SC2644
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 26 OF 2024 (IECMS)

MAJOR GENERAL MARK GOINA, DMS, CBE
Appellant

V

GILBERT TOROPO
First Respondent

THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Toliken J, Kaumi J, Narokobi J
2024:  22nd July
2024: 29th October

PRACTICE AND PROCEDURE – Whether Appellant was directly affected by the judicial review proceedings in the National Court and should have been served the Notice of Motion filed under Order 16 Rule 5(1) of the National Court Rules pursuant to Order 16 Rule 5(2) of the said Rules.
PRACTICE AND PROCEDURE – The effect of non-compliance with Order 16 Rule 5(2), (5) and (6) of the National Court Rules. 

This is an appeal under Order 10 of the Supreme Court Rules arising from a judicial review proceeding instituted under Order 16 rule 3 of the National Court Rules 1983 (NCR) by the First Respondent against the Second and Third Respondents. The Appellant was not a party to the National Court proceedings. He appeals the decision of the National Court pursuant to s 17 of the Supreme Court Act, Ch 37 on the basis that he should have been served the Notice of Motion filed under Order 16 Rule 5(1) as he was a person that was directly affected by the proceedings in the National Court. Service on a person directly affected is required by Order 16 Rule 5(2) of the NCR.

Held:

(1)	The Appellant was a person who was directly affected for purposes of Order 16 Rule 5(2) of the NCR in the judicial review proceedings in the National Court.

(2)	In upholding the Appeal, the Notice of Motion filed under Order 16 Rule 5(1) of the NCR after leave for judicial review had been granted, should have been served on the Appellant under Order 16 Rule 5(2) of the NCR as he was a person directly affected by the proceedings in the National Court. 

(3)	The effect of the failure to comply with Order 16 Rule 5(2) of the NCR resulted in the Appellant not being afforded his right to be heard under s 59 of the Constitution.

(4)	There was also non-compliance with Order 16 Rule 5(5) and (6) of the NCR.

(5)	The requirements of Order 16 Rules 5(2), (5) and (6) of the NCR are mandatory and consequently the decision of the Primary Judge is set aside for their non-compliance, and the matter remitted to the National Court, for re-hearing of the substantive judicial review with the further order that the First Respondent serve the Appellant the Notice of Motion filed under Order 16 Rule 5(1) of the NCR prior to the hearing of the substantive judicial review. 

Cases Cited
Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886
Yanta Development Association Inc v Piu Land Group Inc (2005) SC798

Legislation Cited
Constitution
National Court Rules 1983
Supreme Court Act 

Other Materials Referred to
Michael A NTumy Administrative Law of Papua New Guinea (CBS Publishers & Distributors: New Delhi, 2002)

Counsel
Mr D Dusal, for the Appellant
Mr N Kopunye, for the First Respondent
Mr P Othas, for the Second and Third Respondents

29th October 2024

1.	BY THE COURT: This is an appeal under Order 10 of the Supreme Court Rules arising from a judicial review proceeding instituted under Order 16 rule 3 of the National Court Rules 1983 (NCR) by the First Respondent against the Second and Third Respondents. The Appellant was not a party to the National Court proceedings. He appeals the decision of the National Court pursuant to s 17 of the Supreme Court Act, Ch 37 on the basis that he should have been served the Notice of Motion filed under Order 16 Rule 5(1) of the NCR as required by Order 16 Rule 5(2) of the same Rules as he was a person that was directly affected by the proceedings in the National Court.

BACKGROUND

2.	The background to the proceeding is not at issue. The Appellant was appointed on 21 December 2021 as the Commander of the Papua New Guinea Defence Force by the Second Respondent for a term of four (4) years. The decision of 21 December 2021 that appointed him also revoked the appointment of the First Respondent as the Commander of the Papua New Guinea Defence Force. The decision was successfully challenged by the First Respondent in the National Court in OS (JR) No 177 of 2021. The Appellant was not named as a Defendant in those proceedings in the National Court, despite his appointment being revoked. 

STANDING AND APPEAL GROUNDS

3.	The Appellant’s standing to appeal is not disputed by the Respondents. In accepting the authority relied on by the appellant, Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886, we see no jurisdictional impediment to the Appellant and consider the substantive grounds of the appeal he raises.

4.	The appeal is as of right as it raises questions of mixed fact and law against the decision of the primary judge (s 14(1)(b), Supreme Court Act). In saying this, it must be made clear that the appeal does not allege that the decision of the primary judge was wrong. His contention was that the primary judge should have identified his interests and directed that he should be served all relevant documents in the judicial review. 

5.	The numerous appeal grounds relate to the issue of whether the trial judge fell into error by not complying with Order 16 rule 5(2), (5) and (6) of the NCR after leave for judicial review was granted. Such failure the Appellant contends in his appeal grounds, lead to him being denied natural justice under s 59 of the Constitution. Rule 5 of Order 16 of the NCR states:

5. Mode of applying for judicial review (UK 53/5)
(1) Subject to sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court.
(2) The notice of motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the notice of motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in it for the hearing.
(4) Within 21 days after grant of leave the notice of motion shall be allocated a date of hearing by the Registrar after consultation with the parties.
(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion must be filed before the notice of motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the notice of motion.
(6) If on the hearing of the notice of motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person. 

 (Emphasis provided)
 
6.	A related provision is Order 16 Rule 9 of the NCR. That provision provides that a person who was not served the Notice of Motion may be allowed to be heard. No issue is raised in the appeal on this aspect, but we point out its existence and relevance in situations such as the present case.

7.	The Appellant seeks the following orders in his Appeal:

(a)	The Appeal is upheld.
(b)	The decision of the National Court of 14 May 2024 in proceedings OS (JR) 177 of 2021 (IECMS) – Gilbert Toropo – vs – National Executive Council and Attorney General as nominal Defendant for an on behalf of the Governor General pursuant to s 3 of the Claims By and Against the State Act be quashed and set aside.
(c)	The Appellant is joined as Fourth Defendant in the National Court proceedings.
(d)	In lieu of Orders 3(a) and (b) and pursuant to Section 16(b) &(c) of the Supreme Court Act, the National Court Judgment of 14 May 2024 in OS (JR) No. 177 of 2021 be modified as follows – 

(i)	The First Respondent’s application for judicial review in the Court below insofar as it relates to the decision of the National Executive Council to advise the Head of State to revoke the First Respondent’s appointment as the Commander of the Papua New Guinea Defence Force and appointing the First Respondent as High Commissioner of Papua New Guinea to New Zealand dated 15 December 2021 is granted.
(ii)	The Order of the National Court dated 14 May 2024 specifically term 1(a)(ii) relating to and directly affecting the decision of the National Executive Council dated 15 December 2021 to advise the Head of State to appoint the Appellant as Commander of the Papua New Guinea Defence Force is quashed and set aside.
(iii)	The First Respondents remedy is in damages which shall proceed by way of proper pleadings in the National Court proceeding OS (JR) No 177 of 2021.
(iv)	The matter is remitted to trial in the National Court for trial on assessment of damages.   

(e)	The Respondents shall pay the Appellants costs of the Appeal to be taxed if not agreed.
(f)	Such further and other orders the Court deems appropriate. 

8.	It is not disputed that after the First Respondent obtained leave for judicial review, he did not affect service on the Appellant, the Notice of Motion filed under Order 16 Rule 5(1) of the NCR, nor was there an affidavit filed under Order 16 Rule 5(5) of the NCR. Further, there was no enquiry made by the Primary Judge under Order 16 Rule 5(6) of the NCR prior to the hearing of the substantive judicial review. The matter proceeded to the substantive hearing and the Court nullified both the decision of the Second Respondent and the appointment of the Appellant, and then ordered that the First Respondent was only entitled to damages against the Second and Third Respondents. 

9.	The First Respondent concedes to the appeal but does not want the decision of the primary judge on damages to be overturned as he says that the First Respondent has been going through litigation for some time now. He also submits that each party should meet its own costs of the appeal.

10.	The Second and Third Respondents and Third Respondents acknowledge the non-compliance with Order 16 rule 5(2) of the NCR but submit that the appeal should not be allowed as little difference will be made to the outcome of the case, even if the Appellant was added. No utility will be served by remitting the matter back to the National Court. For this reason, the appeal should be dismissed.  

ISSUES 

11.	We envisage the issues for determination to be twofold:

•	Is the Appellant directly affected, and therefore should have been served the Notice of Motion filed under Order 16 Rule 5(1) of the NCR as required by Order 16 Rule 5(2) of the NCR?
•	If indeed the Appellant should have been served, what orders should the court make for the non-compliance with Order 16 rule 5(2) of the NCR and the related provisions of Order 16 Rules (5) and (6) of the NCR?

12.	The Appellant argues that the application for judicial review affected him, by terminating his employment with the State and that he was not given the opportunity to be heard. He therefore should have been served the application for judicial review made by Notice of Motion pursuant to Order 16 rule 5(2) of the NCR.

WHETHER APPELLANT DIRECTLY AFFECTED AND THEREFORE SHOULD HAVE BEEN SERVED THE NOTICE OF MOTION?

13.	The word “affect” is a verb that means “to have an effect on; make a difference to...” (The New Oxford Dictionary of English (Clarendon Press, Oxford 1998, p 28). In Mondiai v Wawoi Guavi Timber Co. Ltd, the Supreme Court formulated several considerations to determine whether a person has sufficient interest for the purpose of Order 16 Rule 3(5) of the NCR on the question of leave for judicial review:

To determine whether a person has sufficient interest for the purposes of National Court Rules Order 16 r3(5) the Court should ask
(a) Is the party complained about a public body
(b) Does that party have duties to perform at law; ie statutory duties?
(c) What is the nature of the alleged breach of duty; are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?
(d) What is the Plaintiff’s relationship to the duties alleged to have been breached:
(i) are they merely busy bodies or
(ii) are they genuinely concerned or
(iii) do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?

14.	What is of concern here is Order 16 Rule 5(2) of the NCR and not Order 16 Rule 3(5). These considerations do not directly address Order 16 Rule 5(2) of the NCR on the question of whether a person is “directly affected,” but there are aspects of it that should provide some guide. Relevant considerations appropriated from Mondiai v Wawoi Guavi Timber Co. Ltd for our purposes are:

•	What is the appellant’s relationship to the duties alleged to have been breached at the leave stage:
•	Is the appellant merely a busy body?
•	Is the appellant genuinely concerned?
•	Does the proceeding objectively point to some duty in law which (arguably at the leave stage) has not been observed?   

15.	Bearing the above considerations in mind, to then determine if the Appellant was directly affected, it is necessary to consider the Second Respondent’s decision that was challenged in the judicial review proceedings in the National Court. That decision which we quote from the decision of the Primary Judge was in the following terms:

a.	The decision of the Second Defendant made on 21 December 2021, acting on advice of the First Defendant by its decision of 15 December 2021 to:

i.	Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander of the Papua New Guinea Defence Force;
ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

b.	The decision of the First Defendant made on 15 December 2021, in a Special Meeting where it is decided to advise the Head of State to:
i.	Revoke the appointment of the Plaintiff as Commander of the Papua New Guinea Defence Force;
ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

16.	The following orders were then made by the Primary Judge in relation to the decision of the Second Respondent:

(1)	Pursuant to Order 16 Rule 1(1) of the National Court Rules the following impugned decisions be declared null and void:

(a)	The decision of the Second Defendant made on 21 December 2021, acting on advice of the First Defendant by its decision of 15 December 2021 to:

i.	Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander of the Papua New Guinea Defence Force;
ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;
iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

(b)	The decision of the First Defendant made on 15 December 2021, in a Special Meeting to advise the Head of State to:

i.	Revoke the appointment of the Plaintiff as Commander of the Papua New Guinea Defense Force;
ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defense Force for a period of four years;
iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

(2)	Pursuant to Order 16 Rule 1(1) of the National Court Rules an order in the nature of certiorari to bring the above-named impugned decisions to this Honorable Court and to quash the decisions in their entirety.

(3)	An order pursuant to Order 16 Rule 7 of the National Court Rules that the Defendants pay the Plaintiff damages, the assessment of such damages to be listed on a date and time to be fixed after issuance of directions for hearing.

(4)	The Defendants pay the Plaintiff’s costs on a solicitor client basis to be agreed or taxed.

(5)	The Plaintiff’s assessment of damages be adjourned to 3 June 2024 at 10:00am for mention with the parties to provide agreed directions to the court on that date.

(6)	Time to abridge.

17.	One will notice from the decision of the Second Respondent and the Order of the National Court that the Appellant’s interest was directly affected. The National Court was considering whether the Appellant’s appointment as Commander of the Papua New Guinea Defence Force should be revoked. The Appellant’s tenure as the Commander of the Papua New Guinea Defence Force was in fact, then revoked. Logically, it cannot be seen any other way than that the Appellant was directly affected by the proceedings in the National Court and should have been served the Notice of Motion.

THE EFECT OF NON-COMPLIANCE WITH ORDER 16 RULE 5 (2), (5) AND (6) OF THE NCR

18.	From submissions of the Counsels, there is not much dispute as to the interests of the Appellant. The Respondent’s contention centres on the effect that should flow from the failure to comply with Order 16 Rule 5(2) of the NCR.

19.	We disagree with the Second Respondent that even if the Appellant succeeds in the Appeal, there would be very little that can done to overturn the decision of the primary judge. Since the First Respondent only sought damages for the wrong decision of the Second Respondent, a relevant issue could be, that if the claim for judicial review is made out, would it be in the interests of good administration to make the orders sought by the First Respondent given the multiple interests affected. The Appellant’s involvement will contribute to addressing this issue in the National Court.

20.	There is not much that can be said about the learned primary judge’s consideration of the law. If indeed the requirements of Order 16 Rule 5(2), (5), and (6) of the NCR were met, the evidence pointed to non-compliance with s 193(3) of the Constitution and there would be no error in her Honours reasoning. We also agree that the matter should be referred to assessment of damages. However, subject to lawful exceptions, it is a fundamental tenet in judicial proceedings in Papua New Guinea that natural justice is observed. Michael A Ntumy points out at p 563 of his work Administrative Law of Papua New Guinea (CBS Publishers & Distributors: New Delhi, 2002) that “s 59, Principles of Natural Justice,” of the Constitution incorporates the two common law cardinal principles of natural justice in relation to judicial review of administrative decisions:

•	Nemo debet esse judex in propria sua causa: also known as the “bias rule” which means that no person may be a judge in her own cause;
•	Audi alteram partem: that is, the right to a hearing, and the requirement that a person may not be condemned unheard. 

21.	Order 16 Rule 5(2) of the NCR gives expression to the audi alteram partem aspect of s 59 of the Constitution. Section 59 of the Constitution is in the following terms:

59. 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.

22.	The Appellant was not afforded an opportunity to be heard before a decision affecting his interest was made. Such a process as was what happened in this case will not meet the minimum requirements of the duty of natural justice to act fairly, and to be seen to act fairly. We have therefore concluded that the learned Primary Judge fell into error when her decision was made without complying with Order 16 Rule 5(2), (5), and (6) of the NCR.

23.	 What would be the effect of this? In our view, the process must commence again with the opportunity provided to the Appellant to participate fully and meaningfully as the proceedings directly affected his rights and interest.

24.	Our position on the consequences of non-compliance with Order 16 Rule 5(2), (5), and (6) of the NCR finds agreement with the Supreme Court in Yanta Development Association Inc v Piu Land Group Inc (2005) SC798 where the following observations were made:

…the requirements of Order 16 Rule 5 sub-rules (2), (5), (6) and Rule 9(1) are mandatory requirements to be complied with. The judgment that is obtained without complying with these mandatory requirements is irregular and must as a matter of law be set aside ex debito justitiae. The appeal must therefore succeed on this issue.

25.	It may well be that the decision of the Primary Judge will be subsequently confirmed. The National Court may find the alternative orders proposed by the Appellant in the Appeal would promote good administration. It is not for us to speculate. What is required is for the Appellant and indeed any other person who may be directly affected to be afforded the opportunity to be heard. This has not been done, and the orders of the National Court must as a matter of law be set aside ex debito justitiae. Finally, it will be in the public interest as well as that of the parties if there is an expedited hearing of the judicial review.

CONCLUSION

26.	We have reached the conclusion that the learned primary judge fell into error when she did not comply with the mandatory requirements of Order 16 Rule 5(2), (5), and (6) of the NCR, and the decision made was irregularly entered and should quashed and set aside and remitted back to the National Court for re-hearing under s 16(d) of the Supreme Court Act. Furthermore, in the exercise of our discretion under section 16(c) of the Supreme Court Act, we also order that the Appellant be joined as Fourth Defendant in the National Court proceedings.

ORDERS 

27.	In consideration of the matters discussed the following orders are made:

1.	The Appeal is upheld.
2.	The decision of the National Court in OS (JR) No. 177 of 2021 of 14 May 2024 is set aside.
3.	The Appellant is added as the Fourth Defendant in the proceedings OS (JR) No. 177 of 2021.
4.	The First Respondent shall forthwith serve on the Appellant and any other person directly affected pursuant to Order 16 Rule 5 (2) of the National Court Rules the Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules in OS (JR) No. 177 of 2021 and all other court documents filed in the proceedings.
5.	The First Respondent shall then file an affidavit in compliance with Order 16 Rule 5(5) of the National Court Rules.
6.	The substantive hearing of the judicial review shall be re-heard by a Judge other than the Primary Judge in OS (JR) No. 177 of 2021.
7.	In the meantime, the proceedings OS (JR) No. 177 of 2021 is adjourned to the next available directions hearing before the Judicial Review Track.
8.	Prior to the substantive hearing the National Court shall make enquiries under Order 16 Rule 5(6) of the National Court Rules as to whether any person who ought to have been served the Notice of Motion has been served.
9.	Each party will pay for its own costs of the Appeal.
10.	Time for settlement of the orders is abridged.

Judgement and orders accordingly.

Millennial Legal: Lawyers for the Appellant
Kopunye Lawyers: Lawyers for the First Respondent
Paul Othas Lawyers: Lawyers for the Second and Third Respondents