Ombudsman Commission v Yama [2004] PGSC 30; SC747 (2 June 2004)

SC747

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCM. No. 2 of 2003

BETWEEN:

OMBUDSMAN COMMISSION

- Appellants

AND:

PETER YAMA

- Respondent-

WAIGANI: Injia Dep CJ, Sakora & Sawong JJ
2004: March 31st, June 2nd

JUDICIAL REVIEW – Practice and Procedure – Administrative action – Leadership Code – Ombudsman Commission’s decision to refer leader to Public Prosecutor for prosecution before Leadership Tribunal – Delay in making application – Application made six (6) years after decision –Decision superseded by Public Prosecutor’s decision to proceed with the matter – Leadership Tribunal already established upon Public Prosecutor’s request – Undue delay – Inappropriate to seek review of Ombudsman Commission’s referral - Certiorari not available – National Court Rules O16r4.

JUDICIAL REVIEW –Leadership code – Administrative action – Principles of Natural justice – Reasons for decision - Ombudsman Commission’s duty to give reason for decision to refer Leader to Public Prosecutor - Constitution, S.59.

CONSTITUTIONAL LAW – Constitutional offices and functions – Distinct and independent functions of the Public Prosecutor and the Ombudsman Commission in Leadership Code matters discussed – Distinct and different types of "referral" by Ombudsman Commission and Public Prosecutor discussed – Constitution s.29, S.176, S.177, S.219; Organic Law on Duties and Responsibilities of Leadership s.17(d), s.20(4), S.27(1), (2) & (3).

Cases cited in the judgement:
Gegeyo v Minister for Lands [1987] PNGLR 331
General Electrics Co Ltd v Price Commission [1975] ICR 1
Breen v Amalgamated Engineers Union [1975] 2 QB 175
John Mua Nilkare v The Ombudsman Commission, N1344 (1995)
Kelly Yawip v Police Commissioner [1995] PNGLR 93
Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996)
Margaret Misso and two (2) Others v Minister for Lands [1987] PNGLR 331
Michael Kapa Wena v Police Commissioner N1570 (1997)
Application of Moge Enga [1995] PNGLR 031
Nilkare v Ombudsman Commission SC498 (1996)
Ninggints v Tokam [1993] PNGLR 70
Ombudsman Commission v Donohoe [1985] PNGLR 348
Tony Chan & Golden Bowl Pty Ltd v Ombudsman Commission (Unreported judgment of the National Court (2001).

Counsel:
D. Cannings with N. Yalo for the Appellant
A. Jerewai for the Respondent

2 June, 2004

BY THE COURT: The Appellant (the "Commission") appeals against the decision of the National Court ("the Court") given on 4 March 2003. In that decision, the Court granted an application for judicial review under Order 16 of the National Court Rules ("NCR"). Consequently the Commission’s decision made on 14 July 1997 to refer the Respondent to the Public Prosecutor for prosecution before a Leadership Tribunal, on nine (9) counts of misconduct in office, was quashed.

There are seven (7) grounds of appeal which raise issues of mixed fact and law. Each of them is particularized in extensive detail in the Notice of Appeal with reference to His Honour’s judgement, and it is not convenient to set them out in full. We set out the head grounds only. These are:-

1. Error of mixed fact and law by failure to make findings of the fact: The trial judge erred by not making findings of fact on the basis of which the Court’s consideration of the grounds of judicial review could take place.
   
2. Error of law by finding breach of natural justice for failure to give notice: The trial judge erred by finding that the Commission had breached the rules of natural justice by not giving Respondent notice of its decision to refer him to the Public Prosecutor.
   
3. Error of law by finding breach of natural justice for failure to give reasons: The trial judge erred by finding that the Commission had breached the rules of natural justice by not furnishing to the Respondent its reasons for its decision to refer him to the Public Prosecutor.
   
4. Error of law by finding Wednesbury principle of unreasonableness: The trial judge erred by finding that the Commission’s decision to refer the Respondent to the Public Prosecutor was unreasonable under the Wednesbury principles.
   
5. Error of law by determining application on grounds other than those pleaded: The trial judge erred by upholding grounds of review that had not been set out in the Respondent’s Order 16 Rule 3(2)(a) statement, contrary NCR, O 16 r 6(1).
   
6. Error of law by failing to find excess of jurisdiction: The trial judge erred by not considering whether, and how, by making its decision to refer the Respondent to the Public Prosecutor, the Commission exceeded its jurisdiction.
   
7. Error of law by failing to exercise any discretion regarding remedies: The trial judge erred by failing to exercise the Court’s discretion as to whether the relief sought by the applicant for judicial review should be granted.
   

We begin with the task of ascertaining the background facts of the case. This depends on the findings of fact by the National Court in disputed or undisputed areas of the evidence before it. But there is a problem with this and the problem is conveniently addressed in the Commission’s first ground of appeal. The Commission’s counsel, Mr Cannings then requests us to endorse his own version of chronology of relevant events, some of which are discerned from the evidence before the National Court.

Having heard Mr Cannings of counsel for the Appellant and Mr Jerewai’s of counsel for the Respondent on the first ground of appeal, we are of the view that the judgment of the Court is of little assistance in establishing the necessary facts because the Court did not deal with the evidence in some coherent and comprehensive manner. There are no clear and comprehensive findings of fact uncontested from the affidavit evidence presented before the Court by both parties. For this reason, we wish to re-visit the evidence before His Honour and set out the facts.

On 17th July 1992, the Respondent was elected the Member for Sumkar Open in the National Parliament for a term of five (5) years. On 7th – 30th September 1994 and again from 28th September 1995, the Respondent was the Minister for Works. Between 1993 – 1996, the Commission conducted investigations into possible breach of the Leadership Code over misuse of public funds and other matters against the Respondent whilst he was in office.

On 4th September 1996, the Commission wrote to the Respondent setting out some eighteen (18) allegations of misconduct in office. The letter entitled "YOUR RIGHT TO BE HEARD ON ALLEGATIONS OF MISCONDUCT IN OFFICE" stated the purpose of the letter, the details of the allegations and his right to be heard in relation to the allegations. The letter was issued in compliance with Section 20(3) of the Duties and Responsibilities of Leadership (OLDRL).

On 22nd October 1996, the Respondent replied to the allegations, in writing, in detail. On 4th April 1997, the Commission, in writing, by letter entitled "NOTICE OF REFERRAL OF A MATTER CONCERNING YOU TO THE PUBLIC PROSECUTOR" gave notice of its intention to refer the matter to the Public Prosecutor for prosecution. This letter was issued under S.20(2) of the OLDRL. On 7th April 1997, the letter was personally hand-delivered to the Respondent at his office, by two (2) of the Commission’s Senior Investigators namely, Mr Andrew Ikufu and Mr Conrad Turalir. According to the affidavits of Mr Ikufu and Mr Turalir, both sworn on 28th February 2003, which were before the court and not contested by the Respondent, the Respondent refused to accept the letter. But he read the pink copy of the letter and refused to sign it as acknowledging receipt of the letter. He told them he was a millionaire and for him to steal K10,000.00 or so was not on. He threw three (3) bundles of K20.00 notes, one (1) bundle of US$20.00 notes and five (5) bundles of K50.00 notes on the table, and told them "I don’t look for money. I am a big boy." In a letter dated 8th April, the Commission wrote to the Respondent explaining concern over the events of 7th April 1997 and confirmed its intention to refer him to the Public Prosecutor.

On 14th July 1997, the Commission referred the Respondent to the Public Prosecutor for prosecution. As required by S.27(1) of the OLDRL, it submitted its opinion on the matter together with a Statement of Reasons. On the same day, the Commission wrote to the Respondent confirming its previous intention to refer him and notifying him of the actual referral. There is no evidence that the Commission provided copies of the referral documents and Statement of Reasons to the Respondent. In the 1997 General Elections the Respondent contested the elections but was not re-elected.

Between March – July 2002, the General Election was conducted. Between 19th February 2002 (and 30th July 2002), there were newspaper reports on the subject of the referral by the Commission.

Between 14th July 1997 – July 2002, the Public Prosecutor did not act on the referral. We infer the reason being that the Respondent did not hold public office and hence was not subject to the Leadership Code. On 30th July 2002, the Respondent was elected to office as the Member for Usino – Bundi in the National Parliament. On 28th November 2002, the Public Prosecutor decided to proceed with the matter and requested the Chief Justice to appoint a Leadership Tribunal. There is no evidence that the Public Prosecutor informed the Respondent of this decision.

On 6th February 2003, the Chief Justice appointed a Leadership Tribunal comprising of Mr. Justice Hinchliffe as Chairman and Senior Magistrates Mr. Frank Mawe and Mr. Patrick Monoluk.

On 20th February 2003 the Respondent filed an application for leave for judicial review of the Appellant’s decision of 14th July 1997 to refer him to the Public Prosecutor. The application was based on two (2) grounds – (1) Breach of Principles of Natural Justice: The Commission failed to give notice to the Respondent of its decision to refer him to the Public Prosecutor under S.29(1) of the Constitution and Sections 17(d), 20(4) and 27(1) of OLDRL. Further, the Commission did not furnish the Respondent with the reasons for its decision to refer him to the Public Prosecutor. (2) Unreasonableness under the Wednesbury principles: The Commission acted unreasonably in referring him to the Public Prosecutor after he gave his response to the allegations on 22nd October 1996, in that an opinion on a prima facie case of misconduct in office could not have been arrived at and any reasonable statutory body would not have made such decision in the circumstances. Even when the Commission referred him, he was not given any reasons for the decision to refer.

On 21st February 2003, the application for leave was argued before the National Court. On 24th February 2003, the Court granted leave. On 28th April 2003, the substantive application was heard. On 4th March 2003, the Court delivered judgement granting the application. The Court found, inter alia, both grounds substantiated and granted the application and quashed the referral.

Extensive arguments were made before us by the parties on each of the grounds of appeal. We deal with them in the context of the main issues raised in the grounds of appeal and argued before us. We address those arguments in the context of the procedural and substantive requirements of an application for judicial review of administrative action under NCR, O 16.

1. Nature and scope of judicial review
   

The principles on the nature and scope of judicial review of administrative action of public authorities are established in many cases. Judicial review is about the process by which the decision is arrived at and not about the correctness of the decision. Judicial review is the process by which a person who is genuinely aggrieved by the decision of the public body seeks judicial relief when all other administrative and statutory avenues for appeal or review have been exhausted. Proper matters subject of judicial review are illegality, procedural impropriety and irrationality or unreasonableness. The applicant must come to the Court promptly if he or she is genuinely aggrieved. The nature of judicial review is sufficiently described by the learned authors of Review of Administrative Action, in the following statement:

"The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy..." (Review of Administrative Action, Law Book Company 1987, at p.22, adopted in John Mua Nilkare v The Ombudsman Commission, N1344 (1995)).

2. Proper grounds of judicial review
   

Under NCR O16 r 6(1), the applicant is restricted to the grounds of review set out in the statement filed under O16 r 3.

Mr Cannings submits that the Court erred in holding that the Commission is obliged to give the leader a further opportunity to explain his actions, after the leader has been given his right under OLDRL, S.20(3). The Court also erred in finding that the Commission failed to give reasons for its decision to refer him. These grounds were not pleaded in the statement.

We do not consider it necessary to address this argument on its own. It is dealt with in the context of our discussions on the grounds relating to notice of the referral and reason for decision.

3. Delay in making the application
   

An applicant must act promptly in seeking judicial review of the decision if he is genuinely aggrieved by the decision. Under NCR O16 r 4(1), the National court may refuse the application for leave or the application, if in its opinion, there was undue delay in seeking judicial review. Under O16 r 4(1) the relevant period to make an application is four (4) months from the date of decision.

The decision sought to be reviewed was the decision of the Commission made on 14th July 1997 to refer the Respondent to the Public Prosecutor. The Respondent was notified of this decision on 14th July 1997. He chose not to challenge that decision even when he had lost office, to protect his future interest in public office. More than five (5) years went by. This shows that the Respondent was not genuinely concerned of the Commission’s decision. His concern came to the fore when he was a candidate in the 2002 General Elections and after his election to office.

The Respondent filed these proceedings some six (6) years later after the Public Prosecutor acted on the referral. In his affidavit filed before the National Court, the Respondent did not explain the delay as required of him in O 16 r 4(1).

The Court erred in failing to address the issue of delay on the part of the Respondent both at the leave stage and in the substantive hearing.

4. The proper decision the subject of judicial review? Review of the Commission’s decision to refer the Respondent to the Public Prosecutor or the Public Prosecutor’s decision to refer the Respondent to the tribunal?
   

In the Originating Summons seeking leave and the Statement in Support filed under O16 r 3, the Respondent challenged the Commission’s decision to refer him to the Public Prosecutor. In arguments before us, it appeared to us that there were some confusion on the part of the Respondent’s counsel between a "referral" by the Commission to the Public Prosecutor and a "referral" by the Public Prosecutor to a Leadership Tribunal appointed by the Chief Justice. In our view, the two (2) "referral" decisions are distinct and separate. They should not be confused.

Mr Cannings has addressed some of the relevant provisions of the Constitution and the Organic Law on Ombudsman Commission (OLOC) and OLDRL at length in his submissions in order to show the clear demarcation of responsibilities on Leadership Code matters between the two independent Constitutional offices and the two different types of "referrals" made by these two (2) offices. We set out and discuss the relevant provisions.

The Commission’s referral to the Public Prosecutor is governed by the Constitution S.29(1) and OLDRL S. 17(d), S.20(4) and S.27(1),(2). Constitution, S.29(1) provides:

"Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions)."

Section 17(d) of the OLDRL provides:

"For the purposes of this Law, the functions of the Ombudsman Commission, in addition to the functions specified in Section 27 (responsibilities of office) and 29 (prosecution of misconduct in office) of he Constitution and elsewhere in this Law, are:-

(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 judgment, there is evidence of misconduct in office by a person to whom this Law applies."

Section 20(4) of OLDRL provides:

"If, after an investigation, the Commission is of the opinion that there is evidence of misconduct in office by a person to whom this law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."

Section 27(1) of the OLDRL provides:

"If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion-

(a) to the Public Prosecutor; or
(b) to the appropriate tribunal referred to in Subsection (7)."

The Public Prosecutor’s referral of a matter to a Tribunal is set out in OLDRL, S.27(2) which provides:

"If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7)."

In the case where the Public Prosecutor fails to refer the matter to a Tribunal of the matter referred to him by the Commission, the Commission may itself refer the matter to a Tribunal. Section 29(2) of the Constitution and OLDRL S.27(1)(supra) and Subsection (2) provides for this. Section S.29(2) of the Constitution provides:

"If the Public Prosecutor fails to prosecute the matter within a reasonable period the Commission may prosecute it in his stead."

Section 27(3) of the OLDRL provides:

"Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (1)."

The office of the Public Prosecutor and the office of the Commission are completely separate offices with distinct and independent functions established under the Constitution. The office of the Public Prosecutor is established by Constitution S.176. The functions of the Public

Prosecutor are spelt out in Constitution S.177(1): Its primary function is as the title says, to "prosecute" cases. Under S.177(1)(a), his function includes prosecuting criminal cases on behalf of the State in the National Court and District Courts.

The Public Prosecutor’s function in Leadership Code matters is spelt out in Constitution, S.177(1)(b) Constitution, S.29(1) and OLDRL, S.27(3). Under Constitution, S.177(1)(b) in relation to a matter referred to him by the Commission, he is empowered to make a decision "to bring or to decline to bring proceedings under Division 111.2 (Leadership Code) for misconduct in office". By virtue of Constitution, S.29(1) and OLDRL, S.17(d), S.20(4) and s.27(1) and (2); he must " prosecute" the Leader before the Leadership Tribunal.

Reading together Constitution, S.177(b) with Constitution, S.29(1) and OLDRL, S.17(d), S.20((4) and S.27(2), the Public Prosecutor has two basic functions on Leadership Code matters. He must decide whether to "bring or decline" to bring the proceedings in the matter referred to him by the Commission, before a Leadership Tribunal appointed under the Leadership Code. If he so decides, then he must "prosecute" the matter before the Tribunal.

The Commission is established by S.217 of the Constitution S.217. Its functions are prescribed by the Constitution S.219 and it is primarily "investigative".

The relationship between the Commission and the Public Prosecutor insofar as Leadership Code matters are concerned as set out above must be clearly understood. The Commission and the Public Prosecutor are independent offices established under the Constitution. Except for the Commission’s power under OLDRL, S.27(3)(b) and Constitution, S.29(1) to refer a leader directly to a Tribunal, the Commission’s function is primarily investigative.

The investigative functions of the Commission and the prosecution functions of the Public Prosecutor in the Leadership Code matters are separate from each other and they should not be confused. The functions of these two (2) offices must be kept strictly separate and not blurred or clouded by interactions between these two (2) offices in the discharge of their respective functions on Leadership Code matters so that confusion such as the one we have seen in this case is not repeated in the future. The Commission is not an agency or division of the Public Prosecutor or vice versa. As far as the Public Prosecutor is concerned, the Appellant is one of many other referral bodies such as Committal Courts, which refer police prosecutions on indictable offences, to be prosecuted in the National Court, by that office. The Commission does not enjoy any special privileges with the Public Prosecutor which extend beyond the formal referral.

In the present case, in our view, the Public Prosecutor made an independent decision under Constitution, S.29(1) and 177(1)(b), and OLDRL, S.27(2) to refer the matter to a Tribunal which was established upon his request by the Chief Justice. His independent decision superseded the Commission’s decision. The functions of the Commission ceased upon the referral to the Public Prosecutor. Therefore, the decision challenged by the Respondent was the wrong decision to challenge. If there was any challenge to be made, it was the decision of the Public Prosecutor. The time for challenging the Commission’s decision was within four (4) months from the date of the Commission’s decision to refer him. This issue was not addressed by the Court, both at the leave stage and substantive application.

Consequently, in our view, the Court confused and misconceived itself as to the two (2) distinct types of "referrals". The Court’s confusion on the two types of referral is apparent from the Court’s judgment. At p.4 of the Court’s judgement, the Court first referred to the lapse of ten (10) months from date of the Respondent’s reply and date of referral to the Public Prosecutor, then followed by the lapse of one Parliamentary term of five (5) years plus one (1) more year. His Honour then states:

"True, by law the Ombudsman Commission is not estopped from resurrecting any charges or offences against a leader and referring them to the Leadership Tribunal. But the leader in this case still asks in view of the lapse of time and in view of the responses he had already given what other additional reasons that the Commission had in insisting on making a reference."

There are three (3) fundamental misconceptions of the law apparent from the above text. First, the Commission could not lawfully, and did not "resurrect" any offences or charges against the Respondent after it has completed its investigative function and referred him to the Public Prosecutor. Second, the Commission could not lawfully, and did not "refer" any "charges" or "offences" to the Leadership Tribunal because the Commission referred the matter to the Public Prosecutor and not to the Tribunal directly. The Public Prosecutor then in the exercise of its independent discretion referred the matter to the Tribunal. Third, the Commission could not lawfully, and did not in this case, "insist on making a reference" to the Public Prosecutor, after it had already made the reference to the Public Prosecutor on 14th July 1997.

The action the Public Prosecutor took in relation to the matter, thereafter is in the independent exercise of his discretionary power.

We are of the view that the Court erred in the application of relevant provisions of the Constitution and OLDRL we have set out and discussed above.

5. Was the Respondent given notice of the referral by the Commission?
   

At p.7 of his judgement the Court refers to the Commission’s burden to give notice of the referral and reasons for the referral to the Respondent in the time "between the decision to refer and referring". The Court said:

"As a judge and Constitutional officer, I do appreciate and feel the burden. I consider however that insufficient time and inability for any reason are not sufficient answer to abrogate a person’s right to receive notice and reasons to refer him to the Public Prosecutor. There may be other reasons too, but two (2) clears reasons are, firstly, that a leader’s further explanation may diminish reasons for the referral. Secondly, a leader may doubly be sure that there has been no other reasons to refer him than the reasons prescribed and expected in the Organic Law on Leadership. Having addressed the issue as much as possible, I am satisfied with the reasons for an application under both heading (natural justice and Wednesbury’s principle)."

In our view, the Court did not make any findings of fact and discuss the relevant law on the Commission’s failure to give notice of the referral to the Respondent and the reasons for the referral. We are of the view that the Court’s above findings are without any factual and legal basis.

If the Court had considered the evidence and made proper findings of fact, as we have done, then the Court would have concluded that the Commission did give notice of the referral to the Respondent on two (2) separate occasions. The uncontested affidavit evidence of Mr Ikufu and Mr Turalir, as we have found is that the Respondent was given notice of the referral, on two (2) occasions. This fact was not disputed before the court below or before us.

It seems to us that the Respondent is confused with the "referral" by the Commission to the Public Prosecutor, to which he was given notice, and the "referral" by the Public Prosecutor to the Tribunal of which he was not given notice by the Public Prosecutor.

We are of the view that the Court erred in law in this respect.

6. The requirement for the Commission to give the leader referred reasons for its decision to refer?
   

The grounds relating to the giving of reasons for decision is based on the premise that the Court found the Respondent was not given notice of the decision to refer and the reasons for it before the referral was made and also at the time of the actual referral. But we have found that the Commission did give him notice of the referral and we proceed to deal with the submissions on this basis.

Mr Cannings submits that there was no requirement to give the Respondent the reasons for the referral or provide him copies of its opinion and the Statement of Reasons. The only requirement is that the Commission is required to provide its opinion and the Statement of Reasons for its opinion to the Public Prosecutor under OLDLR, S.27(2) or under S.27(3) to the Tribunal. Even if it were a requirement of the principles of natural justice, the reasons for decision were given in the notification letter dated 4th April 1997 wherein the Commission informed the Respondent that "having taken into account of your submissions, the Commission has deliberated on this matter and formed the opinion that there is a prima facie case that you have been guilty of misconduct in office" and the Commission gave him notice under Constitution S.20(2) of its intention to refer the matter to the Public Prosecutor, on nine (9) allegations set out in that letter. The actual referral was made on 14th July 1997 and the Respondent was notified of this decision by letter.

Mr Jerewai submits, the Respondent was entitled to be given the reasons for the referral. This was not done until 24th February 2003 when the Respondent was provided with copies of the referral documents and Statement of Reasons given to the Public Prosecutor earlier in 1997. This was after a lapse of some six (6) years, when the Commission saw the need to give him the reasons for the referral.

The relevant provision is OLDRL, S.20 which states:

"(1) Every investigation by the Commission or other authority under this Law shall be conducted in private.

(2) The Commission or other authority may hear or obtain information from any person who the Commission considers can assist and may make whatever inquiries it thinks fit and shall, before taking action under Subsection (4) notify the person whose conduct is being investigated.

(3) Nothing in this Law compels the Commission or other authority to hold any hearing and no person, other than the person whose conduct is being investigated is entitled as of right to be heard by the Commission.

(4) If, after an investigation, the Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."

We accept Mr. Cannings’ submission that there is no express requirement in OLDRL, S.20 on the Commission to provide the person investigated or the Respondent in this case, copies of referral documents including its Opinion document and the Statement of Reasons. We also accept that there is no express requirement in OLDRL, S.20 which requires the Commission to furnish to the person investigated the reasons for the referral. We do not however accept his submission that the Commission is not obliged under principles of natural justice developed under the common law and equity to give to the Respondent reasons for its decision to refer him to the Public Prosecutor (or the Tribunal as the case may be).

From a public administration perspective, the reasons for decision should be contained in OLDRL, S.20(2) notice as a matter of course. Principles of good administration require the Commission to give reasons and good and proper reasons, for its decision to refer. It is one of the fundamentals of good administration. Serious consequences flow to the leader and the office that he holds from the investigations which has been concluded by the Commission and the decision made to refer the leader to the Public Prosecutor or the tribunal. In a case where the leader has given his reply to a right to be heard notice issued under OLDLR, S.20(3), either denying or admitting the allegation; he is entitled to be informed not only of the Commission’s decision to refer him or not to refer him, as the case may be, but also the reasons for the decision. If the decision is made to refer the leader to the Public Prosecutor, the reasons for decision need not be extensive or elaborate and address every point raised by the leader in his reply, but it must be meaningful and sufficient, so that the leader is informed of the reasons for the referral. The reasons maybe a summary of the reasons set out in its Statement of Reasons. It need not be full and elaborate, but it should be sufficient and meaningful for the leader to know at that stage what are the reasons for basis of his or her referral to the Public Prosecutor.

To reinforce this view, we adopt what our brother Injia, DCJ said in his paper, entitled "Duty to Give Reasons" which he delivered at the Administrative Law Conference in 1996 at Port Moresby is:

"The giving of reasons for a decision made by a person in authority in any aspect of life is one of the basis of good living. It is embodied in the concept of fairness, of natural justice and the general principle of humanity. For those persons in authority in government, it accords with the principle of good government. Lord (Denning described it as one of the fundamentals of good administration (Breen v Amalgamated Engineers Union [1975] 21 QB 175 at 191). The question is whether there is a duty (a legal duty), which is enforceable in a Court of Law (or equity) for a person in authority for his or her decision." (see E.L. Kawa, Development of Administrative Law in Papua New Guinea, UPNG Law School, Publication, Port Moresby 200, ed at p.73).

The duty to give reasons for decisions by a public body or a person exercising statutory power, to a person directly affected by the decision, has been recognized and emphasized in several decisions of the National Court on judicial review of administrative action: See Ninggints v Tokam [1993] PNGLR 70 at p.66; Margaret Misso and two (2) Others v Minister for Lands [1987] PNGLR 331; Kelly Yawip v Police Commissioner [1995] PNGLR 93; Michael Kapa Wena v Police Commissioner N1570 (1997); Application of Moge Enga [1995] PNGLR 031; Gegeyo v Minister for Lands [1987] PNGLR 331. The principle has roots in the principles of fairness and equity developed at common law and equity. We consider the statement of Lord Denning in General Electrics Co Ltd v Price Commission [1975] ICR 1 at 12 referred to at p.1999 of Review of Administrative Action by H. Whitmore and M. Aronson (1st ed, 1978), adopted by Amet J (as he then was) in Margaret Misso v Minister for Lands and Physical Planning, supra, persuasive and appropriate to the present case. Lord Denning said:

"Parliament often entrusts the decision of a matter to a specified person or body without providing for any appeal. It may be a judicial decision, or a quasi judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. But nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly. The courts will ensure that the body acts in accordance with the law ... If the decision-making body is influenced by consideration which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding – so unreasonable that a reasonable person would not have come to it – then again the courts will interfere... And, of course, if the body acts in bad faith or for an ulterior object, which is not authorized by law, its decision will be set aside. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons – in a case when it may reasonably be expected to do so, the courts may infer that it had no good reason for reaching its conclusion, and act accordingly.’

The duty to give reasons for decision is part of the principles of natural justice adopted in Constitution, S.59 which provides:

"(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."

We are not aware of any written law including the OLDRL which has modified or abolished this principle of natural justice which is part of the common law and equity adopted in Constitution, Sch. 2.2.

The Ombudsman Commission is required to observe the principles of natural justice: Ombudsman Commission v Donohoe [1985] PNGLR 348; Nilkare v Ombudsman Commission SC498 (1996). Although the local cases cited above deal with the duty to give reasons imposed on Ministers of the State and heads of government Statutory bodies and departments, the principles equally apply to the Commission.

We accept that OLDRL, S.20 does not expressly require the Commission to give reason for its decision to the leader. However, the duty to give reasons for its decision is implied by the principles of natural justice adopted under Constitution, S.59. The reason for decision is and should be an integral part of the duty to "notify the person whose conduct is being investigated" which is expressly provided for in OLDRL, S.20(2). This is done "before" the referral is made under OLDRL S.20(4). There is no requirement under S.20 for the leader to be informed of the referral at the time of the actual referral. But then again, it is good practice to inform the leader of the actual referral. If reasons for the decision have already been given under the S.20(2) notice, as the case should be, it is not necessary to give any reasons at the time of the actual referral.

From the evidence before us, the practice adopted by the Commission is to issue a S.20(2) notice as done in this case, followed by another letter to the leader advising of the actual referral. This practice is consistent with the requirements of S.20 and it should be maintained.

In the present case, we are satisfied that the Commission gave the Respondent its reasons for decision and good, proper and sufficient reasons for decision in its OLDRL, S.20(2) notice dated 4th April. These reasons are set out in the Commission’s letter of 4th April, where the Commission set out its opinion and a summary of the nine (9) allegations on which the leader was referred. Apart from this letter, there is no requirement under the OLDRL or the Constitution, or even under common law and equity that the Commission serve or furnish the leader referred, copies of its investigation file including its opinion and the Statement of Reasons which it has submitted to the Public Prosecutor or the Tribunal as part of the "referral".

7. Unreasonableness of the Commission’s decision to refer under Wednesbury principle?
   

Mr Cannings submits that the decision of the Commission for the reasons given in the Statement of Reasons accompanying the referral was not unreasonable. If there was an unreasonable decision, it is the decision of the Court in casually brushing aside the detailed reasons given by the Commission and quashing the referral.

Mr Jerewai submits there were nineteen (19) areas of concern on the Commission’s decision on the explanations provided by the Respondent which were not taken into account. Had they been taken into account, the decision to refer would not have been made.

The Court considered these grounds and accepted Mr Amet’s submission that the Commission was insisting on and bent on referring the Respondent even after the Respondent had properly furnished detailed explanation to the allegation, for "personality" reasons and "ulterior motive", and not for any legitimate reasons to do with "merely to protect peoples’ money". Even when it came to money, money was not the Respondent’s main concern because he was a businessman before he became a leader and he "did not become a leader to steal and spend peoples’ money to enrich himself and his business." If the explanation was accepted, then the Commission could have simply asked him "to clear up his accounting ‘mess’ so to speak while the Commission get on with other work". In the Court’s opinion, there was so much emphasis placed "on one aspect than the other" and therefore, the decision was unreasonable under the Wednesbury principle.

Mr Jerewai adopts the submissions by Mr Amet in the Court below and added that the decision to refer the Respondent was also unreasonable given the lapse of time of ten (10) months between the reply and the referral.

The Wednesbury principle of "unreasonableness" is described by Lord Green MR as a decision that is "so absurd that no sensible person could dream that it lay within the powers of the authority -- a decision that no reasonable body, could have come to." It is embodied in the principle of "irrationality" that we referred earlier. We prefer a simplified break-up of this principle into six (6) categories by Doherty J in Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) as follows:

(a) It must be a real exercise of the discretion;
(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(c) It must ignore irrelevant considerations.
(d) It must not operate on the basis of bad faith or dishonesty;
(e) It must direct itself properly in law; and
(f) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

Applying the Wednesbury principles, we are satisfied that the Commission properly considered the serious nature of the multiplicity of allegations and the numerous documentary material in support of the allegations. We are also satisfied that the Commission also properly considered the extensive reply given by the leader and formed the opinion in its "deliberate judgment" that there was a prima facie case against the Respondent which warranted a referral. The Respondent was informed of the reasons for the decision to refer in its letter dated 4th April 2002, which was later referred to in its letter to him dated 14th July 1997. The trial judge placed some emphasis on the aspect of the interactions between the Respondent and the Commission’s officers on the 7th of April when the Respondent was served the notification letter, as indicative of the some bad faith, but in our view, such matters were irrelevant to the decision to refer because by then, the Commission had already decided to refer the leader. We are not persuaded, as would any reasonable Court or tribunal of law, that the Commission acted so unreasonably in its decision to refer the Respondent in the circumstances.

We are of the view that the Court erred in finding that the Commission acted unreasonably under the Wednesbury principles.

8. Excess of jurisdiction
   

Under Constitution, S217(6), the Commission’s decision is reviewable solely on the ground that it exceeded its jurisdiction.

It was submitted that the trial judge erred in law in not considering s.217(6) of the Constitution. Mr Cannings submitted that for any of the pleaded ground of review to succeed, it must be able to say that the Commission exceeded its jurisdiction. It was submitted that as His Honour erred in law in not considering whether, and how, the Commission had exceeded its jurisdiction to refer the Respondent to the Public Prosecutor.

We accept the Commissioner’s submission on this point. In Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR, 348, the Supreme Court held that the National Court and Supreme Courts have jurisdictions to review proceedings of the Ombudsman Commission on the ground that it has exceeded its jurisdiction. Amet J (as he then was) with whom said at p.359:

"I accept that s.217(6) vests in the Ombudsman Commission a privilege or an immunity from review by the Courts except on grounds of excess of jurisdiction..."

In the present case, this ground was not even pleaded in the ground of review. This issue was squarely raised by Counsel for the Appellant in the Court below. However, with respect, His Honour didn’t even consider the provisions of s.217(6) of the Constitution. Nowhere in his judgement did His Honour address this issue.

Furthermore the failure of an Applicant to plead excess of jurisdiction when seeking to invoke the review jurisdiction of the National Court is a fatal procedural error. See Tony Chan & Golden Bowl Pty Ltd v Ombudsman Commission (Unreported judgment of the National Court dated 31st December 2001).

In the present case excess of jurisdiction was not pleaded and His Honour did not address Constitution s.217(6) in his judgement.

It is obvious that His Honour fell into errors.

9. Appropriateness of relief sought and granted.

NCR O16 r4(1), (2) provides for is relevant. It provides:

"(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or
(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceedings."

For the reasons we have already given, the application for leave and the substantive application were made after undue delay by some six (6) years after the decision to refer. The referral was superseded by the Public Prosecutor’s independent decision to refer him to a Tribunal. The relief of certiorari granted to quash the Commission’s referral was not open to the Court, because the matter was already before the Tribunal. It was detrimental to good administration of the Leadership Code by the Commission and the Public Prosecutor’s office and disposition of the matter by the Leadership Tribunal for the referral to be quashed. If the Respondent has any grievances about any unfairness on the part of the Public Prosecutor in acting on the referral after a lapse of some six (6) years, it is open for him to raise these concerns before the Tribunal.

In any case, the application for leave and the application were misconceived in law and they should have been struck out or dismissed at the outset.

10. Conclusion.

For all these reasons, we allow all the ground of appeal, quash the decision of the National Court, and allow the proceedings before the Leadership Tribunal chaired by Justice Hinchliffe to commence or continue dealing with the matter. We award costs of the appeal to the Appellant.
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Lawyer for the Appellant : D.L. Cannings
Lawyer for the Respondent : Jerewai Lawyers