Kulangil v Temu [2021] PGNC 231; N8907 (25 June 2021)

N8907

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 637 OF 2018

BETWEEN:
GARRY KULANGIL, ROBERT POSU, ALEX AWESA & FR. ROBERT GIGMAI IN THEIR CAPACITY AS COURT ENDORSED INTERIM MEMBERS OF THE MENDI PROVINCIAL HOSPITAL BOARD TO OVERSEE THE SOUTHERN HIGHLANDS PHA BOARD
Plaintiff

AND:
HONOURABLE SIR PUKA TEMU IN HIS CAPACITY AS THE MINISTER FOR HEALTH AND HIV/AIDS
First Defendant

AND:
HONOURABLE WILLIAM POWI IN HIS CAPACITY AS THE GOVERNOR FOR SOUTHERN HIGHLANDS PROVINCE
Second Defendant

AND:
THE SOUTHERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY BOARD
Third Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2021: 03^rd & 25^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application for Judicial Review – Decision challenged not in court – Pleadings without evidence – No cause of Action – Order 13 (13) (1) & (2) (b) (a) NCR – Balance not discharged – Motion dismissed – cost follow event.

Cases Cited:

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Dupnai v Weke [2016] PGSC 43; SC1525
Lupari v Somare [2008] PGNC 121; N3476
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

O. Ona, for Plaintiff
Nil for Defendant
RULING

25^th June, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s notice of motion for judicial review. He seeks an order in the nature of a certiorari to move into the court and to quash the purported decision of the fourth defendant of the 07^th June 2018 and gazetted in the National Gazette on the 26^th and the 27^th June 2018.
   
2. A declaration that the National Executive Council decision purported to have been made on the 07^th June 2018 and gazetted in the National Gazette on the 26^th and the 27^th June 2018 is and was invalid null and void and of no effect.
   
3. An order in the nature of mandamus to order or direct the Minister for Health and HIV/AIDS to submit names properly nominated to his office by the appropriate nominating sectors, panels or authorities prescribed under section 17 (2) (a) (b) (c) (d) (e) and (f) of the Provincial Health Authority Act to be nominated.
   
4. The relevant law is the Provincial Health Authority Act 2007. For our purposes here the relevant provision is Section 17. CONSTITUTION OF BOARDS.

(1) Subject to this section, a board shall consist of a maximum of nine members appointed, on the nomination of the Minister, by the Head of State, acting on advice.

(2) After consultation with the Governor of the province or Governor of National Capital District, as the case may be in which the provincial health authority is located, the Minister shall nominate nine members for appointment to a Board under Subsection (1) of whom –

(a) one is a representative of the National Department of Health nominated by the provincial administrator or manager as the case may be; and
(b) one has knowledge and experience of district affairs in the province and is nominated by the provincial administrator or manager as the case may be; and
(c) three are experienced members of the local business sector nominated by the provincial Chamber of Commerce and Industry or like organisation, where no such organisation exists, as nominated by the Minister; and
(d) one is member of a local run or Christian organisation nominated by the Church Medical Council or like organisation; and
(e) one is a woman with a high level understanding of issues for women of the province nominated by the Provincial Women’s Organisation or like organisation; and
(f) two are members of the local community appointed by a panel consisting of the Chief Executive Officer, the provincial administrator or manager as the case may be and a representative of the local community.

(3) If the Minister is satisfied that –

(a) reasonable steps have been taken to locate suitably qualified persons; and
(b) no persons have been located in the province who are suitably qualified and available for one or more of the positions on the board as required in Subsection (2),

the Minister may nominate less than nine members for appointment to the Board.

(4) A vacancy in board positions created by operation of Subsection (3) may be filled as soon as –

(a) reasonable steps are taken to locate a person or persons in the province who are qualified and available to fill such vacant position or positions; and
(b) a person or persons are located who are qualified and available for any or all vacant positions; and
(c) the Minister is informed that a person or persons have been nominated in compliance with Subsection (4) to vacant position or positions on the board.

(5) A Board constituted under Subsection (1) shall also include, as and ex officio member the provincial administrator or manager as the case may be who shall be advisory member of the Board.

(6) The person appointed as an advisory member of the Board under Subsection (5) shall be entitled to attend all meetings of the Board of which he or she is a member and shall be entitled to take part in debate but shall not vote on any matter or be counted towards a quorum.

5. This section at the outset says the nomination is by the Minister who is the first defendant here. He is the portfolio Minister for health and HIV/AIDS. And therefore, he fulfills section 17 in the way he discretions but the persons who are in and composing the hospital board would comprise section 17 (2) (a) to (f). They will make up the composition of the hospital board here that of Mendi hospital. This is purportedly of the composition of the Mendi Hospital Board.
   
6. There is allegation of excess of power or ultra vires: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. But that cannot be demonstrated on the balance of probabilities here because there is no record to point to identify the error that is on the face of the record of the decision made by the Minister for Health HIV/AIDS.
   
7. This is a matter where the subject decision that is challenged is not on the records of the proceedings. That is quite clear from the ruling of the Court given on the 20^th November 2020 that there was no review book and it could not be dispensed with. As it is the affidavit material do not substitute nor do they advance the course applied for leave to dispense with the requirements of a review book. Order 16 Rule 13 (7) clearly sets the duties of compiling the review book upon the applicant or his lawyers and not anyone else. It is he who seeks to bring the matter forward by the institution of OS 637 of 2018 and it will be he who will ensure that is brought within since grant of leave of 20^th November 2018 which is 2 years since and there is no review book on the records of the Court. Order 16 Rule 13 (7) (6) (a) (i) to (xiii) specifically sets out the composition of a review book. It has not been compiled and has been outstanding now for 2 years since the grant of leave. For that reason, this matter has not gone onto the prehearing conference where the correctness of the review book will be confirmed. Because there is no review book. It is a serious fact that will lead whether or not this action sustains to finality as pleaded.
   
8. Affidavits do not compose the decision reviewed and will not substitute in a judicial review proceedings. Because the decision at first instance effecting the plaintiff applicant will be firsthand from the custodian as in the case of the land by the land board or the minister or even the court as in Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016), or in Public Service by person making the decision, Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008). Because judicial review is a very restricted procedure: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here there is no reason to grant leave to dispense with the requirements for the review book. The material filed do not sway that this is accorded. Accordingly, the motion is refused.
   
9. In this judicial review proceeding a decision of the Minister for Health and HIV/AIDS is challenged but that very decision is not on the record of the proceedings to see where it is wrong so that it is brought up and quashed by the writ of certiorari pleaded. It means in effect that for all intent and purposes there is nothing to be gauged against to point out on the record of the proceedings where the Minister has gone wrong and so the correction by the writ.
   
10. Nor can there be declaration because there is no decision from which to work on to declare analysed with the law. And it follows that there is nothing to compel by mandamus for anyone at all.
    
11. The arguments advanced do not hold water because reliance on the affidavit of Alex Awesa will not substitute for the record of the decision of the Minister for Health and HIV/AIDS. His evidence is without any merit to the pleading on the Notice of motion which is set out above.
    
12. The action is simply a waste of time and really is without cause and must be dismissed as such pursuant to Order 16 Rule 13 (13) (1) & (2) (b) (a) of the National Court Rules. Accordingly, it is dismissed forthwith pursuant.
    
13. The formal orders of the Court are:
    
    • (i) The application for judicial review is dismissed in its entirety as being without merit.
    • (ii) Cost will follow the event on a solicitor client basis if not agreed to be taxed.
      

Orders Accordingly.
__________________________________________________________________

Ona Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants