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Ombudsman Commission of PNG v Denis Donohoe [1985] PGSC 14; [1985] PNGLR 348 (3 December 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 348 - Ombudsman Commission of PNG v Denis Donohoe�

[1985] PNGLR 348

SC306

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:

N2>�(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.

N2>(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.

N2>(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

N1>(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.

N1>(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.

N1>(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.

N1>(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.

N1>(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.

N1>(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.

N1>(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 [1968] UKHL 6; [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 [1978] EWCA Civ 5; [1979] QB 56.

Pergamon Press Ltd, Re [1971] Ch 388.

Police, Commissioner of v Tanos [1958] HCA 6; (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] UKLawRpKQB 85; [1891] 1 QB 734.

Standard Discount Co v La Grange [1877] UKLawRpCP 58; (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 1985). 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 gone 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] UKLawRpCP 58; (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 Denis Donohoe held the position of Superintendent of Operations in the Department of Education based at Headquarters in Port Moresby.

Following the Committee�s inquiries, complaints were received by the Ombudsman Commission that several days before the Committee met at Kerevat on or about 26 March 1981, a teacher at the school, Mr Devlin, had �received a phone call from the Superintendent of Operations, Denis Donohoe, reminding him of his responsibilities as a senior officer at Kerevat National High School to support the administration�, and informing him �that it was usual in people�s last year of contract to remind them of their responsibilities�, and that Mr Devlin �viewed that as an implied threat for him not to speak freely to the above Committee of Enquiry at Kerevat�.

On or about 13 October 1981, the respondent was requested by the Ombudsman Commission to report to the Commission�s office. He did so on or about 14 October 1981 and was interviewed by the Commission over the said complaints. It is the conduct and proceedings of this interview or inquiry which the respondent wished the National Court to review. Following its inquiries, the Ombudsman Commission produced two reports, a Preliminary Report and a Final Report of its findings in the inquiry.

The respondent contended that the Commission�s findings contained in the said reports, and in particular the findings and recommendations contained in the Final Report, which was forwarded to the Chairman of the Public Services Commission (PSC) and the Secretary for Education, had led to his services being terminated by the PSC.

The respondent claimed that the Commission had not complied with the requirements of s 17(4)(b) of the Organic Law on the Ombudsman Commission. Section 17(4)(b) on �Proceedings of the Commission� provides:

N2>�(4)��� Nothing in this Law compels the Commission to hold any hearing and no person is entitled as of right to be heard by the Commission except that:

...

(b)����� the Commission shall not make any comment in its report that is adverse to or derogatory of any person without:

(i)������ providing him with reasonable opportunity of being heard; and

(ii)����� fairly setting out his defence in its report.�

The respondent firstly alleges that he was not given a reasonable opportunity of being heard in relation to several specific complaints against his conduct, which were subjects of adverse and derogatory conclusions by the Commission in its Final Report. He contends they were not put to him by the Commission to answer. Secondly, he maintains that the Commission had failed to fairly set out his defence in the Final Report. The respondent�s service with the State was terminated by the PSC following the publication of the Commission�s Final Report. He has thus obtained leave to apply to the National Court to review the proceedings of the Commission in the conduct of its inquiries into the complaints against him.

At the commencement of the proceedings there was no appearance, either in person or by counsel, for the respondent. Mr Colquhoun-Kerr, appearing for the appellant Ombudsman Commission, satisfied the Court that the respondent who was resident abroad was given sufficient notice of the hearing date and so the Court decided to proceed to hear only the appellant.

JURISDICTION OF SUPREME COURT

The issue arose at the outset, how this matter came before the Supreme Court from an ex parte judgment. The chronology of events was this: The order granting leave to apply for judicial review was made on 18 November 1983, and the originating summons to commence the application pursuant to the National Court Rules 1983, O 16, r 5, (the Rules) was filed on the same day. The notice setting the matter down for trial was filed on 21 November 1983 and notice of intention to defend was filed on 5 December 1983. On 22 December 1983 the defendant Ombudsman Commission filed the notice of appeal in this Court against the order granting leave to apply for review. On 18 January 1984, the defendant then sought by motion, a stay of further action in the application for review until the disposition of this appeal. On 20 January 1984 an order to that effect was made by consent.

The next preliminary issue raised was whether or not leave was required to appeal to the Supreme Court. It was rather optimistically submitted that the order was not an interlocutory judgment but a final one and so no leave was required pursuant to the Supreme Court Act (Ch No 37), s 14(3), but that appeal lay as of right pursuant to O 16, r 11 of the Rules and s 4 of the Act. The Court decided to hear the substantive submissions and reserved the question of jurisdiction.

I agree with the comments of Pratt J in relation to this issue and treat the order as one �in the nature of a final decision� under s 14(3)(b)(iii) of the Act, as the jurisdictional basis for considering the substantive issues raised.

GROUND 1

�That the Judgment of the Learned Judge was wrong in law in that Section 24 of the Organic Law on the Ombudsman Commission expressly provides that no proceeding or decision of the Commission shall be reviewed, challenged, quashed, held bad for want of form or called into question in any court, except on the ground that it lacked jurisdiction.�

This was the central issue in the appeal, involving the construction and application of several provisions of the Constitution and the Organic Law on the Ombudsman Commission. The relevant provisions of the Constitution are s 217(5), (6) and (7). They are in the following terms:

N2>�(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.

N2>(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.

N2>(7)����� An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.� [My emphasis.]

Section 24 of the Organic Law on the Ombudsman Commission 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.� [My emphasis.]

The Ombudsman Commission�s bold submission is that on its true construction, s 24 of the Organic Law, vis-a-vis the Constitution, s 217(6) and (7), excludes both the National and Supreme Courts from entertaining an application for judicial review in the circumstances of the respondent�s case. It is submitted that the constitutional framers had deliberately created a sophisticated system of checks and balances to preclude any one arm or instrumentality of the State from exercising excessive power. Reference was made to SCR No 1a of 1981; Re Motor Traffic Act [1982] PNGLR 122 where (at 134), Kearney DCJ observed that the Constitution contemplates a general separation of powers, prohibiting incursions by one arm of the government upon basic functions of another. It was specifically declared that the legislature was precluded or prohibited from usurping the judicial function. In Constitutional Reference No 1 of 1978 (s 19) [1978] PNGLR 345, the Ombudsman Commission was prohibited from investigating the conduct of the Public Solicitor, and in Mopio v Speaker of the National Parliament [1977] PNGLR 420 it was held that the National and Supreme Courts were prohibited from examining the conduct of the business of Parliament and its proceedings. It was contended that in this spirit the Constitutional Planning Committee (the CPC) had recommended the establishment of an independent Ombudsman Commission. To safeguard that independence, it was submitted, the CPC had recommended that �no proceeding or expression of the Commission shall be reviewable in any Court�. It was submitted that the Constitution, by s 217, set about deliberately implementing the intention of the CPC by excluding the internal practice and procedure of the Commission from the review of the courts. The Constitution set about doing this in a very determined and effective manner and that this was implemented precisely and in a fairly sophisticated manner by the joint operations of the Constitution, s 217(6) and (7) and the Organic Law, s 24.

The joint operations of these three provisions brought into play the apparent tension or conflict between the words �exceeded its jurisdiction� in the Constitution, s 217(6) and �lack of jurisdiction� in the Organic Law, s 24. The Commission�s case was that the two terminologies complemented each other and do not conflict at all. Section 24, it was submitted, is not in conflict with s 217(6); it is a legitimate provision specifically empowered by s 217(7) to amplify and extend the immunity of the Commission. It was thus submitted that there is a distinction between the terms �lack� and �excessive� jurisdiction, and that the Constitution deliberately erected this division and separation of power between the courts and the Commission. Some emphasis was placed on the words �further provision� in s 217(7) to support the contention that s 24 is an amplification of the restriction under s 217(6) which is permitted by s 217(7).

It was thus submitted that the term �lack of jurisdiction� used in the Organic Law, s 24, is a narrower term than the term �excessive jurisdiction� used in the Constitution, s 217(6).

The term �lack of jurisdiction�, it was submitted, is apt to describe the situation in which a tribunal has either no authority to enter the relevant field at all (Constitutional Reference No 1 of 1978 (s 19) [1978] PNGLR 345) or no power to make the specific order which it has in fact made (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510; SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code (1982) PNGLR 150). This is to be contrasted with the more explosive development of the concept of �excess of jurisdiction� which is a wider concept. Excess of jurisdiction can vitiate most administrative decisions if there is a duty to act judicially; so then, for example, a failure to accord natural justice would be the obvious basis for saying that the tribunal exceeded its jurisdiction. It did not lack jurisdiction to start an inquiry, it did not lack power to make an order, but having commenced this inquiry it did something so that it lost its jurisdiction, it exceeded its jurisdiction and then lacked power to further proceed with the matter because of the way in which it conducted its investigation.

It was submitted thus, that the Constitution and the Organic Law jointly gave effect to the recommendations of the CPC to effect immunity from review, to the proceedings of the Ombudsman Commission, save for this very limited area of �lack of jurisdiction�. The combined effect has thus reduced or narrowed the jurisdiction of the courts to review the proceedings of the Commission. It has given further protection or immunity to the Commission within the terms of s 217(7), it was submitted. It was the Commission�s submission that notwithstanding the wider jurisdiction enabled the courts under s 217(6), it was perfectly permissible for the Organic Law by s 24 to narrow or restrict that power in the courts or right in individual persons to seek a review by the court, by virtue of the enabling provision of the Constitution, s 217(7). It is perfectly permissible, it was submitted, for an Organic Law to amplify or expand upon the powers or immunities of a statutory authority such as the Ombudsman Commission, granted by the Constitution. The analogy was drawn with the basic minimum rights provisions in the Constitution which then enabled the creation of Organic Laws to expand upon those minimum rights. In the same way, it was submitted that s 217(6) lays down the minimum rights of the Ombudsman Commission to be free from judicial review and that s 217(7) and Organic Law, s 24, legitimately expand that right and conversely restrict the power of courts to review and the rights of private individuals to seek review by the courts. The Commission submitted that the constitutional framers had deliberately chosen different words to convey different meanings.

I consider that the issues raised by this first ground of appeal are far more fundamental to the principles of construction of constitutional laws than a mere matter of the choice of different words with different legal effects. The first such basic issue is whether s 24 of the Organic Law is such a provision as envisaged by s 217(7) of the Constitution in relation to s 217(6), and that requires a determination of the further provisions spoken of. Secondly, if s 24 were such a provision allowed by s 217(7), whether it is permissible in contradistinction to the s 217(6) grant of jurisdiction. Thirdly, in the constitutional hierarchy of our laws, whether an Organic Law provision can restrict, narrow down or cut down a grant of jurisdiction or right by a constitutional provision, in particular a provision which does not subject itself to another provision of the same Constitution or a subordinate legislation.

For the purpose of discussion of the first issue I have posed, it is convenient to restate s 217(7):

�An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.�

It was submitted that s 24 exercises the power expressly conferred by this section. Much emphasis has been placed on the phrase; �shall make further provision in respect of procedures and immunity of the Commission�. It was submitted that s 24 made further provision in respect of the procedures, proceedings and immunity of the Commission. It has provided further immunity against review by the courts, except on the basis of lack of jurisdiction, which is a narrower grant of jurisdiction.

I accept that the Organic Law may make further provision in respect of matters prescribed, to the extent that they are permitted by the constitutional provision enabling them, or to the extent that those matters have not been adequately or fully provided for. Thus Pt II of the Organic Law, for instance, makes further provisions in respect of appointment of the Commissioners, their qualifications, terms of office, conditions of employment, disqualifications from office, resignation, retirement and so on: ss 4-21 inclusive. Section 14, for instance, provides additional procedures of the Commission. It will be noted that these provisions are in greater detail and in addition to the basic provisions in the Constitution. I consider that the Organic Law provisions enable and give effect to the constitutional grant of power, right, duty or responsibility, to be exercised in an orderly and procedurally regularised manner within the general framework of the constitutional provision. It is interesting to note that the Organic Law in Pt VIII � �Miscellaneous� � provides in s 35 for additional privileges of the Commission.

Section 35 provides the following privileges:

N2>(1)����� A member of the Commission or an officer or employee of the Commission is not liable for any act or omission done or made bona fide and without negligence under or for the purposes of this Law.

N2>(2)����� A member of the Commission or an officer or employee of the Commission shall not be called to give evidence in any Court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions.

N2>(3)����� Anything said or any information supplied or any document, paper or thing produced by any person in the course of any inquiry by or proceedings before the Commission under this Law are privileged in the same manner as if the inquiry or proceedings were proceedings in a Court.

It will be noted that s 24 is inserted at the end of Pt IV on �Complaints and Proceedings�.

I accept that s 24 is a provision in respect of the immunity of the Commission; but is it such an immunity envisaged or contemplated by s 217(7) in the light of and in relation to s 217(5) and (6) and in particular the latter. I consider that s 217(5) and (6) are complete self-executing provisions which do not require clarification or further provisions in an Organic Law to give them effect. They can be classed as provisions in respect of immunity of the Commission, but they are not expressed to be �subject to this section and to any Organic Law made for the purpose of Subsection 7�: see the Constitution, s 219(1). They are not subject to further provisions of an Organic Law which may qualify, amplify or narrow down their effects. Further, given this obvious grammatical construction of s 217(5) and (6) and the separate provisions of additional privileges in s 24 and s 35 of the Organic Law, it is my view that the further immunities contemplated in s 217(7) are the s 35 immunities and not those under s 24.

Accepting for the purposes of argument that there is distinction between the words �excess of jurisdiction� and �lack of jurisdiction� to the effect submitted by the Commission that �lack of jurisdiction� is a narrower term than �excess of jurisdiction�, the other question that is posed is whether s 217(7) envisaged by the further immunity that s 217(6) immunity may be enlarged in favour of the Commission, or to put it another way, whether it was envisaged or contemplated that the courts� power to review may be further restricted or narrowed down. Far more importantly, I pose the question whether the constitutional framers would have intended that further immunities contemplated by s 217(7) should restrict, narrow down or take away from the right of an individual to seek a review by a court, granted by s 217(6) of the Constitution. I am strongly of the view that the answer to each of these questions must be in the negative.

It does not seem to me logical that the Constitution, having provided for a specific grant of jurisdiction in the courts with a corresponding right in an individual person or an organisation, in s 217(6), should then provide in the very next subsection (s 217(7)) that an Organic Law shall further narrow down or restrict such a jurisdiction or right as the case may be. Even more illogical is the fact that both the Constitution and the Organic Law were enacted at the same time by the Constituent Assembly. If, indeed, it was the clear intention of the legislature, as contended by the Commission, that the courts should not interfere except on the very restricted ground of lack of jurisdiction, then in the circumstances I would expect to see the s 24 provision in the place of s 217(6). It seems quite pointless to provide for such a jurisdiction as in s 217(6) and then to cut it down in the very next breath. The enactment of s 217(6) would thus serve no useful purpose; it would not and does not have utility. I do not believe this effect is the intent of the legislature.

The third question I have posed raises a more fundamental issue of principle, which is whether in the constitutional hierarchy of the laws of Papua New Guinea, such a construction as contended for by the Commission is valid. The Constitution, s 9, on �the laws� provides:

�The Laws of Papua New Guinea consist of:

(a)����� this Constitution; and

(b)����� the Organic Laws; and

(c)����� the Acts of the Parliament; and

...

(f)����� the underlying law,

and none other.�

Section 10 on �Construction of Written Laws� provides that:

�All written laws (other than this Constitution) shall be read and construed subject to:

(a)����� in any case � this Constitution; and

(b)����� in the case of Acts of the Parliament � any relevant Organic Laws; and

(c)����� in the case of adopted laws or subordinate legislative enactments � the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.�

Section 11(2) provides that:

�The provisions of the Constitution and the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.�

Section 12 on �Organic Laws� provides:

N2>�(1)��� For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is:

(a)����� for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by this Constitution; and

(b)����� not inconsistent with this Constitution; and

(c)����� expressed to be an Organic Law.�

In Avia Aihi v The State [1981] PNGLR 81, Andrew J at 102 said this:

�The Constitution is the supreme law of Papua New Guinea and all acts (whether legislative, executive or judicial) that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective: the Constitution, s 11. The powers given to the Supreme Court by s 155(2)(b) are unfettered. ... The Constitution places no such limitation on the Supreme Court. ... That power cannot be subject to or restricted by the Supreme Court Act, 1975.�

In SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214, Kearney DCJ said at 222, that:

�Organic Laws are special laws, dealing with particularly important subjects. They spell out the detail of certain matters outlined in the Constitution, so that the Constitution is kept from becoming too overburdened with detail.�

At 223 the then Deputy Chief Justice said this of the apparent difficulty in reconciling s 1(1) of the Organic Law on National Elections (Amendment) Act 1981 with s 12(3)(a) of the Constitution:

�It is true that it is difficult to �square� the literal wording of s 1(1) of the Organic Law with what s 12(3)(a) of the Constitution so plainly means. In reconciling them, I bear in mind that both the Constitution and the Organic Law on National Elections were passed by the same body, the Constituent Assembly. The task, however, is to make sense of the Organic Law in the light of the Constitution, and not vice versa.�

In Malipu Balakau v Paul Paken Torato and Tiane Openakali [1983] PNGLR 242, Kidu CJ said at 246:

�The Constitution overrides all organic laws and statutes (Constitution, s 10) therefore s 220 of the Organic Law on National Elections cannot affect the Supreme Court�s power granted by s 155(2)(b) of the Constitution. Section 220 is constitutionally valid as it relates to the right of appeal but is not as it purports to prohibit the review power of this Court under s 155(2)(b) of the Constitution.�

At 251 of Malipu Balakau�s case, Kapi DCJ, said:

�... There is nothing that the National Court can do which does not come under the power of review of the Supreme Court under s 155(2)(b). This power cannot be affected by any development of the underlying law, statute, or Organic Law.�

His Honour the Deputy Chief Justice continued at 252:

�Section 220 of the Organic Law prevents any means of coming before the Supreme Court on a decision of the National Court under the Organic Law. In doing so, it prevents the Supreme Court from reviewing any judicial act of the National Court in election matters. �

This cuts down the very wide powers of the Supreme Court to review all judicial acts of the National Court under s 155(2)(b) of the Constitution. Section 220 of the Organic Law is inconsistent with s 155(2)(b) and therefore invalid and ineffective.�

At 256, Andrew J added:

�... Section 220 of the Organic Law is a constitutional law prohibiting an appeal from the result of an electoral petition disputing an election or return. So far as it prohibits such an appeal from the National Court, it is not, in my opinion, unconstitutional. But it flows from the majority in Avia Aihi that the Supreme Court may review the decision in its inherent jurisdiction under the Constitution, s 155(2)(b) � such decision being a judicial act of the National Court. It follows that where s 220 purports to prohibit the questioning of the decision �in any way�, it is in conflict with s 155(2)(b) and is accordingly unconstitutional.�

Now, several propositions of constitutional law follow from these provisions of the Constitution and the constructions given to them in the passages quoted from the cases cited. The first is that an organic law is subordinate to the Constitution in the hierarchy of laws, (s 9); secondly, an Organic Law being subordinate to the Constitution �shall be read and construed subject to ... the Constitution�: s 10. Section 12 permits the enactment of Organic Laws by the Parliament for and in respect of matters provision for which are expressly authorised by the Constitution to be made by an Organic Law and which are not inconsistent with the Constitution. The case authorities have reinforced the supremacy of the Constitution and all acts that are inconsistent with it are, to the extent of such inconsistency, invalid and ineffective: per Andrew J in Avia Aihi v The State (supra). In reconciling inconsistencies, it is to be borne in mind that both the Constitution and the Organic Laws were passed at the same time, one after the other and that the task is to make sense of the Organic Law in the light of the Constitution and not vice versa. The Constitution overrides all Organic Laws and so no provision of an Organic Law can affect the courts� power granted by the Constitution.

The essence of these authorities is that in the circumstances of these provisions of the Constitution and the Organic Law, it is my firm conclusion that s 217(7) does not intend that an Organic Law shall make a further provision narrowing down or restricting further the court�s jurisdiction to review the proceedings of the Commission, granted by s 217(6). Section 217(7) cannot provide for an Organic Law, subordinate legislation, to qualify, narrow down or restrict a general jurisdiction of the Constitution, s 217(6).

A far more significant effect of s 217(6), to my mind, is the corresponding right that it vests in a private individual, whose conduct or private life might be being investigated by the Commission, to invoke the jurisdiction of the National or the Supreme Courts to review the proceedings of the Commission. The narrowing down or the restriction in the jurisdiction of the courts by the Organic Law, s 24, necessarily cuts down or restricts this right to the individual persons whose affairs may be affected.

The Commission countered this by submitting that unfortunately that was the deliberate intent of the legislature. It submitted a novel proposition to support this contention. It said that rather than viewing the effect of s 217(7) and the Organic Law, s 24, as narrowing down or restricting the jurisdiction and right of the courts and individuals respectively, granted by s 217(6), s 217(6) ought to be construed as granting or vesting a basic minimum right in the statutory person of the Ombudsman Commission. This, it submitted, was the Commission�s basic minimum right not to have its proceedings reviewed by the National or Supreme Courts, except on the ground that it has exceeded its jurisdiction. Consistently with the basic framework of the Constitution it was permissible to allow for subordinate legislations such as organic laws or other Acts of Parliament to amplify and expand upon such basic right provisions, to give them body and flesh. The analogy was drawn with the various basic right provisions in the Constitution, such as the right to bail, the right to privacy and so on which are amplified and given effect to in Acts of Parliament such as the Bail Act, Search Act and the Arrest Act. It was thus submitted that this is precisely what s 217(7) and the Organic Law, s 24, have done; that is to amplify and expand upon the basic right of the Commission granted by s 217(6) of the Constitution.

Well, all that I can say of this proposition, in the words of Pratt J in the course of argument, is that the analogy is surely a very bad one. I know of no individual rights granted by the Constitution being permitted to be narrowed down or restricted generally, except where it is expressly permitted in very exceptional circumstances such as general qualifications on qualified rights under s 38. Where subordinate legislations have purported to oust or narrow down or restrict grants of jurisdictions in courts by this Constitution the Supreme Court has, where there have been inconsistencies, struck down those subordinate legislations to the extent of the inconsistencies.

Geoffrey Lane LJ, in Pearlman v Keepers and Governors of Harrow School [1978] EWCA Civ 5; [1979] QB 56 at 74, in referring to the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, said:

�The effect of the majority speeches in that case may perhaps be expressed as follows: where words in a statute purport to oust the jurisdiction of the High Court to review the decision of an inferior tribunal they must be construed strictly. That is to say, if there is more than one way in which they can reasonably be construed the construction which impairs the power of the High Court the least should be selected.�

I accept that s 217(6) vests in the Ombudsman Commission a privilege or an immunity from review by the courts except on grounds of excess of jurisdiction. It also vests jurisdiction in the courts and a right in individual persons to invoke that jurisdiction. Section 24 of the Organic Law is, in my conclusion inconsistent with the s 217(6) grant of jurisdiction and right. It cannot stand. It is invalid and unconstitutional and must be struck down. To the extent that the applicant in the court below seeks a review of the proceedings of the Commission in its inquiry, on the ground of excess of jurisdiction, the National Court does have jurisdiction, and the court below did not err in law.

GROUND 2

�That the judgment of the Learned Judge was wrong in law in that Order 16 Rule 1(2) of the National Court Rules does not confer jurisdiction to make the declarations sought under the circumstances which obtain in this case.�

It was the Commission�s alternative submission that even if s 24 of the Organic Law did not exclude the court�s power to review, the National Court has no jurisdiction to make the declarations sought. Four main reliefs were sought, each in the alternative. I set out only the fourth one which was the basis of the other three:

�A declaration that the Ombudsman Commission in breach of s 17(4) of the Organic Law on the Ombudsman Commission made comments in both its Preliminary Report and Final Report on the Kerevat High School Enquiry, exhibit �A� herein, that were adverse to or derogatory to the applicant, namely each of the findings set out in pars II(ii), II(iii), II(iv) and II(v) above, and the recommendation of termination par III(i) above without:

(a)����� providing him with a reasonable opportunity of being heard; and

(b)����� fairly setting out his defence in both its Preliminary and Final Reports on the Kerevat National High School Enquiry, exhibit �A� herein ... .�

It was submitted that the jurisdiction to make bare declarations which are not ancillary to another right, or other consequential relief are creatures of statute and do not come as part of the common law powers inherent in the court. The decision of Bredmeyer J, in Dent v Thomas Kavali [1981] PNGLR 488 was thus relied on for the conclusion that the National Court Rules which speak of declarations, do not confer jurisdiction because they are not statutory provisions, and so must be read down as relating to matters of practice and procedure only. His Honour concluded (at 490):

�I consider the National Court�s jurisdiction or power to grant a declaratory order comes from the Constitution, s 155(4), in particular the latter words of that section.�

It was submitted, however, that the Supreme Court has ruled repeatedly that s 155(4) does not confer a primary right, rather it confers an extensive power upon the courts to fashion appropriate secondary remedies after primary rights have been established: Avia Aihi v The State.

It was the Commission�s contention that the respondent (applicant) Denis Donohoe has no such primary right to invoke the inherent jurisdiction of the National Court under s 155(4). It was argued that assuming for the purposes of argument that the Constitution, s 59 and s 60 are a guarantee to the respondent of natural justice, the obligation to observe the rules of natural justice attaches only to proceedings in which the respondents� rights, or, arguably, legitimate expectations are affected: see Premdas v Independent State of Papua New Guinea [1979] PNGLR 329. Much authority was cited for the proposition that rules of natural justice do not apply where the impugned conduct is solely of an investigative, advisory or preliminary nature; and that the only occasion in which proceedings of such a nature have been held subject to review are, where the report or investigation or finding therein forms a legal condition precedent to further action which may affect legal rights. It was submitted thus, that the Commission�s Final Report of the Kerevat National High School Enquiry did not form a legal condition precedent to any other administrative actions which affected the respondent (applicant�s) legal rights. Accordingly the respondent cannot show that he has any primary right which ought to be enforced by the Court fashioning an appropriate s 155(4) remedy.

The Commission had submitted that the learned judge had erred in law, that even assuming for the purposes of argument that the facts were as asserted by Mr Donohoe, at their highest, the substantive application could not be sustained under O 16, r 1(2) of the Rules. The National Court would have no jurisdiction to entertain the application at the very outset.

Notwithstanding the evidentiary assumption conceded by the Commission, these are substantive legal arguments which required careful examination of the legal application of the provisions of the Rules and the Constitution upon the facts on the substantive application. On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O 16, rr 2, 3 and 5. The application, of course, is ex parte and so the Court does not have any other material contesting the application. The Court is not required to address the matters specified in O 16, r 1(2). These are matters for consideration by the Court hearing the substantive application. I consider that the substantial issues raised are matters properly to be considered by the Court hearing the substantive application, depending on its conclusion of facts upon an assessment of all the evidence and the benefit of legal arguments.

However, as the ground has been much relied upon and ably argued, I propose to deal with it. In de Smith Judicial Review of Administrative Action (4th ed, 1980) at p 233 under the subheading �Hearing Without Deciding�, the following is found:

�In what circumstances must the rules of natural justice be observed by persons entrusted with the conduct of an investigation but having no power to give a binding decision? This is one of the most troublesome problems in the whole of administrative law. The authorities often appear to be, and sometimes are, in conflict with one another.�

At p 234 we find the following:

�However, the following tentative observations, based on principles as well as authority, may be offered:

(1)����� The degree of proximity between the investigation in question and an act or decision directly adverse to the interests of the person claiming entitlement to be heard may be important. Thus, one who is empowered or required to conduct a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place is not normally under any obligation to comply with the rules of natural justice. But he may be placed under such an obligation if his investigation is an integral and necessary part of a process which may terminate in action adverse to the interests of a person claiming to be heard before him. ...�

At p 235 the following is found:

�The balance is still a fine one, inasmuch as the investigation and report expose persons to legal hazard as well as potentially damaging publicity. It has accordingly been held that the rudiments of natural justice or fairness must be observed, insofar as the inspector must, before publishing a report containing serious criticisms and allegations against a person, put to that person the substance of them and give him an opportunity of rebutting them.�

At p 236 it is continued that:

�... an investigating body is under no duty to act judicially if it cannot do more than recommend or advise on action which another body may take in its own name and in its own discretion. This proposition cannot be accepted without qualification. Whilst it would be absurd to impose judicial standards on everybody that advises a government department as to the exercise of its functions, justice will sometimes demand that an investigation preceding a discretionary administrative decision be conducted in a judicial spirit ... . If express procedural duties are cast upon an investigating authority this in itself may support the view that a common law duty to observe natural justice attaches to the investigations.� [Emphasis mine.]

At p 237 we find:

N2>�(4)��� In special situations, persons entrusted with a duty to conduct a statutory inquiry and collect information may be obliged to observe the rules of natural justice, although they are not even entitled to submit recommendations to the deciding body. Such a situation can arise because the type of inquiry conducted is one in which members of the public have come to expect certain minimum procedural standards to be maintained.�

In the case of Wiseman v Borneman [1971] AC 297, Lord Guest said at 310-311:

�It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties� rights and duties, if the statute is silent upon the questions, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to be presumed to take away parties� rights without giving them an opportunity of being heard in their interest. ...

Where, however, the matter which the tribunal has to decide is a preliminary point which does not finally decide the rights of parties, then the question arises whether, and if so, to what extent, the principles of natural justice should be followed by the tribunal. ... For the Revenue it was contended that ... as a general rule, where a preliminary point was to be decided the court would not imply a term that the rules of natural justice should be applied. ... I see no reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect parties� rights.�

At 311 his Lordship said:

�The true view, in my opinion, is that expressed by Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 118: �There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subjectmatter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.��

Lord Donovan, also at 314, adopted these words of Lord Tucker with approval as being in point.

Lord Wilberforce at 317 said:

�My Lords, I agree that this appeal should be dismissed, but I would base the decision on rather broader grounds than those stated in the courts below, for I cannot accept that there is a difference in principle, as to the observance of the requirements of natural justice, between final decisions, and those which are not final, for example, decisions that as to some matter there is prima facie case for taking action. The suggestion that there is some difference which was sought to be extracted from the decision of the Court of Appeal and from the later case of Parry-Jones v Law Society [1969] 1 Ch 1 is one that I cannot accept.�

His Lordship then continued at the bottom of 317:

�It is necessary to look at the procedure in its setting and ask the question whether it operates unfairly ... to the point where the Courts must apply the legislative omission.�

His Lordship continued by saying: �I echo the well-known language of Byles J in Cooper v Wandsworth District Board of Works [1863] EngR 424; (1863) 14 CB(NS) 180 at 194�, which is the principle that very clear words are required to take away fundamental rights which are ordinarily accorded by the law and, indeed, by natural justice.

Lord Wilberforce continued at 317-318:

�First, it is clear that the question, how far the general principle is to be carried, is a relative one. ... Secondly, the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly: �Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment�.� See Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J.

The Court of Appeal in the later case of Re Pergamon Press Ltd [1971] Ch 388 held per curiam that: �although the inspectors� function under s 165(b) is investigatory and not judicial, they must, in view of the consequences which may follow from their report, act fairly.�

It was submitted, on behalf of respondent inspectors �that in point of law the inspectors were not bound by the rules of natural justice�. It was contended �that in all the cases where natural justice had been applied hitherto, the tribunal was under a duty to come to a determination or decision of some kind or other�. It was submitted that �when there was no determination or decision but only an investigation or inquiry, the rules of natural justice did not apply�. The case of Parry-Jones v Law Society (supra) was cited in support of this proposition.

Lord Denning MR in dealing with this submission in Re Pergamon Press Ltd said at 399:

�I cannot accept Mr Fay�s submission. It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings: see Re Grosvenor and West End Railway Terminus Hotel Co Ltd (1897) 76 LT 337. They are not even quasi-judicial, for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings. ... They do not even decide whether there is a prima facie case, as was done in Wiseman v Borneman (supra).

But this should not lead us to minimise the significance of their task. ... They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions.�

His Lordship continued, at the bottom of 399 thus:

�Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly. This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial, but only administrative. The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.� [Emphasis mine.]

At 402 Sachs LJ made similar observations:

�The nature of the proceeding, the purpose for which the reports may be used, the matter which may be found in them and the extent of the publication being respectively as described, it seems to me, as well as to Lord Denning MR, very clear that in the conduct of the proceedings there must be displayed that measure of natural justice which Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 65, described as �insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances ...�. To come to that conclusion it is, as recent decisions have shown, not necessary to label proceedings �judicial�, �quasi-judicial�, �administrative� or �investigatory�; it is the characteristics of the proceedings that matter, not the precise compartment or compartments into which it falls � and one of the principal characteristics of the proceedings under consideration is to be found in the inspector� duty, in their statutory fact finding capacity, to produce a report which may be made public and thus cause severe injury to an individual by its findings. That characteristic is of itself sufficient to distinguish the position in the present case from that to which Lord Reid referred in Wiseman v Borneman (supra).� [Emphasis mine.]

At 308 of that case Lord Reid referred to a public officer�s determination as to whether there was a prima facie case to prosecute someone and commented that there was nothing inherently unjust in reaching such a decision in the absence of the party. Sachs LJ noted in distinguishing this comment that, �the report of such officers are, of course, neither intended to be nor in fact are made public�.

Sachs LJ continued on 403:

�In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand. That need for flexibility has been emphasised in a number of authoritative passages in the judgments cited to this Court.

It is only too easy to frame a precise set of rules which may appear impeccable on paper and which may yet unduly hamper, lengthen and, indeed, perhaps even frustrate the activities of those engaged in investigating or otherwise dealing with matters that fall within their proper sphere. In each case careful regard must be had to the scope of the proceeding, the source of its jurisdiction (statutory in the present case), the way in which it normally falls to be conducted and its objective.�

Now, returning to the issues raised once again, I would adopt the words of Lord Morris of Borth-y-Gest in Wiseman v Borneman at 309:

�In the careful address of counsel for the appellant we were referred to many decisions. I think that it was helpful that we should have been. But ultimately I consider that the decision depends upon whether in the particular circumstances of this case the [Commission] acted unfairly so that it could be said that their procedure did not match with what justice demanded.�

What then are the particular circumstances of this case. There are no conclusions of fact. We only have the affidavit of the respondent applicant, Denis Donohoe, filed in the court below, verifying the facts relied upon in the application for leave and annexing the Ombudsman Commission�s Final Report on the Kerevat National High School Enquiry. The Commission�s Final Report, of course, speaks for itself as to matters contained therein. The respondent applicant alleges generally, in relation to the proceedings of the Commission�s enquiry, that numerous breaches of natural justice took place and in particular in relation to the allegations contained in the Commission�s Final Report, its findings of fact and recommendations, the Commission failed to comply with the requirements of s 17(4)(b) of the Organic Law on the Ombudsman Commission in relation to him.

I set out these findings and recommendations in detail, from the Commission�s Final Report, in order to assess if they are such that the principles of natural justice ought to have been observed.

At p 6 of the report under the heading �Summary of Findings� appears the finding: �There was also outright intimidation of one witness by the Superintendent of Operations, National Institutions Division.� Mr Denis Donohoe was the superintendent at the time. At p 9 of the report under �Summary of Recommendations�, appears recommendation II: �We recommend that the Superintendent of Operations, National Institutions Division, Mr Denis Donohoe, be terminated by the Public Services Commission, pursuant to Clause 10.2 of his contract.� The report continued: �This recommendation is based upon our findings that Mr Donohoe abused the powers of his office and has, therefore, shown himself to be �unfit� to hold a position of trust.� At p 18 under the heading �Intimidation� the following finding is made: �Our investigation established that a senior education officer at the National Institutions Division acted in a highly improper manner in approaching a potential witness prior to the Committee of Enquiry�s meeting at Kerevat National High School. Based upon testimony taken under oath, we find that this officer engaged in a course of conduct which was calculated to prevent the witness from talking freely to the Committee.� At p 21 the following appears: �It is clear to us that Mr Donohoe recommended that Mr Devlin�s contract not be renewed because Mr Devlin ignored Mr Donohoe�s phone call and appeared before the Committee of Enquiry � a Committee appointed by the Secretary for Education.�

Mr Denis Donohoe deposed in his affidavit that the Commission had produced a Preliminary Report and forwarded the same to the Secretary for Education. He deposed in par 14 of the said affidavit that: �At no time before or after either the Final Report or the Preliminary Report was forwarded by the Ombudsman Commission to the Secretary for Education was I informed of the findings and recommendations referred to nor was I given any reasonable opportunity of being heard in defence of said findings and recommendation as required by s 17(4) of the Organic Law on the Ombudsman Commission.� A copy of the Final Report was also forwarded by the Commission to the Chairman of the Public Services Commission. On or about 27 April 1982 the respondent said he received from the Public Services Commission a Notice of Termination of his employment under cl 10.1.2 of his contract. He deposed in par 21 of his affidavit that �Prior to the receipt of the above notice of termination I had not received from the Public Services Commission any notice of any charge of any misconduct against me as recommended by the Ombudsman Commission ...�. In the final paragraph (par 38) of his affidavit, the respondent concludes: �It is my belief based on the above Final Report that the said Report was forwarded by the Ombudsman Commission to both the Chairman of the Public Services Commission and the Secretary for Education and it was because of the above mentioned findings and recommendations contained in the said Report that I was sent the Notice of Termination ... .�

It is true that the Commission�s investigations may be investigatory only with its findings and recommendations having no legal condition precedent effect upon the government departments or the employing authority, the Public Services Commission. However, any adverse or critical findings against an individual or any recommendation against such a person�s interest, are I consider, to be viewed with extreme seriousness for if the report is to be made public, it may cause severe injury to reputations or careers of individuals. They may make findings of facts which are very damaging to those whom they name.

In this case there are no doubts in my mind that the findings of fact and the recommendations of the Ombudsman Commission are extremely serious and damaging to the reputation and career of Denis Donohoe. Indeed, he contends they led directly to his termination without a charge or a hearing. That is the obvious inference from the materials before us.

In the words of Lord Denning MR in Re Pergamon Press Ltd, I am of the opinion that seeing that the Commission�s report may lead to such consequences, the Commission must act fairly. This requirement, I consider, is affirmed by the express provision of the natural justice requirements in s 17(4)(a) and (b). Not only is the requirement specifically expressed, but it is significantly in mandatory terms. The requirements are not qualified in the way argued by the Commission, that only in the event of adverse or derogatory comments forming legal conditions precedent to further action which may affect legal interests, should the requirements of natural justice be observed.

I am of the opinion that the findings of the Commission and its recommendations are so adverse and derogatory of Denis Donohoe that it ought not to have reported them without first providing him with reasonable opportunity of being heard, and fairly setting out his defence in the Report. I am of the opinion, therefore, that in these circumstances, the requirements of s 17(4)(b) are mandatory and create a primary right in the person against whom such adverse and derogatory comments are going to be made in a report by the investigating authority, such that an aggrieved person can seek a judicial review of that authority�s deliberations.

I agree this ground be dismissed also.

GROUND 3

�That the Learned Judge erred in the exercise of his discretion to grant leave in that the granting of the relief sought by the respondent:

N2>(a)����� Would serve no utility or serve any practical purpose; and

N2>(b)����� Would not determine any rights of Respondent in respect of his employment.

First, the decision to grant leave is in the exercise of discretion and unless the appellant can demonstrate that the judge had erred in law or that he took into account extraneous matters or that he gave too much weight to some matters and or too little weight on other relevant matters then I would be most reluctant to disturb the exercise of that discretion. It is true that given the period of time that has elapsed from the report and termination of his employment services, there may be no utility or practical purpose served and that the relief may not determine any immediate rights of the respondent in respect of his employment.

I think, however, that the issue raised begs the question. The issues raised and discussed in grounds 1 and 2 are fundamental and substantial and had the learned judge addressed his mind to them, they would have almost compelled him to have granted leave in order that these issues be substantively argued. I consider that the need to resolve the issues, which are fundamental, would have warranted the granting of leave.

To my mind, the fact that the relief sought may not have utility and would determine no immediate employment rights of the respondent, fades into insignificance against the wider fundamental issues of constitutional and natural justice, principles that have evolved from the grounds raised, which conceivably would have arisen when the application went substantively before the National Court. On this basis I agree that this ground be dismissed.

I consider, however, that the relief sought by the respondent applicant would have utility, if granted in his favour, in relation to future prospects of employment and his reputation generally. If the conclusions remain in the report unqualified, then the respondent runs the risk in future career prospects of the prospective employer being overly protective and influenced by those findings and recommendations should they become aware of the report.

GROUND 4

�That the Learned Judge erred in the exercise of his discretion to grant leave in that the granting of relief after such undue delay by the respondent in bringing his application would be prejudicial to good administration.�

Once again I find the submissions advanced in this ground unconvincing and I am not disposed to disturbing the exercise of discretion to grant relief. It is doubly difficult, when the basis for the challenge is on a question which was not argued, the application for leave being ex parte, and on the further ground that the relief being sought in the substantive application would be prejudicial to good administration. Whatever the merit of this submission, the application was ex parte and so it could only be fairly argued in the substantive application. There may well be strong arguments against the granting of the relief sought, in the substantive application, on this ground of �undue delay� pursuant to the National Court Rules, O 16, r 4. It provides that �the Court may refuse to grant leave for the making of the application; or any relief sought on the application, if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantial prejudice to rights of, any person or would be detrimental to good administration�. The condition relied upon is that the grant of leave and the substantial relief sought would be detrimental to the good administration.

Again, my view is that, whatever the merit of this argument, the fundamental issues of constitutional interpretation and application and natural justice, which have been raised are so important and that their resolution will be of benefit to good administration and the dispensation of justice with fairness, that had the Court below addressed its mind to it, it would have been fortified in the decision to grant leave in order that the issues could be raised or argued in the substantive application.

In the end result I too would grant leave and dismiss the appeal.

WOODS J: The appellant is appealing against an order of the National Court made on 18 November 1983, granting the respondent leave to file an application for judicial review. The respondent is seeking judicial review of the proceedings of the Ombudsman Commission into the Kerevat High School in 1981.

The appellant submits that his appeal lies as of right firstly pursuant to the National Court Rules, O 16, r 11, and otherwise by the Supreme Court Act (Ch No 37), s 4. Unfortunately O 16, r 11 was not covered by a complementary rule in the Supreme Court as the Supreme Court Rules had not come into operation at the time this appeal was instituted.

Without creating a precedent as the matter is now covered by the Rules, I would accept this appeal as an appeal under s 4 and s 14 of the Supreme Court Act for which leave is not required.

Without going specifically into each ground of the appeal the basic submission is that under s 217 of the Constitution and s 24 of the Organic Law on the Ombudsman Commission, the Commission is not subject to review in any way except by the Supreme Court or the National Court on the grounds that it exceeded its jurisdiction and the applicant for the judicial review is not alleging an excess of jurisdiction, or that the grounds he is alleging do not come within the meaning of excess of jurisdiction.

My brother, Amet J, has dealt with the grounds of appeal in depth and I would agree with his findings that the National Court has jurisdiction to review the proceedings of the Commission in its inquiry on the ground of excess of jurisdiction and that there may be fundamental issues of constitutional and natural justice involved.

I would therefore dismiss the Appeal.

Leave granted and appeal dismissed

Lawyer for the Ombudsman Commission: D J Colquhoun-Kerr.