In The Matter of an Application for Judicial Review under Order 16 of The National Court Rules; Isaac Lupari v Sir Michael Somare, MP - Prime Minister & Chairman of the National Executive Council and The Independent State of Papua New Guinea (2008) N3476

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Injia, DCJ
• Judgment Date: 22 September 2008
• Citation: (2008) N3476
• Judgment Number: N3476
• Year: 2008
• Docket Number: OS. NO. 241 OF 2008 (JR)

Full Title: OS. NO. 241 OF 2008 (JR); In The Matter of an Application for Judicial Review under Order 16 of The National Court Rules; Isaac Lupari v Sir Michael Somare, MP - Prime Minister & Chairman of the National Executive Council and The Independent State of Papua New Guinea (2008) N3476

National Court: Injia, DCJ

Judgment Delivered: 22 September 2008

N3476

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 241 OF 2008 (JR)

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

ISAAC LUPARI

Plaintiff/Applicant

AND:

SIR MICHAEL SOMARE, MP – PRIME MINISTER &

CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL

First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Injia, DCJ

2008: 11th July & 14th August,

22 September (edited and published, 23 September)

JUDICIAL REVIEW – NEC’s dismissal of Departmental Head employed under statutory contract of employment – Chief Secretary of government – Failure by NEC to follow mandatory procedure for revocation of appointment – Procedure prescribed by s193 1C of the Constitution and s 31 C of Public Services (Management) Act 1995 – Grant of relief – Certiorari and reinstatement – Exercise of discretion – Relevant principles – Certiorari granted, reinstatement refused - Appropriate relief – Damages not sought in application – Open to applicant to apply for leave to amend the judicial review proceedings to claim and litigate damages or file fresh proceedings by Writ or Originating Summons for damages – Constitution, s193 C; Public Service (Management) Act 1995, s31 C, ss 26 – 30; Prime Minister & National Executive Council Act 2002, 7 & s 19; National Court Rules, O16 rr 1,9 (3)& (4).

PRACTICE AND PROCEDURE – Referral/Reservation on point of law to Supreme Court – whether questions in reference raise constitutional questions – whether questions not complicated and within the National Court’s jurisdiction to determine – Constitution, s 18; Supreme Court Act (Ch No 37), s15.

Cases Cited:

Papua New Guinea Cases:

Aileen Bure & 4 Ors v Robert Kapo (2005) N2902

Albert Kuluah v UPNG [1993] PNGLR 494

Attorney General Michael Gene v Pirouz Hamidian Rad [1999] PNGLR 278

Christopher Appa v Peter Wama & Department of Western Highlands (1992) N1083

David Nelson v Patrick Pruaitch (2003) N2536

David Nelson v Patrick Pruaitch (2003) N2440

Ereman Ragi v Joseph Maingu (1994) SC 459

Francis Damem v Public Service Commission (2005) N2900

Gideon Barereba v Margaret Elias (2000) N2197

John Kombati v Fun Singin (2004) N2691,

John Kopil v Malcom Culligan (1995) N1333

Lawrence Sasau v PNG Harbours Board (2006) N3253

Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353

Mark Ankama v PNG ELCOM (2002) N2303

Mark Ankama v PNG ELCOM (2002) N2362

Mathew Himas v Richard Sikani (2002) N2307

Mision Asiki v Manasupe Zurenuoc (2005) SC 797

National Airline Employees Association of PNG v National Airline Commission Trading as Air Nuigini [1992] PNGLR 291

Pama Anio v Aho Baliki (2002) N2267

Paul Asakusa v Andrew Kumbakor (2006) N3257

Peter Bond v Mark Nakgai (2001) N2123

Robinson v National Airline Commission [1983] PNGLR 476

Robert Karava v Kevin Byrne [1999] PNGLR 39

Ramram v NBC (1990) N1110

SCR No 4 of 2008 Re Isaac Lupari v The State & Others (2008) SC 930

Steamships Trading Company v Joel [1991] PNGLR 133

Sulaiman v PNG University of Technology (1987) N610

Tau Marava Kamuta v David Sode & IRC (2006) N3067

Thaddeus Kambanei v NEC (2006) N3064

Wijekoon v UPNG (1989) N715

Young Wadau v PNG Harbours Board (1995) SC489

Zachary Gelu v Francis Damem (2004) N2762

Overseas Cases:

Burns Philp Trust Company Pty Ltd v Kwikasair Freighters Ltd [1964] NSWR 63

Hill v C.A Parsons & Company Ltd [1971] 3 ALL ER 1345

Howes v Gosford Shire Council (1962) NSWR 58

Lumley v Wagner [1843-60] ALL ER Rep.368

Pakenham Upper Fruit Company v Crosby (1925) 35 CLR 386

Williamson & Robinson & Company Ltd v Heve [1898] 2 CLR 451

Legislation Cited:

Constitution, s193 (1B), s 193(1A) & (1C) & (1D), s193 (1) (a), s 155(4), s31 (1C), s 23, s18,

Public Service (Management) Act, s31 C, s 31 D, s22 (1) (a), s27-30,

Employment Act, s 2 & 36 – 39,

Supreme Court Act, s 15

Counsel:

H Nii with J Nalawaku, for the Plaintiff

S Singin, for the First Respondent

L Kandi, for the Second Respondent

E Andrew, for the Chairman of Public Service Commission

11 July, 2008

1. INJIA, DCJ: This is an application for judicial review made under O 16 of the National Court Rules (NCR). The decision the subject of review was made by the National Executive Council (NEC) on 24th April 2008, to revoke the plaintiff’s appointment as the Chief Secretary and Secretary of the Department of the Prime Minister and NEC (hereinafter referred to as Chief Secretary). The decision was conveyed to the Head of State in the form of an advice and the Head of State issued an instrument to that effect and published the relevant notice in the National Gazette on 28th April 2008. The plaintiff seeks a review of NEC’s decision as well as NEC’s advice given to the Head of State and the Head of State’s actions. The plaintiff seeks an order of certiorari to the NEC’s decision and other executive acts and consequential orders including re-instatement. The plaintiff relies on several grounds of review which I will come to later in my judgment.

Evidence

2. The evidence consists of the following:-

- Affidavit of Ligo Lua sworn on 2 June 2008 (Exhibit “A”). Mr Ligo Lua also gave oral evidence when he was cross-examined on his affidavit.

- Affidavit of Isaac Lupari sworn on 30th April 2008 (Exhibit

“B”)(Plaintiff).

- Affidavit of Sir Michael Somare sworn on 19th May 2008 (Exhibit

“C”)(1st Respondent).

-Affidavit of Ms Winnie Kiap sworn on 20th May 2008 (Exhibit

“D”)(Second Respondent).

- Affidavit of plaintiff sworn on 19th June 2008 (Exhibit “E”).

Submissions

3. All parties presented written and oral submissions on the various issues raised by the grounds of appeal and I received submissions on 19th June 2008 and reserved any decision, to today which I now deliver.

Background Facts

4. The plaintiff is a career public servant whose career span runs for 23 years. In this period, he has occupied senior positions in the public service including the position of Departmental Head in a number of key departments. Immediately prior to his appointment as Chief Secretary, he was serving as PNG’s ambassador to the European Union.

5. On 12th April 2007, NEC appointed him to the position of Chief Secretary for a period of four years. On 20th July 2007 he executed a Contract of Employment with the State, effective from 12th April 2007.

6. On 28th April 2008, NEC revoked his appointment. The procedure

adopted in effecting the revocation, is set out below:-

(a) On 24th April 2008, at its meeting held at Madang, NEC considered a Statutory Business Paper No. 33/08. Amongst other related decisions made at this meeting, NEC decided to revoke the plaintiff’s appointment.

b) On 24th April, 2008, the First Defendant advised the Head of State, in writing, of the decision.

(c) On 28th April 2008, the Head of State issued an instrument of revocation which was published in the National Gazette on the same day.

(d) On 28th April 2008, copies of the notices were served on the plaintiff at his office at 5.00 p.m. No other documents or notices were given to him prior to the decision. No reasons for decision was communicated to him after the decision.

(e) The Prime Minister and Secretary for NEC, Ms Kiap in their respective affidavits have now disclosed the reasons for this decision, as follows: These are:

(i) Poor performance on the job: see par 10 of Prime Minister’s affidavit.

(ii) Recent contradictory actions which have the potential of

destabilizing and derailing many of government’s institutions and achievements. There are nine (9) such instances are listed: see par 7 – 11 of Ms Kiap’s affidavit.

(iii) The abrupt termination of the Finance Commission of Enquiry by the Prime Minister due to ill-advice given by the plaintiff. On the day the plaintiff was scheduled to appear before the Commission to give evidence, the enquiry was

terminated: see par 12 of Ms Kiap’s affidavit.

(iv) Undermining NEC directions, particulars of which are set out in par 12(4) of Ms Kiaps affidavit.

(v) Defiance of directions issued by the National Planning Office, particulars of which are set out in pars 12(5) and 12(6) of Ms Kiap’s affidavit.

(vi) Absconding from responsibilities, particulars of which are set out in par 12(6) of Ms Kiap’s affidavit.

(vii) Lack of respect for system and process of Government, particulars of which are set out in par 12(7) of Ms Kiap’s affidavit.

(viii) Creating division among Departmental Heads and Statutory

Authorities, particulars of which are set out in par 12(8) of Ms Kiap’s affidavit.

(ix) The Prime Minister and the NEC had “Lost Confidence in Mr Lupari as the Chief Secretary to Government with powers to advice the Prime Minister”: par 14 of Ms Kiap’s affidavit. He will “cause more danger to the State and to the Prime Minister should he take office again”: par 16 of Ms Kiap’s affidavit.

(x) Restructuring of the Office of Chief Secretary. The relevance of the

office of Chief Secretary to the government was to be reviewed with

a view to amending the Prime Minister and NEC Act, to go before

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