SCM NO 12 of 2015; Honourable Ben Micah, MP v Rigo A. Lua, Chief Ombudsman and Phoebe Sangetari, Ombudsman and Ombudsman Commission of Papua New Guinea and Pondros Kaluwin, Public Prosecutor (2015) SC1445

• Jurisdiction: Papua New Guinea
• Judge: Cannings, Makail & Higgins JJ
• Judgment Date: 15 July 2015
• Court: Supreme Court
• Judgement Number: SC1445

Full Title: SCM NO 12 of 2015; Honourable Ben Micah, MP v Rigo A. Lua, Chief Ombudsman and Phoebe Sangetari, Ombudsman and Ombudsman Commission of Papua New Guinea and Pondros Kaluwin, Public Prosecutor (2015) SC1445

Supreme Court: Cannings, Makail & Higgins JJ

Judgment Delivered: 15 July 2015

SC1445

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 12 OF 2015

BETWEEN

HONOURABLE BEN MICAH, MP

Appellant

AND

RIGO A. LUA, CHIEF OMBUDSMAN

First Respondent

AND

PHOEBE SANGETARI, OMBUDSMAN

Second Respondent

AND

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Third Respondent

AND

PONDROS KALUWIN, PUBLIC PROSECUTOR

Fourth Respondent

Waigani: Cannings, Makail & Higgins JJ

2015: 02nd & 15th July

SUPREME COURT APPEAL – Appeal against refusal of grant of leave to apply for judicial review – Leave sought to review decision of Ombudsman Commission to refer Leader to Public Prosecutor for prosecution – Principles of leave considered – Arguable case – Exhaustion of administrative remedies.

CONSTITUTIONAL LAW – Alleged misconduct in office by Leader – Investigation of – Right of Leader to respond to allegations – Further information or evidence obtained after Leader responded to allegations of misconduct in office – Whether Leader has right to respond to further information or evidence – Natural justice – Right to be heard – No reasons of referral given to Leader – Duty to give reasons – Failure to give reasons – Constitution – Section 59 – Organic Law on Duties and Responsibilities on Leadership – Sections 20 & 21.

Cases cited:

Papua New Guinea cases

Hon. Ben Micah v. Rigo A. Lua & Ombudsman Commission (2015) N5972

Innovest Limited v. Patrick Pruaitch (2014) N5949

Digicel (PNG) Ltd v. Miringtoro (2015) SC1439

Ombudsman Commission v. Peter Yama (2004) SC747

Joe Ponau v. Teaching Service Commission Disciplinary Committee (2006) N3059 Mision Asiki v. Manasupe Zurenuoc (2005) SC797

Niggints v. Tokam [1993] PNGLR 66

Yawip v. Commissioner of Police [1995] PNGLR 93

Wena v. Tokam (1997) N1570

Graham Kevi v. Teaching Service Commission Disciplinary Committee [1997] PNGLR 659

Michael Anis Winmarang v. David Ericho and The State (2006) N3040.

Grand Chief Sir Michael Somare v. Chronox Manek & Ombudsman Commission (2011) SC1118

Eremas Wartoto v The State (2015) SC1411

Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853

Ramu Nico Management (MCC) v. Eddie Tarsie (2010) SC1075

Peter O’Neill v. Pondros Kaluwin & Ors (2015) N5843

Overseas cases

Revenue Commissioners v. National Federation of Self-Employed and Small Business Limited [1982] AC 617

Counsel:

Mr. I. Molloy with Mr. N. Saroa, for Appellant

Mr. A. Chillion, for Respondents

JUDGMENT

15th July, 2015

1. BY THE COURT: This is an appeal against the primary judge’s refusal to grant leave to the Appellant to apply for judicial review under Order 16, rule 3 of the National Court Rules. The subject of the application for leave was the decision of the Third Respondent (Ombudsman Commission) to refer the Appellant to the Fourth Respondent (Public Prosecutor) for prosecution for alleged misconduct in office.

BACKGROUND FACTS

2. The Appellant is a Member of the National Parliament and Minister for Public Enterprises and State Investments. The Ombudsman Commission investigated allegations of misconduct in office by the Appellant. On 08th July 2014, the Appellant was informed by letter from the Ombudsman Commission to personally attend at the Office of the Ombudsman Commission on 11th July 2014. On that day, the Appellant attended the meeting and was informed that there were four (4) allegations of misconduct in office made against him. These allegations were:

(a) that he interfered with the Board of PNG Power Limited.

(b) that he denied any knowledge of PNG Power Limited’s financial crisis.

(c) that he used his office to obtain a benefit in hotel accommodation at the Grand Papua Hotel.

(d) that he defied a directive by the Ombudsman Commission.

3. He was asked to respond to them. On 15th August 2014 (after he was granted an extension of time), he responded to the allegations. Nothing further was heard from the Ombudsman Commission until 09th March 2015 when the Appellant was referred to the Public Prosecutor for prosecution. What occurred on 09th March appears to be the cause of the conflict between the parties. The Appellant was again requested by the Ombudsman Commission to attend a meeting at the Office of the Ombudsman Commission on that date. He obliged and the First Respondent in the presence of the Director, Leadership Branch Mr Richard Pagen served on him a notice and reasons for his referral. It is claimed these documents were contained in an envelope and handed to him and he was asked to sign a service delivery form. The Appellant refused to sign the form or accept the envelope and walked out of the meeting. He told the First Respondent and Mr Pagen that he would take the matter up in Court.

GROUNDS OF REVIEW

4. He claimed firstly, the Ombudsman Commission had obtained additional information (evidence) against him between 15th August 2014 and 09th March 2015 and had not given him an opportunity to respond to it. This was a denial of natural justice; the right to be heard before judgment or adverse decision as guaranteed by Section 59 of the Constitution. Secondly, the Ombudsman Commission had not provided him with reasons for the referral to the Public Prosecutor for alleged misconduct, which reasons were required to be good, proper, sufficient and meaningful.

NATIONAL COURT DECISION

5. In the National Court he sought leave to apply for judicial review to have the Court review the decision of the Ombudsman Commission to refer him to the Public Prosecutor and have that decision quashed by an order for certiorari. On 08th May 2015 the National Court heard the application for leave and reserved its decision. On 20th May 2015 it handed down its decision refusing leave. It held the Appellant failed to meet two of the requirements for grant of leave: that he failed to establish firstly an arguable case and secondly, exhaust other administrative remedies: see Hon. Ben Micah v. Rigo A. Lua & Ombudsman Commission (2015) N5972.

ISSUE 1: ARGUABLE CASE – RIGHT TO BE HEARD

6. A person who seeks to challenge a primary judge’s exercise of discretion must show an error of principle. In judicial review proceedings under Order 16 of the National Court Rules, it has been held the test whether the Court should grant leave to apply for judicial review is not a difficult one to satisfy. In this case, it was correctly stated by the primary judge in quoting Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Limited [1982] AC 617 at 644 that “If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for judicial relief........”. This test has been adopted and applied in many cases including Innovest Limited v. Patrick Pruaitch (2014) N5949 and very recently Digicel (PNG) Ltd v. Miringtoro (2015) SC1439.

7. The primary judge had held that there was no arguable case because the Appellant had been afforded the right to be heard on 11th July 2014 after he had been served four allegations of misconduct in office and invited to respond to them as he did on 15th August 2014.

8. The primary judge had further held that Section 21(1) of the Organic Law on the Duties and Responsibilities of Leadership (“Organic Law on Leadership”) permitted the Ombudsman Commission from “time to time” to require any person to give information for any alleged or suspected misconduct in office by a Leader. On this authority, the Ombudsman Commission is not precluded from obtaining any further evidence or information even after the Leader has responded to the allegations, as was the case here. The primary judge reached this conclusion on the premise that the further evidence or information collected by the Ombudsman Commission was in relation to the same allegations, specifically, the allegation of the Appellant using his office to obtain a benefit in hotel accommodation.

9. The uncontested evidence before the primary judge was that between 14th August 2014 and early 2015, the Ombudsman Commission had requested (based on a summons) Mr Wasantha Kumarasiri, the former Managing Director of Independent Public Business Corporation to provide (the Grand Papua) information and/ or documents in relation to the allegation of the Appellant using his office to gain a benefit in hotel accommodation. Meanwhile on 16th February 2015 it wrote to Mr Alex Wilson, the General Manager of the Grand Papua Hotel requiring him to provide information and/ or documents in relation to the same allegation. The further information sought from Mr Wilson included whether the Appellant had accommodated family members at the hotel and who it was that paid for...