The Independent State of Papua New Guinea and the Chief Migraiton Officer, Rabura Mataio v the Transferees and Amnesty International (2014) SC1348

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 02 June 2014
• Court: Supreme Court
• Citation: (2014) SC1348
• Docket Number: SCA NO 31 OF 2014
• Year: 2014
• Judgement Number: SC1348

Full Title: SCA NO 31 OF 2014; The Independent State of Papua New Guinea and the Chief Migraiton Officer, Rabura Mataio v the Transferees and Amnesty International (2014) SC1348

Supreme Court: Makail, J

Judgment Delivered: 2 June 2014

SC1348

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 31 OF 2014

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND

THE CHIEF MIGRAITON OFFICER, RABURA MATAIO

Second Appellant

AND

THE TRANSFEREES

First Respondent

AND

AMNESTY INTERNATIONAL

Second Respondent

Waigani: Makail, J

2014: 16th April & 02nd June

PRACTICE & PROCEDURE – Application for leave to appeal – Proposed appeal against refusal by trial judge to disqualify – Grounds of – Apprehended bias – Trial judge’s conduct and association – Inquiry into allegations of breaches of human rights of asylum seekers – Inquiry commenced by National Court own its own initiative – No prescribed procedure for inquiry – Trial judge issued ad hoc directions for conduct of inquiry – Trial judge fixed time-table for inquiry – Appointment of medical expert witness who is a personal friend of Trial judge of long standing – Parties not given opportunity to be heard on the ad hoc directions and appointment of medical expert witness – Breach of natural justice – Arguable case established – Constitution – ss. 57, 59 & 185 – Supreme Court Act – s.14(3)(b).

PRACTICE & PROCEDURE – Application to extend stay order – Stay of National Court proceedings – Inquiry in allegations of breaches of human rights of asylum seekers – Inquiry commenced by National Court own its own initiative – Trial judge’s conduct and association – Breach of natural justice – Arguable case established – Necessary for inquiry to be stopped – Supreme Court Act – s. 19.

Cases cited:

Papua New Guinea cases

Boyepe Pere v. Emmanual Ningi (2003) SC711

Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853

Wawoi Guavi Timber Company Ltd v. Mondiai (2007) SC1028

Chan v. Ombudsman Commission [1998] PNGLR 240

Matiabe Oberia v. Chief Inspector Charlie (2005) SC801

Liu v Emoto (2009) SC 1032

Sekesu Sisapi Land Group (Inc.) v. Turama Forest Industries Ltd (2008) SC976

Patrick Pruaitch v Chronox Manek (2011) SC1134

Ramu Nico Management (MCC) Limited v. Koroma (2009) SC1046

Gobe Hongu Limited v National Executive Council (1999) N1964

Yama v Bank of South Pacific Limited (2008) SC921

MVIT Ltd v. Yama Security Services Limited (2009) SC 1004

Re Assistant Registrar, Philip Kaumba (2004) N2763

Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266; N741

Robinson v. The State [1986] PNGLR 307

Toll v. the State (1989) SC378

Consort Express Line Limited v. Namane (2001) N2147

Sir Julius Chan v. The Ombudsman Commission (1998) SC607

Kwame Okyere Boateng v. The State [1990] PNGLR 342

Sela Gipe v. State [2000] PNGLR 271

Herman Joseph Leahy (2006) SC9681

Patrick Pruaitch v. Chronox Manek (2012) SC1168

Lysenko v. National Airline Commission [1989-90] PNGLR 69

National Airline Commission v. Lysenko [1990] PNGLR 226

SCR No. 3 of 2005; Public Prosecutors Power (2008) SC1011

Gelu v. Somare [2008] PNGLR 279

Nui v. Tanda (2004) N2765

Pato v. Manjin (1999) SC622

Kamit v. Cooke (2003) N2369

Kakaraya v. Ombudsman Commission (2003) N2400

Overseas cases

Webb v. R (1994) 181 CLR 41

AZ v. The Age (No. 2) (2013) VSC 346

Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337

Saxmere Company Ltd v. Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35

Smits v. Roach [2006] HCA 36; (2006) 80 ALJR 1309

Porter v. Magill [2008] 2 AC 357

Counsel:

Mr I Molloy QC with Mr T Boboro, for Applicants

Mr F Pitpit, for First Respondent

Ms M Peipul, for Second Respondent

RULING

02nd June, 2014

1. MAKAIL, J: These are applications for leave to appeal against a decision of Cannings J made on 17th March 2014 refusing to disqualify himself from hearing proceedings HR01 No. 1 of 2014 in the National Court and for an extension of a stay order of those proceedings pending appeal. At the hearing of the applications, counsel for the applicants and the second respondent provided written submissions and spoke to them and the Public Solicitor representing the Transferees made oral submissions. I have considered them together with the additional material provided for and against the applications and this is my ruling.

2. On 24th February 2014, the National Court presided by Cannings J commenced those proceedings “on its own initiative to enforce the guaranteed rights and freedoms of those persons, those guaranteed rights and freedoms including:

· the right to freedom based on law under Constitution, Section 32(2);

· the right to freedom from inhuman treatment under Constitution, Section 36(1);

· the right to the full protection of the law under Constitution, Section 37(1);

· the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17);

· the right of persons under voting age who are in custody to be separated from other persons in custody and be accorded treatment appropriate to their age under Constitution, Section 37(19);

· the right to liberty under Constitution, Section 42(1);

· the right of any person who is detained to be informed promptly, in a language that he or she understands, of the reasons for his or her detention and of any charge against him or her, to be permitted wherever practicable to communicate without delay and in private with a member of his or her family or a personal friend, to be permitted whenever practicable to communicate without delay and in private with a lawyer of his or her choice, to be given adequate opportunity to give instructions to a lawyer of his or her choice in the place of detention and to be informed immediately on his or her detention of those rights, under Constitution, Section 42(2);

· the right of any person who is detained to complain to the National Court that he or she is unlawfully or unreasonably detained, under Constitution, Section 42(5).........”: see Notice of Commencement of Proceedings and Summons (Peter Kuman’s affidavit annexure “PK1”)

Leave to Appeal

3. Leave is required because the appeal is from an interlocutory judgement not falling within any of the exceptions referred to in s. 14(3)(b) of the Supreme Court Act Ch. No. 37.

4. The principles applicable on an application for leave to appeal are well established. In Boyepe Pere v. Emmanual Ningi (2003) SC711, the Supreme Court said the reason for leave is “to ensure that only meritorious cases go to the Supreme Court on appeal... If the court is satisfied there is merit in the proposed grounds of appeal....the appellant should be granted leave to allow to proceed to lodge his appeal.”

5. Similar, in Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853, the Court said “the purpose of the requirement for leave to appeal under s.14 of the Supreme Court Act is to ensure only meritorious cases go to the Court on appeal. It is clear law now that, in order to obtain leave of this Court, an appellant must satisfy the Court that, there is a meritorious and arguable case.”

6. Other considerations may be relevant, particularly where the application for leave is from a discretionary decision on a matter of procedure within the Court’s jurisdiction, and unlikely to have any bearing on the final outcome. In this regard in Wawoi Guavi Timber Company Ltd v. Mondiai (2007) SC1028 (application for leave to appeal against a grant of leave to apply for judicial review), and the cases there cited, including Chan v. Ombudsman Commission [1998] PNGLR 240 (application for leave to appeal against orders in respect of discovery and affidavit evidence), and Matiabe Oberia v. Chief Inspector Charlie (2005) SC801 (application for leave to appeal against a refusal to enter default judgement, and to extend time for filing a defence. See also Liu v Emoto (2009) SC1032 (valid exercise of discretion to enter default judgment). However, even where the appeal is form a discretionary decision on a matter of practice, the Court is not precluded from granting leave; it all depends on the circumstances; Sekesu Sisapi Land Group (Inc.) v. Turama Forest Industries Ltd (2008) SC976 (leave to appeal against a grant of leave to apply for judicial review).

7. In this case, the appeal raises issues of apprehended bias and breach of the rules of natural justice. The National Court decision is not a discretionary judgment on a mere matter of practice or procedure, but is fundamental to the court’s jurisdiction to hear and determine the proceedings and ultimately to any orders that may be made. It is similar to Patrick Pruaitch v. Chronox Manek (2011) SC1134 in which the proposed grounds of appeal also raised issues of apprehension of bias and denial of natural justice (see paragraph 42 of the judgment). The court there acknowledged that the grant of leave was discretionary, citing authorities such as Oberia, but found that it was appropriate that leave be granted (and there be an order for a stay)...