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Kumpio v Bang [2024] PGSC 156; SC2697 (20 December 2024)

SC2697

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 14 OF 2024

BETWEEN:
PAUL KUMPIO
Appellant

AND
DR SERGIE KOPEN BANG Ph.D
First Respondent

AND
APEO F SIONE, LM M.PP
in his capacity as Chairman – Public Services Commission
Second Respondent

AND
THE PUBLIC SERVICE COMMISSION
Third Respondent

AND
HON. JOE SUNGI,
in his capacity as Minister for Public Service
Fourth Respondent

AND
NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

WAIGANI: DAVID J, PITPIT J, WOOD J
17, 20 DECEMBER 2024

SUPREME COURT – appeal to challenge the refusal to grant leave for judicial review of the decision to appoint the first respondent as Secretary of the Department of Agriculture – whether the list of all applicants for the position of Secretary could be considered by the Public Services Commission – whether a letter from the fourth respondent could be considered as a breach of natural justice or apprehension of bias – whether the first respondent was precluded from applying for the position due to his age, having regard to the mandatory retirement provisions in the Public Service

Cases cited

Pipoi v Seravo, National Minister for Lands [2008] SC909

Counsel

Mr J Napu for the appellant
Mr P Othas for the first respondent
Mr E Bua for the fourth, fifth and sixth respondents

1. BY THE COURT: The matter before the Court was the hearing of the appellant’s Notice of Motion filed on 26 March 2024 (the Appeal), which is an appeal against the decision in National Court proceeding OS (JR) No. 152 of 2023 (the National Court proceeding) made on 16 February 2024, where the primary Judge refused to grant leave for judicial review on matters the subject of that proceeding.
   
2. As a preliminary matter, the Court noted that there was no appearance for the second and third respondents. Having read the Court file and having heard submissions by counsel for the appellant, the Court was satisfied that the second and third respondents had not taken an interest in the Appeal, so the Court permitted the hearing of the Appeal to proceed.
   

Background

3. The appellant, the first respondent and several other people were applicants for the position of Secretary of the Department of Agriculture. In a letter from Ms Taies Sansan, Secretary of the Department of Personnel Management (the Secretary) to Mr Apeo Sione, Chairman of the Public Services Commission (the Commission), dated 25 May 2023 (the 25 May letter), five applicants were short-listed by the pre-screening committee as follows:
   
   1. Dr Sergie Kopen Bang;
   2. Dr Nelson Awanim Simbiken;
   100. Mr Stephen Mombi;
   4. Ms Regina Bi Nikundj; and
   5. Miss Miriam Mondia.
      
4. Following receipt of the 25 May letter, a letter dated 8 August 2023
   (the 8 August letter) was signed and sent by Mr Apeo Sione (Chairman), Ms Judith Stenis (Commissioner) and Mr Joseph Aka (Commissioner) of the Commission, which letter was addressed to Hon. Joe Sungi MP, Minister for the Public Service) (the Minister). In the 8 August letter, it was stated that the Commission had completed its review and assessment of the five candidates who had been shortlisted by the Secretary. The letter also stated that the names of the five candidates were ‘... submitted together with all the original applications and curriculum vitae in response to the advertisement, accompanied by DPM’s Pre-screening Committee’s Report. The Commission took note of the report and conducted its own pre-screening assessment on the shortlist of five (5) candidates, together with all the candidates who applied for the position of Secretary.’
   
5. The 8 August letter went on to state that the Commission had short-listed three candidates in order of preference, who were:
   
   1. Dr Nelson Awanim Simbiken;
   2. Dr Sergie Kopen Bang; and
   100. Mr Paul Kimpio.
        
6. In reply to the 8 August letter, the Minister, who is the fourth respondent, wrote a letter dated 21 August 2023 to Mr Sione of the Commission (the 21 August letter), which stated as follows:
   

‘SUBJECT: CONCERNS ON THE ASSESSMENT OF SHORTLIST FOR DEPARTMENT OF AGRICULTURE SECRETATY’S POSITION.

Thank you for the Commission’s final shortlist on the position of Secretary for Department of Agriculture received by my Office on 9^th August 2023.

I note with grave concerns how the Commission conducts its assessment of the five shortlisted candidates and all Applications by the inter-departmental pre-screening committee.

You will note that this is my first time to write to PSC to express my concerns which I have picked up from the Secretary for Agriculture position. I have also noted issued in previous assessments but had not taken the liberty to write to the Commission.

My concerns on the assessment of the position of Secretary for Agriculture are as follows:

1. The 3^rd shortlisted candidate (Paul Kumpio) has an MBA and a Bachelor in Accountancy. It would be sound if he had if had an agriculture-based qualification also in order to be included in the final 3. He has never made it to the FAS or Deputy Secretary level compared to the other applicants who made it to the FAS and Deputy Secretary level.
   

On the DPM-chaired Prescreening Committee’s assessment, he was ranked 7^th. I assume his inclusion was based on the interview process which you conduct hence he was included in the top 3. What criteria does the Commission use to include candidates not included in the shortlist of five (5) names recommended by the pre-screening committee.

Our processes must have consistency in the assessments.

2. The former Acting Secretary for Agriculture. Dr. Nelson Simbiken had already been appointed as Director General for NARI as pointed out by PSC in your assessment however, the Commission then strongly recommended him to be appointed as Secretary for Agriculture. I am aware that Dr. Simbiken did not submit a letter of withdrawal for the position of DG NARI. In making this recommendation, this clearly goes against the appointment made by NEC already.
   
3. On page 16 of the assessment, it clearly seems like a typo error or rushed work where an applicant of another position (DPLGA, Mr Willie Edo) was included in the Agriculture position where he never applied for.
   

I seek your explanation on this letter of concern as the responsible Minister who explains Cabinet Submission on executive appointments in NEC.

Take note that I can no longer be used as a rubber stamp to take NEC Submissions based on your assessments and advice.

You are to take note of this as a very serious matter and provide your explanations at the earliest convenience.’

7. Of note, the 21 August letter was stated to be copied to the Prime Minister, Deputy Prime Minister, Chief Secretary and Secretary of Personnel Management.
   
8. In reply to the 21August letter, the Commission wrote to fourth respondent in a letter in reply dated 30 August 2023, however, for the purpose of this Judgement, it is not necessary to set out the details of that letter.
   
9. A decision of the Governor General, Sir Bob Dadae dated 28 September 2023 was subsequently published in National Gazette notice No. G785 on 29 September 2023 (the Gazette Notice), in which it was stated that ‘...acting with, and in accordance with, the advice of the National Executive Council, on the recommendation of the Public Services Commission ....’, the Governor General appointed the first respondent as the Secretary of the Department of Agriculture for a period of four years.
   
10. Of note, it was generally agreed by counsel appearing before us at the Appeal that the National Executive Council (the NEC) recommendation that is referred to in the Gazette Notice has not been obtained and is not in evidence. The NEC is the fifth respondent in this Appeal.
    
11. Following the appointment of the first respondent as Secretary of the Department of Agriculture, the appellant (then as plaintiff) commenced the National Court proceeding.
    
12. There are a number of grounds seeking judicial review regarding the appointment of the first respondent as Secretary of the Department of Agriculture, that are pleaded in the Order 16 Statement, which was one of the documents filed in the National Court proceeding. One of the grounds, in effect, is that there was a breach of natural justice because the fourth defendant wrote the 21 August letter and copied it to the Prime Minister (who is the Chairman of the NEC), whereby there was a clear apprehension of bias by the fourth respondent.
    
13. Another ground of judicial review, in effect, was that by virtue of writing the 21 August letter, the fourth respondent gave his support and preference to the appointment of the first respondent as Secretary of the Department of Agriculture and that therefore this sought to influence the appointment of the first respondent, whereby the NEC was acting under the dictation of the fourth respondent.
    
14. The application for leave for judicial review of the decision to appoint the first respondent as Secretary of the Department of Agriculture was moved before the primary Judge on 16 February 2024. In his reasoning to refuse the application for leave for judicial review, we note the primary Judge stated, in part, as follows:
    
    

‘Whilst it is true that the Minister for Public Service had supported the first defendant’s application for the job, the plaintiff has failed to adduce evidence that the NEC decision was influenced by the minister’s letter. More importantly, the first defendant was included in the shortlist of applicants for the job. The shortlist was prepared by the selection committee. In that list the plaintiff was not included in the shortlist. The first defendant had also at least two independent referees supporting his application for the job. It is a common ground that the plaintiff was not in the shortlist as I said earlier, for the job prepared by the selection committee his name was included by the Public Services Commission. It was submitted by the State that the PSC had no power to add the plaintiff’s name as an applicant for the job.

I have after considering all the remaining grounds for review and the arguments presented by the counsel reached the conclusion that the plaintiff lacks standing and that he also has failed to produce the – or has not demonstrated that the NEC decision was unreasonable, that the NEC decision was influenced by other considerations, irrelevant considerations including the letter by the Minister of Public Service. The first defendant’s selection having gone through the normal selection process, I find that there is no arguable case upon with the matter should go for trial for a full substantive review.’

The Appeal

15. The grounds of the Appeal can effectively be summarised as follows:
    
    1. the primary Judge erred in law in finding that the Commission was restricted in choosing three candidates from the list of five candidates who were shortlisted by the pre-screening committee, whereas the Commission was at liberty to select its own list of three preferred candidates by considering all applicants for the position Secretary of the Department of Agriculture (the first Ground);
       
    2. the primary Judge erred in finding that the 21 August letter did not amount to an apprehension of bias because the primary Judge considered it did not influence the NEC (the second Ground); and
       
    100. the appellant contends the first respondent had reached the mandatory retirement age in the Public Service of 65 which rendered him ineligible for appointment, whereas the primary Judge did not make that finding
         (the third Ground).
         

The first Ground

16. In considering the first Ground, it is necessary to consider section 31A of the Public Services (Management) Act 1995 (the Act), which provides as follows:
    

31A. PROCEDURES RELATING TO SUBSTANTIVE APPOINTMENTS OF DEPARTMENTAL HEADS.

(1) The procedures relating to the substantive appointments of Departmental Heads referred to in Section 193(1A) (appointments to certain offices) of the Constitution are as follows: –

(a) where an office of Departmental Head becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsection (2) and (3) –

(i) declare that a vacancy in the office of Departmental Head exists or is about to exist; and
(ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and
(iii) notify the Commission of the vacancy; and
(iv) advertise for applications for the office –

(A) on the least two occasions in a newspaper circulated nationally; and

(B) in such other manner as it considers appropriate;

(b) after consideration and assessment of the applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall –

(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and
(ii) submit to the Commission for its consideration –

(A) the list under Subsection (i); and

(B) all applications received in response to the advertisements under Paragraph (a)(iv);

(c) an assessment of an applicant under Paragraph (b) shall be based on –

(i) the minimum requisites for the position; and
(ii) where available, any appraisal of performance and discipline under Section 24A; and
(iii) prescribed criteria;

(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all application received in response to the advertisement under Paragraph (a)(iv) and shall –

(i) compile there from a list of up to three candidates in order of preference; and
(ii) submit the list under Subparagraph (i) as a recommendation to the National Executive Council;

(e) the National Executive Council may select one of the persons on the list submitted to it under Paragraph (d)(i) for appointment and shall advise the Head of State to make the appropriate substantive appointment as Departmental Head;
(f) where the National Executive Council does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment –

(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and
(ii) the procedure set out in Paragraph (a)(iv),(b),(c),(d) and (e) shall again be followed.

(2) Where –

(a) an office of Departmental Head becomes vacant or is likely to become vacant; and
(b) the person holding the office or who held the office immediately before it became vacant is willing and eligible to continue in that office,

the Departmental Head of the Department of Personnel Management shall obtain from the Central Agencies Co-ordination Committee a report under Section 24A on the performance and discipline of that person, and where such report justifies the re-appointment of that person shall notify the Commission accordingly and, subject to Subsection (3)(b), the procedure specified in Subsection (1) shall not be followed.

(3) On receipt of a notification under Subsection (2), the Commission shall recommend to the National Executive Council that person be re-appointed and –

(a) where the National Executive Council is agreeable to the re-appointment it shall advise the Head of State to re-appoint the person as substantive Departmental Head; or
(b) where the National Executive Council is not agreeable to the re-appointment –

(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and
(ii) the procedure specified in Subsection (1)(a), (b),(c),(d) and (e) shall be followed.

(our emphasis added)

17. While we consider the first, fourth, fifth and sixth respondents (the respondents) correctly submitted that the appellant had made an incorrect reference in first Ground to section 35(2)(c) of the Act, we do not consider this to be a material defect considering the totality of the ground. We consider it arguable that section 31A(1)(d) of the Act provides that the Commission may consider all candidates who have made applications in response to the advertisement. Accordingly, we uphold the first Ground.
    
    

The second Ground

18. Having carefully considered the transcript of the primary Judge’s reasons given in refusing the application for leave for judicial review, we consider His Honour did not provide sufficient reasons for finding that the 21 August letter could not have influenced the NEC decision or that the NEC decision was unreasonable. For this reason, we uphold the second Ground.
    
    
    

The third Ground

19. At the hearing of the Appeal, the appellant’s counsel submitted that the first respondent’s curriculum vitae misstated his real age and that his birth certificate that stated he was born on 1 May 1963 (which was in evidence), was unreliable and was not proof of his real age. In other words, the appellant submits that the first respondent is several years older, which precluded him from being considered for appointment. We note that this ground was not supported by any evidence and was speculative, so we dismiss the third Ground.

Conclusion

20. Having upheld the two of the grounds of the Appeal, we consider from our reading of the court documents in the National Court proceeding that it is appropriate that this Court exercise its powers under section 16(c) of the Supreme Court Act, and reverse the refusal to grant leave for judicial review. In other words, we consider it appropriate that the decision in the National Court be quashed and substituted with a finding that the appellant be granted leave to apply for judicial review of the decision to appoint the first respondent as Secretary of the Department of Agriculture.
    
21. On the basis that we have decided that the appellant is granted leave to apply for judicial review of the decision to appoint the first respondent as Secretary of the Department of Agriculture, the appellant is now at liberty to progress his claim in the National Court to a substantive judicial review proceeding. Notwithstanding this, it is important to note that none of the reasons or findings of this Court should be interpreted as having any bearing on what evidence may be tendered at the final hearing or what submissions on the factual or legal issues may be advanced by the parties at the final hearing.
    
22. In addition, our analysis of the issues notes the reference as to what standard should be applied when considering an application for leave for judicial review as opposed to what standard should be applied at the final hearing. In this regard, we adopt the reasoning of the decision of the Supreme Court in Pipoi v Seravo, National Minister for Lands [2008] SC909 where it was stated at paragraph 40 as follows:
    

40. A classical statement of the law is found in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, at 644 per Lord Diplock in the following terms:

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

Orders

23. In the circumstances, we make the following orders:
    
    1. Grounds 2.1 and 2.2 of the Appeal, filed by way of the Notice of Motion on 26 March 2024 are upheld, while ground 2.3 is dismissed.
       
    2. National Court proceeding OS (JR) No. 152 of 2023 is reinstated.
       
    3. The decision of the primary Judge made on 16 February 2024 refusing the grant of leave for judicial review is quashed and substituted with the grant of leave for judicial review.
       
    4. The appellant is granted leave to file a Notice of Motion pursuant to
       Order 16, Rule 5 of the National Court Rules, which Notice of Motion shall be filed and served within 21 days of today’s date.
       
    5. The National Court proceeding shall be remitted back before another Judge, other than the primary Judge.
       
    6. The first, fourth, fifth and sixth respondents shall pay the appellant’s costs of and incidental of the Appeal.
       
    7. Time is abridged.
       

Lawyers for the appellant: Napu & Company Lawyers
Lawyers for the first respondent: Paul Othas Lawyers
Lawyers for the fourth, fifth and sixth respondents: Office of the Solicitor General