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Sanangkepe v Wingti [2008] PGNC 94; N3404 (17 June 2008)

N3404

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 783 OF 2006

BETWEEN

AITA SANANGKEPE
Plaintiff

AND

HONOURABLE PAIAS WINGTI, GOVERNOR & CHAIRMAN OF THE
PROVINCIAL EXECUTIVE COUNCIL & PROVINCIAL ASSEMBLY OF
THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
First Defendant

AND

LEO MENINGA
CABINET SECRETARY-WESTERN HIGHLANDS
PROVINCIAL GOVERNMENT
Second Defendant

AND

THE PROVINCIAL EXECUTIVE COUNCIL
OF THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Third Defendant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Fourth Defendant

Mount Hagen: Makail AJ
2008: 10 June; 17 June

ADMINISTRATIVE LAW & JUDICIAL REVIEW - application for judicial review - decision of western highlands provincial executive council to revoke appointment of plaintiff as a member of western highlands provincial education board - exercise of legislative power - procedures of appointment and revocation of teacher representatives on provincial education board - power to appoint vest in provincial executive council - plaintiff a career teacher and member of teachers association through its western highlands branch - teachers association recommends - appointment based on list of names recommended by teachers association - two members appointed from list of names - whether decision ultra vires - Western Highlands Provincial Education Act No 1 of 2001 - sections 15 & 22 - no expressed power to revoke appointment - appointment ends by virtue of expiry of three years except for misbehaviour and incapacity of members - Western Highlands Provincial Education Act No 1 of 2001 - section 15(4) - implied power to revoke appointment vested in provincial executive council - Interpretation Act - section 36(1).

JUDICIAL REVIEW - exercise of legislative power pursuant to amendment to Western Highlands Provincial Education Act No 3 of 2006 - sections 15 & 22 amended - effect- appointment of teachers’ representatives based on list of names submitted by chairman for education and representing district education board - two members appointed from list of names - three new teachers’ representatives appointed - no expressed decision made on revocation of appointment of plaintiff - implied revocation of appointment - Interpretation Act - section 36(1).

EVIDENCE - no evidence of certification of amendments by Minister for Provincial and Local Level Government Affairs - effect - notwithstanding no evidence of certification of amendments, amendments deemed approved by Minister for Provincial and Local Level Government Affairs - Organic Law on Provincial Governments & Local Level Governments - section 141 - procedures of appointment and revocation of teacher representatives to provincial education board under Education Act 1983, section 31 inapplicable - by virtue of Education Act 1983, section 30 - no inconsistency with amendments to Western Highlands Provincial Education Act No 3 of 2006 - sections 15 & 22.

CONSTITUTION - principles of natural justice - minimum requirement to act fairly - right to be heard and given reasons for decision - Constitution - section 59 - breach - no right afforded to plaintiff to be heard prior to decision - audi alteram partem rule applied - no reasons given for decision - decision null and void.

JUDICIAL REVIEW - principles of unreasonableness - decision unreasonable - Wednesbury’s principles of unreasonableness - relevant considerations not taken into account - career teacher - experience - president of teachers association of Western Highlands Province - irrelevant considerations taken into account - not disclosed - decision unreasonable.

ORDERS - application for judicial review discretionary remedy - events over taken purpose of application for judicial review - prior order of Court ordering removal of members of provincial education including plaintiff - conflict with previous Court Order - grant of application detrimental to good administration of provincial education board - confusion over membership and administration of education board - judicial review is not available where damages is an alternative remedy - plaintiff to sue for damages - application dismissed - orders accordingly.

Cases cited:

Papua New Guinea Cases
Gerald Sidney Fallscheer -v- Iambakey Okuk & The State [1980] PNGLR 101
Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122
Chris Appa -v- Peter Wama & Ors [1992] PNGLR 395
Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123
Simon Opa & Mount Hagen Park Secondary School -v- Hans Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343

Overseas Cases Cited:
Associated Provincial Picture House -v- Wednesbury Corporation [1948]1KB 230
Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014

Counsel:
Mr P. Kunai, for the Plaintiff
Mr R. Otto, for the Defendants

17 June, 2008

1. MAKAIL AJ: This is an application for Judicial Review made pursuant to Order 16 of the National Court Rules to review the decision of the First, Third and Fourth Defendants to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board and then to appoint the Second Defendant as Chairman of that Board on 9 May 2006. Leave to review this decision was granted by this Court on 5 April 2007.

2. Prior to leave being granted, on 23 October 2006, the Court granted an Interim Injunction to stay the decision of the First, Third and Fourth Defendants from being given effect to or implemented until the determination of the substantive application for Judicial Review. As a result, the Plaintiff remains a member of the Western Highlands Provincial Education Board until the Court decides otherwise.

BRIEF FACTS

3. The Plaintiff is an adult male aged 56 years old and comes from Minimp Village near Mt Hagen in the Western Highlands Province. He is presently the President of the Western Highlands Branch of the Papua New Guinea Teachers Association (PNGTA). He was elected to this position by the teachers of the Western Highlands Province through a secret ballot for a period of three years commencing in August 2005 and ending in August 2008.

4. By virtue of his election as the President of the Western Highlands Province Branch of the PNGTA, the Plaintiff was recommended as one of the Teachers’ Representative on the Western Highlands Provincial Education Board. In August 2005, the Western Highlands Provincial Executive Council approved his appointment as a member of the Western Highlands Provincial Education Board.

5. On 9 May 2006, the First, Third and Fourth Defendants convened a meeting and resolved to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board. It is this decision which the Plaintiff seeks to review.

COURT DOCUMENTATION

6. In support of the application for Judicial Review, the Plaintiff has filed and relies on the following documents:

1. Originating Summons filed on 23 October 2006;

2. Statement in Support of Application for Judicial Review filed on 23 October 2006;

3. Amended Statement in Support of Application for Judicial Review filed on 10 April 2007; and

4. Notice of Motion filed on 27 April 2007.

7. From the Originating Summons filed on 23 October 2006, the Plaintiff seeks the following reliefs:

"1. Leave be granted to the Plaintiff to file an application for Judicial Review of a decision of the Third Defendant made at Mount Hagen on 09th May 2006 whereby the Third Defendant revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

2. An Order for the Prerogative Writ of Certiorari to be issued to quash and remove into the National Court the decision of the Third Defendant made at Mount Hagen on 9 May 2006 whereby the Third Defendant revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

3. A declaration that the Third Defendant’s decision to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board is unlawful and is null and void and of no effect.

4. An Order to stay the appointments of the new board members to the Western Highlands Provincial Education Board appointed by the Third Defendant on 9 May 2006 until the proceedings have been finalized.

5. A declaration that the Plaintiff’s appointment to the Provincial Education Board is determined by the Western Highlands Provincial Teachers Associations and not otherwise.

6. Until further Order, an Order directing the members of the previous Provincial Education Board whose appointments have been revoked by the Third Defendant continue to hold office as members of the Provincial Education Board until these proceedings have been finalized.

7. Costs of the action.

8. Such further or other Orders as the Court may think fit".

8. As leave was granted and as is required by Order 16 rule 5(1) of the National Court Rules, the Plaintiff filed a Notice of Motion on 27 April 2007 seeking the following substantive reliefs:

"1. An Order for the Prerogative Writ of Certiorari to be issued to quash and remove into the National Court the decision of the Third Defendant made at Mount Hagen on 9 May 2006 whereby the Third Defendant revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board pursuant to the provisions of the Provincial Education Act of 2001.

2. A declaration that the Third Defendant’s decision to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board pursuant to the provisions of the Provincial Education Act of 2001 is unlawful and is null and void and of no effect.

3. A declaration that the Plaintiff’s appointment to the Provincial Education Board is determined by the Western Highlands Provincial Teachers Associations and not otherwise.

4. Costs of the action.

5. Such further or other Orders as the Court may think fit".

EVIDENCE

9. In terms of evidence, the Plaintiff relies on his Affidavit sworn on 10 March 2007 and filed on 23 March 2007. This Affidavit was admitted into evidence without any objection from the Defendants and marked as Exhibit "P1".

10. As for the Defendants, although they had all the time in the world since leave was granted to the Plaintiff to seek judicial review of their decision on 5 April 2007 to file any Affidavits in reply to the evidence of the Plaintiff, they did not. They resorted to only one Affidavit filed by their lawyers, Ms Judy Nandape sworn and filed on 14 October 2006 which was admitted into evidence without any objection from the Plaintiff’s lawyers and marked as Exhibit "D1".

11. The Affidavit of Judy Nandape has no bearing on the present application for Judicial Review except to refer to an earlier Court proceeding involving the same parties in OS No 435 of 2006 which was dismissed in its entirety by His Honour Mr Justice David on 16 October 2006.

12. From the evidence, the following facts are not disputed nor contradicted by the Defendants:

1. At all material times, the Plaintiff was the President and one Ms Pauline Malau was the Secretary of the Western Highlands Branch of PNGTA respectively and were members representing teachers in the Western Highlands Province on the Western Highlands Provincial Education Board;

2. On 9 May 2006, the First, Third and Fourth Defendants held a meeting chaired by the First Defendant and resolved and revoked the appointment of all the members of the Western Highlands Provincial Education Board including the Plaintiff and Ms Malau;

3. Whilst Ms Malau was reappointed, the Plaintiff’s name was removed from the revocation list as well as the new appointment list. A total of three teachers have been appointed to the Provincial Education Board without the approval of the Western Highlands Branch of PNGTA.

4. After revoking the appointments of all the members of the Western Highlands Provincial Education Board, the First, Third and Fourth Defendants appointed the Second Defendant as the new Chairman of the Provincial Education Board instead of the Advisor of Education of Western Highlands Province.

5. The revocation and appointments of the members of the Western Highlands Provincial Education Board were published in the Provincial Gazette HG No 3 dated 18 May 2006.

6. The Plaintiff was not informed of the First, Third and Fourth Defendants’ decision to revoke his appointment until a week before he filed this application for Judicial Review when he received the Notice of Gazettal of 18 May 2006 and the Meeting Minutes of the First, Third and Fourth Defendants.

7. He was also not given any reasons for the revocation of his appointment by the First, Third and Fourth Defendants at that time and even to date.

GROUNDS OF REVIEW

13. From the Amended Statement in Support made pursuant to Order 16 rule 3(2)(a) of the National Court Rules filed on 16 April 2007, the Plaintiff relies on the following grounds for review:

"4.2 The decision by the Western Highlands Provincial Executive Council to revoke and appoint new members to the Provincial Education Board is ultra vires Sections 15(a)(d), 16(2) & 22(1)(2)(3) of the provisions of the Provincial Education Act of 2001 and Sections 31(2)(b) & 73(1)(2)(3) of the Education Act of 1983.

4.3 The appointment of the Chairman of the Provincial Education Board is also ultra virus Sections 22(1)(2)(3) of the Provincial Education Act of 2001 and Section 73(1)(2)(3) of the Education Act of 1983.

4.4 The revocation of the Plaintiff’s appointment was in breach of the principles of natural justice in that he was not given an opportunity to be heard before his appointment was revoked.

4.5 That the decision of the Provincial Executive Council was so unreasonable that no tribunal acting reasonably would have acted in the way the Western Highlands Provincial Executive Council did in relation to the revocation and appointment of the members of the PEB".

THE LAW

14. The application for Judicial Review is made pursuant to section 155(3)(a) of the Constitution and also Order 16 of the National Court Rules. Section 155(3)(a) of the Constitution gives the National Court an inherent power to review any decision of a person or authority exercising legislative powers and where the person affected by the decision has no right of appeal or has lost the right of appeal under the enabling legislation. In this case, the Plaintiff is affected by the decision of the First, Third and Fourth Defendants who have purported to exercise legislative powers under the Western Highlands Provincial Education Act No 1 of 2001 and in particular Amendment No 3 of 2006 to revoke his appointment as a member of the Western Highlands Provincial Education Board.

15. A Judicial Review is not the same as an appeal and the difference between the two is that in an appeal, the appeal Court hears the case a fresh by considering the evidence by way of a rehearing and it can substitute its own findings whereas in a Judicial Review the Court only looks at the procedures or processes used by the decision making authority to arrive at the decision and it is not concern with the decision itself. The authority for this principle of law is the case of Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122.

16. It is well established in administrative law that there are four main grounds upon which Judicial Review is based and these are:

(a) Substantive ultra vires.

It is to review "excess of power" or "jurisdictional facts" as well as constitutionality of administrative acts.

(b) Procedural ultra vires.

It is to review compliance of administrative decisions with statutory procedural requirements.

(c) Natural Justice.

It is to review the fairness and reasonableness of those administrative decisions including review of open motive and abuse of discretion.

(d) Error of Law.

It is to review administrative decisions that are wrong in law.

See p 22 of Administrative Law of Papua New Guinea by Michael Nttumy (1992) Pacific Law Press.

GROUNDS 4.2 & 4.3

17. I will address Grounds 4.2 and 4.3 together because they raise the issue of whether or not the First, Third and Fourth Defendants had the power or authority to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board. Also, whether or not the First, Third and Fourth Defendants had the power or authority to appoint the Second Defendant as Chairman of the Western Highlands Provincial Education Board.

18. However, I note in his written submissions, Mr Kunai of counsel for the Plaintiff has abandoned Ground 4.3 of the Review, hence I will not consider this Ground. I will only consider Ground 4.2 in this Judgment.

19. First, Mr Kunai submitted that the First, Third and Fourth Defendants had no authority or power to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board because the Plaintiff’s appointment was made by the Western Highlands Branch of PNGTA and was simply endorsed by the First, Third and Fourth Defendants. He submitted that the decision of the First, Third and Fourth Defendants were contrary to or in breach of the sections 15, 16 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 and also sections 31 and 73 of the Education Act 1983. As a result, the decision of the First, Third and Fourth Defendants is ultra vires.

20. In his alternative submissions, Mr Kunai argued that if the First Third and Fourth Defendants had passed amendments to sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 by Amendment No 3 of 2006 and it has come into force, then these amendments are inconsistent with sections 31 and 73 of the Education Act 1983 where these provisions provide for teachers’ representatives to be on the Western Highlands Provincial Education Board and their appointments is based on the recommendation of the PNGTA.

21. I deal first with Mr Kunai’s submission on sections 31 and 73 of the Education Act 1983 because it can easily be disposed off. I reject this argument because of one simple reason. The reason is this; the Fourth Defendant has a provincial legislation governing all education matters in the Western Highlands Province. I consider that section 31 of the Education Act 1983 applies only to provinces which do not have any provincial legislation governing education matters in their province. This is so because the preceding section, section 30 expressly states that Division 3 of which section 31 is part of applies to the National Capital District and those provinces that do not have in force a provincial law relating to education matters. I set them out in full for the benefit of all parties to emphasis the point.

"Division 3 - Administration of the National Education System in the National Capital District, etc.

Subdivision A - Application of Division.

30. Application of Division 3.

This Division applies to the National Capital District and those provinces that do not have in force a provincial law relating to education matters". (Emphasis is mine).

"Subdivision B - Education Boards.

31. Constitution.

(1) There shall be an Education Board for the National Capital District and each province to which this Division applies.

(2) Subject to this section, an Education Board shall consist of the officer responsible for superintending education matters in the National Capital District, or the province, as the case may be, and the following members appointed by the Minister:-

(a) three members to represent the views and interests of the State;

(b) two members appointed from a panel nominated by the Papua New Guinea Teachers' Association as representing the interest of teachers;

(c) three members appointed from a panel nominated by an association or associations jointly, recognized by the Minister as representing the views and interest of churches;

(d) two members appointed from a panel nominated –

(i) in the case of the National Capital District - by the National Capital District Commission to represent the Commission's interests; or;

(ii) in the case of a province - by an association or associations jointly recognized by the Minister as representing the interests of Local-level Governments in the province;

(e) two members nominated in a manner approved -

(i) in the case of the National Capital District-by the National Capital District Commission; or

(ii) in the case of a province - by the Provincial Administrator of that province,

on the recommendation of the officer superintending education matters or the Divisional Head representing community interests in the National Capital District or the province, as the case may be.

(3) A person who is or becomes -

(a) a member of the Parliament; or

(b) a member of a Provincial Government; or

(c) a member of a body established in pursuance of Section 4(4) (National Capital District) of the Constitution to govern the National Capital District,

is not eligible to be or to remain a member of an Education Board.

(4) In the event of a failure on the part of an association or associations referred to in Subsection (2)(b), (c) or (d) to nominate a panel in accordance with those paragraphs within, in the opinion of the Minister, a reasonable period after having been requested by him to do so, the Minister may, of his own motion, make the necessary appointment or appointments for the purposes of that subsection.

(5) If at any time there is, in the opinion of the Minister, no association or associations adequately representing an interest referred to in Subsection (2)(b), (c) or (d) the Minister may, of his own motion, make the necessary appointment or appointments for the purposes of that subsection".

22. And so, considering carefully sections 30 and 31 of the Education Act 1983, surely, one cannot miss the fact that they do not apply to a province that has its own provincial legislation governing its education matters. And I remember making this observation in my Judgment in Simon Opa & Board of Governors of Mount Hagen Park Secondary School -v- Hans Gima, Chairman of Western Highlands Provincial Education Board, Western Highlands Provincial Education Board Mann Tambili & The State (2008) N3343, where I said on pages 27 and 28 of the Judgment:

"The Western Highlands Province is one of the provinces in the country very fortunate to administer its component of the National Education system after "Waigani" decentralized its powers to the Provincial Governments and Local Level Governments through the process of reformation after the National Parliament passed the amendments to the Organic Law on Provincial Governments and Local Level Governments in 1995.

This was made possible when the Western Highlands Provincial Government enacted a provincial law to govern and regulate its education matters in the province subject to some areas where reference can be made to the Education Act 1983 and the Teaching Service Act 1988, like for appeals to the Teaching Service Commission. This provincial law is called the Western Highlands Provincial Education Act No 1 of 2001.

By contrast, sections 30 and 31 of the Education Act 1983 apply to provinces which do not have an Education Board. This is where in my view the Education Act 1983 is inapplicable in so far as matters concerning or relating to the Education Board. This because by section 42(1)(b) of the Organic Law on Provincial Governments and Local Level Governments, the Western Highlands Provincial Government legislature enacted the Western Highlands Provincial Education Act No 1 of 2001 to govern primary, "secondary", technical and vocational education, but not the curriculum of the schools. The determination of the curriculum is the responsibility of the national Minister for Education under section 27 of the Education Act 1983". (Emphasis is mine).

23. For this reason, I reject the submission of the Plaintiff based on sections 31 and 73 of the Education Act 1983 and will confine my decision to the provisions of the Western Highlands Provincial Education Act No 1 of 2001. Further, as sections 31 and 73 of the Education Act 1983 are incapable in this case, I consider that there is no inconsistency between sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 as amended by Amendment No 3 of 2006 with sections 31 and 73 of the Education Act 1983.

24. Now, proceeding on this premise, I accept the evidence of the Plaintiff that the Western Highlands Branch of the PNGTA under its Constitution selects two teacher representatives and usually it is the President and another member of the Provincial Executive to represent the teachers on the Provincial Education Board. But this is not what the law in section 15(2)(d) of the Western Highlands Provincial Education Act No 1 of 2001 states. On the contrary, the law under section 15(1) & (2)(d) states that:

"15. CONSTITUTION OF THE PROVINCIAL EDUCATION BOARD

(1) The Provincial Education Board is hereby established.

(2) Subject to this Section, the Provincial Education Board shall consist of:-

(a) ......

(b) ......

(c) ......

(d) two members appointed from a panel of names nominated by the associations representing the interest of teachers in the Province; and...

(3)

(a) The appointments made under Sub-section (c),(d),(e),(f),(g) and (h) shall be made by the Provincial Executive Council which have regard to the desirability of appointing persons with experience in education matters; and

(b) The appointment made under subparagraph 3(a) shall be by notice in the Provincial Gazette". (Emphasis is mine).

25. In my view, the answer to who should be appointed teacher representatives on the Western Highlands Provincial Education Board is found in section 15(2)(d) and the key words are two members appointed from "a panel of names nominated by the associations" representing the interest of teachers in the province.

26. And so, going by what section 15(2)(d) states, I consider that there must be a number of names of persons who are members of the Western Highlands Branch of the PNGTA submitted by the Western Highlands Branch of the PNGTA to the First, Third and Fourth Defendants for consideration for appointment as members to the Western Highlands Provincial Education Board. Out of the list of names, only two will be appointed by the First, Third and Fourth Defendants to the Provincial Education Board of the Western Highlands Province.

27. It appears to me that the appointment of teacher representatives to the Western Highlands Provincial Education Board is not an automatic right once one is elected President of the Western Highlands Branch of PNGTA. I say this because in section 15(3)(a) appointments of other members of the Western Highlands Provincial Education Board including teacher representatives such as the Plaintiff is made by the Provincial Executive Council.

28. That is the First, Third and Fourth Defendants in this case and not the Western Highlands Branch of the PNGTA. The Western Highlands Branch of the PNGTA only recommends or submits a list of names of teachers’ representatives to the Provincial Executive Council for a final decision.

29. That is why in my view under section 9(f) of the Western Highlands Provincial Education Act No 1 of 2001, the Provincial Executive Council of the Western Highlands Province is given the mandate to establish the Provincial Education Board and approve its membership etc.. By virtue of this mandate the First, Third and Fourth Defendants have the power or authority to establish it by making appointments of the members of Western Highlands Provincial Education Board.

30. And as noted above, the Provincial Education Board is established by section 15 of the Western Highlands Provincial Education Act No 1 of 2001 and briefly stating the membership, it comprises of the following members whose appointments shall be published in the Provincial Gazette:

1. The Education Advisor; and

2. A person responsible for advising the Provincial Administration on planning matters; and

3. Three (3) members appointed from a panel of names nominated by the Local Governments to represent their views and interests; and

4. Two (2) members appointed from a panel of names nominated by an association representing the interests of teachers in the Province; and

5. Three (3) members appointed from a panel of names nominated by an association or by associations jointly recognized by the Provincial Executive Council as representing the interests of churches;

6. One (1) person representing the interests of women in the Province;

7. One person representing business community; and

8. One member appointed by the Provincial Executive Council from a panel of list to represent District Education Board. (Emphasis is mine).

31. As it is the Provincial Executive Council that appoints the teachers’ representatives to be on the Education Board of the Western Highlands Province, the question is; who has the power or authority to revoke the appointments of the teachers’ representatives, in this case the Plaintiff from the Western Highlands Provincial Education Board?

32. Here I note that except for the power given to the Provincial Executive Council to terminate (revoke) the appointment of the members of the Western Highlands Provincial Education Board for "misbehaviour" or "incapacity" under section 16(4) of the Western Highlands Provincial Education Act No 1 of 2001, there are no expressed provisions in that Act giving the Provincial Executive Council power or authority to revoke appointments of teachers’ representatives like the Plaintiff in this case from the Western Highlands Provincial Education Board.

33. In the absence of any expressed power or authority in that Act, I resort to section 36(1) of the Interpretation Act which states that; "Where a statutory provision confers a power to make an appointment, the power includes, subject to Subsection (2), to remove or suspend a person so appointed". (Emphasis is mine).

34. This means that by section 36(1) of the Interpretation Act, the Provincial Executive Council, in this case the First, Third and Fourth Defendants have an implied power or authority under sections 15(2)(d) of the Western Highlands Provincial Education Act No 1 of 2001 to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board for reasons other than misbehaviour or incapacity.

35. Therefore, I must disagree with Mr Kunai’s submission that the First, Third and Fourth Defendants had no authority or power to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

36. Mr Otto of counsel for the Defendants made no submissions on this Ground. The only submission he made was that sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 were repealed by Amendment No 3 of 2001. The amendment meant that the two members representing the interest of teachers in the Western Highlands Province are now appointed by the Chairman of Education and District Education Board. It is no longer the Western Highlands Branch of PNGTA that makes the recommendation for appointment to the First, Third and Fourth Defendants.

37. He submitted that the amendments of these two provisions were sent to the Minister for Provincial and Local Level Governments Affairs and the Department of Provincial and Local Level Government Affairs for approval and certification but to date, he has not received confirmation if the amendments have been certified by the Minister for Provincial and Local Level Governments Affairs.

38. The problem with this argument is that, I do not have any evidence of the resolution of the First, Third and Fourth Defendants which amended these two provisions although Mr Otto attempted to hand up a copy from the bar table which I rejected and secondly, evidence of the actual date of the coming into operation of the amendments. If there were indeed amendments made to sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001, then it was incumbent on counsel for the Defendants to place the relevant materials before the Court to support this proposition. A simple telephone call to the Office of the Minister for Provincial Affairs and Local Level Governments or the Department of Provincial and Local Level Government Affairs wouldn’t hurt.

39. However, notwithstanding the absence of any evidence to the contrary, I am not prepared to find that sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 have not been amended. I say this because under sections 139, 140, and 141 of the Organic Law on Provincial Governments & Local Level Governments the amendments are not invalid by reason of non approval or certification by the Minister for Provincial and Local Level Governments Affairs. I consider that referring Amendment No 3 of 2006 to the Minister for Provincial and Local Level Governments Affairs is only a consultative process and should not be held against the Defendants if the process is completed. At the end of the day, the Amendment No 3 of 2006 has been passed by the Provincial legislature and that is the law for the Western Highlands Province at this present time.

"Division 5. - Consultation Generally.

139. Consultation generally.

(1) The Minister responsible for provincial government and local-level government matters shall, if so requested by the Head of a Provincial Executive, consult with the Provincial Executive Council on any proposed Act of the Parliament relating to subjects to which Section 42 and 44 apply.

(2) Failure to comply with Subsection (1) in relation to a law does not invalidate the law".

"Division 6. - Notice of Provincial Laws and Local-level Laws.

140. Notice of Provincial Laws and Local-level Laws.

(1) Failure to comply with this section in relation to a law does not invalidate the law.

(2) If-

(a) a Provincial Government or a Local-level Government asks the Minister responsible for provincial government and local-level government matters that the provisions of this section be waived in relation to any proposed provincial law or local-level law, or to any proposed amendments to a proposed provincial law or a local-level law; and

(b) the Minister thinks that it is in the public interest to do so,

the Minister may, in writing, waive the requirements of this section in relation to the proposed law or to all or any amendments to the proposed law.

(3) Before a provincial law or a local-level law is made, the Provincial Government or the Local-level Government shall give to the Minister responsible for provincial government and local-level government matters by registered post, or otherwise in the quickest practicable manner, copies of the text of the proposed law and of any amendments made or proposed to be made to the proposed law". (Emphasis is mine).

"Division 7. - Commencement of Provincial Laws and Local-level Laws.

"141. Commencement of Provincial Laws and Local-level laws.

(1) For the purposes of this section, "law relating to fiscal matters" means a law authorizing the appropriation of monies.

(2) Notwithstanding anything in any provincial law or local-level law, a Provincial Government or a Local-level Government has full powers to make laws as provided for in this Organic Law.

(3) The –

(a) Provincial Government, in the case of a provincial law; and

(b) Local-level Government, in the case of a local-level law,

shall serve a copy of the law, physically, on -

(c) the Minister -

(i) responsible for provincial government and local-level government matters in the case of a law not relating to fiscal matters; or

(ii) responsible for finance matters in the case of a law relating to fiscal matters; or

(d) the Attorney-General; or

(e) both the appropriate Minister under Paragraph (c) and the Attorney-General.

(4) Subject to Subsection (5), a provincial law or a local-level law shall not take effect until it is approved -

(a) in the case of a provincial law or local-level law not relating to fiscal matters - by the Minister responsible for provincial government and local-level government matters; or

(b) in the case of a provincial law or local-level law relating to fiscal matters - by the Minister responsible for finance matters.

(5) Where-

(a) in the case of a provincial law or local-level law not relating to fiscal matters - the Minister responsible for provincial government and local-level government matters; or

(b) in the case of a provincial law or local-level law relating to fiscal matters - the Minister responsible for finance matters,

has not made a decision as to whether or not to approve a provincial law or local-level law within 60 days on and from the date on which the law was served on him or on the Attorney-General, the law shall be deemed to have been approved by him". (Emphasis is mine).

40. I consider that according to section 141(5) of the Organic Law on Provincial Governments and Local Level Governments it provides that an amendment to the provincial law, in this case Amendment No 3 of 2006 to the Western Highlands Provincial Education Act No 1 of 2001 is deemed to have been approved by the Minister for Provincial and Local Level Government Affairs if no response is received within sixty days after it has been served on the said Minister.

41. Thus, it is my view that whilst there is no evidence from the Defendants that Amendment No 3 of 2006 to the Western Highlands Provincial Education Act No 1 of 2001 has been approved or certified by the said Minister, by law under section 141(5) of the Organic Law on Provincial Governments and Local Level Governments it is deemed to have been approved by the Minister for Provincial and Local Level Government Affairs if no response is received within sixty days after it is served on the said Minister.

42. Proceeding on this premise, I find that sections 15 and 22 of the Western Highlands Provincial Education Act No 1 of 2001 have been amended by Amendment No 3 of 2006. For our purpose, Amendment No 3 of 2006 amended section 15(2)(d) to read as follows:

"Two members appointed by the Provincial Executive Council from a panel of names submitted by the Chairman for Education and representing District Education Boards and others".

43. Thus, section 15(2)(d) as amended removes the power from the Western Highlands Branch of PNGTA to recommend the names of persons for consideration for appointment as members of the Western Highlands Provincial Education Board and vests it in the Chairman for Education and representing District Education Board and others.

44. Accordingly, I find that the First, Third and Fourth Defendants had the authority or power under section 15(2)(d) of the Western Highlands Provincial Education Act No 1 of 2001 as amended by Amendment No 3 of 2006 to appoint three other members to represent the interests of teachers in the Western Highlands Province on the Provincial Education Board. In so doing, impliedly and indirectly, the First, Third and Fourth Defendants revoked the Plaintiff’s appointment as a member of the same Provincial Education Board.

45. In the circumstances, I am not satisfied that the Plaintiff has made out this Ground of review and I dismiss it.

GROUND 4.4

46. Ground 4.4 raises the issues of whether or not the First, Third and Fourth Defendants were required to give the Plaintiff an opportunity to be heard before making the decision to revoke his appointment as a member of the Western Highlands Education Board and if so, whether the Plaintiff was indeed given an opportunity to be heard before the decision was made to revoke his appointment as a member of the Western Highlands Provincial Education Board.

47. Further, it raises the issue of whether or not the First, Third and Fourth Defendants were required to give reasons for their decision to revoke the Plaintiff’s appointment as a member of the Western Highlands Provincial Education Board. If so, whether they had given reasons for their decision to the Plaintiff?

48. I consider that there is nothing in the Western Highlands Provincial Education Act No 1 of 2001 that gives the Plaintiff or any member of the Western Highlands Provincial Education Board a right to be heard before any decision may be made in relation to the revocation of their appointment by the First, Third and Fourth Defendants.

49. It appears to me that the decision to revoke appointments of members of the Western Highlands Provincial Government is the prerogative of the First, Third and Fourth Defendants. The only provision which comes close and provides for the tenure of office of the members of the Western Highlands Provincial Education Board is section 16 which states as follows:

"16. TENURE OF OFFICE OF MEMBERS

(1) Subject to this Section 15(4) AND (17), the member referred to in Section 15(2)(b) holds office until his appointment is revoked.

(2) Subject to this Section, a member referred to in Section 15(2)(c),(d),(e),(f)(g) or (h) holds office for period of three years.

(3) Where in relation to the office if a member appointed under sections 15(2)(b),(c),(d),(e),(f), or (g) or (h) a casual vacancy occurs, the person appointed to be the alternate member shall be deemed to be appointed to fill the vacancy and shall, subject to this section, hold office from the balance of the term of office of the member in whose place he was appointed unless the Provincial Executive Council appoints another person to fill the vacancy within 28 days of the Provincial Education Board being informed of the casual vacancy in which case the person referred to in Section 16 shall continue to be the alternate member.

(4) The Provincial Executive Council may at any time by written notice advice a member of its intention to terminate his appointment for misbehavior or incapacity and if the member fails within 21 days of receipt of the notice to reply in writing to the satisfaction of the Provincial Executive Council, his appointment is terminated.

(5) A member shall be deemed to have vacated his office -

(a) if the appointment is terminated under this Act; or

(b) if he becomes a person referred to in section 15(4) or (17); or

(c) if he resigns from his office in writing addressed to the Provincial Executive Council and the resignation is accepted by it; or

(d) if he is absent, except on leave granted by the Provincial Education Board from three consecutive meetings of the Board.

(6) The Provincial Executive Council shall terminate the appointment of a Member appointed under section 15(2)(c), (d), (e), (f), (g) and (h) if the body or bodies referred to in those provisions so requests". (Emphasis is mine).

50. Under section 16(2), the other members including the two teacher representatives on the Western Highlands Education Board hold office for three years and by section 16(4), the Provincial Executive Council may at any time by written notice advice a member of its intention to terminate his appointment for misbehaviour or incapacity and if the member fails within 21 days of receipt of the notice to reply in writing to the satisfaction of the Provincial Executive Council, his appointment is terminated.

51. In my view, section 16(4) is a disciplinary provision because it gives the member(s) an opportunity to response to any allegation of misbehaviour against the member(s) before a decision to terminate the appointment of a member(s) by the Provincial Education Board is made. In the present case, I note that there is no allegation of misbehaviour being made against the Plaintiff nor is there evidence before me showing that the Plaintiff’s appointment was revoked because he was found guilty of misbehaviour.

52. Therefore, I find that the revocation of the Plaintiff’s appointment by the First, Third and Fourth Defendants was not for disciplinary reasons. And so, the requirement to be heard prior to the First, Third and Fourth Defendants’ decision to revoke his appointment under section 16(4) does not apply.

53. If the revocation of the Plaintiff’s appointment was not for disciplinary reasons, why was his appointment revoked? This is where Mr Kunai’s submission under section 59 of the Constitution is relevant. Section 59 states:

"59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly".

54. Under the principles of natural justice, there is a line of thought that before a judgment is passed on a person, that person must be first heard in his defence. This is where I appreciate Mr Kunai’s submission that the First, Third and Fourth Defendants ought to have given the Plaintiff an opportunity to be heard in his defence before any decision is made on his future as a member of the Western Highlands Provincial Education Board.

55. This is the "audi alteram partem" rule. There are many overseas and local case authorities on this legal principle which I need not refer to them all except for one which I consider very relevant to the present case and that is the case of Gerald Sidney Fallscheer -v- Iambakey Okuk & The State [1980] PNGLR 101. In that case, His Honour Mr Justice Greville Smith (as he then was) had a similar situation as the present case.

56. The Minister for Transport and Civil Aviation at that time, late Mr Okuk terminated the Plaintiff, Mr Fallscheer as General Manager of Air Niugini. Mr Fallscheer was then employed under a contract of employment. The relevant section of the National Airlines Commission Act 1973 provided that he could be terminated for inability, inefficiency, incapacity, or misbehaviour. He was terminated by the Minister for Transport and Civil Aviation for inefficiency. It was held that the audi alteram partem rule applied, that is the General Manager had a right to be given reasons for his dismissal and an opportunity to be heard in his own defence before being dismissed from office.

57. I adopt this principle in the present case and consider that as a matter of natural justice, the Plaintiff is entitled to be heard in his defence prior to any decision being made by the First, Third and Fourth Defendants to revoke his appointment as a member of the Western Highlands Provincial Education Board. It follows I also find that the Plaintiff was not given any opportunity to be heard prior to the revocation of his appointment as a member of the Western Highlands Provincial Education Board.

58. As the First, Third and Fourth Defendants are vested with the legislative power to make decisions on appointments and revocation of appointments, under the principles of nature justice they must be seen to act fairly. Here, I consider that one of their duty is to give reasons for their decisions, in this case, reasons for the decision to revoke the appointment of the Plaintiff. Proceeding on this premise, again, I find that the Plaintiff was also not given any reasons for the revocation of his appointment by the First, Third and Fourth Defendants.

59. Therefore, I am satisfied that the Plaintiff has made out this Ground of review and I uphold it.

GROUND 4.5

60. Under Ground 4.5, the Plaintiff questions the reasonableness of the decision to revoke his appointment as a member of the Western Highlands Provincial Education Board by the First, Third and Fourth Defendants.

61. The principle of reasonableness of the decision was developed in the English case of Associated Provincial Picture House -v- Wednesbury Corporation [1948]1KB 230. It is said that the "The exercise of a discretion must be real, matters which ought to be considered must be; conversely irrelevant collateral matters must be disregarded. Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, "... in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether": see Lord Greene MR in Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230". Per McDermott AJ in Joseph Lemuel Raz -v- Paulus Matane & Ors [1986] PNGLR 38 at 53.

62. Further on, on page 53 of Joseph Lemuel Raz’s case (supra) His Honour McDermott AJ referred to another English case of Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064 where this principle of reasonableness was further expounded by Lord Diplock where His Lordship said:

"My Lords, in public law ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt."

63. The case of Tameside Metropolitan Borough Council’s case (supra) involved ministerial intervention in the adoption and implementation of a new policy proposed by a local education authority. Contrary to the view of the authority, the Minister came to the conclusion that the time available before the commencement of term was insufficient to permit its implementation without considerable difficulties:

"It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, per Lord Greene MR, at 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? ..." (at 1064-1065.)

64. And so, bearing these principles in mind, the question I ask is did the First, Third and Fourth Defendants take into account relevant considerations when reaching the decision to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board? Next question is, what are the considerations the First, Third and Fourth Defendants ought to have taken into account when deciding the question of revocation of the Plaintiff’s appointment?

65. Mr Kunai submitted that the First, Third and Fourth Defendants failed to take into account the following matters which were relevant when deciding the question of revocation of the Plaintiff’s appointment as a member of the Western Highlands Provincial Education Board:

1. The Plaintiff is a career teacher;

2. Had the necessary experience; and

3. The President of the Western Highlands Branch of PNGTA.

66. He submitted that these three considerations or matters make the Plaintiff a fit and proper person to be on the Provincial Education Board of the Western Highlands Province. The Defendants do not dispute that the Plaintiff is a teacher having served for many years and has the necessary experience as a teacher and also as an administrator when serving as the President of the Western Highlands Branch of PNGTA for some years now.

67. I accept that these considerations or matters such as the Plaintiff being a career teacher, had the experience and being the President of the Western Highlands Branch of PNGTA relevant and ought to have been taken into account when the First, Third and Fourth Defendants were deciding whether or not to revoke the Plaintiff’s appointment as a member of the Western Highlands Provincial Education Board.

68. I find that there is no evidence from the Defendants that these considerations or matters were taken into account by the First, Third and Fourth Defendants when they decided to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board. In other words, there is no evidence before me to show what considerations or matters the First, Third and Fourth Defendants took into account when they revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

69. In the absence of any evidence to the contrary, I find that the First, Third and Fourth Defendants took irrelevant considerations or matters into account in their decision. In my view, these three considerations or matters favour very much the Plaintiff. The decision of the First, Third and Fourth Defendants in my view is illogical and runs contrary to the well established principles of public administration where appointments are made on merits, experience and performance.

70. It follows that I find that the decision of the First, Third and Fourth Defendants to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board unreasonable and irrational when considered against these three considerations or matters I have referred to above.

71. In the end, I am satisfied that the Plaintiff has made out Ground 4.5 of the review and I uphold it.

CONCLUSION

72. In conclusion, I note the Plaintiff is one of the members of the Western Highlands Provincial Education Board who is being affected by my Judgment in the Simon Opa’s case (supra) where I ordered that the present members be replaced by the Provincial Executive Council of the Western Highlands Province. I so ordered in that case because the present members of the Western Highlands Provincial Education Board were responsible for the appointment of the Third Defendant (Mann Tambili) and revocation of the First Plaintiff (Simon Opa) as acting Principal of Mt Hagen Park Secondary School on 3 December 2007.

73. This was after I found that the Western Highlands Provincial Executive Council was not legally constituted because the heads of Local Level Governments and Urban Authorities were no longer members of the Provincial Executive Council after the repealing of section 10(3) of the Organic Law on Provincial Governments and Local Level Governments came into effect in January 2007, hence their decision to appoint the members of the Western Highlands Provincial Education Board was null and void and I said that:

"In all fairness and without any prejudice to the First Plaintiff and also the Third Defendant, the fresh submission for the appointment of the members of the Second Defendant including the Chairman of the Second Defendant must be persons other than those named in the instrument of appointment of 3 December 2007 marked as Annexure "B1" to the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6").

In other words, Hans Gima as Chairman or his alternate and the following members, Kaping Isong or his alternate Ben Laki, John Davis or his alternate Paraka Nii, Pais Kar Tiki or his alternate Ambrose Pale, Aita Sanangjepe or his alternate Anthony Raus, Pauline Malau or her alternate Mitine Mugeng, Matrus Mel or his alternate Tenda Wak, Wankani Yan Yan or his alternate John Mar, Joseph Kakaru or his alternate Fuapo Poke, Ludi Goi or his alternate Philip Bobby, Peter Suri or his alternate Clement Kaip, Bob Gek or his alternate John Kaewa, Glen Kundun or his alternate Michael Mondo, Monica Rokupa or her alternate Cathy Rumints, Joseph Kombul or his alternate Kadet Aipe, Peter Wama or his alternate Robert Wayne should not be considered for appointment at this point in time until this dispute on the appointment of Principal of Mt Hagen Park Secondary School including other schools affected by the decision of the First and Second Defendants are resolved.

I have laboured to specifically name these persons so that any new appointment of the members of the Provincial Education Board of the Western Highlands Province will at least be made up of persons who were not part of the decision making process in this application for judicial review in this case. Also, the new members will be free to make an unbiased and independent judgment on the appointment of a Principal of concerned school. I am sure there are many good and respectable and of course experience people out there including representatives from the Churches who can be appointed in place of the current members. I have no doubt they will serve well the people of Western Highlands Province if they were considered for appointment on the Provincial Education Board of this province. I leave this decision to the appropriate authority to make". (Emphasis is mine).

74. I have no information by way of evidence on the status of my Order and so I must assume that the Order has been complied with. That is, the Provincial Executive Council of the Western Highlands Province must have appointed new members of the Provincial Education Board in compliance with my Order of 31 March 2008. Hence it would not only be a futile exercise but would render any further Order I may make nugatory if I were to order that the Plaintiff’s revocation by the First, Third and Fourth Defendant be quashed and the Plaintiff continue as member of the Western Highlands Provincial Education Board.

75. In my view, events have over taken the whole process of the application for Judicial Review since the First, Third and Fourth Defendants made their decision to revoke the Plaintiff’s appointment as a member of the Western Highlands Education Board on 9 May 2006. This is notwithstanding the Court Order of 23 October 2006 restraining the Defendants from implementing or giving effect to their decision to revoke the Plaintiff’s appointment until the substantive application for Judicial Review is heard and determined by this Court.

76. It is also my view that the Court Order of 23 October 2006 has now been superseded by the Court Order of 31 October 2008 in the Simon Opa’s case (supra) which effectively and indirectly set aside or dissolved the Court Order of 23 October 2006 and allowed the Provincial Executive Council of the Western Highlands Province to appoint new members of the Provincial Education Board. If the Order of 31 March 2008 in Simon Opa’s case (supra) is given effect, the Plaintiff will not be considered for reappointment.

77. But a word of caution is necessary here. The Court Order of 31 March 2008 in Simon Opa’s case (supra) is only a temporary one. It is directed to the Provincial Executive Council of the Western Highland Provincial Government to appoint members of the Western Highlands Provincial Education Board to decide the future Principal of Mt Hagen Park Secondary School and perhaps those schools in the Western Highlands Province who are also affected by the decision of the Western Highlands Provincial Education Board in relation to appointments, transfer and revocation of appointments of teachers, principals and headmasters of various schools are concern.

78. Once all these matters are attended to, which will essentially mean complying with the Court Order of 31 March 2008, the members of the Education Board led by Hans Gima as Chairman are immediately to be restored as members to see out the whole of 2008 school year.

79. In the end, since Judicial Review is a discretionary relief, I am of the view that to uphold the application for Judicial Review would be detrimental for the good administration of the Western Highlands Provincial Education Board where there is already a previous Order of this Court in the Simon Opa’s case (supra) to appoint new members of the same Education Board. It would conflict with the previous Order of 31 March 2008 and cause confusion amongst the parties. Confusion will arise as to the membership and the running of the Western Highlands Provincial Education Board in terms of calling of and holding of meetings and which members to hold such meetings.

80. For these reasons, whilst I have upheld two Grounds of the application for Judicial Review, they being breach of natural justice and decision of the First, Third and Fourth Defendants being so unreasonable and irrational, I will not grant the reliefs sought by the Plaintiff because it would be detrimental to good administration.

81. This does not mean that the Plaintiff is without a remedy. I am of the view that the Plaintiff may sue the First, Third and Fourth Defendants to recover damages for the revocation of his appointment as a member of the Western Highlands Provincial Education Board on the basis that the decision to revoke his appointment was unlawful pursuant to the Grounds that I have upheld in this application for Judicial Review.

82. As His Honour Mr Justice Gavara Nanu did in the case of Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123, where His Honour said that:

"The primary purpose of a judicial review is to determine whether the administrative action being reviewed was legal. In termination cases, it is to determine whether the termination was legal or lawful. The customary scope of judicial review therefore, is confined to question of legality. However, in this jurisdiction, the Courts have gone beyond the customary scope by using their equitable inherent supervisory review jurisdictions to order reinstatement of officers terminated unlawfully where the circumstances of the cases warranted reinstatements, and if reinstatement was the fair and adequate remedy for the Plaintiff, as in Godfrey Niggints' case. The threshold question is - What is a fair and adequate remedy for the Plaintiff/Applicant whose termination is declared unlawful and is therefore null and void? If the fair and adequate remedy is reinstatement then subject to Order 16 Rule 4 of the National Court Rules, such remedy should be readily granted by the Courts. In considering Order 16 Rule 4, the primary issue is whether there had been an undue delay, if not, the related issue is whether the reinstatement is likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would be detrimental to good administration, see Steven Pupune & 7 Ors -v- Aita Ivarato & Ors. N1539 at page 6 and NTN Pty Ltd -v- Post & Telecommunications Corporation. [1987] PNGLR 70. If reinstatement is refused in cases with exceptional circumstances such as those in this case because of undue delay and the other factors in Order 16 Rule 4, the Court can in my opinion, properly invoke its inherent equitable jurisdiction under s. 155 (4) of the Constitution to order that the officer be treated either as having been retired or retrenched and be compensated in accordance with the appropriate rates in the Public Services General Orders. Such Orders would in my opinion accord with the principle of fair and adequate remedy and would be appropriate to do justice in the circumstances of such cases". (Emphasis is mine).

83. In the earlier case of Christopher Appa -v- Peter Wama & Ors [1992] PNGLR 395, His Honour Mr Justice Woods (as he then was) took a similar approach, when he refused to reinstate the Applicant even though his Honour found that the Plaintiff’s termination was unlawful and held that the Plaintiff's remedy was in damages. However, his Honour held that the damages had to be determined under the Employment Act, (Ch. No. 373).

84. And so to sum up, I am of the view that this is one of such cases where even though I have found that the revocation of the Plaintiff as a member of the Western Highlands Provincial Education Board was unlawful, null and void as it was in breach of the principles of natural justice and also unreasonable and irrational in the circumstances of the case, I will not grant the application for Judicial Review but I will order that the Plaintiff is at liberty to file fresh proceedings to recover any damages against the First, Third and Fourth Defendants.

COSTS

85. Costs are awarded at the discretion of the Court. See Order 22, rule 4 of the National Court Rules. In a usual case, it is awarded to the successful party in the litigation. In this case, as I have upheld the application for Judicial Review on two Grounds but have not granted the Orders sought in the application, I have nonetheless decided to give costs to the Plaintiff for being put through the trouble and experience of litigating this dispute and incurring costs.

ORDERS

Accordingly, I make the following formal Orders of the Court:

1. The application for Judicial Review is dismissed.

2. The Ex parte Interim Injunction Order of 23 October 2006 is discharged forthwith.

3. The Plaintiff is at liberty to file fresh proceedings to recovery any damages against the First, Third and Fourth Defendants.

4. The Defendants shall pay the Plaintiff’ costs of the application for Judicial Review to be taxed if not agreed.

5. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

__________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Mawa Lawyers: Lawyers for the Defendants