Lua v Ombudsman Commission of Papua New Guinea [2015] PGNC 299; N6607 (14 May 2015)

N6607

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. (JR) No. 258 OF 2015

BETWEEN:
RIGO A. LUA, OBE, CHIEF OMBUDSMAN
First Plaintiff

AND:
THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Plaintiff

AND:
THE PRIME MINISTER AND CHAIRMAN OF THE OMBUDSMAN APPOINTMENTS COMMITTEE, HON. PETER O’NEILL, THE CHIEF JUSTICE, SIR SALMO INJIA, THE OPPOSITION LEADER, HON. DON POLYE, CHAIRMAN OF THE PERMANENT PARLIAMENTARY COMMITTEE ON APPPOINTMENTS, HON. PHILIP UNDIALU AND THE CHAIRMAN, PUBLIC SERVICES COMMISSION, DR PHILIP KEREME comprising the Members of the Ombudsman Appointments Committee
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kariko, J
2015: 13^th& 14^th May

PRACTICE & PROCEDURE – application for orders in the nature of mandamus – proceedings to be by way of judicial review under O 16– no jurisdiction to grant interim relief

Cases cited:
John Momis v Attorney-General [2000] PNGLR 109
NCDC v Yama Security Services Pty Ltd (2003) SC707
Peter Makeng v Timbers (PNG) Limited (2008) N3317

Legislation:
Constitution of the Independent State of Papua New Guinea
National Court Rules
Organic Law on the Ombudsman Commission

Counsel:
Ms T Suwae, for the Plaintiffs

RULING

14^th May, 2015

1. KARIKO J: The Chief Ombudsman Mr Rigo Lua turned 55 years yesterday which is the retirement age for an Ombudsman as provided by section 10(1) of the Organic Law on the Ombudsman Commission. Mr Lua notified the Ombudsman Appointments Committee by letter in January (and a couple of follow-up letters since then) of the approaching of this anniversary and requested that the Committee consider the extension of his appointment for another 5 years under section 10(2) of the Organic Law.
   
2. Section 10 reads:

“10. Retirement.

(1) Subject to Subsection (2), a person who has attained the age of 55 years shall not be appointed or re-appointed as a member of the Commission and a person shall not be appointed or re-appointed for a period that extends beyond the date on which he will attain the age of 55 years.

(2) The Head of State, acting with, and in accordance with, the advice of the Committee, may, for special reason in a particular case, appoint or re-appoint a person who is over 55 years of age to be a member of the Commission but in no case can any member of the Commission continue to act as a member after he has attained the age of 60 years.” (my underlining)

3. The Committee referred to in that provision is the Ombudsman Appointments Committee established under section 217(1) of the Constitution.
   
4. In seeking re-appointment, Mr Lua submitted and noted in his affidavit that there is “special reason” for the re-appointment. When it was realized that the Appointments Committee would not meet before the expiration of Mr Lua’sterm at midnight last night he and the Ombudsman Commission filed this suit and also an urgent application in the evening for interim orders pending the determination of the substantive matter. In this proceeding filed against the Ombudsman Appointments Committee and the State, the plaintiffs seek the following relief:
   
   1. Leave of the Court pursuant to Order 16 Rule 2 and Order 4 Rule 49(5)(ii) of the National Court Rules to apply for judicial review of the First Respondents, constituting the Ombudsman Appointment Committee pursuant to Section 217(2) of the Constitution, the decision to defer or postpone the appointment of a Member of the Commission namely the Chief Ombudsman after the expiration of his term and referred to in the Statement made under Order 16 Rule 3(2)(a) filed herein.
      
   2. A Declaration on the application of Section 217(2) of the Constitution, Mandatory Orders for the First Respondents comprising of person named there to namely the Chairman to immediately call or convene a meeting to appoint a Member of the Commission namely the Chief Ombudsman in compliance with Section 217(1) of the Constitution.
      
   3. Alternatively, a Declaration on the application of Section 217(1) of the Constitution, that a Member of the Commission namely the Chief Ombudsman to hold office until such time the First Respondent’s namely the Chairman, Prime Minister to call or convene a meeting to decide on an appointee.
      

The application

5. In the notice of motion filed as an urgent application pursuant to O4 r49(5) of the National Court Rules the plaintiffs seek these orders:
   
   1. An order so far as necessary under Order 4 Rule 49(5)(ii) of the National Court Rules dispensing with the requirements for service of this notice of motion.
      
   2. A Declaration on the application of Section 217(2) of the Constitution, Mandatory Orders for the First Respondents comprising of persons named thereto namely the Prime Minister and Chairman, to call and convene a meeting to appoint a Member of the Commission namely the Chief Ombudsman in compliance with Section 217(1) of the Constitution.
      
   3. Alternatively, a Declaration on the application of Section 217(1) of the Constitution, a Member of the Commission namely the Chief Ombudsman to hold office until such time the First Respondents namely the Prime Minister and Chairman to call and convene a meeting to decide on an appointee.
      
6. I heard the application ex parte accepting the matter as urgent because as Mr Lua states in his affidavit filed in support of the application that if he is not re-appointed or another person is not appointed as his replacement before today the country would not only be without a Chief Ombudsman but it would also have only one member of the Ombudsman Commission as the position of the Ombudsman (with Accounting qualifications) has been vacant for some time now. He stresses that this would obviously jeopardize the Ombudsman Commission from properly carrying out its important constitutional functions.
   

Judicial review

7. Ms Suwae of counsel for the applicant confirmed that this is a judicial review proceeding under O16 of the National Court Rules and I consider this to be the appropriate mode of proceeding as the applicants seek an order to compel the Ombudsman Appointments Committee to meet and decide on the appointment of the Chief Ombudsman, which I consider to be an order in the nature of a mandamus.
   
8. While Ms Suwae acknowledged that leave is first required for an application for judicial review she submitted that this Court has power to grant the interim orders before the grant of leave because of the urgency of the matter. This very point was considered by his Honour Injia, DCJ (as he then was) in Peter Makeng v Timbers (PNG) Limited (2008) N3317 where after a thorough discussion of the relevant provisions (in particular O16 r3(8) of the National Court Rules) and applicable case authorities his Honour concluded at [35]that “.. the Court has no jurisdiction to grant stay or other interim relief in a judicial review matter brought under O 16 before the grant of leave to apply for judicial review but only after leave is granted.”I endorse and apply that statement of law. As his Honour earlier noted earlier at [21]“the grant of leave for judicial review is a pre-condition to a grant of stay and any other interim relief in any judicial review matter. By the grant of leave, the Court grants itself jurisdiction to grant the relief sought, whether such relief be interim or substantive.” Because leave to apply for judicial review has not yet been sought nor granted, I have no jurisdiction to grant the interim orders sought.
   

Interlocutory relief in judicial review

9. Even if I did have the jurisdiction, Order 4 Rule 49(9)of the National Court Rules states that except as otherwise expressly provided by the Rules motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process. It is a well-settled rule of practice and procedure that the notice of motion procedure should not be used as a vehicle to obtain substantive relief. This rule was codified as a result of the National Court decision of then Kapi, DCJ in John Momis v Attorney-General [2000] PNGLR 109 and the Supreme Court decision in NCDC v Yama Security Services Pty Ltd (2003) SC707.
   
10. In this matter the substantive relief are also being claimed in this application. That is not permitted and this is another reason why I would refuse the application.
    

Remarks

11. Before concluding I make these brief remarks. I note the serious concerns raised by the plaintiffs in relation to the ability of the Ombudsman Commission to properly discharge its constitutional functions and duties starting today. I truly hope the relevant appointments are made today if not as soon as practicable as a matter of urgency and in the public interest and for purposes of good administration. It is rather unsatisfactory and unacceptable to say the least that the Ombudsman Appointment Committee appears not have accorded the important constitutional institution of the Ombudsman Commission and the Office of the Chief Ombudsman the priority and respect they deserve, leading to this unfortunate situation.
    

Order

12. The orders of this Court are:
    
    • (1) The application for interim orders by the plaintiffs in the notice of motion filed 13^th May 2015 is refused.
      
    • (2) This matter is adjourned for mention at 9.30am on 20^th May 2015.
      

______________________________________________________________

Legal Counsel for the Ombudsman Commission: Lawyer for the Plaintiffs