Nobetau v Bougainville Executive Council [2019] PGNC 399; N8066 (14 October 2019)

N8066

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 639 OF 2019

JOSEPH NOBETAU
Plaintiff

V
BOUGAINVILLE EXECUTIVE COUNCIL
First Defendant

And
COLONEL THOMAS RAIVAT
Second defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third defendant

Waigani: Miviri J
2019: 1^st, 8^th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Application for leave – Bougainville Executive Council decision –Contract Chief Secretary Bougainville Termination – Locus Standie – effected by decision – alternative avenues lacking exhausted – arguable case – no delay – application made out – leave granted – cost follow event.

Cases Cited:

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Counsel:

S. Kaule, for Plaintiff
H. White, for State

DECISION

14^th October, 2019

1. MIVIRI, J: After hearing this Application for Leave to Apply for Judicial Review this is the ruling.
   
2. Plaintiff/Applicant was the Chief Secretary of the Autonomous region of Bougainville. He held that position since October 2016 until the 23^rd August 2019 when the decision was made by the Bougainville Executive Council to terminate him. He disputes its validity and propriety hence this review.
   
3. His Originating Summons of the 17^th September 2019 is coupled with the statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules, (“Rules”), and an affidavit verifying the facts, including undertaking as to damages, with his supporting affidavit and a Notice of Application for Leave. All are confirmed served by the Affidavit of Service deposed to by one Pala Wagula dated the 27^th September 2019 and 2^nd October 2019. Initially he had intended to move ex parte on the 1^st October 2019, but by virtue of Section 8 Leave for Judicial Review of the Claims By and Against the State Act, matter was adjourned to allow service and appearance of State counsel in the matter. That is now done hence this ruling.
   
4. Fundamentally it is upon the Plaintiff to satisfy prima facie that he has sufficient interest or locus standi in the matter. In this regard He was employed as Chief Secretary of the Autonomous region of Bougainville from October 2016 to 23^rd August 2019 when the decision was made to terminate him. It has affected him, he is now unemployed. It is the decision of the first defendant: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). He has satisfied this requirement that he is not a busy body, but a person directly affected by the decision of the First Defendant.
   
5. The material also supports that there are no administrative or statutory avenues within the Bougainville Autonomous Government for in house internal address of the matter except recourse to this court. He is therefore properly before this court satisfying this ground.
   
6. And by quick perusal of the material there are serious issues to be tried. His services were terminated on the 23^rd August 2019 as Chief Secretary. But there was none compliance of section 147 (2) of the Bougainville Constitution that appointment, suspension and removal was in the hands of the Bougainville Senior Appointments Committee alias “BSAC” not by the first defendant. And the Bougainville Senior Appointments Act 2014 applied here. It was contrary and the removal was not by law. The process stipulated by section 37 for a recommendation from a board of enquiry was not there following investigation under Section 33 of the same. This is an arguable case demonstrated and this ground is made out by the applicant: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 (13 April 1989).
   
7. The action was filed on the 17^th September 2019 and the decision in question was on the 23^rd August 2019, the Applicant is seeking certiorari he is within the ambit of Order 16 Rule 4 (2) of four months. This ground is satisfied on the required balance.
   
8. That in total is satisfaction of all requirements necessary to be accorded leave. The Applicant’s Affidavit and the material in support have demonstrated to the required level and his application succeeds on all fronts: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). Accordingly leave is granted for judicial review of the decision of the first defendant to terminate his services.
   
9. As a consequence, he will file the substantive Notice of Motion on the review and serve on the Defendants within 14 days.
   
10. The Parties are granted leave to file and serve any affidavits that they may seek to rely on within 21 days.
    
11. The Plaintiff is to serve a draft statement of Agreed and Disputed Facts and legal issues and the draft index within 10 days thereafter.
    
12. The Defendants are to comment and respond within 10 days.
    
13. The Plaintiff is to settle file and serve the Statement of agreed and disputed facts and the legal issues within 10 days.
    
14. The Plaintiff is to settle file and serve the duly certified Review Book within 10 days thereafter.
    
15. The matter will return to court on Monday the 11^th of November 2019 at 9.30 for directions.
    
16. Costs are in the cause.
    
17. The time for entry of these orders is abridged to the time of the settlement by the Registrar which shall take place forthwith.
    

Orders Accordingly.

__________________________________________________________________

Young & Williams Lawyers : Lawyer for the Plaintiff Applicant

Office of the Solicitor General : Lawyer for the Defendants