Andrias v Kapavore [2017] PGNC 288; N7007 (8 November 2017)

N7007

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 736 OF 2017
BETWEEN:
JOHN ANDRIAS, ACTING SECRETARY FOR THE DEPARTMENT OF TRADE COMMERCE AND INDUSTRY
Plaintiff

AND:
HON. ELIAS KAPAVORE, MINISTER FOR PUBLIC SERVICE
First Defendant

AND:
JOHN M. KALI, SECRETARY FOR THE DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
ANDREW LILIURA
Fourth Defendant

Waigani: Nablu, J
2017: 26^th October
8^th November

JUDICIAL REVIEW – leave application – decision of the Minister for Public Service – acting appointment of departmental head – s. 19, Public Service (Management) (Employment of Departmental Heads) Regulations 2014 – acting appointment lacks sufficient interest – Leave refused.

Cases cited:
Helifix Group of Companies v. Papua New Guinea Land Board (2012) SC 1150
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959
SCR No.4 of 1980; Petition of Michael T. Somare [1981] PNGLR 265

Counsel:
Mr A. Kuria, for the Plaintiff
Mr N. Yano, for the State

RULING ON LEAVE

8^th November, 2017

1. NABLU, J: John Andrias, the acting Secretary for Department of Trade, Commerce and Industry seeks leave to review the decision of the Head of State to revoke his acting appointment and appoint the fourth defendant as the Acting Secretary. The decision was published in the National Gazette G718 of 2017 and dated 13^th September 2017.

2. The application for leave is made pursuant to Order 16 Rule 3 of the National Court Rules and supported by the amended Statement in Support filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules and verified by the plaintiff’s affidavit filed on 28^th September 2017.

3. If leave is granted, the plaintiff seeks to quash the decision of the National Executive Council and the Head of State to revoke his acting appointment and appoint the fourth defendant as the Acting Secretary.

4. The background facts of the matter are provided in the affidavit of John Andrias. He stated that the National Executive Council (NEC) appointed him as the Acting Secretary of the Department of Commerce, Trade and Industry on 20^th May 2017. The acting appointment was effected until further notice. It is not disputed that the plaintiff’s substantive tenure as the Secretary expired on 30^th April 2017. The acting appointment was necessary to ensure that the work of the department was not disrupted whilst the Government re-advertised the position in the open market.

5. Then on 1^st September 2017, the Minister for Public Service pursuant to his delegated powers under the Constitution and the Public Services (Management) Act 2014 and Regulations decided to advice the Head of State to appoint Mr Andrew Liliura to act as the Secretary until a substantive appointment was made. Pursuant to that Ministerial advice the Head of State then revoked the plaintiff’s acting appointment and appointed the fourth defendant to act as the Secretary for a period of three (3) months or until a substantive appointment was made.

6. Mr Yano of counsel for the State appeared and contested the application. The main points relied on by the State to support their contention; were that the plaintiff did not have sufficient interest or standing to challenge the decision and that the plaintiff did not have an arguable case.

7. The main legal issue for determination is, whether the plaintiff has sufficient interest to seek judicial review. If the plaintiff has sufficient interest then, the next issue is whether the plaintiff has an arguable case.

8. I have read and considered the written and oral submissions by both counsel. I will deal with the issue of sufficient interest first.

9. Mr Kuria of counsel for the plaintiff submitted that the plaintiff has sufficient interest in the matter because he is directly affected by the decision subject of the leave application.

10. The State on the other hand submitted through counsel, that the plaintiff did not have standing because his contract of employment had expired and the acting tenure was for a period of three (3) months which has also expired around the end of August 2017.
11. Order 16 Rule 3(5) of the National Court Rules (NCR) provides the test for determining locus standi. The Court shall not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.

12. If a plaintiff cannot show that he has sufficient interest than the Court cannot invoke its’ powers of judicial review.

13. Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the plaintiff and the subject matter of his complaint. In the case of Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, His Honour Justice Sheehan stated that;

“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”

14. The determination of standing is only possible with an examination of the complaint itself.

15. In the landmark case of SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265, the Supreme Court recognised the right of a citizen to challenge the legality of or constitutionality of legislation.

16. In this jurisdiction the Court has generously interpreted the term “sufficient interest”.

17. In the recent case of Helifix Group of Companies v. Papua New Guinea Land Board (2012) SC 1150; the Supreme Court dismissed an appeal against the decision of the National Court to refuse leave for judicial review. In that case, the Supreme Court was of the view that the appellant was a mere applicant for a State Lease. The appellant did not have a right or a legitimate expectation capable of been protected by invoking the Court’s inherent supervisory jurisdiction.

18. In the present case, I am of the considered view, that the plaintiff does not have sufficient interest to invoke the Court’s inherent supervisory jurisdiction. Upon a close examination of the Gazettal Notice No. G392 of 18^th May 2017, it is not disputed that the appointment was an acting appointment. Secondly, the acting appointment was effective from 1^st May 2017 until further notice. Thirdly, the acting appointment was made pursuant to the advice of the Minister for Public Service and the recommendation of the Ministerial Executive Appointments Committee.

19. In the latter gazettal notice G718 of 2017, it is clear that the acting appointment of the plaintiff was revoked and the fourth defendant was appointed for a period of three months or until a substantive appointment was made, whichever occurred first. The appointment was also made on advice by the Minister for Public Service and based on the recommendation of the Ministerial Executive Appointments Committee.

20. It is my considered view, that the plaintiff does not have sufficient interest or a right capable of been protected by judicial review.

21. Even if I am wrong the plaintiff does not have an arguable case. The plaintiff’s grounds of review as stated in the Statement of Support contained allegations that the prescribed procedure was not complied in regard to the fourth defendant’s appointment. The plaintiff contends that Section 19 of the Public Services (Management) (Employment of Departmental Heads) Regulations 2014 was not complied with and there was no vacancy which existed at the time the appointment was made. The plaintiff’s term of appointment had expired and his contract of employment had expired there was in fact a vacancy within the meaning of Section 19(1)(a) of the Regulations. Therefore, that ground is not arguable.

22. The plaintiff also challenges the decision on the ground that there was no formal revocation or subsequent National Executive Council decision revoking his appointment as the acting Secretary. In other words, the Minister for Public Service exceeded his powers. This ground is also not arguable. Section 19 (3) of the Regulations is clear, the Minister for Public Service is delegated the power to make acting appointments by the NEC. The Minister for Public Service is empowered to advise the Head of State to make acting appointments where there is a vacancy. There is nothing unreasonable or irrational with the decision. There is also clear evidence in the gazettal notice that the plaintiff’s acting appointment was revoked. This ground is not arguable.

23. I am not convinced that the Minister for Public Service had a duty to give reasons to the plaintiff in regard to the revocation of his acting appointment. Firstly, the Minister has the prerogative to appoint anyone who was employed within the department to act in the position when there is a vacancy. Therefore, I am of the view that the plaintiff does not have an arguable case.

24. Again, even if I am wrong and the plaintiff has one or two points which may be arguable, I am mindful that this is a challenge of an acting appointment. The acting appointment tenure according to Section 19(1) of the Regulations should only be for a period of three (3) months. By the time leave is granted and this matter is ready for trial there may be no utility in the proceedings because the circumstances may have changed or overtaken, for example a permanent appointment may be made by the National Executive Council. This would be a waste of not only the Court’s time but a waste of time and costs by the parties to prosecute or defend this matter.

25. In my view it is really not worth challenging the decision to make acting appointments. The appointing authority is empowered, like in the present case, to make an acting appointment for a person to act where there is a vacancy. The plaintiff’s contract has expired. The contract was not renewed. There was a vacancy within the meaning of Section 19(1) of the Regulations. The Minister is not compelled to appoint the previous incumbent of the position. He exercised his discretion to appoint the fourth defendant. Normally, greater deference should be paid to the administrative decision – maker since they are better placed to make the decision and are aware of the circumstances that support their administrative decision.

26. For the foregoing reasons and in the exercise of my discretion the plaintiff’s application for leave is refused and is dismissed forthwith. The plaintiff is to pay the third defendants’ costs of the application to be taxed if not agreed.
Orders accordingly
___________________________________________________________
Kuria Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General : Lawyers for the Third Defendant