SC1385

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

S.C.M. NO 13 OF 2014

BETWEEN

HON PETER O'NEIL
First Appellant

AND:

SIR PUKA TEMU – MINISTER FOR THE PUBLIC SERVICE
Second Appellant

AND:

LOUJAYA TONY – MINISTER FOR COMMUNITY DEVELOPMENT
Third Appellant

AND:

ANNA SOLOMON – ACTING SECRETARY – DEPARTMENT OF COMMUNITY DEVELOPMENT
Fourth Appellant

AND:

SIR MICHAEL OGIO – G.C.M.G., K St J – GOVERNOR GENERAL OF PAPUA NEW GUINEA
Fifth Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Appellant

AND:

JOSEPH KLAPAT
First Respondent

AND

PUBLIC SERVICES COMMISSION
Second Respondent

Waigani: Salika DCJ, Sawong and Logan JJ
2014: 25 August; 29 August

PRACTICE AND PROCEDURE – Appeal – Application for dismissal for want of prosecution – Absence of explanation by affidavit by appellant for failure to prosecute appeal – Where grounds of appeal implicitly concede violation of procedure prescribed by s 193(1D) of the Constitution and the Public Services (Management) Act 1995 for suspension of Permanent Head of Department – Where grounds of appeal seek to challenge exercise of discretion to grant relief in the nature of certiorari – Where grounds of challenge not compelling. 

HELD– Appeal dismissed for want of prosecution.

PRACTICE AND PROCEDURE – Suits against the Head of State or the Governor-General in respect of a decision made on advice – requirement of s 3 of Claims by and Against the State Act 1996 that the Attorney General be named as nominal defendant in respect of such suits – Where Governor-General named personally as party in breach of this requirement.

Cases Cited:

Papua New Guinea Cases
House v R (1936) 55 CLR 499

Overseas Cases
SZQBN v Minister for Immigration and Citizenship (2013) 297 FCR 297

Counsel: 

Mr A. Baniyamai, for the First Appellant
Mr B Lai, for the First Respondent

29th August, 2014

1. THE COURT: On 11 January 2012, acting on the advice of the National Executive Council (NEC), His Excellency the Governor-General purported to suspend the first respondent, Mr Joseph Klapat from his position as Departmental Head of the Department of Community Development. It is necessary to state, "purported", because Mr Klapat challenged the lawfulness of the suspension decision by way of a review proceeding in the National Court. On 21 March 2014, the National Court (Makail J) declared that suspension decision to be illegal and made an order in the nature of certiorari quashing that decision.

1.	The appellants have appealed to the Supreme Court against the orders made in the National Court. Mr Klapat contends that they have not prosecuted their appeal with due diligence having regard to the requirements in the Supreme Court Rules 2012 and that, accordingly, the appeal should be dismissed for want of prosecution. Alternatively, he seeks an order that the appeal should be dismissed because it is frivolous or vexatious. In the result, it has proved unnecessary for us to consider whether dismissal on the latter ground is warranted.

2.	The appeal was filed promptly, on 27 March 2014. The notice of motion initiating the appeal was amended on 1 April 2014. By amendment, the relief sought included an order staying the operation of the National Court's orders, pending the hearing and determination of the appeal, including an order restraining Mr Klapat from holding himself out as Departmental Head. The stay application was fixed for hearing on 22 April 2014 before the Chief Justice, in his capacity as a single judge of the Supreme Court. In the meantime, Mr Klapat, initially by his lawyer on 11 April 2014 and then in writing in a document signed by him and filed in court, gave a comprehensive undertaking, which materially included an undertaking that he would not, pending the hearing of the appeal, hold himself out as Departmental Head. On 22 April 2014, the matter was adjourned to 29 April 2014. On that day, it was further adjourned, because the Chief Justice was unexpectedly not available that day. 

3.	Since 29 April 2014, the appellants have not sought the re-listing of the matter, be that for directions or otherwise. They have neither sought an appointment with the Registrar for the settling of an appeal book index nor prepared and served the same in draft on Mr Klapat's lawyers. They have not even had the courtesy, by their lawyers, of responding to a polite written inquiry of 6 June 2014 by Mr Klapat's lawyers in which the inactivity was highlighted and orders and directions in relation to the appeal, including an order for its expedited hearing, which it was suggested might consensually be proposed to the Court, were set out. They have done nothing. Even after the present application for dismissal was filed on 3 July 2014 and promptly served on their lawyers, they have done nothing to progress the appeal. Further, they have offered no explanation by way of affidavit for this inactivity.

4.	The merits of an appeal are always relevant in relation to an application for its summary dismissal for want of prosecution. While there can be no hard and fast rule, as a general proposition, the greater the prospective merit in the grounds of appeal, the more inclined the Court will be not summarily to dismiss it, even if the explanation provided for delay is not especially compelling. That is particularly so where the delay has not occasioned a respondent or sometimes also a non-party serious prejudice. But there must be some explanation. Here there is none.

5.	It was put for Mr Klapat that the grounds of appeal go only to asserted errors in the exercise of the discretion to grant relief to him and, by necessary implication, entail a concession that the learned primary judge was correct in concluding that the suspension decision was unlawful. That there was no challenge to this conclusion of the primary judge was conceded on behalf of the appellants on the hearing of the dismissal application. 

6.	As a Departmental Head and thus a person who reported directly to a Minister, Mr Klapat was entitled to the benefit of not being suspended except in accordance with the mandatory procedure laid down in s193(1D) of the Constitution. The primary judge concluded (at paragraph 59) that, despite the procedure clearly laid down by this provision and further detailed in the Public Services (Management) Act 1995, the Minister had bypassed both the Minister for the Public Service and the Public Service Commission and proceeded directly to the NEC with his suspension submission. It is this conclusion which the appellants concede to be correct. 

7.	It is to be remembered that the procedure for the suspension or dismissal of Departmental Heads and other high ranking public servants having direct reporting responsibilities to these in high political office is laid down not just for their personal benefit but in the public interest. Such public servants are expected to give in good faith and for the benefit of the Nation, frank, candid and fearless advice within their area of responsibility, irrespective of whether this serves the transient political interests of the Minister to whom they directly report. They are also expected faithfully to implement, to the best of their ability, the lawful policies of the government of the day and to offer advice about those policies. The prescribed procedures afford them a measure of protection from arbitrary Ministerial retaliation for doing their duty. We mention this because it underscores the seriousness of the departure from lawful public administration entailed in the conclusion reached by the primary judge.

8.	In the face of this now conceded departure from lawful public administration, Mr Klapat was entitled, almost as of right, to the relief granted by the National Court: see the recent judgment of the Full Court of the Federal Court of Australia in SZQBN v Minister for Immigration and Citizenship (2013) 297 FCR 297 in which is canvassed analogous authority concerning the exceptional circumstances in which, though illegality is proved, a constitutional (previously termed prerogative) writ may be refused on discretionary grounds.

9.	It is apparent from his reasons for judgment that the learned primary judge well appreciated that the granting of relief entailed the exercise of a discretion. In deciding whether to grant relief, his Honour weighed up factors such as delay and asserted disentitling conduct on Mr Klapat's part. His Honour concluded that there was nothing proved that would warrant refusal of the relief sought.

10.	In the face of this approach, the grounds of appeal have the flavour of an endeavour to rehearse again the relative merits of an exercise of discretion, rather than a challenge based on errors in the exercise of discretion of the kind described in House v R (1936) 55 CLR 499. It is not, however, necessary to reach any concluded view about whether the appeal should be allowed on any of the grounds pleaded, only that they are not so compellingly likely to succeed so as exceptionally to excuse what is otherwise studied and unexplained delay in the prosecution of the appeal.

11.	For these reasons, we have concluded that the appeal must be dismissed for want of prosecution. That conclusion says nothing about whether there is cause for the suspension of Mr Klapat, only that there is no longer any challenge to the quashing of the earlier decision to suspend him. If he is to be suspended, it must be according to law. The determination of the appeal by its dismissal means that Mr Klapat is no longer bound by the undertaking which he gave to the court.

12.	In conclusion, we feel duty bound to draw to the attention of the parties and, through these reasons for judgment, the wider profession, a serious lapse in practice and procedure originally committed by those acting for Mr Klapat but repeated by others by joining His Excellency the Governor-General personally as a party in the proceedings. This should not have occurred. His Excellency acted on advice in making his decision. The proper party in respect of a decision of the Head of State or the Governor-General acting on advice is the Attorney-General as nominal defendant for Her Majesty or His Excellency: s 3 Claims by and Against the State Act 1996. This express statutory provision reflects the long settled position at common law. This lapse in practice and, we add, protocol, is to be lamented.

13.	Also to be lamented is the failure of the parties correctly to spell the surname of the current Prime Minister in the title of the proceedings ("O'Neil"[sic] should be "O'Neill").

14.	As the appeal is being dismissed, there is no need to make orders directed to the correction of these errors. It would not, though, be appropriate, given that His Excellency ought never to have been joined personally as a party, to make any order as to costs against him.
_________________________________________________________

Baniyamai Lawyers: Lawyers for the First Appellant
B. Lai: Lawyer for the First Respondent