Zeming v Justice Hinchliffe [2005] PGSC 30; SC791 (2 May 2005)

SC791

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 09 OF 2003

BETWEEN:

THE HON MAO ZEMING, MP
Appellant

AND:

JUSTICE TIMOTHY HINCHLIFFE, CBE
First respondent

AND:

FRANK MANUE
Second Respondent

AND:

PATRICK MONOULUK
Third Respondent

Waigani: Jalina, Sevua & Gavara – Nanu JJ
2003: 28th November
2005: 02nd May

ADMINISTRATIVE LAW – Judicial review – Application for leave – Arguable case – Grounds of application for leave raising arguable issues – Leave granted - National Court Rules O 16 r 3.

Cases cited:
NTN –v- Board of the Post and Telecommunication Corporation [1987] PNGLR 70
Olasco Niugini v Kaputin [1986] PNGLR 244
Manjin v Post and Communications Corp. [1990] PNGLR 288
Ila Geno & 2 ors v The State [1993] PNGLR 22
Ombudsman Commission v Donohoe [1985] PNGLR 348

Counsel:
G.J. Shepherd for the Appellant

D. Cannings for the Respondents

02nd May 2005

THE COURT: The Appellant was charged under the Organic Law on the Duties and Responsibility of Leadership (The Organic Law) with 12 counts of Misconduct in Office. A tribunal comprising the First Respondent as Chairman and the Second and Third Respondent as members was appointed by the Chief Justice on 6th February 2003 by virtue of the powers conferred on him by s.27 (7) of the Organic Law to inquire into and determine such allegations of misconduct by the Appellant.

From the Statement filed in the National Court on 13th May 2003 by the Appellant under O 16 r 3 (2) (a) of the National Court Rules seeking leave to apply for judicial review (see Appeal Book pp 18-20), it appears that on 12 March 2003, after the plea of the Appellant was taken through his counsel, the Public Prosecutor sought to tender into evidence through the affidavit of Mr David Cannings (then counsel to the Ombudsman Commission), dated 11 March 2003, two bound volumes of documents which the prosecutor described as the "Statement of Reasons".

Counsel for the Appellant objected on two grounds:

1. On the face of the record before the Tribunal, the reference by the Public Prosecutor predated the reference from the Ombudsman Commission; and
   
2. The Leader’s own explanations with regard to the misconduct charges were not given due regard such as would diminish the reasons for referral.
   

The Tribunal overruled the objections of the Appellant and allowed the affidavit of Mr Cannings into evidence. The affidavit made reference to all the documents, which made up the two bound volumes referred to earlier as the "Statement of Reasons". Those documents included a reply the Appellant made to the Ombudsman Commission’s letter to him dated 7 December 2001. The Tribunal then proceeded to mark each document (including the Appellant’s written reply referred to in the affidavit of Mr Cannings) as exhibits of evidence for the purposes of the (Tribunal) hearing.

The prosecution called only two (2) witnesses to give oral evidence. They were Mr. Iamo Ila, Acting Deputy Secretary, Office of Rural Development and Mr. Manasupe Zurenuoc, Provincial Administrator, Morobe Province. The Prosecution relied heavily on the "Statement of Reasons" prepared by the Ombudsman Commission and brought into evidence through the affidavit of Mr.Cannings.

The Tribunal later made findings of guilt against the Appellant convicting him of nine (9) of the twelve (12) allegations of Misconduct in Office. In it’s determination of guilt against the Appellant, the Tribunal also relied heavily on the evidence contained in the "Statement of Reasons". It also took into account the Appellant’s reply to the Ombudsman Commission.

The Appellant’s application in the National Court seeking leave to apply for judicial review were based on four (4) grounds (see Appeal Book p 33):

"1. The Leadership Tribunal erred in law in that it breached the provisions of Section 21 (6) of the Organic Law on the Duties and Responsibilities of Leadership in that the Tribunal admitted evidence of a statement made by the plaintiff.

2. The Leadership Tribunal erred in law in that it admitted into evidence two volumes of a book of exhibits compiled by the Ombudsman Commission during the course of its investigation thereby being in breach of Section 21 (6) of the Organic Law on Duties and Responsibilities of Leadership.
   
3. The Leadership Tribunal erred in law in that it made findings of guilt in respect of Allegations 1 (i) and 1 (iv) and 4, 5, 7, 8, 9, 10, 11, and 12 when there was no evidence before the Tribunal such that it could make those findings of guilt.
   
4. The Leadership Tribunal erred in law on its application of the principles of natural justice by wrongly admitting and accepting the Statement of Reasons of the Commission together with the exhibits as evidence."
   

At the hearing of the application for leave the only issue was whether or not the Appellant had an arguable case as other considerations in applications for leave such as locus standi, undue delay and exhaustion of administrative remedies were not in issue.

On 10th June 2003, the National Court refused to grant leave on the basis that the Appellant did not have an arguable case.

On 15th July 2003, the Appellant filed his appeal to the Supreme Court by way of a Notice of Motion in accordance with O.10 r.1 of the Supreme Court Rules.

The Grounds of Appeal are set out in Paragraph 3 of the Notice of Motion. It contains 5 grounds from paragraph (a) to (e). However, during the hearing of the appeal, the Appellant abandoned grounds 3 (d) and (e) and pursued only grounds 3 (a), (b) and (c) which are as follows:

"3. GROUNDS

(a) The Learned Judge erred in law in finding that there was no arguable case to support the Appellants’ application for leave to apply for judicial review under O 16 r 3 of the National Court Rules when the Leadership Tribunal appointed under section 27 (7) (e) of the Organic Law on Duties and Responsibilities of Leadership ("the Organic Law ") had exceeded it’s powers or alternatively committed an error of law or alternatively, committed a breach of natural justice, or alternatively, reached a decision which no reasonable tribunal could have reached or alternatively abused its powers.

(b) the Learned Judge erred in law when he found that no arguable case had been made out for leave to apply for judicial review under O 16 r 3 of the Rules of the National Court when he considered and interpreted provisions of the Organic Law and made arguable findings on questions of law in:

• (i) finding that the Appellant’s application for leave for judicial review was distinguishable from the case of In the Matter of Leadership Tribunal and Timothy Bonga and Hon. Maurice Sheehan, Mr Marcus Bayam and Himson Waninara unreported National Court decision N1512 ("Bonga case") on the basis that in the Bonga case the Prosecutor "relied entirely " on the statement of reasons when there was other evidence that was analysed by the Learned Judge
  
• (ii) finding that the Leadership Tribunal is not bound by legal formalities or the rules of evidence pursuant to s. 27 (4) of (sic) Organic Law and therefore the Leadership Tribunal was entitled to rely on the exhibits which were part of the statement of reason when it is at the time when the tribunal is calling evidence pursuant to s. 29 of the Organic Law that s. 27 (4) of the Organic Law is applicable.
  
• (iii) finding that Section 27 (4) of the Organic Law is relevant to the question of determining the nature and the purpose of statement of reasons under s. 27 (1) and (2) of the Organic Law when section 27 (4) has no relevance to such determination.
  
• (iv) finding that Section 21 (6) of the Organic Law does not apply to the Appellant’s right to be heard under section 20 (3) of the Organic Law when Section 21 (6) applies with only one qualification (ie"except on the trial of any person for perjury in respect of his sworn testimony") to any inquiry or any proceeding before the Ombudsman Commission.
  
• (v) finding that objections under Section 21(6) of the Organic Law to the tendering into evidence before the Leadership Tribunal of the responses provided by the Appellant pursuant to the exercise of his rights under Section 20 (3) of the Organic Law should not be objected to if such responses are exculpatory of the Appellant’s conduct as a Leader when no such qualification appears in section 21 (6) of the Organic Law
  
• (vi) finding that there was no objection taken at the tribunal hearing to the affidavit of David Lionel Cannings being tendered into evidence when objection was taken at the Leadership Tribunal hearing to Mr Cannings evidence, and
  
• (vii) finding that there was no demonstration in the documents for judicial review as to how the statement of reason were used by the Leadership Tribunal as evidence when a statement under Order 16 rule 3 (2) (a) of the Rules of the National Court was filed in proceeding OS 239 of 2003 and that statement made detailed references to the decision of the Leadership Tribunal where the statement of reasons were wholly and partly used as evidence in the Tribunal’s findings of guilt against the Appellant
  

(c) Alternatively the Learned Judge made findings in respect of the matters listed in ground 2(sic) (i) to (vii) above and thereby concerned himself with the merits of the decision of the Leadership Tribunal rather than the decision making process itself."

The orders sought by the Appellant are:

(a) that this appeal be upheld; and

(b) that leave be granted to the Appellant for judicial review; and

(c) that the National Court determine the application for judicial review.

(d) cost in the proceedings below."

Notwithstanding ground (b) of the grounds of appeal being elaborate in the various respects in which the trial judge is said to have erred in his findings that the Appellant did not have an arguable case, ground (a) also raises the same issue. The alternative ground (c) is concerned with the trial judge considering matters that could appropriately be considered after full argument on the merits and not at the leave stage.

The principles that apply when the National Court is considering whether or not it should exercise its discretion in favour of the applicant for leave is now settled. In NTN –v- Board of the Post and Telecommunication Corporation [1987] PNGLR 70 Wilson J said at 74:

"Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3 (1).

In exercising it’s discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; (1982) AC 617, Lord Diplock set out the principles upon which the court should act and I respectfully adopt them. Lord Diplock said (at 644):

‘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 to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the 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.’

The purpose for seeking leave is well explained by Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; (1981) 2 WLR 722 at 739:

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

Lord Scarman said at 749:

"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by the busybodies, cranks, and other mischief-makers."

The above passages were cited with approval by McDermott A J in Olasco Niugini v Kaputin [1986] PNGLR 244 at 245 and four (4) years later by Hinchcliffe J in Manjin v Post and Communications Corp. [1990] PNGLR 288 at 289. The most authoritative decision on the issue can be found in Ila Geno & 2 ors v The State [1993] PNGLR 22 where the Supreme Court, applying the principles enunciated in NTN v Board of the Post and Telecommunication Corporation (Supra), held that matters relevant to exercise of discretion on application for leave for judicial review include the question of whether there is an arguable case and that substantive issues raised are matters properly to be considered at the substantive hearing.

In the present case, as has been indicated earlier, the only issue before the trial judge was whether the appellant had an arguable case. The trial judge acknowledged this from page 9 of his judgment dated 10th June 2003, where he said:

"Now, specifically on the crucial issue of what is an arguable case and whether or not the applicant here has demonstrated this to the satisfaction of the Court, I have had the benefit of counsel’s discussion of the pertinent case law in his jurisdiction. Some of these cases are discussed also in my judgment in the Lohia Raka & Ors case (supra, pp7-8). The applicant has the burden or onus of establishing to the Court’s satisfaction that he has an arguable case that warrants determination through the judicial review process."

The trial judge went on to consider the four (4) grounds and said from the bottom of pages 9 – 14 of his judgment:

"And what is the complaint here; what is the grievance of the applicant that he comes before me, wishing to have rectified or remedies by a review of the Leadership Tribunal’s proceedings if I grant leave? And, is it a complaint, grievance that is capable of remedy by judicial review as envisaged by the rules under O. 16 NCK?

Four (4) grounds are submitted as supporting the leave application and, if leave is granted, will form the basis of the grounds for substantive review, suggesting that these grounds, if accepted, would entitle the Court in the end to quash the procedural errors alleged as being committed by the Leadership Tribunal. These grounds, or at least three of them, because one of them (the third ground) cannot stand alone, depending as it does on the grant or otherwise of the second ground, concern the admission or acceptance of evidence that are said to constitute errors of law on the part of the Tribunal, errors of law alleged to be in breach of s. 21 (6) OLDRL.

As I understand the plaintiff’s argument, the cumulative effect of the Leadership Tribunal’s admission into or acceptance of certain evidence is that such in the Tribunal as Tiving at the conclusion of guilt of the leader in respect of nine of the twelve counts. An immediate reaction to this contention, before I even venture into considering each of the grounds, is to wonder if such a contention were maintainable then why the three allegations of misconduct in office were not visited with the same fate? As we know there was finding of guilt in respect of only nine of the twelve allegations of misconduct in office. If the applicant’s argument or contention is maintainable, the question is repeated: why did the Tribunal not find the leader guilty in respect of all twelve allegations?

I now deal with each of the four (4) grounds alleging it or in law in the Tribunal admitting into evidence the statement made by applicant. I accept the defendant’s counsel’s submissions on this. If the statement in question is one that constituted the response the leader made to the notice given to him of his right to be heard, the notice from the Ombudsman Commission dated 14 December 2001 following receipt of information concerning allegations of irregularities in the distribution of public funds under his control that led to the Commission’s investigation, them the response of the leader pursuant to that "notice dated 21 January 2003 would have been (and no doubt intended to have been) in the proper exercise of his right to be heard. Under those circumstances then, the Court asks, where does the issue of inadmissibility arise?

If what was done, that is, firstly, pursuant to receipt of information leading to and investigation resulting in the Ombudsman Commission being obliged by law and practice to give notice as it did to enable the leader to respond to those matters in the allegations in the due and full exercise of his right to be heard, them how or where does the error arise or get committed?

I accept that the leader’s response forms part of the documentation that was appended to the Statement of reasons that the Ombudsman Commission was by law obliged to refer to the Public Prosecutor with its opinion as to the prima facie status or otherwise of the allegations. Now, what is the objection here? Was it objected to during the Leadership Tribunal inquiry? It does not appear to, be so.

And was that response incriminating of the leader himself, or was it exculpatory? If incriminating, why was there no objection taken? Is there any suggestion that the leader’s response to notice was made or given under duress, involuntarily under threats or promises? If exculpatory, why object at all? I would suggest that it would not be unreasonable to hazard a guess that if the leader’s response had not been part of the documentation in the Statement of Reasons, the leader’s legal representatives would have attacked that Statement of Reasons as perhaps constituting insufficient or no justification for the Referral.

In any case, I go back to s. 27 (4) of the Organic Law where it is provided that the Tribunal is not bound to adhere to the strict rules of evidence in its inquiry. It is convenient and instructive to set out hereunder the provision in its entirety:

(4) The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

In support of this ground the applicant relied on s. 21 (6) of the Organic Law. I agree with the learned counsel for the defendants that this provision is not relevant. Instead of, with respect, plucking sub-s (6) out of the provision and dealing with it as if it were a stand-alone provision and dealing with it as if were a stand-alone provision, it must be read with the other provisions that are there, so as to appreciate it in its proper prospective or context. Section 21 deals with the compulsory powers of the Ombudsman Commission during its investigation in relation to requiring the production of documents. Thus, I agree that sub-s (6) does not apply to the leader’s exercise of his right to be heard.

Section 21, it must be repeated, is a specific provision in relation to the exercise of compulsory powers by the Commission when investigating any allegations of irregularity, impropriety, constituting misconduct in office as envisaged by the Constitution and the Organic Law.

Ground 2 of the application for leave relates to the "Books of Exhibits" that had been appended to the affidavit of the learned counsel for the defendants that formed part of the documentation that had been formally put before the tribunal. And, once again, the applicant relies upon s.21 (6) of the Organic Law as interpreted in the case of: In the Matter of Leadership Tribunal, Timothy Bonga and Hon. Justice Maurice Sheehan, Mr Marcus Bayam, Mr Himson Waninara and The State (Unreported, N1512 of 1997) (the Bonga Case).

I agree with learned counsel for the defendants that the present case is easily distinguishable from Bonga’s case. The situation then~ was that the Public Prosecutor relied entirely and solely on the Statement and Reasons for his case against the leader, and the Leadership Tribunal did likewise, as if the Statement of Reasons were evidence. And, thus, with respect, the Public Prosecutor fell into error in so doing, as the tribunal did likewise in accepting the Statement of Reasons as evidence and acting upon those.

As I have said in the initial interlocutory application and during the course of submissions here mentioned several times, the Statement Of Reasons is not evidence at all. It cannot be regarded or accepted as evidence. The tribunal had before it the affidavit deposing to the various documents; the affidavit of David Cannings (supra) deposing to the Ombudsman commission coming into possession of these during the course of it’s investigation from which a determination was made that a prima facie case existed of misconduct in office warranting, in its independent opinion, a referral of "the matter" to the Public Prosecutor pursuant to s.27 (1) (a) Organic Law. Needless to say, these documents were duly identified in the affidavit.

Under those circumstances, this Court’s conclusion in relation to Ground 2 is that s.21 (6) Organic Law is irrelevant, and, once again, support is had to s. 37 (4) of the Organic Law. And as adverted to already Ground 3 depends on what happens to Ground 2. That is to say, if Ground 2 is upheld, then the natural result would be that there would be no evidence. That is to say, all those documents that were put before the tribunal would not be before the tribunal. Thus, the argument for the applicant would go like: 1’10 documents, no evidence, leader not guilty!

I have found Ground 2 not to have been sustained. I uphold the submissions of the defendants that s 21 (6) Organic Law does not help the application/plaintiff there.

Ground 4 is in relation to an allegation of breach of natural justice. It is directed at the Statement of Reasons. And enough has been said on this in the foregoing discussions. Statement of Reasons is not evidence.

Moreover, it is the respectful opinion of this Court that there has not been demonstrated here to my satisfaction that the Leadership Tribunal accepted the Statement of Reasons as evidence upon which it came to its determination of guilt in respect of the nine (9) counts out of twelve (12).

In this respect it is noted that it has not been demonstrated to my satisfaction also that any procedural errors were made such as to constitute breach of natural justice. It is my opinion that the applicant/plaintiff has not demonstrated how it was that the Leadership Tribunal denied him natural justice, so that in all of the grounds urged upon this Court, there has not been any demonstration of an arguable case. There is no legitimate grievance, complaint, in relation to the deliberations of the Leadership Tribunal that would entitle the applicant/plaintiff, if granted leave, to go for substantive review. With respect, I would suggest that to do so would entail my delving into the merits of the review application, which I am not required to do so at this juncture.

In the end result, I refuse leave on the basis that no arguable case, as insisted upon by a long line of cases in this jurisdiction, has been demonstrated to my satisfaction. So I dismiss the application on those grounds. I repeat, I refuse to grant leave on the basis that no arguable case has been demonstrated to my satisfaction.

Thus, the order of this Court is that the application for leave is dismissed with costs. Costs being a matter of discretion and they follow the event. Here the event being refusal and dismissal of the application for leave, the Public Prosecutor is to have his costs of and incidental to this application."

We have carefully considered the four (4) grounds relied upon by the Appellant when seeking leave in the National Court as well as the grounds of appeal in the light of the authorities and the submissions by the parties herein.

We should point out at the outset that where substantive issues or matters are raised then such issues or matters should appropriately be considered at the substantive application for judicial review. Similar views were expressed by Amet J (as he then was) who wrote the leading judgment in the Supreme Court in Ombudsman Commission v Donohoe [1985] PNGLR 348 at 361 with whom Pratt & Woods JJ agreed;

"The Commission had submitted that the learned judge had erred in law, that even assuming for the purposes of argument that the facts were as asserted by Mr. Donohoe, at their highest, the substantive application could not be sustained under O 16, r 1(2) of the Rules. The National Court would have no jurisdiction to entertain the application at the very outset. Notwithstanding the evidentiary assumption conceded by the Commission, these are substantive legal arguments, which required careful examination of the legal application of the provisions of the Rules and the Constitution upon the facts on the substantive application. On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O 16, rr 2, 3 and 5. The application, of course, is ex parte and so the court does not have any other material contesting the application. The Court is not required to address the matters specified in O 16,r 1(2). These are matters for consideration by the Court hearing the substantive application. I consider that the substantive issues raised are matters properly to be considered by the Court hearing the substantive application, depending on its conclusion of facts upon an assessment of all the evidence and the benefit of legal arguments."

Without the need for us to consider the grounds of appeal, we are clearly of the view in the light of the authorities that the issues raised in the four (4) grounds relied upon by the Appellant when seeking leave were issues that should appropriately be considered at the substantive application for judicial review.

For instance, Grounds 1 and 2 raised issues pertaining to the interpretation and application of s.21 (6) of the Organic Law. Such issues could not be properly considered without substantive arguments. Ground 3 challenged the evidence upon which the Appellant was convicted. Again such an issue could not be determined at the leave stage. To determine if there was evidentiary foundation to convict the Appellant would require a detailed examination of the "evidence" as it were before the Tribunal, which could only properly be done at the substantive hearing. The same can be said of the issues raised in Ground 4. So all the four Grounds raised very serious legal, constitutional and evidentiary issues that required substantive arguments from both parties at the substantive hearing.

However, from our perusal of the judgment of the learned trial judge, it is clear to us that he descended into the arena of the substantive review Court by examining the various grounds when he had no jurisdiction to do so. All he was required to do was to determine if the Appellant had an arguable case upon a quick perusal of the material before him. He even went to the extent of distinguishing the Bonga case and made findings, which only the review Court could have made after hearing substantive arguments.

We are therefore of the opinion that the learned trial judge erred in law when he refused leave to the Appellant. We accordingly allow the appeal and quash the orders of the National Court. We make the following further orders:

1. That leave is granted to the Appellant to apply for judicial review.
   
2. That the matter be brought before the Registrar to list it for substantive hearing as soon as is practicable.
   
3. The Appellant’s taxed costs in the National Court and in this Court be paid by the Ombudsman Commission.

_____________________________________________________________
Lawyer for the Appellant: Maladinas Lawyers
Lawyer for the Respondents: Public Prosecutor