Unreported National Court Decisions
N1393
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 409 OF 1995
BETWEEN
ALBERT BOSSROUND KARO - PLAINTIFF
AND
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA - DEFENDANT
Waigani
Sheehan J
13 September 1995
18 September 1995
20 September 1995
24 November 1995
JUDICIAL REVIEW - charges of misconduct in office - Leader seeking documentation re charges - application for mandamus - claim of delay.
Counsel
Mr G Sheppard for the Plaintiff
Mr D Cannings for the Defendant
24 November 1995
SHEEHAN J:  This is an application for judicial review seeking relief by way of an order of mandamus which will require the Defendant Ombudsman Commission, to deliver up to the Plaintiff:
“copies of the following documents, or copies of the following classes of documents:
(a)      all evidence and evidentiary material;
(b)      all written statements;
(c)      any information or other material whatsoever which are in their custody control or possession, of and concerning the Plaintiff in connection with allegations of misconduct in office made by the Defendant against the Plaintiff under the Organic Law on the Duties and Responsibilities of Leadership.”
The Plaintiff claims access to this material to enable a proper response to allegations of misconduct in office made by the Commission against him under the Organic Law on Duties and Responsibilities of Leadership.
In his Statement In Support (O 16 r 32 (a)) the Plaintiff sets out grounds for this relief as follows:
2.       The Plaintiff is a member of the National Parliament and is subject to the OLDRL.
3.       The Plaintiff is a person whose conduct is being investigated by the Defendant.
4.       Sections 20 (3) of the OLDRL provides that ‘the person whose conduct is being investigated is entitled as of right to be heard by the Commission’.
5.       On or about the 31 March 1995, the Defendant caused to be delivered to the Plaintiff a letter dated 15 March 1995 in which certain allegations of misconduct in office were alleged against the Plaintiff, and called upon the Plaintiff to exercise his right to be heard under Section 20 (3) of the OLDRL.
6.       The Defendant did not furnish the Plaintiff with any documents, particulars of the investigation or any other evidence, complaints, or other information whatsoever.
7.       The Plaintiff, by his lawyers wrote to the Defendant on 22 September 1995 requiring the Defendant to provide copies of certain documents relating to the investigation of the Plaintiff by the Defendant, (‘the requested documents’) so that he would be able to properly exercise his right to be heard.
8.       The Defendant, by a letter dated 29 September 1995 refused to provide the requested documents.
The essential facts of this matter are that on 31 March 1995, following an investigation, the Ombudsman Commission served notice on the Plaintiff of allegations of misconduct in office and called for any explanation that he may wish to offer.  In terms of this notice he was required to advise the Commission within 21 days of whether and how he proposed to respond to the allegations and exercise his right to be heard pursuant to s. 20 (3) of the OLDRL.
The Plaintiff acknowledged receipt off the allegations and gave notice of intention to respond.  However when no response was in fact made in the following months, the Commission wrote to him again on 13 September 1995 reminding him of his right to be heard and giving him a further 14 days in which to exercise that right.
The Plaintiff replied by a letter of his lawyers of 22 September 1995 in which it was asserted that:
“It is part of the content of the audi alteram partem rule that our client has a right to every piece of evidence, every statement, and any other information whatsoever in your possession regarding your allegations, whether you intend to use it against him or not.  Until he is in possession of this material, he cannot exercise his right to be heard, and it cannot be reasonably contended that he was ever properly afforded a right to be heard by you.
Further, once this material has been provided to us, our client must be given adequate time to prepare his case in answer.  Until we see the volume of the material in your possession, we will not be in a position to reasonably comment as to what period of time would in this particular case constitute ‘adequate time’.
Our client must also be given the opportunity to present witnesses in support of his case to the Commission.  Although this would in our submission be more conveniently done at a hearing at where viva voce evidence would be adduced, we are aware that you are not obliged under the provisions of applicable legislation to conduct a hearing.  Equally there is nothing prohibiting you from doing so, and we request such a hearing in this case.
We would also contend that we as our client’s lawyers should be given the opportunity of cross examining any of  your witnesses.  Naturally, the decision-maker would be required to preside at the hearing, and we are entitled to a reasoned decision which takes proper account of the evidence and answers our client’s case.
The above requirements, are, we suggest, the minimum by which you may discharge your obligation to provide our client with a right to be heard.”
The Commission replied on 29 September 1995 in the following terms:
“We have decided not to accede to your requests, for the following reasons:
1.       The substance of the allegations against your client were set out in a 15 page letter dated 15 March 1995. We believe that the allegations are clear and precise.
2.       To the extent that your client regarded the allegations as unclear, or requiring further elaboration, it was open to him to request further details from the Commission.  This has not been done.  Accordingly, the Commission was, and is, entitled to assume that your client is well aware of the nature of the allegations against him.
3.       We do not agree that your client is entitled to all information in the Commission’s possession regarding the allegations against him.  In essence, it appears that you are requesting access to the whole of the Commission’s investigation file concerning your client.  However, the Commission is under no obligation to make this available.
4.       It must be borne in mind that the Commission is a preliminary investigative body.  Accordingly, it is under no blanket obligation to disclose the sources of its information.  This is not to say that the Commission will in all situation refuse to disclose the sources of its information.  Such sources may be disclosed if this can be done without breaching any duty of confidentiality which may have arisen from the situations in which the information was obtained.  However, we would expect that a request for the Commission to disclose its sources would be specifically made in relation to particular allegations that were regarded by a leader as unclear or requiring elaboration.
5.       Your request for a hearing, with witnesses, is not right under the OLDRL on the DRL, nor is it a right to be implied under the principles of natural justice.
6.       The extent to which natural justice must be implemented is dependent on the particular circumstances of each case.  In the present case, we believe that it is neither necessary nor desirable to conduct the type of hearing that you have requested, as the Ombudsman Commission is simply required to determine whether there is a prima facie case that your client has committed misconduct in office.  The Commission is not authorised to make a final determination as to your client’s guilt.
7.       The procedures that the Commission has adopted in relation to the allegations against your client are the standard procedures that the Ombudsman Commission adopts in cases of this nature.  Provided the Commission grants a leader an adequate opportunity to be heard (which we believe we have done in this case) the procedures adopted by the Commission are at its discretion.  You have failed to satisfy us that there are particular circumstances which would warrant exercising our discretion so as to alter those standard procedures in this case.
8.       Finally, we emphasise that your client has now had more than six months in which to respond to the allegations.  This is despite the fact that he was, in the first instance, given only 21 days in which to contract the Commission and arrange a suitable time for him to respond.  Your client attended at the Commission on 25 April 1995 and was invited to formally request an extension of time in writing, however he has never made such a request.”
That refusal resulted in the Plaintiffs bringing these proceedings to secure the production of all of the Commissions documentation and evidence.  The claim for a “trial” of the issues before the Commission with cross examination of witnesses set out in the letter of 22 September has not been pursued.
The Plaintiff grounded his claim for full disclosure on the provisions of s. 20 (3) of the OLDRL which provides a statutory right to be heard and on the elaboration of that right as set out in the decision of the Supreme Court in Karo v Ombudsman Commission SCA 8 of 1995.
In reply Counsel for the Commission acknowledged the Plaintiffs right to be heard and the Commissions obligation to observe the rules of natural justice and conform with the provisions of s. 20 (3) of the OLDRL.  He submitted that that duty is discharged if the Commission outlines the substance of the allegations against a leader and gives a reasonable opportunity for him to respond.
But he contended that the Plaintiff’s assertion that there is positive obligation on the Commission under the OLDRL to deliver up to a leader under investigation, all the evidence statements and material whatsoever in its possession concerning the leader as asserted in the pleadings of this action, is wrong in law.  Equally wrong he submitted, is the assertion of the Plaintiff that this supposed obligation to in effect hand over the file, must be carried out before the leader is called upon to exercise his right to be heard.
Counsel for the Commission asserted that the Plaintiff had been offered ample opportunity to exercise h is right to be heard but had failed to avail himself of that right.  It was because of that failure and delay in taking any responsible action that the Commission declined to afford further opportunity to him.  He had been served with notice of the charges at end of March this year yet six months later he had not sought any clarification of them nor any extension of time in which to make a reply.  It was not until a final reminder was given to him in September that he made this claim of inability to reply until there had been a total disclosure of the Commission’s file.  It was because of that assertion after an lengthy and unexplained delay that the Commission not surprisingly declined to decide to the Plaintiffs requests.
DECISION
It is appropriate that the challenge of delay is dealt with first.
The charges of misconduct set out in the 15th of March were served on the Plaintiff 31 March 1995.  That letter notified the Plaintiff that he had a 21 day period in which to make arrangements for an opportunity to respond or to be heard.  In fact the Plaintiff failed to contact the Commission and make any such arrangements.  In affidavits filed by the Plaintiff in and on the evidence elicited from him in cross examination on them, the Plaintiff asserted that the delays were occasioned by his need to gather information from banks, business houses and various persons not easily locatable.  He also disposed had not realised the extent of his rights to fuller information on the charges, until the Supreme Court decision in SCA 8 of 1995.
Since that decision was in fact handed down by the Supreme Court on 21 April, that is, even before the time period expired in which the Commission  had set for him to respond, such an excuse does not have much impact.  Likewise the claim that he was seeking information himself lacks creditability  when no request is made for an extension of time in which to reply.  The Commission adverted to this in its letter of 29 September.
In fact Counsel for the Plaintiff conceded that there had been delay on the part of the Plaintiff, but pointed out that despite that delay the Commission itself had offered a further 14 days in which a response might be made.  Therefore because there had been no procedural progress in the Commissions enquiry, it could not be argued the delay in time prejudiced either the Commission or to the Plaintiffs application for relief.
I find that this is so.  Given that the Plaintiff had been duly served with notice of charges in March and had failed to respond or take any reasonable action towards seeking extension of time in which to respond to those charges, the doing of nothing, on his part, would in my view have left the Plaintiff with no cause for complaint had the Commission proceeded to consider the charges and decide that the Plaintiff should be referred to the Public Prosecutor.  But since it was the Commission itself which set the clock running again by its reminder to the Plaintiff on the 13 September, it seems to me that the argument of delay can no longer be positively asserted as a reason for this Court to refuse to entertain the application before it.  The issue then becomes whether the Plaintiff is entitled to the blanket disclosure sought in the originating summons or as the Commission contends simply sufficient detail necessary to make a proper respond.
THE RIGHT TO BE HEARD AND PROCEDURAL FAIRNESS
The two are often equated but in fact the right to be  heard is only a part of procedural fairness.  In Ombudsman Commission v Donahoe 1985 PNGLR 348 the Supreme Court after an extensive review of the authorities confirmed that where a statutory body is empowered to investigate and make decisions or reports on questions affecting parties rights and duties, the procedures adopted must be fair and the principles of natural justice applied.  Recognising that very often an investigating body has statutory rights of determining its own procedures the Court avoided stipulating formal procedures itself.
Each inquiry it said will have its own requirements.  But even without setting down any hard and fact rules the Court noted that a fair procedure of enquiry by a body such as the Ombudsman Commission will include the right of a party effected to be heard and the duty of the Commission fairly set out the leaders defence in any report on judgment that follows.  The Court acknowledged that:
“there are...no words which are of universal application to every kind of enquiry and every kind of domestic tribunal.  The requirement for natural justice must be depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.
Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever stand it is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”  (Russell v Duke of Norfolk 1949 1 ALL ER 109).
The whole procedure of any investigation including those of Ombudsman Commission must be fair and conducted with a critical but with an open mind.  A more recent summary of this is well stated in RV Monopolies Commission 1987 1 ALL ER 469 where it was said:
“The timetable and conduct of the case by the commission must be looked at as a whole.  It is wrong in my judgment to seek to impose on the commission any such uniform requirement that every piece of material put before the commission which may in any way influence its report must go to all parties or even to the opposing main participants in the bid.  The commission establishes, within the framework of the Fair Trading Act 1973, its own procedure and its own approach to each individual reference.  Of course it must need all representations made either way.  But it has a discretion which is broad and which should not be prescribed or inflexible.  The concept of fairness is itself flexible and should not be subject to the court laying down rules or steps which have to be followed.  The question in each case is whether the commission has adopted a procedure so unfair that no reasonable commission or group would have adopted it, so that it can be said to have acted with manifest unfairness.  Provided each party has its mind brought to bear upon the relevant issues it is not in my judgment for the court to lay down rules as to how each group should act in any particular inquiry.  Of course neither side must be faced with a bolt from the blue and no party may be kept in the dark and prevented from putting its case.”
Thus if during the course of a Commissions enquiry, issues arise requiring explanation of a leader then those issues must be fairly put to him for his response.  That is questions, allegations or charges must be put to the leader in a clear understandable manner so that he may readily realise the extent and import of what is said against him.  He must also be notified of his right to reply, to refute or explain those issues.  He must be notified that he has the right to be heard.
The Supreme Court stated this in Karo v the Ombudsman Commission SCA 8 of 1995:
“by virtue of s. 20 (3) of the OLDRL ‘the person whose conduct is being investigated is entitled as of right to be heard by the Commission’.  This is mandatory duty as well, that in the course of the investigation, at an appropriate time to be determined by the Commission in its judgement, prior to any report or decision being made, the person whose conduct is being investigated shall be entitled to be given a hearing by the Commission.  This clearly envisages that at a particular point in time in course of the investigation when the Commission has obtain some information pertaining to the conduct of  the person being investigated, considered to be sufficient by the Commission, to then give the person responsible and opportunity to heard in relation to the issues investigated.”
The right to be heard therefore starts with the right to be notified of what the allegations of misconduct are.
That will be done by outlining the substance of them with sufficient detail and clarity for them to be understand and by offering  him a reasonable opportunity to respond.  That comprises the statutory obligation of the Commission to afford the leader the right to be heard (s. 20 (3))though its duty in this regard might not end there.  The exercise of the right to be heard arises once the leader is notified of the charges and offered opportunity to respond.
The exercise of that right is of course a matter of choice for the leader concerned.  He may attend on the Commission and be heard or he may reply in writing.  While by virtue of s. 23 of OLDRL a leader is obliged to cooperate with the Commission in its inquiry, he nonetheless has the right to remain silent.  He may choose to respond or not as he sees fit.  Choosing to remain silent is nonetheless an exercise of the right to be heard.
But if having being notified of the substance of the charges against him he considers the details of the questions or allegations are inadequate for him to make a proper response, it is open to him, indeed it is incumbent on him to say so.  He must advise the Commission of this and seek the information necessary for him to make the response that he wishes.  It was said in the decision of this Court in Diro v Ombudsman Commission OS 122/91:
“it can not be doubted that the notice must give at least the substance of an allegation.  An investigatory body need not quote chapter and verse.  It need not put every detail of the case against the man.  Suffice if the broad grounds are given.  It need not name its informants.  It can give the substance only.  But if the substance of the charge is not enough then the person given notice of those charges, must say so.”
In that decision the Court went on to say that:
“if a leader to whom notice was given considers that notice inadequate to inform him what was alleged against him then he must make that known to the Commission.”
It is also part of procedural fairness that he be given that information.  The Supreme Court in Karo’s case emphasised a leaders right to the detail and information needed to make an adequate reply where it says:
“Again we said this right to be heard need not necessarily be in person orally before the Commission.  It can be facilitated quite satisfactorily in writing as long as the person whose conduct has been investigated is furnished will all the necessary documents and particulars of the investigation and any evidence, complaint and allegations that had been gathered in relation to his conduct, that he needs to be fully informed of in order that his reply, respond or explanation is to be considered adequate.”  (emphasis added).
It must be stated that this is not a declaration by the Supreme Court of some new procedure that is required of an Ombudsman Commission enquiry.
It was not a determination that the only method of exercising a right to be heard whether orally before the Commission, or in writing, is that a leader must first be given full disclosure of the investigation file.  It is not a decision, either, that to ensure procedural fairness every document whether adverse to a leader or not which appear on the Commission file must be disclosed.
As was confirmed by Donahoe’s case, and the decisions referred to in that decision, procedural fairness does not require that every document that maybe regard as adverse to a leader on the Commission file must be disclosed to the leader.  It depends on the circumstances of each case.
There may well be on a Commission file irrelevant material, or matters not considered to have any bearing or significance in relation to the actual allegations preferred.  Making a file over to a leader which contains extraneous irrelevant material “whether (the Commission) intends(s) to use it against him or not” would result in the Plaintiff having to deal with matters having no bearing on the allegations or which he must be heard.
“Such a course would be the antithesis of good administration and is not required by principles of procedural fairness.”  Minister for Immigration & Ors v Pashmfaroosh [1989] 18 ALD 18.
Finally as was stipulated in Donohoe the Commission must consider any response a leader may make before making a determination and once it does so and decides to refer, then the leader’s reply must be fairly set out in its report to the Public Prosecutor.
In this case the Plaintiff was given a 16 page notice of the allegations against him and required to arrange for an opportunity to respond to them within 21 day period.  This he did not do, so a further 14 day opportunity to respond was given him.  He did not reply in that time either but instead asserted a right to the total disclosure of the Ombudsman Commission file.
He does not have that right.  Nor does he have the right to determine the procedures of a Commission enquiry.  Only the Ombudsman Commission has that right.  He does have the right to a clear understanding of the allegations against him and the right to respond to them.
If a leader considers the detail of the allegations put to him are insufficient for him to make an adequate response then he must give notice of that and seek the further detail that is necessary.  Failure to respond in anyway may be taken as a waiver of the right to be heard or at least an acknowledgement that the charges are understood.
But if details are sought then detail sufficient to enable proper response must be supplied.  This will vary according to the allegations, but will include being made aware of or obtaining copies of any document on which an allegation is based and any statement or the substance of any statement against a leader on which the Commission may place reliance or credence.
In fact Counsel for the Plaintiff did acknowledge that the relief sought in the terms set out in the Originating Summons was excessive.  He said when opening the Plaintiffs case, that it was accepted, that there may be some necessary claim of privilege on the part of the Commission to protect the identity of its sources.  Again upon completion of the defence case the Counsel for the Plaintiff he conceded further to the defence submissions, acknowledging that the extent of information sought and for which the Plaintiff was entitled was only that information sufficient and necessary for him to exercise his right to be heard.  The submissions on behalf of the Commission letter of 29 September show that, that and the essentially coincides with the Commissions position.  It was the blanket claim of the Originating Summons which has caused the Commission to defend these proceedings as it has done.
The Plaintiff has to this point made no such request.  The demand for total disclosure of the Ombudsman Commission file was based on a totally erroneous view of a right to be heard.  That demand is certainly not to be considered a reasonable request for clarification or enlargement of the detail of the charges.
Nonetheless by bringing of these proceedings it is plain the Plaintiff now wishes to seek further information of the Commission I am of the view that that the Plaintiff should be given opportunity to do so.  Accordingly rather than simply decline the application for mandamus in the terms pleaded, there will be a direction that the Plaintiff, within 14 days, give due notice of those allegations of misconduct that have been notified to him that are unclear to him or that there is specific information or detail that he requires to enable an adequate response.
Lawyer for the Plaintiff: Maladina Lawyers
Lawyer for the Defendant: Ombudsman Commission