SC Review No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Ellis J, Doherty J
• Judgment Date: 09 July 1991
• Court: Supreme Court
• Judgement Number: SC411

Supreme Court: Kapi DCJ, Ellis J, Doherty J

Judgment Delivered: 9 July 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO S 155 (2) (B) OF THE CONSTITUTION

APPLICATION BY

BERNARD M NAROKOBI

PRINCIPLE LEGAL ADVISOR

Waigani

Kapi DCJ Ellis Doherty JJ

22 April 1991

9 July 1991

ADMINISTRATIVE LAW — Judicial review — Judicial acts — Application for leave — Locus standi of Attorney-General — Whether entitled to leave as of right — Ordinary principles to apply — Attorney-General Act 1989, s 7 (c).

The Attorney-General Act 1989, s 7 (c), provides that the Attorney-General has power:

"To exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings."

Held

(1) The Attorney-General Act 1989, s 7 (c), applies only to relator proceedings, it does not empower the Attorney-General to seek judicial review.

(2) Where the Attorney-General has standing to seek judicial review, he must satisfy the established criteria for seeking leave to apply for judicial review under s 155 (2) (b) of the Constitution.

Semble, the Attorney-General does not have prosecutorial functions.

Cases Cited

Attorney-General; Ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629.

Avia Aihi v The State [1981] PNGLR 81.

Danny Sunu v The State [1984] PNGLR 305.

Independent State of Papua New Guinea v Colbert [1988] PNGLR 138.

Kasap and Yama, Application of [1988-89] PNGLR 197.

Application for Judicial Review

This was an application for leave to apply for judicial review brought by the Attorney-General following failure of the Public Prosecutor to lodge an appeal from a decision of the National Court.

Counsel

D Cannings, for the applicant.

R Pato, for the respondent.

Cur adv vult

9 July 1991

KAPI DCJ: Mr Eliakim T ToBolton, the managing director of the Investment Corporation of Papua New Guinea was summoned to attend on the Ombudsman Commission by summonsed pursuant to s 18 of the Organic Law on the Ombudsman Commission (Ch No 1) returnable on 28 June 1989. An officer on behalf of the Investment Corporation attended on the Ombudsman Commission in response to the summons and claimed that such summons was issued in excess of jurisdiction. In two subsequent letters, the Ombudsman Commission further particularised the subject matter of the complaint for which the managing director was being summonsed to appeal before the Commission. In these letters the Ombudsman Commission pointed out the requirements of s 18 of the Organic Law relating to the power of the Commission to summon persons to give evidence. The managing director of the corporation replied again and in effect denied the authority of the Ombudsman Commission to investigate its affairs. In essence the view expressed by the managing directorwas that the Investment Corporation is an organisation supported by public moneys and therefore does not consider that the jurisdiction of the Ombudsman Commission extends to it. The managing director held the view that any summons purportedly issued would be invalid and unenforceable and so the managing director failed to comply with the terms of the summons. According to s 30 of the Organic Law, a failure to attend a summons under s 18 is an offence.

Mr ToBolton was therefore charged with this offence and was brought before the District Court for the purposes of a committal hearing. The District Court found that there was a prima facie case that the managing director had failed to comply with the summons in that he did not attend on 28 June 1989 at the Commission's office as required by the summons.

Mr ToBolton then applied for a judicial review pursuant to O 16 of the National Court Rules. The applicant sought an order of certiorari to quash the District Court orders on the basis that the Investment Corporation does not come within the jurisdiction of the Ombudsman Commission and therefore the summons...