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Karmally v Tibu [2009] PGNC 18; N3646 (13 March 2009)

N3646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 113 OF 2009

BETWEEN:

SHIRAZ ADAM KARMALLY
Plaintiff

AND:

DAVID K. G. TIBU in his capacity as the Secretary of the Department of Labour & Industrial Relations
First Defendant

AND:

HONOURABLE MARK MAIPAKAI, MP in his capacity as Minister for Labour and Industrial Relations
Second Defendant

AND:

GABRIEL PEPSON in his capacity as Secretary for the Department of Foreign Affairs, Trade & Immigration
Third Defendant

AND:

HONOURABLE SAM ABAL, MP in his capacity as Minister for Foreign Affairs, Trade & Immigration
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Hartshorn J.
2009: 12th & 13th March

PRACTICE AND PROCEDURE - Application for Leave for Judicial Review – Exhaustion of other Remedies – s. 9(4) Employment of Non-Citizens Act – applicant has not exhausted his statutory right of appeal to Minister – application for leave to apply for judicial review refused

Cases cited:

PNG v. Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122

Counsel:

Mr. S. Javati, for the Plaintiff
Mr. G Emang, for the Defendants

13 March, 2009

1. HARTSHORN J: Mr. Karmally seeks leave to apply to judicially review the decision of the Secretary of the Department of Labour and Industrial Relations, Mr. Tibu (Labour Secretary), on 23rd February 2009 to cancel Mr. Karmally’s work permit.

2. The four (4) principles to be considered on such an application are whether the applicant has sufficient interest, whether there has been delay, is there an arguable case and have all statutory or administrative remedies been exhausted.

3. Counsel for the State informed the court that the State does not take issue with the fact that Mr. Karmally has sufficient interest, that there has not been delay in bringing the application and that Mr. Karmally has an arguable case. The State submits however, that leave should not be granted as Mr. Karmally’s application is premature as he has not exhausted the statutory remedy available to him; that is he has not appealed to the Minister pursuant to s. 9(4) Employment of Non-Citizens Act.

4. Counsel for Mr. Karmally concedes that his client has not appealed to the Minister under that section, but submits that Mr. Karmally’s case comes within the exception referred to in the Supreme Court cases of PNG v. Kapal [1987] PNGLR 417 and Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122.

5. In Kapal (supra), Kidu CJ and Woods J, said:

"One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provisions for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used: see, eg, R. v. Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 per Sir John Donaldson (with Purchas LJ concurring). This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice."

6. This rule as to the exhaustion of other remedies was confirmed in Kekedo (supra). The Supreme Court (Kapi DCJ, Amet J. and Cory J.) held amongst others:

"That although the judicial review jurisdiction of the National Court exists and may be invoked where an alternative statutory administrative remedy is available, as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted."

7. Kapi DCJ stated at p. 124 that:

"Save in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court were other remedies are available."

8. Counsel for Mr. Karmally submits that his client’s case is exceptional as amongst others:

a) He is a senior investigator in the Commission of Inquiry into the Department of Finance and was appointed by the Prime Minister after his work permit was cancelled on the first occasion.

b) He has had his work permit cancelled twice and on both occasions has not been given adequate information as to why these cancellations have occurred. Consequently he has been denied the right to be heard.

c) No investigation or inquiry has been conducted by the Department of Labour and Employment as to any breaches of labour law that Mr. Karmally may have committed.

d) The letter of 23rd February evidences an error of law as it states that Mr. Karmally’s work permit was invalid on 23rd February 2009 when in fact it ought to have stated that it became invalid after 14 days of notification.

e) There has not been clarification as to whether the termination of Mr. Karmally’s work permit was as a result of an alleged failure to provide a letter giving answers to the ‘show cause’ letter dated the 11th November 2008 or whether the reasons advanced by Mr. Karmally were insufficient.

f) There appears to be a concerted effort made by the Labour Secretary to cancel Mr. Karmally’s work permit for no reason at all.

9. All of the above factors are indicative of errors committed by the Labour Secretary and his Department. An appeal however, under s. 9(4) Employment of Non-Citizens Act is to the Minister. As counsel for the State submitted, Mr. Karmally has had satisfaction from a Minister before when that Minister’s involvement resulted in the first cancellation of Mr. Karmally’s work permit being overturned.

10. Although in Kekedo (supra), what constitutes most exceptional circumstances is not defined, in Kapal (supra), such cases appear to be where the facts and circumstances show that judicial review is more appropriate or convenient to do justice.

11. To my mind such a circumstance would be where there is evidence that the statutory or administrative appeal process is flawed or is not workable. There is no evidence of that here. Indeed, the evidence is that when representations were made to a Minister on behalf of Mr. Karmally concerning the cancellation of his first work permit, the cancellation was overturned.

12. I am not satisfied that the facts and circumstances of this case show that judicial review is more appropriate and convenient than the appeal process provided for to the Minister under s. 9(4) Employment of Non-Citizens Act.

13. Consequently, as I am not satisfied that Mr. Karmally’s case comes within the exception referred to, I am not satisfied that this court should exercise its discretion in favour of Mr. Karmally as he has not exhausted his statutory right of appeal which on the evidence before me still remains open to him.

14. Accordingly Mr. Karmally’s application for leave to apply for judicial review is refused. The Applicant shall pay the costs of and incidental to the motion to the State.

_________________________________

Mawa Lawyers: Lawyers for the Plaintiff
Office of the Solicitor- General: Lawyers for the Defendants