Elizabeth Genia as the Acting Governor of BPNG and Others v Benny Popoitai and Others

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kariko J,Toliken J,Lindsay J
• Judgment Date: 29 January 2024
• Neutral Citation: SC2528
• Citation: SC2528, 2024-01-29
• Hearing Date: 01 December 2023,29 January 2024
• Date: 29 January 2024
• Docket Number: SCM NO. 27 OF 2023
• Counsel: Mr D Kaima, for the Appellants,Mr A Mana, for the First Respondent,Mr M Kik, for the Second Respondent,Mr K Kipongi, for the Third Respondent,Counsel:

SC2528

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 27 OF 2023

Elizabeth Genia as the Acting Governor of BPNG

First Appellant

Tau Vini as the Secretary of the Board of Directors, Bank of Papua New Guinea

Second Appellant

David Toua as the Chairman of the Board of Directors, Bank of Papua New Guinea

Third Appellant

Ulato Avei as Director of the Board of Directors, Bank of Papua New Guinea

Fourth Appellant

v.

Benny Popoitai

First Respondent

The Ombudsman Commission of Papua New Guinea

Second Respondent

The Independent State of Papua New Guinea

Third Respondent

Waigani: Kariko J, Toliken J and Lindsay J

2023: 1^st December

2024: 29^th January

JUDICIAL REVIEW — appeal against grant of applications for judicial review — compulsory retirement — Director of the Financial Analysis and Supervision Unit (FASU) — contract of employment — whether retirement ultra vires s 65, Anti-Money Laundering and Counter Terrorist Financing Act 2015 — whether retirement contrary to s 22, Central Banking Act 2000 — whether natural justice denied

The Director of the Financial Analysis and Supervision Unit (FASU) applied in the National Court for judicial review of the decision by Bank of Papua New Guinea (BPNG) to compulsorily retire him after he reached the age of 65 years, principally arguing that his retirement was contrary to s 65 of the Anti-Money Laundering and Counter Terrorist Financing Act 2015 and s 22(1)(c) of the Central Banking Act 2000. The Court upheld the application and granted him the relief sought. The BPNG parties appealed the decision claiming, among others, that the two statutory provisions were erroneously interpreted and applied.

Held:

1. Under s 22(1)(c) of the Central Banking Act 2000 a person is disqualified from being the Governor or Deputy Governor of the Bank of Papua New Guinea if he is aged 70 years or older.

2. Pursuant to the Bank of Papua New Guinea's employment policies, the age for compulsory retirement of officers of the Bank other than the Governor and the Deputy Governor is 65 years.

3. The Director of the Financial Analysis and Supervision Unit (FASU) is an officer of the Bank of Papua New Guinea.

4. In the context of employment, “dismissed” is different in meaning to “retired”.

5. Section 65 of the Anti-Money Laundering and Counter Terrorist Financing Act 2015 deals with dismissal of the Director of FASU and not his retirement.

6. Appeal upheld.

Case Cited:

Kawaso Ltd v Oil Search PNG Ltd (2012) SC1218

Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122

Minister for Lands v Frame [1980] PNGLR 433

Popoitai v Genia (2023) N10489

Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075

Sukuramu v New Britain Palm Oil Ltd (2007) N3124

Telikom PNG Ltd v ICCC (2008) SC908

Legislation:

Anti-Money Laundering and Counter Terrorist Financing Act 2015

Central Banking Act 2000

Constitution

Interpretation Act 1975

Supreme Court Act 1975

Counsel:

Mr D Kaima, for the Appellants

Mr A Mana, for the First Respondent

Mr M Kik, for the Second Respondent

Mr K Kipongi, for the Third Respondent

StratServ Legal: Lawyers for the Appellants

Allan Mana Lawyers: Lawyers for the First Respondents

Ombudsman Commission Legal Counsel: Lawyers for the Second Respondent

Office of the Solicitor General: Lawyers for the Third Respondent

APPEAL

This is an appeal against the grant of an application for judicial review.

29^th January 2024

1. BY THE COURT: On 12 September 2023, the National Court at Waigani upheld an application for judicial review referenced OS (JR) No. 77 of 2023 filed by the first respondent Benny Popoitai (Popoitai) who challenged his compulsory retirement as an officer of the Bank of Papua New Guinea (BPNG) based on his reaching the age of 65 years. Popoitai was at the material time, Director of the Financial Analysis and Supervision Unit (FASU). The decision of the court is published as Popoitai v Genia (2023) N10489.

2. This is an appeal against that decision filed by the BPNG parties:

• Elizabeth Genia, the Acting Governor of BPNG (Genia)

• Tau Vini, Secretary of the BPNG Board of Directors (Vini)

• David Toua, Chairman of the BPNG Board of Directors (the Chairman)

• Ulato Avei, member of the BPNG Board of Directors

3. The other defendants in proceedings OS (JR) No. 77 of 2023, the Ombudsman Commission and the State, are named as respondents in this appeal.

BACKGROUND

4. Most of the main background facts disclosed by evidence is not in controversy:

• Up to the time he was compulsorily retired in June 2023, Popoitai had been employed by BPNG for some 42 years.

• He was a Deputy Governor of the Bank from 2004 to 2015.

• He was next appointed Director of FASU pursuant to the Anti-Money Laundering and Counter Terrorist Financing Act 2015 (the AML/CTF Act).

• He signed a contract of employment with BPNG which stipulated the term of his appointment was three years six months commencing 21 July 2020 (the Contract).

• While Director of FASU, Popoitai was appointed as Acting Governor of BPNG on 22 September 2021, initially for a period of six months but the appointment was extended on two more occasions, the last of which lapsed on 22 January 2023.

• Despite recommendations by the Board of Directors of BPNG (the Board) to the Minister for Treasury for Popoitai to be confirmed as the Governor, he was only made the Acting Governor.

• While holding that office, Popoitai turned 65 years old on 11 January 2023.

• After his term as the Acting Governor ended on 22 January 2023, Genia was appointed as his replacement for a term of 3 months which was further extended for another 3 months.

• Genia advised Popoitai by letter dated 16 February 2023 that he would be compulsorily retired as he had reached 65 years of age, and that his entitlements would be processed in accordance with the Bank's Redundancy & Retrenchment Policy 2007 (the R&R Policy).

• Popoitai objected and claimed in his response letter that as a former Deputy Governor, his retirement age was 70 years pursuant to s 22(1)(c) of the Central Banking Act 2000 (the CB Act).

• The letter was copied to the Ombudsman Commission who issued a Direction under s 27(4) of the Constitution to Genia and the Chairman (the Direction) advising them not to take any further steps to “terminate, suspend or otherwise remove” Popoitai from his position and allow him to serve out the term of his appointment as the Director of FASU, so that he could attend to certain requirements of the Ombudsman Commission relating to the AML/CTF Act.

• On 6 April 2023, Genia wrote another letter mentioning the fact of the compulsory retirement but mainly alleging misconduct against Popoitai who was reported to have been appointed a Director of the PNG Stock Exchange, but the letter was subsequently withdrawn as Popoitai did not take up that appointment.

• By letter dated 26 May 2023, BPNG advised Popoitai to vacate the residential property he was occupying which belonged to the bank.

• Popoitai resisted and took up the matter with the Ombudsman Commission who warned Genia by letter dated 14 June 2023 against harassing Popoitai and defying its earlier Direction.

• In the letter, the Commission expressed its view that the Contract contained the same terms and conditions Popoitai was entitled to as Deputy Governor.

• By letter dated 30^th June 2023, Popoitai was advised by Genia that the Board resolved on 15 June 2023 that he be compulsorily retired and paid all entitlement due under the Contract.

• Popoitai responded alleging the action was not in accordance with s 65 of the AML/CTF Act.

• When there was no reply to his letter, he filed judicial review proceedings OS (JR) No. 77 of 2023.

STATUTE LAW

5. It is appropriate to set out the statutory provisions pertinent in discussing this dispute.

6. The first is s 22(1)(c) of the CB Act which states:

No person shall be appointed or re-appointed, or continue to hold office, as Governor, or a Deputy Governor, if that person …. is 70 years of age or over. (Emphasis added)

7. The second is s 65 of the AML/CTF Act which provides the Director of FASU may be “dismissed” by the Governor of BPNG, in consultation with the Commissioner of Police and the Head of the Department of Justice, if the Director:

(a) has been found guilty of any criminal offence under the law of Papua New Guinea or a foreign law, whether before, on or after the commencement of this Act; or

(b) has breached a term or condition of his appointment; or

(c) acts in a manner that is grossly prejudicial to the performance of the duties of his office; or

(d) is an, undischarged bankrupt or insolvent; or

(e) is of unsound mind within the meaning of any law relating to the protection of the person and property of persons of unsound mind.

8. It is also useful to note these provisions:

CB Act

• BPNG is established (s 4) and is the Central Bank of the country (s 6).

• The objectives, functions and powers of the Bank are set out in ss 7, 8 and 9 respectively.

• The Governor is appointed by the Head of State acting on advice; s 15(1).

• It is a duty of the Governor to manage the Bank and direct its affairs; s 16(1)(b).

• The Governor and the Board have the authority to exercise the Bank's powers to achieve its objectives and functions and implement its policies; s 16(2).

• The Board may appoint a Deputy Governor after consulting the Governor and the Minister; s 19.

• The Governor may appoint officers for the service of the Bank; s 37(1).

• (Relevant to this case) “officer” of BPNG means the Governor, a Deputy Governor, and an employee of the Bank; s 3(1).

AML/CTF Act

• FASU is established by s 61.

• The Director of FASU is an officer of BPNG (s 62) and is appointed by the Governor in consultation with the Commissioner of Police and the Head of the Department of Justice (s 63).

JUDICIAL REVIEW PROCEEDINGS

9. In his application for judicial review, Popoitai claimed that the decision to compulsorily retire him was unlawful because:

• it was not...