N3903

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 345 OF 2009 (JR)

BETWEEN:

HONOURABLE PATRICK PRUAITCH MP
Plaintiff

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI
First Defendant

AND:

THE ACTING PUBLIC PROSECUTOR
Second Defendant

Waigani: Hartshorn J. 
2009: 2nd & 8th September 

ADMINISTRATIVE LAW – Application for leave to judicially review decision to refer plaintiff to the Public Prosecutor for possible prosecution before a Leadership Tribunal 

Facts:

This is a leave application by the plaintiff to judicially review the decision of the Ombudsman Commission to refer him to the second defendant for possible prosecution before a Leadership Tribunal. The plaintiff contends that the Ombudsman Commission initially agreed not to refer him on the eleven (11) allegations but have now decided to refer him on eight (8) of those allegations. The Plaintiff contends that in doing so, the Ombudsman Commission has amongst others, exceeded its jurisdiction and acted ultra vires, committed unlawful acts within the meaning of s. 41 Constitution, and acted in breach of its duty to act fairly pursuant to s.59 Constitution

Held:

1. On the materials provided to it, the Court is not satisfied that the material discloses what might on further consideration turn out to be an arguable case that the second decision to refer the plaintiff to the second defendant was in breach of s. 41 or s. 59 Constitution or that the Ombudsman Commission acted without due process.

2. The application for leave for judicial review is dismissed

Cases cited:

Papua New Guinea cases

Ombudsman Commission of Papua New Guinea v. Denis Donohoe [1985] PNGLR 348 
Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22 
Pora v. Leadership Tribunal [1997] PNGLR 1
Bernard Hagoria v The Ombudsman Commission (2003) N2400
Dan Kakaraya v The Ombudsman Commission of Papua New Guinea (2003) N2478 Ombudsman Commission v. Peter Yama (2004) SC747

Overseas Cases:

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 

Counsel:

Mr. R. Pato and Mr. D. Mel, for the Plaintiff

8th September, 2009

1. HARTSHORN J: The plaintiff, the Honourable Patrick Pruaitch, applies for leave to judicially review the decision of the Ombudsman Commission to refer him to the Public Prosecutor for possible prosecution before a Leadership Tribunal.

2. Mr. Pruaitch submits amongst others that notwithstanding that the Commission had previously decided not to refer him to the Public Prosecutor as to 11 allegations of misconduct in office (first decision), the Commission then further decided to refer him on 8 of those allegations (second decision). 

3. In making the second decision it is submitted, the Commission:

•	exceeded its jurisdiction and acted ultra vires
•	committed unlawful acts within the meaning of s. 41 Constitution
•	acted in breach of its duty to act fairly pursuant to s.59 Constitution
•	was tainted with bias
•	acted in breach of the rules of natural justice
•	acted in breach of the privacy provisions in the Organic Law on the Duties & Responsibilities of Leadership (OLDRL) and the Organic Law on the Ombudsman Commission (OLOC)
•	otherwise acted without due process and without observing the Constitutional checks and balances to the prejudice of Mr. Pruaitch.

4. The application proceeded ex parte pursuant to Order 16 Rule 3(2) National Court Rules after I satisfied myself that the requisite notice had been given to the Secretary for Justice pursuant to Order 16 Rule 3(3) National Court Rules.

5. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

6. In the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644; 

"If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application". 

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. 

7. As this application concerns a decision of the Commission, a further consideration is s. 217(6) Constitution which is:

"The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction."

8. In the Supreme Court decision of Ombudsman Commission v. Peter Yama (2004) SC747, the Court said:

"Under Constitution, s. 217(6), the Commission's decision is reviewable solely on the ground that it exceeded its jurisdiction."

9. The court then cited the earlier Supreme Court decision of Ombudsman Commission of Papua New Guinea v. Denis Donohoe [1985] PNGLR 348 in which Amet J. (as he then was) said:

"I accept that s. 217(6) vests in the Ombudsman Commission a privilege or an immunity from review by the Courts except on grounds of excess of jurisdiction…"

10. In Bernard Hagoria v The Ombudsman Commission (2003) N2400, and Dan Kakaraya v. The Ombudsman Commission of Papua New Guinea (2003) N2478, Kandakasi J. referred to s. 155(3)(b) Constitution and Order 16 National Court Rules as conferring power upon the National Court to judicially review and supervise the exercise of administrative decisions.

11. Kandakasi J. then notes that s. 155(3)(b) is subject to s. 155(3)(e) Constitution which is:

"except where the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament."

12. Consequently, a combined reading of s. 155(3)(e), s. 217(6) Constitution and s. 24 OLOC results in the power of the National Court to review the proceedings of the Commission being restricted to cases where the Commission exceeds its jurisdiction. Kandakasi J. further notes that s. 155(3)(e) was not considered in Donohoe’s case (supra). I further note that it does not appear that s. 155(3)(e) was considered in Yama’s case (supra).

13. I respectfully agree with the reasoning and conclusion of Kandakasi J. in Hagoria (supra) and Kakaraya (supra). I note however that s. 155(5) Constitution provides that:

"In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case."

14. Given the above, the first question for consideration is whether Mr. Pruaitch has demonstrated that he has an arguable case in favour of granting him the relief claimed, that the Commission has exceeded its jurisdiction.

Arguable case

Decision to refer

15. Mr. Pruaitch summits in essence that because the first decision had been made not to refer, the second decision to refer exceeded the jurisdiction of the Commission.

16. The evidence as to the first decision being made is contained in the affidavits of Mr. Pruaitch and Hon. Mr. Belden Namah. Both deponents swear that the Principle Investigator of the Commission, Mr. Richard Pagen had amongst others, informed Mr. Pruaitch that the Commission had agreed not to refer Mr. Pruaitch to the Public Prosecutor. Further, Mr. Pruaitch deposes that Mr. Pagen provided him with a copy of a letter/e-mail, that informed him that:

•	the investigation was at an end
•	Mr. Pagen had recommended no further steps be taken in respect of the allegations investigated by Mr. Pagen, and
•	the Commission had decided not to take any further action in referring Mr. Pruaitch to the Public Prosecutor.

17. Mr. Namah deposes that it was an e-mail only that was produced to him and Mr. Pruaitch by Mr. Pagen and that it advised of the points to which Mr. Pruaitch has deposed.

18. From a quick perusal of these affidavits that contain amongst others, hearsay evidence, I consider it unusual that such a decision would be communicated by e-mail; if it was an e-mail, that it was produced as opposed to being sent to Mr. Pruaitch, that a decision of the Commission would be communicated by a Principal Investigator in such a manner and if it was a letter that was produced, that it was a copy. In these circumstances I am not satisfied on a quick perusal of the evidence that it discloses that the first decision was made as distinct from Mr. Pagen making a recommendation that the first decision be made.

19. Even if the first decision had been made, is the jurisdiction of the Commission exceeded by making the second decision to refer Mr. Pruaitch for eight (8) allegations of misconduct in office in respect of which he had been given the right to be heard pursuant to s. 20(3) OLDRL?

20. As I understand it, it is not alleged that Mr. Pruaitch is to be referred for an allegation in respect of which he has not been given the right to be heard.

21. There is no evidence before me that a further investigation has been conducted by the Commission. The letter from the Commission notifying of the referral refers amongst others to Mr. Pruaitch being given the right to be heard and that he had exercised that right. I am not satisfied on the material before me that it can be properly argued that Mr. Pruaitch is entitled to any further notification or a further right to be heard in respect of the eight (8) allegations. Consequently, I am not satisfied that it can be properly argued that the second decision to refer Mr. Pruaitch is in breach of s. 41 or s. 59 Constitution or that the Commission acted without due process.

Privacy

22. Mr. Pruaitch submits that there were publications in the daily newspapers of the allegations against him and that the publications occurred because of material provided by Counsel for the Commission. Mr. Pruaitch submits that this is a breach of his right to privacy and a breach of s. 17, 21 and 35 OLOC and s. 20 OLDRL.

23. It is conceded in the statement filed pursuant to Order 16 Rule 3(2) National Court Rules that the OLOC and OLDRL do not provide for a remedy or penalty for breach of these provisions but that s. 22, 23, 41 155(4) and 155(5) Constitution guarantee a remedy where there has been a wrong and the particular circumstances of each case will determine the nature of the remedy.

24. Even if there has been a breach of Mr. Pruaitch’s right to privacy and the sections referred to, can it be properly argued that the breach constitutes the Commission exceeding its jurisdiction or that the investigation or referral were unfair or against principles of natural justice when the alleged breach occurred after the investigation had been conducted and a decision to refer to the Public Prosecutor already made?

25. To my mind, although the Constitution may provide remedies for such a breach, any remedy would be unlikely to include the quashing of a decision that was made within the jurisdiction of the Commission before the subject breach occurred.

26. It is further submitted that the Commission was tainted by bias in making the second decision to refer Mr. Pruaitch. There is nothing in the material before me that provides evidence or facts concerning bias unless I am to assume that the alleged breach of privacy is supposedly evidence of bias. I am not satisfied that the evidence of such a breach is evidence of bias.

27. After considering the grounds relied upon by Mr. Pruaitch and following a quick perusal of the material placed before me, I am not satisfied that the material discloses what might on further consideration turn out to be an arguable case in favour of granting Mr. Pruaitch the relief that he seeks. Consequently, it is not necessary to consider the other arguments of counsel.

Orders

28. The relief sought in paragraph 1 of the Originating Summons filed 20th August 2009 and the relief sought in the Notice of Motion filed 20th August 2009 is refused.

_______________________________

Steeles Lawyers: Lawyers for the Plaintiff