DC257

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 533 OF 2004

BETWEEN

National Fisheries Authority
Complainant

V

Joe Hare
First Defendant

RD Tuna Cannery Ltd
Second Defendant

Madang: J. K. Numapo
2004: May 17, 18.

RULING

NUMAPO - CM: This is an application by way of a Notice of Motion by the Applicant/Defendants seeking from this Court the following Orders:

1. The appointment of Mr. Gisa Komagin and Ms. Martina Ragalalo as Fisheries Officers pursuant to section 48 of the Fisheries Management Act as gazetted under Gazette No. G96 of 24th July 2003 is, void and of no effect, from the beginning.

2. The Informant, Mr. Gisa Komangin has no locus standi to lay charges by way of the information and such charges are to be dismissed.

The application seeks to challenge the validity of the appointment of Respondents/Informants as fisheries officers under section 48 of the Fisheries Management Act, alleging that the person making the appointment has no power or authority at the first instance to make such appointments, consequently the appointment made is, null and void and of no legal effect. As such, the officers appointed do not have the locus standi to bring proceedings to court for and on behalf of the National Fisheries Authority (NFA).

The application further seeks to dismiss the substantive proceedings currently on foot before this court based on the grounds alluded to above.

The appropriate forum, I would have thought, would be the National Court, by way of a judicial review under Order 16 of the National Court Rules for application of such nature, especially when challenging validity of administrative powers and/or authority to appoint officers.

The Applicant/Defendant through his counsel thought otherwise, and argued that the outcome of this application, whichever way the court might decide, will determine whether or not the substantive matter would proceed. In essence, the continuation or otherwise of the substantive proceedings hinges on the outcome of this application. I see some logic in this argument as it relates very much to the current proceedings. It is proper and in order therefore that I deal with the application.

As I understood it the arguments by the applicants in this application were, in the nutshell, two-fold:

Firstly, the Fisheries Management Act 1998 in its' literal interpretation and application does not create the position of the Acting Managing Director. The Act only creates and establishes the position of the Managing Director pursuant to section 16 of the Act. Any administrative decisions or actions taken by the Acting Managing Director is therefore null and void and of no legal effect.

Secondly, in the absence of such position (i.e. Acting Managing Director), any decisions or actions taken will be deemed improper and/or illegal, as such a person has not been properly appointed and therefore, would not have the appropriate powers and/or the authority to act and therefore under the circumstances would be acting ultra vires. Consequently, those appointed as Fisheries Officers under section 48 by the Acting Managing Director would not have the locus standi to lay charges and bring proceedings to court for and on behalf of the National Fisheries Authority particularly under the Fisheries Management Act.

A number of case laws were cited by both counsels and reference was also made to the interpretation Act.

The English common law principle of locus standi was also elaborately discussed. I do not intent therefore, to go into any great lengths to discuss this common law principle as it is sufficiently discussed and canvassed in some of the PNG case laws I was referred to.

I would like to limit my observation only on two fronts:

Firstly, relating to the appointment of Mr. Molean Chapau as the Acting Managing Director of the National Fisheries Authority (NF A) and whether or not as Acting Managing Director he has the power and/or the authority to appoint fisheries officers under section 48 of the Act

I noted that prior to the corporatization of the National Fisheries Authority as a corporate entity in 1999, it was a department of the government then known as the Department of Fisheries & Marine Resources.

To take on a corporate image, it requires re-organization and restructuring of its administrative and management structure. In its' former status the department was managed by a Departmental head. Following its' corporatization, the overall administration and management may have to come under a Managing Director or a Chief Executive Officer of some sort as in the case of NFA.

Following the enactment of the Fisheries Management Act 1998, the NFA was established in 1999. The National Executive Council (NEC) was required therefore, to appoint a Chief Executive Officer to run the NF A and report to the government of the day.

The NEC appointed Mr Simon Tiller in 1999 for a term as the Acting Managing Director for NFA. This was followed by another subsequent acting appointment. Mr. Michael Batty was appointed Acting Managing Director to be followed by Dr. Anthony Lewis and subsequently followed by Mr Molean Chapau. All four were appointed only as Acting Managing Directors. There were no substantive appointments since then.

Even at this very moment, following Mr Chapau’s departure from NFA, I understand that Mr Sylvester Pokajamb is now currently the Acting Managing Director for NF A. A substantive appointment is yet to be made.

The precedence has been set and the trend will, no doubt, continue.

On record there has been a number of acting appointments made in the past. Those Acting Managing Directors have performed their duties and functions, one of which was to appoint fisheries officers pursuant to section 48 of the Fisheries Management Act. Those appointed officers were required to carry out duties and exercised their powers given under section 49 of the Act.

I have no doubt in my mind that NEC must have been properly and adequately adviced to make these acting appointments for the National Fisheries Authority. It was on that basis that three acting appointments were made prior to Mr Molean Chapau' s acting appointment.

I noted also that there has been a transitional period following the abolition of the Department of Fisheries & Marine Resources and the establishment of the National Fisheries Authority to replace it.

The administration and management of the NF A can not be left in a vacuum. The organization must continue to function to serve the purposes for which it was set up for. It is therefore incumbent upon the NEC to make the appropriate appointments at an appropriate time, be it permanent or acting, whatever the case may be, to run the organization. That to my mind is crucial and important to the organization.

In my humble view, section 53 of the Interpretation Act adequately covers for Acting Appointments where none is provided for under the enabling Act. And it is on that basis that the NEC made a number of acting appointments including that of Mr Molean Chapau's.

Indeed, acting appointments is a common practice within the Public Service as well as other government statutory organizations to maintain status quo as well as for the efficient and effective functioning of the organization whilst the government is considering permanent appointments. In some work places, acting appointments are a norm used as a yardstick to determine one's potential and capability before a permanent appointment is made.

Acting appointments is dependent upon either vacancy in office or absence of the incumbent. In this case, there was a vacancy to be filled; hence it is in order for an acting appointment to be made. The cases of Constitutional Ref No. 01 of 1978: Re: Leo Morgan [1978] PNGLR 460 and R-v-Tovarula [1973] PNGLR 140 made clear the position on acting appointments and that is that, in the event where a vacancy arises, the acting appointee to the position has all the powers and authority to make decisions affecting the running of the organization, which also includes, appointing officers to perform certain functions and duties.

To address the first issue raised. Based on what I have so far discussed, I am satisfied that the appointment of Mr Molean Chapau as Acting Managing Director is in order, and valid for all purposes based on the following:-

(i) Section 53 of the Interpretation Act sufficiently covers for any defects or loopholes that may be found in the Fisheries Management Act relating to acting appointments where there is a vacancy. And that the NEC is empowered to make acting appointments if and when the need arises to ensure that the organization continues to function.

(ii) Precedence has previously been set resulting in a number of different persons been appointed Acting Managing Directors for NF A before Mr Chapau' s acting appointment.

(iii) The case laws have clearly confirmed the view that acting appointments are allowed for where there is a vacancy. In this case, there was a vacancy in the Managing Director's position that needs to be filled.

(iv) Acting appointments is a common and accepted practice in both the Public Service and other government statutory organizations including private organizations to maintain status quo and allow continuity, hence there is nothing sinister or improper about it.

I find that Mr Molean Chapau is properly appointed as Acting Managing Director for NFA for all intended purposes.

Answers I gave for the first point will also impact on the outcome of the second issue raised.

Having established that Mr Molean Chapau was properly appointed and as such possessed the powers and authority to perform his functions including appointment of fisheries officers pursuant to section 48, I find also that he has not acted ultra vires in appointing the officers. I am satisfied that Mr. Chapau, for all intended purposes, acted within his powers and authority as Acting Managing Director to appoint those fisheries officers as listed in the Government Gazette No.G96 - 24th July 2003.

Based on this conclusion, it is only proper and logical for me to therefore conclude that, Mr Gisa Komagin and Ms. Martina Regalolo have been duly appointed as Fisheries Officers pursuant to section 48 of the Fisheries Management Act and therefore have the locus standi to lay charges and bring proceedings to Court for and on behalf of the National Fisheries Authority.

I dismiss this application accordingly.

Costs are borne by parties individually. I order no costs.

Mr. Iwais Anlus: Complainant
Mr. Young Wadau: Defendant