N3071

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; 
Steamships Trading Co Ltd v Garamut Enterprises Ltd. N1595
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 122.
Ex parte application of Eric Gurupa. N856
Mark Kove v Secretary Department of West New Britain Province. N1226
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 ALL ER 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 candidates recommended by PSC and PEC except to merely present the NEC Submissions prepared by the Secretary for Department of Personnel Management. Hence, the preparation of the report dated the 14 June 2006 on Statutory Business Paper is not lawful and therefore null and void.

3.4 The presentation of a report prepared by the Minister to the National Executive Council and the subsequent decision taken by the NEC based on the recommendation to revoke the Plaintiff's acting appointment and appoint Mr. Joshua Giru is not lawful and therefore null and void.

3.5 In the alternative, that the Minister prepared the submission on the 14th of June 2006, setting out the allegations against the Plaintiff without giving him an opportunity to respond to the allegations, which facts are detrimental to a fair and just consideration of the Plaintiff for the position by the National Executive Council, thereby denying the Plaintiff his right to natural justice under section 59 and 60 of the Constitution."

THE STATE'S RIGHT TO BE HEARD

8. The first issue which arose when this matter came on for argument before me was that the State sought to be heard and to rely on an affidavit filed pursuant to the Claims by and Against the State Act Section 8 which provides:

"Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard."

9. Counsel for the Plaintiff submitted, relying on the provisions of O.16 of the National Court Rules and the case of Simon Manjin v Post and Telecommunication Corporation and Others [1990] PNGLR 288 that the application is ex parte, at the leave stage the Plaintiff is not required to submit all of the evidence on which he may rely at the hearing. Summarising Counsel's further submissions, in that context, it would defeat the intention of Order 16 to have a quick and simple screening of applications, and be a breach of the Plaintiff's right to natural justice to permit the State to adduce evidence and determine the Plaintiff's application by balancing what maybe, at that stage, the Plaintiff's incomplete evidence against the State's evidence. "... afforded an opportunity to be heard" should be interpreted as meaning heard on the material placed before the court by the Plaintiff.

10. "Afforded an opportunity to be heard" or "afforded a reasonable opportunity to be heard" are words frequently used in the common-law context of judicial review, but not so common in legislative provisions. The case of Bakic v Yamasa Seafood Australia Pty Ltd & Anor [2003] VSC 309 (25 August 2003) (Smith J.) concerned the interpretation of legislation providing for assessment of damages for a victim, against a person who has been convicted of an offence which has caused personal injury to the victim: See Sentencing Act 1991(Victoria, Australia). The legislation provides that the convicted person must have a reasonable opportunity to be heard. The court held that in the context of that particular legislation the phrase includes:

1.	The opportunity to cross-examine the applicant's witnesses;

2.	where expert evidence is being given as to the injury suffered by the applicant, the right to require the applicant to be medically examined so that the convicted person's experts can be properly informed and equipped to assist the convicted person's counsel in cross examination of the applicants expert witnesses.

3.	Those rights may not always be available; it depends on the facts of the case.

11. In Crookes;Todd & Ors v Adelaide Hills C & Nepenthe No. Erd-99-299, Erd-99-301 Judgment No. Oe67 [1999] SAERDC 67 (18 August 1999) Judge Trenorden; Environmental Resources and Development Court of South Australia, a reasonable opportunity to address a city Council regarding development issues was interpreted to include reasonable notice of intention to change any agreement as to how much time would be afforded to a person intending to address.

12. Not much assistance can be obtained from those cases apart from noting that the phrase "... opportunity to be heard" needs to be interpreted within the framework of the legislation in which it is used and with respect to the particular facts of each case. 

13. There is much common sense in the submissions of the Plaintiff. However, as it transpired, the affidavit on which the State sought to rely had not been served and I refuse to allow its use on that basis. It became unnecessary to rule on the proper construction of s.8 and I will therefore refrain from expressing an opinion on it.

THE APPLICATION FOR LEAVE

14. The Plaintiff relied upon his own affidavit filed on 21 June, 2006 and the affidavit of Clement Nakmai also filed on 21 June, 2006 and the amended Statement, amended Originating Summons and amended Notice of Motion No. 2, all filed on 29 June 2006. The Plaintiff's submissions were in line with the grounds pleaded, that the Statutory Business Paper was prepared by the Minister because he signed it. Statutory instrument No. 5 of 2003 Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No. 5) s5(3)(f)(i) and 5(3)(g) provide that the Department of Personnel Management prepares the submission, the Minister presents it. The Plaintiff was denied natural justice because he was not given the opportunity to respond to the allegations of outstanding criminal charges contained in that paper.

15. Counsel for the Respondents conceded that in this case the Plaintiff had come to the court within a reasonable time and that there was no other administrative avenue for addressing his grievance. He submitted that the Plaintiff did not have sufficient interest to challenge the appointment of the Fourth Defendant because the regulations required three names to go into the Cabinet Room, the Plaintiff's name was among three that went into the Cabinet room and the Plaintiff could not complain about the exercise of the discretion of the National Executive Council. Next he submitted that s.5(3) (g.) of the Regulations required the Minister to make the submission and that there was no evidence that the Department did not prepare the submission for signature of the Minister. The requirement of s.5(3)(f)(i) of the Regulations had to be read together with s.5(3)(g), the consequence of which was that the Minister was required to make the submission, therefore grounds 3.1 and 3.2 could not be sustained. Ground 3.3 could not be sustained because nothing is pleaded which makes the pleaded conduct unlawful. Ground 3.4 is a repetition of ground 3.3. The relevant facts have not been pleaded in ground 3.5 and it is not clear. The NEC submission was prepared by a layman, whether the allegation was of criminal or civil wrong was not of significance, the allegation was properly before the NEC.

The Law

16. On an application for leave, the Court must be satisfied that the applicant has sufficient interest in the subject matter of the application: See O.16 r.3(5). Only questions of standing which are obvious should be resolved at the leave stage. Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include civic (community) environmental, cultural interests and areas of special expertise: See Judicial Review of Administrative Action, de Smith, Woolf and Jowell 5th Ed 127 cited in N1595 Steamships Trading Co Ltd v Garamut Enterprises Ltd, Sheehan, J. Papua New Guinea Pilots Association v Director of Civil Aviation and National Airline Commission trading as Air Niugini [1983] PNGLR 1 at 3, Sakora, J.
 
17. The role of the Court on an application for leave to seek judicial review is simply to express a view as to whether or not the case might be arguable based on a quick review of the Plaintiff's material. If the judge forms the view that on a closer examination it may turn out that there is an arguable case for granting the relief then leave should be granted: See Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1982] AC 617 at 644 applied in NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70 Wilson, J. Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153, Sheehan, J. Of course if I express a view that the case is not arguable that may be unavoidably determinative of the substantive proceedings. The Court need only be satisfied with the requirements of O.16 r.2, 3, & 5. The Court is not required to address the matters in O.16 1(2). Substantive issues should be considered at the substantive hearing: See Ombudsman Commission v Dohonue [1985] PNGLR 348 at 361 applied in Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22. The Court is not necessarily concerned with the merits of the decision but with the decision making process: See Application of Demas Gigimat [1992] PNGLR 322 Woods, J. Judicial review may be available where there is a lack of power, there is an error of law on the face of the record, there is a breach of the rules of natural justice, or in breach of the Wednesbury principles a power is exercised in an unreasonable manner, or a decision is made which no reasonable tribunal could have reached: See Council of Civil Services Unions v Minister for the Civil Service [1984] 3 ALER 935 per Roskil LJ; Kekedo v Burns Philip (PNG) Ltd (infra) at 124 per Kapi DCJ. 

18. It is a fundamental rule that the judicial review remedy is not available where the Plaintiff has not exhausted other remedies which may be available such as statutory rights of appeal State v Kapal [1987] PNGLR 417 at 421 Kidu CJ and Woods J, except in the most exceptional circumstances: See Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122 per Kapi DCJ at 124 Amet J at 127 where facts and circumstances show that judicial review is more appropriate or convenient to do justice. That judicial review may be quicker is not such a circumstance.

19. And the Court may refuse to grant leave if there has been delay and the grant of relief would prejudice the rights of any person or be detrimental to good administration: See O.16 r.4, N856 Ex parte application of Eric Gurupa, Doherty J.; N1226 Mark Kove v Secretary Department of West New Britain Province, Injia AJ. The Court must consider the facts of delay in each case: See In the matter of the Ex Parte application of Poka Biki, [1995] PNGLR 336, Doherty J. Delay should be satisfactorily explained: see Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276, Sevua J; N1895 Silas Mareha v The Chairman – Redundancy Monitoring Committee & Ors, Kirriwom J. 

This Case

20. Delay and failure to exhaust other remedies are not issues in this case because of the Respondents concessions.

21. In relation to locus standi, if all of the procedures laid out in the legislation have been correctly followed in order to bring the names of the candidates for appointment as Administrator to the NEC, in my view the submission of the Respondents is correct, there would be no locus standi in the Plaintiff to complain about the exercise of discretion vested in the NEC. However, I think it is also clearly true, that if a candidate for a position, the recruitment procedures for which are specified by legislation, complains that those procedures have not been followed, "... and can objectively point to something that has gone wrong, he should be heard": See of Lord Denning R v In land Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All E.R. 378 at 391.

22. So the question to be answered is, has the plaintiff pointed to something that has gone wrong? The first submission concerns the preparation and submission to the National Executive Council of the Statutory Business Paper. Procedures for recruitment of Provincial Administrator are regulated by the Public Service (Management) Act ("PSMA"), particularly s.60 and Statutory Instrument No.5 of 2003, Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 ("Regulation No.5").

23. The relevant part of s.60 of the Act provides:

"(1) 

(b)	after consideration and assessment of the applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall -

(i)	compile a list of not less than five candidates who have at least the minimum requisites for the office; and

(ii)	submit to the Commission for its consideration -

(A) the list under Subparagraph (i); and

(B) all applications received in response to the advertisements under Paragraph (a)(iv);

(c)	an assessment of an applicant under Paragraph (b) shall be based on -

(i)	the minimum requisites for the position; and

(ii)	where available, any appraisal of performance and discipline under Section 24A; and

(iii)	prescribed criteria;

(d)	the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all applications received in response to the advertisements under Paragraph (a)(iv) and shall -

(i)	compile therefrom a list of up to three candidates in order of preference; and

(ii)	submit the list under Subparagraph (i) as a recommendation to the Provincial Executive Council concerned;

(e)	the Provincial Executive Council shall –

(i)	from the list submitted to it under Paragraph (d)(ii) submit to the National Executive Council a list in order of preference for appointment as Provincial Administrator and the National Executive Council shall make an appointment from the list; or…"

Regulation No.5 s.5) provides:

5. Vacancy in the office of Provincial Administrator
	
(1)	Subject to Section 6, where the office of Provincial Administrator is vacant or about to become vacant, the Departmental Head of the Department of Personnel Management shall, on the advice of the relevant Governor of the Province following a decision of the Provincial Executive Council, declare the office vacant.

(2)	Where a vacancy has been declared under Subsection (1), the Departmental Head of the Department of Personnel Management shall cause to be advertised the position in the National Gazette in a standard format.

(3)	Where an office has been advertised in accordance with Subsection (2)—

(a)	the Departmental Head of the Departmental of Personnel Management shall ensure that a Job Description and Person Specification for the office in prescribed format is prepared, reflecting the Government's policy requirements and Provincial Executive Council priorities; and

(b)	the Departmental Head of the Department of Personnel Management shall procure candidates for appointment through advertisement and shall obtain the curriculum vitae of the candidates in a standard format; and

(c)	the Departmental Head of the Department of Personnel Management shall provide to the Public Services Commission a list of not less than five candidates (together with a list of all unsuitable candidates) who satisfy the requirements of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003; and

(d)	the Public Services Commission shall rank the candidates as assessed against the requirements of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003 and any other special requirements for competencies required by the Provincial Government, and compile a list of five candidates with its recommendations to the Provincial Executive Council; and

(e)	the Chairman of the Public Services Commission, through the Departmental Head of the Department of Personnel Management, shall submit the list of five candidates to the Provincial Governor, who shall table before the Provincial Executive Council the list of names and the assessments on the most suitable candidates for appointment to the office; and

(f)	within a period of 14 to 30 days of the receipt of a list of five candidates under Paragraph (e), the Provincial Executive Council may either—

(i)	select three candidates and submit them to the Minister for Public Service in preferred order, for inclusion in a Submission to the National Executive Council prepared by the Departmental Head of the Department of Personnel Management; or

(ii)	reject all candidates, and request a new list from the Departmental Head of the Department of Personnel Management, in which case, the procedure specified in Paragraphs (b) to (e) inclusive shall be followed; and

(g)	where the Provincial Executive Council has made a selection of three names and has submitted them to the Minister for Public Service, he shall present a Submission to the National Executive Council in respect of the three candidates selected in order of preference by the Provincial Executive Council; and

(h)	provided that the Provincial Executive Council has complied with Paragraph (f), the National Executive Council shall make an appointment taking into account the order of preference indicated by the Provincial Executive Council; and

(i)	the Secretary of the National Executive Council, in consultation with the Chairman of National Executive Council, shall cause the appointment to be published in the National Gazette; and

(j)	the Minister for Public Service shall officially inform the Chairman of the Provincial Executive Council of the successful candidate; and

(k)	the Departmental Head of the Department of Personnel Management shall brief the appointee on specific job requirements and terms and conditions, including a draft of the proposed contract of employment; and

(l)	the Departmental Head of the Department of Personnel Management shall inform any incumbent in the office of Provincial Administrator of the decision made by the National Executive Council prior to the making of a public announcement; and

(m)	the Departmental Head of the Department of Personnel Management and the Secretary of the National Executive Council shall arrange with the State Solicitor for the contract of employment to be signed by Head of State.

24. In relation to similar provisions concerning appointment of Departmental Heads in the same Act and Regulations, Injia DCJ had this to say in the case of John Kawi v Jerry Tetega & 6 Ors (OS 1016 of 2005, unreported) 26 May 2006:

"In the performance of its functions under these provisions, the Commission is guaranteed independence in the performance of its functions by s.192 of the Constitution. Independence means independence from all forms of influence, direct or indirect and from sources within or external. The only exception to this is the sources of information prescribed by section 1 of Regulation No. 6 of 2003 of which the PSC may in its opinion consider it appropriate to consult. Unless the Minister is given express powers by statute to intervene in the PSC process, he cannot assume under some general political administrative supervisory responsibility he may assume over the PSC... In the present case, the only responsibility (not power) expressly given to the Minister is found in Section 2(4) of Regulation No. 5 of 2003 (and section 2 of Regulation No. 6 of 2003). The Minister's responsibility in the process which takes place between the PSC and the NEC is that of a mere facilitator in presenting the PSC's recommendation to the NEC. The Minister is given no power or responsibility under these provisions to be involved in the merit-based assessment and selection process conducted by PSC... The Minister's involvement under Section 2(4) of Regulation No. 5 of 2003 is to merely present the PSC recommendation under a Cabinet submission prepared by the Secretary for DPM. It is not lawful for the Minister to seek to influence the PSC or engineer the PSC recommendation of a particular applicant of his choice to be included in the short list of three (3) candidates respectfully concern with that noted."

The Constitution Section 10 provides:
"All written laws (other than this Constitution) shall be read and construed subject to—
(a) in any case - this Constitution; and
(b) in the case of Acts of the Parliament - any relevant Organic Laws; and
(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority."

25. In the case of Regulations No.5, it must be read and construed subject to the PSMA. Whether or not the Regulations are ultra vires the Act is a matter which can be inquired into by the Court. The question of whether a regulation is ultra vires depends upon a true construction of the enabling legislation: See Kuya Kehi v Theodore [1978] PNGLR 217 (Andrew J.) There are clearly some difficulties between the Act and Regulation No. 5. I do not propose to list all of them, but the drafting difficulties and clear conflict is not limited to the provisions under consideration. For example, the PSMA s.60(1)(d)(i) provides that the Public Services Commission shall select "…up to three candidates". Regulation No.5 s.5(3)(d) requires the Public Service Commission to "…compile a list of 5 candidates…". The Regulation would appear to be ultra vires the Act in this regard. 

26. The Act s.60(1)(e) requires the Provincial Executive Council, from the list provided by the Public Services Commission, to submit a list (no number specified) in order of its preference to the National Executive Council. Regulation No.5 s.5(3)(f)(i) and s.5(3(g) require the Provincial Executive Council to submit a list of three persons to the Minister for Public Service. I consider the Regulation to be ultra vires the Act in two aspects, first in requiring the list to have three names and secondly in requiring the list to be submitted to the Minister rather than the National Executive Council.

27. To the extent that the Regulations are inconsistent with the Act, the Regulations must be read down so that they are interpreted in a way which is consistent with the Act. As the Act requires the PEC to make the submission to the NEC, to the extent that the Regulation requires the PEC to pass its submission to the Minister, and for the Minister to submit it to the NEC, in a submission prepared by Department of Personal Management, the Minister and the Department are only facilitators to pass the PEC recommendation to the NEC in the form of a submission. They are given no power to add or subtract from the recommendation of the PEC. Nor are they given power to delay the transmission of the PSC recommendation to the National Executive Council. 

28. Therefore I conclude that it is not arguable that it is wrong for the Minister to sign a submission to the NEC prepared by the Departmental Head of the Department of Personnel Management. However, it is strongly arguable that it was wrong for the Minister to sign the submission in the form that it was, including in it matters other than the recommended list of candidates from the PEC. The result is that the National Executive Council had put before it material not authorised by the Act in a form not authorised by the Act. The submission of material to the decision made outside the process authorised by Parliament, it is strongly arguable, caused the whole process to be flawed and tainted from that point onward. It follows the contents of the advice of the National Executive Council to the Governor General could be examined, as in the circumstances, it is not protected by s.86(4) of the Constitution: Kila Wari v Gabriel Ramoi and Kingsford Dibela [198] PNGLR 112. 

29. I conclude that the Plaintiff has an arguable case and having an arguable case has locus standi being a person directly affected by the arguably wrong procedure.

30. It is only necessary to determine that the Plaintiff has an arguable case to present on one ground in order to grant leave. I therefore do not propose to address the argument that the Plaintiff was not given an opportunity to be heard on the allegation of there being an outstanding criminal charge. 

ORDERS:

1.	Leave is granted to the plaintiff to proceed with his application for review;

2.	The Plaintiff is to file and serve his motion for substantive relief together with this order and any further affidavits on which he seeks to rely on all parties to the proceedings within 21 days of order;

3.	Each respondent is to file and serve any affidavit on which that respondent seeks to rely within 21 days of service upon them of this order;

4.	The Plaintiff is to file and serve any affidavit in response to the Respondents affidavits within seven days of service of the Respondents affidavits on him;

5.	If the Plaintiff does not intend to file an affidavit in response to a Respondent's affidavit he shall serve that respondent with a letter to that effect within the same seven days referred to in order 4;

6.	Each of the parties shall file and serve their written extract of argument within seven days of receipt of the Plaintiff's affidavit in response or letter that no affidavit will be filed, in accordance with orders 4 and 5, within seven days of receipt of that document;

7.	The Plaintiff shall prepare the Review Book and serve the draft on the Respondents within seven days of the expiry of the time referred to in order 6;

8.	The Plaintiff shall set the matter down for further directions on the first Listings day occurring after service of the draft Review Book.

9.	Liberty to any party to apply on 3 days written notice to the other parties.

10.	Pending determination of the review the Respondents and each of them shall not take any further step (if any remain unperformed) to perfect the appointment of the Fourth Defendant;

11.	Costs of this application shall be costs in the cause.

____________________________________

Williams Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First, Second and Third Respondents