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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (HR) NO 8 0F 2015
THE HONOURABLE BELDEN NAMAH MP, MEMBER FOR VANIMO GREEN OPEN
Plaintiff
V
A TRIBUNAL COMPRISING THE HONOURABLE JUSTICE GOODWIN POOLE, SENIOR MAGISTRATE MARK SELEFKARIU AND SENIOR MAGISTRATE ERNEST WILMOT
First Defendants
PONDROS KALUWIN, PUBLIC PROSECUTOR
Second Defendant
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Defendant
Waigani: Cannings J
2015: 18, 20 November
PRACTICE AND PROCEDURE – application by plaintiff for a person to be added to proceeding, as a defendant – National Court Rules, Order 5, Rule 8 (addition of parties) – application by plaintiff to amend originating summons – National Court Rules, Order 8, Rules 50 (general) and 55 (mode of amendment: directions).
INJUNCTIONS – interim injunctions – orders sought to restrain members of a leadership tribunal from convening until determination of originating summons.
CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws: Constitution, Section 18 – whether a leadership tribunal obliged by Constitution, Section 18(2) to refer constitutional questions to Supreme Court – whether questions trivial, vexatious or irrelevant – whether National Court obliged to refer constitutional questions to the Supreme Court.
LEADERSHIP TRIBUNALS – whether proceedings ought to be stayed pending determination of a Supreme Court Reference under Section 18(2) of the Constitution
The plaintiff, a member of the National Parliament, commenced proceedings by originating summons in the National Court, seeking: (a) a declaration that a tribunal, which had been appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against him, had failed in its duty to refer constitutional questions to the Supreme Court; (b) an order that the National Court refer the constitutional questions to the Supreme Court; (c) an injunction to restrain the tribunal from conducting any proceedings; (d) a declaration that the tribunal's failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff's right to the full protection of the law under Section 37(1) of the Constitution; and (e) a declaration that the tribunal's failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution. The plaintiff then applied by notice of motion to the National Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. The National Court, on 5 November 2015, refused to grant an injunction. The plaintiff, on 12 November 2015, filed another notice of motion, seeking the following orders: (1) that the Chief Justice be added as a party, as fourth defendant; (2) that leave be granted to further amend the originating summons; (3) that an injunction be granted restraining the members of the tribunal from proceeding in their inquiry; (4) that the National Court refer constitutional questions to the Supreme Court; (5) that the tribunal's proceedings be stayed pending a hearing and determination of the proposed Supreme Court Reference.
Held:
(1) The application for an order adding the Chief Justice as a defendant was granted, as a central issue underpinning the relief sought in the originating summons is whether the Chief Justice acted contrary to the Constitution and breached the plaintiff's human rights in the course of appointing the tribunal; and, for the purposes of Order 5, Rule 8(1) of the National Court Rules, his Honour ought to have been joined as a defendant and his Honour's addition as a defendant is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on.
(2) Leave was granted to further amend the originating summons as the amendment will enable the Court to determine the real questions in controversy; the amendment will cause no real prejudice or injustice to the defendants; the application for amendment is made bona fide; the defendants can be fairly compensated with costs; the plaintiff is not prevented by his conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings; the interests of justice favour the granting of leave; the proposed amendment is efficacious.
(3) An interlocutory injunction to restrain the tribunal members from proceeding in their inquiry was refused as it could not be said that there was an arguable case of a failure to comply with the duty under Section 18(2) as there was insufficient evidence that such questions had 'arisen' "in" the tribunal or that the tribunal had made a decision to refuse or decline or otherwise not to refer constitutional questions to the Supreme Court.
(4) The application for the National Court to refer constitutional questions to the Supreme Court was refused as such questions had not arisen in these proceedings and for the National Court to refer such questions at this stage would be to countenance an abuse of process by the plaintiff.
(5) A stay of the tribunal's proceedings was refused for similar reasons given for refusing to grant an interim injunction.
(6) In summary: the orders sought and described as (1) and (2) were granted and those described as (3), (4) and (5) were refused.
Cases cited
The following cases are cited in the judgment:
Alois Kingsley Golu v Regett Marum (2013) N5104
Application by Ila Geno (2014) SC1313
Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304
Haiveta v Wingti (No 1) [1994] PNGLR 160
Hon Belden Namah MP v A Tribunal, the Public Prosecutor & the Ombudsman Commission (2015) N6108
Isaac Lupari v Sir Michael Somare (2008) N3476
Kewa v Kombo (2004) N2688
Lowa v Akipe [1992] PNGLR 399
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Ombudsman Commission v Gabriel Yer (2009) SC1011
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
Re Petition of MT Somare [1981] PNGLR 265
Re Reference by Ken Norae Mondiai (2010) SC1087
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v Aoae [1982] PNGLR 379
Tarsie v MCC (2010) N4141
The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273
Vincent Kaupa v Simon Poraituk (2008) SC955
Zachary Gelu v Sir Michael Somare MP (2008) N3526
NOTICE OF MOTION
This was an application for addition of a party, leave to amend an originating summons, an interlocutory injunction, referral of constitutional questions to the Supreme Court and a stay of leadership tribunal proceedings.
Counsel
G J Sheppard & P Tabuchi, for the Plaintiff
L P Kandi, for the First and Second Defendants
M Efi, for the Third Defendant
20 November, 2015
1. CANNINGS J: This is the ruling on a notice of motion filed on 12 November 2015 by the plaintiff, the Honourable Belden Namah MP, the Member for Vanimo Green Open.
HISTORY
2. On 28 October 2015 the plaintiff commenced proceedings by originating summons in the National Court, seeking the following orders:
(a) a declaration that a leadership tribunal, which had been appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against him, had failed in its duty to refer constitutional questions to the Supreme Court;
(b) an order that the National Court refer the constitutional questions to the Supreme Court;
(c) an injunction to restrain the tribunal from conducting any proceedings;
(d) a declaration that the tribunal's failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff's right to the full protection of the law under Section 37(1) of the Constitution; and
(e) a declaration that the tribunal's failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution.
On 4 November 2015 the plaintiff applied by notice of motion in this Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. The Court, on 5 November 2015, refused to grant the injunction (Hon Belden Namah MP v A Tribunal, the Public Prosecutor & the Ombudsman Commission (2015) N6108). On 12 November 2015 the plaintiff filed another notice of motion. The motion was heard on 18 November 2015.
THE NOTICE OF MOTION FILED ON 12 NOVEMBER 2015
3. The plaintiff seeks five main orders:
(1) that the Chief Justice be added as a party, as fourth defendant (para 2);
(2) that leave be granted to further amend the originating summons (para 3);
(3) that an injunction be granted restraining the members of the tribunal from proceeding in their inquiry (para 4);
(4) that the National Court refer constitutional questions to the Supreme Court (para 5);
(5) that the tribunal's proceedings be stayed pending a hearing and determination of the proposed Supreme Court Reference (para 6).
The three defendants (members of the tribunal, the Public Prosecutor and the Ombudsman Commission) oppose the motion. I will now determine the application for each of the five orders sought.
(1) THAT THE CHIEF JUSTICE BE ADDED AS A PARTY, AS FOURTH DEFENDANT
4. By paragraph 2 of the notice of motion, the plaintiff seeks the following order:
2. Pursuant to Order 5, Rule 8 and Order 12, Rule 1, and Order 8, Rule 50 of the NCR, Section 155(4) of the Constitution, and the inherent jurisdiction of the Court:
2.1 Chief Sir Salamo Injia Kt GCL, Chief Justice of the Supreme Court and National Court is added as a party to these proceedings as the fourth defendant; and
2.2 That the Amended Originating Summons be further amended accordingly to reflect the addition of the fourth defendant.
5. The application that the Chief Justice be added as a defendant is made principally under Order 5, Rule 8(1) of the National Court Rules, which states:
Where a person who is not a party—
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
6. Rule 8(1) operates in this way. To order that a person be added as a party the Court must first be satisfied that the applicant:
(a) "ought to have been joined as a party"; or
(b) "is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on".
7. If (a) or (b) is satisfied, the Court has a discretion to exercise: whether to order that the applicant be added as a party. If neither (a) nor (b) is satisfied, the Court has no power under Order 5, Rule 8(1) to order the addition of a party (Tarsie v MCC (2010) N4141).
8. I am satisfied as to both (a) and (b). The central issue underpinning the relief sought in the originating summons is whether the Chief Justice acted contrary to the Constitution and breached the plaintiff's human rights in the course of appointing the tribunal. The plaintiff proposes to argue that, because the Chief Justice is at the centre of one of 15 categories of misconduct in office (in that it is alleged that the plaintiff several years ago "stormed" a courtroom in which the Chief Justice was presiding and threatened physical violence), the Chief Justice was put in a position of a conflict of interests, such that the Constitution required that his Honour not appoint this tribunal.
9. I consider that his Honour ought to have been joined as a defendant and his Honour's addition as a defendant is necessary as he is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on. Therefore I will order that his Honour be joined as fourth defendant.
(2) THAT LEAVE BE GRANTED TO FURTHER AMEND THE ORIGINATING SUMMONS
10. By paragraph 3 of the notice of motion, the plaintiff seeks the following order:
3. Pursuant to Order 8, Rules 50 and 55 of the NCR:
3.1 The plaintiff have leave to further amend its pleadings herein, in the terms of the Draft Further Amended Originating Summons annexed hereto.
3.2 The plaintiff shall forthwith:
3.2.1 file the Further Amended Originating Summons in the form of the draft annexed hereto at the Registry of National Court at Waigani; and
3.2.2 serve the first, second and third defendants with a sealed copy of the Further Amended Originating Summons; and
3.2.3 serve the fourth defendant by leaving a copy with the Registrar of the Supreme Court at Waigani.
11. If leave is granted to further amend the originating summons, it will read as follows (the proposed amendments are underlined):
THE PLAINTIFF CLAIMS:
1. Orders and declarations under Sections 18, 23 and 57(1) and (3) of the Constitution as follows:
(a) An order under Section 23(2) of the Constitution for such orders as the Court thinks proper for remedying a breach of the duty of the defendants imposed under Section 18(2) of the Constitution upon them, including:
a. A declaration that the first defendants failed in their duty under Section 18(2) of the Constitution to refer to the Supreme Court questions relating to the interpretation and application of certain provisions of constitutional laws, which have arisen before them, including
i) whether, in the circumstances of this case, the Chief Justice fourth defendant is unable or unavailable to act (within the meaning of those words as they are used in Section 169(4)(c) of the Constitution), by reason of the operation of law, including Section 59 (natural justice) of the Constitution, to exercise or perform his powers, functions, duties and responsibilities under Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership ("the OLDRL") and to appoint the Tribunal first defendants as "the appropriate Tribunal" in the matter of the referral of allegations of misconduct in office by the Ombudsman Commission against the plaintiff under Section 27(1) of the OLDRL; and
ii) whether the purported appointment by the Chief Justice fourth defendant of the first defendants as "an appropriate Tribunal" under Section 27(7)(e) of the OLDRL is, in the circumstances of this case, unconstitutional, invalid and ineffective for the reasons set out in the previous paragraph; and
iii) if the Chief Justice fourth defendant is found to be unable or unavailable to act,
1. does this deprive the first defendants of jurisdiction to inquire into allegations referred to then in this matter; and
2. would the first defendants be acting in breach of the Constitution and the OLDRL if they were to proceed in any respect in this matter.
iv) whether, in the circumstance of this case, the powers, functions, duties and responsibilities under Section 27(7)(e) of the OLDRL ought to have been performed and exercised by the next most senior Judge in accordance with Section 169(4) of the Constitution.
v) whether in the circumstances of this case, the Ombudsman Commission ought to have issued directions pursuant to Section 27(4), and Section 218 of the Constitution, to the Chief Justice fourth defendant, to the effect that he is "unable or unavailable to act" in this matter, and requiring the next most senior Judge to perform and exercise the powers, functions, duties and responsibilities of the Tribunal first defendants under Section 27(7) of the OLDRL in this matter.
b. An order under Section 18(2) of the Constitution, referring the questions set out in the previous paragraph for determination by the Supreme Court, and such other consequential orders as this Court sees fit.
c. Interlocutory or alternatively permanent injunctions, to prevent the first defendants, from convening the tribunal or conducting any proceedings whatsoever, or until such time as the Supreme Court has heard and determined the questions referred to above.
d. In the alternative, an interlocutory or alternatively permanent injunctions restraining the first defendants from convening, in the circumstances that the purported appointment of the first defendants by the fourth defendant pursuant to Section 27(7)(e) of the OLDRL is and was ultra vires and unconstitutional.
e. In the further alternative an interlocutory or alternatively permanent injunctions restraining the first defendants from convening in circumstances where a reasonable apprehension of bias arises by reasons of:
(a) in this ongoing litigation, involving the first defendants providing instructions to private counsel to act on behalf of the first defendants, actively contest the plaintiff's application and to seek orders including costs against him; and
(b) the first defendants' apparent communication with the Public Prosecutor without the knowledge and the consent of the plaintiff to instruct private counsel to act jointly on behalf of the first defendants and the second defendants as if their interests were the same.
f. A declaration that the facts, matters and circumstances referred to in paragraph 1(a)(i) – (v) hereof, and in particular the failure of the first defendants to discharge their duty under Section 18(2) of the Constitution, breached the plaintiff's right under Section 37 of the Constitution to the full protection of the law.
g. In the alternative, a declaration that the facts, matters and circumstances referred to in paragraph 1(a)(i) – (v), and in particular the failure of the first defendants to discharge their duty under Section 18(2) of the Constitution, in that such actions:
i) are harsh and oppressive; or
ii) are not warranted by or are disproportionate to the requirements of the particular circumstances or of the particular case; or
iii) are otherwise not, in the particular circumstances, reasonably justified in a democratic society having a proper regard for the rights and dignity of mankind; and
iv) are consequently unlawful acts, and are unconstitutional, invalid and ineffective.
h. In the further alternative a declaration that the purported appointment of the first defendants by the fourth defendant on 9 October 2015 pursuant to Section 27(7)(e) of the OLDRL is and was unconstitutional, invalid and ineffective.
i. A declaration that the fourth defendant acted unconstitutionally in the purported discharge of his duties under Section 27(7) of the OLDRL by appointing the first defendants as an "appropriate Tribunal" to inquire into allegations of misconduct in office against the plaintiff, in circumstances where the fourth defendant had a prior involvement in some of the events relating to the inquiry of the first defendants:
i) contrary to Section 27(7) of the Constitution; and
ii) against the principles of natural justice pursuant to Section 59 of the Constitution.
j. A declaration that the third defendant failed to give to the plaintiff proper notice and thereby denying the plaintiff natural justice and the fundamental right to be heard in circumstances that the third defendant failed, refused or neglected in their duty to respond to or provide answers to the plaintiff's request for further and better particulars.
2. An order under Section 23(1)(b) of the Constitution.
3. Costs.
4. For such further or other orders or declarations as the Court considers necessary or appropriate.
12. The plaintiff seeks leave to make the above amendments under Order 8, Rule 50 of the National Court Rules, which states:
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.
(4) This Rule does not apply to the amendment of a minute of a judgement or order.
13. The Court has traditionally taken a liberal approach to applications for leave to amend documents including originating summonses, for the reasons outlined by Gavara-Nanu J in The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273. In that case the Court granted an application by the plaintiff to amend its statement of claim on the third day of a trial that was due to last more than four days. His Honour extensively reviewed the authorities, both in PNG and overseas, and succinctly summarised the policy considerations underlying the broad discretion given to the Court by Order 8, Rule 50. There have even been cases in which parties have been granted leave to amend their pleadings after the parties have closed their cases. His Honour set out five considerations the Court should weigh in the balance when determining such applications:
1 Will the amendment enable the Court to determine the real question in controversy between the parties?
2 Will the amendment correct any defect or error in the proceedings?
3 Will the amendment cause real prejudice or injustice to the other party?
4 Is the application for such amendment made mala fide or bona fide?
5 Can the other party be fairly compensated with costs for the amendment?
14. In Kewa v Kombo (2004) N2688, I added the following:
6 Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?
7 Where do the interests of justice lie?
8 Is the proposed amendment efficacious? That is, is it a proper amendment?
15. My assessment of those considerations is that:
I will therefore grant leave to further amend the originating summons in the terms proposed.
(3) THAT AN INJUNCTION BE GRANTED RESTRAINING THE MEMBERS OF THE TRIBUNAL FROM PROCEEDING IN THEIR INQUIRY
16. By paragraph 4 of the notice of motion, the plaintiff seeks the following order:
4. An order in the nature of an interlocutory injunction restraining the first defendants from proceeding in their inquiry in LT 6 of 2015 until the hearing and determination of these proceedings.
17. A similar order was sought in the earlier notice of motion, and I refused to grant an injunction. I was not persuaded that there is an arguable case of a failure by the tribunal to comply with its duty under Section 18(2) of the Constitution to refer constitutional questions to the Supreme Court. I formed that view as there was a dearth of evidence that such questions had 'arisen' in the tribunal. There was no transcript of the tribunal's proceedings. There was no other official record of how and in what circumstances and form the plaintiff applied to the tribunal to have constitutional questions referred to the Supreme Court. There was insufficient evidence to satisfy me that the tribunal had been put in a position where it was required to make a decision on such an application. I was not convinced that it had refused an application. I was not satisfied that as a matter of fact the tribunal had decided not to refer any constitutional questions to the Supreme Court.
18. Since then, a transcript has been prepared and certified by the Director of Court Reporting and it is annexed to a supporting affidavit of the plaintiff. I am now in a better position to appreciate what happened in the tribunal on 26 and 27 October 2015. Mr Sheppard, for the plaintiff, applied on 26 October for constitutional issues relating to the appointment of the tribunal by the Chief Justice to be referred to the Supreme Court. After hearing Mr Sheppard and the Public Prosecutor, Mr Kaluwin, the tribunal reserved a ruling on the application to the next day at 9.30 am.
19. On 27 October the tribunal delivered an ex tempore ruling to the effect it was not giving a final ruling on the application. It was reserved to a subsequent date. The Chairman, Justice Poole, explained the tribunal's position (at page 21, line 14 of the transcript) in these terms:
Therefore, our approach or our view at the moment is that, when the referral is made, we will decide issue by issue and starting with what we have started with the one involving the Chief Justice, we will reserve our ruling on that. We cannot refer it under Section 18 until we have a question to refer and if that question is given to us and additional submissions made, then we may refer it, or if it is not, then we will, in due course, make a ruling as to whether we will deal with that or not. We have already indicated that one of the matters in the foreshadowed referral cannot stand because this – so we – if it is still there, we can simply rule that it not be considered further because it is not capable of being an offence under the law. So that is the approach that this Tribunal takes on this.
The transcript confirms that the tribunal has not refused to refer any constitutional questions to the Supreme Court. I remain of the view expressed in Hon Belden Namah MP v A Tribunal, the Public Prosecutor & the Ombudsman Commission (2015) N6108 that the application for an interlocutory injunction is, at this stage, premature.
20. For the substantive case to have any reasonable prospect of success the plaintiff must establish a factual foundation on which the case can proceed. He must prove:
I reiterate that there is insufficient evidence that such questions have 'arisen' "in" the tribunal or that the tribunal has made a decision to refuse or decline or otherwise not to refer constitutional questions to the Supreme Court. I therefore refuse to grant the injunction sought.
(4) THAT THE NATIONAL COURT REFER CONSTITUTIONAL QUESTIONS TO THE SUPREME COURT
21. By paragraph 5 of the notice of motion, the plaintiff seeks the following order:
5. An order under Section 18(2) of the Constitution that:
5.1 The questions relating to the interpretation and application of the provisions of the Constitution and the Constitutional Laws which arise in these proceedings be referred to the Supreme Court for hearing and determination.
5.2 This matter be adjourned to a directions hearing on a date to be fixed to settle the form of the questions to be referred, and for the factual basis from which the questions arise.
22. I reiterate the view expressed in my earlier ruling, and uphold the cogent submission of Mr Kandi on this important point, that Section 18(2) of the Constitution is not an avenue by which hypothetical constitutional questions are to be referred to the Supreme Court. An application to refer questions under Section 18(2) should not be treated as an originating process. If a person has a grievance that involves application or interpretations of Constitutional Laws he must approach the Supreme Court directly under Section 18(1) of the Constitution, which means that in the first instance he must satisfy the Supreme Court that he has standing according to the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265. (See Re Reference by Ken Norae Mondiai (2010) SC1087, Application by Ila Geno (2014) SC1313 and Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304.)
23. If the National Court is to make a reference under Section 18(2) it must base the questions it refers on findings of fact and the questions must be relevant to those facts (SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104).
24. For the National Court to refer such questions at this stage would be to countenance an abuse of process by the plaintiff. I refuse to refer any constitutional questions to the Supreme Court.
(5) THAT THE TRIBUNAL'S PROCEEDINGS BE STAYED PENDING A HEARING AND DETERMINATION OF THE PROPOSED SUPREME COURT REFERENCE
25. By paragraph 6 of the notice of motion, the plaintiff seeks the following order:
6. Pending the hearing and determination of the Reference under Section 18(2) of the Constitution, the proceedings of the first defendants are hereby stayed.
Though there is a jurisprudential difference between an interlocutory injunction and a stay of proceedings (Vincent Kaupa v Simon Poraituk (2008) SC955) for practical purposes in the present case there is little difference between the two different orders being sought (Ombudsman Commission v Gabriel Yer (2009) SC1011, Zachary Gelu v Sir Michael Somare MP (2008) N3526). I have, in determining whether I should stay the tribunal's proceedings, taken into account the same considerations that I have taken into account in refusing the application for an interlocutory injunction. I reach the same conclusion: a stay should be refused.
CONCLUSION
26. The first two orders sought by the plaintiff will be granted: the Chief Justice shall be added as fourth defendant and leave is granted to further amend the originating summons. The other three orders are refused. I will make no order for costs at this stage.
ORDER
27. It is ordered, in relation to the plaintiff's notice of motion filed 12 November 2015, that:
(1) The relief sought in paragraph 2 (addition of party) of the notice of motion is substantially granted and accordingly: pursuant to Order 5, Rule 8(1) of the National Court Rules:
- (a) Chief Sir Salamo Injia Kt GCL, Chief Justice, is added as a party to these proceedings as the fourth defendant; and
- (b) the amended originating summons shall be further amended to reflect the addition of the fourth defendant.
(2) The relief sought in paragraph 3 (amendment of originating summons) of the notice of motion is substantially granted and accordingly: pursuant to Order 8, Rules 50 and 55 of the National Court Rules:
- (a) the plaintiff is granted leave to amend the amended originating summons in the terms of the draft further amended originating summons annexed to the notice of motion; and
- (b) the plaintiff shall forthwith:
- (i) file the further amended originating summons in the form of that draft at Waigani; and
- (ii) serve the first, second and third defendants with a sealed copy of the further amended originating summons; and
- (iii) serve the fourth defendant by leaving a copy with the Registrar of the National Court, who shall immediately forward that copy and all other relevant court documents in these proceedings to the fourth defendant.
(3) The relief sought in paragraphs 1 (requirements of service), 4 (interlocutory injunction), 5 (Supreme Court reference), 6 (stay of proceedings) and 7 (other orders) of the notice of motion is refused.
(4) The relief sought in paragraph 8 of the notice of motion is substantially granted and accordingly: time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
(5) The relief sought in paragraph 9 (costs) of the notice of motion is adjourned for argument sine die.
Ordered accordingly,
_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff
MS Wagambie Lawyers: Lawyers for the First & Second Defendants
Lawyer for the 3rd defendant: Counsel to the Ombudsman Commission
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