Pupune v Ivarato [1997] PGNC 35; N1539 (4 April 1997)

Unreported National Court Decisions

N1539

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 399 OF 1996
BETWEEN:
STEVEN PUPUNE & 7 ORS - Plaintiffs
And:
AITA IVARATO-GOVERNOR OF EASTERN HIGHLANDS PROVINCE & CHAIRMAN OF PROVINCIAL EXECUTIVE COUNCIL - First Defendant
And:
PETER BARTER, MINISTER FOR PROVINCIAL & LOCAL LEVEL GOVERNMENT - Second Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Third Defendant

Mount Hagen

Lenalia AJ
21 March 1997
4 April 1997

ADMINISTRATIVE LAW - Judicial Review - Application for - Judicial review of administrative acts - Application filed more than one year two months since date of termination.

PRACTICE AND PROCEDURE - Application for Leave to apply for judicial review - Administrative action by the Governor already declared null and void - Whether leave should be granted notwithstanding the prescribed time limit of 4 months has expired - Relevant consideration under National Court Rules O. 16 r 4 (1) (2) discussed.

JUDICIAL REVIEW - Application for - Ex parte proceedings - Observation on whether Counsel for Second Respondent should be granted leave to appear and make submission

Cases Cited:

The following cases are cited in judgement:

Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122

Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch. 109

NTN Pty Ltd v The Board of Post & Telecommunication Corporation & 2 Others [1987] PNGLR 70

Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153

Amadio Pty Ltd v The State & Others [1992] PNGLR 218

Counsel:

P Doa for the Applicants

K Kot for the 2nd Respondent

4 April 1997

LENALIA AJ: This is an application for leave to apply for judicial review of the decision made by the First Respondent in which the eight (8) applicants were revoked by the first respondents from the Eastern Highlands Capital Authority Board on 1st of April 1995. They had been elected offi office pursuant to S. 19 of the Local Government Act Ch. No. 57 and were to hold office for 3 years in accordance with S. 20 of the same act. They were teted some 5 mon5 months prior to their terms expired. This applin is made pursuaursuant to O. 16 Rule 3 of the National Court Rules 1983. Should leave be granthe aphe applicants into appr the following oing orders:

“1. &#160ve ba granteranted to d to the Plaintiffs to apply for JudiReview of the Second Defendants’ decision (details anls and date of decision not disclosed to the Plaintiffs) made last year thrportto rethe appointmointment oent of thef the Plaintiffs, as members of the Eastern Highlands Capital Authority Board.

2. ;ټ An orde order in t in the nature of certiorari to bring up to into this Court and quash the decision of the Second Defe, madt yea5, to revoke the appointments of the Plaintiffs as members of Eastern Hern Highlaighlands Cnds Capital Authority Board, to reappoint new Board members as being null and void of no effect.

3. &#A60; ladecionathat the Plhe Plaintiffs are the lawful Interim Members of the Eastern Highlands Capital Authority Board.

4. ;& The tiffsin e of tsternstern Highlands Caps Capital ital AuthoAuthority rity BoardBoard until the return of writs after the 1997 National Elections, being tterimod asided nder section 4 of the Local Lcal Level evel GoverGovernmentnment System (Interim and Transitional Arrangements) Act 1995.

5. The Plafntif r bestaind ased as members of Eastern Highlands Capital Authority Board.

6. ټ The appointment of t of the current Eastern Highlands Capital Authority Board by the Second Defendant is null and void and oeffec thatr appent be revoked.

7. ;ټ #160;#160; Th0; The The DefenDefendantsdants pay the Plaintiffs’ entitlements as members of the Eastern Highlands Capital Authority Board back-dated to the 30th September 1995.

8. ҈ eamagp>.9.

10.;ټ&#Any oorder as this Honourable Court deems fit.”

The aThe applicpplicants ants proviprovide five (5) grounds on which the relief is sought. five grounds are set out out in their varified Statement of Facts they are:

“(a) The First defe had no powers and or abused his powers to revoke the appointment of the Plaintiffs.

(b) ټ&#Put to t to ationutionurt Order dated 29th September 1995, the Plaintiffs were the lawful Boal Board merd membersmbers of the Eastern Highlands Capital Auty unteir appointment expired on 30th September 1995.

(c) By oper tionhef tcalLoevelLevel Government System (Interim and Transitional Arrangement) Act 1995, section 4, the Plaintiffs remain members of the Eastern Highlanpitalorityd unte retf Writs after the 1the 1997 N997 Nationational Elal Electioections.

(d) ـ Pursuant to the Nate National Court Order, referred above (paragraph 4 (b)) the Plaintiffs were in office on 19th July 1995, when the organic law came intoefand they sautomatically remain in office till thel the retu return ofrn of Writs after the 1997 National Elections.

(e) ـ&#1here were was bres breach of Natural Justice principle in that:

(i) ҈ There was nogatio itio in-efficiency, incapacity, impropriety, misconduct or any other unacceptable behe behaviouaviour against any of the Plaintiffs.

i)҈&ـ If above (i) exist then reen relevanlevant prot provisiovisions of the Adopted Act (i.e. the Local Government Act, Ch. 57) has not been complied with by the First Defendant.

(iii) &##160; No opportunittunity was gtven to the Plaintiffs to respond or reply to any allegations or charges.

(iv) ټ Nds reas reasons orns or no reasons at all were gio thentiffs for the dehe decision to revoke their appointment.&#nt.”

The applicants have quite properly seek relief under O. the . They comp complain lain of abuse or breach of S. 4 of the Local-Level Government System (Interim and Transitional Arrangements) Act of 1995. The relief to bght in thei their substantive application if leave is granted fall within the principles enunciated in the case of Kekedo v Burns Philp (PNG) Ltd and Others [1988-89] PNGLR 122. One of the prles enunciateciated by Kapi DCJ at page 124 says:

“The circumstances under which judicial review may be available are where the decision making auty exceeds its powers, commits an error of law, commits a br a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuse its powers. The purpose ofcial review view is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Jul review is concerned noed not with the decision making but the decision making...R.”

The applicants do not have a right for review unless, they have obtained leave under Order 3 (1) of the Rules. 160; The qon of whether orer or not leave should be granted is discretionary. In order for the applicants to succeed in this application, they must establish to the satisfaction of this Court certain factors to which I shall shortly . First they must establish they heave locus standi. For a pereeking decladecladeclaratory or injunctive orders, it was required that a person must be a member of the public who had suffered or is at risk of suffering particular direct and substantive da other than and different fent from that which was common to the rest of the public: Boyce v Paton Borough Coun Council [1902] UKLawRpCh 174; [1903] 1 Ch. 109. The applicants in thtant aant application must also show that they have a sufficient interest, see Order 16 r 3 Locandi actually involves lves the question of whethwhether or not an applicant has a sufficient interest in the matter to bring anon to this Court.

The second relevant consideration is does the applicant has “#8220;an arguable case”. This ves the question of w of whether an application raises any fundamental or serious legal issues. The decision of Wilson J i Pty Limited v The Board of the Post & Telecommunication Corporation and 2 Others [1987[1987] PNGLR 70 is relevant to this discus His Honour said at page 74:

“Applications for leave for judicial revieweview involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is fied that that the applicant has sufficient interest (O 16, 4 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is ied in d in O 16, 4 3(1).&#In exercising its discretioretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commisss v National Federation of Self-Employed and Small Businessinesses Ltd [1982] ACT 617, Lord Diplock set out the principles upon whichcourt should act and I respectfully adopt them. Lord Diplock sa 644:

&#82>‘If, on a quick perusal of the material then available, the court...thinks that it discloses what might on further consideration turn out to be an arguable case inur of granting to the appliapplicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. Thcretion that the court iurt is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’”

A third consideration that may be also involved at this stage and which is not based on O. 16 is a common law principle involving the question of exhaustion of administrative remedies. This principle raises thetquestion of whether administrative remedies have been exhausted and whether a party should be required to pursue a further appeal. In this respect I note the evidence before me that the following orders were made made in favour of the applicants by the National Court in Goroka on 29th ptember 1995. The three orders

&

“1. ҈& T60; Th0; The Firs First Defendant’s decision made on 1st April 1995 to terminate the Plaintiffs’ appointment as members of the Eastern Highlands Capital Authority Board and nt nebers is declared ared null null and void and of no effect whatsoever.

2. ټ&#T60; lae Plaintiffntiffs shall remain members of the Eastern Highlands Capital Board and continue to perform their duties as members of the Eastern Highlanpitalorityd effect 1st April 1995 until their prer present sent term term expires.

3. &ـ T6e Plae Plaintiffntiffs shall be paid their outstanding monthly allowances and other entitlements back-dated to 1st of April, 1995.

The Plaintifall hhe co#8221;

In a supplementary affidaffidavit dvit dated ated 7th January 1997 and filed 18th July, authorized by the seven applicants, Mr Pupune deposed in paragraph 4 that the National Court in Goroka on 29th September 1995 made a ruling that the applicants purported revocations were unlawful and the applicants were also ordered to be reinstated. However that decision was only effective until 30th of September 1995 when their 3 years term of appointment under S. 20 of the Local Government Act was due tire. I have not had the benefit of reading the full judgement s there anye any any copy of such judgement filed with the documents of this application. I su that by virtue of thof those orders, all applicants would have been paid their full entitls. Aificate of T of Taxation tion was filed by the Registry Office in Mount Hagen on 17 March 1997 to that effect.

It is not from the evidence put before this Court on this application what other administrative reme remedies has been sought by the applicants. What is clear is that Muneupune on behalf of the other seven applicants on 29th of June 1996, wrote to the Minister for Provincial and Local Level Government Affairs, Honourable Peter Barter expressing concern on him as Chairman and his board members continued services to the Eastern Highlands Capital Authority Board pursuant to the provision of the Local-Level Government System (Interim and Transitional Arrangement) Act of 1995. Mr P also wrote to the Hone Honourable Ivarato - Governor of Eastern Highlands advising him that, the National Court had made a decision on their purported termination which the Court found to be and void. Mr Pupune aune also rted tted that he himself and his board be automatically reinstated to office until return of the writs after the 1997 National Elections.

Honourable Peter Barter wrote back to the Governor of Eastern Highlands on the 18th of June 1996 advising the Governor that since the National Court had decided that the termination of the applicants was null and void and since Mr Pupune and his board were in office on the 19th of July 1995 which date the Local-Level Government System (Interim and transitional Arrangement) Act 1995 was certified Mr Pupune and his board members would automatically remain in office till the return of the writs after the 1997 National Elections. Whether or not correspondences between the applicants, the Minister for Provincial and Local Government Affairs can be accepted and viewed as an appeal pursuant to S. 8 of the Local Govet Act is a relevant consideration in so far as the questionstion of exhaustion of administrative remedies is concerned.

Apart from the requirement of a party having a sufficient interest, the only other criterion for determining whether to grant or refuse leave which criterion is specifically mentioned in O 16 r 4 is the time limit for bringing an application. Order 16 Ruleys:

&#

“1. ;ټ Subjectbject to thto 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 Such Subsection (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 thenmaking of thof the application; or

b) ; any reloef s oght on the athe aationn theion o Coure granting of the relief sought would be likely to y to causecause subs substantitantial haal hardship to, or substantially prejudicerightany p or would be detr detrimentimental toal to good administration.

2. In the case of an application for an order of certiorari to remove any judgement order, conviction or other proceedings for the purpose of quashing it, the releveriodthe pe of ule ( fourhs after fter the dthe date oate of thef the proc proceedineedings.”

As can be seen from Rule 4 of O. 16, there are two distinctive issues. The fis the question of &#of “undue delay”. The second iseffect of graf granting the leave sought and whether the grant of leave would be likely to cause substantial hardship to, or that would be prejudice to the righ any person or it would be detrimental to good administratitration. It is my view that undue delay per se would not justify a refusal of an application for leave. I am also required to consider whether granting this application would be likely to caubstantial hardship to the rights of persons affected or thor that it would be detrimental to good administration. Wilson J higted tportance ance of separseparating these two issues in NTN v The Board of the Post and Telecommunication Corporation and 2 Others :

“The next issue for me to consider, having found undue delay, is the grantinanting of the relief sought would cause substantial hardship or substantially prejudice the rights of any person or would be detrimental to good administration.”

Where does this application fit into the short discussion I have made so far. the appts were terminated ated on 1st of April, 1995. They took the reents to Coto Court and the Court made orders in favour of the eight applicants and declaredr termination null and void. At the time ordereddered tred their entitlements to be paid to them in full. The applicants commenced eroceedings by an originating summons filed on 6th of September 1996. Could it be argued that tri period from the date of rders i.e. 29th September 1995 which date orders were obtained for the applicants reinstatestatement to 6th of September 1996 when thginating Summons was filed be considered to be undue delay.elay. It would seem to me that the use of the word “may” in Rule 4 (1) implies that I still have a discretion to grant leave to the applicants notwithstanding that the period of four m has expired. In my view there ndue dela delay.

Having found there was undue delay, it raises another question of what constituted such a delay. Mune deposed in paragraph raph 8 of their supplementary affidavit that it was not until early 1996 that he became aware of the Plaintiffs right to remain and continue in office as interim members of the Eastern Highlands Capital Authority Board. He refers urces of materiaterials from which he learnt that he was entitled to stay on after expiry of their 3 years appointment. See newer clippings Exhibixhibits “E1” & “E2”. I think these articles prompted Mr Pupune to write to the Minister responsible.

The questions posed require reference to the Local-Level Government m (Interim and Transitional Arrangement) Act of 1995. None of twyers referred meed meed me to the Act although S. 4 of the Actreferred toed to in the evidence of the Application. Section 3 e Act pronouncesunces nation-wide applicability of thedurin interim period.&iod. The word &#822erim period&riod” is defined in S. 2 to meno men “the period on and from the da coming into operation of t of the Organic Law on Provincial Government and Local-Level Governments until the date fixed for the return of the writs following the next general election held after that date of coming into operation”.

Section 4 of the Act provides:

“4. Transitional Provision in Relation to Existing Local-Level Governments

(1) &##160;; An exis existing Ling Local-Level government is hereby deemed to be a Local-Level Government andinuesxistes the same legal person.

(2) ـ&#1he meme members oers of a Local-Level Gvel Governovernment to which Subsection (1) applies are deemed to have been constituted as a Local Government Council under the adopted Act.

(3) & Subjectbject to Section 22 of the adopted Act, the term of Office of a Member of a Local-level Government to which Subsection (1) applies is d to e on ay fior the return of the writs fots for the general election held next afte after cerr certifictification of the Organic Law.

(4) The rul s ofca Loeve-LGove Government to which Subsection (1) applies in force immediately before the coming into operation of this Act, except where consistent with or exceeding the law-making powers of a Local-Level Government as specified in Section 44 of the Organic Law, shall continue in force until their repeal or termination according to law.”

As may be seen from Subsection (3) of the Local-Level Government System Interim and Transitional Arrangement) Act, it refers to S. 22 of the adapted Act. The “ad Act” i21; in this sense is defined to mean the Local Government Act Ch. No. 57. Section the enabling act act provides for removal of Councillors from office and says that where the Minister responsible is satisfied a Councillor or an associated member of a Ward has abused his powers or is incapable of exof exercising them justly or if for any other reasons is not a fit and proper person to continue to hold office and after due enquiry, the councillor or associate member may be suspended. Subsecti) of Section 4 of 4 of the Local-Level Government System (Interim and Transitional Arrangements) Act 1995 is to be read subject to S. 22 of the Local Government Act. This would mean that if tpe applicants were under any inquiry as deposed to by Mr Pupune in paragraph 7 of his supplementary affidavit, a further deliberation would be held to determinee issues.

Applying the principle of an “arguabrguable case” to the circumstances of the instant application, I think it involves the question of whether there is a prima facie view formed at this stage after considering all evidence before me, I am satisfied that these questions raise substantive legal issues which require judicial determination. I am therefore fied that that the applicants have demonstrated through their evidence that they have an arguable case.

The only other mais that O. 16 Rule (2) requires an applicatiocation for leave ought to be made ex-parx-parte. t appeared for the Second cond Respondent and made a very brief submission on behalf of his client. He filed no affidavits though. Mr Kwimberi for tplicants did not oppose to his appearance. I granted nted Mr Kot leave and allowed him to address me accordingly. His shobmissssisted inrminermination of the question of undueundue delay. There seemse diffedifferenferent opinions amongst Judges of this as tther an applicatiication for leave should be strictly made ex-parte. Judges have gran granted leave to Respondents Counsels to r only for the purpose of m of making submissions for purposes of assisting the Court: See Diro v Ombudsman Commission of Papua New G [1991] PNGLR 153 and Amadio Pty Ltd v The State and Othersthers [1992] PNGLR 218. On the basishe decisions ions in these two cases I allowed Mr Kot to address me. I grant the application sought and order costs in favour of the applicants.

Lafor the Applicants: Paulus Doa & Lawyers

Lawyer wyer for 2nd Respondent: K Kot & Lawyers