N11061
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 145 OF 2023

BETWEEN:
REX KIPONGI
Plaintiff

AND:
HON WALTER DAVID SCHNAUBELT in his official capacity as Minister for  Transport & Civil Aviation & Shareholder of National Airports Corporation Limited
First Defendant

AND: 
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND: 
PUBLIC SERVICE COMMISSION
Third Defendant 

AND: 
INDEPENDENT STATE OF PAPUA NEW GUINEA 
Fourth Defendant

AND: 
DOMINIC ALBERT KAUMU 
Fifth Defendant 

Waigani: Purdon-Sully J
2024:	4th and 10th September; 29th October

JUDICIAL REVIEW:  Practice and Procedure – Leave for Judicial review – Whether the Plaintiff has Standing – Exercise of Discretion – Leave refused

Cases Cited:

Papua New Guinean Cases
Lupari v Somare [2008] N3476
Innovest v Pruaitch [2014] N5949
Makeng v Timbers (PNG) Ltd [2008] N3317
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minister for Housing [2008] N3303
Gelu v Sheehan [2013] N5498
Pipoi v Seravo [2008] PGSC 7; SC909
Wapi v Kwa [2022] PGNC 597; N10362
NTN Pty Ltd v Board of Post & Telecommunications Corporation & Ors [1987] PNGLR 70
Olei v The Provincial Land Court at Port Moresby [1984] PNGLR 295
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906
Sasau v PNG Harbours Board (2006) N3253

Overseas Cases
R v Inland Revenue Commissioners; Ex Parte National Federation of Self-Employed and Small Businesses Ltd ([1981] 2 WLR 722 

Legislation:
National Court Rules, Order 16 r 3 
Claims by and Against the State Act, s 8 

Counsel
Mr S Wanis, for the Plaintiff
Mr K Kipongi, for the State

DECISION

29th October 2024

1.	PURDON-SULLY J:   By Originating Summons filed 13 December 2023 the Plaintiff seeks that leave be granted pursuant to Order 16 r 3(1) of the National Court Rules (NCR), to review the decision of the First Defendant made on 13 December 2023 by notice in the National Gazette No. G1005 dated 12 December 2023 in:

a.	Revoking the purported appointment of Mr Jospeh Kintau as the Acting Managing Director and Chief Executive Officer of National Airports Corporation Limited (NACL) pursuant to s 147AG (1)(B) of the Civil Aviation Act 2000, effective on 6 December 2023; and

b.	Appointing the Fifth Defendant as the Acting Managing Director and Chief Executive Officer of NACL for a term of three (3) months, pursuant to section 147AG(1) (b) and (c) of the Civil Aviation Act 2000, effective from 6 December 2023.

2.	In terms of the Statement pursuant to Order 16 Rule 3(2)(a) of the NCR, filed 13 December 2023, the Plaintiff, if granted leave, seeks to challenge the aforesaid decisions on several grounds, namely, error of law, ultra vires, abuse and excess of powers, denial of natural justice and Wednesbury principles of unreasonableness

3.	The application is opposed by the Fourth Defendant (the State), who by virtue of s 8 of the Claims by and Against the State Act and Order 16 r 3 of the NCR is required to be heard on a leave application.

BACKGROUND

4.	The relevant background facts are somewhat complicated, involving two appeals to the Supreme Court.

5.	The Plaintiff was the Managing Director and Chief Executive Officer of the National Airports Corporation (NAC) serving under a four (4) year written contract of employment, commencing on the 6 December 2021 and lapsing on 6 December 2025.

6.	On 2 December 2022 the Plaintiff was suspended from office and Mr Joseph Tupiri appointed as Acting Managing Director.

7.	On 20 April 2023 the National Executive Council (NEC) revoked the Plaintiff’s appointment, as it did Mr Tupiri’s acting appointment, in the same decision.

8.	The Plaintiff challenged his termination in judicial review and on 5 December 2023 the National Court upheld the review and quashed the decision of NEC to terminate the appointment.

9.	On 6 December 2023 the Board of the NAC appointed Mr Joseph Kintau as Acting Managing Director.  He refused to take up the appointment.

10.	 On 8 December 2023 the Board of the NAC passed a resolution to reinstate the Plaintiff who was still on contract, the Plaintiff then resuming the office and performing the duties under his contract of employment.

11.	 On the 13 December 2023 the First Defendant appointed the Fifth Defendant as Acting Managing Director.

12.	 This decision did not go down well and the Plaintiff was eventually removed from office by the police.

13.	 On 13 December 2023 the Plaintiff filed fresh proceedings for judicial review challenging the decision made by the First Defendant on 13 December 2023 to inter alia appoint the Fifth Defendant aforesaid.

14.	 On 15 December 2023 leave to judicially review the decision was granted by a Judge of this Court.
  
15.	 On 24 February 2024 the State appealed the grant of leave on the basis that it had not been afforded an opportunity to be heard on the leave application.

16.	  On 30 August 2024 the Supreme Court upheld the appeal by the State and referred the matter back to the National Court for re-hearing of the application for a grant of leave for judicial review.

LEGAL PRINCIPLES 
 
17.	   It is helpful at the outset to reiterate some basic principles with respect to judicial review.

18.	 Judicial review is a three (3) stage process, wherein the Court must be persuaded firstly, to grant leave, secondly, to uphold the grounds and thirdly, to grant remedies.  All of these stages are in the discretion of the Court, the applicant bearing the burden of proof to persuade the Court, on the balance of probabilities, that it should exercise its discretion at each and every stage (Lupari v Somare [2008] N3476).

19.	The requirements for a grant of leave are settled in this jurisdiction (Innovest v Pruaitch [2014] N5949; Makeng v Timbers (PNG) Ltd [2008] N3317; Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122) and are as follows:

a.	The applicant must have sufficient interest or standing (locus standi) to bring the application (Order 16 Rule 5);

b.	There must be no undue delay (Order 16 Rule 4(3));

c.	The applicant must have exhausted all other statutory or administrative remedies that may be available to him to address his grievance; and

d.	The applicant must demonstrate an arguable case for review.

20.	It is also a common law requirement that that the decision sought to be reviewed must be by a public body or a body exercising public power.

21.	Even if the Plaintiff satisfies the above requirements, the right to judicial review is not absolute.  The Court retains the discretion to grant or refuse leave (Asakusa v Kumbakor, Minister for Housing [2008] N3303; Gelu v Sheehan [2013] N5498).

22.	The purpose of leave is to prevent the Court’s time being wasted and remove the uncertainty in which public officers and authorities might be left as to whether, they can safely proceed with administrative action while proceedings for judicial review of it are pending (R v Inland Revenue Commissioners; Ex Parte National Federation of Self-Employed and Small Businesses Ltd ([1981] 2 WLR 722 per Lord Diplock at page 739).

DISCUSSION

23.	The Plaintiff contends that he has met the above requirements and should be granted leave.
  
24.	The State contests whether the Plaintiff has standing/locus standi and whether he has made out an arguable case for leave for judicial review.  The State otherwise concedes that the other requirements for leave have been met.

25.	I accept the concessions of the State.  The Plaintiff has sought judicial review within time, and he has exhausted all administrative avenues available to him before coming to Court.

26.	The State contends as follows:

a.	That with respect to the issue of standing, it is submitted that the subject matter in the proceedings is the decision of 13 December 2023 which revoked the acting appointment of Mr Joseph Kintau and subsequent appointment of the Fifth Defendant as the Acting Manging Director of NAC. It argues that Mr Kintau is the person directly affected by the decision as it is his acting appointment that was revoked. The Plaintiff is not the Acting Managing Director. As such the Plaintiff is not directly affected by the decision.

b.	With respect to the issue of arguable case, it is submitted that if the Plaintiff lacks standing then he cannot raise an arguable case, the State relying upon the Supreme Court decision in Pipoi v Seravo [2008] PGSC 7; SC909. It is contended that the Plaintiff may be able to raise that issue in another forum, but not in the National Court by way of judicial review.

c.	Further, it is submitted that in consenting to the upholding of the appeal before the Supreme Court and the grounds of appeal, one of which was standing, the Plaintiff’s application for leave for judicial review is res judicata the Plaintiff having already conceded that he had no standing and no arguable case.

27.	The last argument is not persuasive and can be disposed of quickly.  This is because there were a number of grounds of appeal, one of which was that the State had not been afforded an opportunity to be heard.  Where the Supreme Court referred the matter back to the National Court for hearing and where the failure of the State to be heard before the National Court appeared to be unchallenged, the appeal upheld by consent, the Court is unable to conclude that in consenting to the upholding of the appeal the Plaintiff was conceding that all of the grounds of appeal had been made out, not only the failure of the State to be heard.  In short, the evidence does not establish that the Plaintiff’s consent to the upholding of the appeal resolved the question of leave in these proceedings, precluding the Plaintiff from again arguing that he had standing and an arguable case.

28.	The issue of standing however is critical to the grant of leave. If the Plaintiff cannot demonstrate standing, then he has no right to bring an action or challenge a decision in a court of law.

29.	It is the Plaintiff’s submission inter alia that as the Managing Director and Chief Executive Officer of the NCA he is directly affected by the decision of the Second Defendant to appoint the Fifth Defendant to the same position occupied by the Plaintiff.  This is particularly so where the National Court, on 5 December 2023. had quashed the decision of the First Defendant revoking the appointment of the Plaintiff, the NAC Board then passing a resolution recognising the Court’s decision and reinstating the Plaintiff to his earlier position.  Having a valid contract of employment, it is submitted he was entitled to serve the remaining term of his contract, the appointment of the Fifth Defendant by the First Defendant unlawful and one that directly affected him.
30.	Order 16 r 3 (5) of the NCR codifies the principle of standing by providing that the Court “shall not grant leave unless it is satisfied that the applicant has a sufficient interest in the matter to which the subject relates”.

31.	In Wapi v Kwa [2022] PGNC 597; N10362, Kandakasi DCJ outlined at [20] the following principles relevant to standing:

There is a large body of case law clearly establishing the principles governing the issue of a person’s locus standi or standing to bring judicial review proceedings. Firstly, locus standi is a threshold issue which must be determined first: See Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1981] 2 WLR 722 per Lord Diplock, as adopted and applied in Jim Kas v. Sevua (2000) N2010 by Sakora J. Secondly, depending on the nature of the relief being sought, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests: See Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, per Mason J; Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, per Andrew J. Thirdly, the cases are various and so much depends in each case on the nature of the relief sought because, what is sufficient interest in one case may be less than sufficient in another: See Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283, per Mason J. Fourthly, the Courts have on many occasions expended (sic) the categories or situations in which a person could have locus standi simply by reference to having ‘sufficient interest’ in the matter, which may not necessarily be a right: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70, per Wilson J; Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216, per Brunton AJ; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139, per Brunton J. Fifthly, the concept of “sufficient interest’ is essentially a mixed question of fact and law and the degree of the relationship between the Plaintiff and the subject matter of his complaint. 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 right in law has been affected or that he has suffered some prejudice: see Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, per Sheehan J as endorsed by the Supreme Court in Aquila Sampson v. NEC (2019) SC1880, per Anis J with Kassman and Toliken JJ agreeing; David Kabomyap Allolim v Biul Kirokim (2018) SC1735, per Batari J, David & Frank JJ. Sixthly, the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights. It can extend to more public issues. In determining standing, Court decisions in our jurisdiction lean strongly towards the granting of locus standi to citizens seeking to complain of what is seen as breaches of laws of the country: See Steamships Trading Limited v. Garamut Enterprises Ltd (supra), endorsed by the Supreme Court in Aquila Sampson v. NEC (supra). Finally, the relevant decisions on point show an inclusive rather than an exclusive view of applicants with standing, holding that, challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal interest or right. Very often determination of standing is only possible with an examination of the complaint itself: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).

32.	In NTN Pty Ltd v Board of Post & Telecommunications Corporation & Ors [1987] PNGLR 70, cited with approval in Pipoi at [23], the Court said this at [74]:

Applications for leave for judicial review involve an exercise of discretion. Such discretion must be exercised judicially. Once a Court is satisfied that the applicant has sufficient interest (O 16, r 3 (5)) it then exercises its discretion as to whether leave should be granted…..

33.	The issue for the Court is, in the words of McDermott J in Olei v The Provincial Land Court at Port Moresby [1984] PNGLR 295, whether the Plaintiff as the “aggrieved person” has a “sufficient interest” in the decision/s that directly relate to his interests.  

34.	I am unable to conclude that he does.

35.	The person directly affected by the First Defendant’s decision to revoke the acting appointment held by Mr Kintau, is Mr Kintau, not the Plaintiff.  
36.	Further, the Plaintiff does not dispute that Mr Kintau was the holder of that position in an acting capacity and that the quashing of the decision of the Minister to revoke the Plaintiff’s appointment related to a substantive appointment held by the Plaintiff.

37.	Following the quashing by the National Court of the Minister’s revocation of the Plaintiff’s substantive appointment the Plaintiff attempted to retake office without the benefit of any order for his reinstatement.  There was no appeal to the decision not to reinstate the Plaintiff.

38.	The Plaintiff then unsuccessfully sought to retake office on the strength of a resolution of the Board and his contract.  Alerted, the Minister then revoked the acting appointment of Mr Kintau and appointed the Third Defendant to his acting position.

39.	The person directly affected by the Minister’s decision to revoke was Joseph Kintau who was acting in the position and was then replaced by the Fifth Defendant.  The Court accepts the submission on behalf of the State that the Plaintiff was not directly affected by the decision to revoke and appoint. It was Mr Kintau who was directly affected.
  
40.	 Having concluded that the Plaintiff does not have standing to challenge the decisions made by way of judicial review he cannot be said to have an arguable case.  His application for leave for judicial review should be refused.

41.	Even if I had found that the Plaintiff had standing, I have concluded that the outcome to dismiss would be the same.  I would still be required to exercise my discretion in granting leave. 

42.	As Injia CJ said in Gelu v Sheehan (supra) at [13]:

In my view, it is within the Court's discretion to consider matters relevant to the exercise of judicial discretion that strictly speaking do not fall under any of the four criteria. The grant of leave for judicial review is an equitable discretion that by its very historical nature is highly discretionary and guided by both legal and equitable principles. It would result in a travesty of justice for the Court to ignore such other relevant considerations and insist on restricting itself to the four criteria for grant of leave for review.

43.	The relevant factors that would inform my discretion leading to a conclusion that I should not, in that circumstance, grant leave are as follows.  Aggrieved individuals have no absolute right of redress under public law.   If the decision is one that does not determine or substantially prejudice any legal right of the applicant, then judicial review may not be the appropriate process to address a grievance over a decision.  Further, judicial review is not available to address a breach of statutory or Constitutional obligations that can be enforced by way of a cause of action under law, by way of declaratory or injunctive relief or damages (Gelu v Sheehan (supra) at [14]).  In this case, a refusal of a grant of leave would not leave the Plaintiff without a remedy.  The learned trial Judge in quashing the decision to revoke the Plaintiff’s appointment did not reinstate the Plaintiff, suggesting, instead, that the Plaintiff’s remedy lay in a claim for damages for breach of contract.  The Plaintiff did not appeal that part of the decision.

44.	Further, the Plaintiff seeks relief by way of stay of the decisions and equitable relief in the form of interim injunctions and restraints pending the hearing of the substantive review application.  A number of issues arise in consequence of that. Firstly, while the judicial review procedure under Order 16 is exclusive for relief in the form of prerogative writs, the relief sought by the Plaintiff does not limit him to proceedings by under Order 16 (judicial review) in seeking those particular reliefs (Telikom PNG Ltd v Independent Consumer and Competition Commission ([2008] SC906 at [23]). 

45.	Secondly, the purpose and utility of the reliefs sought by way of judicial review is unclear.  A Board resolution does not, in and of itself, reinstate the Plaintiff to the position he earlier held.  It is unclear on the evidence what further formal steps, if any, may be required to action the resolution, including by the Minister.  The Minister, by his actions to date, has made clear that he does not want the Plaintiff to resume his earlier position. 

46.	In my respectful view the Plaintiff’s relief lies elsewhere under another process in another forum (Sasau v PNG Harbours Board (2006) N3253).
47.	For the foregoing reasons, even if the four requirements for the grant of leave for judicial review had been met, the discretionary considerations I have outlined would outweigh those findings, in particular the purpose and utility of the leave application, such that leave should, in the exercise of the court's equitable discretion, be refused.

ORDERS

48.	I make the following orders:
1)	The application for leave for judicial review is refused.
2)	The Originating Summons filed on 13 December 2023 is dismissed.
3)	The Plaintiff pay the Defendant’s costs as agreed or taxed.

Time is abridged

Solomon Wanis Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the State