N1238

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 19 OF 1994

PAUL BARI
-Plaintiff-

-V-

CHAIRMAN GOVERNING COUNCIL. ST PAUL'S TEACHERS COLLEGE, VUNAKANAU
1st Defendant

CHAIRMAN OF NATIONAL EDUCATION BOARD APPEAL COMMITTEE
2nd Defendant

MINISTER FOR EDUCATION, MINISTRY OF EDUCATION
3rd Defendants

THE STATE
4th Defendant

Waigani: Brown J.
1994: 12 Jan & 6 April

Judicial Review - Principles - Application for leave - Question of private or public law matter - Private law - Leave refused.

Facts: The plaintiff was a student at the St. Paul's Teachers College, Vunakanau and was expelled for misconduct. He appealed to the Chairman of the National Education Board Appeal Committee and when his expulsion was confirmed, to the Minister for Education who also uphold the Chairman of the Governing Councils original decision. The appeal avenues were provided for by the Charter of Incorporation under which the Teachers College operated. The plaintiff made application for leave of the Court to judicially review the various decisions ordering his expulsion.

Held:

(i) 	The Charter governing the St. Paul's Teachers College, Vunakanau may be categorised as "private law" and consequently the plaintiff must show that he has "locus standi".

(ii) 	The fact that he is a student does not, of itself, give him standing where the Charter has an exhaustive appeal procedure.

(iii) 	The actions of the Governing Council in expelling the plaintiff are within its province and because of the "private law" nature of the acts, are not amenable to judicial review.

Cases Cited:
SCR 5 OF 1990 - Re Petition of Michael Somare [1991] PNGLR 265
Abraham Sulauman v. PNG University of Technology, unreported National Court decision N610
Albert Kuluah v. University of PNG Anors, unreported National Court decision N889
Edwards v. Onehunga High School Board (1972) 2 NZLR 238

Mr L. Tito, for the plaintiff
Mr A. Haboic (Policy & Legal Secretary) on behalf of the defendant

Application for leave for judicial review.

Reasons for Decision

BROWN J.: This is a claim by the plaintiff who is aggrieved by the decision of the first defendant which expelled him for misconduct from the St. Paul's Teachers College, Vunakanau. Following an appeal the plaintiff seeks judicial review of the first defendant's decision to expel him from the College and further review of the second and third defendants decision refusing to reinstate the plaintiff. He also seeks general damages, special damages and the costs of these proceedings.

The proceedings are brought by way of notice of motion pursuant to O.16 of the National Court Rules. On the hearing of this application which came before me on the 12 January, I refuse leave for judicial review and advised that my written reasons would follow. I now set out my reasons.

Before a plaintiff may be heard it is necessary for him to show that he has "standing" or locus standi. Different considerations apply where a party seeks to enforce a private law claim or public law claim. I would consider on the cases dealt with by the Courts in Papua New Guinea that there is a third category which may be described as public interest applications. (See S.C.R. No.4 of 1990 - RePetition of Michael Somare [1991] PNGLR 265). In this case however it is clear that this is essentially a private law claim. The St. Paul's Teachers College, Vunakanau is not an inferior court tribunal or other body or person charged with a performance of public acts and duties. In my view the Teachers College is a private institution governed by the Council pursuant to the charter which is in evidence. It cannot be regarded as an emanation of the State so as to attach as it were, to it, a status which justifies interference by the Court. There may well be an avenue for review from the Governing Council to the Chairman of the National Education Board Appeal Committee and hence to the Minister for Education but that does not imbue the Teachers College with the character of a "public body" sufficient to attract judicial review on the subject of the boys expulsion. An aspect where judicial review may be available to the council of the governing body for instance, may be where there is a legitimate expectation that the National Government will fund the Teachers College. If facts gave rise to such an expectation than this Court may consider an application for judicial review and the application of the Governing Council, in those circumstances for such facts would bring the cause within the public law domain.

The plaintiff in this case however is a student. Any private law rights that he may have as such arising under contract or tort, (and I do not seek to suggest the existence of any such rights by my comment) are not a concern of this Court in judicial review proceedings. (See Abraham Sulaiman -v- PNG University of Technology N610).

It is necessary to show that the plaintiff has a public law right which he says has been infringed. He is not an employee of a public body controlled by statue for instance where employers might have both public and private law rights. (See Albert Kuluah -v- University of PNG & ORS [1990] N889).

Certainly he has been afforded natural justice having regard to the terms of the appeal procedure.

There is no constitutional right in a citizen to be trained as a teacher. To be trained as a teacher, in my view cannot be equated with some basic right to an education, a basic right which is not enunciated in the Constitution. A basic right to an education may encompass literacy and numeracy but to extend any such basic learning beyond that scope and describe it as the plaintiff attempts to do here, as a breach of constitutional right is in my view wrong.

The Governing Council cannot be equated with the Public Service. The public may have an interest in seeing that the curriculum provided for by the Governing Council of the Teachers College corresponds with guidelines facilitating financial assistance from the Government. The Council however is the governing body of the Teachers College. The maxim omnia praesenmuntur rite esse acta applies for the avenues of appeal have been exhausted. The New Zealand Court of Appeal applied this maxim in Edwards v. Onehunga High School Board (1972) 2 N.Z.L.R. 238 where the appellant challenged the vires of a school rule. The Board had authority to make rules as were necessary or desirable for exercising management and control of the school. In the absence of argument that the rules failed those purposes, the board was presumed to have acted within its powers. The Council have responsibility and power to govern the college and this Court cannot interfere. It is the private concern of the Governing Council.

There is then no public interest in such a case sufficient to afford this plaintiff a right of judicial review of the actions of that Governing Council. It consequently follows the actions of the Chairman of the Appeal Committee and the Minister flowing as they do from the private law provisions of the Teachers College charter are also not amenable to judicial review.

For these reasons leave is refused.

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Lawyer for the Plaintiff
Lawyer for the Defendant