Dan Salmon Kakaraya v The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2003) N2478

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 October 2003
• Court: National Court
• Citation: (2003) N2478
• Year: 2003
• Judgement Number: N2478

Full Title: Dan Salmon Kakaraya v The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2003) N2478

National Court: Kandakasi J

Judgment Delivered: 24 October 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 479 OF 2003

BETWEEN:

DAN SALMON KAKARAYA

First Plaintiff

AND:

THE OMBUSMAN COMMISSION OF PAPUA NEW GUINEA

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WAIGANI: KANDAKASI, J.

2003: 3rd September

24th October

ADMINISTRATIVE LAW – Application for leave for judicial review - Decision of the Ombudsman Commission (Ombudsman) – Grounds on which the proceedings of the Ombudsman can be reviewed – Excess of jurisdiction only basis for review of Ombudsman Commission’s proceedings – S. 217(6) of the Constitution

ADMINISTRATIVE LAW – Application for leave for judicial review of a decision by the Ombudsman to refer the Managing Director of the Mineral Resources Development Corporation (MMRDC) to the Public Prosecutor for possible prosecution under the Leadership Code – Whether the decision amounts to an exercise of power in excess of the Ombudsman’s powers – Ombudsman as power to determine whether a person is subject to the Leadership Code - A failure to challenge it amounts to acceptance – Determination within the intent and purpose of the Leadership Code – Leaders of corporations subject to the control of the State covered under the Leadership Code and the powers of the Ombudsman within the meaning of “statutory corporation” under s. 26 (1)(g) of the Constitution - Ss 26 (1)(g) and (4) and of Constitution.

ADMINISTRATIVE LAW – Need to exhaust available remedies – Decision by Ombudsman to refer – Not a final decision affecting a right or interest of the plaintiff made – Opportunity to raise the same issues before a Leadership tribunal still existing – Available remedy not yet exhausted - Leave denied.

ADMINISTRATIVE LAW – Right to be heard before decision to refer a leader to the Public Prosecutor for possible prosecution under the Leadership Code – Leader given more than one opportunity to be heard but failing to exercise his right – No reasonable explanation provided for the failure – Claim of being sick at the relevant time not supported by the evidence before the Court - Application declined.

WORDS & PHRASES – “Statutory Corporation” within the meaning of s.26(1)(g) of the Constitution – Includes all corporations created under a statute and is ultimately under the direction and control of the State – s.26 (1)(g) of the Constitution.

Facts

Following investigations into certain allegations of misconduct in office by the plaintiff (Mr. Kakaraya), the Ombudsman decided to and did refer Mr. Kakaraya to the Public Prosecutor for a possible prosecution under the Leadership Code. This related to his conduct has heads respectively of the Consumer Affairs Council (CAC) and the Mineral Resources Development Corporation (MRDC). A total of 7 weeks was given to Mr. Kakaraya to respond to and be heard in relation to certain allegations of misconduct in office leveled against him. But Mr. Kakaraya failed to do that and claimed he was medically unfit during the relevant period, with the support of a medical report for one day for flue.

Mr. Kakaraya applied for leave for a review of the decision by the Ombudsman to refer him to the Public Prosecutor for possible prosecution under the Leadership Code. He claimed the defendant lacked jurisdiction because the institutions particularly the MRDC, he was a head of was a private company following incorporation under the Companies Act 1997, although it was a company that was owned and controlled by the State. He raised no specific argument in relation to his conduct has head of the CAC. He also claimed that he was not given ample opportunity to be heard in his defence before the decision to refer and as such the defendant was actuated by ulterior motive.

Held

1. All applications for review of a decision or an exercise of the powers of the Ombudsman 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. Followed, Bernard Hagoria v. Ombudsman Commission.

1 (Unreported judgement delivered 26/05/03) N2400.

1

2. The Ombudsman’s task is to investigate as widely as is 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. Followed, Bernard Hagoria v. The Ombudsman Commission

2 Supra note 1.

2 and Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Ors.

3 (Unreported judgement delivered on 14/05/03) N2369

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3. The intent and purpose of the Leadership Code and the Constitution s. 219 is to secure transparency and proper accountability by persons and institutions occupying positions of responsibility and dealing with public funds and other matters of public interest and concern. In line with that intent and purpose, all governmental or public bodies incorporated or not including those incorporated under the Companies Act 1997 for a public purpose and where the State is the sole shareholder having the power to appoint members of the board and or the managing director, is a “statutory authority” within the meaning of s.26 (1)(g) of the Constitution.

4. The MRDC although incorporated under the Companies Act 1997, it is a public institution because the State has a controlling share and has the power to appoint members of the board and its managing director. Accordingly, Mr. Kakaraya being the relevant head of the institution at the relevant time was correctly subjected to the powers of the Ombudsman.

5. In the event of a doubt as to whether a leader or institution is subject to the powers and functions of the Ombudsman, a determination of that issue by the Ombudsman under s. 26(4) of the Constitution is final subject only to a review of that decision. Taking no issue on such a determination once made by the Ombudsman amounts to no issue and acceptance of the determination.

6. There was uncertainty as to proper meaning to be given to the phrase “statutory authority” as used in s. 26(1)(g) of the Constitution, in the context of the MRDC. This was so in the absence of any clear pronouncement by a judgement of this or the Supreme Court and or an Act of Parliament as to what was covered under by that section. It was therefore open to the Ombudsman to make a determination, which was made and there being no challenge to it at the relevant time, it was accepted as correct and is now not open to argue for its nullity.

7. A person coming under the investigatory powers of the Ombudsman is under an obligation to respond within the time period given. Failing to do so, amounts to an acceptance of the allegations and consent for the Ombudsman taking the next step, unless good reasons satisfactory to the Court are provided.

8. In this case, the Ombudsman acted reasonably and without any ulterior motive when it granted Mr. Kakaraya more than one extension 7 weeks in total and refusing to grant a further extension when he made no good case for such extension.

9. It is a cardinal principle in applications for leave for judicial review that all available remedies must be exhausted as judicial review is a remedy of last resort except in an exceptional case. Cited, Philip Kian Seng Lee v. Honourable John Pundari,

4 (Unreported judgement delivered on 09/11/01) N2146.

4 The Independence State of Papua New Guinea v. Kapal,

5 [1987] PNGLR 417.

5 and Kekedo v. Burnsphilip (PNG) Ltd.

6 [1988-89] PNGLR 122.

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10. A decision of the Ombudsman does not amount to a final decision affecting the rights and interest of a person or...