N4149

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 34 OF 2010

BETWEEN:

HON. PATRICK PRUAITCH MP
Plaintiff

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, COMPRISING THE OMBUDSMAN COMMISSION
First Defendants

AND:

JIM WALA TAMATE, THE PUBLIC PROSECUTOR
Second Defendant

AND:

HON DEPUTY CHIEF JUSTICE SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, COMPRISING THE LEADERSHIP TRIBUNAL
Third Defendants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kariko J
2010: 10, 12 February

LEADERSHIP TRIBUNAL - Practice and procedure - two motions before court - Plaintiff seeks interim injunctive and stay orders to prohibit Referral - First Defendant seeks to have these proceedings dismissed – plaintiff should have brought application by way of judicial review pursuant to Order 16 as mode of proceeding- Plaintiff having failed in his bid for a judicial review under O16, has now tried to make the same claim but by using a different mode of proceedings – plaintiff estopped from further applications based on same ground by virtue of the doctrine of res judicata – proceedings dismissed as an abuse of process – order 16 National Court Rules, s 20 Organic Law on Duties and Responsibilities of Leadership, ss20 & 29, Schedule 1.12 Constitution

Cases Cited

Honorable Patrick Pruaitch MP v Chronox Manek and ors (Unreported Judgement dated 8 September 2009) ("OS 456/09"),
Sausau v Kumgal and PNG Harbours Board (2006) N3253
Telikom PNG limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906
Zachery Gelu v Sir Michael Somare MP (2008) N3524,

Counsel:

G Sheppard & F Griffin, for the Plaintiff
V Narokobi, for the First Defendant
N Miviri, for the Second Defendant
No appearances for the Third and Fourth Defendants

RULING

1.	KARIKO J: On or about 22 July 2009, the Ombudsman Commission ("the Commission") referred to the Public Prosecutor 8 allegations of misconduct in office ("Allegations") against the Plaintiff, who is the Member of Parliament for Aitape-Lumi. The Referral was made pursuant to the Organic Law on the Duties and Responsibilities of Leadership ("the OLDRL"). The Public Prosecutor in turn referred the Allegations to the Office of the Honourable Chief Justice and requested for the establishment of a Leadership Tribunal to enquire into the Allegations. Consequently, His Honour the Chief Justice earlier this month nominated a Leadership Tribunal, being the Third Defendants. 

2.	The Plaintiff has instituted proceedings to challenge the validity of the investigation of the Allegations and their referral by the Commission ("the Referral"). The challenge is mounted pursuant to Section 23 of the Constitution.

Facts

3.	From the affidavit material before the court, and as outlined by Mr Sheppard of counsel for the Plaintiff, the undisputed factual background to these proceedings are as follows.

4.	On or about 29 September 2006, the Ombudsman Commission (comprising Commissioners Ila Geno, Peter Masi and John Nero) wrote to the Plaintiff and informed him, pursuant to section 20(3) of the OLDRL, of his right to be heard on 11 allegations of misconduct against him. 

5.	In or about October 2006, the Plaintiff personally attended before the Commission (comprising the same members) and presented his oral submissions to each and all the said 11 allegations.

6.	On or about 30 November 2006, in the further exercise of the Plaintiff's right to be heard, the Plaintiff responded in detail and writing to each of the same 11 allegations. 

7.	On 31 June 2009, Mr. Ila Geno's term as Chief Ombudsman expired and was not renewed.

8.	By and before 21 July 2009, Mr. Peter Masi's term as an Ombudsman expired and was not renewed.

9.	In 2009, Mr. Chronox Manek was appointed as the Chief Ombudsman. 

10.	Since July 2009, the Ombudsman Commission has comprised of Mr. Chronox Manek, Mr. John Nero and Ms. Phoebe Sangetari.

11.	On or about 22 July 2009, the current Ombudsman Commission wrote to the Plaintiff and advising the Plaintiff that it considered his response to the said 11 allegations and intended to refer 8 of those allegations against him to the Office of the Public Prosecutor pursuant to section 20(2), 20(4) of the OLDRL and section 29(1) of the Constitution.

12.	On 20 August 2009, the Plaintiff filed judicial review proceedings in this court (OS No. 456 of 2009) challenging the Referral arguing, amongst other things, that he had been denied the right to be heard in respect of the allegations contained in the Referral.

13.	On 8 September 2009, Hartshorn J refused the Plaintiff's application for leave for the judicial review. 

14.	On 4 February 2010, the daily newspapers published that the Public Prosecutor had requested the Honourable Chief Justice to appoint a leadership tribunal to hear the allegations against the Plaintiff. 

15.	The Honourable Chief Justice has appointed the tribunal, the Third Defendant.

16.	Following the announcement of the establishment of the tribunal, the Plaintiff filed these proceedings.

17.	The Commission however disputes the suggestion by the Plaintiff that after exercising his right to be heard in 2006, there were further investigations, new allegations raised which are included in the Referral and to which he was not given the right to be heard. 

Motions

18.	There are two motions before me which were heard together. Briefly, the Plaintiff seeks interim injunctive and stay orders to prohibit the Referral being acted upon any further, while the First Defendants, the Commission, seeks to have these proceedings dismissed.

19.	I will address the application by the Commission first because I consider that if I accept the Commission's application, it would be then unnecessary for me to deliberate on the motion by the Plaintiff.

Application by the Commission

20.	The Commission has contended that:

(a)	The plaintiff has already sought judicial review of the same matter, that is the Referral, in which Hartshorn J refused leave on 8 September 2009 (OS No. 456 of 2009), and the plaintiff now seeks a judicial review again of the Referral based on the same facts and circumstances, arguing the same issues but using a different mode of proceedings.

(b)	The proper mode of proceedings should be pursuant to Order 16 of the National Court Rules ("NCR").

(c)	Hartshorn J has already deliberated on the matter (and in particular the issue of the right to be heard) so by virtue of the doctrine of res judicata, the plaintiff is estopped from bringing these proceedings.

(d)	These proceedings are in the circumstances an abuse of process.

Mode of proceedings

21.	The Originating Summons filed by the Plaintiff seeks, inter alia:

1.	A declaration pursuant to sections 23(2), 155(4) and 217(6) of the Constitution that the referral of the matter of an investigation of the Plaintiff for misconduct in office by the First Defendants to the Second Defendant ("the Referral") under section 20(4) of the Organic Law on the Duties and Responsibilities of Leadership ("the Constitutional Law") is unconstitutional, in excess of the jurisdiction of the First Defendant and therefore illegal, in valid and of no force or effect, because the First Defendants did not afford the Plaintiff a right to be heard before making the Referral, in breach of their duty to do so under section 20(3) of the Constitutional Law.

2.	A declaration pursuant to section 23(2), 155(4) and 217(6) of the Constitution that the Referral under section 20(4) of the Organic Law on the Duties and Responsibilities of Leadership ("the Constitutional Law") is unconstitutional, in excess of the jurisdiction of the First Defendant and therefore illegal, invalid and of no force or effect, because the First Defendants did not afford the Plaintiff a further right to be heard after conducting further investigations after October 2006 and before making the Referral, in breach of their duty to do so under section 20(3) of the Constitutional Law.

22.	As I understand it, the alleged breaches of duty under section 23 of the Constitution are that:

(1)	The Plaintiff was not given the opportunity by the Commission to be heard on new allegations of misconduct after 2006 pursuant to section 20(3) of the OLDRL; and

(2)	The decision by the Commission concerning the Referral was in breach of Sch. 1.12 of the Constitution.

23.	It is clear to me that these proceedings are in effect a judicial review. Fundamentally, the Plaintiff is arguing that the Commission did not afford him the right to be heard on the allegations, the subject of the Referral. The Plaintiff's contention is that it was the duty of the Commission under section 20(3) of the OLDRL to provide that right to the Plaintiff but the Commission failed to do so. 

24.	What is the proper mode of proceedings for judicial review where a breach of the constitution is pleaded? Mr Narokobi argued that O16 governs the procedure while Mr Sheppard submitted that where a review is sought pursuant to an alleged breach of the Constitution, Order 16 is not applicable. He relied on the judgement of Injia DCJ (as he then was) in the case of Sausau v Kumgal and PNG Harbours Board (2006) N3253, where His Honour said:

In my view, the grounds pleaded under ss.41, 37, 23 and 48 of the Constitution relate to breaches of the Constitution, for which the Plaintiff must seek declaratory orders as of right. They require proper pleading and trial on both issues of fact and law. They are not the sort of grounds upon which the common law discretionary procedure of judicial review would lie. The trial in this matter in fact has not been about one of constitutional breaches and protection of rights. For this reason, I dismiss the plaintiff's submissions on those grounds. 

25.	 In discussing the same issue in Zachery Gelu v Sir Michael Somare MP (2008) N3524, Cannings J made these observations:

I note that Injia CJ has expressed the view, in the National Court, that grounds of review that allege breaches of the Constitution such as Section 37 (protection of the law), Section 41 (proscribed acts) or Section 48 (freedom of employment) "are not the sort of grounds upon which the common law discretionary procedure of judicial review would lie" (Sausau v Kumgal and PNG Harbours Board (2006) N3253). In Pinggah v Elias (2005) N2850, his Honour dismissed as misconceived a ground of judicial review that the In Pinggah v Elias (2005) N2850, his Honour dismissed as misconceived a ground of judicial review that argued that a decision to dismiss a public servant was harsh and oppressive and contrary to Section 41 of the Constitution: "The appropriate procedure in judicial review to be invoked when challenging the unreasonableness of a decision is under the Wednesbury principle", his Honour ruled. Earlier, in Nanan v Maru and Commissioner of Police (1997) N1507 his Honour remarked that "it is not appropriate for the court in a judicial review application to indulge in constitutional questions".

Those are decisions made in the National Court and I am not, with respect, bound to follow them.

It must also be borne in mind that Section 18(1) of the Constitution, on which Mr Molloy relies, begins with the words "subject to this Constitution". It cannot be read in isolation. Some provisions of the Constitution expressly allow the National Court to determine questions of constitutional interpretation and application. In particular, Sections 22 (enforcement of the Constitution), 23 (sanctions) and 57 (enforcement of guaranteed rights and freedoms). So, why should the National Court close the door on someone who wants to argue constitutional questions as part of an application for judicial review? Wouldn't we be allowing form to get in the way of substance? Allowing the niceties of procedure to triumph over dispensation of justice?

I reiterate that this issue (is it permissible to plead a breach of a Constitutional Law as a ground of judicial review?) has not been clearly and authoritatively settled by the Supreme Court. Until it is, any uncertainty about the propriety of grounds of review should, in the interests of justice, be resolved by leaving them in, rather than striking them out. The proposed grounds still have to pass through the filtering process provided by the requirement that they be arguable. (My underlining)

26.	I find myself in agreement with the position taken by Cannings J. In the present case the Plaintiff is invoking s.23 of the Constitution on the basis that the Commission had a duty to afford him the right to be heard. The right to be heard is a rule that comes under the umbrella of natural justice. It seems to me that the Plaintiff could just the same argue section 59 of the Constitution instead of section 23. 

27.	In Sausau v Kumgal and PNG Harbours Board (supra), immediately after the passage quoted above, His Honour the then Deputy Chief Justice, added:

The grounds under (ii) relating to s.59 of the Constitution (breach of principles of natural justice) is an appropriate ground for judicial review and I consider it.

28.	In my opinion, the Plaintiff could have brought his claim pursuant to Order 16. This is further supported by the decision of the Supreme Court in Telikom PNG limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906 where the court confirmed that where a party challenges the decision of a governmental body or authority, O16 of the NCR must be used if the orders being sought are in the nature of prerogative writs, but if the party is only seeking an injunction or declaration, then it can proceed by way of Order 4 or Order 16. The Plaintiff could have therefore proceeded by way of Order 16 with his present challenge of the Referral.

29.	Mr Sheppard argued that the type of review presently sought by the plaintiff should be distinguished from judicial review based on common law, and that they are special as they arise from a breach of the Constitution. He submitted therefore that while judicial reviews under the common law are subject to Order 16, the same does not apply to the reviews pursuant to the Constitution. Consistent with this proposition, Mr Sheppard submitted that leave is not required. It seems to me absurd that while leave is required for judicial review under Order 16 of the NCR, and for very good reasons I should add, this necessary screening or filtering process should not apply to reviews instituted under Order 4 of the NCR? In Zachery Gelu v Sir Michael Somare MP (supra) His Honour Cannings J noted that constitutional grounds in a judicial review "still have to pass through the filtering process". I am of the view therefore that it would make sense and for the sake of certainty and uniformity of practice, that leave is still necessary in those cases where review may be commenced under Order 4. 

Abuse of process

30.	I now come to the claim by the Commission in its application that these proceedings are an abuse of process as the Plaintiff has already applied for a review of the Referral based on the same grounds in OS 456 of 2009 (JR) – Honorable Patrick Pruaitch MP v Chronox Manek and ors (Unreported Judgement dated 8 September 2009) ("OS 456/09"), and in which leave was denied by Hartshorn J. Mr Narokobi submitted that I could find abuse of process pursuant to Order 12 r 40 while Mr Sheppard conceded that the court has an inherent jurisdiction in any case to find an abuse of process. 
 
31.	Mr Narokobi submitted that the claim and relief sought by the plaintiff should be pursued by way of judicial review in accordance with O16, and the Plaintiff did in fact undertake that course in OS 456/09. In that proceeding, the plaintiff sought, inter alia, a declaration that the Referral was ultra vires – that the Commission exceeded its jurisdiction in that the Plaintiff was not given the right to be heard on new allegations made after he exercised his right to be heard in 2006 on the initial allegations. I find this claim is again included in the present proceedings, although it is now labeled as a breach of s. 23 of the Constitution.

32.	In support of this, I have had regard to the pleadings in OS 456/09. In particular I note these relevant parts of the Originating Summons and the Statement filed pursuant to Order 16 Rule 3(2) in those previous proceedings:

ORIGINATING SUMMONS

THE PLAINTIFF SEEKS:-

…………………

4. Further or alternatively, a declaration that the decision ("The Second Decision") of the Ombudsman Commission on or about 22nd July 2009 to refer the Plaintiff to the Public Prosecutor in respect of allegations of misconduct in office contained in the Notice of Referral dated 22nd July 2009 ("the Referral") constituted new allegations of misconduct in office.

5. A declaration that the Plaintiff was entitled to the right to be heard pursuant to section 20(3) of the Organic Law on the Duties and Responsibilities of Leadership ("the OLDRL") in respect of the Second Decision.

6. A declaration that the Plaintiff was not granted the right to be heard pursuant to section 20(3) of the ORDRL in respect of the Second Decision.
 ……………………

10. An order pursuant to the Court's inherent jurisdiction, further or alternatively, sections 22, 23, 41 and 155(4) of the Constitution quashing the Second Decision, further or alternatively, the Referral.

11. An injunction restraining the following entities from further acting upon or in relation to the Allegations, further or alternatively, the Referral; namely –

a.	The Ombudsman Commission; and
b.	The Public Prosecutor

12. Further or alternatively, an order requiring the Ombudsman Commission to grant the Plaintiff the right to be heard in relation to the Second Decision.

STATEMENT FILED PURSUANT TO ORDER 16 RULE 3[2] OF THE NATIONAL COURT RULES

Part B – Relief Sought

 ………………..

2. An Order:

[a] in the nature of a Writ of Certiorari pursuant to Order 16 Rule 1 of the National Court Rules;

[b] further or alternatively, pursuant to the Court's inherent jurisdiction; 

to quash the decision ["the Second Decision"] of the Ombudsman Commission on or about 22 July 2009 to refer the Plaintiff to the Public Prosecutor in respect of allegations of misconduct in office contained in the Notice of Referral dated 22 July 2009 ["the Referral"].

3. An injunction, further or alternatively, relief in the nature of an order to Prohibition, restraining the Ombudsman Commission and the Public Prosecutor from further acting upon or in relation to the allegations of misconduct in office contained in the Right to Be Heard On Allegations of Misconduct In Office dated 29 September 2006 ["the Allegations"], further or alternatively, the Referral.

4. An order or declaration pursuant to sections 23(2) and 155(4) of the Constitution that …… the Referral, was an unlawful act within the meaning of section 41 of the Constitution.
 ……………………

7. A declaration that the Ombudsman Commission had no power to make the Second Decision and was acting ultra vires in purporting to do so.
 …………………..

9. A declaration that the Plaintiff was entitled to the right to be heard pursuant to section 20(3) of the OLDRL in respect of the Second Decision.

10. A declaration that the Plaintiff was not granted the right to be heard pursuant to section 20(3) of the ORDRL in respect of the Second Decision.
 ………………….

Part C – Brief Facts

 …………………

20. On 29 September 2006, by letter bearing that date, the Ombudsman Commission gave the Leader the right to be heard ["the Right To Be Heard"] in relation to allegations of misconduct in office pursuant to s. 20(3) of the OLDRL.

21. On 30 November 2006, by letter bearing that date, the Leader responded to the Right to Be heard ["the Response"]

23. Despite the First Decision, on 22 July 2009, by letter bearing that date, the Leader was given notice of the Second Decision and the Referral, namely that the Commission had formed the view that there was a prima facie case against the Leader and that 8 of the 11 allegations contained in the Right To Be Heard would be referred to the Public Prosecutor.

24. The Second Decision and the Referral were made in circumstances where:

[a] They were wholly inconsistent with the First Decision;

[b] They were purportedly made in respect of an investigation which had concluded;

[c] The leader was given no notice that the investigation into the Allegations had been re-enlivened;

[d] Alternatively, the Leader was given no notice that a new investigation had been commenced into fresh allegations;

[e] The Leader was given no opportunity to be heard or otherwise respond t the new investigation and fresh allegations.

Part D – Grounds of Relief

28. In the premises of the First Decision and the Second Decision, it follows that:

[a] any investigation of the Commission after the First Decision – including the decision to refer the Leader to the Prosecutor – is null and void.

[b] the Commission had no power to make the Second Decision; 

[c] alternatively, the Second Decision constituted a new investigation into allegations of misconduct in office;

[d] the Second Decision is wholly inconsistent with the First Decision;

[e] alternatively, the leader was entitled to the right to be heard pursuant to s. 20(3) of the OLDRL in relation to the Second Decision, but was not granted that right.

33.	In dealing with the question of whether the Commission acted in excess of its jurisdiction by making the Referral (referred to in the judgment in OS 456/09 as the "Second Decision"), His Honour Hartshorn J concluded:

There is no evidence before me that a further investigation has been conducted by the Commission. The letter from the Commission notifying of the referral refers amongst other to Mr Pruaitch being given the right to be heard and that he had exercised that right. I am not satisfied on the material before me that it can be properly argued that Mr Pruaitch is entitled to any further notification or a further right to be heard in respect of the 8 allegations. Consequently, I am not satisfied that it can be properly argued that the second decision to refer Mr Pruaitch is in breach of section 41 or s 59 of the Constitution and the Commission acted without due process.

34.	It appears to me that the Plaintiff having failed in his bid for a judicial review under O16, has now tried to make the same claim but by using a different mode of proceedings. To borrow the words used by Mr Narokobi in his submissions, the Plaintiff has "rehashed his claim and come to the court with a different set of proceedings" and he is seeking "a second bite of the cherry". 

35.	In Telikom PNG limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited (supra), the majority of the court in holding that there was an abuse of process by the appellant in instituting multiple proceedings expressed these views:

At paragraph 96: In safeguarding against abuse of its processes the National Court should discourage plaintiffs from bringing their grievance to the court in a piecemeal way.

At paragraph 98 (quoting from the case of Anderson Agiru v Electoral Commission and the State (2002) SC 687): The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is, that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.

At paragraph 100: It is important to appreciate, as the Supreme Court highlighted in National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264, that an abuse of process can exist in many different ways: An abuse of process of the court may arise where in an application for remedy under Order 16 Rule 1(1) a party can obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under Order 16 as well as constitute multiple proceedings. It is not wise to indicate the circumstances that may amount to abuse of process of the court. This can be developed on a case by case basis.(My underlining)

36.	The Plaintiff has not advanced any good reason why these current proceedings were filed even though the same claims in respect of the right to be heard were raised in OS 456 of 2009. I have already found that the claims which are framed pursuant to provisions of the Constitution could have been included in the OS 456 of 2009. The Plaintiff in the present matter has raised a new argument claiming that the Referral was made contrary to Sch. 1.12 of the Constitution. This argument is to the effect that when the Commission made the Referral, only one of its members (Mr Nero) had survived from the Commission that was in office at the time when the Plaintiff exercised his right to be heard in 2006. I will further comment on this submission later on but for the moment, I find that this claim could have been pleaded in OS 456 of 2009 but was not. 

37.	The affidavit of Mr Pouru is intended to show that there were further investigations and new allegations against the Plaintiff after 2006. Even if I were to accept this to be so, it should have been also pleaded in OS 456 of 2009 but again, it was not. In any case I am unable to see from Mr Pouru's affidavit that there were further or new investigations and allegations against the Plaintiff. I think also that it would be normal and duty-bound for the Commission to further investigate for clarification and confirmation purposes responses that may be given by a Leader after being heard pursuant to the OLDRL. If indeed new allegations arise, then of course the Leader should be allowed to respond and defend himself in relation to the new allegations. 

38.	It is interesting to note that the decision of Hartshorn J was not appealed against. In my view, if Mr Pouru's evidence was sought to be included on appeal it would face much difficulty passing the fresh evidence test. 

39.	It appears to me that having been refused leave for a judicial review, the Plaintiff accepted the decision, hence no appeal. The Plaintiff allowed the Referral to continue its due process through the Office of the Public Prosecutor and then to the Office of the Honourable Chief Justice, and the recent appointment of the Leadership Tribunal. It is only then that the Plaintiff reframed his claims and relief sought and instituted this different mode of proceedings, which seems to me to be "an attempt to avoid the requirements under Order 16". If the principles concerning leave for judicial review were to be applied in the present matter, apart from being confronted with the findings of Hartshorn J in OS 456/09, the Plaintiff would in my view have great difficulty overcoming the question of undue delay. 

40.	Based upon on the above quoted passages of the majority in Telikom PNG limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited (supra) and the principles discussed therein, I am led to the obvious that these current proceeding are an abuse of process. 

41.	That being the case, I deem it not necessary to decide on the merits of the application of the Plaintiff for injunctive and stay orders.

Res Judicata

42.	For the same reasons set in my above discussions in paragraphs 29 to 32 above, I would suggest that the circumstances outlined therein namely, that the same facts, circumstances and key issues were raised in the previous proceedings OS 456/09, the plea of res judicata is made out. As explained by His Honour Injia DCJ (as he then was) in the case of Telikom PNG limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited (supra) at paragraph 12:

…. depending on how narrow or wide the doctrine is viewed, the circumstances which may amount to a plea of res judicata may also constitute abuse of process and therefore fall under the provisions of O. 8 r. 27 or O. 12 r.40 of the National Court Rules.

Sch. 1.12 Constitution

43.	I now make these brief comments in relation to the submissions concerning Sch 1.12 of the Constitution. Mr Sheppard submitted that pursuant to this provision, the Referral could only be valid if the same members of Commission that heard the Plaintiff in 2006 made the decision to refer the Plaintiff to the Public Prosecutor in 2009, or put in another way, as the membership of the Commission had changed since 2006, the newly constituted Commission should have heard from the Plaintiff before deciding whether or not to make the Referral to the Public Prosecutor. Sch. 1.12 reads:

Power of majority of more than two persons, and quorums.
(1) Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

44.	To my mind, and giving this provision its fair and liberal meaning pursuant to Sch. 1.5 of the Constitution, all this is saying is that whenever a decision is to be made by a body such as the Ombudsman Commission that is comprised of more than 2 members, the decision must be made by a majority of that body. It need not be the same membership that made an earlier related decision. For each decision taken by the body, the decision is only valid if taken by the majority of that body. So in the present case, we are concerned with the body (the Commission) that makes the relevant decisions, not the individuals comprising the Commission. Also see Sch. 1.10 (2) which provides: Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.

45.	To accord Sch.1.12 the interpretation suggested by the Plaintiff would only lead to an absurdity. But this issue can be discussed more fully in an appropriate case in the future.

Orders

46.	To conclude, the orders of the court are:

(1)	The entire proceedings OS No. 34 of 2010 is dismissed as an abuse of process.

(2)	The Plaintiff shall pay the costs of the proceedings to the Defendants.

(3)	Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith. 

_______________

Young & Williams Lawyers: Lawyer for the Plaintiff
Counsel for the Ombudsman Commission of PNG: Lawyer for the First Defendants
Acting Public Prosecutor: Lawyer for the Second Defendant