N11484

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 177 OF 2021 [IECMS]

BETWEEN:
GILBERT TOROPO
Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
The ATTORNEY GENERAL as the nominal Defendant for and on behalf of the GOVERNOR GENERAL and HEAD OF STATE pursuant to section 3 of the Claims By and Against the State Act 1996
Second Defendant

AND:
MAJOR GENERAL MARK GOINA
Third Defendant

AND:
REAR ADMIRAL PHILIP POLEWARA
Fourth Defendant

WAIGANI:   DINGAKE J
11, 12 SEPTEMBER 2025

JUDICIAL REVIEW – Practice & Procedure – Review of decision - Revocation of appointment of Commander of PNG Defence Force – Ultra Vires/Error of Law/Breach of Natural Justice found – Denial of right to be heard – Costs awarded solicitor/client basis

Cases cited
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Ilau v Somare [2007] PGNC 265; N5511 
Aeava v National Executive Council [2001] PGNC 62; N2136 
Eichorn v Ninikin [1989] PGNC 124; [1988-89] PNGLR 222; N735 
Kevi v the Teaching Service Commission [1997] PNGLR 659
Okuk and State v Fallscheer [1980] PGSC 13; [1980] PNGLR 274
Ombalo v Inguba [2004] PGLawRp 28; [2004] PNGLR 535 
Sausau v Kumgal [2006] PGNC 156; N3253 
Ilau v Somare [2007] PGNC 265; N5511 
Koki v Inguba [2009] PGNC 161; N3785 
Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 
Kaiyo v Pawa [2015] PGSC 61; SC1469 
Arnett v Kennedy, 416 U.S. 134 (1974)
Perry v Sindermann, 4008 U.S. 593 (1972)
Bell v Burso (420).

Counsel
Mr. Nelson Kopunye, for the plaintiff
Ms. Pauline Yom, for the first & second defendants
Mr. David Dusal, for the third defendant
Mr. Emmanuel Isaac, for the fourth defendant

JUDGMENT

1.	DINGAKE J: INTRODUCTION: This matter comes before me for re-hearing because of the Order of the Supreme Court in SCM No. 26 of 2024 (IECMS).

2.	I heard arguments of the parties yesterday, the 11th of September 2005 and reserved judgment to be delivered on a date to be communicated to the parties.

3.	This is my judgment.

4.	On the 14th of November 2023, the Plaintiff pursuant to Order 16 Rule 5 of the National Court Rules (“NCR”) filed a Notice of Motion, seeking orders in the following terms:

1)	Pursuant to Order 16 Rules 1(2) of the National Court Rules (“the Rules”) the following impugned decisions be declared null and void:

(a)	The decision of the Head of State made on 21 December 2021, acting on advice of the First Defendant by its decision made on 15 December 2021 to:

i.	Revoke the appointment of the Plaintiff made on 14 June 2018, as the Commander of PNG Defence Force;

ii.	Appoint Colonel Mark Goina as the Commander of Papua New Guinea Defence Force for a period of four (4) years;

iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand;

(b)	The decision of the First Defendant made on 15 December 2021 in a Special Meeting, where it decided to advise the Head of State to:

i.	Revoke the appointment of the Plaintiff made on 14 June 2018 as the Commander of PNG Defence Force;

ii.	Appoint Colonel Mark Goina as the Commander of PNG Defence Force for a period of four (4) years;

iii.	Appoint the Plaintiff as the High Commissioner of the Papua New Guinea to New Zealand;

2)	Pursuant to Order 16 Rule 1(1) of the Rules, an order in the nature of a certiorari to bring the abovementioned impugned decisions to this Honourable Court and to quash the decisions in their entirety.

3)	An order pursuant to Order 16 Rule 7 of the Rules and Section 23(1)(b) of the Constitution:

(a)	The Defendants (and the Minister for Defence, Hon. Win Bakri Daki, and the Secretary for Department of Defence, John Akipe) pay the Plaintiff damages and or compensation for:

i.	General damages;
ii.	Pain and suffering (including stress and mental anguish;
iii.	Exemplary and punitive damages;
iv.	Out of pocket damages.

(b)	Upon determination of liability to pay damages and or compensation, a date and time be fixed for assessment of damages (after issuance of directions for preparation for hearing).

4)	An order that the Defendants pay the Plaintiff’s costs on a solicitor/client basis.

5)	Time for entry of these Orders be abridged to the date and time of settlement by the Registrar.

6)	Such further or other Orders as this Honourable Court deems fit.

5.	On the same date as above the Plaintiff amended his Statement filed pursuant to Order 16 Rule 3(2)(a) of the NCR particularising the damages he seeks (p. 91 – 97 of the Review Book).

BACKGROUND

6.	The dispositive facts in this matter turn on a narrow compass.

7.	On the 15th of December 2021, the First Defendant decided to advise the Head of State to:

(a)	Revoke the appointment of the Plaintiff made on 14 June 2018 as the Commander of PNG Defence Force;

(b)	Appoint Colonel Mark Goina as the Commander of PNG Defence Force for a period of four (4) years;

(c)	Appoint the Plaintiff as the High Commissioner of the Papua New Guinea to New Zealand;

8.	On the 21st of December 2021, acting in accordance with the above advise, the Second Defendant took the following decisions, sought to be quashed:

(a)	Revoke the appointment of the Plaintiff made on 14 June 2018, as the Commander of PNG Defence Force;

(b)	Appoint Colonel Mark Goina as the Commander of Papua New Guinea Defence Force for a period of four (4) years;

(c)	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand;

9.	The above recommendation or advise of the First Defendant and the decision of the Second Defendant were precipitated by a meeting of the Defence Council (Meeting No 12/2021), attended by the Minister of Defence and the Secretary for Defence.

10.	The Plaintiff was not invited to the above meeting.

11.	It was at the Defence Council meeting that the recommendations that culminated in the decision of the Second Defendant originated.

12.	Aggrieved by the decisions of the First and Second Defendants, the Plaintiff seeks that the said decisions be reviewed and quashed, based on three grounds:

(a)	Ultra-vires/Error of Law
(b)	Denial of Natural Justice
(c)	Unreasonableness in the Wednesbury sense.

13.	It is trite law that judicial review is concerned with the process by which public authorities or functionaries make decisions. It allows the Courts to assess whether a public authority or body acted within its legal authority, followed proper procedures, and adhered to principles of natural justice. Through judicial reviews the Courts can assess the reasonableness, lawfulness and fairness of decisions of public authorities.

14.	The classic exposition of the principle or essence of judicial review are brilliantly captured by the words of Justice Brennan in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 where he stated that Administrative Law:
“depends at base on the principles that any person who purports to exercise an authority conferred by a statute must act within the limits and in the manner which the Statute prescribes.”

15.	With the above in mind, I now turn to consider the grounds advanced by the Plaintiff to impugn the decisions of the Defendants.

ULTRA-VIRES

16.	The Plaintiff submitted before me that, the Defendants committed errors of law in revoking the appointment of the Plaintiff and in appointing the new Commander (Mr. Goina), in that they (Defendants):

(a)	Did not follow the procedures in s 7 of the Defence Act 1974 in conducting their meeting on 15 December 2023 for the purpose of considering the revocation of the Plaintiff’s appointment and the appointment of the new Commander; and

(b)	The First Defendant did not consult with the PSC in accordance with s 193 (1) and (3) of the Constitution which requires the NEC to consult with the PSC before appointing a Chief of the Defence Force.

THE LEGAL FRAMEWORK

17.	A close examination of the governing legal framework namely s 6 of the Defence Force Act 1974 and s 193(3) of the Constitution, shows where the Defendants went wrong. I reproduce the said framework for convenience below:

18.	Section 6 of the Defence Force Act 1974 provides that: 

“COMMANDER OF THE DEFENCE FORCE

1)	An office of Commander of the Defence Orce is hereby established.

2)	The Commander of the Defence Force-

a.	Shall be appointed in accordance with Section 193 (appointments to certain office(s) of the Constitution; and

b.	May be suspended or dismissed at any time by the Head of State, acting on advice, by notice in the National Gazette.

3)	The terms and conditions of appointment of the Commander of the Defence Force are as determined by the Head of State, acting on advice, and, except where the contrary intention appears, Part VII does not apply to or in relation to the Commander.

19.	Section 193 of the Constitution provides that:

“193. APPOINTMENTS TO CERTAIN OFFICES

(1) 	This section applies to and in respect of the following offices and positions: -

(a)	All offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and

(b)	The offices of the members of the Boundaries Commission; and

(c)	The office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d)	The offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and

(e)	The office of Commissioner of Police; and

(f)	The office of the Commander of the Defence Force; and

(g)	The office of Secretary to the National Executive Council; and

(3)	all appointments (whether temporary or substantive) to which Subsection 1(d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council give after consultation with Public Services Commission. (emphasis mine)
                                                                                                                                                             
20.	During arguments Counsel for the First, Second and Fourth Defendant conceded that the Public Services Commission was not consulted as required by law.

21.	Mr. Dusal learned Counsel for Mr. Goina, the Third Defendant conceded that there was no evidence that the Public Service Commission had been consulted, although he sought to suggest that to the extent that the First Defendant said it noted that the Public Service Commission was consulted and  a reference by the State Solicitor to the same effect, namely that the Public Service Commission endorsed the recommendations leading to the decision of the Second Defendant, meant that indeed the Public Service Commission was consulted. In my mind those references Mr. Dusal sought to rely on are not proof that the Public Service Commission was consulted.

22.	On the evidence, there is no evidence to suggest that the Public Service Commission was consulted.

23.	I note that s 193 of the Constitution does not expressly deal with the issues of removal of the Commander. However, I agree with the submission of Mr. Kopunye, learned Counsel for the Plaintiff that by virtue of s 36 of the Interpretation Act 1975, the power of the Head of State under s 6 (3)(b) of the Defence Act to remove or suspend can only be exercised subject to the same conditions to which the exercise of the original power of appointment was made. Section 193 of the Constitution being the original source of power to appoint. (See also: Ilau v Somare (2007) N5511; Philip Aeava v The State (2001) N2136; Eichon v Ninikin (1989) PNGLR 222).

24.	I find as a fact, on the evidence, that the Defendants committed an error of law or acted ultra-vires the provisions of section 193(3), of the Constitution in removing the Plaintiff as a Commander of the Defence Force.

25.	As a result of committing the error of law and acting in breach of section 193(3) of the Constitution, the decision to revoke the Plaintiff’s appointment was unlawful.

26.	On the evidence I am also satisfied with respect to the meeting of the Defence Council on 15 December 2021, the resolution of the Council upon which the First Defendant then relied in making its decision of 15 December 2021 and its subsequent advice to the Head of State was tainted with illegality. 

27.	Pursuant to the provisions of s 7 of the Defence Act (Chapter 74) the Defence Council consists of three (3) persons, namely the Minister for Defence, the Secretary for Defence and the Commander of the Defence Force. On the 15 December 2021 the Commander of the Defence Force was the Plaintiff.

28.	Further, on the evidence, it is clear, with respect of the meeting and agenda of the Defence Council, that the said meeting did not meet the requirements set out in Section 7 of the Defence Act, which provides that:

(a)	Copies of submissions on agenda of the Defence Council must be circulated by the sponsor of the agenda member of the Defence Council seven (7) days in advance (s7(5)(d));

(b)	Notice of the Defence Council agenda must be given twenty-four (24) hours in advance to each member (s 7(5)(c));

(c)	Orders /resolutions of the Defence Council must be signed by all three (3) members for it to have effect (s7(7)).

29.	My conclusion that the Defendants committed an error of law essentially concludes this matter in that the decision is liable to be quashed for that reason alone.

30.	However, for completeness and since learned Counsel for the parties dealt with the other equally weighty ground of natural justice, I will discuss same briefly.

NATURAL JUSTICE

31.	The Plaintiff argues that the Second Defendant, by revoking his appointment before his term expired was an adverse decision that negatively affected his reputation and that Section 59 of the Constitution, in those circumstances, obliged that he be afforded a fair hearing. This was not done.

32.	The Defendants say that the revocation of the Plaintiff’s appointment as the Commander of the Defence Force was not based on any wrong he had done, as to require that he be heard, but rather that the revocation was done in “the best interest of the State” and to facilitate his redeployment as the new High Commissioner, a post he had not expressed any interest in.

33.	The principle of natural justice that includes the right to be heard rests on solid logic and historical foundation.

34.	The principle of natural justice is sacred. In Papua New Guinea it is a constitutional right and has to be given due recognition as a constitutional instruction or imperative.

35.	The duty to act fairly is sacred. It is a principle of divine justice that is traceable to the events that occurred in the Garden of Eden – where Adam was afforded a hearing before being condemned.

36.	The principle of natural justice is entrenched in the Constitution of Papua New Guinea (PNG). Section 59 of the Constitution of PNG provides.

“Principles of natural justice.

(1)    Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2)    The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

37.	In this jurisdiction the significance of natural justice was highlighted in several cases (See for example, Kevi v the Teaching Service Commission [1997] PNGLR 659; Iambakey Okuk v Gerald Fallscheer [1980] PNGLR 274; Ombalo v Inguba [2004] PNGLR 535; Sausau v Kumgal [2006] N3253; Ilau v Somare [2007] PGNC 265; N5511; Koki v Inguba [2009] N3785; Marat v Hanjung Power Ltd [2014] SC 1357; Kaiyo v Pawa [2015] SC 1469).

38.	In my mind, revocation or termination of an individual’s employment is a grave matter. It is a decision that cannot be taken lightly or without affording the Plaintiff the right to be heard.

39.	In the case of Smith v Texas, 233 US 630 at 641, the Court stated that:

In so far as a man is deprived of the right to labour his liberty is restricted, his capacity to earn wages and acquire property is lessened and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling.” (See also Arnett v Kennedy, 416 U.S. 134 (1974); Perry v Sindermann, 4008 U.S. 593 (1972); Bell v Burso, (420).

40.	I agree that the way the Plaintiff was removed, before his term expired, was an adverse decision with negative reputational implications. He should have been afforded the opportunity to be heard. He was denied that right. Section 59 of the Constitution was clearly breached. The breach renders the decision to revoke his appointment unlawful.

41.	Having concluded that the decision of the First and Second Defendants was unlawful, it is not necessary to interrogate the other grounds relied upon by the Plaintiff to quash the decision to revoke his appointment.

42.	The Plaintiff does not seek to be reinstated. He seeks damages as particularized in his Order 16 Rule 3 (2)(a) of the National Court Rules Statement (Amended).

43.	Order 16 Rule 7 of the National Court Rules entitles the Plaintiff to plead and claim damages.

COSTS

44.	Costs are a matter of the discretion of the Court. They usually follow the event.

45.	The Plaintiff prays for costs on a solicitor/client basis. I will grant this prayer because this litigation was unnecessary and could have been avoided. The First Defendant was made aware of the requirements of section 193 of the Constitution and decided to ignore such sound advise.

46.	It is clear, on the evidence, that the Plaintiff, through his lawyer, sought to resolve this matter outside Court amicably, but the Defendants were not interested. This even led to the Plaintiff’s lawyers warning that if the matter is not resolved amicably, they would seek costs of proceedings on a full indemnity basis (p. 84 of the Review Book).

47.	Costs on solicitor/client scale are therefore justified, and I will in due course award same.

48.	In the result the Court orders:

1)	Pursuant to Order 16 Rule 1(1) of the National Court Rules the following impugned decisions be declared null and void:

(a)	The decision of the Second Defendant made on 21 December 2021, acting on advice of the First Defendant by its decision of 15 December 2021 to:

i.	Revoke the appointment of the Plaintiff made on 14 June 2018 as Commander or the Papua New Guinea Defence Force;

ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;

iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

(b)	The decision of the First Defendant made on 15 December 2021, in a Special Meeting advise the Head of State to:

i.	Revoke the appointment of the Plaintiff as Commander of the Papua New Guinea Defence Force;

ii.	Appoint Colonel Goina as Commander of the Papua New Guinea Defence Force for a period of four (4) years;

iii.	Appoint the Plaintiff as the High Commissioner of Papua New Guinea to New Zealand.

2)	Pursuant to Order 16 Rule 1(1) of the National Court Rules an order in the nature of certiorari to bring the above-named impugned decisions to this Honourable Court and to quash the decisions in their entity.

3)	An order pursuant to Order 16 Rule 7 of the National Court Rules that the Defendants pay the Plaintiff damages, the assessment of such damages to be listed on a date and time to be fixed by the Court.

4)	The Defendants pay the Plaintiff’s costs in a solicitor/client basis to be agreed or taxed.

5)	The assessment of damages is adjourned to a date to be fixed by the Court.

6)	Time is abridged.
_______________________________________________________________
Lawyer for the plaintiff:	Kopunye Lawyers
Lawyer for the first & second defendants: Solicitor General
Lawyer for the third defendant:		Millenial Lawyers
Lawyer for the fourth defendant:	Emmanuel Lawyers