Ruing v Marat [2012] PGNC 35; N4672 (14 May 2012)

N4672

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 208 OF 2012

IN THE MATTER OF THE APPOINTMENT OF DIRECTORS OF
THE BOARD OF THE NATIONAL AIRPORTS CORPORATION
LIMITED UNDER THE CIVIL AVIATION ACT

BETWEEN:

HON. PURI RUING
in his capacity as the Minister for Civil Aviation and Shareholder
of the National Airports Corporation Ltd
First Plaintiff

AND:

JERRY AGUS & STEVEN PIM
as Directors of the National Airport Corporation Limited
Second Plaintiffs

AND:

HON. DR. ALLAN MARAT,
Minister for Justice & Attorney General as nominal Defendant for and on behalf of the ACTING HEAD OF STATE OF PAPUA NEW GUINEA, HON. ANO PALA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:

PETER NEVILLE
Third Defendant

AND:

JOSEPH KINTAU
Fourth Defendant

Waigani: Hartshorn, J.
2012: 7th & 14th May

Application to dismiss proceeding – whether declaratory order sought is an order in the nature of a prerogative writ – whether an abuse of process to commence proceeding pursuant to Order 4 National Court Rules and not Order 16 – Ministerial collective responsibility considered

Facts:

This is an application to dismiss the proceeding as an abuse of the process of the court. The plaintiffs in their amended originating summons seek substantively a declaration that the third defendant's appointment as a director and the chairman of the National Airports Corporation Ltd by the then Acting Head of State pursuant to the advice of the National Executive Council is illegal and null and void ab initio for non-compliance with certain statutory provisions. The third and fourth defendants seek to dismiss this proceeding as an abuse of process of the court pursuant to Order 10 Rule 9A (15) and Order 12 Rule 40 (1)(c) National Court Rules

Held:

1. The declaratory relief sought by the plaintiffs is in essence an order in the nature of a prerogative writ. It is mandatory to commence proceedings for such relief pursuant to Order 16 National Court Rules. As this proceeding was commenced pursuant to Order 4 National Court Rules, it is an abuse of process.
2. This proceeding is dismissed.
3. The plaintiffs shall pay the costs of the third and fourth defendants of and incidental to the proceeding
   

Cases:

Papua New Guinea cases

National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264
Gene v. Hamidian-Rad [1999] PNGLR 444
Telikom PNG Ltd v. ICCC and Digicel (2008) SC906
Rabaul Shipping Ltd v. Rupen (2008) N3289

Overseas cases

Re Commonwealth of Australia v. Northern Land Council and Energy Resources of Australia Ltd [1991] FCA 416; 30 FCR1/103 ALR 267

Counsel:

Mr. N. Tame, for the Plaintiffs
Mr. F. Griffin, for the Third and Fourth Defendants

14th May, 2012

1. HARTSHORN, J: This is an application to dismiss the proceeding as an abuse of the process of the court.

2. The plaintiffs in their amended originating summons seek substantively a declaration that the third defendant's appointment as a director and the chairman of the National Airports Corporation Ltd (NAC) by the then Acting Head of State (Head of State) pursuant to the advice of the National Executive Council (NEC) is illegal and null and void ab initio for non-compliance with certain statutory provisions.

3. The third and fourth defendants seek to dismiss this proceeding as an abuse of process of the court pursuant to Order 10 Rule 9A (15) and Order 12 Rule 40 (1)(c) National Court Rules as:

a) the proceeding has been brought incorrectly pursuant to Order 4 National Court Rules as it seeks orders in the nature of prerogative writs and should have been brought under Order 16 National Court Rules.

b) the decision the subject of complaint is a decision of the Head of State made pursuant to advice from the NEC. The first plaintiff was a member of the NEC when the decision to advise the Head of State was made and continues to be a member of the NEC.

4. The plaintiffs oppose the application and submit that Order 4 and Order 16 Rule 1 (2) National Court Rules permit the relief to be claimed as it has. Further, the first plaintiff submits that he is not precluded from seeking the relief sought as although he is a member of NEC, it is not a decision of NEC that is the subject of complaint but a decision of the Head of State and that decision is wrong in law.

Whether proceeding brought correctly

5. The plaintiffs submit that they are able to seek the declaratory and injunctive relief by originating summons under Order 4 National Court Rules as they are not seeking orders in the nature of prerogative writs. Further, Order 16 Rule 1 (2) National Court Rules provides that declaratory and injunctive relief may be brought pursuant to that Rule but that it is not mandatory to do so.

6. The third and fourth defendants submit that the decision of the Head of State was made on the advice of the NEC. The declaration sought by the plaintiffs is that the decision of the Head of State is illegal and null and void ab initio as it is contrary to certain statutory provisions. To obtain this relief the plaintiffs will be obliged to submit that there has been an error on the face of the record and that the decision of the NEC to advise the Head of State as it did and the decision of the Head of State, require to be reviewed by this court. The order sought is really an order in the nature of certiorari but disguised as a declaration. This is an abuse of process submit the third and fourth defendants, as Order 16 Rule 1 (1) National Court Rules provides that an order in the nature of certiorari shall be made by way of an application for judicial review in accordance with Order 16 National Court Rules. This requires amongst others, leave for judicial review to be obtained.

7. The plaintiffs and third and fourth defendants all rely upon the Supreme Court decisions of National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264, Gene v. Hamidian-Rad [1999] PNGLR 444 and Telikom PNG Ltd v. ICCC and Digicel (2008) SC906 in support of their respective positions.

8. In Lucas (supra), the relief sought was similar to the relief sought in this instance. That is a declaration that the appointment of Mr. Lucas as the Secretary and Departmental head of the Department of Attorney General was illegal and therefore null and void ab initio. The appointment was by the Head of State acting on the advice of the NEC. The Court held that as application was not made for orders of the sort referred to in Order 16 Rule 1 (1), the plaintiff had a choice of procedures, either Order 4 or Order 16.

9. The issue raised by the third and fourth defendants in this instance, that the relief sought by the plaintiffs is in reality an order in the nature of certiorari although disguised as a declaration and as such is required by Order 16 Rule 1 (1) National Court Rules to be made in accordance with Order 16, does not appear to have been specifically considered by the Court in Lucas (supra).

10. In Hamidian-Rad (supra), the Court considered the substance as well as the wording of the relief sought. It found that by seeking to nullify the decision of the Commissioner General of Internal Revenue, the plaintiff was applying for an order in the nature of certiorari.

11. In Telikom (supra), although the majority found that Telikom had a choice as to the mode of commencement of proceedings, this was after considering the substance of what Telikom was seeking and finding that the substance was confined to declarations and injunctions. The Court stated however, that it agreed that a court should look at the substance as well as the wording of the relief being sought to determine what the applicant was actually seeking.

12. This court is bound by decisions of the Supreme Court. As referred to, the issue raised by the third and fourth defendants does not appear to have been specifically considered in Lucas (supra). Further the later decisions of Hamidian-Rad (supra) and Telikom (supra) both made reference to Lucas (supra) and considered the substance of what was being sought as well as the wording. Consequently I do not consider that I am bound to follow the decision in Lucas (supra).

13. Here, the plaintiffs are seeking by declaration that an appointment by the Head of State pursuant to advise of the NEC is illegal and null and void ab initio for non-compliance with certain statutory requirements. As to the reason for seeking such a declaration, I refer to the observation of Lay J. in Rabaul Shipping Ltd v. Rupen (2008) N3289, where at paragraph 7 His Honour said:

"If this were a case where the Court was being asked to declare wrong a decision of a tribunal exercising a discretion I would have great difficulty in accepting that an ordinary summons was the appropriate procedure because in those circumstances the only purpose of such a declaration is to quash the decision of the tribunal given the statutory authority to make the decision. That is an order in the nature of a prerogative writ by another name..."

14. I respectfully agree with these comments. To my mind the only reason for the declaration that is sought in this instance is to quash the decision of the Head of State made on the advice of the NEC. That is, for this court to review that decision and then to quash it. So although the plaintiffs are not seeking an order for certiorari, they are seeking an order in the nature of, or similar to, certiorari. Pursuant to Order 16 Rule 1 (1) National Court Rules, an application for an order in the nature of certiorari shall be made by way of an application for judicial review in accordance with Order 16 National Court Rules. It is mandatory. Such an application has not been made in this instance. The application that has been made is by originating summons pursuant to Order 4 and constitutes an abuse of the process of this court as it has been commenced incorrectly. Consequently I uphold the first ground of the third and fourth defendants. This proceeding should be dismissed. Given this, it is not necessary to consider the second ground relied upon by the third and fourth defendants.

Collective responsibility

15. I will consider the second ground which is that the decision the subject of complaint was made on advice from the NEC while the first plaintiff was and continues to be a member of the NEC that made the decision to give the advice. For the first plaintiff to bring this claim is therefore an abuse of process, submit the third and fourth defendants.

16. The third and fourth defendants submit that the first plaintiff may have been in the minority when the NEC made its decision to advise the Head of State, and to seek this court's jurisdiction to enforce the wishes of a minority over the majority should not be countenanced.

17. The first plaintiff submits that the NEC merely decided to advise the Head of State of the decision that should be made but did not make the decision to appoint. He is not therefore precluded from challenging the decision of the Head of State to appoint. It is clear though that the decision of the Head of State to appoint was made on the advice of the NEC to do so. By challenging the decision to appoint, the decision of the NEC to advise as it did is in effect being challenged.

18. The question then arises as to whether the first plaintiff, a Minister and member of the NEC, is able to challenge a decision of the NEC given the principle of ministerial collective responsibility.

19. The principle of collective responsibility of Ministers is recognised in the Constitution. Sections 141 and 149 Constitution relevantly are:

"141. Nature of the Ministry: collective responsibility.

The Ministry is a Parliamentary Executive, and therefore-

(a).....

(b) it is collectively answerable to the People, through the Parliament,...... and for all things done by or under the authority of the National Executive,......"

"149. The National Executive Council.

(1)....

(2) The Council shall consist of all the Ministers (including the Prime Minister when he is present as Chairman).

(3) The functions of the Council are-

(a) to be responsible, in accordance with this Constitution, for the executive government of Papua New Guinea;....."

20. These sections provide that it is the function of NEC to be responsible by its Ministers being collectively answerable for all things done by or under the authority of the NEC. The principle of collective responsibility has its origins in England and is recognised in other jurisdictions such as Australia and New Zealand. In this regard I refer to the Federal Court of Australia decision of Re Commonwealth of Australia v. Northern Land Council and Energy Resources of Australia Ltd [1991] FCA 416; 30 FCR1/103 ALR 267 in which the Court considers in detail the history and development of the principle. There do not appear to be any reported cases in this jurisdiction that are on point.

21. In essence the principle of ministerial collective responsibility is that once an agreement has been reached or decision made in the NEC, all members of the NEC are bound to speak in support of the agreement or decision. There should be no public dissent or adverse criticism of the agreement or decision. This applies even if a particular Minister was not a party to the agreement or decision. The principle may be waived by the Prime Minister on any given occasion.

22. In this instance, notwithstanding that the decision the subject of complaint is a decision of the Head of State, that decision was made on the advice of the NEC. Pursuant to the principle of collective responsibility, the first plaintiff is bound to support the advice given to the Head of State, unless collective responsibility has been waived in respect of that advice. Such support is not reflected in the first plaintiff's actions in commencing this proceeding challenging the decision of the Head of State, and deposing to the affidavit that he has. This court has not been informed as to whether the first plaintiff obtained the approval of the Prime Minister or perhaps the Attorney General before commencing this proceeding.

23. As mentioned, it is not necessary for me to make a finding on this second ground of the third and fourth defendants given my finding that the plaintiffs' should have commenced this proceeding seeking the relief that they have pursuant to Order 16 National Court Rules. Prima facie however, it is apparent that the first plaintiff has acted contrary to the principle of collective responsibility as outlined.

Orders

24. The Orders of the Court are:

a) this proceeding is dismissed.

b) the plaintiffs shall pay the costs of the third and fourth defendants of and incidental to the proceeding
_____________________________________________________

Nicholas Tame Lawyers: Lawyers for the Plaintiffs
Young & Williams Lawyers: Lawyers for the Third and Fourth Respondents