Unreported Supreme Court Decisions
SC459
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA 138 OF 1993
EREMAN RAGI - FIRST APPELLANT
AND
THE STATE SERVICES & STATUTORY AUTHORITIES SUPERANNUATION FUND BOARD - SECOND APPELLANT
V
JOSEPH MAINGU - RESPONDENT
Waigani
Woods Sheehan Andrew JJ
27 April 1994
29 June 1994
JUDICIAL REVIEW - when applicable - public law and private law - not  applicable in an ordinary master and servant situation - where alternate statutory remedies not exhausted.
EMPLOYMENT - terms - common law categories applicable unless varied by contract - right of employer to terminate employment - terms of employment and termination no better than under Employment Act ch 373 - no contract - no unfair dismissal.
Cases Cited
Council of Civil Service Unions & Minister for the Civil Service [1984] 3 AER 935
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Malai v PNG Teachers Association [1992] PNGLR 568
O’Reilly v Mackman [1982] 3 AER 680
R v East Berkshire Health Authority ex parte Walsh [1984] 3 AER 425
Talin v PNG Waterboard [1992] PNGLR 211
Sulaiman v PNG University of Technology [1987] Unreported N610
Counsel
J Baker for the Appellants
J Kemaken for the Respondent
29 June 1994
WOODS SHEEHAN ANDREW JJ:  This is an appeal against the decision of the National Court given on 15 October 1993 following a Review of a decision of the First Appellant whereby he summarily terminated the employment of the Respondent from his employment with the State Services and Statutory Authorities Superannuation Fund Board, hereinafter referred to as the Board.  The National Court granted the Review and found that the respondent had been wrongfully terminated and ordered the Appellant to reinstate him.  The Appellants have appealed against these orders.
The history is that the Respondent was a lawyer employed as Corporate Secretary to the former Public Officers Superannuation Board from April 1985.  At the end of 1992 there was a restructuring of the Board and the position of Corporate Secretary ceased to exist and from then the respondent held the position of acting Board Secretary.  By virtue of the new structure the position of Board Secretary was advertised and for some reason unexplained the Respondent did not apply.  Then in June 1993 the Respondent was given a notice of dismissal.  It appears from the evidence presented to the Court that this was for a combination of non-performance and negligence in the performance of his duties.
The respondent therefore sought and obtained leave to apply for Judicial Review of the decision by the appellant to summarily dismiss him.
As a general rule judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made under statute or subordinate legislation.  Judicial review is a remedy when the action of a public authority is to be challenged.
In R v East Berkshire Health Authority ex part Walsh [1984] 3 AER 425 at 429 “The remedy of judicial review is only available where issues of ‘public law’ are involved”.
And in O’Reilly v Mackman [1982] 3 AER 680 per Lord Denning at 693:
“Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty.”
And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 AER 935 @ 949:
“For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers.”
Note here the emphasis is on public law.  So what is public law as against private law?
Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.
Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large.  Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.
The respondent here claimed his wrongful dismissal from employment was a matter of public law.  In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees.  There is no statutory duty here, there is no statutory protection which makes this a matter of public law.  This is purely a matter of the relationship between a master and servant.  Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case.  Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.
In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.
But here before us the respondent was merely challenging his termination, yet neither this court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.
And see Sulaiman v PNG Unitech [1987] Unreported N610 where it was clearly stated:
“The right to seek Judicial Review has been granted where an injustice has been done and there is no other remedy.  For example where a decision by a tribunal or public authority is final and the applicant has and will suffer some damage.  However in this case the applicant if he has suffered some wrong clearly has some other remedy.  He has a remedy to sue for damages for wrongful dismissal under his terms and conditions of employment.”  And further: “The law is well settled.  The Court will not grant specific performance of a contract of employment”; and see the authorities quoted in that case.
Where courts have intervened 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.  The Respondent here is trying to make the position of the Board a position of special status.  We are not satisfied the Respondent here has a special status which would enable the Court to interfere in this way in a contract or agreement of employment.
There is nothing before this court to show that the claim in this matter is an appropriate matter for judicial review.
With respect to the leave granted for this review it has become clear to this court that what may have seemed an arguable case at the outset is clearly wrong because there was an alternative statutory procedure available under the State Services and Statutory Authorities Superannuation Act s. 49 (1) which provides that a dispute as to any matter under this Act shall be determined in the first instance by the Board.  There is no dispute that the Respondent had failed to appeal to the Board.  In fact there is evidence that he was hostile to the Board so he decided to disregard the Act and not Appeal to the Board as required.
Despite our finding that this was not a matter for judicial review which may be said to dispose of this Appeal, since the merits were argued before us we can add that even had review been appropriate it should not have succeeded on the merits.  Our reasons for this are as follows.
The first ground of appeal is:
·         His Honour erred in fact and in law in finding that the Plaintiff was a permanent officer.
We find that there seems to have been some confusion over the use of the word ‘permanent’.  The respondent asserted that he was a permanent officer but nowhere does he refer to any legislation or determination which explains or clarifies this term.  He seems to be using the word permanent to support some long term tenure of employment although in submissions even counsel for the respondent notes that permanency does not mean life tenure.  So what does it mean.  We can only surmise that the respondent has confused the use of the word with the use of the word in staffing structures of the staffing establishment of a company or organisation.  Thus in staffing structures the word permanent is used to show that the position will be a permanent one within the structure for planning and budgeting purposes as against the need for temporary staff at certain times.  But just because the position is a permanent one in the establishment does not give the holder of that position any permanency.  He would still be governed by the ordinary law of master and servant.
The respondent states that he was formerly a permanent public servant and that he took this status over with him to the Board.  And the lawyer for the respondent submits that the respondent imported this public service norm to the Board, but nowhere has the court been referred to any legislation or Public Service Orders which creates this status.  We note here that the respondent makes no claim to being employed under any contract of employment which gives him any special status.  We therefore find that His Honour erred in finding that the respondent was a permanent officer.
Ground 2 states:
·         His Honour erred in fact and in law in finding that officers should not be or could not be summarily dismissed and that it was not open to the appellants to summarily dismiss the respondent.
Ground 3 states:
·         His Honour erred in fact and in law in finding that procedures under the Employment Act to summarily dismiss officers should be used where the officer is only a probationary officer.
We will deal with these 2 grounds together.
There is nothing in the law that states that a public servant or any other employee has any claim to life employment.  Public servant and other employees remain liable to termination for cause or for retrenchment upon due notice being accorded to them.  Upon dismissal without opportunity to answer charges the usual assessment is made on the normal wages of the employee over a reasonable period.  Under the Employment Act Ch 373 a reasonable period for a person who has been employed for 5 years or more is 4 weeks.  This Act is stated to bind the State so even if it was argued that the Board is not a normal private employer because it is owned by the State, the employees still come under the Employment Act.  The respondent did not have the benefit of any contract of employment which took him out of the general law.
As was held in the case Malai v PNG Teachers Association [1992] PNGLR 568:
“Any suggestion of a duty to act fairly and any rights under the Constitution to natural justice only go so far here as to whether he was terminated with proper notice such as that required under the Employment Act Ch 373 namely on 2 weeks or a months notice depending on the basis of his salary payments in the absence of any contractual arrangement which provided otherwise.”
And as was said in Talin v PNG Waterboard [1992] PNGLR 211:
“I have been referred to no such terms and conditions therefore I must assume that in the absence of any such condition there is no condition or term giving a right to permanency of employment and I have been referred to no contract giving a fixed term of employment at any level or position therefore I must assume that the terms and conditions of employment are no better or more favourable than those set out in the Employment Act C.373 which is stated to be an Act binding on the State and on every authority and instrumentality of the State.”
We find that His Honour erred in finding that the respondent could not be summarily dismissed and also erred in his determination on the application of the Employment Act.
Ground 4 states:
·         His Honour erred in fact and in law in not giving any weight to the National Court decision of Wanako v Chief Fire Officer and the State [1992] Unreported.
This judgement does no more than state what we have referred to above in the Talin v Waterboard case.  It is clear that His Honour took an erroneous view of the meaning and relevance of the Employment Act Ch 373 and we have covered this in 3 above.
Ground 5 refers to the failure to exhaust the remedies under the Board's Act and we have already covered this point and found that leave should not have been granted.
Ground 6 states:
·         His Honour erred in fact and in law in finding that officers should be given an opportunity to be heard in apparently any circumstance.
Firstly as pointed out above the respondent refused to take his grievance to the Board under s. 49 of the Act.  However it appears that the respondent was confused with his former position in the Public Service and seemed to think that the Public Service Orders applied to his employment by the Board.  We have been referred to no legislation or law which supports that misconception.
We only repeat what we have already quoted from the Malai case above about the duty to act fairly.
With respect to Ground 7 we agree that there was no evidence to support this finding.
Grounds 8 and 9 and 10 relate to the misconception over the use of the term permanent officer.  This has been adequately covered in our discussion on ground 1.
Ground 11 refers to the right to be heard and this has been adequately covered by us above when we found that the respondent failed to take his grievance to the Board before seeking the judicial review.
Ground 12 relates to the relevance of the Employment Act and we have already covered that in other grounds above.
Ground 13 states:
·         His Honour erred in fact and in law in failing to give any weight to the considerable evidence of the appellants that the respondent had been negligent in his duties and that summary dismissal was therefore justified.
There is no reference in His Honours judgements to the alleged negligence by the respondent in the performance of his duties, His Honour seeming to find that the respondent has some permanency of employment or was covered by the procedures under the Public Service Orders.  His Honour clearly erred in ignoring the relevance of the Employment Act as has already been stated above.
Grounds 14 and 15 relate to misconceptions with the procedures for having Order 16 matters heard.  In view of our findings above already we do not need to go into this.
We find that His Honour erred in understanding the nature of the respondent's employment with the Board and erred in his non-application of the Employment Act and further we find that the proceedings were a matter of private law and therefore should not have been the subject of judicial review.
We uphold the appeal and quash the decision of the National Court given on 15 October 1993 and declare that the dismissal of the respondent by the appellants was proper and valid in law.
Lawyers for the Appellants: Henaos
Lawyers for the Respondent: Kemaken Lawyers