Baki v Kramer [2019] PGNC 348; N8023 (26 September 2019)

N8023

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 466 of 2019

BETWEEN:
GARI BAKI
Plaintiff

AND:
HON. BRYAN KRAMER
Minister for Police
First Defendant

AND:
HON. JAMES MARAPE, MP,
Prime Minister and Chairman of the
National Executive Council
Second Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
HON. DAVIS STEVEN
Minister for Justice & Attorney General, and
Representative of the Head of State

Fourth Defendant
AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Defendant

AND:
FRANCIS TOKURA
Sixth Defendant

Waigani: Thompson J

2019: 18^th & 26^th September

APPLICATION FOR LEAVE TO PROCEED BY WAY OF JUDICIAL REVIEW – whether Plaintiff lost standing due to passage of time – whether passage of time made declaratory relief futile – principles applicable to declaratory relief

Counsel:

Mr. F. Kuvi, for the Plaintiff
Mr. D. Wood, for the Defendants

26^th September, 2019

1. THOMPSON J: BACKGROUND: On 7 May 2015 the Plaintiff was appointed the Commissioner of Police for a term of four years. After the term ended, on 8 May 2019, the Plaintiff was appointed as Acting Commissioner of Police (“ACP”) for a term of three months or until a permanent appointment was made, whichever first occurred.

2. On 4 July 2019 the 1^st Defendant directed the Plaintiff to cease work as ACP, and on 5 July 2019 the 3^rd Defendant revoked the appointment.

3. On 12 July 2019 the Plaintiff issued these proceedings, seeking leave to proceed by way of judicial review against these two decisions.

4. The 6^th Defendant was appointed as ACP for a term of three months from 5 July 2019.

5. On 12 July 2019 the Plaintiff filed a Notice of Motion seeking to stay the two decisions and to restrain the Defendants from implementing the decision to appoint the 6^th Defendant. This Motion was withdrawn on 21 August 2019.

6. The Plaintiff’s Application for Leave was heard on 18 September 2019.

Issues

7. It was not in dispute that by the time this Application for Leave was heard, the term of the Plaintiff’s acting appointment had already expired, on or about 7 August 2019.

8. In order to be granted leave, the Plaintiff must show that he has sufficient interest and standing to bring the proceedings, that there has been no undue delay in bringing the proceedings, that he has exhausted all alternative remedies and that he has an arguable case on a prima facie view. (see Kekedo v Burns Philp (PNG) Ltd & Others (1988-89) PNGLR 122, Manjin v PTC (1990) PNGLR 288, et al).

9. In relation to standing, the Plaintiff was the subject of the decisions which he seeks to review, and so had sufficient standing to bring the proceedings at the time.

10. The Plaintiff did not delay in bringing these proceedings within a week or so of the decisions being made.

11. In relation to alternative remedies, the Plaintiff says there are none. The State says that the Plaintiff was an officer in the Public Service, and so pursuant to S18 of the Public Services (Management) Act 1995, the Plaintiff was entitled to have the decisions reviewed by the Public Services Commission. As he did not do so, he has not exhausted available remedies.

12. Section 30 of the PSM Act 1995 provides that a person who is appointed to be a departmental head with a contract of employment, shall, on termination of his employment in accordance with the contract, cease to be an officer of the Public Service.

13. The decisions which are the subject of the review proceedings, were made pursuant to S193 of the Constitution. These provide relevantly that acting appointments to the office of Commissioner of Police are made by the Head of State acting on the advice of the NEC given after consultation with the PSC. It is unclear if this makes the Plaintiff an officer in the Public Service.

14. On a quick perusal of the documents, it is at least arguable that the Plaintiff may not be an officer in the Public Service, and so has no alternative remedies available.

15. In relation to the arguable case, because of the passage of time, the Plaintiff is no longer able to seek all the relief which he originally sought. As the term of his acting appointment has expired, he is now restricted to seeking declaratory relief, namely, declarations that the decisions which revoked his acting appointment before its expiry, were not valid.

16. The Plaintiff’s legal basis for this claim, is that the reason given for the revocation was that he had passed the retirement age of 60, but that the provision in the Police Act relating to the retirement age of 60 for police officers, does not apply to Commissioners of Police. The Defendants’ response is that the Plaintiff’s employment is still governed by the PSM Act. After the PSM Act 2014 was found to be unconstitutional by the Supreme Court in April 2019, it is the PSM Act 1995 which is now in force, and this Act provides that the compulsory retirement age is 60.

17. The Plaintiff has demonstrated an arguable case on whether or not the decision to revoke his acting appointment because he had passed the retirement age of 60, was valid.

18. However, even if errors can be shown in the decision-making process, it does not mean that the Plaintiff is entitled to relief. It is always in the discretion of the court as to whether or not relief should be granted, if it would serve a useful purpose, and this is to be determined by reference to all the circumstances of the case and to avoid injustice.(see Mision Asiki v Manasupe Zurenuoc and ors (2005) PGSC 27, et al).

19. The only relief sought by the Plaintiff here, is a series of Declarations. The principles applicable to the grant of declaratory relief are set out in Joe Seeto v Internal Revenue Commission(2008) PGNC224, as confirmed by the Supreme Court in The State and others v Central Provincial Government (2009) PGSC 2.

20. The factors that need to be established are:

(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 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 tangible interest in opposing the Plaintiff’s claim;

(6) The issue must be a real one, not merely of academic interest, hypothetical, or one whose resolution would be of no practical utility.

21. Due to the passage of time, there is no longer a controversy between the parties over the revocation of the acting appointment, because the term of the appointment has in any event expired. The Plaintiff is no longer either the Commissioner or Acting Commissioner, and so he has no tangible interest in obtaining the relief, and he no longer has any legal right.

22. The Plaintiff has submitted that although the term has already expired and so the resolution of the issue is of no practical utility to him, it would be useful for other police commissioners. He also submits that, if his view of the retirement age is correct, he could potentially be appointed to another position in the future, and therefore the issue is relevant to him. However, as the basis for his claim applies only to Commissioners of Police, that is the only position to which he could potentially be appointed which would make the issue relevant to him.

23. The hypothetical possibility that at sometimes in the future the Plaintiff could be appointed Commissioner of Police, does not make the issue a real one. It is not sufficient for the issue to be of hypothetical interest. The determination of the issue in this case would be no practical utility to the Plaintiff, as his appointment has already expired.

24. As there is no real controversy between the parties whose resolution would be of practical utility to the Plaintiff, it would not be appropriate for declaratory relief to be granted.

25. For the same reason relating to the passage of time, the Plaintiff also no longer has sufficient standing to bring these proceedings. He no longer has a sufficient interest in having the revocation of his appointment set aside, because his appointment has subsequently expired, and it was in any event only an Acting Appointment.

Findings

26. Although the Plaintiff has not delayed in bringing these proceedings, and may have exhausted alternative remedies, he has not shown that he still has sufficient interest and locus standi to bring the proceedings.

27. He has also not shown that he has an arguable case for the grant of declaratory relief. The passage of time has meant that there is no longer a controversy between the parties, and the issue of whether or not his Acting Appointment was validly revoked before it expired, is now only hypothetical, and its resolution would be of no practical utility.

28. For these reasons, I make the following orders:

(a) The Plaintiff’s Application for Leave to proceed by way of Judicial Review, is refused.

(b) Each party is to pay its own costs.
__________________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Plaintiff
Ashurst PNG: Lawyers for the Defendants