Kiponge v National Executive Council [2023] PGNC 412; N10377 (19 June 2023)

N10377

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
JOSEPH KINTAU 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: 15^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 3 (1) NCR – Statement Pursuant to Order 16 Rule 3 (a) NCR – Application for Leave – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Arguable case – Locus Standi – Exhaustion of Internal processes – Delay – Material relied sufficient – Balance discharged – Leave granted – cost in the cause.

Cases Cited:
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:
M.L. Ako, for Plaintiff
M. Boas, for Third Defendant
L. Baida, for Fourth & Fifth Defendant

RULING

19^th June 2023

1. MIVIRI, J: This is the ruling on the plaintiff’s originating summons dated the 12^th May 2023 pursuant to Order 16 Rule 3 (1) of the National Court Rules, (the Rules).
   
2. He seeks leave 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.
   
3. And appointed the Fourth Defendant as the Acting Managing Director of NAC for a term of three months or until a substantive appointment is made whichever occurs first, effective on and from 20^th April 2023 in accordance with sections 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. The originating summons is supported by the Statement pursuant to Order 16 Rule 3 (a) of the National Court Rules. Here plaintiff details that he was the Managing Director and Chief Executive Officer of the National Airports Corporation Limited (NAC) until the National Executive Council revoked that through the National Gazette No. G302 dated 27^th April 2023. The Board of the National Airports Corporation had appointed him by contract executed with him on the 06^th December 2021 for four (4) years.
   
5. On the 02^nd December 2022 the Civil Aviation (Amendment No. 1) Act 2022-No 65 of 2022, the Act, came into force after being certified by the Clerk of the Parliament. Section 147AC, 147AD, 147AE, 147AF and 147AG were inserted within. Section 147AG provided; (1) In the interest of the Aviation sector, the Minister shall suspend the managing Director, with or without cause, if-
   
   • (a) the Managing Director is absent from duty (from whatever cause arising); or
   • (b) there is a vacancy (whether by reason of death, resignation, or otherwise); or
   • (c) from time to time while the absence or vacancy continues and appoint a senior person in the company in terms of the number of years he has worked in the company or a suitable person to act in the position.

(2) The appointment process under section 147AF is not applicable to subsection 1.

(3) The appointment made under Subsection (1) shall be for a maximum period of three months and shall be published in the National Gazette

(4) Any extension of the period prescribed under subsection (3) shall be made in accordance with section 147AF.”

6. On the 07^th December 2022, pursuant to section 147AG (1) of the Act, the third defendant suspended the plaintiff from his position as Managing Director of NAC and appointed Joseph Tupiri as the Acting Managing Director of NAC for a term of three (3) months effective on and from 05^th December 2022 by notice in the National Gazette No. G930 of the 07^th December 2022. There was no vacancy in the position of the Managing Director and that the plaintiff was not absent from his duties so the actions of the third defendant was not lawful pursuant to section 147AG (1) of the Act 2000. And at the time of suspension, he had served one year out of the four (4) years term as Managing Director and CEO of the NAC. And his three (3) months suspension lapsed on or about the 05^th March 2023 including the three months Acting appointment of Tupiri’s term.
   
7. On 17^th April 2023 he took out court proceedings at the Waigani National Court in OS No 98 of 2023 which is current and still pending determination before the Waigani National Court. And on the 20^th April 2023, the First Defendant by Notice in the National Gazette No G302 of the 27^th April 2023 revoked the appointment of the Plaintiff as the Managing Director and appointed the fourth Defendant as the Acting Managing Director for three months effective from the 20^th April 2023. No reasons were given the plaintiff for his removal by the First Defendant. Which was the same for the suspension effected. And there was nothing that evidenced that section 147AF (1) (4) (5) were complied with in the removal of the plaintiff. That is the plaintiff had passed the fit and proper person test under section 50 of that Act. And had a police clearance report and was medically fit and active. He was not engaged in any other paid duties outside of his position. He was not heard in his defence including compliance of section 7 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. No investigation was mounted into his conduct and activities, his performance after which the same was forwarded together with the recommendations to the Public Service Commission.
   
8. The aggregate was that the first defendant’s decision was ultra vires in revoking the appointment of the plaintiff as Managing Director and CEO of NAC. And the acting appointment was without authority in law including his suspension and eventual removal. Prima facie these are primarily the basis for the application for leave for judicial review. He has verified by the affidavit verifying pursuant to Order 16 Rule 3 (2) (b) of the Rules. With a notice to the Secretary for Justice fulfilling Order 16 Rule 3 (3) of the Rules. Including filing an undertaking as to damages.
   
9. 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 sets out 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, as he is directly affected by the actions of the defendants. They 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.
   
10. Judicial review is a very restrictive domain, and his pleadings warrant in that he is directly affected by the actions of the defendants, the first and the third defendants: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). And he has succinctly and intricately set out in the process instituting that he is on par with 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. This ground is satisfied on the required balance. Including that he has arguable basis in law to bring the matter as it is before this Court. And there is no internal process that would be the venue exhausted before here. He has lawfully come prima facie here and discharges this ground accordingly on the required balance. He has not delayed in bringing forth the contention here. And this ground is accordingly also discharged in his favour on the required balance. Which gives the aggregate that this application for leave must be granted as pleaded on the originating summons filed.
    
11. The formal orders of the court are:
    
    • (1) Leave is granted for judicial review.
    • (2) The Plaintiff will file and serve the substantive Notice of motion upon the defendants within 21 days.
    • (3) The matter will be called up for directions on Monday 03^rd July 2023 at 9.30am.
    • (4) Costs will follow the event.

Orders Accordingly.
__________________________________________________________________
Kalit Legal Consulting: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyers for the Defendant