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Samiak v Mosoro [2011] PGNC 239; N4916 (25 March 2011)

N4916

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 848 OF 2010

Dr LOUIS SAMIAK
Plaintiff

AND

MICHAEL MOSORO
Chairman of the Wewak General Hospital Management Board
First Defendant

AND

Dr GUAPO KIAGE
Second Defendant

AND

NATIONAL EXECUTIVE COUNCIL
Third Defendant

Waigani: Kawi J
2010: 9th &10th December
2011: 3rd February, 25th March

ADMINISTRATIVE LAW- Appointment of an Acting Chief Executive Officer for the Wewak General Hospital – Section 9 of the Regulatory Statutory Authorities ( Appointments to Certain Offices) Act 2004 – Section 9 (1) (b) prescribes mandatory criteria for Appointment – Non compliance with appointment criteria renders appointment null and void and of no effect – Appointment of second Defendant as the acting Chief Executive Officer of the Wewak General Hospital by the NEC was in breach of the section 9(1)(b) criteria- Appointment therefore declared null and void and of no effect – Former substantive holder of position continues to act in the position without being formally appointed- Such acting appointment is good for continuity of good administration, good governance and transparency of the institution concerned and good for restoration of public confidence in the ability of the institution to deliver basic services - Proper for former substantive holder of position to continue to act as the Chief Executive Officer until such a time when a substantive appointment is made to the position.

PRACTICE AND PROCEDURE - Mode of Commencing proceedings – Whether proceedings ought to have been commenced by way of an application for judicial review under Order 16 rule 1 or under Order 4 rule 3 – Whether reliefs and Orders sought are in the nature of an Order for Prerogative writs, or are reliefs in the nature of a declaration and injunctive Orders only- Here principal reliefs sought are declarations and orders for injunctive reliefs only and not Orders in the nature of Prerogative writs – Consequently plaintiff has a choice of either commencing proceedings under Order 16 rule 1 or under Order 4 rule 3.

Facts

The plaintiff is the former chief Executive Officer of the Wewak General Hospital. His term of appointment lapsed in March 2010. Following the expiration of his substantive term of appointment, he was appointed to act in the position of the Chief Executive Officer for a further 3 months pending the appointment of a Chief Executive Officer on a substantive basis. Following the expiration, of the three month acting period, the Wewak General Hospital Board purported to appoint the second defendant to act as the new Chief Executive Officer. The plaintiff filed an Originating Summons under Order 4 rule 3, seeking declarations to nullify this acting appointment. The second defendant took issue with the mode of commencing these proceedings arguing that the most appropriate mode of commencing these proceedings was by way of an application for judicial review under Order 16 of the National Court Rules.

Held:

AS TO THE MODE OF COMMENCING PROCEDDINGS

(1) The test to apply to determine the appropriate mode of commencing proceedings relates essentially to the kinds of relief being sought. Here the principal relief being sought were Orders in the nature of declarations and injunctive orders and not orders in the nature of prerogative writs such as to attract the application of Order 16 rule 1(1). Consequently it is a matter of considering the relief being sought and applying Order 16 rule 1, to see whether order 16 is mandatory, rule 1(1) or optional, rule 1(2). Here owing to the nature of the relief being sought, it is optional for the plaintiff to either use the judicial review procedure under Order 16 rule 1(1) or use the optional procedure under Order 16 rule 1 (2) and Order 4 rule 3.

ON THE APPOINTMENT OF THE SECOND DEFENDANT AS THE ACTING CHIEF EXECUTIVE OFFICER

Held: (1) The appointment of the second defendant by the NEC as the acting Chief Executive Officer of the Wewak General Hospital, is inconsistent with and therefore does satisfy the appointment criteria prescribed under section 9(1)(b) of the Regulatory Statutory Authorities (Appointments To Certain Offices) Act 2004. The appointment criteria prescribed under section 9(1)(b) of the Act are mandatory and non compliance with any of the criteria renders the appointment null and void and of no effect.

(2) A candidate for appointment who was never recommended for appointment by the Hospital Board, nor by the Public Services Commission nor had his name recommended for appointment cannot be considered for appointment by the National Executive Council without satisfying the appointment criteria prescribed in section 9 (1)(b). Any Appointments made by the NEC without satisfying these mandatory criteria renders the appointment null and void and of no effect.

(3) The National Executive Council has no power to appoint a candidate to the post of either as acting or substantive Chief Executive Officer when such a candidate has not satisfied the mandatory criteria under section 9(1)(b). To appoint person who was never recommended for appointment by the Public Services Commission and whose name was never recommended on the Statutory Business Paper by the Minister responsible is illegal and contrary to section 9(1)(b).

Cases cited:

National Executive Council, the Attorney General and Luke Lucas v Public Employees Association [1993] PNGLR 264.
Attorney-General, Michael Gene v Pirouz Hamidian Rad [1999] PNGLR 444.
Telikom PNG Ltd v ICCC (2008) SC 906
Paul Asakusa v Andrew Kumbakor [2006] N3257

Counsel:

Mr Tom Manjin, for the Plaintiff
Mr Moses Murray, for the second Defendant

30th March, 2011

1. KAWI J: Dr Louis Samiak, the former Chief Executive Officer of the Wewak General Hospital challenges the appointment of Dr Guapo Kiage as the acting Chief Executive Officer of the Wewak General Hospital. He seeks to nullify the appointment of Dr Guapo Kiage as the acting Chief Executive Officer of the Wewak General Hospital on the basis that Dr Kiage's appointment contravenes Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

2. He also sought other interim and substantive orders. By an Originating Summons dated 30th November 2010, he also sought other substantive declarations as follows:

(a) An Order declaring that the plaintiff (Dr Louis Samiak) is the Acting Chief Executive Officer of the Wewak General Hospital consistent with the Board's recommendation to the Public Services Commission made on 17th March 2010 until the National Executive Council appoints an Acting Chief Executive Officer pursuant to the requirements of Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

(b) An Order declaring that the Wewak General Hospital Board did not have the power to make a recommendation to the Public Services Commission on 10th August 2010 for the appointment of the Second defendant (Dr Guapo Kiage) as the Acting Chief Executive Officer when the first recommendation had (already) been endorsed by the Public Service Commission pending appointment by the National Executive Council.

(c) An Order declaring that the appointment of the Second Defendant, (Dr Guapo Kiage) as the Acting Chief Executive Officer, by the National Executive Council on the 3rd November is irregular and of no effect as the appointment is contrary to the requirements of Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

(d) An Order declaring that the plaintiff should have been the only candidate considered for appointment as the Acting chief Executive Officer by the third defendant as he was the only nominee recommended by the Minister for Health and HIV Aids in his Statutory Business Paper dated 30th August 2010.

(e) An Order declaring that the National Executive Council did not have the power under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 or any other law to reject the recommendation of the Minster to appoint the plaintiff as the Acting Chief Executive Officer.

(f) An Interim injunctive order restraining the second defendant from taking up the appointment as the Acting Chief Executive Officer made by the National Executive Council pending the determination of the substantive issues raised in this proceedings.

(g) An Interim Injunction restraining the First Legislative Counsel from facilitating the necessary Instruments of Appointment for execution by the Head of State pending the determination of the substantive issues raised in this proceedings.

3. On the 9th December 2010, after an ex parte hearing, I granted an interim injunction preventing Dr Guapo Kiage from taking up the office and holding himself out as the Acting Chief Executive Officer of the Wewak General Hospital. I did this as I considered that there was clearly an arguable case presented by the plaintiff which I considered raised issues which were worthy of the court's consideration. These issues related to a possible interpretation and application of section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

4. Government bodies and other authorities were also injuncted from facilitating this appointment. The proceedings were then adjourned to the 10th of December 2010. On the 10th December 2010, I extended all The interim injunctive orders to continue in force and maintain the status quo until the matter was fully argued and a decision made. These orders were again confirmed and further extended after trial of this action until such a time when the substantive hearing is conducted and a decision made.

2. ISSUES FOR CONSIDERATION

5. There are five (5) issues for consideration and these are as follows:

(a) Is the plaintiff still the Acting chief Executive Officer of the Wewak General Hospital after the expiry of his contract of employment on or about the 27th March 2010?

(b) Was the appointment of Dr Guapo Kiage as the Acting Chief Executive Officer of Wewak General Hospital contrary to Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, and therefore null and void and of no effect?

(c) Did the Wewak General Hospital Board have the power to make a second recommendation for the appointment of an Acting Chief Executive Officer when the Public Service Commission had already endorsed an earlier recommendation by the Wewak Hospital Board?

(d) Did the National Executive Council have any powers to appoint Dr Guapo Kiage as the Acting Chief Executive Officer of the Wewak General Hospital under Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, when the said Dr Guapo Kiage was never recommended by:

1. Wewak General Hospital Board
   
2. Public Services Commission.
   

100. Minister for Health and HIV Aids?
     

(e) Did the plaintiff properly institute these proceedings using the correct mode of commencing these proceedings?

3. EVIDENCE

6. Dr Louis Samiak, filed an affidavit on the 1st of December 2010, to support his action. Dr Guapo Kiage in defence of his acting appointment also filed an affidavit which he relied upon in the trial of this action on the 13th December 2010. His counsel, filed another Supplementary Affidavit on the 21st December 2010 and another affidavit on the 4th January 2011.

4. FACTS

7. On the basis of the affidavit evidence, I make the following findings of facts which are largely undisputed:

(a) Dr Louis Samiak was appointed as the Chief Executive Officer of the Wewak General Hospital on a substantive basis for a term of three years on the 27th March 2007 to the 25th March 2010. His employment was effected pursuant to a contract of employment entered into between himself and the State on the 5th July 2008. His three year appointment expired on or about the 27th March 2010.

(b) In March 2010 the Wewak General Hospital Board recommended to the Public Services Commission to have the plaintiff continue on working as the Acting Chief Executive Officer of the Wewak General Hospital pending the appointment of a permanent Chief Executive Officer. The Public Services Commission subsequently endorsed the Hospital Board's recommendation and in turn recommended to the Heath Minister to have the plaintiff's appointment continue as the Acting Chief Executive Officer of the Wewak General Hospital.

(c) In June 2010, the Wewak General Hospital Board advertised the position of the Chief Executive Officer, as the plaintiff's acting appointment was going to expire by the end of June 2010.

(d) By a Gazettal Instrument dated 13th July 2010 the plaintiff was appointed to act as the Chief Executive Officer of the Wewak General Hospital for a period commencing on and from 28th March 2010 until a substantive appointment is made.

(e) On the 9th November 2010, the National Executive Council rejected the appointment of the plaintiff and appointed the Second Defendant, Dr Guapo Kiage as the Acting Chief Executive Officer of the Wewak General Hospital.

8. The appointment of Dr Guapo Kiage is seemingly questionable as he was never recommended for appointment by the Public Services Commission and his name was never on the list of recommended persons brought before the NEC by the Health Minister. As to how his name found itself in the list of recommended names is highly questionable. This poses two further issues:

1. The powers of the NEC to appoint a person whose name was never recommended for appointment by the Public Services Commission;
   
2. Can the National Executive Council go outside the list of recommended persons and appoint a candidate of its own choice whose name was never on the list?
   

9. These issues are arguable but before discussing them, I consider that the first issue for the court's consideration must be that of how this entire proceedings were commenced.

MODE OF COMMENCING THIS PROCEEDINGS

10. The plaintiff commenced this action by way of an Originating Summons under Order 4 rule 3 of the National Court Rules. The relief claimed as pointed out above essentially seek declarations. Secondly it seeks injunctive orders to restrain the second defendant from taking up office and to maintain the status quo until a substantive appointment is made.

11. The second defendant questions the legitimacy of the mode of commencing these proceedings and moves to have the proceedings quashed.

12. The second defendant argues that the issues posed here are proper and within the exclusive province of judicial review, under Order 16 of the National Court Rules. In particular reference was made to rules 1 and 2 of Order 16. Order 16 rule 1(1) is stated in these terms:

Order 16 – Applications For Judicial Review

1 – Cases Appropriate for application for Judicial Review

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for Judicial Review in accordance with this order.

13. The plaintiff on the other hand argues that the proceedings were properly commenced under Order 4 rule 3 of the National Court Rules.

Order 4 rule 3 is stated in these terms:

"3 Where the plaintiff may choose (4/3)

(1) Except in the case of proceedings which by the Rules or by or under any Act are required to be commenced by writ of summons, the proceedings may be commenced either by writ of Summons or by originating Summons as the plaintiff considers appropriate.

(2) Proceedings –

• (a) In which sole or principal questions at issue is, or is likely to be, one of construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document or some other questions of law;
  
• (b) In which there is unlikely to be a substantial dispute of facts; or
  
• (c) In which the person is authorized by an Act, regulation or by these Rules to make an application to the court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter and no other mode of making the application is prescribed by that Act, or Regulation or by these Rules,
  

are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons"

14. The plaintiff argues that, Order 4 rule 3 gives him the option to choose either to proceed by way of an ordinary originating process or to proceed by way of judicial review under Order 16 of the National Court Rules.

15. He relies on the case of National Executive Council, the Attorney General and Luke Lucas –v- Public Employees Association [1993] PNGLR 264, (The Luke Lucas Case) where the Supreme Court made this comment:

"In the present case, the respondent did not apply for a remedy under Order 16 rule 1. The only remedy sought was a declaration and, under the rules he may choose to proceed by originating Summons under Order 4 Rule 3. Our Rules permit such an option."

16. In the case of Attorney-General, Michael Gene –v- Pirouz Hamidian Radd [1999] PNGLR 444 the Supreme Court made this comment:

"we reached the conclusion that a person who is desirous of applying for an Order in the nature of a prerogative writ is required to apply under Order 16 of the National Court Rules. This is an exclusive procedure provided by the National Court Rules, Order 16 rule 1(1)."

17. More recently another Supreme Court in Telikom PNG Ltd –v- ICCC (2008) SC 906 appear to suggest that the test to apply to determine the appropriate mode of commencing proceedings relates essentially to the kinds of relief being sought. In that appeal the court (majority) made this pertinent comment:

"A party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if Orders in the nature of prerogative writs are sought. If only an injunction or declaration is sought, the plaintiff has a choice; Order 4 or Order 16 can be used". (my underlining)

18. The majority decision in that case (Kirriwom J and Cannings J) were of the view that the liberal meaning of Order 16 rule 1 is that if a plaintiff wants to apply for orders in the nature of any of the four (4) prerogative writs specified by rule 1(1), then the only proper procedure is to file an originating summons and seek leave for judicial review under Order 16. Furthermore the wording of rule 1(2) in particular, the use of the word "may" suggest that if a plaintiff wants to apply for a declaration or injunction only, the Order 16 procedure is optional.

19. The Supreme Court in the ICCC Case than had the occasion to revisit both the Luke Lucas and The Pirouz, Hamidian Radd cases and made the following assessment of those two cases:

Luke Lucas

This case concerned an interpretation of Rule 1 arrived at by the Supreme Court in Lucas case. It was held that the filing of an originating summons under Order 4 of the National Court Rules was a proper procedure as the only relief sought by the plaintiff (PEA) was a declaration that the appointment of Luke Lucas as Secretary for Justice was illegal and null and void. No orders of the sort referred to in Rule 1(1) were applied for so the plaintiff had a choice of procedures; Order 4 or Order 16. They chose Order 4 and the Supreme Court held that there was nothing wrong with that.

Hamidian-Rad 's Case

Did the Supreme Court depart from that approach in Hamidian Rad? The Supreme Court said that with respect to the learned primary Judge, they did not think so. In Hamidian-Rad, the Supreme Court held that the plaintiff, Mr Hamidian Rad, went to the National Court, seeking to nullify the decision of the Commissioner-General and allowing Hamidian Rad to leave the country. On appeal the Supreme Court held that the primary Judge erred by rejecting the objection."

The Supreme Court actually followed its decision in the Luke Lucas case and reached a different decision because of different facts. In Luke Lucas, the plaintiff was only seeking a declaration, so he had a choice and used a proper procedure. In Hamidian Rad the plaintiff was seeking an order in the nature of certiorari, so he was confined to Order 16 but used an improper procedure. The Supreme Court then made these concluding remarks:

"We do not consider that it is correct to say that whenever a person wishes to challenge the decision of a governmental body or public authority, the challenge must be made by using Order 16. It is a matter of considering the relief being sought and apply Order 16, rule 1, to see whether Order 16 is mandatory rule 1(1) or optional rule 1(2)."

20. I have already outlined the reliefs being sought by the plaintiff here. On the face of it the plaintiff was only seeking declarations and injunctions and not Orders in the nature of prerogative Writs. So in my view Order 16 Rule 1(2) would apply here and the plaintiff would have an option as to the mode of the commencement of this proceedings. I have not come to this conclusion lightly. I have looked at the wording of the reliefs sought and the substance of the reliefs as well as. This is actually what happened in the Hamidian Rad case. I further conclude that the substance of what the plaintiff is seeking are declarations and injunctions. Therefore Order 16, rule 1(1) will not apply here. The declarations sought here are in much the same as those sought by PEA in the Luke Lucas case. Since Order 16 rule 1(1) did not apply here, I again conclude that the plaintiff has a choice as to the mode of commencement of proceedings here. Because the plaintiff was seeking only declarations and injunctions, he had a choice of commencing proceedings under either Order 4 rule 3 or under Order 16. I would therefore dismiss the second defendant's objections as to the mode of commencing these proceedings.

Issue No. 2

21. Is the plaintiff, Dr Louis Samiak still the Acting Chief Executive Officer of the Wewak General Hospital after the expiry of his contract of employment on or about the 27th of March 2010?

22. Dr Louis Samiak was the substantive Chief Executive Officer of the Wewak General Hospital. His three year substantive appointment expired on or about the 27th March 2010. A month before the expiry of his term of office the Wewak General Hospital Board met and resolved to have him (Dr Samiak) continue in office, but in an acting capacity until a substantive appointment is made.

23. Section 9 of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004 provides for the Acting appointment of a Chief Executive Officer.

24. Section 9 is stated in this terms:

"9. Acting appointment of Chief Executive Officers.

(1) Where, in relation to a Regulatory Statutory Authority –

• (a) The Chief Executive is unable to undertake his duties for any reasons; or
  
• (b) The Board considers it necessary to make an acting appointment pending a new substantive appointment;
  

The Board shall recommend to the Minister a suitable person to act for a period not exceeding three months, from a pre-selected list of suitable persons endorsed by the Public Services Commission based upon an assessment of the prescribed minimum person specification.

(2) On receipt of a recommendation under Subsection (1), the Minister shall recommend to the National Executive Council to make an acting appointment, and the National Executive Council shall make the acting appointment.

25. Two situations may warrant an acting appointment to be made under Section 9:

(a) Where the Chief Executive Officer is unable to undertake his duties for whatever reasons that may be; and

(b) Where the Board considers it necessary to make an acting appointment pending a new substantive appointment.

26. There are several criteria for appointment prescribed under Section 9 which must be satisfied. These criteria are mandatory and non compliance with any of them may render an appointment null and void and of no effect:

(1) The Wewak General Hospital Board is required to recommend a suitable candidate for appointment as acting CEO to the Minister responsible.

(2) The name of the person to be appointed as the acting CEO must be taken from a pre-selected list of suitable persons.

(3) This pre-selected candidate must then be endorsed by the Public Services Commission.

(4) The Public Services Commission's endorsement of the candidate who is selected to act must be based upon certain appointment criteria for appointment referred to in Section 9(1)(b) as the prescribed minimum person specification.

(5) Upon receiving this recommendation from the Public Services Commission, the Minister responsible shall then recommend to the National Executive Council, who shall than make the acting appointment of the Chief Executive Officer.

27. The evidence before the court does show that Dr Louis Samiak did fulfill these Section 9 criteria resulting in his appointment as acting Chief Executive Officer on or about the 28th March 2010.

28. The relevant Gazettal Notice stated that the appointment is –

"For a period commencing on and from 28th March 2010 until a substantive appointment is made."

Section 9(1) states that "the Board shall recommend to the Minister a suitable person to act for a period not exceeding three months."(my emphasis)

29. The court therefore finds that Dr Louis Samiak was properly appointed to act as the Acting Chief Executive Officer of Wewak General Hospital on or about the 28th March 2010. But this appointment was to be for a period of three months only as prescribed by Section (9)(1) of the Act. Going by the terms of the Section 9(1) Dr Samiak's three months acting appointment expired on or about the 28th June 2010.

30. In that regard the Gazettal Notice dated 13th July 2010 in so far as it purports to appoint Dr Samiak as the Acting Chief Executive Officer for a period commencing from 28th March 2010 until a substantive appointment is made is inconsistent with the terms of Section 9(1)(b) of the Act and cannot be relied upon to validate the appointment of Dr Louis Samiak as the Acting Chief Executive Officer of Wewak General Hospital. The court finds that after the expiry of his three months acting period on or about the 28th June 2010 Dr Samiak continued to act as the Chief Executive Officer and was only performing duties on a day to day basis without being formally appointed. This court does not find anything specifically wrong apart from fulfilling the legal requirements as prescribed by section 9(1)(b) of the Act for Dr Samiak to continue to so act. The Court further finds, that Dr Samiak's continuing to act and work and overseeing the affairs and administration of the Wewak General Hospital ensures continuity of good administrative practices and service delivery for all stakeholders. In my view it is a good administrative practice for a former substantive holder of the position to continue to act as the head of the public institution concerned. This will ensure continuity of good administration and public confidence in the ability of the public institution concerned to deliver basic medical services to its' patients and stakeholders. It is also for good governance and transparency of the institution concerned.

31. His Honour the Chief Justice, Sir Salamo Injia was of the same view in the case of Paul Asakusa –v- Andrew Kumbakor [2006] N3257. His Honour made the following pertinent comments which I respectfully adopt:

"Public interests in the continuity in office of the chief Executive Officer of a public corporation is better served by allowing the Chief Executive Officer to remain in office......In such cases, the public interests in ensuring the business or commercial interests of the corporation is protected from all forms of undue interference and is also an important consideration".

32. In my view it is in the public interests of the Wewak General Hospital, the patients and all other stakeholders as well as for reasons of continuity of good administration, that I will declare that Dr Louis Samiak is still the acting Chief Executive Officer of Wewak General Hospital. I will further order that he continues to act as the chief Executive Officer until a substantive appointment is made to the position and all interim injunctive orders made by this court on the 9th and 10th December 2010 are now made permanent and continued and extended until a substantive appointment is made.

ISSUE NO. 3

Was the appointment of Dr Guapo Kiage as the Acting Chief Executive Officer of the Wewak General Hospital contrary to Section 9 of the Regulatory Statutory Authorities (Appointments to Certain Offices) Act 2004?

33. Dr Louis Samiak was still the acting Chief Executive Officer of Wewak General Hospital when the Wewak Hospital Board had the position of Chief Executive Officer of the Hospital openly advertised in the daily papers inviting qualified interested people to apply for the post on or about the 4th June 2010. This was to allow for a substantive appointment to be made. In my view the purpose of making an acting appointment for a period of three (3) months is to allow the Hospital Board to undertake all necessary administrative processes before a substantive appointment can be made. The Wewak General Hospital Board failed to do this resulting in the current confusion and the general state of affairs.

34. No evidence was presented by either Dr Samiak or Dr Kiage or even the Hospital Board on the administrative process undertaken including liaising with the Public Services Commission, and the Minister responsible in terms of having the names of all candidates who applied, assessed in accordance with the Minimum Person Specification requirements, and other relevant Public Service criteria for appointment of Departmental Heads and Chief Executive Officers.

35. Instead of undertaking steps to have someone appointed permanently to the post, the Wewak Hospital Board conducted another meeting on the 27th July 2010 (Meeting No. 7/10-27/10) and passed a resolution to have Dr Guapo Kiage appointed as the new Acting Chief Executive Officer. On the 10th August 2010, the hospital Board appointed Dr Guapo Kiage as the new acting Chief Executive Officer of the Wewak General Hospital. This is where all the current confusion comes in.

36. On the 13th August 2010, the plaintiff was formally informed by the chairman of the Hospital Board of the appointment of Dr Kiage as the new Acting Chief Executive of the Wewak General Hospital. To begin with, the Hospital Board has no power to appoint an acting Chief Executive Officer of the Hospital. That power only lies with the National Executive Council. The Hospital Board and other public institutions such as the Public Services Commission can only recommend and undertake administrative steps and processes to enable the NEC to exercise that power to appoint.

37. On the 30th August 2010, the Minister for Heath prepared a Statutory Business Paper to the National Executive Council recommending the appointment of the plaintiff to act as the Chief Executive Officer of the Wewak General Hospital.

38. The National Executive Council in its meeting No. 8/2010, held on the 9th November 2010 considered the contents of the Statutory Business Paper submitted by the Minister for Health. It rejected the appointment of Dr Samiak as the Acting Chief Executive Officer of Wewak General Hospital and instead appointed Dr Guapo Kiage to act as the Chief Executive Officer of the Wewak General Hospital.

39. It is worth noting that the Statutory Business Paper sponsored by the Health Minister contained only one recommendation and that is to have Dr Louis Samiak appointed as the acting Chief Executive Officer of Wewak General Hospital. No other names of other candidates were recommended for appointment along with Dr Samiak. This included the name of Dr Guapo Kiage.

40. No evidence whatsoever was produced before the court to show compliance by Dr Guapo Kiage of the Section 9(1)(b) requirements. For instance no evidence was produced by Dr Guapo Kiage to show him being recommended for appointment as the acting Chief Executive Officer by the Public Services Commission. The court finds that Dr Guapo Kiage's name was never recommended for appointment as the acting CEO of the Wewak Hospital by either the Public Services Commission or the responsible Minister. The court finds that Dr Guapo Kiage's name was mentioned for the first time by the National Executive Council, when it (NEC) rejected the name of Dr Louis Samiak to be considered for appointment as the acting CEO.

41. It is the court's ruling that in order to be considered for appointment as an Acting Chief Executive Officer, a candidate must fully comply with the requirements of Section 9(1)(b). These are mandatory requirements. Non-compliance with the requirements of Section 9(1)(b) will render an appointment being declared null and void.

42. Here Dr Guapo Kiage never complied with any of the considerations prescribed under Section 9(1)(b). He was simply appointed out of the blue by the NEC. He argues that the NEC decision that appointed him cannot be questioned. In my view that NEC decision has no legal basis and is therefore highly questionable. For all these reasons the court will find that the appointment of Dr Guapo Kiage by the National Executive Council in its Decision number 209/2010 was in breach of and therefore inconsistent with the requirements of Section 9(1)(b) of the Regulatory Statutory Authorities (Appointments to Certain Offices) Act 2004. Neither can the NEC Decision be taken as validating the breach of section 9(1)(b) of the Act.

43. The Court will now make the following declarations and Orders:

1) The appointment of Dr Louis Samiak as the acting Chief Executive Officer of Wewak General Hospital was legal and therefore proper initially. After his initial acting appointment expired sometime in June 2010, Dr Samiak continued to act as the CEO without being formally appointed. The court finds that this is proper in the circumstances for continuity of good administration, good governance and transparency. This will also ensure public confidence in the ability of the public institution concerned to deliver basic medical services to its patients and other stakeholders.

2) The Court therefore declares that for these reasons, Dr Louis Samiak is still the acting CEO and should continue to so act until a new substantive appointment is made.

3) The purported appointment of Dr Guapo Kiage as the acting Chief Executive Officer of Wewak General Hospital is inconsistent with and in breach of the criteria prescribed for appointment of acting CEOs under section 9(1)(b) of the Regulatory Statutory Authorities (Appointments to Certain Offices) Act 2004 and is declared null and void and of no effect.

4) The court further declares that the purported appointment of Dr Guapo Kiage as the acting CEO by the National Executive Council is in breach of the criteria prescribed for appointment of acting CEOs under section 9(1)(b) of the Regulatory Statutory Authorities (Appointments to Certain Offices) Act 2004 and is declared null and void and of no effect.

5) Mr Michael Mosoro as the chairman of the Hospital Board and all the Wewak General Hospital Board members are hereby ordered and directed to undertake all such necessary administrative processes commencing with the screening of all applicants who substantively applied for the position when it was first openly advertised on the 4th June 2010 and other necessary steps including liaising with the Public Services Commission to ensure that a new substantive appointment is made without further delays. Such substantive appointment should be made before the 30th of May 2011.

6) The second defendant is ordered to pay the costs of the plaintiff.

7) All interim injunctive orders made on the 9th and 10th December 2010 are hereby made permanent and extended to continue until a permanent appointment is made to the post.

Orders accordingly.

______________________________________________
Manjin and Company Lawyers: Lawyers for the Plaintiff
Murray & Associates: Lawyers for the Defendants