Somare v Geno [2008] PGNC 98; N3399 (16 June 2008)

N3399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 246 OF 2008

BETWEEN:

GRAND CHIEF SIR MICHAEL SOMARE
Plaintiff

AND:

ILA GENO, JOHN NERO, PHOEBE SANGETARI
as THE OMBUDSMAN COMMISSIONERS
and THE OMBUDSMAN COMMISSION

Defendants

Waigani: Hartshorn, J.
2008: 22 May, 16 June

SUMMONS TO PRODUCE – Ombudsman Commission – Confidentiality and Privilege -Documents in possession of Third Party

Facts:
The Plaintiff issued a summons for the production of certain documents to certain members of the Ombudsman Appointments Committee (OAC). An application was made on behalf of Sir Mari Kapi, one of the members summonsed, for the summons for production to be set aside. The Defendants also objected to the summons for production.

Held:
As the Defendants would not have had to comply with a summons for production if issued to them for the documents listed in the summons issued to members of the OAC and as there is no evidence of any authorisation by the Defendants to the OAC to have or produce those documents, the summons for production to the members of the OAC dated 19th May 2008 is set aside.

Cases cited:

Papua New Guinea Cases
Ombudsman Commission of Papua New Guinea v. Graham Ellis [1992] PNGLR 437

Overseas Cases:
Marcel and Ors v. Commissioner of Police and Ors [1992] 1 All ER 72
Morris v. Director of the Serious Fraud Office [1993] Ch 372
Sodden v. Burns [1996] 3 All ER 967
Ingersoll-Rand (Australia) Ltd v. Industrial Rollformers P/L & Anor [2000] NSWSC 712.

Counsel:
Mr. K. Kua, for the Plaintiff
Mr. C. Mende, for the Defendants
Mr. L. Kandi, for Sir Mari Kapi

16 June, 2008

1. HARTSHORN, J: On 22 May, 2008, the hearing of the Plaintiff's notice of motion filed on 5th May 2008 and the Defendants’ motion filed on 9th May 2008 returned before this court.

2. A summons for production filed on 19th May 2008 issued at the request of the Plaintiff to certain members of the Ombudsman Appointments Committee (OAC) was returnable on 22 May 2008.

3. An application was made on behalf of Sir Mari Kapi, one of the members summonsed, for the summons for production to be set aside. The Defendants also objected to the summons for production.

4. Objection is taken under Order 11 Rule 7 National Court Rules. This allows the person to whom the summons is issued to object but it does not refer to the parties to proceedings. No objection was taken to the Defendants ability to object to the summons. This point will be covered later. In any event, the submissions made on behalf of the Defendants were adopted by Counsel on behalf of Sir Mari Kapi.

5. The grounds for the objections of the Defendants, which were adopted by Counsel for Sir Mari Kapi are that:

a) the documents described in the schedule to the summons for production relate to the processes and procedures of the Ombudsman Commission. These are subject to the privacy and confidentiality provisions under the Organic Law on the Ombudsman Commission (Ombudsman Law).

b) the summons for production is very broad. It does not specify with the required particularity what is to be produced and as such the Plaintiff is embarking upon a fishing expedition.

c) if the members of the OAC who have been summonsed have the documents described in the schedule to the summons for production, then they have them unlawfully as the Ombudsman Commission has not authorised anyone to act on its behalf or anyone to be furnished with any of the documents described.

6. In addition to adopting the grounds for objection that were submitted on behalf of the Defendants, Counsel for Sir Mari Kapi also objected on the grounds that:

a) the Chairman of the OAC is in fact the Plaintiff and that if there were any such documents described in the summons for production in the possession of the OAC, the Plaintiff in his capacity as Chairman would be aware of such documentation and would have them in his custody and control. Consequently the summons for production was an abuse of process.

b) the OAC is only responsible for appointments. The documents described in the summons for production relate to the processes and procedures of the Ombudsman Commission and as such are subject to the privacy and confidentiality provisions of the Ombudsman Law.

7. Counsel for the Plaintiff submitted that:

a) section 35(2) Ombudsman Law which provides that a person shall not be called to give evidence in any court, only applies to a member, officer or employee of the Ombudsman Commission. The members of the OAC are not in any of those categories and are therefore liable to be issued with a summons for production.

b) the description of documents in the schedule to the summons for production is very specific in nature and the issuing of the summons was not a fishing expedition.

c) as to the documents described in the schedule to the summons for production being in the possession of the OAC unlawfully, any such documents in the possession of the OAC now belong to the OAC and specifically the letter described in paragraph 1(3) of the schedule to the summons for production. The Defendants cannot make an argument on behalf of the new owner of the documents.

d) if the Plaintiff as Chairman of the OAC has received the documents described in the schedule to the summons for production, he has done so in his capacity as Chairman of the OAC and it would not be his decision alone whether to provide the documents, but a majority decision of the OAC.

Summons for production

8. The schedule to the summons for production is as follows:

"1. All documents relevant to the matters raised in the Originating Summons herein including all correspondences (sic) between the Defendants and their servants and agents touching on:

(1) the matter of the procedures adopted by the Defendants in their determination of the Plaintiff's application under section 19 of the Organic Law of the Ombudsman Commission for the appointment of an Independent Investigator.

(2) The matter of the investigations and the procedures deployed by the Defendants into the Plaintiff in respect of the non lodgement, late lodgement and incomplete lodgement of the Plaintiff's Statements of Income covering the periods 1988 to 2006, inclusive.

(3) Letter from the Defendants by their servant or agent Roderick Kamburi, Director of Leadership Division to the Chairman of the Ombudsman's Appointments Committee dated 3 March 2008, and

(4) Any other correspondences (sic) between the Defendants and the Ombudsman's Appointment Committee related to the matters raised in paragraphs 1(1), (2) and (3) of this Schedule."

9. The meaning of paragraph 1 of the schedule appears to be "All documents relevant to the matters raised in the Originating Summons herein ......touching on:....." and then there are the 4 numbered subparagraphs describing in more detail the subjects upon which the documents are to ‘touch on’.

10. On my reading of paragraph 1, as the documents referred to in the first line of paragraph 1 are to ‘touch on’ the 4 descriptions in the subparagraphs, those 4 descriptions are not the specific documents to be produced. The 4 subparagraphs merely describe the subjects upon which the documents to be produced are to ‘touch on’.

11. It was apparent from the submissions of Counsel for the Plaintiff that the 4 descriptions in the subparagraphs are meant to be the specific documents to be produced, but in my view, that is not how paragraph 1 reads when read correctly.

12. Be that as it may, it is apparent that the matters in the Originating Summons all concern the purported exercise of the functions of the Defendants in their investigation of the Plaintiff.

Privacy and confidentiality

13. I will consider this ground of objection first.

14. The Defendants and Sir Mari Kapi submit that the documents described in the summons for production relate to the processes and procedures of the Ombudsman Commission. If the OAC has those documents, the Ombudsman Commission has not authorised this. The OAC should therefore not be required to produce the documents.

15. The OAC appoints members of the Ombudsman Commission pursuant to s. 217(2) Constitution. There is no evidence that the OAC was ever authorised by the Ombudsman Commission to exercise any of the functions of the Defendants in the conduct of the investigation of the Plaintiff.

16. If the OAC does have any documents relevant to the purported exercise of the functions of the Defendants in their investigation of the Plaintiff, then their possession of such documents is not authorised.

17. As a consequence of s. 35(2) Ombudsman Law, if any member, officer or employee of the Ombudsman Commission was issued with a summons for production relevant to the purported exercise of their functions in their investigation of the Plaintiff they would not be obliged to comply.

18. Can the claim of the Defendants and Sir Mari Kapi that the documents sought in the summons for production are subject to privacy and confidentiality under the provisions of the Ombudsman Law be sustained?

19. The Supreme Court has stated that the Ombudsman Commission occupies a special position under the Constitution of this Country in relation to immunity and privilege; Ombudsman Commission of Papua New Guinea v. Graham Ellis [1992] PNGLR 437;

".... the recommendations of the Constitutional Planning Committee now embodied in the Constitution illustrate the special importance of the Ombudsman Commission and the intention of the Constitution to guarantee its freedom and independence and of its general immunity from being called to give evidence in any court, or in any proceedings of a judicial nature."

20. The Ombudsman Law gives effect to the provisions of immunity and privilege under the Constitution, in particular by s.35(2).

21. The OAC and its members are not included in the definition of "the Commission" in s. 2 Ombudsman Law and therefore they are not covered by s. 35(1) or (2) of the Ombudsman Law. Can a claim of privacy and confidentiality still be maintained?

23. The English Court of Appeal case of Marcel and Ors v. Commissioner of Police and Ors [1992] 1 All ER 72, in interpreting a similar provision to ours concerning a summons for production, is authority for the proposition that documents seized by police in the exercise of their powers could be produced on a subpoena duces tecum, the equivalent to our summons for production, for use in civil proceedings without the consent of the person from whom the documents had been seized so long as that person would be liable to produce the documents under a subpoena, if those documents had not been seized.

24. Marcel's case was cited in Morris v. Director of the Serious Fraud Office [1993] Ch 372 and Sodden v. Burns [1996] 3 All ER 967. In Morris (supra) after referring to Marcel (supra), Sir Donald Nicholls VC said:

" In both cases, those from whom documents were seized, or the true owners of the documents, are in general entitled to an opportunity to present to the court any ground of objection they may have to the production of documents."

25. Marcel (supra) has also been cited in the New South Wales Supreme Court; Ingersoll-Rand (Australia) Ltd v. Industrial Rollformers P/L & Anor [2000] NSWSC 712.

26. Given that our Rules concerning a summons for production are similar to and based upon the respective Court Rules of England and New South Wales, the cases in those jurisdictions concerning those Rules are persuasive in this jurisdiction.

27. Applying the duty of confidence principle in Marcel (supra) to this case; if any of the members, officers or employees of the Ombudsman Commission were served with a summons for production to produce the documents described in the schedule to the summons for production that has been issued to the members of the OAC, they would not be obliged to comply; unlike the owners of the documents in Marcel (supra).

28. It is acknowledged that here the OAC has not seized the subject documents from the Ombudsman Commission, but there is no evidence that the Ombudsman Commission authorised the OAC to have possession of those documents.

29. To my mind, the same principle should apply. I am supported in this by the statement in Morris (supra) that true owners are entitled to object to a summons for production. (This also relates to whether a party to proceedings is able to object to a summons for production issued to a third party).

30. To apply this principle here is to defer to the special position that the Ombudsman Commission has under the Constitution and the intention of the Constitution to provide a general immunity to the Ombudsman Commission from being called to give evidence in any court.

31. Not to apply the principle would allow documents that would otherwise be subject to privilege to be produced merely because a third party has obtained unauthorised possession of them. To my mind, this would defeat the intention to provide the immunity to which I have already referred.

32. Given that the Defendants as well as Sir Mari Kapi have objected to the summons for production, that the Defendants would not have had to comply with a summons for production for the same documents if issued to them and that there is no evidence of any authorisation by the Defendants to the OAC to produce the documents described in the schedule to the summons for production, I find that the summons for production to the members of the OAC dated 19th May 2008 should be set aside and I so order.

33. Given the above, it is not necessary for me to consider the other grounds of objection.
34. The Plaintiff is to pay the costs of the Defendants and Sir Mari Kapi of and incidental to the application to set aside the summons for production.

__________________________________________
Posman Kua Aisi Lawyers: Lawyers for the Plaintiff
Ombudsman Commission: Lawyers for the Defendants
Office of the Solicitor-General: Lawyers for Sir Mari Kapi