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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 10 OF 1995
BETWEEN: BROWN SINAMOI, MARGARET LOKO, CES IEWAGO, REV. EDEA KIDU
PLAINTIFFS
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
FIRST DEFENDANT
AND: HONOURABLE CHRIS HAIVETA AS MINISTER FOR FINANCE & PLANNING
SECOND DEFENDANT
Waigani
Doherty J
30 January 1995
23 February 1995
CERTIORARI - Review of Administrative Decision.
The Plaintiffs were all members of the National Gaming Control Board and the 2nd Defendant was the Minister responsible for the Gaming Act. He send notice to all the Plaintiffs of his intention to remove them on the grounds of inefficiency and misbehaviour. The grounds related to interpretation of the Gaming Act and actions by the Registrar to the Board.
Held
The Court has power to review an administrative decision of this kind.
The Minister is obliged in law to give reasons and to consider replies. The intent of S.8(4) Gaming Act is to deal with individual Board members and not collective removal.
Cases Cited
Iambakey Okuk v. Fallscheer [1980] PNGLR 274
Malloch v. Aberdeen Corporation [1971] 2 All E.R. 1278
Godfrey Niggints v. Tokam & Others, N 1158
Benson Gegeyo & Others v. Minister for Lands & Physical Planning [1987] PNGLR 331
Counsel
Mr Kua, for the Plaintiffs
Mr Baker, for the Defendants
DOHERTY J: The plaintiffs were the Chairman and Members of the National Gaming Control Board, a Statutory board formed pursuant to Section 6 of the Gaming Machine Act 1993 (hereafter "the Act"). Their appointments were made and gazetted at various times in 1993 and 1994. There is no challenge concerning their appointment or its gazettal. Of the plaintiffs Margaret Loko was nominated by the National Council of Women, Ces Iewago was nominated by the Papua New Guinea Chamber of Commerce and Rev. Edea Kidu was nominated by the Melanesian Council of Churches.
Counsel for the plaintiffs stresses their status and standing in the community and submits that the Court can take judicial notice of their standing, I am not sure that the Court can take judicial notice of this type of thing but it suffices to say that their personal integrity has not been challenged by the defendants.
The Minister for Finance the 2nd Defendant is the Minister who appoints members to the board pursuant to S.6(2) of Gaming Machine Act 1993. The appointments are for a term not exceeding five years (Section 6(2)(b)). Each of the plaintiffs before the Court (except Mr Sinamoi) says by affidavit, that he served diligently and faithfully and efficiently in his capacity as member. None of the deponents was cross examined on their affidavits.
On the 13 December 1994 the second defendant, the Minister for Finance and Planning, wrote to each of the plaintiffs informing each of them of his intention to terminate each appointment "on the grounds of inefficiency and misbehaviour pursuant to Section 8(3) of the Gaming Machine Act 1993 in that you have allowed your Registrar to bring into question the integrity of the office of The Deputy Prime Minister and tampering with the Gaming Machine Act 1993 to suit your purposes".
There is no doubt that the Gaming Machine Act 1993 gives the Minister the power to put Board members on notice of his intention to terminate their appointments on the grounds of inefficiency or incapacity or misbehaviour and upon receipt of such a notice a Board member has 14 days (Section 8(4)) in which to reply in writing. The Minister is then obliged to consider that reply and "where appropriate terminate the appointment." If a member does not reply then his appointment is terminated.
My reading of the letter is at that there are two grounds only on which the Minister based his contention that each of the members was inefficient and misbehaved i.e.
(1) lowing the registrar toar to bring into question the integrity of the office of the Deputy Prime Minister;
Each of the members strenuously denies the allegations and the plaintiffs Margaret Loko, Brown Sinamoi and Ces Iewago wrote in reply, Brown Sinamoi's letter is long and detailed on behalf of the Board. The others sought clarification of the allegations and said that the notice did not give them an opportunity to defend themselves against innuendoes that had been levelled against them. Rev. Kidu did not reply and relied on a statement by the Registrar that the Chairman (Mr Sinamoi) was replying on behalf of each of them. Counsel for the defendants says that there is no evidence that Ces Iewago actually sent his letter. In his affidavit he says that he wrote it and there is no suggestion in the affidavit in reply written by Mr D. Kapi that he did not receive Mr Iewago's letter, he quite definitely says he read the affidavit of Mr Iewago. I have no facts to suggest that the letter was not sent the defendant does not say it did not arrive and I am not prepared to uphold this as a ground of challenge.
It may be appropriate to refer here to the reply by the defendants. The second defendant has put nothing before the Court to explain his reasons or what led up to his actions on the 13 December. Instead there is an affidavit from Mr Kapi, a member of his staff, which annexes various correspondence from the 16 November onwards between the second defendant's office, the Board and other Government Departments. Some of the correspondences are exchanges between Mr Kapi and the Registrar of the National Gaming Control Board. Neither Mr Kapi nor the Registrar of the Board have appeared in Court to give evidence but the tone of the correspondence between them conveys a considerable amount of personal animosity. Mr Kapi does not state any grounds on behalf of the second defendant, and as I have noted the second defendant himself does not offer any grounds or reasons by way of affidavit or oral evidence. The Court is left to infer from the correspondence the reasoning leading to the decision to terminate the plaintiffs.
The inference in this correspondence is that a controversy arose concerning the licence given to a company which had changed its membership after the licence was issued. There is also a suggestion that some other company (it is not clear to me if they are related companies) was of ill-repute overseas. The Board, through the chairman, had stated that the Board had relied on advice from police forces; those within the country and overseas.
From the facts before me I cannot clearly ascertain what exactly the Registrar allegedly did in relation to the office of the Deputy Prime Minister.
The affidavit of Mr Kapi annexed a letter referring to damaging allegations "by an overseas company made overseas." It does not say or suggest those remarks emanated from the Registrar. Clearly both the Board Members and the Defendant's officer say in their exchange of correspondence that, there are rumours and allegations made by outsiders within the gaming industry and such rumours and gossip has come to the notice of the office of the Deputy Prime Minister.
What is also clear from the correspondence submitted to Court and categorically stated in a letter of the 22 November 1994 to the chairman (the first plaintiff) on behalf of the office of the Minister for Finance and Planning (the second defendant)
"I wish to make clear a few points, that seem to be misunderstood.
1. ;ټ That noat no accusaccusations have been made against the Board or its members from this office. We have certainly not hany rs sugng that the Board was corrupt as indicated by the Registrar."
I
I find find it soit somewhat difficult to reconcile this statement of 22 November 1994 with the letter of 13 December sent to each plaintiff alleging inefficiency and misbehaviour.
In response to the Plaintiffs who wrote to him, the 2nd Defendant replied as follow to:
1. ; M60Loko telling her that that the reasons given "were detailed and in my opinion they were more than sufficient to inform you actind coing trmina(4 January 1995).
2. ټ #160;   To Rev. Kiv. Kidu confirmifirming the termination (5 January 1995).
3. ـ T6 Mr Iewago confironfirming the termination (5 January 1995)
4. ҈ To0; To Mr S Mr S Mr Sinamoinamoi saying he had "given careful consideration to your letters of 16 December 1994 and 5 January 1995" and confirming the tation (9 January 1995).
The affidavit of Mr Kapi doei does not assist me in ascertaining exactly what the Board members did or said that called the integrity of the Deputy Prime Minister into question. Annexure "D" to Mr Kapi's affidavit refers to "our fax this morning". It is not annexed to assist in understanding the reference. Mr Baker submits on behalf of the defendants that the Board, and particularly the Chairman, were well aware of the reasons for termination and that is clearly conveyed in the correspondence of the Chairman to the 2nd defendant. I have again re-read that correspondence in the light of that submission and having done so I cannot determine the reason. Instead it conveys a distinct impression that much of the correspondence and the information on which it is based comes from Mr Kapi himself only and not the second defendant.
The plaintiff submits that the actions constitute a breach of Natural Justice requirements in-as-much as there was a failure to give particulars and reasons; that the right to be heard was not upheld and there was a failure to give reason in the final decision. Alternatively that the action was harsh and oppressive and hence could be reviewed under S.41 Constitution.
The Defendants in submission said the reasons for termination were "known to the Chairman who responded on behalf of all the Plaintiffs and this is evidenced by his letters". But the Chairman's letters refer to investigations in foreign jurisdictions into certain commercial companies and the implications of S.39(2) of the Gaming Act. If what is contained in these are the 'reasons' then they only amount to an explanation and rebuttal by the applicants.
The Defendants also submit that there is no requirement in Common Law for a minister or authority to give reasons for a decision of an administrative nature nor a general duty upon a government to give reasons for its decisions. Counsel referred to case law to this effect. He submitted that the Act lays down procedures and the Act does not require the giving of reasons.
The Common Law draws a distinction between the employment, termination situation involving loss of employment and the termination or revocation of an appointment to public office. However as was said in the Supreme Court in Iambakey Okuk v. Fallscheer [1980] PNGLR 274:
"I think it is important to consider that no general rule can be laid down as to the application of the principles of natural justice. Each case must be determined on its own facts."
as cited by both counsel in this case in R v. Gaming Board of Great Britain [1970] EWCA Civ 7; [1970] 2 Q B 417 and by the Supreme Court with approval in Okuk v. Fallscheer (supra) it was state:
It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter.
"The distinction that was once thought to exist between the Courts powers to review judicial decisions and administrative decisions (which were thought to be exempt from review) clearly no longer exists since the decision in Ridge v. Baldwin 1964. That rule has been followed in Iambakey Okuk v. Fallscheer (supra)".
Case law shows that administrative decisions are not exempt from review by Courts because it is administrative - as has been stated in the text "Administrative Law in Papua New Guinea" by Mr Ntumy. "Cases show that an administrative decision is not exempt from review by Courts simply because it is administrative."
Defence stresses the combination of the Common law rule - coupled with a basic premise the Court must accept - that the "Minister must be presumed to be acting in good faith" - and the procedure steps of the Act itself. Does the Common law rules regarding administrative bodies apply in our jurisdiction? This was considered in Okuk v. Fallscheer. (supra) which stated:
The matter of status or holder of an office is now finally settled by the House of Lords in the case of Malloch v. Aberdeen Corporation [1971] 2 All E R 1278. The question of status or holder of an office as the basis for requiring a principles of natural justice is evident in the speech of Lord Reid:
"The right of a man to be heard in his defence is the most elementary protection of all and where a statutory form of protection would be less effective if it did not carry with it a right to be heard I would not find it difficult to imply this right."
On the facts did the 2nd defendant did give an opportunity to be heard by virtue only of informing of an intent to terminate? At no point does he invite any response or comment. He states his intention and leaves no room to manoeuvre. The Act itself obliges the Ministers to consider a reply.
Replies were made - both individually and a collective submission by the Chairman. It is quite clear to me that the Chairman wrote on behalf of the Board members e.g. he states - "... we have been unable to formulate a comprehensive reply "and throughout speaks of the "Board Members" and "the Board", when putting forward facts.
There is no indication that the Minister considered these points and individually applied them to each Board member as he was obliged to - either on evidence put forward or by implication in his letters of 4th and 5th January confirming the termination. He referred only to them in writing to Mr Sinamoi by which time he had made decisions regarding the others. Ms Loko, who replied personally asking for details was informed that the original allegation was "detailed" and "more than sufficient."
The lack of detail constitutes a ground of submission by the Plaintiffs.
The defendants say there is no legal obligation in the Gaming Machine Act 1993 providing for reasons and the Plaintiffs with the exception of Ms Loko failed to respond as they could and should have done under S.8(4) of the Act and hence have no grievance.
I will deal with the latter point first. The action by the 2nd defendant was an action against all the appointed members of the Board - a collective action (a point I will return to) alleging a common ground. The reply he received was quite clearly on behalf of all the members and constituted a reply. The 2nd defendant does not allege otherwise in evidence and this argument must fail. On the former point of a legal objection the case law shows that a person acting in capacity of dismissing from public office has an obligation to act in a fair manner for grounds and not in an arbitrary way. It is correct as Defence say that it is not a trial, but grounds - in order to be replied to as provided by S.8(4) must have enough detail as to time, place and facts to enable a person to know what is alleged and give them an opportunity to properly put their version of events and defence.
As Amet, J (as he then was) said in Godfrey Niggints v. Tokam and Others, Unreported N 1158 in relation to other legislation giving power to dismiss:
REQUEST FOR FURTHER AND BETTER PARTICULARS
Whilst the Act does not specifically provide for such a procedure. I think that consistent with the longer time necessary to give explanations, it could only help the decision making process for the charged officer to be provided further details upon which the charges are based to enable him to respond more fully. It is a matter of common sense and fairness. A charged person is entitled to know the basis upon which he has been charged: in greater detail to enable him to respond more fully and to enable the decision making process to be fuller and fairer.
The two allegations - of failing to control the Registrar and tampering with the Act - are broad and give no direction or indication when, where it happened or what exactly were involved.
Grounds must also be real and genuine. To have it otherwise and rely on spurious grounds would bring into question the administrative integrity of the persons - be they administrative, corporate or political - who are responsible for such decisions and leave them open to allegations of abuse of power.
As was stated in Benson Gegeyo and Others v. The Minister for Lands & Physical Planning [1987] PNGLR 331 at 338.
"I add generally, that in this whole area of administrative decision making involving the legislature, the executive government and other tribunals there is no room for arbitrary decision making which will affect the integrity and reputation of persons concerned without first giving some explanation and an opportunity to be heard to such persons.
I consider, however, that the Minister does have a discretion to revoke, dismiss or suspend a decision to appoint, for good cause after having given ample notice and advice to the person concerned before taking that decision. I do not accept the submission by the plaintiffs that the appointment is absolute until the expiry of that term. For good reasons such as misconduct in office, such as inability to perform and the like, there must be discretion in the appointing authority to suspend, vary or revoke such an appointment."
Of the two grounds given the 2nd alleges the Board tampered with the Act. Only Parliament can change legislation, not a Board or an administrative body. If the Board was mis-interpreting the Act - and on the unrebutted facts they relied on legal advice given to them - then it is for the Court to interpret the relevant sections.
On my reading and re-reading S.8 of the Act it became more and more apparent that the wording is framed for action by the Minister against an individual member - if he e.g. is convicted of an offence, or becomes bankrupt or is inefficient or misbehaves. The notices to the Plaintiffs make them collectively responsible for the actions of an employee albeit one appointed under S.18 of the Act and implies collusion which is not shown in the facts. Unfortunately this point did not arise in course of submission and therefore neither counsel addressed on it. But I consider the intent of the provision is to deal with individual misdeeds or an individual situation and not to impose a collective obligation on the group for actions taken in the course of the duties imposed on them that the Minister considers is a mistaken interpretation of the legislation or to make a Board collectively responsible for the misdeeds (real or otherwise) of an officer.
Such action is a misconception of the powers in S.8(2) and (3). I consider that the 2nd Defendant has not given the Plaintiff sufficient information of what constituted his grounds for considering each member was inefficient and misbehaved and thereby they were unable to respond, as they were enabled to do by S.8(3) of the Act. Hence in turn the 2nd defendant could not consider those replies as he was obliged to do . The 2nd defendant was obliged to consider any reply and there is no evidence or inference that he did so in response to the points but forward on behalf of all the Plaintiffs or the individual submissions of two of the Plaintiffs.
The 2nd defendant has misconstrued the purpose of S.8(3) of the Act by making all the appointed Board members collectively responsible for the actions of Registrar when the purpose and intent of S.8(3) is to deal with individual misbehaviour etc.
Accordingly I consider that the 2nd defendant acted wrongly in terminating the appointments of the Plaintiffs and I declare that it was in breach of the rules of natural justice and accordingly I quash it.
Lawyers for the Plaintiffs: FIOCCO, POSMAN & KUA
Lawyers for the Defendants: HENAOS LAWYERS
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