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Caucau v Tupiri [2025] PGNC 117; N11241 (7 April 2025)

N11241

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 13 OF 2023

BETWEEN:
VILIMONI CAUCAU
Plaintiff

AND:
JOSEPH TUPIRI Acting Managing Director, National Airports Corporation
First Defendant

AND:
NATIONAL AIRPORTS CORPORATION
Second Defendant

WAIGANI: PURDON-SULLY J
2, 7 APRIL 2025

JUDICIAL REVIEW – Application by plaintiff to review decision to terminate his employment - Judicial review is only available to challenge the decision of a public body or a body performing public functions and where the subject matter of the challenge involve claims based on public law principles and not the enforcement of private law and rights - whether plaintiff’s employment comes under private law or public law warranting judicial review – Although the Plaintiff was employed by a creature of Statute, the terms and conditions of his employment (including appointment, suspension and termination are not governed by Statute - Termination of his employment not amenable to judicial review – Application for judicial review dismissed – Plaintiff to meet costs of defendants

Cases cited
Black v Gabut [2014] N5680
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Shaw v Commonwealth of Australia [1963] PNGLR 119
Falide v Registrar of Titles and the State [2012] N4775
Sulaiman v PNG University of Technology [1987] PNGLR 267
Ragi v Maingu [1994] SC459
Wadau v PNG Harbours Board [1995] PNGLR 357
Luma v Kali [2014] SC1401
Kiap v Kaspar [2023] PGSC 95; SC2435
Gabi v Nate [2006] N4020
Angui v Wagun [2011 N4194
Todai v Schnaubelt [2017] SC1637
Marfu v Gaupu [2022 N9881
O’Neill v Klapat (2014) SC1385
State v Eluh (2016) SC1479

Counsel
D Aigilo for the plaintiff
A Mana for the first and second defendants

1. PURDON-SULLY J: This is my ruling on the plaintiff’s application for judicial review pursuant to a grant of leave made on 4 December 2023 to review the first defendant’s decision dated 31 January 2023 to terminate his employment with the second defendant (the decision).
2. The relevant background facts are unchallenged.
3. The plaintiff who has a background in the aviation industry was employed by the second defendant on 14 June 2014 as Senior Security and Safety Manager. He thereafter held a number of positions of increasing responsibility with the second defendant until the termination of his employment.
4. On 29 August 2022, the plaintiff was appointed as Chief Operating Officer of the second defendant under a contract of employment for a term of three (3) years.
5. The plaintiff served in this position until he was terminated on 31 January 2023 by the first defendant.
6. The history of his employment with the second defendant was as follows:
   1. Senior Security & Safety Manager 14.06.204 – 13.02.2017
   2. General Manager – Port Moresby (Jacksons) International Airport 13.02.2017 – 13.02.2018
   100. General Manager – Aviation Security 13.02.2018 – 20.02.2020
   4. Executive Manager – Aviation Security Compliance 20.02.2020 – 11.10.2021
   5. General Manager – Port Moresby (Jackson) International Airport 11.10.2021 – 29.08.2022
   6. Chief Operating Officer 29.08.2022 – 31.01.2023
7. The circumstances leading to his termination are detailed in his Statement in Support filed 17 February 2023 as amended on 8 December 2023.
8. On 9 December 2022, the plaintiff received a ‘Notice of Relief from Duty’ from the first defendant for a period of one (1) month.
9. The Notice dictated that the plaintiff was to remain on pay but was to return all property belonging to the second defendant, including the plaintiff’s official office-issued vehicle, and the plaintiff was restricted from entering his office or the office of the second defendant, until an internal audit/investigation was carried out, but the plaintiff was expected to continue to perform all his duties pursuant to his contract of employment.
10. On 6 January 2023, the plaintiff received a ‘Notice of Show Cause’ from the first defendant.
11. The Notice dictated that the plaintiff issue a performance report to the first defendant by 9 January 2023 in response to the allegation that the plaintiff “issued the directive for the publication of the Notice to Airman (NOTAM) on 12 November 2022, which led to the closure of Port Moresby International Airport (PMIA) for 6 hours which impacted normal aircraft, cargo and passenger movements throughout the nation”.
12. On 9 January 2023, the plaintiff responded to the first defendant with a ‘Notice of Show Cause’.
13. On 18 January 2023, the first defendant issued a ‘Notice of Termination of Employment’ to the plaintiff. The Notice alleged that the plaintiff had breached his contract of employment, particularly sections 15.2(c), 15.3(d), 8.4, 8.6 and 12.4.3(2-o).
14. The Notice also dictated that the plaintiff had the option to resign within twenty-four (24) hours of receiving the Notice by issuing a resignation letter to the first defendant.
15. That same day, the plaintiff wrote a letter of appeal to the Department of Labour Industrial Relations.
16. On 31 January 2023, the first defendant issued the plaintiff a ‘Termination of Employment’ Notice.
17. Aggrieved by the decision on 17 February 2023 the plaintiff commenced proceedings for judicial review.
18. The plaintiff challenges the decision to terminate his employment on two grounds namely unreasonableness based on the Wednesbury principles and breach of natural justice.
19. Pursuant to his Notice of Motion under Order 16 r 5(1) filed 19 June 2024, the plaintiff seeks the following relief:
    1. Pursuant to Order 1 Rule 5(1) of the National Court Rules, Judicial Review of the decision of the First Defendant made on 31 January 2023 to terminate the Plaintiff from his employment with the Second Defendant, be granted;
    2. Pursuant to Order 16 Rule 1(1) and (2)(a) of the National Court Rules, a declaration that the decision of the First Defendant made on 31 January 2023 to terminate the Plaintiff from his employment with the Second Defendant, is a breach of the Second Defendant’s Human Resource Policies & Procedures Manual, and therefore null and void;
    100. Pursuant to Order 16 Rule 1 (1) and (2)(a) of the National Court Rules, an order in the nature of certiorari, to bring up into this Honourable Court and quash the decision of the First Defendant made on 31 January 2023 to terminate the Plaintiff from his employment with the Second Defendant;
    4. Pursuant to Order 16 Rule 1(1) and (2)(a) of the National Court Rules, an order in the nature of mandamus, to direct, compel and require the First Defendant to;
       1. Reinstate the Plaintiff to the employment of the Second Defendant and to his substantive position or a position similar in function, role, grade, pay and benefits, at the time of his termination;
       2. Reinstate the Plaintiff on the Second Defendant’s payroll; and
       100. Back-pay the Plaintiff all unpaid salaries and entitlements and entitlements and benefits lost as a result of his termination, from the date of termination to the date of these Orders.
            
    5. Pursuant to Order 16 Rule 7(1)(a) of the National Court Rules, an Order for damages for:

i. Stress, anxiety, hardship and embarrassment to be assessed; and

ii. An order for damages for fundamental breach of Contract to be assessed.

6. Costs of and incidental to these proceedings.

20. The defendants oppose the application. They raise a threshold issue, namely, whether the decision is amenable to judicial review. It is contended on behalf of the defendants that the plaintiff’s termination of employment is a matter of private law, one based on a written contract of employment and it to his private law rights he should look for remedy. It is submitted that while the second defendant is a creature created by statute there is no statutory duty involved or any statutory protection that would make the plaintiff’s claim one based on public law principles, none being pleaded by the plaintiff.
21. Learned Counsel for the plaintiff submits that the decision is amenable to judicial review the Court having been satisfied in granting leave to apply for judicial review that the requirements of standing and arguable case had been met.

THE ISSUE

22. The issue for determination if whether the plaintiff’s claim is one based in public or private law, that is, whether the decision of the first defendant to terminate his employment with the second defendant is one amenable to judicial review.

CONSIDERATION

23. The judicial review process enables a court to check the exercise of public power. It is to ensure that administrative action taken by a branch of government or a public function invested body or by lower courts does not contradict the Constitution or any other law (Black v Gabut [2014] N5680; Supreme Court Reference No 4 of 1980 [1982] PNGLR 65; Shaw v Commonwealth of Australia [1963] PNGLR 119; Falide v Registrar of Titles and the State [2012] N4775).
24. Judicial review is thus concerned with the protection of rights under public law, not the private rights and duties of parties that arise under contract or tort. If the plaintiff’s claim with respect to the termination of his employment is one based on private law as opposed to public law rights then it is not a matter for judicial review (Sulaiman v PNG University of Technology [1987] PNGLR 267; Ragi v Maingu [1994] SC459; Wadau v PNG Harbours Board [1995] PNGLR 357; Luma v Kali [2014] SC1401; Kapser v Kiap [2023] PGSC 95; SC2435).
25. It is a consideration that is a threshold issue, one that goes to the plaintiff’s standing to bring the proceedings and thus the jurisdiction of the Court to hear his complaint. While a requirement for the grant of leave heard at an ex parte hearing, they can be raised at any stage of the proceedings until the final determination of the review (Gabi v Nate [2006] N4020 at [7]; Angui v Wagun [2011 N 4194 at [25]; Todai v Schnaubelt [2017] SC1637 at [7]).
26. Having considered the evidence and the submissions of learned Counsel for both parties, I have concluded that the decision is not amenable to judicial review and the plaintiff’s application must accordingly fail.
27. My reasons follow.
28. The facts of this matter concern a vexing issue that “many Supreme Court decisions ...have grappled with..” namely whether an employee of a corporatised public body, whose contract has been terminated, can approach the National Court for the review of that decision (Marfu v Gaupu [2022 N9881 per Dingake J at [7] citing with approval Ragi v Maingu (1994) SC459, O’Neill v Klapat (2014) SC1385, State v Eluh (2016) SC1479, Luma v Kali (2014) SC1401).
29. It is a generally accepted principle that where a person is employed under a contract of employment which is private in nature that person cannot seek judicial review of his dismissal and his appropriate remedy is damages for breach of contract (Luma v Kali (supra) at [31] – [35]).
30. In Marfu v Gaupu (supra) His Honour said at [12] – [13]:

12. There is a plethora of decisions of both the National and Supreme Court that have established the principle that judicial review is only available to challenge the decision of a public body or a body performing public functions and where the subject matter of the challenge involve claims based on public law principles and not the enforcement of private law and rights. (Napitalai v PNG Ports Corporation Ltd (2010) SC1016).

13. It seems clear from the above authorities that in order to answer the threshold issue, this Court has to analyze the nature of the defendant, to determine whether it is a public body and if it is not a public body then judicial review is not available. However, if the Court finds that it is a public body, the Court must then assess the nature of employment; and if the subject matter of the challenge relates to enforcement of private rights and involves claims not based on public law principles then the decision sought to be impugned is not amendable for judicial review.

[Underlining for emphasis]

31. In Kasper v Kiap (supra) at [9] – [12] & [35] Kandakasi DCJ said this:
    9. The law is as I discussed and restated in Mathew Petrus Himsa & Anor v. Richard Sikani & Ors (2002) N2307. In that case, I considered the law as enunciated by the case authorities that were on point at the time. I then came to the decision that, once a person in the public service or a public authority gets employed under a written contract of employment, it is to the terms of the contract should the parties and the courts turn to, in order to determine if judicial review is available to such a person. My decision was based on three National Court decisions. They were the decisions in John Kopil v. Malcolm Culligan & The State (1995) N1333; Sulaiman v PNG University of Technology [1987] PNGLR 267 and Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494. I summarised the legal position in these terms:

“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 supplied)

10. In the first case, Kopil v. Culligan, Woods held:

“The Plaintiff has a contract of employment with the State for service in the Department of Western Highlands. By accepting a contract he has taken himself out of many of the previous methods of disputing alleged irregularities in public service employment by way of the Public Service General Orders. If he feels that this contract has been breached he must then consider whether there is any cause of action in contract law available to him. 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.”

(Underlining supplied)

11. In the second case, Sulaiman v. UniTech, the Court expressed a similar view as the one in the first case. That was a case in which a non-citizen had a written contract of employment with the defendant. The contract had a detailed procedure for termination, which was not followed for the plaintiff’s dismissal. He therefore filed for judicial review.
    
12. In dismissing the action, the Court held:

“Where courts have interfered by way of review in the process of dismissal because of the failure to observe the rules of natural justice, it has been where there is a statutory power or procedure being exercised, not a contractual power and I refer again to the Taylor v. National Union of Seamen case above. The applicant here is trying to make the position of the University under its Terms and Conditions, a position of special status. I am not satisfied the employee here has a special status which would enable this Court to interfere in this way in a contract of employment. The relationship between the parties is governed by contract and the applicant must afford himself of whatever remedies are available for the alleged breach of that contract. This court will not enforce through these procedures or interfere in this manner in the process whereby that contract may have been terminated or broken. The applicant is not without a remedy. He has a remedy in damages for wrongful dismissal. He has a remedy under a contract law. I therefore dismiss the application.”

....

35. The sum effect of the foregoing decisions of the Supreme and National Courts is clear. Where a person is employed in the public service or a public authority on a written contract, the terms of the contract determine whether the relationship is governed by public law or private law.
32. Applying the principles that emerge on these authorities, it is conceded by the defendants that the second defendant, as employing agent, is a company incorporated under the Companies Act and a creature of statute under the Civil Aviation Act 2000. The second defendant provides an important public service, its responsibilities broadly described as being to improve, maintain, operate and manage all provincial airports in the country. It was further conceded by learned Counsel for the defendants that given the applicability of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 with respect to the appointment of the Managing Director and Board of the second defendant and its mandate, these factors reinforce the conclusion that the second defendant is a public body (written submissions at [12]).
33. If one assumes that to be the correct position, the next question to be considered is the nature of plaintiff’s employment and whether the subject matter of the challenge relates to the enforcement of private rights and involves claims not based on public law principles. If so, the decision sought to be impugned would not be amendable to judicial review.
34. The starting point in that consideration is the nature of the relationship the parties had prior to the plaintiff going to Court (Kasper v Kiap [2023] SC at [4]).
35. There is no contest that the parties were in a contractual employment relationship where the plaintiff was employed by the second defendant under a written contract of employment. It was for a term of 3 years, commencing on 29 August 2022 expiring in August 2025. The plaintiff was then terminated under his contract of employment, his employer, the second defendant, asserting breaches by him of the terms of his contract of employment.
36. The procedures for appointment, suspension and termination of the plaintiff were provided by the contract of employment. They were not governed by statute but by the contract of employment. While the plaintiff pleads breach of his right to natural justice which is a constitutional right, the plaintiff pleads no breach of any statutory duty owing to him.
37. It was to his contract of employment the plaintiff looked on termination, the grounds of review pleaded by him in his Amended Statement in Support filed 8 December 2023 asserting:
    1. unreasonableness (Wednesbury) by reference to Clause 15.2(c) and 15.3(d) of his contract of employment together with the second defendant’s HR Policies and Procedures; and
    2. breach of natural justice by reference to Clauses 14.1 and 14.2 of his contract of employment together with the second defendant’s HR Policies and Procedures in addition to the general principles of natural justice afforded under s 59 of the Constitution.
38. With respect to the latter, any suggestion of a duty to act fairly and any rights under the Constitution to natural justice would only go so far, the plaintiff, as earlier noted, pointing to no breach of any particular statutory provision applicable to proper notice other than by reference to his contract of employment and HR Policies and Procedures (Malai v PNG Teachers Association [1992] PNGLR 568 cited with approval in Ragi v Mainga (supra).
39. Further, while the termination of the plaintiff’s employment was one of obvious importance to him, and the position held by him one of responsibility, it was not one that could be described as a matter of particular public importance or interest. He was not appointed to public office. He was an employee subject to the usual incidents of an employer employee relationship, accountable to his employer for performing services under his contract of employment, the performance of which was not the subject of an exercise of any statutory power and the assessment of his services one within the prerogative of the employer.
40. That said, the unchallenged facts suggest some sympathy for the plaintiff, an employee of eight (8) years duration, promoted on a number of occasions by the second defendant, suggesting a level of competence and a skill set that was viewed by the second defendant to be of value. The evidence suggests a heavy-handed response by the defendants in addressing their concerns arising from the, albeit, serious incident in question. The defendants’ expectation, for example, that the plaintiff continue to perform his duties under his contract after receiving a Notice of Relief from Duty while being locked out of his office and unable to enter the office of the second defendant is puzzling. Given the plaintiff’s history of promotion, one must also pose the question whether there were other responses available to the defendants short of dismissal: demotion and/or further training but two that come to mind.
41. That said, judicial review is not concerned with the merits of the decision, but the decision-making process. Order 16 of the NCR cannot give rise to a cause of action. It relates to the review of administrative acts and in some circumstances, quasi-judicial acts but only where there is a sufficient public interest. Although the plaintiff was employed by a creature of Statute there is nothing in the circumstances of this case to give this matter any sufficient flavour of a public nature to justify judicial review (Young Wadau v. PNG Harbours Board (supra). It is to his contract of employment the plaintiff must look for remedy by way of different mode of proceeding, not by way of judicial review.
42. In consequence, I dismiss the proceedings under OS (JR) No. 13 of 2023, the relationship between the parties one governed by a contract of employment.

ORDERS

43. The Court makes the following orders:
    1. The proceedings OS (JR) No. 13 of 2023 are dismissed in entirety.
    2. The plaintiff pay the defendants costs on a party and party basis to be agreed or taxed.
    3. Time to abridge.
       

Lawyers for the plaintiff: Jaminan & Partners
Lawyers for the first and second defendant: National Airport Corporation Limited Inhouse Counsel