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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 124 OF 2020
ALICE HONJEPARI, ACTING CHIEF EXECUTIVE OFFICER, WESTERN PROVINCIAL HEALTH AUTHORITY
Plaintiff
V
DR NIKO WUATAI, CHIEF EXECUTIVE OFFICER,
WESTERN PROVINCIAL HEALTH AUTHORITY
First Defendant
MUSJE WERROR, BOARD CHAIRMAN,
WESTERN PROVINCIAL HEALTH AUTHORITY
Second Defendant
WESTERN PROVINCIAL HEALTH AUTHORITY
Third Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Cannings J
2020: 8th, 19th, 29th May, 24th June
JUDICIAL REVIEW – review of decision of board of provincial health authority to appoint chief executive officer – Provincial Health Authorities Act 2007, s 29– whether decision lawfully made by board – whether there was a merit-based selection process approved by Secretary for Personnel Management – whether lack of participation by representatives of relevant National Government Departments rendered the decision unlawful – whether engagement by board of private recruitment agency was lawful – ultra vires – error of law on face of record – unreasonableness.
The position of chief executive officer of a provincial health authority was advertised by a private employment agency, on behalf of the board of the authority. The plaintiff and the first defendant applied for the position. They were interviewed and assessed in a process facilitated by the private employment agency. On the same day that the interviews and assessments were completed, there was a board meeting and a decision was recorded, later published in the National Gazette, to appoint the first defendant. The plaintiff was aggrieved and, having been granted leave by the court, applied for judicial review of the gazetted decision of the board, relying on three grounds of review: ultra vires, error of law on the face of the record and unreasonableness. Four separate arguments were put in support of those grounds: (1) the board was not properly constituted for the meeting at which the decision to appoint the first defendant was recorded as being made, resulting in the decision being made, not by the board but by its chairman (the second defendant), (2)the selection process was not approved by the Secretary for Personnel Management, (3) there was no participation in the interview process by representatives of either the Department of Health or the Department of Personnel Management and (4) giving a central role to the private recruitment agency was improper; all of which was alleged to be contrary to s 29 of the Provincial Health Authorities Act, which provides a mandatory procedure for appointment of the chief executive officer.
Held:
(1) There was a quorum for the board meeting at which the decision was recorded as having been made to appoint the first defendant, and it was a collective decision made by the members of the board present. The decision was the board’s, not the chairman’s.
(2) The plaintiff failed to prove that the selection process was not approved by the Secretary for Personnel Management, and in the absence of any indication by the State (the fourth defendant) that the process was unapproved, it was reasonably to be inferred that the Secretary had in fact approved the process.
(3) It is not a statutory requirement that representatives of the Department of Health or the Department of Personnel Management participate in the interview or assessment of candidates, so their lack of participation was inconsequential.
(4) There is no law that prohibits the involvement of a private employment agency in the appointment process, and there was no evidence that the agency had acted or been engaged improperly.
(5) As all arguments for the plaintiff were rejected, all grounds of judicial review were refused. An interim order, staying the first defendant’s appointment, was dissolved, and the proceedings were dismissed.
Cases Cited
The following cases are cited in the judgment:
Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)
Anton Yagama v Peter Charles Yama (2013) SC1244
Dopsie v Tetaga (2009) N3720
Galem Falide v Registrar of Titles (2012) N4775
Jamie Maxton-Graham v Electoral Commission (2016) SC1559
Re Vela Konivaro, Clerk of the National Parliament (2015) N5977 (LT)
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Vincent Kerry v The State (2007) N3127
JUDICIAL REVIEW
This was an application for judicial review of the decision of the board of a provincial health authority to appoint the chief executive officer of the authority.
Counsel
G Bon, for the Plaintiff
R Uware, for the Defendants
24th June, 2020
1. CANNINGS J: This case is a challenge to the appointment of the Chief Executive Officer of the Provincial Health Authority for Western Province.
That position was in January 2020 advertised by a private employment agency, Vanguard International, acting on behalf of the Board
of Governance of that Authority.
2. The plaintiff, Alice Honjepari, and the first defendant, Dr Niko Wuatai, applied for the position. They were in a shortlist of six applicants who were interviewed and assessed in a process facilitated by Vanguard. On the same day that the interviews and assessments were completed, there was a board meeting and a decision was recorded, later published in the National Gazette, to appoint Dr Wuatai.
3. The plaintiff was aggrieved and, having been granted leave by the court, applied for judicial review of the gazetted decision to appoint Dr Wuatai, relying on three main grounds of review: ultra vires, error of law on the face of the record and unreasonableness. Four separate arguments were put in support of those grounds:
(1) the board was not properly constituted for the meeting at which the decision to appoint the first defendant was recorded as being made, resulting in the decision being made, not by the board but by its chairman, Mr Musje Werror (the second defendant);
(2) the selection process was not approved by the Secretary for Personnel Management;
(3) there was no participation in the interview process by representatives of either the Department of Health or the Department of Personnel Management; and
(4) giving a central role to Vanguard was improper.
all of which was alleged to be contrary to s 29 (chief executive officer) of the Public Health Authorities Act, which provides a mandatory procedure for appointment of the chief executive officer, which was not adhered to.
4. I will determine the four arguments and the three grounds of review on their merits, after setting out the train of events that led to the gazetted decision of 20 March 2020. But before proceeding further, I will deal with a preliminary point raised by Mr Uware, for the defendants.
PRELIMINARY POINT
5. Mr Uware points out that in the plaintiff’s notice of motion under Order 16, Rule 5 of the National Court Rules, filed on 14 April 2020, reference is made to s29 of the Provincial Health Authorities (Amendment) Act 2013, which provision – s 29 – is a non-existent law. The proceedings, Mr Uware submits, should therefore be summarily dismissed.
6. Mr Uware is correct. There is no such law as s 29 of the Provincial Health Authorities (Amendment) Act 2013. The Provincial Health Authorities (Amendment) Act 2013 exists, but it has no s 29. In fact it has only one section, which is an amendment to s 29 of the Provincial Health Authorities Act 2007. The drafting of the notice of motion is deficient.
7. Does that mean the proceedings must or ought to be dismissed? No. The relief sought by the plaintiff is clear enough and the grounds of review are sufficiently stated in the Order 16, Rule 3(2)(a) statement and the arguments underpinning them have been adequately articulated by the plaintiff’s counsel, Mr Bon. Besides that, as will become apparent later in this judgment, the defendants are guilty of a similar sort of error in the drafting of the instrument of appointment of Dr Wuatai. I would not be doing justice to any of the parties if this case were summarily dismissed without regard to its merits. The preliminary point has been validly made but I decline to dismiss the proceedings at this stage.
EVENTS
8. In September 2019 the Western Provincial Health Authority was established under the Provincial Health Authorities Act 2007 and commenced operation. The plaintiff, who had held senior public health positions in the provincial administration for many years, was appointed as the acting Chief Executive Officer, pending a permanent appointment.
9. On 24 January 2020, Vanguard published notices in the daily newspapers, on behalf of the Provincial Health Authority, seeking applications for the position, which closed on 31 January 2020.
10. The plaintiff and the first defendant submitted applications and were among a shortlist of six candidates who were interviewed by a panel (the composition of which is unclear, from the evidence) at the Hilton Hotel, Port Moresby, on Saturday 15 and Sunday 16 February 2020.
11. On the afternoon of 16 February, after completion of interviews and assessment sheets and compilation of results (done by Vanguard personnel) a meeting of the board of the Western Provincial Health Authority was held at the same hotel. The purpose of the meeting was to decide on the position of Chief Executive Officer. The minutes of the meeting are in the following terms:
SPECIAL MEETING: 001/2020
Date: Sunday 16th February 2020
Venue: Hilton Hotel, Port Moresby
Time: 3:00-3:30pm
ATTENDEES:
No Members Designation
1. Mr Musje Werror Chairperson/ Representative
2. Mr Meremi Maina Deputy Chairman
3. Mrs Daiu Gairi Women Representative
4. Mr Sinba Tony Community Representative
5. Dr Wynter Samson Business Representative
6. Mr Paul Wasi Community Representative
7. Mr Amos Kupalome Church Representative
8. Mr Robert Kaiyun Ex-Officio Provincial Administrator
APOLOGIES:
1. Mr Kevin Bramley Business Representative
2. Dr Paison Dakulala NDOH Representative
AGENDA
1. Appointment of CEO for the WPHA
2. AOB
...
SPECIAL MEETING MINUTES: 001/2020
1. Appointment of CEO for the WPHA
Following the interview process for the six shortlisted candidates for the role of CEO, conducted on the 15th and 16th of February 2020 at the Hilton Hotel and facilitated by Vanguard International Ltd, the WPHA Board unanimously resolved to appoint Dr Niko Wuatai as the CEO.
Moved: Mr Meremi Maina
Seconded: Mr Musje Werror
2. AOB
None
With no further business, meeting was adjourned at 3:30pm.
[signed]
MUSJE WERROR
Chairman
12. On 19 March 2020, Mr Werror signed an instrument of appointment of Dr Wuatai, which was published the following day, 20 March 2020, in National Gazette No G182 of 2020 in the following terms:
Provincial Health Authorities (Amendment) Act 2013
____________
Public Services (Management) Act 1995
REVOCATION AND APPOINTMENT OF CHIEF EXECUTIVE OFFICER OF WESTERN PROVINCIAL HEALTH AUTHORITY
I, Musje Werror, Chairman of the Western Provincial Health Authority, by virtue of powers conferred by Section 29(2) of the Provincial Health Authorities (Amendment) Act 2013 and all powers me enabling hereby revoke the Appointment of Alice Honjepari as the Acting Chief Executive officer and appoint Dr Niko Wuatai, as the Chief Executive Officer of Western Province Health Authority through a merit based selection process approved by Department responsible for personal matters for a period of four (4) years commencing on and from 19th March 2020. [sic]
Dated this 19th day of March 2020.
MWERROR,
Chairman – Western Provincial Health Authority
FIRST ARGUMENT: NO PROPER BOARD DECISION
13. The plaintiff argues that the Board was not properly constituted for the 16 February 2020 meeting at which the decision to appoint the first defendant was recorded as being made, resulting in the decision being made, not by the board, but by its Chairman, Mr Werror.
Appointment procedure
14. The appointment of Chief Executive Officer of a Provincial Health Authority is made under s 29 of the Provincial Health Authorities Act, which states:
(1) There shall be a Chief Executive Officer for each provincial health authority whose manner of appointment, suspension and dismissal shall be as specified in Subsection (2).
(2) A Chief Executive Officer of a public hospital —
(a) shall be appointed by the Board through a merit based selection process approved by the Departmental Head of the Department responsible for personnel management matters; and
(b) shall be appointed on a contract of employment in the prescribed form subject to such terms and conditions by the Salaries and Conditions Monitoring Committee and executed by the Board for a period not exceeding four years as the Board so determines; and
(c) is eligible for re-appointment.
(3) The Provincial Administrator of the Province shall, in consultation with the Departmental Head of the Department —
(a) responsible for personnel management matters; and
(b) responsible for health matters,
intervene in the absence of a Board for any reason dealing with the Chief Executive Officer.
15. The procedure for appointment of a chief executive officer of a provincial health authority is the same as for the chief executive officer of a public hospital. Thus:
Board membership
16. The Board of a Provincial Health Authority consists of a maximum of nine members appointed under s 17 (constitution of boards) of the Provincial Health Authorities Act, which states:
(1) Subject to this section, a board shall consist of a maximum of nine members appointed, on the nomination of the Minister, by the Head of State, acting on advice.
(2) After consultation with the Governor of the province or Governor of National Capital District, as the case may be in which the provincial health authority is located, the Minister shall nominate nine members for appointment to a Board under Subsection (1) of whom —
(a) one is a representative of the National Department of Health nominated by the provincial administrator or manager as the case may be; and
(b) one has knowledge and experience of district affairs in the province and is nominated by the provincial administrator or manager as the case may be; and
(c) three are experienced members of the local business sector nominated by the provincial Chamber of Commerce and Industry or like organisation, or where no such organisation exists, as nominated by the Minister; and
(d) one is member of a local church run or Christian organisation nominated by the Church Medical Council or like organisation; and
(e) one is a woman with a high level understanding of issues for women of the province nominated by the Provincial Women's Organisation or like organisation; and
(f) two are members of the local community appointed by a panel consisting of the Chief Executive Officer, the provincial administrator or manager as the case may be and a representative of the local community.
(3) If the Minister is satisfied that —
(a) reasonable steps have been taken to locate suitably qualified persons; and
(b) no persons have been located in the province who are suitably qualified and available for one or more of the positions on the board as required in Subsection (2),
the Minister may nominate less than nine members for appointment to the Board.
(4) A vacancy in board positions created by operation of Subsection (3) may be filled as soon as —
(a) reasonable steps are taken to locate a person or persons in the province who are qualified and available to fill such vacant position or positions; and
(b) a person or persons are located who are qualified and available for any or all vacant positions; and
(c) the Minister is informed that a person or persons have been nominated in compliance with Subsection (4) to a vacant position or positions on the board.
(5) A Board constituted under Subsection (1) shall also include, as an ex officio member the provincial administrator or manager as the case may be who shall be an advisory member of the Board.
(6) The person appointed as an advisory member of the Board under Subsection (5) shall be entitled to attend all meetings of the Board of which he or she is a member and shall be entitled to take part in debate but shall not vote on any matter or be counted towards a quorum.
Plaintiff’s evidence
17. In support of her argument that the board was not properly constituted, the plaintiff has challenged the veracity of the minutes of the board meeting of 16 February 2020, which show that all but two board members (Mr Kelvin Bramley (business rep) and Dr Paison Dakulala (National Department of Health rep)) were present and participated in the decision to appoint the second defendant.
18. The plaintiff has annexed to one of her affidavits (exhibit P1), statutory declarations by two board members suggesting that they were not present and did not participate in the decision. Each declaration is dated 20 March 2020 and expressed to be made before a commissioner for oaths of Daru District Court.
19. Samson Winter, a board member representing the business sector, declares:
I was not part of the appointment process of the Western Provincial Health Authority Chief Executive Officer after my involvement with interview and shortlisting exercise. After a month I was surprised to hear from the Acting Chief Executive Officer Mrs Alice Honjepari of a post on the Facebook of a letter from the Chairman advising the Deputy Chairman of the appointment of the Chief Executive Officer and was disappointed has not been part of the appointment process [sic].
20. Tony Sinba, a board member representing Middle Fly District, declares:
I was not part of the appointment process of the Western Provincial Health Authority Chief Executive Officer after my involvement with interview and shortlisting exercise. After a month I was surprised to hear from news from Mr Eron Oai acting Director Corporate Services on the phone about a letter from the Chairman advising the Deputy Chairman of the appointment of the Chief Executive Officer and was disappointed has not been part of the appointment process [sic].
Defendants’ evidence
21. Mr Werror responded to the allegations that the board was not lawfully constituted and that at least two members did not participate in the decision to appoint Dr Wuatai, in one of his affidavits (exhibit D3), in the following terms:
Vanguard International facilitated the interview process and tallied the scoring sheets that were completed for each applicant during the interviews.
After the last interview was completed, Vanguard International finalised the scoring and provided the rankings of the interviewees to me to inform the Board. I only read the top three in order of ranking: Dr Niko Wuatai, Bruce Biru, Alice Honjepari and informed the board that Dr Niko Wuatai was the successful applicant.
A special Board meeting was conducted after the interviews were concluded and the Board resolved to appoint Dr Niko Wuatai as the CEO. The resolution was minuted in the Special Board meeting minutes of 001/2020. ...
The Board members were advised not to make any announcements until the formalities were completed. The plaintiff’s assertion that the board members were not involved in the decision is therefore not true. I attach copies of statements from two board members confirming that a collective decision was made.
22. The first statement referred to by Mr Werror is by Mr Amos Kupaloma, a Board member representing a local church or Christian organisation, dated 10 April 2020, which is in the following terms:
For me I can say that I was involved in the process of selecting the CEO, whoever was going to be and I can also state that, all the board members present at that meeting were involved. Every member was given equal opportunity to express their views in talk or in writing.
I can confidently state that the choice of the CEO eventually was a collective decision of the WP PHA Board members who were present in that meeting.
23. The second statement referred to by Mr Werror is by Mr Meremi Maina, the Deputy Chairman of the board, dated 14 April 2020, which is in the following terms:
...before the article was posted on Fly River Forum on Facebook, I was already aware of the appointment of the CEO at the meeting held by Vanguard International and Western Provincial Health Authority board members.
This is to confirm that I was present at the board meeting to do the interview of the shortlisted candidates selected by Vanguard International...
All board members were present at the interview except Dr Dakulala and Mr Kevin Bramley were absent.
Vanguard International was the recruiting agent. At the meeting, the board was informed that all board members to be given score sheets and the scoring of the selected candidates were scored according to their interviews.
The board was then informed by Vanguard International who scored the highest and was the No 1 candidate out of the six selected candidates, and this was Dr Niko Wuatai.
The chairman advised the board that a written letter to be given to Dr Niko Wuatai if he accepted the position. Then after his response of accepting the position, the board would advertise of his position as permanent CEO for Western Provincial Health Authority.
Observations
24. I make four observations regarding the conflicting evidence. First, all persons who have made statements have failed to carefully distinguish between two distinct events that took place at the Hilton Hotel on Sunday 16 February 2020: (a) completion of the interviews, which appears to have happened in the morning, followed by (b) the board meeting in the afternoon.
25. Mr Winter and Mr Sinba appear to be saying that they were present at the interviews, but not present at the meeting.
26. Mr Werror appears to be saying that he was not present at the interviews, but received the results of the assessments prepared by Vanguard (which ranked Dr Wuatai first) and chaired the meeting in the afternoon at which all but the two members recorded as being absent were present, including Mr Winter and Mr Sinba, and participated in the decision to appoint Dr Wuatai.
27. Mr Kupaloma does not say that he was present at the interviews but says that he was present at the meeting and that “all the board members present” at the meeting were involved and had an equal opportunity to express their views. However, he does not specify who was present at the meeting and does not comment on the allegation that Mr Winter and Mr Sinba were not present at the meeting and did not participate in the decision.
28. Mr Maina appears to be saying that all board members, apart from the two members recorded as being absent from the meeting, were involved in the interviews and the meeting. However, as with Mr Kupaloma, he does not specify who was present at the meeting and does not comment on the allegation that Mr Winter and Mr Sinba were not present at the meeting and did not participate in the decision.
29. The second observation is that the record-keeping of the interviews and the meeting is deficient. It was reasonably to be expected that in a case such as this – a challenge to the legality of the appointment process, in which the plaintiff is asserting that the appointing authority was not properly constituted and where two members of the board are saying they do not know how the decision was made and suggesting that they were not present at the meeting – the defendants would be able to provide documentary evidence to show exactly which board members were present at the interviews and exactly which board members were present at the meeting. That evidence is not before the Court, and it should have been. It is the defendants, and in particular Mr Werror, as Chairman, who should have provided that evidence.
30. The third observation is that, for the above reasons, the evidence given both for the plaintiff and for the defendants is vague and confusing. This has made it difficult to make findings of fact as to which particular board members participated in the interviews, who exactly was present at the board meeting and therefore who participated in the decision to appoint Dr Wuatai.
31. The fourth observation is that the instrument of appointment signed by Mr Werror on 19 March 2020 and published in the National Gazette on 20 March 2020 has been poorly drafted. It states:
I, Musje Werror, Chairman of the Western Provincial Health Authority, by virtue of powers conferred by Section 29(2) of the Provincial Health Authorities (Amendment) Act 2013 and all powers me enabling hereby revoke the Appointment of Alice Honjepari as the Acting Chief Executive officer and appoint Dr Niko Wuatai, as the Chief Executive Officer of Western Province Health Authority through a merit based selection process approved by Department responsible for personal matters for a period of four (4) years commencing on and from 19th March 2020. [emphasis added]
32. There are two problems with the instrument. First, it states that Mr Werror, as Chairman, appointed Dr Wuatai. The Chairman of the Board is not the appointing authority. The Board is the appointing authority.
33. Secondly, it refers to Section 29(2) of the Provincial Health Authorities (Amendment) Act 2013, which (as explained in addressing the defendants’ preliminary point) is a non-existent law. The relevant law is Section 29 of the Provincial Health Authorities Act 2007.
34. Mr Werror is not to be blamed for these errors. It was not his job to draft the instrument of appointment and verify its legal correctness. He has given evidence as to the circumstances leading up to his signing of the instrument. It is clear he signed it in good faith, oblivious to the defects in it. But something has gone wrong in the drafting and certifying of the instrument, and when such mistakes are made, it adds to the uncertainty of the legal correctness of the decision that was actually made.
Determination
35. I now move to a determination of the plaintiff’s first argument, which is that the Board was not lawfully constituted and that the decision to appoint Dr Wuatai was made not by the Board, but by Mr Werror. There are three legal principles to apply.
36. First, this is a civil case and the plaintiff bears the onus of proving her case on the balance of probabilities (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), Vincent Kerry v The State (2007) N3127).
37. Secondly the party asserting a certain fact must prove that fact (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Galem Falide v Registrar of Titles (2012) N4775).
38. Thirdly, the fact that there is an error in an instrument of appointment does not necessarily mean that the appointment, of which it purports to be a record, is defective (Jamie Maxton-Graham v Electoral Commission (2016) SC1559, Anton Yagama v Peter Charles Yama (2013) SC1244, Re Vela Konivaro, Clerk of the National Parliament (2015) N5977 (LT)).
39. I find, having regard to those principles, that the plaintiff has not proven:
40. Even if I were satisfied that Mr Winter and Mr Sinba were absent from the board meeting and that they had no involvement in the decision to appoint Dr Wuatai, I would still find, and I do find:
41. The reason the board was lawfully constituted is found in s 25 (meetings of boards) of the Provincial Health Authorities Act, which provides:
(1) The Board of a provincial health authority shall hold such meetings as are necessary for the efficient performance of its functions and at such times and places within the province in which the provincial health authority is situated as it determines or as the Chairman or in the absence of the Chairman, the Deputy Chairman directs, but in any event, shall meet not less frequently than four times in every year.
(2) The Chairman of a Board —
(a) may at any time, convene a meeting of that Board; and
(b) shall, on receipt of a written request signed by not less than three other members of that Board, convene a meeting of that Board.
(3) The Chairman shall preside at all meetings of that Board.
(4) Where the Chairman is not present at a meeting of that Board, the Deputy Chairman shall preside, and where both the Chairman and the Deputy Chairman are not present, the members present shall elect one of their number to preside at that meeting.
(5) At a meeting of a Board —
(a) a quorum of the Board consists of a majority of members for the time being appointed; and
(b) matters arising shall be decided by a majority of votes of the members of that Board present and voting; and
(c) the person presiding has a deliberative and, in the event of an equality of votes on any matter, also a casting vote.
(6) A Board shall cause minutes of its meeting to be recorded and kept.
(7) Subject to this Act, the procedures of a Board are as determined by that Board.
42. Under s 25(5)(a) the quorum for a meeting was five (a majority of the nine members). The minutes of the meeting (the probative value of which has not been critically neutralised by the plaintiff’s evidence) show that, even if Mr Samson and Mr Sinba were absent, there were six members present, which was one more than the quorum.
Conclusion re first argument
43. I am satisfied that the board was lawfully constituted and that a meeting did in fact take place on 16 February 2020 and that the board decided to appoint Dr Wuatai. I am satisfied that it was the collective decision of the board and not a unilateral decision of the Chairman.The plaintiff’s first argument fails.
SECOND ARGUMENT: SELECTION PROCESS NOT APPROVED
44. The plaintiff’s argument is that, though there may have been a merit-based selection process, there is no evidence that it was approved by the Secretary for Personnel Management, as required by s 29 of the Act.
45. I reject this argument for the simple reason that the plaintiff has not proven her case. It is for the plaintiff to adduce evidence that the process actually used was not approved by the Secretary for Personnel Management. It was not for the defendants to adduce evidence that the Secretary did approve the process.
46. Besides that, though the Secretary for Personnel Management is not a defendant, the State (the fourth defendant) is, and the Secretary for Personnel Management is an officer of the State. So if in fact the Secretary for Personnel Management had not approved the selection process used in this case, it is reasonably to be expected that the Secretary would want to participate in this case and provide the relevant evidence to assist the Court.
47. It is reasonably to be inferred from the failure of the Secretary for Personnel Management to give evidence that the Secretary takes no issue with the appointment of Dr Wuatai and did actually approve the merit-based selection process that was used by the Board. The plaintiff’s second argument fails.
THIRD ARGUMENT: NO PARTICIPATION BY DEPARTMENTAL REPS
48. The plaintiff argues there was no participation in the selection process by representatives of either the Department of Health or the Department of Personnel Management.
49. It is correct that there was no representative of either Department involved in the interviews that took place on 15 and 16 February 2020 or in the board meeting of 16 February 2020. However, the issue is whether this is of any consequence.
50. Section 29(2)(a) of the Act requires a representative of the Department of Health to be a member of the Board of a provincial health authority. That requirement was met here by the appointment of Dr Dakulala as a member of the board. There was no additional requirement that Dr Dakulala actually participate in the interviews or the meeting. The apology for the absence from the meeting of Dr Dakulala was noted in the minutes of the meeting and the board proceeded, with a quorum, to make the decision to appoint Dr Wuatai. No illegality or impropriety existed.
51. As for the Department of Personnel Management, there is no requirement that it be represented in the selection process, apart from the approval of the process by the Secretary for Personnel Management; and in that regard I have already found that the Secretary approved the process.
52. It is not a statutory requirement that representatives of the Department of Health or the Department of Personnel Management participate in the interview or assessment of candidates, so their lack of participation is inconsequential. The plaintiff’s third argument fails.
FOURTH ARGUMENT: ROLE OF PRIVATE RECRUITMENT AGENCY
53. The plaintiff has questioned the central role of Vanguard International in the selection process.
54. There is no law that prohibits the involvement of a private employment agency in the appointment process. I find no evidence that Vanguard acted or had been engaged improperly. The plaintiff’s fourth argument fails.
DETERMINATION OF GROUNDS OF REVIEW
55. As none of the plaintiff’s four arguments – all of which were used to prosecute the three formal grounds of review – has succeeded, it follows that the plaintiff has failed to establish that the decision to appoint Dr Wuatai was made:
REMEDIES
56. As all arguments and grounds of review have failed, the plaintiff’s case must be dismissed. Costs would normally follow the event. However, I will order the parties to bear their own costs as the defendants have made this case unnecessarily complex by their inability to directly and conclusively repel the plaintiff’s allegations that two members of the board were not present at the meeting of 16 February 2020 and had no knowledge of how Dr Wuatai was appointed. The record-keeping of the interview process and the board meeting left much to be desired. There is a salutary lesson here for board-based appointing authorities: to ward off the risk of legal disputes, prudence and due diligence dictate that all members of the board present and voting sign a document that evidences their involvement in the decision. The errors in the instrument of appointment, for which the State as fourth defendant must be held responsible, have also created unnecessary confusion, and this is another reason it is appropriate for the parties to bear their own costs. I will make an order that will allow the plaintiff a short time to complete her term as acting Chief Executive Officer and provide for what I trust is an orderly and dignified handover-takeover.
ORDER
Judgment accordingly.
_________________________________________________________________
Gibson Bon Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants
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