N8819
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 775 OF 2019

BETWEEN:
CARMEL TAMILEONI
First Plaintiff

AND:
BILLY PORYKALI
Second Plaintiff

AND:
DORIS LENTURUT
Third Plaintiff

AND:
DAVID PORYKALI
Fourth Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
JOHN AKIPE, SECRETARY FOR THE DEPARTMENT OF DEFENCE
Third Defendant

Waigani: Miviri J
2020: 20th November
2021: 10th February, 14th May
 
PRACTICE & PROCEDURE – Judicial Review & appeals – Leave application – Whether Supreme Court nullified recommendation of MEAC & subsequent appointment – Whether Decision of NEC Lawful – Locus Standi – Delay – Arguable case – Exhaustion of Internal process – Prospective effect amended Legislation – Balance not discharged – Motion dismissed – cost follow event.

Cases Cited:
Golu v National Executive Council [2011] PGNC 134; N4425 
Kekedo v Burns Philip (New Guinea) Ltd [1988-89] PNGLR 122
Kereme v O'Neill [2019] PGSC 7; SC1781 
Counsel:

S. Phannaphen, for Plaintiffs
T. M. Kamuta, for Third Defendant.
N. Yano, for First & Second Defendants 

					RULING 

 14th May, 2021

1.	MIVIRI, J: This is the ruling on the plaintiff’s substantive notice of motion of the 05th December 2019 for judicial review. All are employees of the defence Department and contend that declaration lies against the appointment of the third respondent as Secretary Defence on the 10th July 2019 because he did not follow the compulsory process and procedures under Section 193 of the Constitution and Section 31A of the Public Service (Management) Act 1995, in the light of the decision of the Supreme Court in Kereme v O’Neill [2019] SC178, hence the appointment is illegal, null and void.

2.	And therefore, declaration lies against that decision to appoint the third respondent as the Secretary of Defence on the 10th July 2019, was so unreasonable under the Wednesbury Case that no reasonable tribunal would have made such decision since it was made in breach of law, was biased and against the interest of the Department itself, hence the subject decision is null and void.

3.	And further that Certiorari lies drawing from Order 16 Rule (1) (1) of the National Court Rules to bring into this Honourable Court to quash the appointment of the third respondent as the Secretary for the Department of Defence.

4.	And that an order for the applications for the position for the Secretary for Defence advertised on 24th October 2017, in the Government gazette No. G13 be reconsidered and appointment be made pursuant to section 193 of the Constitution and section 31A of the Public Service (Management) Act 1995.

5.	Costs of the proceedings are sought together with any other order as deemed appropriate by the circumstances of the case.

6.	The materials that the Plaintiffs rely on comprise the affidavits of each of the plaintiffs filed. Carmel Tamileoni filed the 04th November 2019; a second one filed the 21st August 2020. David Porykali filed 15th May 2020. Doris Lenturut filed the 21st August 2020. And of Billy Porykali filed the 14th May 2020. 

7.	Each of the deponent plaintiffs are seasoned employees holding very senior positions within the Department of Defence from Acting Secretary, Deputy Secretary, and with combined extensive experiences dating back as far back as 14th May 1975 for Billy Porykali and Carmel Tamileoni as 31st January 1990. Notably each are back on the defence payroll after being unceremoniously removed by former Secretary Vali Asi and again by Trevor Meauri but reinstatement with all entitlements by Public Services Commission. Essentially all applied for the position of Secretary for Department of Defence advertised on the 24th October 2017, publicly advertised in the Government Gazette No. PS.G13.

8.	They contend that Kereme v O'Neill [2019] PGSC 7; SC1781 (28 March 2019) declared the amendments to the Public Service (Management) Act 2014 and the Public Services (Management) (Employment of Departmental Heads) Regulations (2014 amendments) invalid because of non-compliance of Constitutional amendment processes stipulated under section 14 of the Constitution. One of which was to do with the establishment of the Ministerial Executive Appointments Committee under section 28 of that Act. It was declared Unconstitutional and therefore had no application in the appointment of the third Respondent. His appointment could not stand because of this fact and the court declares accordingly.

9.	The simple fact of the matter lay in that decision Kereme v O'Neill [2019] PGSC 7; SC1781 (28 March 2019) at paragraph 53 “Since the Constitutional Amendments were made, they have been implemented. Actions taken under the amendment shall remain in force. This judgment will have prospective effect only.”

10.	The NEC decision drawing from the MEAC was valid because it was made prior to the Supreme Court decision. There was no error of law committed nor was that decision illegal. A lawful decision was taken and remained so, because it was an executive decision by the National Executive Council. Unless it had acted contrary to the provisions of the Constitution or Organic Law or Statute it would be improper to open without: Golu v National Executive Council [2011] PGNC 134; N4425 (21 October 2011).

11.	And the decision-making process here was within the confines of the law it being settled that judicial review was about the decision-making process as opposed to the substance: Kekedo v Burns Philip (New Guinea) Ltd [1988-89] PNGLR 122. Therefore, it follows that the decision to appoint the third defendant John Akipe as Secretary to the Department of Defence remains as there is no procedural error demonstrated to the required balance by the plaintiffs. Their plea for Judicial review fails and is denied as pleaded. Costs will follow the event forthwith.

12.	The formal orders of the court are: 

(1)	Judicial review is not made out as pleaded.
(2)	The Substantive Notice of Motion of the Plaintiffs is dismissed forthwith.
(3)	Costs will follow the event forthwith.

 Orders Accordingly.
__________________________________________________________________
Lhyrn Lawyers                         : Lawyer for the Plaintiffs/Applicants		
Kamutas Legal Services	         : Lawyer for Third Defendant
Office of the Solicitor General: Lawyer for the First and Second Defendants