Willie Edo (as Acting Administrator for West New Britain) v Hon Sinai Brown (Minister for Public Service) and National Executive Council and The Independent State of Papua New Guinea and Joshua Giru (2006) N3071

• Jurisdiction: Papua New Guinea
• Judge: The Law
• Judgment Date: 21 July 2006
• Court: National Court
• Citation: (2006) N3071
• Docket Number: OS No. 438 of 2006
• Year: 2006
• Judgement Number: N3071

Full Title: OS No. 438 of 2006; Willie Edo (as Acting Administrator for West New Britain) v Hon Sinai Brown (Minister for Public Service) and National Executive Council and The Independent State of Papua New Guinea and Joshua Giru (2006) N3071

National Court: Lay, J

Judgment Delivered: 21 July 2006

[p1]

[p1]N3071

[p2]

[p2]

[p3]

[p3]

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 438 of 2006

WILLIE EDO AS ACTING ADMINISTRATOR FOR WEST NEW BRITAIN

Plaintiff

AND:

HON SINAI BROWN, MINISTER FOR PUBLIC SERVICE

First Defendant

AND:

NATIONAL EXECUTIVE COUNCIL

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND:

JOSHUA GIRU

Fourth Defendant

Waigani: Lay, J.

2006: 11 and 21 July

JUDICIAL REVIEW - application for leave – considerations - arguable case - locus standi.

PUBLIC SERVICES (MANAGEMENT) ACT - whether provision of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 are ultra vires the Act Regulations to be read down.

CLAIMS BY AND AGAINST THE STATE ACT s.8-meaning of “opportunity to be heard”.

Cases Cited:

Papua New Guinea Cases

Simon Marajin v Post and Telecommunication Corporation [1990] PNGLR 288;

N1595 Steamships Trading Co Ltd v Garamut Enterprises Ltd.

Papua New Guinea Pilots Association v Director of Civil Aviation and National Airline Commission trading as Air Niugini [1983] PNGLR 1 at 3.

NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70.

Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153

Ombudsman Commission v Dohonue [1985] PNGLR 348.

Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22.

Application of Demas Gigimat [1992] PNGLR 322.

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 1223.

N856 Ex parte application of Eric Gurupa.

N1226 Mark Kove v Secretary Department of West New Britain Province.

Ex Parte application of Poka Biki, [1995] PNGLR 336.

Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276,

N1895 Silas Mareha v The Chairman – Redundancy Monitoring Committee & Or.

John Kawi v Jerry Tetega & 6 Ors (OS.1016 of 2005 unreported, unnumbered 26th May 2006);

Kuya Koha v Theodora [1978] PNGLR 217

Kila Wari v Gabriel Ramoi and Kingsford Dibela [1981] PNGLR 112.

Overseas Cases

Bakic v Yamasa Seafood Australia Pty Ltd & Anor [2003] VSC 309.

Todd & Ors v Adelaide Hills C & Nepenthe No. Erd-99-299, Erd-99-301 [1999] SAERDC 67

Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1982] AC 617.

Council of Civil Services Unions v Minister for the Civil Service [1984] 3 ALER 935,

Facts

The Plaintiff seeks leave for judicial review of the procedure leading to appointment of the Fourth Defendant as Administrator of West New Britain, a position for which the Plaintiff was a candidate. The Plaintiff claims that the Minister had in the submission to the National Executive Council containing the names of the recommended candidates from the Provincial Executive Council, made an allegation that there was an outstanding criminal charge against the Plaintiff, which was untrue and in respect of which the Plaintiff had not had the opportunity to be heard.

Held

The Public Services (Management) Act (“the Act”) s.60 requires the Provincial Executive Council (“PEC”) to submit its list of candidates in order of preference to the National Executive Council. To the extent that the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 requires the PEC to submit its preferred list to the Minister, the Regulation ultra vires the Act and must be read down so that the Minister is merely a facilitator of the PEC recommendation to the National Executive Council. The Minister and the Department of Personal Management have no power or authority to add or subtract from the PEC recommendation. Neither the Minister nor the Department of Personnel Management has power to delay the transmission of the PEC recommendation to the NEC.

The addition of comment on an alleged outstanding criminal charge in the submission to the National Executive Council is a breach of the Act which caused the National Executive Council to consider improper or irrelevant material. It is thus arguable that the decision of the National Executive Council was tainted with the impropriety of the unauthorized addition. As a result the contents of the advice to the Governor General appointing the Fourth Defendant could be examined, not being protected by Constitution s.86(4).

There is an arguable case, no delay in making the application, the Plaintiff has locus standi and there are no administrative remedies not exercised- leave to proceed granted.

Meaning of “opportunity to be heard” in s.8 of the Claims by and Against the State Act discussed.

Counsel

W. Hagahuno, for the plaintiff

D. Lambu, for the respondents

21 July, 2006

1. LAY, J.: The Plaintiff applies for leave to proceed with judicial review of the procedures leading to a decision by the Second Defendant to appoint the Fourth Defendant as Administrator of West New Britain.

2. At the relevant time the Plaintiff was acting Administrator of West New Britain and held the substantive position of Deputy Administrator of West New Britain.

3. Early in 2005, the Plaintiff submitted to the Department of Personnel Management his application for the position of Administrator of West New Britain in response to an advertisement of the position by the Department.

4. On 27 June 2005, the Department of Personnel Management recommended the Plaintiff amongst a list of five candidates to the Public Services Commission. On 8 September 2005, the Public Services Commission recommended to the Provincial Executive Council three candidates, the Plaintiff together with Mr. Francis Ko'ou and Mr. Joshua Giru in that order of preference. By its decision No. 33/2005 on 22 September 2005, the Provincial Executive Council resolved to adopt the recommendations of the Public Service Commission and recommend the three candidates to the National Executive Council, with the Plaintiff as its preference candidate. It is not clearly established in the evidence but apparently the Provincial Executive Council recommendation was forwarded to the First Defendant or the Department of Personnel Management.

5. On 14 June 2006, the First Defendant submitted to the National Executive Council a Statutory Business Paper in respect of the appointment of an administrator to West New Britain Province. That Business Paper said in part:

"as part of its pre--screening process, the PSC made inquiries with the Ombudsman Commission on the character and integrity of the above three(3) candidates and have been advised that only Willie Edo has allegations made against him for awarding a Maintenance Contract to a company owned by relative of his wife."

And further on in the same paper it was said:

"It will be noted that Mr. Willie Edo is currently facing criminal charges for assault before the Kimbe District Court. This incident occurred after the pre-screening of applications by the Department of Personnel Management and therefore it was not considered by the Pre--screening Committee and the PSC. This charges are pending and may likely to seriously injure the professional standing and reputation of the officer and may disqualify him as a candidate under s1(g) of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation (i.e. Regulation 6 of 2003)."

6. Subsequently by notice in Gazette G121 of 21 June 2006, the Second Defendant appointed the Fourth Defendant as Administrator of West New Britain.

7. The grounds on which the Plaintiff seeks judicial review in his amended statement filed on 29 June, 2006 are as follows:

"3.1 Under the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation No. 5 of 2003, section 5 (3) (f.) (i) the Departmental Head of Department of Personnel Management is required to prepare a submission to the National Executive Council and it was an error of law on the part of the Minister for Public Services to prepare a submission for the appointment of the Provincial administrator, thereby influencing the National Executive Council unfairly and unjustly to reach a decision on the appointment of the Administrator.

3.2 Under the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation No. 5 of 2003, section 5 (3) (g.) the Minister for Public Services is required to present a submission to the National Executive Council in respect of three (3) candidates elected in order of preference by the Provincial Executive Council and it was an error of law on the part of the Minister for Public Services to prepare a submission for the appointment of the Provincial Administrator, trying to influence and/or influencing the National Executive Council unfairly and unjustly to reach a decision on the appointment of the Administrator.

3.3 The Minister has no powers in law to prepare a submission to the National Executive Council making recommendations and/or commenting on the list of...