PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2024 >> [2024] PGNC 218

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Toropo v National Executive Council [2024] PGNC 218; N10800 (14 May 2024)

N10800


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 177 OF 2021 (IECMS)


BETWEEN:
GILBERT TOROPO
Plaintiff


AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant


AND:
THE ATTORNEY GENERAL as the nominal Defendant for and on behalf of the GOVERNOR GENERAL pursuant to Section 3 of the Claims Against the State Act 1996
Second Defendant


Waigani: Purdon-Sully J
2024: 10th & 19th April, 14th May


JUDICIAL REVIEW – Practice & Procedure – Review of decision – Revocation of appointment of Commander of PNG Defence Force – Ultra Vires/Error of Law/Breach of Natural Justice found - Denial of right to be heard – Costs awarded solicitor/client basis


Cases Cited:


Papua New Guinean Cases
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Ilau v Somare [2007] N5511
Philip Aeava v The State (2001) N2136
Eichorn v Ninikin [1989] PNGLR 222
Green Wood (PNG) Ltd v Pulie Anu Timber Co Ltd [2023] PGSC 9, SC2361
Temai v Kool [2024] PGNC 21; N10667
Sausau v Kumgal [2006] PGNC 156; N3253
Luma v Kali (2014) SC1401
Lupari v Sir Michael Somare (2008) N3476
Yafai v Kereme [2016] PGSC 50; SC1531
Kevi v The Teaching Service Commission [1997] PNGLR 659
Iambakey Okuk v Gerald Fallscheer [1980] PNGLR 274
Ombalo v Inguba [2004] PNGLR 535
Ilau v Somare [2007] PGNC 265; N5511
Koki v Inguba [2009] N3785
Marat v Hanjung Power Ltd [2014] SC1357
Kaiyo v Pawa [2015] SC1469
PNGBC v Jeff Tole (2002) DC694
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290


Overseas Cases
R Barnet London Borough Council; Ex Parte Nilish Shah (1983) 2 AC 309
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) NSWLR 378
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Malloch v Aberdeen Corporation [1971] 2 All ER 1278


Legislation
National Court Rules, Orders 8, 16
Constitution, ss 23(1)(b), 59, 192, 193, Schedule 1.10
Defence (Amendment) Act 1974 (also referred to as the Defence Act Chapter No 74), ss 6, 7
Interpretation Act 1975, s 36


Counsel
N. Kopunye, for the Plaintiff
K. Kipongi, for the Defendants


DECISION


14th May 2024


  1. PURDON-SULLY J: Before the Court is a substantive application for judicial review made pursuant to a Notice of Motion filed 14 November 2023 following the grant of leave to apply on 9 November 2023.
  2. The decisions, the subject of review, are:
    1. The decision of the Second Defendant made on 21 December 2021, acting on advice of the First Defendant by its decision of 15 December 2021 to:
      1. Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander of the Papua New Guinea Defence Force;
      2. Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
      3. Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.
    2. The decision of the First Defendant made on 15 December 2021, in a Special Meeting where it is decided to advise the Head of State to:
      1. Revoke the appointment of the Plaintiff as Commander of the Papua New Guinea Defence Force;
      2. Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
      3. Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.
  3. The Plaintiff seeks the following orders:
    1. Pursuant to Order 16 Rule 1(1) of the National Court Rules (NCR), the abovenamed impugned decisions be declared null and void
    2. Pursuant to Order 16 Rule 1(1) of the NCR an order in the nature of certiorari to bring the above-named impugned decisions to this Honourable Court and to quash the decisions in their entirety
    1. An order pursuant to Order 16 Rule 7 of the NCR and section 23(1)(b) of the Constitution:
      1. The Defendants (and the Minister for Defence Hon Win Bakri Daki and the Secretary of the Department of Defence, John Akipe) pay the Plaintiff damages and/or compensation for:
        1. General damages
        2. Pain and suffering (including stress and mental anguish)
        3. Exemplary and punitive damages
        4. Out of pocket damages
      2. and upon determination of liability to pay damages and or compensation a date and time to be fixed for assessment of damages (after issuance of directions for preparation of hearing).
    1. An order that the Defendants pay the Plaintiff’s costs on an indemnity basis and if not a solicitor/client basis.
    2. Time to Abridge
    3. Such further or other order as this Honourable Court deems fit.
  4. The First and Second Defendants seek the dismissal of the Plaintiff’s application for judicial review with costs.

MATERIAL RELIED UPON


  1. The Court has had the benefit of a consideration of the Review Book filed 20 February 2024 together with oral and written submissions of the parties, the Plaintiff’s written submissions filed on 14 March and 19 April 2024 and the written submissions of the Defendants handed to court at the hearing of the matter on 10 April 2024. No further written submissions were relied upon by the Defendants.
  2. Save for the substantial points raised I do not propose to respond to each and every submission made, however in reaching a decision on the issues I am required to determine, I have considered all submissions (R Barnet London Borough Council; Ex Parte Nilish Shah (1983) 2 AC 309 per Lord Scarman at p 350 cited with approval in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) NSWLR 378 per Mahony J A at [385-386]).

BACKGROUND


  1. The facts in this matter are not controversial. The Defendants took no issue with the chronology of events as detailed at [5] of the Plaintiff’s written submissions.
  2. On 14 June 2018, following consultations with the Public Service Commission (PSC), the National Executive Council (NEC) by Decision No 183/2018 approved to advise the Head of State to revoke the Plaintiff’s appointment as Acting Commander and appoint the Plaintiff the Commander of the Defence Forces of Papua New Guinea (Commander) for a period of four (4) years. On 7 November 2018 the Governor General as Head of State and on advice by way of National Gazette No G726 appointed the Plaintiff to the substantive position of Commander.
  3. On 1 September 2020 the Plaintiff signed a Contract of Employment (the Contract) made pursuant to the Defence Act 1974 and consisting of a Performance Based Contract of Employment and Standard Terms and Conditions for the Head of a State Service .
  4. The relevant terms of the Contract were:
    1. The contract was made effective as and from 18 October 2018.
    2. The duration of the contract shall remain as the four (4) year period which commenced on 14 June 2018.
  5. On 13 December 2021 by letter from the Secretary for the Department of Personnel Management the Secretary informed the Plaintiff that:
    1. The Plaintiff’s appointment would lapse on 13 June 2022.
    2. The process of appointing a new Commander as prescribed by s 193 of the Constitution and the Defence (Amendment) Act 1974 (also referred to as the Defence Act Chapter No 74).
  6. On 14 December 2021 the Minister for Public Service, Hon Joe Sungi MP, sent a letter to the PSC requesting urgent consideration and recommendation from the PSC stating, amongst other things, that he had received a Defence Council Order signed by Hon Solan Mirisin, the Minister for Defence and Chairman of the Defence Council on the following:
    1. The need to revoke the Plaintiff’s appointment as Commander;
    2. The recommendation of the Defence Council to appoint Colonel Mark Goina as Commander for a term of four (4) years.
  7. On 15 December 2021 the Minister for Defence and the Secretary for Defence held a Defence Council Meeting No 12/2021 without giving notice to the Plaintiff which they were required to do as he was one of the three members of the Defence Council. In its decision No 13/2021 it resolved inter alia to:
    1. Retire the Plaintiff as Chief of Defence Force and Commander;
    2. Recommend to the First Defendant to appoint the Chief of the Defence Force and Commander from among the list of three candidates:
      1. Commodore Philip Polewara – Deputy Chief of Defence Force
      2. Colonel Siale Diro
      3. Colonel Mark Goina – Defence Attache Australia
    1. Recommend to the First Defendant to appoint Colonel Goina as Commander.
  8. On 15 December 2021, the First Defendant in a special meeting advised the Governor-General as Head of State to make the following decision (15 December 2021 Decision):
    1. Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander;
    2. Promote Colonel Goina to the rank of Major-General;
    1. Appoint Colonel Goina as Commander; and
    1. Appoint the Plaintiff as High Commissioner of Papua New Guinea to New Zealand.
  9. On 20 December 2021 the Plaintiff’s lawyers wrote to the Prime Minister as Chair of the First Defendant requesting a reconsideration of the matter. The letter noted amongst other things that the PSC was not consulted by NEC before deciding to revoke the Plaintiff’s appointment, a mandatory requirement under s. 193(3) of the Constitution and the Plaintiff’s revocation was an error of law. The letter was copied to the Minister for Defence. There was no response.
  10. On 21 December 2021 the Governor-General as Head of State on advice, published in the National Gazette:
    1. The revocation of the appointment of the Plaintiff as Commander;
    2. The appointment of Colonel Goina as Commander for a period of four (4) years;
    1. The appointment of the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.
  11. It is unchallenged that the Plaintiff had not applied for the position of High Commissioner to New Zealand.
  12. On 24 December 2021 the Plaintiff’s lawyers wrote again to the Prime Minister as Chair of the First Defendant seeking a reconsideration of the matter. There was no response.
  13. Aggrieved by the decisions of 15 and 21 December 2021, on 29 December 2021 the Plaintiff commenced judicial review proceedings.
  14. The matter came before this Court by way of substantive hearing on 10 April 2024. When the matter was called on there was no appearance for the Defendants. The Defendants were aware of the proceedings as they were represented on 11 March 2024 when directions and the trial listing was made. The matter was stood down to enable Counsel for the Plaintiff to contact the Office of the Solicitor-General. Mr Kipongi, Counsel for the Defendants appeared at about 10.30am. He had no knowledge of the matter and had not been informed that it was listed for hearing. The matter was stood down to 1.30pm to enable him to read the Review Book and the Plaintiff’s submissions at which time the Court proceeded to hear the matter.

THE ISSUES


  1. The issues for determination are:
    1. whether the Plaintiff’s appointment as Commander was unlawfully terminated and, if so, whether the Court should make the orders sought by the Plaintiff by way of remedy; and
    2. in that event, what costs order should be made, the Plaintiff seeking costs on an indemnity basis or in the alternative on a solicitor/client basis and the Defendants seeking that costs be awarded on a party and party basis.

-


GROUNDS OF REVIEW


  1. The Plaintiff seeks review of the decisions of 15 December and 21 December 2021 on three (3) grounds:
    1. Ultra Vires/Error of Law
    2. Denial of natural justice
    1. Unreasonableness (Wednesbury principles)

LEGAL PRINCIPLES


  1. Judicial review proceedings involve the review of quasi-judicial or administrative decisions under statute. It is a process that is available to hold public officials accountable for the correct use of their powers. It is available where the decision-making authority exceeds its powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]).
  2. A judicial review application is not an appeal. It is concerned with the decision-making process and not with the decision itself. If the Court finds fault in the processes and procedures followed it will declare the decision made null and void.
  3. At the substantive review, and when deciding if the decisions sought to be reviewed are lawful, the court should be guided primarily by the grounds of review, the relief pleaded in the statement in support and the evidence in supporting affidavits.

ULTRA VIRES/ERROR OF LAW


  1. In summary, it is submitted on behalf of the Plaintiff, that the Defendants committed errors of law in revoking his appointment and in appointing a new Commander by not following the proper statutory procedures for doing so. It is contended that the Defendants:
    1. did not follow the procedures in s 7 of the Defence Act 1974 in conducting their meeting on 15 December 2023 for the purpose of considering the revocation of the Plaintiff’s appointment and the appointment of the new Commander; and
    2. the First Defendant did not consult with the PSC in accordance with s 193(1) and (3) of the Constitution which requires the NEC to consult with the PSC before appointing a Chief of the Defence Force.
  2. It is well established that when a statute confers on a body the power to make decisions affecting an individual the procedures prescribed by statute are required to be followed. Counsel for the Defendants, Mr Kipongi, did not substantively challenge the submissions on behalf of the Plaintiff in that regard, namely that the Defendants had exceeded their jurisdiction by failing to follow the statutory procedures as outlined.
  3. The starting point for the examination of the Plaintiff’s arguments is the relevant statutory provisions concerned.
  4. Section 193(3) of the Constitution and s 6 of the Defence Act 1974 set out the procedure for the appointment of the Commander of the Defence Force.
  5. Section 6 of the Defence Act 1974 is in these terms:

COMMANDER OF THE DEFENCE FORCE

(1) An office of Commander of the Defence Force is hereby established.

(2) The Commander of the Defence Force–

(a) shall be appointed in accordance with Section 193 (appointments to certain offices) of the Constitution; and

(b) may be suspended or dismissed at any time by the Head of State, acting on advice, by notice in the National Gazette.

(3) The terms and conditions of appointment of the Commander of the Defence Force are as determined by the Head of State, acting on advice, and, except where the contrary intention appears, Part VII does not apply to or in relation to the Commander.

  1. Section 193 of the Constitution relevantly provides:

193. APPOINTMENTS TO CERTAIN OFFICES


(1) This section applies to and in respect of the following offices and positions:–


(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and

(b) the offices of the members of the Boundaries Commission; and

(c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and

(d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and

(e) the office of Commissioner of Police; and

(f) the office of Commander of the Defence Force; and

(g) the office of Secretary to the National Executive Council; and

(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose,

other than the offices of the members of the Public Services Commission.


(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.


(1B) All temporary appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.


(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.


(1D)The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, a recommendation by the Public Services Commission following procedures prescribed by or under and Act of the Parliament.


(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c) and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.


(3) All appointments (whether temporary or substantive) to which Subsection (1)(d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.


(4) An Act of the Parliament may make provision for and in respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2).


[Underlining and emphasis added]


  1. It was a clear constitutional requirement for the First Defendant to consult with the PSC before making the decision to appoint Colonel Goina as Commander, a requirement outlined in the letter of the Minister for Public Service to the Chair of the PSC dated 14 December 2021 following his receipt of the Defence Council Order revoking the appointment of the Plaintiff and recommending the appointment of Colonel Goina. That letter was copied to the Prime Minister, Minister for Defence and Secretary for DPM.
  2. While s 193 of the Constitution does not expressly contain provisions dealing with the revocation of the Commander, the requirement to consult with the PSC when dealing with revocation of the Plaintiff’s appointment and termination (as affirmed in clause 15.1 of the Contract), a consideration of relevant statutory provisions enables the Court to conclude that the power conferred on the Head of State under s 193(3) of the Constitution also includes the power to remove or revoke the appointment.
  3. Section 6(3)(b) of the Defence Act states that the Chief of the Defence Force may be suspended or dismissed at any time by the Head of State acting on advice by notice in the National Gazette.
  4. By virtue of s 36 of the Interpretation Act 1975 the power of the Head of State under s 6(3)(b) of the Defence Act to remove or suspend can only be exercised subject to the same conditions to which the exercise of the original power of appointment was made, s 193 of the Constitution being the original source of the power to appoint.
  5. Section 36 of the Interpretation Act 1975 says:

IMPLIED POWER TO REMOVE OR SUSPEND

(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject.

[Emphasis added]


  1. Further, and relevant to the interpretation of s 193, is Schedule 1 of the Constitution which contains rules which apply in the interpretation of the Constitution and the Organic Laws.
  2. Schedule 1.10 deals with the exercise and performance of powers and duties. Schedule 1.10(4) and (5) relevantly provide:

(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspend or, where the appointee is for any reason unable or unavailable to overcome his duties, to appoint another person temporarily in his place.


(5) The power provided for in Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.


[Emphasis added]


  1. A consideration of these provisions permits a conclusion that the same procedure used to appoint the Commander of the Defence Force must be used to remove or suspend them. It is a conclusion supported by authoritative pronouncement (Ilau v Somare [2007] N5511; Philip Aeava v The State (2001) N2136; Eichorn v Ninikin [1989] PNGLR 222).
  2. The process of revocation of the Plaintiff’s appointment accordingly involved the following three (3) steps:
    1. the First Defendant was required to consult the PSC with respect to the revocation of the appointment;
    2. after consultation with the PSC the First Defendant then made the decision to revoke the appointment; and
    1. after making the decision the First Defendant advises the Head of State to revoke the appointment.
  3. On the evidence there was no consultation with the PSC before the First Defendant decided to revoke the Plaintiff’s appointment. The Minister for the Public Service is not a member of the PSC. As provided in s 192 of the Constitution the PSC is not subject to direction or control when carrying out its constitutional functions as prescribed. The Minister’s letter of 14 December 2021 could not be viewed as ‘consultation’, a word that connotes some action or process of formally engaging with and discussing a particular issue before a decision is made. Notwithstanding no such consultation taking place, nor any response from the PSC being received, the following day, that is 15 December 2021, the First Defendant revoked the appointment of the Plaintiff and appointed Colonel Goina to the position of Commander.
  4. In doing so the First Defendant acted only on the basis of:
    1. The letter dated 14 December 2021 from the Minister for Public Service to the Chairman of the PSC seeking its urgent consideration and recommendation, one not received, and
    2. A Defence Council Order dated 15 December 2021 signed only by the Minister for Defence and Secretary of Defence Council, that Order emanating from a meeting held on 15 December 2021 in the absence of the Plaintiff in breach of the procedures required by s 7 of Defence Act.
  5. In failing to consult with the PSC either with respect to the revocation of the appointment of the Plaintiff as Commander and further, in the appointment of Colonel Goina as outlined, the First Defendant committed an error of law by acting outside its powers. As a consequence of proper procedures not being followed, the decision to revoke the Plaintiff’s appointment is null and void.
  6. Further, and with respect to the meeting of the Defence Council on 15 December 2021, the resolution of the Council upon which the First Defendant then relied in making its decision of 15 December 2021 and its subsequent advice to the Head of State was tainted with illegality. Pursuant to the provisions of s 7 of the Defence Act (Chapter 74) the Defence Council consists of three (3) persons, namely the Minister for Defence, the Secretary of the Defence Council and the Chief of the Defence Force. On the 15 December 2021 the Chief of the Defence Force was the Plaintiff.
  7. In respect of the meeting and agendas of the Defence Council the statutory requirements to be met are found in s 7 of the Defence Act (Chapter 74) which relevantly provides:
    1. Copies of submissions on agenda of the Defence Council must be circulated by the sponsor of the agenda member of the Defence Council seven (7) days in advance (s 7(5)(d));
    2. Notice of the Defence Council agenda must be given twenty-four (24) hours in advance to each member (s 7(5)(c));
    1. Orders/resolutions of the Defence Council must be signed by all three (3) members for it to have effect (s 7(7)).
  8. These requirements were not met. Relevantly, as noted earlier, the meeting conducted on 15 December 2021 was in the absence of the Plaintiff, one of the three members of the Council entitled to participate. The order/resolution of the meeting was not signed by the Plaintiff as the then Chief of the Defence Force. The Court is not persuaded that the then approaching retirement date of the Plaintiff, the acknowledged importance of his role as the head of the country’s Defence Force, combined with the then approaching elections and the impact of that on the work of Ministers entitled the First Defendant to ignore proper process.
  9. In written submissions two issues were raised on behalf of the Defendants as follows:
    1. Firstly, whether the Court could proceed to hear the judicial review application when the proceedings have no utility given that the Plaintiff’s contract of employment had already lapsed and new appointments made; and
    2. Secondly, whether the Court could proceed to hear and award the Plaintiff the damages as claimed by him.
  10. To be fair to learned Counsel for the Defendants, the first argument was not, at least in oral submissions, pressed by him with particular vigour. That is not a criticism. His main concern appeared to be the damages claim should the Plaintiff press for an assessment to be heard that day should the Plaintiff succeed in his substantive judicial review.
  11. Dealing with each submission in turn, while Counsel for the Defendants referred the Court to Green Wood (PNG) Ltd v Pulie Anu Timber Co Ltd [2023] PGSC 9, SC2361 and Temai v Kool [2024] PGNC 21; N10667 neither authority advances the matter. Both cases are distinguishable on their facts.
  12. The Court does not find a lack of utility in these proceedings because of the expiration of the Plaintiff’s term of Commander thereby rendering the proceedings an abuse of process. This is because:
    1. The procedure for the appointment of persons occupying the office of Commander is found in s 193 of the Constitution. The Plaintiff’s appointment was made by the Head of State, a constitutional office holder acting on the advice of NEC, following consultations with PSC, entities established under s 149 and s 190 of the Constitution respectively. The Contract was executed between the Plaintiff, the Head of State and the Secretary of NEC. As such the Contract is a public document founded on statute and of a kind the subject of public law. The Plaintiff, who was aggrieved by the decisions made to revoke his appointment on the basis that the revocation was unlawful, is entitled to seek relief under the judicial review procedures of Order 16 of the NCR (Luma v Kali (2014) SC1401; Lupari v Sir Michael Somare (2008) N3476 cited with approval in Yafai v Kereme [2016] PGSC 50; SC1531 at [11]).
    2. The timing of the applicant filing for judicial review and the nature of the relief sought are relevant considerations where in this matter:
      1. Unlike the Plaintiff in Temai v Kool (supra) where proceedings for review were filed more than a week after his contract of employment had expired, the Plaintiff, here, filed for leave for judicial review on 29 December 2021, some six (6) months before his appointment was legally due to end. While his Notice of Motion was not filed until 14 November 2023, that was by reason of a successful appeal process that saw him ultimately granted leave on 9 November 2023. Having moved then with expedition before his contract expired and having moved with expedition following the grant of leave, the submission on behalf of the Defendants that the process is an abuse because it lacks utility by reason of his appointment having expired, offends the demands of justice, if not commonsense. It potentially rewards those who would seek to use delay, through litigation, to their advantage.
      2. The Plaintiff is not seeking reinstatement, but damages by reason of the Defendants having made decisions other than within the framework of the statute which conferred on them their power to decide. It is trite law that if the decision-maker’s power is not properly exercised it is an unlawful decision (Council of Civil Service Unions v Minister for Civil Service [1985] AC 374). The Court was referred to no principle based on common law or statute to suggest the Plaintiff should be denied that right.
  13. With respect to the further complaint raised by the Defendants, it is contended that the Plaintiff has offended Order 16 Rule 7(2) which requires the Plaintiff to follow the procedures under Order 8 Division 2 of the NCR, the Plaintiff instead filing an Amended Statement in the same proceedings.
  14. Order 16 Rule 7 relates to pleading of damages in a Statement and is in these terms:



7. Claim for damages


(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if –


(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making the application, he could have been awarded damages.


(2) Order 8 Division 2 shall apply in a statement relating to a claim for damages as it applies to a pleading.


  1. Order 8 Division 2 (Rules 29 – 36) makes provision for the giving of particulars. The Court has wide powers to order particulars to be pleaded (Rule 36). Except as expressly stipulated in respect of specific types of cases in Order 8 Division 2, there is no requirement for a person claiming damages in tort or contract to plead in a Statement of Claim particulars of damages. Particulars of damages are normally supplied in response to a request for particulars or upon order for particulars under Rule 36, made upon application by a party or on the Court’s own motion. These principles were discussed and outlined in Sausau v Kumgal [2006] PGNC 156; N3253 per Injia DCJ (as he then was) at [8] – [11].
  2. The Court is unable to conclude that the Plaintiff’s provision of particulars of his damages claim as outlined at [20] of his Statement under Reliefs Sought as further particularised at [24] to [28] amounts to an abuse of process such as to suggest that his judicial review application should be dismissed.
  3. The Defendants raised this issue for the first time at the substantive hearing having had the benefit of the Plaintiff’s Statement filed on 14 November 2023. At no time did they thereafter assert abuse of process, including when the State agreed that the matter was ready to be set down for a substantive hearing.
  4. Even if it was found that the Statement offended the procedures under Order 8 Division 2 it is not a defect which, in the Court’s opinion, is fatal. It is also trite to say that the Rules that govern the practice and procedures of the business of the Court are important, however their purpose is to guide the Court in conducting trials in a fair and just manner in order to dispense justice to the parties. They are a means to an end, not an end in themselves (PNGBC v Jeff Tole (2002) DC694; Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 at [22]). Order 1 Rules 7 and 8 of the NCR empower the Court in appropriate cases to dispense with the strict compliance with the Rules to do justice on the substantive merits of the case, as complimented by s 155 of the Constitution. This would be an appropriate case to exercise that power if the Court was wrong in concluding that the Statement offended the procedures under Order 8 Division 2. It would be difficult to suggest that the provision of particulars in the Amended Statement prejudiced the Defendants. No prejudice was asserted. While the Defendants were unprepared at the commencement of the hearing, they did not seek an adjournment. Further, the Plaintiff did not seek that the Court proceed to hear the merits of his damages claim if his review was upheld. Having particularised his claim for damages in his Statement filed 14 November 2023, it is always open to the Defendants to seek further particulars if they viewed the Plaintiff’s claim for damages as being too general. Order 8 Division 2 enables the court to require a party to file further particulars if required.
  5. The Court accordingly finds no lack of utility or abuse of process in the Court hearing the judicial review by reason of the Contract having lapsed and no persuasive reason as to why the Court cannot proceed to list the Plaintiff’s damages claim for assessment on the upholding of the review.
  6. For the reasons given the ground of ultra vires/error of law is upheld.
  7. This conclusion is sufficient to uphold the review without the need to consider the other grounds advanced on behalf of the Plaintiff. However, the ground of breach of natural justice by reason of a failure to be afforded the opportunity to be heard is a matter of sufficient general importance such that it requires consideration.
  8. Breach of natural justice is not only a common law ground, but a constitutional requirement. Section 59(2) of the Constitution allows for the consideration of the principles of natural justice in judicial and administrative proceedings with the minimum requirement of natural justice stated to be “the duty to act fairly and in principle to be seen to act fairly”.
  9. Unfairness may take a number of forms. The Court accepts the submission on behalf of the Plaintiff that before the First Defendant made the decision to revoke the appointment of the Plaintiff before the expiry of his term, the Plaintiff as Commander should have been given the opportunity to be heard. Had the Plaintiff had that opportunity he may have been able to persuade the First Defendant to a different course or outcome that may have addressed the practical difficulties associated with a looming election and need for stability in the Defence Forces as outlined by Counsel for the Defendants. Even if that was not the case, it was the denial of that opportunity that breached the Plaintiff’s right to natural justice.
  10. As a rule of natural justice the importance of the right to be heard has been restated in this jurisdiction in a long line of authorities (See for example, Kevi v The Teaching Service Commission [1997] PNGLR 659; Iambakey Okuk v Gerald Fallscheer [1980] PNGLR 274; Ombalo v Inguba [2004] PNGLR 535; Sausau v Kumgal [2006] N3253; Ilau v Somare [2007] PGNC 265; N5511; Koki v Inguba [2009] N3785; Marat v Hanjung Power Ltd [2014] SC 1357; Kaiyo v Pawa [2015] SC1469).
  11. As Lord Denning said in Malloch v Aberdeen v Corporation [171] 2 All ER 1278:

The right of a man to be heard in his defence is the most elementary protection of all.......The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.


  1. It is a principle that applies to all whose interests may be affected by administrative action. The Plaintiff was denied that right. That failure was a breach of the principles of natural justice. This ground is upheld.
  2. Having upheld two grounds of the review, it is not necessary to proceed to consider the third ground relied upon by the Plaintiff namely unreasonableness (Wednesbury principles).

COSTS


  1. The Plaintiff seeks costs on an indemnity basis or alternatively on a solicitor/client basis. The Defendants seek costs on a party and party basis.
  2. In Opi v Telikom PNG Ltd [2020] PGNC 168; N8290, Shepherd J discussed at [209] to [236] the different types of awards of costs which this Court can make and the relevant principles with respect to costs on a solicitor/client and indemnity basis which I respectfully adopt.
  3. With those principles in mind, in my discretion, I have determined that the Plaintiff should receive his costs on a solicitor and own client basis, that is, for fees and disbursements ‘reasonably incurred’ by him.
  4. This matter could have been resolved without the need for these proceedings. The First Defendant was made aware of the requirements of s 193 of the Constitution at the earliest in the letter from the Plaintiff’s lawyer dated 20 December 2021. There is no evidence of any response to that communication or the follow up letter of 24 December 2021.
  5. Nor is there evidence of a response to the Plaintiff’s settlement overtures in the letters of his lawyers of 28 April 2022, 24 August 2022 and 6 September 2023. In the letter of the 6 September 2023 the State was put on notice that if they did not wish to resolve the matter amicably the Plaintiff would have no choice but to proceed to a full hearing and seek costs on an indemnity basis. There is no evidence of a willingness to negotiate or compromise or address the facts including the constitutional requirements outlined in detail. Litigants who choose to ignore settlement communications of that nature, do so at their peril in circumstances where no meritorious defence was advanced on behalf of the Defendants at the substantive hearing.
  6. The consequence of requiring a hearing was lost time and the incurring of costs. Those costs included the costs thrown away of a half-day on 10 April 2024. The Plaintiff cannot be blamed for an internal administrative failure which saw the matter not properly diarised by the State, the State ill-prepared as a consequence resulting in the need to stand the matter down.
  7. The above factors require the Plaintiff to be compensated on a solicitor and own client basis and not a party and party basis. The evidence however does not permit a finding that an award of indemnity costs should be made in favour the Plaintiff, a rare order, which although compensatory is primarily punitive in nature. The evidence does not suggest that the conduct of the Defendants or any lawyer acting for them was so improper, unreasonable or blameworthy that punishment is warranted by way of an award of indemnity costs.

ORDERS


  1. The Plaintiff seeks orders that refer to the Minister of Defence and the Secretary of the Department of Defence. Neither are parties to the proceedings.
  2. The Plaintiff further seeks damages pursuant to s 23(1)(b) of the Constitution which provides that where any provision of a constitutional law prohibits or restricts an act, or imposes a duty, then unless a constitutional law or an Act of the Parliament provides for the enforcement of that provision the National Court may inter alia in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default, or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper. In the present case, however, Order 16 Rule 7 provides that remedy in the form of a claim for damages.
  3. In the result the Court orders:

(1) Pursuant to Order 16 Rule 1(1) of the National Court Rules the following impugned decisions be declared null and void:


  1. The decision of the Second Defendant made on 21 December 2021, acting on advice of the First Defendant by its decision of 15 December 2021 to:
    1. Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander of the Papua New Guinea Defence Force;
    2. Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
    3. Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.
  2. The decision of the First Defendant made on 15 December 2021, in a Special Meeting to advise the Head of State to:
    1. Revoke the appointment of the Plaintiff as Commander of the Papua New Guinea Defence Force;
    2. Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
    3. Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.
(2) Pursuant to Order 16 Rule 1(1) of the National Court Rules an order in the nature of certiorari to bring the above-named impugned decisions to this Honourable Court and to quash the decisions in their entity.

(3) An order pursuant to Order 16 Rule 7 of the National Court Rules that the Defendants pay the Plaintiff damages, the assessment of such damages to be listed on a date and time to be fixed after issuance of directions for hearing.

(4) The Defendants pay the Plaintiff’s costs on a solicitor/client basis to be agreed or taxed.

(5) The Plaintiff’s assessment of damages be adjourned to 3 June 2024 at 10.00am for mention with the parties to provide agreed directions to the Court on that date.

(6) Time to Abridge

Kopunye Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the First and Second Defendants

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2024/218.html