N2400

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 212 OF 2003

Between:

HONOURABLE BERNARD HAGORIA
First Plaintiff

And:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Defendant

WAIGANI:		KANDAKASI, J.
2003:	8th and 26th May

ADMINISTRATIVE LAW – Application for leave for judicial review - Ombudsman Commission deciding to refer the plaintiff to the Public Prosecutor for prosecution under the Leadership Code – No final decision affecting a right or interest of the plaintiff made – Opportunity to raise the same issues before the Leadership Tribunal still existing – Delay in applying for leave for judicial review resulting in appointment of a Leadership Tribunal – No reasonable explanation provided - Delay fatal - Claim of bias and unreasonableness not disclosed by any evidence - No case of ultra vires or the defendant exceeding its powers established - Judicial Review not available as a remedy.

OMBUDSMAN COMMISSION – Review of decision or exercise of the powers of- Governed by s. 217(6) of the Constitution and s. 24 of the Organic Law on the Ombudsman – The Powers of the Court to review is limited to the grounds specified in these provisions - Present application not within these provisions – Application dismissed – ss. 217 of the Constitution and 24 of the Organic Law on the Ombudsman.

OMBUDSMAN COMMISSION – Claim of bias in relation to conduct of its investigation – "Fair minded lay observer test" applies with restriction – Reasonable apprehension of a partial or prejudicial decision not adverse findings must be firmly established – Given the nature of the role of the Ombudsman Commission more inquisitive and robust conduct of Commissioners should be expected without a ready attachment of bias. 

Facts:

Following investigations into certain allegations of misconduct in office by the plaintiff (Leader), the defendant decided to and did refer the Leader to the Public Prosecutor for a possible prosecution under the Leadership Code on the 5th of May 2002. After studying the referral, the Public Prosecutor requested and the Chief Justice appointed a Leadership Tribunal (the Tribunal) in early February 2003. The Tribunal conducted a number of mentions and directions hearings from 17th February to 5th May 2003. The Leader then filed for a review of the decision by the defendant to refer him to the Public Prosecutor. He provided no explanation for not doing anything about the decision to refer him.

Held:

1.	All applications for review of a decision or an exercise of the powers of the Ombudsman Commission is governed by s. 217 (6) of the Constitution and s.24 of the Organic Law on the Ombudsman Commission (OLOC). Hence, unless an application is brought within the ambit of these provisions, no application for a review of the Ombudsman’s decision or exercise of its power can be allowed.

2.	The Ombudsman’s task is to investigate as widely as possible into allegations of possible breaches of misconduct in office by a leader. In the discharge of that duty, it collects and collates the relevant evidence or facts with a view to referring the allegations to the Public Prosecutor for possible prosecution under the Leadership Code if it is of the view that, there is evidence supporting the allegations. It therefore, makes no final decision affecting the rights and interests of a leader, which can be the subject of a judicial review.

3.	The Ombudsman has wider powers to investigate into alleged misconduct by leaders, including a leader’s private bank account. As such, there is a very fine line between what is of private and public interest from the perspective of a leader.

4.	The test of "whether a fair minded lay observer with knowledge of the material facts might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of a question in issue has a limited application in the context of the Ombudsman’s powers and functions.

5.	In order to make out a case of bias, a reasonable apprehension of a partial or prejudicial decision and not an adverse decision to the prosecution must be firmly established. 

6.	Given the nature and powers of the Ombudsman Commission, no one should interpret expression of emotions, a preliminary view or such other robust conduct of the commissioners as bias.

7.	There has been unreasonable delay in bringing the application and that Leader has not exhausted other available remedies by reason of which leave should be declined.

8.	Even if judicial review is an available remedy, the plaintiff in the present case has failed to demonstrate a case for leave to be granted because:

(a)	the Ombudsman Commission has not made a final decision that affects the rights and interest of the Leader; 
(b)	there is a range of other remedies open to the plaintiff; and
(c)	he has failed to establish an arguable case for review.

9.	For these reasons, the application for leave is declined with costs against the plaintiff.

Papua New Guinean Cases Cited:
NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70.
NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139. 
Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308.
Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & (judgement delivered on ) N
Simon Ketan v. Lawyers Statutory Committee & Anor (28/09/01) N2290.
Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors N2096.
Rimbink Pato v. Anthony Majin & others SC622.
Sir Julius Chan v. Ombudsman Commission N1738.
The Application of Christopher Haiveta (10/11/98) N1798.
Philip Kian Seng Lee v. Honourable John Pundari (09/11/01) N2146.
The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417, 
Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122.

Overseas Cases Cited:
Plaintiff S157/2002 v. Commonwealth of Australia (2003) 195 ALR 23; [2003] HCA 2

Counsels:
Mr. A. Amet Jnr. for the Plaintiff
Mr. D. Cannings for the Defendant

8th May & 30th June 2003

KANDAKASI J:	I delivered an oral judgement on this matter on 8th of May 2003 because of the urgency of the matter and promised to publish my full reasons for the judgement later. This I now do.

This was an application for leave for judicial review by Honourable Bernard Hagoria (the Leader) of the Ombudsman Commission’s (the Ombudsman) decision to refer him to the Public Prosecutor for possible prosecution under the Organic Law of Duties and Responsibility of Leadership (the Leadership Code) over a number of allegations of misconduct in office. The leader also sought in the meantime, a stay of proceedings already commenced before a Leadership Tribunal (the Tribunal) established specifically to hear the allegations against him. 

The Leader claimed that the Ombudsman was biased, unreasonable, and denied him his natural justice by denying him procedural fairness. He further claimed that the Ombudsman breached his constitutional rights particularly ss.20 on the Organic Law of Duties and Responsibility of Leadership and 49 of the Constitution and that the Ombudsman acted ultra vires its powers. 

On the issue of bias, the Leader argued that the Ombudsman was biased when it chose and did conceal by not including in its referral his further responses to the inquiries of the Ombudsman. In relation to the denial of procedural fairness and breach of his constitutional rights, the Leader claimed that the Ombudsman allowed adverse media reports against him in terms of circulating the details of his personal bank account and directed freezing of that account. 

Finally, with regard to the unreasonableness argument, he claimed that the Ombudsman took into account irrelevant factors and in so doing, omitted to take into account relevant factors. He mentioned specifically a failure to take into account the correct financial instruction as to how funds under a Leader’s Social and Rural Development Fund should be dealt with and that such funds though initially deposited into his personal account, were already transferred out. Further he argued that, Ombudsman failed to take steps to verify his responses to the requests the Ombudsman made of him.

The Ombudsman argued for a dismissal of this application on a number of grounds. Firstly, it argued that the Leader is guilty of unreasonable delay in bringing the application. That resulted in the tribunal being set up and that the Tribunal was then set to proceed with the hearing of the charges against him. It was therefore, too late to review the decision to refer the Leader.

Secondly, it argued that the decision to refer the Leader has not finally disposed of any right or interest of the Leader. He has every right to defend himself and be heard in his defence at the Tribunal hearing either on the same issues he has raised before me or the charges, then about to be dealt with by the Tribunal or both. Then even if the Tribunal makes a decision against the Leader, he still has the right to seek a review of that decision. The Ombudsman therefore argued that, the Leader had not exhausted remedies that are still available to him.

Thirdly, it argued that, a review of an exercise of its power or any of its decision is governed by s. 217 (6) of the Constitution. This provision provides that the only ground on which the decisions or exercise of the powers of the Ombudsman can be reviewed is ultra vires. In this case, it argued there was mention of ultra vires in the pleadings and the submissions, but no case of ultra vires was demonstrated on the evidence before me.

Fourthly, it argued that, it has not concealed any of the responses of the Leader. It pointed to the bulky documentation constituting the referral and pointed out that the Leader’s responses have been included and has indicated that it has in its possession the supplementary responses of the Leader.

Fifthly, it argued that, the evidence produced by the Leader did not include the alleged adverse publications and the financial instructions the Leader claimed should have been taken into account.

Issues

These arguments gave rise to a number of issues. They were:

1.	Whether there was delay in bringing the application and if so, whether the Leader provided a reasonable explanation for it?

2.	Having regard to the provisions of s. 217 (6) of the Constitution, is judicial review available as a remedy to review the Ombudsman’s decision to refer the Leader to the Public Prosecutor?

3.	If the answer to question 2 is yes, then on what basis is that possible and whether that basis was established in this case?

4.	Subject to the answers to questions 2 and 3, had the Leader made out a case for grant of leave for judicial review in terms of:
(a)	having exhausted all available remedies; and
(b)	an arguable case of, bias, denial of natural justice and procedural fairness, unreasonableness and a breach of his constitutional rights?

Facts

The facts giving rise to these issues were set out in the affidavits of the Leader sworn on 8th April 2003 and 6th May 2003 as well as an affidavit by Mr. Chronox Manek sworn on the 25th of April 2003. From these affidavits, it is clear that, the Leader was an accountant by profession and was and is the Member of Parliament for Yangoru-Sausia Open Electorate. This was his second term in Parliament after first entering Parliament on 17th March 2000. 

In May 2001, the Ombudsman obtained information concerning alleged irregularities in the application of public funds allocated to him under his District Support Grant Program. The funds totalled K1.75 million meant for heath, education and other basic infrastructure services in his electorate. The information obtained by the Ombudsman revealed that such funds were deposited into the Leader’s own personal account instead of through the Provincial Treasury. This was despite advice given to him. His account had a credit balance of K1, 824.32 prior to the deposit of the public funds. 

The Leader then had his account debited in terms of K1, 193, 236.04 in cheques, K32,530.00 in ATM transactions, K9,396.90 in EFTPOS transactions and K4, 029.10 in other miscellaneous transactions. During the period investigated, the Ombudsman found that K34, 009.49 representing his salary were also credited into his same personal account. 

On 18th October 2001, the Ombudsman served the Leader with his right to be heard notice dated 12th October 2001. The Leader responded to that by letters dated 27th November and 3rd December 2001. After considering the Leader’s response, the Ombudsman found that there was a prima facie case of misconduct in office against the Leader. Having arrived at that conclusion, the Ombudsman decided on 30th April 2002 to refer the Leader to Public Prosecutor for possible prosecution under the Leadership Code. The actual referral took place on 3rd May 2002. 

The referral contained the Ombudsman’s decision to refer the reasons for it and the evidence supporting its position. That included the Leader’s first response. As for the supplementary responses, the Ombudsman indicated in its reasons for referral that it had those in its possession.

After considering the referral, the Public Prosecutor requested the Chief Justice on 21st November 2002, to convene a tribunal to inquire into a total of 9 allegations of misconduct in office. The Chief Justice established a tribunal on 14th February 2003. 

The Tribunal commenced its proceedings by mentioning the case on 17th and adjourning it to 21st of February 2003, to enable the Leader to appear. On 21st of February 2003, the Leader appeared with his lawyer. The Public Prosecutor formally presented the allegations and the proceedings were adjourned to 17th of March 2003 for further mention and or directions hearing. On 17th of March 2003, the Leader informed the Tribunal that it had instructed his lawyers to file an application for a review of the decision of the Ombudsman to refer him to the Public Prosecutor. So the Tribunal adjourned and ordered the Leader’s lawyer to appear and confirm the status of his application and had the matter adjourned to 18th March 2003.

On 18th of March 2003, Mr. Amet Jnr. of Poro Lawyers appeared and confirmed that his firm had received instructions from the Leader and they were in the process of applying for leave for judicial review. He then asked for and was granted more time to prepare and present the case for leave for judicial review and that was granted. The tribunal adjourned its proceedings from 7th of April and at various times until 8th of May 2003. 

On 8th of April 2003, the Leader filed this application but was not ready for hearing until 8th of May 2003. 

There was no issue on these facts and I found them to be the relevant facts. At the same time, there was nothing supporting the Leader’s allegation of the Ombudsman publishing his personal accounts. I therefore rejected that claim and proceeded to deal with the matter on the basis of the above facts.

First Issue - Delay

The first issue I considered and dealt with was the timing of the application. It is settled law that leave for judicial review must be sought promptly once the decision sought to be review has been made. The Court rules stipulate a period of 4 months within which such an application should be filed. So if an application is brought within that period there can be no issue. But an issue does arise when an application is brought outside that time limit. Both the Court rules and the case law that has built around it say that when such an issue arises, the question then becomes whether the delay is undue and unreasonable. 

These principles also state that, each case must be decided on its own facts on the evidence before the Court. Thus, if on the evidence available, the delay in bringing the application is unreasonable, the Courts are likely to come to a finding of undue delay and therefore refuse to grant the application. See examples of authorities on point, NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70 and NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139. Recent applications of these principles are cases like that of Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308.

In this case, the Ombudsman decided to refer the Leader to the Public Prosecutor on 30th of April 2002. The actual referral took place on 3rd of May 2002. There was no evidence of the Leader doing anything against the decision to refer and the referral itself. In the meantime, the Public Prosecutor proceeded to consider the referral and finally decided to request the Chief Justice to appoint a leadership tribunal to hear charges of possible breaches of the Leadership Code by the Leader. That decision was taken on 21st of November 2002. Again the Leader did nothing about that, and the Chief Justice proceeded to appoint a leadership tribunal on 14th of February 2003. 

The Tribunal convened and sat, albeit briefly on a number of occasions from 17th of February to 5th of May 2003. Except for intimations to the Tribunal in April 2003 of an application for a review of the Ombudsman’s decision to refer him, the Leader did nothing more meaningful until the May 2003 just as the Tribunal was schedule to commence its hearing.

There was no explanation provided for the delay by the Leader. All he said was that, he was not served with the actual charges until at the Tribunal. Two factors operate against what the Leader said. Firstly, the application was asking for leave to review the decision of the Ombudsman to refer the Leader to the Public Prosecutor. The presentation of the actual charge is a decision the Public Prosecutor always has based on a referral from the Ombudsman and is usually presented on the first day of the convening of a leadership tribunal.

Secondly, there is no dispute that the Leader received the decision to refer with all of its supporting documents including the reasons for the Ombudsman's reason to refer at about the time of the actual referral in May of last year. The referral consists of 409 pages with the first 16 containing the decision to refer and the reasons for that. These were with the Leader for over 6 months before the Public Prosecutor requested the Chief Justice to constitute a leadership tribunal to hear charges of misconduct in office by the Leader. A further 2 to 3 months passed from the date the Public Prosecutor requested the Chief Justice to constitute a leadership tribunal. Thereafter an additional 4 months passed from the date the Chief Justice constituted the tribunal. The Tribunal convened for the first time and the charges were formally presented and the date when the application was finally argued before me. There was no evidence of anything being done about the decision to refer the Leader and the steps that were taken consequential on that.

In these circumstances I was left with no reasonable explanation for the delay of almost a year from the date of the decision and the actual referral to the date of the hearing of his application. The lack of any prompt action against the referral allowed the Public Prosecutor to request the Chief Justice to constitute a leadership tribunal which was done and the Tribunal had progressed to commence a hearing into the charges against the Leader.

It is settle law that a person concerned with an administrative or quasi-judicial decision must act promptly to maintain the status quo and to avoid further step from being taken. Where a person affected by a decision fails to act promptly and further steps have been taken based on the decision in question, it may be difficult to grant the leave sought. This is because it might be difficult to reverse what had happened on the basis of the decision sought to be reviewed and it might involve a lot of costs and inconvenience not only to the parties but other third parties.

In this case, the Public Prosecutor had acted on the referral and so did the Chief Justice on the request of the Public Prosecutor. The Tribunal appointed by the Chief Justice convened and was just about to commence its hearing after administering a number of directions in preparation for the hearing. This can not easily be stopped because it would have meant a lot of expenses to the State and her people and of course inconvenience to the members of the Tribunal and the process of their appointment. 

I was thus inclined to refuse the leave sought by the Leader on the basis of undue delay for which the Leader provided no reasonable explanation. This was not the only reason for declining leave. There were other reasons in the context of the remaining issues. Speaking of which, I deal firstly with the issues raised in questions two and three of the issues before me.

Issues 2 &3 - Review and the basis for review of decision of the Ombudsman

Section 217(6) of the Constitution provides that:

"(6)	The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction."

I accept Mr. Canning’s argument that, this provision allows for a review by both the Supreme and the National Courts, the decisions of the Ombudsman but only on the basis provided. The basis provided is in cases where the Ombudsman has exceeded its jurisdiction. This is repeated in s. 24 of the OLOC.

It is well accepted that the Constitution is the highest law of the land to which all the other laws are subject to. The power in the National Court to judicially review and supervise, thereby the exercise of administrative decisions is Order 16 of the National Court Rules 1988 and s. 155(3) (b) of the Constitution. However, s. 155(3)(b) is subject to the exception in that subparagraph (3), which stipulates that "except where the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament." This means, in my view, the power of the National Court is subject to any Constitutional or other Acts of Parliament concerning the Court’s review powers.

This is not unique to Papua New Guinea. Australia has similar provisions. This has come to the lime light in the context of that country’s immigration laws. A case on point is Plaintiff S157/2002 v. Commonwealth of Australia (2003) 195 ALR 23; [2003] HCA 2. This case highlights the point that the power in the courts to review administrative decision is not absolute. It can be restricted or even removed. 

Section 217 (6) of our Constitution and s.24 of the OLOC, do not in my view, remove completely the power in the courts to judicially review the decisions of the Ombudsman. Instead it restricts it to cases in which the Ombudsman exceeds its jurisdiction. It follows therefore that, in order for a judicial review of a decision of the Ombudsman to proceed, the application must come within the terms of s. 217 (6) of the Constitution and s. 24 of the OLOC.

In this case, the Leader claimed that the Ombudsman acted ultra vires its powers. This was done without any reference to any particular provision in the Constitution or the OLOC and did not show how the Ombudsman exceeded its powers. The only concern the Leader appeared to have was in relation to the Ombudsman getting details of his personal accounts and examining them particularly in relation to the receipt into and paying out of that public funds account. He also claimed there was a publication of his account details but did not have that supported by any evidence and I rejected that claim as having no factual basis.

The Ombudsman is an authority established under the Constitution and the OLOC. Section 13 of the OLO and s.219 of the Constitution provide the function of the Ombudsman Commission is:

"…to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—

(a)	any State Service or a member of any State Service; or
(b)	any governmental body, or an officer or employee of a governmental body; or
(c)	any other service or body referred to in Section 219(a)(functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section." 

Section 16 of the OLOC empowers any person to make a complaint to the Ombudsman. It also empowers the Ombudsman to investigate into a complaint once it is in receipt of it unless the nature of the complaint is not within its jurisdiction or it decides not to do so for a number of specified reasons. Where the Ombudsman decides to investigate either upon a complaint or on its own initiative s. 17(3) of the OLOC empowers it to:

 "… hear or obtain information from any person who the Commission considers can assist and may make whatever inquiries it thinks fit." 
(Emphasis supplied)

It is clear therefore that, the Ombudsman has a wider power to investigate into allegations of any misconduct in office by leaders who come under the provisions of the Leadership Code. A leader, who is covered by the Leadership Code, is subject to the investigative powers of the Ombudsman for and on behalf of the people of Papua New Guinea. Such investigations cover both the public and private life of a person in my view, because there is a very fine line between what is public and what is private. 

As I observed in the course of arguments, once a person becomes a leader and assumes a public life, both his public and private life and therefore his conduct come under the microscope because no one can easily draw the line between what is public and what is private. For example, it may be a private matter for a leader to choose his friends and associates but it becomes a public concern as to the kind of friends and associates he has. Most of the corrupt deals by leaders are committed through friends and associates. Therefore it becomes a matter of public interest. I also observed in the course of the arguments that, even who a leader goes into bed with and where may be a matter of public interest. This is because if a leader is leading a questionable moral character that may raise questions as to his qualifications to become and or remain a leader.

 Having said these, I could not see how the Ombudsman could have exceeded its powers. The evidence however suggests that the Ombudsman acted within its powers when it conducted its investigations and decided to do the referral. Accordingly, I was of the view that the Leader’s application did not come within the ambit of s. 217 (6) of the Constitution and s. 24 of the OLOC.

There was an additional reason why I could not grant the Leader his application for leave. This had to do with the other requirements that an applicant for leave for judicial review must ordinarily meet, particularly, show that he has exhausted all other available remedy and establish an arguable case on the merits to be review. This is the subject of the 4th and remaining issue.

Issue 4 – Has the Leader made out a case for judicial review?

I will deal firstly with the need to exhaust all other available remedies before resorting to judicial review. But before getting into that, it is necessary to understand what is involved in judicial review.

As I recently said in Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Cyprian Warokra (judgement delivered on 14/05/03) N2369, the basis on which judicial review is available as a remedy is well settled in our jurisdiction. Judicial review is about the scrutiny of administrative decisions by public or statutory authorities and or bodies that affect the rights or interest of a person. But that has to do with the process of arriving at a decision and not necessarily the correctness or otherwise of a decision itself: See Simon Ketan v. Lawyers Statutory Committee & Anor (28/09/01) N2290. 

Then as I said in Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (25/5/01) N2096 at page 8:

"The objective, as can be seen from the authorities … for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the Court’s time. It also helps to remove uncertainties in the public offices and authorities as to whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived. 

Broadly, the matters relevant for consideration in the exercise of the Court’s discretion in determining an application for leave for judicial review, fall under a number of legal principles. These are locus standi, the decision sought to be reviewed has been made by a public body or authority, an arguable case on the merits, exhaustion of other remedies and making the application promptly. 

I now … add that a Court considering whether or not to grant leave for judicial review should consider whether the case or the subject is one in which the courts can enter into to grant leave and then review the alleged decision. That in my view falls within the context of the well accepted principle of an applicant for leave for judicial review needs to prove or demonstrate an arguable case for judicial review". 

This judgement went to the Supreme Court on appeal. I am informed that the appeal was upheld particularly in relation to the application of these principles to the case. The Supreme Court appears to have found that I had gone more into the merits of the case to determine whether or not an arguable case was established. To date the Supreme Court is yet to publish its reasons and I wait to be enlightened. Meanwhile, I note that the subsequent review of the decision, the subject of the review application, eventually dismissed the application on the same reasons I had advanced in my decision.

Hence, the principles governing judicial review as stated in that case remain good. I followed them in my subsequent judgement in Simon Ketan v. Lawyers Statutory Committee (supra). That was in the context of an application to review a decision by the defendants to investigation into the conduct of the plaintiff in relation to the NPF Commission of Inquiry for the purposes of determining whether or not to charge Mr. Ketan under the Lawyers’ Act. His application was dismissed on the grounds that it was premature. That was because no decision affecting his rights or interest was made and he still had the opportunity to defend himself, if he was eventually charged.
 
In so doing, I had regard to the Supreme Court judgement in Rimbink Pato v. Anthony Majin & Ors (30/04/99) SC622. There the Supreme Court had before it a case of an interim junction. Mr. Pato obtained the injunction against the Police Force from carrying out their constitutional duties of conducting investigations into alleged criminal conducts with a view to laying charges if the investigations disclosed sufficient evidence to sustain any charge. The injunction was subsequently lifted on the application of the respondents and Mr. Pato appealed against the lifting of the injunction. The Supreme Court at page 5 said:

"We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to s.57 of the Constitution. We can not see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy … he has the right to sue and issue proceedings for defamation under the Defamation Act."

I also had regard to the judgement in Sir Julius Chan v. The Ombudsman Commission (15/07/98) N1738, where the National Court declined to grant leave for a judicial review of investigations by the Ombudsman into possible misconduct in office by leaders involved in the Cairns Conservatory deal.

Based on these authorities, I concluded in the Wilson Kamit case (supra) that in addition to meeting the other requirements for leave for judicial review the following elements must be met:

"1.	there must be a decision that affects the rights and interests of a person;
2.	the person concerned has no way of defending himself if further steps are taken against him or her based on the evidence or facts that might be established by any investigation or a decision;
3.	there is no other available remedy including an action for defamation of character;
4.	the decision was made by a public or statutory authority or a body; and
5.	the person claim judicial review is concerned with the process leading to the decision concerned and not the decision itself."

The case before me now involves the Ombudsman, which is an authority established under the Constitution and the OLOC. As already noted s. 13 of the OLOC and s.219 of the Constitution provide that the function of the Ombudsman Commission is to investigate on its own initiative or on a complaint concerning the conduct of a public authority, be it an institution or a natural person. In the exercise of its powers the Ombudsman "may make such inquiries it thinks fit" (s.17(3) OLOC). 

The Ombudsman is not vested with any power to make any final decision that affects the rights or interest of any person. It is only empowered under s. 22 (2) of the OLOC to report its opinion, and the reasons for its opinion, to the relevant authority including the Public Prosecutor for appropriate action. This power can only be exercised, if the Ombudsman is of the view that the conduct, procedure or practice investigated is wrong, defective or discriminatory. 

In this regard the Ombudsman is similar to a commission of inquiry except that a commission of inquiry is for a particular issue and once the inquiry is completed it no longer exists. The Ombudsman is a permanent authority under our Constitution. That difference aside their task is a public task. That task is restricted to collating evidence in relation to the matters that it is tasked to inquire into and if a case of wrong doing is disclosed, make findings of the relevant facts and forward a report of its findings and its reasons for it to the relevant authorities. Other persons are therefore vested with the power to act on the reports if they wish. If further action is taken the persons implicated have the right to defend themselves and to be heard in their defence before a final decision affect their rights and or interests is arrived at.

I made observation in these terms in the Wilson Kamit case (supra). There I also observed that as to what happens after a commission of inquiry has furnished its report was demonstrated in the recently concluded inquiry into the affairs of the National Provident Fund. 

The relevant commission of inquiry made the relevant findings of fact and made certain recommendations to the persons who have the authority to take the appropriate steps such as the Police to appropriately deal with those implicated of a wrong doing. The police were and are carrying out their own investigations and if satisfied that a criminal offence has been committed, those responsible will be charged. Once charged, those charged will have the full protection of the law in accordance with the dictates of the Constitution. Based on these views I concluded that it was:

"doubtful as to whether judicial review is available to review the findings and recommendations of a commission of inquiry and therefore its processes before that."

In arriving at that view, I had regard to Woods J’s judgement in The Application of Christopher Haiveta (10/11/98) N1798. That was in relation to the second report of the Sandline Commission of Inquiry. His Honour expressed a view similar to the one I have expressed in the Wilson Kamit case (supra). 

At the same time, I expressed the view that, the work of a commission of inquiry is akin to police conducting investigations as represented by the Rimbink Pato case. I also considered that the situation was similar to a lawful authority such as the Papua New Guinea Law Society as represented by the Simon Ketan case, conducting investigations to establish the facts in relation to a particular issue of concern to the public. 

The aim in all of these cases is to investigation into allegations, gather the relevant facts and collate them and if any wrongdoing is disclosed, lay charges in the case of police work and or make recommendation for appropriate remedial action in the case of a commission of inquiry and the Ombudsman. The actions recommended may or may not be taken by those who have the power to take them and may not result in a final determination of the rights and or interests of the persons implicated. Where the actions recommended are taken, in all of these cases, the full protection of the law including the presumption of innocence in the case of a criminal charge are still intact and could be taken advantage of by those implicated.

But I do note as I did in the Wilson Kamit case (supra) that, these investigating institutions might make decisions or take steps that might affect the rights and interests of some people. This might be in relation to their process and the way in which they might receive evidence and deal with persons who might be implicated or those that might be featured adversely in their findings of fact. To that extent, they may have the power to make decisions that might extinguish the rights and interest of persons both natural and legal. Only in that respect, judicial review may be available. Otherwise those who may be implicated in any investigation report still have intact their right to defend themselves or pursue other remedies should further action be taken against themselves. 

In this case, the Ombudsman conducted investigations into the alleged misconduct in office by the Leader. At the end of that process, it decided to refer the Leader to the Public Prosecutor for possible prosecution under the Leadership Code. The Public Prosecutor then requested the Chief Justice to establish a tribunal to hear and determine charges of possible misconduct in office. The Leader has fully intact his rights to defend himself and be heard in his defence before the tribunal returns a verdict of either guilty or innocent in relation to the charges that have been presented against him. Most of the issues raised in this application by the Leader could be raised at the Tribunal in response to the charges against the Leader.

This leads me to the specific question of whether the Leader has exhausted all available remedies before applying for judicial review. A simple answer to that question is that the Leader is yet to exhaust remedies that are still open to him. 

It is settled law that, judicial review is the last avenue or last resort after exhausting all available resources. The law requires all available opportunity to be exhausted before one could resolve to judicial review. I noted this in Philip Kian Seng Lee v. Honourable John Pundari (09/11/01) N2146, where I observed that this is a cardinal requirement in the sphere of judicial review. In so doing, I had regard to the Supreme Court decision in The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417, per Kidu CJ. and Woods, which was followed in Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122. At the same time, I noted that this requirement is subject to an applicant showing that exceptional circumstances exist warranting judicial review as opposed to exhausting an available remedy. That was based on the same authorities.

In the present case, the Leader has not made out case of having exhausted available remedies or failing that his case falls into the exception to the requirement to exhaust all available remedies. Perhaps this is an acknowledgement that, he still has other remedies open to him. 

The final issue I turn to is the question of whether the Leader has demonstrated an arguable case on the merits for review.

Arguable Case

The plaintiffs claim that, the Ombudsman acted unreasonably and ultra vires its powers. This begs the question whether the Leader has demonstrated a prima facie case of procedural unfairness and acted outside its jurisdiction and its set procedures in conducting its investigations and arriving at the decision to refer him.

As already noted, the Leader has not pointed to any power or jurisdiction of the Ombudsman and any of its procedure and point where or how the Ombudsman acted outside its powers and departed from its procedure. Similarly, he also failed to show where and how the Ombudsman acted unfairly. The onus is always on an applicant for leave for judicial review to make out an arguable case on the merits for judicial review in addition to meeting the other requirements. The Leader failed to discharge that onus in this case.

The evidence instead shows that the Leader was given more than one opportunity to be heard in its defence. This is evidenced in the main and the supplementary responses to the Ombudsman’s inquiries. The Ombudsman appears to have considered the Leader’s response and then decided to refer the matter to the Public Prosecutor. Apart from a mere claim by the Leader that the Ombudsman publicized the Leader’s personal account, there is no evidence that in fact occurred. 

The Leader also made claims in his affidavit and the Statement filed in support of his application that the Ombudsman was biased. But he failed to provide any evidence or facts forming the foundation for the allegation. 

I discussed the law in relation to bias in context of a commission of inquiry and or a police investigation in the Wilson Kamit case (supra) and I need not repeat them here save only to restate the summary based on a number of authorities in these terms. 

"1.	A Court should not lightly conclude that an allegation of apprehended bias is made out, let along actual bias. Reasonable apprehension must be firmly established, not left at a level of speculation.
2.	The reasonable apprehension must be of a partial or prejudicial decision, not of a decision adverse to the prosecution.
3.	A Commission of Inquiry is inquisitorial in nature and gives Commissioners extensive powers to compel the giving of evidence and the production of documents.
4.	Commissioners are to be expected to play a far more active role in ascertaining facts then occurs in a Court.
5.	A wide range of expression and conduct must be permitted for a Commissioner, and one should not interpret robust conduct as bias.
6.	The opinion of a party is not critical but rather the hypothetical observer or "reasonable bystander". It would not be unusual, for parties not to be happy with the remarks or conduct of Judges. This does not mean bias has been established.
7.	Judges and Commissioners, like witnesses, are human. Despite their professional training, they are in varying degrees likely to show the range of emotions to which humanity is heir.
8.	What a Commissioner says should be looked at as a whole and seen in context."

I am of the view that these principles equally apply here. Then applying these principles to the case before me, I find that the allegation of bias has not been firmly established. Instead it has been left at best only as a speculation without any basis and any particulars of any sought. So it renders unnecessary for further consideration and application of the various principles governing this issue.

Besides, just like a commission of inquiry or police conducting investigations into certain allegations or issues of concern to the public, the Ombudsman has wide powers to investigate, gather evidence, collate them and present them to the appropriate authority to take further action. The only requirement for these investigating authorities to adhere to is to appropriately note and grant those affected the right to be heard in their defence before arriving at a decision or conclusion. They are therefore expected to play a far more active role in ascertaining facts then a Court would. Thus, it is appropriate to allow for a wide range of expression and conduct of the Ombudsman and no one should interpret any robust conduct on the part of the Ombudsman in the proper exercise of its powers as bias.

In these circumstances, I find that the claim of bias has no basis on the evidence before me. The consequence of this finding and the earlier finding in relation to the claim of not being granted procedural fairness, I am not persuaded that the plaintiffs have established an arguable case warranting a grant of leave for judicial review.

Having regard to all of the above, I found that the Leader had not made out a case for grant of leave for review. I therefore declined the leave sought and ordered his action to be dismissed with costs to the defendants.
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Lawyers for the Plaintiffs:	Poro Lawyers
Lawyers for the Defendants:	David Canning, Employed Lawyer