[1998] PNGLR 171

PAPUA NEW GUINEA

[national court of justice]

SIR JULIUS CHAN

V

OMBUDSMAN COMMISSION

waigani: woods j
6, 15 July 1998

Administrative Law – Judicial review of administrative acts - General principles - Review of an Ombudsman Commission investigation – Nature of an investigation – Status of preliminary report – Directions for the review.

Facts

The Ombudsman Commission exercising its powers under the Organic Law on the Ombudsman Commission conducted an investigation into the purchase of a property in Cairns, Australia called the "Cairns Observatory" by the Public Officers Superannuation Fund (POSF) Board. The applicant who was the Prime Minister of Papua New Guinea at that time, was also investigated by the Commission to ascertain his role in the transaction.

After conducting initial investigations it completed a preliminary report, which it distributed to the applicant and other parties for their comments. The applicant took issue with some of the findings of the Commission against him. The applicant sought leave to review the findings of the Commission.

Held

1.	The publication of the preliminary report by the Ombudsman Commission may contain material that would affect the applicant adversely and thus violate his rights to a fair hearing by the Ombudsman Commission.

2.	The negative impacts of the document on the applicant cannot be assessed by the court without the court having access to the document.

3.	In conducting its review, it is not the role of the court to conduct a parallel investigation into the same matter that is being investigated by the Ombudsman Commission.

Papua New Guinea case cited

Kekedo v Burns Philp & Ors [1988-89] PNGLR 122.

Other cases cited

Council of Civil Service Unions v Minister for the Civil Service [1984] 3All ER 935.
O’Reilly v Mackman [1982] 3 All ER 1124.
Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680.

Counsels

N Cooke QC and M Varitimos, for the applicant.
D Cannings, for the respondent.

15 July 1998

Woods J. The applicant is seeking judicial review of an investigation being conducted by the Ombudsman Commission of PNG into various matters including circumstances surrounding the purchase of a property called ‘The Observatory’ in Cairns Australia by the POSF Board and associated transactions and arrangements. The applicant was the Prime Minister of PNG at the relevant time and his name has apparently been mentioned during the investigation. The Ombudsman Commission has prepared a preliminary report of its investigations and has apparently circulated that preliminary report to people whose names have been mentioned during the investigation. It is suggested that the reason this report was circulated to those people was to allow them to comment or make any statements to the Commission about the matters under investigation. The preliminary report was forwarded to the applicant and he was asked if he wished to say anything. At this stage I myself have not seen the report so I do not know in what context the applicant’s name has come up during the investigation. However it seems that it is because of the way that the applicant has been mentioned in the report that this application for review has been made. The applicant is seeking review of the investigation on the basis that the preliminary report shows bias towards the applicant and there have been breaches of natural justice in the way the applicant has been mentioned in the report and therefore the applicant is seeking to have the investigation declared invalid. 

As a procedural step towards the hearing of the review, it is necessary to issue directions for the hearing and parties have made submissions to the court as to the directions that should be made and the manner in which the review should be conducted. 

This application for judicial review is made under the National Court Rules, Order 16. In his statement filed with the application, the applicant is alleging various breaches of natural justice and bias against him by officers of the Commission. And of course the action being sought to be reviewed is the findings of the Commission as embodied in its preliminary report. Judicial review is the procedure a citizen may pursue to challenge administrative decisions that they consider to be adverse to them. However, this immediately raises the question as to what actually is being challenged here. It seems to be the preliminary report. Is this preliminary report a decision of an administrative and quasi-judicial tribunal? This report is clearly part of an investigation being conducted by the Ombudsman Commission in accordance with its powers to investigate provided for under the Organic Law on the Ombudsman Commission. It is necessary to look at the relevant provisions of that Organic Law. It is quite clear that through the whole scheme of the Organic Law and by its provisions the Commission has been given very wide powers and immunities.

The Organic Law s 13 allows the Commission to investigate on its own initiative as well as on complaint. Section 17 (2) provides that every investigation shall be conducted in private. Sub-section (3) states that the Commission can hear or obtain information from any person whom it considers can assist. And sub-section (4) stipulates that the Commission is not compelled to hold any hearing, however if it proposes to make any comment adverse to any person it must provide that person with a chance of being heard and set out that person’s defence in its report. Section 18 allows the Commission to require any person, who in its opinion is able to give any information, to furnish the Commission that information. The Commission may summons any person. Subsection (6) of the same section gives certain immunity to evidence given to the Commission. Section 20 provides that every officer of the Commission shall maintain secrecy. Section 24 provides that proceedings of the Commission are not to be questioned or to be subject to review. 

The authorities are quite clear that in a judicial review the court is not concerned with the merits of the decision being reviewed, but the legality of the procedures followed and the final decision. As was said by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 the grounds under which administrative action is subject to control by judicial review are: (1) Illegality, (2) Irrationality, and (3) Procedural impropriety. And the authorities have made it clear that review is not an appeal procedure, and the reviewing court will not substitute its judgement or discretion for the judgement or discretion of the body under review, and facts determined by the body under review are rarely open to review in the reviewing court. One of the leading authorities is the case Associated Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680 which laid down the following propositions.

The reviewing court is not a court of appeal. Subject to complying with the law the discretion of a body to which the discretion is entrusted is absolute. It must be a real exercise of the discretion. The body must have regard to matters to which it is expressly or by implication referred to by the statute conferring the discretion. It must:

•	ignore irrelevant considerations

•	not operate on the basis of bad faith or dishonestly.

•	direct itself properly in law.

•	act as any reasonable person would act and must not be so absurd in its actions that no reasonable person would act in that way.

These principles were summarised in Kekedo v Burns Philp & Ors [1988-89] PNGLR 122 by Kapi DCJ who said, "the circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers." And "the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting it own opinion. Judicial review is concerned not with the decision but with the decision making process."

So how do these principles apply here in an investigation by a body like the Ombudsman Commission. The normal cases of judicial review, apparent from the many cases and leading authorities, are where public bodies or tribunals have made decisions for licenses or permits of different kinds. And in PNG there are many instances of decisions by disciplinary bodies or authorities being subject to review. However, the matter before me now is not a decision on a permit or licence, it is not a decision of a disciplinary body, instead it is an investigation by the Ombudsman Commission which has not been completed yet. So how can that be reviewable. What is there to review especially in view of the fact that the processes of an investigation are confidential. It is submitted that by issuing a preliminary report the Commission has produced a report in the terms of s 17 of the Organic Law, which can affect a person’s rights. 

However, it is suggested that from the wide nature of the investigation, that in order to satisfy the constitutional requirements to provide any person who may be affected by the investigation, the opportunity to be heard that a document in the form of a preliminary report or an analysis of all the evidence so far had to be presented to any person named or affected.

The questions to be considered by me must be:

•	Was the investigation a proper matter for the Commission to conduct and was it within its powers? 

•	Have there been improprieties in the manner in which the investigation has been conducted to date in relation to the manner in which the applicant has been named or approached?

•	Has the applicant been afforded a chance to be heard by the Commission? 

•	Does the preliminary report on its face suggest any improprieties or illegalities or is it so unreasonable that any reasonable person would not have reported or compiled the material relating to the applicant in such a way? 

•	Is it a final report where a person has been implicated but has not been given an opportunity to be heard.

This means that the review is limited purely to an analysis of what the applicant perceives from his involvement with the investigation and the way in which he has been approached by the Commission, and to what improprieties can be perceived from a perusal of the preliminary report.

It is not the role of this court to review all the evidence and material obtained by the Commission in the course of its investigation. As was said by Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124:

"it will only be on rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise on judicial review. The facts can seldom be a matter of relevant dispute on an application for judicial review and to allow cross-examination presents the court with a temptation not always easily resisted to substitute its own review of the facts for the decision making body on whom the exclusive jurisdiction to determine the facts have been conferred by Parliament."

There would be a further matter to be considered here, namely that, it is the Ombudsman Commission itself that would appreciate the relevance and importance of the many facts that comes to its knowledge during such an investigation and it is not the role of this court to itself conduct a parallel investigation and give its own interpretation of the facts. I mean the end result of an investigation is never known until all the facts and statements have been considered and it is clear that we are here considering an investigation that is still continuing where there may be no foregone conclusions. It may be that the applicant is forecasting that there are foregone conclusions, well if so then the applicant has powers of an oracle that this court may be unwilling and under the law unable to acquire. However, I will hear the submissions on that based on an examination of the preliminary report. 

This review will be done on the basis of the statement made in support of the application and the affidavit of the applicant filed at the time the application was filed and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard. And the preliminary report will also be available for the review.

It is not appropriate to order any more discovery. I gave a limited discovery at the time leave was granted and that discovery was to allow the applicant to acquaint himself with the relevant leases or transfers or proposals to remind himself of any matters where he may be implicated or where he may have knowledge. Anything else must be purely within the knowledge and memory of the applicant. There is no need for any further subpoenas and most of the matters already under subpoena are not necessary for the hearing of this review. Of course if they may have helped the applicant remind himself of matters where he may have been able to assist the investigation then so be it or alternatively if he felt that an investigation had overlooked them to his advantage then of course it was open to him to draw the Commission’s attention to them or request that such be included in their final report, vide s 17(4) of the Organic Law. 

I will schedule the review for hearing on Monday 31st August 1998.