Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Others; (2) OS 716 of 2007 (JR); Paul Asakusa & National Housing Corporation v National Housing Corporation Board & Anor; (3) OS 127 of 2008 (JR); Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Others (2009) N3303

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 10 April 2008
• Court: National Court
• Citation: (2009) N3303
• Year: 2009
• Docket Number: (1) OS 639 of 2006 (JR)
• Judgement Number: N3303

Full Title: (1) OS 639 of 2006 (JR); Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Others; (2) OS 716 of 2007 (JR); Paul Asakusa & National Housing Corporation v National Housing Corporation Board & Anor; (3) OS 127 of 2008 (JR); Paul Asakusa v Andrew Kumbakor, Minister for Housing & 3 Others (2009) N3303

National Court: Injia, DCJ

Judgment Delivered: 10 April 2008

N3303

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE]

(1) OS 639 of 2006 (JR)

BETWEEN:

PAUL ASAKUSA

- Plaintiff –

AND:

ANDREW KUMBAKOR, MINISTER FOR HOUSING & 3

OTHERS

-Defendants-

(2) OS 716 of 2007 (JR)

BETWEEN :

PAUL ASAKUSA & NATIONAL HOUSING CORPORATION

-Plaintiffs –

AND:

NATIONAL HOUSING CORPORATION BOARD & ANOR

- Defendants

(3) OS 127 of 2008 (JR)

BETWEEN:

PAUL ASAKUSA

-Plaintiff-

AND:

ANDREW KUMBAKOR, MINISTER FOR HOUSING & 3

OTHER

- Defendants-

Waigani: Injia, DCJ

2008: 26 - 27 March

: 10 April

PRACTICE AND PROCEDURE – Judicial review – Application for leave- Arguable case – To be determined with reference to grounds of review pleaded in Statement filed under O 16 r 3 (2) (a) of National Court Rules and material filed in support of application for leave- Appropriate test – Whether ground of review contained in Statement is properly and sufficiently pleaded to raise arguable issues of law – Meaning of “ proper and sufficient pleading”

Cases cited:

Papua New Guinea Cases

Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22

Kekedo v Burns Philp Ltd [1988-89] PNGLR 122

Independent State of Papua New Guinea v Kapal [1987] PNGLR 417

NTN v Board of Post and Telecommunications Corporation [1987] PNGLR 70

Lohia Raka & Others v Leo Toichem & Others [2000] PNGLR 328

Tiga Nalu v Commissioner of Police (1999) N 1927

Thomas Kamo v Commissioner of Police (2001) N 2084

Lawrence Sasau v PNG Harbours Board & Another (2006) N 3253

Willie Edo v Hon. Sinai Brown, Minister for Public Service & Others (2006) N 3071.

Overseas Cases

Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1982] AC 617

Counsel:

V Narokobi, for the plaintiff

N Chillion, for the State

10 April, 2008

1. INJIA, DCJ: These three proceedings are related. They relate to the purported suspension of the plaintiff as the Chief Executive Officer (CEO) or Managing Director (MD) of the National Housing Corporation (NHC) and appointment of other persons to act on the position. In each matter, the plaintiff applies for leave for judicial review under O 16 r 3 of the National Court Rules, of certain decisions of the Board of NHC and /or the Minister for Housing (the Minister) and/or the National Executive Council (NEC). The applications were heard together.

2. In OS 639 of 2006 (JR), which was commenced on 12 September 2006, the plaintiff applied for leave to review the decision of the NEC made on 7th September to suspend him from office and appoint Mr Philip Kikala to act in the position. Prior to leave being granted, the plaintiff applied for and was granted interim orders which restrained the defendants from effecting the suspension. Subsequently, I decided to extend those interim orders. In my ruling, I made strong observations on the seriousness of the issues to be tried in the proposed grounds of review and noted that the Minister and the NEC had not followed the procedure prescribed by ss 8 & 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSA Act) in that the decision to suspend and appoint an acting MD were not based on any recommendation of the Board of NHC. As a result of my ruling, on 26 October 2006, the NEC revoked its decision and reinstated the plaintiff. Following this decision, the plaintiff did not prosecute the leave application until last week.

3. On 22 November 2007, the Board met and made two decisions. First it dealt with a disciplinary matter involving two NHC officers, one of whom is Mr David Dambali. The Board decided to reject the recommendation by the NHC’s disciplinary committee of dismissal or reinstatement and demotion of the two officers and instead directed the plaintiff to reinstate them. The second decision relates to allegations of corrupt or improper conduct and mismanagement made against the plaintiff. The Board decided to investigate the allegations and to facilitate the investigations, it recommended the plaintiff’s suspension to the Minister pending. The Board then submitted to the Public Service Commission (PSC) a list of candidates for acting appointment for consultation purposes.

4. On 11 December 2007, the plaintiff commenced OS 716 of 2007 (JR), seeking leave to review these two decisions.

5. The second decision made by the Board referred to above resulted in the suspension of the plaintiff. On 10 March 2008, the NEC decided to suspend the plaintiff and appointed Mr David Dambali to act on the position. On 11 March 2008, by notice published in the National Gazette, the Head of State effected the said decisions.

6. In OS 127 of 2008 (JR), commenced on 17 March 2008, the plaintiff seeks leave to review the decisions and actions of the Board, the Minister and NEC.

OS 639 OF 2006 (JR)

7. On 27 March 2008, in the course of the hearing, the parties accepted the Court’s suggestion that the proceedings in OS 639 of 2008 (JR) should be resolved by consent of the parties because the decision sought to be reviewed had been revoked and there was no purpose in maintaining the proceedings. The orders made by consent are as follows:

1. Leave to apply for judicial review is granted.

2. The Amended Notice of Motion filed on 22 February 2007 is deemed to be in compliance with the requirements of O16 r 5 (2) of the National Court Rules.

3. An order in the nature of certiorari is granted in accordance with the decision of the NEC made on 26 October 2006.

4. The decision of the NEC made on 7th September 2006 is declared null and void and the plaintiff is reinstated to his position as Managing Director of the NHC, effective from 26th October 2006.

5. The defendants shall pay the Plaintiff’s costs of the proceedings, on a party/ party basis.

8. That leaves the applications in the two remaining proceedings to be determined.

Principles

9. An application for leave involves an exercise of judicial discretion. An applicant must show that he or she has sufficient interest in the matter (O 16 r 3 (5) ), there is no undue delay in bringing the application (O 16 r 4 in respect of an application for certiorari), he or she has exhausted alternative statutory or administrative remedies ( O 16 r 3 (6)) and that there is an arguable case : Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122.

Sufficient interest

10. The plaintiff’s sufficient interest in OS 127 of 2008 is not contested. The plaintiff’s sufficient interest in OS 716 of 2007 is contested on the basis that the Board did not authorize the plaintiff to bring the proceedings on behalf of NHC either in his own name or in NHC’s name. Counsel for the State Mr Chillion submits the NHC is a statutory corporation which is represented by the Board. A person cannot bring proceedings in a representative capacity on behalf of the NHC unless he is authorized by the Board.

11. I reject this submission. The plaintiff is the incumbent CEO or MD of NHC and as the person charged with the responsibility of managing the affairs of the NHC, he is entitled to bring proceedings against the Board if he feels aggrieved by the Board’s decision on any matter affecting the management functions of NHC, which includes disciplinary matters involving staff members of the NHC including himself. I am satisfied that he has sufficient interest to bring the proceedings under his own name in his capacity as MD of NHC as he has done in this case. However in relation to the NHC as a second plaintiff, I accept Mr Chillion’s argument. The first plaintiff requires a resolution of the Board of NHC to authorize him to bring these proceedings in the name of NHC. For this reason, the second plaintiff shall be removed as a party to these proceedings.

Undue delay

12. The plaintiff in both matters seeks an order in the nature of certiorari. There is no dispute that both proceedings were filed within the four month period stipulated by O 16 r 4 (2).

Exhausting of other alternative statutory and administrative remedies

13. There is no dispute that there are no other statutory or administrative avenues available to the plaintiff to review the decision of either the Board, the Minister or the NEC in both matters.

Arguable case

14. The State contests this requirement in both matters.

15. The principles which apply to determining whether an applicant has an arguable case to warrant a trial are settled. In determining whether there is an arguable case, the Court is not concerned with determining the merits of the case. In Ila Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22, the Supreme Court approved the principles set out by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644 which were adopted and applied by Wilson J in NTN v Board of the Post and Telecommunications Corp [1987] PNGLR 70 at 74. Lord Diplock said:

“ If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further...