Joshua Giru v Willie Edo (2007) N5032

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 July 2007
• Citation: (2007) N5032
• Docket Number: OS NO 281 OF 2007
• Court: National Court
• Year: 2007
• Judgement Number: N5032

Full Title: OS NO 281 OF 2007; Joshua Giru v Willie Edo (2007) N5032

National Court: Cannings J

Judgment Delivered: 6 July 2007

N5032

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 281 OF 2007

JOSHUA GIRU

Plaintiff

V

WILLIE EDO

First Defendant

CLEMENT NAKMAI

Second Defendant

Kimbe: Cannings J

2007: 15 June, 6 July

JUDGMENTS AND ORDERS – res judicata – abuse of process – whether dismissal by Supreme Court of appeal against National Court decision for want of prosecution precludes further challenges to National Court decision.

JUDICIAL REVIEW – mode of commencement – whether proceedings seeking declaration as to legality of administrative decision should be commenced under National Court Rules, Order 16 – whether plaintiff has a choice – whether notice required under Claims By and Against the State Act.

JUDICIAL REVIEW – challenges to appointments made under Constitutional Laws – appointment of Provincial Administrator – whether proceedings of National Executive Council justiciable – whether National Court has power to make orders regarding appointments.

JUDGES – whether duty to give reasons for decisions – whether a duty to give written reasons.

COSTS – whether parties have been brought needlessly to court – costs improperly incurred – whether losing party’s lawyers should be directed to pay costs.

The National Executive Council appointed the plaintiff as a Provincial Administrator. The first defendant, an unsuccessful applicant for the position, sought and was granted leave for judicial review by the National Court; and, later, the National Court quashed the plaintiff’s appointment and ordered that the first defendant act in the position and that a fresh appointment be made. The plaintiff appealed to the Supreme Court against the quashing of his appointment but his appeal was dismissed for want of prosecution and the first defendant was restored to the position on an acting basis. The plaintiff then commenced fresh proceedings seeking amongst other relief a declaration that he is the lawfully appointed Provincial Administrator. Four preliminary issues arose concerning the jurisdiction of the court to hear and determine the various substantive issues the plaintiff raised as to the legality of his appointment. This judgment covers both the preliminary issues and the substantive issues.

Held:

As to the preliminary issues –

(1) The proceedings were not improperly commenced by originating summons under Order 4 of the National Court Rules.

(2) The plaintiff did not have to give notice under Section 5 of the Claims By and Against the State Act, given the nature of the proceedings.

(3) There had been no previous final determination of the issues concerning the legality of the plaintiff’s appointment, so the doctrine of res judicata did not prevent the court addressing the substantive issues.

(4) However, in light of the background of the case and the fact that the Supreme Court dismissed the appeal by the plaintiff against the earlier decision of the National Court quashing his appointment, the present proceedings were an abuse of process.

As to the substantive issues – obiter dictum –

(5) The National Court made no error of law when it granted leave for judicial review.

(6) The National Court did not act contrary to Section 153(2) of the Constitution or Section 56(1) of the Criminal Code when it quashed the plaintiff’s appointment.

(7) The National Court did not act contrary to the Organic Law when it appointed the first defendant as Acting Provincial Administrator.

(8) The Judge who quashed the plaintiff’s appointment did not fail in his duty to give reasons for that decision.

(9) Previous National Court proceedings were not conducted contrary to the principles of judicial review.

(10) The plaintiff was not denied natural justice.

(11) There is insufficient evidence that the defendants or their lawyers engaged in unethical or dishonest conduct, resulting in the Supreme Court appeal being dismissed.

The result being –

(12) All claims for relief were refused and the proceedings dismissed.

Cases cited

The following cases are cited in the judgment:

Anderson Agiru v Electoral Commission and The State (2002) SC687

Burns Philp (PNG) Ltd v The State (1989) N769

Central Pomio Logging Corporation Pty Ltd v The State [1990] PNGLR 195

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651

Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396

Haiveta v Wingti (No 2) [1994] PNGLR 197

In the Matter of the Lawyers Act 1986 and In the Matter of an Application by Peter Norman Moore [1993] PNGRL 470

In the Matter Pursuant to Section 18(1) of the Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854

John Kawi v Jerry Tetaga (2006) N3100

Kaseng v Namaliu and the State [1995] PNGLR 481

Kiee Toap v The State (2004) N2766

Kila Wari v Gabriel Ramoi [1986] PNGLR 112

Mark Ekepa and Others v William Gaupe and Others (2004) N2694

Mision Asiki v Manasupe Zurenuoc and Others (2005) SC797

National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264

O'Reilly v Mackman [1982] 3 WLR 1096

Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue and Others (2003) N2467

Papua New Guinea Harbours Board v Breni Kora (2005) N2834

Phillip Aeava v The State (2001) N2136

Public Services Commission v The State [1994] PNGLR 603

Re Election of Governor-General (No 2) (2004) SC728

Re Fisherman's Island [1979] PNGLR 202

SCR No 55 of 2004; James Marabe v Tom Tomiape, 07.05.07, unreported

Siaman Riri v Simion Nurai (1995) N1375

Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628

Supreme Court Reference No 3 of 2000; Special Reference under Section 19 of the Constitution by the Governor-General re Sitting Days of the National Parliament (2002) SC722

Supreme Court Review No 13 of 2002; Application by Anderson Agiru (2002) SC686

Supreme Court Review No 4 of 1990; Application by Wali Kili Goiya [1991] PNGLR 170

Supreme Court Review No 8 of 2003; Application by Anderson Agiru (2003) SC704

Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570

The State v The Attorney-General and The Electoral Commissioner (2002) N2193

Titi Christian v Rabbie Namaliu OS No 2 of 1995, 18.07.96, unreported

TST Pty Ltd (Provisional Liquidator Appointed) and Tin Siew Tan v Thomas John Pelis and Pelton Investments Pty Ltd (1998) N1747

Willie Edo v Hon Sinai Brown and Others (2006) N3071

Abbreviations

The following abbreviations appear in the judgment:

ALJ – Australian Law Journal

CJ – Chief Justice

DCJ – Deputy Chief Justice

J – Justice

Ltd – Limited

N – National Court judgment

NEC – National Executive Council

No – number

OS – originating summons

PEC – Provincial Executive Council

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

Pty – proprietary

SC – Supreme Court judgment

SCR – Supreme Court Reference/Review

v – versus

WLR – Weekly Law Reports

ORIGINATING SUMMONS

This was an application for a declaration as to the legality of appointment to a public office.

Counsel

R G Maguire, for the plaintiff

P Kingal, for the defendants

6th July, 2007

1. CANNINGS J: The plaintiff Joshua Giru was appointed by the National Executive Council as Provincial Administrator for West New Britain. His appointment was challenged in court by another candidate for the position, the first defendant Willie Edo. After a series of court proceedings Mr Giru’s appointment was quashed and Mr Edo now holds the position on an acting basis. Mr Giru has commenced fresh proceedings against Mr Edo and the second defendant the Governor of West New Britain, Clement Nakmai. Mr Giru is seeking amongst other things, a declaration that he is the lawfully appointed Provincial Administrator for West New Britain.

2. Mr Giru argues that in the previous court proceedings a number of important points of law were not brought to the attention of the courts, that errors were made and that the manner in which the court hearings were conducted, sometimes in his absence, was unfair. He argues that the court order to appoint Mr Edo as Acting Provincial Administrator is unconstitutional.

3. Messrs Edo and Nakmai say that the Judges who dealt with these matters previously made no errors of law and that Mr Giru was dealt with fairly. Mr Giru had the chance to raise these issues earlier but did not, so he cannot come back for a second bite at the cherry. They say that the present proceedings are an abuse of process and the application for a declaration should not be entertained.

THE ISSUES

4. The parties have raised two sorts of issues. First, the preliminary, jurisdictional issues raised by the defendants about whether the application for a declaration should be entertained. Secondly, the...