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Gelu v Sheehan [2013] PGNC 235; N5498 (1 December 2013)

N5498

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) 89 OF 2010

Between:

IN THE MATTER OF AN APPLICATION FOR LEAVE JUDICIAL RVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

ZACHERY GELU
First Applicant

AND:

PAUL PARAKA
Second Applicant

AND:

MAURICE SHEEHAN, JUSTICE CATHY DAVANI AND DON MANOA AS FORMER CHIEF COMMISSIONER AND COMMISSIONERS RESPECTIVELY COMPRISING THE COMMISSION OF INQUIRY INTO THE MANAGEMENT GENERALLY OF PUBLIC MONIES BY THE DEPARTMENT OF FINANCE
First respondent

AND: SIR MICHAEL SOMARE, MP; PRIME MINISTER & APPOINTING AUTHORITY OF THE COMMISSION OF INQUIRY INTO THE DEPARTMENT OF FINANCE AND AS CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND:
MANLY UA, SERETARY TO THE NATIONAL EXECUTIVE COUNCIL
Third Respondent

AND:
MANASUPE ZUREOUC, ACTING CHIEF SECRETARY TO GOVERNMENT

Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Injia, CJ
2013: 22, 23 November & 1 December

ADMINISTRATIVE LAW – Leave for Judicial review - Appointment of members of Commission of Inquiry Into Department of Finance – Whether Leave should be Granted – Exercise of Discretion – Commission of Inquiry Act (Ch 31), ss 2, 15 and 17; National Court Rules O 16 r 3(1)

Cases cited:
Papua New Guinea Cases

Wilson Kamit v Marshall Cooke (2003) N2369.
Sasau v PNG Harbours Board (2006) N3253
Ombudsman Commission v Peter Yama (2004) SC 747
Phillips v Nova Scotia (Westray Inquiry) [1995] SCR 97

Overseas Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) ALR 577
Furnell v Whangerei High Schools Board [1973] AC 660
Mc Guiness v Attorney General (Vic) (194) [1940] HCA 6; 63 CLR 73 at 90
Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582

R v Collins; Ex parte CTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473
R v Fowler; Ex parte MacAurthur [1958] Qd R 41
Stow v Mineral Holdings (Australia) Ltd [1973] TASStRp 3; [1973] Tas SR 25
Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353

Counsel:

H Nii, for the Applicants
P Kuman, for the Respondents

1 December, 2013

1. INJIA, CJ: This is an application seeking leave to apply for judicial review of various decisions of certain statutory authorities made under the Commission of Inquiry Act (Ch 31) (the Act). It is made under the provisions of National Court Rules, O 16 r 3 (NCR). If leave were granted, the applicant will apply for various relief of which the main one is an order in the nature of certiorari. The respondents contest the application.

2. Parties filed affidavits based on which counsel made submissions for my consideration. Also before me for my consideration are the matters set out in the Statement filed in support of the application for leave pursuant to NCR, O 3 r (3) (the Statement). My consideration of those matters are embodied in my ruling.

3. The background facts which are not disputed, in brief are as follows. On 3rd May 2008, by instrument published in the National Gazzette, the Prime Minister appointed retired Justice Maurice Sheehan as Chief Commissioner of the Commission of Inquiry into the Department of Finance (CoI). On 12 May 2008 by publication of another instrument in the National Gazette, Justice Catherine Davani and Don Manoa were appointed as Commissioners. A term of 9 months was fixed in the instrument for the CoI to be completed. The inquiry was conducted and the CoI was unable to complete its inquiry within that term. The term was "extended" twice. On 29 October 2009, the CoI produced the final report and presented it to the Prime Minister. On 3 March 2010, the Prime Minister tabled the Report in Parliament. After the Prime Minister's speech, a motion was put by the Hon Paul Tiensten MP "That the report and its recommendations be adopted". The motion was agreed to by Parliament.

4. The decisions the subject of the application for leave are threefold as follows:

(1) The Prime Minister's decision to appoint the tribunal by issuing more than one (1) instrument of appointment, inclusive of statement of the case, appointment of the Commissioners and their term of appointment, not fixing a quorum for the inquiry: Act,s.2 (First decision)

(2) The Prime Minister's decision to fix a period for the inquiry and extending the term of the inquiry after the expiration of the period. (Second decision)

(3) The CoI's decision to produce a Report for the Prime Minister as the CoI's appointing authority: Act, s 15. (Third decision)

5. The Prime Minister's decision to table the report in Parliament is not challenged: Act, s 17. Also unchallenged is Parliament's "decision" to adopt the Report and its recommendations.

6. For purpose of completeness, I reproduce ss 2, 15 and 7 of the Act hereunder:

"2. Commissions of Inquiry.

(1) The Minister may, whenever he deems it advisable, by instrument appoint a Commission of Inquiry consisting of a Commissioner or Commissioners, authorizing him or them, or any of them, to inquire into any matter in which an inquiry would, in the opinion of the Minister, be for the public welfare.

(2) The instrument shall—

(a) specify the subject of inquiry; and

(b) be accompanied by a statement of the case on which the inquiry was ordered.

(3) The instrument may—

(a) direct where and when the inquiry shall be made and the report made; and

(b) if there are two or more Commissioners—

(i) appoint one of them to be the Chairman; and

(ii) fix a quorum for meetings of the Commission.

(4) Subject to Subsection (5), the inquiry shall be held in public but the Commission may exclude any particular person or persons for the preservation of order, the due conduct of the inquiry or for any other reason.

(5) The Commission may, with the approval of the Minister, order that all or any evidence given before it be given in private."

"15. Report by Commission.

(1) The Commission shall make a report of its proceedings and of the results of its inquiry to the Minister, and shall record the reasons for its conclusions.

(2) A Commissioner dissenting from the conclusions, or any of them, shall give the reasons for his dissent."

"17. Tabling Commissioners' report in Parliament.

(1) Subject to Subsection (2), the Minister shall, not later than the first day of the second meeting of the Parliament after he receives the Commissions' report under Section 15, lay the report before the Parliament.

(2) The Minister may decline to lay a report of a Commission before the Parliament if he lays before the Parliament a certificate to the effect that he considers that the tabling of the report would be contrary to the public interest."

7. The criteria for grant of leave are settled. There are our criteria all of which must be satisfied by the applicant. Those are the following:

(1) The applicant must have sufficient interest or standing to bring the application;

(2) The application must be brought within four months of the decision if he were to seek an order in the nature of certiorari;

(3) The applicant must have exhausted other statutory or administrative remedies that may be available to him to address his grievance; and

(4) The applicant must demonstrate an arguable case for review.

8. The respondents' counsel conceded that the applicants have standing to bring the application and that grounds for review set out in the Statement raise arguable issues. The respondents contest the application criteria (2). The respondents also contest the application on what I term "discretionary grounds" based on various matters that fall outside of the strict definitions of the four criteria referred to. Those discretionary matters include matters pertaining to the appropriateness of the decision the proper subject of judicial review, alternative causes of action open under law to challenge those decisions and matters pertaining to abuse of court process.

9. I will first deal with the points argued under criteria (2). It is clear that the application was filed out of time with respect to all four decisions. For instance, the application was filed 1- 6 days after the latest decision (third decision) was made. Taking the date of the latest decision (third decision), the delay is by 1- 6 days. I do not consider this period of delay to be a long period.

10. Counsel for the respondent argued that the delay in prosecuting the application before the Court should also be counted for purposes of computing the delay period. I accept submission of counsel for the applicant that the delay in prosecuting the application was not of the applicants' doing and it should not be taken into account. The delay by some two years were largely due to the business of the Courts being adversely affected by the "political impasse" that gripped the nation 2011 and 2012, and which were put to rest in 2013. For this reason no party should take advantage of or be disadvantaged by the delay occasioned by the Court's convenient arrangement of its business.

11. I also take the first and second decisions to be an integral part of one decision making process by which the third decision was reached, and time should run from the date of production of the Report to the appointing authority of the CoI. Proceeding on this basis, challenge to the third decision was made a few days after the time expired. I do not consider the delay to be inordinate. For reasons advanced by counsel for the applicants which explains a delay by a few days to a week the most, the delay period has been explained to my satisfaction.

12. Counsel for the respondents argued that it would be prejudicial to good administration to allow the application to proceed after a long delay and leave should be refused for this reason alone. Considerable amount of money and time was expended on the CoI, the subject matter of inquiry was over the management of an important office and the Report has been completed and presented to Parliament. It is in the public interest and in the interest of good administration for the Report to be released for publication and implementation: see NCR, O 16 r (2). Counsel for the applicant made counter arguments. Having considered that there was a slight delay in filing the application, I do consider it necessary to deal with those arguments.

13. I will now deal with arguments concerning "discretionary matters". I have described those under the label "discretionary matters" because strictly speaking, they do not fall under any of the four criteria for grant of leave I have set out in paragraph 6 herein. In my view, it is within the Court's discretion to consider matters relevant to the exercise of judicial discretion that strictly speaking do not fall under any of the four criteria. The grant of leave for judicial review is an equitable discretion that by its very historical nature is highly discretionary and guided by both legal and equitable principles. It would result in a travesty of justice for the Court to ignore such other relevant considerations and insist on restricting itself to the four criteria for grant of leave for review.

14. The development of the case law concerning exercise of discretion on discretionary matters apart from the four established criteria for grant of leave for review, I admit, is evolving and it is impossible to spell out a list of such matters exhaustively. From what I do discern from the principles relating to leave for judicial review developed so far in this jurisdiction and elsewhere in the common law world, and based on the submissions and material placed before me in the present case, I am able to articulate some of the important discretionary in general terms. Those are the following:

(a) The decision the subject of the application for leave for review must be one that is a proper subject of or amenable to judicial review. It must be clearly identified in the leave application by reference to necessary particulars- the name of the statutory authority that made the decision that is empowered to make, the name of the person that exercised the statutory power and made the decision, the statutory provision pursuant to which the decision was made and a precise description of the decision itself.

(b) It is the ultimate or final decision in the decision-making process that is amenable to review. Where a statute provides for a series of steps to be taken, with decisions to be made at each step of the decision-making process, it is preferable to await the outcome of the final decision. It is the final decision in the decision-making process that is amenable to judicial review which ordinarily will be inclusive of earlier decisions made along each step of the process. This avoids multiplicity or duplicity of applications for leave for review. It is also to avoid unnecessary challenges to earlier decisions made in the decision-making process when the final decision has superseded earlier decisions: Ombudsman Commission v Peter Yama ( 2004) SC 747. An applicant may not be permitted to hack back on those earlier decisions and instead, focus on the latest and ultimate or final decision.

(c) The decision made is one that raises a genuine grievance over some matters that determines or substantially prejudices the applicant's legal or civil right. Mere inquiries that do not alter the legal or civil rights of a person are ordinarily amendable to judicial review. That is even so when the inquiry is conducted by a judge, because the investigative body simply gather information and make recommendations to the authority that appointed them: Drake v Minister for Immigration and Ethnic Affairs (1979) ALR 577 at 584-585, R v Fowler; Ex parte MacAurthur [1958] Qd R 41, Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582, Stow v Mineral Holdings (Australia) Ltd [1973] TASStRp 3; [1973] Tas SR 25, Furnell v Whangerei High Schools Board [1973] AC 660, Mc Guiness v Attorney General (Vic) (194) [1940] HCA 6; 63 CLR 73 at 90, 102, Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353; R v Collins; Ex parte CTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473. If the decision is one that the product of an administrative investigation or inquisition, and one that does not determine or substantially prejudice any civil or legal right of the applicant, then judicial review is not the appropriate process to address any grievances over the decision. For instance, a CoI and its function fits into class of statutory investigative bodies that do no more than investigate and make recommendations: Wilson Kamit v Marshall Cooke (2003) N2369. The applicant's relief lies elsewhere under another process in another appropriate forum: Sasau v PNG Harbours Board (2006) N3253.

(d) Judicial review is not available to address breach of statutory or Constitutional obligations that can be enforced by way of a cause of action under law, by way of declaratory or injunctive relief or damages. Judicial decision is concerned with the decision- making process and not the decision itself.

(e) Judicial review process is not an alternative to a cause of action at law. Duplication of proceedings over the same subject matter of decision, one commenced by cause of action and the other commenced by judicial review, amounts to an abuse of process of the Court. The applicant must choose between them and choose wisely.

(f) Judicial review process is available in respect of a decision once only. If application for leave or the substantive application is determined and disposed off, the same decision should not be subjected to another round of judicial review proceedings.

15. I apply those considerations collectively to the circumstances of the case at hand in the following manner. Firstly, A CoI set up under the Act confers a lot of discretion on the appointing authority. This is evident from the word "may" that is repeatedly used in s 2. Strict and technical scrutiny of any deficiencies and irregularities in adhering to the procedural requirements in appointing commissioners, their terms of reference or statement of the case, the period of the inquiry and so on would not auger well with the flexibility that is accorded by the discretionary power conferred on the appointing authority by s 2 of the Act. Counsel for the applicants argues that there are fundamental issues going to jurisdiction and competence of the QoI raised by the grounds of review concerning the exercise of powers under s 2 of the Act, and because the respondents concedes the issues are arguable, leave should be granted to allow a full hearing on the merits. But this argument underscores the highly discretional and flexible nature of the power conferred on the appointing authority by s 2 of the Act.

16. Secondly, the CoI did not determine any legal or civil rights of the applicants. It simply made finding and recommendations against them. Some of those findings were adverse to the applicants but they were made after a full hearing in which the applicants were given an opportunity to be heard. As submitted by counsel for the respondent, whether the recommendations are carried through and implemented by the relevant authorities is a different matter. If they are implemented and those threaten the legal or civil rights of the applicants, then there is no doubt that due process will be observed and the applicants will be afforded natural justice under that process before or after any action is taken which denies or prejudices their legal and civil rights.

17. Thirdly, the final decision to be made in the inquisitive process under the Act is the decision of the appointing authority to table the Report in Parliament. His decision superseded the decision of the CoI to conduct the inquiry and produce the report. Section 17 of the Act gives the appointing authority a discretion to decide whether or not to table the report in Parliament. It is at this juncture that the Prime Minister gave the applicants an opportunity to be heard. The minimum required of the appointing authority to make that decision. If he decides to table the report in Parliament, the tabling took place as a matter of course. In this case the Prime Minister's decision to table the report and his act of tabling the report has not been challenged. The wrong decision, so to speak, has been challenged when events have overtaken the earlier decisions. Alternatively, if s 17 of the Act entails a decision to be made by Parliament to adopt or reject the report, that decision on the face of the record appears to have been made on 4 March 2010 and that decision has not been challenged either.

18. Fourthly, the matters concerning the appointment of a serving judge as a Commissioner and the subject matters of inquiry that concerns inquiring into the conduct of the business of the Courts are matters that the applicants are entitled as of right to seek declaratory relief and other relief from the courts. For instance, declaratory orders to enforce breach of various provisions of the Constitution which relates to the establishment and functioning of courts of the national judicial system including the appointment and associated functions of judicial officers; inquiring into judgments and decisions of the Courts; inquiring into the exercise of executive or administrative powers and functions given under statute such as those given to the Secretary for Finance, Attorney General, Solicitor General and the Auditor General. Judicial review is not the appropriate procedure for types of decisions.

19. Fifthly, there is precedent in this jurisdiction and elsewhere for retired judges and even serving judges for that matter to be appointed as Commissioners of CoI. There is always that tendency for people to confuse CoI with Courts but that should never be the case: Phillips v Nova Scotia (Westray Inquiry) [1995] SCR 97 at 164 – 165. The judge in a CoI performs a purely administrative and investigative function, and although they may be accorded respect and judicial airs as judges; and, those judges may at times exhibit judicial tendencies during the conduct of the proceedings of the CoI, the fact remains that the Judge is simply performing a purely administrative and investigative function. The Chairperson and a member of the CoI in the present case were a retired judge and serving judge respectively. Their involvement in the inquiry leads to a finished product in the form of a report that determines no legal or civil right and that must be left at that.

20. Finally, the matters concerning perceived bias of the CoI against the applicants of its own is not amenable to judicial review because the bias, perceived or actual, does not lead to a determination of legal or civil rights and should not substantially prejudice the applicants for that reason.

21. It also appears to me that the applicants are re-agitating the same issues with regard to the issue of the instruments of appointment under s 2 of the Act. Two earlier judicial review proceedings challenging the same decisions were dismissed for different reasons. Whilst it may be, as submitted by counsel for the respondent, that the merits of the applications were not determined, the fact remains that those decisions were challenged by judicial review proceedings and they were dismissed. An abuse of Court process seems to have occurred here in resurrecting the same issue in this application.

22. For the foregoing reasons, notwithstanding my findings on the application meeting the four established criteria for grant of leave for review, the discretionary considerations far outweigh those findings and in particular the purpose and utility of the leave application such that leave should, in the exercise of the court's equitable discretion, be refused.

23. The formal orders of the Court are the following:

(1) The application for leave is refused.
(2) The interim orders issued in the proceedings are discharged forthwith.
(3) The applicants pay the respondents costs of the application.

_____________________________________________________

Harvey Nii Lawyers: Lawyer for the Applicants
Kuman Lawyers: Lawyer for the Respondents