The Bank of Papua New Guinea and Wilson Kamit v Mr Marshall Cooke QC, Cyprian Warokra and The Independent State of Papua New Guinea (2003) N2369

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2003) N2369
• Date: 14 May 2003
• Year: 2003

Full Title: The Bank of Papua New Guinea and Wilson Kamit v Mr Marshall Cooke QC, Cyprian Warokra and The Independent State of Papua New Guinea (2003) N2369

National Court: Kandakasi J

Judgment Delivered: 14 May 2003

1 ADMINISTRATIVE LAW—Application for leave for judicial review of decision a decision yet to be made—No decision affecting a right or interest made—Opportunity to raise the same issues before the decision maker still existing—No case of decision maker being biased against plaintiff and the decision maker exceeding its jurisdiction made out—Judicial review not available as a remedy.

2 COMMISSION OF INQUIRY—Purpose of—Collect, collate, make findings of fact and make recommendations—Large amount of evidence called in relation to matters covered in terms of reference—No objection taken in relation to matters perceived to be outside the terms of reference and incriminating the plaintiff—Commission yet to making a finding against the plaintiff—Plaintiff's claims speculative—Inappropriate to interfere with the Commission completing its process—s155(4) Constitution—s2 and s16 Commission of Inquiry Act (Ch31).

3 COMMISSION OF INQUIRY—Terms of reference of—Large amount of evidence called in relation to matters covered in terms of reference—No objection taken in relation to matters perceived to be outside the terms of reference and incriminating the plaintiff—Plaintiff's claims speculative—Inappropriate to interfere with the Commission completing its process.

4 COMMISSION OF INQUIRY—Counsel assisting a commission of inquiry—Role and duty of—Whether counsel assisting a commission of inquiry the commission for the purpose of any finding or likely finding by the Commission—Counsel assisting the Commission is not the Commission as he does not have the power to bind the Commission—He is only a counsel assisting the Commission to perform its powers and functions.

5 Simon Ketan v Lawyers Statutory Committee (2001) N2290, Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, Re Alleged Misconduct in Office by Honourable Peter Ipu Peipul: Peipul v Sheehan (2001) N2096, Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Sir Julius Chan v Ombudsman Commission [1998] PNGLR 171, Application of Christopher Haiveta (1998) N1783, Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329, Philip Kian Seng Lee v Honourable John Pundari (2001) N2146, Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417, Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Gobe Hongu Ltd v National Executive Council [2000] PNGLR 372, Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506, PNG Pipes Pty Ltd v Mujo Sefa (1998) SC592, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Livesey v NSW Bar Association (1983) 151 CLR 288, Webb v R (1994) 181 CLR 41, Elkateb v Lawindi, per Giles CJ Comm D, Supreme Court of New South Wales, unreported, 8 May 1998, Criminal Justice Commission v Connolly (5 August 1997, unreported) and Re Application Under O56 of the Supreme Court Rules, Ashley J, unreported, Supreme Court of Victoria, 9 June 2000 referred to

Facts

By an instrument under the hand of the Prime Minister dated 17 October 2002, a Commission of Inquiry (The Commission) into the process leading to the sale of Papua New Guinea Banking Corporation to Bank of South Pacific Ltd, under the government's privatisation process was established. The Commission has completed hearing all the evidence and entered the process of making its findings and recommendations. Meanwhile, counsel assisting the Commission wrote to various people including the Plaintiffs informing them of the possibility of the Commission making adverse findings against them and asked them to make submission against such findings.

The Plaintiffs applied to this Court for leave for a judicial review of the proceedings of the Commission on the allegations of apprehended bias and a failure to accord them procedural fairness. They then seek to prevent the Commission from proceeding further and or making adverse findings as against them unless the evidence on which the Commission may make such findings is first provided to them and they have been given reasonable opportunity to respond by giving evidence before the Commission.

Held

1. A commission of inquiry's task is to inquire into specific issues of concern to the public by collecting and collating evidence or facts, making findings of facts and or make recommendations based on its findings. As such, it makes no final decision affecting the rights and or interests of anyone except where it breaches the principles of natural justice or one's Constitutional rights. Accordingly, it is doubtful whether judicial review is available as a remedy.

2. Even if judicial review is an available remedy, the plaintiffs have failed to demonstrate a case for leave to be granted because:

(a) the Commission's proceedings have not yet concluded with a final decision affecting the rights and or interests of the plaintiffs;

(b) there is a range of other remedies open to the plaintiffs; and

(c) they have failed to establish an arguable case in that the evidence shows a prima facie case of the procedure adopted by the Commission being fair with no trace of any bias and a denial of procedural fairness to them.

3. A restricted application of the test of "whether a fair–minded lay observer with knowledge of the material facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of a question in issue applies.

4. In order to make out a case of bias, a reasonable apprehension of a partial or prejudicial decision not an adverse decision to the prosecution must be firmly established.

5. A commission of inquiry is inquisitorial in nature and the commissioners have wider powers to compel the giving of evidence and production of documents and as such are expected to play a more active role in ascertaining facts than the courts. Accordingly, no one should interpret expression of emotions, a preliminary view or such other robust conduct of the commissioners as bias.

6. Counsel assisting a commission of inquiry does not bind the commission and is not the commission unless expressly authorised.

7. Based on the above reasons, the application for leave is declined with costs against the plaintiffs.

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Kandakasi J: This is an application for leave for judicial review of the proceedings of the Commission of Inquiry (Commission) into the process leading to the sale of Papua New Guinea Banking Corporation (PNBGC) to Bank of South Pacific Ltd (BSP) under the government's privatization process. They also seek orders in terms of a declaration that the proceedings of the Commission are invalid in so far as they concern them on grounds of bias and for failure to accord them procedural fairness. They further seek to prohibit the Commission from proceeding further and making adverse findings as against them. Furthermore, they seek alternative orders requiring the Commission to conduct further hearings in relation to certain matters, counsel assisting the Commission had indicated, the Commission could make adverse findings against them.

Background and Facts

The background and facts of the application are simple. They are set out in the affidavit of Mr Kamit sworn and filed on 1 May 2003 and the Affidavit of Annette Kora for the defendants. The evidence from this affidavit evidence is clear.

Following a public call for an inquiry into the process leading to the sale of the PNGBC to the BSP, the Prime Minister established the Commission by an instrument dated 17 October 2002 to do just that. The Commission commenced its sitting on the 5 December 2002 and completed the hearing of evidence early last month. The Commission called over 70 witnesses in addition to thousands of pages of documentary evidence.

At the conclusion of the hearing of evidence, counsel assisting the Commission, Mr Varitimos, wrote to various people including the Plaintiffs, informing them of the possibility of the Commission making adverse findings against them and asked them to make submission against such findings, through letters dated 13 April 2003. That letter in relevant parts read:

"It is submitted, in my opinion, that it may possibly be open to the Chairman and Commissioner to make adverse findings relating to your clients on the topics and issues set out below. Ultimately, of course whether any adverse findings are made (and if so, what such findings may be) is a matter for them.

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