Haiveta v Ling-Stucky [2024] PGNC 445; N11119 (16 December 2024)

N11119

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 61 OF 2024

BETWEEN:
HON. SIR CHRISTOPHER SESEVE HAIVETA, MP as Provincial Member for Gulf Province
First Plaintiff

AND:
GULF PROVINCIAL GOVERNMENT
Second Plaintiff

AND:
HON. IAN LING-STUCKY, CMG, MP in his capacity as Minister for Treasury
First Defendant

AND:
ANDREW F OAEKE in his capacity as Secretary for the Department of Treasury
Second Defendant

AND:
SAMUEL PENIAS in his capacity as Secretary for the Department of Treasury
Third Defendant
AND:
ENGA PROVINCIAL GOVERNMENT
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Purdon-Sully J
2024: 11 & 16 December

JUDICIAL REVIEW - SUBSTANTIVE HEARING – Minister found to have authorised the issue of a warrant authority pursuant to s 29(2) of the Public Finance Management Act 1995 as amended to facilitate the expenditure of monies from Consolidated Revenue for a purpose not captured under the Budget Book published pursuant to the Appropriation (General Public Services Expenditure 2024) Act 2023 passed by the National Parliament for the 2024 fiscal year as certified on 16 January 2024 - review upheld on grounds of error of law, ultra vires, illegality and Wednesbury principles of unreasonableness – decision quashed – declaration decision is null and void

Cases cited
Papua New Guinea cases
Kekedo v Burns Philip [1988-89] PNGLR 122
Ombudsman Commission v Yama [2004] PGSC 30; SC747
SCR No 1 of 1990: Re Recount of Votes [1990] PNGLR 441
Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402
National Provident Fund Board of Trustees v Southern Highlands Provincial Government [2006] PGNC 19; N3028
Raz v Matane [1986] PNGLR 38
Kim Foon & Sons Pty Ltd v Minister for Finance & Planning [1996] PGNC 19; N1464
JV PNG Investment Constructions Ltd v Samson [2022] PGSC 30; SC2224

Overseas cases
Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014

Legislation
Public Finance Management Act 1995, ss 14(1), 29 (2)
Appropriation (General Public Services Expenditure 2024) Act 2023
National Court Rules, Order 16 Rules 1 and 13
Evidence Act 1975, s 35(1)
Constitution, ss 100(1), 114(1), 209(1), 211, 212(1)

Other references
Administrative Law and Judicial Review in Papua New Guinea, Christopher Karaiye,

Notion Press (June 29, 2019)

Counsel
Mr E Wembri for the plaintiff
Mr M Alyata for fourth defendant

DECISION

1. PURDON-SULLY J: This is the Court’s decision with respect to an application by the Plaintiffs pursuant to Order 16 Rule 1 of the National Court Rules (NCR) to judicially review the decision of the First Defendant in his capacity as the Minister for Treasury on or about 8 July 2024 under s 29(2) of the Public Finance (Management) Act 1995 (PFM Act) whereby the First Defendant issued a warrant authority to the Second Defendant to issue Warrant Authorities for a total expenditure of PGK 60M out of the Consolidated Revenue Fund to be paid to the Fourth Defendant under July 2024 Warrant No 07.02 as further particularised in the Originating Summons filed 25 July 2024 (the decision).
2. The Plaintiffs seek the following relief in the Notice of Motion filed 22 August 2024 (otherwise abandoning the relief at (3) and (4) of the Notice):
   1. An order in the nature of Certiorari to bring into this Court and quash the decision of the First Defendant in his capacity as the Minister for Treasury on or about 8 July 2024 purportedly under Section 29 (2) of the Public Finance (Management) Act 1995 to issue a warrant authority to the Second Defendant authorizing the Second Defendant to issue Warrant Authorities for a total expenditure of 60 million kina out of the Consolidated Revenue Fund to be paid to the Fourth Defendant under the July 2024 Warrant No. 07.02.
      
   2. A consequential order in the nature of declaration that the decision of the First Defendant in his capacity as the Minister for Treasury on or about 8 July 2024 purportedly under Section 29 (2) of the Public Finance (Management) Act 1995 to issue a warrant authority to the Second Defendant authorizing the Second Defendant to issue Warrant Authorities for a total expenditure of 60 million kina out of the Consolidated Revenue Fund to be paid to the Fourth Defendant under the July 2024 Warrant No. 07.02, is null and void and of no effect.
      
   3. Costs of and incidental to this application shall be paid by the Defendants.
      
   4. Such other orders as the Court deems meet.
3. The Plaintiffs seek a further order by way of consequential relief that the warrant authority described as “July 2024 Warrant No 07.02” authorising the Secretary for Treasury to issue the following Development Warrants be set aside:
   1. PGK 20M under Development Warrant described as DNPM-24343 BDG – Papua LNG (Enga PG);
   2. PGK 30M under Development Warrant described as DNPM-24200 IDG-PNG LNG (Enga PG); and
   100. PGK 10M under Development Warrant described as DNPM-23071 IDG (Enga PG – Security Call-out).

THE MATERIAL RELIED UPON

4. In support of the Notice of Motion filed 22 August 2024, the Plaintiffs rely upon the following material:
   1. Originating Summons filed 25 July 2024.
   2. Further Amended Statement Pursuant to Order 16 Rule 3 (2) of the NCR filed 9 December 2024 pursuant to leave to amend on 9 December 2024.
   100. Affidavit of Hon Sir Christopher Seseve Haiveta, CMG, KCMG, GCL, MP filed 3 October 2024.
   4. Further Affidavit of Hon Sir Christopher Seseve Haiveta, CMG, KCMG, GCL, MP filed 22 October 2024.
5. The Defendants did not rely upon any material. Neither the First, Second or Third Defendants engaged at the substantive hearing, nor were represented at ang of the directional hearings in the lead up to the trial. The Fourth Defendant did not comply with trial directions as to the filing of material. Other than rely upon material in support of its Notice of Motion filed 1 November 2024 seeking orders that it be removed as a party to the proceedings, that Motion dismissed, learned Counsel for the Fourth Defendant left the decision on judicial review to the Court’s discretion.

THE LAW

6. The principles on the nature and scope of judicial review of administrative action of public authorities are well settled in this jurisdiction. The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process (Kekedo v Burns Philp Pty Ltd [1988-89] PNGLR 122 at [124]).
7. The applicant must come to the Court promptly and the right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy (Ombudsman Commission v Yama [2004] PGSC 30; SC747).

GROUNDS OF REVIEW

8. The Plaintiffs rely upon the following grounds of review:
   1. Error of law
   2. Illegality
   100. Wednesbury principles of unreasonableness
   4. Ultra vires

CONTEXTUAL BACKGROUND

9. The following facts are undisputed and provide the background to this matter.
10. The National Parliament is the government body responsible for passing the National Budget for the country at the final quarter of each year. The Budget becomes the Appropriation Act for the succeeding year.
11. On 1 December 2023 the National Parliament passed the Appropriation (General Public Services Expenditure 2024) Act 2023 (Appropriation Act 2023) being an Act to appropriate out of the Consolidated Revenue Fund (CRF) a sum for the General Public Service for Operational and Capital investment expenditure and Debt Amortization for the financial year ended 31 December 2024.
12. The Appropriation Act 2023 was certified by the Clerk of the National Parliament and the Acting Speaker of the National Parliament on 16 January 2024. The appropriations made under the Act will lapse at the end of the 2024 fiscal year.
13. The Appropriation Act 2023 made provision for the National Government through the Department of Treasury and Department of Finance to publish Budget Books which specify in detail the purpose of which the monies are allocated and the amounts of money allocated against each purpose which fall within Operational or Capital Expenditure.
14. The Appropriation Act 2023 is found at Annexure CH-1 of the Affidavit of the First Plaintiff, Hon Sir Christopher Seseve Haiveta, CMG, KCMG, GCL, MP filed 3 October 2024 (First Plaintiff’s Affidavit).
15. Under the General Public Service Expenditure, the National Government, in its Budget Book, Volume 3A (Public Investment for National Government Departments 2024-2028), presented by the Minister for Finance & Planning, Hon Rainbo Paita MP, appropriated or allocated, amongst others, a total of:
    1. PGK 60M to the Gulf and Central Provinces as Business Development Grant and Project Management in respect of the Papua LNG Project, the beneficiaries stated to be the “Gulf and Central People” and the program stated to be “in line with the Government’s development priorities and plans.... To increase revenue and growth, create employment, empower local entrepreneurs while contributing to improving the quality of people’s lives”; and
    2. PGK 70M to the Gulf, Central, Hela Western and Southern Highland Provincial Provinces, to meet key infrastructure projects, the named provinces having been identified to “have the capacity to implement the projects under this program” and the stated beneficiaries to be the “landowners and people of Hela, Southern Highlands, Western, Central and Gulf Provinces”.
16. The appropriations as detailed in the Budget Book, Volume 3A (Public Investment for National Government Departments 2024-2028 are found at Annexures CH-2 and CH-3 to the First Plaintiff’s Affidavit. The relevant Budget Book is not complete, the document running to over 767 pages, the First Plaintiff annexing the pages relevant to the subject appropriations made to the Second Plaintiff.
17. The First Plaintiff is the incumbent Provincial member of Gulf Province and Chairman of the Gulf Province Executive Committee. He filed two affidavits in support of his application for judicial review.
18. In his first affidavit filed on 3 October 2024 (served on the Fourth Defendant and the Solicitor General’s Office on the same day, a Notice to Rely pursuant to s 35(1) of the Evidence Act 1975 filed on 28 October 2024 and served on 31 October 2024), the First Plaintiff deposes to his extensive experience in the public, government and political sector, including as a former Deputy Prime Minister of Papua New Guinea, Finance Minister and Opposition Leader.
19. He deposes inter alia to the government processes in passing and implementing the National Budget for a relevant year, the process of administering and implementing the National Budget passed by Parliament for a relevant year and the process of releasing money from the CRF. On his unchallenged evidence, that process is as follows:
    1. The Minister for Treasury/Finance is given wide powers and discretion to supervise and oversee the implementation of the National Budget.
    2. The Minister for Treasury/Finance gives specific directions to the Secretary for Treasury to expend monies out of the CRF consistent with the appropriations in the National Budget.
       
    100. The way or manner in which the Minister gives specific instructions is through a Warrant Authority to the Secretary for Treasury.
         
    4. The Warrant Authority is specific and identifies the appropriation which the monies were allocated or appropriated to in the National Budget and where it will be applied or paid. This is done so there is a proper record for purposes of accounting at the end of the fiscal year.
       
    5. The Secretary for Treasury then issues warrant authorities consistent with the specific instructions identified in the Warrant Authority issued by the Minister for Treasury.
       
    6. The Secretary for Treasury may approve and issue payment requisitions or appoint officers to approve and issue payment requisitions based on the expenditure.
       
    7. Alternatively, consistent with the instructions and authorisation of the Minister for Treasury, funds or monies are then paid out of the CRF.
20. On 8 July 2024, the First Defendant, Hon. Ian Ling-Stucky, CMG, MP, in his capacity as Minister for Treasury, issued a warrant authority purportedly pursuant to Section 29 (2) of the PFM Act to the Second Defendant, Andrew Oaeka in his capacity as Secretary for the Department of Treasury, authorizing him to issue Warrant Authorities to facilitate an expenditure of PGK 60M from the CRF to the Fourth Defendant, the Enga Provincial Government.
21. The Warrant Authority, misdescribed in the body of the First Plaintiff’s Affidavit as CH-3 but correctly described on the Annexure document itself as CH-4 is annexed to the First Plaintiff’s affidavit.
22. The PGK 60M was authorized for payment by the First Defendant to the Fourth Defendant under the July 2024 Warrant No. 07.02 in the following Development Warrants:
    1. PGK 20M under Development Warrant described as DNPM-24343 BDG – Papua LNG (Enga PG);
    2. PGK 30M under Development Warrant described as DNPM-24200 IDG-PNG LNG (Enga PG); and
    100. PGK 10M under Development Warrant described as DNPM-23071 IDG (Enga PG – Security Call-out).
23. The First Defendant issued the July 2024 Warrant No. 07.02 for a total payment of PGK 60 M from the CRF.
24. Aggrieved by the decision of the Minister for Treasury the Plaintiffs filed these proceedings.
25. On 13 August 2024 the Court granted leave for the Plaintiffs to apply for judicial review of the decision.
26. For reasons that will become apparent, a consideration of each of the grounds of review will touch on the other. For convenience I propose to consider Grounds 1 and 4 first before I turn to the remaining two grounds..

GROUND 1 – WAS THERE AN ERROR OF LAW IN MAKING THE DECISION?

GROUND 4 – IN MAKING THE DECISION DID THE FIRST DEFENDANT ACT ULTRA VIRES HIS AUTHORITY?

27. Error of law on the face of the record is a codified ground of judicial review under Order 16 Rule 13 of the NCR, as is the ground of ultra vires or lack of jurisdiction.
28. The doctrine of error of law on the face of the record refers to a situation where there is an identifiable legal error evidenced from the documents constituting the record of the decision of a public body. All errors of law, whether a jurisdictional error (where a decision maker exceeds their powers) or a non-jurisdictional error (where for example there is a misinterpretation of a statue), can be grounds for judicial review (Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147). A decision made by reason of error of law may be set aside.
29. The ground of ultra vires, often used interchangeably with lack, excess or abuse of jurisdiction, is a circumstance where a public authority makes a decision it is not authorised to make. It acts without proper jurisdiction, either by embarking upon matters not within its authority or by exceeding the powers granted to it (SCR No 1 of 1990: Re Recount of Votes [1990] PNGLR 441). Any administrative action or order which is made ultra vires, meaning outside jurisdiction, is void or voidable (Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402).^[1]
30. It is submitted on behalf of the Plaintiffs that in making the decision in his capacity as the Minister for Treasury purportedly under s 29(2) of the PFM Act the First Defendant committed four errors of law as follows:
    1. There was no express provision or budget allocation under the Budget Publications of 2024 published pursuant to the Appropriation Act 2023 providing for the transfer or payment of PGK 60M to the Fourth Defendant such that the decision was contrary to s 29(1) of the PFM Act.
    2. The decision was contrary to s 14(1) of the PFM Act which provides for payment of funds out of CRF.
    100. The decision was made without regard to s 211(2) of the Constitution as there is no law expressly authorising the First Defendant Minister to authorise the expenditure to the Fourth Defendant.
    4. The decision was made in error of s 212(1) of the Constitution when the First Defendant Minister assumed the role of the National Parliament and authorised expenditure out of CRF when no provision for the expenditure was made by Parliament in the relevant Appropriation Act.
31. It is further submitted that in making the decision the First Defendant Minister acted ultra vires in that he exceeded his powers, the expenditure authorised by him not appropriated in the 2024 Budget or charged to the CRF by any law or legislation.

Was the decision contrary to s 29(1) of the PFMA?

32. Section 29 of the PFM Act provides:

29. WARRANTS FOR ISSUE AND EXPENDITURE OF PUBLIC MONEYS.

(1) The Minister may, by warrant, authorize the Departmental Head of the Department responsible for financial management to issue warrant authorities authorizing the expenditure of moneys from the Consolidated Revenue Fund for the purpose for which those moneys were appropriated or charged or were deemed to have been appropriated or charged.
(2) A warrant issued under Subsection (1) may limit the amount of moneys to be expended from the Fund if, in the opinion of the Minister, financial exigencies or the public interest so require.

[Underlining added]

33. It is clear from a reading of the section that the Finance Minister’s power to issue a warrant under s 29(2) is subject to or qualified by s 29(1).
34. The Minister’s authority to authorise the relevant Head of the Department to issue warrant authorities authorising the expenditure of money from the CRF is for the purpose for which the monies were appropriated.
35. In National Provident Fund Board of Trustees v Southern Highlands Provincial Government [2006] PGNC 19; N3028, David J at [30] clarified the process of releasing monies out of the CRF by warrant as follows:

In that letter, Mr Kambanei, in his capacity as Secretary for Treasury, explains the procedure involved in the release of funds to Provincial Governments. He states that the process dictates that upon release of the Finance and Treasury Ministers warrant, Warrant Authorities are then issued by the Secretary for Treasury pursuant to s. 29(1) of the Public Finance Management Act ('PFMA'). He states that the Warrant Authorities authorize expenditure of monies from the Consolidated Revenue Fund ('CRF') for the purpose for which those monies are appropriated. The Warrant Authority constitutes the authorization to the various implementing agencies to commit and spend funds out of the CRF. He states further that the Warrant Authority would be issued to the SHPG to authorize it to draw funds from the CRF for purposes of expenditure under each activity and project. And the PFMA only authorizes the Secretary for Treasury to release Warrant Authorities to those agencies specifically mentioned in the Schedule under section 2 of the Appropriation Act for Recurrent Expenditure 2004 ('Appropriation Act'). Mr Kambanei then explained that neither the PFMA nor the Appropriation Act authorizes the Secretary for Treasury to issue Warrants of Authority directly to other parties not named in the Schedule attached to the Appropriation Act to draw directly from the CRF. He submits that this may be because the funds withheld in the CRF are public funds and are to be used following proper budgetary processes which are sanctioned by Parliament. He states that whatever grants that are due to the SHPG will be given directly to the SHPG which can appropriately deal with it according to its items of expenditure under each activity and project. He recommended that the Nasfund liaise directly with the SHPG's Governor and Provincial Administrator to set aside funds to settle the outstanding debt. But the evidence before me is that despite the numerous correspondence from Nasfund's lawyers to the SHPG requesting payment, that it has never responded to these correspondence, hence this application.

[Underlining added]

36. Notwithstanding the appropriation or allocation of PGK 60M to the Gulf Provincial Government and Central Province Government (as part of the total PGK 130M appropriated to the Gulf Provincial Government and other provincial governments for the fiscal year 2024) the First Defendant issued a warrant authority pursuant to s 29(2) of the PFM Act to the Second Defendant authorising him to issue warrant authorities to facilitate an expenditure of PGK 60M out if CRF to the Fourth Defendant, Enga Provincial Government. The evidence does not permit a finding of any provision or budget allocation to the Enga Provincial Government,
37. On the unchallenged evidence of the First Plaintiff, pursuant to the Budget Book, Volume 3A (Public Investment Program for National Government Departments 2024 – 2028), the PGK 60M was part of funds appropriated to the Second Plaintiff and other provincial governments as monies for a Business Development Grant and Infrastructure Development Grant in respect of the Papua LNG Project and PNG LNG Project.
38. There is no evidence that in making the decision the First Defendant was exercising his powers as permitted to make adjustments or a reallocation of an appropriation either under s 9 of the Appropriation Act 2023 which is titled (Adjustments for Appropriation of Capital Expenditure Funded by Grants) or any other law. While s 9 authorises the First Defendant to direct a reallocation of an unexpended appropriation for a capital expenditure activity funded by particular grants in particular circumstances, there is no evidence in the warrant dated 8 July 2023 or elsewhere that the relevant conditions for reallocation had been met before the reallocation was authorised including with respect to the type of activity or a view having been reached that the appropriation was necessary for the delivery of essential services to the people of Papua New Guinea.
39. The Court can only make decisions on admissible evidence and the application of the law to the evidence. An appearance was announced on behalf of the First, Second, Third and Fifth Defendants at the hearing of the leave application before another Judge of this Court on 8 August 2024. Acknowledging that the hearing was ex parte, with the State the only other party with a right to be heard on that application, the nature of the controversy and relief being sought by the Plaintiffs was known to all Defendants. The Affidavit of Service of Lingston Peya filed 28 August 2024 is to the effect that the Notice of Motion for substantive relief was served on the registered offices of the Minister for Department of Treasury, the Secretary for Treasury, the Secretary for Finance, the Secretary for Justice and Attorney General and the Solicitor General’s office on 28 August 2024, that is nearly four (4) months ago. The Court file otherwise discloses service of documents relating to these proceedings on the Defendants. Only the Fourth Defendant sought to engage in the process. The Court is satisfied that all Defendants were aware of the proceedings and had an opportunity to be heard, the Court noting five (5) hearing dates following the grant of leave without any appearance on behalf of the Defendants other than the Fourth Defendant with various directions made with respect to the filing of documents prior to trial not complied with by the Defendants. In the context of that background the Court is entitled to conclude that there is no evidence that the First Defendant sought to place before the Court to challenge the Plaintiffs’ case either with regard to his authority to authorise the warrant authorities the subject of the decision for judicial review including his authority to make adjustments to the relevant appropriations under the Appropriation Act 2023.
40. I accept the submissions on behalf of the First and Second Plaintiffs that in making the decision the First Defendant:
    1. breached the provisions of s 29(1) of the PFM Act committing an error of law, the allocation or appropriation to the Fourth Defendant not authorised as it was not captured in the National Budget by Parliament; and/or
    2. in so doing acted ultra vires his authority.

Was the decision contrary to s 14(1) of the PFM Act?

41. I further find that in making the decision the First Defendant committed a further error of law and/or acted ultra vires his authority as the decision was contrary to s 14(1) of the PFM Act.
42. That section reads:

14. PAYMENTS OUT OF CONSOLIDATED REVENUE FUND

(1) No moneys shall be paid out of the Consolidated Revenue Fund except –

• (a) moneys appropriated under an Act; or
• (b) moneys deemed to have been appropriate under an Act; or
• (c) to meet expenditure that is charged on the Consolidated Revenue Fund by a law; or
• (d) for the payment of a refund of revenue required or permitted by any law where specific authority for the payment does not exist; or
• (e) for the payment of revenue refunds provided for under any income tax, customs, stamp duty or other revenue law; or
• (f) subject to Subsection (2), if at the beginning of a fiscal year the Parliament has not made provision for public expenditure or expenditure by the Parliament or the Judiciary for their respective services for that year and-
  1. in the case of the National Executive-the Head of State, acting on advice; or
  2. in the case of the Parliament-the Speaker; or
  3. in the case of the Judiciary-the Chief Justice,

has authorized the issue and expenditure of moneys out of the Consolidated Revenue Fund for the purposes of government services, the services of the Parliament or the services of the Judiciary respectively.

43. The section makes clear that no monies shall be expended out of CRF except as provided by an Act of Parliament.
44. The Appropriation Act 2023 was the relevant law providing for budget appropriations as passed by the National Parliament consistent with its functions and powers under the Constitution as follows:
    1. Section 209(1) which provides that the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament;
    2. Section 100(1) which provides that subject to the Constitution, the legislative power of the People is vested in the National Parliament; and
    100. Section 114(1) which provides that subject to subsection (5) (restrictions on the voting rights of a member of the Parliament in certain circumstances) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.
45. In short, the National Parliament having exercised its legislative power and the Appropriation Act 2023 having been passed into law, the First Defendant committed an error of law and/or exceeded his powers or acted outside his powers by making the decision which provided for the release, transfer or payment of PGK 60M to the Fourth Defendant, monies that were earmarked as part of the Gulf Provincial Government and Central Provincial Government and other Provincial Governments Business Development and/or Infrastructure Grants.

Was the decision made without regard to s 211(2) of the Constitution?

46. I further find that the decision was contrary to the provisions of s 211(2) of the Constitution as the relevant law, passed by Parliament, did not authorise the First Defendant to authorise payment or transfer of monies out of CFR by issuing Warrant Authorities to make an allocation or appropriation to the Fourth Defendant. In so doing, the First Defendant was assuming the role of the National Parliament.
47. Section 211(2) of the Constitution is in these terms:

211. Accounting, etc., for public moneys.

(1) All moneys of or under the control of the National Government for public expenditure and the Parliament and the Judiciary for their respective services, shall be dealt with and properly accounted for in accordance with law.
(2) No moneys of or under the control of the National Government for public expenditure and the Parliament or the Judiciary for their respective services, shall be expended except as provided by this Constitution or by or under an Act of the Parliament.

48. In making the decision which authorised the expenditure of public monies not provided for by an Act of Parliament the First Defendant committed an error of law and/or acted ultra vires his authority.

Did the decision offend s 212(1) of the Constitution?

49. Section 212 provides:

212. Revenue and expenditure without prior approval.

If at the beginning of a fiscal year the Parliament has not made provision for public expenditure by the National Executive or expenditure by the Parliament or the Judiciary for their respective services for that year, the National Executive, the Parliament or the Judiciary, as the case maybe, may, without authorization other than this section but in accordance with an Act of the Parliament, expend amounts appropriated out of the Consolidated Revenue Fund for the purpose not exceeding in total one-third of its respective budgeted expenditure during the immediately preceding fiscal year.

50. I accept the submission on behalf of the Plaintiffs that in making the decision to authorise expenditure out of CRF not provided for by Parliament in the Appropriation Act 2023 the Minister committed an error of law and/or acted ultra vires his authority. Only the Parliament or the Judiciary are authorised to spend monies outside of the appropriations in the National Budget, s 212(1) giving power to Parliament to pass supplementary budgets to accommodate expenditure not captured in the initial appropriations for a fiscal year.
51. In summary, the role of the Minister for Treasury and Minister of Finance was to implement the National Budget in accordance with the Appropriation Act 2023, as passed by Parliament, the First Defendant as Minister for Treasury required to authorise payment or transfer of monies out of CFR by issuing Warrant Authorities consistent with ss 14 and 29 of the PSM Act and the Appropriation Act 2023.
52. In authorising the expenditure of monies to the Fourth Defendant, the First Defendant committed an error of law and acted ultra vires his authority, by reason of the decision resulting in an appropriation or allocation of monies for a new purpose not captured under the Budget Book published pursuant to the Appropriation Act 2023 for the 2024 fiscal year.
53. Grounds of Review 1 and 4 are upheld.

GROUNDS 2 (ILLEGALITY) AND 3 (UNREASONABLENESS)

54. The findings of the Court with respect to Grounds 1 and 2 are dispositive of the application for judicial review. While it is not necessary to therefore consider the remaining grounds of review the Court’s earlier discussion leads to a finding that the decision was thus unlawful. The Court further finds that the decision was unreasonable based on the Wednesbury test such that both grounds 2 and 4 are also upheld,
55. Want of jurisdiction and error in law are grounds that fall within the broad ambit of illegality. The First Defendant, as decision-maker, in failing to correctly understand the law that regulated his decision-making power and give effect to it acted outside his legal authority to act (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).
56. Further, the decision was one that no sensible decision-maker, properly directed, with a due appreciation of the bounds of his authority and the serious responsibilities that rested on him could have made. In this case it was a responsibility that concerned the management of public monies involving the authorisation of the payment of PGK 60M allocated by the National Parliament to particular beneficiaries for the stated purpose and intention to improve their lives (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 per Lord Diplock at 1064, cited with approval in Raz v Matane [1986] PNGLR 38; Ombudsman Commission v Yama [2004] PGSC 30; SC747 citing with approval Kim Foon & Sons Pty Ltd v Minister for Finance & Planning [1996] PGNC 19; N1464).
57. While the Plaintiff’s Further Amended Statement also raised the issue of the decision being harsh and oppressive in breach of s 41 of the Constitution it was not a matter with which the Plaintiffs materially engaged in written or submissions and not one otherwise necessary for me to address given my findings.

FINAL RESULT OF THE REVIEW AND APPROPRIATENESS OF RELIEF SOUGHT

58. In the result I uphold all the grounds of review as discussed. The question then is whether the Court should in the further exercise of its discretion grant the particular relief sought by the Plaintiffs.
59. The Plaintiffs seek that the Court grant relief in terms of (1) and (2) of its Notice of Motion for judicial review filed 22 August 2024, as clarified during oral submissions.
60. I am satisfied that the remedies sought in Orders (1) and (2) should be granted.
61. The Minister exceeded his powers. In judicial review the relief designed as a remedy is in the nature of certiorari as sought in Order (1) of the Motion. Certiorari is available to quash the decision before the decision can be enforced or implemented.
62. The Court further finds having regard to the matters in Order 16 Rule 2 of the NCR it is just and equitable to grant the declaration sought in Order 2 of the Motion declaring the decision to be null and void and of no effect. Such an order will resolve the legal position of the parties in the proceedings by declaring their rights in an issue of controversy the subject of this litigation.
63. The Court is further satisfied that the further relief sought with respect to the setting aside of the relevant warrant should be made, the Plaintiffs relying on the decision of JV PNG Investment Constructions Ltd v Samson [2022] PGSC 30; SC2224. It is an order that supports the relief being sought in the Notice of Motion with respect to the relevant decision.
64. Costs should be in the cause.

ORDERS

65. Pursuant to Order 16 Rule 1 of the National Court Rules the Court makes the following orders:
    1. An order in the nature of Certiorari to bring into this Court and quash the decision of the First Defendant in his capacity as the Minister for Treasury on or about 08 July 2024 purportedly under Section 29 [2] of the Public Finance Management Act 1995 to issue a warrant authority to the Second Defendant authorizing the Second Defendant to issue Warrant Authorities for a total expenditure of 60 million kina out of the Consolidated Revenue Fund to be paid to the Fourth Defendant under the July 2024 Warrant No. 07.02.
       
    2. A consequential order in the nature of declaration that the decision of the First Defendant in his capacity as the Minister for Treasury on or about 08 July 2024 purportedly under Section 29 [2] of the Public Finance Management Act 1995 to issue a warrant authority to the Second Defendant authorizing the Second Defendant to issue Warrant Authorities for a total expenditure of 60 million kina out of the Consolidated Revenue Fund to be paid to the Fourth Defendant under the July 2024 Warrant No. 07.02, is null and void and of no effect.
       
    3. The warrant authority described as “July 2024 Warrant No 07.02” authorising the Secretary for Treasury to issue the following Development Warrants be set aside:
       1. PGK 20M under Development Warrant described as DNPM-24343 BDG – Papua LNG (Enga PG);
       2. PGK 30M under Development Warrant described as DNPM-24200 IDG-PNG LNG (Enga PG); and
       100. PGK 10M under Development Warrant described as DNPM-23071 IDG (Enga PG – Security Call-out).
    4. The Defendants pay the Plaintiffs costs on a party and party basis to be agreed or taxed.
       
    5. Time to Abridge.

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Lawyers for the plaintiff: Jema Lawyers
Lawyers for the fourth defendant: Strategic Legal Services
No appearance for the other parties

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^[1] See discussion on principles and relevant case law in this jurisdiction with respect to error of law on the record and ultra vires in Administrative Law and Judicial Review in Papua New Guinea, Christopher Karaiye,
Notion Press (June 29, 2019) at pages 93 - 106; 113 - 116