Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kiniwi v Auali and The State [1998] PGNC 42; N1722 (9 June 1998)

Unreported National Court Decisions

N1722

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 76 OF 1998
PETER KOP KINIWI - PLAINTIFF
V
VINCENT AUALI - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT

Waigani

Woods J
12 May 1998
9 June 1998

FREEDOM OF INFORMATION - Constitution Section 51 - right to seek disclosure - cause of action.

Counsel

J Kil for the Plaintiff

S Carter for the First Defendant

C Makail for the Second Defendant

9 June 1998

WOODS J: The Plaintiff has filed an Originating Summons seeking declarations concerning the accountability of the First Defendant as the Member of Parliament for the Tambul-Nebilyer Open Electorate in the National Parliament for monies granted to him and used by him for the Electorate.

The defendants have applied to have the proceedings dismissed as being res judicature and alternatively under Order 12 Rule 40 as disclosing no reasonable cause of action, or being frivolous or vexatious or being an abuse of the process of the Court. So what is the cause of action. It is seeking orders within the right given in the Constitution Section 51 – Right to freedom of information.

(1) ټ Ecery entizen has thas the right to reasonable access to official documents. Subject only to the need for such secrecy as is reasonably justifiable in a demic so in rt of - (here lists certain matters)

(

(2)&#12) &##160; Provisiovision shalm be byde by law to establish procedures by which citizens may obtain ready access to official information.

The plaintiff is claiming as a citizen e deft&#82electorectorate for the access to the relevant dont documencumentation and acquittals under that constitutional provision as he has tried to obtain details of the relevant acquittals from the Government Department responsible for those matters and also as there is no relevant law made by the Parliament under subsection 3 for this access to be readily available. I need not go into other evidence already filed in the matter which relates to specific allocation of such funds by the Member.

The defendants are first of all relying on a judgement given in December 1996 titled Kil v Auali & Os Unreported N1492 where the Court refused a similar application on the argument that the courts cannot interfere in Administration decisions of the Executive. The Court then suggested that there were various governmental authorities such as the Ombudsman Commission, Auditor General, Finance Department who have duties to perform in these areas. The Court suggested that a party has to go through those systems first as being the first remedies before the plaintiff can come to the court. Therefore it is submitted that the matter before me now has already been adjudicated upon. However the substance of the claim has not been considered, only the principle whether there is a cause of action. Here before me the plaintiff has come as a citizen and claims that he was to be a beneficiary of certain aid or assistance and is calling the member to account. And he claims that he has that right under Section 51 of the Constitution. And I am not sure that an ordinary citizen necessarily has the benefit of the Government institutions like the Auditor-General, the Department of Finance, the Ombudsman Commission to monitor his interests in the terms of Section 51. If there is already sufficient accessibility and performance by such Government instrumentalities why is the public being beseiged with calls for new institutions such as a Commission against Corruption. As a Judge I cannot be ignorant of what is seen in the Press and otherwise.

It may be that the Defendants will be able to acquit fully for what they have done, but that is not the question before me at present, but it is a risk that the applicant is taking. The National Court is not necessarily restricted to the causes of action that are usually found in a common law system, the National Court has an unlimited jurisdiction and this jurisdiction includes many matters which originate in rights and responsibilities referred to in the Constitution. We cannot assume that because it is now over 20 years since the Constitution came into being we have set all the different possible approaches to the Court into concrete and there can be nothing new. I am satisfied that the plaintiff may have a legitimate cause of concern and may have a right to pursue this concern in the manner he has and that this may be a matter that comes within Section 51 of the Constitution. I cannot say that this process is frivolous or an abuse of the process of the court. Whether he still has a cause of complaint after all the evidence is in is a risk he is taking.

I dismiss the defendant’s motions.

Lawyer for the Plaintiff: J Kil

Lawyer for the First Defendant: Pato Lawyers

Lawyer for the Second Defendant: Solicitor General