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Diro v Ombudsman Commission of PNG [1991] PNGLR 153 (29 May 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 153 - Diro v Ombudsman Commission of PNG 

[1991] PNGLR 153

N982

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DIRO

V

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Waigani

Sheehan J

29 May 1991

ADMINISTRATIVE LAW - Judicial review - Application for leave to apply - Ex parte proceedings - Leave to intervene - To be restricted to submissions only - “Arguable case” - National Court Rules, O 16, r 3(2).

PRACTICE AND PROCEDURE - Ex parte hearing - Leave to apply for judicial review - Leave to intervene - To be restricted to submissions only - “Arguable case” - National Court Rules, O 16, r 3(2).

The National Court Rules, O 16, r 3(2), provides that an application for leave to apply for judicial review shall be made ex parte.

Held

(1)      Whilst leave to intervene may be granted on an application for leave to apply for judicial review, the intervening party should be restricted to making submissions only; to allow otherwise takes the matter beyond the ex parte determination of whether the applicant has an arguable case.

NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70, considered.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, distinguished.

(2)      An “arguable case” is one fit for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such arguments as are necessary on law.

R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109, adopted and applied.

Cases Cited

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617; [1981] 2 WLR 722.

NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244.

R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109.

SCR No 3 of 1982; Re The Constitution, ss 57 and 155(4) [1982] PNGLR 405.

Application for Judicial Review

This was an application for leave to apply for judicial review.

Counsel

L Henao, for the plaintiff.

G Toop, for the defendant.

29 May 1991

SHEEHAN J: This is an application for leave to apply for judicial review.

The plaintiff is presently appearing before the Leadership Tribunal facing charges laid by the Public Prosecutor alleging misconduct in office contrary to the provisions of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1). The substance of those charges was placed before the Public Prosecutor by the Ombudsman Commission following its investigation into the plaintiff’s conduct as a leader of this Country.

The plaintiff seeks to challenge the validity of the Ombudsman Commission’s referral of findings to the Public Prosecutor. If he can establish that referral was invalid, then, he contends, the proceedings before the Leadership Tribunal and even the establishment of that Tribunal itself, must be set aside. Hence this application for leave to apply for judicial review.

The requirement for leave is to enable the courts to sift out at an early stage, applications which are trivial, vexatious or hopeless. This is to ensure than an applicant is only permitted to proceed to a substantive hearing inter partes if the Court can be satisfied there is an arguable case for review: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722.

By the National Court Rules, O 16, r 3(2), application for leave to move for judicial review shall be made ex parte. Even though there is a requirement for notice to be given to the defendant there is no automatic right given a defendant to oppose at this stage. But the intervention of the defendant or other parties is not thereby wholly excluded. Others may intervene and oppose, by leave. Here counsel for the Ombudsman Commission sought leave to intervene and to file an affidavit to support submissions in opposition. Counsel cited the comments of McDermott A-J in Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244 and Wilson J in NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70 as authority for such a course.

The Olasco case is not strictly in point. Although leave to intervene was granted in that case, the arguments in opposition supported by affidavits were heard at the substantive hearing of the review. In the NTN case, on the other hand, leave to intervene and argue against leave was granted to a defendant on issues of undue delay and hardship and affidavits filed in opposition on those grounds were read at the application for leave.

Leave for the Ombudsman Commission to intervene at this stage and make submissions in opposition was granted. This was because the Court wished to hear argument on the relevant law and on the substance of the grounds set out in this application and because, in any case, the plaintiff did not oppose intervention. The application to file and read a supporting affidavit was declined.

With respect to the decisions cited above, I believe that to ensure that an application for leave to apply for judicial review remains the ex parte application required by O 16, r 3(2), the better course is that any intervening party oppose only by way of submissions. If affidavits are necessary to support an opposition, that contest signals that an argument on the merits is required. That takes the matter beyond the ex parte consideration of whether the applicant has an arguable case on the papers filed, as envisaged by O 16. It becomes a hearing of the review itself. This does not prevent effective opposition to any application for leave, particularly on grounds of insufficient interest, delay or substantial hardship to a defending party. It does restrict argument to the preliminary ex parte examination intended by the rules.

An ex parte application for leave to apply is not intended to be as extended or exhaustive as a full substantive judicial review hearing. The purpose is to establish whether the applicant has an arguable case. There will just as likely be an arguable case in opposition. But that would not be a ground for refusal. If the court can be satisfied there is a case fit for further consideration then leave should be granted.

The plaintiff’s motion details the relief sought:

“1.      An Order that leave be granted to the Plaintiff to apply for Judicial Review in terms of this Notice of Motion.

2.       A declaration that Sections 17(d), 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership Chapter 1 of the Revised Laws of Papua New Guinea are inconsistent with and thereby ultra vires Section 29(1) of the Constitution of the Independent State of Papua New Guinea.

3.       Orders of Certiorari to remove for the purposes of their being quashed.

(a)      The referral in or about March or April 1991 to the Public Prosecutor by the Defendant of allegations of misconduct against the Plaintiff.

(b)      The appointment on the 10th day of April 1991 by the Chief Justice of this Honourable Court of a Leadership Tribunal to hear enquire into and determine allegations of misconduct in office by the Plaintiff.

(c)      The suspension on the 17th April 1991 of the Plaintiff from the duties of Deputy Prime Minister of Papua New Guinea and a Member of the National Parliament.

4.       Orders that:

(a)      Proceedings before the abovementioned Leadership Tribunal be stayed.

(b)      The Plaintiff be reinstated to his duties as the Deputy Prime Minister of the Independent State of Papua New Guinea and as a member of the National Parliament.

5.       An Order referring any question arising in these proceedings relating to the interpretation or application of any provision of the Constitution Law to the Supreme Court of the Independent State of Papua New Guinea as required by Section 18(1) of the Constitution of the Independent State of Papua New Guinea.

6.       That costs be in the cause.

7.       Such other orders as this Honourable Court deems fit.”

The plaintiff relies on the following grounds:

“3.      The grounds upon which the plaintiff seeks the relief mentioned are as follows:

(a)      Sections 17(d) and 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership Chapter 1 in the Revised Laws of Papua New Guinea are inconsistent with and thereby ultra vires Section 29(1) of the Constitution of the Independent State of Papua New Guinea in that:

(i)       Section 29(1) of the Constitution provides that the Ombudsman Commission shall refer matters of misconduct in office only where it is satisfied there is a prima facie case ...

(ii)      The Sections 17(d), 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership provide a lower standard of satisfaction on the part of the Ombudsman Commission than that required under Section 29(1) of the Constitution ...

(iii)     The said Sections 17(d), 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership being ultra vires Section 29(1) of the Constitution of the Independent State of Papua New Guinea are accordingly void and of no effect ...

(b)      In addition or in the alternative the Defendant has indicated it referred allegations against the plaintiff of misconduct in office relying upon ... Section 20(4) of the Organic Law on the Duties and Responsibilities of Leadership and, insofar as the Defendant relied on the said Section 20(4) and may have relied on the abovementioned Section 17(d) and 27(1) ... then the Defendant applied a lower standard of satisfaction ... than is required by Section 29(1) of the Constitution ...

(c)      In addition or in the alternative the Defendant breached the rules of natural justice in that, before referring the allegations of misconduct in office against the Plaintiff, the Defendant failed to grant the Plaintiff the right to be heard as required by the rules of natural justice and as required by Section 20(3) of the Organic Law on the Duties and Responsibilities of Leadership thereby exceeding its jurisdiction.

(d)      In addition or in the alternative the Defendant breached the rules of natural justice in that, before referring the allegations of misconduct in office against the Plaintiff, it refused to allow the Plaintiff an opportunity to introduce ... evidence from third party witnesses or other evidence ...

(e)      The Defendant failed to adequately notify the Plaintiff as required by Section 20(2) of the Organic Law on the Duties and Responsibilities of Leadership before referring the matter of allegations of misconduct in office against the Plaintiff to the Public Prosecutor for prosecution.

(f)      The Defendant, particularly through the appointment of Jim Ridges as a member of the Defendant Commission, was biased against the Plaintiff in its investigation of allegations of misconduct. ...”

Essentially these grounds come down to three. The first is that in deciding to refer allegations of misconduct to the Public Prosecutor, the Ombudsman Commission used the wrong criteria to assess the weight of evidence.

The plaintiff says that ss 17(d), 20(4) and 27(1) of the Organic Law on Duties and Responsibilities of Leadership call for lesser standards than that required by s 29(1) of the Constitution. This inconsistency, this failure to meet the true criteria set by the dominant law, the Constitution, results in the referral being ultra vires, that is, outside the powers of the Ombudsman Commission.

The flow-on effect of that illegality, the plaintiff contends, is that the Public Prosecutor’s laying of charges is invalid and the appointment of the Leadership Tribunal itself is invalid. Accordingly, since all such proceedings are invalid, the Court should make appropriate orders of certiorari including an order to lift the suspension of the plaintiff from his duties as Deputy Prime Minister and Member of Parliament.

The second contention is that the Ombudsman Commission failed to give the plaintiff an opportunity to be heard on the misconduct alleged before referring its findings to the Public Prosecutor. It thus breached the express provisions of s 20(3) of the Organic Law on Duties and Responsibilities, as well as the accepted norms of natural justice. Supplementary to that, it is the plaintiff’s contention that the Ombudsman Commission further breached rules of natural justice in refusing to allow the plaintiff to bring forward witnesses and testimony in support of his express wish to be heard.

Also under this heading is a claim that the plaintiff was not adequately notified of the actual referral to the Public Prosecutor as required by s 20(2) of the Organic Law.

The third ground was bias. Namely that the Ombudsman Commission:

“... particularly through the appointment of Jim Ridge as a member of the Defendant Commission was biased against the Plaintiff in its investigation of allegations of misconduct.”

Mr Toop for the Commission submitted first, that the ground that the Organic Law sections (ss 17(d), 20(4) and 27(1)) were inconsistent with the Constitution was not backed by any evidential support. But even if it could be shown that there was some inconsistency, it would still not be a matter for referral. The Supreme Court does not accept applications under s 18 of the Constitution for decisions on the application or interpretation of Constitutional Laws except on established facts. No facts are offered or established here.

For the Ombudsman Commission, Mr Toop argued that the plaintiff also did not have an arguable case on the merits.

The plaintiff was afforded a right to be heard before the Ombudsman Commission made its referral. The plaintiff had even exhibited the notice granting his right to be heard in his application for judicial review. The Commission was not obliged to set out the charges, chapter and verse, as they might subsequently be laid. It only had a duty to set them out in sufficient detail to inform the plaintiff of the matters alleged. It had done so. These too were patent, as exhibits in the plaintiff’s own application.

The defendant Commission wished to submit affidavit evidence to rebut, what Mr Toop submitted, was a specious selection of documents by the plaintiff to establish his grounds. The Commission wished to show that the application was not made in good faith. As already noted that was refused. This hearing is the plaintiff’s ex parte application and it stands or falls on the papers as they now appear at this hearing. That is, the ex parte hearing remains ex parte even though submissions in opposition have been heard.

Mr Toop went on to submit that as the Ombudsman Commission findings could only result in a referral to the Public Prosecutor — a preliminary step to a possible prosecution — the referral was not a final determination of any of the plaintiff’s rights. The opportunity to be heard was open to him before the Leadership Tribunal. Accordingly, principles of natural justice were not to be as rigorously applied to the Ombudsman Commission proceedings as under a hearing before the Leadership Tribunal itself.

It was submitted that the claim of the plaintiff to be entitled to call witnesses before the Commission also plainly ran contrary to s 20(3) of the Organic Law. Again, the plaintiff himself had exhibited in his application the very notice given him, that the findings of the Ombudsman Commission were to be referred to the Public Prosecutor.

Finally the defendant argued that, in the particular circumstances, there has been inordinate delay in filing this application. Despite the plaintiff having decided as early as January 1991 (according to his affidavit) that his right to be heard was going to be denied by the Commission, he did nothing, though then under legal advice. Again, from the date of formal notice by the Commission on 18 March, of its intention to refer, two months elapsed before this application was made to the court. That is some five weeks after the Tribunal had convened and the plaintiff had formally consented to its jurisdiction.

The purpose of this decision is not to make findings on the merits of the plaintiff’s case for leave. The Court’s task is only to decide if the plaintiff has shown an arguable case, that is, one:

“... fit for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such arguments as are necessary on Law”: see R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109.

On ground (1) regarding the inconsistency of s 17(d), s 20(4) and s 27(1) of the Organic Law on Duties and Responsibilities of Leadership with s 29(1) of the Constitution, I find nothing here to warrant leave being granted to pursue this contention.

The relevant sections are as follows:

“Organic Law on Duties and Responsibilities of Leadership.

17.     ... the functions of the Ombudsman Commission ... are:

(d)      to refer to the Public Prosecutor for prosecution by him before the appropriate tribunal referred to in Section 27 any case where, in its deliberate judgement, there is evidence of misconduct in office by a person to whom this Law applies.

20(4)  If, after an investigation, the Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor ...

27(1)  If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion:

(a)      to the Public Prosecutor

Constitution

29(1)  Where the Ombudsman Commission or other authority referred to in Section 28(1) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provision).”

First and foremost, there just is no evidence offered on this ground. The claim in par 3(b) of the statement in support, that “the defendant indicated it referred the allegations relying on the provisions of s 20(4) and may (emphasis added) have relied on the provision of s 17(d) and s 27(1) of the Organic Law” is no assertion of fact and certainly nothing was offered in support of it.

Counsel for the defendant is correct when he says that the referral of constitutional questions under s 18 of the Constitution must be based on a set of facts:

“In Constitutional matters referred under s 18 of the Constitution it is our view that all findings of fact necessary for interpretation or application of a Constitutional Law must be made by the Court or Tribunal before making the reference.” SCR No 3 of 1982; Re The Constitution, ss 57 and 155(4) [1982] PNGLR 405 at 408.

A bare “indication” or “assertion” as to what did or may have occurred is not sufficient to grant a party leave to embark on a hearing by way of judicial review to see if facts exist or not. In any case s 20(4), in my view, is merely a section empowering referral, not one establishing evidential standards.

Again the claim that ss 17(d), 20(4) and 27(1) of the Organic Law demand a lower standard than s 29(1) of the Constitution is in my view quite incorrect, trivial and vexatious. It is not usurping Supreme Court interpretative authority to say that the words “prima facie” in s 29(1) mean no more there, than they do in any other legal context. That phrase simply means “at first sight”. It is the minimum standard of evidence, in fact, simply evidence that a situation or fact exists with no evidence having being brought or asserted to contradict it.

The sections of the Organic Law call for “deliberate judgment”, by the Ombudsman Commission (s 17(d) or, “after an investigation ... an opinion that there is evidence” (s 20(4)) and, satisfaction” by the Commission that a leader is guilty of misconduct (s 27(1)). Each calls for an exercise of consideration of evidence which is, at the very least, as deliberative as a “first sight” case under s 29(1) of the Constitution. In fact more so.

The rules of construction of written laws set out in the Constitution, state that anything in excess of constitutional provisions is ineffective. They also provide that any Act must be interpreted to best give it effect. Thus even if it were to be established that a referral was pursuant to any of these sections they would still not require the Supreme Court’s interpretation.

Ground three can be quickly dealt with. It was not pursued — and it is plain that there is no substance in it. It claims bias assumed from an incorrect supposition that the Commission appoints its own members. It does not. It makes an allegation of bias against a named member but fails to assert any improper conduct. There is no ground for review here and it is struck out.

On the second ground, namely, the claim of failure to accord the plaintiff an opportunity to be heard on the allegations of misconduct prior to referral, I believe the plaintiff has raised an arguable case. In this ground I also include the claim of failure to allow the introduction of witnesses and failure to notify referral.

Mr Toop said that the plaintiff’s case was specious and lacking in good faith. That is not patent on the face of this application. It may be a matter for the court to consider when all the evidence is in.

There remains the challenge of undue delay. And the submission that there needs to be decision and certainty in public administration. While it may be said there has been delay, at this stage at least, it is not shown to be so serious as to warrant refusal for leave to apply for judicial review. The question of delay like all issues remains open on review itself and the extent and effect of such delays can be better assessed at the hearing.

Finally it was submitted that the very matter the plaintiff complains of — the lack of opportunity to be heard — is being accorded him in full by the Leadership Tribunal. There is much force in this submission. But the plaintiff’s contention that the suspension from his duties caused by referral is of itself sufficient detriment to warrant pursuing review now, raises an arguable case. Again that is a matter for the court at the hearing of the application.

In the result leave is granted to the plaintiff to pursue the orders set out in par 3 of the notice of motion, on the grounds stated in pars 3(c), (d) and (e) of the statement in support of application for leave.

The application as amended to be filed and reserved on the defendant within seven days.

Leave granted

Lawyers for the plaintiff: Henao Cunningham Priestley.

Lawyer for the defendant: Ombudsman Commission.