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Talao v National Executive Council of Papua New Guinea [2012] PGNC 31; N4634 (19 March 2012)

N4634

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 54 OF 2012

BETWEEN:

FREDA TALAO
Plaintiff

AND:

THE NATIONAL EXECUTIVE COUNCIL
OF PAPUA NEW GUINEA
First Defendant

AND:

DR ALLAN MARAT as the nominal Defendant for
and on behalf of ANO PALA, ACTING GOVERNOR
GENERAL OF PAPUA NEW GUINEA
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:

STEVEN PIM, CAPTAIN GURE LEKWA & JERRY AGUS
in their capacity as Directors of NATIONAL AIRPORTS
CORPORATION LIMITED
Fourth Defendants

Waigani: Hartshorn J.
2012: 15th & 19th March

Application for leave for Judicial Review

Facts:

The plaintiff, Ms Freda Talao, applies for leave to judicially review the revocation of her appointment as a director of the National Airports Corporation Ltd (NAC) and the subsequent appointment of the fourth defendants as directors of NAC. The plaintiff contends that the decision to revoke her appointment was made pursuant to the company constitution of NAC or in accordance with the Companies Act.

Held:

1. This application for leave is not an abuse of process
2. The plaintiff has not demonstrated an arguable case in favour of the grant of the relief sought.
3. The relief sought is refused
   

Cases cited:

Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22
Pora v. Leadership Tribunal [1997] PNGLR 1
Air Niugini Ltd v. Doiwa (2000) N1972
Sanangkepe v. Wingti (2008) N3404
Napitalai v. PNG Ports Corporation Ltd (2010) SC1016

Counsel:

Mr. N. Saroa, for the Plaintiff
Mr. N. Tame, for the third Defendant

19th March, 2012

1. HARTSHORN J. The plaintiff, Ms Freda Talao, applies for leave to judicially review the revocation of her appointment as a director of the National Airports Corporation Ltd (NAC) and the subsequent appointment of the fourth defendants as directors of NAC.

2. The plaintiff contends that the revocation of her appointment was a decision of the first defendant, the National Executive Council of Papua New Guinea (NEC) and the appointment of the fourth defendants as directors was a decision of the then Acting Governor General. In essence, the plaintiff contends that the decisions should have been made pursuant to the company constitution of NAC or in accordance with the Companies Act and they were not.

3. Notwithstanding that an application for leave to apply for judicial review must be made ex parte pursuant to Order 16 Rule 3 (2) National Court Rules, as the State is the defendant and is to be afforded an opportunity to be heard as required by s. 8 Claims by and Against the State Act (Claims Act), counsel for the State made submissions on the application for leave. Those submissions were in opposition to the relief sought by the plaintiff.

Preliminary

Abuse of process

4. One of the submissions made on behalf of the State was that this proceeding was an abuse of process. I will deal with this submission first. It is submitted that in another National Court proceeding WS 495/10, the plaintiff herein together with two others have sought interim relief that the same decision of the NEC the subject of this application was illegal and that the new Board of NAC be restrained. The plaintiff herein has filed in that proceeding, an affidavit in which the grounds upon which she relies are the same as those relied upon in this application.

5. Counsel for the plaintiff submits that in proceeding WS 495/10, different relief is sought and therefore this proceeding is not an abuse of process. I do not have before me details of the substantive relief sought in WS 495/10. Further, I note that the plaintiff is not a party to proceeding WS 495/10. It may be that the plaintiff together with others, purport to be directors of NAC, the plaintiff in WS 495/10, but it is a different entity that is seeking the substantive and interim relief in WS 495/10 to that of the plaintiff herein. On this basis, I am not satisfied that this application for leave is an abuse of process.

Whether judicial review available

6. The State further submits that the revocation of the plaintiff's appointment as a director concerns a private and not a public right and therefore is not able to be judicially reviewed. The cases of Air Niugini Ltd v. Doiwa (2000) N1972 and Napitalai v. PNG Ports Corporation Ltd (2010) SC1016 are cited in support of this submission. I did not find Doiwa (supra) to be of assistance to the State's submission. Further, the Supreme Court decision of Napitalai (supra) concerned an employee's termination by the Board of PNG Ports Corporation Ltd. It was held that the remedy of judicial review was not available to the employee. Some of the factors considered by the Supreme Court in arriving at its decision were that the State does not have the right to appoint senior management of PNG Ports Corporation or to run its affairs, and the Board of Directors of PNG Ports Corporation can hire and fire the management as it sees fit. In this instance the State submits that the appointment and revocation of appointment of certain directors of NAC, including the position of the plaintiff, the subject of this proceeding, is governed by the Regulatory Statutory Authorities (Appointment of Certain Officers) Act 2004 (RSA Act). Given this, I am satisfied that the decision in Napitalai (supra) is distinguishable on its facts and is not of assistance to the State's submission.

Claim against Acting Governor General

7. The State submits that, "the Acting Governor General who made the decision is not directly sued.", and that this warrants this proceeding being dismissed. Section 3 Claims Act provides that,

"A person making a claim against the Head of State, or Governor-General, acting on advice, shall in the proceeding, make such claim against the Attorney-General who shall be the nominal defendant on behalf of the Head of State and Governor-General."

That is what has happened here. This submission of the State is rejected.

Application for leave

8. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

9. In the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644;

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

This passage was adopted in Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22. I will consider whether the plaintiff has an arguable case first.

Arguable case

10. The plaintiff submits that she was appointed as a director of NAC pursuant to its company constitution and that any revocation of her appointment must also be pursuant to the NAC constitution. If NAC did not have a constitution as is contended by the State, which the plaintiff disputes, then any revocation of her appointment as a director should be pursuant to the Companies Act. It is common ground, if I understand correctly, that the plaintiff's appointment as a director was not revoked pursuant to the NAC constitution or the Companies Act.

11. The plaintiff's appointment as a director was purportedly revoked pursuant to s. 20 Civil Aviation Act 2000 (CAA), s. 41 Public Services (Management) Act 1995 (PSA), and s. 10 RSA Act.

12. As to the legislative provisions relied upon for the revocation of the plaintiff's director's appointment, the plaintiff submits that s. 20 CAA is not applicable as it applies to members of the Civil Aviation Authority and not NAC. From a perusal of s. 20 CAA, this submission is correct. As to s. 41 PSA, the plaintiff submits that this applies in respect of contracts of employment within the public service which also does not apply to the plaintiff. From a perusal of s. 41 PSA, this submission is correct. As to s. 10 RSA Act, the plaintiff submits that it may apply but only to appointments that are made after the amendment to the Civil Aviation Act in 2010. The plaintiff's director's appointment was prior to this amendment coming into force and therefore s. 10 RSA Act does not apply to her appointment, the plaintiff submits.

13. On a perusal of the Civil Aviation (Amendment) Act 2010, specifically s. 56 which adds sections 147A and 147E, there is no provision which stipulates that these sections or s. 147A (5), which concerns the appointment of a director such as the plaintiff, only applies to an appointment of such a director that was made after the Civil Aviation (Amendment) Act 2010 came into force. In the absence of such a provision, s. 147A (5) would apply to the plaintiff's director's appointment. That is, that such appointment is made in accordance with the procedures for appointment and revocation of appointment of officers of statutory authorities under the RSA Act.

14. As to the Civil Aviation (Amendment) Act 2010 not expressly providing the power to revoke the appointment of a director of NAC, s. 36 (1) Interpretation Act, provides a power of removal in such circumstance: Sanangkepe v. Wingti (2008) N3404.

15. Counsel for the plaintiff in his submissions does not take issue with the procedures that were followed under s. 10 RSA Act. Ordinary principles dictate that the provisions of a statute, especially those that specifically concern the subject matter, here the Board of NAC, take precedence over the provisions of a company constitution. If there was no constitution of NAC at the relevant time, as submitted by the State, the provisions of the Civil Aviation (Amendment) Act 2010 take precedence over the provisions of the Companies Act, as its provisions deal specifically with the subject matter. Further, the Civil Aviation (Amendment) Act 2010 was enacted after the Companies Act.

16. I am satisfied that s. 10 RSA Act does apply to the plaintiff's director's appointment. That every legislative provision referred to in the Gazettal Notice does not apply to the plaintiff's position does not render the revocation invalid. That one of those provisions applies, s. 10 RSA Act, is sufficient.

17. The plaintiff submits further, that the revocation of her appointment as a director is in breach of a Court Order in proceeding WS 495/10 made on 19th May 2010 (Restraining Order) which restrains the State from interfering with the operations of NAC. A perusal of the Restraining Order however, reveals that it only restrains the appointment of three persons who are not parties to this proceeding, restrains those persons, and restrains the interference of NAC's affairs in invoicing and the collection of fees. I am satisfied that the Restraining Order does not restrain the revocation of the plaintiff's appointment as a director.

18. The plaintiff further submits that certain statements in a letter from the then Acting State Solicitor highlight errors with the revocation of her director's appointment. With respect to the certain statements, they are the opinion of the writer of the letter. In regard to the third paragraph of the letter, the question of automatic invalidation is commented on but it is not relevant here. As to the Restraining Order referred to in the fourth paragraph of the letter, I have already considered that issue.

19. From a quick perusal of the material that was put before me, I am not satisfied that it discloses what might on further consideration turn out to be an arguable case in favour of granting the plaintiff the relief that she claims. Given this finding it is not necessary to consider the other requirements for leave to be granted.

20. The relief sought in paragraph 1 of the amended notice of motion of the plaintiff filed 7th March 2012 and paragraph 1 of the Originating Summons is refused. The costs of and incidental to the application for leave of the third defendant are to be paid by the plaintiff.

____________________________________________________________

Nelson Lawyers: Lawyers for the Plaintiff
Nicholas Tame Lawyers: Lawyers for the Third Defendant