PNG Law Reports 1995
[1995] PNGLR 70
N1397
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
JEFFREY BALAKAU
V
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA AND THE PUBLIC PROSECUTOR 
Waigani
Sheehan J
25 October 1995
6 November 1995
8 November 1995
8 December 1995
ADMINISTRATIVE LAW - Judicial review - Referral by Ombudsman Commission - Application for leave - Undue delay - Procedure of inquiry completed.
Facts:
The plaintiff sought leave to apply for judicial review of the decision of the Ombudsman Commission to refer him to the Public Prosecutor to decide whether to prosecute him for breach of the Leadership Code. He argued that the referral was, inter alia, in breach of principles of natural justice, as the Commission did not notify him of an intention to investigate him.
Held:
1.       The investigation procedure adopted by the Commission was in accordance with the Organic Law, and the plaintiff was given an opportunity to respond to the charges/allegations of misconduct made against him.
2.       His complaint now of not being notified of an intended investigation of his conduct by virtue of the provisions of s 17 of the Organic Law On the Ombudsman Commission has no force. Such is not required.
Cases Cited:
Karo v Ombudsman Commission [1995] PNGLR 547.
Nilkare v Ombudsman Commission (1995) unreported N1344.
Counsel
J Wal for the plaintiff.
G Toop for the respondent.
8 December 1995
SHEEHAN J: This is an application for leave to apply for judicial review. The relief that the plaintiff claims is set out in his originating summons as follows:
1.       Leave to apply for judicial review of the decision made by the first respondent to refer the applicant to the Public Prosecutor. 
2.       A declaration that the referral of the applicant/plaintiff by the first respondent to the Public Prosecutor for prosecution under the Organic Law on the Duties and Responsibilities of Leadership (OLDRL), was in breach of his right to be initially informed that he was being investigated under s 17(1) of the Organic Law on the Ombudsman Commission (OLOC).
3.       A declaration that the first respondent, in breach of s 20(3) of the Organic Law on the Duties and Responsibilities of Leadership as well as in breach of the natural justice principles, had failed to furnish the applicant/plaintiff with all the necessary documentation and particulars relative to the allegations of misconduct to enable him to make adequate reply. 
4.       A declaration that the said referral was in breach of the applicant’s rights under s 59 of the National Constitution in that, in a letter dated 23 August 1995, the applicant was given to believe that the first respondent had only intended to refer the applicant to the Public Prosecutor.
5.       A declaration that the said referral was contrary to the principles of natural justice in that the first respondent failed to set out in a full, fair, and proper manner the plaintiff’s defence or explanation of the allegations made against him. 
6.       A declaration that the said act of referral almost two years after the applicant replied to certain charges laid by the first respondent against him is in breach of the applicant’s rights to a fair hearing within a reasonable time under s 37(3) of the National Constitution. 
7.       A declaration that the said act of referral almost two years after the applicant replied to certain allegations made by the first respondent is detrimental to good administration, particularly in view of the fact that the first respondent waited until the applicant became Governor of Enga Province under the new Organic Law on Provincial Governments and Local Level Governments before making the said referral.
8.       A declaration that the sum of the first respondent’s failure to observe the rules of natural justice and its failure to follow the prescribed procedures under the Leadership legislation is evidence of real bias in the conduct of its duties. 
9.       An order that the first respondent’s determination that the applicant/plaintiff is prima facie guilty of misconduct in office is invalid and that it be quashed. 
10.     An order that the said referral is invalid and that it be withdrawn.
The grounds for that relief are set out in the statement filed in support of the application as follows:
“4.      The grounds on which relief is sought are as follows:
(a)      The investigative procedures applied by the first respondent resulting in the decision to refer the applicant/plaintiff to the Public Prosecutor was wrong in law in that it was a harsh and oppressive act or an unlawful act within the meaning of s 41 of the National Constitution in that it was executed without due process of the law and based on a “draconian” or “KGB” style of investigation and prosecution. 
(b)      The actual investigation was wrong in law in that it was contrary to the provisions of s 17(1) of the Organic Law on the Ombudsman Commission (OLOC) in that the first respondent did not inform the applicant/plaintiff of its intention to investigate the applicant/plaintiff prior to actually doing so.
(c)      The decision was wrong in law in that it was contrary to the provisions of s 17(4) of the OLOC in that the first respondent’s actions were likely to affect the Enga Interim Provincial Government and the Statutory Head of that Body (the Speaker) had not been given any opportunity to comment on the subject of the investigation before the applicant/plaintiff was referred to the second respondent. 
(d)      The decision to refer the applicant to the Public Prosecutor was wrong in law in that it was contrary to the provisions of s 20(2) of the OLDRL in that the applicant was not notified before referring him to the Public Prosecutor. 
(e)      The decision to refer the applicant to the Public Prosecutor was contrary to the provisions of s 20(3) of the OLDRL in that the first respondent failed to furnish the plaintiff with all the necessary documentation and particulars relative to the allegations of misconduct to enable him to make adequate reply.”
Further grounds cited are that the delay in the referral some two years after he had made due reply was unfair and leads to suspicion of bias. 
In the hearing of this application, the grounds that were set out were traversed by counsel for the plaintiff and the contention made that the sum of these was sufficient to establish an arguable case that should be heard by way of review. He relied on the affidavit of the plaintiff contending that he has not been given a full opportunity to be heard in terms of the material that should have been supplied to him, as detailed to him in the decision of Karo v Ombudsman Commission [1995] PNGLR 547. It was also submitted that, in its referral, the Ombudsman Commission did not, or might not have, set out such defence as had already been forwarded to the Commission when he replied to the allegations in 1993. Of course, as he has not yet been given copies of the documents supplied to the Public Prosecutor, he was not able to say whether, in fact, his defence was forwarded or not. 
Counsel for the Ombudsman Commission was given leave to intervene and argued that leave should not be granted on grounds of delay. It is unnecessary to detail the full extent of this submission. Suffice to say, the Commission’s contention is that the whole of the investigation process required of the Ombudsman Commission under the OLDRL has been followed. The plaintiff was given an opportunity to be heard on the charges or allegations put to him by the Commission. He took the opportunity to reply to them without making complaint of lack of information or time. He has now been duly referred to the Public Prosecutor following notice of the Commission’s intention to do so, as required by ss 20(2) and (4) and s 27(1) of the OLDRL.
DECISION
There is no doubt in my mind that this application must be refused. In the decision of Nilkare v Ombudsman Commission (1995) N1344, there is a citation from Review of Administrative Action (Law Book Co 1987) at p 212: 
“In order to obtain an appropriate remedy the right person must apply for an appropriate remedy against the right person at the right time, and the Court must be persuaded to grant that remedy notwithstanding its discretionary powers to refuse appropriate relief on grounds personal to the applicant or on broader considerations.”
On the affidavit evidence supplied by the plaintiff himself, there can be no doubt that an investigation into the conduct of the plaintiff was carried out by the Commission; that charges detailing allegations of misconduct were referred to him with a request for explanation. He duly responded to those allegations and, following further considerations, the Commission has (after giving him due notice of its intention to do so) referred the allegations to the Public Prosecutor for his consideration as to whether prosecution should follow.
What the plaintiff has, in fact, described in his affidavit evidence is the complete process required by the OLOC and the OLDRL for an enquiry by the Ombudsman Commission. This process proceeded from inquiry to referral without the plaintiff raising any issue of concern till now, after the process is competed. 
His complaint now of not being notified of an intended investigation of his conduct by virtue of the provisions of s 17 of OLOC has no force. Such is not required. Nilkare’s case decided that. Again, claim of prejudice by the Commission’s “delay” has no substance in law. The Commission determines its own procedures, and there is no evidence of prejudice to the plaintiff in this regard. Another one of the plaintiff’s grounds for relief was that the reply that he had supplied to the Commission was not forwarded to the Public Prosecutor. It is plain that the plaintiff is unaware of whether that is so or not. Certainly, he admits no enquiry has been made to establish this one way or another. 
Under these circumstances, there are no grounds upon which this Court should grant leave for review of the Commission’s decision to refer. The application of the plaintiff is, therefore, declined.
Lawyer for the plaintiff: Wal Lawyer
Lawyer for the respondent: Ombudsman Commission