SC685
PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 11 of 2001

BETWEEN:

SIR MEKERE MORAUTA
MINISTER FOR FINANCE
First Appellant

AND:

PUBLIC OFFICERS SUPERANNUATION FUND
Second Appellant

AND:

CES IEWAGO
Third Appellant

AND:

ALOYSIUS EVIAISA
Respondent

Waigani:	Kapi DCJ., Sheehan J., Davani J.
27th March, 8 May 2002

Administrative Law – Appeal from a judicial review decision under O 16 of the National Court Rules.

Recommendation of the Board for appointment under s 12 of Public Officers Superannuation Fund Act – Whether the recommendation was secured through threat, duress or intermediation.

In a judicial review proceeding, it is no part of Courts function to dictate how the discretion to appoint the Managing Director may be exercised in a particular way under s 12 of Public Officers Superannuation Fund Act.

Counsel:
I. Molloy for the Appellants
S. Ketan for the Respondent

8th May 2002

By The Court:	This is an appeal by way of motion against the decision of the National Court in a judicial review proceeding under O 16 of the National Court Rules. Mr Eviaisa (respondent), a member of the Board of Public Officers Superannuation Fund (Board) sought the following orders in the National Court:

"2.	LEAVE be granted to apply for Judicial Review of the First Defendant’s decision to:-

(a)	refuse or fail to appoint Mr. John Ban as the Managing Director of the Public Officers Superannuation Fund pursuant to a recommendation by the POSF Board on the 12th April, 2000.

(b)	Appoint Mr. Ces Iewago as the Managing Director of the POSF on the 11th September, 2000.

3.	A DECLARATION that the POSF Board recommendation of the 4th September, 2000 recommending Mr. Ces Iewago, the Third Defendant as the Managing Director of the Public Officers Superannuation Fund Board is null and void and of no effect.

4.	A DECLARATION that Mr. Ces Iewago, the Third Defendant is not a "suitably qualified" person or candidate within the meaning of Section 12(1)(a) of the Public Officers Superannuation Fund Act, and therefore is not capable of being recommended by the Directors of the POSF Board to be appointed as Managing Director of the POSF Board.

5.	AN ORDER in the nature of certiorari quashing the decision of the Second Defendant to recommend to the First Defendant the name of the Third Defendant to be appointed as Managing Director of the POSF on the 4th September, 2000.

6.	AN ORDER in the nature of certiorari quashing the decision of the First Defendant to appoint the Third Defendant, Mr Ces Iewago as the Managing Director of the POSF on the 11th September, 2000.

7.	AN ORDER in the nature of mandamus directing the First Defendant, by himself, or through his agents and associates to perform his statutory duties under Section 12(1)(a) of the Public Officers Superannuation Fund Act to appoint Mr. John Ban as the Managing Director of the Public Officers Superannuation Fund Board in accordance with the Board recommendation of the 12th April, 2000. Such appointment to be done by way of an Instrument of Appointment or Gazettal in the National Gazette within twenty-four (24) hours of the entry of the Court Order."

It is helpful to set out at this point the relevant circumstances that led to these proceedings. Under the Public Officers Superannuation Fund Act 1990 (Act) s 12, the Minister for Finance and Treasury has power to appoint the Managing Director of Public Officers Superannuation Fund (Fund) upon recommendation of the Board.

On the 12th April 2000, the Board unanimously resolved to recommend to the Prime Minister as Acting Minister for Finance and Treasury (Acting Minister) that Mr. Ban be appointed Managing Director. There is no dispute that this recommendation was communicated to the Acting Minister. There is no evidence that the Acting Minister acted on this recommendation, either by rejecting or by appointing Mr Ban as recommended.

Subsequently, the Board on the 18th August 2000, further recommended that Mr Ces Iewago be appointed Managing Director. Upon complaints that this meeting was conducted without any proper notice in accordance with s 10 (3) of the Act, the Board met again on 4th September 2000 and after much deliberation, resolved to recommend Mr Iewego to be appointed Managing Director. The Acting Minister in the exercise of his discretion appointed Mr Iewago as Managing Director on 11th September 2000.

It was this decision that came before the National Court for review. The trial judge identified four (4) issues:

(1)	Whether Mr Iewago was appointed in accordance with the requirements under s 12 (1) (a) of the Act?
(2)	Whether the Board was obliged to advertise the position of the managing director before considering candidates for that position and recommend Mr Iewago to be appointed to that position?
(3)	Whether the recommendation of the Board for Mr Iewago to be appointed managing director was arrived at by use of force, threat, intimidation or duress?
(4)	Whether the earlier recommendation of the board of directors to appoint Mr John Ban is still available?

After having heard the matter, the trial judge made the following declaratory orders:

"1.	A declaration that the POSF Board recommendation of the 4th September 2000, recommendation Mr. Ces Iewago, the third defendant to be appointed as the managing director of the POSF is null and void and of no effect.

2.	An order in the nature of certiorari quashing the decision of the second defendant to recommend to the first defendant the name of the third defendant to be appointed as the Managing Director of the POSF on the 4th September 2000.

3.	An order in the nature of certiorari quashing the decision of the first defendant to appoint the third defendant, Mr. Ces Iewago as the managing director of the POSF on the 11th September 2000.

4.	An order in the nature of mandamus directing the first defendant, by himself, or through his agents and associates to perform his statutory duties under Section 12(1)(a) of the POSF Act to appoint Mr. John Ban as the managing director of the POSF board in accordance with the board recommendation of the 12th of April 2000. Such appointment be done by way of an Instrument of Appointment or Gazettal in the National Gazette within twenty-four (24) hours (working) of the entry of the Court Order."

The appellants have appealed against this decision on a number of grounds. It is not necessary to set out all the grounds of appeal. Counsel for the appellants has summarized the grounds as follows:

(1)	That the finding by the trial judge that there was threats, duress or intimidation by the Chairman of the Board, Mr Tarata was against the evidence and the weight of the evidence
(2)	That the trial judge erred in law in finding that the appointment of the Managing Director was null and void on the basis that there was no advertisement for the position of Managing Director.
(3)	That the trial judge erred in law in finding that the appointment of the Managing Director was null and void on the basis that the previous decision to appoint Mr. Ban had not been rescinded by the Board.
(4)	That the trial judge erred in law in finding that the Acting Minister was bound to appoint Mr Ban as recommended by the Board.

In relation to the ground (1), counsel for the respondent objects to the competency of this ground in that it involves questions of fact alone and the appellants have not sought leave of the Court. Counsel for the appellants submits that this ground raises questions of mixed fact and law and therefore does not require leave. We have considered the issue and we agree with counsel for the appellants that this ground raise mixed fact and law and it does not require leave of court. This ground is competent.

Counsel for the appellants has conceded that any decision obtained through threats, duress or intimidation is flawed and therefore void. Duress refers to compulsion under which a person acts through fear of personal suffering or confinement, actual or threatened (9 Halsbuty’s Laws, 4th Edn' para 297). Intimidation exists where a person is coerced by unlawful threats into doing or abstaining from doing something that he would otherwise have every right to do (Fleming, The Law of Tort, 6th Edn, page 659). The question before us is whether there is any evidence to support these findings. The relevant evidence on this point relates to the decision reached by the Board on 4th September 2000 when the Board resolved to recommend Mr Iewago to be appointed General Manager.

It is apparent from the evidence that appointment of the Managing Director was a hotly contested issue in the Board meeting on 4th September 2000. The evidence indicates that a fresh list of names was considered by the Board, including the names of Mr Ban and Mr Iewago. Mr Eviaisa sought the Board’s approval to recommend Mr Ban as resolved previously by the Board. On the other hand, the Chairman of the Board Mr Tarata, did not wish to recommend Mr Ban but pushed for the recommendation of Mr Iewago. This upset Mr Eviaisa and he threatened to leave the Board Meeting but was persuaded not to do so by Mr Soiat Williams.

The discussion on the recommendation of the Managing Director continued and ultimately the Board voted three to two in favour of recommending Mr Iewago. The evidence discloses lively debate, shouting and forceful exchanges. We accept the submission by counsel for the appellants that this does not necessarily result in threat, duress or intimidation. The question is whether the people who recommended Mr Iewago were threatened, intimidated and made their decision under duress. The fact that the two members of the Board voted against Mr Iewago is indicative of the fact that all the shouting and forceful debates had not in any way intimidated, threatened or compelled them to vote for Mr Iewago.

There is no evidence from the other three members of the Board that they voted for Iewago under threats, intimidation or duress. Mr Tarata did not give evidence but Mr Williams did not give any evidence that he was threatened, intimidated or acted under duress when he voted. Mr Eviaisa could not give any such evidence because clearly he did not vote for Mr Iewago.

Miss Norah Lavett the Board Secretary gave evidence that there was no threats, intimidation or duress during the meeting on 4th September 2000. This witness was cross-examined by counsel for the respondent and there is no evidence of threats intimidation or duress. In re-examination Mr Coady counsel for the appellants at the trial asked the following questions:

"Q:	Ms Lavet, during this meeting at which the recommendation for the appointment of Mr Iewago was made, did you hear the chairman threaten Mr Eviaisa?
A:	During the meeting I cannot recall any threatening words directed at Mr Eviaisa or the … .
Q:	Did you hear the chairman threaten Mr Malabung?
A:	No
Q:	Did you hear chairman threaten Mr Suari?
A:	No."

This evidence supports the contention that there was no threats, intimidation or duress on the members of the Board during the meeting on 4th September.

We are satisfied that there is no evidence to support the conclusion by the trial judge that there was threats, intimidation or duress in the decision to recommend Mr Iewago. We would allow this ground of appeal.

In addition the trial judge declared the appointment null and void on the basis that there was no advertisement for the Managing Director position. There is no dispute that there was no advertisement. However, we agree with counsel for the appellants that this was a ground not included in the judicial review and ought not to have been the subject of decision. In any case, we also agree with counsel for the appellants that there is no requirement under the Act to advertise the position before an appointment may be made. These are matters of procedure which may be introduced by the Board at its discretion. In formulating these procedures, the Board may take into account the relevant National Goals and Directive principles (see s 25(2) of the Constitution). There is no evidence that the Board approved this procedure. We would allow this ground of appeal.

Furthermore the trial judge held that the decision to appoint Mr Iewago is invalid in that the recommendation to appoint Mr Ban on 12th April 2000 had not been rescinded and still stands. We agree with counsel for the appellants that this was not a ground upon which judicial review was sought and therefore ought not to have been dealt with. Alternatively, we also accept the submission of counsel for the appellants that the proceedings of the Board on 4th September clearly overtook and superseded the decision on 12th April. There is no legal impediment to the variation of the previous decision. We would allow this ground of appeal.

We do not find it necessary to deal with the issue of delay in view of our conclusion on the grounds of appeal above.

Similarly, it may not be necessary to deal with the order directing the Acting Minister to appoint Mr Ban. However, we feel that an important error has been demonstrated in respect of this order, we wish to clarify the law for future guidance. The trial judge made an order in the nature of mandamus directing the Acting Minister, by himself, or through his agents and associates to perform his statutory duty under s 12 (1) (a) of the Act to appoint Mr Ban as the Managing Director of the Fund in accordance with the Board recommendation of the 12th April 2000. Such appointment be done by way of an Instrument of Appointment or Gazettal in the National Gazette within twenty four hours of the entry of the court order.

We are of the opinion that the trial judge erred in making this order. The most he could have ordered was to direct that the Acting Minister to reconsider the appointment in accordance with his lawful discretion under s 12 (1) (a) of the Act. He erred when he further ordered that the Acting Minister was bound to appoint Mr Ban. The law is well settled that:

"Judicial review is concerned not with the decision but the decision making process" (Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

The jurisdiction of the court is to ensure that proper procedures are followed. Where a person or authority is vested with a discretionary power, it is not part of the court’s function to dictate how that power should be exercised. The court will not impose its decision on the decision-maker. 

In the present case, the Acting Minister is empowered whether to accept or reject the Board’s recommendation. We conclude that the trial judge has usurped that power. Instead of ensuring that the decision-making process is followed, the court has ordered the Acting Minister to exercise his discretionary power in a particular way. The court has thereby fallen into error, and the order that the Acting Minister appoint Mr Ban as Managing Director should be quashed.

We would allow the appeal and quash the decision of the trial judge with costs to the appellants.
______________________________________________________________
Lawyers for the Appellants	:	HENAO LAWYERS
Lawyers for the Respondent	:	KETAN LAWYERS