Kiponge v National Executive Council [2023] PGNC 361; N10510 (22 September 2023)

N10510

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 42 OF 2023

REX KIPONGE
Plaintiff

V

NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
PUBLIC SERVICE COMMISSION

Second Defendant
AND
HON. WALTER SCHNAUBELT in his official capacity as Minister for Transport & Civil Aviation & Shareholder of National Airports Corporation Limited

Third Defendant
AND
JOESPH KITAU in his capacity as the Acting Managing Director of National Airports Corporation Limited

Fourth Defendant
AND
NATIONAL AIRPORTS CORPORATION LIMITED

Fifth Defendant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant
Waigani: Miviri J
2023: 13^th & 22^nd September

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 13 (13) (1); Order 16 Rule 3 (4); Order 16 Rule 6 (2) NCR – Statement Pursuant to Order 16 Rule 3 (a) NCR – Application for Leave To Amend Statement & Substantive Notice of Motion – Amendment Proposed Introducing New Ground not Subject of Grant of Leave – Order 16 Rule 3 (4) NCR Hearing Application for Leave Amendment Allowed Statement – “And any other subsequent decision in relation to the appointment of the Managing Director of the National Airports Corporation Limited” – Intent On Decision In the Future Whatever it maybe – New Ground – Whether Amendment Crystalizes the Controversy Between the Parties – Whether Amendment Appropriate – Whether Amendment is Justified – Material Relied Insufficient – Balance Not Discharged – Leave Refused – Cost On Indemnity Basis Following Event.

Cases Cited:

Dads Investment Corporation Ltd v Samson [2021] PGNC 77; N8828
Inugu v Maru [2020] PGNC 404; N8649
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273
Pandum v National Executive Council [2019] PGNC 306; N8019
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Counsel:

B. Poki, for Plaintiff
T. Cook, for Third Defendant
L. Baida, for Fourth & Fifth Defendants.
K. Kipongi, for First & Sixth Defendants

RULING

22^nd September 2023

1. MIVIRI, J: This is the ruling on the plaintiff’s Notice of motion of the 09^th August 2023 seeking leave to amend his Statement filed of the 12^th May 2023 and substantive Notice of Motion filed the 06^th July 2023.
   
2. The new ground sought is in the following terms that the Court quash the NEC decision to revoke his appointment as MD of NAC and to appoint the fourth defendant as MD of NAC “and any other subsequent decision in relation to the appointment of the Managing Director of the National Airports Corporation Limited.”
   
3. The language here is as to any other subsequent decision which looks into the future, a decision that has not been made but with all probabilities will be made. It is not based on material facts that are already before the Court which in aggregate give that assumption. It is really drawing the Court to look into the future without the evidence and the law to back it up to make that decision. The Court is not of fantasy and mirth, but of evidence and dwells on evidence to prime out the decision it makes, not without. Because Leave here was granted on a crystalized issued for Judicial review to review the decision of the First Defendant made of the 20^th April 2023 by notice in the National Gazette No. G302 dated the 27^th April 2023. That decision revoked the appointment of the plaintiff as Managing Director of the National Airports Corporation Limited in accordance with section 147AG (4) and 147AF of the Civil Aviation Act 2000 (as Amended). And sections 6 and 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, upon the recommendation from the Public Services Commission.
   
4. In my view there are prima facie errors of law committed by the first defendant. Reading the law cited prima facie there is ultra vires and abuse of powers and action in excess of the powers by law by the first and the third defendants. Including a denial of Natural Justice and unreasonableness in the action prima facie by the first and the third defendants against the plaintiff. In the way it is pleaded in the statement pursuant to Order 16 Rule 3 (a) of the Rules. His own affidavit of the 12^th May 2023 set outs very clearly what is set out in the Statement. I am convinced that he has discharged the balance that he has an arguable case. And that he has standing, locus standie as he is directly affected by the actions of the defendants. The decision has effectively taken him out of the seat that he still had three more years to go to serve as Managing Director and CEO of NAC. And there are no internal avenues to process what has happened in the decision that has been taken by the National Executive Council a public body. He is not circumventing an internal process as there is none within and he has opted to come within establishing law: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70.
   
5. That decision made by this Court on the 19^th June 2023 granting leave covers in detail all material that was before it to make that decision, summary of which I set out above. And viewing it the amendment proposed here is not justified. Because what is proposed now and sought out is new ground. It is decision not yet made relating to the subject of that position. And in a way would be analogous to a stay which is hatched a new. It is not warranted in the way it is sought out. It cannot simply be added to what has already been the subject of detailed Judgment in favour of the applicant plaintiff. The material and the basis of the grant of leave for Judicial Review has already been exhausted by the determination made in that grant. And the amendment sought set out above is not appropriate given. Because the reasoning of the court to grant is already glossed out. It is not sought out in good faith having seen two applications for Stay refused by this Court in Judgements earlier delivered on 13^th July 2023, and on 31^st July 2023. And it is clear from the language of the amendment proposed set out above. It looks into the future at decisions yet to be made which is not what Judicial review is all about.
   
6. Because Judicial review is a very restrictive domain, and the pleadings warrant Firstly that applicant is directly affected by the actions of the defendants: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). And the process so effecting is set out leading to grant of leave: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). He has satisfied that prima facie he is directly affected by the actions of the defendants. Here both amendments sought for the Statement and the substantive notice of motion give rise to new issues on decision that are not evidenced before the Court. And which are in dream rather than reality. And cannot be the subject sought of amendments because they do not fall into the categories set out by Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010). Because what is the subject sought is not before the Court.
   
7. In my view the controversy between the parties have been adequately covered and addressed in that application granted for leave on the 19^th June 2023. Therefore, what is proposed will not cure any defect in the pleading or error apparent in the proceedings. It however on the contrary will cause prejudice to the parties opposing as it is new ground not initially pleaded and the subject of the decision by this Court. Leave has already been exhausted and introduction of new ground here will not be allowed pursuant Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002):
   

“Because judicial review is concerned with the process rather than the substance. And therefore, to recount in the way that has been proposed set out above would draw in matters external to the decision-making process affecting the plaintiff. This in my view is not allowed because leave is specific at the decision subject of review and not beyond as intended nor of all or any other matters. Judicial review has by order 16 rule 4 a time limitation of 4 months in which to begin the process. Drawing in matters of 8^th December 2010 to a decision possibly around 5^th September 2017 for which leave was granted would in my view defeat the purpose of Judicial review particularly with reference to the matters set out above: Dads Investment Corporation Ltd v Samson [2021] PGNC 77; N8828 (18 May 2021).

8. And so, it follows that this application will not serve the Justice of the case but rather like the application earlier made for Stay, it seeks to interfere with the due process administrating justice Pandum v National Executive Council [ 2019] PGNC 306; N8019 (23 September 2019). By that fact it is made in bad faith because prudence is working alongside with the other side to the dispute and controversy to resolve it. And where the matters now the subject have been drawn by the other side to the dispute by notice here in the case the fourth and fifth defendants of the 06^th September 2023 affidavit of Livingstone Baida of 07^th September 2023, filed of the 08^th September 2023, that is basis where ignorance of the law becomes no excuse for the applicant and counsel. It follows that what was evident and important to both sides were drawn out to the applicant. Including forewarning as to what was due the other side if the applicant insisted as he has done now, costs on an indemnity basis should the motion fail. It makes sense glossed in the light of Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010), time has been unnecessarily wasted on a matter that is not open given the law and the facts set out above. It was bound to fail and indeed has failed here. The waste drawn to the detriment of the other side must be compensated on indemnity basis, because its effect is court time and logistics without the nexus due Justice. Liberty to pursue Justice is within the parameters of law given not without and forewarning has been forecasted the applicant: Opi v Telikom PNG Ltd [2020] PGNC 168; N8290 (29 April 2020). It follows that costs are against the applicant in favour of the defendants on an indemnity basis forthwith.
   
9. Leave to amend is discretionary and will be granted where the real issues will be determined without prejudice to the parties: Inugu v Maru [2020] PGNC 404; N8649 (20 November 2020). Here the law coupled with the facts do not lead that leave be accorded as applied. It will be refused forthwith. And costs will follow the event forthwith on an indemnity basis against the applicant in favour of the defendants.
   
10. The formal orders of the court are:
    
    • (1) Leave to amend the Statement and Substantive Notice of motion is refused forthwith.
    • (2) The matter will revert to direction on Monday 2^nd October 2023 at 9.30am for confirmation of hearing of the substantive matter.
    • (3) Costs will be on indemnity basis to follow the event against the applicant in favour of the defendants forthwith.

Orders Accordingly.

__________________________________________________________________

Kalit Legal Consulting: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the First & Sixth Defendant

Nelson Lawyers: Lawyers for the Fourth & Fifth Defendants

Kuman Lawyers: Lawyers for the Third Defendant