N10830

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 177 OF 2023 (IECMS)

DR OSBORNE LIKO, Secretary for the National Department of Health
First Plaintiff

AND
THE NATIONAL HEALTH BOARD
Second Plaintiff

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Plaintiff

V

DR LOSAVATI WILBUR DAUGUNU AISI, as the former Chief Executive Officer of the Laloki Psychiatric Hospital
First Defendant

AND
THE DIRECTORATE FOR SOCIAL CHANGE AND MENTAL HEALTH SERVICES
Second Defendant

AND
CARDINAL JOHN RIBAT, ARCHBISHOP OF PORT MORESBY, as Chairman of the Board of Directorate for Social Change & Mental Health Services
Third Defendant

AND
THE BOARD OF THE DIRECTORATE FOR SOCIAL CHANGE & MENTAL HEALTH SERVICES
Fourth Defendant

Waigani: Anis J
2023: 2nd and 9th October
2024: 28th May

DECLARATORY RELIEF – declaratory relief concerning the status and operation of the Laloki Psychiatric Hospital – whether there is a primary right(s) that is in controversy – whether the allegations raised raise any substantial issue that requires intervention by the Court - whether Laloki Psychiatric Hospital is a psychiatic hospital or a specialist psychiatric hospital that is within the purview of Public Health Act 1973 Chapter No. 226 and Mental Health Act 2015 – considerations - ruling

Cases Cited:

Papua New Guinean Cases
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425
Placer Dome (PNG) Ltd v Yako (2011) N4691
Independent State of Papua New Guinea v Central Provincial Government (2009) SC977
Dr. Onne Rageau v Kina Finance Ltd (2015) N6175
National Fisheries Authority v New Britain Resources Development Ltd (2009) N4068
Ere v National Housing Corporation (2016) N6515
Pius Pundi v Chris Rupen (2015) SC1430

Overseas Cases:
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Counsel:
M Murray with Counsel Assisting M. Kias, for First & Second Plaintiffs
K Kipongi, for the Third Plaintiff
J Siki, for the Defendants

JUDGMENT

28th May 2024

1.	ANIS J:  This matter was tried on 2 October 2023.  I reserved my decision thereafter to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The parties to the proceedings are state entities or persons who are employed by state entities, that is, apart from the State itself which is named as the third plaintiff.  The plaintiffs, or should I say the first and the second plaintiffs (2 plaintiffs), are aggrieved by the actions or inactions of the defendants in their operations of Laloki Psychiatric Hospital (LPH).  They raise challenges on or concerning the status, operation, and control of LPH as regarded under various legislations, especially the Public Health Act 1973 (PHA 1973), Public Hospitals Act 1994 (P Hosp. A 1994), the Mental Health Act 2015 (MHA 2015), and the Public Health (Amendment) Act 2015 (PH Amend Act 2015).

4.	On 3 July 2023, they filed an originating summons (OS) seeking various relief.  The main relief, apart from seeking interim and permanent injunctions, include the following:

“5.	A declaration that the Laloki Psychiatric Hospital is not declared a public hospital under the Public Hospitals Act 1994;
6.	A declaration that the Laloki Psychiatric Hospital is not established as a public psychiatric hospital under the Mental Health Act 2015;
7.	A declaration that the Laloki Psychiatric Hospital is a Specialist Psychiatric Hospital under the National Health Plan 2021-2030 and the National Health Service Standards 2021-2030 and is under the oversight of the National Health Board and the National Department of Health;
8.	A declaration that the Laloki Psychiatric Hospital is a separate health institution that is independent of the Directorate for Social Change and Mental Health Services.
9.	A declaration that the Directorate for Social Change and Mental Health Services and its Board have no legal mandate or authority over operational, financial, recruitment, disciplinary action, and other aspects concerning the Laloki Psychiatric Hospital;
……”

EVIDENCE

5.	The parties tendered their evidence, which were labeled with exhibit numbers.

CONTROVERSY

6.	The preliminary query I have which I had posed to the parties at the hearing is this.  What is the main controversy here, or is there a real controversy which should require the Court to consider and determine?

7.	I note the parties’ submission on this.

8.	The case law on what appropriate criteria should be applied by courts to determine this issue is settled in this jurisdiction.  See cases:  Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425, Placer Dome (PNG) Ltd v Yako (2011) N4691, Independent State of Papua New Guinea v Central Provincial Government (2009) SC977, Dr. Onne Rageau v Kina Finance Ltd (2015) N6175 National Fisheries Authority v New Britain Resources Development Ltd (2009) N406 and Ere v National Housing Corporation (2016) N6515.  

9.	Justice Hartshorn in Ere v National Housing Corporation (2016) N6515 stated and summarised the criteria at paras 11, 12, 13 and 14, which I adopt herein, as follows:

11.  As the plaintiffs seek declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made. These factors are set out in The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438.  This case has been referred to in various cases including Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068.

12.  The factors are:

a)	There must exist a controversy between the parties;

b)	The proceedings must involve a right;

c)	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;

d)	The controversy must be subject to the court’s jurisdiction;

e)	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim;

f)	The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

13.  In the High Court of Australia decision, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, Brennan J. referred to the Russian Commercial case (supra) and said that notwithstanding the wide discretion that exists in deciding whether a declaration should be made, it was not appropriate to grant a declaration if there was no real controversy to be determined.

14.  Also, recently, the Supreme Court in considering the issue of standing to seek declaratory orders in Pius Pundi v. Chris Rupen (2015) SC1430 held amongst others that:

“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical.”

10.	In Pius Pundi v Chris Rupen (2015) SC1430, the Supreme Court similarly held:

1.	A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical.

IS THERE A REAL CONTROVERSY?

11.	I ask myself this.  Is there are real controversy?

12.	The submissions of the 2 plaintiffs came down to the following matters which they wish this Court to determine:

•	Definition of s 3 of the MHA 2015 excludes LPH as covered or being part of it;
•	Whether LPH is a specialized hospital which is not covered under the MHA 2015;
•	Who will the board or the directorate under the MHA 2015 report to?

13.	The 2 plaintiffs seek the Court’s interpretation of the status, administration, and control of LPH, that is, given or in light of the passing and coming into operation of the MHA 2015.  It is not disputed that Part VIII of the PHA 1973 was repealed by the PH Amend Act 2015 where provisions therein were revised and incorporated into the MHA 2015.  These provisions concern, amongst others, the establishment and operations of psychiatric hospitals and mental clinics in the country.  With that, there appears to be a real concern or dilemma, that is, on the transitioning of the powers and functions of psychiatric hospitals under the PHA 1973 with the MHA 2015, and of where LPH may fit in into these legislations, or whether LPH is separate and operates independently from them.

14.	Premised on these, I find that there are real controversies raised that are properly before the Court for consideration.

3rd PLAINTIFF – JURISDICTIONAL ISSUES

15.	I note that the State has raised preliminary or jurisdictional issues against the first and second plaintiffs.  The objections cover (i) alleged want of brief out by the Attorney General under s.7(i) of the Attorney Generals Act 1989, for Murray and Associates to act for the 3rd Plaintiff, and (ii), alleged want of pleading of jurisdictions for each pleaded declaratory relief in the OS.

16.	I find the issues belatedly raised.  Further, I also do not consider them as issues that are properly before the Court for consideration.  The situation may also be described as unusual or awkward, that is, for a plaintiff to turn against other plaintiffs and to support the defendants.  The proper process should have been for the 3rd plaintiff to give notice and address the matter beforehand or before the trial.  By that, the 3rd plaintiff could have applied first to be removed as a plaintiff and be joined as a defendant.  These have not been attended to; thus, I dismiss all the preliminary issues raised by the 3rd plaintiff.

17.	Regardless, I make this remark.  The issues appear baseless and had I considered them, it is possible that I would have ruled unfavorably against the 3rd plaintiff.

LPH

18.	At the hearing, counsel for the plaintiff brought to the Court’s attention the Public Health (Amendment) Act 2015 (PH Amend Act 2015).  Section 2 of the Act repealed Part VIII of the PHA 1973.  Part VIII reads MENTAL DISORDERS AND TREATMENT.  It provided, amongst others, for the establishment of mental hospitals, their managements, and operations.  LPH was established and appears to have operated under the PART VIII prior to 2015.  The repealed provisions consist of the whole of Part VIII of the PHA 1973, and they commence at s.81 and end at s.130.  Division 2, which was repealed, is relevant for this purpose.  It reads in part:

Division 2.

Administration, etc.

82. ESTABLISHMENT OF MENTAL HOSPITALS, ETC.

The Minister may, by notice in the National Gazette, establish–

(a)	mental hospitals; and
(b)	mental colonies; and
(c)	admission centres,

at such places as he thinks proper, for the admission and detention and treatment of persons of unsound mind.

83. MANAGEMENT OF MENTAL HOSPITALS AND MENTAL COLONIES.

The management of each mental hospital and mental colony and the care and custody of its patients shall be regulated as prescribed.

19.	Section 1 under Division 1 defines a mental hospital as follows:

“mental hospital” means a mental hospital established under Section 82(a);

20.	The equivalent section under the MHA 2015 is s.3 which states:

PART II - ADMINISTRATION.

Division 1. - Establishment of Mental Hospitals and Care Centres.

3.  ESTABLISHMENT OF MENTAL HOSPITALS AND CARE CENTRES.

(1)  The Minister may, by notice in the National Gazette, establish –

(a)  public or private psychiatric hospitals; or
(b)  mental health care centres,

at such place as he thinks fit, for the detention, treatment and rehabilitation of mentally disordered patients or consumers.

(2)  In respect to private mental health care centres, the Minister, on the advice of the Director, may make regulations in respect of the conduct of its administration.

21.	I also refer to the P Hosp. A 1994.  The relevant provisions for this purpose are the Preamble and ss. 3 and 4, and they read:

……
Being an Act to provide for the establishment of public hospitals and to define their powers and functions, and for related purposes.
……

3.  INTERPRETATION.
In this Act, unless the contrary intention appears–
……
“public hospital” means a hospital declared to be a public hospital under Section 4;
“this Act” includes the Regulations.
……

4.  ESTABLISHMENT, ETC., OF PUBLIC HOSPITALS.

(1)  The Minister may establish and maintain a hospital in any place in the country, and may declare a hospital to be a public hospital for the purposes of this Act.

(2)  A public hospital established under Subsection (1) shall be administered and maintained in accordance with this Act.

(3)  A public hospital established under Subsection (1) shall have a name determined by the Minister with the words “General Hospital” appearing after the name of that public hospital.

22.	With these, I turn to the evidence and submissions of the parties.  I note that the 2 plaintiffs and the defendants make the same submissions on this matter.  In other words, there is no contention. 

23.	Thus, I find as a matter of law that LPH is not a public hospital.  I also find that LPH is also not a general hospital.  Regardless and in summary, I find no controversy on this issue.

LPH A SPECIALISED HOSPITAL?

24.	The next main issue is whether LPH is a specialized hospital, and also, whether it was established or is an established public psychiatric hospital, under the PHA 1973 or MHA 2015. 

25.	The parties are at loggerheads on this issue.  The 2 plaintiffs assert that LPH is a specialized hospital that does not fall under the control of the MHA 2015 whilst the defendants and the 3rd plaintiffs argue otherwise.

26.	I note the submissions and arguments.

27.	I make these observations.  First, I note that LPH has been in existence prior to independence and has continued to remain as the country’s renowned psychiatric hospital.  It possesses the qualities of a specialized psychiatric hospital.  I note that no evidence has been adduced by the parties to show whether there had been any gazettal notice issued under the repealed provisions or s.82 of the PHA 1973, in relation to its establishment.  The want of evidence, in my view, however, does not necessarily mean that no such gazettal notice was issued.  In fact, to assume otherwise may be regarded as absurd or not true, particularly given its long existence as well as the existence of standing rules and regulations that have been put in place to govern its operations over the years.  I also note that the wording of s.82 and the use of the term “may”, indicates that the responsible Minister had an option then to actually make a declaration by way of a gazettal notice, or he or she may choose otherwise, meaning that it was not mandatory for the Minister to always make such declarations for every mental or psychiatric hospital that is set up for that purpose under the PHA 1973.

28.	However, and for this purpose, I will take judicial notice that such a gazettal notice was issued or that it may not have been issued, that is, for the establishment of LPH under the repealed provisions, namely, Part VIII of the PHA 1973.  Either way, I find that LPH was already established under the repealed Part VIII of the PHA 1973.

29.	With that determination, I note that LPH has been operating and regulated by the 2 plaintiffs under the provisions of the PHA 1973, its regulations and rules including the Public Health (Mental Disorders) Regulation 1962.  In fact, there is no real dispute or controversy by the parties of this control and operation of LPH, that is, up until the time of passing and operation of the MHA 2015 which came into effect on 9 February 2016.  The 2 plaintiffs were the relevant controlling bodies or persons.  The second plaintiff is created under s.8 of the National Health Administration Act 1997 (NHAA 1997).

30.	Having considered the relevant provisions of the MHA 2015, I make the following observations.  I first observe that the Act did not completely repeal the PHA 1973 and the NHAA 1997.  Both legislations play a vital role in the public health sector of the government or the country.  My second observation concerns s.3 of the MHA 2015.  Its equivalent was s. 82(a) of the PHA 1973.  I uphold submissions made by the defendants that both the MHA 2015 and the PH Amend Act 2015 were passed together and have commenced operations on 9 February 2016.  It is therefore obvious to foresee the intention of Parliament, which was to replace, amongst others, s.82(a) with s.3.  My third observation is this.  The term “The Minister may, by notice in the National Gazette, establish…” is identically used in the repealed provision, that is, s.82 as well as under s.3 of the MHA 2015.  I will therefore give the same interpretation or observation as I have given above earlier, which is that the Minister is not necessarily obliged by these provisions, to issue gazettal notices for every public or private psychiatric hospitals or mental health centres that are established.  

31.	My fourth observation is this.  The 2 plaintiffs argue that the term “establish”, that is used under s.3 refers to newly created psychiatric hospitals or centres only and that it does not refer to or include LPH.  I note the submissions and arguments of both parties.  I find that the plaintiffs are being too technical with the use of this term.  If considered wholly, including the intention of Parliament, in particular, given the repealing and replacement of Part VIII of the PHA 1973 and with the creation of the MHA 2015, it would make a whole lot of sense to follow the defendants’ argument on the matter.  That is, the fact that the MHA 2015 is intended to replace or give better governance to the present legislations and regulations that govern the public and private mental or psychiatric hospitals and clinics or mental health generally in the country.  There appears to be some overlapping administrative issues or functions with the current MHA 2015 and related legislations, and the parties have highlighted some which I need not go deep into for this purpose except to state that.  But the process appears to be slow but gradual as submitted to by the defendants, which is also shown in the evidence of the parties.

32.	So, the terms “may” and “establish” used under the repealed s.82 of the PHA 1973 which have been adopted and applied under s.3 of the MHA 2015, do not mean that the MHA 2015 does not apply to the operations and control of LPH.  LPH is the only existing specialized or proper mental or psychiatric hospital in the country.  Whilst the Minister may declare new psychiatric hospitals or clinics in the future, as stated, such declarations in the National Gazette is not mandatory.  It is also, in my view, misconceived to regard the term “establish” to say that it means that it applies to newly created psychiatric hospitals or centres only.  The term may refer to an existing establishment that may be new or that may already exist before the coming into operation of the MHA 2015.  And again, such declarations are not mandatory thus should give a more liberal meaning to the term “establish” under s.3.  

33.	Therefore, and in my view, the MHA 2015 does not only cover or apply to operations of the newly established or declared psychiatric hospitals or mental health care centres.  Rather, it includes or covers existing psychiatric hospitals and mental health care centres.  LPH is no exception.

SUMMARY/RELIEF

34.	I restate the main relief herein:

“5.	A declaration that the Laloki Psychiatric Hospital is not declared a public hospital under the Public Hospitals Act 1994;
6.	A declaration that the Laloki Psychiatric Hospital is not established as a public psychiatric hospital under the Mental Health Act 2015;
7.	A declaration that the Laloki Psychiatric Hospital is a Specialist Psychiatric Hospital under the National Health Plan 2021-2030 and the National Health Service Standards 2021-2030 and is under the oversight of the National Health Board and the National Department of Health;
8.	A declaration that the Laloki Psychiatric Hospital is a separate health institution that is independent of the Directorate for Social Change and Mental Health Services.
9.	A declaration that the Directorate for Social Change and Mental Health Services and its Board have no legal mandate or authority over operational, financial, recruitment, disciplinary action, and other aspects concerning the Laloki Psychiatric Hospital;
……”

35.	There is no controversy in regard to relief 5 so I decline to make that declaration.  With that and for my stated reasons, I refuse the balance of the main relief, that is, relief 6, 7, 8, and 9 in the OS.  The MHA 2015 is an express legislation that is intended to cater for psychiatric hospitals and mental health clinics.  The intention of parliament is clear given the passing of the said Act together with the PH Amend Act 2015.  The whole of PART VIII. – MENTAL DISORDERS AND TREATMENT under the PHA 1973 has been repealed and immediately modified and inserted into the MHA 2015.  Prior to the coming into effect of the MHA 2015, LPH was run under the purview of the PHA 1973.  I reject the claim by the plaintiffs that LPH is some kind of specialized hospital that is not attached to the any current legislations but by a health plan as the National Health Plan 2021-2030 or the National Health Service Standards 2021-2030.  Whilst LPH may be described as a specialized hospital, it is a psychiatric or mental hospital as defined by the PHA 1973 and now by the MHA 2015.  

36.	This claim will therefore fail.

COST

37.	I will order cost of the proceeding to follow the event, that is, to be paid by the 2 plaintiffs to the defendants, on a party/party basis to be taxed if not agreed.  The 3rd plaintiff has supported the defendants, so I make no order for cost against it.

ORDERS OF THE COURT

38.	I make the following orders:

1.	The proceeding and declaratory relief sought are refused.

2.	Consequently, all interim injunctions that are in place are lifted forthwith.

3.	The first and second plaintiffs shall pay the defendants’ costs of the proceedings on a party/party basis to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date and time of entry by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Murray & Associates:   Lawyers for the First & Second Plaintiff
Solicitor General:    Lawyer for the Third Plaintiff
Jerry Siki:    Lawyers for the Defendants