Hon Patrick Pruaitch v The Ombudsman Commission and others  SC1593
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PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 1 OF 2015
HON. PATRICK PRUAITCH
CHRONOX MANEK, JOHN NERO & PHEOBE SANGETARI, The
JIM WALA TAMATE, The Public Prosecutor
HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR
MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising
the Leadership Tribunal
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani: Manuhu, J, Murray, J & Pitpit, J
2015: 16th December
2017: 9th June
PRACTICE AND PROCEDURE – Discovery – Appellant sought discovery of
Ombudsman Commission’s investigation documents – National Court Rules,
Order 9 Rules 5, 7 & 16 – Public Interest – Private Interest – Maturity of
cause of action – Merits of cause of action.
Wartoto v. The State (2015) SC 1411,
Nilkare v Ombudsman Commission  PNGLR 333,
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Albert Karo v Ombudsman Commission of PNG  PNGLR 547
The State v Paul Loi (2009) N4058,
Hon Pruaitch v Manek (2009) N3903.
Mr. M Varitimos & Mr. P Tabuchi, for the Appellant
Mr. M Efi, for the First Respondent
Mr. L Kandi, for the Second, Third & Fourth Respondents.
9th June, 2017
1. BY THE COURT: INTRODUCTION: This is an appeal against a
ruling by Kassman J refusing a motion for discovery under Order 9 Rules 5 and
7 of the National Court Rules. The motion was made in conjunction with a
proceeding commenced by way of an originating summons (“The OS
proceeding”) filed by the Appellant where he sought, among others, a
declaration that his referral was unconstitutional, in excess of jurisdiction and
therefore illegal, invalid and of no force or effect because the Ombudsman
Commission (“The Commission”) did not accord to him the right to be heard
before making the referral.
2. The Appellant, as a Leader for the purpose of the Leadership Code, was
investigated for misconduct in office, including double dipping of transport
operational costs. In the course of the investigation, he appeared before the
Commission and made oral submissions in response to the allegations. The
Appellant on 30 November 2006 submitted his detailed written response to the
3. The Commission then summoned Mr. Kanawi Pouru in his capacity as
Managing Director of PNG National Forest Authority (“PNGNFA”) to give
evidence and produce documents relevant to the investigations. Mr Pouru
responded and produced documents in accordance with the summons.
4. The Commission then advised the Appellant on 22 July 2009 that there
was evidence of misconduct in office and that he would be referred to the Public
Prosecutor for prosecution. The referral was made and a tribunal was
empanelled to deal with the allegations.
5. The crux of the substantive proceeding is that the Commission’s decision
to refer and the eventual referral of the Appellant to the Public Prosecutor is
flawed and invalid in that he was not accorded the right to be heard in relation
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to the materials that were subsequently produced by Mr. Pouru.
6. The motion then sought pursuant to Order 9 Rule 5 to discover
“documents relating to the investigation”. In the alternative, the motion sought
an order pursuant to Order 9 Rule 7 for the defendants to file an affidavit stating
whether any minutes of meetings relating to any investigations into the
allegations is or has been in their possession, custody or power and, if they have
been but is not then in their possession, custody or power, when they parted
with them and what has become of them. Interestingly, the Appellant did not
specifically seek discovery of documents produced by Mr. Pouru.
Grounds of appeal in a nutshell
7. Public interest appears to be the main reason for the Trial Judge’s refusal
of the motion. The seven grounds of appeal, in a nutshell, is that the motions
Judge failed to consider the submissions and the legal principles in relation to
discovery pursuant to Order 9 Rules 5 and 7 and erroneously refused the
8. In the circumstances, the decisive issue, in our opinion, is whether
discovery, disclosure or inspection of documents in question would be injurious
to the public interest? This is a procedural law issue.
Relevant procedural law
9. Order 9 Rule 16 of the National Court Rules provides that discovery and
inspection of documents “does not affect any rule of rule which authorises or
requires the withholding of any document on the ground that its disclosure
would be injurious to the public interest”.
10. What is the rule of law? The rule of law is the principle that all persons
and institutions are subject to and accountable to law that is fairly applied and
enforced. Public interest is welfare or wellbeing of the general public. The
relation between these two principles is explained, as an example, in the
criminal case of The State v Paul Loi (2009) N4058, by His Honour Batari J,
“A decision to call evidence is such a heavy responsibility not to be taken
lightly by prosecuting Counsel. The election must be based on a duty to
act fairly and in the interest of promoting criminal justice administration.
It must be guided by proper principles and application of the “rule of
law.” The maintenance of the “rule of law” requires the involvement of a
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fair, impartial prosecutor, consistent with ethical considerations of his
role and the practice and procedure of the Court, to properly discharge
his duty both to the State and the Court. At stake is the public interest
which is to see that those charged with serious criminal offences such as
unlawful killings are properly prosecuted in a Court of Law. The public
interest represented by the State Prosecutor demands that, Counsel takes
all reasonable steps to secure and adduce evidence as a general rule
before prosecution case is closed. After all, that is the paramount
consideration of a fair trial under s. 37(3) of the Constitution…”
Application of procedural law to the facts
11. In this case, the Appellant seeks discovery of documents relating to the
investigation and of meeting minutes. Interestingly, the Appellant does not seek
discovery of Mr. Pouru’s documents, which are the very basis for taking out the
12. In relation to meeting minutes, we are unable to see the reasons why the
Appellant wants to discover them. We take into account that under the Organic
Law, investigations of the Commission are conducted in private. Such privacy
would cover their discussions and deliberations in meetings. The Commission
is not obliged, for that reason, to disclose its meeting minutes to the Appellant.
In any case, meeting minutes are not evidence. It serves no useful purpose for
meeting minutes to be provided to the Appellant.
13. In relation to “documents relating to the investigation” we note that the
Appellant has the right to challenge the proceeding of the Commission but it is
also in the public interest that the proceeding of the Commission, or the
Leadership Tribunal, should not be compromised and tampered with. In this
case, documents which are the subject of the motion are not mere records in the
possession, custody or control of the Commission. They are materials obtained
by law for a specific purpose, that is, to present to the Leadership Tribunal as
evidence. Until they are presented, it is not in the public interest for those
materials to be released to and used by the Appellant in an irrelevant
14. We are also of the view that it is not in the public interest for proceedings
of the Commission to be subjected to other civil proceedings. Such is the
growing undesirable judicial development in the country which has to be
discouraged by proper exercise of discretion. In criminal cases, it was held in
Wartoto v. The State (2015) SC 1411, that the National Court sitting in its civil
jurisdiction should not interfere with criminal proceedings. An accused person
still has the right of protection of the law under Section 37 of the Constitution
and he or she can still exercise the other avenues for redress available to him or
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her under the Criminal Justice System, the Criminal Code and Criminal
15. In relation to proceedings under the Leadership Code, we are also of the
view that the National Court in its civil jurisdiction should not interfere with
proceedings of the process under the Leadership Code. Proceedings under the
Leadership Code are sanctioned by an Organic Law – not any ordinary Act of
Parliament. For that reason alone, an aggrieved person enforcing his private
right should not be allowed to interfere with the proceeding when it is still in
progress. In the exercise of discretion, the Courts ought to take into account the
hierarchy of laws and supremacy of Constitutional Laws and refrain from
entertaining intervening civil proceedings.
16. Secondly, a leader found guilty does not lose his right to challenge the
proceeding of the Commission and any adverse finding of a Leadership
Tribunal. With his right preserved, it is against public interest for a Leader to
interfere midstream with a proceeding under the Leadership Code. In this case,
for instance, the Appellant’s right to challenge his referral will not be lost if he
is found guilty. There would be no cause for concern if he is found not guilty.
17. The OS proceeding, in our view, was instituted prematurely. A cause of
action in a case like this matures only when a Leader is found guilty and
penalised. In other words, the constitutional process has to be completed before
any challenge can be made against the process including decisions made by the
Commission, the Public Prosecutor or the Tribunal. But if a leader is found not
guilty, there would not be any cause of action against the constitutional process.
18. Thirdly, the Commission, like the National Court, is an institution of the
State. Institutions of the State are charged with the responsibility, with enabling
laws, to administer the affairs of this country. The Commission should be
permitted to carry out that constitutional function unhindered by private law
cause of action.
19. Furthermore, when civil suits are entertained prematurely, the same cause
of action is thus subjected to two different processes. This course is more likely
to result in delays. Delays in the prosecution of leaders charged with
misconduct offences undermine good governance and the public loses
confidence in the systems of government.
20. This case is a classic example. The referral was made on 22nd July 2009.
The OS proceeding was filed in February 2010. To date, there has been a delay
of more than eight years. The delay has seriously undermined the Ombudsman
Commission, the Organic Law and all efforts to promote good governance in
the country. The Appellant has continued to be a Member of Parliament in the
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last eight years. If he loses in the coming elections, the Commission’s
investigations and resources spent on the investigation would be a waste of
21. It also appears that the Appellant does not have any evidence to support
his claim in the OS proceeding, hence the motion for discovery and inspection.
In fact, evidence before us suggests that there was no breach of the requirement
for procedural fairness as alleged in the OS proceedings. The Appellant’s right
to be heard was accorded to him. See Nilkare v Ombudsman Commission
 PNGLR 333 and Albert Karo v Ombudsman Commission of PNG 
22. When the Appellant was served with the particulars of the allegations for
him to respond to them, he did not raise any issue. He responded with ease.
Mr. Pouru’s materials relate to the allegation of double dipping of transport
operational expenses to which the particulars were furnished to the Appellant
and he responded to them on 30 November 2006. His responses were:
“As a responsible leader I have immediately ceased claiming such
entitlements and the practice of reimbursements has ceased since I was
advised. In addition, I have made a K20,000 payment to the Department
to offset these payments. Once I am told of the remaining balance, I will
ensure it is settled in full immediately.”
23. Mr. Pouru’s materials basically shows that the Appellant owed PNGFA a
sum of K55,420.38. Mr. Pouru confirmed in his letter of 4 February 2008 to the
Commission that the Appellant repaid K20,000 on 18 October 2006. Before
writing to the Commission, Mr. Pouru, on 1 February 2008, advised the
Appellant that he still owed PNGFA K35,420.38 and requested that “he can
make the necessary settlement and following which [Mr. Pouru] shall inform
24. If the Appellant had any issue with Mr. Pouru’s materials, he was at
liberty to raise those issues with Mr Pouru and the Commission but he did not.
He waited until after the referral, which was done 17 months later on 22nd July
2009, and after a Tribunal had already been established, to file the OS
proceeding in February 2010.
25. We note that the Appellant initially applied for leave to review the
Commission’s decision to refer him to the Public Prosecutor for prosecution
before a Leadership Tribunal. See Hon Pruaitch v Manek (2009) N3903. That
application was refused by Hartshorn, J on 8th September 2009. It appears that
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that decision was totally ignored by the Appellant as well as the Courts, with
26. The whole situation of this case displays, among other things, an
undesirable imbalance between private interest and public interest. The Court’s
exercise of discretion, with respect, has favoured the Appellant’s personal
interest in the last eight years at the expense of a constitutional law process,
good governance and public interest. It is, in turn, a negative indictment on the
rule of law.
27. For the foregoing reasons, the Appellant’s motion should fail. Pursuant to
Order 9 Rule 16, it is not in the public interest for documents and materials that
were relied upon by the Commission to refer the Appellant to the Public
Prosecutor to be discovered in the OS proceeding when the Leadership Code
proceeding has not been concluded. The Appellant would be at liberty to
resurrect his application for discovery if he was found guilty by the Leadership
28. Our conclusion is in line with the conclusion reached by the Trial Judge.
Accordingly, we are obliged to dismiss the appeal and we do so with costs
which, if not agreed, shall be taxed.
Young & Williams Lawyers: Lawyer for the Appellant
Ombudsman Commission: Lawyer for the First Respondent
Wagambie Lawyers: Lawyer for the Second, Third and Fourth