Application by Principal Legal Adviser [1991] PNGLR 239 (9 July 1991)

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[1991] PNGLR 239 - SC Review No 9 of 1990; Application by the Principal Legal Adviser

ADMINISTRATIVE LAW - Judicial review - Judicial acts - Application for leave - Locus standi of Attorney-General - Whether entitled to leave as of right - Ordinary principles to apply - Attorney-General Act 1989, s 7(c).

“To exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings.”

(1) The Attorney-General Act 1989, s 7(c), applies only to relator proceedings, it does not empower the Attorney-General to seek judicial review.

(2) Where the Attorney-General has standing to seek judicial review, he must satisfy the established criteria for seeking leave to apply for judicial review under s 155(2)(b) of the Constitution.

Attorney-General; Ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629.

This was an application for leave to apply for judicial review brought by the Attorney-General following failure of the Public Prosecutor to lodge an appeal from a decision of the National Court.

KAPI DCJ: Mr Eliakim T ToBolton, the managing director of the Investment Corporation of Papua New Guinea was summoned to attend on the Ombudsman Commission by summonsed pursuant to s 18 of the Organic Law on the Ombudsman Commission (Ch No 1) returnable on 28 June 1989. An officer on behalf of the Investment Corporation attended on the Ombudsman Commission in response to the summons and claimed that such summons was issued in excess of jurisdiction. In two subsequent letters, the Ombudsman Commission further particularised the subject matter of the complaint for which the managing director was being summonsed to appeal before the Commission. In these letters the Ombudsman Commission pointed out the requirements of s 18 of the Organic Law relating to the power of the Commission to summon persons to give evidence. The managing director of the corporation replied again and in effect denied the authority of the Ombudsman Commission to investigate its affairs. In essence the view expressed by the managing director was that the Investment Corporation is an organisation supported by public moneys and therefore does not consider that the jurisdiction of the Ombudsman Commission extends to it. The managing director held the view that any summons purportedly issued would be invalid and unenforceable and so the managing director failed to comply with the terms of the summons. According to s 30 of the Organic Law, a failure to attend a summons under s 18 is an offence.

Mr ToBolton was therefore charged with this offence and was brought before the District Court for the purposes of a committal hearing. The District Court found that there was a prima facie case that the managing director had failed to comply with the summons in that he did not attend on 28 June 1989 at the Commission’s office as required by the summons.

Mr ToBolton then applied for a judicial review pursuant to O 16 of the National Court Rules. The applicant sought an order of certiorari to quash the District Court orders on the basis that the Investment Corporation does not come within the jurisdiction of the Ombudsman Commission and therefore the summons was invalid and unenforceable. The National Court found that the National Investment Authority does not come within the jurisdiction of the Ombudsman Commission and therefore the District Court had no power to entertain the committal proceedings and consequently ordered that its committal orders were ultra vires.

The decision by the National Court was handed down on 9 July 1990 and no appeal was lodged by the appropriate authority within the forty days permitted under the Supreme Court Act. Four months later the Attorney-General applied for judicial review pursuant to s 155(2)(b) of the Constitution. Two matters arise for consideration. The first is the standing of the Attorney-General in making this judicial review and, secondly, whether this is an appropriate case in which a judicial review should be granted.

The issue of the standing of the Attorney-General in making the application for judicial review was not argued and for the purposes of this case it has been assumed that the Attorney-General has standing. However, in my view, the question of standing is important as it relates to the question of who has the power to exercise the prosecution function of criminal offences. Under the District Courts Act (Ch No 40) the prosecution of indictable offences is brought by committal proceedings in the District Court by a police informant. It is the function of the police to prosecute the case during the committal proceedings. In so far as it is the function of the police to prosecute such proceedings, s 197(2) of the Constitution states that the police are not subject to direction or control by any person outside the force.

Under s 4(h) of the Public Prosecutor (Office and Functions) Act (Ch No 338), the Public Prosecutor, in his absolute discretion, may provide representation in the prosecution of offences or the conduct of committal proceedings in the District Court.

As to the prosecution of offences in the National Court the exercise and performance of the prosecution function is placed in the Public Prosecutor by s 177 of the Constitution: see also, Public Prosecutor (Office and Functions) Act (Ch No 338). In the performance of such functions the Public Prosecutor is not subject to direction or control by any person or authority: s 176(3)(a) of the Constitution. The only exception to this is set out under s 176(3)(b) of the Constitution.

It is clear from a brief discussion of the prosecution function, both at the committal level and in the National Court, that the Attorney-General has no such function and can have no standing. It is important in this case because if the judicial review is granted, and the decision of the National Court is reversed, an order would be made that the committal of Mr ToBolton to stand trial in the National Court would be restored. The Attorney-General would have no standing or powers to prosecute the case in the National Court. It is clear that neither the police nor the Public Prosecutor are interested in appealing against the decision of the National Court by allowing the appeal period of forty days to expire and the Public Prosecutor has not joined the application for judicial review under s 155(2)(b) of the Constitution. However, as this matter was not argued, I cannot rely on this ground for dismissing this case.

The law is now clear that the onus is on the applicant to show that there are cogent and convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity and the applicant must justify why his right of appeal was not exercised and allowed to expire: see Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305; Independent State of Papua New Guinea v Colbert [1988] PNGLR 138; Application by Kasap and Yama [1988-89] PNGLR 197. The applicant has not addressed these issues at all and has failed to satisfy any of the requirements. However, the applicant has submitted that the Principal Legal Adviser does not have to satisfy these requirements and that s 7(c) of the Attorney-General Act gives him the power to intervene without having to satisfy those requirements. This provision is as follows:

(c) To exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings.”

In my view, the applicant has misconceived the nature of both a judicial review under s 155(2)(b) of the Constitution and relator proceedings which may be commenced by the Attorney-General. They are two distinct proceedings. With respect, the present case is not one of a relator proceedings. This is not a case in which the Attorney-General is seeking to enforce the law or to protect public rights: see, eg, Attorney-General; Ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629. Even if the Attorney-General had standing and may be regarded as a party aggrieved by the decision of the National Court, he is still required to satisfy the requirements of s 155(2)(b) of the Constitution, as interpreted in earlier decisions which have involved a consideration of that provision. In considering that issue, s 7(c) is of no assistance to the Attorney-General.

It was submitted that leave should be granted to review the decision because the point of law raised by the National Court decision has significant consequences to the jurisdiction of the Ombudsman Commission in relation to the Investment Corporation and other statutory bodies such as the Posts & Telecommunications Corporation. That, of course, is an important consideration. However, an appeal could have been lodged against the National Court decision within forty days in which case the point of law could have been argued before the Supreme Court. This has not occurred and no explanation has been given as to why the appeal period was allowed to expire. I would not grant leave to review this decision.

Indeed, the Court recognised the importance of the point of law raised by this application and, in fact, suggested at the outset of submissions that the difficulties of the applicant in bringing the s 155(2)(b) review could be overcome by withdrawing the application and amending it to a s 19 reference confined to the issues of law raised by the Organic Law and the Constitution. However, counsel for the applicant did not agree to this course and therefore must resolve these legal issues in other proceedings by way of a s 19 reference if so desired.

ELLIS J: I have read the judgment of the Deputy Chief Justice with which I fully agree. I doubt that I could express my reasons better than he has and, in those circumstances, delivering a separate judgment would serve no useful purpose.

DOHERTY J: I have read the judgment of the Deputy Chief Justice and agree with all he says. The provisions for judicial review are not an alternative way of seeking an appeal outside the period provided by law.

It is regrettable that the applicant found himself unable to amend and bring a s 19 constitutional reference as his argument on the central issue of the relationship of the Ombudsman Commission to the Investment Corporation has considerable merit. As the learned Deputy Chief Justice says, consequences of the National Court decision on similar Investment Corporation statutory bodies are significant.

The management of these statutory corporations is not subject to the control and direction of their shareholders and investors by way of shareholders meetings as are corporations such as companies or business groups. The management must be subject to some review and control and, in the case of the Investment Corporation, s 10(3) of the Investment Corporation Act (Ch No 140) provides that the Minister can give policy directives, s 33 makes the State responsible for all moneys due by the corporation and the Minister appoints the two most senior management members.

These and other provisions are indicative of its being an instrumentality of the State, and so, in my view, likely to be subject to the investigative powers of the Ombudsman Commission.

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Papua New Guinea Law Reports

Application by Principal Legal Adviser [1991] PNGLR 239 (9 July 1991)

Papua New Guinea Law Reports - 1991