Ombudsman Commission v Peter Yama (2004) SC747

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Injia DCJ, Sakora J, Sawong J
• Judgment Date: 02 June 2004
• Citation: (2004) SC747
• Judgment Number: SC747
• Year: 2004
• Docket Number: SCM No 2 of 2003

Full Title: SCM No 2 of 2003; Ombudsman Commission v Peter Yama (2004) SC747

Supreme Court: Injia DCJ, Sakora J, Sawong J

Judgment Delivered: 2 June 2004

1 Judicial review—Practice and Procedure—Administrative action—Leadership Code—Ombudsman Commission's decision to refer leader to Public Prosecutor for prosecution before Leadership Tribunal—Delay in making application—Application made six (6) years after decision—Decision superseded by Public Prosecutor's decision to proceed with the matter—Leadership Tribunal already established upon Public Prosecutor's request—Undue delay—Inappropriate to seek review of Ombudsman Commission's referral—Certiorari not available—National Court Rules O16 r4.

2 Judicial review—Leadership code—Administrative action—Principles of Natural justice—Reasons for decision—Ombudsman Commission's duty to give reason for decision to refer Leader to Public Prosecutor—Constitution, s59.

3 Constitutional Law—Constitutional offices and functions—Distinct and independent functions of the Public Prosecutor and the Ombudsman Commission in Leadership Code matters discussed—Distinct and different types of "referral" by Ombudsman Commission and Public Prosecutor discussed—Constitution s29, s176, s177, s219; Organic Law on Duties and Responsibilities of Leadership s17(d), s20(4), s27(1), s27(2) and s27(3).

5 General Electric Co Ltd v Price Commission [1975] ICR 1, Breen v Amalgamated Engineering Union [1971] 2 QB 175, John Mua Nilkare v Ombudsman Commission (1995) N1344, Kelly Yawip v Commissioner of Police and The Independent State of Papua New Guinea [1995] PNGLR 93, Kim Foon & Sons Pty Ltd v Minister of Finance and Planning [1997] PNGLR 484, Benson Gegeyo, Margaret Misso, Brian Bell and Sir Ravu Henao v The Minister for Lands and Physical Planning [1987] PNGLR 331, Michael Kapa Wena v Henry Tokam, Police Commissioner (1997) N1570, Application of Moge Enga and Kuipi Group [1995] PNGLR 31, John Mua Nilkare v Ombudsman Commission (1996) SC498, Godfrey Niggints v Henry Tokam [1993] PNGLR 66, Ombudsman Commission v Donohoe [1985] PNGLR 348, Tony Chan and Golden Bowl Pty Ltd v The Ombudsman Commission (2001) (Unnumbered and Unreported judgment of the National Court dated 31 December 2001) referred to

___________________________

SC747

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCM. No. 2 of 2003

BETWEEN:

OMBUDSMAN COMMISSION

- Appellants

AND:

PETER YAMA

- Respondent-

WAIGANI: Injia Dep CJ, Sakora & Sawong JJ

2004: March 31st, June 2nd

Judicial review – Practice and Procedure – Administrative action – Leadership Code – Ombudsman Commission’s decision to refer leader to Public Prosecutor for prosecution before Leadership Tribunal – Delay in making application – Application made six (6) years after decision –Decision superceded by Public Prosecutor’s decision to proceed with the matter – Leadership Tribunal already established upon Public Prosecutor’s request – Undue delay – Inappropriate to seek review of Ombudsman Commission’s referral - Certiorari not available – National Court Rules O16r4.

Judicial review –Leadership code – Administrative action – Principles of Natural justice – Reasons for decision - Ombudsman Commission’s duty to give reason for decision to refer Leader to Public Prosecutor - Constitution, S.59.

Constitutional Law – Constitutional offices and functions – Distinct and independent functions of the Public Prosecutor and the Ombudsman Commission in Leadership Code matters discussed – Distinct and different types of “referral” by Ombudsman Commission and Public Prosecutor discussed – Constitution s.29, S.176, S.177, S.219; Organic Law on Duties and Responsibilities of Leadership s.17(d), s.20(4), S.27(1), (2) & (3).

Cases cited in the judgement:

Gegeyo v Minister for Lands [1987] PNGLR 331

General Electrics Co Ltd v Price Commission [1975] ICR 1.

Breen v Amalgamated Engineers Union [1975] 2 QB 175.

John Mua Nilkare v The Ombudsman Commission, N1344 (1995).

Kelly Yawip v Police Commissioner [1995] PNGLR 93.

Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996)

Margaret Misso and two (2) Others v Minister for Lands [1987] PNGLR 331.

Michael Kapa Wena v Police Commissioner N1570 (1997).

Application of Moge Enga [1995] PNGLR 031;

Nilkare v Ombudsman Commission SC 498 (1996).

Ninggints v Tokam [1993] PNGLR 70.

Ombudsman Commission v Donohoe [1985] PNGLR 348;

Tony Chan & Golden Bowl Pty Ltd v Ombudsman Commission (Unreported judgment of the National Court (2001).

D. Cannings with N. Yalo for the Appellant

A. Jerewai for the Respondent

2 June, 2004

BY THE COURT.: The Appellant (the “Commission”) appeals against the decision of the National Court (“the Court”) given on 4 March 2003. In that decision, the Court granted an application for judicial review under Order 16 of the National Court Rules (“NCR”). Consequently the Commission’s decision made on 14 July 1997 to refer the Respondent to the Public Prosecutor for prosecution before a Leadership Tribunal, on nine (9) counts of misconduct in office, was quashed.

There are seven (7) grounds of appeal which raise issues of mixed fact and law. Each of them is particularized in extensive detail in the Notice of Appeal with reference to His Honour’s judgement, and it is not convenient to set them out in full. We set out the head grounds only. These are:-

1. Error of mixed fact and law by failure to make findings of the fact: The trial judge erred by not making findings of fact on the basis of which the Court’s consideration of the grounds of judicial review could take place.

2. Error of law by finding breach of natural justice for failure to give notice: The trial judge erred by finding that the Commission had breached the rules of natural justice by not giving Respondent notice of its decision to refer him to the Public Prosecutor.

3. Error of law by finding breach of natural justice for failure to give reasons: The trial judge erred by finding that the Commission had breached the rules of natural justice by not furnishing to the Respondent its reasons for its decision to refer him to the Public Prosecutor.

4. Error of law by finding Wednesbury principle of unreasonableness: The trial judge erred by finding that the Commission’s decision to refer the Respondent to the Public Prosecutor was unreasonable under the Wednesbury principles.

5. Error of law by determining application on grounds other than those pleaded: The trial judge erred by upholding grounds of review that had not been set out in the Respondent’s Order 16 Rule 3(2)(a) statement, contrary NCR, O 16 r 6(1).

6. Error of law by failing to find excess of jurisdiction: The trial judge erred by not considering whether, and how, by making its decision to refer the Respondent to the Public Prosecutor, the Commission exceeded its jurisdiction.

7. Error of law by failing to exercise any discretion regarding remedies: The trial judge erred by failing to exercise the Court’s discretion as to whether the relief sought by the applicant for judicial review should be granted.

We begin with the task of ascertaining the background facts of the case. This depends on the findings of fact by the National Court in disputed or undisputed areas of the evidence before it. But there is a problem with this and the problem is conveniently addressed in the Commission’s first ground of appeal. The Commission’s counsel, Mr Cannings then requests us to endorse his own version of chronology of relevant events, some of which are discerned from the evidence before the National Court.

Having heard Mr Cannings of counsel for the Appellant and Mr Jerewai’s of counsel for the Respondent on the first ground of appeal, we are of the view that the judgment of the Court is of little assistance in establishing the necessary facts because the Court did not deal with the evidence in some coherent and comprehensive manner. There are no clear and comprehensive findings of fact uncontested from the affidavit evidence presented before the Court by both parties. For this reason, we wish to re-visit the evidence before His Honour and set out the facts.

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