Edo v Elias [2009] PGSC 61; SC988 (4 September 2009)

SC988

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 7 OF 2008

WILLIE EDO
ACTING ADMINISTRATOR, WEST NEW BRITAIN PROVINCE
Appellant

V

MARGARET ELIAS
SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WEST NEW BRITAIN PROVINCIAL GOVERNMENT
Third Respondent

Waigani: Cannings J, Gabi J, Makail J
2009: 1^st July, 4^th September

JUDICIAL REVIEW – applications for leave to seek judicial review – whether an arguable case exists.

ADMINISTRATIVE LAW – appointments to public office – appointment of Provincial Administrator – roles of Provincial Executive Council and Secretary for Personnel Management – whether Secretary has power to not forward recommendation of Provincial Executive Council to National Executive Council if it is non-compliant with relevant laws.

A Provincial Executive Council prepared a recommendation for the National Executive Council that the appellant be appointed Provincial Administrator and gave it to the Secretary for Personnel Management. The Secretary did not forward it to the National Executive Council as in her view it failed to comply with the Organic Law on Provincial Governments and Local-level Governments and instead readvertised the position. The appellant applied to the National Court for leave to review the decisions of the Secretary to not forward the recommendation and to readvertise the position but leave was refused on the basis that there was no arguable case that the Secretary erred in law. The appellant appealed to the Supreme Court on the grounds that the primary Judge erred by (1) directing the Secretary to file affidavits and (2) finding no arguable case.

Held:

(1) It lies within the discretion of the Judge hearing a leave application to require defendants to file affidavits, provided the Judge remains focused on the question whether the material provided by the plaintiff discloses an arguable case. Ground 1 of the appeal was dismissed.

(2) The Secretary for Personnel Management is under no obligation to forward a recommendation to the National Executive Council that is non-compliant with the law.

(3) A Provincial Executive Council recommendation must consist of a list of three persons. In this case only one person was on the list so the recommendation was clearly faulty.

(4) The leave hearing was confined to the issue of whether there was an arguable case. The correct conclusion was reached. The primary Judge made no error of law by deciding that there was no arguable case. Leave for judicial review was properly refused. The appeal was accordingly entirely dismissed.

Cases Cited

The following cases are cited in the judgment:

Ila Geno v The State [1993] PNGLR 22
John Kawi v Jerry Tetaga & Others OS No 1016 of 2005, 26.05.06
John Kawi v Jerry Tetaga & Others SCM No 6 of 2006, 18.03.09
Lohia Raka v Leo Toichem [2000] PNGLR 328
Manjin v Post and Telecommunications Corporation [1990] PNGLR 288
NTN v Post and Telecommunications Corporation [1987] PNGLR 70
Willie Edo v Hon Sinai Brown (2006) N3071
Willie Edo v Margaret Elias & Others OS (JR) No 28 of 2008, 30.05.08

APPEAL

This was an appeal against refusal by the National Court of an application for leave to seek judicial review.

Counsel

W Hagahuno, for the Appellant
G Emang, for the First & Second Respondents
R Bradshaw, for the Third Respondent

4^th September, 2009

1. BY THE COURT: Mr Willie Edo has appealed against the refusal by the National Court to grant him leave to seek judicial review.

2. Mr Edo applied to the National Court (Injia DCJ, as he then was, presiding) for leave to seek judicial review of the decisions of the Secretary for Personnel Management, the first respondent Mrs Margaret Elias, to not forward to the National Executive Council a recommendation that he be appointed Provincial Administrator for West New Britain and to readvertise the position.

3. The recommendation was made following Mr Edo’s successful judicial review of the appointment of Mr Joshua Giru as Provincial Administrator. Those National Court proceedings (OS No 438 of 2006) were separate from the proceedings which have led to this appeal.

4. The earlier proceedings resulted in a National Court order on 11 September 2006 that quashed Mr Giru’s appointment and stated that Mr Edo be acting Provincial Administrator until a substantive appointment was made and that:

The West New Britain Provincial Executive Council consider and recommend a fresh list of persons for appointment in accordance with law.

5. Pursuant to that order the then Governor of West New Britain, Mr Clement Nakmai, wrote to the Secretary on 25 July 2007, stating:

Mr Edo has always been the most preferred candidate ... and to avoid politicisation of the appointment process the WNB PEC resolved to recommend that Mr Edo be appointed substantive Administrator, in the circumstances.

6. The Secretary took the view that the recommendation did not comply with the law as it did not list three candidates in preferred order. It only listed one candidate. For that reason she made two decisions:

• to not forward the recommendation to the National Executive Council; and
  
• to readvertise the position, which she did on 13 November 2007.
  

7. As a result of the process she set in train, the National Executive Council appointed Mr Stephen Raphael (who is not a party to these proceedings) as Provincial Administrator.

8. When Mr Edo’s application for leave to seek judicial review of the Secretary’s decisions was filed the primary Judge directed that the defendants (the Secretary and the State) file detailed affidavits setting out the train of events prior to the hearing of the leave application. Those affidavits were filed and the leave application was heard and refused on the basis that no arguable case was disclosed (Willie Edo v Margaret Elias & Others OS (JR) No 28 of 2008, 30.05.08).

9. Mr Edo has put forward 11 grounds of appeal but they are repetitious and can be boiled down to two: that the primary Judge erred by (1) directing that detailed affidavits be filed by the defendants and (2) finding that there was no arguable case.

10. The issues we have to determine therefore are:

1. Did the primary Judge err by directing the respondents to file affidavits for the purposes of the leave application?
   
2. Did the primary Judge err by deciding that there was no arguable case?
   
3. In light of (1) and (2), what orders should the Supreme Court make?
   
1. DID THE PRIMARY JUDGE ERR BY DIRECTING THE RESPONDENTS TO FILE AFFIDAVITS?
   

11. Mr Hagahuno, for the appellant, submits that though the Secretary and the State had a right to be heard at the leave hearing they had no right to file affidavits and the primary Judge erred by directing them to do so.

12. The conduct of leave hearings is governed by Order 16, Rule 3(2) of the National Court Rules and Section 8 of the Claims By and Against the State Act. Order 16, Rule 3(2) provides that generally leave hearings are ex parte but Section 8 of the Act creates an exception in cases such as the present where the State is a defendant by providing:

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.

13. We agree with Mr Hagahuno, who relied on the views expressed by Lay J in Willie Edo v Hon Sinai Brown (2006) N3071, that affording the State an opportunity to be heard does not mean that the State has a right to file affidavits.

14. However, it does not follow that the Judge hearing the leave application has no power to grant leave to the State to file affidavits or to direct the State to file affidavits. This is a matter of discretion. There is nothing in any law that prohibits the Judge granting leave or giving a direction. Taking either course of action is an integral part of the Judge’s power to control the conduct of the proceedings. If the Judge considers that the application would be more conveniently or expeditiously determined by the State filing affidavits, provided the Judge remains focused on the question whether the material provided by the plaintiff discloses an arguable case and other key issues (standing, exhaustion of other remedies, delay) leave may be granted or a direction given.

15. In this case the primary Judge remained focused on those key issues and properly exercised the discretion available. His Honour did not err in law by directing the respondents to file affidavits. We dismiss the first ground of the appeal.

2. DID THE PRIMARY JUDGE ERR BY DECIDING THAT THERE WAS NO ARGUABLE CASE?
   

16. Mr Hagahuno submits that the Secretary for Personnel Management has no power to reject or refuse a recommendation from a provincial executive council. He pointed out that there are three laws that prescribe the procedure:

• the Organic Law on Provincial Governments and Local-level Governments, Section 73;
  
• the Public Services (Management) Act, Section 60;
  
• the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation, Section 5.
  

17. It is submitted that none of those laws allows the Secretary to refuse or reject a recommendation. It was that submission that was at the centre of the grounds of review put to the National Court in support of the application for leave.

18. The primary Judge rejected the submission as unarguable. His Honour acknowledged that the Secretary had no express power to reject a recommendation that was faulty but concluded that given her important role in the process of appointment she was required to do all things necessary to protect the integrity of the process, including rejecting faulty recommendations. His Honour decided that in this case the recommendation was faulty and the Secretary acted properly in rejecting it.

19. Mr Hagahuno submits that in drawing that conclusion his Honour delved into the merits of the application for judicial review when all he had to do was determine whether there was an arguable case disclosed by the material put before the court.

20. Those submissions raise three questions:

(a) Does the Secretary have the power to reject a faulty recommendation?

(b) Was the recommendation faulty in this case?

(c) Did the primary Judge confine the leave hearing to the issue of whether there was an arguable case?

(a) Does the Secretary have the power to reject a faulty recommendation?

21. The procedure for appointment of a provincial administrator can be summarised as follows:

Step 1 – the Secretary declares a vacancy in the office (Act, Section 60(1)(a); Regulation, Section 5(1));

Step 2 – the Secretary prepares a job description and advertises the position (Act, Section 60(1)(a); Regulation, Sections 5(2)) and 5(3)(a) and (b));

Step 3 – the Secretary consults the Central Agencies Coordination Committee and submits a list of at least five candidates, together with all applications received, to the Public Services Commission (Act, Section 60(1)(b) and (c); Regulation, Section 5(3)(c));

Step 4 – the Public Services Commission considers the Secretary’s list and all other applications and submits a list of up to three candidates in order of preference to the Provincial Executive Council (Act, Section 60(1)(d); Regulation, Sections 5(3)(d) and (e));

Step 5 – the Provincial Executive Council considers the list recommended to it by the Public Services Commission and submits a list of three persons in order of preference to the Minister for Public Service, subject to its power to reject all candidates, in which case it may request a new list from the Secretary (Regulation, Section 5(1)(f));

Step 6 – the Secretary prepares a submission for the National Executive Council (Regulation, Sections 5(1)(f) and (g));

Step 7 – the Minister presents the submission to the National Executive Council (Regulation, Section 5(1)(g));

Step 8 – the National Executive Council makes the appointment from the list submitted by the Provincial Executive Council (Organic Law, Section 73(2); Act, Section 60(1)(e); Regulation, Section 5(1)(h)).

22. We hasten to add that the above is only a general description of the process. There are different requirements imposed by the three laws and not all of them are consistent. However, the summary is sufficient to test the appellant’s proposition that the Secretary has no power to reject a faulty recommendation of the Provincial Executive Council.

23. We agree with the primary Judge that the Secretary has an important, integral role in the process of appointment, from beginning to end. The Secretary is responsible for declaring a vacancy, advertising the position and preparing the shortlist for the Public Services Commission. Her office is the conduit through which the Provincial Executive Council’s recommendation passes. The Secretary prepares the submission that goes to the National Executive Council.

24. We agree with the primary Judge who said:

It would be a futile exercise and a complete waste of time and resources to make a submission for the National Executive Council knowing full well that the submission would be rejected by the National Executive Council.

25. We agree with the views of Lay J in Edo v Brown that neither the Minister nor the Secretary has the power to add to or subtract from a recommendation of the Provincial Executive Council and that they are only facilitators of the recommendation. Similar views were expressed by Injia DCJ in John Kawi v Jerry Tetaga & Others OS No 1016 of 2005, 26.05.06 and by the Supreme Court in John Kawi v Jerry Tetaga & Others SCM No 6 of 2006, 18.03.09.

26. However, it does not follow that the Secretary has no power to reject a recommendation that is not compliant with the law. The ordinary and natural inference arising from the nature and extent of the Secretary’s powers is that she may reject a Provincial Executive Council recommendation that is, for whatever reason, faulty.

(b) Was the recommendation faulty in this case?

27. We agree with the primary Judge that the recommendation of the Provincial Executive Council was faulty, in two respects.

28. First, it did not comply with the National Court order of 11 September 2006 which required the Provincial Executive Council to “prepare a fresh list of persons [plural] in accordance with law”, as its list consisted of only one person [singular].

29. Secondly, the recommendation breached the express requirement of Section 73(2) of the Organic Law that the Provincial Executive Council’s list consist of three persons. We appreciate that Section 60(1)(e) of the Act does not say how many persons must be on the list but Section 5(1)(f)(i) of the Regulation makes it clear that it must be three. In any event, the Organic Law is the dominant law under Sections 10 and 11(1) of the Constitution. So there is no doubt that there must be three persons on the list. One was not sufficient.

30. The recommendation was clearly faulty.

(c) Did the primary Judge confine the leave hearing to the issue of whether there was an arguable case?

31. His Honour clearly and correctly spelt out that in determining whether there was an arguable case the National Court is not concerned with determining the merits of the case. It is to avoid a detailed consideration of the evidence. It is required to consider the arguable nature of the case and peruse the material placed before the court by the parties and assess upon a quick perusal of the material whether an arguable case is disclosed (NTN v Post and Telecommunications Corporation [1987] PNGLR 70; Manjin v Post and Telecommunications Corporation [1990] PNGLR 288; Ila Geno v The State [1993] PNGLR 22; Lohia Raka v Leo Toichem [2000] PNGLR 328).

32. We consider that the primary Judge complied with those requirements. His Honour correctly ruled that the fundamental propositions on which the appellant’s proposed grounds of review were based – that the Secretary has no power to reject a faulty Provincial Executive Council recommendation and that the recommendation in this case was not faulty – were unarguable.

33. The leave hearing was confined to the issue of whether there was an arguable case. The correct conclusion was reached. The primary Judge made no error of law by deciding that there was no arguable case. Leave for judicial review was properly refused. We dismiss the second ground of the appeal.

3. WHAT ORDERS SHOULD THE SUPREME COURT MAKE?
   

34. The appellant has been unable to show that any of the grounds of appeal have merit. The appeal will therefore be dismissed and the orders of the National Court will remain in force. Costs will follow the event.

ORDER

35. We will order that:

(1) The appeal is dismissed.

(2) The orders of the National Court remain in force.

(3) The appellant shall pay the costs of the appeal to the respondents on a party-party basis, to be taxed, if not agreed.

Judgment accordingly.

____________________________________________________________
William’s Attorneys: Lawyers for the Appellant
Solicitor-General: Lawyer for the First & Second Respondents
Bradshaw Lawyers: Lawyers for the Third Respondent