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Pupune v Ivarato [1997] PGNC 35; N1539 (4 April 1997)

Unreported National Court Decisions

N1539

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 399 OF 1996
BETWEEN:
STEVEN PUPUNE & 7 ORS - Plaintiffs
And:
AITA IVARATO-GOVERNOR OF EASTERN HIGHLANDS PROVINCE & CHAIRMAN OF PROVINCIAL EXECUTIVE COUNCIL - First Defendant
And:
PETER BARTER, MINISTER FOR PROVINCIAL & LOCAL LEVEL GOVERNMENT - Second Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Third Defendant

Mount Hagen

Lenalia AJ
21 March 1997
4 April 1997

ADMINISTRATIVE LAW - Judicial Review - Application for - Judicial review of administrative acts - Application filed more than one year two months since date of termination.

PRACTICE AND PROCEDURE - Application for Leave to apply for judicial review - Administrative action by the Governor already declared null and void - Whether leave should be granted notwithstanding the prescribed time limit of 4 months has expired - Relevant consideration under National Court Rules O. 16 r 4 (1) (2) discussed.

JUDICIAL REVIEW - Application for - Ex parte proceedings - Observation on whether Counsel for Second Respondent should be granted leave to appear and make submission

Cases Cited:

The following cases are cited in judgement:

Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122

Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch. 109

NTN Pty Ltd v The Board of Post & Telecommunication Corporation & 2 Others [1987] PNGLR 70

Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153

Amadio Pty Ltd v The State & Others [1992] PNGLR 218

Counsel:

P Doa for the Applicants

K Kot for the 2nd Respondent

4 April 1997

LENALIA AJ: This is an application for leave to apply for judicial review of the decision made by the First Respondent in which the eight (8) applicants were revoked by the first respondents from the Eastern Highlands Capital Authority Board on 1st of April 1995. They had been elected into office pursuant to S. 19 of the Local Government Act Ch. No. 57 and were to hold office for 3 years in accordance with S. 20 of the same act. They were terminated some 5 months prior to their terms expired. This application is made pursuant to O. 16 Rule 3 of the National Court Rules 1983. Should leave be granted, the applicants intend to apply for the following orders:

“1. Leave be granted to the Plaintiffs to apply for Judicial Review of the Second Defendants’ decision (details and date of decision not disclosed to the Plaintiffs) made last year that purportedly to revoke the appointment of the Plaintiffs, as members of the Eastern Highlands Capital Authority Board.

2. An order in the nature of certiorari to bring up to into this Court and quash the decision of the Second Defendant, made last year 1995, to revoke the appointments of the Plaintiffs as members of Eastern Highlands Capital Authority Board, to reappoint new Board members as being null and void of no effect.

3. A declaration that the Plaintiffs are the lawful Interim Members of the Eastern Highlands Capital Authority Board.

4. The Plaintiffs remain members of the Eastern Highlands Capital Authority Board until the return of writs after the 1997 National Elections, being the Interim period as provided for under section 4 of the Local Level Government System (Interim and Transitional Arrangements) Act 1995.

5. The Plaintiffs be reinstated as members of Eastern Highlands Capital Authority Board.

6. The appointment of the current Eastern Highlands Capital Authority Board by the Second Defendant is null and void and of no effect and that their appointment be revoked.

7. The Defendants pay the Plaintiffs’ entitlements as members of the Eastern Highlands Capital Authority Board back-dated to the 30th September 1995.

8. Damages.

9. Costs of this proceedings be paid by the First Defendant.

10. Any other order as this Honourable Court deems fit.”

The applicants provide five (5) grounds on which the relief is sought. These five grounds are set out in their varified Statement of Facts they are:

“(a) The First defendant had no powers and or abused his powers to revoke the appointment of the Plaintiffs.

(b) Pursuant to the National Court Order dated 29th September 1995, the Plaintiffs were the lawful Board members of the Eastern Highlands Capital Authority until their appointment expired on 30th September 1995.

(c) By operation of the Local Level Government System (Interim and Transitional Arrangement) Act 1995, section 4, the Plaintiffs remain members of the Eastern Highlands Capital Authority Board until the return of Writs after the 1997 National Elections.

(d) Pursuant to the National Court Order, referred above (paragraph 4 (b)) the Plaintiffs were in office on 19th July 1995, when the organic law came intoeffect and that they shall automatically remain in office till the return of Writs after the 1997 National Elections.

(e) There was breach of Natural Justice principle in that:

(i) There was no allegations of in-efficiency, incapacity, impropriety, misconduct or any other unacceptable behaviour against any of the Plaintiffs.

(ii) If above (i) exist then relevant provisions of the Adopted Act (i.e. the Local Government Act, Ch. 57) has not been complied with by the First Defendant.

(iii) No opportunity was given to the Plaintiffs to respond or reply to any allegations or charges.

(iv) No goods reasons or no reasons at all were given to the Plaintiffs for the decision to revoke their appointment.”

The applicants have quite properly seek relief under O. 16 of the Rules. They complain of abuse or breach of S. 4 of the Local-Level Government System (Interim and Transitional Arrangements) Act of 1995. The relief to be sought in their substantive application if leave is granted fall within the principles enunciated in the case of Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122. One of the principles enunciated by Kapi DCJ at page 124 says:

“The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuse its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision making but with the decision making...”

The applicants do not have a right for review unless, they have obtained leave under Order 16 4 3 (1) of the Rules. The question of whether or not leave should be granted is discretionary. In order for the applicants to succeed in this application, they must establish to the satisfaction of this Court certain factors to which I shall shortly refer. First they must establish they heave locus standi. For a person seeking declaratory or injunctive orders, it was required that a person must be a member of the public who had suffered or is at risk of suffering particular direct and substantive damages other than and different from that which was common to the rest of the public: Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch. 109. The applicants in the instant application must also show that they have a sufficient interest, see Order 16 r 3 (5). Locus Standi actually involves the question of whether or not an applicant has a sufficient interest in the matter to bring an action to this Court.

The second relevant consideration is does the applicant has “an arguable case”. This involves the question of whether an application raises any fundamental or serious legal issues. The decision of Wilson J in NTN Pty Limited v The Board of the Post & Telecommunication Corporation and 2 Others [1987] PNGLR 70 is relevant to this discussion. His Honour said at page 74:

“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, 4 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, 4 3(1). In exercising its discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] ACT 617, Lord Diplock set out the principles upon which the court should act and I respectfully adopt them. Lord Diplock said at 644:

‘If, on a quick perusal of the material then available, the court...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 judicial 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.’”

A third consideration that may be also involved at this stage and which is not based on O. 16 is a common law principle involving the question of exhaustion of administrative remedies. This principle raises the question of whether administrative remedies have been exhausted and whether a party should be required to pursue a further appeal. In this respect I note from the evidence before me that the following orders were made in favour of the applicants by the National Court in Goroka on 29th of September 1995. The three orders read:

“1. The First Defendant’s decision made on 1st April 1995 to terminate the Plaintiffs’ appointment as members of the Eastern Highlands Capital Authority Board and appoint new members is declared null and void and of no effect whatsoever.

2. The Plaintiffs shall remain members of the Eastern Highlands Capital Board and continue to perform their duties as members of the Eastern Highlands Capital Authority Board effect 1st April 1995 until their present term expires.

3. The Plaintiffs shall be paid their outstanding monthly allowances and other entitlements back-dated to 1st of April, 1995.

The Plaintiffs shall have the costs.”

In a supplementary affidavit dated 7th January 1997 and filed 18th July, authorized by the seven applicants, Mr Pupune deposed in paragraph 4 that the National Court in Goroka on 29th September 1995 made a ruling that the applicants purported revocations were unlawful and the applicants were also ordered to be reinstated. However that decision was only effective until 30th of September 1995 when their 3 years term of appointment under S. 20 of the Local Government Act was due to expire. I have not had the benefit of reading the full judgement nor is there any copy of such judgement filed with the documents of this application. I suppose that by virtue of those orders, all applicants would have been paid their full entitlements. A Certificate of Taxation was filed by the Registry Office in Mount Hagen on 17 March 1997 to that effect.

It is not clear from the evidence put before this Court on this application what other administrative remedies has been sought by the applicants. What is clear is that Mr Pupune on behalf of the other seven applicants on 29th of June 1996, wrote to the Minister for Provincial and Local Level Government Affairs, Honourable Peter Barter expressing concern on him as Chairman and his board members continued services to the Eastern Highlands Capital Authority Board pursuant to the provision of the Local-Level Government System (Interim and Transitional Arrangement) Act of 1995. Mr Pupene also wrote to the Honourable Ivarato - Governor of Eastern Highlands advising him that, the National Court had made a decision on their purported termination which the Court found to be null and void. Mr Pupune also requested that he himself and his board be automatically reinstated to office until return of the writs after the 1997 National Elections.

Honourable Peter Barter wrote back to the Governor of Eastern Highlands on the 18th of June 1996 advising the Governor that since the National Court had decided that the termination of the applicants was null and void and since Mr Pupune and his board were in office on the 19th of July 1995 which date the Local-Level Government System (Interim and transitional Arrangement) Act 1995 was certified Mr Pupune and his board members would automatically remain in office till the return of the writs after the 1997 National Elections. Whether or not correspondences between the applicants, the Minister for Provincial and Local Government Affairs can be accepted and viewed as an appeal pursuant to S. 8 of the Local Government Act is a relevant consideration in so far as the question of exhaustion of administrative remedies is concerned.

Apart from the requirement of a party having a sufficient interest, the only other criterion for determining whether to grant or refuse leave which criterion is specifically mentioned in O 16 r 4 is the time limit for bringing an application. Order 16 Rule 4 says:

“1. Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Subsection (2) applies, the application for leave under rule (3) is made after the relevant period has expired, the Court may refuse to grant:

a) leave for the making of the application; or

b) any relief sought on the application if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

2. In the case of an application for an order of certiorari to remove any judgement order, conviction or other proceedings for the purpose of quashing it, the relevant period for the purpose of Sub rule (1) is four months after the date of the proceedings.”

As can be seen from Rule 4 of O. 16, there are two distinctive issues. The first is the question of “undue delay”. The second is the effect of granting the leave sought and whether the grant of leave would be likely to cause substantial hardship to, or that would be prejudice to the rights of any person or it would be detrimental to good administration. It is my view that undue delay per se would not justify a refusal of an application for leave. I am also required to consider whether granting this application would be likely to cause substantial hardship to the rights of persons affected or that it would be detrimental to good administration. Wilson J highlighted the importance of separating these two issues in NTN v The Board of the Post and Telecommunication Corporation and 2 Others at 76:

“The next issue for me to consider, having found undue delay, is the granting of the relief sought would cause substantial hardship or substantially prejudice the rights of any person or would be detrimental to good administration.”

Where does this application fit into the short discussion I have made so far. the applicants were terminated on 1st of April, 1995. They took the respondents to Court and the Court made orders in favour of the eight applicants and declared their termination null and void. At the same time ordered their entitlements to be paid to them in full. The applicants commenced proceedings by an originating summons filed on 6th of September 1996. Could it be argued that the period from the date of the orders i.e. 29th September 1995 which date orders were obtained for the applicants reinstatement to 6th of September 1996 when the Originating Summons was filed be considered to be undue delay. It would seem to me that the use of the word “may” in Rule 4 (1) implies that I still have a discretion to grant leave to the applicants notwithstanding that the period of four months has expired. In my view there was undue delay.

Having found there was undue delay, it raises another question of what constituted such a delay. Mr Pupune deposed in paragraph 8 of their supplementary affidavit that it was not until early 1996 that he became aware of the Plaintiffs right to remain and continue in office as interim members of the Eastern Highlands Capital Authority Board. He refers to sources of materials from which he learnt that he was entitled to stay on after expiry of their 3 years appointment. See news paper clippings Exhibits “E1” & “E2”. I think these articles prompted Mr Pupune to write to the Minister responsible.

The questions posed require reference to the Local-Level Government System (Interim and Transitional Arrangement) Act of 1995. None of the lawyers referred me to the Act although S. 4 of the Act was referred to in the evidence of the Application. Section 3 of the Act pronounces nation-wide applicability of the Act during the interim period. The word “interim period” is defined in S. 2 to men “the period on and from the date of coming into operation of the Organic Law on Provincial Government and Local-Level Governments until the date fixed for the return of the writs following the next general election held after that date of coming into operation”.

Section 4 of the Act provides:

“4. Transitional Provision in Relation to Existing Local-Level Governments

(1) An existing Local-Level government is hereby deemed to be a Local-Level Government and continues in existence as the same legal person.

(2) The members of a Local-Level Government to which Subsection (1) applies are deemed to have been constituted as a Local Government Council under the adopted Act.

(3) Subject to Section 22 of the adopted Act, the term of Office of a Member of a Local-level Government to which Subsection (1) applies is deemed to expire on the day fixed for the return of the writs for the general election held next after certification of the Organic Law.

(4) The rules of a Local-Level Government to which Subsection (1) applies in force immediately before the coming into operation of this Act, except where consistent with or exceeding the law-making powers of a Local-Level Government as specified in Section 44 of the Organic Law, shall continue in force until their repeal or termination according to law.”

As may be seen from Subsection (3) of the Local-Level Government System Interim and Transitional Arrangement) Act, it refers to S. 22 of the adapted Act. The “adopted Act” in this sense is defined to mean the Local Government Act Ch. No. 57. Section 22 of the enabling act provides for removal of Councillors from office and says that where the Minister responsible is satisfied that a Councillor or an associated member of a Ward has abused his powers or is incapable of exercising them justly or if for any other reasons is not a fit and proper person to continue to hold office and after due enquiry, the councillor or associate member may be suspended. Subsection (3) of Section 4 of the Local-Level Government System (Interim and Transitional Arrangements) Act 1995 is to be read subject to S. 22 of the Local Government Act. This would mean that if the applicants were under any inquiry as deposed to by Mr Pupune in paragraph 7 of his supplementary affidavit, a further deliberation would be held to determine those issues.

Applying the principle of an “arguable case” to the circumstances of the instant application, I think it involves the question of whether there is a prima facie view formed at this stage after considering all evidence before me, I am satisfied that these questions raise substantive legal issues which require judicial determination. I am therefore satisfied that the applicants have demonstrated through their evidence that they have an arguable case.

The only other matter is that O. 16 Rule (2) requires that an application for leave ought to be made ex-parte. Mr Kot appeared for the Second Respondent and made a very brief submission on behalf of his client. He filed no affidavits though. Mr Kwimberi for the applicants did not oppose to his appearance. I granted Mr Kot leave and allowed him to address me accordingly. His short submission assisted in determination of the question of undue delay. There seems to be different opinions amongst Judges of this Court as to whether an application for leave should be strictly made ex-parte. Judges have granted leave to Respondents Counsels to appear only for the purpose of making submissions for purposes of assisting the Court: See Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153 and Amadio Pty Ltd v The State and Others [1992] PNGLR 218. On the basis of the decisions in these two cases I allowed Mr Kot to address me. I grant the application sought and order costs in favour of the applicants.

Lawyer for the Applicants: Paulus Doa & Lawyers

Lawyer for 2nd Respondent: K Kot & Lawyers