Diro v Ombudsman Commission of Papua New Guinea[1991] PNGLR 153

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 29 May 1991
• Court: National Court
• Citation: [1991] PNGLR 153
• Year: 1991
• Judgement Number: N982

Full Title: Diro v Ombudsman Commission of Papua New Guinea[1991] PNGLR 153

National Court: Sheehan J

Judgment Delivered: 29 May 1991

N982

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DIRO

V

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Waigani

Sheehan J

29 May 1991

ADMINISTRATIVE LAW — Judicial review — Application for leave to apply — Ex parte proceedings — Leave to intervene — To be restricted to submissions only — "Arguable case" — National Court Rules, O 16, r 3 (2).

PRACTICE AND PROCEDURE — Ex parte hearing — Leave to apply for judicial review — Leave to intervene — To be restricted to submissions only — "Arguable case" — National Court Rules, O 16, r 3 (2).

The National Court Rules, O 16, r 3 (2), provides that an application for leave to apply for judicial review shall be made ex parte.

Held

(1) Whilst leave to intervene may be granted on an application for leave to apply for judicial review, the intervening party should be restricted to making submissions only; to allow otherwise takes the matter beyond the ex parte determination of whether the applicant has an arguable case.

NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70, considered.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, distinguished.

(2) An "arguable case" is one fit for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such arguments as are necessary on law.

R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109, adopted and applied.

Cases Cited

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722.

NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244.

R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109.

SCR No 3 of 1982; Re The Constitution, ss 57 and 155 (4) [1982] PNGLR 405.

Application for Judicial Review

This was an application for leave to apply for judicial review.

Counsel

L Henao, for the plaintiff.

G Toop, for the defendant.

29 May 1991

SHEEHAN J: This is an application for leave to apply for judicial review.

The plaintiff is presently appearing before the Leadership Tribunal facing charges laid by the Public Prosecutor alleging misconduct in office contrary to the provisions of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1). The substance of those charges was placed before the Public Prosecutor by the Ombudsman Commission following its investigation into the plaintiff's conduct as a leader of this Country.

The plaintiff seeks to challenge the validity of the Ombudsman Commission's referral of findings to the Public Prosecutor. If he can establish that referral was invalid, then, he contends, the proceedings before the Leadership Tribunal and even the establishment of that Tribunal itself, must be set aside. Hence this application for leave to apply for judicial review.

The requirement for leave is to enable the courts to sift out at an early stage, applications which are trivial, vexatious or hopeless. This is to ensure than an applicant is only permitted to proceed to a substantive hearing inter partes if the Court can be satisfied there is an arguable case for review: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722.

By the National Court Rules, O 16, r 3 (2), application for leave to move for judicial review shall be made ex parte. Even though there is a requirement for notice to be given to the defendant there is no automatic right given a defendant to oppose at this stage. But the intervention of the defendant or other parties is not thereby wholly excluded. Others may intervene and oppose, by leave. Here counsel for the Ombudsman Commission sought leave to intervene and to file an affidavit to support submissions in opposition. Counsel cited the comments of McDermott A-J in Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244 and Wilson J in NTN Pty Ltd v Post & Telecommunication Corporation [1987] PNGLR 70 as authority for such a course.

The Olasco case is not strictly in point. Although leave to intervene was granted in that case, the arguments in opposition supported by affidavits were heard at the substantive hearing of the review. In the NTN case, on the other hand, leave to intervene and argue against leave was granted to a defendant on issues of undue delay and hardship and affidavits filed in opposition on those grounds were read at the application for leave.

Leave for the Ombudsman Commission to intervene at this stage and make submissions in opposition was granted. This was because the Court wished to hear argument on the relevant law and on the substance of the grounds set out in this application and because, in any case, the plaintiff did not oppose intervention. The application to file and read a supporting affidavit was declined.

With respect to the decisions cited above, I believe that to ensure that an application for leave to apply for judicial review remains the ex parte application required by O 16, r 3 (2), the better course is that any intervening party oppose only by way of submissions. If affidavits are necessary to support an opposition, that contest signals that an argument on the merits is required. That takes the matter beyond the ex parte consideration of whether the applicant has an arguable case on the papers filed, as envisaged by O 16. It becomes a hearing of the review itself. This does not prevent effective opposition to any application for leave, particularly on grounds of insufficient interest, delay or substantial hardship to a defending party. It does restrict argument to the preliminary ex parte examination intended by the rules.

An ex parte application for leave to apply is not intended to be as extended or exhaustive as a full substantive judicial review hearing. The purpose is to establish whether the applicant has an arguable case. There will just as likely be an arguable case in opposition. But that would not be a ground for refusal. If the court can be satisfied there is a case fit for further consideration then leave should be granted.

The plaintiff's motion details the relief sought:

"1. An Order that leave be granted to the Plaintiff to apply for Judicial Review in terms of this Notice of Motion.

2. A declaration that Sections 17 (d), 20 (4) and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership Chapter 1 of the Revised Laws of Papua New Guinea are inconsistent with and thereby ultra vires Section 29 (1) of the Constitution of the Independent State of Papua New Guinea.

3. Orders of Certiorari to remove for the purposes of their being quashed.

(a) The referral in or about March or April 1991 to the Public Prosecutor by the Defendant of allegations of misconduct against the Plaintiff.

(b) The appointment on the 10th day of April 1991 by the Chief Justice of this Honourable Court of a Leadership Tribunal to hear enquire into and determine allegations of misconduct in office by the Plaintiff.

(c) The suspension on the 17th April 1991 of the Plaintiff from the duties of Deputy Prime Minister of Papua New Guinea and a Member of the National Parliament.

4. Orders that:

(a) Proceedings before the abovementioned Leadership Tribunal be stayed.

(b) The Plaintiff be reinstated to his duties as the Deputy Prime Minister of the Independent State of Papua New Guinea and as a member of the National Parliament.

5. An Order referring any question arising in these proceedings relating to the interpretation or application of any provision of the Constitution Law to the Supreme Court of the Independent State of Papua New Guinea as required by Section 18 (1) of the Constitution of the Independent State of Papua New Guinea.

6. That costs be in the cause.

7. Such other orders as this Honourable Court deems fit."

The plaintiff relies on the following grounds:

"3. The grounds upon which the plaintiff seeks the relief mentioned are as follows:

(a) Sections 17 (d) and 20 (4) and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership Chapter 1 in the Revised Laws of Papua New Guinea are inconsistent with and thereby ultra vires Section 29 (1) of the...