Gegeyo v Minister for Lands and Physical Planning [1987] PGNC 31; [1987] PNGLR 331; N635 (19 October 1987)

N635

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF BENSON GEGEYO, MARGARET MISSO,
BRIAN BELL AND SIR RAVU HENAO

V

THE MINISTER FOR LANDS AND PHYSICAL PLANNING

Waigani
Amet J

5 October 1987
19 October 1987

ADMINISTRATIVE LAW - Judicial review of Administrative Acts - Natural justice - Duty to observe - Revocation of appointment to statutory board - Scope of power of revocation - Duty to give reasons - Where duty to give opportunity to be heard in defence - Revocation of appointment to Land Board - No reasons given - Decision reviewed - Land Act (Ch No 185), s 6(3).

STATUTES - Interpretation Act - Statutory powers of appointment - No power to revoke or suspend appointment - Interpretation Act applied - Land Act (Ch No 185), s 6(3) - Interpretation Act (Ch No 2), s 36(1), (2).

REAL PROPERTY - Land Boards - Appointment of members - Power to revoke appointments - Scope of power - Application of principles of natural justice to exercise of power - Land Act (Ch No 185), s 6(3) - Interpretation Act (Ch No 2), s 36(1), (2).

The Land Act (Ch No 185), s 6(3), empowers the relevant Minister to make appointments to the Land Boards "for such periods to act in relation to land in such localities as he thinks necessary".

The Acts Interpretation Act (Ch No 2), s 36, provides as follows:

"(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointments was subject."

On an application for judicial review of the decision of the Minister to revoke four appointments to the Land Board of the National Capital District just 11 weeks after the appointments were made where the appointees were merely notified by letter that the "Minister has revoked your applications ...".

Held

(1) Section 36 of the Interpretation Act was to be applied to s 6(3) of the Land Act.

(2) Accordingly, the Minister had power to revoke or suspend an appointment made under s 6(3) of the Land Act; such power to be exercised for good cause according to law.

(3) The power to revoke or suspend an appointment, being a decision affecting the status of persons, the Minister was required to observe the principles of natural justice, to the extent at least of giving advice or notice in writing of the reasons for his proposed decision and if those reasons were likely to reflect adversely on the character, integrity or reputation of that person, then by giving that person an opportunity of being heard in his defence.

General Electric Co Ltd v Price Commission [1975] ICR 1 at 12.

(4) If an authority purporting to exercise statutory powers gives no reasons in a case where it may reasonably be expected to do so, the court may infer that it has no good reason for reaching its conclusions and may act accordingly.

(5) In the circumstances in the absence of any reasons at all for the revocation of the appointments, the Minister’s decision should be reviewed and as the reasons provided at the hearing were without substance or merit the ministerial decision should be revoked.

Cases Cited

General Electric Co Ltd v Price Commission [1975] ICR 1.

Application for Judicial Review

This was an application for judicial review of a decision of the Minister for Lands and Physical Planning to revoke four appointments to the Land Board of the National Capital District.

Counsel

G Powell, for the plaintiffs.
Z Gelu, for the defendant.
Cur adv vult

19 October 1987

AMET J: This is an application by the plaintiffs seeking judicial review of the decision of the Minister for Lands and Physical Planning affecting the four plaintiffs. The plaintiffs were appointed as members of the Land Board for the National Capital District on 2 April 1987 for a fixed term expiring on 31 March 1988. The appointments were effected by publication of the Instrument of Appointment in the National Gazette No G20 on 2 April 1987. On 22 June 1987 each of the plaintiffs was advised by a letter signed by Boe Mea acting Chairman of Papua New Guinea Land Board of the revocation of their appointments by the Minister. Each of them was advised by separate letter in the following terms:

"It is advised that the Minister has revoked your appointment as a member of the National Capital District Land Board under Section 6(3) of the Land Act (Chapter 185).

A notice of the effect will be published in the next of the National Gazette."

The Instrument of Revocation of appointments was published in the National Gazette No G40 on 25 June 1987. That notice revoked the appointments of the four plaintiffs and in their stead appointed four other persons to replace them on the National Capital District Land Board.

No other advice was given to any of the plaintiffs as to the reason or reasons for the revocation of their respective appointments up to the time of the hearing of this application. It was just on two months, three weeks from the time of their appointments to the time of the purported revocation of their appointments on 22 June 1987. The plaintiffs contend that their appointments to the Land Board for the National Capital District are valid appointments and that there are no sufficient grounds for the purported revocation of their appointments prior to the expiration of their term of office.

The plaintiffs claim therefore, that this Court grant relief by declaring that they were duly appointed as members of the National Capital District Land Board and are entitled to hold office until the expiration of the term of their appointments; secondly, an injunction restraining the Minister for Lands and Physical Planning from revoking the appointments; and thirdly, an injunction restraining the said Minister from appointing any persons to replace them on the Land Board for the National Capital District.

The defendant Minister at the time Micah Wes who is now no longer in Parliament filed an affidavit in response and in defence of this application on 3 August 1987. That is the only material and evidence upon which the defendant seeks to defend the decision now being challenged. I set out the whole of that former Minister’s affidavit from par (2):

"2. I revoke the appointment of the members of the PNG Land Board and the National Capital District Land Board on 12th June, 1987.

3. I had three (3) reasons for revoking the membership of the two (2) Land Boards stated above in No. 2.

4. First (1st) reason is that I found that there were more than one (1) members from one organisation which had showed the Board’s decision to show in favour of a particular section of the community thus creating a monopolistic situation.

5. Secondly there were a large Section of the Community at grass roots level which were missing out as a result of the above — see No.

4. To have a balance on the Board I decided to appoint members from these Section of the Community to ensure that they do get a fair hearing. To do that I had to revoke the then existing appointments.

6. The then Board members had also ventured into the procedure aspects during meetings without really concentrating on the proposal. I find this really unnecessary because this has resulted in unnecessary build up of backlog within the Department. If the Board cannot concentrate on the proposal before it and wish to judge the decision of the Department by going into the procedure then I will not entertain that.

7. For the reasons provided above I had the authority under Section 36 of the Interpretation Act (Chapter No. 2) to revoke the appointment of the membership of the N.C.D. Land Board and the PNG Land Board.

8. I had re-appointed Mr Desmond Mase of the N.C.D.I.C. on the N.C.D. Land Board again and I consider that is sufficient representation for that organisation." [sic].

The plaintiffs challenged the decision of the Minister on two main grounds. (1) That the Minister did not have the legal power to take such action to revoke appointments of members of the Land Board. (2) If power did exist for the Minister to exercise then it was improperly exercised and therefore is reviewable by this Court.

It is clear from the Land Act (Ch No 185), s 6(3), (under which appointments to the Land Board are made) that there is no specific provision for revocation, variance or altering of such decisions to appoint. However, reliance has been placed on s 36 of the Interpretation Act (Ch No 2) which provides as follows:

"(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointments was subject."

Counsel for the plaintiffs contended that this provision, however, did not avail the Minister in that there is clear restriction on the power to remove or suspend under these provisions. And that is, that the power is subject to the condition placed on the exercise of the original power of appointment under s 6(3) of the Land Act in this case. The conditions the plaintiffs contend are, "for such periods to act in relation to land in such localities as he thinks necessary". The plaintiffs submitted that because the appointments were made for fixed periods and for a particular locality, the appointments must run until the expiration of that period. And that the Minister had no power whatsoever to vary, remove or suspend such appointments.

The defendant’s counsel on the other hand contended that the Minister’s discretion to remove or suspend pursuant to s 36 is absolute and that he could do that at any time or for any reason he saw fit, and that he was not obliged to give notice or explain to any person the reasons for his exercise of discretion to remove, revoke or suspend the appointments.

I accept that s 36 of the Interpretation Act does apply to the construction of s 6(3) of the Land Act. Secondly, I find that the Minister does have the legal power to remove or suspend appointments made under s 6(3) of the Land Act pursuant to the powers enabling him by s 36 of the Interpretation Act.

I must now proceed to consider whether the exercise of that power and discretion is one that this Court can review. Counsel for the defendant Minister has not taken issue with the inherent review jurisdiction of this Court under the constitutional powers to review administrative decisions of Ministers and/or other administrative bodies. And so the question does not arise for determination because it has been sufficiently established by case authority that there is inherent jurisdiction to review administrative decisions. The only issue that remains therefore is to review the exercise of the discretion and power by the Minister as to whether or not it was properly exercised according to the principles of natural justice and fairness.

The bold submission of the defendant is that there is no requirement under the Act for the Minister to give notice or to give reasons for his decision or to hear the parties to be affected before exercise of his discretion. It is submitted that that discretion is absolute and the Minister need not justify to any person the reasons for his decision. In the alternative counsel appear to concede that pursuant to our Constitution and case authority dealing with minimum requirements of natural justice and fairness, if the Minister were required to give some written explanation for his decision, then the reasons advanced in the affidavit quoted above justified the action that the Minister had taken.

Suffice it to say that, in my view, the submission on behalf of the defendant that he has absolute unfettered discretion to appoint and dismiss, revoke or suspend at will cannot be accepted without qualification. Such a proposition is not acceptable in my view in the scheme of administrative and Constitutional laws that we have inherited. It is true that in this instance, unlike terminations or dismissal or revocation of appointments of officers who stand to lose financially, the four plaintiffs were appointed to this Land Board as representatives of a cross-section of the community without monetary reward. However, I do not consider that that fact denies them the right to be notified or be heard, if necessary, and be afforded the courtesy of being informed as to the reason or reasons for the abrupt termination of their appointments.

Each of these four persons have varied backgrounds. They have deposed in their affidavits to their standing in the community, the services they have rendered to the community and to the nation, their involvement in community activities, social welfare and voluntary community organisations. They are indeed persons of some repute in the nation and the national capital. It must also be remembered that they did not apply to be appointed to this Land Board but were invited by the Ministry and accepted the invitation to serve the National Capital and its people on the Land Board.

I consider therefore, that aside from the principles of equity and natural justice, the fact that these are men and a woman of some standing in the community and one assumes it was on the basis of their integrity and reputation that they were invited to serve on this Board, the least that is required would be to advise them of the reasons, if any, for the abrupt revocation of their appointments. However, I think that equity requires that the administrative tribunal should act fairly and observe the minimum requisites of natural justice.

It is stated at 400 of Equity: Doctrines and Remedies by R P Meagher, W M C Gummow and J R F Lehane (2nd ed, 1983) that:

"Administrative decisions may be declared inoperative on the ground that they have been reached in bad faith, or as the result of legally irrelevant considerations, or were made or activated by some improper purpose, or were made on the wrongful assumption of authority, or were otherwise vitiated."

The supervisory nature of the jurisdiction was stressed by Lord Denning in General Electric Co Ltd v Price Commission [1975] ICR 1 at 12, referred to at 199 of Review of Administrative Action by H Whitmore and M Aronson (1st ed, 1978). Lord Denning said:

"Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. But nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly. The courts will ensure that the body acts in accordance with the law.... If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding — so unreasonable that a reasonable person would not have come to it — then again the courts will interfere.... And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons — in a case when it may reasonably be expected to do so, the courts may infer that it had no good reason for reaching its conclusion, and act accordingly."

In the circumstances of this case it is my strong view, that if any administrative decision will or may affect the reputation, integrity or standing in the community of persons holding public office then the minimum requirement of fairness must be afforded that person or persons. I consider that that minimum requirement should be to give advice or notice in writing of the reasons for a decision proposed to be taken which will affect the status of such a person. And if that reason is likely to cast negative aspersions on the character, integrity or reputation of that person, then I consider that an opportunity should be given to that person to be heard before such a reason or reasons are relied upon as the basis for that decision.

In this case, I note, that at the time of the making of the decision to revoke the appointments of the four plaintiffs no reasons were forwarded or advised to the four plaintiffs. There has been no correspondence or advice produced in evidence to show that there was indeed some advice given to the Minister to enable or to cause him to take the decision he did. And so in the words of Lord Denning:

"If it gives no good reasons — in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly."

However, Mr Micah Wes the former Minister has filed an affidavit deposing to three grounds for revoking the appointments of the plaintiffs to the National Capital District Land Board. In par (4) he deposed to the first reason as being that there were more than one member from one organisation which had shown the Board’s decisions to be in favour of a particular section of the community thus creating a monopolistic situation. I take the organisation to which the former Minister is referring to be the National Capital District Interim Commission. As I said before there is no evidence produced by the Minister’s office, the Department or the Land Board, to support this allegation that the four plaintiffs were in fact invited and appointed to the Land Board, as representatives of the National Capital District Interim Commission. And, indeed, the fact is that only two of them have any association with the National Capital District Interim Commission (NCDIC). They are Benson Gegeyo who is the NCDIC’s manager and so one can presume that he may have been invited and appointed in that capacity. The other is Mr Brian Bell who is a Commissioner of the NCDIC of some years standing and also a member of various charitable and community organisations in the city. But there is no evidence that he was invited to become a member of that Land Board as a representative of the NCDIC. The other two plaintiffs have no association whatsoever with the NCDIC. Margaret Misso is an Education Officer who has a wide and varied background of community involvement such as with the Censorship Board, the Board of the Young Women’s Christian Association and the Catholic Women’s Group at Boroko. Sir Ravu Henao, similarly has no formal or informal association with the NCDIC. He is nationally known as a man of integrity and good repute. He too has been involved in a large range of community and church organisations. He had been a member of the Board of Sorgeri Senior High School, Port Moresby Technical College, the Boy Scouts Association, the Vice-Chairman of the Melanesian Council of Churches and Chairman of the Mercy Committee and is currently involved with the Bible Society of Papua New Guinea. He is an ordained Bishop of the United Church and the Solomon Islands and was honoured by Her Majesty the Queen by being invested with a Knighthood.

And so the first reason deposed to by the former Minister is without substance — I reject it. The four plaintiffs were not all members of and representatives of the NCDIC.

Secondly, the former Minister deposed that because the four plaintiffs represented the one organisation it had shown the Board’s decision to favour one section of the community thus creating a monopolistic situation. This contention needs only to be stated to demonstrate the fallacy in it. It has no substance, there is no evidence of any of the Board’s decisions in which these four plaintiffs participated and their voting to demonstrate how they showed any partiality toward one cross-section of the community.

Paragraph (5) of the Minister’s affidavit which says, "there were a large section of the community at grass roots level which were missing out as a result of the above", is again without foundation. In par (6) the deponent states that:

"The then Board members had also ventured into the procedure aspects during meetings without really concentrating on the proposal. I find this really unnecessary because this has resulted in unnecessary build up of backlog within the Department. If the Board cannot concentrate on the proposal before it and wish to judge the decision of the department by going into the procedure then I will not entertain that".

Once again there is no basis whatsoever for this — what I can only term as spurious contention by the former Minister — and I reject it as being without merit. The State has not attempted to produce evidence to support this.

The end result of all of this is that I find the former Minister’s affidavit to be a belated attempt at justifying an act which was quite without foundation in the first instance. The contents of the affidavit speak for themselves. They are without substance and I reject it.

The assertions in par (4) and par (6) in that affidavit are serious; they are questioning the integrity, honesty and reputation of the four plaintiffs who had only been on the Board, as I said, two months and three weeks, hardly sufficient time for them to have made decisions favouring one section of the community and hardly time to meddle with procedural aspects of the Department’s operations.

The plaintiffs have called evidence from the former long serving chairman of the Papua New Guinea Land Board, Mr George Kilamelona who is presently still employed in the Department. He gave evidence of an encounter with Mr Paul Torato who was a Minister in the former government and who was interested in an application before the Land Board. Mr Paul Torato had rung Mr Kilamelona on a number of occasions enquiring about the outcome of the application and had made allegations or threats to see to the removal of the Land Board if they did not inform him of their decision or consider favourably his application. He deposed that Mr Torato had threatened to see to it that the Minister revoked the appointments of the members of the Land Board.

In the end result the defendant has produced no evidence, no materials, no documents, no advice from his Department or from any interested persons to show that the conduct of the four plaintiffs warranted their summary dismissal as members of the Land Board for the National Capital District.

I accept the affidavits of the four plaintiffs that in the two months and three weeks since their appointment to the Land Board they had conducted themselves with the utmost integrity and honesty. I have nothing before me to doubt their integrity or their honesty. I find the assertions in the affidavit of Micah Wes to be without substance.

In the end result I am satisfied that the actions of the former Minister in revoking the appointments of the four plaintiffs for the reasons advanced in the affidavit to be wrong in principle without first giving some explanation to the plaintiffs before taking such action after such a brief period in office of two months and three weeks. I consider therefore that the Minister had erred in the exercise of his discretion. I believe that the decision was for reasons other than the purported reasons advanced in the affidavit which I have dismissed as being without substance whatsoever. The decision of the Minister in all the circumstances, I believe, was activated by improper purpose and without justification. I add generally, that in this whole area of administrative decision making involving the legislature, the executive government and other tribunals there is no room for arbitrary decision making which will affect the integrity and reputation of persons concerned without first giving some explanation and an opportunity to be heard to such persons.

I consider, however, that the Minister does have a discretion to revoke, dismiss or suspend a decision to appoint, for good cause after having given ample notice and advice to the person concerned before taking that decision. I do not accept the submission by the plaintiffs that the appointment is absolute until the expiry of that term. For good reasons such as misconduct in office, such as inability to perform and the like, there must be discretion in the appointing authority to suspend, vary or revoke such an appointment. With that qualification, therefore, in all the circumstances I grant the relief sought by the plaintiffs/applicants in the following terms:

1. I declare that the applicants are duly appointed as members of the Land Board of the National Capital District and are entitled to hold office until the expiration of their terms of appointment subject to the lawful discretion of the Minister to revoke, suspend or vary such appointment for good cause according to law.

2. The Minister for Lands and Physical Planning is restrained from revoking the said appointments without good cause, advice and notice being given of them to the plaintiffs.

3. The Minister for Lands and Physical Planning is restrained from appointing any persons to replace the plaintiff on the Land Board.

Orders accordingly

_________________________

Lawyer for the plaintiffs: G Powell.
Lawyer for the defendant: State Solicitor.