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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 212 OF 2003
BETWEEN:
THE BANK OF PAPUA NEW GUINEA
First Plaintiff
WILSON KAMIT
Second Plaintiff
MR MARSHALL COOKE Q.C. AND CYPRIAN WAROKRA
First Defendants
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant/Respondent
WAIGANI: KANDAKASI, J.
2003: 7th & 14th May
ADMINISTRATIVE LAW – Application for leave for judicial review of decision a decision yet to be made – No decision affecting a right or interest made – Opportunity to raise the same issues before the decision maker still existing – No case of decision maker being biased against plaintiff and the decision maker exceeding its jurisdiction made out – Judicial review not available as a remedy.
COMMISSION OF INQUIRY – Purpose of – Collect, collate, make findings of fact and make recommendations - Large amount of evidence called in relation to matters covered in terms of reference – No objection taken in relation to matters perceived to be outside the terms of reference and incriminating the plaintiff – Commission yet to making a finding against the plaintiff – Plaintiff’s claims speculative – Inappropriate to interfere with the Commission completing its process – S. 155(4) Constitution - Ss. 2 & 16 Commission of Inquiry Act (chp.).
COMMISSION OF INQUIRY – Terms of reference of – Large amount of evidence called in relation to matters covered in terms of reference – No objection taken in relation to matters perceived to be outside the terms of reference and incriminating the plaintiff – Plaintiff’s claims speculative – Inappropriate to interfere with the Commission completing its process.
COMMISSION OF INQUIRY – Counsel assisting a commission of inquiry – Role and duty of – Whether counsel assisting a commission of inquiry the commission for the purpose of any finding or likely finding by the Commission – Counsel assisting the Commission is not the Commission as he does not have the power to bind the Commission – He is only a counsel assisting the Commission to perform its powers and functions – s. Commission of Inquiry Act.
Facts:
By an instrument under the hand of the Prime Minister dated 17th October 2002, a Commission of Inquiry (The Commission) into the process leading to the sale of Papua New Guinea Banking Corporation to Bank of South Pacific Ltd, under the government’s privatisation process was established. The Commission has completed hearing all the evidence and entered the process of making its findings and recommendations. Meanwhile, counsel assisting the Commission wrote to various people including the Plaintiffs informing them of the possibility of the Commission making adverse findings against them and asked them to make submission against such findings.
The Plaintiffs applied to this Court for leave for a judicial review of the proceedings of the Commission on the allegations of apprehended bias and a failure to accord them procedural fairness. They then seek to prevent the Commission from proceeding further and or making adverse findings as against them unless the evidence on which the Commission may make such findings is first provided to them and they have been given reasonable opportunity to respond by giving evidence before the Commission.
Held:
Papua New Guinean Cases Cited:
Simon Ketan v. Lawyers Statutory Committee & Anor (28/09/01) N2290.
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s. 155(2)(b) (09/10/98) SC572.
Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors N2096.
Rimbink Pato v. Anthony Majin & others SC622.
Sir Julius Chan v. Ombudsman Commission N1738.
The Application of Christopher Haiveta (10/11/98) N1798.
Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329.
Philip Kian Seng Lee v. Honourable John Pundari (09/11/01) N2146.
The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417, Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122.
Gobe Hongu Limited v. National Executive Council & Ors (16/07/99) N1964.
Coecon Ltd v. The National Fisheries Authority of Papua New Guinea (28/02/02) N2182. PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (26/11/98) SC592.
Overseas Cases Cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.
Webb v. R [1994] HCA 30; [1994] 181 CLR 41.
Elkateb v Lawindi, per Giles CJ Comm D, Supreme Court of New South Wales, unreported, 8th May 1998.
Criminal Justice Commission v Connolly (5 August 1997, unreported).
Re Aplin Under 056 of the Supreme Court Rules, Ashley J, unreported, Supreme Court of Victoria, 9 June 2000.
Text Cited:
O’Donaghue, In Royal Commissions and Permanent Commissions of Inquiry, 2001
Counsel:
Mr. S. Nutely for the Plaintiffs
Mr. M. Varitimos and Mr. J Kumara for the Defendants
KANDAKASI J: This is an application for leave for judicial review of the proceedings of the Commission of Inquiry (Commission) into the process leading to the sale of Papua New Guinea Banking Corporation (PNBGC) to Bank of South Pacific Ltd (BSP) under the government’s privatization process. They also seek orders in terms of a declaration that the proceedings of the Commission are invalid in so far as they concern them on grounds of bias and for failure to accord them procedural fairness. They further seek to prohibit the Commission from proceeding further and making adverse findings as against them. Furthermore, they seek alternative orders requiring the Commission to conduct further hearings in relation to certain matters, counsel assisting the Commission had indicated, the Commission could make adverse findings against them.
Background & Facts
The background and facts of the application are simple. They are set out in the affidavit of Mr. Kamit sworn and filed on the 1st of May 2003 and the Affidavit of Annette Kora for the defendants. The evidence from this affidavit evidence is clear.
Following a public call for an inquiry into the process leading to the sale of the PNGBC to the BSP, the Prime Minister established the Commission by an instrument dated 17th of October 2002 to do just that. The Commission commenced its sitting on the 5th of December 2002 and completed the hearing of evidence early last month. The Commission called over 70 witnesses in addition to thousands of pages of documentary evidence.
At the conclusion of the hearing of evidence, counsel assisting the Commission, Mr. Varitimos, wrote to various people including the Plaintiffs, informing them of the possibility of the Commission making adverse findings against them and asked them to make submission against such findings, through letters dated 13th April 2003. That letter in relevant parts read:
"It is submitted, in my opinion, that it may possibly be open to the Chairman and Commissioner to make adverse findings relating to your clients on the topics and issues set out below. Ultimately, of course whether any adverse findings are made (and if so, what such findings may be) is a matter for them.
The Plaintiffs through their lawyer, Mr. Peter Lowing, took the view that the matters in which the Commission could make such findings was ultra vires the terms of the Commission’s reference. They also took the view that these issues were not drawn to their attention and that they were not given the opportunity to call evidence in their defence. They therefore asked counsel assisting the Commission to withdraw his letter. Counsel assisting the Commission did not accept the plaintiff’s arguments and refused to withdraw his letter but was prepared to amend it. This did not go well with the plaintiffs. They therefore, filed these proceedings for the kind of relief they seek.
The Commission is yet to make a finding and have that published. It is still receiving submissions from interested parties. At the end of that process, it will consider all of the evidence and the submissions and make its findings. There is no argument that the arguments put before me have not been put to the Commission at any stage. These issues are therefore, being raised for the first time before me.
The plaintiffs claim in the Statement filed in support of their application that, the Commission acted ultra vires its terms of reference and that they were denied procedural fairness. Then in the originating summons and notice of motion, they also allege that the Commission was bias. Mr. Nutely referred me to these comments from the Chairman to support his clients’ claim of bias:
"Yes, but if it could be considered improper for him to express the view about BSP bid when Mr Smith and Mr Beangke went to see, why would it not be equally considered improper for him to write the letter to Westpac saying, I will not approve your bid."
In response to that, counsel assisting the Commission drew the Court’s attention to an exchange between the Chairman of the Commission, the plaintiff’s counsel and Mr. Kamit and emphasised:
"THE CHAIRMAN: Governor, I may have been a bit testy with you this afternoon and I hope you do not think that, that is anything to do with you. It is probably more to do with counsel and me rather than with you. So, I am sorry, I apologize for being testy with you, I should not have been. You are excused now for the present time.
A: I appreciate your frankness and I enjoyed your questioning. Thank you very much."
Arguments
The plaintiffs argue for leave to be granted saying they have established an arguable case. They argue that the Commission acted outside its terms of reference when it forwarded the letter dated 13th April 2003. They also claim that the matters enumerate in that letter were matters not specifically raised and put to them. Consequently, they argue that the Commission denied them procedural fairness and that the Commission acted unreasonably in terms of the Wednesbury principle. They further argue that the Commission being biased against them actuated this.
Counsel for the defendants, Mr. Varitimos, with the support of Mr. Kumara of counsel for the State, presented a number of arguments against the plaintiff’s application, essentially arguing that judicial review is not available as a remedy to the plaintiffs. First he argues that the correct defendant should be the Commission constituted by its chairman and members. Secondly, the letter of 13th April 2003 was a letter written by the counsel assisting the Commission and not the Commission. Following on from that, the third argument he makes is that, no decision has yet been arrived at by the Commission that affects the rights or interests of the plaintiffs. Fourthly, because the Commission has not yet made a decision against the plaintiffs, there is still opportunity for the plaintiffs to make submissions of the kind presented before me, to the Commission. They have therefore not exhausted avenues or remedies that are still open to them. Finally, he argues that, the plaintiffs have not produced any evidence supporting their claim of bias and a denial of procedural fairness.
Additionally, he argues that the application has been delayed and that is detrimental to the plaintiffs. He submits that the Commission has now completed its hearing of evidence and has now advanced into the process of working on its findings. It has no power to re-open its hearing.
Issues
The arguments of the parties give rise to a number of issues. But the main ones are whether, judicial review as a remedy is available against a Commission of Inquiry and any of its decision? If it does exist then have the plaintiffs made out a case for leave to be granted in the present case?
I will first deal with the first issue in the context of the principles governing judicial review. I will then address the second issued in terms of trying to apply the principles to the case before me.
Whether Commission of Inquiry Decisions are
The basis on which judicial review is available as a remedy is well settled in our jurisdiction. As I noted in Simon Ketan v. Lawyers Statutory Committee & Anor (28/09/01) N2290, judicial review is about the scrutiny of administrative decisions by public or statutory authorities and or bodies that affects the rights or interests of a person. But that has to do with the process of arriving at a decision and not necessarily the correctness or otherwise of a decision itself. This is to be contrasted with an appeal against a decision of an inferior court or tribunal to a higher one. In such a case, it concerns the decision with the appeal authority having the power to either affirm, vary or even substitute the decision appeal against with its own. See Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s. 155(2)(b) (09/10/98) SC572 for some discussion on the difference between the two.
Then as I said in Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (25/5/01) N2096 at page 8:
"The objective, as can be seen from the authorities such as those mentioned above, for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the Court’s time. It also helps to remove uncertainties in the public offices and authorities have to, whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived.
Broadly, the matters relevant for consideration in the exercise of the Court’s discretion in determining an application for leave for judicial review, fall under a number of legal principles. These are locus standi, the decision sought to be reviewed has been made by a public body or authority, an arguable case on the merits, exhaustion of other remedies and making the application promptly.
I now ... add that a Court considering whether or not to grant leave for judicial review should consider whether the case or the subject is one in which the courts can enter into to grant leave and then review the alleged decision. That in my view falls within the context of the well accepted principle of an applicant for leave for judicial review needs to prove or demonstrate an arguable case for judicial review".
My judgement in that case went to the Supreme Court on appeal. I am informed that the appeal was upheld particularly in relation to the application to the principles to the case. The Supreme Court appears to have found that I had gone more into the merits of the case to determine whether or not an arguable case was established. The Supreme Court is yet to publish its reasons and I wait to be enlightened. Meanwhile, I note that the subsequent review of the decision, the subject of the review application, eventually dismissed the application on the same reasons I had advanced in my decision.
Thus, the principles governing judicial review as stated in that case remain good. I followed them in my subsequent judgement in Simon Ketan v. Lawyers Statutory Committee (supra). That was in the context of an application to review a decision by the defendants to investigation into the conduct of the plaintiff in relation to the NPF Commission of Inquiry for the purposes of determining whether or not to charge Mr. Ketan under the Lawyers Act. I dismissed the application as being premature as no decision affecting his rights or interest was made. In any case, I found that he still had the opportunity to defend himself, if he was eventually charged.
In so doing, I had regard to the Supreme Court judgement in Rimbink Pato v. Anthony Majin & Ors (30/04/99) SC622. The Court in that case had before it a case of an interim junction. Mr. Pato obtained it against the Police Force from carrying out their constitutional duties of conducting investigations into alleged criminal conducts with a view to laying charges if the investigations disclosed sufficient evidence to sustain any charge. The injunction was subsequently lifted on the application of the respondents and Mr. Pato appealed against the lifting of the injunction. The Supreme Court at page 5 said:
"We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to s.57 of the Constitution. We can not see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.
Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy, he has the right to sue and issue proceedings for defamation under the Defamation Act."
I also had regard to the judgement in Sir Julius Chan v. The Ombudsman Commission (15/07/98) N1738, where the National Court declined to grant leave for judicial review of investigations by the Ombudsman into possible misconduct in office by leaders involved in the Cairns Conservatory deal.
It is clear from this then that, in order for a person to claim the right to a judicial review five basic elements must be first meet even before there is a consideration of an application for leave for judicial review. These are:
These are in addition to meeting the other requirements for leave for judicial review such as, making the application without delay, establishing an arguable case and no reasonable tribunal would have arrived at the decision, the subject of the application for leave.
In the present case, the Commission is an authority established under the Commission of Inquiry Act (Chp. 31) as amended. Section 2 of the Act empowers the Prime Minister to appoint a Commission of Inquiry specifying the terms and conditions of which it is appointed including its terms of reference. Once so appointed, a Commission of Inquiry has such powers as are vested in it by the Act. It has privileges and protections similar to that of a judge of the National Court (s.16). No provision is however, made in the Act as to the right of appeal or review against a decision or finding of a commission of inquiry.
It is clear however, that a Commission of Inquiry is a public authority established under a national legislation performing a public task under its given terms of reference. But its task is restricted to collating evidence in relation to the matters that it is tasked to inquire into and make findings of the relevant facts and make recommendations. It does not have the power to make a decision that immediately affects the rights and interest of persons that might be covered in its finds and or recommendation. Such obligations are left to the relevant authorities that do have the power to make the decisions. This is demonstrated in the recently concluded inquiry into the affairs of the National Provident Fund. That commission made the relevant findings of fact and made certain recommendations to the persons who have to take the appropriate steps such as the Police to appropriately deal with those implicated of a wrong doing. The police are carrying out their own investigations and if satisfied that a criminal offence has been committed, those responsible will be charged. Once charged, those charged will have the full protection of the law in accordance with the dictates of the Constitution. It is therefore, doubtful as to whether judicial review is available to review the findings and recommendations of a commission of inquiry and therefore its processes before that.
Justice Woods had the opportunity to consider the issue in The Application of Christopher Haiveta (10/11/98) N1798. This was in relation to the second report of the Sandline Commission of Inquiry. His Honour expressed a view similar to the one I have just expressed. His Honour then noted that, the applicant was given the opportunity to assist the inquiry but he refused to do that. Taking these factors into account, His Honour declined to grant leave.
There is no other case on point. Neither counsel drew my attention to any case on point. My limited research is not able to produce any other case. It was incumbent upon the plaintiffs to demonstrate to the satisfaction of this Court that judicial review is a remedy that is available to them. They tried to do that by drawing my attention to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at pp. 228 et seq, Lord Greene MR. This authority is in relation to cases in which judicial review is clearly available as a remedy. It does not concern a case of review of the decision or the proceedings of a commission of inquiry. I therefore find this case is of no assistance to the plaintiffs on the first issue. It therefore seems to me that judicial review is not available to review the findings of a commission of inquiry. This is mainly for the reason that a commission of inquiry neither has the power nor can it make a decision that in fact displaces or otherwise that immediately affects the rights and or interest of a person. It is akin to a police conducting investigations as represented by the Rimbink Pato case and a lawful authority such as that represented by the Simon Ketan case, conducting investigations to established the facts in relation to a particular issue of concern to the public. The aim here is to establish the facts and if any wrongdoing is disclosed appropriate remedial action could be recommended. The actions recommended may or may not be taken by those who have the power to take them but not the commission of inquiry. Of course, the full protection of the law, including the presumption of innocence in the case of a criminal charge are still intact and could be taken advantage of by those implicated, if and when the recommended action is taken against them.
I do note at the same however that, a commission of inquiry may make decisions or take steps that might affect the rights and interests of some people. This might be in relation to its process and the way in which it may wish to receive evidence and deal with persons who might be implicated or those that might be featured adversely in its findings of fact. To that extent a commission of inquiry may have the power to make decisions that might and can affect the rights and interest of persons both natural and legal only to the extent of raising a possible case of some wrong doing without extinguishing the person concern’s right or interest. Only to that extent therefore, judicial review may be available to review a decision of a commission of inquiry. Accordingly, it may be subject to the supervisory powers of the National Court by virtue of s. 155(3) of the Constitution.
But I quickly note that the cases on this provision of the Constitution such as Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329 at 337 only concern purely administrative decisions. The failure of the plaintiffs to demonstrate that judicial review is available to review the proceedings of a commission of inquiry which is not necessarily an administrative process or a judicial process leaves me with doubt as to whether judicial review is available.
Whether a case for grant of leave has been made out?
Assuming judicial review is available as a remedy to the plaintiffs, I now give consideration to the question of, has the plaintiff made a case for leave for judicial review? This question can be answered in terms of considering whether the elements or factors I earlier stated, based on the relevant case authorities, exist or have been met in this case.
There appears to be no issue on the fourth and fifth elements as to the need for a public or statutory authority or a body to make the decision sought to be reviewed and the application concerns the process, leading to the decision under consideration and not the decision itself. I will therefore, take it that these factors exist in favour of the plaintiffs.
Of the elements remaining, the first consideration I give is to the question of whether there is a decision immediately affecting the rights or interests of the plaintiffs? The plaintiffs have not pointed me to any decision of the Commission that immediately affects their rights or interest. What we do have is a letter from the counsel assisting the Commission inviting the plaintiffs to address in their submissions to the Commission areas in which the counsel assisting the Commission feels the Commission could make adverse findings against them.
Counsel assisting the Commission is not the Commission. By the same token, one member of the Commission is not the Commission but all the three Commissioners with the Chairman sitting as one together constitute the Commission. Counsel assisting the Commission is quite a distance away from being considered as the Commission. His job is only to assist the Commission to perform its task. He could offer advice and say things both inside and outside the Commission. When he does that, he is not representing the Commission unless specifically authorized and could not certainly bind the Commission. The Commission is the ultimate, it hears all evidence and receives submissions thereupon and has the power to come to a decision independently of what the counsel assisting it might say.
Given this, I am of the view that, it is a misconception for the plaintiffs to argue that the letter dated 13th April 2003 from the counsel assisting the Commission is a decision of the Commission. Even if it was for argument sake a letter written by the Commission, it can hardly be regarded as a decision. It is merely a letter inviting submissions on a number of topics in which the Commission could make adverse findings against the plaintiffs. It is similar, in my view, to a Court asking a party to make submissions as to why a possible finding or a decision could not be arrived at against it. This is in effect a grant of one’s right to be heard before a decision on any issue is made. I can not see anything wrong with this.
The next consideration I give to is to the question of, if the Commission did make the kind of findings or said it would (which it has not), did it leave the plaintiff with no right or any opportunity to be heard in their defence before making such a finding? Included in this question is the issue of whether the plaintiffs have exhausted all available remedies before applying for leave for judicial review? There is no dispute that the Commission is yet to collate all the evidence it has heard and collected. There is also no dispute that the Commission is yet to make findings of fact based on the evidence it has heard and collect and then make recommendations to the government of the day. Further, the opportunity for interested parties to making submissions to the Commission in relation to what its findings should be is still open and no one even the plaintiffs has yet been shut out from presenting submissions before the Commission.
Moreover, there is no certainty that the Commission will make findings in terms of what the counsel assisting the Commission has set out in his letter of 13th April 2003. Even if it does make such findings, that will not be the end of the matter. The plaintiffs would still have the opportunity to challenge the findings if they have a good basis for it and would still have the opportunity to defend any action or step that may be taken as a result of any findings or recommendations of the Commission. All of these opportunities are still in tact.
It is settled law that, judicial review is the last avenue or last resort only. The law requires all available opportunity to be exhausted before one could resolve to judicial review. I noted this in Philip Kian Seng Lee v. Honourable John Pundari (09/11/01) N2146, where I observed that this is a cardinal requirement in the sphere of judicial review. In so doing I had regard to the Supreme Court decision in The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417, per Kidu CJ. and Woods, which was followed in Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122. At the same time I noted that this requirement is subject to an applicant showing that exceptional circumstances exist warranting judicial review as opposed to exhausting an available remedy. That was based on the same authorities.
In the present case, the plaintiffs simply argued that there is no other remedy available to them to resort to. Given this argument, the plaintiffs do not argue for the application of the exception to the rule to exhaust all available remedies before resorting to an application for leave for judicial review. So it is not necessary for me to consider this part of the rule. In any case, I can not see why or how this could be a case coming within the exception. In the end I find that the plaintiffs have a whole rage of remedies still available to them. This starts with submissions before the Commission and ending say with an action for defamation if the Commission makes any findings of fact without any factual basis.
These factors in my view are sufficient to deny the plaintiffs the leave they seek. But that is not the end of the matter - there is a further reason to do that. This goes to the need for them to establish an arguable case.
Arguable Case
The plaintiffs claim that the Commission denied them procedural fairness because the Commission was biased against them. This begs the question whether the plaintiffs have demonstrated a prima facie case of procedural unfairness and a departure from its terms of reference because of the Commission’s bias against them?
There is no contest by the plaintiffs in relation to the defendants’ contention that a substantial amount of witnesses were called and the Commission received a large volume of documentary evidence. A substantial part of the evidence came from the plaintiffs. They took no objection to any of the evidence being admitted. From the parts of the extracts of the proceedings that is before me, it is clear that the plaintiffs did cross-examine some of the witnesses and did participate in the Commission’s hearings. They therefore, appear to have been given the opportunity to cross-examine and call evidence in their defence. There is neither any evidence nor is there any suggestion by the plaintiffs that they were not given the opportunity by the Commission to call and produce evidence before the Commission, evidence they consider relevant and going to their defence. They have not pointed to any part of the proceedings of the Commission that evidences a denial of any such right of the plaintiffs.
The only and main arguments of the plaintiffs is that, the Commission did not raise specifically with them any of the matters covered in the counsel assisting the Commissions letter of 13th April 2003. Counsel assisting the Commission says these matters were covered in the course of the hearing and the plaintiffs had the opportunity to cross-examine and call evidence in their defence. Counsel for the Commission further argues that these issues were well within the terms of the Commission’s terms of reference and were issues covered in the hearing. As noted, from parts of the extracts of the proceedings before Commission now in evidence before me, there is evidence of the plaintiffs cross-examining witness before Commission. It therefore seems the plaintiffs were given the opportunity to object to evidence, cross-examine witnesses called by the Commission and other parties and call their own witnesses in their defence. I therefore find that the argument based on a failure to accord the plaintiffs procedural fairness and the Commission departing from its terms of reference can not be sustained on the evidence before me.
With regard to the issue of bias, the plaintiffs have not produced any evidence of actual bias. So the claim is only an apprehended one. This is raised by reference to what was said by the Commission particularly by the Chairman of the Commission. The particular provision that was drawn to my attention once again reads:
"Yes, but if it could be considered improper for him to express the view about BSP bid when Mr Smith and Mr Beangke went to see, why would it not be equally considered improper for him to write the letter to Westpac saying, I will not approve your bid."
I accept Mr. Varitimos’ submission that, this statement must be viewed in its context in order to determine whether this amounts to an indication of bias against the plaintiffs as claimed. The context in which the Chairman of the Commission said what is quoted of him makes it clear that there was a discussion or debate over what Mr. Kamit did in his capacity as governor of the Central Bank. The interesting part of the exchange between, the plaintiffs’ lawyer, Mr. Lowing, the Chairman of the Commission and Mr. Kamit is in Mr. Varitimos’s submission in these terms quoting from page 6964 of the transcript after raising certain questions with Mr. Littlemore QC, counsel of the plaintiffs:
"THE CHAIRMAN: Governor, I may have been a bit testy with you this afternoon and I hope you do not think that, that is anything to do with you. It is probably more to do with me and counsel rather than with you. So, I am sorry, I apologise for being testy with you, I should not have been. You are excused now for the present time.
A: I appreciate your frankness and I enjoy your questioning. Thank you very much."
If anything, it is clear that, Mr. Kamit enjoyed the Chairman’s questions, which he considered was a demonstration of frankness on the part of the Chairman of the Commission. There is no expression of disappointment and a feeling of being put under threat or the Commission being biased against the plaintiffs.
The part of the exchange cited by the plaintiff does not have any direct appearance of bias. Instead what appears to have been put forward by the Chairman is something the Courts are well known for. Often times, questions would be framed in the way the Chairman put to the plaintiffs’ lawyers in order to get the opposing view. This is indeed a practical application and according of a person or a party the right to be heard before a decision on a matter that might concern that party. Putting questions in these terms do not amount to any form of bias in the slightest, in my view, although it might appear to create an impression that the other side of the argument has been accepted.
There is no local authority dealing with the issue of bias in the context of a commission of inquiry. But the law is clear on the issue in relation to an allegation of bias against a judge for the purposes of getting him to disqualify. There are number of cases on point. These are for example Gobe Hongu Limited v. National Executive Council & Ors (16/07/99) N1964; which I followed in Coecon Ltd v. The National Fisheries Authority of Papua New Guinea (28/02/02) N2182 and the Supreme Court decision in PNG Pipes Pty Ltd & Sankaran Venugopal v. Mujo Sefa & 2 Ors., (26/11/98) SC592.
These and other authorities say that the test of whether there is a reasonable basis to claim bias is whether a fair-minded objective lay observer would have a real likelihood of suspecting bias against the tribunal or a judge.
These authorities also say that a judge may disqualify himself in circumstances where a fair-minded, lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. This is based on the case of Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.
They further state that a judge should disqualify himself on grounds of possible bias in any one or more of a number of principles. Firstly, where it is demonstrated that he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including statements, whether such conduct is in the course of, or inside the proceedings he has demonstrated a case of bias toward or against one of the parties. Thirdly, where the judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case. Finally, there would be a possible case of apprehension of bias by extraneous information, where for example the judge had presided over an earlier case or he has had some knowledge of prejudicial and admissible facts. This follows overseas authorities like Webb v. R [1994] HCA 30; [1994] 181 CLR 41.
The authorities also emphasis the need to maintain the integrity of the judicial process and the judges that sit in judgement. It is therefore important that a judge does not too readily disqualify on allegation of bias unless a clear case of bias is made out in terms of the above principles.
Specifically, concerning commissions of inquiry, authoritative material outside the jurisdiction appears to state the position in similar terms. Counsel for the defendants referred me to the following passage from O’Donaghue, In Royal Commissions and Permanent Commissions of Inquiry, 2001, at pages 147-148. This passage is in the context of bias raised by reason of pre-judgement. After stating the test in terms of the test adopted and applied by the Courts in PNG, the learned author states:
"In the context of investigative commissions the courts have recognised that the operation of the rule against bias is limited, because commissions necessarily have suspicions before they utilize their coercive powers. Indeed, in some cases it is a precondition of the exercise of a power that such a suspicion exist: ... There is nothing objectionable in the formation of suspicions, provided they do not amount to prejudgement. For suspicions to constitute impermissible prejudgement:
what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
The High Court is increasingly emphasizing that the rules against bias, which developed in relation to judicial decision-making, should
not be unthinkingly applied in relation to administrative investigations or decisions. Thus, as the Full Court of the Supreme Court
of South Australia observed, the rule against bias will not be strictly applied in relation to commissions because a commission hearing
‘cannot result in any determination or rights or of legal liability or any resolution of the issues. It is purely investigatory
in character. There is no question of the investigators being judges in their own cause.’
Similarly, as the Full Court of the Supreme Court of Tasmania observed in relation to a Royal Commission:
The fair-minded person would not be quick to suspect bias if the Commissioner intervened in the cross-examination of certain witnesses in a robust way and on occasions to an extend in excess of that expected of a judicial officer. Similarly, the fair-minded observer would not be quick to suspect bias upon learning that the Commissioner was, in general terms, directing counsel assisting to pursue certain lines of inquiry nor even if he learnt that the Commissioner, as his inquiry progressed, began to entertain certain tentative views about key witnesses. The Commissioner’s duty to inquire as well as to report and recommend is a factor which the fair-minded bystander will have to the forefront of his or her mind".
Counsel for the defendants drew my attention to a number of Australian case namely, Elkateb v Lawindi, per Giles CJ Comm D, Supreme Court of New South Wales, unreported, 8th May 1998; Criminal Justice commission v Connolly (5 August 1997, unreported); In Re Aplin Under 056 of the Supreme Court Rules, Ashley J, unreported, Supreme Court of Victoria, 9 June 2000, and then submits that a number of principles emerge. These are:
These are based on proper principles and they do make sense given the nature of commissions of inquiry as describe by the authorities cited. I find persuasion in this submission and there being no argument against the soundness of these principles, I accept them as relevant and appropriate to the circumstances of our country.
Applying these principles to the case before me, I find that the allegation of bias has not been firmly established. Instead it has been left at best only as a speculation taking what has been said by the Chairman out of its proper context without demonstrating any real pre-judgement or partiality. The concern is rather of a decision or finding adverse to the plaintiffs, without any evidence of any real pre-judgement or partiality of the Commission against the plaintiffs.
The Commission by its very establishment and nature inquisitorial in nature with extensive powers to compel the giving of evidence and the production of documents by witnesses it considers relevant and appropriate. The Commissioners are therefore expected to play a far more active role in ascertaining facts then a Court would. It is therefore appropriate to allow for a wide range of expression and conduct of the Commissioners and one should not interpret robust conduct as bias.
What matters in this case, as in any other case is not the opinion of the plaintiffs or the parties but rather that of the hypothetical observer or "reasonable bystander". It is usual, for parties not to be happy with the remarks or conduct of judges and commissioners in the course of a hearing with regard to what they might say or do but that does not mean bias has been established. I can not see what was it that was most unusual and unbecoming of a judge or a commission of inquiry that is recorded and complained of in the extract of the transcript that is relied on by the plaintiffs. No fair-minded, lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the commissions might not bring an impartial and unprejudiced mind against the plaintiff in the commission’s endeavour to establish what transpired in the process leading to the sale of PNGBC to the Bank of South Pacific Ltd. It would be beyond any human ability to expect the commissioners, who are human, despite their professional training that they are likely to show varying degrees of a range of emotions. If they do show any such emotion, as are often shown by judges and other judicial officials, that does not necessarily amount to any bias. The record of what the Chairman of the Commission said, does not in my view disclose an emotional outburst or something like that. Instead, as already noted it was an appropriate response in an issue being debated openly and frankly.
In these circumstances, I find that the claim of bias has no basis on the evidence before me. The consequence of this finding and the earlier finding in relation to the claim of not being granted procedural fairness, I am not persuaded that the plaintiffs have established an arguable case warranting a grant of leave for judicial review.
Having regard to all of the above, I find that the plaintiffs have not made out a case for grant of leave for review of a decision
of the Commission. In view of this, it is not necessary for me to consider the other issues raised in this case. Ultimately therefore,
I decline the leave sought and order the plaintiffs’ action be dismissed with costs to the defendants.
_______________________________________________________________________
Lawyers for the Plaintiffs: Peter Allan Lowing
Lawyers for the Defendants: Elemi & Kikira Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/2003/127.html