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Aikung v Waieng, Minister for Defence [1999] PGNC 30; N1859 (6 May 1999)

Unreported National Court Decisions

N1859

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 130 OF 1999
BETWEEN: COLONEL FRED AIKUNG
PLAINTIFF
AND: PETER WAIENG – MINISTER FOR DEFENCE; VALI ASI – SECRETARY FOR DEPARTMENT OF DEFENCE; BRIGADIER GENERAL JERRY SINGIROK – COMMANDER OF PAPUA NEW GUINEA DEFENCE FORCE - CONSTITUTING THE DEFENCE COUNCIL
FIRST DEFENDANTS
AND: THE HONOURABLE BILL SKATE – PRIME MINISTER AND CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL REPRESENTING THE NATIONAL EXECUTIVE COUNCIL
SECOND DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
THIRD DEFENDANT

Waigani

Sevua J
21 April 1999
6 May 1999

ADMINISTRATIVE LAW – Judicial Review – Application for judicial review – Defence Force Act – Proceedings by a Colonel for judicial review – No procedures for appeal against termination of a Colonel – Defence Force Act – Code of Military Discipline – Defence (Period of Service) Regulation Ch. 74.

Held

Where a military officer holding the rank of Colonel was terminated and the Defence Force Act and its subsidiary legislation provide no procedures for appeal and where he has sufficient interest and an arguable case, leave should be granted to review the decision of the defendants.

Counsel

Mr. P. Mawa for Plaintiff/Applicant

Mr. M. Murray for Defendants

6 May 1999

SEVUA J: This is an applicationleav leave for judicial review of the second defendant’s decision to “terminate” or discharge the plaintiff from the military service.

ly, the plaintiff was a Colonel in the Papua New Guinea Defa Defence. He joined the Force on 10tsup>th December, 1971 and has been a career officer in the PNGDF for 27 years until his termination early this year. In wenty seven (27) yearseearservice, Colonel Aikung has never committed any offence unde under the Defence Force Act or the Code of Military Discipline. He ever tted any offence ance against the third defendant.

In March, 1997, amidst the military uprising instigated by the pr Commander in what was then described as the “Sandline Crisis”, the plaintiff wiff was appointed Acting Commander of the Papua New Guinea Defence Force to restore order, discipline, and command and control in the Defence Force.

After a in that caat capacity, he relinquished the command following a spate of unprecedented harassment, intimidation, violence and hoty perpetrated against him by soldiers loyal to the present Commander, who had then been&#1en s by the previous governmeernment for spearheading the military rebellion against the government of Sir Julius Chan.

At the time of his appointment as Actommander in March, 1997; Colonel Aikung was Chief of Logistogistics, until he took leave in December, 1997. Upon resumption in ry, 199, 1998; he found that he had been displaced as Chief of Logistics. He said his attempts ve anve an audience with thmer Commander, Brigadier General Leo Nuia did not succeed. Further ats to have have have his case sorted out with the present Cder also proved unsuccessful, until early this year, when hhen he was advised by the Commander on 15^th January, 1999, of hscharge.

The plaintiaintiff has taken issue with several matters which, in my view, go to the root of his termination. O the issues is whether heer he was retired, made redundant, terminated or discharged. Counsel fe plaintiff, Mr M Mr Mawa hor a while, made submissions which were really arguments relevant to the substantive hearinearing of the review application if leave anted. I do not wish to cover tsuse submissions becaubecause they are irrelevant at this stage. I will therefore confine my consideration to the issue, whether or not, leave should be granted to Colonel Aikung.

Order 16 Rule 3 of the National Coures provides the basis for which leave for judicial review may be granted. As is the athe acceptincipinciple, in this jurisdiction, the granting of leave under Order 16 Rule 3 is based on four major legal principles, which the plaintiff needs to establish of the requirements stipulated in the various sub-rules ofes of rule(3). Basically these are, cientcient interest, delay, arguable case and whether an applicant has exhausted other administrative avenues.

Mr Mawa&;s submissbmissions cover aur basic principles and I have no doubt that the plaintiff/tiff/applicant has sufficient interest in this matter. There has beedelayaking thng this application. Thre no appealppeal procedrocedures provided for in the Defence Force Act in respect of the tation of a Colonel, and the plaintiff has an arguable case. In my vihe plaintiffntiff'tiff's professional, pecuniary, economical, and other interests are affected by the decision, the subject of this action, therefore I am satisfied that he has sufficient intein this matter.

If I>If I understood correctly, Mr Murray’s submissions centred on the issue of whether the plaintiff has an arguable case. And ifderstood him correctrrectly too, it is his submission that the plaintiff has no arguable case because of the non-justiciability of this case, and therefore the plaintiff’s action could not succeed. I consider that thamissionssion is misconceived, and it is the wrong approach to the issue itself. An arguable casue involvesolves the questi whether the application for review raises fundamental or serious legal issues. WhethWhether those i succesucceed or not in thetantive review application is not the issue to be determinermined at the leave application stage. Tormine the success or fe r fe of a fundamental or legal issue would, in my view, mean dean determining the merits of the review application and that is not the oive or purpose of leave applications.

In my view, asw, as long as an application for judicial review raises serious fundamental constitutional or legal issues and such issues are adverted to in the leave application, an applicant can be said to have an arguable case. The success ilure of thosethose issues are not relevant at the leave application stage. The plaintiff&#8217unsel hsel has raised several constitutional and legal issues and in my opinion, the plaintiff has shown he has an arguable case

It is the judgment of this Court therefore that leave be granted to the plaintiff to reto review the decision of the defendants, and I order that leave for judicial review be granted.

Costs will be in the cause and I further order that the interim injunction orders granted on 5^th March be extended until the substantive review application is determined.

Lawyer for Plaintiff: Paul Mawa Lawyers

Lawyer for Defendants: Murrary & Associates