SC2038
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 24 OF 2019

ANDY HAMAGA, ENDORSE AYAGALI, EGA YALE,
IGIBE TOGORIAGO, LUYABE URUBU, JOHN KOLOMA,
WILLIE WAGIMA, TOM PAKATA, ERIC HAROLI & AYABE YULUPE
Appellants

V

ANGAI WALAWI, PEPERAYA KUPALI, STEVEN IPULE,
HARRY AYUWALE & IPANDA DELAKO
Respondents

ON THE PAPERS: Gavara-Nanu J, Cannings J, Hartshorn J

2020: 10th, 27th November

JUDICIAL REVIEW – decision of Minister to endorse appointment of members of management board of a special purpose authority – whether procedures for appointment followed. 

The National Court upheld an application for judicial review of the decision of the Minister for Inter-Government Relations to endorse the appointment of the appellants as members of the management board of a special purpose authority. The National Court held that the Minister’s decision was non-compliant with the constitution of the special purpose authority in two respects: (1) the Minister failed to give any guidelines as to the procedures for appointment and (2) there was no oversight provided by the Department responsible for the appointments. The National Court quashed the Minister’s decision as being void and ordered the Minister to give directions for the calling and conduct of meetings of landowner groups. The appellants appealed against that decision on the ground that the Court had introduced into the constitution of the special purpose authority requirements that did not exist. 

Held:

(1)	The National Court properly inferred from the vague and general terms of the constitution of the special purpose authority that, to give practical effect to the role of the Minister and the relevant Department, it was necessary for the Minister to give specific guidelines as to the procedures for appointment and to insist on tangible oversight of the process by the relevant Department. 

(2)	The National Court did not err in its interpretation and application of the provisions of the relevant constitution and in the exercise of discretion as to relief granted to the successful applicants for judicial review. 

(3)	The appeal was dismissed, with costs.

Cases Cited

The following cases are cited in the judgment:

Peter v South Pacific Brewery Ltd [1976] PNGLR 537
Walawi v Isifu & Hamaga & Ors (2019) N8034
Walawi v Isifu & Hamaga & Ors, OS (JR) No 600 of 2018, 16.08.19, unreported

APPEAL

This was an appeal against a decision of the National Court, granting an application for judicial review. 

Counsel

A W Jerewai, for the Appellants
S Liria, for the Respondents

27th November, 2020

1.      BY THE COURT: This is an appeal against the decision of the National Court to uphold an application for judicial review by the respondents, Angai Walawi and others, of the decision of the Minister for Inter-Government Relations to endorse the appointment of the appellants, Andy Hamaga and others, as members of the management board of the Hides PDL 7 Special Purpose Authority. His Honour held that the Minister’s decision was non-compliant with the constitution of the special purpose authority in two respects: (1) the Minister failed to give any guidelines as to the procedures for appointment; and (2) there was no oversight provided by the Department responsible for the appointments. The National Court quashed the Minister’s decision as being void and ordered that the Minister give directions for the calling and conduct of meetings of landowner groups (Walawi v Isifu & Hamaga & Ors (2019) N8034). 

2.     The appellants have appealed against that decision on the ground that the primary Judge erred in law by engaging in judicial legislation, in that his Honour introduced into the constitution of the special purpose authority, requirements that did not exist. 

3.     The appeal was heard on the papers in accordance with the Registrar’s Practice Direction No 3 of 2020. 

DID THE PRIMARY JUDGE ERR IN LAW?

4.     The relevant provision of the constitution of the Special Purpose Authority is Section 7 (manner of appointment of the board), which states:

(1)	The Minister shall notify the nominating bodies, in writing, to nominate their representatives.

(2)	Nominating bodies under Section 5(2)(a), (b), (c), (d), (e), (f) and (g) shall nominate their representatives with the oversight of the Department.	

(3)	Nominations from the respective nominating bodies shall be submitted to the Komo Rural Local-level Government Assembly.

(4)	The names of the nominees of the respective nominating bodies, including the names of the members appointed under Section 5(2)(h) shall be sent, in writing, to the Minister by the President of the Komo Rural LLG.

(5)	The minuted manner and proceedings of the respective body that nominated members under Section 5(2)(a), (b), (c), (d), (e), (f), (g) and (h) shall be submitted to the Minister by the President of the Komo Rural Local-level Government. 

(6)	The Minister shall endorse for appointment the nominees list provided by the President of the Komo Rural LLG subject to Subsection (5). 

(7)	All members of the Board endorsed for appointment by the Minister shall have their names published in the National Gazette.

5.     We acknowledge the appellants’ primary submission, which is that Section 7 contains no express requirement that the Minister notify landowner groups of the requirements for a meeting of its members to nominate their representatives, such as who is to call the meeting, the venue of the meeting, the date and time of the meeting, the agenda and who should attend the meeting. It is arguable that his Honour has read too much into Section 7 and engaged in judicial legislation and gone beyond the proper role of the judge, which is to interpret and apply the law, not make law (Peter v South Pacific Brewery Ltd [1976] PNGLR 537). It is arguable that his Honour introduced procedural requirements which did not exist. 

6.     However, in our view, having regard to the evidence before the National Court, his Honour did not err in his interpretation and application of Section 7. His Honour engaged in a proper process of interpretation and did not engage in judicial legislation. 

7.       His Honour had already indicated in an earlier ruling in the same proceeding, (Walawi v Isifu & Hamaga & Ors, OS (JR) No 600 of 2018, 16.08.19, unreported), that the requirements in s 7(1) for the Minister to “notify, in writing, the nominating bodies to nominate their representatives” and in s 7(2) for nominating bodies to “nominate their representatives with the oversight of the Department” were vague and that evidence should be adduced as to how those requirements were to be met. His Honour clearly indicated in that ruling that the constitution did not sufficiently set out the procedure, by stating:

[t]here was a vague reference to Minister notifying the “nominating bodies, in writing, to nominate their representatives” and secondly, there is a vague reference to the nomination of the nominees to be “with the oversight of the Department”. For those reasons, the matter was allowed to proceed further for the parties to tender evidence to establish whether the Minister did issue a notice to the nominating bodies (landowner groups) to nominate a representative under s 7(1) and if he did, whether the notice that he issued set out the manner in which a meeting of the nominating bodies (landowner groups) should be held to appoint a representative. Secondly, if there is evidence to establish that the meetings held by either party was with the oversight of the Department.

8.     We note that there was no appeal against that ruling of 16 August 2019, despite it forming the basis for the judgment under appeal, of 30 September 2019. 

9.     The very good reason, and the need, for the primary Judge to introduce into the requirements of s 7, extra requirements that were not expressly stated, were amply demonstrated by the facts of the case. Two competing landowner groups (the appellants and the respondents) had different meetings on different dates at different venues. Confusion reigned. The Special Purpose Authority was dysfunctional. That came about because of the Minister’s error in giving no guidelines or instructions to the landowning groups on how they were to nominate their representatives, and simply endorsing one group for appointment without insisting on any oversight by the Department of Provincial and Local-level Government Affairs.

10.     By interpreting s 7 of the constitution the way that he did his Honour has by a process of rational interpretation of the governing law, brought certainty into a previously uncertain state of affairs. His Honour properly inferred from the vague and general terms of the constitution of the special purpose authority that, to give practical effect to the role of the Minister and the relevant Department, it was necessary for the Minister to give specific guidelines as to the procedures for appointment and to insist on tangible oversight of the process by the relevant Department. 

11.     His Honour did not err in his interpretation and application of the provisions of the relevant constitution or in the exercise of discretion as to relief granted to the successful applicants for judicial review. The appeal will be dismissed, with costs.

ORDER

(1)	The appeal is dismissed.

(2)	The order of the National Court of 30 September 2019 in OS (JR) No 600 of 2018 is affirmed.

(3)	Any orders of the Supreme Court staying those National Court proceedings or otherwise preventing the implementation of that order of the National Court, are dissolved.

(4)	The appellants shall pay the respondents’ costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
__________________________________________________________________
Jerewai Lawyers: Lawyers for the Appellants 	
Liria Lawyers: Lawyers for the Respondents