N5857    
  
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
								
OS NO. 15 OF 2015

BETWEEN:
 PETER O’NEIL
	Plaintiff	

AND:
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA 
First Defendant

AND:
 RIGO A. LUA – Chief Ombudsman
Second Defendant

AND:
PHOEBE SANGETARI - Ombudsman
Third Defendant

Waigani: Davani .J
					2015:  23rd, 28th January,

CONSTITUTIONAL LAW – Prime Minister investigated by the Ombudsman Commission – Investigation conducted under s.219 (1) (a) of the Constitution

CONSTITUTIONAL LAW – Referral to Supreme Court of certain questions – interpretation and application of S. 219(1) (a) of the Constitution – interpretation and application of ss. 13, 23(1) (a) of the Constitution – interpretation and application of ss. 13, 23 (1) of the Organic Law on the Ombudsman Commission -Interpretation and application of s. 17 of the Organic Law on Duties and Responsibilities of Leadership (‘OLDRL’) –

CONSTITUTIONAL LAW – Investigation of the Prime Minister – whether he is a person to be investigated under s. 17 of the OLDRL or under s. 13 of the Organic Law on the Ombudsman Commission.

Facts

The Ombudsman Commission conducted an investigation under s. 219 (1) (a) of the Constitution into the plaintiff’s borrowing or the taking out of a loan of AUD$2.3 billion from the UBS AG to purchase 149,39 and 244 shares in Oil Search Ltd and the improper tender and procurement of consultants in relation to the borrowing.  The plaintiff, the Prime Minister, on learning that the defendants would be releasing a provisional report, in relation to the investigation, comes to Court seeking interim orders restraining the release of the provisional report and also, to seek the Supreme Court’s interpretation, through several questions it raised, all in relation to whether the plaintiff as Prime Minister, falls within the categories outlined in s. 219 (1) (a) (i) of the Constitution or whether the plaintiff, as Prime Minister, ought to have been dealt with (by the Ombudsman Commission) under the Leadership Code.

The questions were referred to the Supreme Court for its interpretation under s. 18 (2) of the Constitution. 

Counsel:

Mr M. Varitimos assisted by Mr. P. Tabuchi, for the Plaintiff/Applicant
No appearance for and on behalf of all Defendants

DECISION
28th January, 2015
  
1.	DAVANI .J:  Before the Court is Notice of Motion filed on 20th January, 2015 by Young & Williams Lawyers, for and on behalf of the plaintiff (‘Applicant’).  I will use the words plaintiff and applicant, interchangeably.  The motion seeks orders to refer certain questions to the Supreme Court, under Section 18 (2) of the Constitution.  

2.	I set out in full, the orders sought by the plaintiff in the Notice of Motion because it contains the questions sought to be referred to the Supreme Court;

““Take notice that the Applicant/ Plaintiff will at 9:30am on the 	      day of January 2015 at the National Court at Waigani move the Honourable Court for the following Orders:

1.	Pursuant to Order 4 Rule 42 and Order 1 Rule 15(1) of the National Court Rules (“Rules”), the time for service of this Notice of Motion be abridged to the date of hearing of this motion (if such date is less than 3 days before the date named in the notice for hearing the motion).

2.	Pursuant to Order 12 Rule 1 of the Rules, Section 12(1) of the Laws Adoption and Adaptation Act Ch 20, Section 155(4) of the Constitution and the inherent jurisdiction of this Honourable Court an order in the nature of an interim injunction restraining the First, Second and Third Defendants, by themselves, their servants and or agents from:

(a)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution;

(b)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission;

(c)		publishing, in any form, the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise;

(d)		publishing, in any form, the Provisional Report of December 2014, signed by the Second and Third Defendants; and

(e)		publishing, in any form, any amended Provisional Report or Final Report,
	in relation to the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing, pending the determination by the Supreme Court of questions relating to the interpretation and application of provisions of  Constitutional Laws referred to it by this Court through these proceedings and the determination of the within National Court proceedings.

3.	Pursuant to Order 12 Rule 1 of the Rules, Section 155(4) of the Constitution and the inherent jurisdiction of this Honourable Court, a copy of the Provisional Report of December 2014 signed by the Second and Third Defendants be provided to the Court for the purpose of making a determination of this Notice of Motion after which such copy is to be placed in a sealed envelope and marked with the proceedings number and title of the herein proceedings and the following phrase: “By Order of the National Court, this envelope is not to be opened without an Order of a Justice of the National Court”.

4.	The envelope referred to in Order 3 above shall only be opened upon the Order of a Justice of the National Court after 7 clear days prior notice in writing is given to the lawyers for the Plaintiff.

5.	Pursuant to Section 18(2) of the Constitution, the following Constitutional questions be referred to the Supreme Court:

1)		Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” , “employee” or “person” under Section 219(1)(a) of the Constitution.

2)		If the answer to question (1) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

3)		Whether, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” or “employee” under Section 13 of the Organic Law on the Ombudsman Commission.

4)		If the answer to question (3) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

5)		Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution and Section 13 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission lacks jurisdiction to publish the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

6)		Whether, on the proper interpretation or application of Section 17 of the Organic Law on the Ombudsman Commission, if the Ombudsman Commission has not informed the responsible person, in this case the Plaintiff, of its intention to make the investigation, it lacks jurisdiction to investigate and publish the results under Section 23 of the Organic Law on the Ombudsman Commission of any such investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

7)		Whether the Ombudsman Commission is and was required to comply with Section 17(1) of the OLOC, and in particular, inform the Prime Minister of its intention to make an investigation relating to conduct on the part of the Prime Minister:

(a)	Before investigating the Prime Minister “into the alleged  improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”;

(b) 	Issuing or publishing a document titled “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister;

(c) 	Issuing or publishing any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister.

8)		If the answer to question (7)(a) is yes, is any investigation conducted without so informing the Prime Minister ultra vires the power of the Ombudsman Commission.

9)		If the answer to question (7)(b) above is yes, is the issuing or publication of the titled, “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.

10)		If the answer to question (7)(c) above is yes, is any issuance or publication of any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.

11)		Whether the Ombudsman Commission has lawful authority, power or jurisdiction to make any comments in any report distributed or published by it (whether provisional, final or otherwise), which are adverse to or derogatory of the Prime Minister, if such comments require, before they can be properly made, an interpretation or application of provisions of Constitutional Laws by the Ombudsman Commission.

6.	Costs of and incidental to these proceedings.

7.	Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

8.	Such further and other orders or reliefs as this Honourable Court considers appropriate.

	G.J. Sheppard of Young & Williams,
Lawyers for the Plaintiff/Applicant”	

3.	The Originating Summons relied on by the plaintiff filed by his lawyers on 20th January, 2015, seeks the following substantive reliefs which I also set out in full because it complements the Notice of Motion.  It reads:

“The Plaintiff seeks:
1.	A Declaration, on the proper interpretation or application of Section 219(1)(a) of the Constitution, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer”, “employee” or “person” under Section 219(1)(a) of the Constitution. 

2.	A Declaration, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” or “employee” under Section 13 of the Organic Law on the Ombudsman Commission.

3.	A Declaration, on the proper interpretation or application of Section 219(1)(a) of the Constitution, that the Ombudsman Commission lacks jurisdiction to investigate any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

4.	A Declaration, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission lacks jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

5.	A Declaration, on the proper interpretation or application of Section 219(1)(a) of the Constitution, Section 13 of the Organic Law on the Ombudsman Commission and Section 23 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission is not permitted to publish the results of any investigation carried out by it, by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

6.	An permanent injunction restraining the First, Second and Third Defendants, by themselves, their servants and or agents from:

(a)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution;

(b)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission.

(c)		publishing in any form the results of any investigation carried out by it, by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise;

(d)		publishing in any form the Provisional Report of December 2014, signed by the Second and Third Defendants; and

(e)		publishing in any form any amended Provisional Report or Final Report,
	in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.
(f)		Costs of and incidental to these proceedings.
(g)		Time for entry of these orders be abridged to the time for settlement by the Registrar which shall take place forthwith.
(h)		Such further and other orders or reliefs as this Honourable Court considers appropriate.”

Background facts

4.	The plaintiff relies on his affidavit sworn on 20th January, 2015 and filed on the same day.  He deposes that by the Ombudsman Commission’s letter dated 8th December, 2014, the letter advised, amongst others, the release of a Provisional Report (the ‘Report’) signed by the Chief Ombudsman, the named second defendant and the Ombudsman, the named third defendant.  A copy of that report is enclosed to the plaintiff’s affidavit.  

5.	The plaintiff deposes further that the Report is over 200 pages and contains comments which are adverse and derogatory of him.  He deposes that if the Report is further distributed, that it will adversely and prejudicially impact on his reputation and standing individually as Prime Minister and that it will cause irreparable damage.

6.	The plaintiff deposes to at par. 7 of his affidavit that the Report titled “Jurisdiction and Purpose of Investigation” states in the first paragraph:

“this is the Provisional Report by the Commission of an Own Initiative Investigation under Section 219 (1) (a) (Functions of the Commission) of the Constitution and Section 13 (Functions of the Commission of the Constitution and Section 13 (Functions) of the Commission) of the Organic Law on the Ombudsman Commission conducted into the alleged improper borrowing of AUD$ 2.3 billion loan from the UBS AG by the Government to purchase 149, 390,244 shares in Oil Search Ltd and improper tender and procurement of consultants in relation to the borrowing.”

7.	The plaintiff deposes further that to the best of his knowledge and belief, that he is not 
-	a member of any state service;

-	an officer or employee of any government body;

-	a member officer or employee of any body referred to in Section 219 (1) (a) of the Constitution of the Independent State of Papua New Guinea.

8.	He further deposes that he does not recall ever receiving any notice under Section 17 (1) of the Organic Law on the Ombudsman Commission (“OLOC”) of any intention of the Ombudsman Commission to make an investigation under Section 13 of the OLOC or, for that matter, Section 219 (1) (a) of the Constitution.

9.	He deposes further at par. 11 of his affidavit that page 9 of the Report reads “on 22nd May, 2014 the Commission issued its Notice or intention to investigate the following individuals”.  Eleven individuals are named, none of whom are the plaintiff.

10.	He depose further that he has not been identified as having been a person issued with any notice, which he says is consistent with his recollection that he was not a person issued a section 17 (1) Notice.  

11.	He deposes further that par. 1.4.1 of the Report contains matters that are adverse and derogatory, couched in unequivocal and condemnatory terms.

12.	The plaintiff filed the documents in support of the motion on 22nd January, 2015.  The application came before me as an urgent application on 22nd January, 2015.  I issued the following chamber directions;

“Serve all documents on named defendants.  File affidavit of service.
Matters returns before Davani .J at 10:00am on Friday, 23rd January, 2015
Registrar to inform defendants”
 
13.	On 23rd January, 2015 at 9:30am, I had 2 other matters listed before me.  Counsel in these matters OS 10 of 2015 and OS 6 of 2015 were required to make submissions and of course, which meant that I did not commence the hearing of this matter at 10 am but much later.

14.	According to the FTR Digital lognotes, I completed the hearing of the two matters before me, at 11:01am and commenced the hearing of this application at 11:02am.  The hearing ended at 12:28pm.

15.	In Court were only Mr Varitimos and Mr Tabuchi, for the plaintiff.  The defendants were not represented and did not make appearance, at all.

(i)	Service

16.	I then enquired with counsel Mr Varitimos as to service of the documents on the defendants and whether Mr Varitimos was aware of the defendants, whereabouts.  Mr Varitimos responded as follows;

i.	that he received advice from his instructing lawyers at 4pm on 22nd January, 2014 in Australia and flew through Cairns to be in time for the appearance before this Court, this morning.  

ii.	that as the Court’s directions were that the Registry was to inform the defendants of today’s appearance, that he is instructed by his instructing lawyers that Mr Bae of the National Court Registry had informed Mr Efi, counsel for the Ombudsman Commission at about 10:30am to appear before me, as directed by me.  That Mr Efi informed Mr Bae that he would not appear because he was short served.  

17.	I also heard from Mr Varitomos and which is confirmed in the affidavit of service of Vagi Jack sworn and filed on 22nd January, 2015 of Young and Williams Lawyers, that on 22nd January, 2015 at about 3:42pm at the office of the Ombudsman Commission, Ground floor, Deloittes Towers, Douglas Street, Port Moresby, National Capital District, that he served three copies of each of the documents attached in the schedule referred to in that affidavit, upon Mr Rigo. A Lua OBE Chief Ombudsman, Ms Phoebe Sangitari  LLB LLM, Ombudsman and the Office of the Ombudsman Commission on Ms Grace Isu, a receptionist with the office of the Ombudsman Commission.  The documentation served were;

-	Originating Summons filed on 20th January, 2015

-	Notice of Motion filed on 20th January, 2015

-	Affidavit of Peter O’Neil, sworn and filed on 20th January, 2015 and

-	Undertaking as to Damages filed, 20th January, 2015.

18.	Indeed, I found it quite disconcerting, that a lawyer supposedly representing the interests of the people of Papua New Guinea in the Ombudsman Commission, found it convenient to stay away from the hearing, even though he was aware of the Court’s directions to appear.  I decided that because the Ombudsman Commission and named defendants were not at Court through the position taken by Mr Efi, that this was in blatant defiance of my directions and that there was no reason why I should not hear Mr Varitimos because he had made every effort to be in Court.  It also demonstrated the defendants’ lack of interest in the proceedings and application noting that the alternative available to them was for the defendants or their lawyer, to turn up and inform the Court that they were short served and needed time to prepare affidavits in response, amongst others.  That option was always open to them and which they chose not to take.

19.	The matter then proceeded in the absence of the defendants and their counsel.  Counsel Mr Efi was directed to appear before me on 26th January, 2015 at 9:30am to show cause why I should not charge him with contempt of court.

The Application

ii.	Orders sought

20.	I have set out above the orders sought by the Applicant in the Originating Summons and the Notice of Motion.  Briefly, the plaintiff seeks that certain Constitutional questions be referred to the Supreme Court pursuant to Section 18(2) of the Constitution concerning the jurisdiction of the Ombudsman Commission to investigate and subsequently publish any Report relating to the Prime Minister’s alleged improper borrowing of a loan from UBS AG.

21.	The plaintiff also seeks a temporary restraining order against the Defendants restraining them from further investigating him and publishing any further or final report in relation to the said investigation making comments adverse to or derogatory of him, pending the authoritative final determination of the Constitutional questions referred to the Supreme Court through these proceedings.

iii.	Referral to the Supreme Court under s. 18 of Constitution

22.	Section 18 of the Constitution deals with Constitutional interpretation.  Section 18 provides:

“18. Original interpretation jurisdiction of the Supreme Court
(1)	Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
(2)	Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.” (emphasis and underlining added)”
23.	Relevantly, by force of Section 18(1) of the Constitution and as held by the authorities.

(a)	where any question relating to the interpretation or application of a Constitutional Law arises, as in this case, the National Court “shall” or “must” refer the matter to the Supreme Court.  I set out the cases below;
(b)	the only exception to the constitutionally mandated requirement to refer the matter is if “the question is trivial, vexatious or irrelevant”.

iv.	The Law

24.	Section 18(2) of the Constitution, is in mandatory terms, that the National Court must refer the questions sought to be referred to the Supreme Court.  

25.	Section 18(2) mandates the National Court, irrespective of the nature of the proceedings before the Court, to refer any questions relating to the interpretation or application of any provision of a Constitutional Law.  And, that, it matters not whether the National Court is hearing a criminal matter, commercial matter, general civil matter or a judicial review matter.

26.	In O’Neill and Anor v The Ombudsman Commission of Papua New Guinea and Ors OS (JR) No. 383 of 2014 Makail J recently had cause to consider in detail the issue of referrals by the National Court to the Supreme Court of Constitutional questions pursuant to Section 18(2) of the Constitution.  The analysis of His Honour, by reference to earlier authorities, is helpful in considering what should be done in the current proceedings.  In that case, Makail J said at paragraphs [44]-[48] as follows:

“44.	In the Public Prosecutor v Rooney (No.1) (supra) the Supreme Court considered a case where a Justice of the National Court had held that a constitutional question had arisen which should be referred to the Supreme Court pursuant to Section 18 of the Constitution. The Court was called upon to further consider where the proceedings were “pending” proceedings in the Supreme Court for the purposes of contempt proceedings.
45.	Raine Dep CJ in Rooney (No.1) (supra) at page 406.6-406.8 held that the Constitutional point raised, although having failed, was certainly arguable.  Having so held His Honour said:
           “Thus, by reason of s. 18, it was inevitable that the Supreme Court would become involved. … The Supreme Court simply had to become involved, the Constitution enjoins us to, it is our very duty, we are the only ones who can perform that duty.” (Underlining added)
46.	The Deputy Chief Justice also held:
	“Pritchard J’s finding that a constitutional situation had been revealed to him, and that it was arguable, opened or created a pipeline that led in only one direction and to one destination, the Supreme Court”.  (underlining added) 
47.	Saldanha, Wilson and Greville Smith JJ agreed with the Deputy Chief Justice in Rooney (No.1)(supra).  Wilson J also held at page 418 that:
           “…in my judgment proceedings become “pending” proceedings in the Supreme Court by operation of law as soon as ‘any question relating to the interpretation or application of any provision of’ the Constitution arises and when the court in which it arises is satisfied that the question is not ‘trivial, vexatious or irrelevant’.  The proceedings are “pending’ proceedings in the Supreme Court as from that stage when the lower court (in this instance the National Court presided over by Pritchard J.) takes action whether by way of adjournment or otherwise in recognition of that situation.  Notwithstanding Pritchard J’s choice of words, there can be no doubt that as at 4th July, 1979, a constitutional reference was pending; the preparation of questions and the signing of the reference were purely procedural.” (see also Somare v. Manek (2011) SC 1118 at 89, 91, 92 and 95)
48.	In Somare v. Manek (supra) the Supreme Court held at [92] 
“Accordingly, we are of the view that the exclusive jurisdiction vested in the Supreme Court does not necessarily exclude where one can commence his or her proceedings which raises a question or constitutional law interpretation and application. Strictly speaking therefore, in our view, this provision is not saying all matters in which there arises a question of interpretation and application of a constitutional law must only be filed in the Supreme Court. Instead, the provision envisages and does not prohibit the commencement of proceedings in lower courts or tribunals in which raises a question of interpretation and application of a constitutional law. Where such is the case, this provision requires the lower courts or tribunals to refer the matter to the Supreme Court, provided the lower court or tribunal is satisfied that the question is not trivial, vexatious or irrelevant.”’
27.	Makail J held, at [49], consistent with the reasoning in Somare v. Manek (supra), that it was open for the Prime Minister to commence the proceedings in the National Court which raise questions of interpretation or application of Constitutional Laws. It was also open to subsequently seek to have such questions referred to the Supreme Court. The quote in the above paragraph at [47] makes it clear, in the context of the case before Makail J, that the preparation of the questions and the signing of the Reference are procedural but the Reference is pending.

28.	As Makail J observed in O’Neill (supra) at [50]-[52]:

“50.	Very recently, both the Chief Justice and Justice Gavara‑Nanu have referred Constitutional questions to the Supreme Court, pursuant to section 18(2) of the Constitution for interpretation and application. Both National Court proceedings are before the Chief Justice and Justice Gavara‑Nanu (OS No. 484 of 2014 and OS (JR) No. 485 of 2014), but the Court has not proceeded further with the matters pending the determination of the Constitutional questions referred by the National Court.
51.	Injia CJ said in Damaru & Anor v. Vaki OS No. 484 of 2014, unreported, 28 July 2014 at page 5:
           “My decision to refer the Constitutional issue in this case is therefore in line with the judicial trend in recent times that important Constitutional questions that have emerged concerning the exercise of police powers in the investigation and prosecution of crime should be addressed and determined conclusively by the highest Court.”
52.	In Vaki v. Eliakim & Ors OS (JR) No. 485 of 2014, Gavara‑Nanu J referred the Constitutional questions to the Supreme Court, after His Honour had granted leave to judicially review a decision and stayed the decision.”
29.	Significantly, to the current case, Makail J crystallized the mandatory requirement for the National Court to refer questions to the Supreme Court at [53], where he said;

“53.	Once it becomes apparent to the Court, that any questions relating to the interpretation or application of any provision of a Constitutional Law arise, which are not trivial, vexatious or irrelevant, the “stage” is reached when the questions must be referred. It is not appropriate for the proceedings to proceed further before a determination by the Supreme Court of the Constitutional questions.  The National Court is bound to refer the Constitutional questions and the Supreme Court is also bound to determine those questions.”
				(my emphasis)

30.	More recently, Cannings J in OS 810 of 2014, O’Neill v Kaluwin & Anor at page 11 of His Honour’s published reasons for judgment, said;

“Section 18(2) obliges the National Court, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant”. (my emphasis)
31.	The other Constitutional laws and provisions relied on by the plaintiff are these, which I reproduce and set out below;

•		Constitution
26. APPLICATION OF DIVISION 2.
(1) 	The provisions of this Division apply to and in relation to–
(a)	the Prime Minister, the Deputy Prime Minister and the other Ministers; and
(b)	the Leader and Deputy Leader of the Opposition; and
(c) 	all other members of the Parliament; and
(d) 	members of Provincial Assemblies and Local-level Governments; and
(e) 	all constitutional office-holders within the meaning of Section 221 (definitions); and
(f) 	all heads of Departments of the National Public Service; and
(g) 	all heads of or members of the boards or other controlling bodies of statutory authorities; and
(h) 	the Commissioner of Police; and
(i) 	the Commander of the Defence Force; and
(j) 	all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and
(k) 	the public trustee; and
(l)	 the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and
(m)	executive officers of registered political parties as defined by Section 128 (“registered political party”); and
(n) 	persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.
(2) 	This Division applies to and in relation to a person referred to in Subsection (1) not only in the office referred to in that subsection but also in any other office or position that he holds under any law by virtue of that office.
(3) 	An Organic Law or an Act of the Parliament may declare any public office (including an office in a provincial government or a local-level government body) to be an office to and in relation to which this Division applies.
(4) 	In the event of doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final.”

“219.	FUNCTIONS OF THE COMMISSION
(1)	Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are;
(a)	to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of;
(i)	any State Service or provincial service, or a member of any such service; or
(ii)	any other governmental body , or an officer or employee of any such body; or 
(iii)	any local government body or an officer or employee of any such body; or 
(iv)	any other body set up by statute;
(A)	That is wholly or mainly supported out of public moneys of Papua Guinea; or
(B)	All of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,
Or an officer or employee of any such body; and
(v)	any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or
(vi)	any other body or person prescribed for the purpose by an Act of the Parliament,
Specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations, and
(b)	to investigate any defects in any law or administrative practice appearing from any such investigation; and
(c)	to investigate; either on its own initiative or on complaint be a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and
(d)	any functions conferred on it under Division III.2 (leadership code); and
(e)	any other functions conferred upon it by or under an Organic Law.
(2)	Subject to Subsections (3), (4) and (5), and without otherwise limiting the generality of the expressions, for the purposes of Subsection (1) (a) conduct is wrong if it is;
(a)	contrary to law; or
(b)	unreasonable , unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or
(c)	based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or
(d)	based wholly or partly on a mistake of law or of fact; or
(e)	conduct for which reasons should be given but were not,
Whether or not the act was supposed to be done in the exercise of deliberate judgment within the meaning of Section 62 (decisions in “deliberate judgment”)
(3)	The Commission shall not inquire into the justifiability of a policy of the National Government or a Minister or a provincial government or a member of a provincial executive, except insofar as the policy may be contrary to law or to the National Goals and Directive Principles, the Basic Rights or the Basic Social Obligations, or of any act of the Parliament.
(4)	the Commission shall not inquire into the exercise of a rule-making power by a local government body.
(5)	the Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which the Subsection (1) (b) would apply.
(6)	Except as provided by or under Division III.2 (leadership code), the Commission’s powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice.
(7)	An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular;
(a)	shall, subject to paragraph (b), make provision for the Commission to have access to all available relevant information; and
(b)	may impose reasonable restrictions on the availability of information; and
(c)	shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission in relation to any matters or class of matters, and in particular in relation to national security; and
(e)	shall make provision for an in respect of publicity for the proceedings, reports and recommendations of the Commission.
(8)	In this section, “conduct” includes;
(a)	any action or inaction relating to a matter of administration; and
(b)	any alleged action or inaction relating to a matter”

•		Provisions from the Organic Law on the Ombudsman Commission (‘OLOC’)

13.	FUNCTIONS OF THE COMMISSION.
For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of–
(a) 	any State Service or a member of any State Service; or
(b)	any governmental body, or an officer or employee of a governmental body; or
(c) 	any other service or body referred to in Section 219(a)(functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.

“23. 	PUBLICATION OF RESULTS OF INVESTIGATIONS.
(1) 	The Commission may, in its discretion, publish the results of any investigation carried out by it by forwarding a copy of its conclusions, recommendations and suggestions to–
(a) 	the Prime Minister; and
(b) 	the Minister responsible for the National Public Service; and
(c) 	the Chairman of any parliamentary committee; and
(d) 	the Speaker, who shall present it to the Parliament within eight sitting days of 	the Parliament; and
(e) 	the Minister responsible for the National Legal Administration; and
(f) 	the Chief Justice; and
(g) 	the Chief Magistrate; and
(h) 	the Chairman of the Public Services Commission; and
(i) 	the head of any Provincial Government body; and
(j) 	any other person holding an official position as the Commission considers 	appropriate,
or any of them.
(2) 	The Commission shall, unless in its deliberate judgement, it considers that to do so may prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization), forward a copy of its conclusions, recommendations and suggestions to the person on whose complaint the investigation was carried out.
(3) 	Where the Commission publishes an opinion that is adverse to or derogatory of any service, body or person, it shall, unless it has obtained the consent of the responsible person to do otherwise, include in the document published the substance of any statement the responsible person may have made in explanation of past difficulties, or present rejection of the Commission’s recommendations.”

•	Provisions from the Organic Law on the Duties and Responsibilities of Leadership (‘OLDRL’)

17.	FUNCTIONS OF THE OMBUDSMAN COMMISSION.
For the purposes of this Law, the functions of the Ombudsman Commission, in addition to the functions specified in Sections 27 (responsibilities of office) and 29 (prosecution of misconduct in office) of the Constitution and elsewhere in this Law, are–
(a)	 to examine or cause to be examined each statement lodged with it under Section 4; and
(b)	 to examine or cause to be examined each disclosure made under Section 15 or any subsequent disclosure relating to that disclosure; and
(c)	to investigate, on its own initiative or on complaint by any person, or cause such an investigation to be carried out into any alleged or suspected misconduct in office by a person to whom this Law applies; and
(d)	 to refer to the Public Prosecutor for prosecution by him before the appropriate tribunal referred to in Section 27 any case where, in its deliberate judgement, there is evidence of misconduct in office by a person to whom this Law applies.

32.	Mr Varitimos also, relying very much on section 218 and 219 (1) (a) (i) makes similar submissions.

iv.	Questions for referral and related evidence

33.	The Questions sought to be referred are:

	Question 1:  Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” , “employee” or “person” under Section 219(1)(a) of the Constitution.

34.	In relation to this question, Mr Varitimos urges the Court to read section 219 (1) (a) (i) of the Constitution and to ask whether the Prime Minister of Papua New Guinea falls within the description “any state service or provincial service, or a member of any such service;” (par. 219 (1) (a) (i)) of the Constitution).

35.	Mr Varitimos submits that as deposed to by the plaintiff at par. 2 of his affidavit, that he was appointed as Prime Minister in August 2012 by the head of state acting in accordance with a decision of Parliament in accordance with Section 142 (2) of the Constitution.

36.	Section 142 (1)(2) reads as follows;

“142 – THE PRIME MINISTER

(1)	An office of Prime Minister is hereby established.

(2)	The Prime Minister shall be appointed at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.”

37.	Mr Varitimos submits that this is a unique provision that applies only to the Prime Minister.  

38.	Mr Varitimos also relies very much on the decision Constitutional Reference No. 1 of 1978 in a matter of a reference by the Ombudsman Commission pursuant to Section 19 of the Constitution [1978] PNGLR 345 Prentice CJ, Pritchard .J, Wilson .J dated 6th October, 1978. 

39.	In that case, the Supreme Court considered a reference by the Ombudsman Commission, reference pursuant to Section 19 of the Constitution, which asked the questions whether;

-	the Ombudsman Commission had jurisdiction on its own initiative and/or complaint by a person affected, to investigate any conduct of the public solicitor or an officer or an employee of the Public Solicitor’s office.  

-	whether the Ombudsman Commission could require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor.

40.	The Supreme Court had to consider whether the Public Solicitor was a State service.  It also had to consider whether the Public Solicitor came within the description in Section 219 (1) (a) (ii) of whether “a Governmental Body or an officer or employee of a Governmental Body”.

41.	The Supreme Court also had to consider the additional question, more particularly Wilson .J as to whether the powers of investigating of the Ombudsman Commission were limited to the Investigation of conduct of an administrative kind.

42.	He submits that the Prime Minister or a Prime Minister for that matter, is not captured in section 219 (1) (a) of the Constitution.  Mr Varitimos, unfortunately could not refer me to the passage by Wilson .J that stated the finding that the Public Solicitor was not a State Service and did not fall within any of the categories in S. 219 (a) (i) and even (ii).  On perusing SCR 1 of 1978, I note Wilson .J ‘s comments that;

“Turning to the question posed, I firstly say that I am in no doubt that the Public Solicitor is not a State Service.  I have mentioned the four State Services above.  They are established under Pt. VII of the Constitution and it is crystal clear that the office of the Public Solicitor is not included among them.  Mr Cory virtually concedes this except to include the Public Solicitor’s staff to whom I have just referred.  The next question, and to my mind the fundamental question, is whether the Public Solicitor is a governmental body or not.

Mr Cory submitted that the Public Solicitor is an instrumental of the National Government within the definition of “governmental body” in Sch. 1.2.  He quotes in support of his submission Federal Municipal Shire Council Employees’ Union v. Melbourne Corporation (16) comparing the Public Solicitor with “an instrumentality of the Crown” with independent powers performing inalienable functions of government.  This argument does not attract me.  An instrumentality is merely an agency, in the case of local government bodies or statutory bodies, created by Act of Parliament.  The Public Solicitor is not so created.  He is created by the Constitution, his is an independent office, he is responsible to the people in his specialized field and is a separate arm of the National Government not an instrumentality responsible or subservient to any one of the three principal arms.  He is specially not included in the National Judicial System which is solely a system of courts.”  

43.	Indeed, that passage reaffirms Mr Varitimos’ submissions that the Office of the Prime Minister is a creature of the Constitution.  Further, Mr Varitimos submits that Section 142 is one of other provisions of the Constitution that provide specifically for the office of the Prime Minister.

44.	The Office of the Prime Minister falls under Division 2 of the Constitution – the Leadership Code, more particularly S. 26 (1) (a) which reads:

“26.	Application of Division 2

(1)		The provisions of this Division apply to and in relation to –

(a)	the Prime Minister, the Deputy Prime Minister and other Ministers; and
…”

45.	.

46.	Under the leadership code, there are measures and avenues available to the Ombudsman Commission (‘OC’) to conduct an investigation.  In this case, the OC conducted an investigation relying on S. 219 (1) (a) of the Constitution.  The issue then is whether that is the correct avenue to use to conduct an investigation of persons who fall within the Leadership Code noting also Mr Varitimos’ submissions that, because the Prime Minister is not a person falling within Section 219 (1) (a) (i) of the Constitution, that this is a matter for interpretation and should be referred to the Supreme Court for its interpretation as was done in SCR 1 of 1978 for the Public Solicitor.  Sitting as a National Court Judge, I do not have the power to determine this question.  The question must be determined by the Supreme Court.

47.	In my view, such a question is not frivolous and vexatious.  As was held by Makail .J, once a Court finds that the question is not trivial, vexatious or irrelevant that the “stage” is reached when the question must be referred.

48.	In my view, I find that this question must be referred.

v.	Question 2:  If the answer to question (1) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing

49.	I adopt my reasons under question one above and find that this question is, is not one to be answered by this Court but is one that can be properly answered by the Supreme Court after having made a finding under question 1.  It is ancillary to question one.  It must be referred to the Supreme Court.
vi.	Question 3:  Whether, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” or “employee” under Section 13 of the Organic Law on the Ombudsman Commission

50.	I have already set out in full section 13, above.  

51.	Mr Varitimos pointed out that section 13 (a) of the OLOC is in similar terms to section 219 (1) (a) (i) of the Constitution.

52.	Mr Varitimos submits that section 13 of the OLOC should be read together with section 17 of the OLDRL.  

53.	Mr Varitimos then urged the Court to consider the fact that the investigations conducted under Section 13 are for the purposes of preparing a report under Section 23 of the same act which reads as follows:

23. PUBLICATION OF RESULTS OF INVESTIGATIONS
(1) 	The Commission may, in its discretion, publish the results of any investigation carried out by it by forwarding a copy of its conclusions, recommendations and suggestions to–
(a) the Prime Minister; and
(b) the Minister responsible for the National Public Service; and
(c) the Chairman of any parliamentary committee; and
(d) the Speaker, who shall present it to the Parliament within eight sitting days of the Parliament; and
(e) the Minister responsible for the National Legal Administration; and
(f) the Chief Justice; and
(g) the Chief Magistrate; and
(h) the Chairman of the Public Services Commission; and
(i) the head of any Provincial Government body; and
(j) any other person holding an official position as the Commission considers appropriate,
or any of them.
(2) 	The Commission shall, unless in its deliberate judgement, it considers that to do so may prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization), forward a copy of its conclusions, recommendations and suggestions to the person on whose complaint the investigation was carried out.
(3) 	Where the Commission publishes an opinion that is adverse to or derogatory of any service, body or person, it shall, unless it has obtained the consent of the responsible person to do otherwise, include in the document published the substance of any statement the responsible person may have made in explanation of past difficulties, or present rejection of the Commission’s recommendations.

54.	Mr Varitimos submits that section 23 does not provide or authorize an investigation of the Prime Minister, which is the proper application and interpretation of that provision.  He reminds this Court that it does not make sense that the report be referred to the Prime Minister and the person the subject of this application, is the Prime Minister.

55.	Mr Varitimos submits that for the Prime Minister or for any Prime Minister, an investigation must be carried out under S. 17 of the OLDRL, not S. 219 (1) (a), as was done in this case.  Section 219 (1) (a) of the Constitution does not apply to a Prime Minister as he falls under the Leadership Code.    That there will be an investigation under S. 17 of the OLDRL, an investigation or an authorized investigation, not to prepare a report but for a referral of misconduct in office under the Leadership Code

56.	Mr Varitimos stresses that the OC must carry out its functions under Division III.2 of the Constitution as provided in the OLDR and which would then enhance its functions under S. 17 of the OLDRL, which in this case would be to investigate a complaint by any person or to cause an investigation on suspected misconduct and to refer to the Public Prosecutor for prosecution, not to publish a report as is presently intended to be done by the Ombudsman Commission.  

57.	And that it is clear that section 13 of the OLOC when read on its own provides for an investigation on its initiative or on complaint, any conduct by any state servants or a member of a State service which is defined in Section 188 of the Constitution as:

-	the National Public Service; 

-	the Police Force;

-	the Papua New Guinea Defence Force;

-	the Parliamentary Service.

58.	There is no provision there for a Prime Minister.  In my view, although those provisions, speak for themselves, they will require proper interpretation by the Supreme Court, as I will be seen to be interpreting provisions of the Constitution, which exceeds my jurisdiction sitting as a National Court Judge.  I consider this question, one for the Supreme Court.
vii.	Question 4:  If the answer to question (3) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing

59.	This is question that will be answered by the Supreme Court after it provides an answer to question 3 above, because it is ancillary to Question 3.

viii.	Question 5:  Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution and Section 13 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission lacks jurisdiction to publish the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing

60.	That question will be answered after the Supreme Court has answered 
Question 1 in the Notice of Motion.  This question is ancillary to the finding as to whether the Prime Minister falls within the definition of “Any State’s service”.

ix.	Question 6:  Whether, on the proper interpretation or application of Section 17 of the Organic Law on the Ombudsman Commission, if the Ombudsman Commission has not informed the responsible person, in this case the Plaintiff, of its intention to make the investigation, it lacks jurisdiction to investigate and publish the results under Section 23 of the Organic Law on the Ombudsman Commission of any such investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing

61.	Section 17 of the OLOC provides that before the OC conducts an investigation, that it must inform the person responsible of its intention to make the investigation.  (Section 17 (1)).  And that such investigations must be conducted in private.  

62.	As set out above, the plaintiff has deposed in his affidavit that he does not recall receiving any notice under section 17 (1) of the OLOC.  Additionally, of the eleven individuals named in page 9 of the Report, that none of them is the plaintiff.

63.	I am of the view that if I were to consider whether the plaintiff ought to have been served and then investigated and the Report, not to be published, that this would require that those provisions be interpreted.

64.	In my view, this is not a frivolous and vexatious question and must be referred to the Supreme Court.

x.	Questions 7, 8, 9, 10 and 11:  Whether the Ombudsman Commission is and was required to comply with Section 17(1) of the OLOC, and in particular, inform the Prime Minister of its intention to make an investigation relating to conduct on the part of the Prime Minister:

(a)	Before investigating the Prime Minister “into the alleged  improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”;
(b) 	Issuing or publishing a document titled “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister;
(c) 	 Issuing or publishing any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister.
1.	If the answer to question (7)(a) is yes, is any investigation conducted without so informing the Prime Minister ultra vires the power of the Ombudsman Commission.

2.	If the answer to question (7)(b) above is yes, is the issuing or publication of the titled, “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.

3.	If the answer to question (7)(c) above is yes, is any issuance or publication of any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.
4.	Whether the Ombudsman Commission has lawful authority, power or jurisdiction to make any comments in any report distributed or published by it (whether provisional, final or otherwise), which are adverse to or derogatory of the Prime Minister, if such comments require, before they can be properly made, an interpretation or application of provisions of Constitutional Laws by the Ombudsman Commission

65.	These questions are all ancillary to the finding to be determined by the Supreme Court under Questions 1, 3, 6 and more particularly as to whether the plaintiff is a person that falls under section 13 of the OLOC or whether he ought to have been investigated under Part III of the OLDRL.  

66.	These are indeed questions that require interpretation by the Supreme Court and must be referred.  They are not frivolous and vexatious.

Interim Injunctions

67.	The plaintiff’s notice of motion also seeks orders that a temporary restraining order be granted as against the defendants, restraining them from further investigating the plaintiff and publishing any further or final report in relation to that investigation making comments adverse or derogatory of the plaintiff pending the determination of the Constitutional questions referred to the Supreme Court, through these proceedings.

68.	The orders sought are set out at paragraph 2 (a) (b) (c) (d) and (e) of the Notice of Motion, set out in full, above.  The grant of interim injunctions is a matter of discretion, principles which have been decided by this Court over a period of time in this jurisdiction.  The Supreme Court has considered the principles for the grant of an interim injunction.  They are the following;

a.	 Are there serious questions to be tried and does an arguable case exist?

b.	Has an undertaking as to damages being given?

c.	Would damages be an adequate remedy?

d.	Does the balance of the convenience favour the grant of interim relief?

e.	Do the interest of justice require that the interim injunction be granted?
(see Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853)

69.	I discuss these principles below.

A:  	Are there serious questions to be tried and does the plaintiff have an arguable case.  

70.	I have set out in full above the order sought in the Originating Summons.  The orders sought are all Declarations which seek the proper interpretation and application of Section 219 (1) (a) of the Constitution;

71.	Sections 13 and 23 of the OLOC; and finally a permanent injunction restraining the defendants from investigating the plaintiff under section 219, (1) (a) of the Constitution, Section 13 of the OLOC; Section 23 of the OLOC and basically, from publishing the Report.

72.	I have, in my review of submissions by counsel, and the evidence put to the Court by the plaintiff, found that indeed these are matters to be referred to the Supreme Court which of course means that they are arguable issues and that there is an arguable case.

73.	Of course there is the argument that because the defendants did not present any submissions, that the submissions before me are rather lopsided.  However, to the contrary, upon a reading of those various provisions put to the Court, it is clear that these are issues that have never been considered in this jurisdiction and which are matters that must go to the Supreme Court for its proper interpretation and to put the matter to rest, once and for all.

B:  Has an undertaking as to damages been given?

74.	There is an undertaking as to damages filed on 20th January, 2015 and signed by the plaintiff.  It is document no. 4 on the Court file.  

C:  Would damages be an adequate remedy?

75.	Obviously, no.  The plaintiff is clearly not seeking damages but seeks to have certain questions referred to the Supreme Court for its determination.  Indeed, declarations and permanent injunctions are not reliefs for damages.

D:	Does the balance of convenience favour the granting of injunction?

76.	There is evidence that the Report contains very damning and derogatory material that is very defamatory of the plaintiff.  Apart from that, the process taken by the defendants is one that must not be critiqued by the Supreme Court and a decision made as to whether such a process is correct or proper.  Indeed, I find that the balance of convenience does favour the plaintiff.

Conclusion

77.	Of course, there is the argument that the questions put to the Supreme Court by the plaintiff are lengthy and convoluted.  However, my view is that the plaintiff’s lawyers, being very familiar with their case, have framed the questions in such a way, that would suit their client’s case and which will require the Supreme Court’s interpretation.  It is now for the Supreme Court to review those questions and make its final determinative decision.

78.	Therefore, all the questions put to this Court by plaintiff’s counsel in the form now before this Court will be referred to the Supreme Court.

79.	Finally, the plaintiff has requested that copies of the Report be placed in an envelope and provided to the Court after which a copy of the Report will be placed in an sealed envelope and marked with the proceedings no.  An additional order also sought is that that the envelope be opened only upon the order of this Court.  I find I need not make those orders because that order, in my view is unnecessary.  The interim injunction now issued, will serve the purpose sought by the plaintiff, by prohibiting the publication of such a report until after the Constitutional questions now referred have been determined.

Formal Orders

80.	These are the formal orders of the Court;

1.	The time for service of this Notice of Motion be abridged to the date of hearing of this motion.

2.	An order in the nature of an interim injunction restraining the First, Second and Third Defendants, by themselves, their servants and or agents from:

(a)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution;

(b)		investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission;

(c)		publishing, in any form, the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise;

(d)		publishing, in any form, the Provisional Report of December 2014, signed by the Second and Third Defendants; and

(e)		publishing, in any form, any amended Provisional Report or Final Report,

in relation to the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing, pending the determination by the Supreme Court of questions relating to the interpretation and application of provisions of  Constitutional Laws referred to it by this Court through these proceedings and the determination of the within National Court proceedings.
3.	Pursuant to Section 18(2) of the Constitution, the following Constitutional questions be referred to the Supreme Court:

1)		Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” , “employee” or “person” under Section 219(1)(a) of the Constitution.

2)		If the answer to question (1) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

3)		Whether, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” or “employee” under Section 13 of the Organic Law on the Ombudsman Commission.

4)		If the answer to question (3) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

5)		Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution and Section 13 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission lacks jurisdiction to publish the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

6)		Whether, on the proper interpretation or application of Section 17 of the Organic Law on the Ombudsman Commission, if the Ombudsman Commission has not informed the responsible person, in this case the Plaintiff, of its intention to make the investigation, it lacks jurisdiction to investigate and publish the results under Section 23 of the Organic Law on the Ombudsman Commission of any such investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

7)		Whether the Ombudsman Commission is and was required to comply with Section 17(1) of the OLOC, and in particular, inform the Prime Minister of its intention to make an investigation relating to conduct on the part of the Prime Minister:

(a)	Before investigating the Prime Minister “into the alleged  improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”;
(b) 	Issuing or publishing a document titled “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister;
(c)  	Issuing or publishing any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing”, making comments adverse to or derogatory of the Prime Minister.
8)		If the answer to question (7)(a) is yes, is any investigation conducted without so informing the Prime Minister ultra vires the power of the Ombudsman Commission.

9)		If the answer to question (7) (b) above is yes, is the issuing or publication of the titled, “Provisional Report”-“Investigation into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.

10)	If the answer to question (7)(c) above is yes, is any issuance or publication of any further or other report “into the alleged improper borrowing of AU$1.239 billion loan from the Union Bank of Switzerland, Aktiengesellschaft (Australian Branch) to purchase 149, 390, 244 shares in Oil Search Limited and improper tender and procurement of consultants in relation to the borrowing” ultra vires the power of the Ombudsman Commission.

11)	Whether the Ombudsman Commission has lawful authority, power or jurisdiction to make any comments in any report distributed or published by it (whether provisional, final or otherwise), which are adverse to or derogatory of the Prime Minister, if such comments require, before they can be properly made, an interpretation or application of provisions of Constitutional Laws by the Ombudsman Commission.

4.	Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

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Young & Williams Lawyers: Lawyers for the plaintiff 
Counsel for the Ombudsman Commission did not appear for the first, second and third defendants