N5306

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 375 OF 2010

BETWEEN

PIUS PUNDI
Plaintiff

AND

CHRIS RUPEN
First defendant

AND

NATIONAL MARITIME SAFETY AUTHORITY
Second Defendant

Waigani: Davani .J
2013: 13th June,
19th July

ADMIRALTY ACTION – arrest and detention of vessel – vessel prohibited from sailing – Authority issued Detention notice detaining vessel from sailing – Merchant Shipping Act – SS 94, 96 – National Maritime Safety Authority Act.

ADMIRALTY ACTION – vessel sailed – plaintiff criminally charged for allowing vessel to sale – employee filed civil proceedings seeking Declarations – Declarations to have Detention Notices set aside and declared null and void.

PRACTICE AND PROCEDURE – proceedings by individual – challenging actions of a public authority – in the interim, criminal proceedings stayed - challenging process leading to issue of Detention Notice – must file Judicial Review proceedings.

PRACTICE AND PROCEDURE – Process – civil proceedings filed after criminal proceedings – criminal proceedings existence not dependent on outcome of civil proceedings - abuse of process – proceedings must be dismissed.

Facts

On 3rd September, 2008, whilst conducting a mandatory safety inspection on the MV Gulf Glory (the ‘Vessel’), the second defendant National Maritime Safety Authority’s (‘the Authority’) safety inspectors, discovered deficiencies and defects in the Vessel. They issued directives deeming the Vessel unsafe to proceed to sea, done pursuant to Section 94 of the Merchant Shipping Act (‘the Act’) and ordered that the Vessel not sail. The vessel is owned by Bismark Maritime Limited (‘Bismark’).

These directions were based on the Authority’s Navigation and Safety Services Division’s safety inspectors report called the “Marine’s Surveyor’s Report of deficiencies” dated 3rd September, 2008 (‘Inspection Report’), done after the conduct of a Survey and Inspection, such procedure set out under Division 4 of the Act.

The plaintiff was charged under s. 331(1)(a) of the Criminal Code, for the offence of sending or taking unseaworthy ships to sea. At that time, the plaintiff was Bismark’s Operations Manager.

The Criminal proceedings are now before the National Court as CR 278 of 2010. On 13th July, 2010, the National Court in proceedings CR 278 of 2010, issued orders staying the hearing of CR 278 of 2010 until after the hearing and determination of the within proceedings.

These proceedings were filed by the plaintiff seeking Declarations that the first defendant did not have Authority to issue the Detention Notice and to declare the Vessel an unsafe ship because it is the Authority’s Board that could issue such a Notice. He sought further orders that the Notice be declared null and void. 

Held

1.	The issue of whether it is the Board or the General Manager who makes the decision to have “a person” (section 331 (1) of Criminal Code) arrested and charged is not dependent on whether Criminal charges should be laid and prosecuted or not.

2.	The criminal proceedings instituted and indictment tendered by the Public Prosecutor, is done at the discretion of the Public Prosecutor, a power he is empowered by legislation to exercise. (S. 4 (1) (c) of Public Prosecutor (Office and Functions) Act Chapter 338; S. 525 of Criminal Code; S. 177(1) of Constitution).

3.	It is for the Criminal Court to decide whether “a person” did send a ship out to sea when it was in an “unseaworthy state that the life of any person in likely to be endangered” (Section 331 (1) (a)). As to whether the Vessel was in an ‘unseaworthy’ state, is a matter for evidence.

4.	It is an abuse of process if a plaintiff ‘splits up’ a proceeding before a Court, and files separate proceedings in another Court for that Court to determine what is a critical element of a Criminal offence. 

5.	A declaration also known as declaratory judgment is a discretionary order made by a high court declaring what the law is. It merely defines and declares the rights of parties and their legal relationship and is not accompanied by any sanction or means of enforcement… The declaration will be granted only if the claim relates to some legal right or interest recognized by law. 

6.	In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution and judicially with regard to all the circumstances of the case, and, except in special circumstances, should not be exercised unless parties interested are before the Court. It will not be exercised where the relief claimed would be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. The Court will not make a declaratory judgment where the questions raised is truly academic or the declaration would be useless or embarrassing or where an adequate, alternative remedy is available such as an action for damages.

 Halsburys 4th Edition Volume 1 (1) at par. 165.

7.	The everyday, day to day running of the second defendant and decisions to be made, must be by the first defendant in his role as General Manager, and to perform his duties as required of him under his Contract of Employment with the second defendant.

8.	The process that is challenged by the plaintiff is an administrative process of a public authority. The plaintiff’s claims are effectively an alleged infringement of his rights at public law. It is not an ordinary action. The first and second defendants’ actions or activities are purely of a public nature as opposed to a purely private or domestic one.

9.	The court must then construct and exercise its discretion with great care. As to how and the extent to which it can exercise its discretion, was dealt with in Ibeneweka v Egbuna Privy Council [1964] (supra) where Viscount Redcliffe said;

"...the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. ..."

10.	The question of whether private rights or public rights are in issue is a question of construction and discretion.

Cases Cited:
Papua New Guinea Cases

OK Tedi Mining Ltd v. Niugini Insurance Corporation & Ors [1988-1989] PNGLR 425
AGC (Pacific) Ltd v. Woo International Pty Ltd [1992] PNGLR 100
Tin Siew Tan v. PNG Electricity Commission SCA 66 of 2000 SC 683
Zachary Gelu v. Francis Damen, Secretary Department of Justice & Attorney General and the State [2004] PGNC 23; N2762
Wamena Trading Ltd v. Civil Aviation Authority of Papua New Guinea [2006] PGNC 57 
Ken Mondiai & Ors. v. Wawoi Guavi Timber Co. Ltd & Ors SCR No. 7 of 2008 [2010] PGSC 39 N3058

Overseas Cases

Ibenewka v. Egbuna [1964] 1 WLR 219
Russian Commercial and Industrial Bank v. British Bank Foreign Trade Limited [1921] 2 AC 438
Hanson v Radcliffe Urban District Council court of appeal [1922] 2 CA. 490
Australian Conservation Foundation Inc. v. Commonwealth (1980) 146 CLR
O’Reilly v. Mackman [1983] 2 AC 237
Cocks v Thanet District Council [1983] 2 AC 286
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 

Counsel: 

Mr B. Frizzell, for the plaintiff
Mr J. Posi, for the first and second defendants/applicants

DECISION
19th July, 2013

1.	DAVANI .J: The plaintiff and the defendants appear before me for the substantive hearing of Originating Summons filed by Warner Shand Lawyers for and on behalf of the plaintiff on 7th July, 2010.

2.	In those proceedings the plaintiff claims the following orders:

“1. A declaration that the Board of the National Maritime Safety Authority (“the Board”) established pursuant to section 1 of the National Maritime Safety Authority Act 2003 (“the NMSA Act”) is, subject to any delegation of its powers pursuant to section 15 of the NMSA Act, the sole entity able to deem a ship unsafe pursuant to section 94 of the Merchant Shipping Act Ch. 242 (“the act”) and the sole entity able to give written notice detaining a ship pursuant to section 96 of the act.

2. A declaration that on or about 19.09.2008 the first defendant had not delegated authority as general manager of the second defendant to deem the MV Gulf Glory an unsafe ship pursuant to section 94 of the Act.

3. A declaration that on or about 19.09.2008 the first defendant had no delegated authority as general manager of the second defendant to detain the MV Gulf Glory pursuant to section 96 of the act.

4. An order that the notice issued by the first defendant or on about 19.09.2008 deeming the MV Gulf Glory an unsafe ship be declared null and void.

5. An order that the notice issued by the first defendant on or about 19.09.2008 detaining MV Gulf Glory be declared null and void.

6. Such further or other orders as may be deemed necessary.

7. Costs.”

3.	Mr Frizzell for the plaintiff and Mr Posi for the first and second defendants appeared and conducted trial by the calling of witnesses through which their respective affidavits were tendered and marked as exhibits. I will refer to them below.

4.	The defendants have raised a preliminary matter in relation to the plaintiff’s standing or legal right to bring this proceedins which I will address. However, before I do that, I set out below the background to this matter.

Background

5.	The facts of this case which will include the background are set out in the affidavits of the witnesses, which were tendered into Court and marked as exhibits. These are the affidavits of:

- Pius Pundi, sworn on 30th June, 2010 and filed 7th July, 2010, marked exhibit ‘A’ for the plaintiff.

- Pius Pundi, sworn on 15th April, 2013 and filed 16th April, 2013, marked exhibit ‘B’ for the plaintiff.

- Chris Rupen, sworn 12th February, 2013 and filed 13th February, 2013, marked exhibit ‘1’ for the first defendant.

- Chris Rupen, sworn 15th April, 2013 and filed 16th April, 2013 marked exhibit ‘2’ for the first defendant.

6.	The undisputed facts are that on 3rd September, 2008, whilst conducting a mandatory safety inspection on the MV Gulf Glory (the ‘Vessel’), the second defendant, National Maritime Safety Authority’s (the ‘Authority’) safety inspectors, discovered some deficiencies and defects in the Vessel. They issued directives deeming the Vessel unsafe to proceed to sea, done pursuant to Section 94 of the Merchant Shipping Act (‘the Act’) and ordered that the Vessel not sail.

7.	These directions were based on the Authority’s Navigation and Safety Services Division’s safety inspectors report called the “Marine’s Surveyor’s Report of deficiencies” dated 3rd September, 2008 (‘Inspection Report’), done after the conduct of a Survey and Inspection, such procedure set out under Division 4 of the Act.

The Inspection Report

8.	The Inspection Reports findings were that the vessel should not travel because it contained significant deficiencies. I set out below excerpt from the Inspection Report:

“…
Surveys & Inspection Branch

FLAG STATE CONTROL INSPECTION
MARINE SURVEYOR’S REPORT OF DEFICIENCIES
Name of vessel: Gulf Glory Date of Inspection: 03.09.2008
Type: Landing Craft Place of Inspection: Lae, PNG
Owner: Bismark Maritime
Report Description
Following observation were noted;
Statutory Certificates

1. 1(a) PNG Survey Certificate issued on 07.01.2006 valid until 12.08.2008, periodic endorsement for 2007 and 2008 not sighted.

1(b) PNG Survey Certificate last endorsed by Len Michael, should be endorsed by an officer of the Authority

2. Minimum Safe Manning Certificate (crew mining) issued 12.01.2006 valid until 12.01.2007.

3. PNG Certificate of Registry still contains information regarding the vessel before jumboisation, information do not reflect vessel after jumboisation.

4. International Tonnage Certificate not sighted.

5. International Oil Pollution Prevention Certificate issued by Pacific Register of Ships (PRS) is questionable, is PRS and its surveyors recognized by this authority?

6. Cargo Ship Safety Equipment Certificate exempted by Pacific Register of Shipping as “not applicable” but does not indicate any conditions of exemption. The ship simply does not possesses a cargo ship safety equipment certificate.

Others

1.	Anomalies in dimension;

PNG Certificate of Registry; length 50.50m, GT 531.19 tonnes, NT 268.00 tonnes, issued 31.10.2002 PNG Survey Certificate: length 60.50m, GT 620.00 tonnes, NT 198.00 tonnes issued on 07.01.2006 valid till 12.08.2009. Survey was done by Len Micheal. Ship was jumboised around 2004 and dimensions not updated to current status.

2.	2(a) Document of Compliance for carrying dangerous goods not sighted onboard,
 2 (b) latest edition of IMDG code not found onboard.

3.	Master and Chief Engineer quarters aft of bridge have open windows without covers exposed to weather, install covers or blank off.

4.	Port/stbd funnel flaps into engine room, port side has wheel handle and stbd side do not have, both flaps have ceased to become operational.

5.	Stern light incorrect, currently all round anchor light is used as stern light, correct stern light with sector to be installed separate from anchor light.

6.	Compass to be swung and deviation card produced and provided.

7.	Several fire hydrants on main deck missing rubber seals (“O” rings).

Actions
The good vessel “Gulf Glory” is directed not to proceed to sea until;

1. Anomalies in all statutory certificates above per this notice is corrected and verified to the satisfaction of this Authority.

2. Deficiencies no. 4 and 5 are rectified to the satisfaction of this authority.

Remarks

Other deficiencies per this notice to be rectified within 1 month except deficiency no. 2 to commence next voyage when carrying dangerous cargoes.

Complied by:

(Signed)
………………………
Rony FR Naigu
PSC/FSC Inspector ID # 154
NMSA Regional Office
Lae”
 (my emphasis)

The role of the Safety Officer, Surveyor and now, the Authority

9.	The role of a Safety Officer and Surveyor is provided in SS. 55 and 65 of the Act. Prior to the amendments to the Act, which amendments took effect on 2nd February, 2004 and are set out in the NMSA Act, the Safety Officer and Surveyor were tasked to inspect and survey all vessels. The effect of the amendments are such that it is the Authority that has now taken over the Safety Officer’s role. I set out the relevant provisions below to demonstrate the important , responsible, elaborate and extensive role played by Surveyors and Safety Officers and which role, as stated above, is now overtaken and subsumed by the Authority as a result of the amendments to the Act, prescribed in the NMSA.

10.	This is done to also demonstrate the very wide and onerous task placed on the Authority in ensuring, amongst others, that only seaworthy vessels are put to sea. These provisions are:

i.	 Division 3 of the Act is the part on ‘Requirement for Safety Certificate’.

ii. Unless exempted, Section 61 of the Act provides that a ship will not go out to sea unless it has been issued with a safety certificate, failing which the owner or a master will be fined K2,000.00. This penalty has been amended and increased to K40,000.00 under S. 27 of the NMSA Act.

iii. S. 63 of the Act provides that an Owner or Master who refuses or fails to produce such a certificate to the Safety Officer, is guilty of an offence, the penalty of which is a fine of K2,000.00.

-	 Under S. 29 of the NMSA Act, it is the Authority that now directs the Master of a Ship to produce to him the Safety Certificate.

-	 The penalty has also been amended and increased to a fine of K40,000.00.

iv. The Surveyors powers are as stated in S. 65 of the Act, which is basically that:

- A surveyor may at reasonable times, board a ship and survey and inspect it (S.65(1) (a)).

- Require that the Safety Certificate or any other document, be produced to him (S. 65 (1) (b)).

-	 That he will not unnecessarily detain or delay a ship from going out to sea (S. 65(2) (a)(b)).

-	 A failure to comply is an offence with a penalty fine not exceeding K500.00. That is amended under S. 30 of the NMSA, to now be K10,000.00.

v. Under S. 67 of the Act, if the Owner or Master of a vessel fails to notify the safety officer of damage or alteration or other circumstances that would affect the safety or efficiency of a ship, then that infringement carries a penalty of K500.00 which has been increased to K10,000.00 under S. 31 of the NMSA Act. Section 31 (a) (i) also provides that it is the Authority that has now taken on this responsibility.

vi. The Surveyor, nominated by the Safety Officer under S. 69(3) of the Act, and now the Authority (S. 34 of the NMSA Act), will deliver to the Authority a written report, done upon completion of the survey, after which the Authority will grant a Safety Certificate (S. 70(1) (3) (a) (b) of the Act and S. 35 of the NMSA Act).

vii. And, if the Safety Officer, and now the Authority, is of the opinion that, as in this case, the ship is damaged to such an extent that it is now unseaworthy, that the Safety Officer, now the Authority, shall cancel or suspend the safety certificate. Upon issuing such orders or directions, the Safety Officer, now the Authority, will or may require the ship owner to have the ship re surveyed before the issue of a new certificate or removal of the suspension. (S.71 (1) (2) of the Act and S. 36 of the NMSA Act).

11.	Following the release of the Inspection Report, the Authority, by letter dated 19th September, 2008, under the first Defendant’s signature, issued a letter dated 19th September, 2008 to the Managing Director of Bismark Maritime Limited, the owner of the Vessel. The owner, Mr Hamish Sharp was advised that the deficiencies in the Vessel as stated in the Inspection Report were such that the Vessel was deemed unsafe to sail, done pursuant to Section 94 of the Act. The Detention Notice which is attached to the first defendant’s affidavit as annexure ‘C’ reads in part;

“We hereby, detain the vessel MB (sic) “Gulf Glory” pursuant to Section 96 of the MSA until the National Maritime Safety Authority is satisfied pursuant to section 96 (1) of the MSA, the MV “Gulf Glory” is safe vessel to go to sea.”

12.	At the time of the issue of the Detention Notice, Mr Hamish Sharp was the chairman of the Authority. Both Bismark and him were owners of the vessel. The plaintiff was the Bismark’s Operations Manager.

13.	The Authority, of which the first defendant is General Manager, carried out the responsibilities required of it, under the Act and the NMSA as described above.

14.	I also elaborate on this further below.

Criminal Proceedings

15.	On 24th September, 2008, the first defendant laid a complaint for and on behalf of the Authority, alleging that the plaintiff and one Teddy Eskoi, now deceased, had breached Section 331 of the Criminal Code and that they be arrested. I will set out section 331 later below.

16.	The matter went before the District Court and on 12th March, 2010 in proceedings CB 6319 of 2009 at the Waigani District Court, the plaintiff was committed to stand trial at the National Court Waigani for the offence of sending or taking unseaworthy ships to sea, Charge embodied in Section 331(1) (a) of the Criminal Code.

17.	It was at the Committal proceedings, that the plaintiff raised the issue of the first defendant’s authority as General Manager, to issue notices under the Act.

18.	The Criminal proceedings are now before the National Court as CR 278 of 2010.

19.	On 13th July, 2010, the National Court in proceedings CR 278 of 2010, issued orders staying the hearing of CR 278 of 2010 until after the hearing and determination of the within proceedings.

20.	On 21st February, 2013, CR 278 of 2010 was adjourned sine die pending the outcome of OS 375 of 2012. 

Preliminary Issue - standing

21.	As I stated above, the defendants raise a preliminary issue in relation to the propriety of these proceedings that challenges or questions the plaintiff’s ability to bring these proceedings.

22.	The defendants rely on Section 155 (4) of the Constitution and SCR 2 of 1981 [1982] PNGLR 150. In that case, the Supreme Court held that for the National Court to issue declaratory orders pursuant to section 155 (4) of the Constitution, the following criteria must be met:

1. There must exist a controversy between the parties;

2. The proceedings must involve a right;

3. The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;

4. The controversy must be subject to the Court’s jurisdiction;

5. The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim;

6. The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no proactive utility. (OK Tedi Mining Ltd v. Niugini Insurance Corporation & Ors [1988-1989] PNGLR 425; Tin Siew Tan v. PNG Electricity Commission SCA 66 of 2000 SC 683; Russian Commercial and Industrial Bank v. British Bank Foreign Trade Limited [1921] 2 AC 438).

23.	The Defendants also rely on Zachary Gelu v. Francis Damem, Secretary Department of Justice & Attorney General and the State (2004) N2762 dated 8th December, 2004. In that case, the Court held that the jurisdiction of the Court to grant declarations or injunctions is confined to actions of a public nature and not those of a purely private or domestic nature.

24.	The plaintiffs on the other hand submit that the power to grant declaratory reliefs is limited only by the discretion of the Court (Hanson v. Radcliffe UDC (1922) 2 CH 490, 507; Ibenewka v. Egbuna 1964 1 WLR 219).

25.	Mr Frizzell for the plaintiffs also referred to Tilbury Principles of Civil Remedies Volume 1 at page 349 which cites five (5) general factors which a Court must consider, subject to the weight to be given to each, in the circumstances of each case. These five factors are:

i. the plaintiff has no interest in the subject matter of the proceedings;

ii. The issue is moot or theoretical; 

iii. The grant of declaration is of no practical utility;

iv. There is an equitable defence in the circumstances; and

v. Some other remedy as appropriate.

26.	Mr Frizzell emphasizes that a plaintiff need only have sufficient interest in the proceedings and does not require a cause of action as a condition of being eligible for declaratory relief. He referred me to Australian Conservation Foundation Inc. v. Commonwealth (1980) 146 CLR at 493 and Ken Mondiai & Ors. v. Wawoi Guavi Timber Co. Ltd & Ors SCR No. 7 of 2008, in support of those propositions.

27.	Mr Frizzell re-emphasizes the point that the plaintiff has standing because he has special interest in the subject matter, being the criminal proceedings. 

28.	On that note, I should remind myself that the plaintiff is in Court because he seeks declarations that pursuant to the Act, it is the Authority’s Board that is the sole authority to issue notices to detain a ship, done pursuant to Section 96 of the Act.

29.	The plaintiff also seeks declarations that the first defendant did not have any authority to issue notices under section 94 to declare the Vessel an unsafe ship and to also detain the Vessel pursuant to section 96 of the Act.

30.	And of course, this present proceedings were filed because the plaintiff claims that the first defendant should not have had him referred to the Police who then subsequently charged him, because the first defendant did not have the authority to do so. 

31.	The issue then is, can the plaintiff challenge the first defendant’s actions and decisions, considering the first defendant as General Manager of the Authority, was performing his duties, as provided in the Act and the NMSA Act, which I have set out above.

32.	As far as I can tell, at the time of his arrest, the plaintiff was the Operations Manager of Bismark Maritime Limited. The request to lodge the Criminal proceedings is contained in a letter from the Authority to the Criminal Investigations Division, Boroko, dated 24th September, 2008. This letter is annexure “B” to the plaintiff’s supplementary affidavit sworn on 15th April, 2013 and filed on 16th April, 2013, which is exhibit ‘B’ for the plaintiff. 

33.	To determine whether the plaintiff has standing requires that I point out the elements of S. 331 of the Criminal Code. Section 331 of the Criminal Code, the provision the plaintiff is charged with, reads:

“331. SENDING OR TAKING UNSEAWORTHY SHIPS TO SEA.

(1)	Subject to Subsections (2) and (3), a person who–

(a ) sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be endangered; or

(b ) being a master of a ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be endangered, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2)	It is a defence to a charge of an offence against Subsection (1) to prove that the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable.

(3)	It is a defence to a charge of an offence against Subsection (1)(a) to show that the accused person used all reasonable means to ensure the ship being sent to sea in a seaworthy state.”

34.	In my view, the issue of whether it is the Board or the General Manager who makes the decision to have “a person” (section 331 (1) of Criminal Code) arrested and charged is not dependent on whether Criminal charges should be laid and prosecuted or not. The laying of Criminal charges is at the discretion of the Public Prosecutor. (S. 177 (1) of the Constitution). According to the first defendant, he was merely performing his duties by referring the plaintiff to the Police. And it is for the Criminal Court to decide whether “a person” did send a ship out to sea when it was in an “unseaworthy state that the life of any person is likely to be endangered” (Section 331 (1) (a)).

35.	As to whether the Vessel was in an ‘unseaworthy’ state, is a matter for evidence. The plaintiff should not ‘split up’ a Criminal proceeding by filing separate civil proceedings for the Civil Court to determine the critical elements of a Criminal offence. In my view, that is clearly an abuse of the Court’s process. The Inspection Report and Detention Notice are decisions made by the first defendant in his capacity as General Manager of the second defendant and persons tasked with the responsibility of overseeing and carrying out the functions of the Authority. 

36.	The process of Judicial Review is available to Bismark Maritime Services, to challenge the findings made by the Authority and to stop the Vessel from going out to sea. Having said that, I remind myself what a Declaration is by what I said in Zachary Gelu (supra). There, I referred to M Ntumy’s ‘Administrative Law of Papua New Guinea’ at pg 387 which states:

“A declaration also known as declaratory judgment is a discretionary order made by a high court declaring what the law is. It merely defines and declares the rights of parties and their legal relationship and is not accompanied by any sanction or means of enforcement… The declaration will be granted only if the claim relates to some legal right or interest recognized by law.”
 (my emphasis)

37.	In that case, I also referred to Halsburys 4th Edition Volume 1 (1) at par. 165 which reads;

“In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution and judicially with regard to all the circumstances of the case, and, except in special circumstances, should not be exercised unless parties interested are before the Court. It will not be exercised where the relief claimed would be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercise its jurisdiction. The Court will not make a declaratory judgment where the questions raised is truly academic or the declaration would be useless or embarrassing or where an adequate, alternative remedy is available such as an action for damages.”
 (my emphasis)

38.	In this case, the reliefs sought by the plaintiff are for declaratory orders, amongst others. Halsbury’s 4th ed. vol. 1 (1) states at para. 180 (pg. 290) that:

"The jurisdiction to grant a declaration or an injunction on an application for judicial review is concurrent with the jurisdiction to grant such forms of remedy or relief in actions begun by writ or originating summons. As a general rule a person seeking a declaration or injunction in respect of an infringement of his rights at public law must proceed by way of an application for judicial review, and it would be an abuse of process of the court for such a person to seek redress by way of ordinary action. (see O’Reilly v. Mackman [1983] 2 AC 237). The jurisdiction of the court to grant a declaration or an injunction is confined to reviews or activities of a public nature as opposed to those of a purely private or domestic nature although it appears that applications for judicial review are not confined to those cases where relief could be granted by way of prerogative order." (my emphasis).

39.	Having said that, it is necessary to understand the general rule in relation to the granting of a declaration. The common law prior to 1977 was that an applicant alleging infringement of rights protected by public law could either apply for a prerogative order under O. 53 (Judicial Review) of the rules of the Supreme Court (England) or proceed by action for a declaration or an injunction. Where prerogative orders are sought, O. 53 becomes the sole procedure available (Supreme Court Act 1981). Lord Diplock’s reasons in O’Reilly v Mackman (supra), at pgs 277 and 1128, drew a sharp distinction between rights protected by public law and private law. Lord Diplock was content to rely upon the express and inherent power of the court, exercised on a case by case basis to prevent abuse of its process, as the authority for this general rule (pg. 285, 1134).

40.	Halsbury’s (supra) at para. 65 states, and relying on O’Reilly v Mackman (supra) that "if a person commences an ordinary action where he should have applied for judicial review, the action will be struck out by summary process. Thus, proceedings by action was struck out where the plaintiff sought declaration that the disciplinary awards made by the board of visitors of a prison were null and void because the board failed to observe the rules of natural justice. Similarly, where the plaintiff commenced an action for a declaration that a local authority owed and was in breach of its duty to house him permanently under the Housing (Homeless Persons) Act 1977, for consequential mandatory injunctions and damages, it was held that the plaintiff should not be allowed to challenge the alleged breach by way of action but should proceed instead by an application for judicial review. (see Cocks v Thanet District Council [1983] 2 AC 286 at 295 following O’Reilly v Mackman (supra))."

41.	The scenario before this court is that of a "collateral challenge" where the validity of an order or the lawfulness of an action taken becomes a live issue in an ordinary action. Therefore the question of whether private rights or public rights are in issue is a question of construction and discretion. Sometimes it may not be easy to determine which element is collateral to another. The collateral exception would apply where the private law content of the plaintiff’s claim was so great as to override the public element (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 178416) and para. 65 of Halsbury’s (supra). The court must then construct and exercise its discretion with great care. As to how and the extent to which it can exercise its discretion, was dealt with in Ibeneweka v Egbuna Privy Council [1964] (supra) where Viscount Redcliffe said:

"...the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. ..."

42.	He said further:

"Declarations are not lightly to be granted. The power should be exercised sparingly, and with great care and jealousy, with extreme caution and with the utmost caution". 

43.	Again, as to discretion, Lord Sterndale M.R said in Hanson v Radcliffe Urban District Council court of appeal [1922] 2 CA. 490 at 507:

"The power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide..."

44.	In this case, it is obvious the plaintiff is questioning and challenging the process under the Act and the NMSA Act leading to the issue of the Detention Notice and whether the first plaintiff was empowered under the Act and the NMSA, to issue the Detention Notice.

45.	The process that is challenged is an administrative process of a public authority. The plaintiff's claims are effectively an alleged infringement of his rights at public law. It is not an ordinary action. The first and second defendants' actions or activities are purely of a public nature as opposed to a purely private or domestic one.

46.	What of the Criminal charges pending against the plaintiff?

47.	Apart from S. 331 of the Criminal Code, the Act also prescribes penalties that a Master or Owner of a ship has to bear in the event a ship goes out to sea without a safety certificate. This is provided in Division 3 of the Act (ss.61 to 63). I reviewed those provisions above.

48.	And under s. 71 (1) (c) of the Act, the Authority shall cancel or suspend the safety certificate of the ship. 

49.	These are powers or avenues available to the Authority under the Act, where an Owner or Master of a vessel takes to sea with serious deficiencies in the vessel and, in breach of orders from the Authority, not to sail. The first defendant decided, in this case, to refer the plaintiff for Criminal prosecution, as he was in command of the Vessel.

50.	And it is for the plaintiff to prove in the Criminal Court that he does have a Defence under sub-sections 331(2) and (3) of the Criminal Code. He would have to show that the sending out to sea of the ship "in such unseaworthy state" was "reasonable and justifiable" (section 331 (2) of the Criminal Code). 

51.	He also has available to him as a defence that he "used all reasonable means to ensure the ship being sent to sea in a seaworthy state" (Section 331 (3) of the Criminal Code). And of course, the State would also have to show or prove that the plaintiff is a "person" under S. 331(1) of the Criminal Code, capable of or who has the authority to send a ship out to sea, under the prevailing circumstances at that time.

52.	In my view, the Criminal proceedings are not dependent on the Civil proceedings. The Criminal Court is under no obligation to delve into the manner in which the Inspection Report or Detention Report were issued because all the Criminal Court needs to be satisfied with is that the boat was unseaworthy "and that the unseaworthy state meant that the life of person on the boat was likely to be endangered". (S. 331 (i) (a) of the Criminal Code).

53.	I assume the plaintiff's lawyers made similar submissions they now make, before the Criminal Court, that led to the making of the decision to stay the criminal proceedings. However, that does not mean that the trial Judge considered and accepted all that the plaintiff's lawyers said, as having any merit. It could be that the trial Judge adjourned sine die because it was the proper thing to do. I can only guess without the benefit of transcripts or published reasons.

54.	But reverting again to the issue of standing, the plaintiff is an employee. If anybody should be aggrieved by the actions of the Authority, it should be Bismark Maritime Services ('Bismark'), and/or, Hamish Sharp, not the plaintiff. 

55.	It is Bismark and Hamish Sharp, who should be challenging the manner in which the Detention Notice and Inspection Report were issued because the Detention Notice was not issued against the plaintiff personally, rather against a vessel owned by Bismark. Division 3 and 4 of the Act refers to the "Owner" and "Master" throughout, in the Act and these Divisions. It is they who are aggrieved, not the plaintiff. The plaintiff should just focus on defending the Criminal proceedings separately from these civil proceedings.

56.	The case of Ken Mondiai & Ors (supra) more particularly, where Mr Frizzell's emphasis is focused, that a plaintiff need only have sufficient interest in the proceedings, is accurate in so far as the interests of the plaintiff is directly affected by the actions taken or to be taken. In Ken Mondiai, the referrers who are Ken Mondiai & Ors, are customary timber resource owners who claim that their interests as customary landowners, were affected by the application of certain provisions of the Forestry Act 1991 and Constitution of the Forestry (Timber Permits Validation) Act 2007. They sought and filed the Reference under Section 18 (1) of the Constitution, seeking the Supreme Court's opinion on the interpretation and application of various provisions of the Constitution and to those Acts of Parliament. The Supreme Court was invited to find that certain provisions of those Acts were inconsistent with or in conflict with certain provisions of the Constitution and to declare them unconstitutional.

57.	On the hearing of an Objection to Competency of the Reference, a 5 men bench comprising Injia CJ, Salika DCJ, Sevua .J, Kirriwom .J and Davani .J deliberated on the matter. The majority, excluding Davani .J, formed the view that the Reference was incompetent because Section 18 (1) of the Constitution did not give the Supreme Court jurisdiction to entertain a Constitutional reference brought by a private citizen.

58.	It was I, as the dissenting Judge, who held that a private citizen who has the necessary standing may bring a Constitutional reference under Section 18 (1).

59.	My finding on standing in Ken Mondiai is obiter, with the majority's being the ratio decidendi. My findings were based on the plaintiff's interests as customary landowners, who, in my view were directly affected by the amendments to the legislation. The situation in this case is not the same. Ken Mondiai & others were customary landowners and had a direct interest in the land. In this case, the plaintiff was an employee of Bismark Maritime Limited. Hamish Sharp and Bismark as owner should have filed proceedings for judicial review challenging the actions of the Authority. This is because, the plaintiff's interests are that of a private right and he is seeking to challenge a decision made by a statutory body. He has no standing to do that because he was only an employee of Bismark, at that time.

60.	Clearly, the orders sought in the Originating Summons, being Declarations, challenge the actions of the first and second defendants in exercising their powers under the Merchant Shipping Act. Considering the factors put to the Court by the defendants in SCR 2 of 1981 (supra) which are very relevant, I make these findings:

i. Is there a controversy between the parties? – In my view there is not. The plaintiff was an employee of Bismark when the notices were issued. The controversy is between Bismark and the plaintiff.

ii. Do the proceedings involve a right? - In my view, it is Hamish Sharp and the Bismark Maritime Services rights that have been purportedly breached. It is their rights as owners of the Vessel. It is them who should file Court proceedings.

iii. Does Pius Pundi have a proper or tangible interest in obtaining the order? - Mr Frizzell referred to the fact that there are criminal proceedings pending in the Criminal Court and which is why the plaintiff has an interest. In my view, those proceedings are entirely separate from these civil proceedings. The criminal proceedings instituted and indictment tendered by the Public Prosecutor, is done at the discretionary of the Public Prosecutor, a power he is empowered by legislation to exercise (S. 4 (1) (c) of Public Prosecutor (Office and Functions) Act Chapter 338; S. 525 of Criminal Code; S. 177(1) of Constitution). The Public Prosecutor has done that and the trial process should be allowed to run its course.

iv. Are the proceedings subject to the Court's jurisdiction? - It is a matter that falls within this Court's jurisdiction however, the Court's jurisdiction is also related to the plaintiff's standing. If the Court finds that the plaintiff does not have standing, then the jurisdictional component becomes irrelevant.

v. Do the defendants have a proper or tangible interest in opposing the plaintiff's claim? – In my view, yes.

vi. Is the issue a real one and not merely of academic interest or hypothetical and whose resolution will be of no proactive utility? – The Originating Summons seeks declarations that the notices issued should be declared null and void because the first defendant did not have authority to issue such notices. This incident occurred in 2008. It is now 2013. The plaintiff does not claim damages as a result of the detention. The plaintiff is presently resident in his village. He is no longer employed by Bismark. He has no interest in this civil proceedings. His only interest is the fact that he has been criminally charged for allowing an unseaworthy Vessel to go out to sea when he had specific directives from the defendants not to do so. But he went to sea in any event, upon instructions from his employer, who at that time, was Bismark. The Defence available to the plaintiff under Section 331 (2) and (3) of the Criminal Code is not dependent on a finding by this Court, in my view.

61.	Therefore, I find that the plaintiff does not have any standing to bring this proceeding.

62.	Notwithstanding the fact that I have made a finding against the plaintiff in relation to the issue of standing, I will still proceed to consider the substantive matter because extensive submissions were made by counsel on this.

The Board of the Authority

63.	The issue before the Court is whether it is the Authority's Board, established pursuant to section 1 of the National Maritime Safety Authority Act 2003 ('the NMSA Act'), subject to any delegation of powers pursuant to Section 15 of the NMSA Act, the sole entity that deems ships unsafe, pursuant to Section 94 of the Act.

64.	Then, if so, the related issue would be whether the Board is the sole entity able to issue Detention notices to detain a ship pursuant to Section 96 of the Act.

65.	If such a finding is made, then, in view of the orders sought in paragraphs 2, 3, 4 and 5 of the Originating Summons that the consequential orders would be that the first defendant did not have any authority, as the second defendant's General Manager, to deem the MV Gulf Glory an unsafe ship. Additionally, that the first defendant did not have delegated authority as General Manager, to detain the MV Gulf Glory.

66.	Additionally, if a finding is made that the Board is the only authority to issue written notices, then the notices issued by the first defendant should be declared null and void.

67.	I set in full sections 94 and 96 of the Act, before amendments to the NMSA Act. They read:

"94. Ships deemed to be unsafe.

(1) A ship shall be deemed to be unsafe where the Minister is of the opinion that, by reason of-

(a) the defective condition of the hull, machinery or equipment; or

(b) undermanning; or

(c) improper loading; or

(d) any other matter,

the ship is unfit to go to sea without danger to life having regard to the voyage which is proposed.

(2) In deeming a ship to be unsafe under Subsection (1) the Minister shall, where the ship is a Load Line Convention ship or a Safety Convention ship, have regard to the provisions of the Load Line Convention or of the Safety Convention, as the case may be.
 (my emphasis)

"96. Detention of unsafe ships.

(1) An unsafe ship may be detained until, in the opinion of the Minister, she ceases to be an unsafe ship.

(2) where an unsafe ship is detained, the Minister shall give written notice to the owner or to the master setting out the reasons for detention.

(3) Where a ship is registered in a country other than Papua New Guinea is detained under Subsection (1), the Minister shall, as soon as practicable, cause the Consul or other diplomatic representative of the country in which the ship is registered to be informed of the detention and of the reasons for the detention".
 (my emphasis)

68.	This was prior to amendments to the Act. The National Maritime Safety Authority Act of 2003 has set out in Schedule 2 under the heading "Amendments to the Merchant Shipping Act Chapter 282", amending provisions to the Act. Sections 55, 56 and 58 of the NMSA Act are the relevant amending provisions, affecting sections 94 and 96 of the NMSA Act. Those provisions read:

"55. REGULATIONS FOR LOAD LINES (AMENDMENT OF SECTION 93).

Section 93 of the Merchant Shipping Act (Chapter 242) is amended – 

(a) by inserting after the word "provision" the following:-

(b) in Paragraph (f) –

(i) by repealing the words "Safety Officer" and replacing them with the following:-

"Authority"; and

(ii) by adding after the words "master of the ship" the following:-

"; and

(g) the particulars of the fines to be paid under Sections 90 (2), 90(3) and 91".
 (my emphasis)

56. SHIPS DEEMED TO BE UNSAFE (AMENDMENT OF SECTION 94).

Section 94 of the Merchant Shipping Act (Chapter 242) is amended by repealing the word "Minister" (twice occurring) and repealing it in each case with the following:-

"Authority".

 (my emphasis)

58. DETENTION OF UNSAFE SHIPS (AMENDMENT OF SECTION 96).

Section 96 of the Merchant Shipping Act (Chapter 242) is amended by repealing the word "Minister" (thrice occurring) and replacing it in each with the following:-

"Authority".
 (my emphasis)
 
69.	The NMSA Act establishes the Authority. This is provided in section 3 which reads:

"3. Establishment, etc., of the National Maritime Safety Authority.

(1) The National Maritime Safety Authority is hereby established.

(2) The Authority-

(a) is a body corporate with perpetual succession; and

(b) shall have common seal; and

(c) may acquire, hold and dispose of property; and

(d) may sue and be sued in its corporate name.

(3) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Authority affixed to a document and shall presume that it was duly affixed.

(4) The Authority shall operate-

(a) as a not-for-profit public body; and

(b) on a self-sustaining financial basis through the various fees and levies provided under this Act or any other law, with a view furthermore that the revenue to accrue to the Authority from such fees and levies does not exceed for any prolonged period the costs and expenses incurred by the Authority in the performance of its functions".

70.	Sections 4 and 5 of the NMSA Act provide for the functions of the Authority and powers of the Authority respectively.

71.	Section 6 of the NMSA Act establishes the Board of the Authority. It reads:

"6. Establishment of the Board of the Authority

(1) There is established a Board of the Authority.

(2) The Board shall carry out the functions, exercise the powers and manage and direct the affairs of the Authority.

(3) The Minister may, after consultation with the Board or otherwise, give the Board, by notice in writing, such directions consistent with Government policies and programmes and not consistent with the provisions of the Act, as he considers fit, with respect to the performance and exercise by the Board, subject to the Subsections (4) and (5), shall give effect to all such directions.

(4) Where the Board satisfies the Minister that the Authority has suffered financial detriment as a result of complying with a direction given by the Minister under Subsection (1), the Authority is entitled to be reimbursed by the State the amount that the Auditor-General determines in writing to be the amount of that financial detriment.

(5) The Minister shall not give any direction under Subsection (3) which requires the Board or the Authority to do, or refrain from doing, a particular act, or bring about a particular result, in respect of any particular person or persons".

72.	The Board of the NMSA can also delegate its powers and this is done under Section 15 of the NMSA Act. This sections reads:

"15. Delegation of powers.

The Board may, by written instrument, delegate all or may of its functions and powers, other than-

(a) this power of delegation; and

(b) the power to borrow money or raise loans or give loans or advances or to subscribe to or underwrite the issue of stocks, debentures of business enterprises; and

(c) the powers in relation to the making of by-laws".

73.	Mr Frizzell submits that it is the Board that should make the decision that the Vessel is unsafe to go out to sea, not the first defendant in his capacity as General Manager. He submits that the first defendant did not have any authority at law to make the declaration or detention which he purported to do in the letter of 19th September, 2008 which is annexure 'B' to the plaintiff's affidavit marked exhibit 'A'. 

74.	That letter which is on the NMSA's letterhead is signed by the first defendant in his capacity as General Manager. It reads:

"19th September, 2008
Managing Director
Bismark Maritime Limited
PO Box 750
Lae, 411
Morobe Province

Dear Mr Sharp

SUBJECT: DETENTION NOTICE – MB "GULF GLORY"

As you aware, the National Maritime Safety Authority (NMSA) has been established by the NMSA Act 2003 and is the Authority empowered to administer the Merchant Shipping Act (MSA) 1975.

On the 18th September, 2008, our Port/Flag State Control Inspectors Messer's: Cari Kamang and George Panges inspected your vessel MB "Gulf Glory" pursuant to Section 65 of the MSA. During inspection, the following deficiencies were noted:

1) Minimum safe manning certificate found expired on 12.01.2007;

2) Owner failed to apply for a new safe manning certificate;

3) The crew list and the qualifications (Certificates of Competency) are not in compliance with the prescribed regulations for manning the vessel.

4) The owner failed to apply for a Certificate of Recognition for the Chief Engineer who is a Pilipino nationality.

Furthermore, the above vessel was inspected by our Inspectors in Lae on 3rd September, 2008. As per this Inspection Report, the MB "Gulf Glory" was served with a Report of deficiencies (copy attached) for rectification and the vessel was directed not to proceed to sea. The deficiencies found by our inspectors are as follows:

1) PNG Survey Certificate periodic endorsement for 2007 and 2008 not sighted.

2) Minimum Safe Manning Certificate expired.

3) PNG Certificate of Registry still contains information regarding the vessel before jumboisation. Information does not reflect after jumboisation.

4) International Tonnage Certificate not available on board;

5) International Oil Pollution Prevention Certificate and Cargo Ship Safety Equipment Exemption issued by Pacific Register of Ships (PRS) not recognized.

All the above findings makes this Authority declare the vessel unsafe as stated in the merchant Shipping Act Section 94. We hereby, detain the vessel MB "Gulf Glory" pursuant to Section 96 of the MSA, until the National Maritime Safety Authority is satisfied pursuant to Section 96 (1) of the MSA, the M.V. "Gulf Glory" is safe vessel to go to sea.

Yours sincerely,
National Maritime Safety Authority

(Signed)
_______________
Chris K. Rupen
General Manager"
 (my emphasis)

75.	Mr Frizzell submits that the letter is not with the authority of the NMSA Board and that nor is there any resolution of the Board before the Court that would show that there has been a decision by the Board to declare the Vessel unsafe under Section 94 and to detain under Section 96 of the Act.

76.	He submits that unless the NMSA Board, by written instrument, had delegated those powers to the General Manager under Section 15 of the NMSA Act, then the first defendant had no authority to issue those notices, the subject of these proceedings.

77.	He submits that the first defendant did not have any authority at law to make those declarations or detentions which he purported to do. He submits that it was not until 9th February, 2010 that the NMSA Board delegated those powers to the General Manger in its Circular Resolution 05/2010. He submits that under those circumstances, this Court should make or issue the declarations sought in the Originating Summons.

78.	The first defendant on the other hand, submits that clause 16 of his Contract of Employment gives him the power or mandate to do what he did. Clause 16 states and describes the functions of the General Manager who in this case is the first defendant and those functions are to comply with the Act regulating the Authority's functions and to skillfully and diligently perform all duties and works considered by the Authority to be within the scope of or incidental to his employment under his contract.

79.	Mr Posi for the first defendant submits that the functions of the General Manager as provided in Section 21 of the NMSA Act, gives him the power or authority to sign or execute a detention notice, and to issue such detention notices under his hand.

80.	Mr Posi submits that apart from section 21 of the NMSA and Clause 16 of the first defendant's contract, that the first defendant also has ostensible authority to sign the detention notice and to issue it in the course of his employment with the second defendant as he is performing those functions or duties in the interest and benefit of the second defendant.

81.	Mr Posi for the defendants submits that as General Manager, the first defendant was directing his mind and will for and on behalf of the second defendant and that he was basically giving effect to or implementing the policies of the Independent State of Papua New Guinea and the second defendant, which policy is that all unseaworthy ships or sea going vessels must be safety compliant and must operate within the safety requirements or guidelines as set and implemented by the Government through the Act and its related legislations, including the NMSA Act.

82.	He submits that the Safety Inspectors investigated and inspected the Vessel and were satisfied that the Vessel was unsafe to sail and immediately reported it to the first defendant who then issued the relevant notices to Bismark Maritime Limited informing it that the Vessel should not be allowed to sail as there was no guarantee for the safety of the passengers and cargo on board and for the public at large. However the Bismark Maritime Limited and its employees on the Vessel were adamant to sail the Vessel despite the inspectors directives and so it was for that reason that the first defendant immediately acted to prevent a disaster from occurring by issuing the Detention Notice to prevent the Vessel from sailing.

83.	The defendant's lawyers also submit that the first defendant could not consult the Board members because a decision had to be immediately made regarding the state and safety of the Vessel.

84.	There is also no evidence from the plaintiff on the processes leading to a Board meeting and the calling of Board meeting which would show that the Board had indeed expressed their dissatisfaction at the manner in which the first defendant dealt with the Vessel.

85.	Although the plaintiff can argue that that is not his responsibility, his submissions are that it is the board that makes these decisions. It is incumbent upon him, as Bismark and Mr Sharp's representative, to put that evidence before this Court, failing which the only realistic and acceptable reasoning would be that the everyday, day to day running of the second defendant and decisions to be made, must be by the first defendant in his role as General Manager, and to perform his duties as required of him under his Contract of Employment with the second defendant.

86.	I note that Section 12(1) of the NMSA Act states that the Board shall meet as often as the business of the Authority requires and at such times and places as the Board determines or as the Chairperson directs. Section 12 states further that it shall meet not less frequently than once in every 3 months. If it meets once in every 3 months, then obviously the general everyday functions of the second defendant are carried out by the first defendant.

87.	I do not see how the general, day to day functions of the second defendant will be carried out if the first defendant and all other officers were dependent on the Board's decisions. 

88.	Of course, in accordance with section 21(2) (a) and (e) of the NMSA Act, the General Manager shall:

"a. manage the Authority in accordance with policies and directions of the Board; and 

b. carry out and perform the duties required of him under this Act and under his contract of employment".

89.	In my view, he did. As was decided by Lay .J on 10th May, 2006 in Wamena Trading Ltd v. Civil Aviation Authority of Papua New Guinea N3058, where an issue was raised that a General Manager had no authority to sign Undertaking as to Damages as the Authority to sign it is with the Board of Directors or the shareholder, the Court said that on the evidence the General Manger was directing his mind and will for the plaintiff and that he executed the undertaking as to damages for and on behalf of the plaintiff. (See also AGC (Pacific) Ltd v. Woo International Pty Ltd [1992] PNGLR 100).

90.	This then takes me to the first defendant's contract of employment more particularly clause 21 of the NMSA Act and clause 16 of his contract of employment. These read:

Section 21 of the National Maritime Safety Authority Act

"21. General Manager

(1) The Board shall appoint, through open competition, a General Manager of the Authority who possesses sufficient and appropriate qualification and experience.

(2) The General Manager shall-

(a) Manage the Authority in accordance with the policies and directions of the Board; and

(b) Be responsible, subject to this Act, for directing other staff of the Authority including the authority to hire and fire such staff as are not appointed directly by the Board; and

(c) Advise the Board on any matter concerning the Authority referred to him by the Board; and

(d) Report quarterly to the Board on the financial performance of the Authority against the approved annual budget; and

(e) carry out and perform the duties required of him under this Act and under his contract of employment.

(3) the General Manager has such other duties as the Board shall from time to time determine.

(4) The General Manager may, be written instrument and subject to the approval of the Board, delegate to any staff member of the Authority any of his powers or functions under this Act, except this power of delegation.

(5) The General Manager may appoint such committees as he deems necessary to advise him on any matter in relation to his responsibilities.
 (my emphasis)

Clause 16 of the First Defendant's Contract of Employment 

"16. Performance of Duties and Compliance with the Contract

16.1 The General Manager shall at all times:-

(a) Comply with Acts regulating the Authority's functions and in particular shall comply with the provisions of the National Maritime Safety Authority Act, and the Contract; and

(b) Skillfully and diligently perform all the duties and work considered by the Authority to be within the scope of or incidental to the employment under this Contract or as may reasonably be regarded by the Authority as being within the capabilities of a person engaged in such employment; and without limiting the generality of the above, shall:

(i) provide clear policy direction and instructions to his subordinates for efficient performance or work required by the Authority from time to time;

(ii) ensure that subordinates are provided with regular feedback on their performance and are disciplined as necessary in accordance with the Constitution;

(iii) do all things necessary to maintain or improve the efficiency of the Authority, within budgetary constraints, and shall not exceed the Annual (or other prescribed frequency) Authority's Budgetary Appropriation;

(iv) keep abreast of important technical change that may effect efficiency in the Authority;

(v) Provide professional management of resources and services to the people of Papua New Guinea in accordance with requirements of the Government from time to time; and

(vi) Make every endeavour to comply with performance undertakings make by the General Manager to the Board, as provided for by the Agreement, in order to enable the Board to monitor the General Manager's performance from time to time.

(c) Comply with all lawful orders and directions given by the Chairman of the Board, and without limiting the generality of the above and if instructed so to do shall work additional hours:-

(i) to maintain the operations of Authority and to provide services to the Nation.

(ii) to maintain productivity and achieve work targets as directed by the Chairman.

(iii) in all cases of emergency, and at all other times as required by the Chairman;

(d) undertake the training and instructions of the Authority's staff and employees;

(e) Comply with all the rules, regulations, policies, direction and arrangements of the Authority in force from time to time for the managements and safety of the Authority's resources, its property works, and for the control, good conduct and well being of the Authority's staff and employees;

(f) Comply with the Contract, Board instructions, the Public Service General Orders (as applicable) and Code of Business Ethics & Conduct, and all other Laws of Papua New Guinea.

(g) Not engage in any activity which may directly conflict with the duties described herein, or which may result in public reports injurious to the interest of the Authority.

(h) Not any time during the continuation of or after the termination of this contract except by the direction of the Chairman acting on advise, divulge either directly or indirectly to any person any information or record concerning the affairs of the Authority or any business, property or transaction in which the Authority may be or may have been concerned or interested.
 (my emphasis)

91.	Section 21 gives the General Manager power to manage the Authority in accordance with the policies and directions of the Board and to carry out and perform the duties required of him under this Act and under his Contract of Employment.

92.	As is provided in clause 16 of his Contract of Employment, the first defendant's functions are to comply with Acts regulating the Authority's functions and skillfully and diligently perform all duties and works considered by the Authority to be within the scope of or incidental to his employment under this Contract.

93.	The Act and the NMSA, as I have seen, give or authorize the first defendant as representative of the Authority, to carry out the functions of the Authority. No doubt, it is infact, next to nigh impossible for the Authority to conduct its day to day functions if it were totally reliant on the Authority's Board, to decide on every single decision that has to be made regarding its activities and functions. Immediate decisions to be made in relation to the issuing of safety certificates and detention notices on vessels will be delayed if the first defendant or surveyors have to wait for the Board to sit. 

94.	It should be borne in mind that the issuing of notices has always been the first defendant and second defendant's function. That is not challenged. Divisions 3 and 4 of the Act are very explicit and detailed in the role played by the Authority. The first defendant, as the Authority's representative on the ground and also, an ex officio member of the Authority's board, in accordance with his contract:

- manages the Authority in accordance with the policies and directions of the Board (Ch. 21(2) (a);

- carries out and performs his duties required of him under the Act and his Contract (Ch. 21 (2) (3));

- complies with Acts regulating the Authority's functions including the Act, the NMSA Act and the Contract (Ch. 16.1(a));

- skillfully and diligently performs his duties and gives clear directions to his subordinates to perform work for the Authority (Ch. 16(1) (b) (i));

- complies with all rules and regulations for the safety and management of the Authority's resources; (Ch. 16.1(b) (e)).

95.	There is no evidence from the plaintiff to show that the first defendant had breached the Board's policies or directives or that the first defendant is usurping the second defendant Boards powers. If he was, then I am sure the board would have decided, at a properly convened meeting, that the first defendant had done so. The end result is that the first defendant's powers are derived from both Section 21 of the NMSA Act and Clause 16 of the Contract of Employment.

96.	Additionally, the second defendant, has not disciplined the first defendant for the actions he took because clearly, it is in agreement with the first defendant's actions.

97.	I find that the first defendant performed his duties to the best of his abilities and should not be prevented from performing those duties by frivolous actions filed by parties who have no interest at all in the proceedings, as in the plaintiff's case. The plaintiff should in fact be very much focused on the Criminal proceedings and to put up a good Defence as is available to him under Section 331 of the Criminal Code. And it is Bismark who should challenge the issue of the Detention Notice and other notices, if it is seriously aggrieved by them.

98.	Clearly, this is an untenable, frivolous and vexatious claim. I will dismiss the proceedings filed by the plaintiff.

99.	I also order that the plaintiff pay the first and second defendants' costs of the proceedings, to be taxed if not agreed.

Formal Orders

100.	These are the formal orders of the Court:

1.	The proceedings are dismissed in their entirety;

2.	The plaintiff will pay the first and second defendants' costs of the proceedings, to be taxed if not agreed.

_____________________________---________________________
Warner Shand Lawyers: Lawyer for the first and Second Plaintiff
Rageau Manua & Kikira Lawyers: Lawyer for the Second Defendant