Sir Julius Chan v Ombudsman Commission

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 15 July 1998
• Court: National Court
• Citation: [1998] PNGLR 171
• Year: 1998
• Judgement Number: N1738

National Court: Woods J

Judgment Delivered: 15 July 1998

N1738

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 485 OF 1997

SIR JULIUS CHAN - Applicant

V

OMBUDSMAN COMMISSION - Respondent

Waigani: Woods J

6, 15 July 1998

Administrative Law – judicial review of administrative acts - general principles - review of an Ombudsman Commission investigation – nature of an investigation – status of preliminary report – directions for the review.

Cases cited:

Council of Civil Service Unions v Minister for the Civil Service [1984] 3AER 935

Kekedo v Burns Philp & Os [1988-89] PNGLR 122

O’Reilly v Mackman [1982] 3 AER 1124

Provincial Picture Houses v Wednesbury Corporation [1947] 2 AER 680

N Cooke QC and M Varitimos for the Applicant

D Cannings for the Respondent.

15 July 1998

Woods J. The Applicant is seeking judicial review of an investigation being conducted by the Ombudsman Commission of PNG into various matters including circumstances surrounding the purchase of a property called ‘The Observatory’ in Cairns Australia by the POSF Board and associated transactions and arrangements. The applicant was the Prime Minister of PNG at some relevant times and his name has apparently been mentioned during the investigation. The Ombudsman Commission has prepared a preliminary report of its investigations and has apparently circulated that preliminary report to people whose names have been mentioned during the investigation. It is suggested that the reason this report was circulated to those people was to allow them to comment or make any statements to the Commission about the matters under investigation. The preliminary report was forwarded to the applicant and he was asked if he wished to say anything. At this stage I myself have not seen the report so I do not know in what context the applicant’s name has come up during the investigation. However it seems that it is because of the way that the applicant has been mentioned in the report that this application for review has been made. The applicant is seeking review of the investigation on the basis that the preliminary report shows bias towards the applicant and there have been breaches of nature justice in the way the applicant has been mentioned in the report and therefore the applicant is seeking to have the investigation declared invalid.

As a procedural step towards the hearing of the Review it is necessary to issue directions for the hearing and parties have made submissions to the court as to the directions that should be made and the manner in which the review should be conducted.

This application for judicial review is made under National Court Rules Order 16. In his statement filed with the application the applicant is alleging various breaches of natural justice and bias against him by officers of the Commission. And of course the action being sought to be reviewed is the findings of the Commission as embodied in its preliminary report. Judicial Review is the procedure a citizen may pursue to challenge administrative decisions that they consider to be adverse to themselves. However this immediately raises the question as to what actually is being challenged here. It seems to be the preliminary report. However is this preliminary report a decision of an administrative and quasi-judicial tribunal. This report is clearly part of an investigation being conducted by the Ombudsman Commission in accordance with its powers to investigate provided for under the Organic Law on the Ombudsman Commission. It is necessary to look at the relevant provisions of that Organic Law. It is quite clear that through the whole scheme of the Organic Law and by its provisions the Commission has been given very wide powers and immunities.

The Organic Law section 13 ‘Functions of the Commission’ allows the Commission to investigate on its own initiative as well as on complaint.

Section 17 (2) provides that every investigation shall be conducted in private. (3) The Commission can hear or obtain information from any person...