Alice Honjepari, Acting Chief Executive Officer, Western Provincial Health Authority v Dr Niko Wuatai, Chief Executive Officer, Western Provincial Health Authority and Musje Werror, Board Chairman, Western Provincial Health Authority and Western Provincial Health Authority and the Independent State of Papua New Guinea (2020) N8386

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 June 2020
• Court: National Court
• Citation: (2020) N8386
• Docket Number: OS (JR) No 124 of 2020
• Year: 2020
• Judgement Number: N8386

Full Title: OS (JR) No 124 of 2020; Alice Honjepari, Acting Chief Executive Officer, Western Provincial Health Authority v Dr Niko Wuatai, Chief Executive Officer, Western Provincial Health Authority and Musje Werror, Board Chairman, Western Provincial Health Authority and Western Provincial Health Authority and the Independent State of Papua New Guinea (2020) N8386

National Court: Cannings J

Judgment Delivered: 24 June 2020

N8386

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 124 OF 2020

ALICE HONJEPARI, ACTING CHIEF EXECUTIVE OFFICER, WESTERN PROVINCIAL HEALTH AUTHORITY

Plaintiff

V

DR NIKO WUATAI, CHIEF EXECUTIVE OFFICER,

WESTERN PROVINCIAL HEALTH AUTHORITY

First Defendant

MUSJE WERROR, BOARD CHAIRMAN,

WESTERN PROVINCIAL HEALTH AUTHORITY

Second Defendant

WESTERN PROVINCIAL HEALTH AUTHORITY

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2020: 8th, 19th, 29th May, 24th June

JUDICIAL REVIEW – review of decision of board of provincial health authority to appoint chief executive officer – Provincial Health Authorities Act 2007, s 29– whether decision lawfully made by board – whether there was a merit-based selection process approved by Secretary for Personnel Management – whether lack of participation by representatives of relevant National Government Departments rendered the decision unlawful – whether engagement by board of private recruitment agency was lawful – ultra vires – error of law on face of record – unreasonableness.

The position of chief executive officer of a provincial health authority was advertised by a private employment agency, on behalf of the board of the authority. The plaintiff and the first defendant applied for the position. They were interviewed and assessed in a process facilitated by the private employment agency. On the same day that the interviews and assessments were completed, there was a board meeting and a decision was recorded, later published in the National Gazette, to appoint the first defendant. The plaintiff was aggrieved and, having been granted leave by the court, applied for judicial review of the gazetted decision of the board, relying on three grounds of review: ultra vires, error of law on the face of the record and unreasonableness. Four separate arguments were put in support of those grounds: (1) the board was not properly constituted for the meeting at which the decision to appoint the first defendant was recorded as being made, resulting in the decision being made, not by the board but by its chairman (the second defendant), (2)the selection process was not approved by the Secretary for Personnel Management, (3) there was no participation in the interview process by representatives of either the Department of Health or the Department of Personnel Management and (4) giving a central role to the private recruitment agency was improper; all of which was alleged to be contrary to s 29 of the Provincial Health Authorities Act, which provides a mandatory procedure for appointment of the chief executive officer.

Held:

(1) There was a quorum for the board meeting at which the decision was recorded as having been made to appoint the first defendant, and it was a collective decision made by the members of the board present. The decision was the board’s, not the chairman’s.

(2) The plaintiff failed to prove that the selection process was not approved by the Secretary for Personnel Management, and in the absence of any indication by the State (the fourth defendant) that the process was unapproved, it was reasonably to be inferred that the Secretary had in fact approved the process.

(3) It is not a statutory requirement that representatives of the Department of Health or the Department of Personnel Management participate in the interview or assessment of candidates, so their lack of participation was inconsequential.

(4) There is no law that prohibits the involvement of a private employment agency in the appointment process, and there was no evidence that the agency had acted or been engaged improperly.

(5) As all arguments for the plaintiff were rejected, all grounds of judicial review were refused. An interim order, staying the first defendant’s appointment, was dissolved, and the proceedings were dismissed.

Cases Cited

The following cases are cited in the judgment:

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)

Anton Yagama v Peter Charles Yama (2013) SC1244

Dopsie v Tetaga (2009) N3720

Galem Falide v Registrar of Titles (2012) N4775

Jamie Maxton-Graham v Electoral Commission (2016) SC1559

Re Vela Konivaro, Clerk of the National Parliament (2015) N5977 (LT)

Shaw v Commonwealth of Australia [1963] PNGLR 119

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

Vincent Kerry v The State (2007) N3127

JUDICIAL REVIEW

This was an application for judicial review of the decision of the board of a provincial health authority to appoint the chief executive officer of the authority.

Counsel

G Bon, for the Plaintiff

R Uware, for the Defendants

24th June, 2020

1. CANNINGS J: This case is a challenge to the appointment of the Chief Executive Officer of the Provincial Health Authority for Western Province. That position was in January 2020 advertised by a private employment agency, Vanguard International, acting on behalf of the Board of Governance of that Authority.

2. The plaintiff, Alice Honjepari, and the first defendant, Dr Niko Wuatai, applied for the position. They were in a shortlist of six applicants who were interviewed and assessed in a process facilitated by Vanguard. On the same day that the interviews and assessments were completed, there was a board meeting and a decision was recorded, later published in the National Gazette, to appoint Dr Wuatai.

3. The plaintiff was aggrieved and, having been granted leave by the court, applied for judicial review of the gazetted decision to appoint Dr Wuatai, relying on three main grounds of review: ultra vires, error of law on the face of the record and unreasonableness. Four separate arguments were put in support of those grounds:

(1) the board was not properly constituted for the meeting at which the decision to appoint the first defendant was recorded as being made, resulting in the decision being made, not by the board but by its chairman, Mr Musje Werror (the second defendant);

(2) the selection process was not approved by the Secretary for Personnel Management;

(3) there was no participation in the interview process by representatives of either the Department of Health or the Department of Personnel Management; and

(4) giving a central role to Vanguard was improper.

all of which was alleged to be contrary to s 29 (chief executive officer) of the Public Health Authorities Act, which provides a mandatory procedure for appointment of the chief executive officer, which was not adhered to.

4. I will determine the four arguments and the three grounds of review on their merits, after setting out the train of events that led to the gazetted decision of 20 March 2020. But before proceeding further, I will deal with a preliminary point raised by Mr Uware, for the defendants.

PRELIMINARY POINT

5. Mr Uware points out that in the plaintiff’s notice of motion under Order 16, Rule 5 of the National Court Rules, filed on 14 April 2020, reference is made to s29 of the Provincial Health Authorities (Amendment) Act 2013, which provision – s 29 – is a non-existent law. The proceedings, Mr Uware submits, should therefore be summarily dismissed.

6. Mr Uware is correct. There is no such law as s 29 of the Provincial Health Authorities (Amendment) Act 2013. The Provincial Health Authorities (Amendment) Act 2013 exists, but it has no s 29. In fact it has only one section, which is an amendment to s 29 of the Provincial Health Authorities Act 2007. The drafting of the notice of motion is deficient.

7. Does that mean the proceedings must or ought to be dismissed? No. The relief sought by the plaintiff is clear enough and the grounds of review are sufficiently stated in the Order 16, Rule 3(2)(a) statement and the arguments underpinning them have been adequately articulated by the plaintiff’s counsel, Mr Bon. Besides that, as will become apparent later in this judgment, the defendants are guilty of a similar sort of error in the drafting of the instrument of appointment of Dr Wuatai. I would not be doing justice to any of the parties if this case were summarily dismissed without regard to its merits. The preliminary point has been validly made but I decline to dismiss the proceedings at this stage.

EVENTS

8. In September 2019 the Western Provincial Health Authority was established under the Provincial Health Authorities Act 2007 and commenced operation. The plaintiff, who had held senior public health positions in the provincial administration for many years, was appointed as the acting Chief Executive Officer, pending a permanent appointment.

9. On 24 January 2020, Vanguard published notices in the daily newspapers, on behalf of the Provincial Health Authority, seeking applications for the position, which closed...