Elias R Wohengu, Robert Baiyage & Samson Joke v The Honourable John Hickey CBE MP, Minister for Agriculture & Livestock and The Independent State of Papua New Guinea and Warren Dutton, Kolin Damai & Julius Yeoh (2009) N3721

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 20 August 2009
• Citation: (2009) N3721
• Docket Number: OS (JR) NO 200 OF 2008
• Year: 2009

Full Title: OS (JR) NO 200 OF 2008; Elias R Wohengu, Robert Baiyage & Samson Joke v The Honourable John Hickey CBE MP, Minister for Agriculture & Livestock and The Independent State of Papua New Guinea and Warren Dutton, Kolin Damai & Julius Yeoh (2009) N3721

National Court: Cannings J

Judgment Delivered: 20 August 2009

JUDICIAL REVIEW—natural justice—whether members of statutory board must be given right to be heard prior to revocation of appointments—whether reasons must be given for revocation of appointment.

The Minister responsible for appointment of members of a statutory board revoked the appointment of three members (the plaintiffs) and made new appointments without giving notice to the plaintiffs of his intention to revoke their appointments and without giving them a right to be heard on whether their appointments should be revoked. The Minister notified the plaintiffs of his decision after the gazettal of his decision and the only reason he gave was that their appointments had not been “in line with” the Act under which they were appointed. The plaintiffs challenged by judicial review the Minister’s decision, arguing that the principles of natural justice required that they be given a right to be heard prior to the revocation of their appointments and that they be furnished with proper reasons for the decision and that the Minister’s failure to comply with those requirements rendered his decision void.

Held:

(1) Members of a statutory board hold public office and a decision to revoke their appointments inevitably affects their reputation and standing in the community. The principles of natural justice require that they be given notice of an intention to revoke their appointment and an opportunity to be heard on whether their appointment should be revoked (Benson Gegeyo v The Minister for Lands and Physical Planning [1987] PNGLR 331).

(2) An integral part of the right to natural justice is the right to be given good, proper and sufficient reasons for the decision (Ombudsman Commission v Peter Yama (2004) SC747).

(3) Here, the Minister failed to comply with his duty to accord natural justice to the plaintiffs by not giving them notice, not giving them a right to be heard and not furnishing good, proper and sufficient reasons for his decision.

(4) As a matter of discretion and in light of the principles of natural justice, good leadership, good governance and the Rule of Law espoused in the Constitution it is not appropriate or just that the Minister’s decision remains in force. Accordingly the Court declared that the Minister’s decision was void and of no effect and ordered that it be quashed, the consequences being that the plaintiffs are reinstated and the appointment of the new members is void.

Cases cited

The following cases are cited in the judgment:

Robin Aegaiya v Gari Baki (2009) N3693; Dale Christopher Smith v Minister for Lands (2009); Benson Gegeyo v The Minister for Lands and Physical Planning [1987] PNGLR 331; Isaac Lupari v Sir Michael Somare (2008) N3476; Kely Kerua v Council Appeal Committee of The University of Papua New Guinea (2004) N2534; Leo Nuia v The Independent State of Papua New Guinea (2000) N1986; Martha Kokiva–Age v The Lawyers Statutory Committee (2005) N2835; Mision Asiki v Manasupe Zurenuoc (2005) SC797; John Mua Nilkare v Ombudsman Commission (1995) N1344; Ombudsman Commission v Peter Yama (2004) SC747; Philip Aeava v The Independent State of Papua New Guinea (2001) N2136; Brown Sinamoi v The Independent State of Papua New Guinea (1995) N1298

1. CANNINGS J: The plaintiffs, Elias Wohengu, Robert Baiyage and Samson Joke, were appointed in October 2006 as members of the Rubber Board, a body established under the Rubber Act. They were appointed for a period of three years under Section 7 of the Rubber Act by the then Minister for Agriculture, Hon Sasa Zibe MP. Thirteen months later, in January 2008, their appointments were revoked and three new members were appointed in their place: the third defendants, Warren Dutton, Kolon Damai and Julius Yeoh. The decision to revoke their appointments and appoint the new members was made by the current Minister for Agriculture & Livestock, the first defendant, Hon John Hickey CBE MP.

2. In April 2008 the plaintiffs applied for leave to seek judicial review of Minister Hickey’s decision. Leave was granted and this is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiffs say that the Minister breached the principles of natural justice in two respects:

• He did not give notice of his intention to revoke their appointments and did not give them a right to be heard on whether their appointments should be revoked.

• He did not give proper reasons for his decisions.

4. They are the two grounds of review. If either or both are upheld the plaintiffs want the Court to declare that they have been denied natural justice and that Minister Hickey’s decision is null and void and to order that they be reinstated.

5. The defendants do not dispute that the Minister did not give the plaintiffs notice and did not give them a right to be heard. The defendants argue that he did not have to. As for giving reasons the defendants point out that the Minister did write to each of the plaintiffs on 14 March 2008. He stated to both Mr Wohengu and Mr Baiyage:

I have decided to revoke your appointment as a member … of the Rubber Board, since your appointment was not in line with Section 7 of the Rubber Act (Chapter 222). The revocation of your appointment came into effect as per gazettal...