N7733

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 08 OF 2019

BETWEEN:
DONALD VALU
Plaintiff

AND:
DR KEN NGANGAN in his capacity as the Secretary, Department of Finance
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani:    Gavara-Nanu J
2019:    7th & 13th February

JUDICIAL REVIEW – Review of a decision-making process – Decision - What constitutes a ‘decision’ – Warning by a public authority - Mere warning does not amount to a decision – No decision-making process to review – No exercise of power by the public authority – No decision affecting the plaintiff - Leave for judicial review refused. 

Cases Cited

Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Selly Farapo v. The Commissioner of Police [1996] PNGLR 17

Counsel

L. Evore, for the Plaintiff
I. Mugugia, for the Defendants

13th February, 2019 

1.	GAVARA-NANU J:  This is an application for leave for judicial review by the plaintiff made pursuant to an Originating Summons (OS) filed on 15 January, 2019.

2.	The plaintiff is seeking a review of what he claims was a decision made by the first defendant in a letter dated 12 December, 2018. The letter was addressed to the plaintiff as the Chief Executive Officer (CEO) of Konebada Petroleum Park Authority (KPPA). The plaintiff claims the first defendant decided to prosecute him if he did not comply with a direction the first defendant issued to him by 15 January, 2019. 

3.	The direction relates to an amount of money totalling K10,294,143. 00. The plaintiff was told to reimburse the amount by 15 January, 2019, failing which he (the plaintiff) would be surcharged for the amount and prosecuted under s. 102 of the Public Finances (Management) Act, 1995, (PFM) Act, for fraud. The amount is said to be made up of K5,931,559.00 in withholding tax; K1,497,448.00, the plaintiff is alleged to have illegally paid himself and K2,865,136.00 being alleged cost of illegal hire of motor vehicles.   

4.	The plaintiff claims there was another decision made by the first defendant in a letter dated 14 November, 2017, which was addressed to the CEO of KPPA.  In that letter the first defendant directed the KPPA and its Board to surrender all the assets of the KPPA and its subsidiaries to the Financial Controller. The plaintiff and KPPA were told to comply with the direction by 22 November, 2017.

5.	The plaintiff also raised issues regarding a letter dated 25 September, 2017, written by the Deputy Secretary, Department of Finance, which was addressed to the plaintiff as the CEO of the KPPA.  In that letter, the Deputy Secretary among others raised concerns about the high increase in the expenditure of KPPA including increase in staff salaries and told KPPA to take appropriate measures to minimize its high level of expenditure.

6.	Ms Mugugia, counsel for the State opposed the application. She argued that the plaintiff lacked standing because no decisions were made by the first defendant, which affected him. She argued that the letter of 12 December, 2018, was a normal administrative action taken by the first defendant for proper administration of KPPA and the Court cannot interfere with it.  Ms Mugugia argued that the application lacks merit. She submitted that the letter was only a warning to the plaintiff about actions he (first defendant) may take if his directions were not complied with by 15 January, 2019. 

7.	There is no dispute that the first defendant has power to issue directions to KPPA and its officers including the plaintiff regarding the management of KPPA and its expenditure. There is also no dispute that KPPA as a public body is accountable to the first defendant regarding its financial management as it is bound by the PFM, Act. The first defendant also has power to enforce the PFM Act and demand KPPA to comply with its requirements. 

8.	The gist of the plaintiff’s argument is that the first defendant had no power to issue the directions which he claims amounted to decisions.

9.	I have read the above two letters dated 25 September, and 14 November, 2017, I find that they are irrelevant because they were directed generally to KPPA and not to the plaintiff personally.  

10.	  This proceeding is issued by the plaintiff in his own name and on his own behalf.  It does not involve KPPA and the plaintiff is seeking relief for himself. 

11.	It is significant to note that whilst it is true that the first defendant expressed his intention to prosecute and surcharge the plaintiff if he did not comply with his (first defendant) directions by 15 January, 2019, it is also true that the plaintiff has hitherto not been prosecuted or surcharged.

12.	The application is therefore clearly misconceived.  Putting the letter of 12 December, 2018, at its highest, it did no more than issue warnings to the plaintiff. The first defendant has not made any decision to prosecute or surcharge the plaintiff, and more importantly the letter had no adverse effect on the plaintiff.

13.	The warnings may not be followed through, even if the plaintiff failed to comply with them.

14.	There was no decision by the first defendant and there is no decision-making process for the Court to review. See, Kekedo v. Burns Philip (PNG) Ltd [1no 988-89] PNGLR 122. Furthermore, there was no exercise of power by the first defendant against the plaintiff for which the plaintiff can seek relief. See, Selly Farapo v. The Commissioner of Police [1996] PNGLR 17. 

15.	The applicant has therefore failed to show that he has standing to bring this application.  The application has no merit and is dismissed with costs. 

16.	As the application is brought personally by the plaintiff, he is ordered to pay the defendants’ costs of and incidental to this proceeding, which if not agreed, to be taxed.
______________________________________________________________
Jema Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants