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Kramer v Numaoa [2011] PGNC 30; N4280 (8 April 2011)

N4280


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


OS NO. 23 OF 2011


BETWEEN:


BRYAN KRAMER AS CHAIRMAN OF THE PAPUA NEW GUINEA RUGBY FOOTBALL LEAGUE INC., appointed on 28th November 2010
First Plaintiff


AND:


HORTA BOSKEY, DAVID TAMTU & DAVID VASO, AS MEMBERS OF THE BOARD OF DIRECTORS OF PAPUA NEW GUINEA RUGBY FOOTBALL LEAGUE INC., appointed on 28th November, 2010
Second Plaintiff


AND:


PAPUA NEW GUINEA RUGBY FOOTBAL LEAGUE INC.
Third Plaintiff


AND:


JOHN NUMAPO, GARRY JUFFA AND ALBERT VERATAU
First Defendant


AND:


JOE TOKAM
Second Defendant


Waigani: Davani, J
2011: 24th March, 8th April


DECLARATIONS - PNGRFL – calling of elections of Executive – PNGRFL's Chief Executive Officer must ensure all associations have complied with requirements in Constitution - processes to be followed.


DECLARATIONS – Affiliation criteria – Constitution of PNGRFL – Processes and requirements in Constitution in relation to affiliation must be adhered to and complied with – all associations must be affiliated before they can vote - Clause 4 of PNGRFL's Constitution.


Facts


The PNGRFL was bound by a Consent Order to call its Annual General Meeting ('AGM') before or on 30th November, 2010. The plaintiff called such a meeting before the deadline stated in the Consent Order. He was elected as the President of the PNGRFL.


Issues


  1. Whether or not the Annual General Meeting ('AGM') of the PNGRFL held on 28th November, 2010, was in accordance with the Court Orders dated 29th July, 2010 in the earlier proceedings OS No. 748 of 2009?
  2. Whether or not the AGM of the PNGLRFL held on 28th November, 2010, was conducted in accordance with the provisions of the PNGRFL National Constitution 2008?
  3. Whether the appointments of the first plaintiff as Chairman and the second plaintiff as Members of the Board of Directors of the PNGRFL are legal and in accordance with the provisions of the PNGRFL National Constitution 2008?

Reasoning


  1. Yes, but the members who voted were not affiliated, to have complied with clause 4 of PNGRFL's Constitution.
  2. No.
  3. No.

Counsel:


C. Raurela, for the Plaintiffs
T. Sirae, for the Defendants


DECISION

8th April, 2011


  1. DAVANI .J: This matter comes before me for substantive hearing of the Originating Summons filed on 24th January, 2011. The defendants oppose the application.
  2. The Originating Summons seeks the following orders which I set out in full;

"1. An order in the nature of a Declaration that the Annual General Meeting of the Papua New Guinea Rugby League constituted, convened and conducted on 28th November 2010 is legal and in accordance with the Consent Orders of the court dated 29th July 2010 in proceedings OS No. 748 of 2009 and Sections 13 and 14 of the Papua New Guinea Rugby Football League National Constitution.


  1. An order in the nature of a Declaration that the election of the first plaintiff as Chairman on 28th November 2010 is legal and in accordance with the Consent Orders of the Court dated 29th July 2010 in OS No. 748 of 2009 and Section 8 of the Papua New Guinea Rugby Football League National Constitution and as such the first plaintiff is the duly elected Chairman of the third plaintiff.
  2. An order in the nature of a Declaration that the election of the second plaintiffs as members of the Board of Directors of the Papua New Guinea Rugby Football League is legal and in accordance with the Consent Orders of the Court dated 29th July 2010 in OS No. 748 of 2009 and Section 8 of the Papua New Guinea Rugby Football League National Constitution and as such the second plaintiffs are the duly elected members of the Board of Directors of the third plaintiff.
  3. An order in the nature of a permanent injunction restraining the defendants from interfering with the management and administration of the third plaintiff in any manner whatsoever.
  4. The defendants pay the plaintiffs' costs of and incidental to this proceedings; and
  5. Such further orders the Court deems fit."

Undisputed Agreed Facts


  1. These are the agreed facts, contained in the Statement of Agreed and Disputed Issues for Determination ('Statement') signed by both Counsel, dated 23rd March, 2011 and handed up to me at trial.

"A. STATEMENT OF AGREED FACTS


THE PARTIES AGREE ON THE FOLLOWING FACTS:


  1. On 4th December 2009, Albert Veratau on his own behalf and on behalf of the then Board of Directors of Papua New Guinea Rugby Football League Inc. commenced proceedings OS No. 748 of 2009 challenging the appointment of the Board of Directors elected on 29th November 2009. Messrs. Bryan Kramer and Gerry Juffa were defendants in that proceedings.
  2. On 29th July 2010, Consent Orders were signed by the parties and endorsed by the Court in proceedings OS No. 748 of 2009.
  3. The Consent Orders of 29th July 2010 in proceedings OS No. 748 of 2009 established an Interim Committee of the Papua New Guinea Rugby Football League Inc. with Messrs. John Numapo, Albert Veratau and Gerry Juffa as Interim Chairman and Interim Committee Members respectively.
  4. During the course of mediating and formulating the terms of the Consent Orders, it was agreed by the parties that amended version of the PNGRFL National Constitution 2008 was the applicable Constitution and so the terms of the Consent Orders referred to above as agreed to by the parties were drafted particularly with respect to the time by which to conduct the Annual General Meeting of PNGRFL in accordance with PNGRFL National Constitution 2008.
  5. According to Term No. 9 of the Consent Orders, an Annual General Meeting ("AGM") of the PNGRFL was to take place on the last Sunday of November 2010 or on a date set by the Interim Committee, but should be not later than 30th November 2010.
  6. The terms of the Consent Orders were then communicated to all the affiliated leagues of PNGRFL as per Term No. 11 of the Consent Orders.
  7. There are twenty-four (24) league centres which affiliate to the PNGRFL.
  8. Soon thereafter notices were issued by Mr. Joe Tokam, PNGRFL Acting Operations Manager to the affiliates informing all that the PNGRFL AGM was scheduled for 29th November 2010 pursuant to the National Constitution and the Consent Court Orders of 29th July 2010.
  9. All affiliates were also reminded of the requirement to re-new their respective memberships as provided for under Section 4.2 of the National Constitution which requires all memberships to be renewed seven (7) days before the AGM.
  10. The Acting General Manager of PNGRFL put out a public notice on or about 1st December 2010 that the AGM had been postponed to 30th January 2011.
  11. Preparations were then undertaken for the AGM scheduled for 28th November 2010 as ordered by the National Court. At that time four (4) leagues had met the full requirements with respect to renewal of their membership and they were –

The Acting General Manager of PNGRFL was advised of the same.


  1. Wau Rugby League, Bulolo Rugby League and Popondetta Rugby League reapplied for affiliation however, their documentations were either incomplete or submitted outside the seven (7) days time period so they were disqualified from renewing their memberships on the day of the AGM.
  2. The first plaintiff then gave notice in writing of his intention to contest the chairmanship of PNGRFL and his written nomination was received within the fourteen (14) days period required under Section 8.4 of the National Constitution.
  3. On 26th November 2010 (sic), was approached to chair the AGM on 28th November 2010 and Mr. Saronduo gladly accepted the invitation.
  4. On 28th November 2010 at 8:00pm, the PNGRFL AGM as ordered by the Court commenced at the Lae Travelers Inn, Lae, Morobe Province chaired by Chief Inspector Richard Saronduo, Legal Officer based in Lae and after a roll call the following affiliates by their representatives were in attendance –
    1. Apologies were received from –
  5. After the formalities, the AGM proceeded wherein Chief Inspector called for the nomination of Chairman Mr. Alois Tobata, New Guinea Islands Development Officer informed the members that there was only one written nomination received within the fourteen (14) days deadline as stipulated by Section 8.4 of the National Constitution, that being the first plaintiff's written nomination.
  6. The first plaintiff's nomination was seconded by the Ramu and Kainantu Rugby Football Leagues respectively.
  7. Under Section 14 of the National Constitution requires a 50% plus 1 quorum in any AGM.
  8. In the meeting of 28th November 2010 alleged to be that of the PNGRFL AGM, the first plaintiff was elected Chairman of PNGRFL and Mr. Horta Boski as Deputy Chairman whilst Messrs. David Tamtu and David Vaso were elected as Members of the Board of Directors of PNGRFL New Guinea Islands and Northern Regions respectively.
  9. As for the Highlands and Southern Regions, it was ruled unanimously that these leagues needed to affiliate in order for them to qualify and to participate in the election of their directors.
  10. There were no Court Orders further extending the date for the AGM beyond 30th November 2010.
  11. The Interim Committee was to cease to administer and manage the affairs of the PNGRFL after the AGM and that the Chairman and two (2) members ceased to thereafter in accordance with Term Nos. 7 & 8 of the Court Orders of 29th July 2010.
  12. The former Interim Committee then set 30th January 2011 as the date for the PNGRFL AGM however, the AGM did not proceed after Interim Restraining Orders issued by the Deputy Chief Justice on 27th January 2011 were served on them."

Papua New Guinea Rugby Football League ('PNGRFL') Constitution


  1. The PNGRFL Constitution is very comprehensive and detailed as to process and procedure. Its provisions on voting and the calling of nominations for executive members including president/chairman are no exception. The relevant provisions are;

"4. Affiliation


  1. The following shall be eligible for affiliation annually as members of the PNGRFL:-
  2. The criteria for affiliation to PNGRFL shall be laid down in the By-Laws.

By-Law to Rule 4


4.1 Affiliation by leagues as members of PNGRFL shall be annual and criteria for Admission as members shall be met no later than seven (7) days prior to the date of PNGRFL AGM in each year.


(i) Affiliation, or membership, of PNGRFL shall be open to all constitutionally Established Leagues and acceptance shall be subject to fulfillment of criteria Detailed in By-Law 4.1 – 4.4 as amended.

4.2 Affiliated leagues re-applying for affiliation must provide the following


Application for affiliation form;

Affiliation fee as determined annually;

Minutes of the Leagues' AGM clearly stating the election or ratification of office bearers;

President's Report;

Financial Report;

Club affiliation forms duly signed by elected officials and appointed team officials;

Names and contacts of the Executive of the League Referees' association;

Copies of sponsorship agreements entered into by the league for the ensuing season;

Amendments to the League's Constitution or By-Laws not previously lodged with the PNGRFL;

Applications for amendments or additions to PNGRFL Standard Competition Rules for use in local competitions;

Application where more than seven clubs are to be affiliated.


4.3 Leagues not currently in affiliation wishing to apply for membership must provide in addition to all of the above:


(i) Constitution and By-Laws;

(ii) Sketch plan of the ground(s) upon which their competition is to be conducted;

(iii) Details of ownership of such ground(s);

(iv) League boundary.

4.4 Upon acceptance as affiliated members. Each league must submit no later than the end of January, the following information:


(i) Composition of Permanent Committees;

(ii) Competition Draw including pre-season, knockout competitions and dates or finals.

(iii) Local Competition Rules where such include amendments or additions to PNGRFL Standard Competition rules.

(iv) Registration details for all Referees to officiate in League fixtures.

(v) Registration details for all grade coaches for all clubs.

4.5 The PNGRFL may take disciplinary action in the form of fines, suspension or disaffiliation against any League which:-


(i) Fails to provide the required information specified in 4.2, 4.3 or 4.4;

(ii) Has a declared debt incurred in relation to rugby league under the jurisdiction of PNGRFL, which remains unpaid after 30 days;

(iii) Does not conduct a Junior Rugby League competition;

(iv) Fails to comply with specified procedures laid down from time to time for registration of players, coaches, trainers, doctors, physiotherapists, team managers and referees;

(v) Does not complete its Premiership Competition by the due date as required by the PNGRFL.

4.6 Where a League is suspended under the provisions of By-Law 4.5, or the Executive of a League is suspended under By-Law 19.8 Misconduct, the PNGRFL may appoint an Administrator under the relevant constitutional provision dealings with Officials. Such appointment shall be revoked upon the election of a new executive or the re-instatement of the former executive as warranted by the situation in a particular League.


4.9 Institutional Leagues affiliating to PNGRFL shall be eligible to attend and participate in General Meetings but shall have no voting rights.


4.10 All office bearers of affiliated leagues shall hold positions for a term of two (2) years, unless removed individually or collectively by:-


(ii) a vote of no confidence as provided under the provisions of the Constitution;
(iii)
(iv)
(v) resignation or death;
(vi) any other grounds as provided for under a By-Law passed in relation to the terms, tenure and removal of office bearers.

4.11 Members of the Executive Committee or any Governing Body of an affiliated League shall not at any time hold an executive office in any club affiliated with another League.


4.12 Leagues must submit quarterly financial reports to the PNGRFL and annual audited reports must be presented at the Annual General Meeting of the PNGRFL.


4.13 Where a League receives approval to affiliate more than six (6) clubs, such approval shall be subjected to annual review.


4.16 For a Senior League to be affiliated to the PNGRFL it must have an Under 21 grade and conduct a junior rugby league competition and shall consist of –


(a) 6 to 9 years old under the Mini League Competition;
(b) 9 to 10 years old under the Modified League Competition; and
(c) Under 12s, 13s, 15s, 17s, and 19s under the International Rules.

Permission may be granted for exemption, where circumstances necessitate.


4.17 Affiliated Leagues shall adopt Standard Competition Rules, Standing Orders, Judiciary Committee By-Laws and Registration & Qualification Committee By-Laws as provided by the PNGRFL, save where a League has passed such By-Laws for its own use always provided they are not inconsistent with provisions contained in the Standard Rules determined by the PNGRFL from time to time.


8. The Board of Directors


(1) The Board of Directors shall consist of:-

(ba) The Chairman of the Selection Committee.


(c) The Chief Executive Officer of the Papua New Guinea Rugby Football League Inc. (amended AGM 2001).

(2) The Board of Directors shall constitute the executive arm of the PNGRFL and shall be responsible for determining policy and ensuring that policy directives are acted upon by officials of the League.

(3) All Board members shall serve in an honorary capacity and receive no numeration other than reimbursement of expenses for attendance at meetings of the Board.

(4) The Board of Directors shall hold office for a term of two years.

(5) Retiring members of the Board shall be eligible for re-election or re-appointment.

(6) Nominations for the elected members of the Board of Directors must be in the hands of the CEO of the PNGRFL fourteen (14) days before the appropriate Annual General Meeting.

(7) In the event that no written nomination for a position is received by the due date, the Chairman may call for nomination at the Annual General Meeting.

(8) Any voting members as provided under Section 15(1) of the Constitution may nominate or second a person for a position on the Board of Directors.

Bye-Law of Rule 8


8.1 ELECTION TO THE BOARD


8.1.1 The Chairman, Deputy Chairman and four (4) Board membership shall be elected biannually to the Board by those eligible to vote at the AGM.


8.1.2 Elected positions on the Board shall be available to -


(a) Serving members of the Board;

(b) Nominations by Members of the Board;

(c) Nominations by Presidents of affiliated leagues, eligible to vote at the AGM;

(d) A nominee cannot have held an Executive position in an affiliated league, twelve (12) months prior to the AGM of the PNGRFL, at which elections to the Board of Directors of the PNGRFL is held.

8.1.3 Election of Board members be conducted in the following sequence:-

8.1.4 Separate nominations for all elected Board positions should be made in accordance with clause 8.6 of the Constitution.

10. Vacancies in Office


(1) Vacancies on the Board of Directors or any Committee of the PNGRFL shall be occasioned by a member:-

(2) In addition to the above, the By-Laws relating to National Judiciary and National Selection Committees may provide for further restrictions on membership occasioning vacancies to arise.

(3) A motion of no confidence may be moved by a member league in respect to:

(4) A motion of no confidence shall not be moved in the first six months of the term of office of the Board of Directors or committees of the League.

13. Meetings


(1) The Meetings of the PNGRFL shall be:-

(2) The Annual General Meeting shall be held no later than the last weekend in November in any given year and the order of business shall be as provided for in standing orders.

(3) A special General Meeting may be convened by the CEO in the following:

(4) The business conducted at a Special General Meeting shall be limited to the purpose for which it was convened.

(5) Directors' Meeting shall be held at least quarterly, but there shall be provision for extraordinary Directors' meetings between times should be the need arise.

(6) The Committees of the league shall meet as determined in the By-Laws relating to each committee. Written reports of committee meetings shall be made available to the CEO at least two weeks in advance of Board meetings and the Chairman of each committee shall make himself available to the Board if required.

(7) Notice of meetings

14. Quorum


(1) At all meetings of the PNGRFL, fifty percent (50%) plus one of those eligible to be in attendance and vote shall constitute a quorum. Once a quorum has been achieved, the meeting may proceed, even if the required number is not maintained for the duration of the meeting.

(2) Except for special General Meetings, the following shall apply to all meetings:-

(3) At any special General Meeting if for any reason a quorum is not formed within one (1) hour of the specific time, those present shall constitute a quorum.

15. Voting


(1) At Annual General Meetings, General Meetings or Special General Meetings, each affiliated member league shall be entitled to one (1) vote, as shall the individual members of the Board of Directors.

(2) There shall be no votes by proxy at any PNGRFL meetings.

(4) At all General Meetings of PNGRFL, an affiliated member league must be represented by an elected executive member who shall have voting rights on behalf of that league.

(5) At General Meetings, except the Annual General, postal votes shall be allowed for all eligible voting members provided that in the case of affiliated member leagues such vote is transmitted by mail, fax or telex and signed by the president of that league. Two independent scrutineers shall be appointed to oversee counting of postal votes.

(6) A vote by the Board of Directors or committees of the League may be taken by circular resolution.

(7) The Chairman of the Board shall be entitled to a casting vote in addition to his primary vote at all meetings and Committee Chairman shall likewise have a casting vote at their respective meetings.

Issues


  1. In the Statement, both Counsel listed the issues for determination by the Court. I set these out;

Analysis of evidence and the law


Issues (i) - Whether or not the AGM of the PNGRFL held on 28th November, 2010, was in accordance with the Court Orders dated 29th July, 2010 in the earlier proceedings OS No. 748 of 2009?


  1. Both parties tendered affidavits which were marked as Exhibits which I need not refer to at this time but will do so where appropriate.
  2. (i) Consent Orders - By earlier Court proceedings OS No. 748 of 2009 between the same parties with the exception of one or two individuals, the parties entered into consent orders following mediation. This was done on 29th July, 2010. The terms of the consent orders are as follows;

"FOLLOWING MEDIATION, THE COURT ORDERS BY CONSENT OF ALL PARTIES THAT:


1. The plaintiffs shall forthwith withdraw the proceedings herein.


  1. On the signing and entry of these orders, the proceedings shall stand withdrawn.
  2. A Revised Interim Committee (the "Committee') is established which supersedes all interim arrangements made for the PNGRFL.
  3. The Committee shall consist of John Numapo (as Chairman), Garry Juffa and Albert Veratau (respectively as members) and in the event of their unavailability, the respective member or chairman shall appoint a nominee to represent him.
  4. Until the PNGRFL's 2010 AGM, the Committee shall perform the functions of the Board and management of the PNGRFL in managing and administering the affairs of the PNGRFL, and in particular amongst others:
  5. The Committee shall be at liberty to appoint sub-committees as are necessary to for instance review of the PNGLRFL Constitution and the organizing of the 2010 AGM and such other activities as it considers appropriate to carry out the tasks under term 5 of these orders.
  6. The Committee shall cease to administer and manage the affairs of the PNGRFL at or after the 2010 AGM.
  7. The Chairman and the 2 members shall cease to hold office at or after the 2010 AGM.
  8. The 2010 AGM shall take place on the last Sunday of November 2010 or on a date set by the Committee, but shall not be later than 30 November 2010.
  9. The parties and or any persons involved with the PNGRFL shall not make or allow statements to be made to the media concerning the management and administration of the PNGLRF without the prior consent and authority of the Committee.
  10. The parties shall communicate the terms of these orders to the affiliated leagues of the PNGRFL within 14 days using such communication modes that are available.
  11. The PNGRFL shall meet all of the costs of the parties of the proceedings, such costs to be taxed if not agreed."
  12. Clause 9 of the Consent Orders is explicit in that the AGM for 2010 shall take place on the last Sunday of November 2010 or on a date set by the Committee, not later than 30th November, 2010.
  13. In accordance with the Consent Orders, a Revised Interim Committee was appointed to supersede all interim arrangements for the PNGRFL. This Committee consisted of John Numapo as Chairman, Garry Juffa and Albert Veratau as Members and in their unavailability, that the members or the chair shall appoint a nominee to represent him/them.
  14. In his affidavit sworn on 20th January, 2011 and filed on 24th January, 2011, the first plaintiff Bryan Kramer deposes that Mr Joe Tokam, the PNGRFL's Acting Operations Manager had issued notices to all affiliates informing them of the PNGRFL's AGM scheduled for 28th November, 2010. As to whether Mr Tokam complied with procedures in the Constitution in relation to the manner in which these notices were issued and whether affiliates complied with provisions in the Constitution, prior to voting, is another issue. However, Mr Kramer deposes that he had complied with clause 9 of the Consent Orders by ensuring that the AGM was conducted no later than 30th November, 2010.
  15. Was Mr Kramer properly elected?
  16. Mr Kramer deposes in his affidavit at par.15 that 15 league affiliates were in attendance at the AGM of 28th November, 2010. That according to clause 8.4 of the PNGRFL Constitution, he had nominated within time, that is, 14 days before the AGM.
  17. The PNGRFL Constitution, at clause 8(6) provides that "Nominations for the elected members of the Board of Directors must be in the hands of the CEO of the PNGRFL fourteen (14) days before the appropriate Annual General Meeting."
  18. Mr Kramer deposes that his nomination was seconded by Ramu and Kainantu Rugby Leagues. He deposes also that the nine leagues present at the AGM had renewed their memberships and were therefore entitled to vote, there being 100% quorum.
  19. Notwithstanding, that evidence, Mr Kramer is not the keeper of the PNGRFL's records. It is Joe Tokam who is the keeper of those records, as the Acting General Manager of the PNGRFL. The unrefuted evidence is that as Acting General Manager, he plays the role of the CEO, which includes the receiving of nominations and affiliations. It was him who was contacted by Mr Numapo, the Chair of the Interim Committee, who contacted Mr Tokam on 14th November, 2010 to find out who had affiliated and had met all the criteria for affiliation. Mr Tokam advised that only 6 leagues, out of the 26 affiliated leagues, had submitted their affiliation forms but had not submitted all the forms and documentation, to satisfy the requirements under clause 4 of the PNGRFL's Constitution. Mr Numapo then directed the deferral of the AGM to January, 2011.
  20. Although, Mr Kramer deposes that the affiliates at the meeting made up a quorum, he has not put evidence before Court to show that these affiliates had met all the requirements in s.4. I do not know what Mr Kramer meant when he said they were affiliated but if he meant that they had filled in the affiliation forms, then that is not affiliation. To be fully affiliated, a league must comply fully with all the requirements in clause 4.2 of the PNGRFL's Constitution (my emphasis).
  21. Contrary to Mr Kramer's contentions, I am not satisfied that those at the 28th November, 2010 meeting were fully and properly affiliated.
  22. As for the appointment of Chief Inspector Richard Saranduo to chair the AGM of 28th November, 2010, the PNGRFL's Constitution does not provide for the adhoc appointment of a Chairman. In the Interpretation provisions of the PNGRFL's Constitution, "Chairman" is defined as "Chairman and Deputy Chairman of the Board of Directors and all general meetings of the PNGRFL." The definition is not specific as to who chairs the meetings. I assume the Chairman does because clause 15(6) on Voting states that the Chairman of the Board is entitled to a casting vote at all meetings. A Chairman of the Board including Deputy Chairman and 4 members, "shall" be elected biannually "by those eligible to vote at the AGM."
  23. Therefore, Mr Saranduo's appointment is illegal and in breach of clause 15(6) of the PNGRFL's Constitution.

Issue (ii) – Whether or not the AGM of the PNGRFL held on 28th November, 2010, was conducted in accordance with the provisions of the PNGRFL National Constitution 2008?


  1. The undisputed evidence is that the AGM was held on 28th November, 2010. Clause 13(2) of the PNGLRFL's Constitution which is in mandatory terms, states that the AGM "...shall not be later than the 30 November."
  2. Prior to the meeting, members must affiliate. According to By-Law 4.1 of the Constitution, set out above, affiliation by leagues as members of PNGRFL, shall be annual. The members must meet the criteria for admission no later than 7 days prior to the date of the AGM each year. Those affiliates wanting to become members, must fulfil the criteria in By-Law 4.1 to 4.4.
  3. According to clause 4.2, set out above, affiliated leagues must also meet the requirements set out therein.
  4. Clause 8 of the PNGRFL's Constitution provides for those who can sit on the Board of Directors. The Chief Executive Officer of the PNGRFL is also a member of the Board of Directors of the PNGRFL. Clause 8(6) of the PNGRFL's Constitution states that nominations for elected members of the Board of Directors must be with the Chief Executive Officer 14 days before the appropriate AGM. It also provides at clause 8(7) that if there are no written nominations for a position and if these written nominations are not received by the due date, that the Chairman may call nominations at the AGM.
  5. What are the powers of the Interim Committee established by the Consent Orders?
  6. Clause 7 of the Consent Orders states that the Committee shall cease to administer and manage the affairs of the PNGRFL at or after the 2010 AGM. Prior to that day, it is responsible for the day to day running of the AGM including the calling of the AGM.
  7. Reverting back to compliance with process under the Constitution by affiliates, what is the evidence on affiliates complying with clauses 4.2, 4.3 and 4.4 of the Constitution?
  8. According to Bryan Kramer's affidavit sworn on 20th January, 2011 and filed on 24th January, 2011, after the Chief Executive Officer issued notices that the AGM was to be scheduled for 28th November, 2010, only 4 leagues had fully affiliated by then. These were;
  9. There is no evidence in Bryan Kramer's affidavit that the 4 above mentioned leagues had complied with clause 4.2 of the PNGRFL's Constitution. Joe Tokam, the Chief Executive Officer ('CEO') in his affidavit, sworn on 24th February, 2011 and filed on 14th March, 2011, deposes that he consulted the Interim Committee Chairman Mr Numapo on the second week of November, 2010 and advised him that the "absolute majority of the member leagues" had not met the affiliation requirements. He was then directed by Mr Numapo to place a public notice in the daily newspapers for several days advising that the PNGRFL AGM is deferred and would be held on 30th January, 2011 at the Melanesian Hotel, Lae. He deposes that this would allow all league members to properly prepare all their documents to be presented at the AGM (par.10).
  10. How was this communicated to the leagues that had already affiliated?
  11. Mr Tokam, the CEO deposes in his affidavit at par.11 that two weeks before the AGM, he sent a text to Messrs Tobata, Malum and Kalamo advising them that the AGM had been deferred to 30th January, 2011 as most leagues had not affiliated to the PNGRFL.
  12. Again, Mr Tokam does not depose in his affidavit to compliance by affiliated leagues with clause 4.2 of the PNGRFL's Constitution.
  13. In my view, the CEO must show that these affiliated leagues have provided the necessary documentation in compliance with clause 4.2 of the PNGRFL's Constitution. There must be records kept of these documentation having been submitted to the CEO. As far as I can tell, there are no records, apart from Mr Tokam's contention that the leagues had not met the requirements. I say this because in an organization such as the PNGRFL, proper records must be kept, including affiliation records. If the documentation is too bulky to bring to Court, there should be some kind of a document kept by the CEO on which he records the leagues' affiliated and wishing to affiliate to show that they have complied with clause 4.2. In addition to that, those leagues wishing to affiliate must also provide or meet the requirements set in clause 4.3 which is;

4.3 Leagues not currently in affiliation wishing to apply for membership must provide in addition to all of the above:


(i) Constitution and By-Laws;
(ii) Sketch plan of the ground(s) upon which their competition is to be conducted;
(iii) Details of ownership of such ground(s);
(iv) League boundary.
  1. Again, there is no evidence that those members wishing to affiliate, more particularly those new members mentioned in par.15 of Bryan Kramer's affidavit, have met these requirements by providing the necessary documentation.
  2. What happens if leagues have not or do not comply with the requirements of clause 4.2?
  3. Clause 4.5 is very clear and states that the PNGRFL will take disciplinary action if clause 4.5 is not complied with. That provision reads;

"4.5 The PNGRFL may take disciplinary action in the form of fines, suspension or disaffiliation against any League which:-


(i) Fails to provide the required information specified in 4.2 or 4.4;

(ii) Has a declared debt incurred in relation to rugby league under the jurisdiction of PNGRFL, which remains unpaid after 30 days;

(iii) Does not conduct a Junior Rugby League competition;

(iv) Fails to comply with specific procedures laid down from time to time for registration of players, coaches, trainers, doctors, physiotherapists, team managers and referees;

(v) Does not complete its Premiership Competition by the due date as required by the PNGRFL."
  1. Par.15 of Mr Bryan Kramer's affidavit, although setting out a roll call of affiliated members, numbering 15 in all, is not supported by evidence of their having complied with clauses 4.2, 4.3 and 4.4 of the PNGRFL's Constitution.
  2. Mr John Numapo, the then Interim Chairman of the PNGRFL, appointed under the Consent Orders, deposes in his affidavit sworn on 16th February, 2011 and filed on 21st February, 2011 that on 14th November, 2010, he contacted the Acting General Manager (or CEO), Mr Joe Tokam requesting for advice on whether member leagues had affiliated and complied with requirement. He deposes that Mr Tokam advised that only six of the 26 affiliated leagues had submitted their affiliation forms but had not met the all the requirements under s.4 of the PNGRFL's Constitution.
  3. He further deposes that the quorum required for the AGM is fifty percent (50%) plus one of those eligible to be in attendance and vote. That because of the poor response by leagues, he then advised Mr Tokam to defer the AGM to the end of January, 2011 to give more time for the leagues to fulfil their affiliation requirements before the AGM.
  4. Should Mr Numapo have adjourned the AGM?
  5. The most appropriate thing to do under those circumstances was for one of the parties in OS No. 748 of 2009 to return to Court to ask for an extension of the Consent Orders of 29th July, 2010, more particularly clause 9. However, the technical difficulty with this is that clauses 1 and 2 of the Consent Orders states that the plaintiffs in OS No. 748 of 2009 shall withdraw the proceedings and that on the signing and entry of these orders, the proceedings shall stand withdrawn. There would have been no basis on which either Mr Kramer or Mr Numapo could have obtained an extension of the Consent Orders. The Consent Orders did not provide a way out for parties in OS No. 748 of 2009 to return to Court to seek an extension or variation of clause 9 of the Consent Orders.
  6. It was therefore incumbent upon all parties in these proceedings to ensure that the AGM was conducted, done in accordance with clause 9 of the Consent Orders.
  7. The evidence clearly is that Bryan Kramer proceeded to call a meeting when he was not authorised to do so as it is John Numapo who, as chair, is responsible for all interim arrangements for the PNGRFL, including the calling of the AGM. Not Bryan Kramer.
  8. Strictly speaking, after 30th November, 2010, in accordance with the Consent Orders, the requirement to call a meeting passed. The requirement to call a meeting should have been done by the Committee authorised to do so, who in this case is the Interim Committee. The Interim Committee should not have called a meeting outside the period set by the Court but should have sought an extension before the lapse of the period set by the Court. Mr Numapo's actions in putting out advertisements that the meeting was rescheduled to 30th January, 2011, is in direct contravention of the Consent orders. Additionally, the Interim Committee's powers and functions ceased at or after the 2010 AGM, in accordance with clause 7 of the Consent Orders.
  9. Based on the above, the meeting that was conducted on 28th November, 2010, was not done in accordance with the requirements under PNGRFL's Constitution. The same applies to the meeting conducted on 30th January, 2011, which is in direct contravention of the Consent Orders.

Issue (iii) - Whether the appointments of the first plaintiff as Chairman and the second plaintiff as Members of the Board of Directors of the PNGRFL legal and in accordance with the provisions of the PNGRFL National Constitution 2008?


  1. The minutes of that meeting are in evidence before me.
  2. The CEO or Interim General Manager at that time, Mr Joe Tokam, was not in attendance at the AGM of 28th November, 2010. He is the keeper of the PNGRFL's records. In accordance with clause 4.1 of the Constitution, he ensures that criteria for admission as members shall be met no later than 7 days prior to the date of the PNGRFL's AGM. And affiliation of members to the PNGRFL is open to all constitutionally accepted leagues and only subject to fulfilment of criteria set out in By-Law 4.1 to 4.4, which have been set out in full, above.
  3. In his affidavit sworn on 20th January, 2011, Bryan Kramer deposes to 4 leagues having met full requirements with respect to renewal of their membership. Those affiliates are Madang, Ramu, Kainantu and Tumeraizah. Although, he deposes that "the Acting General Manager of PNGRFL was advised of the same", in my view, it should be the other way around. It is the Acting General Manager of the PNGRFL who should provide Bryan Kramer with the records of those who had affiliated. Mr Kramer also deposes that Wau, Bulolo and Popondetta Rugby Leagues had fully reapplied for affiliation but because their documentation were either incomplete or submitted outside the 7 day time period, that they were disqualified from renewing their memberships at the AGM. He does not state what these documentation are. But if he has them, they are not in evidence before me. So this information could be hearsay as far as I can tell.
  4. He also deposes that Lae and Wewak Rugby Leagues made no attempt to reapply for affiliation. He also does not put before the Court any evidence of Lae and Wewak not having made any attempts to reapply. Again, he is not the keeper of records and so does not have that information. If anybody, it is the Acting General Manager Mr Joe Tokam who should be deposing to this information. This could be information Mr Kramer gleaned from other persons and included in his affidavit. That is hearsay because it goes towards establishing who has affiliated and who has not.
  5. In accordance with clause 4.1 of the PNGRFL's Constitution, it is Mr Tokam who should supply those records to show that criteria for admission was met not later than 7 days prior to the date of the AGM, done in accordance with clause 4.1 of the Constitution.
  6. (ii) Second Plaintiffs - Several persons are named as second plaintiffs in these proceedings, who were appointed at the meeting of 28th November, 2010. Even though I have already ruled that the meeting was not a properly conducted meeting, it is necessary that I refer to the affidavits of those members to demonstrate the position they take in these events.
  7. In his affidavit sworn on 17th February, 2011, David Vaso states that although he was nominated and elected as a member of the PNGRFL's Board, that he did not attend that meeting because he was in Port Moresby during that period. He deposes that when he found out later that there were issues surrounding the calling and holding of the meeting of 28th November, 2010, that he did not want to have anything to do with the PNGRFL.
  8. David Tamtu in his affidavit sworn on 22nd February, 2011 states that at no time did he approve and consent to his name being used in this Court proceedings. He deposes that he never gave any approval for his name to be used on the Court papers and that he never consented to the restraining orders being issued to stop the AGM taking place. He deposes that he was not present at the meeting held on 28th November, 2010, that it was his understanding that the AGM was deferred from 28th November, 2010 to 30th January, 2011 because many affiliated leagues had not completed affiliation requirements in compliance with the PNGRFL's Constitution. He deposes further that after the deferral of the AGM to 30th January, 2011, that notice was then given to all affiliated leagues. In January, 2011, he published an article on the Post Courier stating generally that all affiliates must be united, for the game of rugby league to go forward. He deposes that some of the plaintiffs did not like that comment.
  9. He states unequivocally that he was not aware that these proceedings had been taken out and that he was made a plaintiff.
  10. Alois Tobata, a New Guinea Islands Regional Development Officer for the PNGRFL, in his affidavit sworn on 23rd March, 2011, in response to Mr Tamtu's affidavit, deposes that on or about 2nd November, 2010, David Tamtu hand delivered to him his nomination to be on the PNGRFL's Board. That the East New Britain Rugby League nominated David Tamtu as the Director for the NGI Region and which consent form was signed by David Tamtu confirming his consent to the memberships.
  11. He deposes on 23rd November, 2010, a special meeting was conducted at David Tamtu's home, attended by ENBRL President, the ENBRL Secretary, the Duke of York Rugby League President, the Ramoaina Rugby League President and David Tamtu. He deposes that at that meeting, Mr Tamtu had expressed concerns about the NGI Leagues attendance at the AGM because there was already advice from the PNGRFL that the AGM had been deferred. However, Mr Carrol, the ENBRL President, stressed that the AGM was ordered by the Court and that it was important that all attend. Mr Tamtu did not attend that meeting, although it was made known to him by the New Guinea Islands representatives that they would lobby for his nomination to the Board on his behalf, thus his election to the PNGRFL's Board.
  12. Although, Bryan Kramer and Alois Tobata have replied to David Tamtu and Joe Tokam's affidavits, that in my view, without the benefit of cross-examination, all evidence in chief as contained in affidavits filed first in time, are the only evidence I can rely on without being inundated with further new materials that have not been tested in cross-examination.

Conclusion


  1. I have found that the meeting conducted by Bryan Kramer on 28th November, 2010, although in compliance with the Consent Orders, was conducted without first having complied with processes under clause 4.1 to 4.4 of the PNGRFL's Constitution.
  2. The evidence is clear that those in attendance at the meeting of 28th November, 2010, had not all affiliated to the PNGRFL.
  3. As for Mr Numapo's actions, although as interim administrator, he had the power to do all that was necessary to ensure the smooth running of the PNGRFL, that the AGM should not have been deferred to after 30th November, 2010, without firstly getting an extension of the Consent Orders. As it is, as at 30th November, 2010, the Interim Committee had ceased to administer and manage the PNGRFL's affairs. By 30th January, 2011, the Interim Committee was non-existent.
  4. Both the plaintiffs and the first defendant, if they did not do so, should have sought legal advice on the most appropriate step to take. In fact, the interim administration should have done all it could to ensure that a properly convened meeting did occur on or before 30th November, 2010. It was incumbent upon the interim administration to ensure that all leagues complied with the requirement to affiliate within time and then nominate and finally to attend the meeting and to cast their votes. However, there is no evidence that the Interim Committee did that apart from the very brief evidence by Mr Tokam. I find it also very disturbing that messages were sent by phone text informing affiliated members that the AGM could not occur. It is indeed surprising that with the amount of sponsorship monies and funds being put into the PNGRFL's administration, a fact I take judicial notice of, that there are insufficient funds to purchase a fax machine, paper and toner and to have email set up. Or if these assets were in the PNGRFL's office, there is no evidence of that.
  5. Sports administrators are there to ensure that the sport is properly run for the benefit of the athletes. The sports administrator is elected by the athletes to represent them to properly run the affairs of the sporting body so that they will get to participate in sports both at home and abroad. For a lot of young Papua New Guineans, sports is the only way they get exposure to the outside world. With the exception of 2 or 3 sporting codes in this country, it is indeed sad that little or nothing at all is done by a majority of sports to assist their internationally based athletes, e.g visa requirements because their focus is on programmes only at home. Again, with the exception of two or three sporting codes, without naming names, at least two largest sporting codes in Papua New Guinea are besieged by political infighting which has done nothing to assist the athletes. Rugby league is a sport that should already have gone passed this stage and should now be very professional in the running of its affairs because its Constitution makes provision for that. For example, the Constitution makes provision for assistance to players who wish to participate or play with overseas clubs. It also makes it mandatory that for a senior league to be affiliated to the PNGRFL, that it must have an under 21 grade and to conduct a junior rugby league competition to consist of 6 to 9 year old, 9 to 10 year old and under 12s, 13s, 15s, 17s and 19s (clause 4.16). However, although provided for in the Constitution, as a citizen of this country, I do not see any evidence of that. But Rugby League must be commended for that because I doubt if the Constitution of other team sports has similar provisions, except for 1 or 2 sporting codes.
  6. The Constitution also makes provision for leagues to ensure that when affiliating, they must provide copies of their Constitution and By-Laws, a sketch plan of the grounds upon which their competitions will be conducted, details of ownership of such grounds and the league boundaries (clause 4.3). That I find is a requirement that a lot of sports in this country are unable to comply with. Or that their Constitutions do not state these as a requirement. When affiliating, very few affiliates submit their Constitution and By-Laws because they are either non-existent or their Constitutions do not provide for it. I doubt very much if other sporting codes do submit sketch plans of the grounds upon which their competitions are to be conducted and details of ownership of such grounds. But this is a provision that all sporting bodies must aspire to adopt because it demonstrates that sports are professionally run and that there are available facilities for that affiliate.
  7. Additionally, it is common knowledge that a lot of sports in Papua New Guinea affiliate just to enable them to participate in championships. However, that should not be the case. These are requirements that must be adhered to year in and year out. The rules of the association must always be complied with and not abused just so teams get to participate in championships. Eligibility criteria are very important. If an association or league as in this case, is not eligible to participate in a competition, it should not. As with the case of a general meeting, if an association or as in this case, a league is not eligible to affiliate, it should not affiliate. It can only do so after requirements in the association's Constitution have been complied with.
  8. Finally, in relation to this matter, both parties have contributed to the present stalemate. Rugby League must continue to be played at the Domestic and National Level. The only alternative available is for fresh elections to be conducted and to be done within a certain time line, and for the Court and the Electoral Commission to supervise that process.
  9. The orders to be made, will be in similar terms as the original Consent Orders, to ensure the continued administration of the game until the Annual General Meeting.
  10. As to costs, because both parties contributed to this impasse, they are all responsible for payment of their costs.

Formal orders


  1. The Court's formal orders are;

_____________________________
Raurela Lawyers: Lawyer for the First, Second and Third Plaintiffs
Sirae Lawyers: Lawyer for the First and Second Defendants

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