Elias R Wohengu, Robert Baiyage & Samson Joke v The Honourable John Hickey CBE MP, Minister for Agriculture & Livestock and The Independent State of Papua New Guinea and Warren Dutton, Kolin Damai & Julius Yeoh (2009) N3721

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 August 2009
• Court: National Court
• Citation: (2009) N3721
• Docket Number: OS (JR) NO 200 OF 2008
• Year: 2009
• Judgement Number: N3721

Full Title: OS (JR) NO 200 OF 2008; Elias R Wohengu, Robert Baiyage & Samson Joke v The Honourable John Hickey CBE MP, Minister for Agriculture & Livestock and The Independent State of Papua New Guinea and Warren Dutton, Kolin Damai & Julius Yeoh (2009) N3721

National Court: Cannings J

Judgment Delivered: 20 August 2009

N3721

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 200 OF 2008

ELIAS R WOHENGU, ROBERT BAIYAGE & SAMSON JOKE

Plaintiffs

V

THE HONOURABLE JOHN HICKEY CBE MP,

MINISTER FOR AGRICULTURE & LIVESTOCK

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WARREN DUTTON, KOLIN DAMAI & JULIUS YEOH

Third Defendants

Waigani: Cannings J

2009: 19 June, 20 August

JUDICIAL REVIEW – natural justice – whether members of statutory board must be given right to be heard prior to revocation of appointments – whether reasons must be given for revocation of appointment.

The Minister responsible for appointment of members of a statutory board revoked the appointment of three members (the plaintiffs) and made new appointments without giving notice to the plaintiffs of his intention to revoke their appointments and without giving them a right to be heard on whether their appointments should be revoked. The Minister notified the plaintiffs of his decision after the gazettal of his decision and the only reason he gave was that their appointments had not been “in line with” the Act under which they were appointed. The plaintiffs challenged by judicial review the Minister’s decision, arguing that the principles of natural justice required that they be given a right to be heard prior to the revocation of their appointments and that they be furnished with proper reasons for the decision and that the Minister’s failure to comply with those requirements rendered his decision void.

Held:

(1) Members of a statutory board hold public office and a decision to revoke their appointments inevitably affects their reputation and standing in the community. The principles of natural justice require that they be given notice of an intention to revoke their appointment and an opportunity to be heard on whether their appointment should be revoked (Gegeyo, Misso, Bell & Henao v Minister for Lands and Physical Planning [1987] PNGLR 336).

(2) An integral part of the right to natural justice is the right to be given good, proper and sufficient reasons for the decision (Ombudsman Commission v Peter Yama (2004) SC747).

(3) Here, the Minister failed to comply with his duty to accord natural justice to the plaintiffs by not giving them notice, not giving them a right to be heard and not furnishing good, proper and sufficient reasons for his decision.

(4) As a matter of discretion and in light of the principles of natural justice, good leadership, good governance and the Rule of Law espoused in the Constitution it is not appropriate or just that the Minister’s decision remains in force. Accordingly the Court declared that the Minister’s decision was void and of no effect and ordered that it be quashed, the consequences being that the plaintiffs are reinstated and the appointment of the new members is void.

Cases cited

The following cases are cited in the judgment:

Aegaiya v Baki and The State (2009) N3693

Dale Christopher Smith v Minister for Lands (2009) SC973

Gegeyo, Misso, Bell & Henao v Minister for Lands and Physical Planning [1987] PNGLR 336

Isaac Lupari v Sir Michael Somare (2008) N3476

Kerua v Council Appeals Committee of the University of Papua New Guinea (2004) N2534

Leo Nuia v The State (2000) N1986

Martha Kokiva-Age v Lawyers Statutory Committee (2005) N2835

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Nilkare v Ombudsman Commission (1995) N1344

Ombudsman Commission v Peter Yama (2004) SC747

Philip Aeava v The State (2001) N2136

Sinamoi, Loko, Iewago & Kidu v The State and Minister for Finance and Planning (1995) N1298

Counsel

W Hagahuno, for the plaintiff

J Alu, for the first defendant

G Emang, for the second defendant

B Frizzell, for the third defendant

20 August, 2009

1. CANNINGS J: The plaintiffs, Elias Wohengu, Robert Baiyage and Samson Joke, were appointed in October 2006 as members of the Rubber Board, a body established under the Rubber Act. They were appointed for a period of three years under Section 7 of the Rubber Act by the then Minister for Agriculture, Hon Sasa Zibe MP. Thirteen months later, in January 2008, their appointments were revoked and three new members were appointed in their place: the third defendants, Warren Dutton, Kolon Damai and Julius Yeoh. The decision to revoke their appointments and appoint the new members was made by the current Minister for Agriculture & Livestock, the first defendant, Hon John Hickey CBE MP.

2. In April 2008 the plaintiffs applied for leave to seek judicial review of Minister Hickey’s decision. Leave was granted and this is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiffs say that the Minister breached the principles of natural justice in two respects:

· He did not give notice of his intention to revoke their appointments and did not give them a right to be heard on whether their appointments should be revoked.

· He did not give proper reasons for his decisions.

4. They are the two grounds of review. If either or both are upheld the plaintiffs want the Court to declare that they have been denied natural justice and that Minister Hickey’s decision is null and void and to order that they be reinstated.

5. The defendants do not dispute that the Minister did not give the plaintiffs notice and did not give them a right to be heard. The defendants argue that he did not have to. As for giving reasons the defendants point out that the Minister did write to each of the plaintiffs on 14 March 2008. He stated to both Mr Wohengu and Mr Baiyage:

I have decided to revoke your appointment as a member … of the Rubber Board, since your appointment was not in line with Section 7 of the Rubber Act (Chapter 222). The revocation of your appointment came into effect as per gazettal notice of 17 January 2008.

I take this opportunity to thank you for the services you rendered to the Rubber Board since its inception.

6. In his letter to Mr Joke, who is an officer of the Department of Agriculture and Livestock, the Minister stated that he was revoking his appointment as a member (government official) on the recommendation of the Departmental Head. The defendants say that those are sufficient reasons.

ISSUES

7. There are three issues before the Court:

1 Did the Minister have to give notice of his intention to revoke the appointments and/or give the plaintiffs a right to be heard before revoking their appointments?

2 Did the Minister give sufficient reasons for revoking the appointments?

3 What declarations or orders should the Court make?

1 DID THE MINISTER HAVE TO GIVE NOTICE AND/OR A RIGHT TO BE HEARD?

Plaintiffs’ submissions

8. Mr Hagahuno, for the plaintiffs, submitted that as holders of public office the plaintiffs were entitled to protection of the principles of natural justice. It was not open to the Minister to summarily terminate their appointments. He was obliged to give them notice of the proposal to revoke their appointments and afford them an opportunity to be heard on any allegations against them. Mr Hagahuno relied on the following passage from the judgment of Amet J, as he then was, in Gegeyo, Misso, Bell & Henao v Minister for Lands and Physical Planning [1987] PNGLR 336 to underpin his submission:

… if any administrative decision will or may affect the reputation, integrity or standing in the community of persons holding public office then the minimum requirement of fairness must be afforded that person or persons. I consider that that minimum requirement should be to give advice or notice in writing of the reasons for a decision proposed to be taken which will affect the status of such a person. And if that reason is likely to cause negative aspersions on the character, integrity or reputation of that person, then I consider that an opportunity should be given to that person to be heard before such a reason or reasons are relied upon as the basis for that decision.

9. In Gegeyo the plaintiffs were appointed as members of the Land Board for a period of one year. Eleven weeks into their terms the Minister revoked their appointments and appointed new members to replace them. They challenged the decisions and succeeded. The Court held that they each held a public office, that the decision to revoke their appointments affected their integrity and reputation so they each had a right to be heard on whether their appointments should be revoked, which was denied them by the summary revocation of their appointments.

Defendants’ submissions

10. Mr Alu, for the first defendant, Minister Hickey, submitted that the facts of the present case should be distinguished from those in Gegeyo and that there are good reasons for saying that the plaintiffs were not entitled to be heard. He submitted that the Rubber Board was a different sort of entity to the Land Board as it has a narrow statutory function. The Minister had the power under the Rubber Act to revoke the appointments at any time. There was no set procedure he had to follow. He did not have to be...