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Kewa v Ilau [2020] PGNC 462; N8746 (28 September 2020)

N8746


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO.267 OF 2005


BETWEEN:
COLONEL JOSEPH MARK KEWA
Plaintiff


AND:
COMMANDER PETER ILAU, DMS, CBE, COMMANDER OF
PAPUA NEW GUINEA DEFENCE FORCE
First Defendant


AND:
MATHEW GUBAG, MP, DEFENCE MINISTER, IN HIS CAPACITY AS THE CHAIRMAN OF THE DEFENCE COUNCIL
Second Defendant


AND:
SIR MICHAEL SOMARE, CGMC, CH, MP, PRIME MINISTER, IN HIS CAPACITY AS THE CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Third Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: David, J
2020: 7th & 28th September


JUDICIAL REVIEW – breach of natural justice – ultra vires – whether or not revocation of plaintiff from rank of Colonel and discharge from Defence Force for being unsuitable was legal -application for judicial review granted – plaintiff to be properly discharged from Defence Force - damages appropriate remedy.


Cases Cited:


Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90
Mision Asiki v Manasupe Zurenuoc (2005) SC 797
Miam v Dai (2009) N3699
Raphael Pius v Commodore Peter Ilau (2009) N3833
Raphael Pius v Commodore Peter Ilau (2011) SC1115
In re Constitution Section 19(1) – Special Reference by Allan Marat; In re Constitution Section 19(1) and (3)(a) – Special Reference by the National Parliament (2012) 1 PNGLR 74


Counsel:


Christopher Kup-Ogut, for the Plaintiff
Irene Mugugia, for the Defendants


JUDGMENT

28th September, 2020


  1. DAVID, J: INTRODUCTION: This is the Court’s decision on an application for judicial review made under Order 16 of the National Court Rules. The decision sought to be reviewed is that made by the National Executive Council (NEC) on 25 August 2004 chaired by Sir Michael T. Somare by Decision No. 153/2004 in Rabaul whereby the NEC revoked the appointment of the plaintiff, Col. Joseph Mark Kewa, from the rank of Colonel and discharged him from the Papua New Guinea Defence Force (Defence Force) for being unsuitable (NEC Decision No.153/2004). The plaintiff was subsequently discharged from the Defence Force on 14 October 2004.
  2. On 19 August 2005, the plaintiff was granted leave to apply for judicial review.
  3. It appears that the substantive proceedings were commenced by notice of motion filed on 24 April 2019. Order 16 Rule 5(1) of the National Court Rules states that the mode of applying for judicial review following grant of leave to make an application for judicial review is by notice of motion to the Court: Miam v Dai (2009) N3699. However, the substantive proceedings may be flawed and incompetent as the notice of motion seeks leave again to apply for judicial review to review and set aside and declare invalid certain decisions of the first, second and third defendants and the motion may also be incompetent for want of form. Ms. Mugugia for the defendants raised the issue of competency of the proceedings, but did not press it so I will not determine the proceedings on that basis.

4. The defendants contest the application.


BRIEF BACKGROUND FACTS


5. The plaintiff was enlisted in the Defence Force on or about 17 July 1978 initially holding the rank of Lieutenant after graduating from the University of Papua New Guinea with a Bachelor of Education. He was deployed at the Murray Barracks Trade Training Unit for six months and later posted to the Goldie River Training Depot as an instructor with the Education Wing. On 18 February 1980, he was promoted to the rank of Captain and made Adjutant (Personnel Assistant) to the Commander. In 1981, the plaintiff was a senior instructor. On or about 1 December 1982, he was promoted to the rank of Major and posted to Igam Barracks, Officer Cadets Training Academy, Lae where he was an Instructor with the Academic Studies Wing and later held the post of Major-Admin. Between 1986 and 1989, the plaintiff was based at Defence Force Headquarters as Senior Officer Grade 2 to the Directorate of Training and later as Senior Officer Grade 2 to Special Projects. In 1989, he became the immediate Superior Officer to Lieutenant Colonel John Lytus (Rtd). In 1993, the plaintiff was appointed the Recruiting Officer for Officer Cadets. In 1995, the plaintiff was promoted to the rank of Lieutenant Colonel and posted to Canberra where he acted as Defence Advisor to Australia in the absence of a Colonel. In 1998, he was appointed as Director of Personnel Services. In 1999, he was promoted to the rank of Colonel and posted as Chief of Personnel and later as Acting Chief of Staff. In 2000, the plaintiff was appointed as the First Training Commander and established the Kerowil base then in Western Highlands Province, but now in Jiwaka Province. In 2001, he was posted to Murray Barracks as Chief of Personnel. On 2 May 2002, he was appointed as Defence Advisor to New Zealand for a period of four years pursuant to NEC Decision No.137/2002 notice of which was gazetted in National Gazette No. G77 dated 2 May 2002. By NEC Decision No.153/2004, the plaintiff’s appointment from the rank of Colonel was revoked and he was discharged from the Defence Force for being unsuitable. Notice of the revocation of the plaintiff’s appointment as Colonel in the Defence Force pursuant to the NEC Decision No.153/2004 dated 30 September 2004 was published in National Gazette No. G111 on 7 October 2004. A signal authorizing the plaintiff’s discharge from the Defence Force effective as of 30 September 2004 was raised on 14 October 2004.


RELIEF SOUGHT


6. The substantive relief sought by the plaintiff are set out at paragraph 3 of the statement filed pursuant to Order 16 Rule 3 (2)(a) of the National Court Rules on 20 August 2018 (Statement in Support) and these are:


  1. A declaration that NEC Decision No.153/2004 was defective and null and void and therefore unlawful as the third defendant erred in law in signing the instrument as the submission by the second defendant which formed the basis for that decision was not presented for consideration by the NEC.
  2. A declaration that National Gazette No. G111 dated 11 October 2004 published as a result of NEC Decision No.153/2004 was null and void and therefore of no effect.
  3. A declaration that the first defendant’s decision to revoke the plaintiff from the rank of Colonel and discharge him from the Defence Force was ultra vires as it did not comply with the Defence Force Act and the Defence Force Manual on Personnel Administration and NEC Decision No.137 of 2002 dated 26 April 2003.
  4. A declaration that the first defendant’s submission for the removal of the plaintiff to the second defendant was a denial of the principle of natural justice contrary to Section 59 of the Constitution and accordingly was null and void.
  5. A declaration that the second defendant’s NEC submission, though not considered by the NEC for the removal of the plaintiff was a denial of the principle of natural justice contrary to Section 59 of the Constitution and accordingly was null and void.
  6. A declaration that the first defendant’s actions were contemptuous and in breach of a Court order dated 18 July 2003 in:
    1. Proposing or submitting to the Defence Council for the plaintiff’s revocation for being unsuitable;
    2. Advising the second defendant to present the NEC Submission for the revocation of the plaintiff;
    3. Taking proactive action in advising and discharging the plaintiff from the Defence Force even when advised by the second defendant that the NEC Submission was not made and shelved and therefore his actions were null and void and of no effect.
  7. An order in the nature of certiorari to remove into the Court and quash NEC Decision No.153/2004.
  8. An order restraining the first defendant and all his agents from taking any steps to enforce the revocation of the plaintiff pursuant to NEC Decision No.153/2004 pending the final outcome of these proceedings.
  9. An order in the nature of mandamus directing the first defendant to discharge his duty to deploy the plaintiff as Defence Advisor to New Zealand pursuant to National Executive Council Decision No. 137/2002 dated 26 April 2003.
  10. An order for general damages to be assessed for hardship and loss of entitlements suffered as a consequence of the first defendant’s action in failing to comply with NEC Decision No.137/2002, the Court order of 18 July 2003 and the subsequent actions taken to suppress, tarnish the plaintiff’s name and reputation and terminate the plaintiff’s appointment.

GROUNDS OF REVIEW


7. The grounds upon which judicial review is sought are pleaded at paragraph 4 of the Statement in Support. There are forty eight sub-paragraphs that constitute the grounds of review and a number of documents referred to in support of the grounds of review are annexed to the Statement in Support as annexures “A” to “T”. The Statement in Support ought to state briefly and concisely, but specifically the grounds relied upon to support the application for judicial review. Order 16 Rule 3(2)(a) appears to allow additional information by way of documentary evidence to be attached to a Statement in Support mainly where numerous forms of relief are sought or where numerous grounds are relied upon. Nevertheless, since no objection was raised as to the competency or otherwise of any of the grounds, I have digested and summarised them as follows:


  1. The first defendant’s failure to implement the appointment by the Governor General of the plaintiff as Defence Advisor to New Zealand pursuant to NEC Decision No.137/2002 made on 24 April 2002 and notice of which was published in National Gazette No. G77 dated 2 May 2002 was unjustified, improper and wrong.
  2. The first defendant’s declaration of the plaintiff as persona non grata was unjustified, improper and wrong.
  3. The first defendant’s decision to revoke the plaintiff from the rank of Colonel and discharge him from the Defence Force was ultra vires as it did not comply with the Defence Force Act, the Defence Manual on Personnel Administration and the NEC Decision No.137/2002 dated 26 April 2003.
  4. The first defendant’s submission for the removal of the plaintiff to the second defendant was a denial of the principle of natural justice contrary to Section 59 of the Constitution and accordingly was null and void.
  5. The second defendant’s NEC submission, though not considered by the NEC, for the removal of the plaintiff was a denial of the principle of natural justice contrary to Section 59 of the Constitution and accordingly was null and void.
  6. The first defendant’s actions were contemptuous and in breach of a Court order dated 18 July 2003 in:
    1. Proposing or submitting to the Defence Council for the plaintiff’s revocation for being unsuitable;
    2. Advising the second defendant to present the NEC Submission for the revocation of the plaintiff;
    3. Taking proactive action in advising and discharging the plaintiff from the Defence Force even when advised by the Second Defendant that the NEC Submission was not made and shelved and therefore his actions were null and void and of no effect.
  7. NEC Decision No.153/2004 to revoke the appointment of the plaintiff from the rank of Colonel and discharge him for being unsuitable was defective and null and void therefore unlawful as the third defendant erred in law when he signed the instrument as the second defendant’s NEC Submission which formed the basis of the decision was not presented by the second defendant for consideration by the NEC.
  8. The notice of revocation of the plaintiff from the rank of Colonel and his discharge from the Defence dated 30 September 2004 issued to give effect to NEC Decision No.153/2004 and published in National Gazette No.G111 dated 7 October 2004 was null and void and therefore of no effect.
  9. All actions taken by the first defendant against the plaintiff to give effect to the NEC Decision No.153/2004 were null and void and therefore of no effect.
  10. All actions taken by the first defendant to remove the plaintiff from the rank of Colonel and discharge him from the Defence Force were ultra vires as they did not comply with the provisions of the Defence Act, the Defence Force Manual of Personnel Administration and NEC Decision No.137/2002 dated 26 April 2013.
  11. The plaintiff’s posting to New Zealand was up and he should be compensated for loss of entitlements and hardship suffered.

8. Summarised grounds 1 to 10 overlap each other and will be addressed together. Summarised ground 11 will be addressed on its own.


EVIDENCE


  1. The plaintiff relies on the following affidavits:
    1. Affidavit of Col. Joseph Mark Kewa sworn and filed on 24 May 2006 (Exhibit A);
    2. Affidavit of Col. Joseph Mark Kewa sworn on 20 October 2006 and filed on 24 October 2006 (Exhibit B);
    3. Affidavit in Reply of Col. Joseph Mark Kewa sworn on 4 June 2007 and filed on 5 June 2007 (Exhibit C);
    4. Affidavit of Melchior Pep sworn on 12 May 2009 and filed on 13 May 2009 (Exhibit D);
    5. Affidavit of George Guipita sworn on 6 January 2014 and filed on 7 January 2014 (Exhibit E);
    6. Affidavit of Col. Joseph Mark Kewa sworn and filed on 23 November 2016 (Exhibit F);
    7. Affidavit of Col. Joseph Mark Kewa sworn on 19 December 2016 and filed on 23 December 2016 (Exhibit G); and
    8. Affidavit of Col. Joseph Mark Kewa sworn on 3 March 2017 and filed on 6 March 2017 (Exhibit H).
  2. The defendants rely on the following affidavits:
    1. Affidavit of Reply of Peter Ilau sworn and filed on 8 June 2005 (Exhibit 1);
    2. Affidavit of Hon. Mathew Gubag, MP sworn and filed on 8 June 2005 (Exhibit 2);
    3. Supplementary Affidavit of Peter Ilau sworn and filed on 6 November 2006 (Exhibit 3);
    4. Affidavit of Col. John Rakatani sworn on 23 January 2017 and filed on 27 January 2017 (Exhibit 4);
    5. Affidavit of Brigadier General Gilbert Toropo sworn on 23 January 2017 and filed on 27 January 2017 (Exhibit 5); and
    6. Affidavit of Joseph P. Fabila sworn and filed on 23 May 2007 (Exhibit 6).

11. The parties’ affidavits were admitted into evidence by consent. No cross-examination was conducted by the parties.


AGREED FACTS


12. By Statement of Agreed and Disputed Facts and Legal Issues dated 21 September 2018 and filed on 26 September 2018 (Statement of Facts and Legal Issues), the agreed facts are:

  1. On 19 July 1978 after graduating with a Bachelor of Education at the University of Papua New Guinea, the plaintiff was enlisted and commissioned as an Education Officer in the Defence Force with the rank of Lieutenant at Murray Barracks Trade Training Unit for six months and in 1979 upon completion of the training was posted to the Goldie River Training Depot as an instructor with the Education Wing.
  2. On 18 February 1980, the plaintiff was promoted to the rank of Captain and made Adjutant (Personnel Assistant) to the Commanding Officer.
  3. In 1981, the plaintiff was a Senior Instructor and thereafter promoted to the rank of Major.
  4. In 1982, the plaintiff was posted to Igam Barracks where he was an Instructor with the Academic Studies Wing and towards the end of the year on 1 December 1982, he was appointed Senior Instructor Academic and promoted to the rank of Major teaching academic subjects.
  5. From 1984 to 1986, the plaintiff held the post of Major-Admin at the Officer Cadets Training Academy in Lae.
  6. Between 1986 and 1989, the plaintiff was posted and based at the Defence Force Headquarters, Murray Barracks as its Senior Officer, Grade 2 to Directorate of Training and later as Senior Officer Grade 2 to Special Projects, a joint initiative of the Defence Force and Police to streamline the salary structure of both Forces.
  7. In 1989, the plaintiff was posted as the immediate Superior Officer to Lieutenant Colonel John Lytus (Rtd) assisting in the structure and salaries and payment of Colonial Servicemen by the Australian Government.
  8. In 1993, the plaintiff was appointed the Recruiting Officer for the Defence Force recruiting officers for Officer Cadets and was assisted by Psychologists, Doctors, Health Extension Officer, Nurses and Military Personnel.
  9. Between 1994 and 1998, the plaintiff was promoted to the rank of Lieutenant Colonel (in 1995) and was posted to Canberra and acted as Defence Advisor in the absence of a Colonel who would have held that post in Australia.
  10. Around March 1998, the plaintiff was made Director of Personnel Services responsible, amongst others, for pay and allowances for Military Personnel based at Murray Barracks.
  11. In 1999, the plaintiff was promoted to the rank of Colonel and posted as Chief of Staff and later as Acting Chief of Staff by the Defence Force Commodore coordinating all branches from Operations to Personnel and Training and all other duties of the Commander in his absence.
  12. In 2000, after a change of command, Defence Force Commander Carl Malpo posted the plaintiff as the First Training Commander and he established the new Training Command from a Directorate Level to a Branch and established the Kerowil base in Western Highlands, now Jiwaka Province.
  13. In 2001 after a change of command again, the plaintiff was posted as the Chief of Personnel at Murray Barracks, Defence Force Headquarters.
  14. On 2 May 2002, the then Governor General revoked the appointment of the plaintiff as Chief of Personnel and appointed him as Defence Advisor to New Zealand for a period of four years with effect on or from 2 May 2002 pursuant to the National Executive Council Decision No. 137/2002.
  15. Notice of the plaintiff’s appointment was published in National Gazette No. G77 dated 2 May 2002.
  16. The same notice also declared the appointment of Lt Colonel Geoffrey Wiri and Lt Colonel Paul Mai to full Colonels.
  17. By 2003, the first defendant failed to effect the appointment of the plaintiff as Defence Advisor to New Zealand and he remained as Chief of Personnel.
  18. The First Defendant also failed to effect the appointments of Lt Colonel Wiri and Lt Colonel Mai resulting in and action mounted challenging his indecision in proceedings OS 401 of 2003.
  19. By a letter dated 14 May 2003 and another dated 15 May 2003, the first defendant wrote to the plaintiff and raised twenty-seven allegations of poor handling and management of many conditions of service issues and suspended him.
  20. The plaintiff challenged the suspension in the National Court in proceedings OS 351 of 2003.
  21. On 18 July 2003 the National Court presided over by Kandakasi, J (as he then was) nullified the suspension and ordered the reinstatement of the plaintiff.
  22. An investigation carried out by Colonel Fabila exonerated the plaintiff from all the twenty-seven allegations as they were found to be baseless.
  23. On the instructions of the first defendant, the plaintiff was not reinstated to his post as Chief of Personnel within the Defence Force by the Chief of Staff Captain Tom Ur. The plaintiff also waited for his posting to New Zealand as Defence Advisor to be facilitated at the same time.
  24. On 28 July 2003, the plaintiff filed contempt proceedings against the First Defendant when he refused to implement the orders in proceedings OS 351 of 2003.
  25. On 6 August 2003, at the direction of Kandakasi, J (as he then was), the first defendant gave an undertaking to comply with the order by 8 August 2003 without any penalty.
  26. On 3 September 2003, after the National Court in proceedings OS 401 of 2003 determined that NEC Decision No.137/2002 was valid and proper, Lt Colonel Wiri and Lt Colonel Mai were made full Colonels and Colonel Mai was made Chief of Personnel.
  27. Since the NEC Decision No. 137/2002 was valid, the defendants were required to post the plaintiff to New Zealand as Defence Advisor.
  28. Pursuant to the ruling in OS 401 of 2003, the plaintiff gave up the Chief of Personnel post to Colonel Mai and waited for his posting to New Zealand as Defence Advisor to be effected by the first defendant.
  29. On 15 September 2003, in the morning tea session during the handover of the Chief of Personnel post to Colonel Mai by the plaintiff, the first defendant announced that the plaintiff was a persona non grata and would be ineligible to take up his posting as Defence Advisor to New Zealand.
  30. By a letter dated 19 September 2003, the plaintiff wrote to the first defendant seeking an explanation for categorizing him as persona non grata to New Zealand without invoking the normal applicable protocol.
  31. In classifying the plaintiff as persona non grata, the first defendant did not administer to him such protocol to find him unsuitable to be posted as Defence Advisor to New Zealand.
  32. On 1 October 2003, the first defendant sponsored a National Executive Council Submission through the Defence Council that the plaintiff’s posting as Defence Advisor to New Zealand by NEC Decision No.137/2002 be revoked and thereafter approve his discharge from the Defence Force.
  33. In June 2004, the National Executive Council was requested by the then Minister for Defence, Hon Mathew Gubag to revoke the appointment of the plaintiff as Defence Advisor to New Zealand under NEC Decision No.137/2002 and discharge him from the Defence Force.
  34. The submission for the revocation of the plaintiff’s appointment was made in the Statutory Business Paper No. 55/2004.
  35. The grounds contained in the Statutory Business Paper No.55/2004 to effect the plaintiff’s revocation and discharge was that New Zealand rejected his appointment and there was no vacancy to serve as Colonel in the Defence Force.
  36. On 25 August 2004, the National Executive Council chaired by Sir Michael T. Somare revoked the appointment of the plaintiff from the rank of Colonel and discharged him from the Defence Force for being unsuitable.
  37. The decision for the plaintiff’s revocation from the rank of Colonel and to be discharged from the Defence Force was made in NEC Decision No.153/2004 dated 6 September 2004.
  38. In a letter dated 19 October 2004, Hon Mathew Gubag, the then Minister for Defence wrote to the Secretary for the National Executive Council that he withdrew the Statutory Business Paper No. 55/2004 and advised that the NEC may have mistakenly considered the Statutory Business Paper recommending the plaintiff’s discharge in his absence.
  39. By a letter dated 25 January 2005, the then Minister for Public Service Hon. Patrick Pruaitch wrote to the Secretary for Defence, Mr. Frederick Punangi and advised him of the improper use of the powers of the National Executive Council by the Defence Force.
  40. By a Minute dated 14 November 2005 sent to Colonel Wiri, the Minister for Defence Hon. Mathew Gubag admitted that NEC Decision No. 153/2004 was made in his absence.
  41. The NEC Decision No.153/2004 that revoked the plaintiff’s appointment as Defence Advisor to New Zealand and discharged him from the Defence Force was not sponsored by the Minister for Defence, Hon. Mathew Gubag.
  42. By a letter dated 22 November 2012, the Minister for Defence, Hon. Fabian Pok advised the then Commander Brigadier General Francis Agwi that the plaintiff be reinstated.
  43. The defendants have not taken up the advice of Minister Hon. Fabian Pok and the Minister for Public Service, Hon. Patrick Pruaitch.

DISPUTED FACTS


13. By the Statement of Facts and Legal Issues, the disputed facts are:


  1. By 2003, the first defendant’s failure to implement the appointment of the plaintiff as Defence Advisor to New Zealand made by the Governor General in National Gazette No.G77 dated 2 May 2002 was unjustified and wrong.
  2. The allegations made against the plaintiff raised by the first defendant in the letter dated 15 May 2003 and his suspension were improper, unjustified and done in bad faith.
  3. The decision of Kandakasi, J (as he then was) made on 18 July 2003 nullifying the suspension and ordering the reinstatement of the plaintiff in proceedings OS 351 of 2003 proved that the allegations and suspension were unjustified, done maliciously and in bad faith.
  4. The Undertaking given on 6 August 2003 by the first defendant in proceeding OS 351 of 2003 on the order of Kandakasi, J (as he then was) was baseless and done in bad faith.
  5. The NEC Decision No.137/2002 was valid and proper and should have been implemented by the first defendant by posting the plaintiff to New Zealand as Defence Advisor.
  6. Based on the NEC Decision No.137/2002, the plaintiff remained as Defence Advisor to New Zealand on such terms and conditions and thereafter without the loss of such terms and conditions until lawfully discharged.
  7. There was no diplomatic note sent from the New Zealand Government to the PNG Government that categorized the plaintiff as persona non grata in New Zealand and therefore the announcement made by the first defendant was improper.
  8. In 2002, the plaintiff was eligible to take up the post of Defence Advisor to New Zealand.
  9. The grounds for revocation and discharge of the plaintiff from the Defence Force that the New Zealand Government rejected his appointment and there was no vacancy to serve as Colonel in the Defence Force in Statutory Business Paper No.55/2004 were baseless, improper, irregular and unlawful.
  10. The NEC decision No.153/2004 was made improperly and irregularly as it was not sponsored by the Minister for Defence, Hon. Mathew Gubag.
  11. The appointment to the rank of Colonel is made for life and the National Executive Council does not have the power to revoke the appointment to the rank of Colonel such as it did in NEC decision No.153/2004 against the plaintiff.
  12. The revocation of the appointment to the rank of Colonel and discharge of the plaintiff from the Defence Force on the ground of unsuitability was vague, wrong, improper, irregular and breached the rules of natural justice.
  13. The plaintiff was unlawfully discharged from the rank of Colonel and from the Defence Force and therefore he is entitled to damages and losses equivalent to that rank which he held since 2002.

LEGAL ISSUES


14. A number of legal issues have been identified and agreed to by the parties in the Statement of Facts and Legal Issues for my determination. These issues are crystalised into two major issues and these are:


  1. Whether or not the revocation of the plaintiff from the rank of Colonel and his discharge from the Defence Force for being unsuitable was legal?
  2. Whether in all the circumstances, the plaintiff is entitled to claim reinstatement as Defence Advisor to New Zealand or damages?

THE LAW


15. The circumstances under which judicial review may be available are where the decision-making authority, exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.


16. The purpose of judicial review is not to examine the reasoning of the decision-making authority with the view to substituting its own opinion. It is concerned not with the decision, but with the decision-making process: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.


17. According to Order 16 Rule 6(1) of the National Court Rules, only the grounds and relief pleaded in the statement filed under Order 16 Rule 3(2)(a) can be argued at the hearing of an application except where they are amended by order of the Court (Order 16 Rule 6(2) and (3)).


18. The judicial review jurisdiction of the Court is discretionary. However, the discretion vested in the Court by Section 155(3) of the Constitution and Order 16 Rules 1 and 9 of the National Court Rules must be exercised judicially and on proper principles and proper grounds. An authoritative statement of that principle was made by the Supreme Court in Mision Asiki v Manasupe Zurenuoc (2005) SC 797 where it stated:


“It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:


... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.


The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.”


19. This decision clearly indicates that in deciding how to exercise its discretion; firstly, the Court must look at all the circumstances of the case and decide whether it is appropriate to grant a remedy as it is not a formality; and secondly, the Court will generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.


20. The plaintiff carries the burden of proving his claim on the balance of probabilities.


REVOCATION FROM RANK OF COLONEL AND DISCHARGE FROM DEFENCE FORCE FOR BEING UNSUITABLE


Plaintiffs’ submissions


21. The plaintiff contends that the NEC Decision No.153/2004 was ultra vires. He states that he was denied natural justice contrary to Section 59 of the Constitution prior to the NEC Decision No.153/2004 was made which was subsequently gazetted in National Gazette No. G111 dated 7 October 2004. Hence, the NEC Decision No.153/2004 and the gazettal notice ought to be declared null and void. An order for certiorari should then be made to remove the decision into the Court and have it quashed it was submitted.


22. The plaintiff also seeks an order for mandamus to compel the Commander of the Defence Force to have him posted to New Zealand as Defence Advisor and further or in the alternative damages be awarded.


Defendants’ submissions


23. The defendants argue that the NEC Decision No.153/2004 was proper and legally valid in light of Section 153(2) of the Constitution which states that any question about want of compliance or not with prescribed procedures for the NEC is non-justiciable. It was submitted that there was no evidence of any breach of the Constitution or any Act of Parliament except for a purported procedural error in the presentation of or the lack of presentation of the Second Defendant’s NEC Submission. If the second defendant were not present to speak to his submission, the NEC Decision No.153/2004 was collectively made by those members of the NEC who were present at that meeting and therefore legally valid and proper under Section 153(4) of the Constitution.


24. In addition, the defendants submit that there is no evidence, whether real or circumstantial showing that the NEC Decision No.153/2004 was not presented or debated. The only evidence presented by the plaintiff was hearsay. The second defendant’s letter dated 19 October 2004 only alleged an “error” that the submission was heard instead of being deferred due to political pressure on him (annexure “T” to Statement in Support). The second defendant’s letter of 14 November 2005 to the plaintiff (annexure G of Peter Ilau’s supplementary affidavit) and Ms. Winnie Kiap’s letter of 7 October 2005 (annexure F of Peter Ilau’s supplementary affidavit) confirm that the second defendant’s NEC submission was not formally withdrawn despite political pressure to do so, was considered by the NEC at its Kokopo meeting on 25 August 2004 and was lawful and valid. The second defendant’s NEC Submission was signed by himself (annexure O to Statement in Support), the NEC Decision No.153/2004 was signed by the Secretary to the NEC and the Third Defendant (annexure R to Statement in Support). The Instrument of Revocation was duly executed by the Head of State and the notice published in National Gazette No. G111 dated 7 October 2004. The NEC Decision No.153/2004 was valid and proper therefore the gazettal of the decision was conclusive and legally valid and proper.


25. The NEC Decision No.153/2004 was validly made pursuant to Sections 1, 9 and 10(2)(iii) of the Defence (Period of Service) Regulation (the Period of Service Regulation. The First Defendant gave effect to the NEC Decision No.153/2004 which he was required to do under Section 10(4) of the Defence Act.
26. There was no breach of natural justice as the plaintiff was unattached and had reached the compulsory retirement age. He was still in the Defence Force enjoying all perks and privileges accorded to a full-time serving Colonel at the expense of the people of Papua New Guinea.


Reasons for decision


27. The plaintiff was born on 29 April 1956 (annexure J, Exhibit B). He was enlisted in the Defence Force on 19 July 1978 initially as a Lieutenant. During the course of his service in the Defence Force, the plaintiff was promoted and appointed according to the ascending order of Commissioned Officer ranks in the Land Element of the Defence Force to the ranks of Captain, Major, Lieutenant Colonel and finally as Colonel. He was discharged from the Defence Force on 14 October 2004 following the NEC making NEC Decision No.153/2004 on 25 August 2004. The notice of NEC Decision No.153/2004 was gazetted in National Gazette No. G111 on 7 October 2004 upon the Governor-General acting on advice of the NEC revoked the appointment of the plaintiff as Colonel in the Defence Force.


28. The principles of natural justice are part of the underlying law of Papua New Guinea: Constitution, Section 59(1). The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly: Constitution, Section 59(2). There is nothing in the Defence Act that excludes the right to be heard. The underlying principle is that a member of the Defence Force who is subjected to disciplinary proceedings for any breach of service discipline must be treated fairly and be given time and chance to defend himself: Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90. The dismissing authority must observe the principles of natural justice: Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90. Even in the case of dismissal outside the Code of Military Discipline, the dismissing authority must observe the principles of natural justice: Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90.


29. The Head of State acting with and in accordance with the advice of the NEC is the prescribed or appropriate authority to appoint or remove a member of the Defence Force to or from the rank of Colonel: Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90, Section 18(1) of the Defence Act and Section 36 of the Interpretation Act. Section 1(a) of the Period of Service Regulation defines the phrase “appropriate authority”. It means “in the case of an officer of the rank of Brigadier-General or Colonel – the Head of State, acting on advice”: see also Section 10(1)(i) of the Period of Service Regulation.


30. The Defence Act, by virtue of Section 33, provides alternative procedures (as opposed to being complementary) for discharging a member from the Defence Force; one is under the Code and the other is under the Period of Service Regulation. Period of Service Regulation: Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90, Raphael Pius v Commodore Peter Ilau (2009) N3833, Raphael Pius v Commodore Peter Ilau (2011) SC1115.


31. I am satisfied from the evidence before the Court that the NEC Decision No.153/2004 was made pursuant to Section 10(2)(iii) of the Period of Service Regulation. Section 10(2) is set out in full below and it states:


“The service of an officer may be terminated at any time by an appropriate authority—

(a) by the acceptance of his resignation; or

(b) where a medical practitioner who is a member of the Defence Force certifies that he is unfit to discharge, or incapable of discharging, his duties; or

(c) where the appropriate authority is satisfied that—

(i) the officer gave false information in connexion with his enlistment; or

(ii) an offence committed by the officer for which he has been convicted is such as to render him unsuitable for service in the Defence Force; or

(iii) the officer is for any reason not suitable for service in the Defence Force.”


32. The first defendant gave effect to the NEC Decision No.153/2004 which he was required to do under Section 10(4) of the Defence Act.


33. However, was the revocation of the plaintiff from the rank of Colonel and his discharge from the Defence Force legal?
34. A member of the Defence Force may be promoted by such authority in accordance with Section 37(1) of the Defence Act. His rank may be reduced in accordance with Section 37(2) of the Defence Act.


35. It is instructive to set out below the whole of Section 37 and it states:


“(1) Subject to Section 18, members of the Defence Force may be promoted by such authority and on such conditions as are prescribed.

(2) A member of the Defence Force may not be reduced in rank except—

(a) at his own request; or

(b) in accordance with the Code of Military Discipline; or

(c) if he is, in the opinion of the prescribed authority, inefficient in or unsuitable for his rank; or

(d) as otherwise prescribed.”


36. In the present case, the plaintiff’s rank was not reduced to another rank below the rank of Colonel. He was removed from the rank of Colonel.


37. The NEC was within its powers under Section 153(2) of the Constitution to deliberate on the second defendant’s NEC Submission. That provision states that the question whether the procedures prescribed for the NEC have been or are being complied with is non-justiciable. In any event, the second defendant did not formally withdraw his NEC Submission so since it was formally before the NEC to be deliberated on, it was deliberated on collectively by members present (if the second defendant were not present to speak to his NEC Submission) pursuant to Section 153(4) of the Constitution resulting in NEC Decision No.153/2004: In re Constitution Section 19(1) – Special Reference by Allan Marat; In re Constitution Section 19(1) and (3)(a) – Special Reference by the National Parliament (2012) 1 PNGLR 74. Section 153(4) states that no act of a Minister is open to challenge on the ground that he was not empowered to perform the act, if some other Minister or any Minister was so empowered. I accept the defendants’ submissions in this respect.


38. In 2002, the plaintiff was eligible to take up the post of Defence Advisor to New Zealand. His service in the Defence Force was recognised by NEC Decision No.137/2002. However, the failure to implement NEC Decision No.137/2002 resulted in litigation in the National Court. The plaintiff was suspended and that resulted in him challenging the suspension successfully in proceedings OS 351 of 2003. Lt. Colonel Wiri and Lt. Colonel Mai also took legal action in proceedings OS 401 of 2003. It is an undisputed fact that by a letter dated 14 May 2003 and another dated 15 May 2003, the first defendant wrote to the plaintiff and raised twenty-seven allegations against him and the allegations were investigated by Colonel Fabila and he found them to be baseless. Therefore, the allegations to my mind were improper, unjustified and done in bad faith. On 18 July 2003, the plaintiff’s suspension was nullified by the Court and he was reinstated. On 6 August 2003, the first defendant made an undertaking for the plaintiff to resume duties on 7 August 2003. It has been suggested by the plaintiff that the undertaking was baseless and done in bad faith, but I find that events overtook so that in September 2003, the Court determined that NEC Decision No.137/2002 was valid and proper and Lt. Colonel Wiri and Lt. Colonel Mai were made full Colonels and Colonel Mai made Chief of Personnel.


39. Since NEC Decision No.137/2002 was valid, the defendants were required to implement the decision to post the plaintiff to New Zealand as Defence Advisor. However, by then the New Zealand Government had decided not to accept the plaintiff as Defence Advisor for various reasons: see copy of letter from Paul Sinclair, Head International Defence Relations Branch, Ministry of Defence/New Zealand Defence Force to Tia Barrett, Director and Chief of Protocol, Protocol Division, Ministry of Foreign Affairs and Trade dated 18 July 2002 annexed as annexure A to First Defendant’s Affidavit in Reply. That letter was authentic: see copy of letter from HE, Laurie Markes, New Zealand High Commissioner to the First Defendant dated 19 November 2003 annexed as annexure D to the First Defendant’s Supplementary Affidavit.


40. The Secretary of Department of Foreign Affairs, Mr. Gabriel K. Pepson in a letter to the First Defendant dated 18 November 2003 provided an explanation about when a person is declared persona non grata. He stated:

“For your information, as provided for in Article 7 of the Vienna Convention on Diplomatic Relations, which states and I quote “in the case of military, naval or air attaches, the receiving State may require their names to be submitted before hand for its approval.”


One must also note that Article 9 provides that “the receiving State may at anytime and without having to explain its decision, notify the sending State that the Head of Mission or any member of the Diplomatic Staff of the Mission is persona non-grata or that any other member of the staff of the Mission is not acceptable.” .... ”A person may be declared non-grata or not acceptable before arriving in the territory of the receiving State.”


Therefore, I do not expect that the Department would have received formal communications from the New Zealand Government whether they had accepted or refused Colonel Kewa’s appointment as Defence Advisor to New Zealand.”


41. The plaintiff was therefore declared persona non grata to New Zealand before travelling there not by any decision of or declaration by the first defendant, but by the decision of the host country, New Zealand. The announcement made by the first defendant on 15 September 2003 that the plaintiff was persona non grata was therefore not improper.


42. Given that, the NEC Decision No.137/2002 to post the plaintiff to New Zealand could not be implemented. The first defendant’s failure to implement the appointment of the plaintiff as Defence Advisor to New Zealand made by the Governor General in National Gazette dated 2 May 2002 was therefore not unjustified and wrong.


43. The plaintiff’s former substantive position of Chief of Personnel was already taken up by Colonel Mai. He was therefore unattached.


44. On 1 October 2003, the first defendant sponsored a NEC Submission through the Defence Council for the decision to post the plaintiff to New Zealand as Defence Advisor made under Decision 137/2002 to be revoked and that he be discharged from the Defence Force. The grounds relied on were that; New Zealand Government rejected the plaintiff as Defence Advisor to New Zealand; and that there was no vacancy for the plaintiff who had an education background. That resulted in NEC Decision No.153/2004. Under Section 10(2)(c)(iii) of the Period of Service Regulation, the service of an officer could be terminated by the appropriate authority where it was found for any reason that the officer was not suitable for service in the Defence Force. In the present case, I think it is not necessary to decide whether the grounds for revocation and discharge of the plaintiff were baseless, improper, irregular and unlawful, but whether the plaintiff was accorded the right to be heard. I have already ruled that the plaintiff was declared as persona non grata by the New Zealand Government on 18 July 2002, a decision not made by the defendants.


45. As to the issue of vacancy, there is no strong and cogent evidence to demonstrate that the plaintiff was accorded the right to be heard affecting his employment and continued service in the Defence Force. This was a clear breach of natural justice. The NEC Decision No.153/2004 was therefore ultra vires and illegal. The subsequent advice to the Head of State to give effect to the revocation and discharge of the plaintiff from the Defence Force pursuant to NEC Decision No. 153/2004 and gazettal were all flawed and illegal. The resultant effect is that the plaintiff was unlawfully discharged from the rank of Colonel in the Defence Force for being unsuitable.


46. As to whether the first defendant’s actions were contemptuous, any action taken against the first defendant for alleged contempt of Court and for alleged breach of the Court order of 18 July 2003 is a matter that should have been pursued separately and not in these proceedings.


REINSTATEMENT OR DAMAGES


47. Due to passage of time, compulsory retirement age and that it would be detrimental to good administration, it is not possible to order that the plaintiff be re-deployed in the Defence Force and to take up the position of Defence Advisor to New Zealand. The New Zealand Government cannot be forced to accept someone it has refused to accept initially.


48. Under Section 9 and Schedule to the Period of Service Regulation, the retirement age for a Colonel is 50 years. Chapter 42, paragraph 42.4 of the Manual of Personnel Administration states that the compulsory retirement age of all officers is 55 years. The Defence Act and the Period of Service Regulation would take precedence over the Manual of Personnel Administration. The plaintiff’s age is well over the compulsory retirement age now.


49. In the result, damages would be the appropriate remedy.


ORDER


50. Of the relief sought, it suffices to make the following orders:


  1. The application for judicial review is granted.
  2. A declaration that NEC Decision No.153/2004 was ultra vires as having been reached in breach of the principles of natural justice therefore defective, null and void and unlawful.
  3. A declaration that National Gazette No. G111 dated 7 October 2004 published as a result of NEC Decision No.153/2004 was null and void and therefore of no effect.
  4. An order in the nature of certiorari to remove into the Court and quash the NEC Decision No.153/2004.
  5. All actions taken consequential to NEC Decision No.153/2004 are null and void and of no effect.
  6. The relief sought for an order in the nature of mandamus directing the first defendant to discharge his duty to deploy the plaintiff as Defence Advisor to New Zealand pursuant to National Executive Council Decision No. 137/2002 dated 26 April 2003 is refused.
  7. An order seeking a declaration that the first defendant’s actions were contemptuous and in breach of a Court order dated 18 July 2003 is refused.
  8. A proper discharge from the Defence Force shall now be accorded to the plaintiff.
  9. Damages shall be assessed.
  10. The defendants shall pay the plaintiff’s costs of and incidental to the proceedings to be taxed if not agreed.

11. Time is abridged.
Judgment and orders accordingly.
______________________________________________________________

Kup & Co: Lawyer for the Plaintiff

Solicitor-General: Lawyer for the Defendants

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