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Nilkare v Ombudsman Commission [1995] PGNC 29; N1344 (4 August 1995)

Unreported National Court Decisions

N1344

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 216 OF 1995
JOHN MUA NILKARE - Plaintiff
v
OMBUDSMAN COMMISSION - Respondent

Waigani

Sheehan J
17 July 1995
4 August 1995

JUDICIAL REVIEW - Reference of Leader to the Public Prosecutor on allegations of misconduct in breaches of the Leadership code-Challenge to referral for failure to comply with Organic Law and breach of natural justice-allegations of bias

Counsel:

SM Littlemore QC for the Plaintiff

G Toop for the Defendant

4 August 1995

DECISION

SHEEHAN J: The Plaintiff, Mr. John Mua Nilkare is a member of the National Parliament and subject to the Leadership code established by the Constitution.

In January of this year, following an investigation, the Ombudsman Commission referred some thirty one (31) allegations of misconduct in office to the Public Prosecutor for consideration as to whether charges should be laid before a Leadership Tribunal constituted under the Organic Law on the Duties and Responsibilities of Leadership. The Public Prosecutor determined to lay charges and these were in fact prepared for referral and served on the Plaintiff. Charges were in fact laid in April of this year. A Leadership Tribunal was convened to hear these complaints commence the hearing to on June 1995.

However, in late May, the Plaintiff made application this Court to stay the proceedings of the Leadership Tribunal until a challenge to the validity of the Ombudsman Commission’s referral on grounds to breaches of statutory and natural justice requirements bias and unabias could be heard.

That application resulted in an order that:

“Leave (be) granted to the Plaintiff to apply for Judicial Review of the decision made by the Respondent (the Ombudsman Commission pursuant to s. 29 (1) of the Constitution and s. 20 (4) and s. 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership, to refer to the Public Prosecutor for prosecution before a Tribunal established under s. 28 (1)(g) of the Constitution and s. 27 (7) of the Organic Law on Leadership “the Tribunal”), thirty one (31) allegations of misconduct in office [“the Referred Allegations”], such allegations being set out in a document titled “Referral Statement of Reasons by the Ombudsman Commission to the Public Prosecutor” and dated 7th January, 1995.”

The proceedings of the Tribunal were likewise stayed pending the hearing of this application.

The Plaintiff contends that the Commission’s decision to refer him to the Public Prosecutor on allegations of misconduct were invalid on the grounds which are set out in the Statement filed in support of the application for Judicial Review. In summary, it is the Plaintiff’s case that before the Commission could come to a determination that prima facie the Plaintiff was guilty of misconduct in office and the Commission was therefore empowered to refer the allegations to the Public Prosecutor, it was obliged to follow the procedures governing its functions set out in the Organic Law.

There was first a requirement of law that it inform the Plaintiff of its intention to undertake an investigation into his conduct in office. This was not done. Secondly, the Commission having undertaken an enquiry was obliged and failed to give him a reasonable opportunity to be heard in relation to all the issues being investigated by the Commission. Thirdly, the Commission failed to furnish the Plaintiff with all the necessary documentation and particulars relating to the allegations of misconduct to unable him to make adequate reply. Fourthly, in making its referral the Commission failed to set out in a full fair and proper manner the Plaintiffs defence or explanation of the allegations against him. The failure to follow these statutory procedures are themselves sufficient to invalidate the referral. They also constitutes a denial of the rules of natural justice and a breach of the Commission’s duty to observe such rules. Finally, the Plaintiff contends that the sum of the Commission’s failure to observe the rules of natural justice, its failure to follow the procedures determined under the Leadership Legislation is evidence of real bias in the conduct of its duties.

Accordingly, the Plaintiff seeks declarations that the determination that the Plaintiff is prima facie guilty of misconduct in office is invalid and that it be quashed; that the referrals are likewise invalid and that the referral should be withdrawn. That the Leadership Tribunal should be disbanded and that the Ombudsman Commission be ordered to take no further steps in regards to the allegations wrongfully referred.

EVIDENCE

The events backgrounding these claims are, in brief, that following certain complaints to the Commission dating back to November 1992 concerning the Plaintiffs conduct as a leader, the Commission on or about 11 February determined to investigate those allegations and any others that might arise in the course of its investigations. That decision was not communicated to the Plaintiff.

Enquiries then proceeded throughout remainder of 1993 and early 1994 and resulted in the Commission advising the Plaintiff by letter of 8 June 1994 that he had a right to be heard in respect of certain allegations of misconduct made against him. The correspondence between the Commission and the Plaintiff from that point through to referral of charges to the Public Prosecutor establish the major facts of this enquiry. The Commission’s letter commences:

“8 June 1994

Hon John Mua Nikare MP

Member of Guinea

c/- National Parliament

Parliament House

WAIGANI NCD

Dear Sir

YOUR RIGHT TO BE HEARD ON ALLEGED BREACHES OF THE LEADERSHIP CODE AND THE ORGANIC LAE ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

You are hereby advised that in accordance with Section 20(3) of the Organic Law on the Duties and Responsibilities of Leadership you have a right to be heard in relation to certain allegations of misconduct in office against you.

The allegations are as follows:”

There than follows eleven(11) pages detailing the allegations against him. Each allegation finishing with the statement:

“As a consequence you may have committed misconduct in office. Thus your explanation is required.”

The letter than concludes as follows:

“REQUIRED ACTION

You are required to contact the Ombudsman Commission, either personally or in writing, within 21 days after receiving this letter, so that a suitable time can be arranged for you to respond to all of the above allegations and exercise your right to be heard under Section 20(3) of the Organic Law on the Duties and Responsibilities of Leadership.

Section 20(3) of the Organis Law on the Duties and Responsibilities of Leadership states:

‘Nothing in this law compels the Commission or other authority to hold any hearing and no person, other than the person whose conduct is being investigated, is entitled as of right to be heard by the Commission.’

If you do not contact the Ombudsman Commission within 21 days after receiving this letter, the Commission will proceed with its investigation in your absence and take whatever action is considered necessary under the Constitution and the Organic Law on the Duties and Responsibilities of Leadership.

If the Ombudsman Commission is satisfied that there is a prima facie case that you are guilty of misconduct in office, it is obliged by Section 29(1) of the Constitution and Sections 17(d), 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership to refer the matter to the Public Prosecutor for prosecution before a Leadership Tribunal.

We therefore strongly suggest that it is in your best interests to give this matter your urgent consideration and attention.

The Plaintiff replied on the 21 June 1994:

“PO Box 1

WAIGANI NCD

Phone: 201009

Fax: 200993

21 June 1994

Chief Ombudsman

Ombudsman Commission of Papua New Guinea

PO Box 852

BOROKO

National Capital District

Dear Sir

RE: ALLEGED BREACHES OF THE LEADERSHIP CODE

I refer to and acknowledge your letter to me dated 8 June 1994.

You will appreciate that the allegations are extensive and cover many diverse and desperate areas. Accordingly I ask that I be allowed one month to respond in writing to the allegations and thereafter be allowed to be heard by your investigators.

Yours faithfully

JOHN M NILKARE CMG MP”

And wrote again on the 28 June 1994 requesting a reply:

“Mr John Nilkare

PO Box 1

WAIGANI NCD

Phone: 201009

Fax: 200993

28 June 1994

Sir Charles Maino

Chief Ombudsman

Ombudsman Commission of Papua New Guinea

PO Box 852

BOROKO

National Capital District

Dear Charles,

ALLEGATIONS RE: LEADERSHIP CODE

I refer to my letter to you dated 21 June, 1994. I have had no response from your office to this letter.

For the sake of certainty and the avoidance of doubt please note that pursuant to my rights under, inter alia, section 0(3) of the Organic Law on the Duties and Responsibilities of Leadership I confirm I wish to be heard in respect to the matters contained in your letter of 8 June, 1994 (the “letter”). In that regard I shall, on or before 28 July, 1994, answer in writing and in detail all allegations contained in the Letter.

Could you please confirm the above arrangements are in order.

Yours faithfully

JM NILKARE, CMG MP”

The Ombudsman Commission replied with letters of 30 June and on the 1st of July and these are as follows:

“30 June 1994

The Hon J Mua Nilkare CMG MP

Member for Gumine

c/- National Parliament

Parliament House

WAIGANI NCD

Dear Sir

RE: YOUR RIGHT TO BE HEARD UNDER THE LEADERSHIP CODE

I refer to your fax of 21 June 1994 requesting to allow you for a month to consider the allegations contained in our Section 20 (3) letter to you dated 8 June 1994.

Be advised that we agreed to your request for a month and thereby look forward to your written explanation of the allegations and trust that you will arrange with the Director of the Leadership Division during the week commencing Monday, 11 Junly 1994 to bring your written explanation and at the same time be heard verbally per your request.

This extension of time will now make it one month one week from 8 June 1994, and it is in our view more than sufficient to allow you to exercise your right to be heard.

Yours sincerely

CHARLES MAINO

Chief Ombudsman

1 July 1994

The Hon J Mua Nilkare CMG MP

Member for Gumine

c/- National Parliament

Parliament House

WAIGANI NCD

Dear Sir

RE: YOUR RIGHT TO BE HEARD UNDER THE LEADERSHIP CODE

I refer to your fax of 28 June 1994 regarding the above matter.

As advised in our fax of 30 June 1994, by extending your Right to be Heard within twenty one (21) days as contained in our letter of 8 June 1994, we maintain that by extending that period to 15 July 1994 is sufficient and accordingly trust that your written explanation will be submitted to the Commission by c.o.b. Friday, 15 July 1994 without any further delay.

With due respect, you had since 8 June 1994 (the day you were handed our Section 20 (3) letter to consider all the allegations in order to exercise your Right to be Heard.

We thank you for your fax and look forward to receiving your written explanation.

Yours sincerely

CHARLES MAINO

Chief Ombudsman”

That explanation was made by the Plaintiff in a letter of dated 13 July 1994:

“13 July 1994

Sir Charles Maino KBE

Chief Ombudsman

Ombudsman Commission of PNG

PO Box 852

BOROKO NCD

Dear Sir

ALLEGED BREACHES OF THE LEADERSHIP CODE

I refer to your letter to me dated 8 June 1994, I confirm that you have allowed me until 15 July next to respond to the allegations in the Letter.

I respond, in seriatim, to the allegations in the Letter as follows:

A. Administration of the Minor Transport Programme Funds

1. Special Minor Transport Programme - 1992.

(a) I deny any allegations of wrongdoing in respect of this matter. I directed no one in relation to these funds. Any tendering procedures were a matter for the Department of Transport and the Department of Simbu.

(b) I understand that these funds were used to construct the Kuale footbridge. There is no Omkolai footbridge. I understand that all procedures were followed by the Department of Simbu and all monies have been acquitted.

2. I deny the allegations of wrongdoing or misconduct in respect of these matter.

B. Administration of Local Government Council Grants

1. Local Government Council Grants - 1992.

The allegations are such that I am not in a position to reply as the particulars supplied are not sufficient for my response. Is the allegation that I directed the funds to my own electorate or to projects outside my electorate?

2. Local Level Governments Conditional Grants - 1994.

The allocation of local government grants was approximately K32 million for 1994. The allocation were made on a per capita basis and the K3.66 million has been calculated in this matter. Other than this, I cannot understand your question. Is the complaint about the efficiency of my Department(?). I deny any allegations of wrongdoing or misconduct in office in respect of this matter.

C. Administration of Law and Order Fund

I deny the allegations of wrongdoing or misconduct in office in respect of this matter.

D. Administration of Rural Agricultural Programme Funds

A proper acquittal of these funds will be delivered to the Department of Agriculture after same have been fully expended.

E. Loans, Gifts, Benefits and Advantages Accepted without Exemption by the Ombudsman Commission

I deny any wrongdoing or misconduct in office in respect of this allegation.

F. Failure to Disclose Outstanding Loans and Guartees to the Ombudsman Commission

I deny the allegation of wrongdoing or misconduct in office in respect of this matter.

G. Details of Bank Loan and Guarantees

I deny any wrongdoing or misconduct in office in respect of these matters. The only comment I wish to make in relation to these allegations is that same appear to be commercially naive and lack any commercial understanding of the operation of these companies.

H. Personal Interest

I deny this allegation. It is not correct. No inducement was offered or given.

I. Annual Statement - 1991-92

I admit the return may have been lodged with your office after the due date. I deny that it was not completed in the required manner. What is the “required manner”?

J. Directorships and Shareholdings

I was not aware that a person to whom the Leadership Code applies was required to obtain prior approval for taking shareholdings and directorships in indigenous companies. How do you obtain prior approval when the shareholding/directorship was in existence prior to becoming a person to whom the leadership code applied. I deny each and every allegations of wrongdoing or misconduct in respect of these matters.

K. Undue Influence

I deny such and all of the allegations in respect of this heading.

For the sake of certainty and the avoidance of doubt please note that I deny each and every allegation in the Letter whether expressed or implied.

Yours faithfully

JOHN M NILKARE CMG MP”

The Commission acknowledged receipt of letter dated 15 July 1994.

“15 July 1994

The Hon J Mua Nilkare CMG MP

Member for Gumine

c/- National Parliament

Parliament House

WAIGANI NCD

Dear Sir

YOUR RIGHT TO BE HEARD

The Commission acknowledges receipt of your response dated 13 July 1994.

We thank you for so doing within the time allowed.

The response to each item will be considered and deliberated upon in due course.

Thank you again for your assistance.

Your co-operation is appreciated.

Yours sincerely

CHARLES MAINO

Chief Ombudsman”

Its next action was to inform the Plaintiff by letter of 29 December 1994 that it had determined to refer charges of misconduct to the Public Prosecutor. That letter states that:

“29 December 1994

Hon John M Nilkare CMG MP

Member for Gumine Open

c/- National Parliament

WAIGANI

HAND DELIVERED

Dear Mr Nilkare,

NOTICE UNDER SECTION 20 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

You are hereby notified, pursuant to Section 20 (2) of the Organic Law on the Duties and Responsibilities of Leadership, that the Ombudsman intends to refer certain allegations of misconduct in office against you to the Public Prosecutor for prosecution before a Leadership Tribunal.

The allegations are as follows:

A. MISUSE OF MINOR TRANSPORT FUNDS DURING 1992

Between July 1992 and September 1992 you breached Section 27 of the Constitution, in that you directed, without lawful authority, the then Secretary of the Department of Transport, Mr B.K. Amini, to make arrangements to immediately release K20,000.00 for “Gumine Roads”, even though those funds had already been committed to fund other members’ projects under the 1992 Minor Transport Program.

Furthermore, you unlawfully instructed the Secretary of the Department of Simbu to apply the money which had been re-directed to the Gumine Roads to unauthorised purposes, including payments for repair of a motor vehicle and payments for various Independence celebrations.

B. MISUSE OF RURAL DEVELOPMENT PROGRAM AND LESS DEVELOPED AREAS PROGRAM FUNDS DURING 1993/1994

Between June 1993 and July 1994 you breached Section 27 of the Constitution and Section 13 of the Organic Law on the Duties and Responsibilities of Leadership, in that you made an improper request to the t hen Under-Secretary for Finance and Planning, Hon. Titus Philemon MP, for the waiver of tender procedures in relation to the proposed purchase of road-making plant and equipment to the value of K200,000.00. Furthermore, you failed to ensure, as far as was within your lawful power, that Mr Henry Mokomo, he being a person for whom you were morally, legally and by usage responsible, did not conduct himself in such a way that might be expected to give rise to doubt in the public mind as to your compliance with your duties as a leader under Section 27 of the Constitution, in relation to the waiver of tender procedures.

In this period you also made an improper and misleading request to the then Minister for Transport, Hon. Roy Yaki MP, regarding the release of an additional K100,000.00 of transport sectoral funds to purchase bulldozers and other equipment outside official guidelines. You also failed to ensure that Mr Henry Mokomo did not conduct himself in relation to this matter in such a way that might be expected to give rise to doubt in the public mind as to your compliance with your duties as a leader under Section 27 of the Constitution.

Furthermore, you applied considerable amounts of public money from the Rural Transport Development Program Fund to purposes to which that money could not lawfully be applied, including a cash advance to Mr Terry Takadol for the Gumine District Office opening ceremony and a number of other non-transport related projects.

C. IMPROPER DISTRIBUTION OF LOCAL GOVERNMENT FUNDS DURING 1992

In August 1992 you breached Section 27 of the Constitution and Section 13 of the Organic Law on the Duties and Responsibilities of Leadership, in that you gave an unconstitutional direction to the then Secretary of the Department of Village Services and Provincial affairs, Mr Kepas Watangia, requiring him to distribute funds under the Local Government Tied Grants Program in accordance with your discretion, thereby improperly interfering in the administration of the Department of Village Services and Provincial Affairs.

Furthermore, during the same period, you improperly approved various projects for funding under the Local Government Tied Grants Program, totalling K250,000.00 in favour of your political associates, namely Hon. Yauwe Riong MP, Hon. Ben Okorro MP and Hon. Mathias Karani MP.

You also improperly approved a project application submitted by yourself, totalling K100,000.00, for the construction of a council chamber in the electorate of Gumine, thereby diverting public funds which had been previously committed to fund projects on behalf of 26 other Open electorates throughout Papua New Guinea.

By approving the projects sponsored by yourself and your political associates, you acted contrary to law and the express wishes and advice of the then Secretary Watangia.

D. IMPROPER USE OF LAW AND ORDER FUNDS DURING 1993

Between May 1993 and August 1993 you breached Section 27 of the Constitution and Section 13 of the Organic Law on the Duties and Responsibilities of Leadership, in that you failed to comply with the official guidelines regulating the application for public funds under the 1993 Law and Order Program. Furthermore, you failed to acquit K20,000.00 of public funds which were allocated to you for the purposes of maintaining and operating the village court system in the Gumine Open electorate.

You also applied that K20,000.00 to a purpose to which it could not lawfully be applied, namely the purchase of a Toyota 4 x 4 Landcruiser from Ela Motors.

E. IMPROPER ACQUISITION OF RURAL AGRICULTURE DEVELOPMENT PROGRAM FUNDS DURING 1993

In December 1993 you breached Section 27 of the Constitution, in that you improperly acquired funds under the Rural Agriculture Development Program in your personal capacity, without first having submitted a formal application for the funds, and in total contravention of the official guidelines governing the allocation of those funds.

Furthermore, you failed to acquit an advance of K20,000.00 in public funds allocated to you under the Rural Agriculture Development Program for the purpose of funding small-holder agriculture projects in the Gumine Open electorate.

You also applied K19,860.66 of Rural Agriculture Development Program funds to a number of unlawful and improper purposes, including a payment of K5,990.39 to the Post and Telecommunication Corporation and K8,000.00 to the “K Community Group”.

F. ACCEPTANCE OF BENEFITS FROM A FOREIGN COMPANY

In February 1994 you breached Section 12 of the Organic Law on the Duties and Responsibilities of Leadership, in that you accepted benefits from a foreign company, known as Pangia Construction Pty Ltd, without first being exempted by the Ombudsman Commission from liability.

G. UNACCEPTABLE LEVELS OF INDEBTEDNESS

Since becoming a leader in July 1992 you have breached Section 27 of the Constitution, in that you have been indebted to the Papua New Guinea Banking Corporation and the Rural Agriculture Bank in the approximate sum of K2,002,539.35. You have consistently failed to make any attempt to reduce the level of your indebtedness, which has resulted in the institution of legal proceedings against you by the said banks.

H. FAILURE TO COMPLY WITH OBLIGATION TO FURNISH FULL AND COMPLETE ANNUAL STATEMENTS TO THE OMBUDSMAN COMMISSION

In 1992 you breached Section 4 of the Organic Law on the Duties and Responsibilities of Leadership, in that you knowingly, recklessly or negligently furnished to the Ombudsman Commission an annual statement that was false, misleading or incomplete in a number of material particulars.

In particular, you failed to declare the shareholdings of yourself and your wife in a number of companies; you failed to declare the extent of the indebtedness of yourself and your wife to the Papua New Guinea Banking Corporation and the Rural Agriculture Bank; and you failed to declare the directorships held by yourself or your wife in a number of companies. These companies included: Dorset Investment Pty Ltd; Archies Investment Pty Ltd; Kilda Investments Pty Ltd; Kenta Pty Ltd (through Pagal Pty Ltd); and Boral Acrow (PNG) Pty Ltd.

I. IMPROPER CONDUCT IN RELATION TO THE DISMISSAL OF DAMIEN ARABAGALI

In October 1992 you breached Section 27 of the Constitution, in that you improperly requested the then Minister for State for Bougainville Affairs, Hon. Michael Ogio MP, to sack Mr Damien Tibawi Arabagali, a member of Hon. Ogio’s staff, on the ground that Mr Arabagali had filed an election petition against a member of the League for National Advancement, namely Hon. Herewa Agiwa MP.

YOU WILL BE ADVISED in due course what action the Public Prosecutor proposes to take in relation to the above matters.

Yours faithfully

Counsel for the Plaintiff responded a month later in a letter dated 28 January. It pointed out that 5 allegations were new.

“25 January 1995

BY HAND

The Chief Ombudsman

Ombudsman Commission of Papua New Guinea

PO Box 852

BOROKO NCD

Dear Sir

HON JOHN M NILKARE CMG MP

1. We act for Mr Nilkare.

2. We refer to your letter to Mr Nilkare of 29 December 1994 and recent media reports in relation to this matter, particularly those by Mr Neville Togarewa in the Post Courier of 23 and 24 January 1995.

3. We make the following comments and requests in relation to each of the allegations purportedly set out in your letter. Our client has never before received notice of....

4. We note that the Commission has formed the intention to refer these various allegations to the Public Prosecutor “for prosecution before a Leadership Tribunal [sic].

(a) Please explain why our client was not given the opportunity to respond and be heard in relation to each of the allegations contained in your letter. We are instructed to reserve our client’s position in relation to these matters.

(b) We also note, with respect, that it is a matter for the Public Prosecutor as to whether or not he proceeds with a prosecution before a Leadership Tribunal.

Yours faithfully”

The Commission replied:

“3 February 1995

Allens Arthur Robinson Lawyers

Cnr Musgrave Street & Champion Parade

PO Box 1178

PORT MORESBY NCD

Dear Sirs

HON JOHN M NILKARE CMG MP

I refer to your letter of 25 January 1995.

It would be inappropriate for the Ombudsman Commission to respond to your requests for further details of the allegations, at this stage, as this matter has already been referred to the Public Prosecutor.

No doubt, your client will be advised, in due course, if the Public Prosecutor decides to request the Chief Justice to appoint a leadership tribunal. If the Public Prosecutor makes that decision, your client will then be given further details of the allegations, together with a copy of the statement of reasons by the Ombudsman commission for its opinion that there is a prima facie case that your client has been guilty of misconduct in office.

Unless and until the Public Prosecutor requests the appointment of a tribunal, or the Ombudsman Commission itself exercises its power to do so, your request for further particulars is premature.

As to your suggestion that your client has not been given an opportunity to be heard on the allegations, your attention is drawn to the Commission’s letter to your client of 8 June 1994 and his reply of 13 July 1994. The Commission’s view is that your client has already exercised his right to be heard in relation to the allegations.

Your comment that it is a matter for the Public Prosecutor as to whether or not he proceeds with the prosecution before a leadership tribunal, is self-evident. However, you should be aware that the notice to your client under Section 20 (2) or the Organic Law on the Duties and Responsibilities of Leadership was deliberately worded so as to comply with Section 29 (1) of the Constitution and Sections 17 (d) and 20 (4) of the Organic Law on the Duties and Responsibilities of Leadership. All of these provisions oblige the Ombudsman Commission to refer matters to the Public Prosecutor “for prosecution” before a tribunal. Therefore, your inference that somehow the Commission has acted unfairly by pre-empting such a course of action, has no foundation whatsoever.

I suggest that any further queries you have should be forwarded, in the first instance, to the Public Prosecutor, in whose hands the matter now rests.

Yours faithfully

SIMON G PENTANU

Chief Ombudsman”

Other than these letter (and further correspondence the Public Prosecutor) remaining the evidence put before the Court was largely affidavit and documentary, supplemented by cross examination of deponents and the examination of the Commissions officer serving the allegations of misconduct on the Plaintiff in June 1994. It suffices to say that this evidence did not materially alter the essential facts and events disclosed by the correspondence set out above.

There was some challenge as to whether the Plaintiff did receive the 15 July Commission acknowledgement of his letter of explanation, but I am satisfied, on balance that he did. The letter was posted to the Plaintiff at Parliament and the most that the Plaintiff could say was that he could not recall if he had received it or not.

Of greater significance was his acknowledgement that his reply to the allegations made on 13 July was in fact drafted by his lawyer Mr Lowing. Thus it can be said that from the Plaintiff’s earliest apprehension of the investigation into allegations about him, he was acting with legal advice. The Public Prosecutor, cross examined on his affidavit acknowledged that he had examined the allegations referred to him by the Commission and that he made such detail available to the Plaintiff. He accepted the Plaintiff would need to have such excess to be fully able to formulate his defence. Asked whether he has been shocked by the language of the Commissions referral Public Prosecutor said that he had been - a bit. Though he might not have used such language himself, he considered it no more than strongly worded.

Finally there was formal acknowledgement by the Commission that there had been no advice to the Plaintiff under s. 17 of the OLOC that a decision had been taken to investigate allegations against him.

THE PLAINTIFF SUBMISSIONS

The Court has been aided considerably by able and extensive submissions of Counsel though it possible only to outline these in this decision. For the Plaintiff, Counsel contended that the Commission’s investigation into allegations of the Plaintiff’s misconduct were ultra vires and void from the outset.

“Before investigation any matter within its jurisdiction the Commission shall inform the responsible person of intention to make an investigation.” [Section 17 1OLLC]

Failure to follow that statutory direction (ruled mandatory in Karo v Ombudsman Commission of PNG SCA 8/95) meant that the Commission had exceeded its jurisdiction and thus rendered itself open to review (s. 24 OLOC). In fact it was submitted, this initial ultra vires act disqualified all that followed.

But that aside, following the investigation that was carried out, it was submitted that the notice to the Plaintiff under s. 20 (3) given 8 June 1994 was itself insufficient compliance with statutory requirement of that section of the OLDRL or the rules of the natural justice. Despite the Plaintiff’s request for particulars and queries in regard to certain of the allegations, in this letter, the Commission failed to reply. Thus he was not accorded his rights to be heard under the Constitution and the Organic Law. This breach too, nullified the Commission’s decision to refer. Such a deliberate decision could only be validly made, it was said, if the Plaintiff was given full opportunity to be heard on all matters, including the additional allegations notified for the first time in the notice of intention to refer of the 29 December 1994.

A further statutory breach occurred, it was submitted, when the Commission failed to set out the Plaintiff’s defence in its report to the Public Prosecutor.

Finally the Plaintiff asserts that the Commission made the decision to refer in bad faith. It was a decision affected by bias or apparent bias against the Plaintiff. This it was said was evidenced by the inappropriate conduct of the Commissions officers - “knocks on the door in the middle of the night” “KGB tactics” the ultra vires procedures adopted, and the unrestrained intemperate judgmental language of the referral itself.

Such want of jurisdiction it was submitted, cannot be overcome. Actions without jurisdiction can only be declared null and void from the beginning. The Plaintiff was entitled therefore to the relief sought. But further than that; having exhibited such gross bias and breach of jurisdiction it was the Plaintiff’s contention that relief must be supplemented by the direction that the Commission take no further proceedings in relations to these allegations.

DEFENCE SUBMISSIONS

In reply Counsel for the Commission submitted that no notice of intention to investigate was given to the Plaintiff pursuant to s. 17 (1) of OLOC because there was no requirement to do so under the OLDRL which alone governs Leadership Code investigations.

Notwithstanding s. 17 (1) of OLOC which refers to “any matter” within the jurisdiction of the Commission, it was submitted that investigations under Leadership Code are not matters included, because of the distinct difference in the purposes of each Law and more particulary because s. 3 of OLOC specifically excludes them.

He submitted that Karo’s case insofar as it provides that the provisions of s. 17 are mandatory in Leadership Code investigations must be seen as per incuriam,-having been made without reference to the relevant statutory provisions. In addition he says such issues as, notice of investigation and reporting a leaders defence, were in any case not argued and not necessary for that Supreme Court decision. Accordingly such provisions must be held, at the very least to be obiter dictum only. He further submitted that whether this Court was to accept those submissions or not, Karo’s case is authority for the contention that a breach of statutory or natural justice provision is not fatal to an investigation because in that case despite of findings of error, the Court declined relief.

As regards the Plaintiff’s claim of failure to be accorded a right to be heard, it was asserted for the Commission, that that right was given by its letter of 8 June 1994. The Commission certainly did not furnish all “necessary documents” chapter and verse because these were never asked for. The Plaintiff’s reply of 13 July 1994 the Counsel submitted, indicated that the nature of allegations were well understood. Indeed in most cases the Plaintiff offered no more then a mere denial by way of reply. As for a full hearing, although the Plaintiff made an initial statement of intent to appear before the Commission (letter 21 June 1994) he never followed through on this or requested such a hearing.

Given the requirement of s. 23 of the OLDRL for leaders to corperate with the Commission in its enquiries, Counsel said the Plaintiff could not now be heard to complain. He quoted from the Diro v Ombudsman [unreported OS 122-91 National Court 16 July 1991].

“It certainly not open to a leader to say nothing and afterwards claim he had insufficient detail to know what he faced...it is reasonable to assume under such circumstances that the allegations were understood.”

Counsel said the Commission had in fact carried out its duty to accord the Plaintiff an opportunity to be heard. It had it given him the substance of the allegations and the Plaintiff had replied accordingly. In regard to some allegations referred to the Public Prosecutor differing from the initial allegations put to the Plaintiff under s. 20 (3) OLDRL, Counsel said that justice will be satisfied if in fact the real nature of additional allegations referred to the Public Prosecutor arise out of and may be said to be enlargement of particular aspects of the initial allegations. It was submitted that there was no principle in law that the Ombudsman Commission must give a leader a right to be heard in relation to each and every allegations that it referred to the Public Prosecutor.

On the charge of bias, Counsel for the Commission argued that there no was evidence of this. There had been no breach of statutory or natural justice procedures and whether there was criticism of the wording of the referral for the use of strong language, it was certainly not evidence of bias or the malice that Counsel, then appearing for the Plaintiff in the interlocutory proceedings, claimed was a “corner stone” of the Plaintiff’s application. Faced with that allegation the Commission had opened the whole of its file to the Plaintiff, yet no evidence was offered by him to substantiate that the Commission had been motivated in its investigation by some cause which it knew was wrong or unauthorised or that it had exhibited any personal animosity or bias towards the Plaintiff.

In view of that failure which, itself indicated bad faith on the part of the Plaintiff in bringing this review, and because of the delay in doing so it was submitted that no cause had been shown why this Court should intervene in the proceedings under the Leadership Code.

DECISION

The Ombudsman Commission is the People’s administrative watchman established under the Constitution. It’s purposes are set out in Section 218. These include duties to ensure Public Bodies and Agencies are effective and responsive to the needs of the People; to help eliminate unfair or defective legislation and practices, and to supervise the enforcement of the Leadership Code. Its jurisdiction is that of a body with wide ranging investigative functions and powers. (Section 219 Constitution)

This jurisdiction is enlarged by the specific Organic Laws regarding relating to the Ombudsman Commission and to the Duties and Responsibilities of Leadership. Again, it can be said that although the Commission has specific functions in respect of Public Bodies on the one hand and National Leaders on the other, the basis of its jurisdiction in each is essentially the same. It must act fairly and within the jurisdiction given it. While it may determine its own proceedings, and decide on just what enquiries it will, or it will not undertake, it is itself governed by the Constitution and the specific statutory requirements of each Organic Law. As well there is an overriding duty to act fairly.

Just as the Commission is required to ensure impartiality and fairness in public administration, it must itself conduct its proceedings in the same manner. These requirements for fairness and natural justice are both injunctions of the Constitution (s. 59) and each Organic Law as well.

NOTICE OF INVESTIGATION

The Commission relying on s. 3 of the OLOC denies any obligation in law to comply with s. 17 (1) of that act in Leadership Code investigations. It asserts that only the OLDRL is applicable and specifically the procedures of s. 20 which require no notice of investigation (ss. 17 (1) OLOC). This argument is compelling. Section 3 of the OLOC states:

“3. Application of this law.

Except as provided by any other law, this law does not apply to the powers functions and duties of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.”

That clearly excludes leadership code enquiries from OLOC and s. 3 of the OLDRL confirms this:

“3. Non derogation, etc of Organic Law on the Ombudsman Commission.

(1) This law is in addition to, and does not derogate, the provisions of the Organic Law on the Ombudsman Commission.”

That is clearly the reciprocal of s. 3 of OLOC. Subsections (2) goes on to confirm this:

“(2) The powers functions duties responsibilities conferred or imposed by this law are in addition to and do not derogate any other powers functions duties or responsibilities conferred or imposed on the Commission by any other law.”

Both statutes came into operation on Independence day after adoption of the Constitution. They were thus intended to stand side by side. Clearly the OLDRL is not “any other law” intended to alter the provisions of the OLOC. Likewise as twin, standalone laws, s. 3 (2) of OLDRL cannot be claimed to alter the procedures of its own s. 20, or s. 17 of OLOC. It states that the OLDRL does not derogate OLOC. That is it accepts its provisions in full, including s. 3 of that law.

Karo’s case relied on by the Plaintiff is clearly in conflict with those sections. Equally clear, the decision in Karo’s can be distinguished on these issues since they were not drawn to Supreme Court’s attention let alone argued before it.

As it set out at page 4 of that decision, the appeal before the Supreme Court:

“was based...on the following propositions:

(a) That the Ombudsman was required as a matter of law to offer the Appellant a right to be heard before issuing a direction, the nature of which was to remove him and his family from his house.

(b) The admitted failure to provide the Appellant with an opportunity to be heard before issuing (such a) direction amounts in law to an action in excess of jurisdiction, rendering the direction susceptible to review by the Courts.”

Having determined those issues the Court moved to consider a model enquiry which included the provision for a notice of intention to investigate. It was certainly without the benefit of argument on both the s 3’s of OLOC and OLDRL. Had it been, then there would have been a proviso in respect of leadership code investigations. I am satisfied therefore there was no obligation under statute nor any under natural justice principles that the Plaintiff be notified of an intended investigation on this complaint therefore, there has been no impropriety. On this complaint therefore there has been no impropriety.

RIGHT TO BE HEARD

There is no dispute that the Plaintiff had a right to be heard. It is a matter of natural justice reinforced by the provisions of s. 20 (3) of OLDRL. Likewise a denial of that right, as submitted by Plaintiffs, is a matter going to jurisdiction.

There can be no doubt to the law on this. In Donohow v Ombudsman Commission of PNG 1985 PNGLR 348 Amet J sets out a clear and exhaustive review of the authorities:

“establishing that where a report arising from proceedings before the Ombudsman Commission may have adverse consequences for a person concerned, the rules of natural justice require that person be provided with a reasonable opportunity of being heard and fairly setting out his defence in any such report. (emphasis added).

This was followed in Karo’s case where it was said the Supreme Court has sufficiently established that review is available to an Appellant pursuant to s. 217 (6) of the Constitution on the basis that the Commission has exceeded its jurisdiction by failing to give a person a hearing.”

There can be no denial of the right to be heard. The essence of that right cannot be diminished. Counsel for the Commission submitted that there is no principle of law that the Commission must give opportunity to be heard in relation to each and every allegations referred to the Public Prosecutor. Once an investigation is under way further allegations may arise and there was no principle in law which required a right to be heard in respect of these. These it was said need not attract a right to be heard. That it not so. There is such a law. It is the audi alteram parte - the right to be heard.

It may well be that from a particular allegation of misconduct a number of discrete charges arise, but for every different, separate charge the provisions of s. 20 (3) apply strictly and as Donohoe’s case declares the defence offered on each must be fairly set out in the report that follows.

On the latter point it being conceded that no report of the Plaintiffs defence or explanation was included in the Commissions referral to the Public Prosecutor it must be seen that such is an error going to jurisdiction, notwithstanding s. 3 of the OLOC.

The Plaintiff complains that he had made queries or sought further particulars in his reply of 13 July 1994. In my judgment all except one of those are not true queries, rather rhetorical comments or queries not requiring an answer. That one where request for particular was sought (ie at B1 of the Plaintiffs letter of 13 July) nonetheless remains an allegation on which the opportunity to reply was not given. The Plaintiff said:

“The allegations are such that I am not in a position to reply as the particulars supplied are not sufficient for my response. Is the allegation that I directed the funds my own electorate or to projects outside my electorate?”

No reply was given to that query.

The Plaintiff further complained that none of “the necessary documents and particulars of the investigation” referred to in Karo’s case were furnished to him, either in June of 94 or in respect of further and additional charges in the referral of January 1995.

There is a misapprehension here. Notice of the right to be heard and that hearing are quite different. The right in the Leader to be heard is a Constitutional statutory and natural justice requirement. The obligation on the Commission in respect of that right, both under s. 20 (3) and in natural justice, is to notify a leader of the fact that allegations have been made against him; setting out the substance of the charges such that he is able to understand their nature and to inform him of his right to be heard in respect of each of them and, to accord him that right if he chooses to exercise it. The right to be heard is not a right to have the whole of an investigation file served on him with a demand for an explanation. As stated in Karo, that right to be heard:

“can be facilitated quite satisfactorily in writing as long as the as the person whose conduct is being investigated in furnished all the necessary documents and particulars of the investigation and any evidence complaints and allegations that have been gathered in relation to his conduct that he needs to be informed of in order that his response or explanations is to considered adequate.”

That statement I believe sets out a proper basis for a leader to be heard so as to enable him to formulate a defence or explanation. I would only add that in hindsight the obligation of the Commission to supply detail must be always subject to its privileges in respect of information gathered and its obligations to protect the identity of its sources.

Looking at the circumstance of this case. The correspondence evidences a straight forward situation. Notice is given to the Plaintiff of allegations against him and their substance. “You are hereby advised that in accordance with s. 20 (3) of the OLDRL you have a right to be heard in relation to certain allegation against you. The allegations are...”

Notice is also given as to how that right may be exercised:

“Required Action.

You are required to contact the Ombudsman Commission, either personally or in writing within 21 days after receiving this letter so that a suitable time can be arranged for you to respond to all of t he above allegations and exercise your right to be heard under s 20(3) of OLDRL...”

It goes on to point out that:

“If you do not contact the Ombudsman Commission within 21 days...the Commission will proceed with its investigation in your absence and take whatever action is necessary under the Constitution on OLDRC.”

The Plaintiff of course had a right to remain silent but in fact he responded.

“You will appreciate that the allegations are extensive and cover many diverse and desperate areas. Accordingly I ask that I be allowed one month to respond in writing and thereafter be allowed to be heard by your investigator.”

That month was granted and in his letter of 13 July 1994 in a reply drafted by his Lawyer the Plaintiff said:

“I refer to your letter to me dated 8 June 1994. I confirm you have allowed me till 15 July to respond to the allegations in the letter.

I respond, in seriatum to the allegations in the letter as follows.”

That reply as can be seen from this letter was largely a denial of misconduct. Apart from the queries referred to above the Plaintiff made no further request for further opportunity to be heard.

There remains that query not answered. It is no answer to plead s. 23 and assert that the Plaintiff should have followed this up. It is true he should have if he wished to make an issue of it, but his obligation is not a reason or excuse for the Commissions failure to answer him.

It may be argued the error is a small one, given the nature of the Plaintiffs response to the other allegations, but the Court is looking to the duty of the Commission only, which must at all times be deligent in pursuit of its task of elimination of unfairness and discrimination.

Accordingly I consider the Plaintiffs right to be heard in his respect of that allegation to be incomplete.

On the claim of right to be heard in respect of the ‘new’ charges set out in the referral, if there were new and separate and not simply charges arising out of the same basic allegations, then there would be a right to be heard on them as well.

But I am unable to say that any of the charges are new and unrelated to prior allegations. There was no evidence on this. Evidence that it was the obligation of the Plaintiff to provide. Despite the submission that these differences are self evident, I find no basis to determine whether the additional charges arose from the initial allegations or not. There can therefore be no finding of impropriety on the part of the Commission in this regard.

BIAS, MALICE

I find no evidence to support this claim. As regards malice, this was simply not pursued though it was a major and persistent allegation at the application seeking leave for this review and the basis of a sustained demand for full discovery. The Plaintiff in infact has demonstrated he had no basis at all for charges of deliberate had faith or deliberate wrongdoing on the part of the Commission.

The claims of procedural impropriety are insufficient to support the claim of bias. The evidence shows the Commission was intent on strictly following the OLDRL. As has been determined there was nothing improper in not giving notice of intention to investigate under s. 17 (1) of OLOC and the need to set out the defence in the referral is likewise not a statutory obligation. The failure to answer one request for particulars and the omission of the defence in the referral therefore indicate errors in procedure rather then any sinister or systematic ignoring of the Plaintiffs rights.

There remains the fact of a request for particulars ignored the actions of the staff, and emotive judgemental out of control language.

These do not advance the claim of bias either. Serving a Leader at 10 20 pm after a 3 day search for him is not evidence of KGB tactics. The language of referral has been said to indicate an “out of control” Commission. While the language may be emotive or sensationalist even, it may also be described as indicating - indignation. If bias or bad faith are evidenced by such wording, the equally intemperate and unfounded allegations of malice and KGB tactics demonstrate the like or the part of the Plaintiff. I find no impropriety here.

RELIEF

In the result this review discloses that although giving formal notice of opportunity to be heard on a number of allegations the Commission failed to respond to a request for particulars in respect of one of those to enable a response. It also failed to set out the Plaintiffs response in its referral to the Public Prosecutor.

Counsel for the Plaintiff has submitted that these errors, any errors - going to jurisdiction, are fundamental and are incurable rendering the Commission’s referral a nullity. It was submitted that the Court had no course open to it but to so declare.

In fact that is not so.

While jurisdictional error under a determination may indeed cause invalidity and thereafter susceptible to review, the disclosure of jurisdictional error or ultra vires action does not render the Courts powerless to do other than pronounce to that effect. Though always diligent in its supervisory role of judical review the weight of authority confirms that Courts retain a discretion not to intervene even where determinations may be ultra vires. The fact of error does not of itself determine invalidity. Invalidity is not a stand alone concept. Only a Court can declare invalidity or nullity and such matters as estoppal, waiver consent or delay may cause a Court to decline to grant relief in rspect of the error.

In Review of Administration Action (Law Book Co 1987) at p. 212 the learned authors state:

“There is no such thing as an “absolute nullity”, something which everyone in every context can ignore with safety. Context is all important. Even an official act which is null in all sorts of contexts needs to be stopped by a judicial order if the bureaucracy is not to treat it as valid and effective. In order to obtain an appropriate remedy the right person must apply for a appropriate remedy against the right person at the right time, and the Court must be persuaded to grant the remedy not withstanding is descretionary power to refuse appropriate relief on grounds personal to the applicant or on broader considerations.”

That is an succinct and accurate statement of the law.

It may indeed be a large task to persuade a Court not to grant relief in the face of proven jurisdictional error. But if the Court can be shown there has been undue delay on the part of an applicant, if he has shown bad faith, or a genuine waiver of a procedural error or if alternative remedies exist, relief may be declined.

Order 16 rule 4 of the National Court Rules specifically provides that relief may be declined for undue delay and I am satisfied there has been unwarranted delay in this matter.

The Plaintiffs right to challenge the referral for want of opportunity to be heard coallesced upon the referral to the Public Prosecutor and the refusal of the Commission on 3 Febrary 1995 to deal with him any further. That was the final notice that its decision to refer would stand.

It was submitted that the Plaintiff was under no obligation to take court action; that he was entitled to look for a consensual resolution of his concerns. He was entitled to stand on his rights.

That submission is valid only insofar as there is no delay. One cannot sit on one’s rights forever. Particularly if in doing so the scope of relief open to him is compromised or lost. Faced the with the refusal of Commission and the Public Prosecutor to remedy his complaints and with the full knowledge that matters were proceeding from Commission investigation to Leadership Tribunal hearing, failure to assert a claim had to be seen as prejudicial to any right to relief.

If serious jurisdictional errors required redress it was incumbert on the Plaintiff to seek redress within reasonable time.

The determination of a reasonable time largely depends on the circumstances of the case but certainly if a Plaintiff allows the process of enquiry to continue such that the appropriate remedies available to a Court on a proven breach are lost or restricted them that will obviously be undue delay.

That is what occurred here. The Plaintiff told the Court (para 15 affidavit 28 May 1994 that despite the refusal of the Commission to further negotiate, he was “hopeful the Public Prosecutor would refuse to refer the matter to Tribunal”. Had he come to Court then, it was possible for the Court to make orders granting specific remedies of his need of further particulars or that a referral incorporate his defence.

But in fact even when his hopes in the Public Prosecutor were dashed he took no action until literally days before the Leadership Tribunal was to commence hearing. Plainly there has been undue delay. Such delay may be also said to amount to a waiver of procedural errors.

The Court is not only restricted in the relief it may have afforded the Plaintiff’s. The delay has also rendered the appropriate relief of ensuring a hearing nugatory. The claim of malice and bias, spurious though that was, precluded referral back to the Commission for ‘rehearing’ but that would not preclude a referral to an alternative authority appointed under s. 28 of the Constitution or s 19 of the OLDRL. But because of delay even that course would be an exercise in futility.

Time has marched. Given that the Public Prosecutor has made his own assessment and proceeded to lay charges at least on such of these that have been replied to by the Plaintiff amounting to mere denials, it is unlikely that such an authority would fail now also to refer.

There is a further significant reason why the Court may refuse relief. The Plaintiff claims that the fundamental encroachment on his Constitutional rights ‘were incurable, that the Court should direct the Commission to take no further steps in regard to the allegations referred. Effectively that they should be set aside and forgotten. That is not appropriate.

All leaders have the rights bestowed on them by the Constitution. But the People, the bestower of those rights have a greater right. In SC Ref 2 of 1992 by Public Prosecutor 1992 PNGLR 336 the Supreme Court said:

“In the light of the circumstances of recent years involving in particular members of Parliament, supported by the specific provisions of Constitution s. 27, we accept the referrer’s submission that the entire thrust and the primary purpose of the Code is “to preserve the people of Papua New Guinea from misconduct by its leaders.

“We accept also that, more specifically, the purpose of the Code is to ensure as far as possible that the leaders specificed in Constitution s. 26 do not offend in the various ways prescribed by the provisions of Constitution s. 27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.”

Bearing this in mind the Courts will not readily order that allegations of misconduct against a leader be set aside unheard because of procedural error in the investigation process particularly where the normal and appropriate remedies for such errors have been prejudiced by the leaders own conduct.

What then is the Plaintiff position. Even without the remedies sought in this review, the Plaintiff has all the detail necessary for him to formulate a defence. He has not only the allegations of the Commission he has also the Statements of Reasons and full disclosure of the Commission’s file as a result of these proceedings.

I see no reason therefore why the process should not now continue and the matters referred should not now go on to the Leadership Tribunal.

This is not to be taken in anyway as some form of condonation of procedural error as if a denial of a Plaintiff’s rights do not matter because they can all be finally addressed before the Tribunal. Nor is it a conclusion that though relief has been declined, the Plaintiff has somehow benefited by discovery in an action he need not have taken. It is simply a statement, that the present position of the Plaintiff at this late stage, brought about by his own inaction, is not so prejudiced as to warrant any intervention of this Court.

I decline to rule the Ombudsman Commission referral invalid and see no cause to grant any of the relief sought. The Plaintiff’s application is therefore dismissed.

But I note that the Public Prosecutor has not yet laid the charges before the Leadership Tribunal and has not yet proffered the Commission’s Statement of Reasons either. Therefore as matter of inherent discretion rather than any right or merit in the Plaintiff, to accord the Plaintiff even at this late stage, an opportunity to add such explanation as he may see fit to the Commission’s Statement of Reasons, the Court directs the Public Prosecutor to delay the laying of charges and the Statement of Reasons before the Leadership Tribunal for a period of seven (7) days from today.