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Herowa v Eoe [2024] PGNC 429; N11081 (11 November 2024)

N11081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 57 OF 2023

BETWEEN:
BEN ANUBI HEROWA as representative of Tapero/Tolo/Pari Clan to JUHA LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Plaintiff

AND:
HON SOROI EOE MP as MINISTER FOR INTER-GOVERNMENT RELATIONS
First Defendant

AND:
DEPARTMENT OF PROVINCIAL & LOCAL-LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
PETER ANDAMA, HAPIALU TAMI, ALEX ARABIA, MARTIN KOPILYO, CHARLIE HOGGA, PAULA EPITA, THOMAS TAYANDA, JAMES ALUAN and TONGOMA KIKAKO as Purported members of JUHA- LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHROITY
Fourth Defendant

Waigani: Purdon-Sully J
2024: 6^th, 20^th June and 11^th November

JUDICIAL REVIEW - Review of Ministerial powers on appointment – Appointment to a Management Committee of a Special Purposes Authority – Procedure for appointment and revocation – Minister conceded appointment irregular - Review granted - Ultra Vires ground of review upheld – Decision null and void –– Relief considered and granted – Costs - Local-level Governments Administration Act 1997 - Section 45

PRACTICE & PROCEDURE – Application to dismiss proceedings – Competency of Proceedings – Whether pleadings defective – Delay – Standing and Authority – Preliminary objections to competency dismissed – National Court Rules – Order 16

Cases Cited:

Papua New Guinean Cases
John Joe Nemambo v Peter Peipul [1994] SC475
Koitachi Ltd v Walter Schnaubelt [2007] SC870
Magiri v Papua New Guinea First Authority [2009] PGNC 64; N3670
Nalu v Commissioner of Police [1999] PGNC 1010; N192
David Coyle v Loani Henao [2000] PNGLR 17
Badastal Ltd v Temu [2011] PGSC 2; SC1092
Bon v Nakgai [2001] PGNC 96; N2123
Church of Jesus Christ of Latter-Day Saints v Kimas [2022] PGSC 96; SC2280
Davis v Pitzz [1988-89] PNGLR 143
NTN Pty Ltd v The Board of Post & Telecommunications Corporation [1987] PNGLR 70
Tau Mavaru Kamuta v David Sode & IRC [2006] N3067
Lupari v Somare [2008] PGNC 121; NC3476
State and Sali v Sisia [1987] PNGLR 102
Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690
Hamaka v Dion [2016] PGNC 60; N6294
Malewo v Faulkner [2009] SC960
Lau v Maniwa [2016] SC1481
Kwayok v Singomat [2017] N7097
Arran Energy (Elevala) Limited & Ors v Hon Kua & Ors [2024] PGSC 54
Goma v Protect Security & Communication Ltd [2013] PGSC 61; SC1300
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Aliolim v Kirokim [2018] PGSC 86; SC1735
Smith v Minister for Lands [2009] PGSC 60; SC973

Overseas Cases
Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 QB 55
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Norman v Barnet Council [1978] WLR 220

Legislation
National Court Rules, Order 16, r 3(2)(a), 4(2), 5(a), 6, 13
Local-level Governments Administration Act 1997, ss 42(1), 43(4), 45, 46, 49, 50
Constitution, Schedule 2.9(2)
Underlying Law Act 2000, s 19(2)

Other References
Administrative Law and Judicial Review in Papua New Guinea (2019 Notion Press), Christopher Karaiye

Counsel
Mr P Harry, for the Plaintiff
Mr R Uware, for First, Second and Third Defendants
Mr S Dadada, for Fourth Defendants

DECISION

11^th November 2024

1. PURDON-SULLY J: This is the Court’s decision on the Plaintiff’s application for judicial review pursuant to a Notice of Motion under Order 16 Rule 5(a) of the National Court Rules (NCR) filed 17 October 2023 pursuant to a grant of leave made on 16 October 2023.
2. The decision sought to be judicially reviewed is the decision of the First Defendant in Instrument of Appointment dated 7 November 2022 (the decision), which endorsed the appointment of the Fourth Defendants as members of the Management Committee of the Juha Special Purposes Authority (the Authority).

CONTEXTUAL BACKGROUND

3. The background to this matter involves a dispute about which group are lawful members of the Authority, thus able to, among other things, lawfully control and use funds in its operating bank account.
4. As is often the case with applications of like controversy that come before this Court, sometimes spanning years, attempting to unravel the gordian knot of issues that present on the evidence is not for the faint-hearted or the time pressed. There have been multiple Court filings, often repetitive in nature, multiple legal issues identified for determination, the main protagonists seeking to assume the higher moral ground against a background of allegation and cross-allegation of serious wrongdoing and criminality, inter alia in this case, arrest, fraud, forgery, uttering, misappropriation of funds, misuse of funds to meet personal debts, alignment, deceit, malice, contempt and misleading and sharp practice. In my respectful view the relevant background facts on this judicial review hearing can be distilled to the following.
5. Section 42(1) of the Local-level Governments Administration Act 1997 (the Act) provides that the Head of State acting on the advice of the National Executive Council may by proclamation establish a Local-level Government Special Purposes Authority in and for an area of local-level government.
6. The Authority was established under the North Koroba Rural Local-level Government (North Koroba LLG) within Koroba Kopiago District of Hela Province by Proclamation dated 18 May 2015 made by the Governor General, pursuant to National Executive Council Decision No 103/2015.
7. The Authority was established for the general purpose of assisting the implementation of the functions of the North Koroba LLG including acting as agent for the National Government in relation to the PDL9 PNG LNG Development Project Agreement and as an agent for landowners in respect of same and advising the Minister responsible for petroleum and gas matters on matters concerning the project.
8. Pursuant to Clause (g) of the Proclamation the Management Committee of the Authority consisted of eighteen (18) members, ten of whom were representatives of the major clans as listed therein, including one member each from the Juga Togomu clan, the Hoyapalu Clan and the Mupi Clan.
9. On 16 November 2018 the then Minister for Inter-Government Relations, Hon Kevin Isufu by Instrument of Appointment dated 16 November 2018 endorsed the Constitution and members of the Authority.
10. On 16 and 21 August 2019 the members of the Authority, which included the Plaintiff, were sworn into office.
11. On 23 August 2019 the names of the members of the Authority were published in the National Gazette.
12. On the 5 August 2021 the new Minister for Inter-Government Relations, Hon Pila Niningi endorsed a Revised Constitution of the Authority. The Fourth Defendants assert that the Plaintiff and his associates misled Minister Niningi without following the relevant legal requirements, the effect of which was to remove the legitimate clans that formed the Nominating Bodies for the Management Committee and insert unknown landowner groups associated with the Plaintiff.
13. On 16 May 2022 the then Minister for Inter-Government Relations, Hon Westley Nukundj (the Minister) wrote to the Nominating Bodies and informed them that the term of office of members of the Authority would be expiring and that they were required to appoint new nominees to fill in the positions.
14. On 25 May 2022 the beneficiary clans of the Juha PDL 09 license area, who are members of the Juha Gas Head Landowners Association (JGHL Association) appointed the following individuals as Management Committee members of the Authority:

Michael Husasai

James Ruben

Napele Kikako

Charles Timbau

Peter Ipape

Ben Anubi Herowa (the Plaintiff)

Henry Pawa

Robert Tonny

Philip Hetawi

15. On 30 May 2022 the Chairman of the JGHL Association, Chief Dickson Dugubi, submitted the names of these appointees to the North Koroba LLG for its confirmation.
16. On 9 June 2022 the North Koroba LLG confirmed the appointment of the nominees as submitted and then submitted their names to the Minister for his endorsement.
17. On 22 June 2022 the Minister endorsed by Instrument of Appointment the names of the said appointees (the first Instrument).
18. On 23 June 2022 the Minister endorsed and published the Revised Constitution of the Authority dated 5 August 2021 in National Gazette No G506 dated 23 June 2022 which the former Minister for Inter-Government Relations, Hon Pila Niningi, had earlier approved and endorsed.
19. On 7 November 2022 the First Defendant, the new Minister for Inter-Governmental Relations, endorsed by Instrument of Appointment (the second Instrument) the Fourth Defendants as member of the Management Committee of the Authority, the decision under review) as follows:

APPOINTMENT OF THE MANAGEMENT BOARD MEMBERS OF JUHU LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY

I, HON. SOROI EOE, MP, Minister for Provincial and Local Government Affairs, by virtue of powers conferred by Section 45(4) of the Local-level Government Administration Act 1997 and all powers enabling me, hereby appoint each person named in column 2 to represent the interest of the stakeholders mentioned in column 3 of the schedule below with effect on, and from the date of swearing in and signing of Oath of Office.

THE SCHEDULE

Dated this 7 day of November 2022
HON. SOROI EOE, MP

Minister for Provincial and Local Government Affairs

20. On 18 November 2022 the Fourth Defendants were sworn in as members of the Authority.
21. On 1 December 2022 the First Defendant published the names of the Fourth Defendants in National Gazette No G899.
22. Aggrieved by the decision the Plaintiff commenced these proceedings.
23. The matter was listed for a substantive hearing on 6 June 2024. In addition to the application for judicial review filed 17 May 2024, before the Court was an application by the North Koroba LLG to be joined as a party to the proceedings, the Fourth Defendants Notice of Motion filed 2 February 2024 to summarily dismiss the proceedings and the Plaintiff’s application to dismiss the Fourth Defendants’ Notice of Motion on the basis that that it was an abuse of process by reason of the Fourth Defendants having filed two Notices of Motion seeking similar relief without seeking leave to withdraw the first. The joinder application did not proceed, the balance of the morning taken up with the preliminary matters based on competency and whether the First Defendant should be permitted to rely on his affidavit filed on 23 May 2024.
24. I upheld the Plaintiff’s application to dismiss the Fourth Defendant’s Notice of Motion filed 15 December 2023 and a further Notice of Motion filed 2 February 2024. I dismissed the Fourth Defendant’s objection to the affidavit of the First Defendant. The balance of the day was taken up with hearing the Plaintiff’s substantive application for review, the Fourth Defendants raising issues of competency based on the Plaintiff’s standing and authority to bring the proceedings and delay.
25. The material relied upon by the parties is a matter of Court record. In addition to the written submissions filed, further written submissions pursuant to Court direction were filed following the trial, the matter then reserved on 20 June 2024 on receipt of the last of those written submissions.
26. Before I outline the grounds of review, relief sought and the issues, I wish to make some brief further observations on a preliminary matter determined during the course of the hearing.
27. With respect to the First Defendants’ affidavit the Court has an inherent discretion to admit or exclude evidence that may offend the rules of admissibility. For example, in Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 QB 55, the English Court of Appeal exercised its discretion to admit evidence, ruling that justice required its inclusion particularly when it helped provide context and understanding of the matters in question. The Court emphasised that in civil cases, the interests of justice could sometimes override strict evidentiary rules (see also Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 where the High Court of Australia admitted evidence technically inadmissible due to hearsay or relevance to prevent an injustice to the Plaintiff, the Court holding that the purpose of the rules was to serve justice and if they obstruct that purpose, they can be relaxed). Even if the First Defendant’s evidence as to why he formed a changed view of the legality to the appointment of the Fourth Defendants to the Authority offended the strict rules of admissibility, it was nevertheless evidence that provided context and understanding such as to require its inclusion.

GROUNDS OF REVIEW

28. The Plaintiff raises six (6) grounds of review as detailed in his Statement Pursuant to Order 16 Rule 3(2)(a) of the NCR filed 26 June 2023 namely:
    1. Lack of jurisdiction/acting Ultra vires his powers (Ground 5.1)
    2. Failure to consider a relevant consideration namely the first Instrument of Appointment dated 22 June 2022 (Ground 5.2)
    100. Breach of the provisions of the Proclamation and Constitution of the Authority in endorsing non-project area landowners not qualified for appointment (Ground 5.3)
    4. Breach of ministerial determination published in the National Gazette dated 13 March 2019 which disqualified one of the Fourth Defendants as a member of the Authority (Ground 5.4)
    5. Breach of the Constitution of the Authority by endorsing the Fourth Defendants not duly appointed by their Nominating Bodies (Ground 5.5)
    6. Acting Ultra vires in appointing the Chairman and Deputy Chairman of the Authority contrary to s 17(1) and (2) of the Constitution of the Authority (Ground 5.6).

RELIEF SOUGHT

29. The Plaintiff seeks the following relief:
    1. A Declaration that the decision was unlawful, invalid and of no legal effect.
    2. An Order for Certiorari to bring up and quash the decision.
    100. A Consequential Order ordering that all or any subsequent decision(s) made by the Fourth defendants as purported members of the Authority be declared unlawful, invalid and of no legal effect.
    4. Costs on a solicitor client basis
30. The First, Second and Third Defendants support the orders sought by the Plaintiff.

THE ISSUES

31. The issues for determination are:
    1. Whether the decision under review was ultra vires the First Defendant’s power to make it being contrary inter alia to s45(4) of the Act and as such should be set aside for that and otherwise on the grounds of error of law and procedural irregularity; and, if so
    2. Whether the Court should exercise its discretion to grant or refuse the reliefs sought.
    100. What costs order should be made, the Plaintiff seeking costs on a solicitor client basis and the Fourth Defendants on a solicitor and own client basis against the Plaintiff and his lawyer.
32. There are however preliminary issues which need to be addressed first, the Fourth Defendants raising arguments on competency, adopting the written submissions filed 31 May 2024 in support of their dismissed Notice of Motion, as follows:
    1. Whether the Plaintiff has sufficiently pleaded proper grounds of review recognised by law?
    2. Whether the application for review should be dismissed by reason of the delay in the Plaintiff filing his application outside the time period provided in Order 16 Rule 4(2) of the NCR without reasonable explanation?
    100. Whether the Plaintiff lacks standing to bring the proceedings and otherwise has representative authority to act for the Tapero Clan by obtaining and filing an authority to act to institute proceedings?
33. In addressing the issues, I do not propose to engage with each and every submission made. While I have considered all submissions I have endeavoured to confine my attention to the material points raised and the particular submissions essential to my final conclusion (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 385 – 386 at E; see also R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 per Scarman LJ at 350).

WHETHER THE PLAINTIFF HAS SUFFICIENTLY PLEADED PROPER GROUNDS OF REVIEW RECOGNISED BY LAW?

34. It is submitted on behalf of the Fourth Defendants that no grounds shall be relied on or relief sought at the hearing except the grounds and relief set out in the Statement (Order 16 Rule 6 of NCR). It is submitted that the grounds of review at 5.1, 5.2 and 5.3 of the Statement fail to meet the requirements of pleading in that they are pleaded vaguely and without sufficient particulars and should be dismissed in that with respect to these grounds the pleading is short, brief and ambiguous the ground failing to plead:
    1. the name and specific title of “the Minister” whose decision is under review;
    2. the different powers of the Minister regarding the appointment and revocation of the members of the Authority which powers are distinct;
    100. the particulars of “the Authority” such as the proper name of the Authority being the “North-Koroba Local-level government Juha Special Purposes Authority”;
    4. the failure to provide particulars such as “Juha PDL 9 Special Purposes”;
    5. with respect to the Constitution of the Authority which constitution as there are two, one endorsed by former Minister Isufu on 16 November 2018 and one by former Minister Niningi on 5 August 2021.
35. The Fourth Defendants’ arguments are detailed at [40] to [43] of their submissions filed on 31 May 2024.
36. I do not uphold the Fourth Defendants’ objection.
37. The relevant grounds as detailed in the Plaintiff’s Statement in Support Pursuant to Order 16 Rule 3(2)(a) of the NCR are:

5.1 The Minister did not have jurisdiction under Section 45(4) of the Act to appoint/or revoke the appointment of members of the Authority in the PDL 09 licence area identified in Clause (g) of the Proclamation and Section 42() of the Constitution of the Authority and therefore had acted ultra vires his powers.

5.2 In the Minister’s decision made by Instrument of Appointment dated 7 November 2022 the Minister had failed to consider the existing Instrument of Appointment that was duly executed by his predecessor Minister Hon Westley Nukundj, dated 22 June 2022 as a relevant consideration which contained the endorsement the Plaintiff and his colleagues as members of the Authority, which the Mionister did not revoke in his Instrument of Appointment and therefore the said Instrument remains valid and enforceable.

5.3 The Minister had breached Clause (g) of the Proclamation and Sections 4(2) and 7(2) of the Constitution of the Authority by unlawfully endorsing non-project area landowners such as Martin Kopilyo from Tsak Valley in the Enga Province and Paula Epita from Mt Hagen in the Western Highlands Province who were not qualified to be members of the Authority, whose names had been fraudulently included when the law provides only for members of clans within the PDL 09 licence area.

[highlighting as in original]

38. The Plaintiff’s basic complaints with respect to the particular Grounds to which the Fourth Defendants take issue are set out in the Plaintiff’s affidavit filed 12 June 2023 (see in particular [26], [ 32] – [48]. [59]- [62]).
39. I am unable to conclude that the grounds as pleaded do not constitute proper grounds. In his book Administrative Law and Judicial Review in Papua New Guinea (2019 Notion Press), Christopher Karaiye at [4.3] details the non-exhaustive list of specific grounds for judicial review in this jurisdiction, some of which are prescribed in Order 16 Rule 13 of the NCR as follows:
    1. Ultra vires – lack of jurisdiction
    2. Acting under dictation
    100. Bad faith
    4. Inflexible application of government policy
    5. Taking into account irrelevant considerations
    6. Failing to take into account relevant considerations
    7. Extraneous (improper) purpose
    8. Error of law on the face of the record
    9. Fraud
    10. Breach of procedures prescribed by statute or subordinate legislation designed to ensure procedural fairness in decision-making
    11. Real of apprehended bias
    50. Breach of natural justice
    13. “Wednesbury” principle of unreasonableness
40. As noted by the learned author, the first nine grounds conform to illegality, the next three grounds relate to procedural impropriety and the final ground relates to irrationality.
41. In my view, Grounds 5.1, 5.2 and 5.3 relied upon by the Plaintiff can be conveniently grouped under the heading of ultra vires, the issue arising on the relevant pleadings being whether the First Defendant, as decision-maker, correctly understood the bounds of the law that regulated his decision-making power and give effect to it. In my respectful view each of the matters pleaded raise a recognised ground of judicial review involving an excess or abuse of power. If a decision-maker fails to take into account a relevant consideration, if he breaches relevant provisions that affect his authority to decide or if he acts outside the bounds of that authority then he has acted ultra vires or without authority and his decision is open to challenge.
42. I am comfortably of the view that the Fourth Defendants have been sufficiently informed of the issues to be argued by the Plaintiff and that the pleadings are sufficiently worded and particularised to disclose not only a proper ground of judicial review and thus the parameters of the judicial review proceeding but the relevant particulars of the alleged error that the Plaintiff assert was made by the decision-maker (John Joe Nemambo v Peter Peipul [1994] SC475; Koitachi Ltd v Walter Schnaubelt [2007] SC870; Magiri v Papua New Guinea First Authority [2009] PGNC 64; N3670; Nalu v Commissioner of Police [1999] PGNC 1010; N192; David Coyle v Loani Henao [2000] PNGLR 17; Badastal Ltd v Temu [2011] PGSC 2; SC1092).
43. That, for example, the Fourth Defendants were not labouring under any ambiguity or lack of understanding with respect to the case they were required to meet is clear from their response at [45] et el of written submissions on their behalf filed 31 May 2024 where they address what I find to be a principal ground of review, namely whether the Minister in making the decision acted ultra vires his powers contrary to s 45(4) of the Act, Clause (g) of the Proclamation and s 4(2) of the Constitution of the Authority.
44. The specific areas of complaint detailed by the Fourth Defendants at [40] to [43] of written submissions are not persuasive of their argument of insufficient pleading. For example:
    1. The Statement makes clear who the relevant Minister is when the grounds of review are read in conjunction with [1.1]-[1.3], [2.1], [3.1]-[3.8] and the Reliefs Sought.
    2. The Statement makes reference to ‘the Authority” having defined that word at [1.1] to mean “the Juha Local-level Government Purposes Authority (“the Authority’). While it is submitted on behalf of the Fourth Defendants that the proper name of the Authority is the “North-Koroba Local-level Government Juha Special Purposes Authority” the evidence suggests variations of the name including ‘Juha Local-level Government Purposes Authority” in the Instrument of Appointment dated 16 November 2018 under the hand of former Minster Isifu as nationally gazetted on 23 August 2019 and Juha Local-level Government Purposes Authority” is used in the:
       1. Instrument of Appointment dated 16 November 2018 under the hand of former Minster Isifu as nationally gazetted on 23 August 2019;
       2. Instrument of Appointment dated 22 June 2022 under the hand of former Minster Nukundj.
       3. Instrument of Appointment dated 7 November 2022 under the hand of the First Defendant.
    100. Relevantly, in his affidavit filed in related proceedings (OS No 242 of 2022), the Fourth Defendant, Mr Andama refers to the Authority as the “Juhu Special Purposes Authority (JSP)”, the other names that appear on the evidence in these proceedings being:
         1. “Juha Local-level Government Purposes Authority under the North Koroba Local-level Government in Koroba Kopiagpo District in Hela Province”, on establishment on 7 May 2025 by the National Executive Council and as nationally gazetted on 13 May 2015;
         2. “Juha Hela Special Purposes Authority” on establishment by Proclamation dated 18 May 2015;
         3. “North-Koroba Local-level Government Juha Special Purposes Authority” in the Constitution dated 16 November 2018;
         4. “Juha Special Purposes Authority” in the:
            1. the Authority’s letterhead
            2. Revised Constitution dated 5 August 2021 (section 1)
            3. various Ministerial written communications
            4. Meeting Minutes of JGHLA
            5. Hela Provincial Administration communications
            6. Office of the Acting Chairman.
    4. It is, respectfully, not fairly open to the Fourth Defendants to assert ambiguity and confusion on the pleadings by reason of the purported existence of two separate constitutions for the Authority when on the evidence the Revised Constitution on which the Plaintiff relies is the most recent constitution, the Revised Constitution dated 5 August 2021 having been approved and endorsed under the hand of the former Minister Niningi, the validity of the document further confirmed by former Minister Nukundj and nationally gazetted on 22 June 2022, the Fourth Defendants leading no evidence that any legal challenge to its validity has been upheld.
    5. The arguments on appointment and revocation as distinct legal and administrative processes take the objection on pleading no further.
45. The Fourth Defendants competency objections on pleading are dismissed.

WHETHER THE APPLICATION FOR REVIEW SHOULD BE DISMISSED BY REASON OF THE DELAY IN THE PLAINTIFF FILING HIS APPLICATION OUTSIDE THE TIME PERIOD PROVIDED IN ORDER 16 RULE 4(2) OF THE NCR WITHOUT REASONABLE EXPLANATION?

46. A principal contention of the Fourth Defendants is that the Plaintiff’s application should be struck out by reason of undue and unexplained delay of eight (8) in the filing of his application for leave for judicial review outside the period of four (4) months outlined in Order 16 Rule 4(2) of the NCR, a delay likely to cause substantial prejudice or hardship to the Fourth Defendants as the incumbent board of the Authority and one otherwise detrimental to good administration. Delay is an issue the Fourth Defendant raises as a preliminary issue and also at the relief stage. It is further submitted that at the time of hearing of the substantive proceedings some nineteen (19) months had elapsed since the making of the decision, and that it would be a prejudice to the Fourth Defendants who have been a functioning Board and contrary to the good administration of justice to make the orders sought.
47. It is submitted on behalf of the Plaintiff and First, Second and Third Defendants that the four-month time period for the filing of an application for leave for judicial review is not a rigid requirement and there is no hardship arising, the learned Judge hearing the matter at the leave stage having determined in a written ruling that there had been no inordinate delay.
48. Order 16 Rule 4 of the NCR is titled “Delay in applying for relief”. It provides as follows:

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

49. It cannot be in dispute that the Plaintiff’s application for leave was filed on 12 June 2023, three (3) months and five (5) days after the expiry of the four-month period from the date of the decision. The period of time from the making of the decision to the filing of the Plaintiff’s application was seven (7) months and five (5) days.
50. While the Court may refuse to grant leave or any relief sought on application if there has been delay in making an application for judicial review, the four (4) month time period is not mandatory. The Court has a discretion to grant leave and/or the relief sought. A failure to file within the four (4) month period does not accordingly fetter the discretionary power of the Court to grant an application exceeding that period (Bon v Nakgai [2001] PGNC 96; N2123; Church of Jesus Christ of Latter Day Saints v Kimas [2022] PGSC 96; SC2280 per Kandakasi DCJ at [23]).
51. I am of the view that there was no undue delay by the Plaintiff in applying for the relief he is seeking. I am unable to conclude that a period of seven (7) months and five (5) days from the making of the decision to the filing of his application prohibits the Plaintiff from seeking the relief sought (Davis v Pitzz [1988-89] PNGLR 143). Each case turns on its own facts. While the Court acknowledges that even a period of time less than the stipulated four-month period under Order 16 Rule 4 may constitute undue delay, the authorities relied upon by learned Counsel for the Fourth Defendants often involved periods of lengthy delay where prejudice and hardship are brought into sharp focus.
52. On the evidence and having considered the oral and written submissions of the Fourth Defendants I am unable to conclude that substantial hardship or prejudice to the Fourth Defendants by reason of the fact of their incumbency has been made out or that the delay is detrimental to good administration (NTN Pty Ltd v The Board of Post & Telecommunications Corporation [1987] PNGLR 70). Learned Counsel when invited by the Court was unable to point to any direct evidence in support of the submissions advanced. The fact that following the appointment letters may have been circulated to various stakeholders recognising the Authority comprising the Fourth Defendants does not enable the Court to draw an inference that a change to the Management Committee would have significant impacts for good administration. Changes to the composition of functioning Boards is not an unusual circumstance in the public or private sector.
53. While the Fourth Defendants were not present at the hearing for leave - and it is not in dispute that they are not precluded from raising the issue at the substantive stage - it is not the case that an objection based on the delay was not taken by the State or the issue not considered by His Honour at the leave stage. His Honour concluded at [9] of his judgment that there was no inordinate delay on the facts before him. The Fourth Defendants advance no evidence to dispute the basis of His Honour’s findings. The evidence of Mr Andama acknowledges that the Plaintiff sought to litigate by seeking declaratory relief in OS No 242 of 2022 on 26 November 2022. Leave to withdraw those proceedings was granted by the Court on 25 May 2023. It is submitted on behalf of the Plaintiff at the time the proceedings were instituted the Plaintiff was unaware that the decision that had been made, a circumstance that came to their attention in an affidavit filed by Mr Andama. The Plaintiff then discontinued his application and commenced these proceedings the following month. It is conduct that does not suggest a lax approach on the part of the Plaintiff to his obligation to act with expedition or conduct at odds with the equitable principle that “he who seeks equity must come with clean hands” (Tau Mavaru Kamuta v David Sode & IRC [2006} N3067 cited with approval in Lupari v Somare [2008] PGNC 121; NC3476 per Injia DCJ (as he then was) at [58]). It is conduct at odds with the facts in State and Sali v Sisia [1987] PNGLR 102, to which the Court was referred by Counsel for the Fourth Defendants, where the delay was five (5) years and six (6) months and where the Court found that the appellant knew of the decision of the Minister, did not promptly take legal steps to challenge it, and chose instead to pursue his claim for compensation, seek political support and take matters into his own hands.
54. Learned Counsel for the Fourth Defendants was afforded further time to place any authority before the Court and make any further submissions to support particular submissions advanced by him on the issue of delay. I have carefully considered all submissions filed. In the circumstances of this case to dismiss the Plaintiff’s application by reason of a delay of seven months, that is three (3) months and five (5) days over the relevant four-month period to bring proceedings would not in the circumstances serve the administration of justice.
55. This ground of objection is dismissed.

WHETHER THE PLAINTIFF LACKS STANDING TO BRING THE PROCEEDINGS AND OTHERWISE HAS REPRESENTATIVE AUTHORITY TO ACT FOR THE TAPERO CLAN BY OBTAINING AND FILING AN AUTHORITY TO ACT TO INSTITUTE PROCEEDINGS?

56. It is submitted on behalf of the Fourth Defendants that the Plaintiff does not have a sufficient interest or standing to bring proceedings for judicial review and has also failed to file an Authority to act on behalf of the Tapero Clan and as such has acted without proper authority. It is submitted inter alia that:
    1. The Plaintiff has filed proceedings citing his capacity as “BEN ANUBI HEROWA as representative of Tapero clan TO JUHA LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY”;
    2. In his Statement Pursuant to Order 16 Rule 3(2) (a) of the NCR filed 26 June 2023 at [1] he claimed that he “is a member of Juha Local-level Government Special Purpose Authority representing Tapero Clan in PDL 9 license area of Hela Province”.
    100. At [1.2] of his Statement he claims that he was “duly appointed together with others by their respective clans through the Juha Gas-Head Landowners Association on 25 May 2022 and endorsed by the North Koroba Local-level Government on 9 June 2022.”
    4. At [1.3] of his Statement he pleaded that “The Plaintiff and his colleague nominees were endorsed as members of the Authority by the Minister for Inter-Government Relations Hon Westly Nukundj MP (Minister Nukundj) in Instrument of Appointment dated 22 June, 2022”,
    5. While it is not in dispute that the Plaintiff was a board member representing the Tapero Clan however his term expired at the end of August 2022, there being no evidence he was thereafter renominated by the Tapero Clan as their representative.
    6. There is no legal relationship between the Plaintiff and the decision of the Minister under review, the Plaintiff providing no evidence that the Tapero Clan had reappointed him as their representative to establish that he had a sufficient interest to apply for judicial review of the decision and thus the legal standing to challenge it and the proceedings a nullity from the beginning.
    7. Further, having commenced proceedings in a representative capacity the proceedings should be dismissed by reason of the Plaintiff having failed to comply with the procedural requirement of obtaining and filing the authority to act from the Tapero Clan to institute the proceedings, actions of a representative nature requiring all the intended plaintiffs to be named and duly identified in the originating process with each and every intended plaintiff giving specific instructions evidenced in writing to their lawyers to act for them (Mali v Independent State of Papua New Guinea [2002] PGSC 4;SC690 (Mali)).
57. It is submitted on behalf of the Plaintiff that the submissions on behalf of the Fourth Defendants are misconceived, the Plaintiff not suing in his personal capacity as a representative of the Tapero Clan landowners but as an elected representative of the Tapero Clan and whose right to hold office as member has been breached and is sought to be protected. As such no authority from the Tapero Clan is required (Hamaka v Dion [2015] N6294 (Hamaka)).
58. The First, Second and Third Defendants made no submissions on the issue.
59. It is trite law that the Plaintiff or parties in legal proceedings must be properly identified and named and for cases where the principal Plaintiff is holding themselves out as representative of the other Plaintiffs it is mandatory that there is evidence of authority to act. The failure of the Plaintiff to obtain consent and authorisation of the plaintiffs for which he acts goes to the issue of his standing and sufficient interest to bring the proceedings (Mali (supra); Malewo v Faulkner [2009] SC960; Lau v Maniwa [2016] SC1481; Kwayok v Singomat [2017] N7097).
60. As to the issue of legal representation, as Makail J said in Hamaka at [12] its determination is “dependent on the nature or the interest or right that has been interfered with or breached by the Minister”.
61. The facts in Hamaka were similar to the facts before the Court. The case involved a special purposes authority, the Head of State issuing a Proclamation for the legal framework of the authority, the authority governed by a constitution which established a Management Committee comprising thirteen members, three of whom were representative of landowner groups within a particular project area.
62. The controversy arose because the Minister made appointments to the Committee published in the National Gazette that did not include the plaintiffs. The plaintiffs sought to review the Ministerial power to revoke the appointment of the Chairman and member of the Management Committee and replace them with a new Chairman and members. There were three grounds of review, the more significant one being ultra vires, the learned Judge finding that it formed the heart of the controversy between the parties and was the power of the Minister to revoke appointments and appoint a Chairman and members of the Committee.
63. Before his Honour considered the issue, he addressed a preliminary issue that the proceedings should be dismissed on the ground that the true nature of the proceedings was representative action and the requirement for naming all intended plaintiffs and evidence of authority to act had not been complied with.
    
64. On that question His Honour said as follows at [12] and [15]:
    12. As to the issue of legal representation I am of the view that its determination is dependent on the nature of the interest or right that has been interfered with or breached by the Minister. As far as I can see the nature of the interest or right that is being sought to be protected is the tenure of office of the Chairman and members of the Committee of the Sixth Plaintiff. The persons who have direct and immediate interests are the First to Fifth Plaintiffs. The allegation is that their right to hold office has been breached when the Minister unilaterally replaced them with new Chairman and members. In my view they are the persons aggrieved by the decision and entitled to challenge it.

....

15. I am of the view that the Plaintiffs are not suing in their personal capacity and as “representatives” of the landowners but as “elected representatives” of various land groups within the project area. Given this it is not necessary for them to obtain specific authority from the landowners to commence these proceedings. As noted, they commenced these proceedings to challenge their removal as Chairman and members of the Committee of the Authority. I am satisfied as elected representatives the Plaintiffs have the authority to institute these proceedings and they are properly before this Court. The objection is misconceived and dismissed.
65. The principles enunciated in Hamaka were not otherwise persuasively challenged by the submissions advanced on behalf of the Fourth Defendants.
66. In my view, the nature of interest or right that is being sought to be protected by the Plaintiff is his tenure of office. The contention of the Fourth Defendants that there is no legal relationship between the decision and the Plaintiff which affected him is not accepted. The Plaintiff asserts that his right to hold representative office was breached by the Minister when he unilaterally replaced him and others with new members. He is a person directly affected by the decision and being thus aggrieved by it is entitled to challenge it.
67. The Plaintiff is not suing in his personal capacity and as “representative” of a landowner group but as an “elected representative” of a landowner group within the relevant project area. As such it is not necessary for him to obtain specific authority from the relevant landowner group to commence these proceedings.
68. I am satisfied that as an elected representative the Plaintiff has standing and is properly before the Court. The Fourth Defendants’ objection on standing is dismissed.

WAS THE DECISION UNDER REVIEW ULTRA VIRES THE FIRST DEFENDANT’S POWER TO MAKE

69. The core of the Plaintiff ‘s complaint, expressed in various ways, conceded as much on behalf of the Plaintiff, is that the First Defendant did not have the power to endorse by the second Instrument of Appointment dated 7 November 2022 the Fourth Defendants as members of the Management Committee of the Authority. This was because at the time he made the endorsement, the Plaintiff and others had already been endorsed as a member of the Management Committee of the Authority by the first and earlier Instrument of Appointment, made on 22 June 2022. There were accordingly, two Instruments of appointment made, the first endorsing the Plaintiff’s appointment not having been revoked at the time the second Instrument of Appointment was made, and the first appointment valid to this day. It is submitted that the fact that the second Instrument of Appointment was gazetted and the first was not, does not make the endorsement of the second Instrument a legal act as there is no provision for the gazetting of the names of members of the Authority in the governing Act or Constitution of the Authority.
70. I set out the Plaintiff’s arguments as follows:
    1. Section 45(4) of the Act relied upon by the First Defendant as the source of his statutory power to endorse the appointment of the Fourth Defendants as members of the Management Committee of the Authority does not confer that power, nor does it confer a power to revoke the appointment of members of the Management Committee to the Authority.
    2. Further ss 4(3) and (4) of the Authority of the Constitution requires members of the Board to be qualified and eligible for appointment, the process of appointment under s 5 of the Constitution being that the Nominating Bodies are the appointing authority, the Minister, upon being so notified required to simply endorse and publish the names of the appointees.
    100. In breach of the relevant Constitution and/or Proclamation the Minister further endorsed non-project landowners who were:
         1. ineligible for appointment, the Fourth Defendants including two individuals from Enga and Western Highlands who were not landowners from that area and thus not qualified for appointment; and
         2. not duly appointed by the Nominating Bodies in compliance with the appointment process in the Constitution and not duly endorsed by the North Koroba Local-level Government.
    4. In making the appointment the Minister failed to have regard to the existing Instrument of Appointment made on 22 June 2022.
    5. The Minister’s appointment of the Chairman and Deputy Charman to the Authority was procedurally flawed and thus invalid being one that can only be made by members of the Board or the Management Committee of the Authority which appoints the Chairman and Deputy Chairman, not the Minister and the appointment process of the Fourth Defendants flawed the Fourth Defendants inter alia not properly appointed by the relevant Nominating Bodies.
71. It is submitted on behalf of the First, Second and Third Defendants that the First Defendant concedes that the decision was made on improper advice and should not have been made, the first Instrument valid, not having been revoked. It is submitted that proper process and procedures had not been followed warranting the intervention of the Court by way of judicial review and the quashing of the decision. The Court was referred to the decision of Arran Energy (Elevala) Limited & Ors v Hon Kua & Ors [2024] PGSC 54 wherein the Supreme Court found that a decision-maker has the power to retrack his decision.
72. It is submitted on behalf of the Fourth Defendants inter alia that:
    1. The management and operations of the Authority is provided under s 45 of the Act however with respect to the interpretation of s 45 (4) of the Act while the Plaintiff relies upon the decision in Hamaka each case must be determined on its own facts and the decision of Hamaka is not binding on this Court.
    2. For the purpose of interpreting the relevant section of the Act reliance is placed on the Supreme Court decision of Goma v Protect Security & Communication Ltd [2013] PGSC; SC1300 (Goma) with respect to statutory interpretation and the need to dispense justice in doing so. Section 5 of the original Constitution of the Authority does not specify how the Minister is going to “approve” the name list submitted to them. Bearing in mind the principles enunciated in Goma, the Court in interpreting s 45 of the Act must give paramount consideration to the dispensation of justice and give effect to the intention of the Parliament. In this regard it is submitted that the decision is a lawful exercise of its powers under s 45 of the Act.
    100. In construing s 45 of the Act the Court should look at other provisions of the Act which provide other powers of the Minister, including ss 43(4), 46, 49 and 50. Hence it is submitted that the publication in the Instrument of Appointment dated 7 November 2022 constitutes the approval of the Minister pursuant to s 5 of the Constitution. In this regard the word “appoint” in the Instrument of Appointment dated 7 November 2022 is inconsequential.

CONSIDERATION

73. Judicial review is a process that holds public officials accountable for the correct use of their powers. If in making a decision the decision-making authority inter alia exceeds or abuses its powers, if he does not correctly understand the law that regulates his decision-making power and give effect to it, then the decision may be set aside by the Court as an unlawful exercise of his decision-making power (Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122).
74. I have concluded that in making the decision the First Defendant did not correctly understand the law that regulated his decision-making power, that he exceeded and/or abused his powers and that the decision should be set aside.
75. There was already a valid Instrument of appointment in existence at the time he made the decision, the first Instrument not having been revoked. The second Instrument did not revoke the first, the First Defendant having no power to revoke based on Hamaka.
76. The Minister relied upon s 45(4) of the Act as the source of the Minister’s power to appoint the Fourth Defendants.
77. Section 45 of the Act is in these terms:

45. MANAGEMENT AND OPERATIONS, ETC., OF AUTHORITIES.

(1) The affairs of an Authority shall be conducted by a managing body.

(2) In principle, the membership of a managing body shall not include members of a Local-level Government.

(3) The operations of an Authority shall be at arms length from a Local-level Government.

(4) The membership, manner of appointment and terms and conditions of appointment of members of a management body are as prescribed.

[Underlining added]

78. It is a provision that, as its title suggests, relates to the management and operations of the authority. It is not, however, a source of statutory power to appoint and/or revoke the appointment of members of the Authority, a finding made in Hamaka at [34] as follows:

34. In my view the reference to the Minister determining the details of, amongst things, management of the Authority in clause (m) of the Proclamation applies to the establishment of the management of Authority and not the appointment of the members. I say this because as the Authority is established to work in partnership with Hulia RLLG, the publication of the names of the appointees by the Minister signifies that they have the support of the Minister and the Minister's role is advisory in nature. On the other hand, the power to appoint members of the Committee is conferred on the Hulia RLLG. For these reasons, I come to the conclusion that the Minister does not have the requisite power to appoint and/or revoke appointments of members of the Committee. This is a significant flaw.

79. The membership, manner of appointment and terms and conditions of appointment of authorities are prescribed by ss 4 and 5 of the Constitution.
80. Section 4(3) and (4) of the Constitution of the Authority provides:

(3) The Members of the Board referred to in Section 4(2) shall:

(a) be qualified for appointment in terms of Section 6,

(b) have names published by notice in prescribed form on the Notice Board by the Minister following notification in accordance with Subsection (4), and

(c) be eligible for reappointment.

81. Section 5 of the Constitution provides:

Process of Appointment

(1) When the Term of Office for members of appointed under Section 4(2) expires or is suspended or terminated, the Chairman of the Authority or the responsible Department through the office of the Minister notifies the Nominating Bodies to make appointments.
(2) Nominating Bodies appoint their nominees based on Section 4(2) and submit their names to the responsible Minister for endorsement.
(3) They shall include the manner and proceedings and proper documentation of the Nominating Bodies that appointed them.

82. The Court accepts the submissions on behalf of the Plaintiff that the First Defendant is not the appointing authority of landowner representatives to the Authority. The appointing authority is the Nominating Bodies, defined in s 1 of the Constitution as “the recognised mouthpiece or Association of the four (4) Beneficiary Groups of the Juha PDL 9 PNG LNG Project.”.
83. The Court accepts the further submission on behalf of the Plaintiff that the proper process to be followed is that the First Defendant, upon being notified of the names of the appointees endorses and publishes those names in the prescribed form on the Notice Board. The Notice Board is the notice board of the Local-level Government, not the National Gazette. Publication of the names of the appointees in the National Gazette is not a legal requirement under the Act or the Constitution. The only requirement is that the names be published in a notice on the Notice Board by the relevant Minister, a process that enables landowners in the project area easy access to the notice of appointment (Hamaka at [37]).
84. In the absence of an express statutory power to appoint and/or revoke the appointment of members of the Authority, in making the decision the Minister lacked authority and acted ultra vires his powers.
85. Particular submissions to the contrary on behalf of the Fourth Defendants do not, respectfully, advance matters. If the Fourth Defendants were aggrieved by the endorsement of the Minister dated 22 June 2022, if they viewed the first Instrument as invalid, either by reason of the Instrument having been made prior to the expiration of the term of office of the members of the Authority and the process of reappointment, renomination done early and thus procedurally flawed or some other reason including by reason of the arguments advanced on behalf of the Plaintiff to challenge the decision, they could have brought proceedings for judicial review. The decision under review in these proceedings is the decision of 7 November 2022.
86. Nor is the Court persuaded that it should not have proper regard to Revised Constitution of the Authority which was endorsed on 5 August 2021 by the former Minister Hon Pila Niningi thus replacing and superseding the earlier constitution endorsed on 16 November 2018.
87. While the decision of Hamaka is not binding authority on this Court, it is persuasive authority (Constitution, Schedule 2.9(2) and Underlying Law Act 2000, s 19(2). No persuasive argument was advanced as why, as a decision of this Court on point regarding the Management Committee of a Special Purposes Authority, where the procedure for appointment and the power of the Minister under s 45 of the Act was discussed, the principles enunciated in it should not be followed.
88. The decision of Goma does not, respectfully, assist the Fourth Defendants’ case. This is not a case where the facts can be said to give rise to an absurd and/or unjust situation that enables the Court to step in and “do what Parliament would have done, had they had the situation in mind” (Norman v Barnet Council [1978] WLR 220 per Lord Denning, cited in Goma at [17]). The evidence establishes to my satisfaction that in appointing the Fourth Defendants the First Defendant exceeded his authority. If a decision-maker exceeds his lawful authority to act, then justice is served by that circumstance being remedied.
89. Nor does a consideration of other provisions in the Act urged on the Court on behalf of the Fourth Defendants, including the specific provisions identified at ss 43(4), 46, 49 and 50, enable the Court to conclude that the publication in the second Instrument of Appointment under review constituted the “approval” of the Minister pursuant to s 5 of the Constitution and that the word “appoint” in the Instrument of Appointment is inconsequential.
90. Section 43(4) provides:

The Minister shall consider a recommendation made under Subsection (2) and where he considers the establishment of the Authority desirable shall submit the recommendation to the National Executive Council for consideration as to whether the Head of State should be advised to make the proclamation.

91. Section 46 titled VARIATION, ETC., OF AUTHORITIES details what the Head of State, acting on advice, may do by proclamation.
92. Sections 49 and 50 detail, respectively, the advisory functions of the authorities and their annual reporting requirements.
93. A consideration of these provisions do not permit the conclusion on construction of s 45 of the Act advanced by the Fourth Defendants.
94. Given the above findings, Ground 5.1 is upheld and dispositive of the review.
95. While it is not accordingly necessary for me to consider the other grounds of review, in my view the First Defendant’s failure to consider the existence of the first Instrument of Appointment also represented a further flaw in the decision-making process, and a ground of judicial review under Order 16 Rule 13 of the NCR. The earlier Instrument was in operation. It had not been revoked at the time of the decision. As such it was a relevant factor that should have been considered by the Minister before he made the decision.
96. The appointment of Mr Kopilyo and Ms Epita represented a further flaw in the decision-making process. Their appointment was in breach of the provisions of clause (g) of the Proclamation which provides for the composition of the Management Committee of the Authority. There is no persuasive evidence that Mr Kopilyo or Ms Epita were landowners from PDL 09 project area and not outside the prescribed area. The submissions advanced on behalf of the Fourth Defendants did not materially engage with this ground. Neither Mr Kopilyo or Ms Epita gave evidence to rebut the electoral roll evidence to the effect that they resided outside the relevant area, in the case of the former in Enga Province and the latter in the Western Highlands Province. While there is no date on the electoral roll evidence annexed to the Plaintiff’s affidavit, the affidavit was filed on 12 June 2023. If there was evidence to the contrary, Mr Kopilyo and Ms Epita who are Fourth Defendants were best placed to give it. They had sufficient time to do so. On the evidence before the Court they are thus disqualified from appointment. It presents as a further ground to conclude that the decision is null and void and cannot stand.
97. Further, the appointment of the Chairman and Deputy Chairman by the First Defendant in the Instrument of Appointment under review was a further flaw, the Minister again misunderstanding his powers in appointing the Chairman and Deputy Chairman of the Authority. Section 17 of the Constitution provides for those appointments to be made by the members of the Authority as follows:
    • (1) Only a member appointed under Section 4(2)(a) and (d) shall be elected Chairman.
    • (2) Deputy Chairman shall be elected from a member appointed under Section 4(2)(a), (b), (c) and (d).
    • (3) The Authority shall meet to elect a new Deputy Chairman should a vacancy arise in the Office of the Deputy Chairman.
    • (4) If the Office of the Chairman or Deputy Chairman becomes vacant, the process of filing those vacancies are:
      1. in accordance with Subsection (2), or
      2. in accordance with Section 7(1), or
      100. by another means, if the vacancy occurs as the case may be.
    • (5) At a meeting of the Board at which the appointment of the Chairman from the whole or part of the business to be presented, the CEO or in his absence another member of the Board appointment by the members shall preside until the Chairman is elected.

[Underlining added]

98. It is clear a process of election to the particular office was required. The Minister however went ahead and made the appointments before the members of the Board could be sworn in, meet, deliberate and elect a Chairman and Deputy Chairman.

REMEDY

99. The next question for the Court is what relief, if any, should be granted.
100. In its supervisory role the Court must ensure that any error or abuse of power by a decision-maker or decision-making authority must be corrected (Hamaka at [38]).
101. The remedies available under judicial review are at the discretion of the Court and will only be granted to avoid injustice. To that end the Court must look to all the circumstances of the case and only consider granting a remedy that has been specifically sought by the applicant for judicial review or that would serve a useful purpose (Asiki v Zurenuoc, Provincial Administrator (2005) PGSC 27;SC797; Aliolim v Kirokim [2018] PGSC 86; SC1735; Smith v Minister for Lands [2009] PGSC 60; SC973).
102. I have concluded that the appropriate remedy in the circumstances of this case is to make the orders sought by the Plaintiff in the form of declaration, certiorari and consequential orders.
103. The Court should further order the new appointment of members of the Management Committee of the Authority be made in accordance with the process and procedures under the current constitution of the Authority. It is glaringly apparent on that facts that it is an order that will serve a useful purpose. It was an order raised in written submissions at [61] on behalf of the Plaintiff. It is a logical outcome of an in furtherance of the relief sought. No persuasive contrary submissions were made on behalf of the Fourth Defendants.
104. I am not persuaded that the submissions on behalf of the Fourth Defendants on delay would bar the granting of the above relief. In the circumstances of this case, I am of the view that there was no undue delay by the Plaintiff in applying for the relief sought (Bon v Nakgai (supra)). The facts of this case are different to those in State and Sali v Sisia (supra). This is not a case where the delay here could be said to “reduce the quality of justice”. I otherwise rely upon my earlier discussion and findings on the issue of delay.
105. In reaching a conclusion on remedy I note the submissions on behalf of the First, Second and Third Defendants field 20 June 2024 that the First Defendant has the power to correct his own actions and retract the decision. At the hearing he had taken no steps to do so, likely because of the late receipt of the advice on the matter and the approaching substantive hearing date.
     

COSTS

106. Costs should follow the event and be on a solicitor client basis with respect to the substantive proceedings and interlocutory Notices of Motion filed requiring determination. The Fourth Defendants should pay the costs of the Plaintiff and the First, Second and Third Defendants on a solicitor client basis to be agreed or taxed.

ORDERS

107. I make the following orders:
     1. A Declaration that the decision which endorsed the Fourth Defendants as members of the Authority was unlawful, invalid and of no legal effect.
     2. An Order for Certiorari to bring up and quash the decision of the First Defendant made in Instrument of Appointment dated 7 November 2022.
     100. A Consequential Order ordering that all or any decision(s) made by the Fourth Defendants as purported members of the Authority be declared unlawful, invalid and of no legal effect.
     4. A further Order for a new appointment of members of the Management Committee of the Authority be made in accordance with the process and procedures under the Revised Constitution of the Authority.
     5. The Fourth Defendants pay the costs of the Plaintiff and First, Second and Third Defendants on a Solicitor Client basis to be agreed or taxed.
     6. Time to Abridge

________________________________________________________________
Harry Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the First, Second and Third Defendants
Kumbari & Associate Lawyers: Lawyers for the Fourth Defendants