Kila Wari and Seven Others v Gabriel Ramoi and Sir Kingsford Dibela [1986] PNGLR 112

• Jurisdiction: Papua New Guinea
• Judge: Amet J:
• Judgment Date: 20 May 1986
• Court: Supreme Court
• Citation: [1986] PNGLR 112
• Year: 1986
• Judgement Number: SC316

Full Title: Kila Wari and Seven Others v Gabriel Ramoi and Sir Kingsford Dibela [1986] PNGLR 112

Supreme Court: Kidu CJ, Kapi DCJ, Amet J

Judgment Delivered: 20 May 1986

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KILA WARI AND SEVEN OTHERS

V

GABRIEL RAMOI

AND SIR KINGSFORD DIBELA

Waigani

Kidu CJ Kapi DCJ Amet J

26 February 1986

20 May 1986

PRACTICE AND PROCEDURE — Parties to proceedings — Injunction to restrain Minister and Head of State from acting under legislation — Act that of Head of State "acting on advice" — Advice that of National Executive Council — State proper party — Head of State immune — Post and Telecommunications Act (Ch No 394), s 11 (2) — Constitution, ss 86 (2), 94 (1) (a), 247 (2).

STATE SERVICES — Head of State — Immunity from judicial review of acts — Head of State "acting on advice" — Advice that of National Executive Council — Extent of immunity from judicial review — Constitution, ss 86 (2), (4), 94 (1) (a), 247 (2).

CONSTITUTIONAL LAW — Head of State — Immunity from judicial review of acts — Head of State "acting on advice" — Advice that of National Executive Council — Extent of immunity from judicial review — Constitution, ss 86 (2), (4), 94 (1) (a), 247 (2).

The Post and Telecommunications Act (Ch No 394), s 7, provides for the appointment of members to the Board of the Post and Telecommunications Commission by the Head of State, acting on advice. Section 11 (2) of the Act provides that the "Head of State, acting on advice may... terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour".

The Interpretation Act (Ch No 2) defines the Head of State acting on advice as meaning "the Head of State acting with, and in accordance with the advice of the National Executive Council".

The Constitution, s 86 (2), provides that the "... Head of State shall act only with, and in accordance with the advice of the National Executive Council, or some other body or authority prescribed by a Constitutional Law or an Act of Parliament for a particular purpose..." and s 86 (4) provides that "the question, what (if any) advice was given to the Head of State, or by whom, is nonjusticiable".

Members of the Post and Telecommunications Commission, apprehensive that their appointments to the Commission were about to be terminated under the Post and Telecommunications Act, s 11 (2), sought an injunction to restrain notices being served on them to that effect, naming as the defendants to the proceedings the Minister responsible for the Post and Telecommunications Act and the Governor-General as Head of State.

On appeal from a refusal by the National Court to grant an injunction,

Held

(1) As the Minister for Communications has no power under the Post and Telecommunications Act in relation to the termination of membership of the Commission, and as the advice to the Head of State is from the National Executive Council and not the Minister, the Minister was not a proper party to the proceedings.

(2) The proper party to the proceedings should have been the Independent State of Papua New Guinea, pursuant to the Constitution, s 247 (2).

(3) Although there are no specific constitutional (or statutory) provisions to the effect that the Head of State may or may not be sued or proceeded against in Court for an official act performed by him or her on advice, the Head of State is nonetheless by virtue of the Constitution, s 86 (2), 94 (1) (a) and s 247 (2), immune from judicial proceedings with respect to the exercise and performance of the powers, duties and responsibilities of his or her office.

(4) (Obiter) The immunity from judicial proceedings afforded the Head of State under the Constitution, s 86 (4), protects only the lawful exercise of the discretion which is contained in the advice. It does not protect the exercise of a discretion which is ultra vires or the exercise of a discretion which may be inconsistent with the provisions of the Constitution.

Cases Cited

Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

Ministerior Lands, The v Frame [1980] PNGLR 433.

SCR No 1 of 1982; Re Bouraga [1982] PNGLR 178.

State, The v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.

State, The v Mogo Wonom [1975] PNGLR 311.

Toohey, Re; Ex parte Northern Land Council (1981) 151 CLR 170; 56 ALJR 164.

Appeal

This was an appeal from a decision of McDermott AJ refusing an injunction to restrain the defendants/respondents from acting to terminate the appointment of the plaintiffs as members of the Post and Telecommunications Commission.

Counsel

M Priestly and R Gunson, for the appellants.

E O'Sullivan, for the respondents.

Cur adv vult

20 May 1986

KIDU CJ: The appellants appeal against a National Court decision dismissing their application for an interlocutory or interim injunction. They had, on 17 January 1986, applied to the National Court, by originating summons pursuant to the National Court Rules, O 4, for orders restraining the respondents in the following terms:

"1. The first respondent and his servants or agents be restrained from advising the second respondent that the appointments of the applicants or any of them to the Post and Telecommunications Corporation Board be terminated on the grounds of alleged inefficiency or otherwise.

2. The second respondent and his servants or agents be restrained from giving written notices to the applicant or any of them that the second respondent intends to terminate the appointment of the applicants as members of the Post and Telecommunications Corporation Board on the grounds of alleged inefficiency or otherwise.

3. The first and second respondents and their respective servants and agents be restrained from advising the applicants or any of them by written notice of the intention to terminate the appointment of the applicants as members of the Post and Telecommunications Corporation Board on the grounds of inefficiency or otherwise."

The reasons for the refusal by McDermott AJ to grant the appellants an interim injunction pending the determination of the application for grant of what amounts to a permanent injunction are set out in a written judgment delivered in January 1986 but it is not necessary for me to go into them because I am of the view that they are misconceived as will be obvious from what I am going to say.

All the appellants are current members of the Board of the Post and Telecommunications Corporation, appointed under the provisions of s 7 of the Post and Telecommunications Act (Ch No 394), (the Act) by the Head of State acting on advice. And they can only be dismissed from office under s 11 which provides as follows:

"11. Vacation of Office Members

(1) Where a member, other than the Managing Director:

(a) becomes permanently incapable of performing his duties; or

(b) resigns his office by writing under his hand addressed to the Minister; or

(c) is absent, except with the written consent of the Chairman, from three consecutive meetings of the Board; or

(d) fails to comply with the provisions of Section 14; or

(e) becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or

(f) is convicted of an offence punishable under a law by imprisonment for one year or longer or by death, and as a result of the conviction is sentenced to imprisonment or death.

(2) The Head of State, acting on advice, may, at any time, by written notice, advise a member that he intends to terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour.

(3) Within 14 days of the receipt of a notice under Subsection (2), the member may reply in writing to the National Executive Council who shall consider the reply and as soon as is practicable deliver written notice of its decision to the member.

(4) Where the member referred to in Subsection (2) does not, within 14 days of the receipt of a notice under Subsection (2), reply in writing to the National Executive Council, his appointment is terminated."

Media reports, later confirmed by the Deputy Secretary for Justice, alerted the appellants to the fact that the action was afoot to have notices served on them under s 11 (2) and the appellants took action in the National Court to head this off and asked for an interim injunction against the first and second respondents.

PROCEEDINGS AGAINST THE MINISTER

It is to be noted that a notice under s 11 (2) of the Act is to be made by "the Head of State, acting on advice ...". Section 3 (1) of the Interpretation Act (Ch No 2) says that in any statutory provision "the Head of State, on advice ..." means "the Head of State acting with, and in accordance with the advice of the National Executive Council". So under s 11 (2) of the Act it is the National Executive Council which advises the Head of State to issue notices to a member or members of the Post and Telecommunications Corporation Board and...