N10925

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 69 OF 2019

BETWEEN:
AGNES MILLIA OKONA-METEN
Plaintiff

AND:
LESLIE B MAMU in his capacity as the Public Solicitor of Papua New Guinea
Defendant

Waigani: Purdon-Sully J
2024:	15th May

JUDICIAL REVIEW - Applicant seeks judicial review granting certiorari and order for reinstatement of contract employee with backdated salary – Claim based on private not public law - Relationship governed by contract law - Decision not amenable to judicial review.

Cases Cited:

Papua New Guinean Cases
Ragi v Maingu [1994] SC459
Wadau v PNG Harbours Board [1995] PNGLR 357
Luma v Kali [2014] SC1401
Reference by the Public Solicitor Pursuant to the Constitution, Section 19(1), Re Jurisdiction of the Public Services Commission [2019] SC1871
Medaing v Gabut [2016] N6431
Tarsie v Dr Iamo [2010] N4033
Kasper v Kiap [2023] SC2435 
National Agriculture Quarantine & Inspection Authority v Tetaga [2009] N4030
Mathew Petrus Himsa & Anor v. Richard Sikani & Ors (2002) N2307
John Kopil v. Malcolm Culligan & The State (1995) N1333

Overseas Cases
R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 Q.B. 864
R v City Panel on Takeovers and Mergers ex parte Datafin Limited [1987] QB 815
Cecil Law v. National Greyhound Racing Club Limited [1983] 1 W.L.R. 1302

Legislation:
National Court Rules, Orders 4 rr 38, 40(3), 49(12)(1), 16 r 3, 5
Public Services (Management) Act 2014, Preamble, s 41
Public Solicitor Act 2021
Constitution, s 59, 176, 177, 190, 191, 221

Other references
Collier B (27 November 2017) Judicial Review of Public and Private Employment Contracts in Papua New Guinea http://fedcourt.gov.au/digitel-law-library/judges-speeches/justice-collier/collier-j20171127 
Lewis C, Judicial Review in Public Law (5th ed, Sweet & Maxwell, United Kingdom, 2014)

Counsel
Mr L Phannaphen, for the Plaintiff
Mr T Ilaisa, for Defendant

DECISION
25th July 2024

1.	PURDON-SULLY J: The Plaintiff, a lawyer, applies for judicial review of the Defendant’s decision of 11 January 2019 to terminate her contract of employment with the Office of the Defendant (the decision). She seeks an order in the nature of certiorari to quash the decision, reinstatement, pay and entitlements, general damages and declarations.
2.	The Plaintiff claims that the Defendant committed an error of law by not following the prescribed disciplinary process pursuant to her contract of employment amongst other complaints.
3.	Her application for judicial review is contested by the Defendant.
THE FACTS
4.	The Plaintiff had been employed on a contract for service for a period of three (3) years commencing 7 January 2017 as a Solicitor in Charge of a provincial branch office until her termination on 11 January 2019. 
5.	The contract with the Plaintiff was entered into by the Departmental Head on behalf of the Defendant pursuant to s 41 of the Public Services (Management) Act 2014 (“Act”).   
6.	Section 41 of the Act relevantly provides:
PART XI. – CONTRACT EMPLOYMENT.
41.	CONTRACTS OF EMPLOYMENT.
.......
(2) A contract of employment under Subsection (1) shall be executed on behalf of the State by–
(a) in respect of appointees under Section 40(2)(a)–the Head of State; and
(b) in respect of appointees under Section 40(2)(b)–the Departmental Head of the Department of Personnel Management,
and by the appointee.
(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from the provisions of Part XIV.
(4) Notwithstanding the provisions of this Act relating to promotion and appointment, where–
(a) a contract of employment under Subsection (1) terminates or is terminated and is not subsequently renewed; and
(b) the appointee under that contract of employment is not re-appointed to another office under this Act,
his employment in the Public Service is terminated.
(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.
7.	The Plaintiff was disciplined through a process prescribed in her contract of employment, her contract terminated pursuant to Clause 16(c) which provides:
16.	In the event that the allegations are found to have substance, supported by credible evidence, then the Departmental Head shall involve the disciplinary procedure hereunder.
…..
(c)	The Departmental Head having considered the recommendation of the Disciplinary Committee, and the Senior Office’s response and having verified his legal position shall determine whether or not to terminate the Contract.
…..
8.	The basis of the Plaintiff’s termination was absenteeism.
9.	Aggrieved by the decision the Plaintiff commenced proceedings for judicial review.
10.	The grounds of relief pleaded in the Statement in support of her application and filed on 11 February 2019 under Order 16 Rule 3 of the National Court Rules (NCR) are as follows:
a.	Error of law
b.	Unreasonableness (Wednesbury)
c.	Bias
d.	Breach of natural justice (s 59 of Constitution).
11.	Leave to review was granted on 19 September 2019.
12.	A Notice of Motion pursuant to Order 16 Rule 5 of NCR was filed on 20 September 2019.
13.	The Plaintiff’s Motion seeking substantive relief was dismissed by a Judge of this Court on 10 December 2020.  Aggrieved, the Plaintiff appealed.  On 31 August 2023, by consent of the parties, the National Court order to dismiss was quashed by the Supreme Court and the matter remitted to the National Court for determination.  The matter proceeded to hearing on 15 May 2024.
14.	The Defendant raises a threshold issue as to whether the Plaintiff’s employment is governed by private law as she was employed by way of an employment contract.  It is settled law that judicial review is concerned with public law and not private law matters (Ragi v Maingu [1994] SC459; Wadau v PNG Harbours Board [1995] PNGLR 357; Luma v Kali [2014] SC1401 at [31]-[35]).  If the decision involves a claim based on the enforcement of private law rights, then it would not be amenable to judicial review. 
15.	While the principle is settled, and easy to state, the question of whether the remedy of a terminated public sector contract employee lies in judicial review or damages has proved challenging in its practical application.
THE THRESHOLD ISSUE – DOES THE LAW OF CONTRACT OR ADMINISTRATIVE LAW APPLY?
The arguments
16.	The arguments for both sides were well put and can be summarised as follows.
17.	It is submitted on behalf of the Defendant that prior to the enactment of the Public Solicitor Act 2021, which refers to Administrative Orders of the Public Solicitor, there was no other law that prescribed disciplinary offence and disciplinary procedures connected with the employment within the constitutional office of the Public Solicitor.  The decision, Reference by the Public Solicitor Pursuant to the Constitution, Section 19(1), Re Jurisdiction of the Public Services Commission [2019] SC1871 (Salika CJ, Kandakasi DCJ, Kirriwom J, Cannings J, Yagi J) (PSC decision), finally settled the position at law and that is that the Public Solicitor is not part of the National Public Service, hence the provisions under the Act, relating to disciplinary offices and procedure do not apply to the Public Solicitor.  
18.	It is the submission of the Defendant that the only document under review by the Court is the Plaintiff’s contract of employment and the relevant law to apply is the law of contract, not a statutory power conferred by law, the Defendant exercising a contractual power to terminate.  It is submitted that if the processes of appointment, disciplinary process and power to terminate are provided by the contract then judicial review is not available.  If they are provided by statute, then judicial review is available.
19.	It is the submission on behalf of the Plaintiff that the contract of employment was entered into pursuant to the provisions of the Act, hence it has the strength and support of the legislation, the decision thus amenable to judicial review.
20.	Both Counsel referred the Court to relevant authority to support their arguments.  Counsel for the Defendant provided the Court with a helpful table of cases detailing divergence of authority on the question. I have considered the authorities referred to and other authorities on point.  In my discussion of the threshold issue I intend to confine myself to the authorities I view as most pertinent.
Discussion of the threshold issue
21.	Judicial review is only available against a body exercising public functions in a public law matter (Medaing v Gabut [2016] N6431; Tarsie v Dr Iamo [2010] N4033). Two requirements are necessary to that end: the body under challenge must be a public body or a body performing public functions and the subject matter of the subject of challenge must involve claims based on public law principles, not the enforcement of private law rights.
22.	Section 176 of the Constitution establishes inter alia the Office of the Public Solicitor.  Subject to Section 177(2) (functions of the Public Solicitor), in the performance of his functions under the Constitution the Public Solicitor is not subject to direction or control by any person or authority (s 176(5)). 
23.	The functions of the Public Solicitor are set out in s 177(2) as follows:
Subdivision G. – The Public Prosecutor and the Public Solicitor. 
177. FUNCTIONS OF THE PUBLIC PROSECUTOR AND THE PUBLIC SOLICITOR. 
….
(2) The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular–
 (a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and
(b) notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and
 (c) in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be– 
(i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and 
(ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament. 
24.	The Public Solicitor, as a constitutional office-holder, by virtue of Section 221 (definitions) of the Constitution, enjoys a high degree of independence by virtue of s 176(5) of the Constitution (see PSC decision).  Its powers to carry out its duties, including the power to recruit personnel, determine their terms and conditions of employment and their discipline is found in the terms and conditions of employment of officers and employees of the Office of Public Solicitor as set by the Public Solicitor at his discretion. 
25.	While the Public Solicitor is under no legal or administrative obligation to adopt the terms and conditions which apply in the National Public Service, the Supreme Court in the PSC decision took judicial notice of the fact that the terms and conditions of employment of officers and employees, including lawyers, in the Office of Public Solicitor, are similar to those applying in the National Public Service and that some administrative functions within the Office of Public Solicitor are managed by the Department of Justice and Attorney-General. Neither factor, however, gave rise to a suggestion that the Public Solicitor was under any legal or administrative obligation to adopt the terms and conditions applying in the National Public Service. Nor did the fact that the terms and conditions were essentially the same and that the Public Solicitor had adopted disciplinary procedures modelled on those found in Part XIV (discipline) of the Act, give rise to a sufficient connection between personnel decisions of the Public Solicitor and the National Public Service.
26.	There can be no issue, in my view, that the Public Solicitor is an entity that exercises public power under the Constitution, an entity which while operating independently of government, performs a significant national service, exercising powers which affect the public, its functions exercised in the public interest (R. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 (Lain) per Lord Parker C.J. at page 882).  The first requirement, identified earlier, is accordingly met.  
27.	However, in deciding the second requirement, the following factors are, in my respectful view, relevant.
28.	Firstly, while the source of power exercised is relevant and often decisive in determining whether the Plaintiff’s remedy lay in public or private law and is thus amenable to judicial review, the nature of the power or the duty the Defendant was exercising at the time it made the decision is also relevant (see Lloyd LJ said in R v City Panel on Takeovers and Mergers ex parte Datafin Limited [1987] QB 815 at page 848).    
29.	In the present case, the Defendant’s authority, its power to dismiss the Plaintiff was found in the contract of employment between the Plaintiff and the Defendant, that is, from the agreement of the parties concerned.  There is no evidence to suggest that in exercising that authority the Defendant had rights or duties relating to members of the public as such.  While the decision to terminate the Plaintiff’s services as a lawyer may have had an effect on the public in the sense that the Defendant was not thereafter offering services to the public through a particular employee, the Defendant’s power in relation to the matter was contractual (Cecil Law v. National Greyhound Racing Club Limited [1983] 1 W.L.R. 1302 per Lawton L J at page 1307;  Lain per Fox L J at page 1309).
30.	Secondly, the question of whether a decision of a public body is subject to judicial review will depend on the circumstances of each case.  In the case of a dismissal of an employee by a public body it will depend on the nature of the parties’ relationship which includes the terms of the employment contact, position and functions or duties performed by the employee at the time of her dismissal.  
31.	In the recent Supreme Court decision of Kasper v Kiap [2023] SC2435 (Kandakasi, DCJ, Polume-Kiele J, Dowa J) (11 August 2023) (Kasper), Kandakasi DCJ said at [4]:
The first of my reasons is based on the nature of the relationship the parties had prior to Kasper going to Court.  It is important to start from there because Kasper’s entitlement to go to Court and the mode and the way in which he could do that was dependent on the nature of the parties’ relationship.  
32.	In the present case, the nature of the relationship between the parties at the time of the decision and prior to proceedings being instituted was that of employer and employee, the Defendant required to provide legal aid, advice and assistance to those persons in the public in need of his help, and the Plaintiff, a lawyer, paid to provide those services. The terms of that relationship were governed by a written employment contract, voluntarily and willingly entered into by each party, the terms of which created legal obligations for each, the Plaintiff in entering into that contract thus subscribing to the Defendant’s rules and procedures. The wider public had no interest in this, certainly not sufficient to suggest that any decision to terminate would prima facie make that decision reviewable.
33.	The contract of employment was for a period of three (3) years commencing on 7 January 2017 and expiring on 7 January 2020.  The contract did not provide for the continuity of the Plaintiff’s employment after its expiry date. The effect of the orders sought by the Plaintiff in these proceedings includes an order to reinstate someone whose term of employment would have expired in any event, if not renewed, on 7 January 2020.
34.	While the terms of the Plaintiff’s contract may have been guided, in some instances, by the processes, procedures and/or obligations of the Act, that does not permit a conclusion that in making the decision the Defendant was exercising a public function under the Act.  
35.	The following evidence before the Court must be viewed in that context:
a.	the title page of the contract referring to the Act and the National Public Service, 
b.	the reference in the contract that it had been entered into pursuant to the provisions of s 41 of the Act (Recital),
c.	the terms and conditions of the contract adopting the standard terms and conditions and General Orders made pursuant to the Act,
d.	the Plaintiff agreeing to comply with the law and in particular the Act and the contract in the performance of her duties and the code of ethics and conduct of the National Public Service, 
e.	the Plaintiff agreeing that in the event that the contract is terminated her future employment would be determined by the Departmental Head in accordance with the Act or General Orders.
36.	Nor does it suggest that the source law for the Defendant in exercising its disciplinary powers and procedures was one exercised under the Act and General Orders.
37.	The main purpose of the Act , as stated in its Preamble, is that of a national public service machinery that makes provision for the appointment, conditions of employment, constitution, powers, procedures and functions of the Public Services Commission in accordance with ss 190 and 191 of the Constitution and which implements the decisions, directions and policies of the National Government through the National Public Service and public bodies through government Departments headed by Departmental Heads (see National Agriculture Quarantine & Inspection Authority v Tetaga [2009] N4030, Injia CJ at [38]).  
38.	The Defendant is not part of the National Public Service. Its officers and employees are not members of the National Public Service.  Nor are its personnel decisions subject to the review jurisdiction of the Public Services Commission, the entity whose function it is under the s191(1) of the Constitution to inter alia review personnel matters connected with the National Public Service (see PSC decision).
39.	The Defendant, in terminating the contract of employment, was exercising a contractual power under Clause16(c) of the Plaintiff’s contract of employment as opposed to a statutory power conferred on it by law.   
40.	Where there may be a divergence of view on the authorities, the Court, respectfully, adopts the reasoning outlined in Kasper, the most recent Supreme Court authority on the law, and the authorities to which it had regard.
41.	In Kasper, Kandakasi DCJ at [9] reaffirmed the legal position as outlined by him in Mathew Petrus Himsa & Anor v. Richard Sikani & Ors (2002) N2307 as follows:
The Court in each of the cases considered judicial review was not available in the absence of any statutory provision creating the respective plaintiffs’ position and securing their employment. The Court in each of the cases were of the view that, where a contract of employment exists, the contract speaks on the rights and or duties and obligations of the parties to the contract. Also, such a contract removes one from the protection or procedure for termination that may be provided for in a statute, and therefore a right to judicial review as a remedy for any breach of contract.
	
[Underlining part of text]
42.	If the Plaintiff felt that the contract had been breached it was open to her to consider whether there was any cause of action in contract law available to her. Such a cause of action would be affected by the general law of employment and would have to be actionable by way of an action for breach of contract or wrongful dismissal with a Writ of Summons (John Kopil v. Malcolm Culligan & The State (1995) N1333).
43.	In the present case, in determining the threshold issue, it is the Court’s respectful view that the relevant fourfold test to be applied, as proposed by learned Counsel for the Defendant, is the correct approach as follows:
a.	Is the offence for which the Plaintiff is charged provided by statute or the contract?
b.	Is the power to lay a charge provided by statute or contract?
c.	Is the disciplinary process provided for by statute or contract?
d.	Is the power to terminate conferred on the deciding authority by statute or contract?
44.	The Plaintiff was not a Departmental Head or Public Office Holder whose appointment was governed by public law.  The Plaintiff was a senior legal officer subject to a performance-based contract of employment who held no executive role and whose terms of employment from appointment to dismissal were governed by her contract of employment, a contract that would have by the date of trial well and truly expired. 
45.	The offence for which the Plaintiff was charged was provided under the contract of employment, not by statute.
46.	The Defendant’s power to lay the charge was provided under the contract of employment, not statute.  
47.	The Defendant’s power to terminate the Plaintiff’s employment was conferred on it by the contract of employment, not statute. 
Conclusion on the threshold issue
48.	An application for judicial review is confined to reviewing activities of a public nature as opposed to those of a purely private or domestic character.  The power to terminate the Plaintiff’s employment derived from the agreement of the parties in the form of the contract of employment giving rise to private rights on which effective action for relief in the form of pay and entitlements, general damages and declarations could have been based without resort to judicial review.  This is not a case where the Plaintiff had no contract and no alternative remedies available to her.  The Plaintiff, respectfully, should have pursued her claim by way of Writ of Summons and Statement of Claim under Order 4 Rule 1 of the NCR, not by way of judicial review under Order 16.  
49.	I dismiss the application for judicial review.
ORDERS
50.	The Courts orders are:
1.	The Notice of Motion filed 20 September 2019 be dismissed.
2.	The Plaintiff pay the costs of the Defendant on a party and party basis, to be taxed if not agreed.
3.	Time to abridge.
________________________________________________________________
Lhyrn Lawyers: Lawyers for the Plaintiff
Leslie B Mamu, Public Solicitor: Lawyer for the Defendant