SCM NO. 07 OF 2013; National Executive Council and Hon. Tommy Tomscoll—Minister for Agriculture & Livestock and Vele Kagena and The Independent State of Papua New Guinea v Dr. Vele Pat Ila’ava and Public Services Commission (2014) SC1332

• Jurisdiction: Papua New Guinea
• Judge: Gabi, Sawong & Murray, JJ
• Citation: (2014) SC1332
• Court: Supreme Court
• Year: 2014
• Judgement Number: SC1332

Full Title: SCM NO. 07 OF 2013; National Executive Council and Hon. Tommy Tomscoll—Minister for Agriculture & Livestock and Vele Kagena and The Independent State of Papua New Guinea v Dr. Vele Pat Ila’ava and Public Services Commission (2014) SC1332

Supreme Court: Gabi, Sawong & Murray, JJ

Judgment Delivered: 26h February

SC1332

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 07 OF 2013

Between

NATIONAL EXECUTIVE COUNCIL

First Appellant

And

HON. TOMMY TOMSCOLL – MINISTER FOR

AGRICULTURE & LIVESTOCK

Second Appellant

And

VELE KAGENA

Third Appellant

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Appellant

And

DR. VELE PAT ILA’AVA

First Respondent

And

PUBLIC SERVICES COMMISSION

Second Respondent

Waigani: Gabi, Sawong & Murray, JJ.

2013 : 24th June

2014 : 26thFebruary

CIVIL PROCEEDINGS — appeal from orders in judicial review in the National Court — O 10 Supreme Court Rules — appeal from orders of the single judge in the Supreme Court — O 10 Supreme Court Rules — Supreme Court Act s 5 — no right of appeal from single judge of the Supreme Court — right to apply to full Supreme Court — O 11 r 26 to be read consistent with Supreme Court Act s 5 — application must be in the original appeal proceedings — a 2nd appeal is incompetent.

Facts

The first appellant removed the first respondent from his position as A/Secretary, Agriculture and Livestock. The first respondent sought leave for judicial review proceedings which was refused. He appealed to the Supreme Court using the Order 10 procedure and a single Judge of the Supreme Court granted interim orders restoring him to his position. The first appellant appeals from those orders to the full Court by way of fresh appeal proceedings under Order 10. The issue in the Supreme Court was whether the correct procedure had been used.

Held

Gabi J, Sawong J and Murray J concurring:

1. There is no provision in the Supreme Court Act or the Supreme Court Rules 2012 providing that an order made under s 5(2), a direction or order of a single Judge may be discharged or varied by way of a separate appeal, at [17-18];

2. A direction or order given by a single judge of the Supreme Court may be discharged or varied pursuant to s 5(3) by way of an application, at [20];

3. O 11 r 26 must be read consistently with s 5 of the Supreme Court Act, it provides for an “application” in the same appeal in which the single Judge made orders, not a separate “appeal” proceedings, at [22-23);

4. The appeal is incompetent and is dismissed with costs.

Cases Cited:

Bruce Tsang vs. Credit Corporation (PNG) Ltd [1993] PNGLR 112

Felix Bakani vs. Rodney Daipo (2002) SC699

Gregory Puli Manda vs. Yatala Limited (2005) SC795

Haiveta vs. Wingti (No. 1) [1994] PNGLR 160

Independent State of Papua New Guinea vs. Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448

Jeffery Balakau vs. Ombudsman Commission of PNG (1996) PNGLR 346

Joshua Kalinoe vs. Paul Paraka (2007) SC874

Ken Norae Mondiai & Anor vs. Wawoi Guavi Timber Co. & Ors (2007) SC 886

Patterson Lowa & Ors vs. Wapula Akipe & Ors [1991] PNGLR 265

PNG Forest Authority vs. Securimax Securities Pty Ltd (2003) SC 717

ToRobert vs. ToRobert (2011) SC1130

Waghi Savings and Loan Society vs. Bank of South Pacific Ltd (1980) SC 185

Wau Ecology Institution vs. Registrar of Companies (2005) SC794

William Powi & Ors vs. The State vs. Ors (2006) SC844

Counsel:

T. Talid, for the Appellants

A. Baniyamai, for the First Respondent

DECISION

26th February, 2014

1. GABI, J: Introduction: This is an application by the applicants/appellants by way of a notice of motion under Order 10 of the Supreme Court Rules 2012 to have the interim order given by a single Judge of the Supreme Court in SCM No. 5 of 2013 discharged or varied pursuant to s. 5(3) of the Supreme Court Act.

2. Order 10 of the Supreme Court Rules 2012 is a unique procedure that applies to appeals from the decisions of the National Court under Orders 16 and 17 of the National Court Rules. There is no provision under Order 10 of the Supreme Court Rules 2012 or section 5 of the Supreme Court Act that enables a party to appeal against a decision of a single Judge to the full Court.

3. The issue is whether the procedure used by the applicants/appellants to come before the full Court of the Supreme Court in SCM No. 7 of 2013 to discharge or vary an order made in SCM No. 5 of 2013 is allowed or permitted by the Supreme Court Act or the Supreme Court Rules 2012.

4. The chronology of events leading to the application is as follows:

· 22nd December 2011 – The National Executive Council (NEC) appointed Dr. Vele Pat Ila’ava, the first respondent, as the Acting Secretary of the Department of Agriculture & Livestock until such time a permanent appointment is made.

· 4th July 2012 – The first respondent was again appointed by NEC as Acting Secretary.

· 15th August 2012 – The first respondent was reappointed by NEC as Acting Secretary following a recommendation from the Public Services Commission.

· 16th January 2013 – The second appellant approved the first respondent’s request to seek medical treatment in Manila and relieved him of duties effective 21st January 2013. At the same time, Mr. Vele Kagena, the third appellant, resumed office as Acting Secretary during the period of absence of the first respondent.

· 25th January 2013 – The second appellant suspended the first respondent.

· 6th February 2013 – NEC revoked the appointment of the first respondent as Acting Secretary and appointed the third appellant as Acting Secretary for the Department of Agriculture & Livestock for a period of three months.

· 12th February 2013 – The first respondent filed an Originating Summons OS 51 of 2013 seeking a judicial review of the NEC Decision of

6th February 2013. The first respondent also filed a notice of motion seeking to restrain the implementation of the decision of NEC of

6th February 2013.

· 13th February 2013 –The National Court per Gavara-Nanu J granted interim injunctive orders.

· 18th March 2013 – Cannings J heard the parties on the leave application and refused leave. His Honour made the following orders:

(i) leave for judicial review is refused;

(ii) the interim order of 13th February 2013 is dissolved;

(iii) the eighth defendant, the State, shall pay the plaintiff’s costs of proceedings on a party/party basis to be taxed if not agreed; and

(iv) time for entry of the order is abridged.

· 20th March 2013 – The decision of NEC revoking the acting appointment of the first respondent was gazetted. The third appellant took office as Acting Secretary of the Department of Agriculture & Livestock.

· 21st March 2013 – The first respondent filed SCM No. 5 of 2013 seeking to appeal the decision of the National Court refusing leave. At the same time, the first respondent filed an application under s. 5(1)(a) and (b) of the Supreme Court Act and s. 155(4) of the Constitution seeking to restore him as Acting Secretary pending the determination of the appeal.

· 4th April and 9th April 2013 – The Chief Justice, Sir Salamo Injia, sitting as a single Judge of the Supreme Court heard the application of the first respondent on 4th April 2013. On 9th April 2013, the Chief Justice granted the application and made the following orders:

“(1) The application for interim relief under section 5(1)(a) of the Supreme Court Act is granted in terms of paragraphs 1.3, 1.4 and 1.5 of the appellant’s application filed on 21 March 2013 herein, pending determination of the appeal; or until a permanent appointment to the position of Secretary for Department of Agriculture & Livestock [DAL] is made; as follows:-

(a) The decision of the fourth respondent made on 24 January 2013 to suspend the appellant’s appointment as acting Secretary for the Department of Agriculture and Livestock (DAL) is stayed;

(b) The decision of the first respondent made on 6 February, 2013 to suspend the appellant’s appointment as Acting Secretary for DAL and to appoint the fifth respondent as Acting Secretary for DAL; and the Head of State’s formalization of those decisions through publication of a gazette notice to that effect; are stayed;

(c) Pursuant to the first respondent’s appointment of the appellant as Acting Secretary DAL made on 22 December, 2011, the appellant shall remain in office and be allowed to perform the duties of the office;

(d) The respondents, their agents or employees are restrained from preventing, threatening, harassing and intimidating the Appellant in the performance of his duties as Acting Secretary DAL.

(2) Costs of the application shall be in the cause”.

· 26th April 2013 – The appellants/applicants appealed the decision of Injia CJ sitting as a single Judge of the Supreme Court pursuant to s. 5(3) of the Supreme Court Act and Orders 10 and 11 rules 25 and 26 of the Supreme Court Rules 2012.

The appellants’ application

5. The interim stay and injunctive orders of 9thApril 2013 issued...