N5956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 2 of 2015

BETWEEN:

NATIONAL CAPITAL DISTRICT COMMISSION
Plaintiff

AND:

GEOFFREY VAKI, Commissioner of Royal Papua New Guinea Constabulary
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Nablu, AJ
2015: 31st March
9th April

JUDICIAL REVIEW- Application for Leave- Decision of Police Commissioner to revoke establishment of Reserve Unit- Whether National Capital District has sufficient interest- Breach of right or interest under a Memorandum of Understanding (MoU) not subject to judicial review- Leave refused.

Cases Cited:

Papua New Guinea Cases

SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265
 PNGLR 70
Jixing Industries Ltd v. Aitape Metropolitan Forest Investment Ltd (2013) SC1294
NTN Pty Ltd vs. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959
Paul Asakusa v. Andrew Kumbakor (2008) N3303 
Alois Kingsley Golu v. National Executive Council (2011) N4425

Overseas Cases:

Inland Revenue Commissioners v. National Federation of Self Employed and Small Businesses Ltd [1982] AC 617

Counsel

D. Mel, for the Plaintiff
B. Kulumbu, for the State

9th April, 2015

1.	NABLU, AJ:	By way of an originating summons filed on 12th March 2015, the plaintiff seeks leave to apply for judicial review pursuant to Order 16 Rule 3 of the National Court Rules. The plaintiff seeks to review the decision of the Police Commissioner dated 30th January 2015.

2.	The decision was made by way of Standing Orders, where the Police Commissioner revoked the establishment of the National Capital District Commission Reserve Police Unit, consequently revoking the appointment of the members of the NCDC Reserve Police Unit and directed that they return all police uniforms, acquotrements and equipment effectively. The standing orders were made on 30th January 2015 and published in the Police Gazette No. 1 of 2015 on the same day. The Standing Orders took effect on 1st March 2015.

3.	In 2013, the National Capital District Commission (NCDC) and the Police Commissioner executed a Memorandum of Understanding (MoU) whereby the parties agreed to establish a National Capital District Reserve Police Unit (Reserve Unit). There are about one hundred and twenty (120) men in the Reserve Unit which consists of permanent and newly recruited NCDC employees and ten (10) Regular Police Officers.

4.	The Reserve Unit carry out the enforcement of other municipality laws and by-laws like the National Capital District Betelnut Control Law 2013. They also carried out foot patrol in high risk areas and provided men to police check points at the city boundaries, for example, Laloki check point.

5.	The State only contested the requirement of arguable case and exhaustion of administrative remedies.

6.	There is no issue as to delay. The plaintiff has filed their application promptly.

7.	I am of the view that the main issue for determination is the question of locus standi. Does the plaintiff have sufficient interest? Following that, whether the plaintiff has an arguable case?

Sufficient Interest

8.	In the present case, Mr Mel of counsel for the plaintiff submitted that the plaintiff clearly has locus standi. Apart from the fact that it is a corporation. He based his submission on the MoU entered into in 2013 which established the NCDC Reserve Police Unit, who were tasked with enforcing the plaintiff's municipal law, by-laws and the maintenance of law and order generally.

9.	Order 16 Rule 3(5) of the National Court Rules (NCR) provides the test for determining locus standi. The Court shall not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.

10.	If a plaintiff cannot show that he has sufficient interest than the Court cannot invoke its' powers of judicial review.

11.	Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the plaintiff and the subject matter of his complaint. In the case of Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, His Honour Justice Sheehan stated that:

"Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court's supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues."

12.	The determination of standing is only possible with an examination of the complaint itself.

13.	In the landmark case of SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265, the Supreme Court recognised the right of a citizen to challenge the legality of or constitutionality of legislation.

14.	In this jurisdiction the Court has generously interpreted the term "sufficient interest".

15.	NCDC is a corporation by virtue of Section 4(1) of the National Capital District Commission Act. There is no issue with whether they can sue or be sued. The issue is whether they have sufficient interest to apply for judicial review.

16.	The plaintiff argues that the decision by the Police Commissioner to revoke the NCDC Reserve Police Unit has resulted in the termination of the MoU and adversely affected their efforts to enforce their by-laws.

17.	I find that the purported right, NCDC is saying that was breached arises from the MoU. Therefore, the question for me to determine is whether a right or interest provided for in a MoU can be a decision reviewable by the Courts.

18.	In the case of Jixing Industries Ltd v. Aitape Metropolitan Forest Investment Ltd (2013) SC1294, the Supreme Court canvassed the cases in this jurisdiction as well as other commonwealth jurisdictions and held that the question of whether a memorandum of understanding is a legally binding contract is a question of fact and must be decided according to the intention of the parties having regard to all the circumstances of the case (see pages 7 to 10 of the Judgment).

19.	In the present case, the Affidavit of Honk Kiap, filed on 12th March 2015 annexes a copy of the MoU. Upon perusing the content of the MoU, I find that the MoU was not intended to be a legally binding document. I am of the view that the parties did not intend for it to be legally binding, but to make administrative arrangements on the selection, processing and training of specified NCDC employees to become members of the NCDC Reserve Unit; the command and control of the Reserve Unit and funding of the Reserve members.

20.	I find that the MoU is not intended to be legally binding, because the Reservist are under the direct command of the Police Commissioner through the office of the Divisional Commander, NCD and Central according to Clause 3 of the MoU.

21.	In my view this finding is correct on the basis that the Reserve Constabulary is part of the Police Force and the Police Commissioner is responsible for the administration of the Police Force, according to the Police Act and the Constitution.

22.	To give another meaning or interpretation would mean that the MoU overrides the law and even the Constitution, which would be clearly illegal.

23.	Coming back to my initial question on whether a decision affecting a right or interest from a MoU can be the subject of review. My answer to that is no it cannot be reviewable.

24.	In the present case the MoU entered into by the parties cannot be legally enforceable, it was only intended to clarify administrative arrangements, therefore any rights or interests affected are not legally enforceable and cannot be subject to judicial review.

25.	For the foregoing reasons, I find that the plaintiff does not have sufficient interest.

Arguable Case

26.	Even if I am wrong with regard to the standing of the plaintiff. I am of the view that the plaintiff does not have an arguable case.

27.	The applicant must show that he has an arguable case that warrants the grant of leave. In this jurisdiction the Courts, when determining whether the applicant has an arguable case have applied the relevant principle by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Ltd [1982] AC 617 at 644 where his Lordship said;

" If on a quick perusal of the material then available, the court...thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. The discretion that the court is exercising at this stage is not the same as that 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".

28.	His Lordships' statement has been applied in numerous cases in this jurisdiction and cited with approval in the earlier case of NTN Pty Ltd vs. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70.

29.	When determining whether an applicant has an arguable case or serious issue to be tried, the Courts approach has been to review the grounds raised in the applicants Statement in Support filed under Order 16 Rule 3 (2)(a) of the National Court Rules. The grounds in the Statement should clearly indicate serious errors of law committed by the decision-maker, the alleged breaches of law and procedure and the aspects of the decision which render the decision unreasonable: Paul Asakusa v. Andrew Kumbakor (2008) N3303 and Alois Kingsley Golu v. National Executive Council (2011) N4425.

30.	The plaintiff argues that the decision was unreasonable in the Wednesbury sense and an abuse of its' powers, the Police Commissioner has committed an error of law, and breached the principles of natural justice and breached Section 41 of the Constitution.

31.	I find that the plaintiff does not have an arguable case.

32.	Firstly, the plaintiff's complaint is based on a MoU entered into by the Police Commissioner and the NCDC. 

33.	As I said earlier, an MoU is a non-binding agreement. In my view the MoU does not create any legal rights which can be enforced by parties. It was merely intended to be a non-binding administrative arrangement.

34.	Secondly, the Reserve Constabulary is a branch of the Police Force pursuant to Section 7 of the Police Act 1998. The Police Force is a State Service by virtue of Section 188 of the Constitution.

35.	Section 198 of the Constitution, establishes the office of the Police Commissioner who is "...responsible for the superintendence, efficient organisation and control of the Force in accordance with an Act of Parliament."

36.	It is clear, from that provision that the efficient organization and control of the Police Force is vested in the Police Commissioner.

37.	Greater deference is normally paid to the judgment of the decision maker, to make such administrative decisions.

38.	The decision to revoke the establishment of a Reserve Unit is the prerogative of the Police Commissioner. I am of the view, that the Police Commissioner is vested with the power to make decisions as to the efficient organisation and control of the Police Force and therefore empowered to revoke the establishment of a Reserve Unit.

39.	I have reviewed the grounds of review and find them insufficient to invoke this Courts' power of judicial review. The plaintiff has not demonstrated the serious errors of law committed, breach of procedure or the particulars of why the decision is unreasonable.

40.	The plaintiff says the decision is unreasonable and an abuse of power, but he does not state how it is unreasonable. The grounds also do not specify where the Police Commissioner has erred in law and where he has breached the principles of natural justice under s.59 of the Constitution or where the decision is in breach of s.41 of the Constitution for being harsh, oppressive, unreasonable and disproportionate to requirements of the case and not reasonably justified in a democratic society having regard for rights and the dignity of mankind.

41.	Such complaints or allegations are serious and they should be properly pleaded so the Court can appreciate the facts surrounding the complaint and make a determination. In the present case, the grounds stated are generally worded and therefore insufficiently pleaded, I find there is no arguable case.

42.	There is no need for me to make a determination in regard to exhaustion of administrative remedies, after I have found that the plaintiff does not have sufficient interest or an arguable case.

43.	Therefore, for the foregoing reasons, I exercise my discretion to refuse the application for leave with costs to the State.

Court Orders

1.	The Plaintiff's application for leave is refused and is dismissed.

2.	The Plaintiff to pay the State's costs.
____________________________________________________________
Steeles Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendant