N2478

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 479 OF 2003

BETWEEN:

DAN SALMON KAKARAYA
First Plaintiff

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI:		KANDAKASI, J.
2003:	3rd September
24th October

ADMINISTRATIVE LAW – Application for leave for judicial review - Decision of the Ombudsman Commission (Ombudsman) – Grounds on which the proceedings of the Ombudsman can be reviewed – Excess of jurisdiction only basis for review of Ombudsman Commission’s proceedings – S. 217(6) of the Constitution 

ADMINISTRATIVE LAW – Application for leave for judicial review of a decision by the Ombudsman to refer the Managing Director of the Mineral Resources Development Corporation (MMRDC) to the Public Prosecutor for possible prosecution under the Leadership Code – Whether the decision amounts to an exercise of power in excess of the Ombudsman’s powers – Ombudsman as power to determine whether a person is subject to the Leadership Code - A failure to challenge it amounts to acceptance – Determination within the intent and purpose of the Leadership Code – Leaders of corporations subject to the control of the State covered under the Leadership Code and the powers of the Ombudsman within the meaning of "statutory corporation" under s. 26 (1)(g) of the Constitution - Ss 26 (1)(g) and (4) and of Constitution. 

ADMINISTRATIVE LAW – Need to exhaust available remedies – Decision by Ombudsman to refer – Not a final decision affecting a right or interest of the plaintiff made – Opportunity to raise the same issues before a Leadership tribunal still existing – Available remedy not yet exhausted - Leave denied.

ADMINISTRATIVE LAW – Right to be heard before decision to refer a leader to the Public Prosecutor for possible prosecution under the Leadership Code – Leader given more than one opportunity to be heard but failing to exercise his right – No reasonable explanation provided for the failure – Claim of being sick at the relevant time not supported by the evidence before the Court - Application declined.

WORDS & PHRASES – "Statutory Corporation" within the meaning of s.26(1)(g) of the Constitution – Includes all corporations created under a statute and is ultimately under the direction and control of the State – s.26 (1)(g) of the Constitution.

Facts:

Following investigations into certain allegations of misconduct in office by the plaintiff (Mr. Kakaraya), the Ombudsman decided to and did refer Mr. Kakaraya to the Public Prosecutor for a possible prosecution under the Leadership Code. This related to his conduct has heads respectively of the Consumer Affairs Council (CAC) and the Mineral Resources Development Corporation (MRDC). A total of 7 weeks was given to Mr. Kakaraya to respond to and be heard in relation to certain allegations of misconduct in office levelled against him. But Mr. Kakaraya failed to do that and claimed he was medically unfit during the relevant period, with the support of a medical report for one day for flue.

Mr. Kakaraya applied for leave for a review of the decision by the Ombudsman to refer him to the Public Prosecutor for possible prosecution under the Leadership Code. He claimed the defendant lacked jurisdiction because the institutions particularly the MRDC, he was a head of was a private company following incorporation under the Companies Act 1997, although it was a company that was owned and controlled by the State. He raised no specific argument in relation to his conduct has head of the CAC. He also claimed that he was not given ample opportunity to be heard in his defence before the decision to refer and as such the defendant was actuated by ulterior motive.

Held

1.	All applications for review of a decision or an exercise of the powers of the Ombudsman 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. Followed, Bernard Hagoria v. Ombudsman Commission.

2.	The Ombudsman’s task is to investigate as widely as is 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. Followed, Bernard Hagoria v. The Ombudsman Commission and Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Ors. 

3.	The intent and purpose of the Leadership Code and the Constitution s. 219 is to secure transparency and proper accountability by persons and institutions occupying positions of responsibility and dealing with public funds and other matters of public interest and concern. In line with that intent and purpose, all governmental or public bodies incorporated or not including those incorporated under the Companies Act 1997 for a public purpose and where the State is the sole shareholder having the power to appoint members of the board and or the managing director, is a "statutory authority" within the meaning of s.26 (1)(g) of the Constitution. 

4.	The MRDC although incorporated under the Companies Act 1997, it is a public institution because the State has a controlling share and has the power to appoint members of the board and its managing director. Accordingly, Mr. Kakaraya being the relevant head of the institution at the relevant time was correctly subjected to the powers of the Ombudsman. 

5.	In the event of a doubt as to whether a leader or institution is subject to the powers and functions of the Ombudsman, a determination of that issue by the Ombudsman under s. 26(4) of the Constitution is final subject only to a review of that decision. Taking no issue on such a determination once made by the Ombudsman amounts to no issue and acceptance of the determination. 

6.	There was uncertainty as to proper meaning to be given to the phrase "statutory authority" as used in s. 26(1)(g) of the Constitution, in the context of the MRDC. This was so in the absence of any clear pronouncement by a judgement of this or the Supreme Court and or an Act of Parliament as to what was covered under by that section. It was therefore open to the Ombudsman to make a determination, which was made and there being no challenge to it at the relevant time, it was accepted as correct and is now not open to argue for its nullity. 

7.	A person coming under the investigatory powers of the Ombudsman is under an obligation to respond within the time period given. Failing to do so, amounts to an acceptance of the allegations and consent for the Ombudsman taking the next step, unless good reasons satisfactory to the Court are provided. 

8.	In this case, the Ombudsman acted reasonably and without any ulterior motive when it granted Mr. Kakaraya more than one extension 7 weeks in total and refusing to grant a further extension when he made no good case for such extension. 

9.	It is a cardinal principle in applications for leave for judicial review that all available remedies must be exhausted as judicial review is a remedy of last resort except in an exceptional case. Cited, Philip Kian Seng Lee v. Honourable John Pundari, The Independence State of Papua New Guinea v. Kapal, and Kekedo v. Burnsphilip (PNG) Ltd.

10.	A decision of the Ombudsman does not amount to a final decision affecting the rights and interest of a person or institution affected. Instead it is part of a process that must be completed just like police and other investigations. As such, those who are affected still have the right to be heard if referred to the Public Prosecutor and a leadership tribunal and even thereafter they still have the right to seek a review of such a tribunals decision. In the circumstances an application for a review of a decision to refer to the Public Prosecutor amounts to an attempt at preventing the process from completing its course. Followed, Simon Ketan v. Lawyers Statutory Committee, Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Cyprian Warokra, Bernard Hagoria v. The Ombudsman Commission, Rimbink Pato v. Anthony Majin & Ors, Sir Julius Chan v. The Ombudsman Commission,

11.	Mr. Kakaraya had not exhausted all available remedies before going to Court for judicial review and did not make out an exceptional case to warrant judicial review. He still had intact, his rights to be heard in his defence before a final decision by a leadership tribunal and even after that he still had the right of review by the National Court. 

12.	For these reasons the application for leave to review the decision of the Ombudsman was declined with costs against Mr. Kakaraya.

Papua New Guinean Cases Cited:
Bernard Hagoria v. Ombudsman Commission (Unreported judgement delivered 26/05/03) N2400.
Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Ors (judgement delivered on 14/05/03) N2369.
The Ombudsman Commission of PNG v. Denis Donohoe [1995] PNGLR 348.
The Independent State of Papua New Guinea v. Barclay Brothers (PNG) Ltd (Unreported judgement delivered 06/06/01) N2090.
Timothy Peter Neville and Peter John Dalton Neville v The Privatization Commission (unreported judgement 26/11/01) N2184.
Enforcement Pursuant to Constitution s57; Application by Gabriel Dusava (unreported judgement delivered 27/10/98) SC581.
SCR No 6 of 1984 [1985] PNGLR 31.
PLAR of 1980 [1980] PNGLR 326.
Odata Ltd v. Ambusa Copra Oil Mill Ltd (Unreported judgement delivered 06/07/01) N2106.
Iambakey Okuk v Fallsheer [1980] PNGLR 274.
Leo Nuia v Benias Sabumai [1992] PNGLR 90.
Simon Ketan v. Lawyers Statutory Committee & Anor (Unreported judgement delivered on 28/09/01) N2290.
Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (Unreported judgement delivered on 25/5/01) N2096.
Peter Ipu Peipul v. Sheehan J, Mr Orim Karapo and Mr Iova Geita (Constituting the Leadership Tribunal) & Ors (unreported judgement delivered 15/03/02) N2232.
Peter Peipul v. Hon. Justice Sheehan, Mr Orim Karapo & Iova Geita (Leadership Tribunal) & Ors (SCM 2 of 2002) (Unreported Judgment of the Supreme Court dated 1st May 2002).
Rimbink Pato v. Anthony Majin & others (unreported judgement delivered 30/04/99) SC622.
Sir Julius Chan v. Ombudsman Commission (Unreported judgement delivered on 15/07/98) N1738.
The Application of Christopher Haiveta (Unreported judgement delivered on10/11/98) 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. Manase for the Plaintiff
Ms.E. Gaegaming for the First Defendant
Mr. M. Kua for the Second Defendant

24th October 2003

KANDAKASI J:	The plaintiff, Mr. Dan Salmon Kakaraya (Mr. Kakaraya) is applying for leave for judicial review of the Ombudsman Commission’s (the Ombudsman) decision. The decision was to refer him to the Public Prosecutor for a possible prosecution under the Organic Law on Duties and Responsibilities of Leadership and s. 26 of the Constitution (together the Leadership Code). That is over a number of allegations of misconduct in office as the managing director of the Mineral Resources Development Corporation (MRDC) and the executive director of the Consumer Affairs Council (CAC).

The application is based on three main grounds. Firstly, Mr. Kakaraya argues that the Ombudsman does not have jurisdiction over the managing director of the MRDC. Therefore, it acted in excess of its powers when it carried out investigations and eventually decided to refer him to the Public Prosecutor. Secondly, he claims that he was not given adequate opportunity to be heard in relation to the allegations against him first before deciding to refer him. Thirdly, he claims that the Ombudsman was actuated by ulterior motive when it decided to refer him to the public prosecutor. The last two grounds are submitted as amounting to the Ombudsman acting in excess of its jurisdiction.

The argument in response is that, the Ombudsman’s jurisdiction covers the managing director of the MRDC. That position was clarified and confirmed by decision number 02-210-02 and 02-210-03 dated the 29th of July 2002, pursuant to s. 224 and 26 (4) of the Constitution. These decisions covered the office of the executive director of CAC, and the managing director of MRDC. Mr. Kakaraya occupied the former and was from there that he got appointed to the latter. The Ombudsman pointed out that, Mr. Kakaraya did not take any issue with these decisions at any time prior to the decision to refer him to the Public Prosecutor. Hence they argue that he is now precluded as a matter of law from taking any issue with the Ombudsman’s jurisdiction. Accordingly, they submit that Mr. Kakaraya’s argument on jurisdiction of the Ombudsman should be dismissed. The State supports these arguments and the following.

As for the argument on the right to be heard and the Ombudsman being actuated by an ulterior motive, the argument in response is simply this. A total of 7 weeks was given to Mr. Kakaraya to respond to the allegations against him but he did not do that. In the absence of any response and evidence to the contrary, the Ombudsman had sufficient basis to arrive at the conclusion that there was a prima facie case of a possible breach of the Leadership Code. Thus, it is submitted that these grounds are without any foundation and as such they should also be dismissed.

Further, relying on my judgements in Bernard Hagoria v. The Ombudsman Commission and Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Other, the defendants argue that, the plaintiff has other remedies, especially, a leadership tribunal if established, at which he could raise the arguments he now raises. This they submit amounts to a failure to exhaust all available remedies before coming to this Court in the way Mr. Kakaraya has. The response to this argument is that, it is not necessary and is indeed a waist of time and other resources to go to such a tribunal, given Mr. Kakaraya’s argument on jurisdiction.

Issues

About four main issues arise from these arguments. They were:

1.	Whether the Ombudsman’ jurisdiction covers the position of the managing director of the MRDC?
2.	Was Mr. Kakaraya denied his right to be heard before the decision to refer him to the Public Prosecutor was arrived at?
3.	Was the Ombudsman actuated by an ulterior motive when it decided to refer Mr. Kakaraya to the Public Prosecutor?
4.	Has Mr. Kakaraya exhausted all available remedies before coming to this Court?

These questions could be better understood and answered in the context of the relevant facts. It is therefore necessary for us to give consideration to the relevant facts first.

Facts

The relevant facts are in Mr. Kakaraya’s two affidavits of 21st August 2003. From these it is clear that, Mr. Kakaraya is a fully admitted lawyer by profession. On the 23rd of August 1999, he was appointed executive director of the CAC and Price Controller. That was for a period of 4 years. Subsequently, he was appointed chief Liquor Licensing Commissioner. Thereafter, he was appointed managing director of MRDC for a term of 4 years. A year later on 3rd October 2002, he was suspended as managing director of MRDC by the Prime Minister and Minister responsible on behalf of the State who is the sole shareholder of MRDC. The MRDC is a company incorporated under the Companies Act 1997. It has a constitution and a board that is answerable to the State.

The suspension followed a numbered of allegations levelled against Mr. Kakaraya. These allegations concerned certain financial transactions out of the CAC’s accounts during Mr. Kakaraya’s term as its executive director. They also concerned certain alleged substantial increases and advances made under his contract without the MRDC’s board approval totalling about K779,164.00 which represented about K318, 530 .00 more than what he was entitled to under his contract of employment. A further allegation concerned the early termination and withdrawal of a female employee’s earlier board approved scholarship, without any board approval.

The Ombudsman conducted an investigation into these allegations, under the Leadership Code. In the meantime, it directed the MRDC not to pay out Mr. Kakaraya any termination entitlements by a letter and directive dated 9th August 2002. In other words the Ombudsman in effect directed the MRDC not to terminate and pay Mr. Kakaraya out until the allegations against him are fully investigated and completed and resolved. But Mr. Kakaraya claims the Ombudsman through this letter treated him with contempt and disrespect and is an indication of an ulterior motive to get rid of him. In so doing, he refers to hand written notations purportedly by Ombudsman officials, stating to the effect that the investigations were delaying the appointment of the managing director and that he should be given an extension of not more than 7 days. But I am not able to work out what is in the hand written notes because they are not clear. In any case, I do not find this claim convincing on the basis of what I have already stated above. It is also on the basis that, it is a step the Ombudsman had to take to secure the interest of the MRDC, whilst waiting for the investigations to be properly concluded.

Later by letter dated 9th May 2003, the Ombudsman served on Mr. Kakaraya his right to be heard. The letter detailed the allegations and explained the steps he must take in his defence. Also it stipulated 21 days for him to respond. Mr. Kakaraya claims he was shocked to receive this notice, as he was not previously told that he came under the jurisdiction of the Ombudsman as head of the CAC and later the MRDC. But he did not say that when he first responded to that letter on the 26th of May 2003. He only sought an extension of time to provide a detailed response, without saying more. He says he did so without conceding to coming under the Leadership Code and therefore jurisdiction of Ombudsman.

By letter dated 3rd June 2003, the Ombudsman granted the extension sought up to 13th June 2003. But without disclosing what he did to meet his indicated detailed response, he sought further extension of time by letter dated 11th June for the same reasons as earlier given adding only that he required access to the CAC and MRDC records. In his affidavit he says he was ill and annexes a medical report from the Port Moresby Medical Services, dated 7th August 2003 confirming hospital visits on the 19th and 20th March and 24th May 2003 with a diagnosis of malaria and typhoid fever. Clearly the first two visits were before the notice served on him and the final one was a day before the first request for extension. Going by the date of the medical report, and the observations I have just made, it seems this report was secured purposely for this application. I will therefore have little weight to the illness claim. 

By letter dated 12th June 2003, the Ombudsman granted a further extension of time up to the 27th of June 2003. There is yet again no mention of what steps Mr. Kakaraya took to formulate and forward his response to the allegations. But it is clear that he sought a further extension by 30 days, by letter dated 25th June 2003. In that letter, he said he was requesting appropriate information from the banks, and repeated the need for assistance from the CAC and MRDC’s records and his medical condition.

The Ombudsman gave detailed consideration to that request. It took into account amongst others the previous extensions that were granted. It noted in particular that the notice to be heard was served on Mr. Kakaraya personally, whereupon it was made clear to him of the need to respond within 21 days, which is the time normally given to all leaders subjected to investigations. It also noted in particular that Mr. Kakaraya did not request any particulars and that he did not demonstrate any genuine step being taken to respond to any of the allegations and a period of six weeks had lapsed. It was therefore of the view that Mr. Kakaraya was given more than ample time to respond. Nevertheless, it decided to grant a further extension up to the 3rd of July 2003, because of the days it took to respond.

Mr. Kakaraya, did not respond to the allegations by the extended deadline of 3rd July 2003. Instead, he attended on his lawyer and from there, he called Commissioner, Mr. John ToGuata of the Ombudsman and discussed his position at 3:30pm. He confirmed that in writing by a letter of the same date indicating his legal advice that he should not be rushed to a response. Instead he should take all the time he needs to do a response and warned that any pre-judgement by the Ombudsman would be to its own detriment. He also reiterated his request for access to the records of the CAC and MRDC and asked for a list of documents the Ombudsman might have obtained. This was forwarded to the Ombudsman at 3:55pm. The Ombudsman declined the application having regard to the previous extensions and the lack of any evidence of any real step being taken to respond to the allegations. This was by letter dated 3rd July 2003 served on Mr. Kakaraya at his residence at about 5:32 pm. He was requested to provide his response by 6:00pm. For that purpose, the Ombudsman undertook to remain open for him until that time. It also advised him that, if he saw the need, he could call Mr. ToGuata at his office or at his residence. These factors Mr. Kakaraya claims amounts to ulterior motive, taking into account irrelevant factors and acting under suspicious circumstances and a failure to treat him as a leader.

I can not see, how this can be the case. It is well know that a leader who comes under the investigative powers of the Ombudsman is usually given a 21 days notice to respond to the allegations against him or her. In some cases these period has been extended as evidenced in this case. Time limits are usually extended where there is discretion to do so. But they can not be done as a matter of course. A case has to be made out before there can be an extension. Such discretion would normally be exercised, where the party seeking the extension is able to demonstrate by appropriate evidence the steps taken to do what is require within the time frame given and establish the factors preventing him or her from fully complying.

In this case, Mr. Kakaraya did not provide the Ombudsman with any evidence of the steps taken toward a response to the allegations against him. There is no evidence for example, of the steps he has taken to obtain copies of the relevant records from the CAC and MRDC or other third parties. Medical evidence on file shows that he visited his doctor only three times. Two of these were prior to the service of his right to be heard and the remaining one after that. This does not go further to say whether he was incapacitated, with or without hospitalization. Clearly, therefore he did not make out any case for the various extensions that were granted and his request for still further extensions. Yet the Ombudsman granted more than one extension.

Further, late on the last of the extended time, Mr. Kakaraya, asked for further extension again without any evidence of the steps taken toward responding. This request was communicated at 3:30pm verbally and confirmed in writing at 3:55pm. So this was indeed an application on the eleventh hour. It was accompanied with a threat that it would be to the Ombudsman’s detriment, if it proceed to what he claimed as "pre- judgement" on the allegations and a request for the Ombudsman to provide an unspecified list of documents. I am of the view that the Ombudsman was entitled to decline the application. After having done that, I find that the Ombudsman did Mr. Kakaraya a favour by letting its office open as late as 6:00pm for him to submit his response. Additionally, he was permitted to speak to one of the Commissioners if he saw the need by telephone on that Commissioner’s office or home telephone numbers. This was necessitated by the fact that time was running out on Mr. Kakaraya by is own doing.

Finally, Mr. Kakaraya, claims he was put under tremendous pressure by the officers of the Ombudsman, through constant telephone calls and correspondence. He says these did not help him when he was under illness and under suspension, which meant no access to the relevant records kept by CAC and MRDC and other third parties.

I am not able to see how Mr. Kakaraya was put under tremendous pressure mainly for two reasons. Firstly, he was given a total of 7 weeks to provide his response to the allegations. There is no evidence of any attempt being made to provide his response with the initial 21 days or within the additional extended period. For example, there is a total lack of any evidence of any attempt being made to secure the kind of documents he wanted from CAC and MRDC and the other third parties. Clearly therefore, he was not put under any pressure by the Ombudsman but by himself in not making use of the extra time he was given. Secondly, he does not give any account of what the Ombudsman said and did and how that amounted to tremendous pressure for him. Further, he did not and again does not explain why or how he could not respond to any or all of the allegations against him. This is particularly so when these were transactions he would have been familiar with and would have in any case, kept the relevant records in his personal files, if he ever maintained one. I therefore find that this claim is without merit. Accordingly, I will have little regard to this claim.

On the 24th of July 2003, the Ombudsman decided to refer Mr. Kakaraya to the Public Prosecutor on being satisfied that there was a prima facie case of certain breaches of the Leadership Code. A copy of that was not served on Mr. Kakaraya until 1st August 2003, following a letter from Mr. Kakaraya through Pato Lawyers dated 31st July 2003, claiming he was not subject to the Leadership Code. The Ombudsman responded by saying the Leadership Code does cover the managing director of the MRDC.

During the 7 weeks he was given Mr. Kakaraya, did not make any attempt at responding to the allegations outlined against him, save only to make a general denial. There is no evidence of him ever providing the Ombudsman with his responses to the allegations. But when he issued these proceedings, he tried to respond to each of the allegations with a denial in his affidavit in support. These are set out in paragraph 26 of his affidavit of 21st August 2003. He has not annexed any evidence supporting the position he has taken in the affidavit.

Now bearing this chronology of events and facts and what I have made of them in mind, I will deal with each of the main issues presented in this case. But before I do so, I consider it important that I should remind myself of the parameters within which judicial review, as a remedy is available as against the Ombudsman in this kind of situation.

Judicial Review of Ombudsman Decisions

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."

In Bernard Hagoria v. The Ombudsman Commission, I accepted the Ombudsman’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 of it exceeding its jurisdiction. This is repeated in s. 24 of the Organic Law on Ombudsman Commission (OLOC).

Generally, as I noted in the case cited, the power in the National Court to judicially review and supervise the exercise of administrative decisions is Order 16 of the National Court Rules 1988 and s. 155(3) (b) of the Constitution. Also I noted that s. 155(3)(b) is subject to the exception in subparagraph (3) (e), which states "except where the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament." Accordingly, I expressed the view that, the power of the National Court to review is subject to any Constitutional or other Acts of Parliament.

Further, I noted that this was consistent with the position else, such as Australia which have similar provisions, as recently highlighted in the context of that country’s immigration laws in Plaintiff S157/2002 v. Commonwealth of Australia. 

Then I expressed the view that s. 217 (6) of the Constitution and s.24 of the OLOC, do not remove completely the power in the National Court to review the decisions of the Ombudsman. Rather it restricts it to cases in which the Ombudsman exceeds its jurisdiction. Proceeding on that basis, I also said, in order for a 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.

This appears to be inconsistent with the Supreme Court decision in The Ombudsman Commission of PNG v. Denis Donohoe. There the Supreme Court held in these terms from the head note:

"(1)	The provisions of an Organic Law cannot restrict, narrow down or qualify a grant of jurisdiction or a right under the Constitution unless so qualified by a provision of the Constitution itself.

(2)	The Organic Law on the Ombudsman Commission, s. 24, is inconsistent with the Constitution, s. 217, and to the extent of the inconsistency is invalid and unconstitutional.

(3)	The Supreme Court and the National Court have jurisdiction to review proceedings of the Ombudsman Commission on the ground that it has exceeded its jurisdiction.

(4)	On the application for leave to file an application for judicial review, pursuant to the Constitution, s. 155(4), the Court need only be satisfied as to the requirements of the National Court Rules, O 16, rr 2, 3, and 5; leave may be granted where the issues raised are fundamental and substantial.

(5)	The obligation to observe the rules of natural justice under the Constitution, s. 59 and s. 60, may apply depending upon the circumstances, to proceedings before the Ombudsman Commission.

(6)	Where a report arising from proceedings of the Ombudsman Commission may have an adverse consequences for a person concerned, the rules of natural justice require that the person be provided with a reasonable opportunity of being heard and fairly setting out his defence in any such report.

(7)	A person aggrieved by a failure by the Ombudsman Commission to so observe the rules of natural justice has a primary right to seek judicial review of the proceedings of the Ombudsman Commission."

A closer reading of that judgement makes it clear that the Supreme Court with respect did not have any regard to the subsection (3) (e) of s. 155 of the Constitution. Also it is clear that the Supreme Court did not have any regard to the combined effect of ss. 155(3)(e), 217 (6) of the Constitution and s. 24 of the OLOC. If it did, it could have effectively come to the same conclusion as I did in Bernard Hagoria v. The Ombudsman Commission, that s.24 of the OLOC merely repeats and proceeds on the authority already provided for in s. 217(6) and s.155 (3)(e) of the Constitution. It should follow therefore that, the power of the National Court to review the proceedings of the Ombudsman are restricted by these provisions of the Constitution, only to cases in which the Ombudsman Commission exceeds its powers. Accordingly, I affirm the position I took in the Bernard Hagoria v. The Ombudsman Commission, case.

Turning now to the present case, I ask the question, is the matter coming within the ambit of s. 217(6) of the Constitution? This question is the subject of the first main issue. Hence I get into that issue now. 

Jurisdiction of the Ombudsman

As I said in Bernard Hagoria v. The Ombudsman Commission, the Ombudsman is an authority established under the Constitution and the OLOC. Its function is as provided for in s.219 (1) of the Constitution, in these terms is so far as is relevant for our purposes:

(1)	Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are—

(a)	to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—
(i)	any State Service or provincial service, or a member of any such service; or
(ii)	any other governmental body, or an officer or employee of a governmental body;
(iii)	any local government body or an officer or employee of any such body; or
(iv)	any other body set up by statute—
(A)	that is wholly or mainly supported out of public moneys of Papua New Guinea; or
(B)	all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,
or an officer or employee of any such body; …
(c)	to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and
(d)	any functions conferred on it under Division III.2 (leadership code); and
(e)	any other functions conferred upon it by or under an Organic Law."
							(Emphasis supplied)

This makes it clear that the powers of the Ombudsman cover both government and public institutions and the members or employees of such institutions. The operative words and the provisions for our purposes are the ones I have highlighted. There is no definition for the phrase "State Services" or even the word "State" in the Constitution. But English language dictionaries define the word in terms of a "government" or "public". Going by that definition the phrase "State Services" means governmental or public service.

With regard to the phrase "governmental body", the Constitution in schedule 1.2 defines it in terms of, the National Government, or a provincial government or:

(c)	an arm, department, agency or instrumentality of the National Government or a provincial body; or
(d)	a body set up by statute or administrative act for governmental or official purposes."
							(Emphasis supplied)

In my view the legislature chose to use the words employed in paragraphs (c) and (d) of Sch. 1.2 coupled with s.219 (1)(a)(iv)(A) and (B) deliberately so as to cover all possibly conceivable departments, agencies or bodies incorporated or not where there is a public agenda and public funds involved. As can be clearly seen, its powers are not restrict to those vested in it under the Leadership Code, but are in addition to those powers. In that context, it is clear to me that the term "governmental bodily" is to be given a broader meaning to include all government and or public institutions and persons employed by them.

The Courts have in fact interpreted that word and applied its meaning in that way. The latest of that is in the case of The Independent State of Papua New Guinea v. Barclay Brothers (PNG) Ltd. In that case, the then Deputy Chief Justice and now Chief Justice held a company incorporated under the Companies Act 1997 was a governmental instrumentality. The company there was the Southern Highlands Gulf Highway Limited, which was specifically incorporate to undertake and or oversee the construction of the much talked about but not meaningfully undertaken Gulf to Southern Highlands Highway. His Honour was guided by the definition of the term "public body" in s. 2 of the Public Finance Management Act 1995. The case went to the Supreme Court on appeal and decision of the National Court was upheld.

In Timothy Peter Neville and Peter John Dalton Neville v The Privatization Commission, I arrived at a similar conclusion. That was a case in which the former PNGBC, then solely owned and controlled by the State, sought to liquidate a company indebted to it out of a loan advance to the company. The company was forced into that position because of the State’s substantial indebtedness to it in several millions of Kina, which mainly contributed to the company’s indebtedness to the bank. In the circumstances, I found it was most unfair to allow the bank to proceed with the wind up.

These authorities in my view dictate only one conclusion and that is this. Where an instrumentality, incorporated under the Companies Act 1997 or any other legislation, but solely owned and controlled by the State in terms of appointing the board and or its managing director, for a public purpose, it is a governmental body within the meaning of s. 219 of the Constitution. It should also reasonably follow therefrom that where ever the term "governmental body" or "government agency" or "government body" appears it implies the same meaning and effect, unless specifically stated to the contrary. The underlying reason for this is simple. All public institutions and those employed by them particularly those higher up in the hierarchy are accountable to the people in respect of all their dealings. Where they fail in their accountability or there is a complaint over their conduct and or behaviour of any such institution, the Ombudsman is the appropriate body to inquiry into them and where necessary recommend appropriate steps. This is, in my view, within the ambit of the Ombudsman’s powers under s. 219 (1) of the Constitution.

The argument of the parties in this case is centered only on s.26 of the Constitution. That provision in so far as is relevant stipulates:

"(1) 	The provisions of this Division apply to and in relation to—
…
(g)	all heads of or members of the boards or other controlling bodies of statutory authorities; and
(k)	the public trustee; and
(n)	persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.
(2)	This Division applies to and in relation to a person referred to in Subsection (1) not only in the office referred to in that subsection but also in any other office or position that he holds under any law by virtue of that office.
(3)	An Organic Law or an Act of the Parliament may declare any public office (including an office in a provincial government or a local-level government body) to be an office to and in relation to which this Division applies.
(4)	In the event of doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final."

The argument for Mr. Kakaraya is that the MRDC is not a "statutory authority" within the meaning of s. 26(1) (g). Thus he argues that he as the managing director of the MRDC is not subject to the powers of the Ombudsman. The Ombudsman’s response is to the contrary and it points out to a determination by it in respect of both the CAC and the MRDC, wherein it determined that these institutions and its employees come under its powers. That determination it submits was made under subsection (4). Mr. Kakaraya’s argument against that is that, that determination "does not ouster the Courts inherent power to review administrative decisions such as that." Further, Mr. Kakaraya submits that, subsection (1) (g) is very clear, requiring no assistance from subsection (4).

There is no argument by Mr. Kakaraya over the application of the Leadership Code and s.219 of the Constitution applying to the CAC. I therefore take it that there is no issue on this. Accordingly, the discussion on the issue at hand has only been and will in respect of Mr. Kakaraya’s position as head of the MRDC at the relevant time.

Now turning to what is in issue, both parties have offered no assistance to this Court as to how s. 26(1)(g) and in particular the phrase "statutory authority" should be interpreted. They have not referred to any case or any other authority, let alone s. 219(1) of the Constitution that might be of assistance. Mr. Kakaraya as the plaintiff in this matter, had the onus to show the basis for his argument that the provision in question is clear thereby rendering s.26 (4) inoperative but he has not.

Without the assistance of either of the parties, I am of the view that this controversy can be resolved by having regard to a number of factors. This includes the particular wording in s.26 (1)(g), the context of the whole of the section, any other relevant and applying provisions in the Constitution such as s.219 or any other law and the intent and purpose of creating the Ombudsman, coupled with that of the Leadership Code under our Constitution.

The key word in s.26 (1)(g) is "statutory authority". There is no definition of this phrase in the Constitution or any other law. But I do note that the phrase appears in the alternate with the phrase "or any instrumentality of the State" in a number of statutory provisions. An example of this is s.193 (1) of the Merchant Shipping Act, and s. 412(3)(a)(iv) of the Companies Act 1997.

The foregoing discussion on the meaning of the phrase "State services" and "governmental body" and related words should make it clear that the term "instrumentality" means both incorporated and unincorporated entities. Then going by the provisions of s. 219 (1) (a)(iv)(A) and (B), this includes in my view, companies incorporated under the Companies Act 1997 where the State is the shareholder and is in control of it in terms of appointing the board and or the managing director. This ties in well with the generally accepted position that, a "statutory authority" or a "statutory corporation" is an entity created by statute for a particular purpose. It is a company for all practical purposes but for the fact that it is created by a particular or specific Act of Parliament for a particular purpose. In either case, the control remains in the State through the government of the day. It would thus appear nonsensical to omit from the powers of the Ombudsman such companies, their directors and executives merely because they have been incorporated under the Companies Act 1997. 

This definition also accords well with the intent and purpose of the provisions of the Leadership Code and s. 219 of the Constitution. The purpose is to ensure that all governmental or public bodies are accountable to the people through the investigative and referral powers of the Ombudsman where there is a breach of the duties to be transparent, fair, true and accountable imposed on such institutions and those behind them. These provisions are there to protect the people of Papua New Guinea from institutions and people in positions of leadership and influence that are inclined to using their positions for personal gain and in so doing prove themselves untrustworthy. Given this intent, the provisions of the Constitution in question before me need to be given a purposive interpretation, which is a well-recognised principle of interpreting and applying the provisions of the Constitution. Taking this approach it will logically follow that, all corporations whether incorporated under the Companies Act 1997 or any other legislation, in which the State is the sole shareholder and does have the controlling authority in terms of appointing its board and or the managing director, is a statutory authority within the meaning of s. 26 (1)(g) of the Constitution. 

Further, this interpretation accords well with the settled law, that the corporate veil of companies incorporated under the Companies Act 1997, is not a compete cover. It can be lift in appropriate cases. I set out in some detail the circumstances in which this could be done in Odata Ltd v. Ambusa Copra Oil Mill Ltd. In that case, I found that National Provident Fund (NPF) formed Ambusa as its subsidiary. It had control of the board and the activities of Ambusa including the entering into of negotiations, finalising negotiations and signing a contract with Odata and eventually terminating it. NPF even assumed the carriage and conduct of the defence of Ambusa in the proceedings. These factors pointed to Ambusa being only a front and or agent of NPF. In the circumstances, I found it was only fair that the corporate veil should be lifted to allow NPF to face Odata's claim.

In the present case, the MRDC is a company owned and controlled by the State through the relevant State Minister with the government of the day. It is common knowledge that the MRDC was formed to deal with both the State’s and Papua New Guinean resources owners’ financial interest in the mining, oil and gas extraction industries. The government appoints the board and its managing director. There can therefore be no argument that MRDC is a public institution dealing with public funds. Logically therefore, it as an organization and its employees are subject to the provisions of the Leadership Code and the powers of the Ombudsman both under ss. 26 and 219 of Constitution.

Furthermore, I am of the view that, in the absence of a clear pronouncement by a judgement or an Act of Parliament as to what constitutes or is a "statutory authority" in the country, the position remained unclear or uncertain. This is evidenced by the lack of any reference to any case or statutory law by Mr. Kakaraya in particular in support of his argument that the position is clear. The exercise I have under taken above makes it clear that, the position has been far from being clear. That in my view paved the way for the Ombudsman to arrive at a determination under s.26(4) of the Constitution. 

There is no dispute that the Ombudsman made that determination in terms of both the CAC and MRDC coming under the ambit of s. 26 and hence the powers of the Ombudsman under s.219 of the Constitution as elaborated by the OLOC. That decision was made on the 29th of July 2002, based on a set of criteria the Ombudsman arrived at on the 25th of August 1999. There has been and still there is no challenge to the correctness of that decision. The only argument Mr. Kakaraya raises is that, the determination of the Ombudsman does not ouster the jurisdiction of this Court. 

I take this to mean this Court can in effect arrive at a decision that is contrary to the Ombudsman’s determination. With respect, I find this argument a bit mischievous, in that it is in effect asking this Court to render the decision of the Ombudsman a nullity. But the law on how that can be done is very clear. A person aggrieved by such a decision has to come to this Court by way of judicial review to review the decision, within the prescribed time limits. Then if the Court is satisfied on the grounds on which the review is sought, only then could the Court be correctly placed to nullify the determination.

Mr. Kakaraya, did not challenge the determination of the Ombudsman within a reasonable time. Also he did not challenge the powers of the Ombudsman at the earliest opportunity. His claim is that, without conceding to the Ombudsman having jurisdiction over him, he entered into the communication now in evidence before this Court. Mr. Kakaraya is no other person. He is a fully admitted lawyer. Thus as a lawyer he would have known better and immediately raised the issue of jurisdiction but he did not. Instead, he submitted to the Ombudsman’s jurisdiction, hoping I assume that the investigations will not find him wanting. But when it became clearer that he was going to be referred to the Public Prosecutor, he tried to avoid that by raising the issue of jurisdiction.

In the end, I find that the challenge on the determination by the Ombudsman that the CAC and MRDC and their executives are covered under the Leadership Code, is not properly before me. Nevertheless, I find that there was an air of uncertainty as to the meaning to be given to the phrase "statutory authority". That paved the way for the Ombudsman to make a determination under s.26(4) and it did. That determination is in line with the purpose and intent of the Leadership Code and creation of the Ombudsman as discussed already. Accordingly, I find that the Ombudsman correctly exercised its powers over the conduct of Mr. Kakaraya in relation to the positions he occupied with the CAC and MRDC. Hence, I dismiss the argument against the jurisdiction of the Ombudsman.

Right to be Heard and Motive 

This now leads me to consider the next issue, of whether the Ombudsman accorded Mr. Kakaraya is right to be heard in his defence. I consider it necessary to consider in the context of this issue the other issue of whether or not the Ombudsman was actuated by ulterior motive since it is raises by Mr. Kakaraya in the context of the time period he was given to respond to the allegations against him. 

The right to be heard is a well recognised right that is accorded to all persons in the country under our Constitution. This right is expressly provided for in s. 59 of the Constitution. Both this Court and the Supreme Court have consistently and repeatedly, held that unless that right is expressly excluded, the right must be accorded in cases before a decision affecting a person could be arrived at.

The question here is did the Ombudsman give Mr. Kakaraya adequate opportunity to be heard in his defence before arriving at its decision to refer? There is no argument in this case that, Mr. Kakaraya was given the opportunity to be heard in his defence before the decision to refer him. As noted in the facts, he was given 7 weeks in total to respond to the allegations against him, which was beyond the 21 days the Ombudsman normally gives leaders coming under its investigative powers. Given that, the question is, was the time given reasonable?

I have already addressed that question in the summation of the facts. Going by what I said in that summation, I reiterate that, the Ombudsman acted more generously toward Mr. Kakaraya for the reasons I have already given, particularly in terms of what Mr. Kakaraya failed to do within the time frame given. I also reiterate my finding that the Ombudsman was not actuated by any ulterior motive given the repeated extensions given without Mr. Kakaraya providing any good reason for extension of the period within which he was required to respond. Ultimately, I find that the Ombudsman gave Mr. Kakaraya adequate opportunity to provide his response but by his own conduct he failed to utilize it. In these circumstances, I find that the Ombudsman was entitled to consider the material before it, which it did and arrived at the decision to refer.

The question then is, is Mr. Kakaraya without a remedy? In other words the next question is, has Mr. Kakaraya exhaustive all available remedies? This question is the subject of the remaining main issue, of whether or not Mr. Kakaraya has exhausted all available remedies before coming to this Court pleading for judicial review? 

Exhaustion of Other Remedies?

Repeating what I said in Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Ors, I said 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.

The principles governing judicial review are clear. I restated them in this way in Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors:

"Broadly, the matters relevant for consideration in the exercise of the courts 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 and not the statement of the principles. The Supreme Court appears to have come to the conclusion 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. Then when that case went to the Supreme Court on appeal, the appeal only in respect of the harshness of the penalty was upheld.

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. The application in that case was in the context of an application to review a decision by the defendants to investigation into the conduct of the plaintiff concerning 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 as being premature because no final decision affecting his rights or interest was made and he still had the opportunity to defend himself, if he was eventually charged.

In arriving at that conclusion, I had regard to the Supreme Court judgement in Rimbink Pato v. Anthony Majin & Ors, where 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."

Further regard was had to the judgement in Sir Julius Chan v. The Ombudsman Commission, 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.

Proceeding on the strength of these authorities, I concluded in the Wilson Kamit’s case 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 presently before me now concerns the Ombudsman’s powers and functions. As already noted it is an authority established under the Constitution and the OLOC. Again 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 and its leader, be it an institution or a natural person. In the exercise of its powers the Ombudsman "may make such inquiries it thinks fit."

Repeating what I have already said in this case and else where as in Bernard Hagoria v. The Ombudsman Commission, 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. 

Viewed in this light, 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 affecting their rights and or interests is arrived at.

A practical play out of this, I observed is demonstrated by what was and is happening after the commission of inquiry into the affairs of the NPF. There 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 on being satisfied that a criminal offence has been committed, those responsible have been and will be charged. Once charge, those charged will have the full protection of the law in accordance with the dictates of the Constitution to defend themselves and exonerated themselves if they are in the clear. Based on these views, I concluded in the Wilson Kamit case 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. 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. 

As I noted in Bernard Hagoria v. The Ombudsman Commission, the work of a commission of inquiry is akin to police conducting investigations as represented by the Rimbink Pato case. Also the situation is 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. Then 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 and Bernard Hagoria v. The Ombudsman Commission case 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 them.

In this case, the Ombudsman conducted investigations into alleged misconduct in office by Mr. Kakaraya. At the end of that process, it decided to refer Mr. Kakaraya to the Public Prosecutor for possible prosecution under the Leadership Code. Mr. Kakaraya was given a total of 7 weeks within which to provide his response to allegations against him but he did not do so within the time he was given. In fact he provided no evidence of the steps he had taken to provide his response.

It seems the Public Prosecutor has not yet made a decision to request the Chief Justice to appoint a Leadership Tribunal to hear the charges against him arising out of the allegations investigated upon. The Public Prosecutor has power to decide whether or not to request the Chief Justice to establish a tribunal to hear and determine charges of possible misconduct in office against Mr. Kakaraya. Then if the Public Prosecutor is satisfied that there is sufficient basis to make that request he will. Even then, that will not be the end of the matter. The Chief Justice will establish a Leadership Tribunal. Once the tribunal is established, it will not automatically come to a conclusion. Instead, it is obliged to conduct a full hearing into the charges that might be presented. Mr. Kakaraya will be entitled to be heard in his defence before the tribunal comes to a decision on his guilt or innocence. Before that, it is open to Mr. Kakaraya to raise all of the issues raised in this application before the tribunal. Thereafter if the tribunal arrives at a decision that is not to Mr. Kakaraya’s satisfaction, he will still be entitled to go for a judicial review of such a decision.

All of these lead me to only one clear answer to the question of, whether Mr Kakaraya has exhausted all available remedies before applying for judicial review? The answer is, Mr. Kakaraya is yet to exhaust remedies that are still open to him. It is clear law that, judicial review is the last avenue or last resort after exhausting all available remedies. The law requires all available remedies to be exhausted before one could resolve to judicial review. I noted this in Philip Kian Seng Lee v. Honourable John Pundari, 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 Independent State of Papua New Guinea v. Kapal, which was followed in Kekedo v. Burnsphilip (PNG) Ltd. 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, Mr. Kakaraya has not made out case of having exhausted available remedies or failing that his case falling 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. 

Summary

In summary I find and hold as follows:

1.	All applications for review of a decision or an exercise of the powers of the Ombudsman Commission are 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. Followed, Bernard Hagoria v. Ombudsman Commission.

2.	The Ombudsman’s task is to investigate as widely as is possible into allegations of possible breaches as 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. Followed Bernard Hagoria v. Ombudsman Commission and Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & .

3.	The intent and purpose of the Leadership Code and the Constitution s. 219 is to secure transparency and proper accountability by persons and institutions occupying positions of responsibility and dealing with public funds and other matters of public interest and concern. In line with that intent and purpose, all governmental or public bodies incorporated or not including those incorporated under the Companies Act 1997 for a public purpose and where the State is the sole shareholder having the power to appoint members of the board and or the managing director, is a "statutory authority" within the meaning of s.26(1)(g) of the Constitution.

4.	The MRDC although incorporated under the Companies Act 1997, it is a public institution because the State has a controlling share and has the power to appoint members of the board and its managing director. Accordingly, Mr. Kakaraya being the relevant head of these institutions at the relevant time was correctly subjected to the powers of the Ombudsman because he had duties and responsibilities under the Leadership Code. 

5.	In the event of a doubt has to whether a leader or institution is subject to the powers and functions of the Ombudsman, a determination of that issue by the Ombudsman under s. 26(4) of the Constitution is final subject only to a review of that decision. Taking no issue on such a determination once made by the Ombudsman amounts to no issue and acceptance of the determination.

6.	There was uncertainty as to proper meaning to be given to the phrase "statutory authority" as used in s. 26(1)(g) of the Constitution, in the context of the CAC and the MRDC. This was so in the absence of any clear pronouncement by a judgement of this or the Supreme Court and or an Act of Parliament as to what was covered under or by that section. It was therefore open to the Ombudsman to make a determination, which was made and there being no challenge to it at the relevant time, it was accepted as correct and is now not open to argue for its nullity.

7.	A person coming under the investigatory powers of the Ombudsman is under an obligation to respond within the time period given. Failing to do so amounts to an acceptance of the allegations and consent to the Ombudsman taking the next step, unless good reasons satisfactory to the Court are provided.

8.	In this case the Ombudsman acted reasonably and without any ulterior motive when it granted Mr. Kakaraya more than one extension 7 weeks in total and refusal to grant further extension when he made no good case for such extension.

9.	It is a cardinal principle in applications for leave for judicial review that all available remedies must be exhausted as judicial review is a remedy of last resort except in an exceptional case. Cited, Philip Kian Seng Lee v. Honourable John Pundari, The Independence State of Papua New Guinea v. Kapal, and Kekedo v. Burnsphilip (PNG) Ltd.

10.	A decision of the Ombudsman does not amount to a final decision affecting the rights and interest of a person or institution affected. Instead it is part of a process that must be completed just like police and other investigations. As such, those who are affected still have the right to be heard if referred to the Public Prosecutor and a leadership tribunal and even thereafter they still have the right to seek a review of such a tribunal’s decision. In the circumstances, an application for a review of a decision to refer to the Public Prosecutor amounts to an attempt at preventing the process from completing its course. Followed, Simon Ketan v. Lawyers Statutory Committee, Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Cyprian Warokra, Bernard Hagoria v. The Ombudsman Commission, Rimbink Pato v. Anthony Majin & Ors and Sir Julius Chan v. The Ombudsman Commission,

11.	Mr. Kakaraya did not exhaust all available remedies before going the Court for judicial review and did not make out an exceptional case to warrant judicial review. He still has intact his rights to be heard in his defence before a final decision by a leadership tribunal and even after that, he still has the right of review by the National Court.

12.	For these reasons the application for leave to review the decision of the Ombudsman is declined with costs against Mr. Kakaraya.
_______________________________________________________________
Lawyers for the Plaintiffs:		Pato Lawyers.
Lawyers for the First Defendant:	David Canning, Employed Lawyer.
Lawyers for the Second Defendant:	Solicitor General.