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Wereh v National Executive Council [2024] PGNC 392; N11064 (29 October 2024)

N11064

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 70 OF 2024


BETWEEN:
DAVID WEREH
Plaintiff


AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


AND:
GIBSON HOLEMBA
Third Defendant


Waigani: Purdon-Sully J
2024: 27th September & 29th October


JUDICIAL REVIEW - Practice and Procedure – Application for summary dismissal – Parties to proceedings – Correct decisions need to be reviewed – Correct decision-maker needs to be a party to the proceedings – Advice that of National Executive Council – Head of State acting on advice - Correct decision maker was the Head of State – State the proper party to be named – Proceedings for review as pleaded futile as no decision by the National Executive Council to be reviewed – Proceedings dismissed as abuse of process


Cases Cited:

Papua New Guinean Cases
Keka v Yafaet [2018] PGSC 18; SC1673
Bluewater International Ltd v Mumu [2019] PGSC 41; SC1798
Tai v Baker [2023] PGNC 482
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
Waigani Heights Development Ltd v Mul [2018] N7162
Nilkare v Ombudmsan Commission (1995) N1344
Ombudsman Commission v Yama [2004] SC747
Wari v Ramoi & Dibela [1986] PNGLR 112; SC316
Sammy Lodge Limited v Luther Sipison as Secretary of the Department of Lands and Physical Planning & Ors [2024] SC2618


Legislation:
National Court Rules, Orders 16 r 3(8), 13(13)(2)
Public Services (Management) Act 1995, ss 31B and 31C
Constitution, ss 96(2), 138, 193(1B) and 1(C), 247(2)
Claims By and Against the State Act 1996, ss 3, 8


Other material
The National Executive Council Procedures Handbook (2022 edition). Clause 16


Counsel
Mr W Mapiso with Mr G Pumuye, for the Plaintiff
Mr D Mel with Mr C Yaga, for First Defendant
Mr L Kandi, for the Second Defendant
Mr K Sasingian, for Third Defendant


DECISION


29th October 2024


  1. PURDON-SULLY J: This is the Court’s decision following a contested hearing on 27 September 2024 with respect to:
    1. a Notice of Motion filed on behalf of the First Defendant on 9 September 2024 seeking the dismissal on the Plaintiff’s proceedings for judicial review on the basis that the proceedings fail to disclose a reasonable cause of action and the claim being frivolous and vexatious and an abuse of Court process; and
    2. A Notice of Motion filed on behalf of the Plaintiff on 28 August 2024 seeking a stay of two decisions purportedly made by the First Defendant.
  2. I shall deal with the First Defendant’s Notice of Motion first.
  3. The application is brought pursuant to order 16 r 13 (13) (2) (a) and (b) of National Court Rules (NCR). It relevantly provides:

(2) Summary disposal


  1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

......


  1. The First Defendant’s application is supported by the Second and Third Defendants.
  2. The application is opposed by the Plaintiff.

CONTEXTUAL BACKGROUND


  1. The Plaintiff was the Secretary of the Department of Works and Highways having been appointed to the position in May 2014 and reappointed in 2018 and 2022 for a four (4) year term.
  2. By its decision No 68/2024 of 3 April 2024 the First Defendant approved to advise the Head of State to appoint the Plaintiff as Ambassador to the Philippines. By letter of 2 May 2024 the Plaintiff was informed of this decision by the Minister for Foreign Affairs.
  3. On 8 May 2024, the Head of State appointed the Plaintiff as Ambassador to the Philippines on the recommendation of the First Defendant. The Head of State’s decision to appoint was gazetted in the National Gazette No. G338 dated 8 May 2024.
  4. By its decision No 180 of 2024 of 7 August 2024, the First Defendant recommended to the Head of State to revoke appointment of the Plaintiff as Secretary of the Department of Works and Highways and to appoint the Third Defendant as Acting Secretary.
  5. By its decision of 13 August 2024, the Head of State decided accordingly “with the advice of the National Executive Council, on the recommendation of the Public Services Commission”, the Head of State’s decision is found in National Gazetted No. G658 dated 13 August 2024.
  6. The decisions of the Head of State were made following resolutions of the First Defendant to that effect, the First Defendant having considered submissions in formal meetings, the First Defendant then advising the Head of State and the Head of State then making the decisions as appointing authority (see Affidavit of Grace So-On, Secretary to the First Defendant filed 9 September 2024 at [8]).
  7. Aggrieved by the decisions the Plaintiff commenced proceedings for leave for judicial review by way of Originating Summons filed on 13 August 2024 as amended on 14 August 2024 as follows:
    1. Pursuant to Order 16, Rule 3 of the NCR, leave to apply for judicial review of the decisions of the National Executive Council (First Defendant), the decisions:
      1. By way of notice in the National Gazette published on 8 May 2024, to appoint the Plaintiff as Papua New Guinea’s Ambassador to the Philippines for a period of four (4) years with effect in and from 8 May 2024;
      2. No 180/2024 dated 7 August 2024 to revoke the appointment of David Wereh as Secretary for the Department of Works and Highways and appoint Gibson Holemba as Acting Secretary for the Department of Works and Highways which decision was given effect to by the Acting Governor-General on 13 August 2024
  8. Leave for judicial review was granted on 22 August 2024. The State, who pursuant to s 8 of the Claims By and Against the State Act has a right to be heard on a leave application, did not oppose the grant of leave.
  9. The order granting leave was in terms of the order sought in the Plaintiff’s Amended Originating Summons.
  10. By Notice of Motion filed 28 August 2024 the Plaintiff then sought a stay order pursuant to Order 16 Rule 3(8) of the NCR.
  11. The grant of an order for stay was opposed by all of the Defendants, the First Defendant thereafter filing its application to dismiss.

THE LAW


  1. The Court has an inherent jurisdiction to manage and control proceedings before it subject to jurisdictional limits fixed by Statute. To that end it has wide powers to screen out claims that do not disclose a reasonable cause of action, are frivolous and vexatious and an abuse of process of Court.
  2. It is a discretion that can be exercised by a party or by the Court itself (Keka v Yafaet [2018] PGSC 18; SC1673 (Collier J, Neill & Liosi JJ) at [26] cited with approval in Bluewater International Ltd v Mamu [2019] PGSC 41; SC1798 (Kandakasi DCJ, Pitpit & Dingake JJ) at [37]-[40]).
  3. A frivolous claim is one that is inter alia, untenable, without serious purpose and which cannot succeed at trial. A frivolous claim is an abuse of process, as is the use of Court process to pursue proceedings which disclose no reasonable cause of action (Tai v Baker [2023] PGNC 482; Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8; Waigani Heights Development Ltd v Mul [2018] N7162).

THE ISSUE


  1. The principal issues that arise on the evidence which are said to ground dismissal by way of abuse of process, is whether the two decisions sought to be reviewed can be judicially reviewed and whether the Plaintiff has named the correct decision-maker of the decisions the subject of judicial review.

ARGUMENTS


  1. It is the submission on behalf of the First Defendant, in summary, supported by the Second and Third Defendants, that the proceedings seek to challenge decisions that do not exist, the Plaintiff challenging decisions of the First Defendant that it did not make, the correct decisions to be challenged those made by the Head of State as gazetted. As such the proceedings are futile, unable to succeed, frivolous and vexatious and an abuse of process.
  2. It is submitted on behalf of the Plaintiff, in summary, that:
    1. The Head of State has no power to make independent decisions on his own and as such cannot be held liable and no relief can be claimed against him, the proper defendant the Independent State of Papua New Guinea. In the present case the First Defendant made the relevant decisions, the subject of review, the Head of State signing the instruments to formalise those decisions. The Plaintiff has accordingly joined the First and Second Defendant as the proper parties.
    2. The First Defendant has misconceived the law on judicial review, a process concerned not with the decision but with the decision-making process. In this case the Plaintiff applied for leave to seek judicial review of the decision-making process adopted by the First Defendant in which it failed to follow due process of law denying the Plaintiff the right to be heard before the First Defendant resolved to advise the Head of State to re-deploy the Plaintiff and thereafter revoke his appointment as Secretary.
    1. If there was an issue with the decision to grant leave, one that was not opposed by the State on hearing the application for grant of leave, then the Defendants could have appealed the decision to the Supreme Court or otherwise sought to address the issues at the substantive hearing, the arguments raised by the Defendants not relevant for consideration at an interlocutory stage.

DISCUSSION


  1. The first question to ask is, what decision is sought to be judicially reviewed?
  2. It is unchallenged that the Plaintiff is aggrieved by the decision to:
    1. Appoint him to the Philippines (the first decision); and
    2. Revoke his appointment as Secretary and appoint the Third Defendant as Acting Secretary (the second decision).
  3. This is clear from the Amended Originating Summons filed 14 August 2024, outlined earlier.
  4. The second question to ask is, who made the first and second decision. The Plaintiff asserts both decisions were made by the First Defendant. That is also clear from the Amended Originating Summons which sought “leave to apply for judicial review of the decisions of the National Executive Council”.
  5. The Defendants assert that the relevant decisions were not made by the First Defendant, rather the Head of State acting on advice.
  6. The answer is important because the nature of judicial review requires that the right person apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy sought (Nilkare v Ombudmsan Commission (1995) N1344 cited with approval in Ombudsman Commission v Yama [2004] SC747 (Injia DCJ, Sakora & Sawong JJ)). If the first and second decisions were not made by the First Defendant, then there is nothing to judicially review, the relief sought against the First Defendant futile, the Plaintiff with no reasonable cause of action capable of succeeding. The fact that the Plaintiff may have joined the Second Defendant as a party in the proceedings does not assist, as it was not joined as the maker of the decision sought to be reviewed against whom the relief was sought. It was joined as a party who by virtue of s 8 of the Claims By and Against the State Act and Order 16 r (3) of the NRC had a right to be heard on the application for grant of leave for judicial review.
  7. Further, the fact that the State, did not oppose the grant of leave at the time, it being the only party who had a right to be heard on the hearing of the ex parte application for leave, does not disentitle the issue being raised again, where, it is an issue that goes to the jurisdiction of the Court and the competency of the application for judicial review.
  8. It is trite law that a decision can only be made by the person with lawful authority to make it. The Court accepts the submissions on behalf of the First Defendant that neither were decisions by the First Defendant.
  9. As for the first decision:
    1. it was made by Sir Bob Dadae as the Governor-General;
    2. on 8 May 2024;
    1. acting with and in accordance with the advice of the First Defendant.
  10. As for the second decision:
    1. it was made by the Chief Justice Sir Gibuma Salika as the Acting Governor General;
    2. on 13 August 2024;
    1. by virtue of the powers conferred by s 193(1B) and 1(C) of the Constitution and ss 31B and 31C of the Public Services (Management) Act 1995;
    1. in accordance with the advice of the First Defendant.
  11. Decisions of the First Defendant are resolutions reached by it at a properly constituted meeting. Clause 16 of The National Executive Council Procedures Handbook (2022 edition) defines NEC decisions as follows:

NEC decisions refer to the resolutions reached by the NEC after considering NEC submissions in formal NEC meetings. To enable the NEC to arrive at the best decisions, its discussions on a particular submission must be frank entailing that the meeting, together with all related documents, is subject to strict confidentiality.

.....


  1. The First Defendant’s decision concerning the Plaintiff’s appointment as Ambassador to the Philippines is contained in its Resolution reached on 3 April 2024 at its meeting 05/2024. The resolution reads:
    1. Noted the content of Statutory Business Paper No 45/2024;
    2. Noted the list of potential appointees recommended for appointment to Heads of Missions and Heads of Posts that have become vacant since the last appointments as provided in the table, attached; and
    3. Approved to advise the Head of State to make the appointments to the Heads of Missions and Heads of Posts as recommended.
  2. As for the First Defendant’s decision concerning revocation of the Plaintiff’s appointment as Secretary and appointment of the Third Defendant as Acting Secretary, it is contained in its Resolution reached 7 August 2024 at its Meeting No 14/2024. The resolution reads:
    1. Noted the content of Statutory Business Paper No 89/2024;
    2. Approved to advise the Head of State to revoke the appointment of Mr David Wereh as Secretary for Department of Works & Highways effective on and from the date of the Decision;
    3. Approved to advise the Head of State to appoint Mr Gibson Holemba David Wereh as Secretary for Department of Works & Highways effective on and from the date of the Decision Noted the list of potential appointees recommended for appointment to Heads of Missions and Heads of Posts that have become vacant since the las appointments a provided in the table, attached; and
    4. Approved to advise the Head of State to make the appointments to the Heads of Missions and Heads of Posts as recommended
  3. The correct decisions to be challenged were those of the Head of State as gazetted, the Head of State the only person with lawful authority and the capacity to make the decisions sought to be reviewed. I am confirmed in that view by the provisions of s 31(C) of the Public Services (Management) Act and s 193 (1B) and 1(C) of the Constitution.
  4. Section 31(C) of the Public Services (Management) Act provides:

31C. PROCEDURES RELATING TO REVOCATION OF APPOINTMENTS OF DEPARTMENTAL HEADS.


The procedures relating to the revocation of appointments of Departmental Heads referred to in Section 193(1C) (appointments to certain offices) of the Constitution are as follows: –

(a) the Commission –


(i) may, on its own volition; or


(ii) shall, on receipt of a request from the National Executive Council for revocation of the appointment of a Departmental Head accompanied by a written statement by the Minister specifying the grounds for requesting the revocation (being grounds consistent with the grounds for revocation of appointment in a contract of employment entered into by that Departmental Head under Section 28),


refer the matter to the Departmental Head of Department of Personnel Management –


(iii) to investigate the allegations and circumstances; and


(iv) to report thereon to the Commission within 30 days from the date of reference;


(b) the Departmental Head of the Department of Personnel Management shall –


(i) investigate the allegations and circumstances relating to any matter referred to him under Paragraph (a); and


(ii) report thereon to the Commission within 30 day period referred to in Paragraph (a)(iv);


(c) the Commission shall –


(i) consider the report made to it under Paragraph (b)(ii); and


(ii) make, or cause to be made, and consider such further investigations (if any) as it considers necessary; and


(iii) on the basis of the report and the results of such further investigations (if any), recommend to the National Executive Council whether or not the appointment of the Departmental Head should be revoked;


(d) where the Commission recommends the revocation of appointment of a Departmental Head, the National Executive Council shall advise the Head of State to revoke the appointment.


[Underlining added]


  1. Section 193(1B) and 1(C) of the Constitution states:

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.


....

[Underlining added]


  1. Instead of challenging the decisions made by the Head of State (or seeking leave to review the decisions of the First Defendant to advise the Head of State to make the first and second decision), the Plaintiff sought to challenge decisions of the First Defendant which were non-existent.
  2. It is submitted on behalf of the Plaintiff that the Head of State has no power to make independent decisions of its own and no relief can be claimed against the Head of State and that “the two decisions of the NEC and or the Head of State are properly identified and pleading in the Amended Originating Summons of the Plaintiff filed on 14 August 2024” (written submissions at [7]).
  3. It is submitted on behalf of the Second Defendant that the law is clear and that lawyers representing parties seeking judicial review have often failed to give proper heed to long established principle in this regard and their duty as officers of the Court.
  4. Learned Counsel for the Second and Third Defendants refer the Court to a number of relevant authorities on the point.
  5. While the Head of State only acts on advice and under s 96(2) of the Constitution cannot be sued personally, its immunity does not mean that there is no recourse for breaches by actions taken by the First Defendant (or any public authority) acting through the Head of State. In Wari v Ramoi & Dibela [1986] PNGLR 112; SC316, Kidu CJ said:

This does not mean that the contents of the decision of the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in the Minister for Lands v Frame (at 477) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged:


“...To maintain that because the Governor General has caused a regulation to be published in the Gazette following on advice, and because the advice received by the Governor-General is non-justiciable means that no consequent regulation can be challenged as ultra vires is a proposition of law so fundamentally misconceived as to warrant no further consideration.”


If the proposition rejected by Pratt J was indeed the law, it would cause grave constitutional and legal problems.


  1. The above passage was cited with approval in Sammy Lodge Limited v Luther Sipison as Secretary of the Department of Lands and Physical Planning & Ors [2024] SC2618 at [30], a recent decision of the Supreme Court handed down on 27 August 2024. The Court (Kandakasi DCJ, Toliken & Kaumi JJ) said at [31]-[32]:

31. There is indeed provision made in the Constitution by s 247(2) for the Independent State of Papua New Guinea (or in short, the State) to be sued instead. Again the decision of Wari v Ramoi & Dibela (supra), per Kidu CJ noted that position and ably explained in these terms:


The third relevant provision is in s 247(2) of the Constitution. It says:


(2) Papua New Guinea may sue or be sued, in accordance with an Act of the Parliament (There is in fact such an Act, the Claims By and Against the State Act )Ch No 30)).


It is to be noted that it is Papua New Guinea which the Constitution permits to be sued and not the Head of State, the Governor General or the National Executive Council. Papua New Guinea is defined in the Constitution, Sch 1.2, as meaning the Independent State of Papua New Guinea. So a person who is aggrieved by any act or acts of the State must proceed against the Independent State of Papua New Guinea. The Head of State, the depository of executive power of the people (s 138 of the Constitution) exercised these powers on advice and on behalf of the People or the State (the {People’s collective name). And therefore it is only right and proper that in relation to all official acts done by the Head of State aggrieved person proceed against the State and not the head of State personally.


31. Kapi DCJ (as he then was) who was the other member of the Court agreed with Kidu CJ. The third member of the Court Amet J (as he then was) came to the same view in a separate opinion. In the end the Court was unanimous on the issue.


  1. The decisions of the First Defendant of 3 April 2024 and 7 August 2024 in the form of resolutions to advise the Head of State to appoint the Plaintiff as Ambassador to the Philippines and revoke appointment of the Plaintiff as Secretary and appoint the Third Defendant as Acting Secretary were not final and binding until the Head of State made the decisions based on the advice provided by the First Defendant’s meeting minutes.
  2. The Head of State then exercised his constitutional and statutory powers to act on the recommendations of the First Defendant.
  3. On 8 May 2024, the Head of State appointed the Plaintiff as Ambassador to the Philippines on the recommendation of the First Defendant, the Head of State’s decision to appoint gazetted in the National Gazette No G338 on that date.
  4. On 13 August 2024, the Head of State, again acting on the recommendation of the First Defendant, revoked the appointment of the Plaintiff and appointed the Third Defendant as the Acting Secretary of Works and Highways, the Head of State’s decision gazetted in National Gazetted No G658 on that date.
  5. The Plaintiff is seeking to review decisions purportedly made by the First Defendant. However, the correct decision-maker with respect to the first and second decision is the Head of State, not the First Defendant, the correct party to be named in these proceedings as decision-maker by virtue of s 3 of the Claims By and Against the State Act 1996 which provides:

A person making a claim against the Head of State, or Governor-General, acting on advice, shall, in the proceedings, make such claim against the Attorney-General who shall be the nominal defendant on behalf of the Head of State and Governor-General.


  1. While the submissions fulsomely advanced on behalf of the Plaintiff make clear that the Plaintiff feels deeply aggrieved by the decision to revoke his appointment as Secretary of the Department, the correct decisions need to be challenged, that is, the decision made by the person with legal authority to make it. In failing to name the correct decision-maker and correctly identify the decisions to be reviewed, the Plaintiff cannot succeed on his application to review as currently pleaded. The relief sought by him does not exist because the decisions challenged were made by someone other than the First Defendant. They were made by the Head of State.
  2. In consequence the Plaintiff has no reasonable cause of action. The proceedings are frivolous and an abuse of process. The proceedings should be dismissed.
  3. While his primary position was one of dismissal of the proceedings, learned Counsel for the Second Defendant did raise with the Court the alternative option of granting of leave to the Plaintiff to amend its Originating Summons to remedy its defects. I am not persuaded that would be the correct approach. Putting to one side that there is no application by the Plaintiff for leave to amend, properly brought and supported, the Plaintiff having been put on notice with respect to the issue by reason of the filing of the First Defendant’s Notice of Motion, proceedings for judicial review must be competent. The defects that present here are not ones readily fixed by amendment. Given the nature of the defects, the better course is to end the proceedings. It will be a matter for the Plaintiff to then determine how he wishes to proceed.
  4. Further, there is some merit in the argument advanced by learned Counsel for the First Defendant that naming the correct decision-maker and the correct decision to be reviewed should not be difficult matters and granting leave to remedy such a defect, if sought, would reward bad procedure.
  5. Having concluded that the proceedings should be dismissed on the basis outlined, it is not necessary to consider the further arguments advanced on behalf of the First Defendant. The First Defendant conceded that if the Court accepted its argument that the correct decisions had not been challenged rendering the proceedings futile then it would not be necessary for the Court to consider the further grounds raised on its submissions namely, whether the proceedings should be summarily dismissed as no reasonable cause of action was disclosed by reason of a failure of the Plaintiff to plead the essential elements constituting the grounds of review.
  6. By reason of the Court’s decision to dismiss the proceedings it is not necessary to consider the Plaintiff’s application for stay.

ORDERS


  1. The Court makes the following orders:
    1. Pursuant to Order 16 r 13(13)(2) of the National Court Rules the proceedings be dismissed as an abuse of Court process.
    2. The Plaintiff pay the costs of the First, Second and Third Defendants to be agreed or taxed.

Time to abridge.


Guardian Legal Services: Lawyers for the Plaintiff
Mel Hennry Lawyers: Lawyers for the First Defendant
MS Wagambie Lawyers: Lawyers for Second Defendant
Sasingian Lawyers: Lawyers for Third Defendant

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