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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1991] PNGLR 153
• Date: 29 May 1991
• Year: 1991

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

National Court: Sheehan J

Judgment Delivered: 29 May 1991

1 Judicial review—application by defendant to intervene—disputes as to facts and merits reserved for substantive hearing

2 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, O16, r3(2).

3 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, O16, r3(2).

The National Court Rules, O16, r3(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 The Board of the PTC, PTC and Media Niugini Pty Ltd [1987] PNGLR 70, considered.

Olasco Niugini Pty Ltd v John 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.

Inland Revenue Commissioners v National Federation of Self–Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722, NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini Pty Ltd [1987] PNGLR 70, Olasco Niugini Pty Ltd v John Kaputin [1986] PNGLR 244, R v Secretary of State for Home Department; Ex parte Begum [1990] COD 109 and SCR No 3 of 1982; Re s57 and s155(4) of the Constitution [1982] PNGLR 405 referred to

Application for Judicial Review

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

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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 (Ch1). 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, O16, r3(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 AJ in Olasco Niugini Pty Ltd v...