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Elema v Kali [2016] PGNC 255; N6450 (21 September 2016)

N6450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) No. 191 OF 2014

BETWEEN:


SALAMO ELEMA
Plaintiff


AND
JOHN M. KALI in his capacity as SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
First Defendant


AND

HON. SIR PUKA TEMU, MP as MINISTER FOR PUBLIC SERVICE

Second Defendant


AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant


Waigani: Nablu, J

2016: 6th June &21st September


JUDICIAL REVIEW – Revocation and appointment of the Insurance Commissioner- Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2005 ss.4, 5, 6 & 9 – Insurance Act ss. 5 & 6 – No evidence of the instrument for the Acting Appointment – Temporary appointments – Head of State makes acting appointments – Judicial Review application granted.


Cases cited:
MisionAsiki v. ManasupeZurenouc (2005) SC 797
RikiMitio v. William Gardner (2005) N2792


Counsel:


R.Joseph, for the Plaintiff

A.Kongri, for the Defendants


JUDGMENT


21st September, 2016


1. NABLU, J: Salamo Elema, the plaintiff was granted leave to review the decision of the Minister for Public Service to revoke his appointment as the Acting Insurance Commissioner and the subsequent appointment of Mr George Awap as the Acting Insurance Commissioner on 2nd of April 2014. The decision to appoint Mr Awap was made by the Minister for Public Service and published in the National Gazette No. G129 and dated 2nd April 2014. The decision to revoke the plaintiff’s purported appointment as the Acting Commissioner was conveyed to the plaintiff by way of a letter dated 3rd April 2014 from the Secretary for the Department of Personnel Management, the first defendant.


2. The plaintiff filed the notice of motion pursuant to Order 16 Rule 5(1) of the National Court Rules on 28th April 2014. The plaintiff seeks various declaratory orders and orders in the nature of certiorari to quash the two decisions. They are the decision to revoke his appointment as the Acting Insurance Commissioner and the decision to appoint George Awap as the Acting Insurance Commissioner.


3. The plaintiff filed his affidavit on 10th April 2014 as evidence in support of his claim. The affidavit is contained in the Review Book (document No. 7). The defendants did not file any affidavits in response. I assume, because they are of the view that there is no dispute as to the material facts. The questions for determination by this Court are primarily questions of law.


4. By way of background, the plaintiff was 54 years old at the time he filed his affidavit. He had a Bachelor of Economics Degree and an Honours Degree in Economics. After graduating from the University he was employed in various capacities with the Department of Finance and Planning. In 1997, he was appointed the Insurance Commissioner. Since then he has served as the Insurance Commissioner or Acting Insurance Commissioner for the past 17 years. He was appointed the Insurance Commissioner from 1997 to 2000. Then he was appointed the Acting Insurance Commissioner from the years 2000 to 2001. He was then appointed as the Insurance Commissioner from 2001 to 2004. It is unclear what happened between the years 2004 to 2007. In 2007 he was appointed the Insurance Commissioner for a third term. The appointment was for a period of 4 years which lapsed on 21st June 2011. In his affidavit, the plaintiff annexes a copy of the executed Employment Contract. It is not disputed that his Contract expired on 21stJune 2011.


5. What is disputed and what I believe is the central issue before the Court to determine is the question of the plaintiff’s status between the period from 21st June 2011 to 2nd April 2014. Was the plaintiff duly appointed as the Acting Commissioner? If the answer to the first question is in the affirmative, then the next issue is whether the plaintiff’s appointment was lawfully revoked and whether Mr Awap’s subsequent appointment is valid. If, however, the answer to the first issue is in the negative, then the next question is whether the purported appointment of Mr Awap was valid?


6. According to the plaintiff’s affidavit he states that he continued in office as the Acting Insurance Commissioner. He concedes that he was not formally re-appointed under a written contract since 2007. He maintains that he was acting in the position for over 2 years. He stated that the salary and entitlements he enjoyed in his third term of office continued despite the expiry of his contract. He also concedes that he was not offered an extension for a further period of 6 months. This option is usually invoked where the appointing authority is of the view that it is in the best interests of the State to extend the contract.


7. The parties agreed that the following legal issues are before this Court for determination. The legal issues are contained in the Statement of Agreed and Disputed Facts which was filed on 21st October 2014.


  1. Whether the decision of the first defendant as stated in his letter dated 3rd April 2014 to the plaintiff revoking and dismissing the plaintiff’s appointment as Insurance Commissioner, either in acting capacity or otherwise is unlawful and void and in breach of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and related and/or applicable provisions stipulated therein.
  2. Whether the first and second defendant’s appointment and subsequent gazettal of the appointment of George Awap in the National Gazette No. G129 dated 2nd April 2014 is unlawful and void and in breach of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and related and/or applicable provisions stipulated therein.
  3. Whether the revocation and or dismissal of the plaintiff as Insurance Commissioner, either in his acting capacity or otherwise, as stated in the letter dated 3rd April 2014 from the first defendant is unlawful and/or void and in breach of the Insurance Act 1995.

  1. Whether the revocation or dismissal of the plaintiff, without giving the plaintiff an opportunity to be heard and without any reason at all, is unjust and unfair and invalid as per the Constitution and in light of the plaintiff’s right to be afforded natural justice.
  2. Whether the revocation or dismissal of the plaintiff as Insurance Commissioner, either in his acting capacity or otherwise, as stated in the letter dated 3rd April 2014 from the first defendant to the plaintiff and/or as implied by the appointment of George Awap as Acting Insurance Commissioner as published in the National Gazette No. G129 dated 2nd April 2014 is unjust, harsh and or oppressive and is unlawful and/or void in accordance with the plaintiff’s rights under the Constitution of the Independent State of Papua New Guinea.
  3. Whether the revocation or dismissal of the plaintiff as Insurance Commissioner as stated in the first defendant’s letter dated 3rd April 2014 to the plaintiff and/or as implied by the appointment of George Awap as Acting Insurance Commissioner as published in the National Gazette No. G129 dated 2nd April 2014, is so unreasonable that a reasonable tribunal or person cannot be able to make that decision in such circumstances which is so unfair and unreasonable to the plaintiff and therefore the decision is void or unlawful as per the Wednesbury principle of Reasonableness.
  4. Consequently and in view of the foregoing, whether the defendant’s decision to revoke the plaintiff appointment was thereby ultra vires his powers under the Public Service Management Act and related legislation.

8. The plaintiff challenges the decisions on five (5) grounds. They are as follows:


  1. Abuse of power or contravention of Section 7 and/or 9 of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004.
  2. Abuse of power/excess of jurisdiction – breach of sections 4,5,6 and or 9 of the Regulatory Statutory Authorities Act (Appointment to Certain Officers) Act 2004.
  3. Breach of Section 11 of the Insurance Act 1995.
  4. Denial of Natural Justice.
  5. Unreasonableness.

The Law
9. Judicial review applications proceed in two stages. The first stage, is that the plaintiff must make out one or more of the grounds of review. If the plaintiff has made out one or more of the grounds of review then the plaintiff must also make out a case for the relief sought: MisionAsiki v. ManasupeZurenouc (2005) SC 797.


10. The appointment of chief executive officers or non- ex officioboard members of Statutory Authorities have been the subject of judicial consideration over the years since the introduction of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (hereinafter referred to as the RSA Act).


11. According to my brief research of the case authorities, the issue of the appointment and revocation of appointment of a Chief Executive Officer of a Statutory Authority was first canvassed by Davani, J in RikiMitio v. William Gardner (2005) N2792. In that case, the revocation of the appointment Chief Executive Officer of the Coffee Industry Corporation was in issue.


12. Her Honour held that first there must be proof that the Statutory Authority or body is an authority or body that comes within the ambit of the law. Despite the fact that the Statutory Authorities have their own governing legislation, those respective laws must be read subject to Part VIIA of the RSA Act. The process of appointment, suspension and dismissal of the Chief Executive Officers is provided for under Part VIIA of the RSA Act.


13. According to Sections 4, 5 and 6 of the RSA Act, the appointment of the Chief Executive Officers and non ex - officio members of the Board are made by the Head of State, acting with and in accordance with the advice of the National Executive Council (NEC). The NEC provides the advice following consideration of the recommendations from the respective Minister, Board and Public Services Commission.


14. Temporary appointments are made by the Head of State after considering the recommendations by the Minister. This process is provided for under Section 9 of the RSA Act.


15. The Insurance Commissioner’s office is created by Section 5 of the Insurance Act 1995. The Commissioner is responsible for the administration of the Act. The manner of appointment, suspension and dismissal of the Commissioner are provided for under the RSA Act. According to Section 6(1) of the Insurance Act, the period of appointment of a Commissioner is specified in the instrument of appointment. A person who is over the age of 65 is not eligible for appointment as the Commissioner. The salaries and entitlements of the Commissioner are subject to the Salaries and Conditions Monitoring Committee Act 1988.


16. The Minister may terminate an appointment of the Insurance Commissioner where the Commissioner becomes permanently incapable of performing the duties, or he resigns from his office, or he or she engages in other paid employment, becomes bankrupt or where he is convicted of an offence where the punishment imposed is for a period of more than a year of imprisonment or death (Section 11 of the Insurance Act.).


Grounds of Review
17. I now turn to the grounds of review. I will consider the first ground of review because it is a pertinent legal issue. First, we have to establish whether there was a vacancy in the office of the Insurance Commissioner and whether the plaintiff was appointed as the Acting Insurance Commissioner.


18. The plaintiff argued that he was the Acting Insurance Commissioner at the time his appointment was revoked. However, in the evidence before me, there is no instrument of appointment to support his assertion. There is also no Gazettal notice to support this contention. This Court has the duty to take judicial notice of the content of the National Gazette (Section 52 of the Evidence Act). The absence of a gazettal notice or appointing instrument denotes that there is no appointment. Therefore, I find that the plaintiff was not duly appointed to act as the Insurance Commissioner. Furthermore, the plaintiff’s contract of employment expired on the 21st June 2011. There is no Gazette notice, there is however, a copy of an NEC decision No.182/2007, which provides evidence of the plaintiff’s appointment as the Insurance Commissioner for a period of four (4) years. The plaintiff tenure of employment lapsed on the 21st of June 2011.


19. The first ground of review which the plaintiff relies on is that the defendants abused their powers and breached Sections 7 and or 8 of the RSA Act.


20. The defendants on the other hand, argued that the plaintiff’s contract had expired and therefore, there was a vacancy in the office of the Insurance Commissioner.


21. I am of the view this ground of review has not been made because the plaintiff was not formally appointed the Acting Insurance Commissioner.


22. The question posed is, whether the plaintiff is able to assume office without proper instruments of appointment. There is no issue that the Insurance Commissioner’s Office is an office where the appointment process of the Commissioner is subject to the RSA Act.


23. According to Section 4(1) of the RSA Act, when the office of the chief executive officer of a Regulatory Statutory Authority is vacant, or is likely to become vacant, the Board can either consider whether to re-appoint the incumbent for a further term, or declare the office vacant and proceed to advertise the position and invite applications. The recruitment process is the merit based selection and appointment process which is provided under Section 5 of the RSA Act.


24. There is no issue here as to whether there was a vacancy. It is clear that the plaintiff’s contract of employment had expired. There is no formal re-appointment or acting appointment of the plaintiff to the position. Therefore there was a vacancy in the office of the Insurance Commissioner.


25. The process of acting appointments is provided under Section 9(1) of the RSA Act. Temporary appointments are made in two situations, where the CEO is unable to undertake his duties for any reason; or where the Board considers it necessary to make an appointment pending a new substantive appointment. In the present case, the second option is applicable to the facts of this case.


26. The process is initiated when the Board recommends a suitable person to the Minister to act in the position. The acting period is for a period not exceeding three (3) months. The Board decides on who is suitable from a pre-selected list of suitable person endorsed by the Ministerial Executive Appointment Committee. The assessment criteria is the prescribed minimum person specification. The Ministerial Executive Appointments Committee then advises the Head of State to make the acting appointment. (Section 9 of the RSA Act).


27. It is clear that there is no evidence to support the plaintiff’s assertion that he was appointed as the Acting Insurance Commissioner. His appointment lapsed in June 2011. Despite the fact that the Section 4 process was not complied with, the plaintiff was not duly appointed to act in the position. Therefore, was not properly appointed to the position. The plaintiff in his affidavit states that he attempted to follow up with the authorities in regards to his acting appointment, however such attempts were futile.


28. Whilst I sympathise with the fact that the plaintiff attempted to follow up on his re-appointment, I am not persuaded by that argument. There is no evidence in his affidavit which points to his efforts or attempts to contact the Authorities. It appears that the plaintiff just continued on in the position and assumed he was re-appointed or would be re-appointed as the Commissioner.


29. Because he was not the Acting Insurance Commissioner or incumbent, I am not convinced that the defendants breached those provision of the RSA Act
which relate to the revocation of his purported acting appointment. I find no error of law committed by the defendants. The plaintiff was not the Insurance Commissioner nor was he acting in the position of the Insurance Commissioner. Therefore, there is no breach of Section 7 of the RSA Act as contended by the plaintiff. Judicial review is an equitable remedy and therefore, he who comes to equity must come with clean hands. He cannot come to Court now to complain about the process of revocation. The plaintiff is still at liberty to consider his options to make a civil claim for damages for the period after his Contract expired, if he feels wronged by the Authorities. But, from the evidence before me, he was still paid his salary and entitlements as the Insurance Commissioner during this period. This may be an issue with regard to any claim by the plaintiff.


30. In regard to the question of whether Mr George Awap’s appointment was flawed, the crux of the plaintiff’s argument is that he was not removed properly or according to the process under the RSA Act, therefore the subsequent appointment of Mr Awap is null and void and of no effect.


31. On the other hand, the defendant’s concede that the appointment of Mr Awap appears to be flawed. However, they urged the court to note that the office of the Insurance Commissioner is vacant. Furthermore, the counsel submitted that the plaintiff has no standing to challenge the decision because of the fact that he was not the Acting Insurance Commissioner.


32. In regard to the question of the standing, I am of the view that the plaintiff had sufficient interest at the time and he was the incumbent prior to the appointment of Mr Awap. It is clear from the evidence before me, that Mr Awap’s appointment is flawed. According to Section 9 of the RSA Act, the process for temporary appointment is clear. Where the Board considers it necessary to make an acting appointment pending a new substantive appointment, the Board shall recommend to the Minister a suitable person to act for a period not exceeding 3 months.


33. For those reasons, I dismiss the first ground of review.


34. Upon receipt of the recommendation under (1), the Ministerial Executive Committee shall advise the Head of State to make an appointment. The process under s.9 of the RSA Act is expressed in mandatory terms.


35. It is clear from the evidence before me, and I take judicial notice of the National Gazette G129 of 2014 (Annexure C of the affidavit) that the Minister made that appointment of the Acting Insurance Commissioner which is contrary to Section 9(2) of the RSA Act. The lawful authority to make the acting appointment is the Head of State. The Minister exceeded his jurisdiction and thereby committed an error of law and breached of Section 9(2) of the RSA Act.


36. It is clear that the Minister did not have the power to appoint an Acting Insurance Commissioner. In doing so, he acted ultra vires in the manner as contended by the plaintiff. For that reason, I am satisfied that the plaintiff has made out this ground of review.


37. In regards to the relief sought, I am of the opinion that the only relief appropriate in the circumstances is an order in the nature of certiorari quashing the appointment of Mr George Awap as a consequence the effect is that the office of the Insurance Commissioner would become vacant pursuant to Section 4 of the RSA Act and the appointing body should then take necessary steps to fill the vacancy in due course.


38. It is not necessary for me to consider the other grounds of review or issues. The finding that the plaintiff was not the Acting Insurance Commissioner and that the purported Acting appointment was flawed, naturally in my view brings an end to the proceedings.


39. Generally, costs follow the event, however in the present case both parties conduct or lack of action attributed to the dispute. The defendant’s did not proceed with the re-appointment or the advertisement quickly thus leaving the plaintiff to assume the role and exercised the powers of the Insurance Commissioner without lawful authority following the expiry of his conduct. Therefore, I exercise my discretion to order that both parties bear their own costs.


Court Order:


  1. The plaintiff’s application for judicial review is granted.
  2. It is declared that the appointment and subsequent gazettal of the appointment of George Awap in the National Gazette No. G129 dated 2nd April 2014 by the second defendant is unlawful, null and void as it contravenes Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004.
  3. The second defendant’s decision to appoint George Awap and the subsequent gazettal of the appointment of George Awap in National Gazette No. G129 dated 2nd April 2014 is brought into this Court and quashed forthwith.
  4. Each party to bear their own costs.

___________________________________________________________
RageauManua&Kikira Lawyers: Lawyers for the Plaintiff
Kongri Lawyers : Lawyers for the Defendants


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