N4336

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) 897 OF 2010

BETWEEN:

JUSTICE MARK S. SEVUA, CBE
Plaintiff

AND:

ANO PALA, MP. AS CHAIRMAN AND MEMBER OF THE JUDICIAL & LEGAL SERVICES COMMISSION
First Defendant

AND:

JUDICIAL & LEGAL SERVICES COMMISSION
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J.
2011: 5th & 7th January

 Application for Leave for Judicial Review 

Facts:

The plaintiff applies for leave to judicially review the decision of the second and first defendants, the Judicial and Legal Services Commission and its Chairman made on 28th September 2010. The decision was to decline the request of the plaintiff for an extension of his retirement age from 60 to 65 years and was purportedly made pursuant to s. 7 (2) Organic Law on the Terms and Conditions of Employment of Judges.

Held:

1. If the relief sought was granted, it would serve no useful purpose. 

2. There is no general duty to give reasons for administrative decisions as part of the principles of natural justice.

3. The Court is not satisfied that the material discloses what might on further consideration turn out to be an arguable case in favour of granting the plaintiff the relief that he seeks. For this reason and the further reason that even if the relief sought was granted, it would serve no useful purpose, the application should be dismissed.

Cases cited: 
Papua New Guinea Cases

Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348 
NCDIC v, Crusoe Pty Ltd [1993] PNGLR 139
Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22 
Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488 
Pora v. Leadership Tribunal [1997] PNGLR 1
John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333 
Ombudsman Commission v. Peter Yama (2004) SC747 
Alphonse Hayabe v. William Powi (2007) N3113
Samson David v. Manasupe Zurenouc (2007) N3146

Overseas cases

Asha Foundation, R (On the Application of) v. Millennium Commission [2003] EWCA Civ 88 
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 
 R v. Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310 
R v. Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242 

Counsel:

Mr. C. Raurela, the Plaintiff

7th January, 2011

1. HARTSHORN J: The plaintiff, the Honourable Justice Mark Sevua, CBE, applies for leave to judicially review the decision of the second and first defendants, the Judicial and Legal Services Commission (JLSC) and its Chairman made on 28th September 2010. The decision was to decline the request of Sevua J for an extension of his retirement age from 60 to 65 years (JLSC decision) and was purportedly made pursuant to s. 7 (2) Organic Law on the Terms and Conditions of Employment of Judges (Organic Law).

2. Sevua J. submits amongst others that:

a) he was not given reasons for the JLSC decision contrary to the principles of natural justice and as such there is a suspicion that the JLSC decision was made without good reason or is tainted with bias,

b) the JLSC decision is void for unreasonableness as:

i) he had a legitimate expectation that his term of appointment would be  extended and,

ii) the JLSC decision is so absurd that no reasonable person would act in  making the decision that the JLSC has.

3. The application proceeded ex parte pursuant to Order 16 Rule 3(2) National Court Rules after I satisfied myself that the requisite notice had been given to the Secretary for Justice pursuant to Order 16 Rule 3(3) National Court Rules. Further, as the third defendant, the State, had been served with the relevant documentation, I was satisfied that the State had been afforded an opportunity to be heard as required by s. 8 Claims By and Against the State Act. I mention at this juncture that counsel for the State did make an appearance at the hearing, but I refused to hear him further upon him conceding that he is not the holder of a current practicing certificate as required by the Lawyers Act.

4. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

5. A further matter that the courts should take into account in exercising its discretion is whether any useful purpose will be served if the relief sought is granted. 

6.   In Alphonse Hayabe v. William Powi (2007) N3113 I made reference to Halsbury's Laws of England 4th Edition vol. 1(1) para. 117 where it is stated:

"Another relevant consideration in deciding whether or not to grant certiorari or prohibition is the effect of doing so.  If the remedy is unnecessary or futile an order will not be made. 

Thus, where grounds are made out upon which the court might grant the order, it will not do so when no benefit could arise in granting it".  

7. This principle has been referred to in decisions of this jurisdiction: 

a) In Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348 Amet, J. (as he then was) appears to acknowledge that there should not be an exercise of the discretion to grant leave if the relief sought served no utility or no practical purpose or if the relief did not determine the immediate rights of the Plaintiff. 

b) In Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488, a case not involving judicial review, one of the prerequisites for declaratory orders was stated as being that, " The issue must not be of merely academic interest, hypothetical or one whose resolution would be of no practical effect".

8. In this instance the relief sought in the originating summons and the statement in support are amongst others, an order in the nature of certiorari to quash the JLSC decision and an order in the nature of a declaration that the JLSC decision is invalid and/or defective in law. If this relief was granted it would have the effect of quashing the JLSC decision and the subject declaration would issue but there would not be an extension to the retirement age. For that to occur, an order in the nature of mandamus is required in respect of the JLSC. That relief has not been sought. Consequently even if the present relief sought was granted, I am of the respectful view that it would serve no useful purpose. On this issue alone the application should be refused.

9. If the application was not so refused, the next step to be taken is a consideration of the application for leave on its merits.

10. As to what is required in an application for leave, in the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644; 

"If, on a quick perusal of the material 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 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 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". 

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. 

11. As the JLSC decision is an act done in the "deliberate judgement" of the JLSC pursuant to s. 7 (2) Organic Law, a further consideration is s. 62 Constitution which is:

"(1) Where a law provides or allows for an act to be done in the "deliberate judgement" of a person, body or authority, the principles of natural justice apply only to the extent that the exercise of judgement must not be biased, arbitrary or capricious.

(2) Except---

 (a) to the extent provided for by Subsection (1); and

 (b) in accordance with Section 155 (5) (the National  Judicial System); and

 (c) as provided by a Constitutional Law or an Act of the  Parliament,

an act to which Subsection (1) applies is, to the extent to which it is done in the deliberate judgement of the person concerned, non-justiciable."

12. In the Supreme Court case of John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333, Injia J (as he then was) considered the interpretation of s. 62 with reference to the Ombudsman Commission. Having regard to his interpretation, pursuant to s. 62(1), the principles of natural justice apply to the JLSC only to the extent that the exercise of its judgement must not be biased, arbitrary or capricious. Pursuant to s. 62 (2), the JLSC's decision in its "deliberate judgement" is only justiciable to the extent provided by s. 62 (1), that is the court may review its decision but only on the grounds of there being a denial of natural justice as the decision is biased, arbitrary or capricious.

13. Given the above, the first question for consideration is whether Sevua J has demonstrated that he has an arguable case that he has been denied natural justice as the JLSC decision is biased, arbitrary or capricious.

Bias

14. As to bias, Sevua J submits that he was not given reasons for the JLSC decision, that this is contrary to the principles of natural justice and that the failure to give reasons gives rise to the suggestion or suspicion that the JLSC decision is tainted with bias.

15. Counsel for Sevua J cited the case of Samson David v. Manasupe Zurenouc (2007) N3146 for the proposition that reasons for an administrative decision must be given. That case concerned a public servant who had been charged under the Public Services (Management) Act and Public Service General Orders, and is clearly distinguishable on its facts from the facts in this case. Reference was also made to the Supreme Court decision of Ombudsman Commission v. Peter Yama (2004) SC747. Again this decision is distinguishable on its facts.

16. I am not aware of any cases in this jurisdiction and certainly none were cited to me by counsel for Sevua J which have similar facts to those in this case. The cases reported of which I am aware, concern decisions made amongst others, in respect of persons being suspended or dismissed from employment or charged with a disciplinary offence or are concerned with decisions of the Ombudsman Commission. In essence, these are decisions that affect the existing rights of a person to continue to enjoy those existing rights. In such circumstances, if the body or person making the decision is subject to the principles of natural justice, then reasons for a decision can legitimately be expected and required. 

17. In this case the JLSC decision is not such that it affects the existing rights of Sevua J to continue as a judge, as that right is determined by s. 7 (1) Organic Law. The JLSC decision affects a possible future entitlement and not an existing right which is able to be relied upon. It is similar to the position of a judge whose term of appointment is nearing completion. If a judge or acting judge writes to the JLSC requesting a new term, is the JLSC required to give reasons for declining the request? I am not of the view that it does.

18. I am not persuaded by the argument of counsel that it is an important principle of natural justice that reasons must be given for all administrative decisions. I am supported in this view by the position taken by the Courts in England, their cases being of persuasive value in this jurisdiction, that there is no general duty to give reasons for administrative decisions as part of the principles of natural justice: R v. Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310, R v. Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242, Asha Foundation, R (On the Application Of) v. Millennium Commission [2003] EWCA Civ 88.

19. As I am satisfied that it is not a principle of natural justice that reasons must be given for all administrative decisions, and that the factual situation here is not the same or similar to any case in our courts where it has been required that reasons be given, is it arguable that the lack of reasons for the JLSC decision are such that the exercise of the judgement of the JLSC in making the decision is biased or tainted with bias and a denial of a principle of natural justice? I am not of the view that it is.

Legitimate expectation

20. As to this ground, Sevua J submits that he had a legitimate expectation that his request for an extension of his retirement age would be extended for various reasons. Counsel for Sevua J cited the case of NCDIC v Crusoe Pty Ltd [1993] PNGLR 139 in this regard.

21. As to any legitimate expectation, there is no evidence that any assurance, promise or undertaking was given or that any other action was taken in respect of Sevua J to support such an expectation. 

22. That Sevua J's second term is until August 2013 is clearly an error as it is inconsistent with s. 7 (1) Organic Law and in my view is not able to be relied upon by Sevua J in support of any legitimate expectation that his retirement age was to be extended. It is apparent that this error is acknowledged by Sevua J in both of his letters to the first defendant.

23. Even if Sevua J had a legitimate expectation, and I make no finding in that regard, would that give rise to an arguable case that in not meeting such a legitimate expectation, the JLSC decision was a denial of natural justice as it was an exercise of judgement that was biased, arbitrary or capricious? I am not satisfied on the material before me that it does.

Unreasonable, absurd, ultra vires

24. Sevua J submits that the JLSC decision was unreasonable, absurd and ultra vires for various reasons and that amongst others, the JLSC did not act as any reasonable person would. 

25. There is no evidence on the material before me that the JLSC's decision was not a real exercise of discretion, that it did not have regard to practice and precedent, that it ignored relevant but took into account irrelevant considerations, that it operated on the basis of bad faith or dishonesty and did not direct itself properly in law, such that I am able to be satisfied that it can be argued that the JLSC decision was unreasonable, absurd and ultra vires.

26. Further I am of the view that there is not sufficient evidence for it to be argued that there was a denial of natural justice as the JLSC decision was an exercise of judgement that was biased, arbitrary or capricious.

27. After considering the grounds relied upon by Sevua J and following a quick perusal of the material placed before me, I am not satisfied that the material discloses what might on further consideration turn out to be an arguable case in favour of granting Sevua J the relief that he seeks. For this reason and the further reason that even if the relief sought was granted, it would serve no useful purpose, the application should be dismissed. Consequently, it is not necessary to consider the other arguments of counsel. 

Orders

28. The relief sought in paragraph 1 of the Originating Summons filed 22nd December 2010 is refused.

_____________________________________________________________
Raurela Lawyers: Lawyers for the Plaintiff