Commodore Peter Ilau v Sir Michael Somare

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 12 January 2007
• Citation: (2007) N5511
• Judgment Number: N5511
• Year: 2007

Full : OS NO 889 OF 2006; Commodore Peter Ilau v The Right Honourable Sir Michael Somare, Prime Minister and Chairman, National Executive Council and The Independent State of Papua New Guinea (2007) N5511

National Court: Cannings J

Judgment Delivered: 12 January 2007

N5511

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 889 OF 2006

COMMODORE PETER ILAU

Plaintiff

V

THE RIGHT HONOURABLE SIR MICHAEL SOMARE,

PRIME MINISTER AND CHAIRMAN,

NATIONAL EXECUTIVE COUNCIL

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2007: 20, 12 January

ADMINISTRATIVE LAW – judicial review of decision of National Executive Council to advise Governor-General to suspend Commander of Defence Force – Constitution, Section 193 (appointments to certain offices) – Defence Act, Section 6 (Commander of the Defence Force)

PRACTICE AND PROCEDURE – applications for judicial review – National Court Rules, Order 16, Rule 6 (statements and affidavits): no grounds to be relied upon or relief sought at hearing except grounds and relief set out in originating statement – need for flexibility in application of Rules of Court – Rules to be interpreted and applied so as to dispense justice.

ADMINISTRATIVE LAW – judicial review – whether decision to suspend Commander of Defence Force must be preceded by consultation with Public Services Commission – natural justice – whether Commander entitled to right to be heard on question of suspension – whether Commander entitled to reasons for suspension.

EVIDENCE – evidentiary value of statement published in National Gazette – whether any presumption arises on publication as to truth of statement – Evidence Act, Section 52 (gazettes); Section 53 (printing by government printer) – use of affidavits in judicial review proceedings – whether author of document required to give oral evidence as to truth of statement in document.

ADMINISTRATIVE LAW – judicial review – remedies – whether National Court has discretion to grant remedies other than those specifically sought by applicant for judicial review.

The plaintiff is the Commander of the Defence Force. The Governor-General, acting on the advice of the National Executive Council, suspended him. He sought judicial review of his suspension on two grounds: failure to consult the Public Services Commission and breach of the principles of natural justice.

Held:

(1) A decision to suspend the Commander is subject to the same conditions as the decision to appoint the Commander: the Governor-General makes the decision, acting with and in accordance with the advice of the National Executive Council given after consultation with the Public Services Commission.

(2) Suspension of a person holding an office established by the Constitution is a significant decision, having an immediate impact on the standing and reputation of the office-holder and the office itself. The principles of natural justice or procedural fairness require that the office-holder be given a right to be heard as to any allegations against the office-holder and the need for the office-holder to be suspended.

(3) Natural justice also requires that the office-holder be given reasons for the suspension.

(4) In hearing applications for judicial review the National Court is bound to apply the rules of court and rules of evidence with the degree of flexibility necessary to avoid substantial prejudice to any of the parties and to give paramount consideration to the interests of justice.

(5) In the present case, the NEC did not consult with the PSC before the plaintiff was suspended; the plaintiff was neither afforded a right to be heard nor given reasons for his suspension. Three discrete errors of law were made.

(6) Remedies in judicial review proceedings are at the discretion of the court and in the circumstances the court quashed the suspension of the plaintiff and made other consequential orders and declarations calculated to bring certainty to discharge of the powers, functions, duties and responsibilities of the Commander of the Defence Force.

Cases cited

The following cases are cited in the judgment:

Benson Gegeyo and Others v Minister for Lands and Physical Planning [1987] PNGLR 336

Bill Eichorn v Robert Ninikin, Joe Yanz and the East Sepik Provincial Assembly [1988-89] PNGLR 222

David S Nelson v Patrick Pruaitch (2003) N2440

Francis Damem v Mark Maipakai (2005) N2730

Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659

Ila Geno, Paul Lawton and Florien Mambu v The State [1993] PNGLR 22

Joe Ponau v Teaching Service Commission Disciplinary Committee (2006) N3059

Leo Nuia v Benias Sabumei and Others [1992] PNGLR 90

Michael Anis Winmarang v David Ericho and The State (2006) N3040

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Niggints v Tokam [1993] PNGLR 66

Ombudsman Commission v Peter Yama (2004) SC747

Phillip Aeava v The State (2001) N2136

Public Services Commission v The State [1994] PNGLR 603

Wena v Tokam (1997) N1570

Yawip v Commissioner of Police [1995] PNGLR 93

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his suspension as commander of the Defence Force.

Counsel

F Griffin, for the plaintiff

D Lambu, for the defendants

12th January, 2007

1. CANNINGS J: The plaintiff, Commodore Peter Ilau, is the Commander of the Papua New Guinea Defence Force. He was recently suspended and seeks judicial review of his suspension. He argues that proper procedures were not followed and he was denied natural justice. This case raises important issues about what laws have to be followed by the government of the day if it wants to suspend a person from duty as the head of a disciplined force and what protection the holders of such offices have against suspension or revocation of their appointments.

2. The plaintiff was appointed Commander of the Defence Force on 12 October 2001. He was re-appointed for a four-year term on 15 October 2005. The National Executive Council considered various aspects of the plaintiff’s official conduct from 8 to 11 November 2006. It decided he should be suspended after receiving a report that apparently implicated him in the use of a Defence Force aircraft to fly an Australian citizen, Mr Julian Moti, from PNG to Solomon Islands in early October 2006. Mr Moti, the Solomon Islands Attorney-General, had been arrested, detained and granted bail in PNG. It was alleged he had left PNG unlawfully and that the plaintiff was involved. The NEC took the view that the plaintiff should be suspended pending the outcome of a Defence Board of Inquiry established under the Defence Act. Records of the NEC meetings brought into evidence show that the NEC was also concerned that the plaintiff had made improper public statements on some issues and travelled to Australia in October 2006 without authority.

3. On 13 November 2006 the first defendant, the Prime Minister and Chairman of the NEC, signed an instrument of advice to the Governor-General. The advice was to suspend the plaintiff as Commander and appoint Colonel Francis Agwi as Acting Commander. On 14 November 2006 the Governor-General signed the following instrument, published that day in National Gazette No G206:

SUSPENSION OF APPOINTMENT AND APPOINTMENT OF ACTING COMMANDER OF THE PAPUA NEW GUINEA DEFENCE FORCE

I, Grand Chief Sir Paulias Matane, GCL, GCMG, KStJ, Governor-General, by virtue of the powers considered by Section 193(3) of the Constitution and Section 6(2) of the Defence Act 1974 and all other powers me enabling, acting with and in accordance with the advice of the National Executive Council, given after consultation with the Public Services Commission, hereby:

(a) suspend the appointment of Commodore Peter Ilau as Commander of the Papua New Guinea Defence Force; and

(b) appoint Colonel Francis Agwi to be Acting Commander of the Papua New Guinea Defence Force,

with effect on and from 11th November 2006.

Dated this 14th day of November 2006.

PAULIAS MATANE

Governor-General

4. The Secretary to the National Executive Council, Ms Winnie Kiap, notified the plaintiff of his suspension by a letter dated 14 November 2006. She attached copies of various NEC decisions pertaining to the matter and a copy of the notice in the National Gazette.

5. On 1 December 2006 the plaintiff filed an application for leave and on 13 December 2006 Hinchliffe J granted leave for judicial review. The matter is now before the court for substantive judicial review.

GROUNDS OF REVIEW AND RELIEF SOUGHT

6. The plaintiff relies on two grounds of review:

· ground No 1: failure to consult the Public Services Commission; and

· ground No 2: breach of the principles of natural justice, in two respects: (a) failure to give a right to be heard; and (b) failure to give reasons for suspension.

7. He wants the court to :

· quash the NEC decision to advise the Governor-General to suspend him;

· quash the Governor-General’s decision to suspend him;

· quash the...