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Opa v Gima [2008] PGNC 51; N3343 (31 March 2008)

N3343


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO 32 OF 2008


BETWEEN


SIMON OPA
First Plaintiff


AND


THE BOARD OF GOVERNORS OF MOUNT HAGEN
PARK SECONDARY SCHOOL
Second Plaintiff


AND


HANS GIMA
CHAIRMAN OF THE PROVINCIAL EDUCATION BOARD
First Defendant


AND


WESTERN HIGHLANDS PROVINCIAL EDUCATION BOARD
Second Defendant


AND


MANN TAMBILI
Third Defendant


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


AND


WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Fifth Defendant


Mount Hagen: Makail AJ
2008: 6 March
31 March


JUDGMENT


ADMINISTRATIVE LAW - application for judicial review - decision of western highlands provincial education board - revocation of first plaintiff as acting principal and appointment of third defendant as principal of Mt Hagen Park Secondary School - grounds for judicial review - failure to comply with selection and appointment procedures - Teaching Service Act - sections 27 and 39 - views of parents and community - whether mandatory consideration - failure to take into account - effect - Teaching Service Act, - Section 71 - acting appointments - no right to tenureship - revocation of acting appointment at any time - Teachings Services Act - section 35 -advertisement of vacant position within Teaching Services - whether appointing authority illegally appointed - amending and repealing of Organic Law on Provincial Governments & Local Level Governments - section 10 - came into force on 29 January 2007 - heads of rural local level governments and one representative of heads of urban local level governments ceased to be members of the provincial executive council - appointment of members of provincial education board made by provincial executive council comprising of heads of rural local level governments and one representative of heads of urban local level governments - decision to revoke appointment made on 24 January 2008 - whether subsequent decisions of appointing authority legal.


PRACTICE AND PROCEDURE - oral application for leave to further amend pleadings - National Court Rules - Order 8, rule 50 - new and additional reliefs sought in originating summons - application made during trial - whether leave should be granted to further amend originating summons - considerations for application for leave to amend pleadings - necessary to determine real issues - to prevent multiplicity of proceedings - no prejudice to defendants as defendants aware of nature of amendment prior to and during trial - application for leave to amend granted.


PRACTICE & PROCEDURE - further application for leave to apply for judicial review - application for leave made during trial - decision of western highlands provincial executive council to appoint members of provincial education board on 3 December 2007 - order in the nature of certiorari to quash decision - ground for judicial review already pleaded in statement in support - provincial education board not legally appointed - amendment and repealing of Organic Law on Provincial Governments & Local Level Governments - section 10 - heads of rural local level governments and one representative of heads of urban local level governments ceased to be members of provincial executive council - came into force on 30 January 2007 - whether decision of members of provincial education board to revoke first plaintiff as acting principal and appointment of third defendant as principal on 24 January 2008 valid - decision made after section 10 Organic Law on Provincial Governments & Local Level Governments came into force - decision void abinitio - by operation of law.


ORDERS - application for leave to apply for judicial review granted - application for judicial review upheld - orders for certiorari and declarations granted - quashing decision of western highlands provincial executive council to appoint members of provincial education board on 3 December 2007 - quashing of decision of provincial education board to revoke first plaintiff as acting principal and appointing third defendant as principal on 24 January 2008 - not appropriate case for court to substitute its own decision - decision to appoint principal appropriate for appointing authority to make - appropriate authority well placed and informed in its area of specialty to make decision - order directing western highlands provincial executive council to appoint new members of provincial education board - to avoid unfair and bias decision by old members provincial education board - National Court Rules - Order 16, rule 9(4) - matter remitted to new provincial education board for decision.


PRACTICE & PROCEDURE - consequential order for damages - National Court Rules - Order 16, rules 7 & 9(5) - not appropriate case for award of damages - order further conduct of proceeding to claim damages by way of pleadings - orders accordingly.


Cases cited:


Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122.
Central Pomio Logging Corp Pty Limited -v- Collector of Customs & The State [1992] PNGLR 20.
Motor Vehicle Insurance Trust Limited -v- Komboro George [1993] PNGLR 477.
Lawrence Kalaivi & Others -v- George Arua (1999) N1922.
Polem Enterprise Limited -v- Attorney General of Papua New Guinea & The State (2006) N2968.


Legislations Cited:


Constitution of Papua New Guinea
Organic Law on Provincial Governments and Local Level Governments.
Teaching Service Act.
Education Act.
Western Highlands Provincial Education Act No 01 of 2001.
National Court Rules.


Other Texts & Materials:


Michael Ntumy, Administrative Law of Papua New Guinea, 2nd ed, CBS Publishers & Distributors, 2003 .


Counsels:


Mr D. Gonol, for the Plaintiffs.
Mr B. Aipe, for the Defendants.


31 March, 2008


1. MAKAIL AJ: Introduction: By an Amended Originating Summons filed on 12 February 2008 the Plaintiffs bring this application for judicial review to review the decision of the First and Second Defendants of 24 January 2008 which revoked the appointment of the First Plaintiff as the acting Principal of the Mt Hagen Park Secondary School and in his stead appointed the Third Defendant as Principal of that school.


2. Mt Hagen Park Secondary School is one of the biggest Secondary schools in the country and is located in the heart of Mt Hagen town in the Western Highlands Province.


3. The subject decision was communicated to the Plaintiffs by way of a letter addressed to the Second Plaintiff dated 24 January 2008 and it reads in part as follows:


"RE: APPOINTMENT PETITION


Your correspondence pertaining to the above mentioned is received and acknowledged.


Thank you for the petition.


The Provincial Education Board in its Special Meeting No: 3/2008 DATED 24 January 2008 deliberated on the matter and resolved to the following:

Resolution 6-3/2008,

Glen Kundin/Peter Wama

-That this Board upheld the decision of the PEB Mr Opa to take up his posting at Kombolopa High School and Mr Mann Tambili to resume at Hagen Park Secondary as recommended for tenureship against the Principal’s position and,

-That this Board also took into consideration on the views expressed by the Board of Governors and the Board advise that the protestors may seek legal opinion on the PEB decision if they are not satisfied with the decision.,

Unanimous - carried.


If you not happy with the decision, we suggest you may seek other avenues to sort this matter.


Thank you,


HANS GIMA

CHAIRMAN

PROVINCIAL EDUCATION BOARD - WHP"


4. On 18 February 2008, the National Court granted leave to the Plaintiffs to review the above stated decision. This is the decision that is subject of this judicial review.


5. I say this because at the hearing of the application for judicial review on 6 March 2008, the Plaintiffs’ lawyers sought leave to further amend the pleadings in the Amended Originating Summons filed on 12 February 2008 to add new reliefs to be sought from the Court. They are, first for leave to apply for judicial review of the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 and secondly, an Order in the nature of Certiorari to quash that decision. Finally, they seek an order in the nature of a Declaration to declare that decision null and void. I will return to discuss this point later on in this Judgment.


6. The Amended Originating Summons filed on 12 February 2008 only seeks the following Orders:


"1. Leave be granted to the Plaintiffs to have the decision of the Western Highlands Provincial Education Board (herein after PEB) made in December 2007 and posted on notice on the 19 January 2008 to remove the First Plaintiff as Principal of Hagen Park Secondary School and appoint the Third Defendant and upheld on the 24 January 2008 be judicially reviewed.


2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the First and Second Defendants to remove the First Plaintiff and in its stead appoint the Third Defendant as Principal of Hagen Park Secondary School, in December 2007 and posted on notice on the 19 January 2008 and upheld on the 24 January 2008.


3. An order that the appointment of the Third Defendant as Principal of Hagen Park Secondary School is null and void.


4. An order that the First Plaintiff be re-appointed as the Principal of Hagen Park Secondary School for the year 2008.


5. Monetary Compensation for pain, anxiety, inconvenience, mental distress and hardship caused.


6. Costs of the proceedings.


7. Such other or further orders the Honourable Court deems fit."


GROUNDS FOR REVIEW


7. In the Amended Statement in Support for Judicial Review filed on 12 February 2008, the Plaintiffs rely on the following grounds for review:


"3. (a) The First and Second Respondents did not comply with the

provisions under Section 39 of the Education Services Act in that:


(i) The School Board (second plaintiff) rejected the application of the third defendant and did not recommend him for the position of principal.


(ii) The Provincial Education Board seeing the only applicant rejected or not recommended failed to write to or consult the Board of Governors or call for another nomination.


(iii) If the Provincial Education Board wrote to the Board of Governors (Second Plaintiff), then, the Board of Governors would have submitted a nomination, but that did not happen.


(iv) If the Board of Governors, was accorded the opportunity to nominate and if an acceptable nomination was not received within 14 days then the Provincial Education Board would re-advertise as there is a vacancy. All these procedures were not followed.


(v) The Provincial Education Board, without the input and knowledge of the Board of Governors, appointed in their own accord the Third Defendant as Principal of Hagen Park Secondary School.


(b) The views of the parents, community leaders and citizens were not taken into account when the appointment was made.


(c) The first and second did not have the powers to appoint the third defendant as Principal of Hagen Park Secondary School.


(i) the Composition of members of the Provincial Education Board is illegal. They were not properly appointed.


(ii) The proper procedure for appointment of Provincial Boards is that the chairman responsible for any particular activity or ministry makes a Provincial Executive Council (PEC) submission recommending certain individuals to be members on a Board, in this case, the Provincial Education Board (PEB). The PEB then considers and makes changes and endorses those recommended for appointment.


(iii) The Provincial Executive Council decision to endorse any Boards must be in the form of a PEC Resolution and properly recorded in the Provincial Executive Council Minutes.


(iv) The above Procedures were not followed when appointing the PEB Board. There are no proper PEC Resolutions in respect of same.


(d) The members of the Provincial Government and the Provincial Executive Council, consisted of Presidents of the various Local Level Governments and members of the National Parliament. The status of Presidents of LLGs, as members of Provincial Governments, and subsequently PEC members ceased by operation of law pursuant to amendments made to the Organic Law on Provincial and Local Level Governments that came into force on the 30 January 2007. Therefore, the PEC comprising council Presidents with the Governor to appoint the Provincial Education Board on the 3 December 2007 was void abinitio. It follows therefore, that any decisions made by this illegally constituted Board is also void abinitio including the third defendant as Principal of Hagen Park Secondary School.


The Chairman of Education in the Western Highlands Provincial Government then was a Council President."


EVIDENCE


1. In support of the application, the Plaintiffs rely on the following Affidavits:


(a) Affidavit of Simon Opa sworn and filed on 30 January 2008 and filed on 31 January 2008 (Exhibit "P1");


(b) Affidavit of Simon Opa sworn and filed on 31 January 2008(Exhibit "P2");


(c) Affidavit of Simon Opa sworn and filed on 8 February 2008 (Exhibit "P3");


(d) Additional Affidavit of Simon Opa sworn and filed 11 February 2008 (Exhibit "P4");


(e) Affidavit of Jacob Tapp sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P5");


(e) Additional Affidavit of Jacob Tapp sworn and filed 13 February 2008 (Exhibit "P6");


(f) Affidavit of Timothy Roika sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P7"); and


(g) Affidavit of Onda Koim sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P8").


2. The First Plaintiff also gave oral evidence and was cross examined by counsel for the Defendants.


3. In opposing the application, the Defendants rely on the following Affidavits:


(a) Affidavit of Hans Gima sworn on and filed on 11 February 2008 (Exhibit "D1");


(b) Affidavit of Paul Yane sworn on and filed on 13 February 2008 (Exhibit "D2");


(c) Affidavit of Mann Tambili sworn on and filed on 13 February 2008 (Exhibit "D3");


(e) Supplementary Affidavit of Hans Gima sworn on and filed on 13 February 2008 (Exhibit "D4"); and


(c) Affidavit of Paul Yane sworn on and filed on 6 March 2008 (Exhibit "D5").


UNDISPUTED FACTS


8. From the Affidavits of the witnesses of the Plaintiffs and also the Defendants, the following emerged as facts not in dispute:


1. The First Plaintiff was the acting Principal of Mt Hagen Park Secondary School in 2007. Prior to that, he was the Principal of Tambul High School and Kitip Secondary School, both in the Western Highlands Province.


2. The Third Defendant was the former Principal of Mt Hagen Park Secondary School. He resigned in October 2006 to contest the 2007 National General Elections. After being unsuccessful in his bid to be elected a member of the National Parliament, he applied for the position of Principal of Mt Hagen Park Secondary School after the position was advertised in the Education Gazette.


3. On 3 December 2007, the Provincial Executive Council of the Fifth Defendant appointed the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant.


4.At the time when the Provincial Executive Council of the Fifth Defendant appointed the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant, a Mr Talu Mangi, the President of Nondugol Local Level Government as a member of the Provincial Executive Council in the Fifth Defendant and also the Chairman of the Education Ministry which included the Council Presidents and Honourable Tom Olga as Governor.


5. Mr Mangi was the person who effected the said appointments by signing the instrument of appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant in accordance with the decision of the Provincial Executive Council of the Fifth Defendant on 3 December 2007.


6. Prior to or around the same time, applications for teaching positions including that of Principal of Mt Hagen Park Secondary School were also received by the School Board of Governors of Mt Hagen Park Secondary School, being the Second Plaintiff for consideration and recommendation to the First and Second Defendants for final decision.


7. The Second Plaintiff did not receive any application from the Third Defendant for the position of Principal. As a result, it did not recommend the Third Defendant as one of the suitable applicant for the position to the First and Second Defendants for approval or final decision.


8. On 24 January 2008, First and Second Defendants made appointments of teachers for all schools in the Western Highlands Province including the Mt Hagen Park Secondary School. The First and Second Defendants revoked the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and in his place appointed the Third Defendant to that position.


9. As noted above, the First and Second Defendants appointed the Third Defendant as Principal despite not being recommended by the Second Plaintiff for the position of Principal of Mt Hagen Park Secondary School to the First and Second Defendants.


10. The First Plaintiff was appointed Headmaster of Kombolopa High School. At this point in time, Kombolopa High School is not in operation because of tribal fights in the area where it is located.


11. Prior to all these events, on 8 November 2006, the National Parliament passed amendments to the Organic Law on Provincial Governments and Local Level Governments. By Amendment No 10, the National Parliament changed the composition of the Provincial Assemblies, the eligibility for occupation of and the vacation of the office of the Deputy Governor, the composition of the Provincial and Local Level Government administrative system in the provinces.


12. On 30 January 2007, Amendment No 10 of the Organic Law on Provincial Governments and Local Level Governments came into force in accordance with section 110 of the Constitution after it was certified by the Speaker of the National Parliament.


13. Section 1 of Amendment No 10 repealed section 10(3)(b) & (c) of the principal section 10 of the Organic Law on Provincial Governments and Local Level Governments by removing all heads of the Local Level Governments and representatives of the Urban Local Level Governments from the Provincial Assemblies. That meant that, only members of the National Parliament representing the electorates in the provinces and only appointed members constitute or make up the Provincial Assemblies and the Provincial Executive Councils.


14. Upon realizing that Mr Mangi had ceased to be a member of the Provincial Executive Council of the Fifth Defendant by virtue of being a head of a Rural Local Level Government, being the President of Nondogul Local Level Government and participated in the decision making process of the appointment of the members of the Second Defendant including that of the First Defendant as Chairman of the Second Defendant by signing the instrument of appointment on 3 December 2007, the Honourable Governor, Tom Olga decided to correct the error by signing another instrument of appointment of the members of the Second Defendant including the First Defendant as Chairman of the First Defendant on 5 March 2008.


15. This followed a Resolution made at a Special Provincial Executive Council meeting of the Fifth Defendant the same date, 5 March 2008.


ISSUES


9. The pertinent issues in this application for judicial review are as follows:


1. whether the heads of Rural Local Level Governments and also heads of the Urban Local Level Governments (Council Presidents) were still members of the Provincial Assembly who are subsequently members of the Provincial Executive Council of the Fifth Defendant on 3 December 2007;


2. if they were not, did the Provincial Executive Council of the Fifth Defendant have the power to make the appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007?


3. If the Provincial Executive Council of the Fifth Defendant did not have the power to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant, do the First and Second Defendants have the power to appoint the Principal of Mt Hagen Park Secondary School?


4. If the First and Second Defendants did not have the power to make the appointment, whether any subsequent decisions the First and Second Defendants made on the appointment of the Principal of Mt Hagen Park Secondary School null and void abinitio.


5. whether section 39 of the Teaching Services Act was complied with.


6. whether the views of the parents, community leaders and concern citizens were taken into account when arriving at the decision to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointing the Third Defendant as Principal under section 27 of the Teaching Services Act.


7. whether proper procedures were followed by the Provincial Executive Council of the Fifth Defendant to have the members of the First and Second Defendants appointed on 3 December 2007.


8. whether the Plaintiffs are entitled to review the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 when they have not sought leave to review this decision and any form of reliefs in their Amended Originating Summons filed on 12 February 2008.


9. whether the Plaintiffs have exhausted any available alternative administrative remedies.


THE LAW - JURISDICTION


10. The Court’s jurisdiction to review actions and decisions of administrative, statutory and quasi judicial bodies is found under section 155(4) of the Constitution and Order 16 of the National Court Rules.


Order 16 rule 1 of the National Court Rules states as follows:


"1. Cases appropriate for application for judicial review.


(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.


(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to -


(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and


(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and


(c) all the circumstances of the case,


it would be just and convenient for the declaration or injunction to be granted on the application for judicial review."


11. In the often quoted case on application for judicial review, Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122, it is said that judicial review is available where the decision making authority exceeds it powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abused its powers.


RULING


12. This application for judicial review raises a number of issues for determination which I have already set out at the beginning of my judgment. At the outset, it is very important to understand that


"the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See page 124 of Kekedo -v- Burns Philip’s case (supra).


13. And so, applying this fundamental principle of law in applications for judicial review to the present case, the questions I ask are; first have the Plaintiffs made out a case where it is clear that the Defendants and in particular, the First and Second Defendants did not follow the established processes or procedures to arrive at their decision of 24 January 2008 to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointing the Third Defendant as Principal?


14. Secondly, have the Plaintiffs made out a case where it is clear that the Defendants, in particular, the Fifth Defendant was not properly and legally constituted to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007?


GROUND ONE (Ground 3(a) of Amended Statement in Support)


For the benefit of all the parties, I repeat by setting out in full the first Ground of review below as follows:


"3. (a) The First and Second Respondents did not comply with the provisions under Section 39 of the Education Services Act (sic) in that:


(i) The School Board (second plaintiff) rejected the application of the third defendant and did not recommend him for the position of principal.


(ii) The Provincial Education Board seeing the only applicant rejected or not recommended failed to write to or consult the Board of Governors or call for another nomination.


(iii) If the Provincial Education Board wrote to the Board of Governors (Second Plaintiff), then, the Board of Governors would have submitted a nomination, but that did not happen.


(iv) If the Board of Governors, was accorded the opportunity to nominate and if an acceptable nomination was not received within 14 days then the Provincial Education Board would re-advertise as there is a vacancy. All these procedures were not followed.


(v) The Provincial Education Board, without the input and knowledge of the Board of Governors, appointed in their own accord the Third Defendant as Principal of Hagen Park Secondary School.


15. Mr Gonol submitted that the Defendants failed to comply with the procedures under section 39 of the Teaching Services Act when they made the decision to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointed the Third Defendant as Principal. He submitted that section 39 of the Teaching Services Act provides for the procedures of selection and appointment of teachers including Principals of schools in Papua New Guinea. They are as follows:


1. The School Board of Governors receives the applications from interested persons to teach in the school and deliberates on the suitable applicants for decision;


2. Once a decision is made on the suitable applicants for the positions including that of the principal, the names of the suitable applicants are submitted to the Provincial Education Board for final decision;


3. Upon receiving the names of the suitable applicants, the Provincial Education Board deliberates and makes a final decision;


4. If the Provincial Education Board rejects the names of the suitable applicants, it shall immediately inform or notify the School Board of Governors of its decision;


5. The School’s Board of Governors will then re submit a new list of names of suitable applicants to the Provincial Education Board to deliberate and make a final decision;


6. If the Provincial Education Board rejects the names of the suitable applicants submitted to it the second time, it shall inform or notify the School’s Board of Governors immediately of its decisions; and


7. The School Board of Governors will then call for new applications by re advertising the positions including that of the Principal.


16. Mr Gonol of counsel for the Plaintiffs strenuously argued tht the Defendants failed to comply with the requirements or procedures set out in clauses 4 to 7 above in that they failed to do the following:


1. When they rejected the names of the suitable applicants, the First and Second Defendants should have immediately informed or notified the Second Plaintiff of their decision; and


2. This will enable the Second Plaintiff to then resubmit a new list of names of suitable applicants to the First and Second Defendants to deliberate and make a final decision; and


3. If the First and Second Defendants rejected the names of the suitable applicants submitted to them the second time, they should have informed or notified immediately the Second Plaintiff of their decision; and


4. The Second Plaintiff would have called for new applications by re advertising the positions including that of the Principal.


17. Mr Aipe of counsel for the Defendants first, submitted that the Plaintiffs’ reliance on section 39 of the Teaching Service Act 1988 as one of the grounds for the application for judicial review is misconceived.


Section 39 is in the following terms:


Appointments in Provincial High and Technical Schools and in National Institutes.


"(1) Appointments to positions in a Provincial High School or a Technical School shall be made by the Provincial Education Board, after having received the recommendation of the Board of Governors of the School concerned.


(2) Appointments to positions in a National Institution shall be made by the National Education Board, after having received the recommendation of the Governing council of the National Institution concerned.


(3) If the appointing authority is not prepared to accept the nomination of the governing body concerned, it shall call for another nomination, and if an acceptable nomination is not received within 14 days of the vacancy shall be re-advertised."


18. He submitted that section 39 is not applicable to the issue before the court because of the following reasons:


1. Section 39 refers to a Provincial High School and Technical Schools. The Mt Hagen Park Secondary School is a Secondary School and is totally different from the Provincial High School. In other words, Mt Hagen Park Secondary School is not a Provincial High School. To support this proposition, he referred to section 2 of the Western Highlands Provincial Education Act which defines a "Provincial High School" as a school established under this Act for the purpose of providing High School Education.


And a "Provincial High School Education" means full time education given in accordance with curricula determined under section 27 of the Education Act. And a "Secondary Education" means a school established under this Act to provide Secondary School Education.


2. Section 39 applies to advertised vacancies existing in any schools. These advertisements call for teachers who have the necessary and relevant qualifications to apply for these positions. Those who do not meet the criteria for selection do not apply. The First Plaintiff did not apply for that position and did not either have the necessary and relevant qualifications or the substantive level nine (9) position to qualify for the appointment.


3. The First Plaintiff did not apply for the position advertised in the Education Gazette volume 34 No. 2 dated the 20 August 2007 because he did not have the necessary and relevant qualification or as they say in Education, the Eligibility nor the Substantive Level nine (9) positions. He would not have been selected even if he had applied as is noted from Annexure "B1" and "B2" of the Supplementary Affidavit of Hans Gima sworn and filed on 11 February 2008. (Exhibit "D1").


4. The only person who applied for the position was the Third Defendant, Mr. Mann Tambili. The Third Defendant has the necessary and relevant qualification and holder of a substantive level nine (9) position. There can be no argument or dispute that the First Plaintiff’s substantive level is level four (4) and the position of Principal of Mt Hagen Park Secondary School is a level nine (9) position.


19. I have considered carefully the submissions of both counsel and also the evidence of the Plaintiffs and the Defendants on this Ground of review and I have reached the conclusion that the procedures under section 39 of the Teaching Services Act do not apply in this present case.


20. I do not accept the submission of Mr Gonol of counsel for the Plaintiffs that section 39 of the Teaching Services Act applies to the present case. My reasons are first, Secondary Schools are different to High Schools. I consider that there is a minor but a fundamental distinction between High Schools and Secondary Schools by their very own definition under section 2 of the Western Highlands Provincial Education Act No 1 of 2001.


21. A "Provincial High School" is defined as "a school established under this Act for the purpose of providing High School Education," and a "Provincial High School Education" is defined as a "full time education given in accordance with curricula determined under section 27 of the Education Act" whilst "Secondary School" means "a school established under this Act to provide Secondary School Education." Secondary School Education means "full time education given in accordance with curricula determined under section 27 of the Education Act for four years from Grade 9 to Grade 12." (Emphasis is mine)


22. Whilst I accept Mr Gonol’s submission where he neatly categorized the various schools under the reforms of the Education system in Papua New Guinea, they being the High Schools having Grades 7 to 10, Secondary Schools having Grades 9 to 12 as opposed to National High Schools having Grades 11 to 12, I am respectfully of the view that there is a difference between a High School and Secondary School.


23. Whilst both schools provide full time education to students, the difference is that, High Schools provide full time education to students from Grade 7 to Grade 10 and Secondary Schools provide full time education to students from Grade 9 to Grade 12. In terms of the grading, Secondary Schools have two grades up from High Schools, that is, they have Grades 11 and 12. This is where the eligibility criteria of teachers including Principals come into play.


24. Although, the parties have not specifically addressed me on this point, I consider that the eligibility criteria of teachers and Principals of Secondary Schools are higher than those of teachers and headmasters of High Schools. For example, in terms of academic qualification, a Principal of a Secondary School may be required to have a Bachelors Degree in Education whilst it may not be a requirement for a Headmaster of a High School. In this case, it is not disputed by the parties that Mt Hagen Park Secondary School is a level 9 school. This is where I appreciate the Defendants’ point of contention that the teaching level of the First Plaintiff is level 4. As such he does not meet the eligibility criteria to qualify for a substantive or permanent appointment as Principal of a level 9 school, being Mt Hagen Park Secondary School notwithstanding the number of years of teaching experience.


25. Therefore, I am of the view that the procedures under section 39 of the Teaching Service Act 1988 only apply to High Schools and not to Secondary School and so they do not apply here.


26. If this is the case, the question is; what then would be the procedures for appointment and selection of teachers and Principals for Secondary Schools and what law would provide for these procedures?


27. This leads me to the second reason for rejecting the Plaintiffs’ submission that section 39 of the Teaching Service Act 1988 applies to this case. The reason is this; Papua New Guinea has a National Education System. Section 3 of the Education Act 1983 provides for the National Education System as follows:


"3 National Education System


(1) Subject to Section 42 of the Organic Law on Provincial Governments and Local Levels there shall be a National Education System that shall be administered by the National Government and by the Provincial Governments:


(2) The National Education System shall consist of-


(a) a national component comprising national institutions; and


(b) provincial component comprising member schools other than national institutions in each province, with which is associated the Teaching Service regulated by the Teaching Service Commission.


(3) The National Education System shall be administered in accordance with, and for the objects and purposes expressed in-


(a) this Act; and


(b) any other laws of the Parliament relating to education matters; and


(c) provincial education laws in relation to a matter within Section 42 of the Organic Law on Provincial Governments and Local Level Governments."


28. The Western Highlands Province is one of the provinces in the country very fortunate to administer its component of the National Education system after "Waigani" decentralized its powers to the Provincial Governments and Local Level Governments through the process of reformation after the National Parliament passed the amendments to the Organic Law on Provincial Governments and Local Level Governments in 1995.


29. This was made possible when the Western Highlands Provincial Government enacted a provincial law to govern and regulate its education matters in the province subject to some areas where reference can be made to the Education Act 1983 and the Teaching Service Act 1988, like for appeals to the Teaching Service Commission. This provincial law is called the Western Highlands Provincial Education Act No 1 of 2001.


30. By contrast, sections 30 and 31 of the Education Act 1983 apply to provinces which do not have an Education Board. This is where in my view the Education Act 1983 is inapplicable in so far as matters concerning or relating to the Education Board. This is because by section 42(1)(b) of the Organic Law on Provincial Governments and Local Level Governments, the Western Highlands Provincial Government legislature enacted the Western Highlands Provincial Education Act No 1 of 2001 to govern primary, "secondary", technical and vocational education, but not the curriculum of the schools. The determination of the curriculum is the responsibility of the national Minister for Education under section 27 of the Education Act 1983.


31. By section 5 of the Western Highlands Provincial Education Act No 1 of 2001, the administration of the Provincial component of the National Education system is administered by the following authorities in the province:


1. The Provincial Executive Council; and

2. The Chairman; and

3. The Provincial Education Board; and

4. The Advisor; and

5. The Teaching Service Commission; and

6. Local Government Councils; and

7. Education agencies; and

8. Governing bodies of member schools; and

9. The District Education Office; and

10. The District Education Board.


32. This is where the Provincial Executive Council of the Fifth Defendant is given the mandate under section 9(f) of the Western Highlands Provincial Education Act No 1 of 2001 to establish the Provincial Education Board and approve its membership etc.. And the Provincial Education Board is established by section 15 of the Western Highlands Provincial Education Act No 1 of 2001 comprising of the following members whose appointments shall be published in the Provincial Gazette:


1. The Education Advisor; and


2. A person responsible for advising the Provincial Administration on planning matters; and


3. Three (3) members appointed from a panel of names nominated by the Local Governments to represent their views and interests; and


4. Two (2) members appointed from a panel of names nominated by an association representing the interests of teachers in the Province; and


5. Three (3) members appointed from a panel of names nominated by an association or by associations jointly recognized by the Provincial Executive Council as representing the interests of churches;


6. One (1) person representing the interests of women in the Province;


7. One person representing business community; and


8. One member appointed by the Provincial Executive Council from a panel of list to represent District Education Board.


33. Under section 14 of the Western Highlands Provincial Education Act No 1 of 2001, the chairman is also referred to as the Education Advisor and a member, means a member of the Provincial Education Board or his alternate.


34. To my mind, as far as appointments of teachers including Principals for all secondary schools in the Western Highlands Province like in this case, the Mt Hagen Park Secondary School are concern, they come under the jurisdiction of the First and Second Defendants under section 19(g) of the Western Highlands Provincial Education Act No 1 of 2001. Section 19(g) provides that:


"Subject to this Act, the functions of the Provincial Education Board are:- (g) with due regard to the expressed wishes of teachers and education agencies concerned undertake responsibilities in relation to members of the Teaching Service in relation to their-


(i) appointment and promotion to positions in schools; and

(ii) transfer from one school to another; and

(iii) discipline within the Province, in accordance with the Teaching Service Act 1988."


35. Now, a school is defined by section 2(i) of the Western Highlands Provincial Education Act No 1 of 2001 as an institution for providing "secondary education" and by section 2 of the same Act, a secondary school is defined as "a school established under this Act to provide secondary school education" and a secondary school education is defined as "full education in accordance with curricula determined under Section 27 of the National Education Act for four years from Grade 9 to Grade 12." Further, section 3(1)(f) of the same Act, provides that the Western Highlands Provincial Component of the National Education System shall consist of secondary schools.


36. Based on the above provisions of the Western Highlands Provincial Education Act No 1 of 2001, I conclude that the procedures under section 39 of the Teaching Service Act 1988 do not apply here. In my view, section 39 of the Teaching Service Act 1988 has been incorrectly applied to the facts of this case.


37. I said incorrectly because in my view, there is a correct procedure on the appointment of teachers including Principals for Secondary Schools, in this case, Mt Hagen Park Secondary School available under the Western Highlands Provincial Education Act No 1 of 2001. Let me explain this further; section 19(g) of the Western Highlands Provincial Education Act No 1 of 2001, expressly states that one of the functions of the Provincial Education Board is to have due regard to the expressed wishes of teachers concerned when undertaking its responsibilities in relation to the members of the Teaching Service in relation to their appointment and promotion in schools and also in relation to transfer from one school to another. (Emphasis is mine).


38. In my view, I think the expressed wishes of teachers concerned refers to the written applications of the teachers and Principals to positions within the secondary schools in the Western Highlands Province after the positions are advertised. In my view, this is the only way the Provincial Education Board will know the views or expression of interest of the teachers and Principals on which positions, promotions and transfers they are interested. Otherwise, the Provincial Education Board will make decisions on the positions, promotions and transfers in isolation. This will create dissatisfaction and disharmony amongst the parties. (Emphasis is mine).


39. Now the notable body missing in section 19(g) of the Western Highlands Provincial Education Act No 1 of 2001 is the Board of Governors. Does this mean that the Board of Governors are completely left out of the decision making process on appointments, promotions and also transfers of teachers and Principals of Secondary Schools? I think not. There is section 19(2) of the Western Highlands Provincial Education Act No 1 of 2001 which states that; "In the exercise and performance of its powers and functions, the Provincial Education Board shall, as appropriate, consult and co-operate with, and render advice to the Provincial Executive Council, Local Government Councils, the Teaching Service Commission, education agencies and governing bodies of the schools in the Province, on matters in which they or any of them have common interests." (Emphasis is mine).


40. Again, in my view section 19(2) imposes on the Provincial Education Board, in appropriate cases an obligation to consult and co-operate with the governing bodies of the schools in the Province, on matters in which they or any of them have common interests. In my view, some examples of common interests are the teachers and Principals’ appointments and promotions in schools and also transfers from one school to another. This is where the Provincial Education Board and the governing bodies must consult and co-operate with each other to arrive at a decision which will be fair and equitable for all parties in terms of appointments, promotions and transfer of teachers and Principals of secondary schools.


41. And so, I believe this is where the Provincial Education Board should consider any appropriate recommendations of suitable applicants submitted by the Board of Governors of the secondary schools for teaching positions including positions of the Principals before it makes a final decision. At the end of the day, the final decision rests with the Provincial Education Board.


42. It seems to me that these were the procedures the Plaintiffs are complaining about which they submitted were not followed by the First and Second Defendants in arriving at their decision to revoke the appointment of the First Plaintiff as acting Principal and to appoint the Third Defendant as Principal.


43. However, they relied upon the procedures to appoint a Principal under a law, being section 39 of the Teaching Service Act 1988 which I have already found in applicable to Secondary Schools.


44. Therefore, in my view the Plaintiffs should have based their Ground for review under the provisions of the Western Highlands Provincial Education Act No 1 of 2001 and not under section 39 of the Teaching Services Act 1988. They have not done so. That is the end of the Ground of review under section 39 of the Teaching Service Act 1988.


45. This leads me to the third reason for me to reject the submission of the Plaintiffs that section 39 of the Teaching Service Act 1988 applies to the present case. The reason is this; there is no evidence before me to show that the National Minister for Education has made a declaration by publication in the National Gazette under section 19 of the Education Act 1983 that Mt Hagen Park Secondary School is a national institution.


Section 19 of the Education Act 1983 provides that:


"19 Powers in relation to national institutions


(1) The Minister may, acting with and in accordance with, the advice of the National Education Board and, in the case of a provincial institution, with the written approval of the appropriate Provincial Government, by notice in the National Gazette, declare a school or class of schools to be a national institution or national institutions.


(2) Where a school or class of schools has been declared under Subsection (1) to be a national institution or national institutions, the National Education Board shall exercise all the powers, functions, duties and responsibilities in relation to that institution or institutions as are prescribed under this Act or any other relating to education matters.


(3) Where a school has been declared under Subsection (1) to be national institution, the Minister shall declare the governing body to be -


(a) a Board of Management; or


(b) a Board of Governors; or


(c) a Governing Council,


and the education agency for the national institution shall establish the governing body in accordance with the direction of the Minister."


46. The difference between a National Institution and a Provincial Institution is important because under section 39(2) of the Teaching Service Act 1988, it provides that the appointments to positions in a National Institution shall be made by the National Education Board, after receiving the recommendation of the Governing Council of the Institution concerned. And so, if Mt Hagen Park Secondary School is a National Institution as declared by the National Minister for Education, then in my view it is the National Education Board who is responsible for the appointment of all the teachers including the Principals after receiving the appropriate recommendation from the Governing Council of the Institution.


47. However, as I have said earlier, there is no evidence before me to show that the National Minister for Education has made a declaration by publication in the National Gazette under section 19 of the Education Act 1983 to show that Mt Hagen Park Secondary School is a national institution. Further, I think it is not because Mt Hagen Park Secondary School does not have a Governing Council. Governing Councils only apply to national institutions by virtue of section 39(2) of the Teaching Service Act 1988. Mt Hagen Park Secondary School has a Board of Governors which is the Second Plaintiff in this application for judicial review.


48. If however, Mt Hagen Park Secondary School is indeed a national institution, then both counsel have failed in their duty by not placing the appropriate evidence before me to show that, this is the case. Thus, I have no other choice but to find that Mt Hagen Park Secondary School is not a national institution, therefore section 39(2) of the Teaching Service Act 1988 does not apply to this case.


49. Furthermore, section 39(1) of the Teaching Service Act 1988 provides that appointments to positions in a "provincial high school" or technical school shall be made by the Provincial Education Board, after receiving the recommendation of the Board of Governors of the school concerned. I do not see any where in subsections (1),(2) and (3) of section 39 the word "Secondary School" being mentioned. Only the word, "Provincial High School" is mentioned in section 39(1). And so, as Mt Hagen Park Secondary School is a secondary school, in my view section 39 of the Teaching Service Act 1988 does not apply to it. (Emphasis is mine). It follows that the procedures under section 39 are inapplicable to this case and the Plaintiffs have incorrectly applied it.


50. Fourthly, I accept the submission of the Defendants that section 39 of the Teaching Service Act 1988 applies only to advertised vacancies for tenureship appointments and not to acting appointments. In other words, if there is a vacancy in a school and the vacant position is advertised by either the National Education Board or the Provincial Education Board, interested applicants may apply for the vacant positions.


51. In cases where there is a vacancy of the position in the Teaching Service, it shall be filled according to the provisions of the Teaching Service Act 1988. This is where the provisions under Division 2, Subdivision A of the Teaching Service Act apply. Section 35 of the Teaching Service Act 1988 provides that the National Education Board and the Provincial Education Board may by advertisement, invite persons to apply for appointment to vacant positions in the Teaching Service and unless the Teaching Service Commission otherwise approves, all vacant positions (including positions filled by acting appointments under Section 71, or by teachers appointed under Section 72) shall be advertised, at once in each calendar year, in accordance with the succeeding provisions of this section.


52. Section 37 of the Teaching Service Act 1988 is relevant. It provides for appointments to vacant positions in the teaching service as follows:


"37 Appointments to vacant positions


(1) Where a vacancy exists in a position in the Teaching Service, it shall be filled in accordance with this Division.


(2) Where the vacancy exists in a base level position, it shall be filled by the appointment of the most suitable person for the position, irrespective of whether or not he is a member of the Teaching Service.


(3) The right to appoint under Subsection (2) a person who is not a member may be limited by the Commission if in its opinion it is likely that the total number of members available for duty substantially exceeds the total number of available institutional and general non institutional positions.


(4) Where the vacancy exists in a promotional position, the vacancy shall not be filled from outside the Teaching Service, unless after the procedures prescribed by Section 60 have been carried out, the Commission is satisfied that no member of the Service who is an applicant for the position is as suitable for the position as the proposed appointee who is not a member.


(5) Notwithstanding any other provision of this Division, where a vacancy exists in a position, the vacancy shall not be filled on a substantive basis by an applicant who is in first year of service in a different substantive position at the same level as the vacant position.


(6) In making an appointment, an appointing authority shall take into account the education philosophy and identity of the educational institution concerned and not appoint a person who is unable to meet the qualifications, including the personal attributes or qualifications referred to in Section 29(6), but a member shall not be refused appointment solely on the ground of his sectarian, tribal or party-political beliefs or affiliations."


53. And section 71 of the Teaching Service Act 1988 provides for acting appointments as follows:


"71 Acting appointments


(1) Where a member of the Teaching Service is absent from his position or unable to perform the duties of his position, or there is a vacancy in a teaching position, the appointing authority may appoint another member to act in place of the member during his absence or inability, or may appoint a member to fill the vacancy until a permanent appointment is made.


(2) Where practicable, a member of the Teaching Service with eligibility status for the position shall be given preference in an appointment under this section over a member who has not.


(3) Where no suitable member is available for appointment under this section, a teacher who is not a member may be appointed under Section 72 to fill the vacancy.


(4) A person aggrieved by a decision of an appointing authority under this section may appeal to the Commission, whose decision is final."


54. In this case, I note that the Plaintiffs, in particular the First Plaintiff has no where in his Affidavits stated that he was appointed as acting Principal of Mt Hagen Park Secondary School. Further, no where in the pleadings either in the Amended Originating Summons filed on 12 February 2008 or the Amended Statement in Support of the application did he state that he was appointed acting Principal of the School. On the other hand, I note that the First Plaintiff has deposed in paragraph 3 of his Affidavit sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P1") that he was appointed "Principal" of Mt Hagen Park Secondary School. I do not know whether it was a deliberate act or was simply an act of oversight. But what I do know is that he admitted during cross examination by Mr Aipe of counsel for the Defendant that he was only appointed acting Principal when he answered the following questions as follows:


"Q: Were you acting Principal or Principal?


Ans: Yes, acting Principal of Mt Hagen Park Secondary school.


Q: Appointed to acting Principal after Mann Tambili resigned to contest the elections, is that correct?


Ans: Yes."


55. I state this for the record because it is important to note as I find that the First Plaintiff was appointed as acting Principal of Mt Hagen Park Secondary School. He was not the "Principal". He was acting Principal for the whole of 2007. The First Plaintiff was appointed acting Principal because the permanent or substantive holder of the position of Principal, being the Third Defendant had resigned on 5 October 2006 to contest the 2007 General National Elections. The Third Defendant was the Principal of Mt Hagen Park Secondary School for six (6) years prior to resigning from the position.


56. This is where section 71 of the Teaching Service Act 1988 is relevant. By virtue of section 71(1) of the Teaching Service Act 1988, the position of Principal became vacant and the First Plaintiff was appointed to fill in the vacancy until such time a permanent or substantive appointment is made.


57. The point to be stressed here is that an acting appointment under section 71 of the Teaching Service Act 1988 does not given anyone a right to claim a permanent or substantive appointment of any given position within the Teaching Service, in this case the position of Principal. In other words, to use the words of the First Defendant in paragraph 7 of his Affidavit sworn and filed on 11 February 2008 (Exhibit "D1"); "moreover, an officer appointed to an acting position has no right to tenure to that position and is subject to change anytime by the appointing authority which is the Provincial Education Board. An Acting appointment is made pending advertisement for suitable and qualified officers."


58. Thus, the First Plaintiff’s appointment as acting Principal was subject to revocation at any time whenever a substantive or permanent appointment is made. In order for the vacant position, in this case, the position of Principal of Mt Hagen Park Secondary School to be filled by a permanent or substantive holder, first it starts with it being advertised. It must be advertised in accordance with section 35 of the Teaching Service Act 1988 because section 35 also applies to all positions filled by acting appointments.


59. Section 35 of the Teaching Service Act 1988 provides as follows:


"35 Advertisement of vacancies


(1) Subject to this section, the National Education Board and Provincial Education Boards, may by advertisement, invite persons to apply for appointment to vacant positions in the Teaching Service.


(2) Unless the Commission otherwise approves, all vacant positions (including all positions filled by acting appointments under Section 71), or by teachers appointed under Section 72) shall be advertised, at least once in each calendar year, in accordance with the succeeding provisions of this section.


(3) A vacant base-level position in a community school shall be advertised by the Provincial Education Board.


(4) Vacant promotional positions in community schools, and all vacant positions in provincial high schools, technical schools, vocational centres and national institutions, shall be advertised by the National Education Board in the Education Gazette.


(5) An advertisement under this section shall include as much information as it is reasonably practicable to provide about -


(a) the vacancy; and

(b) the qualifications for the position; and

(c) the nature and location of the educational institution; and

(d) the availability of accommodation; and

(e) the conditions of appointment and service,


and such other information as is directed by the Commission.


(6) This section does not prevent an education agency from publishing in connection with, or in relation to, an advertisement under this section a general statement of its education philosophy and identity for the information of intending applicants." (Emphasis is mine).


60. Here, I accept the submission of Mr Aipe of counsel for the Defendants that the First Plaintiff did not apply for the position of Principal of Mt Hagen Park Secondary School when it was advertised in the National Gazette. So, he is disqualified on this point. On the other hand, I note in paragraph 5 of the Affidavit of the Third Defendant sworn and filed on 3 February 2008 (Exhibit "D3") where he stated that he, "applied for the position as advertised and am led to believe that I am the only person with substantive level nine (9) to have applied."


61. I’d like to believe the Third Defendant’s evidence in relation to his application for the position of Principal of Mt Hagen Park Secondary School but the doubt I have in my mind is this; did he really apply for the position? If he did, I am sure he would have presented before me a copy of his letter of application for the position of Principal to the First and Second Defendants as evidence to support his claim that he had applied for the position.


62. The First Defendant also gave evidence to some extend to support the Third Defendant’s claim that the Third Defendant applied for the position of Principal of Mt Hagen Park Secondary School. See paragraph 8 of the Affidavit of the First Defendant sworn and filed on 11 February 2008 (Exhibit "D1") where this witness said that;


"As per above, Mr Opa was not eligible to apply for that position and he never applied because he did not have neither eligibility or substantive level nine (9) to retain that position on tenureship bases. This was a reason he was replaced by the only person who applied. He was the former principal who had required level and qualification."


63. If what the First Defendant said is true, as the Chairman of the Second Defendant and also an experienced officer of the Education Department in the province having served for 28 years as he boldly deposed in paragraph 2 of his Affidavit in Support sworn and filed on 11 February 2008 (Exhibit "D1"), I am sure he would have produced a copy of the letter of application of the Third Defendant to the Second Defendant for the position of Principal of Mt Hagen Park Secondary School. It should be in the office files of the Second Defendant and could have been easily located and produced to me. He has not done so.


64. In the absence of the letter of application of the Third Defendant to the Second Defendant for the position of Principal which I consider very important and relevant to the position in dispute, I am not at all convinced that the First and Third Defendants are telling the truth. Accordingly, I also find that the Third Defendant did not apply for the position. This means that, how his name got to the attention of the First and Second Defendants for appointment as Principal of Mt Hagen Park Secondary School is anyone’s guess. It is a mystery.


65. And so it follows that the Third Defendant’s appointment as Principal is highly questionable? Where does this place the parties? The answer is simple. Both the First Plaintiff and the Third Defendant never applied for the position, the subject of this dispute. Both have failed in this respect. They cannot now expect the Court to support one or the other.


GROUND 2 (Ground 3(b) of Amended Statement in Support)


The second Ground of review is as follows:


"3 (b) The views of the parents, community leaders and citizens were not taken into account when the appointment was made."


66. The second point of contention by Mr Gonol of counsel for the Plaintiffs to support the application for judicial review is that, the First and Second Defendants failed to take into account the views of the parents, community leaders and citizens of Mt Hagen Park Secondary School when they revoked the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointed the Third Defendant as Principal.


67. Mr Gonol relied on the following witnesses’ Affidavits to enhance the Plaintiffs’ case on this Ground of review:


1. Affidavit of Jacob Tapp sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P5");


2. Affidavit of Timothy Roika sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P7"); and


3. Affidavit of Onda Koim sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P8").


68. They all expressed their great disappointment over the decision of the First and Second Defendants to replace the First Plaintiff with the Third Defendant as Principal of Mt Hagen Park Secondary School. They stated that their views were not taken into account by the First and Second Defendants before the First and Second Defendants made their decision to replace the First Plaintiff with the Third Defendant. For example, they hold the First Plaintiff in high regard because he had achieved a lot of things in one year which other previous Principals took many years to achieve, like the Grade 10’s and Grade 12’s for year 2007 performed very well under the First Plaintiff’s leadership which saw Mt Hagen Park Secondary School rank amongst the top three schools in Papua New Guinea for that year.


69. Accordingly, by virtue of section 27 of the Teaching Service Act 1988, the First Plaintiff was the most suitable person to be appointed as Principal of Mt Hagen Secondary School than the Third Defendant.


70. On the other hand, Mr Aipe of counsel for the Defendants argued that section 27 of the Teaching Service Act 1988 does not apply to the present case because it basically states that an appointment of a teacher to an institution as far as is practicable ought to make himself or herself familiar with the customs and values of the location.


71. Again, I have considered carefully the submissions of both the counsel and the evidence of the Plaintiffs and the Defendants on this Ground of review and I reject this Ground of review. To better appreciate why I rejected this Ground of review, I set out in full section 27 of the Teaching Service Act 1988 below:


"27 Recognition of community customs and values.


(1) As far as practicable, a member of the Teaching Service accepting an appointment in an educational institution under this Act ought to make himself aware of the customs and values of the community in which the institution is situated and of the communities that it services, and each appointing authority shall take whatever action seems to it necessary or desirable to that end.


(2) Subject to Subsections (3) and (4), where, in the opinion of the appointing authority, the conduct of a member of the Teaching Service is such as willfully to ridicule and bring into contempt customs and values referred to in Subsection (1), the authority may transfer him to some other position, of not lower classification, within its jurisdiction.


(3) In arriving at a decision whether a member of the Teaching Service should be transferred under Subsection (2), the appointing authority shall take into consideration whether the customs and values willfully ridiculed or brought into contempt by him are-


(a) repugnant to the general principles of humanity or not in the public interest; or


(b) improper, in the opinion of the authority, to be taken into account.


(4) Before taking action under Subsection (2), the appointing authority shall-


(a) cause notice of its intention to do so to be served, personally or by post, on the member concerned; and


(b) give to the member a reasonable opportunity of making any representations on the matter that he may care to make in writing or orally, by himself or with the assistance of another member; and


(c) consider all the representation so made.


(5) The transfer of a member under this section shall be deemed not to be for disciplinary reasons or on account of unsatisfactory service.


(6) A person shall not be transferred under this section and also dealt with under Part VII in respect of the same matter.


(7) The Commission may request an appointing authority to provide any details of action under this section, and the appointing authority shall promptly provide the information."


72. To my mind, section 27 does not apply to the present case. This is because the facts in the present case do not support a case where section 27 talks about. Section 27 talks about a situation where a teacher after having been appointed to a position in a school must familiarize himself or herself with the customs and values of the area or locality of the school. This is to ensure that where a teacher or teachers come from a place outside the area or locality of the school, the teacher or teachers must learn the customs and values of the people of the area or locality of the school and respect them.


73. If for example, a teacher or teachers show disrespect to or wilfully ridicule the customs and values of the people of the area or locality of the school, the appointing authority may consider taking appropriate action against the teacher or teachers concern. For example, under section 27(3),(4)&(5) the appointing authority may, transfer the teacher or teachers to another school(s). The decision to transfer the teacher or teachers to another school(s) is not considered a disciplinary action against the teacher or teachers concern.


74. This is because section 27 of the Teaching Service Act 1988 is not a disciplinary offence provision. Disciplinary offences, either minor or serious are dealt with under sections 83, 84 and 85 of the Teaching Service Act 1988.


75. And so in this case, the evidence of the Plaintiffs, in particular the witness who’s Affidavits has been relied upon by counsel for the Plaintiffs do not support a case where section 27 would apply. Even if the facts do support a case where section 27 would apply, to my mind it would not be a ground for judicial review. This is because section 27 does not give the Plaintiffs any right to claim that the views of the community leaders, parents and citizens must be considered by the First and Second Defendants before the First and Second Defendants may arrive at their decision.


76. In the present case, first the First Plaintiff’s appointment as acting Principal of Mt Hagen Park Secondary School has been revoked by the First and Second Defendants. Secondly, there is no evidence to show that he has shown disrespect to or wilfully ridiculed the customs and values of the people where the Mt Hagen Park Secondary School is located. In fact, I infer that the First Plaintiff must have respected and abided by the customs and values of the people where the Mt Hagen Park Secondary School is located, that is why apart from the tremendous efforts he has put into the school, the parents, citizens and community leaders including the entire community where the Mt Hagen Park Secondary School is located have given him overwhelming support to remain as acting Principal of the school.


77. This is where I failed to understand the actions of the supporters of the First Plaintiff when they closed the school in the early days of this dispute. As a result, teachers and other support staff of the school were unable to work. The students were the victims of all this confusion and unruly behaviour because they were prevented from attending classes. If these supporters had genuine concerns over the appointment of the Third Defendant as Principal of the school ahead of the First Plaintiff, I am sure as responsible persons they would have taken their concerns or grievances to the appropriate authorities including this Court without resorting to this kind of behaviour in the first place. This Court will not tolerate or condone this type of actions by people who do not respect the law and other people in the community. This kind of behaviour must stop immediately and any further threats or actions of this nature will be dealt with very severely by this Court.


78. Thus, to my mind the Plaintiffs’ contention that section 27 of the Teaching Service Act 1988 was not observed or taken into account by the First and Second Defendants before arriving at their decision to revoke the appointment of the First Plaintiff as acting Principal and appointing the Third Defendant as Principal is misconceived. For these reasons, I dismiss this Ground of review.


GROUNDS 3 & 4 (Ground 3(c)(i)&(d) of Amended Statement in Support)


79. I consider part of the third Ground of review and the fourth Ground of review very important to this application for judicial review. I will consider them together because they are interrelated although expressed by the Plaintiffs in different terms. They are as follows:


"3 (c) The first and second did not have the powers to appoint the

third defendant as Principal of Hagen Park Secondary School.


(i) the Composition of members of the Provincial Education Board is illegal. They were not properly appointed.


(d) The members of the Provincial Government and the Provincial Executive Council, consisted of Presidents of the various Local Level Governments and members of the National Parliament. The status of Presidents of LLGs, as members of Provincial Governments, and subsequently PEC members ceased by operation of law pursuant to amendments made to the Organic Law on Provincial and Local Level Governments that came into force on the 30 January 2007. Therefore, the PEC comprising council Presidents with the Governor to appoint the Provincial Education Board on the 3 December 2007 was void abinitio. It follows therefore; that any decisions made by this illegally constituted Board is also void abinitio including the third defendant as Principal of Hagen Park Secondary School.


The Chairman of Education in the Western Highlands Provincial Government then was a Council President."


80. In support of these grounds, Mr Gonol of counsel for the Plaintiffs first submitted that the members of the Second Defendant were illegally appointed. Under section 10 of the Organic Law on Provincial Governments and Local Level Governments, the Provincial Executive Council now consists or comprises of the Governor of the province, National Members of the Parliament of the Open Electorates of the province and appointed members which may include representative of churches or community.


81. He submitted that section 10 of the Organic Law on Provincial Governments and Local Level Governments was repealed and replaced by the National Parliament and came into effect on 30 January 2007. By virtue of the repealing and amending of the said section, Council Presidents who were once members of the Provincial Executive Council ceased to be members of the Provincial Executive Council.


82. Secondly, he submitted that proper procedures for appointment of the members of the Second Defendant including the First Defendant as Chairman were not followed by the Fifth Defendant in that, there is no evidence of the resolution of the decision of the Provincial Executive Council of the Fifth Defendant appointing the members of the Second Defendant including the First Defendant as Chairman.


83. He submitted that the procedures for appointment of Provincial Boards and in particular this matter, the Chairman responsible for education activity or ministry makes a Provincial Executive Council (PEC) submission recommending certain individuals to be members on a Board, in this case the Provincial Education Board, the Second Defendant. The Fifth Defendant after receiving the submission then considers and makes changes and endorses those persons recommended for appointment. The Provincial Executive Council of the Fifth Defendant’s decision to endorse any Boards must be in a form of a PEC Resolution and properly recorded in the Provincial Executive Council Minutes.


84. He submitted that in the absence of any evidence of a resolution of the Provincial Executive Council of the Fifth Defendant, the Court must find that the Fifth Defendant did not follow the established procedures to appoint the members of the Second Defendant including the First Defendant as Chairman.


85. Mr Aipe of counsel for the Defendants contended that there is no evidence to show that the members of the Second Defendant were not eligible to hold the public office, being the members of the Western Highlands Provincial Education Board. He submitted that if the members of the Second Defendant were appointed to represent the public interest in education, the Plaintiffs are not entitled to challenge their appointment as being null and void in this application for judicial review.


86. He further contended that the Provincial Executive Council of the Fifth Defendant appointed the members of the Second Defendant in accordance with its power under section 9 of the Western Highlands Provincial Education Act No 1 of 2001. If the Provincial Executive Council of the Fifth Defendant acted ultra vires, then the onus is on the Plaintiffs to show that the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant was wrong in law.


87. To support this contention, he submitted that the Plaintiffs have not produced any evidence of the composition of the members of the Provincial Executive Council of the Fifth Defendant which would enable the Court to know which members of the Provincial Executive Council of the Fifth Defendant were present at the meeting which made the decision to appoint the members of the Second Defendant. In the absence of any such evidence, the Court should find that the decision of the Second Defendant was made by a lawfully constituted authority.


88. Next, he contended that the Plaintiffs have not sought to review the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant, hence they are not entitled to ask the Court to review that decision. The Court should confine its review to the decision of the Second Defendant to revoke the appointment of the First Plaintiff as Acting Principal of Mt Hagen Park Secondary School and appoint the Third Defendant to that position.


89. I consider that there is merit in the last point of Mr Aipe of counsel for the Defendants’ contention because I did raise this very matter with Mr Gonol of counsel for the Plaintiffs in the course of the hearing of the application for judicial review on 6 March 2008. To my mind, it is an important consideration which was overlooked by counsel in his haste to bring on the application for judicial review before this Court. I can understand why this issue of the appointment of the members of the Western Highlands Provincial Education Board arose midway through the proceeding because no one bothered to challenge it in Court until the issue of the appointment of the Principal of Mt Hagen Park Secondary School arose. It was more or less an after thought.


90. But, in future, let this be a reminder to all counsel to properly consider all aspects of the case, not just this case but all other cases before rushing to Court. This will prevent situations like this from happening and of course reduce the number of issues for the Court to decide so that the Court may arrive at an early Judgment on the dispute for the benefit of the disputing parties.


91. And so, I am of the firm view that an Applicant for judicial review must seek review of the decisions or actions of the public body, be it an administrative, statutory or quasi judicial by specifically pleading the nature of the Orders sought in the Originating Summons. If the Applicant does not do so that means that, the Applicant is not seeking to review the decisions or actions of the public body concern. Further, it must be remembered that litigants in any court proceeding be it a claim for damages or an application for judicial review as in this case, must commence the court proceeding by an originating process. See Order 1 rule 6 and Order 4, rules 1, 2 and 3 of the National Court Rules and the originating process sets out the kind of reliefs to be sought by the litigant.


92. In this case, whilst it maybe the case where the Plaintiffs have pleaded in detail the grounds of which they contend the Fifth Defendant may have acted without power to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007, they have not sought any reliefs in the form of Orders for the Court to grant in the Amended Originating Summons filed on 12 February 2008.


93. As the Plaintiffs have not sought to review the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant in this application for judicial review by specifically seeking any Orders in the Amended Originating Summons filed on 12 February 2008, in my view they are not entitled to ask the Court to review that decision or to challenge the appointment of the members of the Second Defendant including the First Defendant as Chairman on 3 December 2007 in this application for judicial review.


94. In my view, this present case is almost identical to the case of Central Pomio Logging Corp Pty Limited v Collector of Customs, Rabaul & The State[1992]PNGLR 20, where in that case, the Supreme Court heard an Appeal by the Appellant company from the decision of the National Court which dismissed its application for judicial review to review the decision of the First Defendant in refusing to clear a vessel called "MV No 3 Kendari" to sail from Rabaul with its cargo of logs belonging to the Appellant company for the reason that the logs on board the vessel were fresh logs which the Forestry Officers claimed had not been checked for species identification, scaling and grading.


95. In the National Court, the Appellant Company sought orders in the nature of mandamus to direct the First Respondent to consider according to law, the Appellant Company’s application for approval and clearance for export of those logs then on board "MV No 3 Kebdari".


96. Prior to filing the application for judicial review in the National Court, on 8 May 1990 the Appellant referred the dispute with the First Respondent to the Comptroller of Customs in Port Moresby under section 178 of the Customs Act Ch 101. Section 178 states as follows:


"(1) If a dispute as to a matter not involving a contravention of this Act arises under this Act or in relation to the customs, the matter may, at the request of the persons interested, be referred to the Comptroller for decision and the Comptroller may, in such manner as he thinks proper, inform himself as to the circumstances, and determine the matter.


(2) A determination by the Comptroller under subsection (1) is final."


97. On 10 May 1990, the Comptroller of Customs in Port Moresby considered the dispute and referred the dispute back to the First Defendant citing that Customs is prepared to clear the vessel to sail once the matter between Forestry and the Appellant Company is resolved. The matter which required resolution was the identification of species, scaling and grading of the logs before approval and certification for export.


98. The Appellant company in its application for judicial review in the National Court did not apply to review the decision of the Comptroller of Customs in Port Moresby. It only applied to review the decision of the First Respondent. This is what the Supreme Court said on page 27 of the Judgment:


"The Acting Collector, Rabaul, gave his reason when he wrote to the plaintiff advising, on information received from Forests, that deficiencies involving species identification, scaling and grading of fresh logs supposedly loaded on board "MV No 3 Kebdari" were apparent. Consequently no clearance was given. The facts pertaining to Forestry requirements had not changed from the time of the plaintiff’s referral to the Comptroller by letter on 8 May and the Collector’s refusal to clear on 10 May. So it was the Collector’s ultimate refusal which was the subject of the judicial review before the primary judge, and we consider, to avoid the impasse created by the Comptroller’s referral back to the Collector for ultimate decision, the plaintiff was entitled to seek judicial review of the Collector’s reasons for refusal for that refusal post-dated the Comptroller’s considerations on 8 May.


Had the Comptroller determined the issues and accepted or rejected Forestry Export Permit R-35 dated 30 April as sufficient for customs purposes (whether or not subject to the lodgment of a customs bond or a security deposit for Forests if it should subsequently be shown on delivery that specie or grading was incorrect), then the plaintiff cannot seek judicial review of the Collector’s decision and deal with the same issue in the National Court. But the Comptroller has not dealt with the issues to finality. Consequently, the National Court may have reviewed the Collector’s ultimate refusal to grant customs clearance, on the basis of a judicial review of an administrative decision."


99. Thus, in the present case as I said above, the Plaintiffs have not sought to review the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant. I see no Orders being sought in the Amended Originating Summons filed on 12 February 2008 against the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007.


100. For example, whilst the Amended Statement in Support of the application for judicial review filed on 12 February 2008 sets out in detail the grounds for the Court to review the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007, there are no Orders in the nature of Certiorari and Declarations being sought as reliefs in the Amended Originating Summons filed on 12 February 2008.


101. I consider that unless the Plaintiffs specifically seek Orders in the nature of Certiorari and Declarations in the Amended Originating Summons filed on 12 February 2008, they are not entitled to ask the Court to review the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant. I consider that this is so notwithstanding the fact that the Plaintiffs have pleaded the grounds for review in their Amended Statement in Support of the application for Judicial Review. The reason for this is simple. There may be grounds for review pleaded in the Originating Summons or Amended Statement in Support of the application which ever the case maybe, but if there are no orders sought in the Originating Summons or the Amended Originating Summons, then there are no orders the Court may grant or make in favour of the Plaintiffs.


102. Therefore, I consider that I am not being asked to review the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant and unless the Plaintiffs further amend the Amended Originating Summons filed on 12 February 2008, I cannot review that decision.


103. In other words, the presumption of law is that, the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant are legally appointed by the appointing authority, being the Provincial Executive Council of the Fifth Defendant. Any decisions of the First and Second Defendants are valid for all intent and purposes unless the Court rules otherwise in respect of their appointment.


104. As a result of me raising this matter, Mr Gonol made an oral application for leave to further amend the Originating Summons filed on 12 February 2008 to seek the following relief:


"1 Leave be granted to the Plaintiffs to have the decision of the Provincial Executive Council (herein) PEC made on the 3 December 2007 to appoint the Western Highlands Provincial Education Board (PEB) be judicially reviewed.


2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the fifth defendants to appoint the first and second defendants.


3. An order that the appointment of the first and second defendants on the 3 December 2007 is null and void abinitio."


105. I heard submissions and informed all the parties that I will reserve my ruling on the Plaintiffs’ application to further amend the Amended Originating Summons until when I hand down the final Judgment on the substantive application for judicial review. This is my ruling.


RULING ON APPLICATION TO FURTHER AMEND


106. Generally, the National Court has power to amend pleadings under Order 8, rule 50 of the National Court Rules. Order 8 rule 50 states as follows:


"(1) The Court may, at any stage of any proceedings, on application by any party or on its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.


(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.


(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.


(4) This Rule does not apply to the amendment of a minute of a judgment or order."


107. In my view Order 8, rule 50 of the National Court Rules is very clear. The Court may allow a party to amend any document in the proceeding at any time. The Court may allow a document to be amended for the purpose of determining the real questions raised, or correcting any defect or error in the proceeding or to avoid multiplicity of proceedings.


108. The Courts through case law have also developed principles to guide parties in cases of application for leave to amend in such cases as those referred to by Mr Gonol in Motor Vehicle Insurance Trust Limited -v- Komboro George [1993]PNGLR 477. In that case, the Plaintiff sought to amend his Statement of Claim at the end of the trial of his action for damages for personal injuries sustained in a motor vehicle accident. His Honour Mr Justice Woods (as he then was) held that:


1. Order 8, rule 50 allows the National Court to amend the pleadings an any stage of a trial, leave to amend should be sought as early as possible after the need has arisen.


2. A Court will allow pleadings to be amended only if the other party is not prejudiced.


3. In exercising its discretion, the Court must act judicially.


4. The Court should only allow pleadings to be amended at the end of the trial is the issues to be pleaded in the amendment have been aired at the hearing.


109. Thus, applying Order 8, rule 50 of the National Court Rules and the above principles to the present case, the first question I ask is, are the amendments sought necessary to determine the real issues in this application for judicial review and secondly, will the amendments prevent multiplicity of proceedings and finally, will the Defendants be prejudiced in their defence of the application for judicial review by the amendments?


110. First, I consider that the amendments sought are necessary to determine the real issues in this application for judicial review. One of the grounds for review is that the Plaintiffs claimed that the Fifth Defendant was not legally constituted. As a result, they did not have the power to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007. The issue then is, whether or not the Fifth Defendant was legally constituted in order to give it the power to make the appointment of the First and Second Defendants. The amendment sought is for the additional Orders in the nature of Certiorari and Declaration to be included in the Amended Originating Summons to challenge the decision of the Fifth Defendant of 3 December 2007.


111. Secondly, in my view the amendments sought will prevent multiplicity of proceedings. It is quicker and cost-saving to allow these amendments in this application for judicial review so that the issue of whether or not the Fifth Defendant was not legally constituted, hence did not have the authority to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant determined once and for all. Otherwise, I can fore shadow another application for judicial review by the Plaintiffs in the not too distant future on this very ground in the event that this Court dismisses this present application for judicial review.


112. That is why I reject the Defendants’ submission that the Plaintiffs’ application to further amend the Amended Originating Summons should be refused and the Plaintiffs should file another application for judicial review. To my mind, it will be a repetitious and expensive exercise for all the parties involved in this dispute to undertake this process submitted by the Defendants.


113. Finally, I accept the submissions of Mr Gonol that there will be no prejudice to the Defendants if leave is granted to the Plaintiffs to further amend the Amended Originating Summon to add more orders to be sought by the Plaintiffs in this application for judicial review. This is because the issues and evidence in relation to the amendments sought were before the Court since the commencement of the application for judicial review. The Defendants were well aware of this issue.


114. For example, the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant on 3 December 2007 was placed before the Court since the application for judicial review was filed and also at the hearing of the application for leave to apply for judicial review. See Annexure "A2" to the Affidavit of Paul Yane sworn on 5 March 2008 and filed on 6 March 2008 (Exhibit "D5") for a copy of the decision of the Fifth Defendant of 3 December 2007 and Annexure "B1" to the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6") for a copy of the decision of the Fifth Defendant of 3 December 2007.


115. For these three (3) reasons, I grant leave to the Plaintiffs to further amend the Amended Originating Summons filed on 12 February 2008 by adding the following Orders:


"1 Leave be granted to the Plaintiffs to have the decision of the Provincial Executive Council (herein) PEC made on the 3rd December 2007 to appoint the Western Highlands Provincial Education Board (PEB) be judicially reviewed.


2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the fifth defendants to appoint the first and second defendants


3. An order that the appointment of the first and second defendants on the 3rd December 2007 is null and void abinitio."


RULING ON FURTHER APPLICATION FOR LEAVE FOR JUDICIAL REVIEW


116. Having granted leave to the Plaintiffs to further amend the Amended Originating Summons, the matter does not stop here. The next matter is for the Court to decide whether or not leave should be granted to the Plaintiffs to apply for judicial review of the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007.


117. In order for the Court to grant leave to the Plaintiffs to apply for judicial review of the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant, the Court must be satisfied that:


1. The Plaintiffs have locus standi or sufficient interest in the subject decision;


2. There is no delay in bringing the application for leave for judicial review;


3. The Plaintiffs have an arguable case; and


4. The Plaintiffs have exhausted all other alternative remedies.


118. With respect to the question of locus standi or sufficient interest in the subject decision, I am satisfied that the Plaintiffs have locus standi or sufficient interest to bring this application for judicial review. They have been aggrieved by the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman. That decision was made on 3 December 2007 and is contained in a document entitled "Revocation and Appointment of Western Highlands Provincial Education Board" commonly referred to as an instrument of appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant. I note it is being signed by Mr Mangi as evidenced in the Annexure "B1" to the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6").


119. In relation to the question of delay in bringing the application for leave for judicial review, I consider that it does not arise in this case. The Plaintiffs have promptly filed this application for judicial review on 31 January 2008 although initially they failed to plead specific reliefs in the Originating Summons to review the decision of the Fifth Defendant of 3 December 2007.


120. As to the third consideration, being whether or not the Plaintiffs have an arguable case, the Plaintiffs have demonstrated to my satisfaction that they have an arguable case. The question raised by the Plaintiffs in this application for leave to apply for judicial review is whether or not the appointing authority, being the Fifth Defendant was properly constituted to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007. This will require a proper consideration of section 10 of the Organic Law on Provincial Governments and Local Level Governments.


121. As to the last consideration of whether or not the Plaintiffs have exhausted all other alternative remedies before resorting to this application for judicial review, I am of the view that there are no alternative remedies available to the Plaintiffs to seek redress other than this Court. In my view, the question raised by the Plaintiffs on the composition of the Fifth Defendant at the time when it made its decision to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant is a question of mixed fact and law which can only be decided by the Court.


122. For all the above brief reasons, I grant leave to the Plaintiffs to apply for judicial review of the decision of the Fifth Defendant to appoint the members of the Second Defendant and also the First Defendant as Chairman of the Second Defendant on 3 December 2007.


123. Having granted leave to the Plaintiffs to seek review of the decision of the Fifth Defendant to appoint the members of the Second Defendant and also the First Defendant as Chairman of the Second Defendant on 3 December 2007, I now consider the substantive arguments for the proposition that the decision of the Fifth Defendant to appoint the members of the Second Defendant and also the First Defendant as Chairman of the Second Defendant on 3 December 2007 is invalid, void and illegal.


124. For the benefit of all parties and the public, I set out in full section 10 of the Organic Law on Provincial Governments and Local Level Governments and note specifically subsection 3(b)&(c) prior to them being repealed as follows:


"10 PROVINCIAL GOVERNMENT AND PROVINCIAL LEGISLATURE


(1) A Provincial Government is hereby established for each province.


(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.


(3) A Provincial Assembly shall consist of -


(a) all Members of the Parliament representing electorates in the province; and


(b) heads of the rural Local Level Governments in the province; and


(c) one representative of the heads of urban Local-level Governments to represent the urban Local-level Governments in the Province; and


(d) subject to Subsection (6), where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province


(i) not exceeding three in number; or


(ii) where the Minister responsible for provincial government and local level government matters considers that particular circumstances justify it, not exceeding four in number or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local level government matters on recommendation of the Provincial Executive Council; and


(e) one woman representative nominated in accordance with an Act of the Parliament and appointed by the Provincial Executive Council; and


(f) such other members, not exceeding three in number, as the Provincial Assembly may appoint from time to time.


(4) An Act of the Parliament shall make provision for the qualifications and disqualification of the members referred to in Subsection (3)(f).


(5) All members of a Provincial Assembly have full voting powers and shall be counted towards the quorum of a Provincial Assembly.


(6) Where there are more than one paramount chief in a district only one maybe recommended for appointment." (Emphasis is mine)


125. Section 1 of Amendment No 10 of the Organic Law on Provincial Governments and Local Level Governments amended section 10(3) of the Organic Law on Provincial Governments and Local Level Governments by repealing paragraphs (b) and (c) of subsection 3 of section 10.


126. By virtue of the repealing of section 10(3)(b)&(c) of the Organic Law on Provincial Governments and Local Level Governments, heads of Rural Local Level Governments and one representative of the heads of the Urban Local Level Governments ceased to be members of the Provincial Assemblies as of 30 January 2007.


127. To show how this works in real life, section 23 of the Organic Law on Provincial Governments and Local Level Governments establishes an executive arm of the Provincial Government known as the Provincial Executive Council. By subsection 2 of section 23, the Provincial Executive Council shall consist of:


1. the Provincial Governor and the Deputy Governor; and


2. the Chairman of each of the permanent committees of the Provincial Executive Council appointed by the Governor; and


3. such other members of the Provincial Assembly as a appointed by the Provincial Governor.


128. According to section 25 of the Organic Law on Provincial Governments and Local Level Governments, permanent Committees in section 23 consists mainly of members referred to in section 10(3)(b)&(c) who are the heads of the Rural Local Level Governments and representatives of the heads of Urban Local Level Governments.


127. In this present case, I accept the submissions of Mr Gonol of counsel for the Plaintiffs that by operation of law, the heads of the Rural Local Level Governments and representatives of the heads of Urban Local Level Governments have ceased to be members of the Provincial Executive Council as of 30 January 2007. In other words, because of the change in the law on 30 January 2007, heads of Rural Local Level Governments and representatives of the heads of Urban Local Level Governments are no longer members of the Provincial Executive Council.


130. It follows that they no longer have any powers to make decisions at the Provincial Executive Council level.


131. As I have accepted the submissions of Mr Gonol, I have to disagree with the submissions of Mr Aipe of counsel for the Defendant where first, he submitted that there is no evidence to show that the members of the Second Defendant were not eligible to hold office by operation of law. If the members are qualified to be members of the Second Defendant, then there is no basis to challenge their appointments.


132. Secondly, he submitted that the members of the Second Defendant including the First Defendant as Chairman were appointed by the Provincial Executive Council of the Fifth Defendant pursuant to section 9(f) of the Western Highlands Provincial Education Act No 1 of 2001.


133. I think the issue in this application for judicial review is not whether the members of the Second Defendant were qualified to be appointed. I have no doubt that the persons appointed are qualified and also have the experience for the Provincial Executive Council of the Fifth Defendant to appoint them. The issue here is whether the appointing authority, being the Provincial Executive Council of the Fifth Defendant was legally constituted to then make the decision to appoint the members of the Second Defendant including the First Defendant as Chairman.


134. Next, section 9(f) of the Western Highlands Provincial Education Act No 01 of 2001 states very clearly that one of the functions of the Provincial Executive Council of the Firth Defendant is to establish the Provincial Education Board and approve its membership. It gives power to the Provincial Executive Council of the Firth Defendant to appoint members of the Provincial Education Board. Thus, I don’t see any conflict between section 9(f) of the Western Highlands Provincial Education Act No 1 of 2001 and sections 10, 23 and 25(1)(b) of the Organic Law on Provincial Governments and Local Level Governments on the question of the appointing authority of the members of the Western Highlands Provincial Education Board.


135. All these provisions in both of these laws appear to be consistent with each other and go to support the contention that the appointing authority of the members of the Second Defendant including the First Defendant as Chairman is the Provincial Executive Council of the Fifth Defendant. The only issue as I have said is, whether the appointing authority, being the Provincial Executive Council of the Fifth Defendant was legally constituted to then make the decision to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007.


136. Thus, by appreciating the issue at hand, it is not disputed that Mr Talu Mangi is a head of a Rural Local Level Government, being the Council President of Nondugul Local Level Government Council. It is also not disputed that he was the person who signed the instrument of appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant. It is also not disputed that Mr Mangi was the Chairman of the permanent committee on appointment on education matters in the Western Highlands Province and is a member of the Provincial Executive Council of the Fifth Defendant. Again see Annexure "B1" to the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6").


137. To my mind, by operation of law under section 10(3) of the Organic Law on Provincial Governments and Local Level Governments, as of 30 January 2007, Mr Mangi ceased as Chairman of the permanent committee on appointments on education matters in the Western Highlands Province. It follows that he has no power to make recommendation to the Provincial Executive Council of the Fifth Defendant on any appointments on education matters including that of the members of the Second Defendant and the First Defendant as Chairman of the Second Defendant.


138. This is where I reject the Defendants’ submission that section 10 of the Organic Law on Provincial Governments and Local Level Governments has been subsequently repealed for the second time by the National Parliament at its last sitting in February 2008. Here, I note with some reservation the Defendants’ evidence in the Affidavit of Paul Yane sworn and filed on 12 February 2008 (Exhibit "D2"). Mr Yane is the Acting Clerk of the Provincial Assembly of the Fifth Defendant and he stated in paragraph 10 of his Affidavit that the National Parliament in February 2008 "passed an amendment repealing section ten (10) of the Organic Law on Provincial and Local Level Governments reinstating the Local Level Government Presidents to the Provincial Assembly." He annexed as Annexure "C" a copy of the draft amendment of section 10 of the Organic Law on Provincial Governments and Local Level Governments which he said was supplied to him by the Bills and Paper’s Office of the Clerk of Parliament.


139. Also, whilst I note he annexed as Annexure "A" to his Affidavit a copy of a Circular from the Ministry for Inter Government Relations dated 5 October 2007 which stated on page 3 that: "The National Executive Council has approved a Bill to be introduced at the forth coming National Parliament sitting to amend the Organic Law on Provincial Governments and Local Level Governments to reinstate presidents of Local Level Governments as Members of the Provincial Assemblies[and] the law will have retrospective effect when passed, so that the Local Level Government presidents who have been displaced, will be deemed to have continued to hold office by the operation of the new amendments " I am not satisfied that there is evidence that the National Parliament indeed passed a subsequent amendment to section 10 of the Organic Law on Provincial Governments and Local Level Governments.


140. There is simply no evidence before me to show that the subsequent amendment to section 10 of the Organic Law on Provincial Governments and Local Level Governments to reinstate the Local Level Government Presidents to the Provincial Assembly has been passed by the National Parliament and has been certified by the Speaker of the National Parliament to come into effect nor is there evidence to show that the subsequent amendment has been published in the National Gazette. Therefore, I reject this submission of the Defendants.


141. In the absence of any such evidence, I find that section 10 of the Organic Law on Provincial Governments and Local Level Governments as amended by Amendment No 10 of 2006 remains in force to date and so I further find that heads of Rural Local Level Governments and representatives of the heads of Urban Local Level Governments have ceased to be members of the Provincial Executive Council.


142. It follows that as Mr Mangi being the head of a Rural Local Level Government, namely Nondugul Local Level Government had made a submission to the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant to which submission was subsequently endorsed by the Provincial Executive Council of the Fifth Defendant, I find that the Provincial Executive Council of the Fifth Defendant exceeded its power under section 10(3) of the Organic Law on Provincial Governments and Local Level Governments.


143. In other words, I find that Mr Mangi had no power to act as Chairman of the Education Ministry to present the submission to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant to the Provincial Executive Council of the Fifth Defendant for endorsement. When the Provincial Executive Council of the Fifth Defendant received the submission and endorsed it, it gave effect to the submission of Mr Mangi, a person no longer a member of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman on 3 December 2007. And so in my view that decision is void abinitio. It is void by operation of law.


144. The question is; does the decision of the Court apply retrospectively? Yes. The law has always been that heads of Rural Local Level Governments and representatives of the heads of Urban Local Level Governments have ceased to be members of the Provincial Executive Council on 30 January 2007 by virtue of the repealing of section 10(3)(b)&(c) of the Organic Law on Provincial Governments and Local Level Governments which came into effect on that date. See Polem Enterprise Limited -v- Attorney General of Papua New Guinea & The State (2006) N2968 for the principle of retrospective Judgments of the Court.


145. It follows that by virtue of the repealing of section 10(3)(b)&(c) of the Organic Law on Provincial Governments and Local Level Governments on 30 January 2007, generally any decision of the Provincial Executive Council of the Fifth Defendant arising from submissions sponsored by any Chairman of Ministries in the Provincial Executive Council who are heads of Rural Local Level Governments and representatives of the heads of Urban Local Level Governments would be void abinitio.


146. In this case, it is obvious that section 10(3)(b)&(c) of the Organic Law on Provincial Governments and Local Level Governments was changed on 30 January 2007 and almost eleven (11) months later, the Provincial Executive Council of the Fifth Defendant made its decision to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007. This decision is void abinitio.


147. As the appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant is void abinitio, the next question I have to decide is whether or not any subsequent decisions of the First and Second Defendants and more specifically, the revocation of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointment of the Third Defendant as Principal on 24 January 2008 is also null and void. I am of the view that if the appointment of the members of the Second Defendants including the First Defendant as Chairman of the Second Defendant on 3 December 2007 has been found to be null and void, the flow on effect is that the decision of the First and Second Defendants to revoke the appointment of the First Defendant as acting Principal of Mt Hagen Park Secondary School and the appointment of the Third Defendant as Principal of that school on 24 January 2008 is also null and void and illegal.


148. The reason is simple and straight forward. The decision of the appointing authority, being the Provincial Executive Council of the Fifth Defendant was void to the extent that the heads of the Local Level Government and representative of the heads of the Urban Local Level Governments have been involved in the decision making process. Thus, there is no legally appointed Provincial Education Board for the province. Any subsequent decisions that they may have made including this decision, the subject of this judicial review is also void.


I uphold these two Grounds of review.


GROUNDS 3 (Ground 3(c)(ii), (iii)&(iv) of Amended Statement in Support)


The last part of the third Ground of review is as follows:


"3 (c) The first and second defendants did not have the powers to appoint the third defendant as Principal of Hagen Park Secondary School.


(ii) The proper procedure for appointment of Provincial Boards is that the chairman responsible for any particular activity or ministry makes a Provincial Executive Council (PEC) submission recommending certain individuals to be members on a Board, in this case, the Provincial Education Board (PEB). The PEB then considers and makes changes and endorses those recommended for appointment.


(iii) The Provincial Executive Council decision to endorse any Boards must be in the form of a PEC Resolution and properly recorded in the Provincial Executive Council Minutes.


(iv) The above Procedures were not followed when appointing the PEB Board. There are no proper PEC Resolutions in respect of same.


149. Mr Gonol of counsel for the Plaintiffs submitted that in addition to the contention that the Provincial Executive Council of the Fifth Defendant was illegally constituted, it also failed to follow the proper procedures in that there is no evidence placed before the Court to show that the Provincial Executive Council of the Fifth Defendant convened a meeting to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant. He submitted that there should be evidence of the Minutes of the meeting and also the Resolution of the Provincial Executive Council of the Fifth Defendant.


150. Mr Aipe of counsel for the Defendants submitted that the onus is on the Plaintiffs to prove that the Defendants, in particular the Provincial Executive Council of the Fifth Defendant failed to follow these procedures. He said that the Plaintiffs have failed to discharge the onus bestowed on them, hence the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 should not be disturbed.


151. I accept the submission of the Plaintiffs on this Ground of review. Since the Plaintiffs alleged that the Provincial Executive Council of the Fifth Defendant failed to follow proper procedures by failing to convene a meeting to pass a resolution for the appointment of the members of the Second Defendant including the First Defendant as Chairman, I would have thought the onus was on the Defendants to prove the otherwise. That is, for them to produce evidence of the Minutes of the meeting and also the Resolution of the Provincial Executive Council of the Fifth Defendant.


152. In the absence, of these vital documentary evidences, I conclude that the Provincial Executive Council of the Fifth Defendant failed to follow proper procedures by failing to convene a meeting to pass a resolution for the appointment of the members of the Second Defendant including the First Defendant as Chairman on 3 December 2007. I can only infer that the appointments of the First and Second Defendant were made by Mr Mangi alone.


Therefore, I uphold this Ground of review.


OTHER GROUNDS - LOCUS STANDI OF PLAINTIFFS


153. Mr Aipe of counsel for the Defendants also raised other grounds to oppose the application for judicial review. He submitted that the Second Plaintiffs do not have standing to bring the application for judicial review because their term of office expired in March of 2007 pursuant to section 16 of the Western Highlands Education Act. The new Provincial Education Board made up of the First and Second Defendants was appointed on the 3 December 2007 and they have no record of the Second Plaintiff’s term of the office being renewed. The Second Plaintiff, if any had not been endorsed by the Provincial Education Board and so it effectively does not exist legally to this date by virtue of section 68 of Western Highlands Provincial Education Act No 1 of 2001.


154. I do not accept this submission because first there is evidence from the Plaintiffs in paragraph 2 and Annexure "A" of the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6") that the term of office of the Second Plaintiff will expire on 20 March 2009. The Second Plaintiff was appointed on 20 March 2006 for a term of three (3) years.


155. Secondly, the Second Plaintiff as governing body of the school has every interest in the general affairs and operation of the school including the dispute of the appointment of a new Principal for the school. Why then should it be contended that the Second Plaintiff has no standing to bring this application for judicial review? To me, it does not make sense at all for the Defendants to contend so. I reject the Defendants’ objection on this ground.


OTHER GROUNDS - EXHAUSTION OF ALTERNATIVE REMEDIES


156. Next, Mr Aipe of counsel for the Defendants submitted that the National Court lacks jurisdiction to determine this application for judicial review. This is because the Plaintiffs have not exhausted all the remedies available under the Western Highlands Provincial Education Act No. 1 of 2001. Section 98 of the Western Highland Provincial Educational Act No 1 of 2001 states that " a person aggrieved by the Provincial Education Board or the Division, may appeal to the Provincial Executive Council whose decision is final."


157. He also referred to section 13 of the Teaching Service Act 1988 which provides for appeals to the Teaching Service Commission to support the contention that there is an appeal process available to the Plaintiffs to bring their dispute for resolution.


158. Mr Aipe submitted that based on the above provisions, it is clear that the Plaintiffs have not exhausted the alternative remedy set out in either section 98 of the Western Highlands Provincial Educational Act No 1 of 2001 or section 13 of the Teaching Service Act 1988 before coming to the National Court. On that basis, the application for judicial review should be dismissed.


159. In my view the principle of exhaustion of alternative remedy is a live issue that runs through the whole process of judicial review. That is, it is an issue which is raised at the hearing of the application for leave for judicial review and can also be raised again at the substantive hearing regardless of whether or not the Court had considered it at the leave stage.


160. In saying this, I am not persuaded that the application for judicial review should be dismissed on this ground alone. As I found above, Mt Hagen Park Secondary School, being a secondary school comes under the jurisdiction of the First and Second Defendants under section 3(f) of the Western Highlands Provincial Education Act No 1 of 2001.


161. Thus, whilst I accept that a person aggrieved by the decision of the First and Second Defendants may appeal to the Provincial Executive Council of the Fifth Defendant under section 98(2) of the Western Highlands Provincial Education Act No 1 of 2001 whose decision is final, I am of the view that as the Provincial Executive Council of the Fifth Defendant is the root cause of the dispute, there is an apprehension of bias against it if the dispute is referred as an appeal to it.


162. For these reasons, I reject this ground of objection to the application for judicial review.


CONCLUSION


163. In reaching the conclusion to uphold the application for judicial review on one part and refuse it on other grounds, it must be borne in mind that the displacement of teachers including principals at one institution for purpose of relocation to another institution or province is an integral part of the overall administration of the education system in this country which responsibility is vested in the First and Second Defendants in the present case.


164. I echo the observations made by His Honour Mr Justice Sevua in Lawrence Kalaivi & Others -v- George Arua (1999) N1922 on pages 3 and 4 where His Honour said:


"Every teacher, lawyer, doctor or public servant for that matter has to be relocated to another institution or province during his public career at one time or another, no matter how well his public and private life has been entrenched in a particular culture or society in the country, Serving the country in a public service career is a sacrifice one makes when he joins the Public Service. It does not mean that one cannot be transferred or relocated to another institution or province."


165. I find that the above statements of His Honour truly sum up the situation in this present case and I do not wish to add any more to what His Honour has said.


166. And so, repeating the questions I asked earlier on, which are; first have the Plaintiffs made out a case where it is clear that the Defendants in particular, the First and Second Defendants did not follow the established process or procedures to arrive at their decision of 24 January 2008 to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointing the Third Defendant as Principal?


167. Secondly, have the Plaintiffs made out a case where it is clear that the Defendants, in particular, the Fifth Defendant was not properly and legally constituted to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007?


168. Out of the four Grounds of review relied upon by the Plaintiffs, I am satisfied that the Plaintiffs have established Grounds 3(c) and Ground 3(d). These two Grounds are that, the Defendants in particular, the Provincial Executive Council of the Fifth Defendant was not properly and legally constituted to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007. Also, they did not follow proper or established procedures to appoint members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007. Thus, any subsequent decision of the First and Second Defendants to revoke the appointment of the First Plaintiff as acting principal of Mt Hagen Park Secondary School and to appoint the Third Defendant as Principal is also void.


169. The final question I have to decide is; having rejected the Plaintiffs’ application for judicial review under Ground 3(a) and Ground 3(b) but upholding the Plaintiffs’ application on Grounds 3(c) and (d), should I grant all the Orders sought by the Plaintiffs in the Amended Originating Summons including the further Orders sought when I granted leave to the Plaintiffs to further amend the Amended Originating Summons? In other words, should I quash the decision of the First and Second Defendants to appoint the Third Defendant as Principal and in his place appoint the First Plaintiff as Principal of Mt Hagen Secondary School?


170. I have found that, first the appointment of the members of the Second Defendant including the First Defendant as Chairman on 3 December 2007 was not done properly by the appointing authority, the appointing authority being the Provincial Executive Council of the Fifth Defendant. This means that, the defect in the appointment of the members of the Second Defendant including the First Defendant as Chairman must be corrected or rectified one way or the other without further delay after the pronouncement of this Judgment.


171. In saying this, I note that the Defendants, in particular the Provincial Executive Council of the Fifth Defendant attempted to correct or rectify this defect in the decision making process of the appointment of the members of the Second Defendant including the First Defendant as Chairman by convening another meeting of the Provincial Executive Council of the Fifth Defendant on 5 March 2008, classified as a "Special Meeting" a day before the substantive hearing and inter alia resolved to endorse the appointment of members of the Second Defendant including the First Defendant as Chairman with retrospective effect to 3 December 2007. See paragraphs 2 and 3 and Annexure "A" to the Affidavit in Support of Paul Yane sworn and filed on 6 March 2008 (Exhibit "D5") for the evidence of the steps taken by the Provincial Executive Council of the Fifth Defendant to correct or rectify this defect and also a copy of the Resolution of the Provincial Executive Council of the Fifth Defendant of 5 March 2008.


172. That may be well, but there is one problem with the Resolution of the Provincial Executive Council of the Fifth Defendant of 5 March 2008. And that is, neither section 9(f) of the Western Highlands Provincial Education Act No 1 of 2001 nor any other provisions of the said Act give the Provincial Executive Council of the Fifth Defendant the power to back date or make its resolution/decision with retrospective effect. And so, it means that the Resolution of the Provincial Executive Council of the Fifth Defendant of 5 March 2008 is also defective and void.


173. This is why I have suggested that the appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant must go back to the "drawing board" so to speak. That is, the Provincial Executive Council of the Fifth Defendant must convene another meeting to consider and endorse a fresh submission from the new Chairman of Education Ministry. This time, the Chairman must be a member of the Provincial Executive Council other than a head of the Local Level Government or a representative of the head of an Urban Local Level Governments in the province.


174. In all fairness and without any prejudice to the First Plaintiff and also the Third Defendant, the fresh submission for the appointment of the members of the Second Defendant including the Chairman of the Second Defendant must be persons other than those named in the instrument of appointment of 3 December 2007 marked as Annexure "B1" to the Additional Affidavit of Jacob Tapp sworn and filed on 13 February 2008 (Exhibit "P6").


175. In other words, Hans Gima as Chairman or his alternate and the following members, Kaping Isong or his alternate Ben Laki, John Davis or his alternate Paraka Nii, Pais Kar Tiki or his alternate Ambrose Pale, Aita Sanangjepe or his alternate Anthony Raus, Pauline Malau or her alternate Mitine Mugeng, Matrus Mel or his alternate Tenda Wak, Wankani Yan Yan or his alternate John Mar, Joseph Kakaru or his alternate Fuapo Poke, Ludi Goi or his alternate Philip Bobby, Peter Suri or his alternate Clement Kaip, Bob Gek or his alternate John Kaewa, Glen Kundun or his alternate Michael Mondo, Monica Rokupa or her alternate Cathy Rumints, Joseph Kombul or his alternate Kadet Aipe, Peter Wama or his alternate Robert Wayne should not be considered for appointment at this point in time until this dispute on the appointment of Principal of Mt Hagen Park Secondary School including other schools affected by the decision of the First and Second Defendants are resolved.


176. I have laboured to specifically name these persons so that any new appointment of the members of the Provincial Education Board of the Western Highlands Province will at least be made up of persons who were not part of the decision making process in this application for judicial review in this case. Also, the new members will be free to make an unbiased and independent judgment on the appointment of a Principal of concerned school. I am sure there are many good and respectable and of course experience people out there including representatives from the Churches who can be appointed in place of the current members. I have no doubt they will serve well the people of Western Highlands Province if they were considered for appointment on the Provincial Education Board of this province. I leave this decision to the appropriate authority to make.


177. Next, as I have also found that the Defendants and in particular, the First and Second Defendants’ decision of 24 January 2008 to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appointing the Third Defendant as Principal is void abinitio, again this decision must go back to the "drawing board" so to speak for a new decision to be made.


178. I note that the First Plaintiff has placed sufficient evidence before this Court to urge me to find that he is the most suitable candidate for the position of Principal of Mt Hagen Park Secondary School. For example, I note with admiration all the positive developments and achievements of the First Plaintiff during his one term as acting Principal of Mt Hagen Park Secondary School in 2007 in paragraph 10 (1) to (15) of his Affidavit in Support sworn on 30 January 2008 and filed on 31 January 2008 (Exhibit "P1"). I must state that they are remarkable achievements and I must commend him for a job well done!


179. The First Plaintiff also gave oral evidence that he had been teaching as a teacher and also as a headmaster for the last twenty (20) years in this province. He was sent to run down High Schools in the Western Highlands Province like Kitip Secondary School to revamp it. Now that he has been transferred to Kombolopa High School which is in Baiyer, it is a "slap in his face" after all the hard work he had put in at Mt Hagen Park Secondary School and that Kombolopa is non operational because of a long outstanding tribal fight in the area where the school is located. He has admitted in evidence during cross examination by counsel for the Defendants that in terms of education department ranking system, his substantive level is level 4.


180. On the other hand, the Third Defendant has also placed before me evidence that he is equally a suitable candidate or even a better candidate for the same position. For example, the Third Defendant is a substantive level 9 teacher and was the Principal of Mt Hagen Park Secondary School for six (6) years before he resigned in October 2006 to contest the National General Elections in 2007. Mt Hagen Park Secondary School is a level 9 school.


181. There is no doubt in my mind that both gentlemen have the experience and the knowledge to run the School. I have to agree with my learned brother Mr Justice Hinchliffe in his Judgment of 18 January 2008 when he granted leave to the Plaintiffs to apply for judicial review in this matter on pages 18 and 19 where he said:


"After assessing whole of the evidence, both written and oral I am quite satisfied that both would make good Principals even though there is a question as to the eligibility of both men and in particular the first plaintiff.


At the end of the day I must make a decision. It is not an easy one. If I could use the expression that they are "running neck and neck", I would, so I do. There is one thing I do say is that the third defendant, MANN TAMBILI has far more experience at the school than the first plaintiff. The former, about 7 years as Principal and the latter, about 1 year.


........... Both men could do the job and it is a shame one must be left out."


182. I am tempted to make a decision between these two gentlemen but I cannot do so. As I said earlier and I repeat here, it is very important to understand that "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See page 124 of Kekedo -v- Burns Philip’s case (supra). Further, a subordinate body is well placed and informed in its area of specialty to decide the dispute than the Court. (Emphasis is mine).


183. Thus, this Court cannot step in and decide who should be appointed as Principal of Mt Hagen Park Secondary School. For these reasons, I decline to make any decision on who should be appointed as Principal of the School.


184. Instead, I note that the Plaintiffs have sought Orders in the nature of Certiorari and I am satisfied that the Plaintiffs have made out a case for the Court to quash the decision of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 and also to quash the subsequent decision of the First and Second Defendants to revoke the appointment of the First Plaintiff as acting Principal and appoint the Third Defendant as Principal of Mt Hagen Park Secondary School on 24 January 2008.


185. Thus, in the exercise of the Court’s power under Order 16, rule 9(4) of the National Court Rules, I order that the matter be remitted to the Western Highlands Provincial Education Board to make a decision on the appointment of the Principal of Mt Hagen Park Secondary School.


186. This is to happen after the Provincial Executive Council of the Fifth Defendant appoints new members of the Western Highlands Provincial Education Board within the next twenty one (21) days from the date of this Judgment.


CLAIM FOR DAMAGES AGAINST THE DEFENDANTS


187. As I have found that the Defendants have misapplied the law in respect of the appointment of the members of the Second Defendant including the First Defendant has Chairman of the Second Defendant which has nullified the subsequent decision of the First and Second Defendants of 24 January 2008 to revoke the appointment of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and appoint the Third Defendant as Principal, there appears to be some element of negligence on the part of the Defendants to allow this to occur. I am not sure if proper legal advice was sought before the Provincial Executive Council of the Fifth Defendant convened its meeting of 3 December 2007 and appointed the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant.


188. Nonetheless, I have been asked to exercise the Court’s power under Order 16, rule 7 of the National Court Rules to award damages to the Plaintiffs, in particular the First Plaintiff for stress, hardship and disappointment as a result of the actions of the Defendants. As I said above, there appears to be some element of negligence on the part of the Defendants but I do not think that this is an appropriate case where I should award damages to the First Plaintiff without properly determining the issue of liability and assessment of damages.


189. He has not quantified his damages either in the Amended Statement in Support of the application for judicial review or in his various Affidavits. For example, he has not stated if the Education Department or the Teaching Service Commission has removed him from the pay roll and how much he earns as his pay per fortnight to assist the Court to determine the award of damages. Also he has also not submitted any medical report to support his claim for being under pressure and stress as a result of the decisions of the Defendants apart from Mr Gonol’s bold submission in Court that the First Plaintiff has suffered distress and disappointment and should be awarded damages.


190. I am not persuaded to make any Orders on the question of liability and assessment of damages until the Plaintiffs properly plead the basis and details of their claim for damages. In the circumstance, by virtue of the Court’s power vested in me under Order 16, rule 9(5) of the National Court Rules, I order that the further conduct of the proceeding to claim damages shall continue by way of pleadings and I make the following Orders:


1. The Plaintiffs shall file and serve a Statement of Claim on the Defendants by or before 28 April 2008.


2. The Defendants to file and serve their Defence on the Plaintiffs by or before 11 June 2008.


3. If any, both parties are at liberty thereafter to give discovery of documents and interrogatories.


4. After compliance of Order 3 above, both parties to set the matter down for trial.


ORDERS


In the end, the formal Orders of the Court I make are as follows:


1. Leave is granted to the Plaintiffs to have the decision of the Provincial Executive Council of the Fifth Defendant made on the 3 December 2007 to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant be judicially reviewed.


2. An Order in the nature of Certiorari to remove into this Honourable Court and quash the decision of the Provincial Executive Council of the Fifth Defendant to appoint the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007.


3. An Order in the nature of Certiorari to remove into this Honourable Court and quash the decision of the First and Second Defendants to revoke the appointment of the First Plaintiff as acting Principal and in its stead appoint the Third Defendant as Principal of Hagen Park Secondary School made on 24 January 2008.


4. An Order in the nature of a Declaration that the appointment of the members of the Second Defendant including the First Defendant as Chairman of the Second Defendant on 3 December 2007 is null and void abinitio.


5. An Order in the nature of a Declaration that the revocation of the First Plaintiff as acting Principal of Mt Hagen Park Secondary School and the appointment of the Third Defendant as Principal by the First and Second Defendants on 24 January 2008 is null and void abinitio.


6. An Order directing the Provincial Executive Council of the Fifth Defendant to convene another meeting to consider and endorse a fresh submission for the appointment of members of the Second Defendant including the Chairman of the Second Defendant from the new Chairman of Education Ministry who is this time a member other than a head of the Local Level Government or a representative of the head of the Urban Local Level Governments in the province within twenty one (21) days from date of this Order.


7. A further Order that a fresh submission for the appointment of the members of the Second Defendant including the Chairman of the Second Defendant must contain persons other than those named in the instrument of appointment of 3 December 2007.


8. A further Order that the appointment of the Principal of Mt Hagen Park Secondary School be remitted to the new Provincial Education Board for decision.


9. A further Order extending the interim Orders of 18 February 2008 to allow the Third Defendant to be acting Principal of Mt Hagen Park Secondary School on an acting capacity pending a decision of the new Western Highlands Provincial Education Board on the Principal of Mt Hagen Park Secondary School.


10. A further Order extending the interim Orders of 18 February 2008 restraining the First Plaintiff from moving in as Principal of Mt Hagen Park Secondary School pending a decision of the new Western Highlands Provincial Education Board on the Principal of Mt Hagen Park Secondary School.


11. An Order that the further conduct of this proceeding for claim for damages against the Defendants shall continue by way of pleadings.


12. The Plaintiffs shall file and serve a Statement of Claim on the Defendants by or before 28 April 2008.


13. The Defendants to file and serve their Defence on the Plaintiffs by or before 11 June 2008.


14. If any, both parties are at liberty thereafter to give discovery of documents and interrogatories.


15. After compliance of Order 14 above, both parties to set the matter down for trial.


16. The Defendants pay the Plaintiffs’ cost of the application for judicial review to be taxed if not agreed.


17. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.


________________________________________


Paulus Dowa Lawyers: Lawyers for the Plaintiffs
Bosip Aipe Lawyers: Lawyers for the Defendants

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