National Court of Papua New Guinea

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. &##160;; I60; IMPROPEPROPER 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 Leadersin that you failed to complcomply with the official guidelines regulating the application for public funds under the 1993 Law and Order Program. Furthermyou f tled to acqu 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. & I60; IMPROPER ACQUISITION OF RURAL AGRICULTURE DEVELOPMENT PROGRAM FUNDS DURING 1993

In December you breached Section 27 of the Constitution, in that you improperly acquired funds under tder the Rural Agriculture Development Program in your personal capacity, without first h submitted a formal appliapplication 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. &##160;; A60EPTACEPTANCE OFCE OF BENEFITS FROM A FOREIGN COMPANY

In February 1994 you breached Section 12 of the Organic Law on the Duties and Responsibilities of Lship, in tha accebenefromefrom a fm a foreigoreign comn company, known as Pangia Construction Pty Ltd, without first being exempted by the Ombudsman Commission liability.

G. ـ҈ U60; UN0; UN0; 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 d toed 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. FAILUREOTO C WPLY WILY OBLH 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 companieluded: DorseDorset 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. ; IEPROPND CO IN T IN RELATIELATION TO THE DISMISSAL OF DAMIEN ARABAGALI

In October 1992 you breached Section 27 of the Constitution, in thatimpro requ the Minisor Stor Bougaiougainvillnville Affe Affairs,airs, Hon. Hon. Mich 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 ed out that 5 allegatiogations were new.

“25 January 1995

BY HAND

The Chief Ombudsman

Ombudsmamission of Papua New Guinea

PO Box 852

BOROKO NCD

Dear Sir

HON >HON JOHN M NILKARE CMG MP

1. We act for Mr Nilkare.

2. & W60;efe rto y ur letter tter 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 ry 19p>

4.&#16. &<  We note thatCommissas form formed the intention to refer these various allegations to the Public Prosecutor “8220;for prosecution before a Leadership Tal [s/p> <ټ&##160; Please explaexplaixplain whyn why our our clienclient was not given the opportunity to respond and be heard in relation th of the allegations contained in your letter. We are instructereserve ouve our clienclient’s position in relation to these matters.

(b) ҈& We also also note,note, with respect, that it is a matter for the Public Prosecutor awhether or not he proceeds eeds 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. he PuProsecutor utor makes akes that decision, your client will then be given further details of the allegations, together with y of tatement of reasons by the Ombudsman commission for its opinion that there is a ps a prima rima 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 Commis#8217;s view is w 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 thlic Prosecutor as to whether or not he proceeds with the prhe prosecution before a leadership tribunal, is self-evident. Howeveu should be aware thre that the notice to your client under Section 20 (2) or the Organic Law on the Duties and Responsibilitieseadership was deliberately worded so as to comply with Section 29 (1) of the Constitution aion 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. Thereforur inference that that somehe Commission has acted unfairly by pre-empting such a cour course of action, has no foundation whatsoever.

I suggest that anyher queries you have should be forwarded, in the first inst 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 sus to say that this evis 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.

Finally there was formal acknowledgement by the Commissiot there had been no advice to the Plaintiff under s. 17 of 7 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,sel cont contended that the Commission’s investigation into allegations of the Plaintiff’s misconduct were ultra vires and void from the outset.

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 Plainti217;s r7;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 accorde riis rights to be heard under the Constitution and the Organic Law. This breach too, nullified the Commission’s decision to refer. Such a deliberate den coul could only be vy made, it was said, if thef the Plaintiff was given full opportunity to be heard on all matters, including the additional allegations not for the first time in the notice of intention to refer of r 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 saidevidenced nced by the inappropriate conduct of the Comons ors - “knocks on the door in the middle of the night” “KGB tactitacticscs” the ultra vires procedures adoptnd the unrestrained intempetemperate judgmental language of the referral itself.

Such want of jurisdiction it was submitted, cannot be overcome. Actionsout jurisdiction caon can only be declared null and void from the beginning. The Plaintiff was led ther therefore to the relief sought. But further than that;ng eing exhibited such gross bias and breach of jurisdictiowas the Plaintiff’s contention that relief must be supplemented by the direction that that the Commission take no further proces in relations to these alle 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 pions muss must be held, at ery least to be obiter dict dictum only. He further submitted that whether this Court was to accept those submissions or Karo&#8217se case is authority for the contention that a br a breach of statutory or natural justice provision is not fatal to an invationuse in that case case despite of findings of error, the Court declined relief.

As reAs 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 cery did noid not furnish all “necessary documents” chapter and verse because these were never asked for. The Plaintif17;s reply of y of 13 July 1994 the Counsel submitted, indicated that the nature of allegations were well understood. Indeed in cases the Plaintlaintiff offered no more then a mere denial by way of reply. As for a full hea althoughhough the Plaintiff made an initial statement of intent to appear before the Commission (letter 21 June 1994) he never wed through on this or requested such a hearing.

Given the requirement of s. 23 of t 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 udOmbudsman [unreported OS 122-91 National Court 16 July 1991].

“It certainly not open to a leader to say nothing aterwards claim he had insufficient detail to know what he faced...it is reasonable to assumassume 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 Plaintider s. 20 (3) OLDRL, Counseounsel 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 wasitted that there wase was no principle in law that the Ombudsman Commission must give a leader a right to be heard in relation th and every allegations that it referred to the Public Prosecutor.

On the charge of e of bias, Counsel for the Commission argued that there no was evidence of this. There had been no b of staf 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 malhat Counsel, then appearingaring 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 wit knew was wrong or unauthnauthorised 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&#8217rposes are set outt out in Section 218. These include duties tore sure Public Bodies and Agencies are effective and responsive to the needs of the People; to help eliminate unfair or defective legislation and practices, andupervise the enforcement of the Leadership Code. Its Its jurison is that ohat of a body with wide ranging investigative functions and powers. (Section 219 Constitution)

This jurisdiction is enlarged by the specific Organic Laws regarding relating e Ombudsman Commission and and to the Duties and Responsibilities of Leadership. Again, it canaid that alth 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 jurtion in each is essentially the same. It must aust act fairly itd within the jurisdiction given it. While it may determine it own proceedings, and decide on just what enquiries it will, or it will not undertake, it is itself governed by the Constin andspecific statutortutory requirements of each Organic Law. As weere is an overriderriderriding duty to act fairly.

Just as the Commission is required to ensure impartiality and fairness in public administration, it must itself conduct its proceedingthe same manner. Thes These reqents for fair 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 asserat only the OLDRL LDRL is applicable and specifically the procedures of s. 20 which require no notice of investigation (ss. 17 (1) OLOC). This argument isellin60; S60; Section 3 of the OLOC states:

“3220;3. ҈ Applicaplication of this /aw.

Excepprovided by any other law, this law does not apply to the powers functions and duties of thof the Ombudsman Commission under Division2 (lehip cof the the Constitution.”

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

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

(1) &##160; laisis i is in addi addition to, and does not derogate, the provisions of the Organic Law on the sman ssion21;

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

“(2) The pofunctions duties ress responsibilities conferred or imposed by this law are in addition to and do not derogate any other pofunctdutieresponsibilities conferred or imposed on the Commission by any other law.w.”<221;

Both statutes came into operation on Independence day after adoption of the Constitution. Thee thus intended to stan stand side by side. Clearly the OLDRL i “#8220;any other law” intended to alter the provisions of the OLOC. Likewise as twiandalone lane laws, s.) of cannot be claimelaimed to alter the procedures of its own s. 20, or s. 17 of OLOC. I60; It stthat the OLDRL does noog noogate OLOC. That is it accepts its provisions in full full, including s. 3 of that law.

Karo’s case relied on by tainti clearly in conflict with those sections. E60; Equallqually 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 thatsion, the appeal before thee the Supreme Court:

“was based...on the following propositions:

(a) ;&#16at the Ombu Ombudsman sman was required as a matter of law to offer the Appellant a right to be heard before issuing a dire, there ofh was to remove him and his family from his house.

(b) <&#160 &#160 The admitailure to provideovide the Appellant with an opportunity to be heard before issuing (such a) direction amounts in law to an action in excess of jictionderie direction susceptible to review by the Courts.&rts.”#8221;

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 cely without the behe benefit of argument on both the s 3’s of OLOC and OLDRL. Had it been, there would huld have been a proviso in respect of lship code tigations.&#160 I am satisfied fore thre thre there was no obligation under statute nor any under natural justice pries the Plaintiff be nobe notified of an intended investigation on this complaint therefore, ther there has been no impropriety. On this cint therefore thee there has been no impropriety.

RIGHT TO BE HEARD

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

There can be no doubt to the law on this0; In Donohow v Ombudsman Commission of PNG 1985 PNGLR 348 Amet J sets out a clear and exha 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 ( the Constitution on the basis that the Commission has exce exceeded its jurisdiction by failing to give a person a hearing.”

There can be no denial of the right to be heard. Thence of that right cannocannot be diminished. Counsel for the Coion subm submitted that there is no principle of law that the Commission must give opportunity to be heard in relation to end evllegations referreferred to the Public Prosecutor. Once an invetion is under nder wayr way further allegations may arise and there was no principle in law which required a right to be heard in respect of these. Theseas saed noed not attr attraright to be heard. Th0; That it not so.&#Ther There is such a law. It isaudi alteram parte - te - the right to be heard.

It ell be that from a particular allegation of miscomisconductnduct a number of discrete charges arise, but for every different, separate chahe provisions of s. 20 (3) (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. Inudgment all except one oone of those are not true queries, rather rhetorical comments or queries not requiring an answer. That here request for part 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 sai>

&#82>“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 allen thairected thed the funds my own electorate or to projectojects outside my electorate?”

No reply was given to that quep>

The Plaintiff further complained that none of “the necessary documents and part 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 theardheard and that hearing are quite different. The right in tader to be h be heard is a Constitutional statutory and natural justice requirement. bligation e Commission in n in respect of that right, both both under s. 20 (3) and in natural justice, is to notify a leader of the fact allegations have been made against him; setting out the substance of the charges such that that he is able to understand their e and to inform him of hisf his right to be heard in respect of each of them and, to accord him that right if he chooses to exerit. The right to be heard is not a right to have the whole of an investigation file sile served on him with a demand for an explanation. As stated in Karo, thght tght 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. Id only add that in hindsiindsight the obligation of the Commission to supply detail must be always subject to its privileges in respect of information gathered ts obligations to protect the identity of its sources.

Looking at the circumstance of this case. The correspondenceences a es a straight forward situation. Notice is given to thentifintiff of allegations against him and their substance.& “You are hereby advised that in accordance with s. 20 (3) of the OLDRL you have a ri a right to be heard in relation to certaiegation against you. 160; The ations are...R.”

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 ast I be alle 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 al me t me till 15 July to respond to the allegations in the letter.

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

Thaty as can be seen from this letter was largely a denial of m of misconduct. Apart from the queriferrederred to above the Plaintiff made no further request for further opportunity to be heard.

There remains that query not answered. It is no anso ple 23 and aand assert that the Plaintiff should have fole followed this up. It is true he should if heif he wished to make aue of it, but his obligation is not a reason or excuse for the Commissions failure to answeanswer him.

It may be argued the ers a small one, given the nature of the Plaintiffs response onse 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 svident, I find no basis to determine whether the additional charges arose from the initial tial allegations or not. There can therefe no ng ofng of impropriety on the part of the Commission iion in this regard.

BIAS, MALICE

I find no evidence tport this claim. As regards malthis was sims simply not pursued though it was a majormajor and persistent allegation at the application seeking leave for this review and the basis of a sustained demand for full discovery. laintiff in infact has dems demonstrated he had no basis at all for charges of deliberate had faith or deliberate wrongdoing on the part of the Commission.

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. Serv Leader at 10 20 pm afpm after a 3 day search for him is not evidence of KGB tactics. The languf referral has beas been said to indicate an “out of control” Commission. While theuage may be emotiemotive orationalist even, it may also be described as indicating - indignation. If bias or badr bad faith are evidenced by such wording,equally intemperate and unfounded allegations of malice ande and KGB tactics demonstrate the like or the part of the Plaintiff. nd noopriety here.

<

RELIEF

In the the result this review discloses that although giving formal notice of opnity to be heard on a number of allegations the Commission failed to respond to a request fest 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 incurrendering the Commissionon’s referral a nullity. It wamitted that the CourtCourt 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 thter susceptible to review, iew, 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 diliin its sits 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 ofr doe of itselftself determetermine invalidity. Invalidity is not a alonealone concept. Only a Coun declare invalinvalidr nullity and such matters as estoppal, waiver consent or delay may cause a Court to declinecline to grant relief in rspect of the er/p>

“There is no such thing as an “absolute nullity”, something which everyone in every context can ignore with safety. Context is all iant. #160; Even an official act which is null in all sorts of contexts needs to be stopped by a judicial order if the bureay is not to treat it as valid and effective. In order to obtain an ariaopriate remedyemedy 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 etionary power to refuse apse 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 Coan be shown town 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 ded.

Order 16 rule 4 oe 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 cns. He was entitled tled to stand on his rights.

That submission is valid only insofar as there is no delay. One cannoton one’s r7;s rights forever. Particularly if in doing so the scope of relief open to him is compromised or lost.&#1aced the with the refusal of Commission and the Public Prosecutor to remedy his complaints ints and with the full knowledge that mattere proceeding from Commissmmission 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 Plff told the Court (prt (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”. Ha0; Had he to Court then,then, it was possible for the Court to make orders granting specific remedies of his need of further particulars or that a referral incorporate hience.

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

The Court is not only restricted in the relief it may have afforded the Plaintif17;s.; The delay #160; has also rendehe appr appropriate rete 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 ref to an alternative authority appointed under s. 28 of the Constitution or s 19 of the OLDRLOLDRL. 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 asset and proceeded to lay charges at least on such of these that have been replied to by the Pthe Plaintiff amounting to mere denials, iunlikely that such an authority would fail now also to refe refer.

There is a further significant reason why the Court may refuse relief. The Plaintiff& claims that 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 should beld be set aside and forgotten. That is not appropriat>

All leaders have the rights bestowed on them by tnstitution. But the People, the bestofer of those rights have a greater right. 160; In SC Ref 2 of by Puby Public Prosecu992 PNGLR 336 the Supreme Ceme Court said:

“In the light of the circumstances of recent years involving in particular membersarliament, supported by the specific provisions of Constitustitution 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 emedies soughsought in this review, the Plaintiff has all the detail necessary for him to formulate a defence. He has not only llegationstions of the Commn he has also the Statements of Reasons and full disclosureosure of the Commission’s file as a result of these proceedings.

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 mply tement, that the pthe present position of the Plaintiff at this stage, brou broughrought about by his own inaction, is notrejudiced as to warrant any intervention of this Court.

I decline to rule the Ombudsmbudsman Commission referral invalid and s cause to grant any of the the relief sought. The Plaintiff&#8 applicatiication 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&#821tatement of Reasons either.ther. 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’tement of Reasons, the Cour 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.