Hon. Puri Ruing v Hon. Dr. Allan Marat,

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, J.
• Judgment Date: 14 May 2012
• Citation: (2012) N4672
• Court: National Court
• Year: 2012
• Judgement Number: N4672

Full : OS 208 of 2012; In the Matter of the appointment of Directors of the Board of the National Airports Corporation Limited under the Civil Aviation Act; Hon. Puri Ruing in his capacity as the Minister for Civil Aviation and Shareholder of the National Airports Corporation Ltd and Jerry Agus & Steven Pim as Directors of the National Airport Corporation Limited v Hon. Dr. Allan Marat, Minister for Justice & Attorney General as nominal defendant for and on behalf of the Acting Head of State of Papua New Guinea, Hon. Ano Pala and the Independent State of Papua New Guinea and Peter Neville and Joseph Kintau (2012) N4672

National Court: Hartshorn, J.

Judgment Delivered: 14 May 2012

N4672

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 208 OF 2012

IN THE MATTER OF THE APPOINTMENT OF DIRECTORS OF

THE BOARD OF THE NATIONAL AIRPORTS CORPORATION

LIMITED UNDER THE CIVIL AVIATION ACT

BETWEEN:

HON. PURI RUING

in his capacity as the Minister for Civil Aviation and Shareholder

of the National Airports Corporation Ltd

First Plaintiff

AND:

JERRY AGUS & STEVEN PIM

as Directors of the National Airport Corporation Limited

Second Plaintiffs

AND:

HON. DR. ALLAN MARAT,

Minister for Justice & Attorney General as nominal Defendant for and on behalf of the ACTING HEAD OF STATE OF PAPUA NEW GUINEA, HON. ANO PALA

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

AND:

PETER NEVILLE

Third Defendant

AND:

JOSEPH KINTAU

Fourth Defendant

Waigani: Hartshorn, J.

2012: 7th & 14th May

Application to dismiss proceeding

Facts:

This is an application to dismiss the proceeding as an abuse of the process of the court. The plaintiffs in their amended originating summons seek substantively a declaration that the third defendant's appointment as a director and the chairman of the National Airports Corporation Ltd (NAC) by the then Acting Head of State (Head of State) pursuant to the advice of the National Executive Council (NEC) is illegal and null and void ab initio for non-compliance with certain statutory provisions. The third and fourth defendants seek to dismiss this proceeding as an abuse of process of the court pursuant to Order 10 Rule 9A (15) and Order 12 Rule 40 (1)(c) National Court Rules

Held;

1. This proceeding is dismissed.

2. the plaintiffs shall pay the costs of the third and fourth defendants of and incidental to the proceeding

Cases:

Papua New Guinea cases

National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264

Gene v. Hamidian-Rad [1999] PNGLR 444

Telikom PNG Ltd v. ICCC and Digicel (2008) SC906

Rabaul Shipping Ltd v. Rupen (2008) N3289

Overseas cases

Re Commonwealth of Australia v. Northern Land Council and Energy Resources of Australia Ltd [1991] FCA 416; 30 FCR1/103 ALR 267

Counsel:

Mr. N. Tame, for the Plaintiffs

Mr. F. Griffin, for the Third and Fourth Defendants

14th May, 2012

1. HARTSHORN, J: This is an application to dismiss the proceeding as an abuse of the process of the court.

2. The plaintiffs in their amended originating summons seek substantively a declaration that the third defendant's appointment as a director and the chairman of the National Airports Corporation Ltd (NAC) by the then Acting Head of State (Head of State) pursuant to the advice of the National Executive Council (NEC) is illegal and null and void ab initio for non-compliance with certain statutory provisions.

3. The third and fourth defendants seek to dismiss this proceeding as an abuse of process of the court pursuant to Order 10 Rule 9A (15) and Order 12 Rule 40 (1)(c) National Court Rules as:

a) the proceeding has been brought incorrectly pursuant to Order 4 National Court Rules as it seeks orders in the nature of prerogative writs and should have been brought under Order 16 National Court Rules.

b) the decision the subject of complaint is a decision of the Head of State made pursuant to advice from the NEC. The first plaintiff was a member of the NEC when the decision to advise the Head of State was made and continues to be a member of the NEC.

4. The plaintiffs oppose the application and submit that Order 4 and Order 16 Rule 1 (2) National Court Rules permit the relief to be claimed as it has. Further, the first plaintiff submits that he is not precluded from seeking the relief sought as although he is a member of NEC, it is not a decision of NEC that is the subject of complaint but a decision of the Head of State and that decision is wrong in law.

Whether proceeding brought correctly

5. The plaintiffs submit that they are able to seek the declaratory and injunctive relief by originating summons under Order 4 National Court Rules as they are not seeking orders in the nature of prerogative writs. Further, Order 16 Rule 1 (2) National Court Rules provides that declaratory and injunctive relief may be brought pursuant to that Rule but that it is not mandatory to do so.

6. The third and fourth defendants submit that the decision of the Head of State was made on the advice of the NEC. The declaration sought by the plaintiffs is that the decision of the Head of State is illegal and null and void ab initio as it is contrary to certain statutory provisions. To obtain this relief the plaintiffs will be obliged to submit that there has been an error on the face of the record and that the decision of the NEC to advise the Head of State as it did and the decision of the Head of State, require to be reviewed by this court. The order sought is really an order in the nature of certiorari but disguised as a declaration. This is an abuse of process submit the third and fourth defendants, as Order 16 Rule 1 (1) National Court Rules provides that an order in the nature of certiorari shall be made by way of an application for judicial review in accordance with Order 16 National Court Rules. This requires amongst others, leave for judicial review to be obtained.

7. The plaintiffs and third and fourth defendants all rely upon the Supreme Court decisions of National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264, Gene v. Hamidian-Rad [1999] PNGLR 444 and Telikom PNG Ltd v. ICCC and Digicel (2008) SC906 in support of their respective positions.

8. In Lucas (supra), the relief sought was similar to the relief sought in this instance. That is a declaration that the appointment of Mr. Lucas as the Secretary and Departmental head of the Department of Attorney General is illegal and therefore null and void ab initio. The appointment was by the Head of State acting on the advice of the NEC. The Court held that as application was not made for orders of the sort referred to in Order 16 Rule 1 (1), the plaintiff had a choice of procedures, either Order 4 or Order 16.

9. The issue raised by the third and fourth defendants, that the relief sought by the plaintiffs is in reality an order in the nature of certiorari although disguised as a declaration, and as such is required by Order 16 Rule 1 (1) National Court Rules to be made in accordance with Order 16, does not appear to have been specifically considered by the Court in Lucas (supra).

10. In Hamidian-Rad (supra), the Court considered the substance as well as the wording of the relief sought. It found that by seeking to nullify the decision of the Commissioner General of Internal Revenue, the plaintiff was applying for an order in the nature of certiorari.

11. In Telikom (supra), although the majority found that Telikom had a choice as to the mode of commencement of proceedings, this was after considering the substance of what Telikom was seeking and finding that the substance was confined to declarations and injunctions. The Court stated however, that it agreed that a court should look at the substance as well as the wording of the relief being sought to determine what the applicant was actually seeking.

12. This court is bound by decisions of the Supreme Court. As referred to, the issue raised by the third and fourth defendants does not appear to have been specifically considered in Lucas (supra). Further the later decisions of Hamidian-Rad (supra) and Telikom (supra) both made reference to Lucas (supra) and considered the substance of what was being sought as well as the wording. Consequently I do not consider that I am bound to follow the decision in Lucas (supra).

13. Here, the plaintiffs are seeking by declaration that an appointment by the Head of State pursuant to advise of the NEC is illegal and null and void ab initio for non-compliance with certain statutory requirements. As to the reason for seeking such a declaration, I refer to the observation of Lay J. in Rabaul Shipping Ltd v. Rupen (2008) N3289, where at paragraph 7 His Honour said:

“If this were a case where the Court was being asked to declare wrong a decision of a tribunal exercising a discretion I would have great difficulty in accepting that an ordinary summons was the appropriate procedure because...