Balakau v Ombudsman Commission of Papua New Guinea [1995] PGNC 88; N1397 (8 December 1995)

N1397

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 428 of 1995

BETWEEN:

JEFFREY BALAKAU
- Applicant -

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
- 1st Respondent -

AND:

THE PUBLIC PROSECUTOR
- 2nd Respondent -

WAIGANI: SHEEHAN, J.
1995: 25 Oct., 6, 8 Nov. & 8 Dec.

Judicial review - application for leave declined - undue delay - procedure of inquiry complete.

CASES CITED
Karo v Ombudsman SCA 8 of 1988
Nilkare v Ombudsman Commission N1334

Mr J. Wal for the Plaintiff
Mr G. Toop for the Respondent

This is an application for leave to apply for judicial review. The relief that the Plaintiff claims is set out in his originating summons as follows:

1. Leave to apply for Judicial Review of the decision made by the First Respondent to refer the Applicant to the Public Prosecutor.
   
2. A declaration that the referral of the Applicant/Plaintiff by the First Respondent to the Public Prosecutor for prosecution under the Organic Law on the Duties and Responsibilities of Leadership, was in breach of his right to be initially informed that he was being investigated under s 17(1) of the Organic Law on the Ombudsman Commission.
   
3. A declaration that the First Respondent, in breach of s 20(3) of the Organic Law on the Duties and Responsibilities of Leadership as well as in breach of the natural justice principles, had failed to furnish the Applicant/Plaintiff with all the necessary documentation and particulars relative to the allegations of misconduct to enable him to make adequate reply.
   
4. A declaration that the said referral was in breach of the Applicant’s rights under s 59 of the National Constitution in that in a letter dated 23rd August 1995 the Applicant was given to believe that the First Respondent had only intended to refer the Applicant to the Public
   
5. A declaration that the said referral was contrary to the principles of natural justice in that the First Respondent failed to set out in a full, fair and proper manner the Plaintiff’s defence or explanation of the allegations made against him.
   
6. A declaration that the said act of referral almost two years after the Applicant replied to certain charges laid by the First Respondent against him is in breach of the Applicant’s rights to a fair hearing within a reasonable time under s 37(3) of the National Constitution.
   
7. A declaration that the said act of referral almost two years after the Applicant replied to certain allegations made by the First Respondent is detrimental to good administration, particularly in view of the fact that the First Respondent waited until the Applicant became Governor of Enga Province under the new Organic Law on Provincial and Local Level Governments before making the said referral.
   
8. A declaration that the sum of the First Respondent’s failure to observe the rules of natural justice, its failure to follow the prescribed procedures under the Leadership legislation is evidence of real bias in the conduct of its duties.
   
9. An order that the First Respondent’s determination that the Applicant/Plaintiff is prima facie guilty of misconduct in office is invalid and that it be quashed.
   
10. An order that the said referral is invalid and that it be withdrawn.
    

The grounds for that relief are set out in the statement file in support of the application as follows:

4. The grounds on which relief is sought are as follows:-

(a) The investigative procedures applied by the First Respondent resulting in the decision to refer the Applicant/Plaintiff to the Public Prosecutor was wrong in law in that it was a harsh and oppressive act or an unlawful act within the meaning of s 41 of the National Constitution in that it was executed without due process of the law and based on a "draconian" or "KGB" style of investigation and prosecution.

(b) The actual investigation was wrong in law in that it was contrary to the provisions of s 17(1) of the Organic Law on the Ombudsman Commission (OLOC) in that the First Respondent did not inform the Applicant/Plaintiff of its intention to investigate the Applicant/Plaintiff prior to actually doing so.

(c) The decision was wrong in law in that it was contrary to the provisions of s 17(4) of the OLOC in that the First Respondent’s actions were likely to affect the Enga Interim Provincial Government and the Statutory Head of that Body (the Speaker) had not been given any opportunity to comment on the subject of the investigation before the Applicant/Plaintiff was referred to the Second Respondent.

(d) The decision to refer the Applicant to the Public Prosecutor was wrong in law in that it was contrary to the provisions of s 20(2) of the OLDRL in that the Applicant was not notified before referring him to the Public Prosecutor.

(e) The decision to refer the Applicant to the Public Prosecutor was contrary to the provisions of s 20(3) of the OLDRL in that the First Respondent failed to furnish the Plaintiff with all the necessary documentation and particulars relative to the allegations of misconduct to enable him to make adequate reply. "

Further grounds cited are that the delay in the referral some two years after he had made due reply was unfair and leads to suspicion of bias.

In the hearing of this application the grounds that were have been set out were traversed by Counsel for the Plaintiff and the contention made that the sum of these was sufficient to establish an arguable case that should be heard by way of review. He relied on the affidavit of the Plaintiff contending that he has not been given a full opportunity to be heard in terms of the material that should have been supplied to him as detailed to him in the decision of Karo v Ombudsman SCA 8 of 1988. It was also submitted that in its referral while the Ombudsman Commission did not, or might not have, set out, such defence as had already been forwarded to the Commission when he replied to the allegations in 1993. Of course as he has not yet been copied the documents supplied to the Public Prosecutor he was not able to say whether in fact his defence was forwarded or not.

Counsel for the Ombudsman Commission was given leave to intervene and argue that leave should not been granted on grounds of delay. It is unnecessary to detail the full extent of this submission. Suffice to say, the Commission’s contention is that the whole of the investigation process required of the Ombudsman Commission under the OLDRL have been followed. The Plaintiff was given an opportunity to be heard on the charges or allegations put to him by the Commission. He took the opportunity of reply to them without making complaint of lack of information or time. He has now been duly referred to the Public Prosecutor following notice of the Commissions intention to do so as required s 24 of the OLDRL.

Decision

There is no doubt in my mind that this application must be refused. In the decision of Nilkare v Ombudsman Commission N1334 there is a citation from Review of Administration Action (Law Book Co. 1987) where it is said:

"in order to obtain an appropriate remedy the right person must apply for an appropriate remedy against the right person at the right time, and the Court must persuaded to grant that remedy notwithstanding its discretionary powers to refuse appropriate relief on grounds personal to the applicant or on both considerations."

On the affidavit evidence supply by the Plaintiff himself there can be no doubt but that an investigation into the conduct of the Plaintiff was carried out by the Commission; that charges referred allegations misconduct were referred to him with a request for explanation. He duly responded to those allegations and following further considerations the Commission has-after giving him due notice of his intention to do so referred the allegations to the Public Prosecutor for his consideration as to whether prosecution should follow.

What the Plaintiff has in fact described, is the complete process required by the Organic law for an enquiry by the Ombudsman Commission. One which proceeded from inquiry to referral without the Plaintiff raising any issue of concern till now after the process is compete.

His complaint now of not being notified of an intended any way under s 17 of OLOC has no force. Such is not required. Nilkare’s case N1334 decided that. Again claim of prejudice by the Commission’s "delay" has no substance in law. The Commission determines its own procedures and there is no evidence of prejudice to the Plaintiff in this regard. While one of the Plaintiff grounds for relief was that the reply that he had supplied to the Commission was not also forwarded to the Public Prosecutor. It is plain that the Plaintiff is unaware of whether that is so or not. Certainly he admits no enquiry has been made to establish thus one way or another.

Under these circumstances there is no grounds upon which this Court should grant leave for review of the Commission decision to refer. The application of the Plaintiff is therefore, declined.

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Lawyer for the Plaintiff: Wal Lawyer
Lawyer for the Respondent: Ombudsman Commission