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Mann v Brown [2007] PGNC 138; N3278 (23 August 2007)

N3278

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 367 OF 2007

BETWEEN

DR NICHOLAS MANN
Plaintiff

AND

HON SINAI BROWN –
Minister for Public Service
First Defendant

AND

WINNIE KIAP –
Secretary for the National Executive Council
Second Defendant

AND

HITELAI P KIELE –
Acting Attorney General for and on behalf
of the Head of State
Third Defendant

AND

DR CLEMENT MALAU
Fourth Defendant

AND

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Salika, J
2007: 23 August

Counsel:

Ms J Nandape, for the Plaintiff
Mr G Geroro, for the Defendants

23 August, 2007

1. SALIKA J.: This is an application for leave for judicial review of a decision of the National Executive Council number 194/2007 made on 27 June 2007, wherein the plaintiff was removed as Acting Secretary Department of Health and Dr Clement Malau was appointed Secretary, Department of Health.

2. The plaintiff is a medical doctor by profession. He has been Secretary Department of Health since 29 October, 2001. His appointment was for a period of 4 years. That appointment expired on 29 October 2005. From 30 October 2005 he has been Acting Secretary, Department of Health pending the appointment of a substantive Secretary.

3. The Department of Personal Management advertised the position of Secretary for Health in the National Gazette on 27 April 2006 in National Gazette No PS G3. It was advertised also in the local newspapers, the National and the Post Courier.

4. The plaintiff lodged his application for reappointment as Secretary for Health and that application was received. Altogether 13 applications were received for the position.
5. The plaintiff alleges that the then Minister for Health had written letters to the Minister for Public Service to have him replaced as Secretary for Health for non performance. He alleged that the Health Minister’s allegation of his non performance were attached to the Statutory Business Paper and presented to the National Executive Council. The inference from that is that, the National Executive Council was influenced by such allegations in its selection of a permanent Secretary.

6. The plaintiff alleges that the usual appointment procedures for appointment of a departmental head were not followed by the Minister for Public Service in making the appointment of Dr Malau.

7. The National Executive Council on 19 December 2006 revoked the appointment of the plaintiff as Acting Secretary for Health. On 16 January 2007 the plaintiff commenced proceedings OS 11 of 2007 seeking to nullify the National Executive Council decision to revoke his appointment. On 21 June 2007 the National Court quashed the National Executive Council decision of 19 December 2006 and the plaintiff continued to act as Secretary for Health. On 4 July 2004, by notice in the National Gazette G99 the NEC revoked the appointment of the plaintiff as Acting Secretary for Health and appointed Dr Malau as Secretary for Health.

8. On 6 July 2007, the plaintiff commenced these proceedings to nullify the NEC decision made on 4 July 2007.

9. The plaintiff’s grounds for review of the National Executive Council decision are grounded on errors of law and procedure. He alleges that the appointment procedure as prescribed by law was not followed. The grounds are:-

(1) the vacancy of the position was not advertised calling for interested persons to apply.

(2) The Public Service Commission was not consulted before the appointment of the 4th Defendant as Secretary for Health.

(3) The entire process of the appointment of Secretary for Health was not followed.

(4) The Minister for Public Service did not attach to the Statutory Business Paper the merit based matrix.

(5) There was no need for the National Executive Council to rescind its previous decision.

10. All the above grounds relate to allegations of errors of law and procedures. They are substantive grounds and can only be canvassed through a proper hearing of the evidence and in a trial.

11. I am aware that there are appointment procedures of Departmental Heads under the Constitution and the Public Service Management Act. Were these procedures followed for the appointment?

12. In an application for leave for judicial review the plaintiff must demonstrate to the court that he has:-

(1) sufficient interest
(2) an arguable case
(3) exhausted all other avenues or exhausted all other remedies
(4) acted without delay to bring this application.

13. Applications for leave are usually ex parte, except where the State is a party. The State in such an application is given or accorded an opportunity to be heard. The State need not be heard – see Section 8 of the Claims By And Against the State Act 1996. In this case the State was given the opportunity to be heard and was heard on the leave application. The State opposed the application for leave. I need not go into the grounds or basis for their objecting save to say that they said all the procedures were followed according to law for the appointment of Dr Malau.

14. Those will properly be examined at the time of trial when all the evidence relevant to the issues have been included in the review book as evidence.

15. Going on now to what the plaintiff must demonstrate I say the following:-

(1) Sufficient Interest

The plaintiff is an affected person. He has been aggrieved by the National Executive Council decision to revoke his appointment. He must surely have an interest. I find he has sufficient interest to institute these proceedings.

(2) Arguable case

The grounds stated relate to alleged errors of law and procedures on the part of the appointing authority. The plaintiff alleges that no advertisement was done. Placing an advertisement is a necessary part of the process of appointment of a Departmental Head. Was there an advertisement? Was the previous advertisements sufficient or did the process have to begin anew? These are just some of the issues that need to be properly researched and answered. It should be done at a proper trial.

There are other grounds of alleged procedural errors which are also important such as whether the Public Service Commission was consulted. I note that the Public Service Commission is not a party to these proceedings. The allegations that they were not consulted must make it, (the Public Service Commission) to file evidence as to whether it was consulted. The Public Service Commission is a major player in the appointment process of a Departmental Head. That is a requirement under the Constitution and the Public Service Management Act.

I am satisfied that the plaintiff has an arguable case.

(3) No other avenues to seek redress.

There is no other forum for the plaintiff to go to except to come to this court.

(4) Delay

The decision to appoint Dr Malau was made on 4 July 2007. The plaintiff commenced proceedings on 6 July 2007. The plaintiff has demonstrated to the court that he has acted swiftly.

16. In all the circumstance I grant the plaintiff leave for judicial review.
_________________________________________

Mawa Lawyers: Lawyers for the Plaintiff
Gadens Lawyers: Lawyers for the Defendants