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Nale v Duma [2025] PGNC 174; N11300 (19 May 2025)

N11300

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 72 OF 2024
BETWEEN:

MCRONALD NALE
Plaintiff

AND:
HON WILLIAM DUMA MP in his capacity as the MINISTER OF STATE ENTERPRISE
First Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: PURDON-SULLY J
28 APRIL, 6, 19 MAY 2025

JUDICIAL REVIEW – Motion for substantive review after grant of leave – Plaintiff seeks review of decision of the First Defendant to revoke his appointment as Director and Chairman of Board of PNG Power Limited – Whether proper procedure followed to revoke appointment and/or violated the principles of natural justice and therefore liable to be reviewed and or set aside – Whether the decision was unreasonable in the Wednesbury sense including in breach of s 41 of the Constitution, bias, mala fides – Plaintiff not afforded opportunity to be heard – Breach of Natural Justice - Judicial review on that ground upheld – Other grounds of review dismissed – Relief considered – Relief in the discretion of the Court - Pubic interest paramount – Board not functioning under Plaintiff’s Chairmanship – Relationship between critical players broken down and unlikely to be repaired - Relief including reinstatement not granted – Application for Judicial Review dismissed

Cases cited
Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Czuba v Raminai [2023] PGNC 114; N10143
Eremuge -v- Apa [2023] PGNC 421; N10572
Gima v Culligan [2015] N5989
Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
Ilau v Somare [2007] PGNC 265; N551
Isaac Lupari v Sir Michael Somare (2008) N3476
Kaiyo v Pawa [2015] SC1469
Kamuta v Sode [2006] N3067
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Koki v Inguba [2009] N3785
Malloch v Aberdeen Corporation [1971] 2 All ER 1278
Marat v Hanjung Power Ltd [2014] SC1357
Mission Asiki v Manasupre Zurenouc (2004) SC797
R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452
R v Home Secretary; Ex parte Daly [2001] 1 AC 532
Reg v Chief Constable of North Wales Police, ex p Evans [1982] UKHL 10; [1982] WLR 1155

Counsel
Ms B Kumo for the plaintiff
Mr A Mana for the first defendant
Ms M Narokobi for the second and third defendants

1. PURDON-SULLY J: This is the Court’s decision on the Plaintiff’s Notice of Motion under Order 16 r 5(1) for judicial review filed 26 September 2024 pursuant to a grant of leave made on 5 September 2024.
2. The Plaintiff seeks review of the Second Defendant’s decision made on 14 August 2024 and dated 19 August 2024 Decision No 188 of 2024 wherein the Second Defendant revoked the appointment of the Plaintiff as Director and the Chairman of the Board of Directors of the PNG Power limited (the decision).
3. The Plaintiff advances three (3) grounds of review, namely
   1. Error of law
   2. Breach of natural justice and procedural fairness
   100. Unreasonableness (Wednesbury) with acting in bad faith, with bias, prejudice and harsh and disproportionate as part of that consideration.
4. The application is opposed by the Defendants.
5. On 21 March 2022 the Second Defendant appointed the Plaintiff a non-executive director to the Board of PNG Power Limited (PPL) for a period of three (3) years.
6. PPL is a Majority State Owned Enterprise (MSOE).
7. Kumul Consolidated Holdings (KCH) is the sole shareholder of PPL.
8. The Kumul Consolidated Holdings Act 2022 (as amended) (the Act) allows for seven (7) directors of a MSOE.
9. On 5 April 2024 the Second Defendant appointed the Plaintiff Chairman of the Board of Directors of PPL by NEC Decision No 85/2023.
10. The First Defendant deposes to a discussion with the Plaintiff on 24 June 2024 when the Plaintiff informed him that he would resign as Chairman. The Plaintiff denies this.
11. By letter dated 27 June 2024 the Managing Director of KCH wrote to the Acting CEO of PPL advising that the Plaintiff had resigned his position as Chairman and that an interim Chairman, Mr Michael Lewis, had been appointed pending the making of a permanent appointment.
12. The Plaintiff deposes to his surprise at learning that he had resigned. By letter dated 28 June 2024 he wrote to the Managing Director informing him that he had not resigned.
13. The Managing Director of KCH advertised the position in the newspaper of vacancy of a Director.
14. On 14 August 2024 the Plaintiff’s appointment as Chairman of PPL was revoked by the Second Defendant’s decision in special meeting No 15 of 2024.
15. By press release on 15 August 2024 the Prime Minister on behalf of the Second Defendant released a statement that the Plaintiff’s appointment as the Chairman of PPL had been revoked.
16. The Plaintiff asserts that he was not served with the notice of his revocation of appointment and only became aware of the decision on 28 August 2024 in a newspaper article. He further asserts that the notice of revocation was not gazetted.
17. The Second Defendant revoked the appointment of Mr Malcolm Lewis as a Director of PPL and appointed Mr Lewis as a Non-Executive Director and Chairman of PPL for a period of three (3) years.
18. On 5 September 2024 the decision was stayed.

LEGISLATION

19. Section 2 of the Act provides the following definitions:
    • “Corporation” is defined as KCH.
    • “Director” is defined as “a person appointed as a director, either for the Corporation under section 11 or of the Majority State Owned Enterprise under sedition 12 as the context of the case may require”.
    • “Chairman” means “chairman of the Board appointed under Section 11 with respect to the Corporation and Section 12 with respect to MSOE as the context of the case may require”
    • “Board” means “the Directors acting collectively”
20. Part IIA applies to the Board and Directors of KCH and the MSOE.
21. Section 12 of the Act relates to directors of a MSOE as follows:

Directors of MSOE

(4) All of the Directors shall be appointed for a term of three years with such respective terms of office ensuring an orderly system of retirement, re-appointment and replacement as are determined from time to time by the National Executive Council.

....

(7) A Director whose term has expired, may continue to hold office as a Director and exercise all the powers of a Director for such period not exceeding three months within which the National Executive Council may either appoint a new Director or re-appoint the same Director.

....

(9) The Chairman of a Majority State Owned Enterprise shall be appointed as follows:

(a) Before any appointment is made, the Corporation shall –

(i) Identify those among the current Directors having the qualifications and experience meeting the requirements specified in Subsection (6) and who is prepared to accept appointment as Chairman; and

(ii) Notify the Minister of the Director so identified and provide details of his qualification and experience; and

(b) The Minister shall consider the nomination made by the Corporation and –

(i) Recommend to the National Executive Council the appointment of the Director as Chairman; or

(ii) Propose an alternative nominee from the Board and document the rationale for his appointment as Chairman.

(10) A Director of a Majority Owned Enterprise may be removed at any time v the National Executive Council after consulting with the Minister.

22. Schedule 4 provides for the processes and procedures relating to the appointment of Directors of MSOE as follows:

PROCESS AND PROCEDURES RELATING TO THE APPOINTMENT OF DIRECTORS OF MAJORITY STATE OWNED ENTERPRISE.

1. The MSOE Board will maintain a Board profile outlining the specific skills, experience and attributes needed on the MSOE Board in order to meet -

(a) its broad objectives detailed in Section 46A; and

(b) the specific targets set out in its Corporate Plan.

2. The Board Profile will identify any needed skills, experience or attributes that the Board is currently missing. The Corporation will review and either endorse or propose amendments to the Board Profile as part of the assessment of the MSOE Corporate Plan and Statement of Corporate Objectives (SCO). Any changes to the Board Profile proposed by the Corporation must be communicated in writing and discussed with the MSOE Board Chairman.

3. When a vacancy arises on the Board of a MSOE, the Board of that MSOE shall advise the Corporation of -

(a) the knowledge, skills, experience and attributes currently represented on the Board (i.e. updated Board Profile); and

(b) the knowledge, skills, experience and attributes that would be desirable in a new Director to be appointed to the Board; and

(c) the terms of reference (TOR) for the future Director, which includes a description in accordance with Item 3(b) above.

4. The Corporation will review and finalise the TOR for the future Director with the MSOE Board.

5. The Corporation may engage the services of a professional recruiting firm to assist with the preparation of Board Profiles, Director TORs, candidate search and assessment.

6. At least two months before preparing a shortlist -

(a) the Corporation will advertise the TOR and seek applications from interested persons; and

(b) interested persons can also be made aware of the opportunity through existing State Owned Enterprise Directors, PNG Institute of Directors, trade organisations, Chambers of Commerce, the Corporation and MSOE staff.

7. The Corporation will conduct a review of the applicants against the TOR, potential conflicts of interest and the criteria for disqualification and prepare a shortlist which should -

(a) include at least three candidates, one of which will be a female possessing the required qualifications; and

(b) identify the candidate which the Corporation considers most suitable for appointment as a Director, being the candidate which is most likely to fulfil the requirement of the TOR; and

(c) record any advice provided to the Corporation by the SOE Board regarding the shortlist.

8. If no female candidate possessing the required qualifications applies for the position, the shortlist can be completed without a female candidate.

9. The shortlist will be presented to the Minister of State Enterprises who will review and endorse the shortlist and instruct the Corporation (or professional recruiting firm if one has been engaged) to verify candidate documentation, check references and conduct interviews of the top 3 candidates.

10. Based on the due diligence and interviews, the Minister will recommend the preferred candidate to the National Executive Council, and record any advice on this selection from the MSOE Board Chairman.

11. Before the recommended candidate is appointed as a Director the recommended candidate must provide the Corporation with notice

(a) consenting to being a Director; and

(b) certifying that he or she is not disqualified from being a Director under law; and

(c) disclosing the nature and extent (including monetary value, if quantifiable) of all interests that he or she has at that time, or is likely to have, in matters relating to the Corporation or the MSOE.

12. The National Executive Council will formally appoint the preferred candidate.

13. Following appointment by the National Executive Council, the candidate must be briefed by -

(a) the Chief Executive Officer of the MSOE, on the operations of the MSOE, including the MSOE's most recent Corporate Plan, annual report and financial statements; and

(b) a representative of the Corporation, on the role, duties and responsibilities of a Director of a MSOE.

14. The newly appointed Director, before entering on his or her duties or exercising any power or authority under this Act, shall make a Declaration of Office and secrecy in the form set out in Schedule 1 in the presence of a duly qualified witness in accordance with the Oaths, Affirmations and Statutory Declarations Act (Chapter 317) and deliver that Declaration to the Secretary.

23. Section 36 of the Interpretation Act 1975 provides:

IMPLIED POWER TO REMOVE OR SUSPEND.

(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject.

24. Section 41 of the Constitution provides:

PROSCRIBED ACTS.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case–

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

25. Section 59 of the Constitution provides:

PRINCIPLES OF NATURAL JUSTICE.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

LEGAL PRINCIPLES

26. Order 16 Rule 1 of the National Court Rules (NCR) provides:

(1) As application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Oder.

(2) An application for a declaration or an injunction may be made by way of an application

for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to –

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

27. Judicial review is a process that is available to hold public officials accountable for the correct use of their powers. It is available where the decision-making authority exceeds it powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]).
28. Judicial review is concerned with the integrity of the decision-making process and not (with one exception) the merits of the decision made (Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400; Gima v Culligan [2015] N5989 citing with approval Hailsham LJ in Reg v Chief Constable of North Wales Police, ex p Evans [1982] UKHL 10; [1982] WLR 1155 at 1160).
    

CONSIDERATION

Are the proceedings competent?

29. The first issue for consideration is one that goes to the competency of the application, an issue raised by the Court for the consideration of the parties following the taking of submissions on review. I thank learned Counsel for their assistance on this issue. The written submissions relied upon by Counsel for the Plaintiff were of particular assistance to the Court. My consideration of those submissions and the authorities relied upon are reflected in my reasons.
30. The issue is whether the proceedings are competent considering:
    1. The appointment of the Plaintiff as director lapsed on 21 March 2025.
    2. The NEC Decision No 85/2023 expressly appointed the Plaintiff as Chairman.
    100. The decision expressly revoked the appointment of Plaintiff as Chairman.
    4. The Originating Summons seeks to review the decision which revoked the appointment of the Plaintiff as director and Chairman.
31. By Originating Summons filed on 29 August 2024, the Plaintiff applied as follows:

Leave for the Court pursuant to Order 16 Rule 3 (1) and (2) of the NCR to apply for judicial review of the decision of the Second Defendant made on 14 August 2024 and dated 19 August 2024, Decision No 188 of 2024, wherein the Second Defendant revoked the appointment of the Plaintiff as a director and the Chairman of the Board of Directors of the PPL.

32. Leave to review was granted in those terms.
33. It is the submission on behalf of the First Defendant that the proceedings before the Court should be dismissed because the Plaintiff is reviewing a decision which on the evidence was not made by the Second Defendant, that is revocation of his appointment as director, and further, the Plaintiff’s tenure as director on the PNG Board expired on 21 March 2025 at which time the Plaintiff lost standing to challenge the decision to revoke his appointment as Chairman as one needs to be a director to qualify for appointment as Chairman.
34. I find the proceedings competent and that the decision under review, by its wording either expressly or by implication revoked the appointment of the Plaintiff as a director and Chairman, such that the proceedings are properly before the Court. I have concluded for the reasons advanced on behalf of the Plaintiff that the Decision 85 of 2023 by its wording by implication reappointed the Plaintiff as Director when appointing him as Chairman. His appointment will thus lapse on 5 April 2026. The Plaintiff thus has standing to maintain his claim, the Plaintiff’s appointment extended on 5 April 2023 when he was appointed as Chairman.
35. This is because, the Act and the PPL’s Constitution provide that the Board’s Chairman is chosen from among directors by NEC. It follows that one cannot serve as Chairman without also holding a directorship simultaneously. When NEC appointed the Plaintiff as Chairman until 5 April 2026, it implicitly assured his position on the Board until that date. If the Plaintiff was to then cease as director in March 2025, he would automatically cease to be Chairman, a result that would defeat the purpose and intention of the NEC’s appointment of the Plaintiff as Chairman. I accept the submission on behalf of the Plaintiff that the only logical interpretation of that is that the Plaintiff’s directorship was intended to remain coextensive with his Chairmanship. In other words, the NEC decision of April 2023 extended the Plaintiff’s tenure as director through to April 2026 by elevating him to the chairmanship in accordance with s 12(4) of the Act.
36. The proceedings are thus competent and the Plaintiff has standing.

Grounds of judicial review - Arguments

37. Turning to the grounds of judicial review, it is submitted on behalf of the Plaintiff in summary that the decision to remove the Plaintiff as Chairman was made without:
    1. following the procedures for revocation as implied by s 12(9) and Schedule 4 and in exercising its powers under s 12(10) of the Act thereby committing an error of law;
    2. giving the Plaintiff an opportunity to respond to the allegations, if any, against him, conveying the decision to the Plaintiff and conveying the reasons for the decision to the Plaintiff thereby breaching the principles of natural justice and procedural fairness under s 59 of the Constitution;
    100. acting unreasonably in the Wednesbury sense including by pre-empting the appointment process, in acting disproportionately, harshly, with bias and in bad faith and dishonestly by not following proper procedures and otherwise in breach of s 41 of the Constitution.
38. It is submitted on behalf of the First Defendant that:
    1. There is no relevant mandated consultation process in this scenario. The Second Defendant consulted the First Defendant as Minister before the relevant decision was made.
    2. There is no legislated provision requiring the right to be heard in a situation such as this. The shareholder/employer has the prerogative to decide in the public interest.
39. It is submitted on behalf of the Second and Third Defendants that the Second Defendant acted within its authority under s 12(10) of the Act in revoking the Plaintiff’s appointment as a Director and Chairman of PPL.

Error of Law

40. The first issue to consider is whether the Second Defendant committed an error of law in exercising its powers under s 12(10) of the Act.
41. It is submitted on behalf of the Plaintiff that the Second Defendant failed to follow the procedure of appointment and revocation as a director or Chairman of the board of MSOE as set out in section 12 and Schedule 4 of the Act. While the Act is silent on the process to be followed for revocation of an appointment the Plaintiff relies upon the provisions of s 36 of the Interpretation Act and in the absence in the legislation of a power to remove, the power can be implied, the process of removal involving the procedure in s 12(9) of the Act as provided in Schedule 4. This would involve a recruitment drive and vetting of candidates and recommendation to the Minister by KCH, a recommendation of the candidate by the Minister to NEC and the appointment of the candidate by NEC.
42. I am not persuaded, however, that it is necessary to rely upon the implied power under s 12(9) at all in considering the process to be followed in removing a Director under s 12(10) of the Act.
43. This is because of the express provision in s 12(10) which provides not only clear authority to the Second Defendant to remove the Plaintiff as a Director of MSOE at any time, but also the process to be followed, albeit shortly outlined, being after the Second Defendant had consulted with the First Defendant Minister.
44. That is what happened here. On the evidence of the First Defendant in his affidavit filed 9 September 2024, following reports and feedback from the Chairman of KCH and other Directors of the Board of PPL, and concerns about the direction of PPL, a critical service, matters came to a head when the Second Defendant consulted the First Defendant about the state of affairs of PPL. On his evidence at [12] “...the unfortunate reality was that there was no other option but to revoke the plaintiff’s appointment and arrest the drastic dilemma of PNG Power limited was facing by appointing a new Chairman who will better oversee the management and direction of the company.”
45. That evidence is supported by the evidence of two board members, Ms Parua and Mr Marlen Brunskill and Mr Maladina, Chair of KCH filed 9 September 2024 and 1 October 2024.
46. To follow the procedure suggested by the Plaintiff ignores the express provision in s 12(10) of the Act. It would result in a lack of necessary flexibility required by decision makers with responsibility for dealing with a critical service, including emergent circumstances that may arise with respect to a Director of the Board. It would also involve the necessity for a Chairman Director to be consulted about his own removal. For example, the implied procedure to remove a Director of the Board when a vacancy arises on the Board would require:
    • The Board to advise KCH of the terms of reference for a future Director together with an updated profile of the Board members and a desirable skill set and attributes of a future Director;
    • KCH to review the terms of reference;
    • KCH may engage a recruiter if required;
    • At least two months before preparing a shortlist advertise the terms of reference and seek applicants;
    • KCH would review the applicants and prepare a shortlist of at least three candidates; and then
    • Present the shortlist to the Minister who then recommends a preferred candidate to the NEC, including any advice on the recommendation from the Chairman of the Board
    • NEC would then appoint the preferred candidate.

[Underlining added]

47. While it may be appropriate to consult the Chairman of the Board with respect to the appointment of a future Director to fill a vacancy, the implied approach for removal urged on the Court by the Plaintiff would present an obvious difficulty, as it would involve the Chairman in the process of his own removal, in the present case, a Chairman who refused to be removed. That cannot, as a matter of common sense, be the case. The Second Defendant as decision maker should be entitled to remove a Chairman if they view the Chairman as inter alia underperforming, has the wrong skill set, has lost the confidence of the relevant Minister or if a different direction is deemed to be required. The Second Defendant has the power to appoint. It has the power to remove. Section 12(10) of the Act provides the power to remove and the process to be followed to remove. Under that section the Second Defendant had the power to remove the Plaintiff at any time after consulting with the Minister.
48. This ground of review is not upheld.

Breach of Natural Justice

49. This ground of review and lack of notice before his appointment was revoked, is described by the Plaintiff as the “gist” of his application for judicial review (at [3] and [21] of Plaintiff’s affidavit filed 26 September 2024).
50. The Defendants did not materially challenge this ground of review. It is submitted on behalf of the First Defendant there is no legislated provision requiring the right to be heard on the facts before the Court, the shareholder/employer having the prerogative to decide in the public interest consistent with the broad ambit of s 12(1) of the Act. It is further submitted that s 59 of the Constitution does not apply in the absence of applicable legislative prescription in the Act.
51. The submissions on behalf of Second and Third Defendants do not address the ground.
52. While the Court accepts that the shareholder/employer has the prerogative to decide in the public interest consistent with the broad ambit of s 12(1) of the Act whether a Chairman of the Board should be removed, the Court does not accept that the Plaintiff did not have a right to be heard before the revocation of his appointment was made. The affording of that right did not require the First or Second Defendant to engage in a lengthy or overly bureaucratic process. It is a right that can be tailored to the circumstances that present, including emergent circumstance.
53. The Court is satisfied, that the ground of breach of natural justice should be upheld.
54. Section 59 of the Constitution allows for the consideration of the principles of natural justice in judicial review proceedings, with the minimum requirement of natural justice stated to be “the duty to act fairly and in principle to be seen to act fairly” (s 59(2)).
55. The right to be heard is a fundamental right, a requirement of fairness, one enshrined in s 59(2) of the Constitution (Kaiyo v Pawa [2015] SC1469 at [26]).
56. It is a principle well-established in this jurisdiction and all jurisdictions which uphold the rule of law. It is timely to reflect on authoritative pronouncement on the subject.
57. The right to be heard has been described as “the most elementary protection of all....” Malloch v Aberdeen Corporation [1971] 2 All ER 1278 per Lord Reid at p1282 j).
58. In Ilau v Somare [2007] PGNC 265; N5511 at [66] Cannings J referred to it as:

“...special – something to be cherished in a society built on principles of fairness, decency, and democracy. That is the sort of society PNG is supposed to be. That is what the National Goals and Directive Principles are all about.”

59. In Czuba v Raminai [2023] PGNC 114; N10143) Dingake J described the principle as “sacred.....a principle of divine justice that is traceable to the events that occurred in the Garden of Eden – where Adam was afforded a hearing before being condemned.”
60. The Court was directed to no provision in the rules nor express provisions of an Act of Parliament that excluded the Plaintiff’s right to be heard before making the decision to remove him. The fact that there is no legislative provision requiring it, as submitted on behalf of the First Defendant, does not mean it is not to be implied.
61. In the absence, then, of express provision to exclude the Plaintiff from being heard, in my respectful view it is a right that required the First Defendant to:
    1. afford the Plaintiff adequate notice of the intention to recommend to the Second Defendant that he be removed as Director and Chairman (what is adequate notice will vary depending on the circumstances that present);
    2. provide short reasons for the recommendation;
    100. afford the Plaintiff the right to respond, including orally if sought by him; and
    4. inform the Plaintiff on a timely basis in writing of the outcome of that hearing with brief reasons, the duty to give reasons now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions (Asiki v Ombudsman Commission v Peter Yama (2004) SC747).
62. The Second Defendant should have satisfied itself that the above steps had been followed before making the decision.
63. Again, the above process does not negate expedition of decision making in response to an emergent circumstance nor the ability of the First and/or Second Defendant to act within the mandate of their responsibilities. Put another way, the above steps do not impede the decision-maker from making a decision it views necessary on a timely basis. It simply requires the affording of the right to be heard. Apart from being a process of respectful engagement, particularly where the reputation of a party may be impacted by the decision, it can facilitate good outcomes (see at Czuba (supra) at [34]). The engagement will either confirm the decision to be made or suggest a different course. The decision however remains with the decision-maker.
64. It cannot be disputed that it is within the prerogative of an elected government to make a decision about who it appoints as Chairman and/or director of a public body providing a public service. That is not the issue here. The issue is whether in making the decision to remove the Plaintiff as Chairman, he should have been forewarned and afforded an opportunity to speak in his own defence before the decision was made and announced. That did not occur here. While the evidence on whether the Plaintiff did or did not resign on 26 June 2024 may have muddied the waters, the decision was not made until 14 August 2024, after the Plaintiff had written to the Managing Director informing him that he had not resigned.
65. The failure to afford the Plaintiff the right to be heard represented a serious breach of the principles of natural justice (Koki v Inguba [2009] N3785 at [4]).
66. This ground of review is upheld.

Unreasonableness (Wednesbury)

67. While the upholding of the earlier ground of review makes further consideration of this ground of review unnecessary, however there are particular submissions I wish to address.
68. With respect to this ground of review it is submitted on behalf of the Plaintiff that the decision was unreasonable in the Wednesbury sense for a number of reasons:
    1. It did not give reasons for the decision and thus there is no rational reasoning behind the decision.
    2. The Second Defendant alleged that the Plaintiff compromised his fit and proper standing as Chairman but failed to provide the incidence that led to this damaging conclusion.
    100. By not giving reasons for its decision the decision was harsh and oppressive to the Plaintiff and not reasonably justifiable in a democratic society within the definition of s 41 of the Constitution.
    4. The decision was bias and prejudicial to the Plaintiff and made mala fides which is unreasonable.
69. The Defendants did not address this ground of review.
70. The test under the Wednesbury principle is a high one and it will apply to only a limited class of cases (Kamuta v Sode [2006] N3067).
71. The concept of unreasonableness as laid down in Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223 has a specific meaning. It is not what the Plaintiff or even the Court may consider as being unreasonable, a different thing altogether.
72. In Council of Civil Unions v Minister of Civil Service [1985] AC 374 Lord Diplock classified unreasonableness under irrationality, namely, that the decision would be irrational if it was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to it could have arrived at it.”
73. The Court is unable to conclude on the evidence that the decision defied logic or exceeded the bounds of accepted moral standards. The evidence is that the Minister and two Board members had lost confidence in the Plaintiff’s performance. On the evidence, rightly or wrongly, the Minister and the Second Defendant formed the view that the Board of PPL needed new leadership. It was a view they were, within their respective mandates, entitled to form and act upon.
74. In so concluding I acknowledge the Court’s finding that the Plaintiff was not accorded natural justice, which may raise the consideration of reasonableness. However, the Court is not able to conclude, as particularised by the Plaintiff, that the decision to remove the Plaintiff was so irrational or absurd, that it was one that no reasonable body could have made in the circumstances that presented.
75. With respect to the contention that the decision was in breach of s 41 of the Constitution, whilst the Courts in England have adopted proportionality as an independent ground of review and have found that the Court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion (R v Home Secretary; Ex parte Daly [2001] 1 AC 532; R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452), in this jurisdiction there is a controversy as to whether proportionality is an independent ground of judicial review and, further, whether s 41 only affects private rights and not public rights and interests (see Marat v Hanjung Power Ltd [2014] SC 1357; c/f Eremuge -v- Apa [2023] PGNC 421; N10572 at [24]). Without the benefit of more fulsome submissions on the question, I express no view on the matter. Nor is it necessary to do so given that I have upheld a ground of review based on breach of natural justice.
76. With respect to the issue of bias and mala fides, the Plaintiff’s pleading in his Statement in Support is as follows:

The NEC decision was bias and prejudicial towards the Plaintiff and made mala fide in that

1. The NEC caused KCH to declare on 27 June 2024 that the Plaintiff had resigned as the Chairman when the Plaintiff did not resign.
2. The NEC caused KCH to appoint on 27 June 2024 a Mal Lewis as Interim Chairman of the board when the Plaintiff has not resigned from his appointment as Chairman of the Board.

100. The NEC pre-empted the appointment process of a direction under Section 12 and Schedule 4 of the Act when it cause the KCH to advertise in June 2024 the position of vacancy of a director:
     1. When the prescribed seven (7) positions for director were occupied and there were no vacancies.
     2. When these provisions are only triggered in the event of a vacancy.

4. The NEC decision was bias and prejudicial towards the Plaintiff and made mala fides in that the NEC decision proceeded to direct KCH to start the recruitment process for candidates to fill in the position of director when the decision did not revoke the Plaintiff’s position as a Director but only as the Chairman.

77. Bias can be real or actual, imputed or apparent or apprehended bias. If the decision-making process is tainted in some way by a lack of independence or impartiality or bias, then it may also amount to a breach of the principles of natural justice. It is part of the duty to act fairly and to be seen to act fairly as provided by s 59(2) of the Constitution.
78. Mala fides is a latin concept that means bad faith. It is commonly used in legal contexts to denote dishonesty or intentional deception or fraud in dealing. In the context of a public official, it may also involve abuse of power for personal gain or an ulterior motive.
79. As is clear from the brief definitions provided above an allegation that a public authority has acted with bias or mala fides is a most serious allegation. It is one, in my respectful view, that should not be made save on the clearest of evidence and on the specific (written) instructions of a client properly informed with respect to the legal requirements for making out such a ground on the evidence (Nilkare v Ombudsman Commission (1996) SC 498; Gawi v Public Services Commission [2014] N5473; Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400).
80. The facts of this case do not permit a conclusion that the decision was tainted in some way by a lack of independence or impartiality or bias for the reasons pleaded or at all. A decision to remove the Plaintiff based on a view that he did not have the requisite skill set to continue as Chairman is not bias. The Plaintiff does not have to agree with the decision, however it is one thing to say the decision is wrong, another matter entirely, to say it was based on bias. The evidence here does not even rise to the characterisation of ‘speculation’.
81. Nor is there evidence that the decision was made in bad faith for the reasons pleaded, or at all. The evidence may suggest a lack of respect and fair treatment of the Plaintiff, however a denial of natural justice does not suggest ulterior motive, deception or dishonesty on the part of the decision-maker.
82. What happened here, bluntly put, is that the Minister lost confidence in the Plaintiff’s ability to address critical issues that faced PPL. The Second Defendant who appointed the Plaintiff for a period of three years was entitled to act on a recommendation of the First Defendant and revoke the Plaintiff’s appointment. It was not a lifetime position. The Plaintiff is entitled to disagree with the merits of the decision, however that is a separate issue. He is entitled to take issue with the process of revocation which breached his right to natural justice. The issue however is whether the pleading on bias and mala fides support the third ground of review. For the reasons given the Court is unable to conclude that it does.
83. This ground of review fails.

Should the relief sought be granted?

84. This is a critical issue on the facts of this case.
85. Having concluded that the decision is liable to be reviewed and thus open to be set aside by reason of the ground of breach of natural justice being upheld the question that remains to be answered is whether the remedies sought by the Plaintiff, including reinstatement should be granted.
86. The grant of any relief is discretionary (Order 16 r 1). Even if the grounds of review are established the Court is not obliged to grant the relief sought.
87. The relevant principles were enunciated by the Supreme Court in Mision Asiki v Manasupe Zurenuoc [2005] SC 797 as follows:

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. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.

[Emphasis in the original]

88. The Plaintiff seeks relief in the form of certiorari and injunction to support his reinstatement as Chairman of the Board of PPL.
89. Notwithstanding the revocation of the Plaintiff’s appointment as Chairman being unlawful by reason of it being infected by a breach of the principles of natural justice, I am unable to conclude that the remedies sought are necessary to avoid an injustice.
90. In so concluding I acknowledge that the Second Defendant as decision-maker should “lead by example in obeying the precepts of the Constitution and the Laws of the country”, of which the observance of the principles of fairness and natural justice is but one (Czuba at [38] per Dingake J).
91. However, the Court must be persuaded that "the interest of justice requires reinstatement" (Isaac Lupari v Sir Michael Somare (2008) N3476 (Lupari)).
92. The Court in Lupari identified at [56] to [63] the relevant principles to be considered in this regard.
93. In this case, the principles on which the Court places weight involve the relationship between the Minister, the Plaintiff and the Board members. It has broken down. The relationship has become noxious. It is unlikely to repair. Compelling the Plaintiff’s return to the role of Chairman will not improve matters. It will make matters worse at a critical time for PPL. The Plaintiff’s reinstatement will not serve the public interest. It will result in ongoing instability for the Board and PPL and further disruption to an essential public service.
94. On the Plaintiff’s evidence there are two critical issues facing PPL which he details and which on his evidence “if not addressed properly will significantly affect the core functions or business of the company as well as affect the supply of electricity to the National Capital District and surrounding area” (Affidavit of Plaintiff filed 29 August 2024 at [26] and [33]).
95. The oral submissions on behalf of the Plaintiff seeking to prove the evidence of board members with respect to the Plaintiff as wrong and the further evidence of the Plaintiff with respect to the superior qualities he is able to bring to the position of Chairman to deal with the critical issues facing PPL he identifies, respectfully, miss the point.
96. The point is, firstly, there is no persuasive evidence to suggest that the Plaintiff is the only person with the necessary skill set to assume the role of Director and Chairman. The Minister has appointed a replacement Chairman in Mr Lewis who was already a director of the Board. The Court must be mindful in exercising its discretion not to interfere in matters which call for largely administrative and/or executive judgment and remedial actions, here the appointment of a Director and Chairman of a critical public service. The Court accepts the submission of the First Defendant that the new appointee should be permitted to perform that role, the imperative to enable continuity in the functions of the Board of PPL. The position of Chairman having been filled, the Court should not interfere.
97. Secondly, and relevantly, the evidence is that Plaintiff has lost the confidence of the government to lead the Board of PPL. On the evidence of the First Defendant the Plaintiff has lost the confidence of the Minister, the Chairman of KCH and the majority of the Board of PPL. The evidence of Mr Parua, a Board member, deposes to a lack of leadership and a dysfunctional Board. There is no evidence from the remaining Directors of PPL to suggest that they support the Plaintiff or view his return as Chairman to be in the interests of PPL and the public interest. That includes a Board member who was prepared to swear to an affidavit opposing the Plaintiff from which he later resiled. Absent that evidence their silence entitles the Court to conclude that their support does not exist. In the Plaintiff’s most recent affidavit filed 4 October 2024 he accuses the Minister and the sworn evidence of current Board members (whom he would seek to lead by virtue of his reinstatement) as “cut and paste” affidavits consisting of “lies and allegations”. He deposes to Ms Parua, a fellow Director as making allegations out of “spite” and that she had otherwise conducted herself improperly and breached her duties as Director. The Plaintiff asserts that the decision of the Second Defendant is infected with bias and bad faith towards him.
98. In short, under the Chairmanship of the Plaintiff, the Board is unlikely to be a functioning board. The evidence of Mr Brunskill is that the stay order of this Court of 5 September 2024 compounded the problems at PPL “because the Board cannot function with the plaintiff as Chairman”.
99. Finally, the relief sought by the Plaintiff appears to be, at least in part, to restore what he views as damage to his personal reputation, arising out of the circumstances of his removal. That is not a consideration on which the Court should place weight.
100. In conclusion, at the time the decision was made the relationship between critical players had already broken down. It has not been repaired. The public interest lies in a functioning Board, with a Chairman who has the confidence of the Board, the Minister and the government. Rightly or wrongly, that is not with the Plaintiff. The public interest must be the paramount consideration. The relief sought by the Plaintiff will not meet the public interest nor serve any useful purpose.
101. It is submitted on behalf of the First Defendant that damages rather than reinstatement may be the appropriate remedy and that in the alternative the Plaintiff ought to be directed to amend his pleadings or file a writ claiming damages in lieu of reinstatement. Putting to one side that the Plaintiff does not seek relief in the form of damages and does not seek the Court’s leave to amend his pleadings, it is too late for such relief to be granted. The public interest would not be served by that course. While the Plaintiff’s remedy may lie elsewhere, the Court is unable to conclude that his remedies, including reinstatement, lie in judicial review. He has experienced lawyers acting for him who have ably advanced his case in these proceedings. It is a matter for him to take legal advice on such further options as may be open to him.

ORDERS

102. In consequence, the Court makes the following orders.
     1. The Plaintiff’s application for judicial review pursuant to Notice of Motion filed under Order 16 r (5) of the National Court Rules be dismissed.
     2. For the purpose of clarity, Orders 2 and 3 of the Amended Order of 5 September 2024 granting a stay and reinstatement is discharged.
     3. The Plaintiff pay the Defendants costs on a party and party basis to be agreed or taxed.
     4. Time to Abridge.

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Lawyers for the plaintiff: Jema Lawyers
Lawyers for the first defendant: Allan Mana Lawyers
Lawyer for the second and third defendants: Solicitor General