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1,360 PNGDFESM Association Incorporation Comprising Retrenched Servicemen of PNG Defence Force as listed in the Schedule v Lupari [2025] PGSC 66; SC2769 (25 August 2025)

SC2769

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 61 OF 2024

BETWEEN:
1, 360 PNGDFESM ASSOCIATION INCORPORATION COMPRISING RETRENCHED SERVICEMEN OF THE PNG DEFENCE FORCE AS LISTED IN THE SCHEDULE
Appellant

AND:
ISSAC LUPARI IN HIS CAPACITY AS CHIEF SECRETARY TO THE GOVERNMENT AND NATIONAL EXECUTIVE COUNCIL
First Respondent

AND:
BRIGADIER GENERAL GILBERT TOROPO IN HIS CAPACITY AS COMMANDER OF THE PNG DEFENCE FORCE
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: HARTSHORN J, PURDON-SULLY J, ANDELMAN J
25 AUGUST 2025

SUPREME COURT APPEAL –Prime Minister and National Executive Council Act 2002, statutory interpretation, whether there is a statutory duty, National Executive Council Decisions by the National Public Services

Facts
The appellant appealed against part of the decision of the National Court on the basis that the trial judge erred in fact and law by failing to find that the first respondent owed the persons represented by the appellant a statutory duty to pay outstanding retrenchment entitlements of an allowance for housing and an allowance for hardship. The respondents submitted that the trial Judge did not err in law or fact in relation to the matter and appropriately arrived at the decision.

Held:
1.The First Respondent does not owe a statutory duty to the persons represented by the Appellant.
2. The three National Executive Decisions in 1996 and 2001 did not authorise the payment of the housing allowance or the hardship allowance as part of the retrenchment entitlements.
3. The appeal is dismissed.
4. The Appellant shall pay the Respondents’ costs of and incidental to this appeal, to be taxed if not agreed.

Cases Cited
Black Clawson International Ltd v Papierwerke Waldhof-Aschaffeburg AG [1975] UKHL 2; [1975] AC 591
Inakambi Suingorom v John Kalaut [1985] PNGLR 238
R v Secretary of State for the Environment, Transport and the Regions; Ex parte Sparth Holme Ltd [2000] UKHL 61; [2001] 2 AC 349

Counsel
Mr A Furigi for appellant
Ms P Yom for the first, second and third respondents

1. BY THE COURT: This is an appeal from a decision of the National Court delivered on 12 April 2024 in proceedings WS No 727 of 2018 dismissing the applicant’s application that the Chief Secretary had a statutory duty under the Prime Minister and National Executive Council Act 2002 (PM & NEC Act) to ensure payment of certain redundancy payments.
   
2. For the reasons that follow, the appeal is dismissed.
   

Background

3. Between 2001 and 2007, 1,360 members of the Papua New Guinea Defence Force (PNGDF Members) were retrenched.
   
4. Specified redundancy entitlements were paid to the PNGDF Members on retrenchment. The PNGDF Member’s claimed below that they were also entitled to be paid an allowance for housing, K 50, 000 (Housing Allowance) and an allowance for hardship, K 10, 000 (Hardship Allowance), that is, an additional K 60, 000 to each of the 1,360 PNGDF Members.
   
5. The appellant claimed that there was an entitlement to the Housing Allowance and the Hardship Allowance as they were approved in the NEC Decision 26/96 and expressly endorsed in NEC Decision 213/01 and NEC Decision 239/01 (together the NEC Decisions).
   
6. The appellant claimed that once the NEC decisions were made, the Chief Secretary had a statutory duty pursuant to the PM & NEC Act to make these payments to the PNGDF Members.
   
7. The trial judge found that that the PM & NEC Act did not place a statutory duty on the Chief Secretary as to the PNGDF Members and that the applicant did not satisfy the court that as a matter of fact the NEC Decisions included the Housing Allowance and the Hardship Allowance. Thirdly, the trial judge found that the PNGDF Members were misled in media reports that the Housing Allowance and the Hardship Allowance would be paid to them and awarded them damages for distress and anxiety.
   
8. The appellant appeals against the first two findings. Grounds a) and b) assert that the primary judge erred in fact and law in failing to find that the NEC Decisions did approve the payment of the Housing Allowance and the Hardship Allowance. Ground d) contends that the trial judge placed ‘substantial reliance’ on two letters which postdated the retrenchments. The first letter was from the Chief Secretary dated 8 January 2013 and the second is a letter from the Ombudsman Commission dated 2 May 2024.
   
9. Ground c) and e) assert that the trial judge erred in law by finding that the first respondent owed the PNGDF Members no statutory duty under the PM & NEC Act.
   

Appeal Grounds c) and e) – Prime Minister & National Executive Council Act 2002 creates a statutory duty on the Chief Secretary to implement NEC decisions for the benefit of the PNGDF Members

10. These grounds of appeal relate to whether the first respondent pursuant to the PM&NEC Act owed a statutory duty to the PNGDF Members. The appellant contended that such a duty is owed pursuant to a liberal and purposive interpretation applicable to statutory interpretation in Papua New Guinea.
11. The appellant submitted that these provisions impose a positive duty on the Chief Secretary to act, that this duty was owed to the PNGDF Members because the decision impacted on them and that non implementation of NEC Decisions is a breach of this duty.
    
12. The appellant submitted that the primary judge erred because she failed to adopt a purposive interpretation and disregarded the context and legislative intent of the NEC Decisions and the PM&NEC Act.
    
13. The appellant did not identify specific words in the PM&NEC Act that it relied on. Reference was made to the Act’s preamble which is in the following terms.
    

Being an Act –

(a) to implement Section 143 (Acting Prime Minister) of the Constitution by providing for –

(i) a Deputy Prime Minister; and

(ii) the Deputy Prime Minister or another Minister to be the Acting Prime Minister in certain circumstances; and

(b) to provide for the suspension from office of the Prime Minister pending an investigation for the purposes of Section 142(5) of the Constitution; and

(c) to provide for the National Security Council and the National Security Advisory Committee; and

(d) to provide for the establishment and functions of the Department of the Prime Minister and National Executive Council; and

(e) to establish the office of Chief Secretary to Government and to provide for its functions and powers; and

(f) to provide for the office of Secretary to the National Executive Council and for its functions and powers; and

(g) to provide for the establishment of the Central Agencies Co-ordination Committee and for its functions and powers; and

(h) to provide for implementation of decisions of the National Executive Council; and

(i) to repeal the Prime Minister Act 1975, and for related purposes,

14. The appellant submitted that subparagraph (h) meant that decisions of the National Executive Council can be enforced by those people affected by them and as such there was an enforceable duty created on the Chief Secretary to persons subject to the decisions of the National Executive Council.
    
15. Reference was also made to s Schedule 1(11) to 18 which states that regarding the functions of the department it is ‘primarily responsible for managing all policies relating to the operation of the Government.’
    
16. The appellant relied on s 20, which sets out the Chief Secretary’s functions to the government.
    
    20. FUNCTIONS OF CHIEF SECRETARY TO GOVERNMENT.

The functions of the Chief Secretary to Government are –

(a) to be the principal adviser to the Prime Minister and to the National Executive Council; and

(b) to co-ordinate policies and initiatives of the National Executive Council; and

(c) to ensure that decisions, directions and policies of the National Executive Council are implemented by the National Public Service and by public bodies; and

(d) to ensure that the National Public Service and public bodies perform effectively and are accountable to the National Executive Council and to the Parliament; and

(e) to oversee public sector reform; and

(f) such other functions as are determined by the National Executive Council, or any other law.

17. The appellant submitted that this provision created a private right of action for the persons represented by the applicant to enforce the obligations placed on the Chief Secretary.
18. The appellant relied on s 21 which is in the following terms:
    

POWERS OF THE CHIEF SECRETARY TO GOVERNMENT.

(1) The Chief Secretary to Government may at any time, for the purpose of the performance of his functions under this Act or any other law –

(a) enter premises occupied or used by –

(i) a Department; or

(ii) a Provincial Government; or

(iii) a public body; and

(b) question a person who appears likely to have information relevant to the functions of the Chief Secretary to Government; and

(c) require any person to provide information relative to the functions of the Chief Secretary to Government; and

(d) require any person to produce documents within his possession or subject to his control where such documents are relevant to the functions of the Chief Secretary to Government; and

(e) make and retain copies of any document produced under Paragraph (d); and

(f) issue direction relative to his functions to a Departmental Head and to the head of a public body.

(2) All Departmental Heads, heads of public bodies and officers of the National Public Service and of public bodies shall –

(a) co-operate with the Chief Secretary to Government in the performance of his functions and the exercise of his powers under this Act; and

(b) comply with any directions issued under Subsection (1)(f).

19. Reliance was placed on ss 21(f) and 21(2) to assert that these provisions created a statutory duty on the Chief Secretary to the Government and National Executive Council.
    
20. All statutes must be given a fair, large and liberal construction and interpretation to ensure that the purpose or object of the law is fulfilled. In interpreting laws, courts must ‘give paramount consideration to the dispensation of justice’; see s 109 (4) of the Constitution of the Independent State of Papua New Guinea; Inakambi Suingorom v John Kalaut [1985] PNGLR 238, 241 (Kidu CJ).
    
21. The purpose or object of the law can appear from an express statement in the relevant statute. The purpose may also be found by an inference from the terms of the statute and by proper reference to extrinsic materials. The legislative intention is the ‘objective’ intention by the use of the language; R v Secretary of State for the Environment, Transport and the Regions; Ex parte Sparth Holme Ltd [2000] UKHL 61; [2001] 2 AC 349, 397 - 398 (Lord Nicholls); Black Clawson International Ltd v Papierwerke Waldhof-Aschaffeburg AG [1975] UKHL 2; [1975] AC 591,613 (Lord Reid), 645 (Lord Simon).
    
22. The purpose of the statute is disclosed by the meaning of the words used. Statutory construction is always a text based activity and the task of construction begins and ends with the text itself. The court cannot attach to a statutory provision, assessed as the natural and ordinary meaning of the words read in the context in which they appear, a meaning which the words of the provision cannot reasonably bear.
    
23. As Kidu CJ stated at 241-242 in Inakambi Suingorom v John Kalaut:
    

A clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid.

...

Where Parliament says in an Act that dogs are to be registered if they are pets, a court cannot say that dogs means pigs simply because pigs are sometimes raised as pets.

24. The purpose of the PM&NEC Act is for the establishment and administration of the Executive, including the Offices of the Prime Minister, Deputy Prime Minister, National Executive Council and the Security Advisory Council. There is nothing in ss 18, 20 and 21 or the Act read as a whole which would suggest that the purpose or object of the law was to create a statutory duty on the Chief Secretary to the persons represented by the appellant. Sections 20 and 21 place duties on the Chief Secretary to the Prime Minister. The headings to the sections are consistent with the clear and unambiguous meaning of the words in these sections.
    
25. A fair reading of the decision demonstrates that the primary judge did consider the purpose of the PM&NEC Act in [32], which was not challenged on appeal.
    
26. The appellant’s submission that the court ought to infer or read into the PM&NEC Act an obligation on the Chief Secretary to any person impacted by a NEC Decision was rejected because there is no provision which could ground such an inference. The primary judge was correct to consider that the terms of the PM&NEC Act did not establish a duty of care to the people represented by the appellant.
    
27. At paragraphs [33]-[35] the primary judge stated:

33. Extending statutory negligence in the manner submitted by the plaintiffs in my view is stretching the concept of statutory negligence too far. I find the argument remote and contrary to the intention of Parliament for the PM&NEC Act and the responsibilities of the Chief Secretary.

34. Parliament has intentionally provided a statutory avenue to commence actions against the State for torts or wrongs committed by its officials or agents and the legislation are the Wrongs Miscellaneous Provisions Act Chapter 297 and the Claims By and Against the State Act 1996. Any action for negligence would lie under this legislation or alternatively breach of statutory duties may be commenced under public law seeking judicial review of the public officials' actions or omissions.

35. Clearly, the Chief Secretary does not owe a statutory duty of care to the plaintiffs to ensure NEC decisions are implemented. His duty is to the Prime Minister and NEC, not to the plaintiffs nor any persons who may benefit from NEC decisions. As a result no statutory duty arises to create an actionable right to a cause of action in damages for the plaintiffs.

28. We can discern no error in the primary judge’s approach. She adopted a conventional approach to statutory interpretation by construing ss 18, 20 and 21 purposively in the context of the Act considered as a whole and with regard to the interests of justice. The appellant’s claim that the PM&NEC Act created a statutory duty towards its members fails because there is nothing in the text of the Act, considered within the purpose or object for which this Act was made, to give rise to any suggestion of a statutory duty towards the people which the appellant represents.
    
29. These grounds of appeal are dismissed.
    

Appeal Grounds a), b) and d) – NEC Decisions approved Housing Allowance and Hardship Allowance

30. These grounds of appeal challenge the trial judge’s finding that the NEC Decisions did not approve the Housing and Hardship Allowances as part of the retrenchment package.
    
31. There is no reference to the Housing Allowance and the Hardship Allowance in any of the three NEC Decisions.
    
32. At its highest, the appellant refers to the words in NEC Decision 213/2001 “Approved the application of the Termination Serials 1 to 9 as contained in the Manual of Personnel Administration at times of redundancy for the purpose of awarding retrenchment benefits for application to the current exercise whereby all eligible men retrenched from 1st of January 2001 will be paid retrenchment benefits.”
    
33. A copy of the Manual of Personnel Administration was not in evidence. At the hearing on appeal counsel for the appellant submitted that he had ‘strong instructions’ that a submission to the NEC by the Minister for Defence and the Minister for Public Service dated 20 January 1996 attached to it a form for calculating retrenchment benefits. This calculation form referred to the following benefits:
    1. Money in lieu of notice
    2. Money in lieu of leave
    3. Money in lieu of furlough
    4. Ex gratia payment
    5. Resettlement allowance
    6. Housing allowance
    7. Hardship allowance
    8. Repatriation expenses
    9. Contract gratuity
       
34. The calculation form had handwritten calculations on it and was not signed or dated. The primary judge found that the calculation form was unverified. We see no demonstration of error with this finding. There is an absence of evidence of when or who created the calculation form and whether it was a proposed or final form.
    
35. The submission to the NEC listed the following retrenchment benefits:
    1. Ex gratia payment
    2. 3 months pay in lieu of early release
    3. Money in lieu of furlough leave
    4. Money in leave of recreation leave
    5. Resettlement allowance including repatriation and resettlement allowance
       
36. As the primary judge correctly noted at [48], the Manual of Personnel Administration was not before her in evidence. The submission to the NEC the appellant relied on included explicit reference to retrenchment payments which did not include the reference to the Housing Allowance or to the Hardship Allowance.
    
37. There was insufficient evidence to prove that the NEC Decisions approved the payment of the Housing Allowance or the Hardship Allowance.
    
38. The primary judge’s decision at [37] to [53] carefully detailed the evidence before her and found that none of the NEC decisions specifically referred to the Housing and the Hardship Allowances and no such inference could be inferred from the words in the NEC Decisions. The primary judge referred to the letter from the Chief Secretary dated 8 January 2013 and the letter from the Ombudsman Commission dated 2 May 2024, documents relied on by the appellant, as part of the chronology as set out in [37]. The appellant’s submission that reference to these documents was ‘flawed and misconceived’ is rejected.
    
39. These grounds of appeal are dismissed.
    

Orders

1. The appeal is dismissed.
2. The appellant shall pay the costs of the respondents of and related to the appeal on a party/party basis, to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the appellant: Mr A Furigi
Lawyers for the first, second and third respondents: Ms P Yom