|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 1 OF 2020
OIL PALM INDUSTRY CORPORATION BOARD
First Plaintiff
STUART TATAURO
Second Plaintiff
KEPSON PUPITA
Third Plaintiff
V
HON JOHN SIMON MP,
MINISTER FOR AGRICULTURE & LIVESTOCK
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
STEPHEN MOMBI, ACTING CHAIRMAN,
OIL PALM INDUSTRY CORPORATION BOARD
Third Defendant
Waigani: Cannings J
2020: 1st May, 11th June, 16th, 20th July, 7th August
JUDICIAL REVIEW – review of decisions of Minister for Agriculture and Livestock re Oil Palm Industry Corporation – decisions re position of General Secretary of Corporation and position of Chairman of Board of Corporation – whether Minister’s direction to Board to remove acting General Secretary unlawful – whether Minister’s decision to revoke appointment of Board Chairman unlawful – Oil Palm Industry Corporation Act 1992.
The Minister for Agriculture and Livestock (first defendant) on 30 March 2020 wrote a letter to the Oil Palm Industry Corporation Board (first plaintiff), through its Chairman (second plaintiff), directing it to reverse its decision to appoint the third plaintiff as acting General Secretary of the Corporation, failing which he would regard the failure to comply as insubordination and take appropriate action under the law. The Board failed to comply with the direction. On 6 April 2020 the Minister wrote to the Chairman, relying on s 11(3) of the Oil Palm Industry Corporation Act giving him 14 days to show cause why he should not terminate his membership of the Board. The Chairman did not respond in 14 days. On 23 April 2020 the Minister revoked the appointment of the second plaintiff as Chairman and appointed another person (third defendant) as Acting Chairman. That decision was published in the National Gazette the next day. The plaintiffs were granted leave to apply for judicial review of: (1) the Minister’s direction of 30 March 2020; and (2) the Minister’s decisions of 23 April 2020.
Held:
(1) Though the Minister has by virtue of s 148 of the Constitution no power of direction or control over the Board and there is nothing in the Oil Palm Industry Corporation Act expressly authorising the giving of directions to the Board, the Minister’s letter of 30 March 2020 was in the circumstances a reasonable indication to the Board of ministerial displeasure about the acting appointment by the Board of the third plaintiff, which appeared on reasonable grounds to be unlawful. The letter was not self-executing and was not giving notice of a decision that affected anyone’s legal rights and obligations or livelihood, and was not susceptible to judicial review. All relief sought regarding the 30 March 2020 letter was refused.
(2) The Minister made two decisions on 23 April 2020. The first, to terminate the appointment of the second plaintiff as Chairman, was made in accordance with ss 11(3), (4) and (5) of the Oil Palm Industry Corporation Act. However, the decision only removed the second plaintiff as Chairman and did not terminate his appointment as a Board member. The second, to appoint the third defendant as Acting Chairman, was contrary to s 10 of the Act as: (a) the third defendant was not a member of the Board; and (b) the appointment was made without a recommendation from the Board.
(3) Declarations made accordingly. Also ordered that the parties take steps under the Oil Palm Industry Corporation Act to facilitate substantive appointments of General Secretary and Chairman of the Board of the Corporation within a timeframe set by the Court. Parties bear their own costs.
Cases Cited
The following cases are cited in the judgment:
Aigilo v Morauta [2001] PNGLR 668
Dale Christopher Smith v Minister for Lands (2009) SC973
Dr Amos Lano v Dr Maru Garo (2013) N5227
Isaac Lupari v Sir Michael Somare (2008) N3476
Musa Century Ltd v Hon Peter O’Neill MP [2013] 2 PNGLR 23
SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178
Sir Brown Bai v Hon Assik Tommy Tomscoll (2015) N6112
Taian v Auali (1999) N1967
JUDICIAL REVIEW
This was an application for judicial review of decisions of the Minister for Agriculture and Livestock regarding the positions of General Secretary of the Oil Palm Industry Corporation and Chairman of the Oil Palm Industry Corporation Board.
Counsel
N Tame, for the Plaintiffs
T C Waisi, for the First Defendant
R Uware, for the Second Defendant
S Ranewa, for the Third Defendant
7th August, 2020
1. CANNINGS J: This case is about a conflict between the Oil Palm Industry Corporation Board (the first plaintiff) and the Minister for Agriculture and Livestock, the Honourable John Simon MP (the first defendant).
2. On 30 March 2020 the Minister issued a written direction to the Board, through its Chairman, Mr Stuart Tatauro (the second plaintiff), to, within five days, reverse its decision to appoint Mr Kepson Pupita (the third plaintiff) as acting General Secretary of the Oil Palm Industry Corporation (OPIC), failing which he would regard the failure to comply as insubordination and take appropriate actions under the law. The Board failed to comply with the direction.
3. On 6 April 2020 the Minister wrote to Mr Tatauro, relying on s 11(3) of the Oil Palm Industry Corporation Act, giving him 14 days to show cause why he should not terminate his membership of the Board. Mr Tatauro did not respond in 14 days. On 23 April 2020 the Minister revoked the appointment of Mr Tatauro as Chairman and appointed Mr Stephen Mombi (the third defendant) as Acting Chairman. Those decisions were published in the National Gazette the next day.
4. The plaintiffs have been granted leave to apply for judicial review of:
(1) the Minister’s direction of 30 March 2020; and
(2) the Minister’s decisions of 23 April 2020.
5. The plaintiffs’ principal arguments are:
(1) the Minister’s direction of 30 March 2020 is unlawful as he has per force of s 148 of the Constitution no power of direction or control over the Oil Palm Industry Corporation or its Board; and
(2) the decisions are in contravention of ss 10 and 11 of the Oil Palm Industry Corporation Act.
6. Before addressing those arguments (which are my summation of a more elaborate pleading of grounds of review in the plaintiff’s further amended originating statement under Order 16, Rule 3(2)(a) of the National Court Rules, filed 29 April 2020) I will set out the facts in more detail.
FACTS
7. I make the following findings of fact.
2014
11 December Mr Lesley Wungen was appointed General Secretary for four years.
2015
3 September The decision of 11 December 2014 was revoked and Mr Wungen was appointed Acting General Secretary.
2019
5 December The OPIC Board removed Mr Wungen as General Secretary and appointed Mr Kepson Pupita as Acting General Secretary.
2020
17 February The National Court (Polume-Kiele J) dismissed proceedings commenced by Mr Wungen, OS(JR) 932/19, which he had commenced to challenge his removal from office.
30 March The first defendant, the Minister, wrote the letter to Mr Tatauro that has become contentious, containing the allegedly unlawful direction. The Minister, amongst other things stated:
Given the position in law as explained above, the decision of the Board dated 5 December 2019 [to remove Mr Wungen and appoint Mr Pupita] is clearly wrong in law. This has caused so much confusion and disorder within the organisation and the Oil Palm Industry as a whole and must be urgently corrected. In that regard, I urgently want to meet with you within the week to discuss the ways forward. If you are in Port Moresby then come by my office on Friday the 3rd of April 2020 at 10am so we can meet.
In the meantime, since Mr Leslie Wungen’s acting appointment for an indefinite period by NEC on the 3rd September 2015 was legally in order and he was lawfully acting in the position of General Secretary at the time he was wrongfully removed by your Board and replaced with Mr Kepson Pupita, sound legal reasoning and common sense dictates that he must immediately return to act in the position to maintain the legal status quo and oversee the smooth running of the organisation whilst we commence work on the processes for a permanent appointment.
Mr Kepson Pupita cannot be allowed to continue to illegally act in the position of General Secretary and commit and expend OPIC funds and resources unlawfully. The Board of OPIC under your chairmanship is duty bound by law not to allow this situation to persist but to do the right thing by correcting the mistake made.
Hence the right thing to do now is correct the mistake made by the Board of OPIC under your Chairmanship is to facilitate the immediate return of Mr Leslie Wungen to act in the position of General Secretary forthwith. This must be done within five (5) working days from the date of this letter so that when we meet on Friday the 3rd of April 2020, you can update me on the actions you have taken to comply with this directive.
I must warn you that failure to comply with this directive will be deemed insubordination and I will not hesitate to take appropriate actions against you and the Board within my powers under the law. Contact me through my Second Secretary, Mr Jack Akike on telephone number [...] should you require further clarification on the matter.
7 April Mr Tatauro did not respond within five days to the Minister’s letter of 30 March 2020, so on 7 April 2020 the Minister gave him a show cause notice under s 11 of the Oil Palm Industry Corporation Act 1992. The Minister stated:
RE: NOTICE OF INTENTION TO TERMINATE YOUR MEMBERSHIP TO THE BOARD OF OIL PALM INDUSTRY CORPORATION
I refer to my letter to you dated 30th March 2020 requesting a meeting with you on Friday the 3rd of April 2020 at 10 am to work on a strategy to resolve the current tussle between the incumbent Acting General Secretary, Mr Leslie Wungen and Mr Kepson Pupita that is adversely affecting the good administration of Oil Palm Industry Corporation (OPIC) and the oil palm sector as a whole.
I note after five (5) working days you have not facilitated the return of Mr Leslie Wungen as the Acting General Secretary to maintain the status quo or either respond to my letter or at least call me back through my Second Secretary as requested. Instead, you used Mr Pupita to call my Second Secretary very late on Friday. The meeting I requested was between you and me and not with Mr Pupita or Mr Leslie Wungen. Both of these men are interested parties in what we are to discuss and therefore were not invited.
In addition to not responding to my letter, you have also on a number of occasions ignored my direct calls to you and on other occasions you simply switched off your phone after my first call to you. On one occasion, I texted you introducing myself and asking you to call me but you never did. These reactions from you to my attempts at contacting you through the phone including your failure to meet with me to resolve the issue as I requested amount to insubordination. Furthermore your actions also indicate to me that you are inefficient and you lack the capacity to perform your duties in the best interest of OPIC as a member and Chairman of its Board.
As you are aware, all members of the OPIC board including yourself have a fiduciary duty to perform and serve in the best interest of the organisation that you are sworn to serve and protect. Your actions as of late that I described above unfortunately does not reflect that at all. I am therefore left with no options but to terminate your membership to the Board of OPIC and by this letter I am now indicating my intention to do so pursuant to my powers under s 11(3) of the Oil Palm Industry Corporation Act 1992 as the Minister responsible.
You have fourteen (14) days from the date of this letter to show cause as to why I should not terminate your membership to the Board of OPIC. Failure to show cause within the time frame given would result in your automatic termination from the Board of OPIC.
23 April Mr Tatauro did not respond to the notice of 5 April 2020 within 14 days. The Minister then decided, on 23 April 2020, to terminate his appointment as Chairman and to appoint in his place Mr Stephen Mombi (the third defendant).
24 April The Minister’s decisions of 23 April 2020 were published by notice in the National Gazette the next day. The notice stated:
Oil Palm Industry Corporation Act
REVOCATION OF CHAIRMAN AND APPOINTMENT OF ACTING CHAIRMAN OF THE BOARD OF DIRECTORS OF
THE OIL PALM INDUSTRY CORPORATION BOARD
I, Honourable John Simon, MP, Minister for Agriculture and Livestock by virtue of the powers conferred by Section 10 of the Oil Palm Industry Corporation Actand all other powers me enabling thereby –
(a) revoke the appointment of Stewart Tatauro as Chairman of the Board of Directors of the Oil Palm Industry Corporation; and
(b) appoint Stephen Mombi as Acting Chairman of the Board of Directors of Oil Palm Industry Corporation until such time that a permanent appointment is made.
With effect on and from the date of publication of the instrument in the National Gazette.
Dated this 23rd day of April 2020.
HonJSIMON, MP
Minister for Agriculture and Livestock
FIRST PRINCIPAL ARGUMENT: THE MINISTER’S DIRECTION OF 30 MARCH 2020
8. The plaintiffs argue that the Minister’s direction to the Board, of 30 March 2020, to reverse its decision to appoint Mr Pupita as Acting General Secretary, was unlawful as there is nothing in the Oil Palm Industry Corporation Act that allows the Minister to direct the Board as to its functions. He is the Minister with political responsibility for the Board, that is all. The plaintiffs rely on s 148 (functions etc of Ministers), which states:
(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
(2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.
(3) Subsection (2) does not confer on a Minister any power of direction or control.
9. The plaintiffs also rely on the leading case on s 148, SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 178 (Kidu CJ, Kapi J, Pratt J), which confirmed the practical effect of s 148(3).
10. Kidu CJ stated:
It does not say that a Minister has no power of direction or control whatsoever over a department, section, branch and function of government of which he/she has political responsibility. It is my view that s 148 merely says that the fact that it (ie s 148) vests in a Minister the political responsibility over a department, section, branch, etc. in itself confers no powers of direction or control over those bodies. I cannot also see that s 148 prohibits Parliament from making laws vesting in Ministers power of direction and control over matters for which they have political responsibility. ...
It is quite clear that s 148 of the Constitution does not give the Minister for Police any power of direction or control over the Commissioner of Police. The Police Act does not confer on the Minister any power of direction or control over the Commissioner of Police or the police force. Neither s 10 nor s 12 of that Act gives such powers to the Minister. ...
No legislation confers on the Minister for Police the power to direct and control the Secretary for Police. The Public Service Act contains no such provision or provisions.
Although the Minister for Police is not specifically empowered to direct and control either the force or the Commissioner, or the Secretary for Police, he has political responsibility for them. He has therefore the duty to ensure that the force and the Commissioner have funds to carry out the functions. He is also responsible for speaking on their behalf when they are under criticism. The Minister, therefore, has the right to be informed of all aspects of police operations. He has the right to request the head of the Police Force to provide information relating to the Force.
11. Kapi J stated:
What is the political responsibility of the Minister? The term is not defined. In my opinion the political responsibility of the Minister involves:
(a) all matters concerning a department, section, branch or function of government which require the deliberations or decision of the National Executive Council as a matter of responsibility of the National Executive Council as the executive government of Papua New Guinea. (See s 149(3) of the Constitution.) It would be the political responsibility of a Minister of the particular department, etc, to submit, advise, inform, report or brief the National Executive Council to enable the National Executive Council to make decisions as the executive government of Papua New Guinea regarding the particular branch of government. This would include such matters as budget priorities and allocations.
(b) inform, report or answer questions in the Parliament or the public through news media regarding any matter concerning the function of the government as a member of the Cabinet which is responsible for the executive arm of the Government.
This responsibility is more in the nature of doing the groundwork for the National Executive Council for purposes of executive decisions under s 149(3) of the Constitution and simply informing the public through Parliament or news media of the workings of the executive arm of the government on the particular branch or department of government. That is as far as the political responsibility of a Minister can go.
The question to be answered is whether the Minister has power of direction or control over the Commissioner and/or Secretary of Police such that he may lawfully issue orders in the nature of those which now form the subject of the charges?
The answer to this question is to be found in s 148(3) of the Constitution. He who has no power of direction and control over a department, sections branch or function of government is powerless against that department, etc. That is to say that the power is not there from which a Minister can issue orders which form the subject of the charges against the Commissioner.
The lack of power of direction and control by a Minister under s 148(3) relates to the political responsibilities. If it is desired for a Minister to have any power of direction or control outside those political responsibilities then those powers may be given to him by another provision of the Constitution or an Act of Parliament. See, for instance, s 4 of Industrial Organisations Act 1973 — Ch 173.
The only thing s 148(2) confers on the Minister is the right to request (and not the power to order) anything for the purposes of his political responsibility.
This may be contrasted with the powers of the National Executive Council under s196 of the Constitution where the National Executive Council has the control of the force. That is the issue raised by Question III. However, the Minister for Police is no exception as far as powers of direction and control are concerned under s 196, because s 196(2) specifically states that the Minister responsible for police has no power of direction or control. The word "command" in this section is synonymous with "direct" and "control". This provision is consistent in this regard with s 148 (3).
The lack of power of direction and control by Ministers apparent in these provisions was a departure from the recommendation of the Constitutional Planning Committee Report. (See Final Report of the Constitutional Planning Committee Report, p 7/6 par 46 and p 7/12 recommendation 29.)
The fact that a Minister has no power of direction and control should not lead to the conclusion that the system of government would be ineffective. Where Ministers' requests are not complied with by heads of department under s 148 of the Constitution, they may be removed by the Cabinet under Sch 1.10(4).
12. Pratt J stated:
Under s 148 of the Constitution the Prime Minister shall determine the responsibilities of Ministers and except as provided by a constitutional law or Act of Parliament, any department becomes the political responsibility of a Minister. Political responsibility may be defined as a responsibility in the Minister as a member of the government for what the department has done in the past, is doing in the present and must do or should do in the future. As was suggested by Mr. Maino during argument, he has a responsibility to defend the department, if circumstances so require, when under attack in the House. Likewise he has responsibility to do the best he can to obtain funds for his particular department to carry out the operation within the context of the entire financial commitments of the country as determined by Cabinet. There are no doubt other areas of political responsibility which could be called to mind but it is not my intention to be definitive but merely to illustrate the principle which I think underlies the interpretation I am setting forth. What the framers of the Constitution have emphasized however is that in giving to the Minister political responsibility for a department under s 148(2), they have not at the same time granted as a part of that responsibility any power to direct or control the department – be it the head of the department or any other individual within it. The giving of this political responsibility does not of itself confer any power. To put it another way, if there is to be any power of direction or control, it will not come from the area of political responsibility given to the Minister but from some other source altogether.
13. The plaintiffs assert that the interpretation of s 148 of the Constitution in Bouraga remain good law. It is argued that the Minister violated s 148 on 30 March 2020 when he directed the OPIC Board to reverse its decision to appoint Mr Pupita and directed it to reinstate Mr Wungen.
14. The argument is made fairly and properly. I agree that Bouraga’s case remains good law. It has been given further effect in the National Court decisions of Sevua J in Taian v Auali (1999) N1967, Kandakasi J in Aigilo v Morauta [2001] PNGLR 668 and Cannings J in Dr Amos Lano v Dr Maru Garo (2013) N5227 and Musa Century Ltd v Hon Peter O’Neill MP [2013] 2 PNGLR 23).
15. Whenever a Minister gives a direction or order or instruction to a body over which the Minister has political responsibility, caution should be exercised. An important question to ask is: does the Minister have statutory power to give the direction? If there is no statutory power, it may well be that the direction is unlawful. However, before rushing to such a conclusion, other questions should be asked: Does the Minister’s direction actually affect anyone’s legal position? Is the direction self-executing? Is the direction more than a puff of wind?
16. When such questions are posed in the present case, the Minister’s direction of 30 March 2020 can be seen in a clearer light. Though the Minister for Agriculture and Livestock has by virtue of s 148 of the Constitution no power of direction or control over the OPIC Board and there is nothing in the Oil Palm Industry Corporation Act expressly authorising the giving of directions to the Board, the Minister’s direction of 30 March 2020 did not affect anyone’s legal position. It was not self-executing. It was a puff of wind, nothing much more than a reasonable indication to the Board of ministerial displeasure about the acting appointment by the Board of Mr Pupita, which appointment appeared on reasonable grounds, based on legal advice the Minister properly obtained from the State Solicitor, to be unlawful. I find that the Minister’s direction of 30 March 2020 was not unlawful.
I reject both grounds of review (error of law and unreasonableness) challenging the 30 March 2020 letter.
SECOND PRINCIPAL ARGUMENT: THE MINISTER’S DECISIONS OF 23 APRIL 2020 CONTRAVENED THE OIL PALM INDUSTRY CORPORATION ACT
17. The Minister made two decisions on 23 April 2020: (a) to terminate Mr Tatauro’s appointment as Chairman of the Board; and (b) to appoint in his place Mr Stephen Mombi.The plaintiffs argue that both decisions contravened the Oil Palm Industry Corporation Act.
(a) Termination of Mr Tatauro’s appointment as Chairman
18. Section 11 (vacation of office) of the Act deals with resignation and termination of appointment of Board members. It states:
(1) A member, other than an ex officio member, may resign his office by writing signed by him and delivered to the Minister.
(2) If a member, other than an ex officio member—
(a) becomes permanently incapable of performing his duties; or
(b) resigns his office in accordance with Subsection (1); or
(c) is absent, except with the written consent of the Minister, from three consecutive meetings of the Board; or
(d) fails to comply with Section 14; or
(e) becomes bankrupt, or applies to take the benefit of any law for the benefit of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or
(f) is convicted of an offence punishable under a law by a term of imprisonment for one year or longer, or by death, and as a result of the conviction is sentenced to imprisonment or death,
the Minister shall terminate his appointment.
(3) The Minister, may at any time, by written notice, advise a member other than an ex officio member that he intends to terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour.
(4) Within 14 days of the receipt of a notice under Subsection (3), the member may reply in writing to the Minister, who shall consider the reply, and, where appropriate, terminate the appointment.
(5) Where the member referred to in Subsection (3) does not reply in accordance with Subsection (4), his appointment is terminated.
19. I consider that the Minister’s show cause letter to Mr Tatauro of 7 April 2020 fulfilled the requirements of s 11(3). It was a written notice of the Minister’s intention to terminate the appointment of Mr Tatauro on the ground of misbehaviour. The alleged misbehaviour was particularised: Mr Tatauro’s failure to respond to the Minister’s letter of 30 March 2020, including a reasonable request for a meeting to discuss the question of Mr Pupita’s position and Mr Tatauro’s continuing refusal to talk to the Minister or respond to his calls. I think that Mr Tatauro’s attitude and behaviour was unfortunate and irresponsible and that the Minister was adopting a reasonable stance and that Mr Tatauro’s conduct can fairly be described as “misbehaviour”.
20. Mr Tatauro had 14 days under s 11(4) to respond to the show cause letter. He did not respond within that time or at all, so the Minister acted within his powers by terminating the appointment of Mr Tatauro as Chairman, pursuant to s 11(3).
21. According to the terms of the decision, which was gazetted on 24 April 2020, the Minister only terminated Mr Tatauro’s appointment as Chairman and did not terminate his appointment as a Board member. That is an interesting aspect of the Minister’s decision as it is likely that if the Minister had not confined his decision in that way to terminating Mr Tatauro’s appointment as Chairman, Mr Tatauro would have had his appointment as a Board member terminated, by operation of s 11(5). However, the Minister made a clear decision to terminate Mr Tatauro’s appointment as Chairman, and that decision did not extend to terminating his appointment as a member of the Board.
(b) Appointment of Mr Mombi as Acting Chairman of the Board
22. The Chairman of the OPIC Board is appointed by the Minister under s 10 of the Oil Palm Industry Corporation Act, which states:
(1) The Minister shall, by a notice in the National Gazette, and on the recommendation of the members of the Board, appoint one of the members to be the Chairman of the Board and one other member to be the Deputy Chairman of the Board for a period of two years.
(2) The Chairman and Deputy Chairman shall hold office as Chairman and Deputy Chairman until the expiration of their respective appointments or until they cease to be members, whichever first occurs.
23. I uphold the plaintiffs’ argument that in light of the Minister’s termination of the appointment of Mr Tatauro as Chairman, there was a vacancy in the office of Chairman and the Minister could only appoint a new Chairman in compliance with s 11 (Sir Brown Bai v Hon Assik Tommy Tomscoll (2015) N6112). The same conditions applying to appointment of a substantive Chairman apply to appointment of an Acting Chairman. This is the case by virtue of s 53 (acting appointments) of the Interpretation Act, which states:
(1) In this section, "office" includes position.
(2) Where a statutory provision confers power to make an appointment to an office and in respect of that office—
(a) there is a vacancy; or
(b) the holder of the office is suspended; or
(c) the holder of the office is—
(i) on leave of absence; or
(ii) absent from the country; or
(iii) out of speedy and effective communication; or
(iv) otherwise unable to perform, or not readily available to perform the duties of his office,
the power includes power, subject to Subsection (3), to appoint another person to act in the office.
(3) The power provided for by Subsection (2) is exercisable only subject to any conditions to which the exercise of the original power was or would be subject.
(4) An acting appointment may be made in anticipation of any of the circumstances specified in Subsection (2) and, unless it expires or is revoked, such an acting appointment continues to operate from time to time in accordance with its terms.
24. I find that the Minister’s decision to appoint Mr Mombi as Acting Chairman failed to comply with two conditions to which the appointment was subject due to the combined effect of s 10(1) of the Oil Palm Industry Corporation Act and ss 52(2)(a) and (3) of the Interpretation Act: (i) Mr Mombi was not a member of the Board; and (ii) appointment was made without a recommendation from the Board.
25. It follows that the appointment of Mr Mombi as Acting Chairman was unlawful.
DETERMINATION OF GROUNDS OF REVIEW
26. I have dismissed the plaintiffs’ first principal argument, and upheld the second part of their second principal argument. The formal determination of the grounds of review set out at paragraph 22 of the further amended originating statement under Order 16, Rule 3(2)(a) of the National Court Rules, filed 29 April 2020, is shown in the following table.
DETERMINATION OF GROUNDS OF REVIEW
| Ground of review | Argument | Determination |
| (a) | Error of law re decision of 30 March 2020 | Dismissed. |
| (b) | Unreasonableness re decision of 30 March 2020 | Dismissed. |
| (c) | Error of law re gazetted decisions of 24 April 2020 | (i ) Partially dismissed re termination of Mr Tatauro’s appointment as Chairman; (ii) Upheld re Mr Mombi’s appointment as Acting Chairman. |
| (d) | Unreasonableness re gazetted decisions of 24 April 2020 | Dismissed. |
REMEDIES
27. The remedies sought by the plaintiff are set out in the notice of motion filed on 5 May 2020 under Order 16, Rule 5 of the National Court Rules, subsequent to the granting of leave for judicial review:
28. The question of whether remedies sought by the plaintiffs should be granted is a discretionary matter (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).
29. I will make declarations and orders in light of my determination of the grounds of review. The declaration sought in paragraph 1 of the notice of motion will not be granted. The order sought in paragraph 2 of the notice of motion will be partially granted. I will also make some orders not expressly sought by the plaintiffs. I do so under s 155(4) of the Constitution as I consider that such orders are necessary to do justice in the circumstances of this case. Neither side has entirely succeeded so the parties will bear their own costs.
ORDER
Judgment accordingly.
_________________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Plaintiffs
Waisi Lawyers: Lawyers for the First Defendant
Solicitor-General: Lawyer for the Second Defendant
Kawat Lawyers: Lawyers for the Third Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/203.html