N3065

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 120 OF 2006

BETWEEN

PNG HARBOURS LTD
Plaintiff

AND

PEX SIAOA AVOSA, CHAIRMAN, PUBLIC SERVICE 
CONCILIATION AND ARBITRATION TRIBUNAL & 4 OTHERS
Defendants

Waigani: Injia, DCJ
2006: 20 March

JUDICIAL REVIEW - Leave - Arguable case - Question of law as to whether former employees of PNG Harbours Board now transferred to PNG Harbours Limited are "employees" within the meaning of "public employee" under s.2 of the Public Services Conciliation and Arbitration Act (Ch. No. 240) - Question of jurisdiction - Correct procedure under s.28 of Public Services Conciliation and Arbitration Act to state a special case for opinion of the National Court - Tribunal exhausting procedure under s.28 - Judicial review procedure available to a party appearing before the tribunal, to raise issue of jurisdiction for determination by the National Court.

STATUTE - Interpretation - s.28(1)(b) of the Public Services Conciliation and Arbitration Act (Ch. No. 240) - The phrase "shall if so requested by the National Court" Drafting error - Correct phrase intended - "shall if so requested by the parties appearing before it".

Cases cited in the judgment:
Channel Coaling v Ross (1907) 1 KB 145
Ela Motors Limited v Mc Crudden [1973] PNGLR 436
Ex-parte John Papandakis [1977] PNGLR 313
London Corp v. Cox (1967) LR HL 239
R v. Dartmore Prison Board of Visitors ex parte Smith (1986) 2 All ER 651
R v. Justices of Kent (1889) 24 QB 181
R v. Electricity Commissioners (1924)1 KB 171
Steamships Trading v Dandi [1976] PNGLR 303
The State v Jacob Toroken (1981) N281

Counsel:
T Nonggor, for the applicant
D Lambu, for the Respondents

20 March 2006

1. INJIA, DCJ: This is an application for leave to apply for judicial review made under Order 16 Rule 3 of the National Court Rules. The application relates to a decision made on 24 February 2006 by the Public Services Conciliation and Arbitration Tribunal ("the Tribunal") chaired by the First Defendant which decided that it had jurisdiction to entertain a log of claims made by the Third defendant. The plaintiff seeks a writ of prohibition to stop the tribunal from continuing to hear the matter. The application is contested by the State.

2. There are four basic requirements for grant of leave which the applicant must satisfy and these are:- (1) The applicant has locus standi, (2) the application is made without delay, (3) The applicant has exhausted other statutory appeal or review avenues; and (4) The applicant has an arguable case. There is no contest on the first, second and fourth requirements. The main point under the  fourth requirement is a legal question as to jurisdiction of the tribunal to deal with a claim by employees of PNG Harbours Ltd. Both parties say it is an important and arguable issue which requires determination by this Court but they differ on the procedure as to how the legal issue is brought before this Court. This procedural point is relevant to requirement No. 3 and I will address it in detail later. As for the legal issue, it is necessary to give the background facts.

3. The Third Defendant consists of employees of the PNG Harbours Board ("the board"). The board was established by the Harbours Board Act Ch No. 240 (the principal Act). It is a statutory authority vested with powers inter alia, regulatory powers over wharfage services. On 11 June 2002 the principal Act was amended by the Harbours (Amendment) Act No. 15 of 2002 (the Amending Act). This amendment provided for privatization of the board through the establishment of a private company to be incorporated under the Companies Act 1997 and the transfer of its employees, assets and liabilities to the private company with the State as majority shareholder. The board's regulatory powers were transferred to the ICCC. On 19 June 2002 the Papua New Guinea Harbours Ltd was incorporated. The public employment status of the employees transferred from the board to the new company is in issue.

4. The Public Services Conciliation Act Ch. No. 69 (PSCA) establishes the tribunal to deal with industrial disputes in "public employment" cases between a "public employee" and "public employer". The question is whether the employment of members of the board who are now employees of PNG Harbours Ltd falls under the definition of "public employee". A related question is whether the PNG Harbours Ltd is a "public employer". The term "public employee" means - (c) a member of a prescribed class of persons employed by a prescribed statutory institution, authority or body" and "public employer" means - "(c) in relation to prescribed class of persons employed by a prescribed statutory institution, authority or body - the person or authority specified in the regulations as the employer for the purposes of this Act": PSCA, s.2. There is no dispute that the question raised here is one of jurisdiction, it is one of law, it is an important one and it is arguable.

5. Mrs. Nonggor submits that the Plaintiff raised the issue of jurisdiction before the tribunal, the point was argued, the tribunal deferred its ruling and sought legal advice from the Attorney-General and upon receipt of that advice, the tribunal decided that it had jurisdiction and continued with the hearing. The Plaintiff then filed this application. The tribunal's proceedings have been stayed by an interim stay order which I issued upon application by the Plaintiff. 

6. There is also no question that the prerogative order of prohibition is available under judicial review, at any stage of its proceedings before final decision, to stop the tribunal from dealing with claim in which it lacks jurisdiction in law. I accept Mrs. Nonggor's submission on this point and adopt the passages from different texts and cases she cited: Christopher Enwright, Judicial Review of Administrative Action at p.707, Harry Whitmore, Principles of Australian Administrative Law (5th Edition), Halsbury Laws of England, Fourth Edition, Vol. 1(1) at page 201, R v. Dartmore Prison Board of Visitors ex parte Smith (1986) 2 All ER 651, R v. Justices of Kent (1889) 24 QB 181, London Corp v. Cox (1967) LR HL 239, Channel Coaling v Ross (1907) 1 KB 145, R v. Electricity Commissioners (1924)1 KB 171, The State v Jacob Toroken (1981) N281, Ex-parte John Papandakis [1977] PNGLR 313, Steamships Trading v Dandi [1976] PNGLR 303, Ela Motors Limited v Mc Crudden [1973] PNGLR 436. 

7. Mr. Lambu for the respondent submitted earlier on that judicial review is not the proper procedure to bring questions of law for determination by this Court. The Plaintiff must exhaust the procedure prescribed by PSCA, s.28 by way of a case stated by the tribunal. 

8. Section 28 states:

"28.	Statement of case to National Court.
(1) 	The tribunal-
(a)	may at any stage of the proceedings; and
(b) 	shall if so requested by the National Court, state in the form of a special case for the opinion of the National Court a question of law arising in the course of any proceedings under this Act.
(2)	Notwithstanding Section 27, an opinion given by the National Court under Subsection (1) may be appealed against as if it were a judgment of that Court."

9. During argument it became necessary to establish for a fact if the tribunal already made a determination on 24 February as to jurisdiction. For this reason, I adjourned the matter for a few days and required the production of a certified copy of the tribunal's record of proceedings relating to issue of jurisdiction. The certified transcript which is now before me shows the Plaintiff raised the issue before the tribunal, it ruled that it had jurisdiction and decided to continue with the hearing unless it was prevented by Court Order. Upon discovering this fact, Mr. Lambu then conceded the point and did not take issue with leave for judicial review.

10. I agree with Mr. Lamb's initial submission that the proper procedure to refer a question of law which arises before the tribunal is by way of a case stated by the tribunal. The procedure to be followed in instituting proceedings in the National Court by way of case stated is not clear in s.28 but a plain reading of Subsection (1)(a) & (b) is that there may be two options: - (1) The tribunal may in its own discretion state a case where the tribunal considers a question of law arises in a particular matter before it. This option is clear. (2) Upon request by the National Court. The practical application of this option is not so clear. It would mean that the tribunal would only state a case upon request by the National Court. This in turn would mean that the tribunal or a party appearing before the tribunal would have to institute the appropriate application in the National Court seeking a "request" that the tribunal state a case on a question of law for its opinion. The request if issued would then go back to the tribunal and the tribunal would then state the actual case which would then go before the National Court for a substantive determination. This does not make sense. In my opinion, the words "by the National Court" is most probably a misprint or a drafting error. Due to time constraints and the urgency of the matter, I am unable to research this point to confirm where the error, if any, occurred. My inclination is that those words are most probably intended to mean "if so requested to do so by the parties appearing before it" or words to that effect. Similar words are used in other statutes which provide for a tribunal to state a case for opinion of the National Court. For example, s.20 of the Workers Compensation Act (Ch. 179) which provides:

"28.	Case stated on question of law.

When any question of law arises in any proceedings before it (Workers Compensation Tribunal), including question as to whether or not a person is a worker, a tribunal-

(a)	 may, and 

(b)	shall, if so requested to do so by any party to the proceedings before it, state a case for the decision of the National Court" (My emphasis)

11. The procedure under both options would be that the tribunal would determine the necessary facts which give rise to the question of law, then state the question in clear and precise terms and refer the matter to the National Court. The parties would assist the tribunal in determining the facts and formulating the issue(s). In the meantime, the tribunal should adjourn the proceedings pending the opinion of the National Court.

12. In the present case when the Plaintiff raised the issue of jurisdiction before the tribunal, the Plaintiff did not request the tribunal to state a case on that point. The tribunal also did not consider stating a case on the point. Instead the tribunal adjourned the hearing for seven (7) months to obtain legal opinion on the issue from the Attorney-General. When the tribunal resumed its hearing after obtaining the said legal opinion, the tribunal decided that it had jurisdiction and continued with the hearing. As of now, the issue of jurisdiction is no longer open to be raised before the tribunal. Therefore, the procedure under s.28 having been exhausted, the Plaintiff has employed the only other avenue available to it to raise the same issue of law for determination by this Court and that is by way of judicial review proceedings. In judicial review, lack of jurisdiction is a proper or valid ground.

13. For these reasons, I grant leave for judicial review and permit the issue to be determined in the substantive application. I also issue an order in the nature of prohibition nisi stopping the tribunal from continuing to hear the matter until the substantive application is determined. Pursuant to Rule 5 of the Judicial Review Amendment Rules 2005, I issue the following directions:

1. 	The matter is adjourned to 3 April 2006 at 9:30a.m. for directions hearing.

2. 	The Plaintiff shall file and serve on the respondents an order granting leave, Notice of Motion under O.16 r.5(1) which is returnable on 3 April 2006 at 9:30a.m., the Statement in Support and affidavits and then file an affidavit(s) of service.

3. 	The Plaintiff shall file and serve Notice of Directions Hearing in the form in "Schedule A" of the Judicial Review Amendment Rules 2005, which is made returnable on 3 April 2006 at 9:30a.m.

14. Cost of the application shall be in the cause of the substantive application.

Gadens Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Fifth Respondent