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Nero v Ombudsman Commission of Papua New Guinea [2012] PGNC 22; N4606 (31 January 2012)

N4606

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 971 OF 2011

BETWEEN:

JOHN NERO
Applicant

AND:

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani J
2012: 18th, 31st January

OMBUDSMAN COMMISSION – Functions of the Ombudsman Commission – appointment of independent investigative authority – when can that be done; ss. 17 and 19 of the Organic Law on the Ombudsman Commission

OMBUDSMAN COMMISSION – Court hearings – disclosure of highly confidential information – information contained in Affidavits – Affidavits relied on in Court proceedings – Court must carefully exercise its discretion- affidavits can be deemed inadmissible.

OMBUDSMAN COMMISSION – Plaintiff alleges bias by members of investigating authority – allegations made relying on information incorrectly obtained from the Ombudsman Commissions records – Right to be heard notice served upon Plaintiff, soon thereafter – Plaintiff can invoke S. 19(1) – only after receipt of the Right to be Heard Notice – S. 19(1) (2) of the Organic Law on Duties and Responsibilities of Leadership.

Facts:

The Plaintiff is an ombudsman with the Ombudsman Commission. He is being investigated by the Ombudsman Commission (OC) over allegations of misconduct in office. Prior to the OC's meeting to consider a request to investigate him, he requested the OC by a minute, to invoke s19 of the Organic Law on Duties and Responsibilities of Leadership to appoint an independent Investigative Authority to conduct the investigations against him because he believed there was a great likelihood of bias, unfairness and conflict of interest by those in the authority. This request was considered at the OC's meeting of 2nd August, 2011 at which the Plaintiff was an attendee. At that meeting, the Plaintiff was advised to send in that request after he had been served the Right to be heard Notice. The Plaintiff did not do so, applying instead to the Court for the orders he now seeks.

Issues:

1. Is the information the applicant relies on in claiming bias etc, privileged information?
   
2. Can this Court hear and determine a primary function of the Ombudsman Commission which relates to leadership?
   
3. When can an aggrieved person invoke s19 of the Organics Law on Duties and Responsibilities of Leadership?
   

Reasons:

1. Yes, the admissibility of constitutionally privileged information for use in the Courts for purpose of Court proceedings, interlocutory or otherwise, must be carefully considered by the Court for purposes of exercising its discretion.
   

Also, s 24 of the Organic Law on the Ombudsman Commission provides in clear terms, amongst others, that no proceedings of the Commission shall be challenged, reviewed, quashed or called into question in any Court.

2. No, the only time the National or the Supreme Court can hear a claim against the Commission is when it has exceeded its jurisdiction.
   
3. After he is served with the Right to be Heard Notice where all the allegations are outlined. Then, he can invoke s. 19 of the Organic Law on Duties and Responsibilities of Leadership.
   

Orders

These are the formal orders of the Court;

(1) The Notice of Motion filed by Henaos Lawyers on 21st December, 2011 is dismissed;

(2) The whole proceedings are dismissed in their entirety;

(3) The plaintiff shall pay the first defendant's costs of the proceedings and the applications filed by the Ombudsman Commission and Henaos Lawyers, to be taxed if not agreed;

(4) The plaintiff has leave to serve a response to the first defendant's Right-to-be-Heard Notice and will do so within 7 days from today, on or before 7th February, 2012 at 4:06pm;

(5) Time is abridged to time of settlement to take place forthwith.

Counsel:

W. Bigi, for the Applicant/Applicant
T. Suwae, for the First Defendant
No appearance for the Second Defendant

DECISION

31st January, 2012

1. DAVANI J: Before me are two (2) Notices of Motions filed by both plaintiff/applicant ('applicant') and the first defendant ('OC'). The applicant's Motion was filed by Henaos Lawyers on 21st December, 2011 together with Originating Summons, which Summons seeks various Declarations which I will set out later below. However, in relation to the Notice of Motion, it seeks that the OC be restrained from carrying out its investigations into the alleged or suspected misconduct in office by the applicant pending the determination of the proceedings.
   
2. It also seeks that the right-to-be-heard Notice issued by the OC on 19th December, 2011 be stayed pending further orders or the determination of these proceedings, whichever occurs first.
   
3. In its Originating Summons, the applicant, who is investigated by the OC, seeks that the OC appoint an independent investigating authority to carry out investigations into the alleged or suspected misconduct in office alleged against him by the applicant. I discuss the substantive claim later below.
   
4. By the OC's Notice of Motion filed on 4th January, 2012, it seeks that the whole of the proceedings be dismissed on several grounds, one of which is that the proceedings is an abuse of the Court's process and is against the OC's primary functions under the Constitution; the Organic law on the Duties and Responsibilities of Leadership ('OLDRL') and the Organic Law on the Ombudsman Commission ('Organic Law').
   

Background

5. There are several affidavits before me which both parties rely on in support of their applications. These affidavits set out the facts on which both parties rely. Some of these facts form the brief background contained herein.
   
6. The applicant is an Ombudsman with the OC. He was firstly appointed an Ombudsman on 6th May, 2005 for a term of six (6) years which took effect on 9th May, 2005. The applicant was re-appointed as an Ombudsman for a second term of six (6) years on 3rd May, 2011.
   
7. Prior to being an Ombudsman, the applicant served the OC as a Senior Investigator in the Leadership Division which commenced on 4th September, 1995. In January, 2000, the applicant was appointed a Team Leader in the Leadership Division, a position he held until he was appointed as Acting Ombudsman and then an Ombudsman in 2005.
   
8. The applicant has served the OC for a period of more than sixteen (16) years in various positions within the Leadership Division including the position of an Ombudsman.
   
9. On 7th June, 2011, the applicant became aware of a request to the OC by a Mathew Damaru, the current Director of Leadership with the OC to approve a full scale investigation against the applicant in relation to allegations of his misconduct in office. The request was listed as an agenda item for the OC's meeting scheduled for 27th June, 2011.
   
10. On 26th June, 2011, a day prior to the OC's meeting to consider the request by Mathew Damaru to investigate the applicant, he requested the OC through a Minute to invoke s19 of the OLDRL to appoint an independent investigative authority to conduct the investigation against him because he believed that there was a great likelihood of bias, unfairness and conflict of interest by his fellow Ombudsmen and other senior officers of the OC, namely Mathew Damaru, who is the Director of Leadership, Tabitha Suwae, the Director of Legal Services and Richard Pagan, who is a Team Leader with the OC. The applicant believes that the OC's investigations against him will be compromised because of the named officers past involvement against him, which he outlined in his affidavit sworn and filed on 21st December, 2011. The applicant's request is marked as annexure 'E' to that affidavit.
    
11. The brief facts in support of the applicant's claims of bias, likelihood of bias, unfairness and conflict of interest by the other Ombudsman, are all stated in the Minute to the OC, annexure 'E' to the applicant's affidavit.
    
12. The applicant's request for the OC to invoke s19 of the OLDRL was considered at the OC's meeting of 2nd August, 2011 at which the applicant was also an attendee.
    
13. The applicant claims that he has yet to be advised of the outcome of his request to the OC to invoke s19 of the OLDRL.
    

Law relied on by the applicant and the OC

14. Both parties rely on certain provisions of the Constitution, the OLDRL and the Organic Law. The relevant provisions of these legislation are:
    

1. OLDRL
   

15. I set out a few relevant definitions.
    

"1. Definitions

In this law –

...

"constitutional office-holder" means a person referred to in the definition of "constitutional office-holder" in Section 226 (definition) of the Constitution;

...

"other authority", in relation to a particular examination or investigation under this Law, means the authority (if any) appointed by the Ombudsman Commission under Section 19 to carry out the examination or conduct the investigation;

...

"the Ombudsman Commission" means the Ombudsman Commission established under Section 217 (the Ombudsman Commission) of the Constitution;

..."

"17. Functions of the Ombudsman Commission

For the purposes of this Law, the functions of the Ombudsman Commission, in addition to the functions specified in Sections 27 (responsibilities of office) and 29 (prosecution of misconduct in office) of the Constitution and elsewhere in this Law, are –

(a) to examine or cause to be examined each statement lodged with it under Section 4; and

(b) to examine or cause to be examined each disclosure made under Section 15 or any subsequent disclosure relating to that disclosure; and

(c) to investigate, on its own initiative or on complaint by any person, or cause such an investigation to be carried out into any alleged or suspected misconduct in office by a person to whom this Law applies; and

(d) to refer to the Public Prosecutor for prosecution by him before the appropriate tribunal referred to in Section 27 any case where, in its deliberate judgment, there is evidence of misconduct in office by a person to whom this Law applies."

"19. Appointment of investigating authorities

(1) The Ombudsman Commission may, where it is itself unable for any reason to conduct an examination or investigation referred to in Section 17, appoint one or more constitutional office-holders to carry out the examination or conduct the investigation and to report to it on the results of the examination or investigation.

(2) An examining or investigating authority appointed under Subsection (1) has, for the purposes of carrying out any examination or investigation in respect of which it is appointed, all the powers of the Commission necessary to enable it to carry out the examination or conduct the investigation including in the case of an investigation the powers referred to in Sections 20, 21 and 22."

"20. Proceedings Of The Commission

(1) Every investigation by the Commission or other authority under this Law shall be conducted in private.

(2) The Commission or other authority may hear or obtain information from any person who the Commission considers can assist and may make whatever inquiries it thinks fit and shall, before taking action under Subsection (4) notify the person whose conduct is being investigated.

(3) Nothing in this Law compels the Commission or other authority to hold any hearing and no person, other than the person whose conduct is being investigated is entitled as of right to be heard by the Commission.

(4) If, after an investigation, the Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."

2. Constitution
   

16. Relevant provisions of the Constitution are:
    

"26. Application of Division 2

(1) The provisions of this Division apply to and in relation to–

(a) the Prime Minister, the Deputy Prime Minister and the other Ministers; and

(b) the Leader and Deputy Leader of the Opposition; and

(c) all other members of the Parliament; and

(d) members of Provincial Assemblies and Local-level Governments; and

(e) all constitutional office-holders within the meaning of Section 221 (definitions); and

(f) all heads of Departments of the National Public Service; and

(g) all heads of or members of the boards or other controlling bodies of statutory authorities; and

(h) the Commissioner of Police; and

(i) the Commander of the Defence Force; and

(j) all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and

(k) the public trustee; and

(l) the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and

(m) executive officers of registered political parties as defined by Section 128 ("registered political party"); and

(n) persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.

(2) This Division applies to and in relation to a person referred to in Subsection (1) not only in the office referred to in that subsection but also in any other office or position that he holds under any law by virtue of that office.

(3) An Organic Law or an Act of the Parliament may declare any public office (including an office in a provincial government or a local-level government body) to be an office to and in relation to which this Division applies.

(4) In the event of doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final."

"tribunal" means a tribunal referred to in Section 27."

"29. Prosecution of Misconduct in Office

(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead."

"217. The Ombudsman Commission.

(1) There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen.

(2) The members of the Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of an Ombudsman Appointments Committee consisting of–

(a) the Prime Minister, who shall be Chairman; and

(b) the Chief Justice; and

(c) the Leader of the Opposition; and

(d) the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and

(e) the Chairman of the Public Services Commission.

(3) The salary and other conditions of employment of the Chief Ombudsman shall not be less than or inferior to the salary and other conditions of employment of a Judge other than the Chief Justice and the Deputy Chief Justice without taking into account any conditions of employment personal to that Judge.

(4) The salary and other conditions of employment of the Ombudsmen shall be not less than or inferior to the salary and other conditions of employment of the Public Prosecutor, without taking into account any conditions of employment personal to any particular Public Prosecutor.

(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.

(8) In this section "conduct" includes–

(a) any action or inaction relating to a matter of administration;and

(b) any alleged action or inaction relating to a matter of administration."

"221. Definitions

In this Part–

"constitutional institution" means any office or institution established or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council;

"constitutional office-holder" means–

...

(d). A member of the Ombudsman Commission;"

100. Organic Law
     

17. The relevant provisions of the Organic Law are:

"20. Members, etc., to maintain secrecy

(1) Before entering on the exercise of the duties his office, a member of the Commission shall take an oath or make an affirmation in the form in Part I of Schedule 1 before a Judge of the National Court.

(2) Every officer and employee of the Commission shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their duties and shall, before entering on the exercise of their duties, take an oath or make an affirmation in the form in Part II of Schedule 1 before a member of the Commission.

(3) Notwithstanding the provisions of Subsection (1), the Commission may disclose for the purposes of any investigation being conducted by it and in any report made by it, such matters as in its opinion ought to be disclosed in order to properly investigate the matter before it or establish grounds for its conclusions and recommendations, as the case may be.

(4) The power conferred to Subsection (3) does not extend to any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization) or the investigation or detection of offences, or that might involve the disclosure of the deliberations of the National Executive Council."

"21. Preservation of Secrecy

(1) The Commission may direct that any evidence given before it, or any document, paper or thing produced to it, be not published.

(2) Any person who published or discloses to any person –

• (a) any evidence given before the Commission; or
  
• (b) any of the contents of any document, paper or thing,
  

which the Commission has directed not to be published without the consent in writing of the Commission is guilty of an offence.

Penalty: K1,000.00 or imprisonment for 12 months, or both."

"24. Proceedings not be questioned or to be subject to review

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." (my emphasis)

Applications

17. As stated above, both the applicant and the first defendant have filed Notices of Motion which were both moved before me and argued. I set out in full, the orders sought in each Notice of Motion, for purposes of this ruling.
    
18. The Notice of Motion filed by Henaos Lawyers on 21st December, 2011 reads:
    

"1. Pursuant to Order 12 Rule 7 of the National Court Rules, the requirement for service on the defendants be dispensed with and the applicant be granted leave to move this application ex parte.

2. Pursuant to Order 1 Rule 1 of the National Court Rules and the inherent powers of the National Court and pursuant to Section 155(4) of the Constitution, the first defendant, its servants and agents be restrained from further carrying out the examination or conduct the investigation into the alleged or suspected misconduct in office by the applicant pending further orders or the determination of this proceeding whichever occurs first.
   
3. Pursuant to Order 12 Rule 1 of the National Court Rules and the inherent powers of the National Court and pursuant to Section 155(4) of the Constitution, the Right-to-be-heard Notice served by the first defendant on the applicant on the 19th December 2011 be stayed pending further orders or the determination of this proceeding whichever occurs first.
   
4. Costs be in the cause.
   
5. Any other or further orders the Court deems appropriate in the circumstances of this case.
   
6. Time is abridged."
   
19. This Notice of Motion is supported by the applicant's affidavit sworn and filed on 21st December, 2011.
    
20. In response to that Motion, the OC filed a Notice of Motion on 4th January, 2012 seeking several orders. The reliefs sought are:
    

"1. Pursuant to Order 1 Rule 7 and Order 4 Rule 38 of the National Court Rules 1983, the requirements for service of this Notice of Motion be dispensed with.

2. The entire proceedings stand dismissed pursuant to Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules 1983 in that;

(a) The proceedings by the applicant is an abuse of the Court's process and against the primary functions of the first defendant under the Constitution, the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and the Organic Law on the Ombudsman Commission (OLOC);

(b) the proceedings by the applicant are premature and does not disclose any cause of action;

(c) The applicant has intentionally mislead this Honoruable Court as his right to be heard notice under Section 20(3) of the OLDRL has addressed the issue of Section 19 OLDRL and the alleged five (5) categories of allegations which is still private and confidential under Section 20(1) of the OLDRL;

(d) The applicant who is subject to the investigations by the first defendant has committed serious breaches of Section 20(1) of the OLOC and Section 20(1) of the OLDRL by unlawfully making public the private and confidential records of the first defendant on other Leaders which records and information are not admissible in any Court of Law;

(e) The performance of the functions of the first defendant is not subject to direction or control by anyone or authority pursuant to Section 217(5) of the Constitution;

(f) The proceedings of the first defendant are not to be reviewed except by the Supreme Court or the National Court on grounds that it has exceeded its jurisdiction pursuant to Section 217(6) of the Constitution, which matter is not a judicial review under Order 16 of the National Court Rules;

(g) No proceedings or decision of the first defendant shall be held bad for want of form or be challenged, reviewed, quashed or called into question in any Court except on the ground of lack of jurisdiction pursuant to Section 24 of the OLOC;

(h) Every investigations by the first defendant shall be conducted in private pursuant to Section 20(1) of the OLDRL;

(i) The applicant be permanently restrained not to cause or make public, any records, information or particulars of the first defendant relating to his investigation by the first defendant which are in his possession in the cause of his duties as a member of the Commission without the approval of the first defendant;

(j) Confidential records of the first defendant, information or particulars annexed to in the Affidavit of the applicant sworn on 21 December 2011 particularised as Annexures D, E, F, G, F1, H2, H3, I, J, K, L, M, N, O, P, Q, R, S, T, U, W, X and Y be restrained from public consumption as they are prohibited by Section 20(1) of OLDRL.

3. Costs of the proceedings against the applicant;

4. Such further orders as this Honourable Court deems fit to apply;

5. The time of entry of the Orders shall be abridged to the time of the settlement by the Registrar which shall take place forthwith."

21. This Notice of Motion is supported by several affidavits which I will refer to where appropriate.
    

Analysis of evidence and the law

22. The applicant seeks orders that the investigations into his alleged misconduct in office, presently conduct by the OC, be restrained pending further orders or determination of the substantive proceedings, whichever occurs first.
    
23. He also seeks orders that the right-to-be-heard Notice ('RHN') issued by the OC on 19th December, 2011, be stayed pending further orders or determination of the substantive proceedings, whichever occurs first.
    

(i) Privileged information

24. The OC objects very strongly in relation to the use by the applicant of what it considers to be privileged information, information that should be left within the domain of the OC and not make public. It submits this relying on s 20(1) of the Organic Law and s 20(1) of the OLDRL.
    
25. In this case, the applicant relies very much on the material from the records held by the OC, in moving this application. Although there is no formal objection before the Court, it is this Court's duty to ensure that processes in relation to the calling of evidence is complied with. In this case, without having to consider the kind of evidence before the Court, I am satisfied, prima facie, that the material attached to the applicant's affidavit are indeed confidential information. As an example, a memo from Moguguia Mubwabwai to the Director Leadership, complaint against Ombudsman Sangetari dated 6th December, 2008, an internal minute from within the OC, is indeed privileged and confidential material. It appears, the applicant relies on these materials to demonstrate that there will be bias or perceived bias or likelihood of bias by the OC because the persons that these allegations are levelled against by the applicant, are the same persons who will be sitting in that meeting to determine if a prima facie case exists for referral of the applicant under s 29 of the Constitution to the Public Prosecutor. The applicant is under a duty to maintain secrecy, under s 20(2) of the Organic Law. In fact, the OC seeks orders under par. no. 2(j) of its Notice of Motion, that annexures D to Y, attached to the applicant's affidavit, are kept away from the public as their disclosure through the applicant's affidavit is a breach of the requirement under s20(1) of the OLDRL to conduct investigations in private.
    
26. This is a principal that has been held sacred in this jurisdiction and has been stated and re-stated in the decisions of both the National and Supreme Courts. In SCM 9 of 2008 Ila Geno Chief Ombudsman Commission v. Phoebe Sangetari as a Member of the Ombudsman Commission and 2 ors, His Honour the Deputy Chief Justice, as he then was, on 12th September, 2008, said at pg. 3 that:
    

"The disclosure of highly confidential information concerning the internal investigative process of a leader by someone placed in charge of the Division responsible of leadership investigations is a serious matter which rocks the very foundation of OC's functions. Such disclosure which to my knowledge have come about perhaps for the first time in the short history of PNG as an independent nation must surely raise concern to the OC. The admissibility of constitutionally privileged information for use in the Courts for purpose of court proceedings, interlocutory or otherwise, must be carefully considered by the Court for purposes of exercising its discretion.

....

In the case of affidavit evidence, the mere fact that the affidavit has been filed in the Court Registry does not render the affidavit admissible in any Court proceedings and care should be taken in handling affidavits by persons lawfully entitled to access the affidavit so that disclosure of information on affidavits which have not gone through the judicial scrutiny process do not jeopardise or compromise a party's interests in a case." (pg.4) (my emphasis)

27. Although, the above case was at the leave application in a Judicial Review where the Court only needed to consider prima facie whether there was an arguable case, the Deputy Chief Justice still raised these serious and genuine concerns, concerns which I now face.
    
28. As there is no proper application by the applicant before this Court for the Court to consider what appears to be privileged information, I will not consider that material. I will also order that this affidavit be removed from the Court file based on the fact that S.20(1) of the OLDRL and S.20(1) and (2) of the Organic Law have been breached.
    

(ii) Can this Court hear and determine a primary function of the Ombudsman Commission which relates to Leadership?

29. This issue can be answered by s 217(6) of the Constitution, set out above. That section states in no uncertain terms that the only time the Supreme Court or the National Court can hear proceedings of the OC is when it has exceeded its jurisdiction.
    
30. Another relevant provision is s 24 of the Organic Law set out above. Again, in clear terms it states that no proceedings or decision of the OC shall be challenged, reviewed or quashed or called in any Court.
    
31. What about the substantive proceedings filed by the applicant?
    
32. The Originating Summons filed by Henaos Lawyers on 21st December, 2011, seeks the following orders:
    

"1. A declaration that the first defendant is unable to carry out the examination or conduct the investigation into the alleged or suspected misconduct in office by the applicant pursuant to Section 19(1) of the Organic Law on Duties and Responsibilities of Leadership on the basis that there is likelihood of or potential for a conflict of interest and likelihood of bias in relation to the investigation into the alleged or suspected misconduct in office by the applicant.

2. Consequential to the declaration sought in paragraph 1, an order that the first defendant appoint ain independent authority comprising of one or more constitutional office-holders pursuant to Section 19(1) of the Organic Law on Duties and Responsibilities of Leadership to carry out the examination or conduct the investigation into the alleged or suspected misconduct in office by the applicant.

3. A permanent injunction restraining the first defendant, its agents or servants from further carrying out the examination or conduct the investigation on the alleged or suspected misconduct in office by the applicant.

4. The defendants pay the applicant's costs.

5. Any other or further orders the Court deems appropriate.

6. Time be abridged."

33. "The discharge of the duty This is where the applicant and the OC's submissions in relation to S.19 of the OLDRL becomes relevant. The applicant submits that the OC must immediately invoke S.19 of the OLDRL whereas the OC submits that it has already responded to the applicant's request and advised him that the appropriate time to respond is at the RTBH stage.
    
34. The applicant relying on the case Raho Hitolo v. Ila Geno, Chief Ombudsman, Ombudsman Commission of Papua New Guinea & 3 ors (2004) N2700 dated 9th November, 2004, decision by Injia, DCJ, as he then was, said at pg. 7 of that decision:
    

under S.19 is not however entirely dependent on an aggrieved person requesting the Commission to perform that duty. The Commission must, as a matter of duty, consider S.19 in a case in which there is a likelihood of or potential for conflict of interest situation arising. Nevertheless, the onus is first on the person affected to request invoke S.19 and request the Commission to make a decision. The request should be made at the earliest possible opportunity, say as soon as practicable after the person receives information about the investigation. If the person aggrieved has not done so, then it may not be open for that person to raise it before the Court in a judicial review because the occasion for the performance of that duty has not arisen and no decision has been made on it, by the Commission, to give rise to any grievance." (my emphasis)

35. Was the request by the applicant under s.19 properly made?
    
36. Attached to the applicant's affidavit as annexure "E" is his memo to the Chief Ombudsman and Ombudsman Sangetari dated 26th June, 2011 requesting that because there is a greatly likelihood of bias or perceived bias by the OC and its members, that the OC must invoke S.19 of the OLDRL. In that memo, the applicant set out the reasons why the OC should invoke S.19 of the OLDRL. He states:
    

"I have become aware of request for a full investigation by the Director Leadership dated 7/6/2011 listed on the Commission's meeting agenda on constitutional matters scheduled for 27 June and now at the earliest possible opportunity make an application under Section 19 of the OLDRL in respect for the following officials for the reasons stated..." (pg.2 of memo) (my emphasis)

37. Obviously, that demonstrates to me that the applicant has yet to be officially advised by the OC that it is conducting an investigation. Which then raises this next issue?
    
38. When should an aggrieved applicant lodge an application under S.19?
    
39. In Raho Hitolo (supra), the Chief Justice said; "...at the earliest possible opportunity, say as soon as practicable after the person receives information about the investigation."
    
40. With respect, the Chief Justice did not say what kind of "information" that may be. Any lay person or even persons with legal training and Judges and lawyers reading this, will by first impression, confirm that "information" can mean anything that is from information received from the grape wine or information received through official notification. Although I agree with the Chief Justice, I think it is appropriate at this stage to assume and state what this information is.
    
41. I can assume that the Chief Justice may have meant something more official because in the earlier part of his reasons, he states; "In the present case, the facts show that the Commission did not invoke S.19. There is also no evidence from the Commission's Statement of Reasons to show that the Commission addressed its mind to S.19. The paragraphs 14 – 15 of the Statement of Reasons relied upon by Mr Pitoi, on the face of it, clearly shows the Commission was referring to the quorum for meeting of the Commission in terms of two of the Commission's members deciding to investigate the third member under the Organic Law on the Ombudsman Commission."

(my emphasis)

42. Because His Honour referred to the OC's Statement of Reasons, this tells me that the OC would have addressed this in its Statement of Reasons after having received and considered the aggrieved person's response to the right-to-be-heard Notice.
    
43. In my view, that would be the only proper mode of a response because the OC should not just respond to aggrieved persons who have heard on the grape wine that they are about to be investigated. The only time the OC can properly entertain a request under S.19 is after it has received the aggrieved person's response to the right-to-be-heard Notice.
    
44. Therefore, in my view, this application is premature because the reasons set out in the applicant's earlier memo of 26th June, 2011, are the reasons that he should now set out in his response to the OC's right-to-be-heard Notice. It is only then, if he is still aggrieved by the response from the OC, that he can then seek a review of that decision.
    

Conclusion

45. Apart from the obvious breach of s 20(1) and (2) of the OLDRL, the applicant has put before this Court material that is clearly confidential and which this Court should not consider at this time. Apart from the fact that the Court will be seen to be putting to a stop to the OC's functions under s17(c) of the OLDRL, that the Court must make an order which in the circumstances of the case will ensure that both the OC and the applicant are given the opportunity to properly conduct their processes with fairness. In fact, in the right-to-be-heard Notice dated 15th December, 2011 which the applicant received on 19th December, 2011, the applicant was advised and requested to respond to the allegations under s 20(3) of the OLDRL. He was advised that he can respond to the allegations either orally or in writing within 21 days. The Notice also advises that if the applicant needs clarification on the allegations or that he wishes to discuss the matter before exercising his right to be heard, that he must contact the OC within 21 days after receiving the letter.
    
46. The letter advises further that if he does not exercise the options available to him within 21 days, that the OC will proceed with its investigations and will take whatever action it considers necessary under the Constitution and the OLDRL.
    
47. As was emphasised by the Chief Justice in Raho Hitolo (supra), now that the applicant is in possession of the right-to-be-heard Notice, that he must officially respond to that.
    
48. What then becomes of the proceedings filed by the applicant?
    
49. The orders sought in the Originating Summons are for Declarations to issue, that the OC appoint an independent authority. In my view, at this stage, the Court cannot do anything because the process has yet to complete its course. The OC must firstly, satisfy itself that it is unable to conduct an investigation or examination in accordance with s19(1) of the OLDRL.
    
50. Obviously, that means that there is no cause of action or status quo to preserve. Damages are not appropriate for this action because the balance of convenience is such that the OC's process must be allowed to complete itself. An injunction, interim or permanent, should not be issued.
    
51. As for the substantive action, it is plain and obvious that the applicant cannot get what he is seeking. The cause of action is obviously untenable. The applicant is not being driven from the judgement seat but rather, is reminded by the Court that the processes in place must be completed. (See PNG Forest Products Pty Ltd & ors v. The State [1992] PNGLR 85).
    
52. The applicant's actions were rushed, hasty and in complete breach of the secrecy and confidentiality provisions contained in the OLDRL and the Organic Law.
    
53. For these reasons, I order that the whole proceedings, including the application, be dismissed. The applicant must pay the costs of the proceedings, including the application.
    
54. I also order that the applicant finalise and serve a response to the right-to-be-heard Notice, to be done within 7 days from today, on or before 7th February, 2012 at 4:06pm.
    

Formal Orders

55. These are the formal orders of the Court:
    

(1) The Notice of Motion filed by Henaos Lawyers on 21st December, 2011 is dismissed;

(2) The whole proceedings are dismissed in their entirety;

(3) The plaintiff shall pay the first defendant's costs of the proceedings and the applications filed by the Ombudsman Commission and Henaos Lawyers, to be taxed if not agreed;

(4) The plaintiff have leave to serve a response to the first defendant's right-to-be-heard Notice and will do so within 7 days from today, on or before 7th February, 2012 at 4:06pm;

(5) Time is abridged to time of settlement to take place forthwith.

___________________________

Henaos Lawyers: Lawyer for the Applicant
Ombudsman Commission: Lawyer for the First Defendant
No appearance for and on behalf of the Second Defendant