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Bowada v Thatchenko [2022] PGSC 64; SC2258 (13 July 2022)

SC2258

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 58 OF 2021

BETWEEN:
ELIZABETH BOWADA
Appellant

AND:
HONOURABLE JUSTIN THATCHENKO MP
MINISTER FOR HOUSING AND ORGANIZATION
First Respondent

AND:
THE SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
Second Respondent

AND:
THE PUBLIC SERVICE COMMISSION
Third Respondent

AND:
THE NATIONAL EXECUTIVE COUNCIL
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

AND:
HENRY JOSEPH MOKONO
Sixth Respondent

Waigani: Gavara-Nanu J, Dingake J & Dowa J
2022: 26^th April & 13^th July

APPEAL – Judicial review – Application for leave – Refusal of leave – Exercise of discretion by the primary judge – Primary judge considering the merits and making judicial determinations – Irrelevant considerations – Principles for leave applications.

APPEAL – Supreme Court Rules, 2012 – Order 10 - Error of law – Appeal allowed – Power of the Supreme Court to grant leave – Remittance of the matter to the National Court.

Cases Cited:
Papua New Guinean Cases

Alois Kingsly Golu v. National Executive Council & Or (2011) N4425
Innovest Limited v. Hon. Patrick Pruaitch & The State (2014) N5949
James Yoka Ekip & Or v. Patilias Gamato (2017) N1594

Overseas Cases

Inland Revenue Commission v. National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617

Counsel:

1. Mana, for the Appellant

M. Tukulia, for First, Second, Third, Fourth and Fifth Respondents
L. Tangua, for Sixth Respondent

13^th July, 2022

1. BY THE COURT: The appellant brings this appeal under Order 10 of the Supreme Court Rules 2012, as amended (Rules). The appeal is against the decision of the primary judge given in respect of proceeding OS (JR) No. 115 of 2021, on 2 September 2021. In that proceeding the appellant sought leave to review the decision of the first respondent to appoint the sixth respondent the Managing Director for the National Housing Corporation (NHC). It is alleged that the appointment by-passed the mandatory procedures for such appointments. The appellant at the material times was the Acting Managing Director for the NHC and had besides others, applied for the position. The primary judge refused the appellant’s application for leave to review the decision of the first respondent to appoint the sixth respondent the Managing Director for the NHC for lack of standing and arguable case or a serious issue to be tried.
   
2. Pursuant to the established principles the appellant had to satisfy four requirements to be granted leave. First, the decision she was seeking to review affected her rights and interests directly, thus giving her sufficient interest or standing in the matter. This requirement is prescribed under Order 16 r 3 (5) of the National Court Rules (NCR). Second, there was no undue delay in seeking leave for review of the decision. This requirement is prescribed under Order 16 r 4 of the NCR. Third, the appellant had exhausted all the administrative remedies before seeking leave. Fourth, there was an arguable case or a serious issue to be tried. The latter two requirements are based on common law. See, James Yoka Ekip & Or v. Patilias Gamato (2017) SC1594; Alois Kingsly Golu v. National Executive Council & Ors (2011) N4425 and Innovest Limited v. Hon. Patrich Pruaitch & The State (2014) N5949.
   
3. It is convenient at this juncture to deal with the preliminary issue raised by Mr. Mana, counsel for the appellant whether the sixth respondent who is the incumbent Managing Director for the NHC should be heard on this appeal given that he had no right to be heard on leave and that he was not heard.
   
4. This issue relates to the requirements of s. 8 of the Claims By and Against the State Act 1996, which only gives right to the State to be heard on leave. Thus, an application for leave is made ex-parte under Order 16 r 3 (2) of the NCR. See, Innovest Limited v. Hon. Patrick Pruaitch & The State (supra). Parties other than the State can only be heard with leave of the court, but such leave is at the court’s absolute discretion. Issues relating to matters of public interest may provide grounds for the courts to grant leave.
   
5. In this case, although the sixth respondent had no right to be heard on leave, the Court is of the view that he should be heard for three basic reasons. First, he is a respondent to the appeal. Second, his rights and interests are affected directly by this appeal and has been served with the relevant documents. Third, the requirements of s.8 of Claims By and Against the State Act, are immaterial for Court’s determination of the issues in this appeal which are governed and regulated by the Rules of the Court and the Supreme Court Act, Chapter 37.
   
6. That said, we stress that the sixth respondent like the appellant and the State are limited in their submissions to the materials which the primary judge considered in refusing leave, as the exercise of discretion by the primary judge to refuse leave was based on those materials. See, Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617. The parties cannot rely on new and fresh materials which were not before the primary judge. This principle reflects the requirements of Order 10 r 3 (b) of the Rules.
   
7. As alluded to above, the primary judge dismissed the appellant’s application for leave only on two of the four requirements for leave, viz; lack of sufficient interest and arguable case. It follows that the primary judge was satisfied that the other two requirements of delay and exhaustion of administrative remedies were satisfied by the appellant.
   
8. It is an established principle of law that on the issue of arguable case, the primary judge only had to decide upon quick perusal of the materials then before the court whether there was a prima facie case of an arguable case. See, Innovest Limited v. Hon. Patrich Pruaith & The State (supra). This principle was succinctly stated by Lord Diplock in Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Ltd (supra) in which his Lordship said:

"So this is a threshold question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.

...If on a quick perusal of the material then available, the Court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed. It ought to in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the Court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." (Our underlining).

9. It follows that it is an error of law for a primary court to consider and make judicial determinations on the merits of the case when deciding an application for leave for judicial review under Order 16 r 3 of the NCR.
   
10. Mr. Mana submitted that the primary judge erred in law when he went on to consider the merits of the case and to make judicial determinations.
    
11. Having considered the materials before the Court, including submissions by counsel, we accept Mr. Mana’s submissions that the learned primary judge erred in his decision regarding the two requirements of standing and an arguable case. First, the decision regarding standing was against the evidence presented by the materials before the primary judge. The appellant was the Acting Managing Director for the NHC at all material times and had applied to be made substantive on the position. Surely, in those circumstances the appellant’s rights and interests were affected directly by the actions of the first respondent who according to the appellant had no authority to appoint the sixth respondent to the position of the Managing Director for NHC. Second, the appellant had in his application for leave, argued that the appointment of the sixth respondent was illegal because the proper authority to make the appointment was the NHC Board which she argued was in existence. This argument had the support of a written legal opinion provided by State Solicitor. The appellant’s argument was opposed by the State thus giving rise to an arguable case to be tried. The issue of whether there was a NHC Board, and if so whether the Board was the proper authority to appoint the Managing Director for the NHC became a contentious issue going to the merits of the case. The primary judge therefore had no jurisdiction to make a judicial determination on the issue. However, that is exactly what the primary judge did by making a judicial determination on the issue, thus falling into an error.
    
12. The primary judge had also allowed himself to be influenced by other irrelevant considerations which went to the merits of the case. For example, his Honour accepted the views expressed by the first respondent, the Minister for Housing, Hon. Justin Thatchenko in the affidavit the Honourable Member swore in which he deposed that the appellant had “no standing” to bring the proceeding. The primary judge also accepted the view expressed by the former Minister for Public Service, Hon. Wesley Nukundi that the appellant who was facing criminal charges was not eligible to become the Managing Director for NHC. His Honour discussed and accepted the views expressed by the two Ministers of the State and held that the appellant was not a fit and proper person to hold the position of the Managing Director for NHC. His Honour also with respect, erroneously held that in the circumstances he had no discretion but to refuse the appellant’s application for leave for judicial review.
    
13. Incidentally the State in the end decided against proceeding with the criminal charges against the appellant.
    
14. For the foregoing reasons, we are satisfied that the learned primary judge erred in refusing leave to the appellant to seek review of the decision of the first respondent to appoint the sixth respondent to the position of the Managing Director for the NHC.
    
15. In the result, pursuant to the powers conferred on the Court by s. 16 (b), (c) and (d) of the Supreme Court Act and s. 155 (4) of the Constitution, we make the following orders:
    

(i) The appeal is allowed; and

(ii) The decision of the learned primary judge given on 2^nd September 2021, is quashed; and

(iii) The appellant is granted leave to review the decision of the first respondent to appoint the sixth respondent to the position of the Managing Director for the NHC; and

(iv) The matter is remitted to the National Court for directions hearings before a different judge to progress the matter to trial; and

(v) The respondents will pay the appellant’s costs of and incidental to the appeal which are to be taxed, if not otherwise agreed.

Orders accordingly.
________________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Appellant
Solicitor General: Lawyers for the First, Second, Third, Fourth and Fifth Respondents
Tangua Lawyers: Lawyers for the Sixth Respondent