Simon Opa and the Board of Governors of Mount Hagen Park Secondary School v Hans Gima, Chairman of the Provincial Education Board and Western Highlands Provincial Education Board and Mann Tambili and the Independent State of Papua New Guinea and Western Highlands Provincial Government (2008) N3343

• Jurisdiction: Papua New Guinea
• Judge: Makail AJ
• Judgment Date: 31 March 2008
• Court: National Court
• Citation: (2008) N3343
• Docket Number: OS NO 32 OF 2008
• Year: 2008
• Judgement Number: N3343

Full Title: OS NO 32 OF 2008; Simon Opa and the Board of Governors of Mount Hagen Park Secondary School v Hans Gima, Chairman of the Provincial Education Board and Western Highlands Provincial Education Board and Mann Tambili and the Independent State of Papua New Guinea and Western Highlands Provincial Government (2008) N3343

National Court: Makail AJ

Judgment Delivered: 31 March 2008

_________________________________

N3343

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 32 OF 2008

BETWEEN

SIMON OPA

First Plaintiff

AND

THE BOARD OF GOVERNORS OF MOUNT HAGEN

PARK SECONDARY SCHOOL

Second Plaintiff

AND

HANS GIMA

CHAIRMAN OF THE PROVINCIAL EDUCATION BOARD

First Defendant

AND

WESTERN HIGHLANDS PROVINCIAL EDUCATION BOARD

Second Defendant

AND

MANN TAMBILI

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Fifth Defendant

Mount Hagen: Makail AJ

2008: 6 March

31 March

JUDGMENT

ADMINISTRATIVE LAW - application for judicial review - decision of western highlands provincial education board - revocation of first plaintiff as acting principal and appointment of third defendant as principal of Mt Hagen Park Secondary School - grounds for judicial review - failure to comply with selection and appointment procedures - Teaching Service Act - sections 27 and 39 - views of parents and community - whether mandatory consideration - failure to take into account - effect - Teaching Service Act, - Section 71 - acting appointments - no right to tenureship - revocation of acting appointment at any time - Teachings Services Act - section 35 -advertisement of vacant position within Teaching Services - whether appointing authority illegally appointed - amending and repealing of Organic Law on Provincial Governments & Local Level Governments - section 10 - came into force on 29 January 2007 - heads of rural local level governments and one representative of heads of urban local level governments ceased to be members of the provincial executive council - appointment of members of provincial education board made by provincial executive council comprising of heads of rural local level governments and one representative of heads of urban local level governments - decision to revoke appointment made on 24 January 2008 - whether subsequent decisions of appointing authority legal.

PRACTICE AND PROCEDURE - oral application for leave to further amend pleadings - National Court Rules - Order 8, rule 50 - new and additional reliefs sought in originating summons - application made during trial - whether leave should be granted to further amend originating summons - considerations for application for leave to amend pleadings - necessary to determine real issues - to prevent multiplicity of proceedings - no prejudice to defendants as defendants aware of nature of amendment prior to and during trial - application for leave to amend granted.

PRACTICE & PROCEDURE - further application for leave to apply for judicial review - application for leave made during trial - decision of western highlands provincial executive council to appoint members of provincial education board on 3 December 2007 - order in the nature of certiorari to quash decision - ground for judicial review already pleaded in statement in support - provincial education board not legally appointed - amendment and repealing of Organic Law on Provincial Governments & Local Level Governments - section 10 - heads of rural local level governments and one representative of heads of urban local level governments ceased to be members of provincial executive council - came into force on 30 January 2007 - whether decision of members of provincial education board to revoke first plaintiff as acting principal and appointment of third defendant as principal on 24 January 2008 valid - decision made after section 10 Organic Law on Provincial Governments & Local Level Governments came into force - decision void abinitio - by operation of law.

ORDERS - application for leave to apply for judicial review granted - application for judicial review upheld - orders for certiorari and declarations granted - quashing decision of western highlands provincial executive council to appoint members of provincial education board on 3 December 2007 - quashing of decision of provincial education board to revoke first plaintiff as acting principal and appointing third defendant as principal on 24 January 2008 - not appropriate case for court to substitute its own decision - decision to appoint principal appropriate for appointing authority to make - appropriate authority well placed and informed in its area of specialty to make decision - order directing western highlands provincial executive council to appoint new members of provincial education board - to avoid unfair and bias decision by old members provincial education board - National Court Rules - Order 16, rule 9(4) - matter remitted to new provincial education board for decision.

PRACTICE & PROCEDURE - consequential order for damages - National Court Rules - Order 16, rules 7 & 9(5) - not appropriate case for award of damages - order further conduct of proceeding to claim damages by way of pleadings - orders accordingly.

Cases cited:

Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122.

Central Pomio Logging Corp Pty Limited -v- Collector of Customs & The State [1992] PNGLR 20.

Motor Vehicle Insurance Trust Limited -v- Komboro George [1993] PNGLR 477.

Lawrence Kalaivi & Others -v- George Arua (1999) N1922.

Polem Enterprise Limited -v- Attorney General of Papua New Guinea & The State (2006) N2968.

Legislations Cited:

Constitution of Papua New Guinea

Organic Law on Provincial Governments and Local Level Governments.

Teaching Service Act.

Education Act.

Western Highlands Provincial Education Act No 01 of 2001.

National Court Rules.

Other Texts & Materials:

Michael Ntumy, Administrative Law of Papua New Guinea, 2nd ed, CBS Publishers & Distributors, 2003 .

Counsels:

Mr D. Gonol, for the Plaintiffs.

Mr B. Aipe, for the Defendants.

31 March, 2008

1. MAKAIL AJ: Introduction: By an Amended Originating Summons filed on 12 February 2008 the Plaintiffs bring this application for judicial review to review the decision of the First and Second Defendants of 24 January 2008 which revoked the appointment of the First Plaintiff as the acting Principal of the Mt Hagen Park Secondary School and in his stead appointed the Third Defendant as Principal of that school.

2. Mt Hagen Park Secondary School is one of the biggest Secondary schools in the country and is located in the heart of Mt Hagen town in the Western Highlands Province.

3. The subject decision was communicated to the Plaintiffs by way of a letter addressed to the Second Plaintiff dated 24 January 2008 and it reads in part as follows:

“RE: APPOINTMENT PETITION

Your correspondence pertaining to the above mentioned is received and acknowledged.

Thank you for the petition.

The Provincial Education Board in its Special Meeting No: 3/2008 DATED 24 January 2008 deliberated on the matter and resolved to the following:

Resolution 6-3/2008,

Glen Kundin/Peter Wama

-That this Board upheld the decision of the PEB Mr Opa to take up his posting at Kombolopa High School and Mr Mann Tambili to resume at Hagen Park Secondary as recommended for tenureship against the Principal’s position and,

-That this Board also took into consideration on the views expressed by the Board of Governors and the Board advise that the protestors may seek legal opinion on the PEB decision if they are not satisfied with the decision.,

Unanimous - carried.

If you not happy with the decision, we suggest you may seek other avenues to sort this matter.

Thank you,

HANS GIMA

CHAIRMAN

PROVINCIAL EDUCATION BOARD - WHP”

4. On 18 February 2008, the National Court granted leave to the Plaintiffs to review the above stated decision. This is the decision that is subject of this judicial review.

5. I say this because at the hearing of the application for judicial review on 6 March 2008, the Plaintiffs’ lawyers sought leave to further amend the pleadings in the Amended Originating Summons filed on 12 February 2008 to add new reliefs to be sought from the Court. They are, first for leave to apply for judicial review of the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 and secondly, an Order in the nature of Certiorari to quash that decision. Finally, they seek an order in the nature of a Declaration to declare that decision null and void. I will return to discuss this point later on in this Judgment.

6. The Amended Originating Summons filed on 12 February 2008 only seeks the following Orders:

“1. Leave be granted to the Plaintiffs to have the decision of the Western Highlands Provincial Education Board (herein after PEB) made in December 2007 and posted on notice on the 19 January 2008 to remove the First Plaintiff as Principal of Hagen Park Secondary School and appoint the Third Defendant and upheld on the 24 January 2008 be judicially reviewed.

2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the First and Second Defendants to remove the First Plaintiff and in its stead appoint the Third Defendant as Principal of Hagen Park Secondary School, in December 2007 and posted on notice on the 19 January 2008 and upheld on...