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Ombudsman Commission of Papua New Guinea v Justice Sakora, Messrs Manuhu and Karapo and Paul Pora [1996] PGNC 54; N1720 (6 December 1996)

Unreported National Court Decisions

N1720

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 256 OF 1996
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
PLAINTIFF
AND
THE HON JUSTICE SAKORA, MESSRS MANUHU AND KARAPO
CONSTITUTING THE LEADERSHIP TRIBUNAL
1ST DEFENDANT
AND
PAUL PORA
2ND DEFENDANT

Waigani

Amet CJ
2 December 1996
6 December 1996

RULING

AMET CJ: This is an application by the Ombudsman Commission (the Commission) for leave to apply for Judicial Review of the Proceedings of the Leadership Tribunal (the Tribunal) inquiring into allegations of misconduct in office by the Hon Paul Pora, MP.

The Tribunal has not yet completed its inquiry. The issues giving rise to this application occurred in the following circumstances. The stage had been reached in the Tribunal’s inquiry where the Prosecution had closed its case, and the leader, Mr Pora was himself completing his evidence in chief, when the issue arose over the non-disclosure of certain documents by the Commission.

Prosecuting Counsel before the Tribunal, Mr Manek requested a search of the Ombudsman Commission’s files and records with a view to locating any documents associated with the subject letter of 14th August 1992, Exhibit N11, the copy of a letter from Ombudsman Ridges to the then Secretary for Finance and Planning, Mr Gerea Aopi. Mr Ravi Perera, the senior legal officer with the Commission swore and filed an affidavit annexing certain documents which were located, relating to that letter.

As a result of the disclosure of these related correspondences, the following day Counsel for Mr Pora made application that, the Tribunal discharge Mr Pora, terminate the proceedings and award costs against the Commission in favour of the leader. In the course of the submissions in support of this application, Counsel for Mr Pora had made observations, comments and remarks which were critical of and adversely reflected on the role of the Commission in its investigative functions and in particular in relation to the documents that were revealed before the Tribunal.

Counsel prosecuting the leader Mr Manek replied to the submissions for the leader, and the Tribunal reserved its ruling to be delivered on the Monday following.

On resumption the following week Mr Toop, legal counsel in the Commission appeared before the Tribunal and made application for leave to intervene to make submissions to the Tribunal in relation to issues that were raised in relation to the disclosure of the documents which were subject of submission by Counsel for Mr Pora.

The Tribunal refused this application by Mr Toop to intervene.

The Tribunal then proceeded to rule upon the application by Mr Pora and dismissed it. In that ruling the Tribunal made observations and remarks relating to the importance of the documents and the conduct of the Commission in relation to those documents.

It is the ruling of the Tribunal refusing the application by Counsel for the Commission to intervene and the Tribunal’s subsequent observations and remarks relating to the Commission’s actions and conduct in relation to the documents that are now the subject of this application for leave to apply for Judicial Review of them.

One of the specific observations or comment of the Tribunal sought to be reviewed is that the Commission deliberately withheld vital evidence exculpatory of Mr Paul Pora. The proposed grounds on which relief will be sought in the review application are principally two-fold: that the Tribunal had denied the Commission natural justice right of hearing, and secondly the Tribunal had showned bias against the Commission.

Application for leave, under O 16 r 3(2) are technically to be made ex parte, but as the leader is vitally interested in the outcome of the application of review, should leave be granted, in particular in relation to the injunctive relief being sought, I had allowed the leader Paul Pora leave to intervene to be heard on this application for leave. Though the rules stipulate that application for leave is ex parte, the discretion nevertheless, in my view, rests in the Court in appropriate circumstances to grant leave for interested parties to intervene to be heard on the application for leave, particularly if the relief being sought in the application for review is likely to affect their interest in a substantive way.

In an application for leave to apply for judicial review four major legal principles need to be satisfied the Court for it to exercise the discretion in favour of the application:

1) & W60; Whether the applicant has “sufficient interest” in the matter to bring the application.

2) &##160;; W60; Whetherether the applon raany fental or ss legal issues to be tried thed that woat would fuld found ound an arguable case.

3) & Whethe paroulr quired ired ired to puto pursue further administrative remedies dies before bringing the matter to Court.

4) 䃘&he appl applon isgn isght within the pres prescribecribed or d or otherotherwise wise reasonable time.

The first issue, therefore, is whether in theumstagiving rise to this application, the Commission hion has suas sufficient interest in the substantive matter before the Tribunal to found locus standi. It is true that the prosecution of the charges emanated from investigations by the Commission which were referred to the Public Prosecutor. The Public Prosecutor under the Constitution assumes the corporate interest of the State which includes the Commission. And indeed informally, lawyers and officers of the Commission have assisted prosecuting Counsel from the Office of the Public Prosecutor in the prosecution of the charges referred before a Leadership Tribunal. In my view, therefore, the interest of the Commission, if indeed there be any separate and distinct from that of the State corporately, are sufficiently represented by prosecuting counsel from the Office of the Public Prosecutor.

In relation to the circumstances precipitating this application, it is my view that the issues pertaining to the interests of the Commission were sufficiently procedurally represented by prosecuting counsel Mr Manek. All factual circumstances and submissions in relation to the law and in response to submissions by Counsel for the leader, were able to have been made by prosecuting counsel, as indeed they were. Further inquiries, as were necessary in relation to the subject documents were in fact initiated by prosecuting counsel Mr Manek, and evidence tended by affidavit deposition by a senior legal officer of the Commission Mr Ravi Perera, through prosecuting counsel Mr Manek. The interest of the Commission, so far as they pertained to the conduct of the Commission in relation to the subject documents, were quite fully able to have been represented in submission by prosecuting counsel Mr Manek Adequate procedural opportunities existed for the interests of the Commission to have been fully put before the Tribunal.

The Commission, in relation to this kind of leadership prosecution, in my view does not have separate locus standi from the Public Prosecutor prosecuting on behalf of all of the interests of the State. If there are procedural irregularities, denial of natural justice or errors of law that warrant review, then it is the Public Prosecutor who has locus standi to pursue any action in relation to them.

I do not consider therefore that the Commission has sufficient interest in the substantive issues before the Leadership Tribunal to bring this application.

On that basis alone application for leave is denied. If, however, I am incorrect in that opinion, then the next principle is whether or not the applicant has demonstrated an arguable case on the merits in law that warrants grant of leave. An arguable case involves the question of whether the application raises any fundamental or serious legal issues. The Commission contends that the refusal by the Tribunal to grant leave to it to intervene to make submissions in relation to the circumstances pertaining to the documents in question denied the Commission the natural justice right to be given a hearing. It was submitted that the Tribunal, in denying the Commission the opportunity to be heard and to present to it facts and submissions in relation to the non disclosure of the documents, was misled and had accepted, unsubstantiated submission from the bar table by Counsel representing Mr Pora and had proceeded to accept those submissions without any evidence having been allowed to be led on behalf of the Commission. This, it was submitted by the Commission was a fundamental breach of the rights to natural justice in the Commission.

On the face of these facts and submissions, this proposition would appear to be valid to found an arguable case, but I am not so persuaded. I am not persuaded that these circumstances amount to an arguable case, in the circumstances of the substantive issues in the inquiry, before the Tribunal, to raise fundamental or serious legal issues to warrant grant of leave for judicial review.

The substantive issue before the Tribunal is inquiry into alleged misconduct in office by Paul Pora. It is not an inquiry into the conduct of the Commission in relation to non disclosure of the subject documents such that the Commission is entitled as of right to a hearing in relation to those issues. The issue of non disclosure of certain documents by the Commission to Mr Pora in the course of the Commission’s investigations and also subsequently the referral to the Public Prosecutor, were only peripheral to the substantive issues of the charges of alleged misconduct in office.

In my view therefore, the Tribunal’s comments and remarks in relation to the Commission’s conduct in relation to the non disclosure of the subject documents did not relate directly to the allegations against the leader the Tribunal was inquiring into. As the Supreme Court ruled in relation to the application for leave to apply for judicial review by Mr Pora, the Tribunal has not yet concluded its inquiry, and the leader was entitled to rely on the documents that have now been disclosed as indeed could the Prosecution.

The issues that the Commission is taking with the Tribunal in relation to the comments and remarks of the Tribunal in relation to the non disclosure of the documents do not directly impinge upon the substantive issues that the Tribunal is inquiring into. The legal issues that may well arise from the contentions of the Commission are only irrelevant to the central allegations against the leader being inquired into by the Tribunal.

In my view therefore those issues in the circumstances do not found an arguable case to warrant grant of leave. To do so and to restrain the Tribunal from proceeding whilst these peripheral issues are being reviewed would be prejudicial to the expeditious disposition of the allegations against that are being inquired into by the Tribunal.

On this basis also, then I would dismiss the application for leave for judicial review.

The third principle that arises, as to whether administrative remedies have been exhausted, does not arise for consideration in this application.

The fourth principle relevant for the purposes of an application for leave to apply for judicial review, is whether the application is brought within reasonable time. It is to be noted that the originating summons was filed on 7th June 1996, shortly after the Tribunal refused application for leave to intervene, by Counsel representing the Commission, and the Tribunal’s remarks and comments that are the subject of this application. Subsequently the application for leave was continually adjourned, on the basis Counsel has informed the Court that the Court considered it appropriate that this application should await the outcome in a similar application on the part of the leader Mr Pora for leave to apply for judicial review of the refusal by the Tribunal to discharge him and to terminate the proceedings, which application for leave was refused and subsequently an appeal against that refusal went before the Supreme Court.

There is no notation to that effect on the file, but I for myself do not apprehend that it was necessary to so defer this application until the outcome of the leader’s application for leave for judicial review and the subsequent appeal to the Supreme Court was determined. It seems to me rather more appropriate that this application ought to have been prosecuted either by joining the leader’s application, the effect of which would have been the same, or to have proceeded contemporaneously with the application of Mr Pora. It would have been preferable to have proceeded in that fashion in the event that either one or both applications was successful in obtaining permanent injunctive relief against the Tribunal, which would have meant the end of the matter there and then. As it now would appear, after six months having elapsed in which Mr Pora had unsuccessfully prosecuted similar application ultimately before the Supreme Court and the Supreme Court having ruled that the Tribunal’s inquiry should proceed expeditiously, the Tribunal and the affected leader now find themselves being prejudiced considerably by this application, if it were to be granted, and subsequent review successful.

If I was wrong in my conclusions that the Commission did not have sufficient interest or an arguable case on the merit, then on this basis again that the application is not brought within reasonable time I would nevertheless decline to grant leave to apply for judicial review.

In the end result, as I find the three main principles as they apply to this application not being established the application for leave is refused on all basis, with costs to the successful defendants, the Tribunal and Mr Pora.