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David v Provincial Executive Council of the Southern Highlands Provincial Government [2024] PGNC 390; N11062 (29 October 2024)

N11062

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2024

BETWEEN:
JERRY DAVID
Plaintiff

AND:
PROVINCIAL EXECUTIVE COUNCIL OF THE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
First Defendant

AND:
TAIES SANSON, SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND:
THE PUBLIC SERVICES COMMISSION
Third Defendant

AND:
HONOURABLE JAMES MARAPE, MP, PRIME MINISTER AND CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
DAVID KELMA
Sixth Defendant

Waigani: Purdon-Sully J
2024: 13^th, 25^th September & 29^th October

JUDICIAL REVIEW - Practice and Procedure –Motion for summary dismissal - Competency of proceedings for judicial review – Objection based on failure of decision maker to be named as a party – Court bound by decision of Supreme Court – Decision of National Court otherwise persuasive authority – Abuse of process - Objection to competency upheld

Cases Cited:

Papua New Guinean Cases
Arawe Logging Pty Ltd & Ors v the State [1988-89] PNGLR 216
Eoe v Maipakai [2013] PGNC 241; N5066
GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690
Kiap v Kasper [2023] PGSC 95; SC2435
Kaumba v National Executive Council [2014] N6025
Napanapa Landowners Association v Logae [2016] PGSC 48; SC1532
Temai v Kool & Ors [2024] N10667
Waim No 85 Ltd v Independent State of Papua New Guinea [2015] PGSC 34; SC1405
Yama v PNGBC Ltd [2008] PGSC 42; SC922

Overseas Cases
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605

Legislation:
National Court Rules, Order 16 r 5(1), 13 (13)(1) and (2)
Constitution, Schedule 2.9(1), (2)
Underlying Law Act 2000, s 19(1), (2)

Counsel
Mr L Kandi, for the Plaintiff
Mr A Baniyamai with Mr R Puyan, for First Defendant
Mr K Kipongi, for the Second, Fourth and Fifth Defendants
Mr R Simbil, for the Third Defendant
Mr H Nii, for Sixth Defendant

DECISION

29^th October 2024

1. PURDON-SULLY J: Before the Court is the First Defendant’s Notice of Motion filed 8 August 2024 challenging the competency of the Plaintiff’s application for judicial review. The First Defendant seeks orders pursuant to Order 16 Rule 13(13)(2)(a) and (b) of the National Court Rules (NCR), that the entire proceedings be summarily dismissed on the following grounds:
   
   1. The decision-making authority or the decision makers of the decision sought to be reviewed was never named as a party to the proceedings; and
      
   2. Abuse of process of the Court.
      
2. Order 16 r 13 (13)(1) and (2) of the National Court Rules provides:
   

(1) Motion

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
   

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

......

[Underlining mine]

3. The application to summarily dismiss is supported by the Second, Fourth, Fifth and Sixth Defendants, the Sixth Defendant having filed an application in similar terms on 9 August 2024.
   
4. The application is opposed by the Plaintiff and the Third Defendant.
   
5. The issues for determination are:
   
   1. Whether, as contended by the Plaintiff, the application to dismiss should be dismissed on the basis of res judicata, this being the First Defendant’s second attempt to dismiss, its earlier Amended Notice of Motion dismissed by another Judge of this Court for being irregular and an abuse of process; and
      
   2. Whether as contended on behalf of all Defendants (except the Third Defendant) the judicial review proceedings are defective and an abuse of process for failing to name the National Executive Council (NEC) as a party to the proceedings.
      

BACKGROUND

6. The Plaintiff was at all material times the Provincial Administrator of Southern Highlands Province (SHP). On 23 February 2023 the SHP Executive Council made a resolution to have the Plaintiff recalled as Provincial Administrator.
   
7. On 16 February 2024 the NEC revoked the Plaintiff’s appointment as Provincial Administrator and decided to re-deploy him to a vacant executive position (the decision). The Sixth Defendant was appointed Acting Provincial Administrator. The decision was nationally gazetted on 21 February 2024.
   
8. Aggrieved by the decision, on 1 March 2024 the Plaintiff commenced proceedings for leave for judicial review. The Court granted the Plaintiff leave on 12 March 2024. On 22 March 2024 the Plaintiff filed a Notice of Motion under Order 16 Rule 5(1) of the NCR for judicial review which included orders in the nature of certiorari, prohibition, declaration and reinstatement. The Review Book was filed on 6 August 2024, the matter then listed for substantive hearing on 13 September 2024.
   

CONSIDERATION OF ISSUES

9. With respect to the first issue based on res judicata, I am not persuaded by the arguments advanced on behalf of the Plaintiff and Third Defendant. I have considered the published reasons for the ruling of my brother Dingake J of 5 August 2024, handed up during the taking of oral submissions with respect to the competency of the application before him, being an Amended Notice of Motion for dismissal filed by the First Defendant. The history appears to be that on 15 May 2024 the First Defendant’s application to dismiss the proceedings came before another Judge of this Court. The application was not entertained, the learned Judge of the view that since leave had been granted for judicial review the application for dismissal could be raised at the substantive judicial review hearing. Notwithstanding that view, the First Defendant filed an Amended Notice of Motion for dismissal which they sought be heard and determined. The Amended Notice was dismissed for being defective in form, by reason of leave having not been sought to bring it and by reason of the relief sought having changed which could not be supported by the original Notice of Motion. As such the application was deemed an abuse of process.
   
10. Given that history, I am unable to conclude that the orders sought in the Notice of Motion before me, namely whether the proceedings are defective for failing to name the decision-maker as a party, had been earlier adjudicated on its merits. An essential prerequisite for a matter to be regarded as res judicata is that the earlier judicial determination followed a hearing on the merits of the matter before the court in the later hearing (Yama v PNGBC Ltd [2008] PGSC 42; SC922; Waim No 85 Ltd v Independent State of Papua New Guinea [2015] PGSC 34; SC1405; Napanapa Landowners Association v Logae [2016] PGSC 48; SC1532; GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690). The First Defendant’s first Notice of Motion was not entertained by the Judge hearing the matter. The Amended Notice was then dismissed by another Judge by reason of issues of form. The substantive merits of the matter were not decided. Put another way, the judicial decision made did not involve a determination of the same question before me.
    
11. Even if I am wrong in so concluding, the Court on its own initiative may summarily dismiss an application on competency grounds (Order 16 r (13)(3)(2)(b)(ii) of NCR). Issues of abuse of process should not be lightly ignored when raised. Such is the case here for the reasons that follow. For that reason alone, I am not persuaded by the Plaintiff’s alternative position that the issue for determination be left to be determined in the future.
    
12. With respect to the second issue for determination, it is contended on the part of the First Defendant, supported by the Second, Fourth, Fifth and Sixth Defendants, that the decision-maker, namely NEC, was never named as a party and therefore the proceedings are defective, an abuse and should be summarily dismissed. The First Defendant relies upon the decisions of Kiap v Kasper [2023] PGSC 95; SC2435 (Kiap) and Temai v Kool & Ors [2024] N10667 (Temai) to support its position. It contends that both are authorities that should be followed by this Court.
    
13. It is contended on behalf of the Plaintiff and Third Defendant that the proceedings are competent and should proceed to a substantive hearing because:
    
    1. NEC cannot be a party to the proceedings because it lacks the legal capacity to sue and be sued;
    2. The doctrine of separation of powers prevents NEC from being named as a party to the proceedings, especially when declaratory relief is being sought;
    100. NEC is sufficiently represented in the proceedings by the Prime Minister and the Independent State of Papua New Guinea (the State) as the Fourth and Fifth Defendants.
         
14. While the First and Third Defendant acknowledge that there are recent decisions of the Supreme and National Court that appear to support the First Defendant’s position, Temai having followed the Supreme Court decision in Kiap, it is submitted that Temai is on appeal and Kiap is distinguishable on its facts. It is further submitted that there are earlier authorities that support the position of the First and Third Defendant, those authorities not considered by the Supreme Court in Kiap.
    
15. It is the State’s position that based on Temai the failure of the Plaintiff’s to join NEC, the ultimate decision-maker, is fatal to the Plaintiff’s proceedings for judicial review.
16. In reaching a decision on the second issue as identified, I have considered the written and oral submissions made and the various authorities to which I have been referred together with the Plaintiff’s amended case schedule forwarded to chambers under cover of letter dated 13 September 2024 which was copied to the other parties. I thank learned Counsel for the parties for their considered approach to the issue. I do not, however, propose to respond to each and every submission made, however in reaching a decision determinative of the issue, I have considered all submissions (R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 per Lord Scarman at 350; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 385 - 386; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605).
    
17. Relevantly I have considered the decision of Kiap, a decision of the Supreme Court handed down on 11 August 2023. I have also considered the decision of Temai, a decision of the National Court, handed down shortly thereafter on 20 February 2024. Both are recent decisions where the issue before me was considered at National and Supreme Court level and where the recency of such consideration should properly carry weight (Eoe v Maipakai [2013] PGNC 241; N5066 at [19]).
    
18. In upholding the appeal in Kiap, Kandakasi DCJ and Dowa J held that the proceedings were defective in that the real decision-maker, the Appeals Tribunal, was not properly named and heard before the final decision by the trial judge, the majority finding it to be wrong and/or defective to cite the Chairman of the Staff Appeal Tribunal instead of the decision-maker which was the Appeals Tribunal.
    
19. At [39] –[40] Kandakasi DCJ said this:
    
    38. Closely connected to the decision that was the subject of the judicial review proceeding is the question of who made that decision. That question gives rise to my third reason. Kasper took his appeal about his termination decision by the SDC to the Appeals Tribunal. It is the Appeals Tribunal that decided to affirm the decision of the SDC and not Kiap alone in his capacity as Chairman of the Appeals Tribunal. If Kasper was entitled to judicial review, he could only go for a review of the decision by the Appeals Tribunal and not against its Chairman only. Kasper was obliged to name each of the members of the persons collectively constituting the Appeals Tribunal, However the proceedings named only the Chairman of the Appeals Tribunal, Kiap. This gives rise to several questions, such as, was he a single member tribunal. Or was he the Chairman of a tribunal comprising other members? If the Appeals Tribunal compromised of several other members, who are they and why have they not been named as the persons compromising the Appeals Tribunal. In short, the proceeding proceeded without the decision-maker being properly named and heard before the final decision in the matter. This rendered the proceedings defective and most importantly the hearing and outcome was defective, improper and not binding on the decision-maker. Consequently, the decision of the Appeals Tribunal remains unchallenged and undisturbed.
        
    39. The application for leave for judicial review and later the review itself was therefore defective. This in my view rendered the grant of leave for judicial review, the substantive judicial review and the various reliefs the learned trial judge granted were highly irregular which warrant an immediate quashing and set aside.
        
20. The decision of Kiap is binding on me (Constitution, Schedule 2.9(1) and Underlying Law Act 2000, s 19(1)). For this reason I am not persuaded by the submissions advanced that it should not be followed by reason of:
    
    1. the facts being distinguishable from the case before me or the nature of the decision-maker Tribunal and the powers and privileges of its members vis a vis NEC, including arguments advanced that centre on the doctrine of separation of powers where the principles enunciated in Kiap as outlined earlier are clear and, in my respectful view, applicable to the case before me; or
       
    2. a failure of the Court to discuss the cases of:
       
       1. Kaumba v National Executive Council [2014] N6025 where another Judge of this Court in granting the the Plaintiff’s application to join the Prime Minister and Attorney General as defendants in the proceeding ruled that the NEC did not have the legal capacity to sue or be sued; or
       2. Yamanea & Ors v Dr Vele Pat’lalava & Ors (OS No 70 of 2014 – unnumbered and unreported judgment of 24 April 2014), a decision of the National Court, Counsel for the First and Third Defendants conceding that it was a case that they could not locate and thus were unable to place before the Court for its consideration; or
          
       3. Arawe Logging Pty Ltd & Ors v the State [1988-89] PNGLR 216 which suggested that the naming of the State is sufficient in cases where declaratory relief is being sought against Ministers.
          
21. The learned Judge in Temai, in applying the principles enunciated in Kiap, concluded that because the Plaintiff had failed to name the NEC as the legitimate decision-making authority, the proceedings were defective. While that decision is on appeal, and is not binding authority (Constitution, Schedule 2.9(2) and Underlying Law Act 2000, s 19(2)), it is on point and followed the principles in Kiap as outlined. No persuasive reason was advanced why it is not an authority to which I should accord weight in the current proceedings which involve the same decision-maker (NEC) where, as was the case in Temai, and as is the case before me, NEC was not a named party, rather the Prime Minister in his capacity as Chairman of the NEC ( in Temai “for and on behalf of the NEC”)
    
22. On the facts of this case, however, the “Honourable James Marape, MP, Prime Minister, and Chairman of NEC”, was not the decision-maker. The decision-maker was NEC. For this reason, bound by Kiap, and supported by the decision in Temai, decided only a few months ago, I have concluded that these proceedings are defective for failure to properly cite the decision-maker of the decision under review sought to be set aside.
    
23. For that reason, the grounds on competency are made out, the proceedings for substantive relief is an abuse and the proceedings should be dismissed.
    

ORDERS

24. The Courts orders are:
    
    1. The proceedings for judicial review be dismissed for being an abuse of process.
    2. The Plaintiffs pay the costs of the Defendants on a party and party basis, to be taxed if not agreed.
    3. Time to abridge
       

M S Wagambie Lawyers: Lawyers for the Plaintiff
Baniyamai Lawyers: Lawyers for the First Defendant
Office of the Solicitor General: Lawyers for the Second, Fourth and Fifth Defendants
Public Services Commission: Lawyers for the Third Defendant
Harvey Nii Lawyers: Lawyers for the Sixth Defendant