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O'Neil v Klapat [2014] PGSC 13; SC1385 (29 August 2014)
SC1385
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE
S.C.M. NO 13 OF 2014
BETWEEN
HON PETER O'NEIL
First Appellant
AND:
SIR PUKA TEMU – MINISTER FOR THE PUBLIC SERVICE
Second Appellant
AND:
LOUJAYA TONY – MINISTER FOR COMMUNITY DEVELOPMENT
Third Appellant
AND:
ANNA SOLOMON – ACTING SECRETARY – DEPARTMENT OF COMMUNITY DEVELOPMENT
Fourth Appellant
AND:
SIR MICHAEL OGIO – G.C.M.G., K St J – GOVERNOR GENERAL OF PAPUA NEW GUINEA
Fifth Appellant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Appellant
AND:
JOSEPH KLAPAT
First Respondent
AND
PUBLIC SERVICES COMMISSION
Second Respondent
Waigani: Salika DCJ, Sawong and Logan JJ
2014: 25 August; 29 August
PRACTICE AND PROCEDURE – Appeal – Application for dismissal for want of prosecution – Absence of explanation by
affidavit by appellant for failure to prosecute appeal – Where grounds of appeal implicitly concede violation of procedure
prescribed by s 193(1D) of the Constitution and the Public Services (Management) Act 1995 for suspension of Permanent Head of Department – Where grounds of appeal seek to challenge exercise of discretion to grant
relief in the nature of certiorari – Where grounds of challenge not compelling.
HELD– Appeal dismissed for want of prosecution.
PRACTICE AND PROCEDURE – Suits against the Head of State or the Governor-General in respect of a decision made on advice –
requirement of s 3 of Claims by and Against the State Act 1996 that the Attorney General be named as nominal defendant in respect
of such suits – Where Governor-General named personally as party in breach of this requirement.
Cases Cited:
Papua New Guinea Cases
House v R (1936) 55 CLR 499
Overseas Cases
SZQBN v Minister for Immigration and Citizenship (2013) 297 FCR 297
Counsel:
Mr A. Baniyamai, for the First Appellant
Mr B Lai, for the First Respondent
29th August, 2014
1. THE COURT: On 11 January 2012, acting on the advice of the National Executive Council (NEC), His Excellency the Governor-General purported to
suspend the first respondent, Mr Joseph Klapat from his position as Departmental Head of the Department of Community Development.
It is necessary to state, "purported", because Mr Klapat challenged the lawfulness of the suspension decision by way of a review
proceeding in the National Court. On 21 March 2014, the National Court (Makail J) declared that suspension decision to be illegal
and made an order in the nature of certiorari quashing that decision.
- The appellants have appealed to the Supreme Court against the orders made in the National Court. Mr Klapat contends that they have
not prosecuted their appeal with due diligence having regard to the requirements in the Supreme Court Rules 2012 and that, accordingly, the appeal should be dismissed for want of prosecution. Alternatively, he seeks an order that the appeal should
be dismissed because it is frivolous or vexatious. In the result, it has proved unnecessary for us to consider whether dismissal
on the latter ground is warranted.
- The appeal was filed promptly, on 27 March 2014. The notice of motion initiating the appeal was amended on 1 April 2014. By amendment,
the relief sought included an order staying the operation of the National Court's orders, pending the hearing and determination of
the appeal, including an order restraining Mr Klapat from holding himself out as Departmental Head. The stay application was fixed
for hearing on 22 April 2014 before the Chief Justice, in his capacity as a single judge of the Supreme Court. In the meantime, Mr
Klapat, initially by his lawyer on 11 April 2014 and then in writing in a document signed by him and filed in court, gave a comprehensive
undertaking, which materially included an undertaking that he would not, pending the hearing of the appeal, hold himself out as Departmental
Head. On 22 April 2014, the matter was adjourned to 29 April 2014. On that day, it was further adjourned, because the Chief Justice
was unexpectedly not available that day.
- Since 29 April 2014, the appellants have not sought the re-listing of the matter, be that for directions or otherwise. They have neither
sought an appointment with the Registrar for the settling of an appeal book index nor prepared and served the same in draft on Mr
Klapat's lawyers. They have not even had the courtesy, by their lawyers, of responding to a polite written inquiry of 6 June 2014
by Mr Klapat's lawyers in which the inactivity was highlighted and orders and directions in relation to the appeal, including an
order for its expedited hearing, which it was suggested might consensually be proposed to the Court, were set out. They have done
nothing. Even after the present application for dismissal was filed on 3 July 2014 and promptly served on their lawyers, they have
done nothing to progress the appeal. Further, they have offered no explanation by way of affidavit for this inactivity.
- The merits of an appeal are always relevant in relation to an application for its summary dismissal for want of prosecution. While
there can be no hard and fast rule, as a general proposition, the greater the prospective merit in the grounds of appeal, the more
inclined the Court will be not summarily to dismiss it, even if the explanation provided for delay is not especially compelling.
That is particularly so where the delay has not occasioned a respondent or sometimes also a non-party serious prejudice. But there
must be some explanation. Here there is none.
- It was put for Mr Klapat that the grounds of appeal go only to asserted errors in the exercise of the discretion to grant relief to
him and, by necessary implication, entail a concession that the learned primary judge was correct in concluding that the suspension
decision was unlawful. That there was no challenge to this conclusion of the primary judge was conceded on behalf of the appellants
on the hearing of the dismissal application.
- As a Departmental Head and thus a person who reported directly to a Minister, Mr Klapat was entitled to the benefit of not being suspended
except in accordance with the mandatory procedure laid down in s193(1D) of the Constitution. The primary judge concluded (at paragraph 59) that, despite the procedure clearly laid down by this provision and further detailed
in the Public Services (Management) Act 1995, the Minister had bypassed both the Minister for the Public Service and the Public Service Commission and proceeded directly to the
NEC with his suspension submission. It is this conclusion which the appellants concede to be correct.
- It is to be remembered that the procedure for the suspension or dismissal of Departmental Heads and other high ranking public servants
having direct reporting responsibilities to these in high political office is laid down not just for their personal benefit but in
the public interest. Such public servants are expected to give in good faith and for the benefit of the Nation, frank, candid and
fearless advice within their area of responsibility, irrespective of whether this serves the transient political interests of the
Minister to whom they directly report. They are also expected faithfully to implement, to the best of their ability, the lawful policies
of the government of the day and to offer advice about those policies. The prescribed procedures afford them a measure of protection
from arbitrary Ministerial retaliation for doing their duty. We mention this because it underscores the seriousness of the departure
from lawful public administration entailed in the conclusion reached by the primary judge.
- In the face of this now conceded departure from lawful public administration, Mr Klapat was entitled, almost as of right, to the relief
granted by the National Court: see the recent judgment of the Full Court of the Federal Court of Australia in SZQBN v Minister for Immigration and Citizenship (2013) 297 FCR 297 in which is canvassed analogous authority concerning the exceptional circumstances in which, though illegality is proved, a constitutional
(previously termed prerogative) writ may be refused on discretionary grounds.
- It is apparent from his reasons for judgment that the learned primary judge well appreciated that the granting of relief entailed
the exercise of a discretion. In deciding whether to grant relief, his Honour weighed up factors such as delay and asserted disentitling
conduct on Mr Klapat's part. His Honour concluded that there was nothing proved that would warrant refusal of the relief sought.
- In the face of this approach, the grounds of appeal have the flavour of an endeavour to rehearse again the relative merits of an exercise
of discretion, rather than a challenge based on errors in the exercise of discretion of the kind described in House v R (1936) 55 CLR 499. It is not, however, necessary to reach any concluded view about whether the appeal should be allowed on any of
the grounds pleaded, only that they are not so compellingly likely to succeed so as exceptionally to excuse what is otherwise studied
and unexplained delay in the prosecution of the appeal.
- For these reasons, we have concluded that the appeal must be dismissed for want of prosecution. That conclusion says nothing about
whether there is cause for the suspension of Mr Klapat, only that there is no longer any challenge to the quashing of the earlier
decision to suspend him. If he is to be suspended, it must be according to law. The determination of the appeal by its dismissal
means that Mr Klapat is no longer bound by the undertaking which he gave to the court.
- In conclusion, we feel duty bound to draw to the attention of the parties and, through these reasons for judgment, the wider profession,
a serious lapse in practice and procedure originally committed by those acting for Mr Klapat but repeated by others by joining His
Excellency the Governor-General personally as a party in the proceedings. This should not have occurred. His Excellency acted on
advice in making his decision. The proper party in respect of a decision of the Head of State or the Governor-General acting on advice
is the Attorney-General as nominal defendant for Her Majesty or His Excellency: s 3 Claims by and Against the State Act 1996. This express statutory provision reflects the long settled position at common law. This lapse in practice and, we add, protocol,
is to be lamented.
- Also to be lamented is the failure of the parties correctly to spell the surname of the current Prime Minister in the title of the
proceedings ("O'Neil"[sic] should be "O'Neill").
- As the appeal is being dismissed, there is no need to make orders directed to the correction of these errors. It would not, though,
be appropriate, given that His Excellency ought never to have been joined personally as a party, to make any order as to costs against
him.
_________________________________________________________
Baniyamai Lawyers: Lawyers for the First Appellant
B. Lai: Lawyer for the First Respondent
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