CIVI

PROCEDURE ACT 1972

RULES OF COTIRT
(O.38, r.1)

APPLICATION F'OR JT]DICIAL REVIEW

IN THE SUPRMEME COURT

OF'THE REPTIBLIC OF NATIRU

Miscellaneous Causes No.

f,lz0ts

RODNEY HENSHAW
Applicant

BETWEEN

AND
SECRETARY OF JUSTICE
Respondent

ORIGINATING SUMMONS
Let the Applicant be heard by the Registrar in Chambers at the Court house at Yaren on the
day of May 2015 on his application for leave to commence judicial review under
38
of the Civil Procedure Rules 1972 of the decision by the Secretary of Justice on 21
Order
May 2015, to deny the legal representative of the Applicant a visa to appear in Civil Suit No.
2 &. 9/20T4 and seeks the following orders:

?. 3cpr".?-.k.

a)

A writ of certiorari, bringing the decision of the Secretary Justice into this
Court to be quashed.

b)

A writ of mandamus, directing the Secretary of Justice to re-determine the

application according to law.

c)

A writ of prohibition, r&raining the Secretary of Justice, his employees,

officers, delegates or agents from acting upon or giving effect to the decision.

d)

Any further or other relief the Court considers appropriate.

e)

Costs.

Grounds of Application

l.

This an application for judicial review of the decision made on 21 May 2015 by the
Respondent to deny the legal representative of the Plaintiff a visa to appear in Civil
Suit No. 2 & 912014. Refe, to attachment A.

Ground 1: Contrary to Law

2.

- Violation

of the Constitution of the Republic of Nauru

The decision by the Respondent to deny the legal representative of the Plaintiff a visa
to enable counsel to represent and appear on his behalf in civil suit No. 2 & 912014 is
contrary to law and in violation of article 10 of the Constitution of the Republic of
Nauru or alternatively, the common law right to legal representation of choice.

Ground 2: Abuse of Process

3.

The Respondent exercised power in a way that constitutes an abuse of the power.

Ground 2: Denial of Natural Justice and Procedural Fairness

4.

The Respondent breached the rules of natural justice and procedural fairness by
denying the Plaintiff access to legal representation, facilities for the preparation of the
matter, facilities to examine by his legal representative witnesses and the fair hearing
rule within a reasonable time.

Ground 3: Actual or Reasonable Apprehension of Bias

5.

The Respondent exercised power in a manner which constituted actual or reasonable

apprehension ofbias.

Ground 4: No Evidence

6.

There was no evidence or other material to justify the making of decision to deny the
legal representative of the Plaintiff a vis4 or the Respondent relied on facts, which did
not exist.

Ground 5: Improper Purpose

7.

The Respondent exercised power for an improper purpose, to deny the Plaintiff his
constitutional and common law right to legal representation in an attempt perveft the
course ofjustice and thwart the contempt of court charges and other proceedings
against the First, Second and Third Defendants in civil suit no. 2 &.9/2014.

Ground 6: Bad Faith

8.

The Respondent exercised power in a manner, which constituted bad faith.

ti
Ground 7: Unreasonableness

9.

The Respondent exercise power in a manner that is so unreasonable that no reasonable

repository of power would havo so exercised the power. Alternatively, the Rospondent
reasoned illogically or irrationally and the decision lacked evident or intelligible

.iustification.

'

":

Ground 8: Contempt of Court

10. His Honor the Chief Justice had granted admission to

Mr. Jay Williams Barrister to

practice generally as a Barrister in the Nauru Courts. The denial of his application for
a business visa to enter Nauru to perform his function as an officer of the Nauru
Courts is a contempt of Court.

Dated

Signed

Vinci N. Clodumar
Pleader for the

Plaintiff

IN THE SUPRMEME COURT

OF TTIE REPUBLIC OF NAURU

Miscellaneous Causes

No.

12015

REGISTRY: YAREN COURTHOUSE

BETWEEN

RODNEY HENSIIAW
Applicant

ANi)
SECRBTARY OF JUSTICE
Respondent

AFF'IDAVIT IN SUPPORT

I, Rodney Henshaw,

ryt

Flynr,=s Cx%.11 gc-or:ra-,

of(A^L{kPlLg-k,hereby solemnly swea.r and say the following:

1. I am the Applicant in this matter and the Plaintiffin the amended Civil Suit No Z &gl
20L4 and

Civil Suit No. 4/2014 which

are at foot in the Nauru Supreme Court.

The Parties

2.

I am the owner/operator ofthe Reef Bar Tavem and the Tubwa Bet TAB both located
at the Menen Hotel. The Reef Bal Partnership comprises of Mr Rodney Henshaw, the
late A:rne Henshaw wife of Rodney Henshaw, Faith Mau and Rick Daoe.

3. I am an Australian

citizen holding passport nunber M5379059 which expires on 07

July 2016. I heid a Republic of Nauru business visa 8P1784-13 issued on 12 July
2013, which was valid at the relevant time, wilh an expiry date of 12 July 2014.I
was residing in Roorn 260 atthe Menen Hotel, Meneng District.

Removal Order by Cabinet - T January Z0l4

4.

On 7 Januar y 2A14at 4.00 pm, the Cabinet of the Republic of Naruu, approved the
removal of the plaintiff, endorsed the deportation order and cancelled forthwith the
visa of the plaintifi by way of cabinet submission na. B/2ar4.

Removal order by Minister for Justice and Border control

5-

January 2014

On 8 January 2O14 a14.00 pm, the Hon. David Adeang M.P, Minister for Justice and
Border Control issued a removal order by way letter dated I January 2}l4,informing
me that pursuant to the Immigration Act 1999 (Nr), I had been declared a prohibited

,iw/

Immigrant and my removal from Nauru was scheduled for witldn 7 days or the next
flight to Australian whichever is soonest.

Civil Suit No2l20l4 - Interim Interlocutory Injunction - 9 January 2014

6. On 9 January 2014, the Registrar

of the Supreme Courl of Nauru found the Plaintiff

judicial
review of the Minister's determination and
did have a prime a facie case for
granted an interim interlocutory ir{unction restraining the implementation or

enforcement of the Removal Order against the Applicant on or before ari application
for Judicial Review is heald and determined by the Supreme Court of Nauu.

Order Granting Leave for Judicial Review

7

L3

January 2014

On 13th January 2014,the Registrar ofthe Supreme Court ofNauru determined that
was in the interests ofjustice for leave to be granted for judicial review of the
Minister's decision deciaring the plaintiff to be a Prahibited lmmigant.

Civil Suit No 4/2014 - Termination of the Reef Bar Agreement-

L5

it

January 2014

8. On 13 January 2074, the Menen Hotel Management wlote a ietter to the Plaintiff
ordering the closure of the business and vacation of residence by the Plaintiff based
on a declaration by the Minister the Plaintiffis a'Prohibited Immigrant' required to
leave within 7 days.

9. On 15th January 2014, the Registrzr

ofthe Suprerne Court ofNauru ordeted an interim

interlocutory iajunction restaining the implementation or enforcement of the Order
by the Menen Hotel against the Plaintiff directing the closure of the betting agency
known as 'Tubwa Bet' conducted within the premises of the MenenHotel.

Civil Suit No 3/2014 - Termination of the former Resident Magistrate, Peter Law
January 2014

19

10. On 19 January 2A14,the Resident Magistrate and Registrar ofthe Supreme Court
advised the Court that his contract had been terminated, without notice, and he
had been detained by poiice on orders of the President for deportation from Nauru

on the next day,20 January 2014-

ofthe Supreme Courl ofNauru granted aninterim interlocutory

injunction restratning the respondents, their servants or agents, fiom
implementation or enforcement of the Removal or deportation Order against the
Applicant on orbefore an application for Judicial Review is heard and detenrrined
by the Supreme Courl of Nauru.

11. The ChiefJustice

Cancellation of the Yisa of the Former Chief Justice

12. On 19 January 2A14,

20 January 2014

the Government of Nauru cancelled the visa of the Chief

Justice ofthe Supreme Coiut ofNauru.

BH ,',',''i'/

Resignation of the Solicitor-General of Nauru,

2l Janutry 2014

13. On 20 Jarnary 2014,the former Solicitor-General of Nauru resigned in protest at

the treatment of the formel Resident Magistrate, Peter Law, and the fonner Chief
Justice, Geoffrey Eames, AO QC.

Civil

- Application for Injunction,2g

Case No 9/2014

Ja;nuaLry 2014

14. On 28 Janualy 2A14, the Parliament ofNauru passed the Immigration Act 20la Q\r).

piaintiff received a letter from the Minister for Justice

ordering his removal from the island of Nauru as a Prohibited Immigrant under the
Imrnigration Act 2014 and ordering the plaintiffto depart Nauru within seven days
or the next available flight'u,hichever was soonest. No reason was given in the letter
as to why the plaintiffwas declared a Prohibited Immigrant.

15. On 28 January 2014, the

16. On 29 lanuary 2014, David Aingimea, Executive Chairman of Egigu

Holdings Corporation issued a letter, directing the Reef Bar', the Reef Bar
Tab and all hotel accommodation units utilized by the plaintiffand his staff
to be vacated that day.
17

. On29 January 2014, the plaintiff was directed to be on the 2.30 pm flight to
Australia and placed under house arrest with members of the Nauru Police Force
stationed outside his room at the Menen Hotel awaiting to escort him to the airport.

8. At approximately 1 .3 0 pm on 29 January 2A14, theplaintiff sought an ugent ex

parte injunction pre'renting his deportation, before the Acting Registrar', Andrew
Jacobson.

19. The former Resident Magistrate, Andrew Jacobson, refused the iqjunction and found
there was no prima facie case to be tried because this Couit does not have

jurisdiction to revierv the lemoval order.

20. At approximately 4.20pmon 29 January 2014,theplaintifffiled and servedthe

writ of summons for civil suit no" gl}0l4 on the defendants.

Civil

Case No 9/2014

- Appeal

against the Decision by the Acting Registrar, Andrew

Jacobson, 3 February 2014

21. On 3 February 2014,the plaintiff'filed and served an appeal against the decision
by the Acting Registrar, Andrew- Jacobson to refuse to grant an injunction
preventing the depofiation ofthe plaintiff.

Resignation of the former Chief Justice Eames, 13 March 2014

22. On 13 March 2U74,the Chief Justice of Naurq Geoffiey Eames AO QC, resigned as
the Chief Justice of &e Supreme Court ofNauru.

,ft

///

,4fr1

MP's
The Suspension of three Opposition

14

May 2014

MPs for
suspended three opposition
May 2014, the parliamenl of Nauru
According to the
,,intending t"l*n|", **imum au*ug" to Nauru's reputation.-"
Keke and
.The motiorr,o ,.,rro|ii iup;;;;Batsiu4 Kieren
media rerease,
**v *ontt's of interviewsinby
i"u"*i"e
d;;#;
,h.
by
moved
was
Roland run
*i N"* Z"aland to intervene

23. on

14

th.y
"di;T;;'er,*fi"
Nauru,sdomesticaffairsu,ds,gg",t"dthatthetwo"o*t,i",shouldreconsideraid

the three members where

programs''

MP's - 9 June 2014

The Suspension of two Opposition
24.orrgJunez[l[,theparliamentofNauruhassuspendedtrvomembersof
were suspended
;; h;;. Sprcnt Dabwij; o,J uo,,. sq}* Jeremiah
par.liament,

fiom the House following a

moti;;;*"a uv Justice Minister

David Adeang'

AppointmentofnewChiefJustice,JusticesandMagistrate.gSeptembera0|A
25.ongSeptemberZol4,HisExcellencyPresidentBaronwaqaappointedRatuJoni
MadraiwiwiasthenewChiefJ,,sti""orm"Suprem-eCourtofNatrru,arrdJustices
Magistrate'
ElizabethHamilton-Whiteand,,"r,""","aShafiullahKhan.MsEmmaGarowas
Adeang * o'" new Resident
H;;David
Ministe.
Justice
before
in
swola

ResumptionoftheMatters-CalIover-23September2014-CivilSuitNo4l2o14
26.on23Septembet[[l4,someninemonthsaftertlecommencementofproceedings,
for mention'
ttie

matter;-;;""gh'

before the Court

Against the President and

contempt of court charges
summons
of
Amended
Minister for Justice of Nauru

writ

sgits no 2; 4 aItd
27.on23octoberzo| }hePlaintifffiledandservedanAmendedWritofSummonsin
seeks leave of the court
"i\iit
9l2014and
rc
suit
civil
'";;;;;ilu*certain defendants and
t" 3oi, ana-r"move
,;;;;;d
join
causes
the
of
912t04;to
"f
ti" p'"'ia";;*d Minster for Justice
of court

raised contempt

"ir*g"r"ugrliri.i

Nauru'

23.on30Jarruary2ols,theRegistraroftheSupremeCourtofNaurusetthestrikeout
applicationUitUedefe"dantslownforhearingonllJune2015'
Nauru
of the Supreme court of
petition by Jay wiltiams to Practice as a Barrister
to the
of co.unsel and the legal representative
Williams,
zo|4,Jay
as a
29. on10 october
nepuutic oiNu'* for admission
plaintiff applied to tt srrprem" c"rrt of the

"

barrister'

t9 Jay williams
court ofNauruissued a sumrnons
District
dre
zol4
october
2g
on
the charge of
30.
s N*"*u"tJol+ to answer

attendaii;;;;
lolzlof the civil Aviation Act 201'

commanding him to

ur"u.r'i"il'5'"u1"

ii/ lt I

of Nauru
of the supreme court of the Republic
31. on 2g october 2014, the Registrar
the
2014'
October
io ttt* G9zex2on22
notified Jay WilliaLs that afrer advertising
barrister
a
as
Jay Williams
an objectio" ilf"-.d'"ission of
Supreme Court

,;;ir;

of

theSupremeCourtbytheSecretaryofJusticeoftheRepublicofNairnr.
32.

Prosecutions discontinued the

on 28 Novemb er 20l4,the Director of Public
proceedings against Jay Williarns'

33.

Supreme-low ofthe Republic ofNauru

ortrr" Plaintiff, Jay williams, informing
wrote to the barrister and legal ,"p."rJr*i*

on

the
1g Decemb er2014,the Registrar of

his admission'
him that the Chief Justice had approved

to the secretary of Justice seeking

$e Plaintiffwrote
abusinessuppti"utio,,forthebarristertoappealincivilsuit2&91201i4.

34. on 20

May

ZO!5,the pleader for

a visa for the

Justice denied the application for
35. on the same day, the secretaly of
barrister of JaY Williams'

SwoRN by Rodney Henshaw,

^A',fu'*'^-----,

this

I'4*Iday

of May 2015 before me:

-!

Deponent

M",5/,'l

Justice of the Peace