N2762

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

WS 1382 of 2004

BETWEEN:

ZACHARY GELU
Plaintiff

AND:

FRANCIS DAMEM – SECRETARY DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani, .J
2004: 	22, 28 December

Practice and Procedure – Application for declarations – proceedings commenced by writ of summons – whether writ of summons is the correct mode – O. 4 R. 2 (3) (a); O. 4 R. 3 (1) (2); O. 16 R. 9 (5) of the National Court Rules.

Practice and Procedure – Application for declarations – the nature of a declaration – who can apply – the power to grant a declaration is discretionary – the courts discretionary powers discussed.

Practice and Procedure – Application for declarations - applicant seeking to declare a private right – plaintiff a departmental head engaged on a Contract of Employment - distinction between private and public rights discussed – judicial review appropriate procedure for declaration of public rights.

Cases cited:
 Hanson v Radcliffe Urban District Council Court of appeal [1922] 2 CA 490;
 Ibeneweka v Egbuna Privy Council [1964] 1WLR 29;
 Cocks v Thanet District Council [1983] 2 AC 286;
 O’Reilly v. Mackman [1983] 2 AC 237;
 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112;
 David Nelson v Patrick Pruaitch [2004] N2536;
 Francis Damem and Attorney-General, Department of Justice and Attorney-General v Hon. Mark Maipaka MP Minister for Justice and Hon. Sinai Brown MP Minister for Public Service and Ken Kaiah Government Printer and the Independent State of PNG N2730 dated 24th November 2004;
 Frederick Martins Punangi v Hon. Sinai Brown – Minister for Public Service and 2 ors OS 457 of 2004 dated 30th November, 2004).

Texts cited:
 "Administrative Law of Papua New Guinea Cases, Materials and Text" by Michael A. Ntumy;
 Halsbury’s 4th Edition Vol. 1(1);
 "Applications for Judicial Review - Law and Practice" by Graham Aldous and John Alder (1985)

Counsel:
R. Habuka for the plaintiff
M. Solomon for the defendants/applicants

RULING
(application to dismiss proceedings)

28th December 2004

Davani .J:	I have before me two Notices of Motions filed by the plaintiff and defendants. The plaintiffs Notice of Motion is filed by Patterson Lawyers on the 18th November, 2004 seeking orders, amongst others, that the defendants Defence filed on 15th November 2004 be struck out and that summary judgment be entered against the defendants. The defendants move by amended Notice of Motion filed by Posman Kua Aisi Lawyers on 15th December, 2004, seeking orders, amongst others, that proceedings be dismissed or struck out pursuant to O. 8 R. 27 and O. 12 R. 40 of the National Court Rules.

At the hearing of the applications, the court noted that the defendants filed an amended Defence on 10th December 2002 which demonstrated an arguable or triable issue. It was on that basis that the plaintiff decided not to proceed with the application for summary judgment and to withdraw its motion for summary judgment. The court made such orders.

The only motion before me for argument is the motion filed by the defendants. The defendants also filed extract of submissions in court which was taken to have been read by the court. The court also heard oral submissions from both plaintiffs counsel and defendants counsel. 

The defendants/applicants (‘applicant’) rely on the affidavits of Francis Damem sworn and filed on 11th November 2004, and the affidavits of Peter Kuman sworn and filed on 17th November 2004, sworn on 7th December 2004 and sworn and filed on 15th December 2004. The plaintiff relies on the affidavit of Zachary Gelu sworn and filed on 18th November 2004.

Facts before the court

The applicants application is a challenge to the validity of the action filed by the plaintiff, now before the court as WS 1382 of 2004. It is therefore important that the court set out a brief of the facts common to both parties and which are both disputed and undisputed. These are:

1.	The first defendant is the Secretary to the Department of Justice and Attorney-General of Papua New Guinea;

2.	On 17th July 2002, the first defendant appointed the plaintiff as Solicitor-General for a period of three years pursuant to provisions of the Attorney-General Act 1989;

3.	The plaintiff, the first defendant and the Secretary, Department of Personnel Management, executed a Contract of Employment on 15th October 2002, 14th October 2002 and 3rd October 2002, respectively. A full copy of the Contract of Employment is attached to the affidavit of Peter Kuman sworn on 15th December 2004;

4.	There were very serious allegations made against the plaintiff in relation to out of court settlements which culminated in the first defendant laying nine counts/charges against the plaintiff on 6th March, 003, to which he responded on 19th March, 2003. On consideration of the plaintiffs response, the first defendant found the charges to have been proven, then wrote to the Acting Secretary, Department of personnel Management (‘DPM’) by his letter of 19th September 2003, recommending the plaintiffs termination. The plaintiff was terminated.

6.	Relying on s. 18 of the Public Service Management Act (‘PSMA’), the plaintiff sought a review of the acting Secretary’s decision to terminate, through the Public Service Commission (‘PSC’). 

7.	On completion of its review, the PSC revoked the Acting Secretary DPM’s decision to terminate. By his letter of 23rd August 2004, the chairman of the PSC wrote to the Secretary, DPM, advising of its decision in relation to the review. Its decision was that;

"i.	That you immediately revoke the decision of the then Acting Secretary Mr John Kali in terminating Mr Zachary Gelu’s contract of Employment and from the Public Service;
ii.	That you reinstate Mr Zachary Gelu to his substantive position and level he occupied prior to his dismissal;

iii.	That Mr Zachary Gelu be paid all lost salaries and service entitlements from the date of his dismissal on the 19th September 2003 to the date of his reinstatement;

iv.	That a copy of this advice is placed in Mr Gelu’s staff and personnel file."

8.	On 8th September, 2004, the plaintiff advised the Acting Secretary of the Department of Personnel Management and the first defendant of the PSC’s decision;

9.	On 10th September, 2004, the Acting Secretary of the Department of personnel Management advised the plaintiff that she intended to implement the PSC’s decision of 23rd of August, 2004, and to advise the plaintiff to resume duties as the Solicitor-General forthwith;

10.	On 10th September, 2004, the Acting Secretary of the Department of Personnel Management wrote to the Acting Secretary of the Department of Justice, Mr Fred Tomo referring him to the PSC’s decision and directed that he facilitate the plaintiff’s reinstatement;

11.	Upon resumption of duties, the applicant refused to comply with the PSC’s decision and the Acting Secretary DPM’s decision to reinstate the plaintiff;

12.	The plaintiff then filed proceedings in the National Court seeking various declarations that he is the properly appointed Solicitor-General. The reliefs sought by the plaintiff is pleaded in the Writ of Summons and Statement of Claim filed by the plaintiff on 12th October 2004 (the ‘Writ’) as;

"1.	A declaration that the decision of the Public Service Commission made on 23rd August 2004 in respect of the application for Review by the plaintiff is binding on the first defendant and any decision made by him to the contrary is null and void and of no effect;

2.	An order in the form of a mandatory injunction directing the first defendant to comply with and implement the decision of the Public Service Commission made on 23rd August 2004;

3.	A declaration that the plaintiff is the Solicitor-General of Papua New Guinea and any alternative appointment for the position of Solicitor-General by the first defendant is null and void and of no effect.

4.	Any further or other orders as the court deems appropriate;

5.	The defendants to pay the costs of these proceedings."

Issues before the court

The application before me is to dismiss the whole proceedings as being an abuse of the courts process; that the action is frivolous and vexatious and that the pleadings do not disclose a reasonable cause of action. However, to be able to determine that, I must consider arguments raised by the both counsel in relation to the validity of the process leading to the termination and subsequent review of the termination. I note these issues to be;

1.	Whether the first defendant’s decision to terminate the plaintiff is final as provided in clause 25.1 (d) of the Contract of Employment and that the plaintiff’s action are an abuse of the court’s process and should be dismissed.

2.	Whether the PSC’s decision of 23rd August 2004 is binding on the first and second defendants, relying on s. 18 (3) (d) (ii) of the PSMA. 

Application before the court

Before discussing the merits of the defendants application, the court must appraise itself on the nature of a declaratory order. This is because before a court can grant a declaratory order, it must be sure itself that the decision it is seeking to declare as binding must be one that will invoke the powers of this court. As stated by M. Ntumy in the text Administrative Law of Papua New Guinea at pg. 387:

"A declaration also known as declaratory judgment is, a discretionary order made by a high court declaring what the law is. It merely defines and declares the rights of parties and their legal relationship and is not accompanied by any sanction or means of enforcement…the declaration will be granted only if the claim relates to some legal right or interest recognized by law." (my emphasis)

Halsbury’s 4th Edition Vol. 1(1) at para. 165 state the following:

"In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution and judicially, with regard to all the circumstances of the case, and, except in special circumstances, should not be exercised unless parties interested are before the court. It will not be exercised where the relief claimed would be unlawful or unconstitutional, or inequitable for the court to grant, or contrary to the accepted principles upon which the court exercises its jurisdiction. The court will not make a declaratory judgment where the question raised is truly academic or the declaration would be useless or embarrassing or where an adequate alternative remedy is available such as an action for damages…" (my emphasis)

The applicant submits that the statement of claim filed by the plaintiff does not disclose a cause of action because it is a narration of the background in relation to the plaintiffs charges, suspension and subsequent dismissal as Solicitor-General from the Public Service and subsequent review of his termination by the PSC. He submits that under those circumstances, the plaintiff has not complied with O. 4 R. 2 (3) of the National Court Rules and that the Writ of Summons is not the appropriate mode. O.4 R. 3 of the National Court Rules provides that the plaintiff may elect to proceed either by Writ of Summons or Originating Summons except in the case of proceedings which by the National Court Rules are required to be commenced by the Writ of Summons. O. 4 R. 2 (3) of the National Court Rules states that a Writ of Summons is not an appropriate mode where a person desires to apply for;

	A declaration of right – an immediate injunction; or
	An immediate appointment of receiver; or
	Immediate orders under O. 14 R. 10 (the preservation of property)

O. 4 R. 3(2) of the National Court Rules provides for matters in which Originating Summons would be the appropriate mode of proceedings. It states;

"3.	Where the plaintiff may choose
…
(2)	Proceedings –
(a)	in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law;
(b)	in which there is unlikely to be substantial dispute of fact; or
(c)	in which a person is authorized by an Act, regulation or by these Rules to make an application to the court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of asking the application is prescribed by that Act, or regulation or by these Rules,

are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons."

The applicant submits that the pleadings and facts are not in dispute and that the only issue that arises from the pleadings is one of law i.e whether the PSC decision is valid or not.

Mr Habuka for the plaintiff submits to the contrary, that the plaintiff is quite entitled to proceed by way of Writ of Summons because O. 16 R. 9 (5) of the National Court Rules allows for that to happen. O. 16 R. 9 (5) states:

"9.	Hearing of application for judicial review
…
(5)	Where the relief sought is a declaration, an injunction or damages and the court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ."

I find Mr Habuka’s submissions to be misconceived to a certain extent because O. 16 R. 9 (5) does not say, as submitted by Mr Habuka, that an application for declaratory orders can be made by way of Writ of Summons. To the contrary, O. 16 R. 9 (5) of the National Court Rules states that at the hearing of an application for judicial review where the applicant has sought a declaration, and where the court finds that an order for declaration should not be granted on an application for judicial review but might have been granted in an action begun by writ, then the court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.

The appropriate provision that would apply and that agrees with Mr Habuka’s submissions would be O. 4 R. 3 (1) (2) of the National Court Rules which states that the plaintiff can choose the mode under which he wishes to proceed, and if he considers that a Writ of Summons is appropriate, notwithstanding O. 4 R. 2 (3) (a), which is explicit, that proceedings shall then be commenced by Writ of Summons. 

In this case, the relief sought by the plaintiff are for declaratory orders, amongst others. Halsbury’s 4th edn. vol. 1 (1) states at para. 180 (pg. 290) that:

"The jurisdiction to grant a declaration or an injunction on an application for judicial review is concurrent with the jurisdiction to grant such forms of remedy or relief in actions begun by writ or originating summons. As a general rule a person seeking a declaration or injunction in respect of an infringement of his rights at public law must proceed by way of an application for judicial review, and it would be an abuse of process of the court for such a person to seek redress by way of ordinary action. (see O’Reilly v. Mackman [1983] 2 AC 237). The jurisdiction of the court to grant a declaration or an injunction is confined to reviews of activities of a public nature as opposed to those of a purely private or domestic nature although it appears that applications for judicial review are not confined to those cases where relief could be granted by way of prerogative order." (my emphasis).

Having said that, it is necessary to understand the general rule in relation to the granting of a declaration. The common law prior to 1977 was that an applicant alleging infringement of rights protected by public law could either apply for a prerogative order under O. 53 (Judicial Review) of the rules of the Supreme Court (England) or proceed by action for a declaration or an injunction. Where prerogative orders are sought, O. 53 becomes the sole procedure available (Supreme Court Act 1981). Lord Diplock’s reasons in O’Reilly v Mackman (supra), at pgs 277 and 1128, draw a sharp distinction between rights protected by public law and private law. Lord Diplock was content to rely upon the express and inherent power of the court, exercised on a case to case basis to prevent abuse of its process as the authority of this general rule (pg. 285, 1134). Halsbury’s (supra) at para. 65 states, and relying on O’Reilly v Mackman (supra) that "if a person commences an ordinary action where he should have applied for judicial review, the action will be struck out by summary process. Thus, proceedings by action was struck out where the plaintiff sought declaration that the disciplinary awards made by the board of visitors of a prison were null and void because the board failed to observe the rules of natural justice. Similarly, where the plaintiff commenced an action for a declaration that a local authority owed and was in breach of its duty to house him permanently under the Housing (homeless persons) Act 1977, for consequential mandatory injunctions and damages, it was held that the plaintiff should not be allowed to challenge the alleged breach by way of action but should proceed instead by an application for judicial review. (see Cocks v Thanet District Council [1983] 2 AC 286 at 295 following O’Reilly v Mackman (supra))."

The scenario before this court is that of a "collateral challenge" where the validity of an order or the lawfulness of an action taken becomes a live issue in an ordinary action. Therefore the question of whether private rights or public rights are in issue is a question of construction and discretion. Sometimes it may not be easy to determine which element is collateral to another. The collateral exception would apply where the private law content of the plaintiff’s claim was so great as to override the public element (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 178416) and para. 65 of Halsbury’s (supra). The court must then construct and exercise its discretion with great care. As to how and the extent to which it can exercise its discretion, the common law has dealt with this, a leading authority being Ibeneweka v Egbuna Privy Council [1964] 1WLR 29 where Viscount Redcliffe said:

"…the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. …"

He said further:

"Declarations are not lightly to be granted. The power should be exercised sparingly, and with great care and jealousy, with extreme caution and with the utmost caution". 

Again, as to discretion, Lord Sterndale M.R said in Hanson v Radcliffe Urban District Council court of appeal [1922] 2 CA. 490 at 507:

"The power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide…"

In this case, the declaratory orders sought by the plaintiff, more specifically paragraphs 1 and 3 of the reliefs sought in the statement of claim, are questioning compliance by the defendant, with statutory procedures set out in the Public Service (Management) Act and whether these were complied with. The plaintiff also seeks to have the first defendants decision to terminate him, declared null and void. Even then, the first defendant submits that even if a decision was made by the Public Service Commission on 23rd August 2004, which is denied, that he was not given the opportunity to present his case as required by s. 18 (3) (d) (ii) of Public Service (Management) Act. S. 18 of this act reads;

18.	Review of Personnel Matters in Relation to Appointment, Selection or Discipline.

(1)	The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by a decision.

(2)	A complaint referred to in Subsection (1) shall be –
(a)	in writing; and
(b)	made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and
(c)	copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.

(3)	The procedure to be followed in a review under this section is as follows:
(a)	the Commission shall summons -
(i)	the Departmental Head of the Department of personnel Management or his delegate; and
(ii)	the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and
(iii)	the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;
(b)	the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;
(c)	the Commission shall –
(i)	consider all the facts relative to the matter, including
(a)	the views of the persons summonsed under paragraph (a); and
(b)	the personnel management policies of the National Public Service; and
(c)	the cost implications of any decision which it may make; and
(ii)	make a decision to uphold, vary or annul the decision the subject of the complaint; and
(iii)	give immediate notification of its decision to the persons summonsed under paragraph (a);
(d)	the decision of the Commission under paragraph (c) (ii)
(i)	shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reasons for the delay is beyond the control of the Commission; and
(ii)	shall become binding after a period of 30 days from the date of the decision.

The defendants submit that pursuant to clause 25.1 (d) of the contract, the DPM’s decision in terminating the plaintiff is final and that if he is aggrieved, he should seek redress from the court. This provision reads;

"25.	DISCIPLINARY PROCEDURES 

(d) 	the decision of the Secretary for Department of Personnel Management shall be final, and the terminated senior officer may seek redress through the Papua New Guinea courts of law in the event that he considers the termination to have been made unfairly."

The applicants also submit that the plaintiff should have instituted proceedings for judicial review to review the first defendants decision to terminate or to seek damages for breach of contract. Ms Solomon for the defendants submit that the Public Service Commission’s decision is a nullity because it lacked jurisdiction to hear and determine the plaintiff’s complaint in the first place. The defendants submit that the plaintiff therefore cannot seek the court’s intervention in making orders declaring and giving legal recognition to the Public Service Commission’s decision of 24th August 2004 reinstating the plaintiff to his substantive position, when their action in convening that meeting is legally questionable.

Clearly, there is a challenge by both parties in relation to compliance of procedure by both the Public Service Commission and the first defendant. 

The Contract of Employment between the plaintiff, the first defendant and the Public Service Commission, sets out detailed procedures as to the plaintiffs right to be heard, more particularly the plaintiffs right to natural justice. The plaintiff submits that the PSMA should be read separately from the Contract of Employment in that although clause 25 (d) of the Contract provides for redress in court, that in accordance with clause 18 (3) (d) (ii) of the PSMA, the PSC’s decision to reinstate him is final, and the matter should not be taken any further by anybody.

The plaintiff is a public official. From my quick review of the facts, he is employed under a Contract of Employment and his conditions of service are governed by the terms of the Contract, the PSMA, the Public Service General Orders, the Attorney-Generals Act, the Constitution of Papua New Guinea and the Public Service (Management) (criteria and procedures for suspension and revocation of appointment of departmental heads and provincial Administrators) Regulation 2003. The Contract is a public document which is in similar or same terms to many other Contracts that departmental heads are employed under. It was not created specific to the plaintiffs needs only, but for departmental heads. There is an elaborate process in the legislations referred to above that must be reviewed by the court, if the court is to find that administrative procedure was properly complied with, or not. (see Francis Damem and Attorney-General, Department of Justice and Attorney-General v Hon. Mark Maipaka MP Minister for Justice and Hon. Sinai Brown MP Minister for Public Service and Ken Kaiah Government Printer and the Independent State of PNG N2730 dated 24th November 2004; Frederick Martins Punangi v Hon. Sinai Brown – Minister for Public Service and 2 ors OS 457 of 2004 dated 30th November 2004).

In this case, the plaintiff is seeking a remedy, as though his were a private right, that the contract of employment is a "private" contract of employment. As I have seen, the contract of employment before me is a public contract and incorporates principles of natural justice through its disciplinary procedures. The plaintiff is seeking to protect the Public Service Commission’s decision of 23rd August 2004 and to proclaim that the first defendant’s decision not to reinstate him is null and void and of no effect. Is this relief available to him? The Deputy Chief Justice dealt with this issue in David Nelson v Patrick Pruaitch [2004] N2536 at pg. 6 where he said; 

In my view when a statute or contract of employment entered into under a statute describes disciplinary procedures designed to ensure fair play or fairness or to put it in another term, to ensure compliance with principles of nature justice, in any exercise of disciplinary power as provided under the contract of employment, is a proper matter for judicial review. Such a contract of employment is a public contract of employment for service. I use the term "Public Contract of Employment" to connote the exercise of statutory power on the part of an authority of the State to enter into a Contract of Employment for a service, with a person, for that person to discharge public functions prescribed under statute. Upon his engagement under the contract, he becomes a public official."

As it is, clause 25.1 (d) of the Contract of Employment imposes a duty on the Secretary for the Department of Personnel Management to act fairly when considering whether or not to terminate a senior officer’s contract of employment and in the event that he/she considers the termination to have been made unfairly, he or she may seek redress in the courts of law. Graham Aldous and John alder in the text "Application for Judicial Review Law and Practice" at pg. 63 state that an example of a kind of private right is where the applicant has been deprived of public office, which was previously conferred upon him. In such a case, the courts have drawn a formalistic distinction between the deprivation of an existing right and the refusal to grant a discretionary benefit or privilege (also known as ‘deprivation’ and ‘application’ cases). In the latter case, the applicant may in certain circumstances have a ‘legitimate expectation’ sufficient to attract procedural protection such as the right to be heard but has no private right. Thus judicial review is the only remedy and a declaration under the general law is not available. Where on the other hand there is a duty to confer the benefit in question then there will be a private right (see O’Reilly v Mackman (supra) at pg. 1133).

In this case, there is no duty to confer upon the plaintiff the position of Solicitor-General, which is a public office. Here, the plaintiff has not been deprived of an existing right but is seeking to establish his right to the position of Solicitor-General by posing before the court for its decision, the validity of the process applied when terminating him. (my emphasis) Again, as was held in O’Reilly v Mackman (supra) "Where no private rights are involved, certiorari is therefore the more appropriate remedy …" (pg. 1133).

The plaintiffs reliefs sought in the Writ of Summons and Statement of claim are not to protect his private right but are questioning the whole process of termination. Even if the court declares that the writ is the correct mode, the first defendant still has to right to proceed by way of the judicial review proceedings that it has already filed, proceedings OS 724 of 2004. So if a declaration is made that the first defendants decision is erroneous, then that process would have been futile and useless because the first defendants decision still remains and cannot be questioned unless it is brought up from the tribunal or court below and quashed and this can only be done by way of certiorari, in this case the appropriateness of an application for judicial review. So it follows that a declaration will not issue where it will serve no use or purpose, this being a matter of discretion. (see "Applications for Judicial Review - Law and Practice" by Graham Aldous and John Alder pg. 61)

It is on that basis that the court will dismiss the plaintiffs Writ of Summons and Statement of Claim relying on O. 12 R. 40, that no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and that the proceedings are an abuse of the process of the court.

As to costs, the plaintiff shall pay the costs of the proceedings. The costs are to be taxed if not agreed.
________________________________________________________________

Lawyer for the plaintiff			:	Patterson Lawyers
Lawyer for the defendants			:	Posman Kua Aisi Lawyers