N5854

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 567 OF 2014

BETWEEN:

HON. BOKA KONDRA, MP and Member for North Fly Open Electorate
Plaintiff/Applicant

AND:

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Defendant/Respondent

Waigani: Nablu, AJ
2014: 22 October, 06 November

JUDICIAL REVIEW – Application for leave to apply for judicial review – Whether Ombudsman Commission is bound by Organic Law on Ombudsman Commission to notify the Leader of an investigation under the Leadership Code – Section 17(1) of the Organic Law on Ombudsman Commission – Leave Refused.

Cases cited:
Papua New Guinea Cases

Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417.
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70.
Hagoria v. Ombudsman Commission of Papua New Guinea (2003) N2400
Kakaraya v. Ombudsman Commission of Papua New Guinea (2003) N2478
John Mua Nilkare v. Ombudsman Commission [1996] PNGLR 333
Grand Chief Michael Thomas Somare v. Chronox Manek & Others (2011) SC 1118
Paul Asakusa v. Andrew Kumbakor, Minister for Housing & Others [2008] PNGNC 39; N3303
The Mineral Resources Development Company Ltd v. The Ombudsman Commission of Papua New Guinea (2008) SC 931

Overseas Cases

Inland Revenue Commissioners vs. National Federation of Self Employment and Small Business Ltd [1982] AC 671.

Counsel:

Mr. T. Cooper, for the Plaintiff/Applicant
Mr. T. Tanuvasa, for the State
Mr. M. Efi and Ms. C. Kore, for the Respondent

RULING
6th November, 2014

1.	NABLU, AJ: The Applicant by an Amended Originating Summons filed on 24th September 2014, seeks leave to apply for judicial review of the decision of the Ombudsman Commission (the Respondent), made on 7th July 2014 to refer three (3) allegations of misconduct to the Public Prosecutor for possible prosecution under the Organic Law on Duties and Responsibilities of Leadership.

2.	The Applicant (hereinafter referred to as the Leader), is the Member for North Fly Open Electorate and a Leader pursuant to the Organic Law on Duties and Responsibilities of Leadership. If leave is granted, the Leader seeks relief in terms of an order in the nature of certiorari to quash the decision of the Ombudsman Commission to refer him to the Public Prosecutor for three (3) allegations of misconduct in office. 

Facts

3.	The facts giving rise to this application are set out in the Leader's Affidavits filed on 18th August 2014 and 13th October 2014. From his Affidavit it is not disputed that he is the Member of Parliament for North Fly Open Electorate. The Leader entered Parliament on 27th July 2007, and this is his second term as a Member of Parliament.

4.	In 2010, the Ombudsman Commission obtained information concerning allegations of impropriety and misconduct in office against the Leader. After investigating the matter, the Ombudsman Commission formed an opinion that the Leader had a case to answer in relation to three (3) allegations of misconduct in office.

5.	It is alleged that the Leader utilized public funds from the District Services Improvement Program (DSIP) and District Support Grants (DSG) to pay the sum of K76, 500.00 for the Electoral office rental in Kiunga, Western Province, between the period 2008 to 2009. It is alleged that he also utilized public funds from the DSIP and DSG to pay the sum of K85, 799.96 between the period 2009 and 2010 for his personal rental accommodation in Port Moresby. The third allegation related to payment of a debt of K18, 200.00 to settle an outstanding debt for hire of a vehicle during his election campaign in the 2007 National General Elections.

6.	The Ombudsman Commission by a letter dated 16th December 2013, notified him of his right to be heard regarding the allegations of misconduct. On 20th December 2013, the Leader requested for extension of time to respond, which was granted by a letter dated 24th December 2013, from the Ombudsman Commission. The Leader formally responded to the allegations by letter dated 20th January 2014.

7.	After due consideration of the Leaders' response, the Ombudsman Commission found that there was a prima facie case of misconduct in office against the Leader. Having reached that conclusion, the Ombudsman decided to refer the Leader to the Public Prosecutor for prosecution under the Leadership Code on 7th July 2014.

8.	Mr. Cooper, of Counsel for the Leader moves this application for leave pursuant to the Amended Originating Summons filed on 24th September 2014.

9.	The application is supported by the Amended Statement in Support pursuant to Order 16 Rule 3(2) of the National Court Rules, and filed on 24th September 2014. The Leader also relies on his Affidavits filed on 18th August 2014 and 13th October 2014.

10.	 Counsel for the State, Mr. Tanuvasa indicated that he would only take issue with two of the requirements for leave, and they were; that the Leader does not have an arguable case and that he has not exhausted other administrative remedies.
 
Interest/Locus Standi

11.	 The Plaintiff is the aggrieved person directly affected by the Defendant's decision, therefore, there is no contest in regard to this requirement.

Delay

12.	The Ombudsman Commission's decision to refer the Leader was made on 7th July 2014. The Originating Summons was filed on 18th August 2014. Therefore, there is no delay in applying for judicial review.

Arguable Case

13.	 At the leave stage, the Court does not have to hear and determine the substantive merits of the case, it need only quickly peruse the material before it and determine whether the applicant has an arguable case and whether there are serious issues to be tried that warrant a substantive hearing (Inland Revenue Commissioners v. National Federation of Self Employed and Small Business Ltd [1982] AC 671 at 644 per Lord Diplock which was applied in NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70).
	
14.	In a nutshell the Leader argues that the Ombudsman Commission acted ultra vires. He argues that the Ombudsman Commission lacked the jurisdiction to carry out its investigation because it failed to inform the Leader that he was under investigation. The Leader argues that there was a breach of procedure. This was a fundamental breach of procedure. The Ombudsman Commission failed to comply with Section 17 (1) of the Organic Law on Ombudsman Commission.

15.	 The Leader contends that he has an arguable case and that the Ombudsman Commission acted ultra vires and exceeded its jurisdiction. He argues that because, the Ombudsman Commission did not notify the Leader of their intention to conduct investigation on the allegations of misconduct against the Leader. Therefore, the investigation was commenced without jurisdiction. Consequently, the decision to refer the Leader to the Public Prosecutor is null void.

16.	 Mr. Cooper of Counsel for the Leader submitted that the cases of Hagoria v. Ombudsman Commission of Papua New Guinea (2003) N2400 and Kakaraya v. Ombudsman Commission of Papua New Guinea (2003) N2478 to support his contention that judicial review is available to review such decisions to refer a Leader and the exercise of the Ombudsman Commission's power. Review of the Ombudsman Commission is made pursuant to Section 217(6) of the Constitution and Section 24 of the Organic Law on Ombudsman Commission. He submitted that the Leader's application for review was brought within the ambit of these provisions.

17.	 Counsel for the State, argued that the Leader does not have an arguable case. Section 217 (6) of the Constitution is clear that the proceedings of the Ombudsman Commission are not subject to review by the Supreme Court or National Court unless it has exceeded its powers (John Mua Nilkare v. Ombudsman Commission [1996] PNGLR 333; Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Others (2011) SC1118).

18.	 He submitted that Section 3 of the Organic Law on Ombudsman Commission clearly stipulates that investigations and referrals of Leaders are commenced under the Organic Law on the Duties and Responsibilities of Leadership and the Constitution.

19.	 The Ombudsman Commission derives its powers and functions from Section 219 of the Constitution. The Organic Law on Ombudsman Commission is intended to implement Division VIII.2 (Ombudsman Commission) of the Constitution.

20.	 It is necessary to set out the relevant provisions of the laws. Section 217 (6) of the Constitution states 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 is has exceeded its jurisdiction." 
 
21.	 Section 17(1) of the Organic Law on Ombudsman Commission states:

"17(1) Before investigating any matter within its jurisdiction, the Commission shall inform the responsible person of its intention to make the investigation." 
 
22.	 Section 24 of the Organic Law on Ombudsman Commission states:

"24. PROCEEDINGS NOT TO BE QUESTIONED OR TO BE SUBJECT TO REVIEW.
No proceedings of the Commission shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding of decision of the Commission shall be challenged, reviewed, quashed or called into question in any court."

23.	 Counsel for the State submitted that the ground of review relied on by the Leader was incompetent. That the ground of review was not pleaded properly or sufficiently to establish that there is an arguable case. The ground of review raises the argument that the Leader was not afforded the right to be heard. The ground of review does not highlight how the Ombudsman Commission has exceeded its powers.

24.	 He submitted the case of Paul Asakusa v. Andrew Kumbakor, Minister for Housing & Others [2008] PNGNC 39; N3303 to support his contention that in applications for leave for judicial review the question of whether an applicant has an arguable case is determine by reference to the grounds of review in the Statements of Support filed under Order 16 Rule 3(2)(a) of the National Court Rules and other material before the Court, as well as material presented by the State. 

25.	 According to the Amended Statement under Order 16 he relies on one ground of review. The ground as stated in the Statement reads:

 "The Defendants decision of 7th July 2014 to refer the matter involving 3 allegations of misconduct in office to the Public Prosecutor to deal with the Plaintiff was reached and made without any jurisdiction and or lawful basis envisaged by section 24 of the Organic Law on Ombudsman Commission Chapter No.913 of 1998 and section 217 (6) of the Constitution and is therefore invalid and of no effect."

26.	The crux of the Leaders' argument is that the Ombudsman Commission had exceeded their powers. They had proceeded with the investigation without first informing the Leader of their intention to investigate contrary to Section 17 of the Organic Law on Ombudsman Commission. The Ombudsman Commission had investigated without jurisdiction and lawful basis. Therefore, they had exceeded their jurisdiction as envisaged by Section 217 (6) of the Constitution and Section 24 of the Organic Law on Ombudsman Commission.

27.	Firstly, to address the issue of arguable case, I will first deal with the issue of the pleadings and whether the pleadings are sufficient and properly outline an arguable case.

28.	When applying the principles enunciated in Asakusas Case (supra). I find that the wording of the ground of review is vague and not particularized sufficiently to demonstrate the error of law or breach of procedure committed by the Ombudsman Commission. Onus is on the Leader to show proper cause why judicial review is warranted.

29.	There are numerous relevant authorities in our jurisdiction which discuss the purpose of judicial review. In the case of Kekedo v. Burns Phillip (PNG) Ltd [1988-89] 122, Kapi DCJ (as he then was) stated:

 "…the circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abused its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process."

30.	 In the present case, the Leader relies on one ground of review. In my view, the ground of review does not clearly establish any proper grounds recognized by law nor does it establish a breach of a statutory provision or breach of a common law duty. The Leader says that the Ombudsman Commission exceeded its powers. However, the ground of review pleaded does not say how the Ombudsman Commission breached the law or exceeded its jurisdiction. Issues of law should be clearly and succinctly pleaded in the ground of review in order for the Court to make a determination.

31.	 Therefore, I find that the ground of review pleaded in the Leaders' Statement of Support under Order 16 Rule 3 of the National Court Rules does not meet the proper and sufficient pleading test (see Asakusas' case (supra)) and it is therefore incompetent and not arguable. 

32.	 Secondly, after careful consideration and analysis of the law and reasoning of the Supreme Court in John Mua Nilkare v. Ombudsman Commission (supra), I am satisfied that the law is settled with regard to Section 17(1) of the Organic Law on Ombudsman Commission. Even though, the Supreme Court's reasons varied, they concluded that where the Ombudsman Commission was investigating a Leader for breach of the Organic Law on Duties and Responsibilities of Leadership, it did not have a duty to inform a Leader of its intention to investigate pursuant to Section 17 (1) of the Organic Law on Ombudsman Commission. The Supreme Court also held that Section 3 of the Organic Law on Ombudsman Commission expressly provides that, the Organic Law on Ombudsman Commission does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.

33.	 In Nilkares' Case (supra), the reasons alluded to by His Honour Injia, J (as he then was) are applicable in this present case. His Honour, said at page 382,

 "Reading Organic Law on the Ombudsman Commission, s17(1) with s 13 and Constitution s219(1) together, it is clear that the Commission is required to inform "the responsible person" of its intention to investigate him in relation to "any matter within its jurisdiction" as set out in the Organic Law on the Ombudsman Commission s13. Does "the responsible person" include a person referred to in Constitution Div III.2 (Leadership Code) and the Organic Law on the Duties and Responsibilities of Leadership. The type of persons referred to in s2 are person who would hold positions of responsibility in government departments, statutory bodies and local government bodies such as President or Chairman. Then Organic Law on Ombudsman Commission, Part VI (Complains and Proceedings) goes on to set out the procedures for receiving complaints, investigations and reporting "the responsible persons" to the appropriate authority."

34.	His Honour formed the view, that s 3 of the Organic Law on Ombudsman Commission is consistent with the interpretation that the Organic Law on Duties and Responsibilities' of Leadership is " in addition to and does not derogate the provisions of the Organic Law on the Ombudsman Commission". 

35.	 In considering the application of Section 17(1) of the Organic Law on Ombudsman Commission, His Honour went on to say that:

"…one of those provisions which could apply to investigations Leadership. Given the use of the phrase "any matter within its jurisdiction" one could argue that it refers to the Commission's jurisdiction under Constitution s219 and Organic Law on the Ombudsman Commission s13 which include Leadership Code matters. But the use of the phrase " the responsible persons" in the Organic Law on Ombudsman Commission, s17(1) and the explicit definition of that phrase in Organic Law on the Ombudsman Commission, s2, I think s17(1) applies to investigations conducted in relation to those matters within its jurisdiction under Organic Law on the Ombudsman Commission s13 and Constitution s219(1) with the exception of Constitution Div.III.2 (Leadership Code) and Organic Law on the Duties and Responsibilities of Leadership." 

36.	 I concur and adopt the views expressed by his Honour.

37.	 I am bound by the decision of the Supreme Court in the Nilkare Case (supra). In the recent case of The Mineral Resources Development Company Ltd v. The Ombudsman Commission of Papua New Guinea (2008) SC 931 the Supreme Court considered the question whether the Ombudsman Commission was required to provide notice under Section 17 of the Organic Law on Ombudsman Commission of its intention to investigate the Mineral Resources Development Company Ltd and its Managing Director/Chief Executive Officer? The Supreme Court affirmed its earlier decision in John Mua Nilkares Case (supra) and ruled that there is no obligation pursuant to statute or the principles of natural justice that the Ombudsman Commission has a duty to notify a person subject to the Leadership Code that he is under investigation under that law.

38.	 In conclusion, based on the evidence before me, I find that the Leader has failed to establish that he has an arguable case for judicial review. Firstly, I find that the Leader has not properly or sufficiently pleaded his ground of review. The ground of review is worded generally and does not disclose an established ground of review, recognized by law and that which warrants judicial review. Secondly, the argument that he was not notified of the impending investigation according to Section 17(1) of the Organic Law on Ombudsman Commission must fail because there is no statutory duty of obligation imposed on the Ombudsman Commission to notify the Leader that he is under investigation under the Leadership Code.

39.	 Therefore, I am satisfied that the Leader has not made out an arguable case.

Exhaustion of Administrative Remedies

40.	 Counsel for the Plaintiff argued that there was a breach of the Organic Law procedure, therefore he does not have any other avenue then to seek judicial review of the decision to refer him to the Public Prosecutor.

41.	 Counsel for the State argued that the Leader has not exhausted all the administrative remedies before coming to this Court. He argues that the Leader is seeking a review of the decision of the Ombudsman Commission to refer him to the Public Prosecutor for misconduct in office. If a Leadership Tribunal is convened (following the Public Prosecutors' advice), the Leader still has the right to be heard and defend the allegations of misconduct (Kakaraya v. Ombudsman Commission of Papua New Guinea (supra)).

42.	 It is well settled principle in this jurisdiction, that judicial review is not available to an applicant who is yet to exhaust other administrative remedies. This principle was enunciated in the case of Independent State of Papua New Guinea v. Phillip Kapal [1987] PNGLR 417 and was subsequently affirmed by the Supreme Court in Kekedo v. Burns Phillip (PNG) Ltd [1988-89] PNGLR 122.

43.	 The Supreme Court said in Kekedo v. Burns Phillip (PNG) Ltd (supra), that there must be exceptional circumstances that exist to warrant departure of the general rule that an applicant must exhaust all administrative remedies.

44.	 In my view, there are no exceptional circumstances that warrant a departure from the general rule; the Leader still has the opportunity to be heard by a Leadership Tribunal, if the Public Prosecutor thinks fit. The Leader was afforded the right to be heard in regard to the allegations pursuant to Section 20(3) of the Organic Law on Duties and Responsibilities of Leadership. The Leader was informed of this right to be heard by the letter dated 16th December 2013.

45.	On that basis, I am satisfied that the Leader has not exhausted all the available remedies.

46.	For those foregoing reasons, I find that the Plaintiff has not met all the requirements for leave to be granted.

47.	Leave to apply for judicial review is refused with costs to the State.

Court Orders

1.	Leave to apply for judicial review under Order 16 of the National Court Rules is refused.

2.	Costs to the State.

Orders accordingly

TL Cooper Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the State
In house Counsel – Ombudsman Commission: Lawyer for the Respondent