Aita Sanangkepe v Honourable Paias Wingti, Governor & Chairman of the Provincial Executive Council & Provincial Assembly of the Western Highlands Provincial Government and Leo Meninga, Cabinet Secretary Western Highlands Provincial Government and the Provincial Executive Council of the Western Highlands Provincial Government and Western Highlands Provincial Government

• Jurisdiction: Papua New Guinea
• Judge: Makail AJ
• Judgment Date: 17 June 2008
• Court: National Court
• Citation: (2008) N3404
• Docket Number: OS 783 OF 2006
• Year: 2008
• Judgement Number: N3404

Full Title: OS 783 OF 2006; Aita Sanangkepe v Honourable Paias Wingti, Governor & Chairman of the Provincial Executive Council & Provincial Assembly of the Western Highlands Provincial Government and Leo Meninga, Cabinet Secretary Western Highlands Provincial Government and the Provincial Executive Council of the Western Highlands Provincial Government and Western Highlands Provincial Government

National Court: Makail AJ

Judgment Delivered: 17 June 2008

N3404

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 783 OF 2006

BETWEEN

AITA SANANGKEPE

Plaintiff

AND

HONOURABLE PAIAS WINGTI, GOVERNOR & CHAIRMAN OF THE PROVINCIAL EXECUTIVE COUNCIL & PROVINCIAL ASSEMBLY OF THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

First Defendant

AND

LEO MENINGA

CABINET SECRETARY-WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Second Defendant

AND

THE PROVINCIAL EXECUTIVE COUNCIL

OF THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Third Defendant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Fourth Defendant

Mount Hagen: Makail AJ

2008: 10 June

: 17 June

ADMINISTRATIVE LAW & JUDICIAL REVIEW - application for judicial review - decision of western highlands provincial executive council to revoke appointment of plaintiff as a member of western highlands provincial education board - exercise of legislative power - procedures of appointment and revocation of teacher representatives on provincial education board - power to appoint vest in provincial executive council - plaintiff a career teacher and member of teachers association through its western highlands branch - teachers association recommends - appointment based on list of names recommended by teachers association - two members appointed from list of names - whether decision ultra vires - Western Highlands Provincial Education Act No 1 of 2001 - sections 15 & 22 - no expressed power to revoke appointment - appointment ends by virtue of expiry of three years except for misbehaviour and incapacity of members - Western Highlands Provincial Education Act No 1 of 2001 - section 15(4) - implied power to revoke appointment vested in provincial executive council - Interpretation Act - section 36(1).

JUDICIAL REVIEW - exercise of legislative power pursuant to amendment to Western Highlands Provincial Education Act No 3 of 2006 - sections 15 & 22 amended - effect- appointment of teachers’ representatives based on list of names submitted by chairman for education and representing district education board - two members appointed from list of names - three new teachers’ representatives appointed - no expressed decision made on revocation of appointment of plaintiff - implied revocation of appointment - Interpretation Act - section 36(1).

EVIDENCE - no evidence of certification of amendments by Minister for Provincial and Local Level Government Affairs - effect - notwithstanding no evidence of certification of amendments, amendments deemed approved by Minister for Provincial and Local Level Government Affairs - Organic Law on Provincial Governments & Local Level Governments - section 141 - procedures of appointment and revocation of teacher representatives to provincial education board under Education Act 1983, section 31 inapplicable - by virtue of Education Act 1983, section 30 - no inconsistency with amendments to Western Highlands Provincial Education Act No 3 of 2006 - sections 15 & 22.

CONSTITUTION - principles of natural justice - minimum requirement to act fairly - right to be heard and given reasons for decision - Constitution - section 59 - breach - no right afforded to plaintiff to be heard prior to decision - audi alteram partem rule applied - no reasons given for decision - decision null and void.

JUDICIAL REVIEW - principles of unreasonableness - decision unreasonable - Wednesbury’s principles of unreasonableness - relevant considerations not taken into account - career teacher - experience - president of teachers association of Western Highlands Province - irrelevant considerations taken into account - not disclosed - decision unreasonable.

ORDERS - application for judicial review discretionary remedy - events over taken purpose of application for judicial review - prior order of Court ordering removal of members of provincial education including plaintiff - conflict with previous Court Order - grant of application detrimental to good administration of provincial education board - confusion over membership and administration of education board - judicial review is not available where damages is an alternative remedy - plaintiff to sue for damages - application dismissed - orders accordingly.

Cases cited:

Papua New Guinea Cases

Gerald Sidney Fallscheer -v- Iambakey Okuk & The State [1980] PNGLR 101

Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122

Chris Appa -v- Peter Wama & Ors [1992] PNGLR 395

Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123

Simon Opa & Mount Hagen Park Secondary School -v- Hans Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343

Overseas Cases Cited:

Associated Provincial Picture House -v- Wednesbury Corporation [1948]1KB 230

Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1977] AC 1014

Counsel:

Mr P. Kunai, for the Plaintiff

Mr R. Otto, for the Defendants

17 June, 2008

1. MAKAIL AJ: This is an application for Judicial Review made pursuant to Order 16 of the National Court Rules to review the decision of the First, Third and Fourth Defendants to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board and then to appoint the Second Defendant as Chairman of that Board on 9 May 2006. Leave to review this decision was granted by this Court on 5 April 2007.

2. Prior to leave being granted, on 23 October 2006, the Court granted an Interim Injunction to stay the decision of the First, Third and Fourth Defendants from being given effect to or implemented until the determination of the substantive application for Judicial Review. As a result, the Plaintiff remains a member of the Western Highlands Provincial Education Board until the Court decides otherwise.

BRIEF FACTS

3. The Plaintiff is an adult male aged 56 years old and comes from Minimp Village near Mt Hagen in the Western Highlands Province. He is presently the President of the Western Highlands Branch of the Papua New Guinea Teachers Association (PNGTA). He was elected to this position by the teachers of the Western Highlands Province through a secret ballot for a period of three years commencing in August 2005 and ending in August 2008.

4. By virtue of his election as the President of the Western Highlands Province Branch of the PNGTA, the Plaintiff was recommended as one of the Teachers’ Representative on the Western Highlands Provincial Education Board. In August 2005, the Western Highlands Provincial Executive Council approved his appointment as a member of the Western Highlands Provincial Education Board.

5. On 9 May 2006, the First, Third and Fourth Defendants convened a meeting and resolved to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board. It is this decision which the Plaintiff seeks to review.

COURT DOCUMENTATION

6. In support of the application for Judicial Review, the Plaintiff has filed and relies on the following documents:

1. Originating Summons filed on 23 October 2006;

2. Statement in Support of Application for Judicial Review filed on 23 October 2006;

3. Amended Statement in Support of Application for Judicial Review filed on 10 April 2007; and

4. Notice of Motion filed on 27 April 2007.

7. From the Originating Summons filed on 23 October 2006, the Plaintiff seeks the following reliefs:

“1. Leave be granted to the Plaintiff to file an application for Judicial Review of a decision of the Third Defendant made at Mount Hagen on 09th May 2006 whereby the Third Defendant revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

2. An Order for the Prerogative Writ of Certiorari to be issued to quash and remove into the National Court the decision of the Third Defendant made at Mount Hagen on 9 May 2006 whereby the Third Defendant revoked the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board.

3. A declaration that the Third Defendant’s decision to revoke the appointment of the Plaintiff as a member of the Western Highlands Provincial Education Board is unlawful and is null and void and of no effect.

4. An Order to stay the appointments of the new board members to the Western Highlands Provincial Education Board appointed by the Third Defendant on 9 May 2006 until the proceedings have been finalized.

5. A declaration that the Plaintiff’s appointment to the Provincial Education Board is determined by the Western Highlands Provincial Teachers Associations and not otherwise.

6. Until further Order, an Order directing the members of the previous Provincial Education Board whose appointments have been revoked by the Third Defendant continue to hold office as members of the Provincial Education Board until these proceedings have been finalized.

7. Costs of the action.

8. Such further or other Orders as the Court may think fit”.

8. As leave was granted and as is required by Order 16 rule 5(1) of the National Court Rules, the Plaintiff filed a Notice of Motion on 27 April 2007 seeking the following...