Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR 348

• Jurisdiction: Papua New Guinea
• Judge: Pratt J, Amet J, Woods J
• Judgment Date: 03 December 1985
• Court: Supreme Court
• Citation: [1985] PNGLR 348
• Year: 1985
• Judgement Number: SC306

Full Title: Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR 348

Supreme Court: Pratt J, Amet J, Woods J

Judgment Delivered: 3 December 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

V

DENIS DONOHOE

Waigani

Pratt Amet Woods JJ

29 October 1984

3 December 1985

CONSTITUTIONAL LAW — Organic laws — Validity — Construction — Supremacy of constitutional laws — Organic law not to cut down or qualify constitutional law — Constitution, s 217 — Organic Law on the Ombudsman Commission, s 24.

STATE SERVICES — Ombudsman Commission — Proceedings of Commission — Review of — Scope of Organic Law — Organic Law inconsistent with constitutional law — No power of review except where excess jurisdiction — Constitution, s 217 — Organic Law on the Ombudsman Commission, s 24.

STATE SERVICES — Ombudsman Commission — Proceedings of Commission — Natural justice — When applicable — Adverse consequences for person named — Right to seek judicial review — Organic Law on the Ombudsman Commission, ss 4-21.

PRACTICE — Supreme Court — Application for judicial review — Leave to file — Grounds for — Fundamental and substantial issues — National Court Rules, O 16, rr 2, 3, 5.

The Constitution, s 217, establishes the Ombudsman Commission and provides for its constitution, membership and powers and includes the following provisions:

" (5) In the performance of its functions under Section 219 (functions of the Commission) the Commission is not subject to direction or control by any person or authority.

(6) The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.

(7) An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission."

The Organic Law on the Ombudsman Commission, s 24, provides:

"No proceeding of the Commission shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Commission shall be challenged, reviewed, quashed or called into question in any court."

Held

(1) The provisions of an organic law cannot restrict, narrow down or qualify a grant of jurisdiction or a right under the Constitution unless so qualified by a provision of the Constitution itself.

(2) The Organic Law on the Ombudsman Commission, s 24, is inconsistent with the Constitution, s 217, and to the extent of the inconsistency is invalid and unconstitutional.

(3) The Supreme Court and the National Court have jurisdiction to review proceedings of the Ombudsman Commission on the ground that it has exceeded its jurisdiction.

(4) On an application for leave to file an application for judicial review, pursuant to the Constitution, s 155 (4), the Court need only be satisfied as to the requirements of the National Court Rules, O 16, rr 2, 3 and 5; leave may be granted where the issues raised are fundamental and substantial.

(5) The obligation to observe the rules of natural justice under the Constitution, s 59 and s 60, may apply depending upon the circumstances, to proceedings before the Ombudsman Commission.

(6) Where a report arising from proceedings before the Ombudsman Commission may have adverse consequences for a person concerned, the rules of natural justice require that the person be provided with a reasonable opportunity of being heard and fairly setting out his defence in any such report.

(7) A person aggrieved by a failure by the Ombudsman Commission to so observe the rules of natural justice has a primary right to seek judicial review of the proceedings of the Ombudsman Commission.

Cases Cited

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

Avia Aihi v The State [1981] PNGLR 81.

Constitutional Reference No 1 of 1978 (s 19) [1978] PNGLR 345.

Dent v Thomas Kavali [1981] PNGLR 488.

Malipu Balakau v Paul Paken Torato and Tiane Openakali [1983] PNGLR 242.

Mopio v Speaker of the National Parliament [1977] PNGLR 420.

Parry-Jones v Law Society [1969] 1 Ch 1.

Pearlman v Keepers and Governors of Harrow School [1979] QB 56.

Pergamon Press Ltd, Re [1971] Ch 388.

Police, Commissioner of v Tanos (1958) 98 CLR 383.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

SCR No 1a of 1981; Re Motor Traffic Act [1982] PNGLR 122.

SCR No 2 of 1981; Res 19 (1) (f) of the Criminal Code [1982] PNGLR 150.

SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214.

Salaman v Warner [1891] 1 QB 734.

Standard Discount Co v La Grange (1877) 3 CPD 67.

Wiseman v Borneman [1971] AC 297.

Appeal

This was an appeal by the Ombudsman Commission from a judgment of the National Court granting, ex parte, leave to file an application for judicial review of proceedings by the Ombudsman Commission to a person named in the proceedings and report thereon.

Counsel

D J Colquhoun-Kerr, for the appellant.

Cur adv vult

3 December 1985

PRATT J: I have had the advantage of reading the judgment of Amet J. I agree with the reasoning and the conclusions stated therein. Counsel for the appellant has been placed in some difficulty at the outset of this matter because of the problem of keying in the National Court Rules, O 16, r 11, with the Supreme Court Act (Ch No 37), s 4 and s 14. The particular rule mentioned was brought into effect in anticipation of an amendment to the Supreme Court Rules. However, this did not eventuate as those Rules were completely redrafted and now incorporate a special provision under O 10 to accommodate appeals from orders concerning judicial review. The National Court judges cannot of course lay down methods of procedure to be followed by the Supreme Court. Nevertheless, they are entitled to indicate in what manner a particular judgment shall be treated. The National Court Rules, O 16, r 11, is therefore only an indication of what was to appear in concrete form in the Supreme Court Rules (now O 10, since 1 February 185). This was of little consolation to the appellant who was forced back onto the Supreme Court Act to form a basis for his appeal.

To add to the problem this Court allowed the substantive submissions to be made, and reserved the threshold question of jurisdiction to hear an appeal from an ex parte judgment of a National Court judge. As there was no representation for the respondent the problem could not be fully thrashed out. With the introduction of the new Supreme Court Rules this year the question will now be of academic interest only. Consequently the jurisdictional problems confronting this appeal should not occur again. More importantly, the lack of full argument and the special circumstances surrounding the lodgment of this appeal will mean that the decision in this case on the threshold issues will not pose any problem of judicial comity for a subsequent Supreme Court, as they will be treading new ground under O 10 of the new rules.

Mr Colquhoun-Kerr for the appellant has placed his appeal on the alternate basis of appeal as of right under the Supreme Court Act, s 4, and appeal by leave under s 14. Personally I remain to be convinced of the relevance of s 4. It lays down appeal rights in very broad terms and must be read subject to later sections which spell out the factors distinguishing an appeal as of right and an appeal by way of leave. Sections 14 and 22 are especially pertinent. I am also unimpressed with the submission that the National Court order may be treated as a final order and not an interlocutory one. True it is that a person who is unsuccessful in his application for review has a final order (subject to appeal), but on the other hand if the applicant is successful it is really the second step in an ongoing process. The situation seems to be reminiscent of the old Rules of the Supreme Court (UK), O 25, r 3, dismissing an action on a point of law where it was held that such dismissal was not final because had the decision gne the other way, the action would have proceeded: Salaman v Warner [1981] 1 QB 734 applying the test laid down by Brett LJ in Standard Discount Co v La Grange (1877) 3 CPD 67.

Although I am far from totally convinced of the applicability of the Supreme Court Act, s 14 (3), in circumstances such as the present, the matter is at least arguable and I would propose the granting of leave but in the ultimate dismiss the appeal.

AMET J: This is an appeal by the Ombudsman Commission from the judgment of the National Court, granting the ex parte application of the respondent leave to file an application for judicial review of an inquiry by the Ombudsman Commission into certain complaints against the conduct of the respondent.

BACKGROUND

In early 1981, there was some staff and student unrest at the Kerevat National High School. The Secretary for Education set up a Departmental Committee of Enquiry (the Committee) to inquire into the unrest.

In 1981, the respondent...