Joseph Kaiyo, Acting Administrator, Southern Highlands Province and Southern Highlands Provincial Government v Paul Pawa and Hon James Lagea MP, Member for Kagua-Erave (2015) SC1469

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Toliken J, Bona J
• Judgment Date: 11 November 2015
• Court: Supreme Court
• Citation: (2015) SC1469
• Docket Number: SCA No 86 of 2015
• Year: 2015
• Judgement Number: SC1469

Full Title: SCA No 86 of 2015; Joseph Kaiyo, Acting Administrator, Southern Highlands Province and Southern Highlands Provincial Government v Paul Pawa and Hon James Lagea MP, Member for Kagua-Erave (2015) SC1469

Supreme Court: Cannings J, Toliken J, Bona J

Judgment Delivered: 11 November 2015

SC1469

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 86 OF 2015

JOSEPH KAIYO,

ACTING ADMINISTRATOR, SOUTHERN HIGHLANDS PROVINCE

First Appellant

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Second Appellant

V

PAUL PAWA

First Respondent

HON JAMES LAGEA MP,

MEMBER FOR KAGUA-ERAVE

Second Respondent

Waigani: Cannings J, Toliken J, Bona J

2015: 29 October, 11 November

PRACTICE AND PROCEDURE – appeal against order of National Court, dismissing civil proceedings for failure to comply with statutory duty to refer dispute to mediation – District Development Authority Act, Section 37

COURTS AND JUDGES – duty to conduct proceedings in accordance with principles of natural justice

The appellants commenced proceedings in the National Court challenging the appointment, by the second respondent, of the first respondent as Acting District Administrator. The appellants obtained ex parte an interim injunction restraining the first respondent from performing the powers and duties of District Administrator. The respondents then filed a notice of motion seeking dismissal of the proceedings on the ground of failure to exhaust the dispute resolution process under Section 37 of the District Development Authority Act 2014. At the time set for hearing the return inter partes of the interim injunction and the respondents’ motion, the primary Judge, rather than hearing those matters, directed the parties to leave the courtroom and discuss the appointment procedure and return with an agreement on an outcome. The parties left and returned several hours later without agreement. The primary Judge then conducted a discussion with counsel and dismissed the proceedings due to the appellants’ failure to comply with Section 37 of the District Development Authority Act and ordered that certain steps be taken by the parties to facilitate the fresh appointment of a District Administrator within 14 days. The appellants appealed against the decision of the primary Judge to dismiss the proceedings and make the other orders, on three principal grounds: (1) denial of natural justice; (2) misapplication of Section 37 of the District Development Authority Act; and (3) making orders inconsistent with dismissal.

Held:

(1) The principles of natural justice require that a Judge before whom a notice of motion is set down for hearing has a duty to hear the party moving the motion if the party requests that it be heard, be fair to all parties and be prepared to listen to all parties.

(2) A Judge who makes a significant, substantive order must make the order as a consent order (having adhered to the requirements for making orders with the consent of all parties, as spelt out in Simon Mali v The State (2002) SC690) or following a hearing at which all parties are given a reasonable opportunity to be heard on the terms of the proposed order.

(3) Here, the order for dismissal was not made with the consent of the parties and the respondents’ notice of motion, which sought dismissal of the proceedings, was discussed but not formally heard. The appellants as a result were denied the opportunity to be heard on dismissal of the proceedings. That amounted to a breach of natural justice. Ground 1 of the appeal was upheld.

(4) The proceedings involved a challenge to appointment of a CEO of a District Development Authority. It was not a dispute between a CEO and a Provincial Administrator and not subject to Section 37 of the District Development Authority Act. The proceedings should not have been dismissed. Ground 2 of the appeal was upheld.

(5) The National Court is empowered by Section 155(4) of the Constitution to make such orders as are necessary to do justice, which might include, as well as an order for dismissal, consequential orders intended to resolve a dispute. Ground 3 of the appeal was dismissed.

(6) As two of the three categories of grounds of appeal were upheld, the appeal was allowed, the decision of the National Court was quashed and the matter was remitted to the National Court.

Cases cited

The following cases are cited in the judgment:

Mangope v Haba (2015) SC1459

Mataio v August & The State (2014) SC1361

Paul Paraka v Eastern Highlands Provincial Government (2005) SC809

Simon Mali v The State (2002) SC690

Counsel

L Tangua, for the Appellants

W Mapiso & S Phannaphen, for the Respondents

11th November, 2015

1. BY THE COURT: This is an appeal against dismissal of proceedings by the National Court.

NATIONAL COURT PROCEEDINGS

2. The National Court proceedings, OS No 325 of 2015, were commenced on 11 June 2015 by the appellants, the acting Provincial Administrator of Southern Highlands Province Joseph Kaiyo and the Southern Highlands Provincial Government. They challenged the appointment of the first respondent Paul Pawa as acting District Administrator for Kagua-Erave District, which had been facilitated by the local member, Hon James Lagea MP. The appellants proposed to argue that Mr Pawa’s appointment was unlawful as it had been made by Mr Lagea contrary to the Organic Law on Provincial Governments and Local-level Governments and the Public Services (Management) Act 1995, which makes the Provincial Administrator, not the local member of Parliament, the appointing authority.

3. On 15 June 2015 the National Court (Kandakasi J) granted an interim injunction ex parte, restraining Mr Pawa from holding himself out as District Administrator until the substantive hearing of the matter.

4. On 2 July 2015 the respondents filed a notice of motion seeking dismissal of the proceedings for abuse of process. They proposed to argue that the appellants had failed to exhaust the dispute resolution process under Section 37 of the District Development Authority Act 2014, which provides that legal proceedings are not to be taken in relation to a dispute between the CEO of a District Development Authority (a District Administrator) and a Provincial Administrator, unless mediation has been held. The motion was set down for hearing on 9 July 2015, which was also the date for an inter partes hearing on the interim order.

5. On 9 July 2015 the primary Judge, rather than hearing the parties on whether the respondents’ motion should be upheld or the interim injunction should continue, directed the parties to leave the courtroom and discuss the appointment procedure and return with an agreement on an outcome. The parties left and returned several hours later without agreement.

6. The primary Judge then discussed the issues with counsel for the parties. Without asking for submissions on the respondents’ motion, his Honour concluded that the proceedings should be dismissed due to the appellants’ failure to comply with Section 37 of the District Development Authority Act and that certain steps be taken by the parties within 14 days that would result in appointment of a District Administrator. His Honour ordered:

1 Pursuant to Order 12, Rule 40(1) (c) of the National Court Rules and based on Section 37(3) of the District Development Authority Act 2014, this proceeding is dismissed for abuse of process.

2 Both the first defendant and the person that has been appointed by the Provincial Administrator, namely Mr Mark Nande, are restrained from holding out or assuming any power and or seek to or purport to discharge such powers or authorities as the District Administrator for Kagua-Erave District, Southern Highlands Province until the due process of the law as to appointment to that position is followed and an appointment is made, be it substantive or acting.

3 In the interest of enabling normal administration for the Kagua-Erave District to function the two relevant appointing authorities, namely the Kagua-Erave District Authority for its recommending powers and or rights consider and make the necessary recommendations within 7 days from today.

4 The appointing authority which is the Southern Highlands Provincial Administrator shall make and appoint the District Administrator for the Kagua-Erave District from the list recommended by the District Authority within 7 days from the date of the receipt of the recommendation.

5 If the question of the Office of the District Administrator of Kagua-Erave is not resolved by the foregoing orders, the dispute shall be referred to the Minister for Provincial and Local Level Government Affairs as contemplated under Section 37(1) and (2) of the District Development Authority Act 2014 for resolution by mediation.

6 For avoidance of any doubt, the ex-parte interim orders of this Court made on 15th June 2015 are lifted.

7 The plaintiffs shall pay the defendants’ costs of and incidental to the proceeding, to be agreed, if not taxed.

8 The time for entry of these orders is abridged to take place upon the Court signing them. [sic]

THE APPEAL

7. The appellants appealed...