N8069
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 460 OF 2018

NUG MAMATIRIN in his capacity as the President of the PNG Communication Workers Union
Plaintiff

And
PNG COMMUNICATION WORKERS UNION
Second Plaintiff

V
HON. PETER O'NEIL in his capacity as the Prime Minister and Chairman of the National Executive Council
First Defendant

And
HON. WILLIAM DUMA in his capacity as the Minister for State Owned Enterprises
Second Defendant

And
NATIONAL EXECUTIVE COUNCIL
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 7th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons Order 16 Rule 3 (2) NCR – Review – Notice of motion – affidavit verifying facts – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – affidavit of Plaintiff  – decision of Public Body – No Arguable case –alternative remedies available not exhausted –delay in time – grounds for leave not made out – leave refused – cost in cause.

Cases Cited:
Papua New Guinea Cases

WS (HR) No. 12 of 2016 Nug Mamtrin, President, PNG Communication Workers Union, for and on Behalf of 271 others & 3 other plaintiffs v Michael Donnelly, CEO, Telikom PNG Limited & 3 others (28 June 2018)
Geno, Lawton and Mambu v The State [1993] PGSC 8; [1993] PNGLR 22 
NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70
Diro v Ombudsman Commission [1991] PNGLR 153
Lupari v Somare [2008] PGNC 121; N3476 
S.C.R. No.1 of 1982; Re Bouraga [1982] PNGLR 178
Burns Philip (PNG) Ltd v. The Independent State of Papua New Guinea [1989] PGNC 24; N769 
The State v. Phillip Kapal [1987] PNGLR 417
Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 

Overseas Cases 

Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited (1982) AC 617.
Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA

Counsel

J. Napu, for Plaintiff
H. Maliso, for Defendants

					RULING 
 17th October, 2019
1.	MIVIRI, J: This is the Ruling on the Plaintiff's Amended Originating Summons applying for leave for Judicial Review.

2.	He seeks to review the decision of the National Executive Council (NEC) in decision number 360/2016 where it resolved to restructure State owned enterprises in the Telecommunication industry. Later on, the 22nd February 2018 by decision number 44/2017 it resolved to rescind parts of that decision 360/2016, still with the aim to restructure State owned Enterprises in the Telecommunications Industry. The companies that were directly affected by that decision were DataCo Pacific Limited, Kumul Telikom Holdings Limited and Bemobile Limited who were answerable to their owners the Government of Papua New Guinea through the NEC. 

3.	Individually these companies employed persons in their service like the First Plaintiff forming a master servant relationship by law. The First Plaintiff with other employees formed themselves into unions the Second Plaintiff. Between them and Kumul Telikom Holdings Limited (KTHL) they have a registered Enterprise Bargaining Agreement 2010 (EBA 2010). It is a collective bargaining agreement or award between them on behalf of its members. It recognises that in law they are answerable for their fate individually to the individual companies that employ them by their relationship of master and servant. In this regard their relationship would be remote from the decision made here by the NEC. And this is clear from the ruling of this court in WS (HR) No. 12 of 2016 Nug Mamtrin, President, PNG Communication Workers Union, for and on Behalf of 271 others & 3 other plaintiffs v Michael Donnelly, CEO, Telikom PNG Limited & 3 others (28 June 2018) which recognises this fact and deduces that it is enforceable in law against the employer for breach of contract which is not the NEC. There ought to be a nexus with the decision maker and the plaintiff who is affected by that decision, Geno, Lawton and Mambu v The State [1993] PGSC 8; [1993] PNGLR 22 (29 July 1993). 

4.	This does not discount NTN PTY LTD v The Board of Post & Telecommunication Corporation & ors [1987] PNGLR 70 on the issue of standing but a balance must be drawn between substantial hardship to and substantial prejudice to the State which would be detrimental to good administration. In other words, the interest of a group of individuals must be balanced out with the State at large the 8 million plus citizens. Because the decision of Government made by the NEC are for good governance for the majority not minority. In my view it is pertinent that there must be a balance drawn to the flood gate of litigation on end. And it would serve to curtail which is the draw card of a leave application as the present. It is a screening processes not the merits or the substance, Diro v Ombudsman Commission [1991] PNGLR 153 which adopts and reinforces Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited (1982) AC 617. Accepting also that no men should be derailed from the seat of Judgement by procedure. Because it is substance at a glance as opposed to digging in and examining every component of the dispute. Here without the merits and prima facie the applicant plaintiff does not satisfy that he has standing to pursue review. For the purposes of leave this ground is not made out to the required balance.

5.	The decision was made in 2016 if indeed they were effected no action was taken against up to 11th July 2019 almost 3 years has since lapsed. It begs whether this is a genuine action or of a busy body intend on meddling in the affairs of another, let alone the National Executive Council the pillar of Government. This is not to say that the decision of the National Executive Council is not subject to review, Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008) delay which is a necessary and underpinning pillar in judicial review must be shown prima facie. If one is bleeding it would be within common sense and logic to immediately attend and stop the bleeding as it were because to ignore would be to welcome death in the making. Similarly, one should not sleep over one’s rights in law to the detriment of the majority as is the case here. To use a motor vehicle’s claim for insurance would be time barred if time is allowed its luxury at the misery of the litigant as is the case here.

6.	On another gloss here the NEC has not acted contrary to the Constitution contrary to the argument by the applicant/plaintiff that section 48 Freedom of Employment has been breached. There is a freedom of employment by choice for the applicant/plaintiff recognized here. And which is subject to the qualification or experience that the applicant plaintiff possesses. What has happened by the decision of the NEC is not restrict that right nor has it barred the applicant plaintiff in any way to continue to seek employment as he chooses. This court has recognized an enforceable document in law in WS (HR) No. 12 of 2016 (supra) neither a restriction nor a regulatory action. For all intent and purposes the plaintiff applicant is at liberty by this document to seek redress for its enforcement in court against the employer the company Kumul Telikom Holdings Limited (KTHL) for breach of contract. That is if it is genuine and sincere about the premise of its members. There are avenues that have opened in law external to the process of judicial review at his call that he has not opted in his discretion to exercise. The decision by the NEC has not barred that exercise in any way or form.

7.	The decision by NEC is not a proscribed act within the meaning of Section 41. Firstly, and foremost it is not law or as a result of law. It is an administrative decision that NEC has discharged by virtue of good governance as opposed. It is not just any other ordinary decision maker because it composes the Prime Minister as its chairman and stems from Section 149 of the Constitution. It is the pinnacle of the executive arm of Government by reading of Section 141 (2) of the Constitution. It is one of three pillars as provided for under Section 99 (2) (c) of the Constitution that makes up government. It is a special decision-making body by that fact because its discharge is wide and has inherent powers so as to formulate public policy and maintain good governance. And this is particularized by the fact that Ministers are responsible for functions or portfolios that they are assigned to which is the composition of the ring of government for the goodness of all including the applicant/plaintiffs: S.C.R. No.1 of 1982; Re Bouraga [1982] PNGLR 178. 

8.	Therefore, in my view it follows that what it does should not be readily under the scrutiny of the courts at the will of citizens as is the case here. Continued vigilant supervision by the courts must be satisfied that a wrong principle of law has eventuated. Or an abuse of power and authority has eventuated so much so that the Applicant/Plaintiff is left without any recourse to the law including the Constitution and any other law for the same. Or the decision is one which no reasonable tribunal would make given the circumstances here, Burns Philp (PNG) Ltd v. The Independent State of Papua New Guinea [1989] PGNC 24; N769 (3 November 1989); The State v. Phillip Kapal [1987] PNGLR 417.

9.	What is tantamount to abuse here is that these were decision made in 2016 and the originating process is the 11th July 2019 filed that day of the amended Statement pursuant to Order 16 Rule 3 (2) (a) of the Rules. There is from the 20th December 2016 and the 21st February 2017 because when it was filed on the 9th July 2018 that would be delay of a year later. Certiorari is being sought outside of the four months required under the rule. Viewed in total that would be three years in the making before the filing of the matter. Time is management and should not deny the seat of Judgment but it must be substantial or exceptional interests that are forfeited to give effect to time. From all the material and the views set out above there is nothing substantial or exceptional demonstrated given, Lae Bottling Industries Ltd. v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 (2 September 2011). The facts and circumstance here do not par out given and therefore would not be tantamount to denial of the seat of judgment if leave is refused.

10.	Because there are two main issues for the determination here, firstly whether leave can be granted for review of NEC decisions 360/2016 and 44/2017. Here also it would be necessary to consider and determine whether these are policy decisions or quasi judicial decision because section 153 (2) is as to procedure not substance of the decision made. The section is headed validity of executive acts. Hence the executive act complained of here are the decisions that are set out above. It would lead to whether or not these decisions have been implemented and affect the plaintiffs. And in what way have they been implemented and now effect the plaintiffs. Who have put forward that ultimately the decision now in suspense will be effected and its implementation will mean that Staff/Employees welfare, terms and conditions of employment; long service entitlements and ex gratia payments; Job security and confirmation of employment and re-deployment of employees, if the consolidation is implemented. That argument is at rest with WS (HR) No. 12 of 2016 because the proceedings were dismissed at the outset. No appeal was instituted to foster the claim now again before this court but under Judicial review and for leave. Reading that decision, it would be an abuse of process because the same substance and matter in that proceedings is pursued here. Applicant/plaintiff slept over his right to appeal and it will not be cured with leave for judicial review.

11.	Canvassing the reliefs sought principally declaration against both decisions No. 360/2016 and No. 44 of 2017 of the National Executive Council null and void. Also orders in the nature of certiorari to bring up and quash those decisions. And orders following in the nature of prohibition to restrain the defendants to give effect to the decision and to transfer assets and functions to Telekom PNG Limited to Bemobile and DataCo, or any other company that is subject of the review unless and until further orders of the court. And orders in the nature of mandamus to compel the defendants through Minister Honourable William Duma MP to confer with the plaintiffs and resolve all industrial issues revolving arising out of the Enterprise Agreement 2010 and award number 6 of 2010, before giving effect to merge the telecommunication entities and whatever decision is reached there should be part of the National Executive Council decision now contested. In total these are substantial decision sought that would affect good governance. It would cause undue and substantial hardship including substantial prejudice to the State seriously detrimental to good administration and governance. By their very nature canvassed the discussion set out above the NEC has not acted quasi judicial as is the case of terminations and the like Re Bouraga (supra) for example. Here it is policy decisions by the owner NEC as it were of Public Companies that has made to run these companies efficiently economically for good governance of all. 

12.	It is the same that was sought under guise of a human rights proceedings which has failed and will not be resurrected in a leave application for Judicial review as the appeal process to the Supreme Court was not taken. Avenues in law open to the applicant by his own volition have not been exhausted. He merely slept over them he has no recourse here.

13.	For the reasons advanced above no standing has been demonstrated by the applicant/plaintiff. Further no arguable case has been demonstrated likewise. The delay is unreasonable inexcusable and does not measure up to the required balance. And in the finality, there are still avenues in law other than Judicial review because of the proceedings instituted as WS (HR) No. 12 of 2016 (supra). The point canvassed from another angle is well made out in the ruling on Joinder in:

" PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) being, "It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...It is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process.

14.	The applicant/plaintiff has elected he is bound by that election accordingly this ground is not made out and he fails.

15.	Leave is refused with Costs.
Orders Accordingly.
__________________________________________________________________
Napu & Company Lawyers       	: Lawyer for the Plaintiff/Applicant		
Twivey Lawyers		          : Lawyer for the Defendants