Steven Pupune and 7 Others v Aita Ivarato—Governor of Eastern Highlands Province and Chairman of Provincial Executive Council, Peter Barter, Minister for Provincial and Local-level Government and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Lenalia AJ
• Judgment Date: 04 April 1997
• Citation: (1997) N1539
• Court: National Court
• Year: 1997
• Judgement Number: N1539

National Court: Lenalia AJ

Judgment Delivered: 4 April 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 399 OF 1996

BETWEEN:

STEVEN PUPUNE & 7 ORS — Plaintiffs

And:

AITA IVARATO-GOVERNOR OF EASTERN HIGHLANDS PROVINCE & CHAIRMAN OF PROVINCIAL EXECUTIVE COUNCIL — First Defendant

And:

PETER BARTER, MINISTER FOR PROVINCIAL & LOCAL LEVEL GOVERNMENT — Second Defendant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA — Third Defendant

Mount Hagen

Lenalia AJ

21 March 1997

4 April 1997

ADMINISTRATIVE LAW — Judicial Review — Application for — Judicial review of administrative acts — Application filed more than one year two months since date of termination.

PRACTICE AND PROCEDURE — Application for Leave to apply for judicial review — Administrative action by the Governor already declared null and void — Whether leave should be granted notwithstanding the prescribed time limit of 4 months has expired — Relevant consideration under National Court Rules O. 16 r 4 (1) (2) discussed.

JUDICIAL REVIEW — Application for — Ex parte proceedings — Observation on whether Counsel for Second Respondent should be granted leave to appear and make submission

Cases Cited:

The following cases are cited in judgement:

Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122

Boyce v Paddington Borough Council [1903] 1 Ch. 109

NTN Pty Ltd v The Board of Post & Telecommunication Corporation & 2 Others [1987] PNGLR 70

Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153

Amadio Pty Ltd v The State & Others [1992] PNGLR 218

Counsel:

P Doa for the Applicants

K Kot for the 2nd Respondent

4 April 1997

LENALIA AJ: This is an application for leave to apply for judicial review of the decision made by the First Respondent in which the eight (8) applicants were revoked by the first respondents from the Eastern Highlands Capital Authority Board on 1st of April 1995. They had been elected into office pursuant to S. 19 of the Local Government Act Ch. No. 57 and were to hold office for 3 years in accordance with S. 20 of the same act. They were terminated some 5 months prior to their terms expired. This application is made pursuant to O. 16 Rule 3 of the National Court Rules 1983. Should leave be granted, the applicants intend to apply for the following orders:

"1. Leave be granted to the Plaintiffs to apply for Judicial Review of the Second Defendants' decision (details and date of decision not disclosed to the Plaintiffs) made last year that purportedly to revoke the appointment of the Plaintiffs, as members of the Eastern Highlands Capital Authority Board.

2. An order in the nature of certiorari to bring up to into this Court and quash the decision of the Second Defendant, made last year 1995, to revoke the appointments of the Plaintiffs as members of Eastern Highlands Capital Authority Board, to reappoint new Board members as being null and void of no effect.

3. A declaration that the Plaintiffs are the lawful Interim Members of the Eastern Highlands Capital Authority Board.

4. The Plaintiffs remain members of the Eastern Highlands Capital Authority Board until the return of writs after the 1997 National Elections, being the Interim period as provided for under section 4 of the Local Level Government System (Interim and Transitional Arrangements) Act 1995.

5. The Plaintiffs be reinstated as members of Eastern Highlands Capital Authority Board.

6. The appointment of the current Eastern Highlands Capital Authority Board by the Second Defendant is null and void and of no effect and that their appointment be revoked.

7. The Defendants pay the Plaintiffs' entitlements as members of the Eastern Highlands Capital Authority Board back-dated to the 30th September 1995.

8. Damages.

9. Costs of this proceedings be paid by the First Defendant.

10. Any other order as this Honourable Court deems fit."

The applicants provide five (5) grounds on which the relief is sought. These five grounds are set out in their varified Statement of Facts they are:

" (a) The First defendant had no powers and or abused his powers to revoke the appointment of the Plaintiffs.

(b) Pursuant to the National Court Order dated 29th September 1995, the Plaintiffs were the lawful Board members of the Eastern Highlands Capital Authority until their appointment expired on 30th September 1995.

(c) By operation of the Local Level Government System (Interim and Transitional Arrangement) Act 1995, section 4, the Plaintiffs remain members of the Eastern Highlands Capital Authority Board until the return of Writs after the 1997 National Elections.

(d) Pursuant to the National Court Order, referred above (paragraph 4 (b) ) the Plaintiffs were in office on 19th July 1995, when the organic law came intoeffect and that they shall automatically remain in office till the return of Writs after the 1997 National Elections.

(e) There was breach of Natural Justice principle in that:

(i) There was no allegations of in-efficiency, incapacity, impropriety, misconduct or any other unacceptable behaviour against any of the Plaintiffs.

(ii) If above (i) exist then relevant provisions of the Adopted Act (i.e. the Local Government Act, Ch. 57) has not been complied with by the First Defendant.

(iii) No opportunity was given to the Plaintiffs to respond or reply to any allegations or charges.

(iv) No goods reasons or no reasons at all were given to the Plaintiffs for the decision to revoke their appointment."

The applicants have quite properly seek relief under O. 16 of the Rules. They complain of abuse or breach of S. 4 of the Local-Level Government System (Interim and Transitional Arrangements) Act of 1995. The relief to be sought in their substantive application if leave is granted fall within the principles enunciated in the case of Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122. One of the principles enunciated by Kapi DCJ at page 124 says:

"The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuse its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision making but with the decision making..."

The applicants do not have a right for review unless, they have obtained leave under Order 16 4 3 (1) of the Rules. The question of whether or not leave should be granted is discretionary. In order for the applicants to succeed in this application, they must establish to the satisfaction of this Court certain factors to which I shall shortly refer. First they must establish they heave locus standi. For a person seeking declaratory or injunctive orders, it was required that a person must be a member of the public who had suffered or is at risk of suffering particular direct and substantive damages other than and different from that which was common to the rest of the public: Boyce v Paddington Borough Council [1903] 1 Ch. 109. The applicants in the instant application must also show that they have a...