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Tuga v Zibe [2011] PGNC 44; N4261 (20 April 2011)

N4261

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 102 OF 2011

BETWEEN

SISTER ORPAH TUGA
Applicant

AND

SASA ZIBE - MINISTER FOR HEALTH & HIV/AIDS
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND

DR JOHN TONAR
Third Respondent

Mount Hagen: Makail, J
2011: 19th & 20thApril

PRACTICE & PROCEDURE - Interim Injunction - Serious issue to be tried - Balance of convenience - Damages of - Injunction refused.

Cases cited:

Peter Makeng & Ors -v- National Forest Service & The State (2008) N3317

Counsel:

Mr K Peri, for Applicant
Ms J Y Doa, for the Respondents

INTERIM RULING

20th April 2011

1. MAKAIL, J: A dispute has arisen between the applicant and the third respondent over the position of chief executive officer of Kundiawa General Hospital. By a notice of motion filed on 09th March 2011, the applicant applied for an interim injunction to restrain the third respondent from acting as care-taker chief executive officer of Kundiawa General Hospital pending further orders and she remain as the acting chief executive officer of the General Hospital.

2. The principles on interim injunctions are clear and I need not discuss them in great detail, suffice to say, the applicant must establish that:

1. There is a serious issue to be tried;

2. The balance of convenience favour the grant of the interim injunction; and

3. Damages is not an adequate remedy.

3. Having heard her counsel Mr Peri and the respondents' counsel Ms Doa on these principles and having perused the various affidavits relied upon for and against her application, I am satisfied there is a serious issue raised in the proceeding. The issue raised is in relation to the process of appointment of an acting chief executive officer of a General Hospital, in this case the Kundiawa General Hospital.

4. I accept Mr Peri's contention that the process of appointment of an acting chief executive of a General Hospital begins with the Board of a General Hospital recommending a suitable person to the minister. This occurs after a list of names of the applicants is prepared by the Board following endorsement by the Public Services Commission based on a selection process called "minimum person specification assessment" for consideration and approval. The Minister on receipt of the Board's recommendation of the preferred candidate shall recommend to the National Executive Council (NEC) for appointment. The NEC receives the recommendation and makes the appointment.

5. I also accept his submission that, this process is provided under section 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act, 2004, (the Act). In this case, he pointed out there was no recommendation from the Board to the first respondent to appoint the third respondent as care-taker chief executive officer of Kundiawa General Hospital. In fact, he submitted, there is no provision in that Act for appointment of care-taker chief executive officer; there is only provision for appointment of acting chief executive officer.

6. In my view, based on this process, there is a serious challenge to the validity of the appointment of the third respondent as the care-taker chief executive officer. On what basis and process did the first respondent follow to appoint the third respondent as care-taker chief executive officer? The evidence of the applicant seems to suggest the first respondent unilaterally made the decision to appoint the third respondent as care-taker chief executive officer. He did so without following the process of appointment under section 9 of the Act. This raises an arguable case which will require a proper consideration at trial.

7. However, there is a serious challenge by the respondents to the applicant's standing in bringing this application for judicial review, from which this application arose. They alleged she was and is not the acting chief executive officer as there is no evidence establishing that she has been appointed acting chief executive officer. If we accept the process discussed under section 9 of the Act as being the lawful process on appointments of acting chief executive officer of General Hospitals in Papua New Guinea, then the end result will be, there must be an NEC decision appointing a person, in this the applicant as the acting chief executive officer of Kundiawa General Hospital. Based on the NEC decision, the minister responsible for the recommendation, here, the first respondent must advise or inform the applicant of her appointment as acting chief executive officer.

8. On the evidence before me, I am unable to find a NEC decision and a letter from the first respondent respectively appointing and informing the applicant of her appointment as acting chief executive officer. Mr Peri also conceded this point although I note the Board had recommended to the first respondent a list of candidates which included the applicant as the preferred candidate for appointment in 2008.

9. It appears, no appointment had been made and she had been occupying the office and performing the duties of the chief executive officer in contemplation of a formal appointment. Instead, the first respondent had gone ahead to appoint the third respondent as "caretaker" chief executive officer, a term ("caretaker") which in the words of the respondents' counsel was derived from a "practice" within the Department of Health to cover for any form of exigencies.

10. To my mind, these two competing positions have created an atmosphere of confusion and uncertainty as to validity of the appointment of the acting chief executive officer of Kundiawa General Hospital in law and in fact.

11. My observation here is fortified by the turn of events that occurred since 10th January 2011 when the applicant resumed duties as acting chief executive officer after having being away on study leave in Australia. The eventual and end result of the entire mucking around was the physical removal of the applicant from the office by the applicant and his supporters. The third respondent stood on two letters from the first respondent dated 18th February 2011 which first, revoked the appointment of the applicant as acting chief executive officer and secondly, appointed him as "caretaker" chief executive officer.

12. I fail to see the difference between an acting chief executive officer and a "care taker" chief executive officer, but it is clear to me, a "care taker" chief executive officer is an imported term or foreign to the two governing legislations that Parliament had enacted to regulate and control the management and affairs of public hospitals in the country, namely the Act referred to above and the Public Hospitals Act 1994. I also have not found the same term or a term of similar description in the Public Services (Management) Act, 1995.

13. Whatever term or expression one may use, I am convinced beyond doubt that creating a "care taker" chief executive officer and an acting chief executive officer is simply a duplication of a one and same office or position. This may lead to confusion, uncertainly, animosity, and rivalry within the organization or public institution which I find had been the case in this case.

14. In summing up all the foregoing discussions, I am of the opinion that to prevent further confusion, uncertainty, etc in the minds of staff and ultimately the people, here, the patients of Kundaiwa General Hospital of which the applicant and the respondents owe a duty to protect, and to ensure some stability and control at the hospital at this point in time, it is important and necessary that the incumbent, the third respondent be allowed to continue as "caretaker" chief executive officer until the dispute as to the validity of his appointment is determined by the Court. This is where I see the balance of convenience lies in the case.

15. I need not consider the question of damages because it goes either way. I also consider it not necessary to discuss and rule on the respondents' objection to the competency of the application based on the decision of Peter Makeng & ors -v- National Forest Services & The State (2008) N3317. I will leave that for another occasion.

16. The end result is, the applicant's application for interim injunction is refused. Costs shall be in the cause.

Ruling and orders accordingly.
____________________________________
Warner Shand Lawyers: Lawyers for Applicant
Acting Solicitor General: Lawyers for Respondents