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Paraka (trading as Paul Paraka Lawyers) v Bidar [2018] PGNC 363; N7443 (7 September 2018)

N7443

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 130 OF 2018

IN THE MATTER OF AN APPLICATION FOR JUDICIAL RVIEW UNDER SECTION 155(3) OF THE CONSTITUTION & ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN
PAUL PARAKA trading as PAUL PARAKA LAWYERS
Plaintiff

AND
HIS WORSHIP PRINCIPAL MAGISTRATE COSMOS BIDAR, WAIGANI DISTRUCT COURT
First Defendant

AND
HIS WORSHIP MAGISTRATE M. GAULI, PRINCIPAL MAGISTRATE, WAIGANI DISTRICT COURT
Second Defendant

AND
CHIEF INSPECTOR TIMOTHY GITUA, DEPUTY DIRECTOR, FRAUD SQUAD, POLICE FORCE & MEMBER OF ITFS SWEEP
Third Defendant

AND
SENIOR CONSTABLE PIUS PENG OF POLICE FORCE & MEMBER OF ITFS SWEEP
Fourth Defendant

AND
GARI BAKI, POLICE COMMISSIONER PNG POLICE FORCE
Fifth Defendant

AND
HON. KERENGA KUA, MP, FORMER ATTORNEY GENERAL & FORMER MINISTER RESPONSIBLE FOR ITFS SWEEP
Sixth Defendant

AND
HON. STEVEN DAVIS, MP, ATTORNEY GENERAL & MINISTER FOR JUSTICE
Seventh Defendant

AND
HON. PETER O’NEIL, MP, PRIME MINISTER & CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
Eight Defendant

AND
BETTY PALASO, COMMISSIONER GENERAL INTERNAL REVENUE COMMISSION OF PAPUA NEW GUINEA
Nine Defendant

AND
BENJAMIN HARRY, AUDIT TAX MANAGER, INTERNAL REVENUE COMMISSION & MEMBER OF THE ITFS SWEEP
Tenth Defendant

AND
HON. RIMBINK PATO, MP, MINISTER FOR FOREIGN AFFAIRS
Eleventh Defendant

AND
BANK OF SOUTH PACIFIC LIMITED
Twelfth Defendant

AND
SAM KOIM, FORMER CHAIRMAN OF ITFS SWEEP & FORMER PRINCIPAL LEGAL OFFICER, SOLICITOR GENERAL’S OFFICE
Thirteenth Defendant

AND
SENIOR CONSTABLE BERNARD BARUM, DIRECTOR, FINANCIAL INTELLIGENCE UNIT, POLICE DEPARTMENT
Fourteenth Defendant

AND
FAITH BARTON, SOLICITOR GENERAL OF
PAPUA NEW GUINEA
Fifteenth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixteenth Defendant

Waigani: Dingake J
2018 : 13 April, 18 June

JUDICIAL REVIEW – Application for leave – Precisions of various Government Agencies and or functionaries – delay of over five (5) years inordinate – no arguable case – leave refused.
Set out – Applicant failed to meet the requirements – leave refused.

Cases Cited:

Steamships Trading Ltd v Garamut Enterprises Ltd (2000) N1959;
Pepi Kimas v Boera Development Corporation Ltd (2012) SC1172;
Digicel (PNG) Limited v Jim Miringtoro 2015 PGSC27; N6064;
Geno & Others v The State [1993] PNGLR 22;
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644;
NTN v Board of Post and Telecommunications Corporation [1987] PNGLR 70;
Paul Tiensten v Sam Koim and others & The National Executive Council and Tom Kulunga as Commissioner of Police and The State (2011) N4420;
Alois Kingsly Golu v The National Executive Council and Sam Koim and Ors & The State (2011) N4425;
Gari Baki – Police Commissioner of the Royal Papua New Guinea Constabulary v Sam Koim as Chairman of the Sweep Team (2017) N6840;
Eremas Wartoto v The State (2015) SC1411.

Counsel:

In Person, for the Applicant
Mr. Desmond Kipa with Mr. R. Webb (QC), for Respondents
Mr.Rodney Mek, for the Seventh and Fifteenth Respondents

7 September, 2018

1. DINGAKE J: The Applicant/Plaintiff in this case, seeks leave to review decisions of the Respondents/Defendants taken at various dates and or times between August, 2011 and February, 2018.
2. Notwithstanding the voluminous documentation placed before me in this application, the issues of moment, turn on very narrow compass.
3. This application is brought in terms of Order 16 Rule 3(1) (a) of the National Court Rules.
4. The decisions sought to be reviewed are listed in paragraph 2.1, sub-paragraphs (a) to (k) of the Originating Summons. These decisions are listed as follows:
   1. The decisions of the ITFS Sweep and ITFS Police to have the plaintiff arrested and charged with 37 criminal offences under the Criminal Code Act and Proceeds of Crimes Act on the 22^nd October 2013, 9^th January, 2014 and 31^st January, 2014 respectively.
   2. The decision of Prime Minister, Hon. Peter O’Niell, MP to give “Executive Directive” by letter dated 13^th May, 2014 to conduct investigation by the ITRS Sweep.
   100. The decision of the former Solicitor General Devette to lodge a complaint with the Police on the 14^th March, 2012.
   4. The decision of the NEC to establish the ITFS Sweep by the following NEC Decisions;
      1. NEC Decision No. NG03/2011 dated 12^th August, 2011.
      2. NEC Decision No. NG31/2011 dated 15^th September, 2011.
      3. NEC Decision No. NG10/2012 dated 27^th January, 2012.
      4. NEC Decision No. NG11/2012 dated 27^th January, 2012.
      5. NEC Decision No. NG48/2013 dated 23^rd February, 2013.
   5. The decision of former Attorney General, Hon. Kerenga Kua, MP (AG Kua) in directing the BSP Bank to cancel all Bank Accounts of Paraka Lawyers and terminate its Banking services by letter dated 20^th May, 2013. And the subsequent decision of the BSP Bank to terminate and severe all banking services of Paraka Lawyers on the 17^th June, 2013.
   6. The decision of Attorney General Kua to cancel the Plaintiff’s PNG Passport by letter dated 12^th November, 2013.
   7. The decision by the Internal Revenue Commission (IRC) on the 29^th July, 2013 to impose Tax Assessments against Paraka Lawyers for an exorbitant sum of K96 million and Statutory Garnishee Notices to all Banks and Financial Institutions.
   8. The decisions by the IRC on the 4^th March, 2014 and Department of Foreign Affairs by letter dated 12^th November, 2013 respectively to impose travel ban against the Plaintiff within and outside of PNG.
   9. The decision by AG Kua on the 21^st April, 2013 to terminate all pro bono legal work undertaken by Paraka Lawyers.
   10. The decision of the District Courts in refusing to dismiss the 37 criminal charges on the 27^th April, 2017 and 9^th May, 2017 respectively.
   11. The decision of the Arresting Police Officers in refusing to withdraw the criminal charges despite the Plaintiff’s request to them by letter dated 2^nd February, 2018.
5. The principles applicable to an application for leave are now well settled. A review of the case law in this jurisdiction shows that an applicant for leave for judicial review, in order to succeed, must establish that:
   1. He or She has sufficient interest in the matter.
   2. There is no undue delay in bringing the application.
   3. He or She has exhausted alternative statutory or administrative remedies.
   4. That he has an arguable case.
6. It is trite learning that applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially and not arbitrarily.
7. The question of sufficient interest is a mixed question of fact and law, and can only be properly established by examining the complaint of the applicant.
8. The issue of standing would ordinarily be established if the applicant can show that the decisions of administrative bodies complained of concern his rights or interests. The general approach of the Courts to issues of “sufficient interest” is usually a generous one (Steamships Trading Ltd v Garamut Enterprises Ltd (2000) N1959; Re: Petition of Michael T Somare (1981) PNGLR 265).
9. In this case, I am satisfied that the administrative decisions complained of concern the rights and or interests of the applicant, thereby clothing him with sufficient interest or standing to approach this Court for an appropriate remedy.
10. The next question that falls for determination is whether the applicant has delayed in bringing this application.
11. The question of delay must be considered in the context of when each decision complained of was taken, the nature of the decision, and the reasons given for such a delay, if any.
12. It bears emphasizing that in a case such as this one, where multiple decisions were taken, at different times, each such decision stands alone and must be challenged promptly or within reasonable time after being taken and that if there is any delay, the applicant should give a reasonable or valid explanation for the delay.
13. The nature of the decision is an important consideration because of the provisions of Order 16, Rule 4(2), which states that in the case of an application for an order of certiorari, the relevant time frame within which to challenge the decision is four (4) months.
14. In this case, it would appear that the oldest decision, particularized in paragraph 2.1 (d) (i) was taken in August, 2011, and the most recent decision, as particularized in paragraph 2.1 (j) was taken on the 9^th of May, 2017.
15. On the evidence, it is unclear when the decision particularized at paragraph 2.1 (k) was taken. The letter written by the applicant on the 2^nd of February, 2018, does not suggest that the decision of the arresting policing officers in refusing to withdraw the criminal charges was taken on the 2^nd of February, 2018.
16. It is common cause that the application for leave to apply for judicial review was filed with this Court on the 8^th of March, 2018.
17. It follows from the above narration that the applicant delayed to review the oldest decision complained of by more than six (6) years and with respect to the most recent decision, (2.1(j) of the Originating Summons) by more than nine (9) months.
18. The applicant’s explanation for the delay is captured in his Affidavit sworn on the 1^st of March, 2018, and filed with this Court on the 8^th of March, 2018.
19. In the aforesaid Affidavit the applicant does not give a concise explanation for the delay with respect to each decision to enable the Court to assess the reasonableness or validity of the explanation given.
20. In fact, in his submissions, the applicant denies that the Application for leave to apply for Judicial Review was filed late. However, he submits that in the event the Court finds that the application was filed late, there is an explanation for such lateness.
21. The general explanation for the delay given is that the delay was occasioned by exhausting administrative remedies before judicial review could be mounted. The applicant says that the last administrative process he undertook was on or about the 2^nd February, 2018, when he requested the arresting police officers to withdraw all criminal charges against him. He avers that the police officers refused to accede to his request.
22. The other reasons given by the applicant related to delays in processing related Court proceedings in the National and Supreme Courts; office eviction (9^th December, 2016 – 31^st of July, 2017) applicant’s involvement in the 2017 General Elections and diverse trial matters.
23. The applicant avers that in the course of 2016, he wrote, a number of authorities, asking them to reconsider their decisions due to change of circumstances. Amongst the authorities he wrote included arresting officers, Internal Revenue Commission, Bank of South Pacific Limited (BSP Bank) and Foreign Affairs Department.
24. It would seem that, at worst, when in 2016, the various authorities the applicant wrote could not reconsider the matters he placed before them, he should have proceeded to file the application for leave to review soon thereafter, but he did not do so.
25. I do not consider the letter of 2^nd of February, 2018, as representing the exhaustion of all other remedies available to the applicant with respect to each of the decisions complained of.
26. It follows in my respectful view that the applicant has failed to give a reasonable or valid explanation for the delay in bringing this application, with respect to each decision complained of. The delay, was in all the circumstances of this case, inordinate and inexcusable.
27. In my considered opinion it is not conducive to good administration, as contemplated by Order 16 Rule 4(2) (b) of the National Court Rules, to allow delayed challenges to administrative decisions, especially in a situation were no valid reasons are given. Such an approach is potentially prejudicial to the parties whose decisions are being challenged.
28. In my considered opinion failure by the applicant to give a reasonable explanation for the delay that runs into more than six (6) years in a majority of cases, is sufficient ground, on its own, to refuse the application for leave to review.
29. In the premises, application for leave to review is refused on this ground alone.
30. However, in the event I am wrong to hold as I do, that the application ought to be dismissed on the ground of undue delay alone, I would proceed to consider other factors outlined in paragraph 5 of this Judgment.
31. I am of the considered view that nothing of significance turns on the factor of exhaustion of alternative statutory or administrative remedies.
32. The last consideration is whether the applicant has shown that he has an arguable case.
33. With respect to the factor of an arguable case, that the applicant is required to establish, this Court is not required to engage in an exhaustive analysis of the merits or demerits of the case. It is sufficient, if on a quick perusal of the materials before it, there is a prima facie arguable case, or a serious issue to be tried, which on further investigation by the Court might favour the grant of the claim or the relief sought by the plaintiff (Pepi Kimas v Boera Development Corporation Ltd (2012) SC1172; Digicel (PNG) Limited v Jim Miringtoro 2015 PGSC27; N6064).
34. In determining whether there is an arguable case, the Court is not concerned with determining the merits of the case: (Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22).
35. In the case of Geno, cited above, the Supreme Court approved the principles set out by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644 which principles were also adopted and applied by the National Court in NTN v Board of Post and Telecommunications Corp [1987] PNGLR 70, and at page 74 of the said judgment the Court observed that:
    • “If, on a quick perusal of the material then available, the Court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
36. In evaluating whether the applicant has an arguable case, it is convenient to deal, first, with the National Executive Council (NEC) establishment of Investigation Task Force Sweep (ITFS), as it impacts on other decisions complained of in this applicaton.
37. The legality of the decisions of NEC to establish ITFS has been a subject of judicial scrutiny and interrogation before in cases such as: Honourable Paul Tiensten v Sam Koim and others & The National Executive Council and Tom Kulunga as Commissioner of Police and The State (2011) N4420, Alois Kingsly Golu v The National Executive Council and Sam Koim and Ors & The State (2011) N4425 and Gari Baki – Police Commissioner of the Royal Papua New Guinea Constabulary v Sam Koim as Chairman of the Sweep Team (2017) N6840.
38. In a constitutional democracy such as obtains in this country, the NEC is not above the law, and its decisions are reviewable, if it acts outside its powers or in violation of the Constitution.
39. However, it needs to be stated clearly and unequivocally that it is not every policy decision that is reviewable. The NEC is a creation of the Constitution – a body at the apex of the governmental structure, necessarily dealing with major issues of the day in a broad fashion, and their capacity to run the affairs of the State must, not be unduly frustrated by the Courts, unless they have exceeded their powers or otherwise acted unconstitutionally and or unlawfully. To this extent, I agree with the views of my brother Gavara-Nanu J, when, in the case of Golu v NEC, cited earlier, he endorsed the view, that when it comes to applications for leave to apply for review of NEC decisions, this Court should be slow in grating leave, subject of course to the proper exercise of the Court’s judicial discretion.
40. The applicant in this case has not demonstrated in what way the NEC exceeded its powers in establishing ITFS or otherwise acted contrary to the Constitution, or the Law.
41. In my considered opinion, the applicant has not established that he has an arguable case relating to the establishment of ITFS by the NEC.
42. The decisions to charge the applicant by officers who were members of ITFS is linked to the argument that ITFS was not established lawfully.
43. On a proper consideration of the material at my disposal it seems to me that ITFS was merely an interdepartmental task force of existing officers of the State, clothed with the power to exercise the powers attached to them as officers or functionaries of the State. There can therefore be no arguable case to be made that they could not lawfully prefer charges against the applicant.
44. I have considered the applicant’s complaint against a number of decisions arising out of his investigation and prosecution. These decisions are encapsulated in the Originating Summons 2.1(b), (c), (e), (f), (g), (h) and (i) and find that no arguable case has been made at all in relation to all those decisions. There is nothing with respect to these decisions that provides a basis for an arguable case that establishes that the applicant is entitled to a public law remedy.
45. With regard to decisions by magistrates in committal proceedings, the general principle that govern such matters is that the Courts are generally loathe to allow judicial review proceedings to disrupt criminal proceedings. (Eremas Wartoto v The State (2015) SC1411).
46. For one or all of the foregoing reasons, and in the exercise of my discretion the applicant’s application for leave is without merit and is refused with costs.

_______ ____________________________________________________
Paul Paraka Lawyers: Lawyers for the Applicant/Plaintiff
Twivey Lawyers: Lawyers for the Respondent/Defendant
Paul Mawa Lawyers: Lawyers for the Seventh & Fifteenth Respondents/Defendants