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Nepo v Pokanis [2018] PGNC 578; N7760 (20 November 2018)

N7760

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 783 OF 2018

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 RULE 3 OF THE NATIONAL COURT RULES

BETWEEN:
BERNARD NEPO
Plaintiff

AND:
STEPHEN POKANIS, AS ACTING CORRECTIONAL SERVICE COMMISSIONER
First Defendant

AND:
ROY BIYAMA, AS THE MINISTER FOR CORRECTIONAL SERVICE
Second Defendant

AND:
ELIAS KAPAVORE, AS MINISTER FOR PUBLIC SERVICE
Third Defendant

AND:
TAIES SANSAN, AS SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
Fourth Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Nablu, J
2018: 13, 20 November

JUDICIAL REVIEW – Appointment of Acting Commissioner – Correctional Service – whether previous acting appointment still valid – No valid decision – previous decision quashed – no evidence of another decision – application for leave is misconceived – leave refused.
Case Cited:

Andrias v. Kapavore (2017) N7007

Counsel:

Mr R. Obora, for the Plaintiff

20^th November, 2018

1. NABLU, J: The plaintiff seeks leave to review the decision of the Minister for Public Service to advise the Head of State to appoint Mr Stephen Pokanis as the Acting Commissioner for Correctional Service. The decision was published in the National Gazette on the 24^th of September 2018 (G615 of 2018).

2. If leave is granted, the plaintiff seeks orders to quash the decision and an order in the nature of mandamus to revoke the first defendant’s appointment. The plaintiff also seeks orders that he take up the position of Acting Correctional Service Commissioner forthwith. He also claims damages for mental distress, anxiety and public humiliation.

3. The application for leave is supported by a Statement of Support and the affidavits of Bernard Nepo filed on 25^th October 2018 and 5^th November 2018. The application for leave was duly served on the Secretary for Justice as required by the Rules.

4. The State did not enter an appearance for this matter despite been served with the application. Leave was granted to the plaintiff to proceed exparte.

5. The background facts are provided in the affidavit of Mr Nepo. He stated that he was a senior commissioned officer of the Correctional Service who has served for over 33 years. He stated that he is ranked Chief Superintendent. Following the death of Commissioner Blathazar, the position of Commissioner became vacant. On the 4^th of February 2016, he was appointed the acting Commissioner. The National Executive Council (NEC) in NEC Decision No.15/2016 revoked the appointment of Commissioner Waipo and effectively terminated his employment. Consequently, the plaintiff was appointed Acting Commissioner for a period of three months, effective from 4^th February 2016. The decision was published in National Gazette G59 of 2016. Commissioner Waipo then sought judicial review of that decision. The Supreme Court reinstated Commissioner Waipo pending the determination of the judicial review application. On the 5^th of May 2016, His Honour Justice Makail determined the judicial review application and upheld it. The orders included a declaration that the NEC decision was of no legal effect and an order was granted to quash the said decision. Consequently, Commissioner Waipo was reinstated to his position.

6. Since that time, Mr Waipo remained in the position until 24^th September 2018 when he reached the retirement age. Because of the fact that a vacancy existed, the Head of State appointed Mr Stephen Pokanis to act as the Commissioner for a period of three months. Mr Pokanis’s acting appointment was effective from 25^th of September 2018 for a period of three months or until a substantive appointment is made.

7. The plaintiff is aggrieved by this decision. Mr Obora submitted that the plaintiff was the duly appointed Acting Commissioner by virtue of his appointment on 4^th February 2016 and 1^st December 2016. Counsel submitted that his appointment was still valid and once Commissioner Waipo’s appointment ceased his acting appointment was automatically activated. The main reason he makes this argument is because of the fact that his previous acting appointments were never revoked. Therefore, it was submitted that his appointment was still valid.

8. At the outset, I am of the view that the plaintiff does not have sufficient interest to challenge the decision for two reasons. The first reason is that the decision (NEC Decision 15 of 2016) which he relies on was declared as having no legal effect and it was quashed. Therefore, he cannot rely on that decision. There was no requirement of the Appointing Authority to revoke the acting appointment. The National Court had exercised its inherent supervisory jurisdiction by granting judicial review and quashing the NEC decision.

9. The second reason is that the plaintiff relied on another decision dated 1^st December 2016, which he claims made the decision to appoint him as the Commissioner. There is no evidence of a second decision before me. In the evidence before me, I find there is a recommendation by the Ministerial Executive Appointments Committee (Annexure E of the Affidavit of Bernard Nepo filed on 25^th October 2018). The plaintiff in his affidavit stated that the decision was pending formalization and gazettal. I am not persuaded that there was a decision appointing the plaintiff. Clearly, these submissions are misconceived and there is no evidence to substantiate the claims.

10. Judicial review is only concerned with the decision – making process. Where there is no evidence of a decision, it would make it difficult to review the decision – making process. In the case of Andrias v. Kapavore (2017) N7007, I held that the Minister for Public Service had the discretion to make an acting appointment where a vacancy existed. I also held that a challenge of an acting appointment is futile and the person who challenges the decision to make an acting appointment has no interest and therefore lacks standing. In the present case, it is clear the plaintiff lacks standing to challenge the administrative decision. The plaintiff is a busy body coming to Court to waste the Court’s time. I am inclined to refuse the plaintiff’s application for leave and dismiss it forthwith. The plaintiff is not prejudiced, when the Commissioner’s position is formally advertised, he can always lodge his application.

11. Therefore, for the foregoing reasons, the plaintiff’s application for leave to review is misconceived. The plaintiff’s application for leave is refused and is dismissed forthwith.

Orders accordingly,

Raymond Obora Lawyers: Lawyers for the Plaintiff