N3128

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 127 OF 2007

BETWEEN:

HON. MELCHIOR PEP, MP.
Plaintiff

AND:

JACK PAMBEL, PUBLIC PROSECUTOR
First Defendant

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn, J.
2007: 20 March

JUDICIAL REVIEW – Decision of Public Prosecutor to request Chief Justice to appoint Leadership Tribunal - Leave application for judicial review involves exercise of discretion - Applicant to have sufficient interest- Application to be brought without delay - Other remedies should be exhausted - applicant to have an arguable case - Undue delay by Plaintiff in this case – leave refused

Counsel:

P. Mawa and D. Igolena, for the Plaintiff
P. Kelly, for the First Defendant 
N. Yalo, for the Second Defendant 
A. Cherake, for the Third Defendant 

15 March, 2007 

1.	HARTSHORN J: This is an application for leave to proceed with an application for judicial review under O.16 r.3 of the National Court Rules. 

2.	The review application concerns the decision of the Public Prosecutor dated 10 January 2007 to request the Chief Justice to appoint a Leadership Tribunal under the Organic Law on Duties and Responsibilities of Leadership (OLDRL) to inquire into matters concerning allegations of misconduct in office by The Honourable Melchior Pep, MP. 

ABBREVIATIONS 

3.	In this judgment I will refer to the Plaintiff as "Mr. Pep", the First Defendant as "PP", the Second Defendant as "OC" and the Third Defendant as "the State". 

CHRONOLOGY OF PROCEEDINGS: 

4. (a) 	On 20 February 2007, the Chief Justice appointed a Leadership Tribunal to investigate and inquire into allegations of misconduct in office by Mr. Pep. This was at the request of the PP. 
(b) 	The Leadership Tribunal was to commence on Monday 12 March 2007.
(c) 	On Saturday 10 March 2007 Mr. Pep obtained ex parte interim orders from this Court which amongst other matters, stayed the Leadership Tribunal proceedings and restrained the Leadership Tribunal from conducting a hearing. 
(d) 	The application for leave come before me on 15 March 2007. 

APPLICATION FOR LEAVE

5.	The interim orders of the Court granted on 10 March 2007 are relevantly as follows: 

"2.	Until further orders, the Leadership Tribunal proceedings in relation to the charges of misconduct against the Plaintiff are stayed pending the determination of the Plaintiff’s application for leave to apply for Judicial Review is heard inter-parties.

3.	Until further orders, the Leadership Tribunal appointed by the Chief Justice to hear the allegation of misconduct in office by the Plaintiff is restrained from conducting the hearing pending the determination of the Plaintiff’s 
Application for Leave to apply for Judicial Review is heard inter-parties.

4.	The Plaintiff shall serve on the Defendants sealed copies of the Orders, the Originating Summons, Notice of Motion, Statement of Facts in Support, Supporting Affidavits, Undertakings as to Damages and other relevant documents filed in the proceedings three (3) clear days before the date scheduled for the Plaintiff’s application to Apply for Leave to Apply for Judicial Review is determined by the Court inter-parties. 

6.	The Plaintiff’s application for Leave to Apply for Judicial Review and the interim orders are returnable on 15 March 2007 at 9.30 am for an inter-parties hearing."

6. 	At the hearing of the application on the 15 March 2007, Counsel for Mr. Pep requested that as it was a leave application, Counsel for the PP and OC should only make submissions to the court and not rely on affidavit evidence. 

7. 	The interim orders are specific. The application for leave to apply for judicial review is to be "inter-parties" (sic). The record of the interim orders made on the Court file is amongst others, for an "Order as per Notice of Motion dated 9 March 2007 No.2". The Notice of Motion dated 9 March 2007 being document No.2 of the Court file specifically seeks the application for leave to apply for judicial review to be inter-parties (sic). Mr. Pep by his lawyers, has been granted the interim orders he specifically sought. 

8. 	Clause 4 of the Orders provides for service of all of the Court documentation on the Defendants three (3) clear days before the hearing of the leave application. Clearly it was contemplated that the Defendants were to be heard on the application. There is not any interim order preventing the PP and OC from relying on affidavit evidence. The request, by Counsel for Mr. Pep, without previous notice, at the hearing of the application for leave, that the PP and OC should make submissions only, was in effect, requesting the Court to vary the Orders that Mr. Pep had specifically sought and been granted. 

9.	In any event, Counsel for the State was present and sought to rely on the evidence filed on behalf of the PP and OC and the submissions of their Counsel. 

10. 	Mr. Pep filed an Originating Summons, supporting Statement, two Notices of Motion, an Undertaking as to Damages, two Affidavits by Mr. Pep and an Affidavit by one of his Counsel, Mr. Mawa. 

11. 	The PP, OC and the State opposed the application for leave. 

The PP has filed the affidavits of the Acting Public Prosecutor Mr. Jack Pambel and Ms. Tracy Marie Ganaii. The OC has filed the affidavit of the Chief Ombudsman. 

12.	The main relief to be sought by Mr. Pep if leave is granted as set out in his Statement are: 

"(b)	An Order in the nature of (certiorari) to remove and bring into this Honourable Court and quash the decision of the First Defendant dated 10 January 2007, to request the Chief Justice to appoint a Leadership Tribunal under the Organic Law on Duties and the Responsibilities of Leadership to inquire into matters concerning allegations of misconduct in office pursuant to s 27 of the Constitution when the Second Defendant had by a letter dated 24 August 2006 cleared the Plaintiff of any misconduct charges as stipulated.

(c)	An Order that the actions of the First Defendant in informing the Plaintiff by letter dated 10 January 2007, that he had requested the Chief Justice to appoint a Leadership Tribunal under the Organic Law on Duties and Responsibilities of Leadership to inquire into matters concerning allegations of misconduct in office pursuant to s 27 of the Constitution is contrary to and in breach of the principles of natural justice and unlawful, invalid and of no effect.

(d) 	An Order in the nature of a declaration that the action of the First Defendant in informing the Plaintiff by letter dated 24 August, 2006 that the Plaintiff was cleared of all misconduct charges by the Second Defendant was a proper and valid exercise of his powers vested in him under the Public Prosecutor (Office and Functions Act) 1977 and the Organic Law on Duties and Responsibilities of Leadership."

13.	The grounds of review for the substantive relief are:

"(a) Ultra Vires and Error of Law 

The First Defendant made an error of law and acted beyond his powers when he made the decision as contained in his letter dated 10 January 2007 addressed to the Plaintiff to request the Chief Justice to appoint a Leadership Tribunal to enquire into alleged misconduct in office by the Plaintiff.

(b) 	Breach of the Principles of Natural Justice 
The Public Prosecutor breached the principles of natural justice when in his decision contained in his letter dated 10 January 2007, he referred the Plaintiff to the Leadership Tribunal.

(c) 	"Wednesbury" Principles of Unreasonablness.
The Public Prosecutor acted unreasonably, in the Wednesbury’s sense of principle of unreasonableness when without first withdrawing his decision as contained in his letters dated 22 August and 24 August 2006 respectively, he wrote the letter dated 10 January 2007 and addressed to the Plaintiff of his decision to refer the Plaintiff to the Leadership Tribunal on the very same allegations of misconduct in office of which he had already discharged the Plaintiff.

(d) 	Harsh and oppressive. 

The Public Prosecutors actions in first deciding that he would not refer the Plaintiff to the Leadership Tribunal and discharging the Plaintiff of all allegations of misconduct in office and subsequently, without withdrawing the first decision nor providing any reasons, deciding to refer the Plaintiff to the Leadership Tribunal on the same allegations of misconduct in office is harsh and oppressive and is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the right and dignity of mankind and therefore contrary to s 41(1)(a) and (c) of the Constitution". 

14.	The short facts of the case are that Mr. Pep is the duly elected Member of Parliament for the Dei Open Electorate and as such is a Leader subject to the Leadership Code. 

15.	On 6 January 2005, the OC served upon Mr. Pep what is termed his "right to be heard" notice in relation to allegations of misconduct in office concerning breaches of Salaries and Remuneration Commission determinations, misappropriation of public funds between August 2002 and August 2003 and adjudged insolvency in 2004. Mr. Pep and his Lawyers responded in writing. On 1 March 2006, Mr. Pep was served with a notice under s 20(2) OLDRL of the OC’s intention to refer the matter to the PP. Also on 1 March 2006, the OC referred Mr. Pep to the PP. On 10 January 2007 the PP requested the Chief Justice to appoint a Leadership Tribunal. That Tribunal was to commence on 12 March 2007. 

16.	Mr. Pep contends that the PP wrote to him by letter dated 24 August 2006 and the Chief Ombudsman by letter dated 22 August 2006 (August letters) informing amongst others, that he had concluded that there was no prima facie evidence to warrant the matter being prosecuted, that the charges be withdrawn and that Mr. Pep is cleared of all misconduct charges. 

17.	The PP, OC and the State contend that the August letters are forgeries and were never sent by the PP. 

18.	An application for leave for judicial review involves the exercise of discretion. This discretion must be exercised judicially. If a court is satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case, then it will grant leave. 

19.	There is no doubt that Mr. Pep has a sufficient interest.

ARGUABLE CASE 

20. In the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644; 

"If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application". 

21. This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. 

22. A quick perusal of the material available in this case involves a perusal of the affidavits filed. They have not been tested by oral cross-examination and no objections were made to their content. 

23.	 The main question raised concerns whether the PP wrote and sent the August letters. Mr. Pep states that the letter of 24 August 2006, was written to him by the PP and the letter of 22 August 2006 to the Chief Ombudsman. Mr. Pep does not say how he came to be in possession of the letter to the Chief Ombudsman. There is no evidence that the Chief Ombudsman ever received that letter. Mr. Pambel’s affidavit contains an email from Mr. Chronex Manek, the Public Prosecutor who purportedly wrote the August letters. Mr. Manek categorically denies that he ever wrote those letters and mentions discrepancies that he says confirm that the letters were not written by him. Ms. Ganaii denies that she was ever the action officer for the matter although referred to in the August letters, and that she has never been involved in Tribunal matters. 

24. Mr. Mawa for Mr. Pep submitted that the affidavits concerning the status of the August letters should be subject to cross examination at a substantive hearing once leave to apply for judicial review had been granted. If leave was granted then cross examination of the deponents at a substantive hearing is for the Court to decide upon then. As stated earlier, at this juncture, the Court merely has a quick perusal of the material now available. As mentioned previously, no objection was made to any of the content of the affidavit evidence before me.

25. The Lawyers for Mr. Pep also have doubts about the authenticity of the August letters. In a letter they purportedly wrote to the PP on 19 January 2007, they request amongst others, a meeting to discuss the authenticity of the August letters.

26. In considering the evidence before me, I am not satisfied as to the authenticity of the August letters. The purported author of the letters, Mr. Chronox Manek, denies writing the letters, the purported action officer, Ms. Ganaii denies ever being involved in Tribunal matters and this is supported by Mr. Pambel. There is not any evidence that the Chief Ombudsman received the August letter addressed to him, and the lawyer for Mr. Pep in his purported letter to the PP raises the question of the authenticity of the letters. 

27. As I am not satisfied as to the authenticity of the August letters. Once those letters are removed from consideration, in my view Mr. Pep does not have an arguable case. 

DELAY

28. Mr. Pep filed his application for leave on Friday 9 March 2007, and obtained ex parte interim orders on Saturday 10 March 2007. The Leadership Tribunal sat on Monday 12 March 2007, but then was informed of the interim orders. Mr. Pep became aware that the PP had requested the Chief Justice to appoint a Leadership Tribunal by letter dated 10 January 2007. Mr. Pep filed his application for leave almost 2 months after becoming aware that the PP had made the request of the Chief Justice. 

29. The time delay in this case is similar to that in Hitolo v. Geno, Chief Ombudsman, N2700. In that case the Plaintiff waited almost two months after the Public Prosecutor’s decision to refer him to a Leadership Tribunal, before filing proceedings and applying ex parte for interim injunctive relief at the time that the Leadership Tribunal had been constituted and had commenced its preliminary hearing. Similarly, the Plaintiff had about 2 months remaining before his term of office expired. A consideration in this case is that the National Elections occur in about three months.

30. In Hitolo (supra), Injia DCJ, found that although the plaintiff’s application was made within the 4 months prescribed by O 16 r 4(2), there was undue delay.

31.	The Supreme Court has considered the importance of time in Nilkare v. Ombudsman Commission SC 498 (1996) Injia J. (as he then was) said: 

"Under O 16 r 4(1), the notion of undue delay must be considered together with the issue of whether the granting of the relief would be detrimental to good administration. Each case must depend on its own circumstances. In the case of an elected leader, it is of vital importance that the judicial review proceedings be commenced promptly after the leader is notified of the Commission’s intention to refer under OLDR s.20(2) and (4). It is in the public interest that once a referral is made, the prosecution of an elected leader, if the Public Prosecutor so decides must occur promptly. Elected leaders of the National Parliament have a limited term of (5) years in office. Ministers of Government may have a shorter term in office as Ministers because they hold office at the pleasure of the Prime Minister of the day. No time should be wasted or soaked up by a leader or his lawyer or agent in advancing futile representations to the Commission after it had decided to refer. I say futile because the Commission in its deliberate judgment would have formed an opinion as to a prima facie case of misconduct and it is unlikely that it would change its mind. And once it had referred the matter to the Public Prosecutor, it ceases of jurisdiction.The matter then becomes a prosecution matter. Again, a person referred to the Public Prosecutor should not make futile representations to the Public Prosecutor. The Public Prosecutor is not subject to external control or directions by any person in the exercise of his prosecutorial discretion: Constitution, s 176(2). It is contrary to the principles of good administration for a leader to delay the prosecution of his case by making futile representation to the Commission and Public Prosecutor in circumstances knowing that he has no legitimate expectation of being heard by the Commission or Public Prosecutor". 

32.	In this case, Mr. Pep’s lawyers state that they wrote to the PP by letter dated 19 January 2007, requesting amongst others a meeting to discuss the authenticity of the August letters. There is no evidence before the Court that the PP received that letter. Given that Mr. Pep’s lawyers themselves have doubts about the authenticity of the August letters, and in the absence of a response from the PP, in my view it was incumbent upon Mr. Pep through his lawyers, to file an application for leave promptly if Mr. Pep wanted to review the decision of the PP to refer. The fact that the application for leave was filed some 48 days later and on the last working day before the Tribunal was to sit, to my mind constitutes undue delay.

33.	As Injia DCJ said in Hitolo (supa): 

 "It is in his own interest (the Plaintiff) that the matter proceed before the Tribunal without further delay so that the allegations are investigated and determined before his term expires. It will not substantially prejudice his rights if leave was refused and the matter allowed to proceed before the Tribunal because it is open for him to raise the same matters before the Tribunal. It is open for him and the Commission to produce evidence on OLDRL, s 19 before the Tribunal and get its determination on the issue."

34.	 Similarly, in Ombudsman Commission v. Yama SC 747 [2004] the Court said: 

"If the Respondent has any grievances about any unfairness on the part of the Public Prosecutor in acting on the referral …….., it is open for him to raise these concerns before the Tribunal".

ORDERS

35.	For these reasons, I refuse to grant leave. I discharge the interim orders granted on 10 March 2007. In view of the short time before the National Elections, I recommend the Leadership Tribunal already constituted, proceed without delay. 

36. I order the costs of the proceedings to the Defendants. 

_________________________________

Mawa Lawyers: Lawyer for the Plaintiff
Public Prosecutor: Lawyer for the First Defendant
Ombudsman Commission: Lawyer for the Second Defendant
Solicitor General: Lawyer for the Third Defendant