Sione v National Executive Council [2023] PGSC 56; SC2408 (21 June 2023)

SC2408

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 69 OF 2021

BETWEEN:
APEO FUATA SIONE in the capacity as the Chairman and for and on behalf of the Commissioners of the Public Service Commission
Appellant

V
NATIONAL EXECUTIVE COUNCIL
First Respondent

AND
GORDON KEGA
Second Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J, Anis J & Numapo J
2023: 30^th May, 21^st June

JUDICIAL REVIEW - APPEAL – Order 10 Rule 1 – Supreme Court Rules 2012 as amended - appeal against refusal of leave for judicial review –- exercise of discretion – whether trial Judge committed error in exercising discretion – decision to refuse leave primarily premised on Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 – whether the amendment was repealed - if so, whether leave should nevertheless be granted, that is, whether the applicant has standing - whether there is an arguable case – exercise of powers under sections 6 and 16 – Supreme Court Act Chapter No. 37 - consideration – exercise of discretion

Cases Cited:
Papua New Guinean Cases

Kereme v O’Neil and Ors (2019) SC1781
Ken Norae Mondiai and 1 Or v Wawoi Guavi Timber Co. Ltd and Ors (2006) SC886
Pora v. Leadership Tribunal [1997] PNGLR 1
Ila Geno and Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Simon Manjin v Post and Telecommunication Corporation [1990] PNGLR 288
Public Services Commission v The Independent State of Papua New Guinea [1994] PNGLR 603
Azzam Ek Cheikh v. Rimbink Pato (2017) N6879

Overseas Cases:

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Counsel:

Mr R M Simbil, for the Appellant
Mr K Kipongi, for the First, Second & Third Respondents

21 June, 2023

1. BY THE COURT: We heard the substantive matter, which was an appeal against refusal of leave to apply for judicial review, on 30 May 2023 and reserved our decision to a date to be advised.

2. This is our ruling.

BACKGROUND

3. The appellant is the Chairman of the Public Service Commission (appellant/PSC). In the National Court (OS (JR) No 73 of 2021 or JR proceeding), the appellant applied for leave for judicial review (filed 31 May 2021). He sought to challenge the decision of the first respondent which had appointed the second respondent to the position of Auditor General of Papua New Guinea (AG). The first respondent’s said decision may be described as Decision No. 27 of 2021, National Gazette No. G142, made on 24 February 2021.

4. The leave hearing was conducted on 18 November 2021. On 23 November 2021, the trial Judge handed down a written decision where he refused leave to the appellant to apply for judicial review with costs.

5. Aggrieved by that decision, the appellant files this appeal, that is, by Notice of Motion (NoM/appeal) under Order 10 Rule 1 of the Supreme Court Rules 2012 (as amended to date) (SCR).

APPEAL GROUNDS

6. The appellant pleads in total 8 grounds of appeal. They are captured at pages 3 and 4 of the NoM. The grounds appear repetitious, but upon their perusal, we have categorized them into 2 parts. Grounds (a), (b), (d), (e) and (f) will be considered together. They are premised on the appellant’s claim that the trial Judge had relied on repealed legislation, namely, the Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 (Constitutional Amendment No. 38/ the Amendment), in his decision - thus His Honour fell into error.

7. We will address grounds (c), (g) and (h) separately subject to our findings on the first set of grounds of appeal. Under these grounds of appeal (i.e., c, g and h), the appellant claims that pursuant to ss 193 and 213 of the Constitution, the PSC is involved in the appointment process for the post of the AG thus supporting the proposition that the PSC had sufficient interest and an arguable case and that the trial Judge erred when he did not take these into account in his decision.

WHETHER LEGISLATION REPEALED

8. We have had the benefit of perusing a copy of the trial Judge’s written decision. It is located at pp 188 of the Appeal Book (AB). The trial Judge we note made references to and relied on the Constitutional Amendment No. 38 in his decision. In so doing, he dismissed the appellant’s reliance on ss 193 and 208B of the Constitution.

9. The appellant, however, submits before us that the trial Judge erred in that regard because Constitutional Amendment No. 38 had been challenged before this Court in Kereme v O’Neil and Ors (2019) SC1781 (delivered on 28 March 2019) and was since repealed. We have had the benefit of perusing the case. This Court held at [53] and [54] as follows:

“53. Since the Constitutional Amendments were made, they have been implemented. Actions taken under the amendment shall remain in force. This judgment will have prospective effect only.

Orders

54. The Court orders that:

a. The application is granted, in respect of the following statutory enactments –

(a) Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014;

(b) Organic Law on Provincial Governments and local-level Governments (Amendment) (No 13) Law 2014;

(c) Public Service Management Act 2014, Regulatory Statutory (Appointment to Certain Offices) (Amendment) Act 2013;

(d) Public Service (Management) (Employment of Departmental Heads) Regulations 2014;

(e) Public Service (Management) (Employment of Provincial Administrators) Regulations 2014; and

(f) Regulatory Statutory (Appointment to Certain Officers) Regulations 2013.

b. These statutory enactments are declared invalid forthwith, as having been made without complying with the mandatory requirements of s 14 (2)(b) of the Constitution and the latter part of s 14(2).

c. Actions taken under the amendments shall remain valid.

......”

[Underlining ours]

10. We note that the respondents have conceded to the fact that Constitutional Amendment No. 38 has been repealed. However, they submit that even so, the PSC still did not have authority or sufficient interest in the final consideration of its recommended candidates (for the post of AG) by the first respondent; they submit that after the PSC had provided its recommendations to the first respondent, that it had performed its role under the legislation and that the final determination or recommendation for appointment of the AG was within the purview or prerogative of the first respondent to choose, that is, whether to appoint the AG premised on the recommendations submitted by the PSC or otherwise.

11. We now make the following observations. First, we agree with the appellant that Constitutional Amendment No. 38 has been repealed. It is clear that His Honour fell into error in that regard, that is, when he dismissed the JR proceeding premised on the said Amendment. The Amendment was certified by the Clerk of Parliament and came into effect on 14 May 2014. It remained valid until it was repealed by this Court in Kereme v O’Neil (supra) on 28 March 2019. The Supreme Court therein further ordered that its decision would have prospective effect only. Secondly, we note that the appointment process for the AG’s post commenced on 7 August 2019, which was the date when the Department of Personal Management (DPM) advertised the position in the National Gazette. Thirdly, we note that the actual appointment of the second respondent was made on 24 February 2021.

12. So, to summarise, we make the following findings on grounds (a), (b), (d), (e) and (f). The appointment process including the actual appointment date of the second respondent occurred after this Court’s decision in Kereme v O’Neil (supra). We affirm that Constitutional Amendment No. 38 was repealed and did not exist as a law at the material time up to this day.
.
13. Consequently, we uphold the first set of grounds of appeal in general. In doing so, we note that the trial Judge’s decision to refuse leave was predicated primarily on his regard to the repealed Constitutional Amendment No. 38. We have determined that His Honour erred in that regard when he considered the said Amendment. As such and in our view, our findings should be sufficient to uphold the appeal without further regard to the rest of the grounds of appeal.

WHETHER PSC HAS SUFFICIENT INTEREST

14. Whilst we uphold the grounds of appeal that the trial Judge erred when he had regard to Constitutional Amendment No. 38 in his decision in refusing leave for judicial review, it does not, in our view, resolve the contentious issues of standing and arguable case. These issues are pending.

15. Should we therefore refer them back to the National Court before a different judge to hear the leave application? Or should we determine that ourselves? We note that pursuant to ss 6 and 16 of the Supreme Court Act Chapter No. 37 (SC Act), the appeal herein is regarded as a rehearing. We have powers, amongst others, to sustain or overrule the decision of the trial Judge. We also note that the appellant has, in his submissions, invited us to exercise that power in the event that the appeal is upheld.

16. We are minded to and will proceed to hear and determine the leave application.

17. In so doing and to begin, we observe the following provisions of the Constitution, namely, ss 191(1A), 193(1)(1A), 208B and 213:

191. Functions of the Commission.

(1) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for—

(a) the review of personnel matters connected with the National Public Service; and

(b) the continuous review of the State Services (other than the Papua New Guinea Defence Force), and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.

(2) The Public Services Commission has such other functions as may be prescribed by or under a Constitutional Law or an Act of the Parliament.

(3) In carrying out its function under Subsection (1)(b), the Public Services Commission—

(a) shall take into account the government policy on a particular matter when advising the National Executive Council and the other authorities responsible for those services; and

(b) shall not have any power to direct or control a State Service or the services of other governmental bodies.

......

193. Appointments to certain offices.

(1) This section applies to and in respect of the following offices and positions:—

(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and

(b) the offices of the members of the Boundaries Commission; and

(c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and

(d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and

(e) the office of Commissioner of Police; and

(f) the office of Commander of the Defence Force; and

(g) the office of Secretary to the National Executive Council; and

(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose,

other than the offices of the members of the Public Services Commission.

(1A) All substantive appointments to offices to which Subsection Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.

......

208B. APPOINTMENTS TO CERTAIN OFFICES OF REGULATORY STATUTORY AUTHORITIES.

(1) This section applies to and in respect of the following officers and positions:–

(a) all offices of chief executive officers of Regulatory Statutory Authorities; and

(b) all offices of non ex officio member of Boards of Regulatory Statutory Authorities; and

(c) such other offices and positions as are prescribed by an Act of Parliament for the purpose.

(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(a) applies shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board in accordance with the recommendation from the Public Services Commission, following procedures prescribed by an Act of Parliament.

......

213. Establishment of the office of Auditor-General.

(1) An office of Auditor-General is hereby established.

(2) The Auditor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after receiving reports from the Public Services Commission and the Public Accounts Committee.

(3) In the performance of his functions under this Constitution, the Auditor-General is not subject to the control or direction of any person or authority.

(Underlining ours)

18. We also observe and set-out ss 25(a)(b), 25A(a)(b) and 31A(1)(a)(b)(c)(d) and (e) of the Public Services (Management) Act 1995 (PSMA) herein:

25. FILLING OF VACANCIES IN CERTAIN OFFICES OF DEPARTMENTAL HEAD.

In accordance with and subject to Section 193 (Appointments to certain offices) of the Constitution, a vacancy in the office of Departmental Head may be filled by the Head of State acting on advice–

(a) by the promotion or transfer of an officer; or

(b) by an appointment made in accordance with a merit-based appointment process specified in Section 25A.

25A. MERIT-BASED APPOINTMENT PROCESS.

Regulations may prescribe a merit-based appointment process for the filling of a vacancy under Section 25 which –

(a) shall involve a recommendation of the Public Services Commission to be made solely on the basis of an assessment of a candidate’s suitability compared to the minimum person specification as advertised for the vacancy; and

(b) shall be based on the following administrative processes:–

(i) the advertisement of the vacancy in an office in the prescribed format, together with the minimum person specification for applicants to the position;

(ii) the assessment of each applicant’s curriculum vitae, submitted in a prescribed format, and their competency to perform the prescribed duties as measured against the prescribed minimum person specification for the position;

(iii) a ranked ordered assessment of all applicants for the advertised position in terms of their relative competency to perform the prescribed duties;

(iv) the merit-based assessment described in this section shall be the primary consideration of the Public Services Commission in making a recommendation to the National Executive Council; and

(v) all other considerations not related to the processes described in this section shall have no bearing in the recommendation of the Public Services Commission and of the National Executive Council in making a final decision on an appointment.

......

31A. PROCEDURES RELATING TO SUBSTANTIVE APPOINTMENTS OF DEPARTMENTAL HEADS.

(1) The procedures relating to the substantive appointments of Departmental Heads referred to in Section 193(1A) (appointments to certain offices) of the Constitution are as follows: –

(a) where an office of Departmental Head becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsection (2) and (3) –

(i) declare that a vacancy in the office of Departmental Head exists or is about to exist; and

(ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and

(iii) notify the Commission of the vacancy; and

(iv) advertise for applications for the office –

(A) on the least two occasions in a newspaper circulated nationally; and

(B) in such other manner as it considers appropriate;

(b) after consideration and assessment of the applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall –

(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and

(ii) submit to the Commission for its consideration –

(A) the list under Subsection (i); and

(B) all applications received in response to the advertisements under Paragraph (a)(iv);

(c) an assessment of an applicant under Paragraph (b) shall be based on –

(i) the minimum requisites for the position; and

(ii) where available, any appraisal of performance and discipline under Section 24A; and

(iii) prescribed criteria;

(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all application received in response to the advertisement under Paragraph (a)(iv) and shall –

(i) compile there from a list of up to three candidates in order of preference; and

(ii) submit the list under Subparagraph (i) as a recommendation to the National Executive Council;

(e) the National Executive Council may select one of the persons on the list submitted to it under Paragraph (d)(i) for appointment and shall advise the Head of State to make the appropriate substantive appointment as Departmental Head;

(f) where the National Executive Council does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment –

(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and

(ii) the procedure set out in Paragraph (a)(iv),(b),(c),(d) and (e) shall again be followed.

......

(Underlining and bold lettering ours)

19. In our view, the issue of standing or sufficient interest is crucial before we may consider the next issue which is arguable case. Order 16 Rule 3 (5) National Court Rules provides that, “The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates." [Underlining ours]

20. Does the appellant or PSC have standing or sufficient interest in the matter?

21. To answer that, we re-draw our attention to the crucial provision, which is s. 213(2) of the Constitution. It states:

(2) The Auditor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after receiving reports from the Public Services Commission and the Public Accounts Committee. [Underlining ours]

22. It appears not to be in dispute that the first respondent did receive a final report (which contained the short list of candidates for the AG post) from the PSC before it arrived at its final decision to recommend to the Head of State to appoint the second respondent. The PSC’s complaint, however, and as pleaded in the Statement in the JR proceeding, is that the first respondent chose the second respondent whom it did not recommend in its final report. The appellant claimed in the Statement that apart from s. 213, that there was no complete process that one must follow for the appointment of the AG. The appellant pleaded in the Statement that due to this deficiency, that they had adopted and applied the appointment process for appointment of departmental heads under ss. 25, 25A and 31A of the PSMA (Adopted Practice), to the appointment of the AG. The appellant described it as “Merit Based Appointment Process” which is derived from the heading of s. 25A. The appellant submits that they intend to argue, if leave is granted, that the Adopted Practice is applicable as well to appointment of an AG, and therefore, that the first respondent, amongst others, breached s. 31A(1)(e) of the PSMA, acted ultra vires and acted unreasonably under the Wednesbury Principles when it recommended to the Head of State to appoint the second respondent to the post of AG.

23. We note that the PSC, by legislation, does play a significant role in relation to the appointment of heads of public service offices. The process for their appointments is specified under s. 31A of the PSMA. In brief, once the report is provided to the first respondent, the first respondent will consider and recommend to the Head of State, to appoint a candidate from the short list that is submitted by the PSC. Upon closer consideration of s. 31A, we note in particular subsection (1)(e) which appears to expressly state that the first respondent may select from the submitted list of candidates provided by the PSC. It also appears to expressly state that if the first respondent does not consider any of the persons on the list submitted to it by the PSC, then the first respondent shall so advise the Commission and the Departmental Head of the Department of Personnel Management, and it further appears to expressly state that the procedure set out in Paragraph (a)(iv),(b),(c),(d) and (e) shall again be followed. Section 31A(1) suggests to us that the role of the appellant or the PSC does not necessarily end after it presents its report of the candidates for the post of heads of departments or offices that are identified therein. Rather, and by legislation, the PSC may involve itself in the situation that is described under s. 31A(1)(e). We have been and are careful to use terms such as “appears” or “suggests” because we are not determining the merit or the complaint that is the subject of the JR proceeding or interpreting the relevant provisions. Our role herein is limited to considering and making a ruling on the leave application, namely, on questions of sufficient interest and arguable case.

24. This Court in Ken Norae Mondiai and 1 Or v Wawoi Guavi Timber Co. Ltd and Ors (2006) SC886 sets out the considerations that a National Court judge may be required or asked to determine sufficient interest. We set them out herein:

4. To determine whether a person has sufficient interest for the purposes of National Court Rules Order 16 r3(5) the Court should ask,

(a) Is the party complained about a public body

(b) Does that party have duties to perform at law; ie statutory duties?

(c) What is the nature of the alleged breach of duty; are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?

(d) What is the Plaintiff’s relationship to the duties alleged to have been breached;

(i) are they merely busy bodies or

(ii) are they genuinely concerned

(iii) do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?

25. We also refer to Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, where at 644 per Lord Diplock stated the following:

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." [Underlining ours]

26. These principles have been adopted and applied in our jurisdiction by both the Supreme and National Courts: Cases include Pora v. Leadership Tribunal [1997] PNGLR 1, Ila Geno and Ors v The Independent State of Papua New Guinea [1993] PNGLR 22 and Simon Manjin v Post and Telecommunication Corporation [1990] PNGLR 288.

27. In Azzam Ek Cheikh v. Rimbink Pato (2017) N6879, His Honour Justice Gavara-Nanu, in acknowledging Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd (Supra) stated the following at [11] which we adopt herein, as follows:

11. First, the plaintiff must show that he has standing or sufficient interest in the matter to which the application relates. This would require the plaintiff to show that his interests are directly affected by the decisions. If the plaintiff is able to satisfy this requirement then leave should be readily granted to him by the Court. On the other hand, if the plaintiff’s interests are not directly affected by the decisions or that the application is made as a matter of public interest, the pertinent question still is whether the plaintiff has sufficient interest in the matter. In deciding this question the Court must have regard to all the facts and circumstances of the case. R v. Inland Revenue Commission, ex p. National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; [1982] A.C 617, at 659; [1981] UKHL 2; [1981] 2 All E.R 93 at 107. [Underlining ours]

28. We note the submissions of the parties in general.

29. Upon a quick perusal of the relevant legislation as summarized above, we note that the role and function of the PSC to appoint the AG is expressly provided or included under legislation, that is, s. 213 of the Constitution. Section 213(2) obliges the PSC and the Public Accounts Committee to provide their reports to the first respondent who will then recommend a candidate to the Head of State to appoint as the AG. In the Statement that is filed, the appellant intends to argue that the first respondent was obliged to follow the due process under the Adopted Practice. It intends to argue that the proper course should have been for the whole appointment process to recommence; that it was wrong for the first respondent to recommend the appointment of the second respondent without regard to the Adopted Practice.

30. So, on the question of sufficient interest, we make this finding. We are not satisfied that the appellant has established sufficient interest in this matter. We first refer to the decision made by the first respondent on 24 February 2021. The process for recommending to the Head of State to appoint the AG, once the final reports are submitted in by the PSC and the Public Accounts Committed, was a matter that appears to be within the exclusive jurisdiction or purview of the first respondent by virtue of s. 213(2) of the Constitution. We are therefore not convinced that the appellant or the PSC has sufficient interest in the matter for this reason.

31. The second reason is this. We fail to see how the appellant or PSC is affected by the decision of 24 February 2021. Section 213(2) appears express. After the first respondent receives the reports from the PSC and the Public Accounts Committee, no further consultation appears necessary, and the first respondent is permitted to make a recommendation to the Head of State on whom to appoint as the AG. This also leads us to address at this juncture the question of an arguable case which in our view is conjoined with our reasonings on sufficient interest. The intended argument by the PSC, if leave is granted, is that the Adopted Practice should also apply whereby pursuant to s. 31A(1)(e) of the PSMA, the first respondent would be required to advise the PSC of its dissatisfaction of the selected candidates which would then trigger the appointment process for the AG’s post to recommence under s. 31A(1)(a), (b), (c), (d) and (e) of the PSMA. In our view and on the face of this main intended argument, it appears to be in direct contravention with s. 213(2) of the Constitution which does not appear to expressly require an extended appointment process to occur. The Constitution is superior to all other laws of the country [see s. 9]. Other laws include Acts of Parliament such as the PSMA. In our view, this therefore casts serious doubts on the merit of the proposed argument for judicial review. As such, we are also not convinced that the appellant has established an arguable case for judicial review.

32. Our third reason may be addressed in this way. The appellant drew our attention to the case Public Services Commission v The Independent State of Papua New Guinea [1994] PNGLR 603. His Honour Salika J, as he then was (now the Chief Justice), granted judicial review in favour of the PSC. The PSC had challenged the decision of the first respondent in appointing 5 heads of departments. The PSC had contended that the first respondent did not consult it before it made recommendations to the Head of State to appoint the 5 candidates. His Honour held, amongst others, (and we will paraphrase) that s. 193(3) of the Constitution was mandatory. His Honour found that the first respondent did not consult the PSC before it recommended the 5 candidates for their appointments thus ruled their appointments null and void.

33. The case is obviously distinguishable from the present case. The above case concerns positions of heads of departments where the Adopted Practice or s. 193(3) of the Constitution applied. The position and appointment process for the post of AG appears separate and independent to the Adopted Practice or to s. 193(3) of the Constitution. We observe that the office of the AG is created directly under the Constitution [s. 213(1)]. We observe that it has express provision therein, (i), for the appointment of the AG [s. 213(2)], and (ii), its states that the AG shall not be subject to any control or direction from any person or authority when the AG is performing his functions under the Constitution [s. 213(3)]. These demonstrate to us, sitting as the leave Court, that the appellant does not have sufficient interest. They also demonstrate to us that the intended legal argument(s) for judicial review appears weak and is bound to fail thus does not warrant further determinations, but rather, that the JR proceeding should be dismissed.

SUMMARY

34. Having upheld the grounds of appeal that the trial Judge erred in his decision in refusing leave for judicial review in the JR proceeding, we have proceeded to determine the leave application under ss. 6 and 16 of the SC Act. In so doing, we do not find that the appellant or PSC have sufficient interest or an arguable case for the intended JR proceeding.

35. We therefore refuse leave to apply for judicial review.

36. Consequently, the JR proceeding will be dismissed.

COSTS

37. An order for costs remains discretionary.

38. We propose to make 2 sets of orders. First, we will order the parties to pay their own costs for this appeal. We intend to make this order taking into account our decision in upholding the grounds of appeal which favours the appellant but for our second ruling on the application for leave for judicial review.

39. However, in regard to the JR proceeding before the National Court, we will order the appellant to pay the respondents’ costs of the proceeding on a party/party basis which may be taxed if not agreed.

ORDERS OF THE COURT

40. We make the following orders:

1. We uphold the appeal and quash the decision of the judicial review Court made on 24 February 2021.
   
2. After hearing the application for leave to review under ss. 6 and 16 of the Supreme Court Act, we refuse leave for judicial review.
   
3. In regard to costs, we make the following orders:
   

(i) Parties shall bear their own costs of this appeal.

(ii) The Appellant shall bear the Respondents’ costs of the National Court proceeding styled OS (JR) No 73 of 2021 which shall be assessed on a party/party basis to be taxed if not agreed.

The Court orders accordingly

________________________________________________________________
PSC In-house Counsel: Lawyers for the Appellant
Solicitor General: Lawyers for the First, Second & Third Respondents