N9665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 153 OF 2021

BETWEEN:
DR MARU GARO
Plaintiff

AND:
DR STEVEN YENNIE
First Defendant

AND:
DAVID TOUA in his capacity as Chairman of the National Capital District Provincial Health Authority Board
Second Defendant

AND:
NATIONAL CAPITAL DISTRICT PROVINCIAL HEALTH AUTHORITY BOARD (NCDPHA BOARD)
Third Defendant

AND:
DR OSBORNE LIKO in his capacity as Secretary for Department of Health
Fourth Defendant

AND:
TAIES SANSAN in her capacity as Secretary for the Department of Personnel Management
Fifth Defendant

AND:
PUBLIC SERVICES COMMISSION (PSC)
Sixth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Wurr, AJ
2021: 23rd December
2022: 22nd February

JUDICIAL REVIEW – review of decision of board of provincial health authority to appoint chief executive officer – Provincial Health Authorities Act 2007, s 29– whether decision lawfully made by board – pleadings – wrong laws pleaded – repetition of error unwarranted – application for review refused.

Cases cited:

Alice Honjepari -v- Dr Niko Wuatai & Others (2020) N8386
Kekedo v Burn Philip (New Guinea) Ltd [1988-89] PNGLR 122

Counsel:

K. Levi, for the Plaintiff
K. Iduhu, for the First, Second and Third Defendants
No Appearance, for Fourth, Fifth, Sixth and Seventh Defendants

JUDGMENT
22nd February, 2022

1.	WURR, AJ: This decision was delivered orally on 22 February 2022 . I here now publish my judgment.

2.	This is an application by the former Acting Chief Executive Officer Dr Maru Garo to judicially review the decision of the third defendant, National Capital District Provincial Health Authority Board (board), made on 09 December 2021 wherein it appointed the first defendant as the Chief Executive Officer of the National Capital District Provincial Health Authority (NCDPHA).

PARTIES ARGUMENTS

3.	The plaintiff claims that he together with other potential candidates missed the opportunity in the appointment because the third defendant through the second defendant did not facilitate for key representatives from the Department of Health, Department of Personnel Management and Public Services Commission to be involved in the selection process.

4.	The First, Second and Third Defendants opposed the application. They raised two preliminary issues - the first is that the plaintiff does not have legal standing in commencing this proceeding, and secondly that the pleadings as contained in the Order 16 statement are vague and disclose no reasonable cause of action.  

ISSUES

5.	The relevant issues that need my consideration are:

i.	Whether the plaintiff has standing to commence this proceeding

ii.	If issue (a) is in the affirmative, then the second issue to consider is whether the plaintiff’s application should be dismissed for lack of pleadings

iii.	If issue (b) is in the affirmative, then that would be the end of the matter. However if in the negative, then the Court will consider whether the first defendant’s appointment was lawful

WHETHER THE PLAINTIFF HAS LEGAL STANDING TO COMMENCE THIS PROCEEDING
6.	This is a threshold issue that is considered at the leave stage. The fact that this application has passed the leave stage is a testament that this Court is satisfied that the plaintiff does have sufficient interest in this matter. However, as it has been raised again, I will address it in the following manner. The plaintiff was the acting Chief Executive Officer for about two months at the relevant time before the first defendant was appointed. He was also an applicant for the position and was shortlisted. He is genuinely aggrieved because he was not appointed. I therefore find that the plaintiff does have locus standi to commence this proceeding. 

WHETHER THE APPLICATION SHOULD BE DISMISSED FOR LACK OF PLEADINGS

7.	The defendants argue that the application is poorly pleaded (referring to the Order 16 statement) and therefore should be dismissed.  

8.	It is trite law that pleadings is essential because it forms the basis of any claim. The relevant documents that contain the pleadings are the Order 16 statement and the substantive Notice of Motion.  I set out the relevant pleadings extracted from each of these documents here below:

i.	Order 16 Statement as filed on 29 October 2021 reads; 

1.	The decision of the second and third defendants on 09 September 2021 undermined the legally constituted appointment process. The exercise of powers by the second defendant was ulta-virus and misapplication of section 29 (2) of the Provincial Health Authorities (Amendment) Act 2013, when he did not have such powers as the actions of the second and third defendants are subject to the due process prescribed by the Public Services Management Act 1997.

2.	The decision of the second defendant on 09 September 2021 was an error of law and ultra-virus in nature as such powers are conferred in the third defendant pursuant to Section 29 (2) of the Provincial Health Authorities (Amendment) Act 2013. 

ii.	The substantive Notice of Motion reads;

1.	An order in the nature of a declaration that the second defendant’s declaration of appointment of the first defendant under Section 29 of the Provincial Health Authorities (Amendment) Act 2013 is ultra-virus, and made in  error of the law in misinterpretation in the application of the law in  absence of any  compliance with sections 25A of the Public Services (Management) Act 1997 as well as Section 5 & 6 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. 

2.	An order in the nature of certiorari be granted by this Court and quash the whole of the decisions made by the second and third defendants to appoint the first defendant as ultra-virus and erred in law as the second defendant did not have a specific power to make an announcement of an unlawful appointment not made in compliance of due merit- based appointment process that is administered by the Department of Personnel Management as well as the oversight Department of Health, who also as an interested party could have had a say in this appointment process.

9.	As per the case of Kekedo v Burn Philip (New Guinea) Ltd (1988) PGSC; (1988-89) PNGLR 122, judicial review is concerned not with examining the reasons for which the decision in contest was made out but the decision-making process. In other words, judicial review is concerned with the process that was followed to arrive at the decision that was made. The process is defined by the relevant laws that are applicable to that process. 

10.	The plaintiff pleads that the process set out in the relevant provisions of certain legislations was not followed by the second and third defendants which resulted in the wrongful appointment of the first defendant.

11.	The legislations relied upon by the plaintiff in his pleadings are described as Section 29 (2) of the Provincial Health Authorities (Amendment) Act 2013, 25A of the Public Services (Management) Act 1997, ss 5 & 6 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, and Section 193 of the Constitution. 

12.	 Section 29 of the Provincial Health Authorities Act 2007 before the 2013 amendment provided as follows:
29. CHIEF EXECUTIVE OFFICER.

(1) 	There shall be a Chief Executive Officer for each provincial health authority whose manner of appointment, suspension and dismissal is as specified in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

(2) 	A Chief Executive Officer of a provincial health authority –

(a) 	shall be appointed for such period not exceeding four years as the Board determines; and
(b) 	subject to this Act, holds office on such terms and conditions as are determined under Section 31; and
c) 	is eligible for re-appointment.

13.	 With the amendment of this provision made in 2013, the same provision now reads as:
29. CHIEF EXECUTIVE OFFICER

(1) 	There shall be a Chief Executive Officer for each provincial health authority whose manner of appointment, suspension and dismissal shall be as specified in Subsection (2).

(2)	A Chief Executive Officer of a public hospital —

(a)	shall be appointed by the Board through a merit based selection process approved by the Departmental Head of the Department responsible for personnel management matters; and
(b)	shall be appointed on a contract of employment in the prescribed form subject to such terms and conditions by the Salaries and Conditions Monitoring Committee and executed by the Board for a period not exceeding four years as the Board so determines; and
(c)	is eligible for re-appointment.

(3) 	The Provincial Administrator of the Province shall, in consultation with the Departmental Head of the Department —

(a)	responsible for personnel management matters; and
(b) responsible for health matters,
intervene in the absence of a Board for any reason dealing with the Chief Executive Officer.

14.	 After the amendment the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 no longer applies. The amended provision in subsection 2 spells out the manner of appointment, suspension and dismissal of a Chief Executive Officer.

15.	 Section 193 of the Constitution and Section 25 and 25A of the Public Services (Management) Act 1997 are incorrectly relied upon by the plaintiff in his pleadings. These provisions are applicable to the appointment of departmental heads, not Chief Executive Officers. 

16.	 Basically, the point is that the plaintiff pleaded non-existent and or wrong law (s) in the Order 16 Statement as well as the substantive Notice of Motion, the effect of which is that the claim is flawed. 

17.	A similar situation arose in the case of Alice Honjepari -v- Dr Niko Wuatai & Others (2020) N8386 wherein His Honour Justice Cannings when considering similar set of facts, held that the process invoked for the appointment of Chief Executive Officer of both a provincial health authority and public hospital is provided for in Section 29 of the Provincial Health Authorities Act 2007. The Court further held that Section 29 (2) of the Provincial Health Authorities (Amendment) Act 2013 as pleaded by the plaintiff was a non-existent law. The Provincial Health Authorities (Amendment) Act 2013 exists but it has no section 29. It has only one section, which is an amendment to s 29 of the Provincial Health Authorities Act 2007. Hence the relevant law applicable is Provincial Health Authorities Act 2007. However, the Court in that case did not dismiss the case for lack of pleadings but went on to consider the merits of the application. 

18.	The plaintiff in this case has made the same error as was made in the case of Honjepari -v- Wuatai (supra) whereby he pleaded the law as Section 29 (2) of the Provincial Health Authorities (Amendment) Act 2013 which is incorrect. The question I ask myself is should I take the same approach taken by the Court in the case of Honjepari -v- Wuatai (supra)? I think not, because this Court has already corrected this error in the case of Honjepari -v- Wuatai (supra); hence had the plaintiff’s lawyer taken some time to conduct some research before commencing this proceeding, I am sure he would have come across this case and correctly drafted the pleadings. He failed to conduct himself diligently resulting in these bad pleadings. It is not warranted, in my view, for this Court to allow this error through for the second time when it has already corrected the same error.

19.	In summary, the pleadings are poorly drafted. Non - existent, irrelevant laws are pleaded. I therefore uphold the defendants’ submission and dismiss the review application on this ground.

20.	However for completeness sake, I will continue on to the last issue which  will address the merits of the application for review.

WHETHER THE FIRST DEFENDANT’S APPOINTMENT WAS LAWFUL

27.	The procedure for appointment of a chief executive officer of a provincial health authority is the same as that for a chief executive officer of a public hospital. Thus:
a.	the appointing authority is the board, and
b.	there must be a merit-based selection process,
c.	that process must be approved by the Departmental Head of 
the Department responsible for personnel management matters (ie the Secretary for Personnel Management),
d.	the appointee must be appointed on a contract of employment in the prescribed form, executed by the board for a period not exceeding four years.
28.	The Board of a Provincial Health Authority consists of a maximum of nine members appointed under s 17 (constitution of boards) of the Provincial Health Authorities Act 2007.

a.	one is a representative of the National Department of Health 
b.	one has knowledge and experience of district affairs in the province 
c.	three are experienced members of the local business sector nominated by the provincial Chamber of Commerce and Industry
d.	one is member of a local church run or Christian organisation
e.	one is a woman with a high level understanding of issues for women of the province nominated by the Provincial Women's Organisation 
f.	two are members of the local community

29.	It is not known who was present at the board meeting, whether there was a quorum, etcetera, when the appointment was made. The minutes of the meeting are not before this Court. The plaintiff did not raise this as an issue so I will not discuss this any further.

30.	The plaintiff instead argues that there was no representation by the Department of Health or the Department of Personnel Management on the board, and further that the first defendant was not appointed based on any merit-based appointment process approved by the fifth defendant, who is the Department Head of Personnel Management. The plaintiff relies on a letter written by the  fifth defendant and addressed to the second defendant dated 23 June 2021 to advance this argument. The fifth defendant is a party to the proceeding however has not filed an affidavit to state her position in this matter despite of being served this application.

31.	 It is not a statutory requirement that representatives of the Department of Health or the Personnel Management participate in the interview or assessment of candidates, so their lack of participation does not have any bearing on the board’s decision. Section 29(2)(a) of the Act does however require a representative from the Department of Health to be a member of the board of a provincial health authority. (Honjepari -v-  Wuatai, followed.)

32.	The onus is on the plaintiff to prove that the selection process was not approved by the fifth defendant, and in the absence of any indication by the State that the process was unapproved, it was reasonably to be inferred that the fifth defendant had in effect approved the process.  (Honjepari -v-  Wuatai, followed). 

33.	In this case the fifth defendant’s letter was adduced through the plaintiff. The letter urged the second defendant to involve the Department of Health and Department of Personnel Management in the pre-screening process. In the letter the fifth defendant did acknowledge the Merit Based Appointment process that was present at the time. That is my reading of the last sentence of the second paragraph of her letter which reads  “ Through the Merit Based Appointment process, most qualified and experienced candidates will be shortlisted for appointment by your board”. She concludes the letter as follows- “ The Board is now responsible to ensure a permanent CEO is appointed at the earliest and my Department is available to assist”. 

34.	Furthermore, there is in evidence the Interview Summary Report dated 17 August 2021, which confirms that a representative from the Department of Personnel Management though not present, gave her blessing for interview to proceed in her absence. These evidences prove that the fifth defendant was aware of the appointment process that was used to appoint the Chief Executive Officer. The fifth defendant nor the State took any issue with the Merit Based Process that was applied or used to screen all applicants including  the plaintiff and the first defendant.  

35.	In light of the case of Honjepari -v- Wuatai  (supra), it can be reasonably inferred from the failure of the fifth defendant to give evidence that the fifth defendant takes no issue with the appointment of the first defendant and did actually approve the merit-based selection process that was used by the board. The plaintiff has failed to prove that the process was not approved by the fifth defendant. (Honjepari -v-  Wuatai, followed). 

36.	  It therefore follows that the plaintiff has failed to establish that the decision to appoint the first defendant was made:

•	ultra vires (in excess of jurisdiction); or
•	through error of law on the face of the record of the decision-maker
37.	As all arguments and grounds of review have failed, the plaintiff’s case is dismissed in its entirety.  

COMMENTS

38.	At this juncture, I wish to comment that there are still errors appearing in the instrument of appointment of the first defendant which must be rectified as it creates unnecessary confusion and gives  rise  to issues as to the validity of that instrument. 

39.	Since this Court in  the case of Honjepari -v-  Wuatai, corrected this mistake, the defendants have no excuse. Future repetition of the same error should not be treated lightly but ought to be held against the offender. That is how I would treat this case because the plaintiff pleaded incorrect provisions of incorrect laws, which resulted in the dismissal of the application. The merits of the claim is considered not only for completeness sake, but more importantly to reinforce what this Court held in the case of Honjepari -v-  Wuatai  (supra).

40.	As I mentioned earlier in my judgment, the plaintiff’s lawyer would have been better placed if he had been more diligent. I therefore see no reason why cost should not follow the event. 

FORMAL ORDERS

41.	 My formal orders are:

1.	The application for judicial review and all other reliefs sought in the substantive motion are refused, and this proceeding is dismissed in its entirety. 

2.	Costs is awarded against the plaintiff on a party-party basis to be taxed if not agreed. 

3.	File is closed. 

Judgment accordingly
________________________________________________________________
Levi Kep Lawyer Lawyers: Lawyers for the Plaintiff
Pacific Legal Group Lawyer: Lawyer for the First, Second, Third 
Defendants