE

First Appellant

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Second Appellant

AND:

INTERNAL REVENUE

COMMISSIONER, MR DAVID SODE

Third Appellant

AND:

DR. PIROUZ HAMIDIAN-RAD

Respondent

Waigani: Kapi DCJ., Sheehan J., Salika J

24th & 27th August 1999

Practice and Procedure — Judicial review under O 16 of the National Court Rules — Failure to obtain leave is abuse of process of the Court.

H.D. Polume-Kiele for the first and second appellant

G. Sheppard for the third appellant

P. Parkop for the respondent

27th August 1999

BY THE COURT: This is an appeal against the decision of the Chief Justice dated 13th August 1999 wherein he granted permission for the respondent to leave the country and to return on the 29th September 1999.

In view of the urgency of the matter, the Court expedited the hearing of the appeal. We quashed the decision of the Chief Justice on the 27th August and remitted the matter back to the National Court to be dealt with in accordance with the procedures set out under O 16 of the National Court Rules (Rules) with full reasons to be published at a later date. This we now do.

It is helpful to set out the narrative of events leading up to the appeal. The respondent, a non-citizen, was employed as an economic advisor to the National Government under the terms of a contract of employment. It is not necessary to set out the full details of the contract of employment for the purposes of this appeal.

The Secretary of Foreign Affairs issued an administrative ban on preventing the respondent from leaving the country. The respondent obtained a National Court Order on the morning of 24th July 1999 effectively lifting the ban to travel and restrained the Secretary for Foreign Affairs, Minister for Foreign Affairs, their agents and employees from preventing the respondent from leaving the country.

After having obtained the orders, the respondent proceeded to leave the country on an Air Niugini flight bound for Singapore on the same afternoon. However, the Secretary and the Minister for Foreign Affairs obtained a National Court Order preventing the respondent from leaving the country. The Air Niugini flight was prevented from leaving and the respondent was taken off the flight pursuant to this order.

On the 26th July 1999, the Internal Revenue Commissioner issued a notice of assessment on the respondent for payment of income tax under the provisions of the Income Tax Act.

On the 27th July 1999, the Commissioner for Internal Revenue Commission (the third appellant) issued a direction to all carriers under s 266 of the Income Tax Act directing them not to carry the respondent outside the country.

Also on the 27th July 1999, the respondent obtained a National Court Order effectively setting aside the earlier National Court Orders restraining him from leaving the country obtained on the afternoon of 24th July 1999.

The only obstacle effectively preventing the respondent from leaving the country was the direction given under s 266 of the Income Tax Act.

In the mean time, the respondent was arrested by the police for false pretence and misappropriation. The respondent appeared in the District Court in respect of these charges on 29th July 1999 and was allowed out on bail. On 31st July 1999, the respondent applied for and obtained permission under s 23 of the Bail Act to leave the country pending the determination of criminal charges.

On the 6th August 1999, the respondent filed a motion in the National Court seeking amongst others, an order to restrain the third appellant from preventing the respondent from leaving the country. The motion was heard by the Chief Justice and he effectively nullified the direction given under s 266 of the Income Tax Act and gave permission for the respondent to leave the country and return on 26th September 1999.

The appellants appealed against the whole of the decision of the Chief Justice. It is this appeal which came before us for determination. The grounds of appeal are as follows:

"(1) The learned trial judge erred in law in falling to uphold the appellants' submission that the Notices issued under Section 266 of the Income Act could only be validity challenged by way of a judicial Review under Order 16 of the Rules of the National Court, and the Respondent had failed to demonstrate any good reasons for departing from the requirement of Order 16.

(2) the learned trial judge erred in law in failing to require the Respondent to comply with the Notice issued by the Third Appellant pursuant to Section 266 of the Income Tax Act.

(3) The trial judge erred in law in failing to order the immediate Execution of the Notice issued by the Third Appellant on the Westpac Bank (PNG) Limited pursuant to Section 266 of the Income Tax Act.

(4) The learned trial judge erred in law in failing to make orders to protect the revenue of the Second Appellant.

(5) The learned trial judge erred in law in failing to properly exercise his discretion in that:-

(i) he failed to give me weight to the Appellants' submission as to the likelihood of the Respondent not returning to...