N1199

PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE (Sitting as Defence Force Judge)

OS NO. 217 OF 1993

IN THE MATTER OF THE APPLICATION BY

JOHN GARO GULI AIEDE, TENNY PAKAWA, LUSUP YAK, DANNY MEGA NAIO, PUKUNAPE KOSINTO

AND:

THE DEFENCE FORCE OF PAPUA NEW GUINEA

Waigani: Brown J. (sitting as Defence Force Judge)
1994: Jan 10

Defence - Transfer of members to the Reserve Force - Members standing for General Elections in 1992 - Application to be reappointed to the Regular Force - Defence Councils refusal to reappoint - Relevent considerations Defence Act Chap 74 s. 68.

Defence - Powers of Defence Council on application for reappointment after transfer to the Reserve - Powers of review by National Court sitting as a Defence Force Judge - "unreasonableness" in the Wednesbury sense required before Judge can interfere.

Asociated Provincial Picture Houses Ltd -v- Wednesbury Corp (1968) 1 K.B. 223; and Central Pomio Logging Corp Pty Ltd -v- The State [1992] PNGLR 20 applied.
Defence Act Chap. 74 s. 45(8).

Held:

(i) 	Where aggrieved members affected by the Defence Councils decision seek to challenge the refusal to reappoint to the Regular Force, the Defence Force Judge may give directions as to the procedure to be followed at Court on such a challenge Defence Act s. 45(8).

(ii) 	A Defence Force Judge has power to substitute findings of the Defence Council only where it considers it necessary to do justice in a particular case.
	(Obiter comments of Andrew J. in Benas Openefa -v- Willie Karai Wagera [1980] PNGLR 188 applied).

(iii) 	Whether these members were entitled to question the findings of the Defence Council depended upon the answer to the questions posed by the Wednesbury principles and should be only answered in the affirmative where "unreasonableness" has been shown.

Associated Provincial Picture Houses Ltd -v- Wednesbury Corp (1948) 1 K.B. 223; applied.

Central Pomio Logging Corp Pty Ltd -v- The State [1992] PNGLR 20; followed.

Proceedings in the nature of judicial review.

This was an application by various members of the Defence Force who had applied for and been transferred to the Reserve Force whilst they contested the 1992 General Elections. They subsequently sought reappointment to the Regular Force but were refused and discharged by the Defence Council. On their appeal, the Defence Force Judge dealt with their applications as proceedings in the nature of judicial review.

The applicants appeared in person.
Captain K. Kassman with Mr M. Kombura, for the respondent.

REASONS FOR DECISION

BROWN J.: This is an application to judicially review the various decisions of the Defence Council refusing to reappoint these aggrieved persons to the Regular Force. They had originally sought leave to campaign and stand for the General Elections in 1992. They were unsuccessful candidates. Pursuant to s 68 of the Defence Act a member may apply to the Defence Council to be transferred to the Reserve Force. In accordance with the provisions of the subsec (2), where he fails in his election aspirations, the Defence Council may transfer the member back, in the same rank that he previously held, to the Regular Force.

Pursuant to orders under hand of the Chairman of the Defence Council, these various members application for transfer back to the Regular Force was refused.

They consequently come to this Court to review the decision of the Defence Council given on the 28 August 1992 which adversely affected them all.

I have appended details of these service personnel -

8020 Major J.G.G. Aiede
Captain Tenny Pakawa
Sergeant Lukas Wak
Corporal Danny Mega Naio and
Corporal Pukanape Kosinto.

The events leading up to their application to be transferred to the Reserve Force may shortly be summarised. On 7 October 1991 the Chief of Personnel signalled the Unit Commanders and other Officers Commanding in the Defence Force to publish details to members of their options, if members wished to contest the National Elections in 1992. Those options were:-

i. 	to resign or apply for discharge from the Defence Force or
ii. 	apply to be transferred to the Reserve Force in accordance with s 68 of the Defence Act.

It is quite clear from the terms of Chief of Personnel signal to his Commanding Officers that he recognises two classes, the first is of members who wish to be discharged and seek election and the second is of members who wish to remain in the Force but seek to be transferred to the Reserve in accordance with s 68 of the Act whilst they await their fate at the hands of voters, keeping their option alive to be transferred back to the active Force, as envisaged by s 68.

Captain Kassman, who appeared with Mr Kombura for the respondent, conceded that the Defence Force Judge has jurisdiction to hear these applications. He had referred me to s 45 (8) of the Defence Act and since he made that concession there was no need for me to consider whether in the circumstances of this case, an application to judicially review the refusal of the Defence Council to transfer these members back to the regular Force could properly be heard by me. On the face of s 45(8) and having regard to the obiter comments of Andrew J. in Benas Openefa's case [[1980] PNGLR 188 @ p.190 where he said that the Defence Force Judge may make such orders as are required to do justice in the particular case] I am satisfied I may proceed.

The counsel for the respondent tendered the minutes of the Defence Council which met on the 28 August 1992 and from which the various determination notices flowed. That Defence Council Meeting No. 1 of 1992 considered the members application for transfer to the Regular Force and whilst 3 applications were considered on that occasion I understand that the remaining 2 applications were dealt with in a similar fashion by the Council.

At the meeting, the Commander advised the Council that a total of 6 members had transferred to the Reserve to contest the elections. One member had passed away, one member had not indicated whether he wished to return, Corporal Naio (one of these applicants) subsequently gave notice of his wish to be transferred to the Regular Force, while the remaining Reservists gave notice of their wish to become Regulars.

The minutes of the meeting, at para 14 & 15 said this -

"14. Commander gave brief staffing, political and administrative implications on the individual members for the Counsel to take into consideration in making its decision.

15. After careful consideration Counsel decided to not approve the applications independently and directed that the members be discharged from the PNGDF as of 28 September 1992".

These applicants are all on the same footing for they all sought transfer to the Reserve to stand for the 1992 Elections.

Captain Kassman for the respondent, argued that the decision whether to transfer these members back to the Regular Force was wholly within the discretion of the Defence Council. He referred me to the wording of s. 68(2) where it is said that the Defence Council "may transfer back, in the same rank that a member previously held". He did concede however that when exercising its discretion the counsel must take into account relevant factors and should have grounds and reasons for coming to its decision whether or not to transfer. He pointed out that the Defence Council had been briefed by the Commander and that the nature of the brief included relevant factors. I refused Captain Kassman's application for leave to seek to find and tender if possible, just what the Commander had said to the Defence Council.

Captain Kassman did concede that the Defence Force Judge may inquire into the reasons why these members had not been reappointed. He was careful to point out that the briefing by the Commander to the Council included administrative matters which he explained, related to the chain reaction which follows when members are stood out of the active Force so that vacancies are immediately created. These vacancies have been filled and consequently to allow re-engagement now is not in the best interest of the Defence Force a factor which must be taken into account, considering that it is a Disciplined Force and is not constituted as a Public Service. He also referred to the age factor for there are statutory retiring ages affecting rank. As well members are eligible for discharge after serving 20 years. I should say that none of the members have reached their statutory retiring age and nor have they reached the maximum age in rank permissible in the service. Captain Kassman also referred to "political affiliations" but I am of the view that such reference is not relevant to the determination of the Council in a democratic society. He said as a result of the administrative considerations touched on by the Commander in his briefing that I should have regard to current budgetary constraints which call for a reduction in manpower in the Force. He also addressed me to the effect that if I found a procedural error I could presume proper policy reasons in the Council, for the refusal to re-appoint even though the reasons had not been noted in the minutes.

Quite frankly I consider that the failure to note the reasons go beyond procedural errors and are substantive errors which give me cause to entertain the application for judicial review. I should say that on the face of the record of proceedings of the minutes of the Defence Council Meeting No. 01/92 there is nothing to suggest that the procedure for a meeting of that nature has not been followed and consequently there can be no criticism of the Defence Council so far as its procedures are concerned. The criticisms which these applicants level at the Council is the failure to give reasons for their determination.

The act of the Council in determining whether to re-engage these Reserve members in the regular force is one of an administrative nature and cannot be categorised as of a quasi judicial nature. The question whether to re-engage these members does not arise out of any disciplinary act. They are not seeking the Defence Council's review of a Commanding Officer's award or decision in disciplinary proceedings. It is clear from the minutes of the Defence Counsel Meeting that the Commander treated it as imbued with the status of an administrative act, for he joined "staffing and administrative implications" in his briefing.

In those circumstances I propose to deal with the case as one where the Wednesbury principles should be considered. [Associated Provincial Picture Houses Ltd -v- Wednesbury Corp] (1948) 1 K.B. 223]. Those principles are applicable in Papua New Guinea and were applied more recently in Central Pomio Logging Corp Pty Ltd -v- The State (1992) PNGLR 20.

In Central Pomio Logging the Supreme Court, having categorised the Comptroller's power as administrative went on to say at p. 25 -

"Wednesbury's case states a proposition that, in considering whether an authority having so unlimited a power, has acted unreasonably, the Court is only entitled to investigate the action of the authority with a view to seen if it has taken account of any matters that ought not to be, or has disregarded matters that ought to be, taken into account. The Court cannot interfere as an appellant authority to override a decision of such an authority but only as an judicial authority concerned to see whether it has contravene the law by acting in excess of its power. With this proposition we agree, although the decision may evidence bad administration, in a commercial sense".

I must look to the findings of the Defence Council then, to see if it has taken into account matters that ought not to have been taken into account or to have disregarded matters that ought to be taken into account.

As I say a matter which I have already found to be extraneous to the Council's consideration is the "political implications on the individual members" (sic). Since the Council has given no reasons for its decision not to approve the applications for transfer, I am left in some doubt as to whether the Council has placed any weight on this extraneous consideration and if so what weight. If the Council has considered these individual members to be "politically" unacceptable then of course that is a matter which should not be taken into account. I am unable to determine if that was the case.

I am able to say however in the absence of any minute to the effect that a number of matters that should have been taken into account, appear not to have been.

Those matters have been very well argued by the applicants. They say that there has been a practice in the past for the Defence Force to re-engage members who had been transferred to the Reserve whilst contesting elections. The lawyers for the respondent have not disputed that assertion. The Court may take judicial notice of the past practice for I am aware of circumstances where this has occurred. Secondly the applicants say that the Chief of Personnel's direction to his Commanding Officers that there were two courses available to applicants presupposes a right in the candidates for election to rejoin the force if they are unsuccessful. That supposition is supported by the Defence Forces continued acceptance of the members in their married quarters and the support given single members whilst in the Reserve pending the outcome of the elections. The applicants say thirdly, that any time lag in bringing these applications to the Court is as a result of the delays in the Defence Force administrative bodies for they have been endeavouring to have the Defence Council reconsider the Determination of the 28 August 1992. The lawyer for the respondent Captain Kassman concedes that these applicants have been attempting to have their applications for re-engagement reconsidered by the Defence Council and that he only recently has prepared a brief for the Defence Council in relation to such applications. The Defence Council to date however has not reconsidered the original determination refusing the applications for transfer to the Regular Force. There is no need for the Defence Council to reconsider, but I accept the point made by these applicants that, when Captain Kassman says the Defence Force has acted to its detriment in the meantime by filling the applicants postings, such acts cannot be used by the Force as support for its argument that I should not interfere now. Fourthly, the argument raised by Captain Kassman that these members face discharge having regard to their age or their position in rank on the facts, cannot be sustained. The officers are permanent officers and have not reached the statutory age of retirement nor have the soldiers reached retirement age. Most importantly the personal record of the soldiers appears not to have been a major consideration in the Defence Council's deliberations. No particular consideration has been given to the individual members when as I say the counsel is deliberating on an administrative act. In other words they appear to have disregarded a vital element, the soldiers service to the Defence Force, the training afforded the soldier and the soldiers continued usefulness, when reaching the decision to determinate. In these circumstances then I am satisfied in the words of the Supreme Court in Central Pomio Logging the Defence Council appears to have disregarded matters that ought to have been taken into account and in my view the Council's decision is unreasonable.

In the case of Benas Openefa -v- Willie Karai Wagera, decided by Andrew J sitting as a Defence Force Judge on the 6 August 1980 the Judge said that the National Court is deemed to have the same jurisdiction as the Commander of the Defence Force has under schedule C.8 and the Commander has a general power to make such order as he considers necessary to do justice in a particular case. Whilst Andrew J.'s comments relate to disciplinary proceedings, since I have found a power to judicially review the Defence Council's findings I am satisfied the Defence Force Judge has the powers of the Defence Council in these instant.

Decision

I accordingly order that the applicants be transferred to the Regular Force.

The refusal by the Defence Council on 28 August 1992 suggests that date as a convenient date from which the calculation of the members entitlements may be based. It would seem, since they have had the benefit of housing and other accommodation in the interim that the members should not receive the ancillary benefits over and above salary for the period since the 28 August 1992. They have not been serving during that time and the various allowances which relate to a serving member's duty requirements should not be afforded these applicants since they have not been gainfully employed by the Force.

The members have argued their own case quite cogently and in the circumstances I make no orders as to costs. They were not represented by counsel, but, as can be seen from the matters that they have brought to the Courts attention, they have inherently touched on those aspects which are relevant in review proceedings.

I should say that the lawyers for the Defence Counsel throughout the proceedings asserted that firstly I should not embark on the hearing of the matter for the State had not been served and secondly should have granted an adjournment for they had insufficient notice. So far as the first complaint is concerned I directed that the proceedings be deemed to be by way of judicial review and consequently are not judicial proceedings contemplated by the National Court Rules for the proceedings are brought pursuant to the Defence Act. The powers of a Defence Force Judge are determined by that Act.

In so far as the second complaint is concerned I directed the notice of appeal by the aggrieved members be sent with a covering letter to the Commander of the Defence Force on 17 December 1993. In that letter to the Commander, I appointed the 10 January 1994 as a returned date of the application. The representatives for the Defence Council did not appear on that day and I directed an officer of the State a practicing lawyer, to inform the Defence Force responsible officers that I would proceed with the hearing of the matter on the 19 January.

Finally, the Defence Council was represented by two legally qualified persons who appeared before me. I have no other comment to make in relation to that second aspect.