[1999] PNGLR 151

PAPUA NEW GUINEA

[national court of justice]

COLONEL FRED AIKUNG

V

PETER WAIENG – minister for defence; VALI ASI – secretary for department of defence; BRIGADIER GENERAL JERRY SINGIROK –commander of papua new guinea defence force constituting the defence council; first defendants

HONOURABLE BILL SKATE – prime minister and chairman of national executive council representing the national executive council; second defendant; and

THE INDEPENDENT STATE OF PAPUA NEW GUINEA; third defendant

waigani: sevua j
21 April; 6 May 1999

Administrative Law – Judicial Review – Leave Application for judicial review – Defence Act – Proceedings by a Colonel for judicial review – No procedures for appeal against termination of a Colonel – Defence Act – Code of Military Discipline – Defence (Period of Service) Regulation Ch 74.

Facts

The plaintiff, a colonel, in the Papua New Guinea Defence Force, was terminated from the Force by the defendants. No reasonable cause was shown for his termination, though his termination was purportedly done under the Defence Force Act. The Act did not provide for procedures for appeal or review.

Held

1.	Where a military officer holding the rank of Colonel was terminated and the Defence Act and its subsidiary legislation provide no procedures for appeal and where he has sufficient interest and an arguable case, leave should be granted to review the decision of the defendants.

Counsel

P Mawa, for plaintiff/applicant.
M Murray, for defendants.

6 May, 1999

Sevua j. This is an application for leave for judicial review of the second defendant’s decision to "terminate" or discharge the plaintiff from the military service.

Briefly, the plaintiff was a Colonel in the Papua New Guinea Defence. He joined the Force on 10th December 1971 and has been a career officer in the PNGDF for 27 years until his termination early this year. In his twenty seven (27) years of service, Colonel Aikung has never committed any offence under the Defence Act or the Code of Military Discipline. He has never committed any offence against the third defendant.

In March 1997, amidst the military uprising instigated by the present Commander in what was then described as the "Sandline Crisis", the plaintiff was appointed Acting Commander of the Papua New Guinea Defence Force to restore order, discipline, and command and control in the Defence Force. 

After a week in that capacity, he relinquished the command following a spate of unprecedented harassment, intimidation, violence and hostility perpetrated against him by soldiers loyal to the present Commander, who had then been sacked by the previous government for spearheading the military rebellion against the government of Sir Julius Chan.

At the time of his appointment as Acting Commander in March 1997; Colonel Aikung was Chief of Logistics, until he took leave in December 1997. Upon resumption in January 1998; he found that he had been displaced as Chief of Logistics. He said his attempts to have an audience with the former Commander, Brigadier General Leo Nuia did not succeed. Further attempts to have his case sorted out with the present Commander also proved unsuccessful, until early this year, when he was advised by the Commander on 15th January 1999, of his discharge.

The plaintiff has taken issue with several matters which, in my view, go to the root of his termination. One of the issues is whether he was retired, made redundant, terminated or discharged. Counsel for the plaintiff, Mr Mawa had, for a while, made submissions, which were really arguments relevant to the substantive hearing of the review application if leave is granted. I do not wish to cover those submissions because they are irrelevant at this stage. I will therefore confine my consideration to the issue, whether or not, leave should be granted to Colonel Aikung.

Order 16 Rule 3 of the National Court Rules provides the basis for which leave for judicial review may be granted. As is the accepted principle, in this jurisdiction, the granting of leave under Order 16 Rule 3 is based on four major legal principles, which the plaintiff needs to establish aside of the requirements stipulated in the various sub-rules of rule (3). Basically these are, sufficient interest, delay, arguable case and whether an applicant has exhausted other administrative avenues. 

Mr Mawa’s submissions cover all four basic principles and I have no doubt that the plaintiff/applicant has sufficient interest in this matter. There has been no delay in making this application. There is no appeal procedures provided for in the Defence Act in respect of the termination of a Colonel, and the plaintiff has an arguable case. In my view, the plaintiff's professional, pecuniary, economical, and other interests are affected by the decision, the subject of this action, therefore I am satisfied that he has sufficient interest in this matter.

If I understood correctly, Mr Murray’s submissions centred on the issue of whether the plaintiff has an arguable case. And if I understood him correctly too, it is his submission that the plaintiff has no arguable case because of the non-justiciability of this case, and therefore the plaintiff’s action could not succeed. I consider that that submission is misconceived, and it is the wrong approach to the issue itself. An arguable case issue involves the question of whether the application for review raises fundamental or serious legal issues. Whether those issues succeed or not in the substantive review application is not the issue to be determined at the leave application stage. To determine the success or failure of a fundamental or legal issue would, in my view, mean determining the merits of the review application and that is not the objective or purpose of leave applications.

In my view, as long as an application for judicial review raises serious fundamental constitutional or legal issues and such issues are adverted to in the leave application, an applicant can be said to have an arguable case. The success or failure of those issues is not relevant at the leave application stage. The plaintiff’s counsel has raised several constitutional and legal issues and in my opinion, the plaintiff has shown he has an arguable case.

It is the judgment of this Court therefore that leave be granted to the plaintiff to review the decision of the defendants, and I order that leave for judicial review be granted.

Costs will be in the cause and I further order that the interim injunction orders granted on 5 March be extended until the substantive review application is determined.

Lawyer for plaintiff: Paul Mawa Lawyers.
Lawyer for defendants: Murray & Associates.