Micah v Lua [2015] PGNC 53; N5972 (20 May 2015)

N5972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 233 of 2015

BETWEEN:

HONOURABLE BEN MICAH, MP
Plaintiff

AND:

RIGO A LUA, CHIEF OMBUDSMAN
First Defendant

AND:

PHOEBE SANGETARI, OMBUDSMAN
Second Defendant

AND:

OMBUDSMAN COMMISSION
Third Defendant

AND:

PONDROS KALUWIN, PUBLIC PROSECUTOR
Fourth Defendant

Waigani: Nablu, AJ
2015: 8 & 20 May

JUDICIAL REVIEW – Application for leave –Section 8 of the Claims By and Against the State Act – State not named as a party – Decision of Ombudsman Commission to refer Leader to Public Prosecutor - Ombudsman Commission – Power to collect additional information––Section 21 of the Organic Law on Duties and Responsibilities of Leadership – Grounds of review are not meritorious – Administrative remedies have not been exhausted - Leave refused.

Cases cited:
Papua New Guinea Cases

NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Paul Asakusa v. Andrew Kumbakor (2008) N3303
Dr Rose Kekedo v. Burns Philip Ltd [1988- 89] PNGLR 122
Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5494
Mision Asiki v. Manasupe Zurenuoc (2005) SC 797
John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333
Supreme Court Reference by the East Sepik Provincial Government (2011) SC 1154
Ombudsman Commission v. Peter Yama (2004) SC 747
Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417
Grand Chief Sir Michael Somare v. Chronox Manek, John Nero and Phoebe Sangatari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC 1118
Wartoto v. The State (2015) SC 1411

Overseas Cases cited:

Inland Revenue Commissioners v. National Federation of Self Employed and Small Business Ltd [1982] AC 671

Counsels:

MM Varitimos & N Saroa, for the Plaintiff
A Chillion, for the State

20th May, 2015

1. NABLU, AJ: By way of an Originating Summons filed on 30th April 2015, the plaintiff, the Honourable Ben Micah, MP seeks leave to review the decision of the Ombudsman Commission (the first and second defendants) on 9th March 2015 to refer him to the Public Prosecutor for allegations of misconduct in office in breach of Division III.2 (Leadership Code) of the Constitution.

2. The application for leave is made pursuant to Order 16 Rule 3 of the National Court Rules and supported by the Statement in Support filed pursuant to Order 16 Rule 3(2)(a) and verified by the Affidavit of the Honourable Ben Micah filed on 30th April 2015. The plaintiff also relied on additional evidence such as the Affidavit of Alex Wilson filed on 4th May 2015 and the Affidavits of Nelson Saroa filed on 30th April 2015 and 4th May 2015 respectively.

3. A preliminary point was raised by the Court, and that was that the State was not named as a party to this application for leave. This gave rise to an issue in regard to the applicability of Section 8 of the Claims By and the Against the State Act whether this section can be invoked to give the State an opportunity to be heard.

4. Section 8 of the Claims By and Against the State Act provides that:

"Section 8 Leave for judicial review

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard (emphasis mine)."

5. Mr Varitimos of counsel for the plaintiff submitted that the Secretary for Justice was duly notified as per the prescribed requirement under Order 16 Rule 3(3) of the National Court Rules and therefore the application for leave should proceed ex parte'.

6. Upon perusing Section 8 of the Claims By and Against the State Act, only applications where the State is named as a defendant, then the Court should give the opportunity to the State to make an appearance and be heard on the application for leave. Justice Gavara- Nanu in his recent decision of Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5494 succinctly outlines the practice and procedure for applications for leave to apply for judicial review. His Honour expands on the decision of Injia DCJ (as he then was) in Peter Makeng v. Timbers (PNG) Limited (2008) N3317 with respect to the procedure for applications for leave and the form of the pleadings for an application for leave to apply for judicial review.

7. I agree and adopt the views of Gavara – Nanu J, in regard to the practice and procedure for applications for leave (Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (supra) at pages 4-12). In regard to the State's right to be heard pursuant to Section 8 of the Claims By and Against the State Act, His Honour stated that where the State is not named as a defendant, the Court still has the discretion to consider whether to hear an application for leave in the absence of the State.

8. In the present case, the State was not named as a party, I was of the view that State entities and agencies were named as defendants and the State would be prejudiced if they were not given an opportunity to be heard on the application for leave. In addition to that, this was a Leaders' application for leave for judicial review of the decision of the Ombudsman Commission to refer him to the Public Prosecutor, therefore undoubtedly, it was a matter of great public interest. Therefore, I exercised my discretion to adjourn the application to allow the State to make an appearance and be heard.

9. My view, is supported by two basic reasons. Judicial Review is the Courts inherent power to review administrative decisions (Dr Rose Kekedo v. Burns Philip Ltd [1988- 89] PNGLR 122). These administrative decisions are made pursuant to the decision – makers' powers derived from the application of the laws of the State. The other reason is that, the National Court Rules Order 16 Rule 3(3) prescribes the requirement for the Secretary for Justice to be notified two (2) days before an application for leave is made. Therefore, where the decision subject of review is made by entities and agents of the State, the State should be afforded the right to be heard at the application for leave stage, despite the fact that the State is not named as a party. In the case of Mision Asiki v. Manasupe Zurenuoc & Others (2005) SC 797, the Supreme Court held that the requirement to notify the Secretary for Justice under Order 16 Rule 3(3) is a requirement specifically applicable to judicial review proceedings and akin to the Section 5 Notice pursuant to the Claims By and Against the State Act.

10. Based on those reasons, the matter was adjourned and the matter returned on 8th May 2015 to give sufficient time for the State to obtain instructions and be heard. The State did not file any affidavit in response, however, Mr Chillion of counsel for the State indicated that the State opposed the application for leave. The State indicated that they would contest the requirements of an arguable case and the requirement to exhaust all administrative remedies.

11. The background of this matter is provided in the plaintiffs Statement in Support and the Affidavits in Support. The Honourable Ben Micah (the Leader) is an elected Member of Parliament representing Kavieng Open Electorate in New Ireland Province. The Leader seeks review of the decision of the Ombudsman Commission (Commission) on 9th March 2015 to refer him to the Public Prosecutor.

12. On 8th July 2014, the Leader was informed by way of a letter from the Commission to personally attend at the Office of the Ombudsman Commission on 11th July 2014. On that day, the Leader attended the meeting and was informed that there were four (4) allegations of misconduct in office made against him.

13. The Commission alleged that the Leader had interfered with the Board of PNG Power Limited. The second allegation was that the Leader had denied any knowledge of PNG Power Limited's financial crisis. Thirdly, it is alleged that the Leader used his office to obtain a benefit in hotel accommodation at the Grand Papua Hotel. The final allegation is that the Leader defied a directive by the Ombudsman Commission. The Leader was given a period of twenty-one (21) days to respond to the allegations. The Leader sought an extension of an additional twenty-one (21) days to respond to the allegations. On the basis of procedural fairness the Commission granted him a further 14 days which lapsed on 15th August 2014.

14. The Leader responded to the four (4) allegations on 15th August 2014, in writing as well as attending to and making a presentation at the Office of the Commission. He was accompanied by his Lawyer, First Secretary and Executive Officer.

15. Then on 9th March 2015, the Leader attended to the office of the Ombudsman Commission where he was advised that he was formally referred to the Public Prosecutor for misconduct in office in breach of the Leadership Code. According to the Leaders affidavit, the Chief Ombudsman gave him an envelope and verbally informed him that he had been referred to the Public Prosecutor for alleged misconduct in office. The Chief Ombudsman then requested that the Leader sign the acknowledgement indicating that he accepted the envelope which contained the referral documentation but in his frustration he pushed the envelope back at the Commission's officials and walked out of the conference room. In his affidavit the Leader stated that he was frustrated because of the fact that he did not hear from the Commission following his formal response on 15th August 2014. He also stated that he returned to the conference room and uttered words to the effect that he would battle this matter in Court. He never accepted the documents contained in the envelope.

16. After realising that he did not know the nature of the allegations he was been referred for, he attempted through his Secretary to obtain a copy of the allegations but was advised that the matter was referred to the Public Prosecutor and therefore, he should request the Public Prosecutor for a copy of the referral documents. The Affidavit of Nelson Saroa attests to his attempts to obtain copies of the referral documents.

17. As stated earlier, this Court has two requirements to determine and that is whether the Leader has an arguable case and whether the Leader has exhausted all the administrative remedies available before applying for leave for judicial review.

18. I will deal with the requirement of an arguable case first.

19. Mr Varitimos of counsel for the Leader argued that the Leader only needs to establish that he has an arguable case. He also submitted that after the Leader gave his response on 15th August 2014, there was a significant delay of eight (8) months. The delay was from the time he gave his response and the date of the decision to refer him to the Public Prosecutor which was made on 9th March 2015. It was also submitted that after the Leader gave his response the Commission continued their investigations and obtained further evidence from the General Manager of Grand Papua Hotel and the Chief Executive Officer of IPBC. The Leader argued through counsel, that he was denied natural justice and denied the opportunity to refute the additional evidence obtained in contravention of Section 59 of the Constitution. Counsel for the Leader submitted that the Ombudsman Commission did not observe the minimum requirement and that was the duty to act fairly and in principle be seen to act fairly.

20. Mr Chillion of counsel for the State argued that there was no breach of the Leaders right to be heard. The Leader was afforded the opportunity to be heard in response to the allegations and he exercised his right by providing a written response on 15th August 2014. Furthermore, the additional evidence and information collected by the Commission was not in relation to any new allegations which would consequently give rise to the Leaders right to be heard. The additional evidence collected related to the same allegations which the Leader had responded to. In the alternative, if the Court found that there was a procedural error, the error was not a serious breach of procedure or abuse of process, but a mere error and therefore it did not prejudice the Leaders' rights. Also alternatively, if the Court found that there was a breach of process, then the error was a mere error and was not sufficient to warrant the grant for leave for judicial review. Counsel for the State also submitted that the Leader still had the right to raise these issues before the Leadership Tribunal, if the Public Prosecutor brings the proceedings for misconduct in office as empowered by Section 177(1)(b) of the Constitution.

21. In considering whether the plaintiff has as arguable case, due consideration should be had, to the grounds of review pleaded in the Statement in Support filed under Order 16 Rule 3(2)(a) of the National Court Rules; Paul Asakusa v. Andrew Kumbakor (2008) N3303.

22. In this jurisdiction the Courts have cited with approval the test by Lord Diplock in the case of Inland Revenue Commissioners v. National Federation of Self – Employed and Small Business Limited [1982] AC 671 when determining whether to exercise its discretion to grant leave for judicial review. His Lordship stated at page 644 that:

"If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for judicial relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application".

23. This test was first accepted and applied by Wilson J in NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70. This principle has often been referred to and applied in numerous cases following approval by the Supreme Court in the case of Ila Geno & Others v. The Independent State of Papua New Guinea [1993] PNGLR 22.

24. In the present case, the Leader advances two main grounds of review as provided in his Statement in Support. They are:

1. That the Ombudsman Commission acted ultra vires and in excess of jurisdiction, when they made the decision on 9 March 2015 to refer him, when they denied his right to be heard in relation to the additional information and evidence they obtained after the leader gave his response on 15th August 2014.
   
2. Secondly, the Ombudsman Commission failed to give good, proper, sufficient or meaningful reasons for the decision to refer him to the Public Prosecutor.
   

25. In considering whether the Leader has an arguable case, the following legal issues are presented before this Court for determination. They are:

1. Whether the Ombudsman Commission breached the procedure when additional evidence was obtained after the Leader had provided his response to the allegations on 15th August 2014?
   
2. Whether the Leader was denied natural justice when he was not given an opportunity to challenge the additional evidence after he gave his response to the allegations?
   

100. Whether the Ombudsman Commission breached the procedure and denied him his rights to natural justice when they did not provide reasons for the decision to refer him to the Public Prosecutor?
     

26. Section 217(6) of the Constitution provides immunity against review of the proceedings of the Commission by the Supreme Court and National Court. The power of the Courts to review is limited only to grounds, where the Commission has exceeded their jurisdiction (See John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333).

27. In the first ground, the Leader argues that the Commission acted ultra vires and exceeded their jurisdiction when they obtained additional evidence after the Leader responded to the allegations.

28. It is evident that the Ombudsman Commission is given a vast array of powers under the Organic Laws and has a high degree of protection in the Constitution inorder to ensure that they carry out their Constitutional functions and responsibilities accordingly. Section 20 of the Organic Law on Duties and Responsibilities of Leadership (OLDRL) provides for the proceedings of the Commission. Every investigation conducted under the OLDRL is conducted in private (Section 20(1) of the OLDRL). The Commission before taking action may hear or obtain information from any person the Commission considers can assist with the inquiries and notify the person whose conduct is being investigated before referring the matter to the Public Prosecutor (Section 20(2) and 20(4) of the OLDRL).The relevant sections of the OLDRL which relate to the collection of evidence or powers to obtain information and evidence is provided for in Sections 21 and 22 of the OLDRL.

29. In my view, the relevant section is Section 21(1) which is necessary for me to reproduce below;

Section 21 (1) Subject to the provisions of this section and of Section 22, the Commission or other authority may from time to time require any person who in its opinion is able to give any information relating to any alleged or suspected misconduct in office by a person to who this law applies that is being investigated by the Commission or other authority to furnish to it that information and to produce any documents, papers or things that, in the opinion of the Commission or other authority, relate to any matter being investigated by it and that may be in the possession or control of that person (emphasis mine).

30. Counsel for the Leader argues that the Commission exceeded their powers when they obtained evidence and information after the Leader had given his response on 15th August 2014. I do not accept those submissions for the reasons that Section 21 (1) of the OLDRL states that the Commission or other authority may "from time to time" require any person to give information for any alleged or suspected misconduct in office. This Subsection must be construed, in particular the meaning of the phrase "from time to time" must be considered inorder to determine whether the Commission exceeded their powers to obtain additional information and evidence. The phrase "from time to time" has been judicially construed in a number of cases to mean "as occasion may arise". I refer to the Supreme Court Reference by the East Sepik Provincial Government (2011) SC 1154, Gavara- Nanu J in his Judgment considered the meaning of the phrase "from time to time" and referred to a number of cases which supported the construction of the phrase "from time to time" to mean "as occasion may arise".

31. The construction of the phrase "from time to time" in Section 21 (1) of the OLDRL supports my view that the Commission is not precluded from obtaining any further evidence or information. The Commission can still utilize this power, even after the Leader has responded to the allegations, as was the case here.

32. I find that the allegations were the same, and Commission only exercised their duty to collect additional information and evidence, in relation to the allegation of the Leader using his office to obtain a benefit in hotel accommodation.

33. Therefore in relation to the first ground of review I find that the ground of review has no merit and is not arguable. In my view the Commission did not exceed their powers under the Constitution or the OLDRL. Section 21(1) of the OLDRL gives the power as occasion may arise to obtain additional information.

34. In the second ground of review, the Leader argues that he was not given good, proper, sufficient or meaningful reasons for his referral to the Public Prosecutor contrary to his rights to Natural Justice as enshrined in Section 59 of the Constitution.

35. It is trite law, that public authorities have a duty to give reasons for their decisions. Even if that duty is not expressly provided for under the respective legislation they administer, they are still bound by the principles of natural justice as enshrined in the Constitution. A case on point is the Supreme Court case of Ombudsman Commission v. Peter Yama (2004) SC 747, the Supreme Court held that even though the provisions of the Organic Law did not expressly provide for the Commission to give reasons for the decision to refer the Leader to the Public Prosecutor, the Commission a constitutional entity is still required and obliged under the Constitution and the principles of natural justice to give meaningful and sufficient reasons for the decision.

36. Also the Supreme Court in Asiki v. Zurenuoc & Others (supra) also stated that when considering whether to implement or refuse the recommendation of the Public Services Commission, the departmental head, (or the Provincial Administrator as in this case) was under a duty to observe the principles of natural justice and give cogent and convincing reasons for refusing to comply with the recommendations.

37. Therefore, it is settled law that public authorities are obliged to observe the principles of Natural Justice and provide reasons for their decisions.

38. Turning to the present case, according to the evidence before me, the Leader was given the opportunity to respond to the allegations which he did so on 15th August 2014. Also in his affidavit, the Leader says he was frustrated and pushed the Notice of Referral back to the Commissions' officials in the presence of the Chief Ombudsman, and refused to sign the acknowledgement of service of the Notice of Referral. The Leader also annexes a copy of the letter by the Commission which stated that he refused to accept the documents and endorse the acknowledgement letter.

39. It is not disputed that the Ombudsman Commission is obliged to observe the principles of natural justice as enshrined in the Constitution and paramount to this is the duty to give reasons.

40. Therefore, when applying the law to the facts of this case, the Leader was given the opportunity and he refused to accept the referral documents. He cannot now come to Court and argue that the Commission did not provide reasons for his referral.

41. To answer the legal issues posed, the answer to the first issue is that the Ombudsman Commission did not breach procedure or breach provisions of the OLDRL. In relation to the second issue, there was no denial of the right to natural justice. The Leader was afforded the right to be heard and he exercised his right on 15th August 2014. In regard to the issue of whether the Ombudsman Commission breached procedure when they did not disclose any reasons for the referral. Based on the evidence, the Leader refused to accept the reasons. The Ombudsman did discharge their duty to give reasons. Therefore the answer to that issue is that the Commission did not breach procedure or deny the Leaders right to natural justice. This demonstrates that there are no serious issues to be determined.

42. I am mindful that this is an application for leave for judicial review and I am to consider the application based on the evidence and material provided by the plaintiff and the Statement in Support filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules. I have considered both counsels arguments and weighed the different arguments and considerations and conclude with the firm view, that these grounds of review are not arguable and have no merits.

43. It is settled principle of law that judicial review is not available where the applicant has not exhausted all the administrative remedies (See Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417).

44. In the Supreme Court case of Grand Chief Sir Michael Somare v. Chonox Manek, John Nero, and Phoebe Sangatari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC118, the Court outlined the procedure for misconduct in office under the Leadership Code, Constitution and the OLDRL and in particular highlighted the fact that the Leader can still raise these preliminary issues before the Leadership Tribunal. It was held that the Leader's Constitutional rights are not extinguished upon being referred to the Public Prosecutor. The functions and responsibilities of the Ombudsman Commission and the Public Prosecutor are separate and distinct from each other. The Public Prosecutor still has the power to make an independent decision to either refer the matter to a Tribunal or decline to prosecute, according to Section 177(1)(b) of the Constitution.

45. In the recent Supreme Court decision of Wartoto v. The State (2015) SC 1411, it was unanimously held by a five Judge Bench, that the National Court sitting in its civil jurisdiction should not interfere with criminal proceedings. An accused person still has the right of protection of the law under Section 37 of the Constitution and he or she can still exercise the other avenues for redress available to him or her under the Criminal Justice System, the Criminal Code and Criminal Practice Rules.

46. I do note that the offence of misconduct in office is not a criminal offence per se and it is referred to as been in the nature of quasi – criminal offences. I am of the view that the principles pronounced in Wartoto v. The State (supra) are applicable to proceedings under the Leadership Code. The Leaders' rights are not extinguished when he is referred to the Public Prosecutor. In my view, the Leader can raise those preliminary issues before a Leadership Tribunal, if the Public Prosecutor brings proceedings under the Leadership Code for misconduct in office against the Leader.

47. It should be noted that the matter is now before the Public Prosecutor to independently review the referral and consider whether to prosecute or decline prosecution for misconduct in office. The Public Prosecutor has not yet discharged his Constitutional duty to consider the referral by the Commission, review the evidence and determine whether to prosecute or decline to prosecute. I am of the view that there is no evidence before the Court which justify intervention or interference of the referral process from the Ombudsman Commission to the Public Prosecutor under the Leadership Code.

48. Therefore, I am of the view, that the Leader has not exhausted all administrative remedies available to him.

49. In conclusion, I am not convinced that the Leader has an arguable case and that there are no serious issues to be determined in order to invoke the Courts power of judicial review. The grounds of review are without merit and it is evident that the Leader can still exhaust the administrative remedies available to him in the Leadership Tribunal if the Public Prosecutor considers prosecuting him for misconduct in office. The Leader's Constitutional rights are not affected because of the fact that he has been referred to the Public Prosecutor nor is he barred from raising any preliminary issues he considers necessary to raise before the Tribunal, in the event the Public Prosecutor exercises his powers to prosecute under Section 177(1)(b) of the Constitution.

50. For those foregoing reasons, I exercise my discretion to refuse leave to apply for judicial review and award costs to the State.

_________________________________________________________
Nelson Lawyers: Lawyer for the Plaintiff
Solicitor General's Office: Lawyer for the Defendants