Brown Sinamoi, Margaret Loko, Ces Iewago and Reverend Edea Kidu v The Independent State of Papua New Guinea and Honourable Chris Haiveta as Minister for Finance and Planning

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 23 February 1995
• Citation: (1995) N1298
• Court: National Court
• Year: 1995
• Judgement Number: N1298

National Court: Doherty J

Judgment Delivered: 23 February 1995

N1298

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 10 OF 1995

BETWEEN: BROWN SINAMOI, MARGARET LOKO, CES IEWAGO, REV. EDEA KIDU

PLAINTIFFS

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

FIRST DEFENDANT

AND: HONOURABLE CHRIS HAIVETA AS MINISTER FOR FINANCE & PLANNING

SECOND DEFENDANT

Waigani

Doherty J

30 January 1995

23 February 1995

CERTIORARI — Review of Administrative Decision.

The Plaintiffs were all members of the National Gaming Control Board and the 2nd Defendant was the Minister responsible for the Gaming Act. He send notice to all the Plaintiffs of his intention to remove them on the grounds of inefficiency and misbehaviour. The grounds related to interpretation of the Gaming Act and actions by the Registrar to the Board.

Held

The Court has power to review an administrative decision of this kind.

The Minister is obliged in law to give reasons and to consider replies. The intent of S.8 (4) Gaming Act is to deal with individual Board members and not collective removal.

Cases Cited

Iambakey Okuk v. Fallscheer [1980] PNGLR 274

Malloch v. Aberdeen Corporation [1971] 2 All E.R. 1278

Godfrey Niggints v. Tokam & Others, N 1158

Benson Gegeyo & Others v. Minister for Lands & Physical Planning [1987] PNGLR 331

Counsel

Mr Kua, for the Plaintiffs

Mr Baker, for the Defendants

DOHERTY J: The plaintiffs were the Chairman and Members of the National Gaming Control Board, a Statutory board formed pursuant to Section 6 of the Gaming Machine Act 1993 (hereafter "the Act"). Their appointments were made and gazetted at various times in 1993 and 1994. There is no challenge concerning their appointment or its gazettal. Of the plaintiffs Margaret Loko was nominated by the National Council of Women, Ces Iewago was nominated by the Papua New Guinea Chamber of Commerce and Rev. Edea Kidu was nominated by the Melanesian Council of Churches.

Counsel for the plaintiffs stresses their status and standing in the community and submits that the Court can take judicial notice of their standing, I am not sure that the Court can take judicial notice of this type of thing but it suffices to say that their personal integrity has not been challenged by the defendants.

The Minister for Finance the 2nd Defendant is the Minister who appoints members to the board pursuant to S.6 (2) of Gaming Machine Act 1993. The appointments are for a term not exceeding five years (Section 6 (2) (b) ). Each of the plaintiffs before the Court (except Mr Sinamoi) says by affidavit, that he served diligently and faithfully and efficiently in his capacity as member. None of the deponents was cross examined on their affidavits.

On the 13 December 1994 the second defendant, the Minister for Finance and Planning, wrote to each of the plaintiffs informing each of them of his intention to terminate each appointment "on the grounds of inefficiency and misbehaviour pursuant to Section 8 (3) of the Gaming Machine Act 1993 in that you have allowed your Registrar to bring into question the integrity of the office of The Deputy Prime Minister and tampering with the Gaming Machine Act 1993 to suit your purposes".

There is no doubt that the Gaming Machine Act 1993 gives the Minister the power to put Board members on notice of his intention to terminate their appointments on the grounds of inefficiency or incapacity or misbehaviour and upon receipt of such a notice a Board member has 14 days (Section 8 (4) ) in which to reply in writing. The Minister is then obliged to consider that reply and "where appropriate terminate the appointment." If a member does not reply then his appointment is terminated.

My reading of the letter is at that there are two grounds only on which the Minister based his contention that each of the members was inefficient and misbehaved i.e.

(1) allowing the registrar to bring into question the integrity of the office of the Deputy Prime Minister;

(2) tampering with the Act.

I understood some of the submissions by counsel to suggest that the inefficiency and misbehaviour were independent of these two grounds but in my view the letter is clear that these two matters constitute the grounds of inefficiency and misbehaviour.

Each of the members strenuously denies the allegations and the plaintiffs Margaret Loko, Brown Sinamoi and Ces Iewago wrote in reply, Brown Sinamoi's letter is long and detailed on behalf of the Board. The others sought clarification of the allegations and said that the notice did not give them an opportunity to defend themselves against innuendoes that had been levelled against them. Rev. Kidu did not reply and relied on a statement by the Registrar that the Chairman (Mr Sinamoi) was replying on behalf of each of them. Counsel for the defendants says that there is no evidence that Ces Iewago actually sent his letter. In his affidavit he says that he wrote it and there is no suggestion in the affidavit in reply written by Mr D. Kapi that he did not receive Mr Iewago's letter, he quite definitely says he read the affidavit of Mr Iewago. I have no facts to suggest that the letter was not sent the defendant does not say it did not arrive and I am not prepared to uphold this as a ground of challenge.

It may be appropriate to refer here to the reply by the defendants. The second defendant has put nothing before the Court to explain his reasons or what led up to his actions on the 13 December. Instead there is an affidavit from Mr Kapi, a member of his staff, which annexes various correspondence from the 16 November onwards between the second defendant's office, the Board and other Government Departments. Some of the correspondences are exchanges between Mr Kapi and the Registrar of the National Gaming Control Board. Neither Mr Kapi nor the Registrar of the Board have appeared in Court to give evidence but the tone of the correspondence between them conveys a considerable amount of personal animosity. Mr Kapi does not state any grounds on behalf of the second defendant, and as I have noted the second defendant himself does not offer any grounds or reasons by way of affidavit or oral evidence. The Court is left to infer from the correspondence the reasoning leading to the decision to terminate the plaintiffs

The inference in this correspondence is that a controversy arose concerning the licence given to a company which had changed its membership after the licence was issued. There is also a suggestion that some other company (it is not clear to me if they are related companies) was of ill-repute overseas. The Board, through the chairman, had stated that the Board had relied on advice from police forces; those within the country and overseas.

From the facts before me I cannot clearly ascertain what exactly the Registrar allegedly did in relation to the office of the Deputy Prime Minister.

The affidavit of Mr Kapi annexed a letter referring to damaging allegations "by an overseas company made overseas." It does not say or suggest those remarks emanated from the Registrar. Clearly both the Board Members...