Southern Highlands Provincial Government v The State, Nilkare, and Dadi; Fly River Provincial Government v The State, John Nilkare, and Gaudi Dadi [1993] PGSC 17; [1993] PNGLR 401 (29 July 1993)

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[1993] PNGLR 401 - Southern Highlands Provincial Government v The State, John Nilkare, and Gaudi Dadi; Fly River Provincial Government v The State, John Nilkare, and Gaudi Dadi

CONSTITUTIONAL LAW - Provincial governments - Suspension of - Provisional suspension - Writs of summons seeking declaratory orders - In effect seeking judicial review - Judicial interference not to be sought where procedures not exhausted.

Two appeals were made from orders of the National Court dismissing writs of summons and statements of claims held not to disclose reasonable causes of action. The appeals raised identical matters and were heard together. The writs of summons had sought declaratory and injunctive relief against the State and the responsible national government minister in respect of suspensions of two provincial governments.

N1>1. A writ of summons is not available under the National Court Rules when seeking declaratory or immediate injunctive relief.

N1>2. The courts should not normally interfere in the suspension of a provincial government until the processes concerning suspension contained in the Organic Law on Provincial Government have been exhausted in the Parliament.

WOODS HINCHLIFFE JALINA JJ: These are appeals against the judgments of Brown J, given on 11 December 1992, whereby he dismissed the appellants' statement of claim on the grounds that they did not disclose a reasonable cause of action.

Matters raised in these two appeals are identical and, therefore, these appeals were heard together with identical submissions.

In October 1992, the premiers of the Southern Highlands Provincial Government and the Fly River Provincial Government each received a communication advising them that the National Executive Council had provisionally suspended their governments. The premiers consulted lawyers, who commenced actions by way of writs of summons in the National Court seeking certain declaratory and injunctive relief against the responsible minister and the State.

N2>(a) a declaration that the purported provisional suspension of the provincial government is ultra vires, invalid, and without force and effect; and

N2>(b) an injunction restraining the first and second defendants from acting in purported exercise of their powers under the Organic Law on Provincial Government as though the first plaintiff had been validly provisionally suspended by notice in the National Gazette.

The plaintiffs sought summary judgment, and the State sought dismissal of the writs of summons and statements of claim.

At the hearing in November 1992, the plaintiffs submitted that a pre-condition to the exercise of the power to provisionally suspend was that the minister must first make a valid report under s 90(b) of the Organic Law on Provincial Government.

The plaintiffs asserted that the minister did not make such reports. However, the trial judge found that, on the motions, it was not necessary to go into whether there was such a report or not. His Honour referred to the case, PNG v Kapal [1987] PNGLR 417, where the Supreme Court held that where a ground for provisional suspension of a provincial government exists, a decision to provisionally suspend the government is entirely within the discretion of the National Executive Council and is only open to judicial review where it can be shown that the National Executive Council exceeded or abused its powers or made a decision which no responsible authority could have made. The court also held that proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedures provided for in the Organic Law on Provincial Government have not been completed or exhausted.

His Honour then noted that in the cases before him the plaintiffs were not seeking judicial review but seeking declarations. However, such would still require some enquiry by the court into the acts of the minister. His Honour stated that the national minister is carrying out his function to advise and recommend, and such recommendations cannot be the subject of review by the court. Once the minister has given his advice and the National Executive Council has acted, it is the power of the National Executive Council, and that power can only be questioned by judicial review.

His Honour then considered the nature of the originating process, the writs of summons, and the statements of claim. He noted that the statements of claim really only relied on assertions made by the officer of the plaintiffs. To make findings on those assertions would require evidence, but in questioning executive acts like this, the evidence would only be forthcoming where leave was given for judicial review. And so His Honour got back to the point that the originating process was wrong.

The proceedings were taken by writs of summons - National Court Rules O 4 r 2. The relief sought was for:

Order 4 r 2 clearly provides that the writ of summons does not apply where a person desires to apply for a declaration of right or an immediate injunction.

There is no dispute that there is jurisdiction to make declaratory and injunctive orders, even without any other consequential relief as per s 155(4) of the Constitution. But the rules clearly do not provide for such relief to be sought by writ of summons.

So we do not get to whether the amended statements of claim pleaded all the necessary facts which give rise to that form of action.

In the words of Hinchliffe J in Sambam v Namaliu (unreported, unnumbered judgment of 6 June 1991) at p 5:

"The discretion to suspend a provincial government and the power to review such a suspension has been given by the law to the elected representatives of the people. An elaborate system has been set up under the Organic Law on Provincial Government, which sets out the manner in which the National Executive Council may suspend a provincial government. The Organic Law also provides for a system of reviewing the correctness of that decision.... The provisions of the Organic Law make it quite clear the question of suspension of a provincial government is a matter for the elected members of the Parliament to deal with. Until that process has been exhausted, the Courts would be well advised not to interfere with that process".

His Honour in these cases was quite right in finding that they were matters for judicial review and the seeking of leave. Until the process for suspension of provincial governments has been exhausted, the Courts would be well advised not to interfere with that process.

We find no error in His Honour's handling of the matters before him and his final orders.

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Supreme Court of Papua New Guinea

Southern Highlands Provincial Government v The State, Nilkare, and Dadi; Fly River Provincial Government v The State, John Nilkare, and Gaudi Dadi [1993] PGSC 17; [1993] PNGLR 401 (29 July 1993)

PNG Law Reports 1993