SC1386

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA No 42 of 2014

BETWEEN

ANDREW YAMANEA
Applicant/Appellant

AND

DR VELE PAT ILA'AVA
First Respondent

AND:

PRIME MINISTER PETER O'NEILL as Chairman of the NATIONAL EXECUTIVE COUNCIL
Second Respondent

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

PRACTICE AND PROCEDURE – Appeal – Decision of Single Judge of Supreme Court of PNG refusing to stay, pending the determination of the appeal, the orders of the National Court under appeal summarily dismissing proceedings for declaratory and injunctive relief instituted by the appellant and discharging interlocutory injunctions obtained ex parte by the appellant – Decision of single judge turned on a discretionary value judgement as to the balance of convenience – No error of principle and refusal of stay reasonably open.

HELD– Appeal dismissed 

Cases Cited: 

Papua New Guinea Cases
Nil

Overseas Cases

House v R (1936) 55 CLR 499

Counsel: 

Ms A. Kimbu, for the Appellant
Mr A. Baniyamai, for the First Respondent
Mr T. Tanuvasa, for the Second Respondent

29th August, 2014

1. THE COURT: The National Agriculture Quarantine and Inspection Authority Act 1997 (NAQIA Act) establishes the office of Managing Director of the statutory authority (the Authority) known as the National Agriculture Quarantine and Inspection Authority: s 20(1). That Act further provides that the appointment, suspension and dismissal of the holder of that office is governed by the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSAACO Act): s 2(1) NAQIA Act. 

2. In 2012, the appellant, Mr Andrew Yamanea MBE (Mr Yamanea), was appointed to that office of Managing Director by His Excellency the Governor-General upon advice from the National Executive Council (NEC) following the process of selection, recommendation and appointment for which the RSAACO Act and the NAQIA Act, read in conjunction, provide. More detailed provision in respect of the terms and conditions of Mr Yamanea's appointment was made by a contract between him and the Authority made on 10 May 2012. Those contractual provisions were, as they had to be, subject to such express provision as there was in the Constitution or an Act. Nominally, the contract provided that Mr Yamanea would hold the office of Managing Director of the Authority for a period of four years on and from 10 May 2012: cl 4. It is necessary to state "nominally" because one basis upon which has appointment might earlier be terminated was his having attained the normal retirement age of 60: item 19.3(f), contract terms and conditions. That contractual provision reflects the effect of s 56(2)(b) of the Public Services (Management) Act 1995, which provides that officers of the Public Service shall retire at 60 years of age. 

3. By a letter dated 21 November 2013 under the hand of its Chairman, the Authority gave notice to Mr Yamanea of an intention to retire him from his office on 25 January 2014 by reason of his attaining his 60th birthday. Mr Yamanea replied to this letter by a letter dated 20 January 2014 addressed to the Authority's Chairman and copied to the Minister administering the NAQIA Act, the Chairman of the Public Service Commission and other members of the Authority's board, Mr Yamanea disputed that he would attain age 60 on 24 January 2014. He also canvassed other issues in this letter but it is not necessary to refer to these. In relation to his age, Mr Yamanea asserted in his letter that he was born on 24 January 1958. He also stated that he had no formal record of birth or birth certificate, had adopted 24 January 1954 via a statutory declaration and, in May 1990, had changed his date of birth to 24 January 1958 via another statutory declaration.

4. On 17 February 2014 the NEC resolved that Mr Yamanea's appointment should be terminated, that a Mr Joel Alu be appointed to act as Managing Director for 3 months from 5 February 2014 or until a permanent appointment was made and that the Governor-General should be advised to so decide.

5. On 19 February 2014, Mr Yamanea served a notice under the Claims by and Against the State Act 1996 of an intention to bring proceedings against the State in respect of his termination. That same day, by originating summons, he instituted proceedings seeking, notably, a declaration that he had not attained 60 years of age and injunctive relief. He also purported to add the Authority as second plaintiff. The Chairman of the Authority and the "National Executive Council" were named as defendants.

6. The following day, 20 February 2014, on an ex parte application, Mr Yamanea managed to secure from the National Court an order which purported to restrain the NEC from resolving to terminate his appointment. That order was taken out on 24 February 2014 and served that day on the Secretary to the NEC, the Government Printer and at Government House. As mentioned, the relevant NEC resolution had by this stage already by then been made (on 17 February). We cannot help but interpolate that, if ever a case highlights the need for careful attention by the legal profession to proper parties, to the truly exceptional occasion for seeking injunctive relief ex parte, why the application cannot be made on notice, even if abridged, and the related difficulties that can be occasioned for the administration of justice by the absence of a contradictor it is this case.

7. On 3 March 2014, again ex parte, Mr Yamanea secured a variation of the order made on 20 February 2014. This varied order stayed the appointment of Mr Alu as Acting Managing Director. That appointment decision and Mr Yamanea's termination had in fact been made on 24 February. The Court also directed that the defendants be served forthwith. Quite why the named defendants had not by then been served or why it was again, some 2 weeks after the proceeding was instituted, necessary to move the Court ex parte is not apparent to us. 

8. Be this as it may, there were further extensions of this later ex parte order and, on 14 March 2014, an amendment to the originating summons so as to seek a declaration that the NEC decision of 17 February 2014 with respect to Mr Yamanea's termination was "null and void".

9. The question of whether further to extend the ex parte orders came before the National Court (Kandakasi J) on 19 March 2014. On this occasion, there was an appearance for the defendants. For reasons which he delivered ex tempore, discharged the ex parte orders and adjourned the proceedings for directions the following month. 

10. On 1 April 2014, Mr Yamanea sought and obtained leave to appeal against the discharge of the ex parte orders. On 7 April 2014, the proceedings again came before Kandakasi J, for directions and for the hearing of an application for their summary dismissal. His Honour upheld that application, again for reasons delivered ex tempore. Mr Yamanea has appealed against that summary dismissal order, as well as the discharge of the ex parte orders.

11. This lengthy chronology is a necessary preamble to the occasion for this judgment. That occasion is found in an "appeal" by Mr Yamanea against an order made by a single judge of the Supreme Court (Makail J) on 23 April 2014 dismissing an application which he had made on 14 April for a stay of the operation of the orders which were under appeal. The procedure adopted by Mr Yamanea to challenge the order of dismissal is that found in Order 11, rules 25 and 26, which assimilate a challenge before a Full Court of the Supreme Court against certain directions and orders made by a single judge of the Court with the practice and procedure provided by Order 10 in respect of appeals. It is not necessary for the purpose of resolving his challenge to determine whether the procedure he adopted is apt, having regard to all of the sources of jurisdiction which he sought to invoke before the learned primary judge. We shall assume that the challenge he makes is open. 

12. We shall also assume, as did the primary judge, albeit after lengthy consideration of the relative merits of the point, that, in the circumstances, a single judge of the Supreme Court possessed jurisdiction to, in effect, restore he operation of the ex parte orders which had been made but later discharged by the National Court. We make that assumption because, on a close study of the ex tempore reasons of the primary judge, his Honour's dismissal of the application turned neither on want of jurisdiction nor even on the absence of Mr Yamanea's having an arguable case to be dealt with on the appeal but rather on a value judgement which he made as to where the balance of convenience lay. His Honour was conscious that dismissing the application would leave the Acting Managing Director, Mr Alu in place, whereas allowing the application would displace him and, in effect, restore Mr Yamanea to office pending the hearing and determination of the appeal (or further earlier order).

13. A person who would challenge such a judicial discretionary value judgement must show an error of principle or some other error of the kind described by the High Court in the Australian case, House v R (1936) 55 CLR 499. Mr Yamanea was unable to do this. The considerations for and against restoring him to office were not all one way.

14. For example, one theoretical possibility was that his appeal may have succeeded in whole or only in part, perhaps by way of overturning the summary dismissal but not the discharge of the ex parte injunctions. If so, and assuming in his favour that he overcame questions as to whether he had joined the correct defendant parties, he may or may not persuade the National Court at trial that the question of his true age was a jurisdictional fact in relation to any compulsory retirement and one apt for declaratory relief by that court. Even if that court embarked on the question of deciding his true age, the evidence, even as disclosed by what has been filed thus far in the proceedings, is by no means all one way. 

15. Obviously, a person can have only one date of birth. We do not underestimate the difficulty which a person born in a remote village during the period of Australian Territory administration might have in having his or her birth formally registered shortly after the event so as to be in possession of a birth certificate. Even so, annexed to an affidavit sworn by Mr Russell Semoso, the Human Resources Manager within the Department of Agriculture and Livestock, is a series of documents held on Mr Yamanea's personnel file in that department's records. These documents are from an era in the late 1970's when Mr Yamanea worked within that department before commencing with what is now the Authority. The earliest such document is a certificate dated 18 January 1975 under the hand of the Chief Executive Officer of the Wapenamanda Local Government Council certifying that Mr Yamanea's date of birth is 24 January 1954. Each of the other annexed documents from this era record this as his date of birth. These include a copy (barely legible in the copy in the appeal book) of his Diploma of Tropical Agriculture with Honours, apparently a three year course. As against this, there is the assertion of a 1958 birth date in Mr Yamanea's statutory declaration made in 1990.

16. To overturn the order of a judge of the Supreme Court dismissing the stay application it would not be enough that we might have come to a different conclusion as to where the balance of convenience lay. Materially, we would have to be persuaded that, on the evidence before him, it was unreasonable for his Honour to have concluded that the balance of convenience lay against granting the stay sought by Mr Yamanea. This we are unable to do. Quite apart from the absence of a compelling case on the facts in relation to the age controversy, there is the public interest in a potential disruption in the leadership of the Authority, which performs an important role for the benefit of all in Papua New Guinea to consider, as well as the proposition that, if all is ultimately said and done in Mr Yamanea's favour at trial, damages may be an adequate remedy.

17. It follows that Mr Yamanea's application must be dismissed, with costs.

18. Conscious as we are of our constitutional duty ( s 158(2) of the Constitution to dispense justice and that Mr Yamanea has been honoured by Her Majesty for his service to the Nation in carrying out his duties with the Authority, we feel compelled to add the following. A compulsory age limit for retirement can, for those who derive much satisfaction from public service, who are still in robust good health and who feel they still have much to contribute, work a harsh result in some cases. In others, such a limit can be a kindness. Until recently when the law was changed, judges, too, had to retire at age 60 (unless, exceptionally, their term of office was extended to age 65). Even after the change in the law, compulsory, age based retirement remains for judges; it is just that the maximum age has been increased. It may be that similar considerations to those which moved Parliament to amend the judicial retirement age might move Parliament to fix some later retirement age for those in the Public Service. It is not for judges to advocate, much less make such changes, only to apply the law as it is to the facts found. And the law at the moment is that those in the Public Service must retire at age 60. Mr Yamanea and those advising him need to make a careful, objective assessment of prospects of success not just of the appeal to come but of any trial which might follow and to decide whether the prospect of success is such that it is worth chancing the alternative of the enjoyment of a retirement or perhaps private sector consultancy work, blighted by the burden of having to pay yet further costs orders, as well as his own legal expenses.
________________________________________________________

Greg Manda Lawyers: Lawyers for the Appellant
Allan Baniyamai Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyers for the Second Respondent