Pagen v Geno [2008] PGNC 252; N4031 (31 July 2008)

N4031

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 520 of 2006

BETWEEN

RICHARD PAGEN
Plaintiff

AND

ILA GENO, JOHN NERO AND PETER MASI
as Members of the OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
First Defendants

AND

RODERICK KAMBURI
Second Defendant

AND

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Defendant

Waigani: Injia CJ
2008: 12th June, 31st July

JUDICIAL REVIEW – Review of first defendant’s decision to appoint second defendant as deputy Director-Leadership – grounds of review and issues as set out in Amended Statement – Order 16 Rule 3 National Court Rules

JUDICIAL REVIEW - Whether the Commission’s decision made on 23rd March 2006 was contrary to “normal requirement process that requires candidates for positions recommended by the Human Resource Branch (Interview Panel - Whether the plaintiff was denied natural justice when the Commission failed to give reasons for its decision of 23rd March 2006 to the plaintiff - Whether the Commission’s decision of 23rd March 2006 was biased in that it was unduly influenced by Ombudsman John Nero

PRACTICE AND PROCEDURE - Ombudsman Commission has wide powers in appointment process and the HR Appointment Committee’s decision is only a recommendation – ground of breach of prescribed procedure is without merit – no statutory or constitutional law provision which imposes duty to observe natural justice – grounds of natural justice dismissed –no impartiality or issues of neutrality established – grounds of review pertaining to issue of bias dismissed - ss25 & 27 Organic Law on the Ombudsman Commission

Cases Cited:

Commission v Donohoe [1985] PNGLR 348,
Nilkare v Ombudsman Commission (1996) SC498
Ombudsman Commission v Peter Yama (2004) SC747

Counsel:

G. Manda, for the Plaintiffs
E Gaegaming, for the Second Respondents

31st July, 2008

1. INJIA, DCJ: This is an application for judicial review made under O16 of the National Court Rules. The plaintiff applies for a review of certain decision by the First Defendants made on 23rd March 2006 which is described as “to revert to their earlier decision of 16th January 2006 whereby they arbitrarily appoint the incumbent Roderick Kamburi (Second Defendant) without considering the recommendations of the Interview Panel that the Plaintiff was the highly recommended candidate for the position of Deputy Director – Leadership, without giving a reason for the decision.”

Grounds of review and issues

2. There are twenty (20) grounds of review set out in the Amended Statement which was filed under O 16 r3 on 5th September 2006. Many of the grounds (grounds No. 4(7) – (20) plead the factual basis of the application. These grounds on their own do not constitute grounds of review. The grounds are pleaded in par. 4(1) – (6). Grounds 4(7) and Ground 4(6) were abandoned at the hearing.

3. The grounds pursued at the hearing are 4(1), (3), (4), and (5), and they state as follows:

(1) That the said decision was bias having been unduly influenced by Ombudsman John Nero, resulting from the Plaintiff’s prior disharmonious working relation with Ombudsman Nero or there was perceived bias in the circumstances contrary to the principles in John Nilkare -v- Ombudsman Commission [1999] PNGLR 33 and accordingly such decision was null and void.

(3) A declaration that the said decision was reached ultra vires or in excess of discretion when the Defendants failed to give the reasons for their decision contrary to the principles in Lee & Song Timber (PNG) Co Ltd -v- Nathanael Burua (2003) N2404 and accordingly such decision is null and void.

(4) The decision made on or about 23rd March 2006 by the First Defendants to revert to their earlier decision of 16th January 2006 to arbitrarily appoint the incumbent Roderick Kamburi (Third Defendant) without consider the recommendations of the Interview Panel including that the Plaintiff was the highly recommended candidate for the position of Deputy Director – Leadership within the Commission was contrary to normal recruitment process that requires the commission Members to make appointments from candidates for positions recommended by the Human Resource Branch (Interview Panel).

(5) The said decision was bias having been unduly influenced by Ombudsman John Nero, resulting from the Plaintiff’s prior disharmonious working relation with Ombudsman Nero or there was perceived bias in the circumstances contrary to the principles in John Nilkare -v- Ombudsman Commission [1999] PNGLR 333 and accordingly such decision was null and void.

3. Mr Manda of counsel for the plaintiff identified three main issues which were raised by the grounds of appeal. These are:

(1) Whether the Commission’s decision made on 23rd March 2006 was contrary to “normal requirement process that requires candidates for positions recommended by the Human Resource Branch (Interview Panel) (Ground 4(4))”.

(2) Whether the plaintiff was denied natural justice when the Commission failed to give reasons for its decision of 23rd March 2006 to the plaintiff. (Ground 4(3)).

(3) Whether the Commission’s decision of 23rd March 2006 was biased in that it was unduly influenced by Ombudsman John Nero, resulting from the plaintiff’s prior disharmonious working relationship with Ombudsman Nero and accordingly null and void. (Ground 4(1) and 4(5)).

Evidence & Facts

4. The evidence consists of affidavits only. The plaintiff relies on the following affidavits:

- Exhibit “A” Plaintiff’s affidavit sworn on 06/07/06. (Review Book pages 10 – 176).

- Exhibit “B” Plaintiff’s affidavit sworn on 05/09/06. (Review Book pages 206 – 221).

- Exhibit “C” Plaintiff’s affidavit sworn on 20/08/07. (Review Book pages 403 – 422).

- Exhibit “D” Plaintiff’s affidavit sworn on 18/10/07. (Review Book pages 426 – 508).

- Exhibit “E” Plaintiff’s affidavit sworn on 06/11/07. (Review Book pages 531 – 534).

- Exhibit “F” Plaintiff’s affidavit sworn on 30/11/07. (Review Book pages 547 – 550).

5. The respondents rely on the following affidavits:-

- Exhibit “G” Affidavit of Ila Geno sworn on 11/04/06. (Review Book pages 23 – 261).

- Exhibit “H” Affidavit of John ToGuata sworn on 18/04/07. (Review Book pages 362 – 389).

- Exhibit “I” Affidavit of Tabita Suwae sworn on 26/04/07. (Review Book pages 390 – 394).

- Exhibit “J” Affidavit of John ToGuata sworn on 09/05/07. (Review Book pages 395 – 399).

- Exhibit “K” Affidavit of Ila Geno sworn on 01/11/07. (Review Book pages 513 – 530).

- Exhibit “L” Affidavit of Ila Geno sworn on 02/06/08.

6. The parties submitted a Statement of Agreed and Disputed Facts and Issues which is found in RB/543 – 546. By way of background information, I restate those agreed and disputed facts as follows:

A. AGREED FACTS:

(1) John Nero was appointed Ombudsman in May 2005 which created a permanent vacancy in the position of Deputy Director – Leadership and the vacancy was advertised externally calling for interested candidates to apply. The Plaintiff was then acting Deputy Director – Leadership during the vacancy.

(2) The Commission Recruitment Panel conducted interviews of short-listed candidates. From the many applicants, the Plaintiff was short listed for interview and a notice of interview was sent to the Plaintiff via an e-mail from Human Resource. The Plaintiff was one of the candidates interviewed on 2nd November 2005 by a panel of three, consisting Director – Operations, Mr John ToGuata, then Acting Secretary, Mr Samoa Kedea and Human Resource Manager, Mr Erik Kumassan. The Interview Panel eventually recommended the Plaintiff to be appointed or confirmed as Deputy Director – Leadership along with two other candidates namely Roderick Kamburi and Jack Penning.

(3) The Interview Panel had screened and gathered relevant information about each candidate who had been short-listed and interviewed regarding operational matters, management matters, the candidate’s health and physical being, the candidate’s disciplinary matter and characters. Throughout the interview and screening process, the Interview Panel did not put any serious question to the Plaintiff and the Plaintiff enjoyed a smooth interview with them. Following an intensive interview, the Interview Panel highly recommended the Plaintiff to be appointed to the vacant position of the Deputy Director – Leadership.

(4) Citing his reasons, the Plaintiff/Applicant appealed to the Commission minus Ombudsman Nero to reconsider its decision on 18th January 2006.

(5) In response to the Applicant’s Appeal Letter of 18th January 2006, the Counsel for the Commission requested the Applicant for evidence of allegations of bias against Ombudsman John Nero through an email on 24th January 2006.

(6) In response to the Counsel’s request, the Applicant provided the evidential material in support of his allegations under cover Minute of 24th January 2006 on the same day.

(7) Following the Applicant’s response to the Counsel’s request, the Commission reviewed their earlier decision and rescinded it on 3rd February 2006.

(8) The Applicant was still not satisfied with the Commission’s decision of 3rd February 2006 and lodged a further appeal including in respect of their decision not to deal with the allegation of bias against Ombudsman Nero on 23rd February 2006 asking the Commission to revisit their decision.

(9) The Commission considered the Applicant’s Second Appeal on 23rd March 2006 and decided to revert to their earlier decision of 16th January 2006 and advised for the applicant to pursue the matter out of the Commission if the Applicant wanted to do so which decision is being sought to be reviewed by way of the review.

(12) the Applicant wrote to the Commission on 31st March 2006 to furnish documents in relation to the issues mentioned above but have not responded favourably. A further follow up letter dated 1st May 2006 from the Applicant’s Lawyers was sent too but a response was not promptly provided.

(13) The Applicant’s Lawyers again gave a final notice for the Ombudsman on 1st June 2006 to provide documents relating to the appointment issue and the Commission not responded to it promptly as well.

B. DISPUTED FACTS:

(1) On 16th January 2006, the Commission had their meeting to consider and deliberate on the Interview Panel’s Submission with its recommendation on the position of the Deputy Director – Leadership. Regardless of the Interview Panel’s choice and its recommendation, the Senior Manager’s verbal presentation of credentials and legal advice to the contrary from Miss Tabita Suwae, Acting Deputy Counsel, the Commission did not consider and totally disregarded the Interview Panel’s Recommendation. Instead the MOC acted outside of the usual appointment process to arbitrarily hand pick and appoint Roderick Kamburi to the position.

(2) There was no other reason for this. It was because, Ombudsman Nero overly and unduly influenced the MOC Meeting to ensure the Plaintiff was not appointed to his (Mr Nero’s) former position.

(3) Ombudsman Nero interfered with the appointment process so as to deny the Plaintiff a well earned elevation in the Commission’s ranks in a deliberate attempt to get even with the Plaintiff for their past disharmonious working relation.

(4) Ombudsman Nero had a real conflict of interest and was bias and did not declare it when he took part in said decision-making.

(5) The Commission declined the Plaintiff’s appeal on 23rd March 2006 and gave no reason for so declining.

(6) The Applicant also lodged a complaint on 14th March 2006 against Ombudsman Nero regarding his conduct under Section 18 of the Organic Law on Duties and Responsibilities of Leadership for the part he played in denying the Applicant the said appointment. To date the Commission is yet to make a decision on it.

7. The appointment process for Senior Officers of OC is deposed to by Mr Geno as follows:

(12) In exercising its powers under Sections 25(1) and (2),a the Ombudsman Commission delegated the responsibility for recruitment to the Human Resources Manager and in the absence of the Commission’s own terms and conditions as required under Section 27(a) OLOC, procedures for recruitment of officers into the Service of the Ombudsman Commission are regulated by the Public Service General Order, in particular Orders No. 3 and No. 9.

(13) To commence any recruitment drive the following procedures apply:-

(a) As formal Commission approval is sought from the Commission before an advertisement for vacant position is placed;

(b) Advertisement is processed and placed either internally or externally in the open market and normally it is done through the printing media;

(c) Registering and acknowledging of letters;

(d) Screening and short listing process conducted by the Recruiting Division and referred to the Human Resources Unit to proceed with the interview;

(e) Interview of the short list candidates by the panel which comprises of the Human Resources Manager or his delegate, and two representatives (Divisional Head or delegate and a senior officer) from the Recruiting Division.

(f) Recruitment report and submission is provided by the selection committee to the Commission for appointment;

(g) The Chief Ombudsman calls a Commission meeting to consider the recommendation and a decision is made on the appointment of a successful candidate;

(h) Successful candidate is given an offer which response is required in a given period of usually three days;

(i) The successful candidate after medical and police clearance, and upon satisfying the requirement of Section 20(2)1 OLOC which requires the officer to take an oath or make an affirmation commences;

(j) In the event the offer is refused, the next candidate is made an offer;

(k) Should the Commission not able to find a suitable candidate, the process is restarted.

(14) An officer in the lower classification is given six (6) months probation and upon successful appraisal in accordance with the appraisal guideline, the officer is made permanent.

(15) The salary level of officers in the lower classification commence on broad banded salary level 1 up to salary level 2.7.

8. The plaintiff gives evidence of the same process but in more detail as follows:

Step One - The Unit or Branch with which a position is vacant advises the Human Resource that there is a vacancy existing in his or her respective Branch, Division or Unit.

Step Two - The Human Resource prepares necessary documents and submits it to the MOC seeking a decision to advertise.

Step Three - The MOC considers, deliberate and instruct the HR to advertise the position.

Step Four - The HR advertises the position either internally or externally for interested candidates to apply.

Step Five - HR receives all the applications and compiles them.

Step Six - HR conducts a preliminary screening and also does preliminary short-listing.

Step Seven - HR sends all applications received, plus its compilations, preliminary screening and short-listing to the Head of the Branch, Division or Unit where the vacancy exists.

Step Eight - Head of that Branch, Division or Unit screens and short-lists for Interviews.

Step Nine - The interview is conducted by a Panel of Interview consisting three or more.

Step Ten - The Panel members do their own assessment of the interview of each short-listed candidates, the prioritize in order of rating from first to last and make their recommendation for candidates to be appointed to the vacant position.

Step Eleven - The assessment with the recommendation is submitted to the Chairman of the Interview Panel.

Step Twelve - The Chairman compiles all the assessment from each Panel Members and makes the final submission to the MOC through the Secretary to the Commission.

Step Thirteen - The Secretary then lists the Submission as one of the Agenda Items for the MOC to consider, deliberate and make decision on it.

Step Fourteen - The Decision is conveyed to the successful appointee and the unsuccessful applicants. This completes the recruitment process in the Ombudsman Commission.

Determination of Disputed facts (Clause 7 B of Agreed and Disputed Facts items 1 – 6)

9. There are six (6) itemized disputed facts. On item 1, there is no dispute that the OC rejected the Interview Panel’s recommendation of the applicant for the position. The Commission acted within its powers because the appointment procedure did not require the Commission to accept the Interview Panel’s recommendation. The OC was given a discretion and it exercised the discretion to choose from the short-listed applicants. The second respondent was one of those short-listed applicants and he almost matched the applicant on the candidate assessment score tally in that he fell short by 1 point only. The OC cannot be said to have acted arbitrarily and hand-picked a candidate out of nowhere in those circumstances.

10. On item two (2), the OC’s Minutes of the meeting on 16th January 2006 shows that Mr Nero participated in the OC meeting which made the decision. The Minutes show all three members of the Commission spoke freely and Mr Nero and Ombudsman Masi comprised the majority decision. Mr Nero was against the applicant’s appointment and favored the Second Respondent. Mr Nero directly influenced the decision. The question arises as to whether Mr Nero had ulterior motive for not favoring the applicant for the position. This issue is related to item 3 & 4.

11. On item three (3), there is ample evidence that the working relations between Mr Nero and the applicant was disharmonious. There is evidence before me of the sour working relations between the applicant and Commissioner Nero. It is essentially the same evidence that was placed before the Commission in the first appeal. There is no suggestion of Commissioner Nero having any competing pecuniary or propriety interest with the applicant which might influence Mr Nero’s involvement in the Commission when it made its first decision. I have considered the evidence put before me by the applicant and responded to by Mr Nero and I do not find any aspect of their disharmonious relations which goes beyond the normal work differences and “work politics” in any service organization. Mr Nero himself was at one stage a career investigator with the OC and occupied the same office that was being applied for and at one stage the applicant acted on the position in Mr Nero’s absence. The applicant was a subordinate to Mr Nero. Later Mr Nero progressed in his career to become a Commissioner. In his new role as Commissioner, Mr Nero stood to be adored or criticized on his role in the appointment of his successor because of his knowledge of his subordinates who vied for the position. But he has a constitutional role to play in the Commission and that role should not be frustrated or hampered by inside job politics. In the absence of any evidence of influences prompted by pecuniary benefits received or promised and in the absence of any other similar financial or propriety interest which might seriously call into question Commissioner Nero’s impartiality or neutrality on the matter before the Commission, I am not prepared to find that Commissioner Nero was biased. I am satisfied that his involvement in the Commission’s first decision was not influenced by bias against the applicant.

12. On item four (4), it follows that any conflicts of a personal nature falling short of conflicts based on pecuniary and propriety interest, arising from disharmonious working relations between a superior and a subordinate in any working environment is normal. Given Mr Nero’s previous position, the Commission members would have knowledge of the working relations between the two men and such conflicts did not arise as an issue in the OC meeting of 16th January 2009. There was no need for Mr Nero to disclose his disharmonious working relations with the applicant and even if it was disclosed, it would not have been sufficient to disqualify Mr Nero from the OC meeting.

13. On item five (5), the Minutes of the OC meeting of 23 March 2009 shows the decision accompanied by reasons for decision were recorded and given in the meeting. I consider those reasons to be proper and sufficient and that the applicant was given the decision and reasons for decision. There is no evidence the same decision with reasons was given to the applicant. However somehow the applicant was able to access the Minutes of the Meeting because he cited the Minutes in his second letter of appeal dated 31st March 2006. The only rational inference is that the OC furnished the applicant the decision and reasons and adequate reasons for decision.

Legal Status of OC’s Recruitment/Appointment Process

14. The OC enjoys independence in appointment of its officers. Section 25 empowers the OC to appoint officers of the Service of the Commission. The terms and conditions of officers are fixed by OC in consultation with the Public Service Commission: see s 25 (3). There is in evidence before me four such determinations issued in 2005 which still apply today. The recruitment/appointment procedure set out above are not covered by any of these determinations.

15. The appointment process are administrative procedural guidelines made by the OC pursuant to its general powers of appointment under s 25 (1) & (2) and the “control and direction” powers over the Service of the Commission given by s.26. Such administrative acts such as staff restructure also come under the OC’s general powers under these provisions.

16. There is no dispute in this case on the OC’s power to promulgate these administrative guidelines on recruitment. In my view those are important procedural guidelines made by the OC itself to instill and enhance fairness, transparency and accountability to the appointment process. They are issued by a constitutional authority and the Commission itself is to respect its own procedural guidelines. Failure to comply with those guidelines may taint the appointment process and if the breach or procedure is grave enough to warrant a review of the exercise of administrative discretion on recruitment, a Court of law may do so, although the standard of scrutiny may not be the same as that applying to breach of constitutional regulations made under s 27, constitutional determinations under s 23 (3) of OLOC or breach of procedures prescribed by statutory or Constitutional laws.

Preliminary issues

17. Two preliminary issues arise which I wish to dispose off quickly. The first issue is a preliminary issue and is a jurisdictional issue. Ms Gaegaming of counsel for the OC submits the OC’s decision on recruitment of staff of the service does not come within the ambit of review in s 217 (6) (excess of jurisdiction) of the Constitution. The plaintiff has not relied on any constitutional provision or OLOC to show the OC exceeded its jurisdiction or powers. The applicant is merely aggrieved by an administrative decision made by the OC within the OC’s powers given by s 25 and s 27. The application has no basis and it should be dismissed.

18. The applicant’s counsel submits the application relates to an administrative decision made by a constitutional authority for failing to comply with its own procedural guidelines made under law and in breach of principles of natural justice. The application is properly founded in law and this Court has jurisdiction to conduct the review.

19. I accept the applicant’s submission. It is settled principle that an administrative decision of a public authority is amenable to judicial review. The nature of the decision sought to be reviewed in the present case is one that falls within the category of administrative decisions that are amenable to judicial review at common law as adopted and applied in this jurisdiction. Section 217 (6) of the Constitution imposes no restriction on decisions of the OC where its decisions are sought to be reviewed on grounds of breach of principles of natural justice: Commission v Donohoe [1985] PNGLR 348, Nilkare v Ombudsman Commission (1996) SC 498. In any event s 217 (6) applies to the OC’s performance of specific functions conferred by constitutional law such as enforcement of the Leadership Code. It has no application to review of administrative acts of the kind challenged in this case.

20. The second preliminary issue is also a jurisdictional issue. Ms Gaegaming submits that the nature of the applicant’s case is an appeal from the decision of OC. There is no provision in the OLOC or Contract of employment or determination on standard terms and conditions of employment offered by the OC for a person who is aggrieved by the decision of the OC on appointment of that person to a position in the Service. The OC went out of its way to accept an appeal lodged against the OC’s earlier decision and reached a decision after reconsidering the matter. The applicant cannot come to this Court and complain of the OCs decision in those circumstances. The Contract of Employment for the position in question does not contain an appeal clause. Therefore the application for judicial review has no proper legal basis and it should be dismissed.

21. Counsel for the respondent makes submissions similar to those made in relation to the first preliminary issue.

22. I accept the applicant’s submissions. The OC, in the performance of its broad supervisory powers over matters relating to the Service decided to deal and accept the applicant’s “appeal” or grievance over its earlier decision. The subsequent decision forms part and parcel of the OC’s earlier decision on the matter and the whole decision is amenable to judicial review.

First issue: Breach of prescribed procedure.

Whether the Commission’s decision made on 23rd March 2006 was contrary to “normal requirement process that requires candidates for positions recommended by the Human Resource Branch (Interview Panel) (Ground 4(4))”

23. This issue requires determination of questions of fact as to whether a breach of procedure occurred. There is no dispute that the OC rejected the recommendation of the internal HR appointment Committee of the applicant for the position and appointed Mr Kamburi. Nowhere in the appointment procedure is there a provision that the OC must appoint the person recommended by the committee. The committee’s recommendation remains as such and the OC is free to pick a candidate of its choice from the list of short-listed applicants who have been interviewed by the committee. Mr Kamburi was one such person who was interviewed and short - listed but not recommended by the Committee. In fact there was little difference in the score received by these two candidates in the interview– only one point difference.

24. The applicant’s submission is that the OC cannot act arbitrarily by rejecting a recommendation of a Committee constituted by senior officers of the Commission and without giving reasons for its decision. The respondents’ submission is that the Committee’s decision remained a recommendation only and the OC was free to choose any of the three candidates interviewed by the Committee. The OC appointed Mr Kamburi who was interviewed by the Committee and matched the applicant in all departments except that Mr Kamburi fell short of score by 1 point only.

25. Nowhere in the appointment procedure is there a provision that the OC must appoint the person recommended by the committee. The committee’s recommendation remains as such and the OC is free to pick a candidate of its choice from the list of short-listed applicants who have been interviewed by the committee. Mr Kamburi was one such person who was interviewed and short - listed but not recommended by the Committee. In fact there was little difference in the score received by these two candidates in the interview– only one point difference.

26. In my opinion, in view of the wide powers given to OC by s 25 and s 27 and the status of the Committee’s decision as simply a recommendation, I am not prepared to apply a high standard of scrutiny to the OC’s decision to reject the Committee’s recommendation. This ground of review is therefore without merit and I dismiss it.

Second issue: Denial of natural justice

Whether the plaintiff was denied natural justice when the Commission failed to give reasons for its decision of 23rd March 2006 to the plaintiff. (Ground 4(3)).

27. The ground which gives rise to this issue is founded on the common law principle of natural justice that an administrative authority which determines a civil right of a citizen must give the citizen reasons and good reasons for decision. This principle has been adopted and applied in various cases including decisions made by the Ombudsman Commission in leadership investigation matters: Ombudsman Commission v Peter Yama (2004) SC 747. The OC is under a duty to observe the principles of natural justice: Ombudsman Commission v Donohoe [1985] PNGLR 348, Nilkare v Ombudsman Commission (1996) SC 498.

28. Counsel for the applicant relies on various cases including those cited above and submits that the OC failed to give reasons for decision to the applicant when it rejected the Committee’s recommendation and appointed Mr Kamburi and also when it rejected and rescinded, it dismissed the applicant’s appeal and rescinded its second decision and affirmed its first decision. As a result, the applicant was denied natural justice and the third decision should be quashed for this reason.

29. Counsel for the respondent submits the Court should not hack back at the decision of 16th January 2006 because that decision is replaced by the second decision made on the applicant’s appeal from the first decision. In the alternative it is submitted the first decision was made following compliance with proper appointment procedures which did not require reasons for decision to be given to an applicant for the position. It is submitted the case of Ombudsman Commission v Peter Yama has no application to the present case because that was a case in which the OC was required to give reasons for decision in a referral of a leader for prosecution under the Leadership Code. In the present case, the applicant is not a leader being investigated and referred for prosecution under the Leadership Code.

30. During argument I raised with the applicant’s counsel as to the existence of any case authority in this country or in any common law jurisdiction in which it had been determined that an applicant for a public position is entitled to be given reasons for decision on appointment or non-appointment to the position. Counsel was unable to come up with any case law on this point.

31. This point is significant to the present case because to my knowledge, all the cases decided in this jurisdiction many of which the applicant has cited in his submissions, deal with disciplinary dismissal of civil servants or determination of applications over interest in land. The absence of any case authority on point tends to show that the common law will not impose any legal obligation on a public authority empowered to make decision on recruitment or appointment of an applicant for a public position. In the absence of any express statutory or constitutional law provision, the Court should be loath to promulgate a rule of the underlying law which requires reasons for decision on recruitment to be given to all or any of the applicants for the position. Such a law would place unnecessary burden on public employers and open up unnecessary Court review of what is purely an administrative decision which the public authority is empowered to make, taking into account the interest of the public employer.

32. In the present case, there is no statutory or constitutional law provision which imposes such a duty. The internal appointment procedure developed by the OC and followed in this case also imposes no such duty. The cases relied upon are not directly on point and they do not support the applicant’s contention. This Court is not asked to develop any rule of the underlying law on point by the applicant. Even if such were the applicant’s invitation, such a rule would be inappropriate and inapplicable to the circumstances of the country and not in the best interest of good public administration.

33. For these reasons, the grounds giving rise to the second issue is dismissed.

Third issue: Bias

Whether the Commission’s decision of 23rd March 2006 was biased in that it was unduly influenced by Ombudsman John Nero, resulting from the plaintiff’s prior disharmonious working relationship with Ombudsman Nero and accordingly null and void. (Ground 4(1) and 4(5)).

34. The grounds giving rise to this issue is founded on the principle of natural justice that a person who has an interest in a matter under consideration by a public authority should avoid placing himself or herself in a position of conflict of interest situation and being biased. The test for bias was laid down by the Supreme Court in John Mua Nilkare v Ombudsman Commission (1996) SC 498 as follows:

“The rule against bias is part of the principles of natural justice adopted under Const. SS. 59 and 60... The principles of natural justice apply to the Commission: Ombudsman Commission v Donohoe [1985] PNGLR 348...The whole concept of an action being not "biased" is entailed in the principle of fairness. The princof fairness in nain naturalice has a broad expanded meaning and the scope and ambit ofit of the principles are never limited... The Commission must bear id that it is a Constitutional office of the people and it m it must act fairly and objectively. In owords, the Commission sion not be biased. The test of "bias" to be applied should be, in my view, the "reasonable susp suspicion" test. Although this testbeen ed lied to judicial, quasi-judicial or administrnistrative trib ials in this country, the same test should be applied to tmmission. However, because of the administrative nature of the Commission’s funs functions, I would think that the standa "reasonable suspicion" cou" could be much lower than the relatively high standard applicable to judicial, quasi-judicial and administrative tribunals."

35. The principles on bias in Nilkare’s case apply to leadership code investigations and referral of leaders. It is the OC’s duty to act fairly in deciding on the short-listed applicants for the position.

36. In the first decision made on 16 January 2006, Ombudsman Nero was involved in the decision-making. An appeal was lodged on the basis that Mr Nero had bad working relations with the applicant and stood to be biased against the applicant. His involvement in the Commission influenced the Commission to make a decision against the applicant. The decision was tainted with bias and therefore, the Commission should rescind that decision and appoint the applicant. On 3rd February 2006, the Commission accepted the appeal and reconsidered its first decision. Commissioner Nero did not participate in this decision. Based on the material on bias provided by the applicant, the Commission rescinded its first decision and decided not to deal with the allegation of bias against Ombudsman Nero on 3rd February 2006 asking the Commission to revisit their decision.
This is the second decision. The applicant was not satisfied with this decision and lodged a second appeal. In the second appeal, the applicant challenged the Commission’s decision to revert to their earlier decision of 16th January 2006 and advised for the applicant to pursue the matter out of the Commission if the Applicant wanted to do so. On 23rd March 2006, the Commission met and deliberated on the applicant’s second appeal. Ombudsman Nero did not participate in the deliberations. The Commission decided to rescind its decision of 3rd February 2006 and affirmed its decision of 16th January 2006.

37. There is evidence before me of the sour working relations between the applicant and Commissioner Nero. It is essentially the same evidence that was placed before the Commission in the first appeal. There is no suggestion of Commissioner Nero having any competing pecuniary or propriety interest with the applicant which might influence Mr Nero’s involvement in the Commission when it made its first decision. I have considered the evidence put before me by the applicant and responded to by Mr Nero and I do not find any aspect of their disharmonious relations which goes beyond the normal work differences and "work politics" in any service organization. Mr Nero himself was at one stage a career investigator with the OC and occupied the same office that was being applied for and at one stage the applicant acted on the position in Mr Nero’s absence. The applicant was a subordinate to Mr Nero. Later Mr Nero progressed in his career to become a Commissioner. In his new role as Commissioner, Mr Nero stood to be adored or criticized on his role in the appointment of his successor because of his knowledge of his subordinates who vied for the position. But he has a constitutional role to play in the Commission and that role should not be frustrated or hampered by inside job politics. In the absence of any evidence of influences prompted by pecuniary benefits received or promised and in the absence any other similar financial or propriety interest which might seriously call into question Commissioner Nero’s impartiality or neutrality on the matter before the Commission, I am not prepared to find that Commissioner Nero was biased. I am satisfied that his involvement in the Commission’s first decision was not influenced by bias against the applicant. I am satisfied that the Commission correctly refused to find bias against Commissioner Nero and that it correctly rescinded its second decision.

38. For these reasons, I dismiss the grounds of review pertaining to this issue.

39. It follows that any suggestion that Mr Nero failed to disclose his disharmonious working relationship with the applicant is without merit.

Conclusion & Orders

40. Having reached the foregoing conclusions on the main issues which are determinative of the application, it is unnecessary to deal with the preliminary procedural issues raised such as an applicant’s application to amend the Statement in Support to plead appropriate relief against the Second Respondent and damages.

41. For these reasons, the application for judicial review is dismissed with costs to the respondents.

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Manda Lawyers: Lawyer for the Plaintiffs
PNG Legal Services Lawyers: Lawyers for the Second Defendant
No appearance for the First and Third Defendants