Peter Neville v National Executive Council of Papua New Guinea and Honourable Kerenga Kua in his capacity as the Attorney General as the nominal defendant for and on behalf of the Governor General of Papua New Guinea and Independent State of Papua New Guinea and Malcom Lewis, Ruben Aila, Jerry Agus & Michael Jelliffe in their capacities as Directors of National Airport Corporation Limited (2015) SC1431

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J, David & Murray, JJ
• Judgment Date: 05 June 2015
• Court: Supreme Court
• Citation: (2015) SC1431
• Docket Number: SCM No 22 of 2013
• Year: 2015
• Judgement Number: SC1431

Full Title: SCM No 22 of 2013; Peter Neville v National Executive Council of Papua New Guinea and Honourable Kerenga Kua in his capacity as the Attorney General as the nominal defendant for and on behalf of the Governor General of Papua New Guinea and Independent State of Papua New Guinea and Malcom Lewis, Ruben Aila, Jerry Agus & Michael Jelliffe in their capacities as Directors of National Airport Corporation Limited (2015) SC1431

Supreme Court: Gavara-Nanu J, David & Murray, JJ

Judgment Delivered: 5 June 2015

SC1431

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 22 of 2013

BETWEEN:

PETER NEVILLE

Appellant

AND:

NATIONAL EXECUTIVE COUNCIL

OF PAPUA NEW GUINEA

First Respondent

AND:

HONOURABLE KERENGA KUA in his capacity as the Attorney General as the nominal defendant for and on behalf of the GOVERNOR GENERAL OF PAPUA NEW GUINEA

Second Respondent

AND:

INDEPENDENT STATE OF

PAPUA NEW GUINEA

Third Respondent

AND:

MALCOM LEWIS, RUBEN AILA, JERRY AGUS & MICHAEL JELLIFFE in their capacities as DIRECTORS OF NATIONAL AIRPORT CORPORATION LIMITED

Fourth Respondents

Waigani: Gavara-Nanu J, David & Murray, JJ

2014: 30 June

2015: 05 June

APPEAL – Practice & Procedure – Preliminary Objection to Competency of the Notice of Objection to Competency of the Appeal – Supreme Court Act, Chapter No. 37; ss. 4 (2) (c) and 14 (1) (c) – Whether Grounds of Appeal raise issues of law, fact , or mixed fact and law – Whether leave to appeal required – Appellant raising fresh matters on appeal – Appeal incompetent – Appeal dismissed.

Cases cited:

Papua New Guinea cases

Barawa Ltd v. Giregire Estates Ltd (2008) SC958

Boyepe Pere v. Emmanuel Nugi (2003) SC711

Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828

Chris Haiveta v. Paias Wingti & Ors [1984] PNGLR 189

Coca Cola Amatil (PNG) Ltd v. Joshua Yanda (2012) SC1221

Dekenai Construction Limited v. Lucas Dekena, MP, Minister for the Department of Lands & Physical Planning & Ors (2015) SC1417

Dillingham Corporation of New Guinea Pty Ltd v. Constantino Alfredo Diaz [1995] PNGLR 262

Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) PGSC4; SC907

Gigmai Awal v. Salamo Elema [2000] PNGLR 288

Gregory Puli Manda v. Yatala Limited (2005) SC795

Henzy Yakam v. Stuart Merriam [1998] PNGLR 555; SC533

Isaac Lupari v. Sir Michael Somare, MP; Prime Minister & Chairman of the National Executive Council & Ors (2010) SC1071

Jeffrey Turia v. Gabriel Nelson (2008) SC949

Ken Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886

National Capital Limited v. Loi Bakani, Governor of Bank of Papua New Guinea (2014) SC1392

NCD Water & Sewerage Ltd v. Sam Maskuman Tasion (2002) SC696

Oio Aba v. MVIL (2005) SC779

Pacific Equities & Investments Ltd v. Teup Goledu (2009) SC962

Patterson Lowa v. Wapula Akipe [1991] PNGLR 265

Placer (PNG) Ltd v. Anthony Harold Leivers (2007) SC899

Pogera Joint Venture v. Joshua Suapu Yako (2008) SC916

PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717

Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557

Talibe Hegele v. Tony Kila (2011) SC1124

The State v. John Talu Tekwie (2006) SC843

The State v. John Tuap (2004) SC675

The State of Papua New Guinea v. Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448

Waghi Savings and Loans Society Ltd v. Bank South Pacific Ltd (1980) SC185

Other Cases cites:

British Launderers’ Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21

Counsel:

Alfred Manase, for the Respondents/Applicants

Tobias Dalid, for the Appellant/Respondent

5th June, 2015

1. BY THE COURT: INTRODUCTION: On 18th September 2013, the National Court constituted by Kariko, J (the primary judge) presiding at Waigani dismissed the proceedings instituted by the Appellant in the National Court on 15th May 2013; OS (JR) No.258 of 2013 (the National Court proceedings), for failing to file a substantive notice of motion under Order 16 Rule 5(1) of the National Court Rules (NCR). On 11th October, 2013, the Appellant filed a Notice of Appeal by way of a Notice of Motion, under Order 10 of the Supreme Court Rules (SCR) (Notice of Appeal). The appeal is against the whole of the judgment of the primary judge.

2. On 1st November, 2013, the Respondents filed a Notice of Objection to Competency of the Appeal.

BACKGROUND

3. The Appellant was first appointed a Director and Chairman of the Board of Directors of the National Airport Corporation Ltd (NAC) in early October 2009. According to Clause 2.2 of the Constitution of the NAC, the tenure of appointment of Directors of the NAC Board was for three years. The Appellant asserts that by a decision of the First Respondent (NEC) made on 22nd December 2011, which was published in the National Gazette No.G10 on 6th January 2012, he was reappointed Director and Chairman of the NAC Board.

4. The Appellant further asserts that on 24th April 2013, the NEC convened a Special Meeting No.10/2013 and by its Decision No.133/2013, from that meeting, amongst other things, revoked his appointment as Director and Chairman of the NAC Board together with two other Directors namely, Freda Talao and Jack Pidik and appointed the Fourth Respondents, as new non-ex officio members of the NAC Board. The appellant also asserts that the above revocations and appointments came into effect on 24th April 2013, which is the day the NEC Decision No. 133/2013.

5. Aggrieved by the above NEC decision, the appellant instituted the National Court proceedings claiming that his revocation with two other Directors of the NAC Board and the appointments of the Fourth Respondents as new non-ex officio members of the NAC Board were unlawful. The Appellant claims that the revocation of his appointment as a Director and Chairman of the NAC Board together with two other Directors, namely, Freda Talao and Jack Pidik was contrary to the Civil Aviation Act 2000; Clause 2 of the Constitution of the NAC and the Companies Act. The appellant also claims that the appointment of the Fourth Respondents as non ex-officio members of the NAC Board was contrary to the Civil Aviation Amendment Act 2010.

6. On 4th June 2013, the National Court constituted by Cannings, J granted the Appellant leave to apply for judicial review. His Honour also ordered that a substantive notice of motion under Order 16 Rule 5 (1) of the NCR and supporting affidavits be filed by Tuesday, 11th June 2013.

7. On 6th June 2013, the National Court constituted by Cannings, J heard and granted the Appellant’s application for stay of the NEC decision No. 133/2013, thus effectively restoring the two original Directors and himself as Directors and him as the Chairman of the NAC Board.

8. On 19th July 2013, the Respondents filed a Notice of Motion which was subsequently amended by an Amended Notice of Motion filed on 31st July 2013 seeking, amongst other things, the following orders:

“1. Pursuant to Order 12 Rule 8(5), Order 16 Rules 3(8)(a) and 13(1) of the National Court Rules and Section 155(4) of the Constitution, the Court Order of 6th June 2013 be varied or discharged on the basis that the National Airport Corporation does not have a full Board sufficient to constitute a quorum at the present time to manage its affairs or transact its business.

2. Pursuant to Order 16 Rules 13(1) and (2)(a) and (b) and Order 12 Rule 40 of the National Court Rules, the proceedings be dismissed on the basis that the Plaintiff does not have standing to institute the proceedings because his purported appointment by the National Executive Council and gazetted in National Gazette No.G10/2012 of 6th January 2012 was made in breach of Section 147(A) (5) of the Civil Aviation Act (CAA) and Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act in that the Plaintiff was not cleared by the Public Services Commission as a fit and proper person.

1. The Court Order of 6th June 2013 be discharged on the basis of the Plaintiff’s failure to make full and candid disclosure of all relevant materials and information to the Court contrary to the principles established in Bauf and Nodai vs Poliamba Pty Ltd [1991] PNGLR 278.

2. Alternatively, the Court Order of 6th June 2013 be discharged on the basis that the order is confusing and not clear as the order seeks to stay a gazettal notice which has already taken effect and the Fourth Defendants already took office and were performing the powers of the directors of NAC.

3. Alternatively, the stay order be discharged and the entire proceedings be dismissed on the basis that there is no Notice of Motion on foot seeking substantive relief contrary to Order 16 Rule 5 of the National Court Rules.

4. In the further alternative, pursuant to Rule 15 (2) (c) of the Listings Rules 2005, the entire proceedings be dismissed for non compliance of Consent Orders, in particular, Order No. 3 of the Consent Orders of 19th June 2013.”

9. On 18th September 2013, the primary judge dismissed the entire National Court proceedings for the appellant’s failure to comply with Order 16 Rule 5 of...