Kairi v Namaliu [1990] PGNC 62; N972 (23 October 1990)

Unreported National Court Decisions

N972

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS. NO. 1387 OF 1990
JACOB KAIRI
V
RABBIE NAMALIU
FIRST DEFENDANT
SUSUVE LAUMAE
SECOND DEFENDANT
GAUDI DADI
THIRD DEFENDANT
WEP KANAWI
FOURTH DEFENDANT
INDEPENDENT STATE OF PAPUA NEW GUINEA
FIFTH DEFENDANT
GULF PROVINCIAL GOVERNMENT
SIXTH DEFENDANT

Waigani

Brown J
23 October 1990

DEPARTMENTAL HEAD - Revocation of Appointment - Re-appointment - Gazettal of instrument of revocation of appointment - Whether Executive Act - Injunction - principles relating to application made ex-parte

Plaintiff appointed by Prime Minister pursuant to s 50 of the Organic Law on Provincial Governments as Departmental Head. By instrument “Revocation of Appointment”, the Prime Minister following proper procedures revoked the appointment of the plaintiff and appointed second defendants as Departmental Head of the Gulf Province.

On Ex-parte application for injunctive orders preventing defendants from publishing an instrument of revocation of appointment and further directing all defendants from treating the second defendant as Departmental Head.

Held:

(1) Tue Coant c inotrfere with with the exercise of the Prime Minister’s discretionary power - a valid executive act of re-appointment of Departmental Head.

(2) ټ Tze gal ttal of thef the instrument is publication of the fact of the act of revocation. It is not an executive act and does not bear on the validity of theting f revon.

(3) #16e; The Thncirinciples tles to be considered are:-

(a) ;&#16 plaintiff tiff succeeucceeds in the action, will damages be an adequate remedy for the loss sustained between the application and the trial.

Supremrt Pre 198cobs Sweet & Maxwell 1988 Book 1 Or 1 Order 2der 291/1/91/1/2 on p.472 Kila Wari Anares v. Gabriel Ramoi & Sir Kingsford Dibela.

(b) ـ Since rnce remedy sought is discretionary, regard must be had to the balance of convenience.

(4) & The cause of action is nois not apparent on the application and the material matters taini revocation are nare not clot clearly shown.

(5) Damages are aq ade ratedy medy and considering the balance of convenience, the application is dismissed.

Cases Cited:

Kila Wari v. Gabriel Ramoi and Sir Kingsford Dibela

kai WBagi amp; Douglas Baim Baimo v. o v. PattePatterson Lowa and the State (OS.133/90) Unnumbered NC judgment of 1990.

Notice of Motion

Ex-parte application for injunctive orders by way of notice of motion.

Counsel:

P. Hayes, for applicant (Kirkes)

No appearance for defendant

REASONS FOR DECISION

Exparte application for injunctive orders.

BROWN J: This matter comesre the cohe court by way of notice of motion seeking to prevent the first, third, fourth and fifth defendant from publishing an instrument of revocation of the appointment of the plaintiff as epartment head of the Gulf Gulf Province and further, an order directing all the defendants from treating the second defendant as the department head.

The affidavit of the plaintiff recites facts of his appointment by the Prime Minister pursuant to s 50 of the Organic Law on Provincial Government as such departmental head. In his affidavit he further alleges the preparations of an employment contract (not executed) in accordance with a document annexed to his affidavit, generally on terms and conditions provided for by General Order 11 issued pursuant to s 53 of the Public Services Management Act 1986. by instrument dated 17 October 1990 “Revocation of Appointment” the Prime Minister exercising powers conferred by s 50 of the Organic Law on Provincial Government, on the recommendation of the Gulf Provincial Government after consultation with the Public Services Commissions, revoked the appointment of the plaintiff and appointed in his stead Susuve Laumaea, the second named defendant to act for the purposes of s 50 in relation to the Gulf Provincial or more succinct Susuve Laumaea is deemed to be the department head of that province.

The principles to which I have regarding considering this motion are those well settled by this Court and touched on [ie. Supreme Court Practice 1988 (Jacobs Sweet & Maxwell 1988 Book 1 Order 21/1/2 on p.472].

The principles have recently been applied for instance in the case of Kila Wari Anares v. Gabriel Ramoi and Sir Kingsford Dibela. As part of the Courts consideration I must asked whether if the plaintiff succeeds in the action, damages will be an adequate remedy for the loss sustained between the application and trial. From a perusal of the plaintiff’s affidavit am I to presume the action is one for judicial review of the purported revocation of appointment as written in the plaintiff’s ultimate para of such affidavit in support? No application has been filed, no written undertaking as to the damages has been given and, it seems, from the clear terms of the cases cited me, the Independent State of Papua New Guinea may be named as a party not Mr Rabbie Namaliu, the Prime Minister and first defendant so named.

The gazettal of the instrument is publication of the fact of the act of revocation. I can see no good purpose of in the plaintiff’ claim to stop publication. it does not bear on the validity of the existing act of revocation. The Head of the State by virtue of ss 86(2), 94(1)(a) & 247(2) of the Constitution is a immune from judicial proceedings with respect to the exercise and performance of the powers and responsibilities of his office. Consequently damages are an alternative remedy.

I must have regard also to the balance of convenient since the remedy sought is discretionary. The plaintiff has not annunciated his claim clearly so as to plead a cause of action which I may permit to be filed for instance at a later time. The plaintiff also has not it seems disclosed all material matters appertaining to his revocation of appointment. I have reason to suppose that this transpired over a period of time when I have regard to the letter by the Premier of the Gulf Provincial Government to the Secretary, Department of Personnel Management, Central Government Offices dated the 16 October 1990, being annexure “D” to the plaintiff’s affidavit.

Paragraph 1 of that letter for instance states -

“I’m compelled to write to you for your sympathetic consideration and your direct intervention in expediting arrangements for the conversion of Mr Susuve Laumaea to full public services status in order to enable him to take up his appointment as the new Secretary of the Department of Gulf forthwith.”

And at paragraph 3 -

“for over a 3 year, the Department of Gulf has gone through a period of uncertainty even though the incumbent (Mr Kairi) has been in office.”

At paragraph 8 of the plaintiff’s affidavit, the plaintiff says -

“as far as I’m aware, no formal allegations have been made against me regarding any of the grounds of termination set out in clause 18 of the Terms and Conditions of the said contract of employment and certainly none of the disciplinary proceedings referred to in clause 27 of the Terms and Conditions of Contract of Employment have been carried out, such procedures been a prerequisite to any power of termination contained in clause 18 and clause 11.21 with the said G.O. 11.”

If the plaintiffs claim is in fact for breach of contract of employment or arises out of the appointment of another officer, (an executive act) or the plaintiff intends to impune the Prime Minister’s executive act, then such cause may need to be pleaded in other proceedings. It is not apparent on this application.

But I make no comment on the efficacy or otherwise of any other proceedings which the plaintiff may contemplate.

The gazettal is not the executive act. Serious consequences would flow if the Court was to interfere with the apparent valid executive act of re-appointment of the second defendant, Susuve Laumaea. To interfere with the most recent appointment would be to create uncertainty in the present incumbent, and others in relation to his powers to act as departmental head.

I have regard to the reasoning of my brother Judge Sheehan J. in Aikai Waima Bagi Oni and Douglas Baimo v. Patterson Lowa and the State (OS.113/90) where he says -

“the prime issue is, can the Court issue an injunction to prevent a Minister of State from exercising a discretion that he is empowered by Law and Parliament to make. The short answer is that the Court cannot interfere with the exercise of a minister’s discretionary prerogatives.”

I also have regard to the decision of the Supreme Court in the cases cited and decline to exercise my discretion to grant injunctions or other orders in the terms sought. I should say I am not satisfied damages would not be an adequate remedy.

Application shall be dismissed

Lawyer for the plaintiff: Kirkes

Lawyer for the defendant: (No appearance)