Karo v Ombudsman Commission of PNG [1995] PGNC 43; N1393 (24 November 1995)

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 delivero the Plaintiff:

“copies of the following documents, or copies of the followinlowing classes of documents:

(a) all evidence and evidentmary material;

(b) ;ټ all wril written sten statements;

(c) ҈ nfy iatirmation or n or other material whatsoever which are in their custody control or possession, of and concerthe Piff inection with allegations of misconduct in office made by the Defendant against thst the Plae Plaintifintiff 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. & T60;Plae tiffnis a memberember of the National Parliament and is subject to the OLDRL.

3. ; The Plafntifa is a person rson whose conduct is being investigated by the Defendant.

4. &&##16s ) nf LDRf LDRL des des that ‘the person whose conduct is being iing investnvestigateigated is d is entitentitled as of right to be heard by the Coion&#.

. O60; On or n or aboutaboe 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. ـ Tfe Dentndant did not furn furnish the Plaintiff with any documents, particulars of the investigation or any other evidence, complaints, or other inforn whaer.7.&##160; #160; The ThinPlaintlaf,tiff,tiff, 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. & T60; The Defendant, by a letter dated 29 September 1995 refused to provide the requested documents.

The essential facts of this r are on 3ch 19ollown investigation, thn, the Ombudsman Commission served notice tice on thon the Plae Plaintifintiff 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 (3) of the OLDRL.

The Plaintiff acknowledged receipeceipt off the allegations and gave notice of intention to respond. er when no response was inas in fact made in the following months, the Commission wrote to him again on 13 September 1995 remindim of his right to be heard and giving him a further 14 days in which to exercise that righ 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 affoa right to be heard by you.

Further, once this material has been provided to us, our, 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 clmust also be given the oppo opportunity to present witnesses in support of his case to the Commission. Although this would in obm submission be more conveniently done at a hearing at where viva voce evidence would be adduced, we are aware that you are notged under the provisions of applicable legislation to conduct a hearing. Equally ther there is ng ping 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 the opportunity of cross examining any of your witnewitnesses.; Natu 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 reve 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. &ـ T60; The sube substance of the allegations against your client were set out in a 15 page letter dated 15 March 1995. We believe that the allegatioe cled pre

2.  To the extent that your clur client regt 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 done0; A60; Accordingly, the Commission was, and is, entitled to assume that your client is well aware of the nature of the allegations against him.

3. ;ټ We do e do not agree that your client ient is entitled to all information in the Commission’s possession ring the allegations against him. In essent appears that yout you are requesting accesaccess to the whole of the Commission’s investigation file concerning your client. However, the Commission is under no obligation to make this available.

4. ҈& I60; It must must be borne in mind that the Commission is a preliminary investigative body. Aingly, undeblankligatiogatiogation to disclose the sources of its information. This is not to say thay thay that the Commission will in all situation refo disclose the sources of its information. Such sourcsources may be oisclosed if this can be done without breaching any duty ofidentiality which may have have arisen from the situations in which the information was obtained. Ho, we would expect thatquhatquest for the Commission toon to disclose its sources would be specifically made in relation to particular allegations that were regaby a leader as unclear or requiring elaboration.

5.&p>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.

.ټ&##160;;&#16e exto which nich naturaatural jusl justice tice must must be imbe 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. Tmmission is not authoriseorised to make a final determination as to your client’s guilt.

7. ـ T6e procedures that 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 tmmission grants ants 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 iscretion. You have failed to sa us t us that there arre are particular circumstances which would warrant exercising our discretion so as to alter those standard procedures in this case.

8. Fynall e weasiph thae your your client has now had more than six months in which to respond to the allegations. Thisespite the fact that hhat he was, e firstancven o1 daywhichontract tact the Cohe Commissmmission aion and arnd arrangerange a suitable time for him to respond. Your client attended at thmission on 25 April 1995 an95 and was invited to formally request an extension of time in writing, however he has never made such a rt.”

That refusal resulted in the Plaintiffs bringing these proceedings to secu secure the production of all of the Commissions documentation and evidence. The claim for a “al” 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 fulclosure on the provisions oons 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 heended that the Plaintiff’s assertion that there is pois 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. Eq wrong he submitted, is , 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 to be heard.

Counseounsel 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 fa lure and delay in taking any responsible action that the Commission declined to afford further opportunity to him. He had beened with notice tice of the es at end of March this year yet six months later he had noad not sought any clarification of them nor any extension of time in whichake a reply. It was not until al remindeminder was gias 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 thatrtioertion after an lengthy and unexplained delay that the Commission not surprisingly declined to decide to the Plaintiffs requests.

DECISION

t is appropriate that the challenge of delay is dealt with with first.

The charges of misconduct set out in the 15th of March were served on the Plaintiff 31 March 1995. That letter nod the Plaintlaintiff that he had a 21 day period in which to make arrangements for an opportunity to respond or to be heard. In the Plaintiff failed toed to contact the Commission and may such arrangements. 160; In affidaviled by they the Plaintiff in and on the evidence elicited from him in cross examination on, the Plaintiff asserted thed 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 onpril, that is, even before fore the time period expired in which the Commission had set for himespond, suc, such an excuse does not have much impact. Likewiseclaim that he was was seeking information himself lacks creditability when no requesmade for aenextension of time in which to reply. The The Commission advetoed to this in its letter of 29 September.

In fact el for the Plaintiff conceded that there had been delay on the part of the Plaintiff, but pbut pointed out that despite that delay thmission itself had offered ered a further 14 days in which a response might be made. Therefore se there had beed been no procedural progress in the Commissions enquiry, it could not be argued the delay in time prejudiced either the Commission or to the Plffs application for relief.

I find that this is so.& 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 charges, the doing of nothing, on his part, would in my vimy 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 sincwas the Commissionssion itself which set the clock running again by its reminder to the Plaintiff on the 13 September, it seems that the argument of delay can no longer be positively asserted as a reason for this CourtCourt to refuse to entertain the application before it. The issue thcomes whether ther 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 hes only a part of proceduocedural fairness. In Ombudsman Commiss DonahDonahoe 1985 PNGLR 348 the Supreme Court after an extensive review of the authoritiesirmed that where a statutory body is empowered to investigastigate 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 itsel>

Each inquiry it said will have its own requirements. But eithout setting dong dong 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 ard and the duty of the Come Commission fairly set out the leaders defence in any report on judgment that follows. The Court acedged that:

“there are...no words which are of universal application to every kind of enquiry and every kind oestic tribunal. The requirementnatural jusl justice must be depend on the circumstancstances 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 sumof this ihis 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 commissist be looked at as a whole. It ong in my judgmendgmentgment 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 estaes, wit, 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 wa60; But it has a discretionetion which is broad and which should not be prescribed or inflexible. Thcept of fairness is itfl itflexible and should not be subject to the court laying down down rules or steps which have to be followed. The question in each is wrether the commission has adopted a procedure so unfaiunfair that no reasonable commission or group would have adopted it, so th can be said to have acted with manifest unfairness. Provided earty has its mins mind 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. Orse nr side must be fabe fabe faced with a bolt from the blue and no party may be kept in the dark and prevented from putting its cas221;

Thus if during the course of a Commissions enquiry, issues arise requiring expl explanation of a leader then those issues must be fairly put to him for his response. That is quest allegations ions 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 ied o righ right to reply, ply, to refute or explain those issues. Ht be notified that he hase has the right to be heard.

“8220;by virtue of s. 20 (3) of the OLDRL &;the person whose conduct iuct is being investigated is entitled as of right to be heard by the Commission’. This is mand duty as well,well, that in the course of the investigation, at an appropriate time to be determined by the Commission in its junt, prior to any report or decision being made, the person whose conduct is being investigastigated shall be entitled to be given a hearing by the Commission. clearly envisages that at t 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 investig ted, 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 toht 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 sory obry 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 ofright to beto be heard arisce the leader is notified oied of the charges and offered opportunity to respond.

The exercise of that right is of course a maof choice for the leader concerned. He may attend on d on the Commission and be heard or he may reply in writing. While by virf s. 23 of OLDf OLDRL a leader is obliged to cooperate with the Commission in its inquiry, he nonetheless has the right to n sil#160; He may choo choose to respond or not as he sees fit. Chooto remain silent lent lent 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 ions or allegations are inae 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 Commi oion of this and seek the information necessary for him to make the response that he wishes. I said in the decision of n of this Court in Diro v Ombudsman Commission OS 122/91:

“it can not be doubted that the e must give at least the substance of an allegation. An investiy body need not not qnot quote chapter and verse. It need not very detail ofil of the case against the man. Suffice if the brrounds ards are given. It need ame its infos.&#1t.&#1t can give the suhe substance only. But i substance of the chae charge is not enough ough then the person given notice of thoseges, say so.”

In that decision the Court went 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 Cin Karo’#8217;s case emphasised a leaders right to the detail and information needed to make an adequate reply where it says:

“Again we said tight to be heard need not necessarily be in person orally blly before the Commission. It can belitated quite sate satisfactorily in writing as long as the person whose conduct has been investigated is furnished will all the necessary documents and particuof the investigation and any evidence, complaint and allegallegations 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 a.

It must must be stated that this is not a declaration by the Supreme Court of some new procedure that is required of andsman Commission enquiry.

It was not a determination that the only method of exercisercising 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. Itot a decision, either, ter, that to ensure procedural fairness every document whether adverse to a leader or not which appear onCommission file must be disclosed.

As was confirmed by Donahoe’s case, and thed 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 preferr160; Making a file over to r 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 Immigr & amp; 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 es so and decides to refer,efer, 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 d a furtheurther 14 day opportunity to respond was given him. Henot reply in that time eime either but instead asserted a right to the total disclosure of the Ombudsman Commission file.He dot have that righ right. Nor do have the right to d to determine the procedures of a of a Commission enquiry. Only the Ombudsmmmission hion has that right. Hs have the right to a clea clear understanding of the allegations against him and the rightespond to them.

If a leader considers the detail of the allegations put to him are iare insufficient for him to make an adequate response then he must give notice of that and seek the further detail that is necessary. Faito respond in anyway maay may be taken as a waiver of the right to be heard or at least an acknowledgement that the charges are understood.

But if detail sought then detail sufficient to enable proper response muse must be supplied. This will vary ding to theo 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 ance of any statement against a leader on which the Commissmmission 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 whening the Plaintlaintiffs case, that it was accepted, that there may be some necessary claim of privilege on the part of the Commi to protect the identity of its sources. Again upon completion e dehe defence case thse 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 entitas only that information suon 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 lankeim of the Orig Originating Summons which has caused the Commission to defend these proe proceedings as it has done.

The Piff has to this point made no such request. The demand for totaclosureosure of the Omhe Ombudsman Commission file was based on a totally erroneous view of a right to be heard. That demand isainly not toot to be considered a reasonable request for clcation or enlargement of thof the detail of the charges.

Nonetheless by bringing of these proceedings it is plain the Plaintif wishes to seek further infr information of the Commission I am of the view that that the Plaintiff should be given opportunity to do so. Accordingly rather thmply mply 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