Honourable Bernard Hagoria v The Ombusman Commission of Papua New Guinea (2003) N2400

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 May 2003
• Court: National Court
• Citation: (2003) N2400
• Year: 2003
• Judgement Number: N2400

Full Title: Honourable Bernard Hagoria v The Ombusman Commission of Papua New Guinea (2003) N2400

National Court: Kandakasi J

Judgment Delivered: 26 May 2003

N2400

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 212 OF 2003

Between:

HONOURABLE BERNARD HAGORIA

First Plaintiff

And:

THE OMBUSMAN COMMISSION OF PAPUA NEW GUINEA

Defendant

WAIGANI: KANDAKASI, J.

2003: 8th and 26th May

ADMINISTRATIVE LAW – Application for leave for judicial review - Ombudsman Commission deciding to refer the plaintiff to the Public Prosecutor for prosecution under the Leadership Code – No final decision affecting a right or interest of the plaintiff made – Opportunity to raise the same issues before the Leadership Tribunal still existing – Delay in applying for leave for judicial review resulting in appointment of a Leadership Tribunal – No reasonable explanation provided - Delay fatal - Claim of bias and unreasonableness not disclosed by any evidence - No case of ultra vires or the defendant exceeding its powers established - Judicial Review not available as a remedy.

OMBUDSMAN COMMISSION – Review of decision or exercise of the powers of- Governed by s. 217(6) of the Constitution and s. 24 of the Organic Law on the Ombudsman – The Powers of the Court to review is limited to the grounds specified in these provisions - Present application not within these provisions – Application dismissed – ss. 217 of the Constitution and 24 of the Organic Law on the Ombudsman.

OMBUDSMAN COMMISSION – Claim of bias in relation to conduct of its investigation – “Fair minded lay observer test” applies with restriction – Reasonable apprehension of a partial or prejudicial decision not adverse findings must be firmly established – Given the nature of the role of the Ombudsman Commission more inquisitive and robust conduct of Commissioners should be expected without a ready attachment of bias.

Facts

Following investigations into certain allegations of misconduct in office by the plaintiff (Leader), the defendant decided to and did refer the Leader to the Public Prosecutor for a possible prosecution under the Leadership Code on the 5th of May 2002. After studying the referral, the Public Prosecutor requested and the Chief Justice appointed a Leadership Tribunal (the Tribunal) in early February 2003. The Tribunal conducted a number of mentions and directions hearings from 17th February to 5th May 2003. The Leader then filed for a review of the decision by the defendant to refer him to the Public Prosecutor. He provided no explanation for not doing anything about the decision to refer him.

Held

1. All applications for review of a decision or an exercise of the powers of the Ombudsman Commission is governed by s. 217 (6) of the Constitution and s.24 of the Organic Law on the Ombudsman Commission (OLOC). Hence, unless an application is brought within the ambit of these provisions, no application for a review of the Ombudsman’s decision or exercise of its power can be allowed.

2. The Ombudsman’s task is to investigate as widely as possible into allegations of possible breaches of misconduct in office by a leader. In the discharge of that duty, it collects and collates the relevant evidence or facts with a view to referring the allegations to the Public Prosecutor for possible prosecution under the Leadership Code if it is of the view that, there is evidence supporting the allegations. It therefore, makes no final decision affecting the rights and interests of a leader, which can be the subject of a judicial review.

3. The Ombudsman has wider powers to investigate into alleged misconduct by leaders, including a leader’s private bank account. As such, there is a very fine line between what is of private and public interest from the perspective of a leader.

4. The test of “whether a fair minded lay observer with knowledge of the material facts might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of a question in issue has a limited application in the context of the Ombudsman’s powers and functions.

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

6. Given the nature and powers of the Ombudsman Commission, no one should interpret expression of emotions, a preliminary view or such other robust conduct of the commissioners as bias.

7. There has been unreasonable delay in bringing the application and that Leader has not exhausted other available remedies by reason of which leave should be declined.

8. Even if judicial review is an available remedy, the plaintiff in the present case has failed to demonstrate a case for leave to be granted because:

(a) the Ombudsman Commission has not made a final decision that affects the rights and interest of the Leader;

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

(c) he has failed to establish an arguable case for review.

9. For these reasons, the application for leave is declined with costs against the plaintiff.

Papua New Guinean Cases Cited:

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

NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.

Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308.

Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & (judgement delivered on ) N

Simon Ketan v. Lawyers Statutory Committee & Anor (28/09/01) N2290.

Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the

Leadership Tribunal) & Ors N2096.

Rimbink Pato v. Anthony Majin & others SC622.

Sir Julius Chan v. Ombudsman Commission N1738.

The Application of Christopher Haiveta (10/11/98) N1798.

Philip Kian Seng Lee v. Honourable John Pundari (09/11/01) N2146.

The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417,

Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122.

Overseas Cases Cited:

Plaintiff S157/2002 v. Commonwealth of Australia (2003) 195 ALR 23; [2003] HCA 2

Counsels:

Mr. A. Amet Jnr. for the Plaintiff

Mr. D. Cannings for the Defendant

8th May & 30th June 2003

KANDAKASI J: I delivered an oral judgement on this matter on 8th of May 2003 because of the urgency of the matter and promised to publish my full reasons for the judgement later. This I now do.

This was an application for leave for judicial review by Honourable Bernard Hagoria (the Leader) of the Ombudsman Commission’s (the Ombudsman) decision to refer him to the Public Prosecutor for possible prosecution under the Organic Law of Duties and Responsibility of Leadership (the Leadership Code) over a number of allegations of misconduct in office. The leader also sought in the meantime, a stay of proceedings already commenced before a Leadership Tribunal (the Tribunal) established specifically to hear the allegations against him.

The Leader claimed that the Ombudsman was biased, unreasonable, and denied him his natural justice by denying him procedural fairness. He further claimed that the Ombudsman breached his constitutional rights particularly ss.20 on the Organic Law of Duties and Responsibility of Leadership and 49 of the Constitution and that the Ombudsman acted ultra vires its powers.

On the issue of bias, the Leader argued that the Ombudsman was biased when it chose and did conceal by not including in its referral his further responses to the inquiries of the Ombudsman. In relation to the denial of procedural fairness and breach of his constitutional rights, the Leader claimed that the Ombudsman allowed adverse media reports against him in terms of circulating the details of his personal bank account and directed freezing of that account.

Finally, with regard to the unreasonableness argument, he claimed that the Ombudsman took into account irrelevant factors and in so doing, omitted to take into account relevant factors. He mentioned specifically a failure to take into account the correct financial instruction as to how funds under a Leader’s Social and Rural Development Fund should be dealt with and that such funds though initially deposited into his personal account, were...