N8552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 22 OF 2020

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUNT TO ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN
PATRICK REU
Plaintiff

AND:
HON. JOHN SIMON, MP
Minister for Agriculture & Livestock
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Numapo J
2020:  27th August & 02nd October

PRACTICE AND PROCEDURE –Interlocutory application - Application seeking leave for judicial review (O16 r 3 NCR) – Review of notice of intention to terminate – Notice to show cause is not deemed a decision therefore, not reviewable – Status quo not affected by the issuance of the notice –Applicant has no standing - Application is premature - Leave refused.

Cases Cited:
Papua New Guinea Cases

Leto Darius v Commissioner of Police [2001] 147, N2046
Kombati v Singin [2004] PGNC 85; N2691
Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001 
Ezra Kwako v Thomas Nen - OS No. 668 of 2016 (CC2) 
Dawidi v Jacob [2001] PGNC 130; N2083 
Steamships Trading Company Ltd v Minister for Lands and PhysicalPlanning [2000] PGNC 11; N1959
Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886 
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303. 
NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70 
Geno v The State [1993] PNGLR 22. 
Pora v Leadership Tribunal [1997] PNGLR 1
David v Zurenuoc [2007] N3146
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
Wereh v Cajetan [202] N8418
Overseas Cases
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
Counsel

Mr. N. Tame, for the Plaintiff
Mr. H. White & Ms Balio, (Solicitor- General’s Office) for the First and Second Defendants.

RULING

02nd October, 2020

1.      NUMAPO J: This is a ruling on an application for leave for judicial review pursuant to Order 16 Rule 1 & 3 (O 16 r 1 & 3) of the National Court Rules (Rules). Defendants were represented by counsel after the State has been served with the originating summons, notice of motion pursuant O 16 r 3, sub-rule (3), statement in support pursuant to O 16 r 3 (2) (a) and the verifying affidavit in accordance with r 3 (2) (b). Although, leave application is usually heard ex parte, in the present case, the defendants were present in court and therefore, are entitled to be heard on application.

A.	BACKGROUND
2.      Plaintiff/Applicant seeks leave to review the decision of the first defendant contained in a letter dated 11 June 2020 in which he was asked to show- cause why he should not be terminated for failing to perform his duty as a board member and deputy chairman of the Oil Palm Industry Corporation Board (“OPIC Board”). 
3.      The letter titled: “Notice of Intention to Terminate your Membership to the Board of Oil Palm Industry Corporation” was sent to the plaintiff by the first defendant purportedly exercising his powers under section 11(3) of the Oil Palm Industry Corporation Act 1992(“OPIC Act”) in his capacity as Minister responsible for Agriculture & Livestock. 
4.      The first defendant/respondent in his notice to the plaintiff alleged five (5) grounds of insubordination and inefficiency as follows:
(i)	Failing to attend an urgent Board meeting scheduled for 4 May 2020 through a notice circulated by the Acting Chairman on 30 April 2020;

(ii)	Failing to respond to the circular resolution circulated to you and other members of the OPIC Board on 5 May 2020 to administratively resolve the issue concerning the position of General Secretary of OPIC and to end the court proceedings relating to the issue that is causing great inconveniences and is very costly to OPIC and all parties involved;

(iii)	Failing to attend a Board meeting that was called by the Acting Chairman on 12 May 2020 at 1:30pm at the OPIC Board Room to resolve the issue relating to the position of General Secretary of OPIC despite receiving advance notice of the same;

(iv)	Failing to comply with a circular issued by the Acting Chairman to attend an urgent Board meeting scheduled for 5 June 2020; and 

(v)	Calling and holding unsanctioned Board meeting without the knowledge and endorsement of the Acting Chairman and passing of resolution to extend the acting appointment of Mr Kepson Pupita for a further three (3) months.
5.     The plaintiff responded to the first defendant in his letter of 22 June 2020 pointing out that he (first defendant) had no power of control and direction over OPIC, its board and employees. Plaintiff did not show cause as directed by the first defendant but instead decided to challenge the Minister’s power in issuing such directive.
6.     The plaintiff now seeks to have the first defendant’s decision judicially reviewed along with similar decisions made on his fellow directors, Oka Kamale and Arnold Koko who were also been issued the same notices of intention to terminate their directorship positions on the OPIC Board by the first defendant. Both have also filed similar but separate proceedings challenging the first defendant’s decisions. The facts and circumstances are somewhat similar raising the same issues and seeking substantially the same relief. For sake of convenience, I intend to consolidate the three proceedings (OS (JR) 22/2020; 23/2020 & 24 of 2020) and deal with them together.  The ruling on this application will equally apply to the two other plaintiffs as well.
B.	ISSUE
7.     The issue is; “Whether or not a Notice of Intention to Terminate tantamount to a decision that is capable of a judicial review”.

C.	LAWON GRANTING OF LEAVE
8.     The principles of law governing the grant of leave for judicial review is well settled in this jurisdiction. Applicant seeking leave for judicial review pursuant to O16, r 3 of the NCR must satisfy the Court that:
(i)	he has the locus standi in that he has sufficient interest in the matter to which the application relates;
(ii)	the decision sought to be reviewed is that of a public body or authority;
(iii)	there is an arguable case on its merits;
(iv)	all administrative or other remedies have been fully exhausted; and
(v)	there has been no undue delay in bringing the application.

9.     The above five (5) grounds is the checklist of the minimum requirements the court must be satisfied with before it exercises its discretion whether or not to grant leave for a judicial review. Kandakasi J (as he then was) summarized well these requirements in Leto Darius v Commissioner of Police [2001] 147. See also: N2046; Kombati v Singin [2004] PGNC 85; N2691; and Louis Medaing & Ors v Lima Mulung & Ors [2010] N4001. 
10.     The defendants did not raise any of these minimum requirements on leave to object the application except to state that the notice of intention to terminate is not a termination notice per se to terminate the plaintiffs but rather a letter requesting the plaintiffs to show-cause as to why they should not be terminated. There is no decision made to date to terminate the plaintiffs and they all continue to remain and serve as members of the OPIC Board. For this reason the defendants submitted that the application seeking leave is premature and should be refused. Defendants further submitted that the first defendant is only exercising his powers under section 11 (3) of the OPIC Act as Minister responsible for Agriculture and Livestock to issue these notices.

D.	GROUNDS SEEKING LEAVE
11.     Counsels have not raised whole of the five requirements to seek leave for judicial review and that is naturally expected however, I considered it necessary nonetheless to canvass all the requirements and make my findings on each of them for purposes of clarity.
1.	Sufficient Interest and Locus Standi
12.     The plaintiff alleges that the letter dated 11 June 2020 containing the notice of intention to terminate him is a direct threat to terminate him as a board member and deputy chairman of OPIC Board respectively. He is directly affected by that notice of termination hence, he has standing to bring this proceeding. 
13.     The question relating to sufficient interest and locus standi varies from case to case and is often answered by examining the nature of the decision and the context in which it was made.  In Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959, his Honour Sheehan J held that; “…..it is essentially a mixed question of fact and law, a matter of fact and the degree of relationship between the plaintiff and the subject matter of his or her complaint….”See also: See Dawidi v Jacob [2001] PGNC 130; N2083.
14.     The requirements of sufficient interest is broad in its application and not restrictive. So long as the Applicant is able to show that he has some relationship or connection with the subject matter and that his relationship or interest in the subject matter is so affected by a decision of a public body that in itself, is sufficient ground to seek review. In Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that:
 “On application for leave the Court must be satisfied that the applicant has sufficient interest in the subject matter of the application…Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include community, environmental, cultural interest and areas of special expertise.”
15.     In the present case, the plaintiff received a notice of intention to terminate him from the OPIC Board and he was given 14 days to respond and show cause as to why he should not be terminated for insubordination, amongst others. The termination has not yet been effected. The status quo remains unchanged and its business as usual for the plaintiff. He continues to remain on the OPIC Board as a board member and deputy chairman respectively and continues to perform his functions, roles and responsibilities in those capacities without change. The same applies to the two other plaintiffs/applicants as well. For this reason, I cannot see how the plaintiff’s interest could have been affected hence, sufficient interest and locus standi to seek review. 

2.	Decisions sought to be reviewed are of the Public Body
16.      One of the requirements to be granted leave is that the Applicant must satisfy the court that the decision sought to be reviewed is that of a public body. There are two aspects to this, in my respectful view; firstly, it relates to the decision itself in that whether or not it has the usual characteristics of a “decision” per se that significantly alters or affects the status quo and therefore, capable of being reviewed. And secondly, that the decision is that of a public body. 
17.     Firstly, a decision is defined as a conclusion or resolution reached after consideration. One of its characteristics is that it is final and has immediate effect on the subject matter. In the present case, there is no decision on termination that is final and with a full effect to be reviewed. A notice of intention to terminate is not a termination notice that is capable of altering or affecting the status quo. It does not have a full effect of a decision. I am of the view that the notice of intention to terminate contained in the letter of 11 June 2018 to the plaintiff is only a notice directing the plaintiff to show-cause, nothing more, nothing less. It does not have the same meaning and effect of a termination notice and therefore, not a decision that is capable of a judicial review.
18.      With respect to the second aspect regarding public body, the first defendant no doubt, holds a public office as Minister responsible for Agriculture and Livestock and a member of the National Executive Council (Cabinet), a public authority and in the performance of his public function as a Minister of the State issued the notice of intention to terminate the plaintiff.  However, as alluded to above, the notice itself falls far short of meeting the requirements of a decision of a public body given that it was merely a notice requiring a show-cause. A decision of a public body is one that is made in accordance with the established process and procedures under the law and in full consultation with those required to be consulted before a decision is made that has a full effect of law and is final. In the present case no such decision has yet been made to terminate the plaintiff under the provisions of the OPIC Act. The principles of law on judicial review is clear in that for a decision to be reviewed it must have all the characteristics of a decision of the public body that is deemed final with the full effect of law that affects the applicant and therefore, is capable of been reviewed. See: Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303.
19.     The argument advanced by the defendants that the notice to show-cause does not have the same effect of a termination notice sounds convincing to me. Ms Balio for the State outlined a three-step internal statutory process in relation to termination of board members which has not yet been completed and submitted that the application is an abuse of Court’s process and should be refused. 
20.     The three –step process under sub-sections (3) and (4) of section 11 of the OPIC Act on the termination of board members is as follows:
(i)	Minister gives notice to a member of the Board (other than an ex office member) of his intention to terminate his or her appointment;

(ii)	The board member, on receipt of the notice from the Minister provides a response in writing; and

(iii)	The minister then, upon consideration of the reply from the member, makes a final decision on whether to terminate or not to terminate.  

(iv)	Where the member to whom the notice is served failed to reply then his appointment is terminated.

21.     The substantive decision to terminate will only occur after the above processes have been completed. This includes the plaintiff’s right to reply and be heard on the allegations. That process is still on-going and yet to be completed and as such there is no decision to be reviewed. Without a decision to review, there is no utility in the application for leave as it does not serve any useful purpose.
22.     I agree with the defendants that the application for leave to review is prematurely before the court when the internal statutory processes on termination of board members have not been fully exhausted after which a decision will be made. Leave cannot be granted without exhausting the internal statutory process. Judicial review concerns itself with the process and not the decision itself and in the present case the internal process on termination of board members under section 11 of the OPIC Act is still pending and not yet completed therefore, there is no process to be reviewed. See: Wereh v Cajetan [2020] N8418.  
23.     The plaintiff’s application, in my view, is akin to a pre-emptive strike. Asking the court leave to challenge a future decision that might not be in his favour. The application, as I see it, is based on speculations, innuendos and assumptions that are unfounded and without basis. I find therefore, that there is no decision of a public authority to be reviewed.

3.	Arguable Case
24.     With respect to arguable case the onus is on the Applicant to demonstrate to the Court that he has an arguable case on merits to be given leave. The Court must be satisfied that the Applicant has an arguable case in that there are serious, substantive and fundamental issues of law to be tried. These must be shown in the grounds for review contained in the statement in support that must be properly and sufficiently pleaded to raise arguable issues of law. See: Asakusa v Kumbakor, Minister for Housing (supra). See also: NTN Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70; and Geno v The State [1993] PNGLR 22. See also: Pora v Leadership Tribunal [1997] PNGLR 1. 
25.     The leading authority on arguable case is found in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; Lord Diplock sets out the principles on arguable case and said at p.644 that:
“If on a quick perusal of the material then available, the Court (at the leave application stage) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give leave to apply for the relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all evidence is in and the matter has been fully argued at the hearing of the application.”
26.     With respect to arguable case, the plaintiff alleged errors of law, ultra vires and unconstitutional decision and cited section 148 of the Constitution. 

27.        Section 148 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 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 the section.

(3)	Subsection (2) does not confer on a Minister any power of direction or control.’
28.     Mr Tame for the plaintiff submitted that although, section 148 gives the Minister political responsibilities over departments, sections and branches it does not give the Minister any power of direction or control over them. Sub-section (2) of section 148 makes this explicitly clear. Counsel cited the Supreme Court Reference No.1 of 1982; Re: Philip Bouraga [1982] PNGLR 178, which was later adopted and applied in Aigilo v Morauta, Prime Minister (No 1) (2001) N2102.  
29.    That question has already been settled in the two Supreme Court decisions referred to above hence, I do not wish to restate what has already been stated except to say that I simply adopt and apply the position taken in these two cases in the present case. It is clear that the Minister does not have any power of control or direction over the board in its day to day operations and activities. But the Minister does have the powers under section 11 (3) of the OPIC Act to issue the notice which he did. The final decision to terminate however, has not yet been made. Again, I reiterate that without a decision the plaintiff does not have an arguable case to seek leave for review.
4.	Whether or not Administrative or other Remedies have been fully Exhausted
30.     One of the fundamental rules in judicial review application is that the applicant for judicial review must exhaust all remedies available to him. See: Sapu v Commissioner of Police [2003] PGNC 80; N2426 and Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417.
31.    The OPIC Act, being the governing legislation, does not specifically provide for any administrative avenues for the plaintiffs to seek remedy in situations like this. The Act is silent. 
32.     I start on the premise that there is no decision to be reviewed based on what I have said so far. Assuming however, that the letter containing the notice of intention to terminate is indeed a decision capable of being reviewed and if so, it kicks-in the administrative process set out under section 11 of the OPIC Act. It gives the plaintiff the right to be heard on the allegations raised against him. He has 14 days to respond and either admit or deny the allegations. On receiving the response the Minister will then decide whether or not to terminate him. This process accorded the plaintiff the right to be heard before a final decision is made and must be fully exhausted. If the plaintiff decides not to be heard then he forfeits his rights to challenge any decisions that might ultimately come out of this process. I restate again that the judicial review concerns itself with the process and not the decision.
33.      Although, the notice is not a decision on termination per se for the reasons I stated above, it does not prevent the plaintiff from exhausting all administrative avenues available to him under the OPIC Act, one of which is to show-cause as required in the hope that after been heard the decision would be in his favour. If he has not exhausted the process he cannot seek remedy for his failure. He who comes to equity must come with clean hands. 
34.    There is no evidence suggesting that the plaintiff has responded and showed cause as directed. It’s a missed opportunity. The only response from the plaintiff was the letter in which he questions the power of the first defendant to issue such notice. It would be to his interest if the plaintiff complied with the three-step process under the OPIC Act to satisfy the requirements of been heard and be seen to have exhausted these administrative processes available to him regarding vacation of office. The final decision could go either way if he is heard through the show-cause process. Plaintiff has not exhausted his right to be heard in order to be given a hearing. This does not augur well for him. 

5.	Delay
35.     Order 16 r 4 (2) prescribed four (4) months as the proximate period within which an application for judicial review must be filed. In the present case, the notice of intention to terminate the plaintiff was contained in a letter dated 11 June 2020. The application for leave was filed on the 6 July 2020. There is no delay. 

E.	DECISION
36.     All in all, I find that the notice of intention to terminate is not a notice of termination per se that is capable of a judicial review.   From the materials placed before me, I am not satisfied that the plaintiff has made out a prima facie case to be granted leave pursuant to O 16 r 3.
37.     Accordingly, leave is refused.
38.     Costs be in the cause.

Orders accordingly
_______________________________________________________________
Nicholas TameLawyers:	Lawyer for the Applicant
Solicitor General:		Lawyer for the Second & Third Defendants