SC2226

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 42 OF 2021

BETWEEN:
SHADRACH HIMATA as the Acting Secretary, Bougainville Executive Council, Autonomous Region of Bougainville
First Appellant

AND:
AUTONOMOUS REGION OF BOUGAINVILLE
Second Appellant

AND:
NANCY WARKIA
Respondent

Waigani: Geita J, Anis J, Berrigan J
2022: 28th March & 12th April

JUDICIAL REVIEW – Application under Order 10 – Supreme Court Rules – Appealing against part of the decision of the leave Court - leave Court refused leave to apply for judicial review, and in addition, made further orders – considerations – whether Order 16 of the National Court Rules confers exclusive jurisdiction for interlocutory applications filed in judicial review proceedings – whether Order 12 Rule 1 of the National Court Rules and s.155(4) of the Constitution are available as applicable sources – whether a leave Court, after refusing leave, has jurisdiction to grant relief or make orders for further conduct of the matter

Cases Cited:

Peter Makeng and Ors v. Timbers (PNG) Ltd and Ors (2008) N3317
Joshua Kalinoe and Ors v Paul Paraka Lawyers (2014) SC1366
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Alex Timothy v Hon Francis Marus (2014) SC1403
Luma v. Kali (2014) SC1608
Tzen Pacific Ltd v. Kanawi Pouru and Ors (2016) SC1550

Counsel:

S. G. Dewe, for the First & Second Appellants
D. Aigilo, for the Respondent

12th April, 2022

1.	BY THE COURT:  This is a judicial review application (appeal) hearing.  The appeal is filed by way of a notice of motion pursuant to Order 10 of the Supreme Court Rules.  

2.	The appellants challenge parts of a decision of the National Court in OS (JR) 434 of 2021 (Nancy Warkia v Shadrach Himata and 1 Or) made on 11 August 2021 where the leave Court, in refusing leave to apply for judicial review, made the following orders (for completeness, we set them out in full):

(1)	The plaintiff’s application for leave to apply for judicial review is refused.

(2)	The plaintiff’s application to stay the decision of the first defendant of 8 April 2021 is refused.

(3)	The plaintiff be reinstated to the Bougainville Public Service payroll pending the outcome of the plaintiff’s appeal to the Public Service Commission and any payment that she was supposed to receive since her dismissal should be reimbursed.

(4)	The matter is adjourned to the registry pending the outcome of the plaintiff’s Appeal before the Public Service Commission.

(5)	Parties will bear their own costs.

(Underlining ours)

3.	The appellants are appealing only against terms 3 and 4 of the Court Order of 11 August 2021 (Court Order/Orders).  Before we look at that, we propose to set out the brief background of the matter.

BACKGROUND

4.	The respondent was a public servant.  She was employed as Director of Strategic Planning and Policy Coordination, with the Autonomous Bougainville Government (ABG).  Between 12 February 2021 and 19 April 2021, the following occurred.  The respondent received a circular notice from her employer (appellants) advising that her position would be integrated, and that she would be moved to another section, which was, the office of the Deputy Chief Secretary Operations under ABG’s newly established Project Management Directorate.  The respondent was advised that her terms and conditions of employment would remain the same but under a new position and title as Director, Budgeting and Performance Management.  The respondent was aggrieved by that and so she lodged her complaint with the ABG Public Accounts Committee.  The appellants, it seems, may have viewed the respondent’s complaint as an act of insubordination, so on 8 April 2021, they suspended the respondent from work via a notice of suspension.  On 13 April 2021, the respondent provided her response in regard to her notice of suspension.  On 19 April 2021, the appellants terminated the respondent from service.

5.	On 25 June 2021, the respondent appealed to the Public Service Commission Tribunal (PSC).  It is not known what has become of that appeal since, and for what we know, it could still be pending.

6.	But on 31 June 2021, the respondent filed a judicial review proceeding, which is the subject of this appeal.  On 10 August 2021, the leave Court heard 2 applications filed by the respondent.  The first application was for leave to apply for judicial review (leave application), whilst the second application sought interim orders (i) to stay her suspension and termination and (ii) to allow her back onto the payroll system pending determination of her judicial review application (stay application).  The presiding Judge heard and reserved his decision to the next day on 11 August 2021 where His Honour gave an ex tempore ruling and handed down the Court Order.

GROUNDS OF APPEAL

7.	We refer to the grounds of appeal filed herein (filed on 31 August 2021).  There are 5 grounds in total, and we note that they appear to overlap each other.  We will address the related grounds together, beginning with grounds 1 & 5.

GROUNDS 1 & 5

8.	Grounds 1 & 5 relate to question of law, namely, jurisdiction.  The appellants argue under these grounds that after the trial Judge arrived at his decision where he refused leave to the respondent to apply for judicial review, that that was where or when the matter concluded.  As such, the appellants submit, his Honour had no powers or jurisdiction thereafter to continue or proceed to make orders 3 and 4.  In so doing, the appellants submit, his Honour erred.  In support of this argument, the appellants refer to and rely on Order 16 Rule 3(1) of the National Court Rules (NCR) and the case authorities, namely, Peter Makeng and Ors v. Timbers (PNG) Ltd and Ors (2008) N3317 and Kalinoe v Paul Paraka Lawyers (2014) SC1366.

9.	Counsel for the respondent was upfront at the start of his submission.  Counsel submitted that he had had difficulties in finding a suitable case law that would support his client’s case or the actions of the presiding Judge in making the orders in the manner as he had done, in particular, terms 3 and 4.  But counsel, in support, made references to the Court’s powers under Order 12 Rule 1 of the NCR and s. 155(4) of the Constitution.  Counsel submitted that the presiding Judge had these discretionary powers, and as such, had exercised them accordingly when he made the Orders.  In support, counsel referred us to the case of Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

10.	We have considered the arguments and submissions of the parties.  But in our view, this is a case where, with respect, there appears to be no valid reason(s) disclosed by the respondent to say why we should not uphold the 2 grounds of appeal.  There are very good reasons why we say this, that is, in light of the settled case law and the Court rules, concerning jurisdiction of a leave Court in a judicial review proceeding.

11.	A judicial review proceeding in this jurisdiction cannot be commenced as of or by right.  An applicant must first seek leave to apply for judicial review.  It is only where leave is granted under Order 16 Rule 3(1) of the NCR, or where the applicant has obtained permission from the leave Court to apply for judicial review, that he or she may then be permitted to:

(i)	proceed to file a substantive application for judicial review as required under Order 16 Rule 5(1) of the NCR; and
(ii)	where required, apply for any interim orders pursuant to Order 16 Rules 3(8) or 13(13) of the NCR.

12.	Order 16 Rules 3(1) & (8), 5(1) and 13(13)(1) read:

(1)	An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with the Rule. [Order 16 Rule 3(1)]
……
(8)	Where leave to apply for judicial review is granted, then – 
(a)		if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and
(b)		if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.  [Order 16 Rule 3(8)]
……
(1)	Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.  [Order 16 Rule 5(1)]
……
(1)	Motions.
All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time. [Order 16 Rule 13(13)(1)]

(Underlining is ours)

13.	The case law is also settled on this issue.  Injia DCJ, as he then was, in the leading case of Peter Makeng stated in part at paragraph 34:

Under O 16, a plaintiff has no right to seek judicial relief unless leave is granted. No such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or for interim relief and the Court’s jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granted leave.  Upon the grant of leave and filing of the application for judicial review, the Court assumes jurisdiction to deal with any interlocutory applications. Only then, the discretionary power under s 155(4) of the Constitution may be invoked by the Court or a party, to tailor remedies in addition to those provided by r 3(8), in aid of the substantive application for judicial review. Even then, s 155 cannot be applied to do anything contrary or inconsistent with the provisions of O 16 r 3 (8).

14.	On the question of whether Order 12 Rule 1 and s. 155(4) may be regarded as sufficient sources which could be invoked by the Court to seek interim relief or other additional orders, His Honour in Peter Makeng addressed that at the beginning of para 34, where His Honour stated:

Does s 155 (4) of the Constitution confer a primary power on this Court to grant a stay or other interim relief before leave to apply for judicial review is granted? In my view s 155 (4) of the Constitution is not applicable to O 16 r 3 (8).  That section is not the source of primary jurisdictional power.  The Court’s primary power or jurisdiction is given by O 16 r 3 (8) of the National Court Rules.  Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.  The National Court Rules which contains O 16 is a subordinate legislation made by judges under their rule-making power given by s 184 of the Constitution and s.8 and s.9 of the National Court Act (Ch 38) and it falls within the definition of law in s.9 of the Constitution: see s.9 (c) & (e).  On a matter of practice and procedure of Court, and more specifically in respect of a procedural provision which confers jurisdiction on the Court, the rules may confer itself jurisdiction and prescribe the ambit of that jurisdiction and the circumstances in which that jurisdiction may be exercised.  In my view, in relation to the Court’s jurisdiction to grant a stay or interim relief in a judicial review proceeding, Order 16 is the source of primary jurisdictional power.

15.	The Court’s views in Peter Makeng have been extensively approved and applied by this Court over the years in many cases, including, Alex Timothy v Hon Francis Marus (2014) SC1403, Luma v. Kali (2014) SC1608, Tzen Pacific Ltd v. Kanawi Pouru and Ors (2016) SC1550, Kalinoe and Ors v. Paul Paraka (2014) SC1336 and Joachim Maser v. Henry Salin (2021) SC2093.  We see no reason to depart from these views.

16.	So, the respondent’s reliance on Order 12 Rule 1 and s. 155(4), we observe, were derived from her stay application.  Recapping, the stay application was also moved together with the leave application on 10 August 2021, that is, in anticipation of leave being granted.  We observe that in practice and in urgent cases, such applications may be argued in such a manner like in the present case before the trial Court.  However, as revealed in the case law and rules, it is only after leave is granted, that the Court may hear or grant any other interlocutory applications including application of s.155(4) of the Constitution.  But as stated in Peter Makeng, and we quote, Even then, s 155 cannot be applied to do anything contrary or inconsistent with the provisions of O 16 r 3 (8).  

17.	In any event, we note that the stay application was also dismissed together with the leave application by His Honour on 11 August 2021.  So, any arguments on these 2 provisions, whether it be based on the stay application or the exercise of the Court’s power by His Honour on his own accord under s.155(4) of the Constitution, would not suffice or are inconsequential given the fact that leave had been refused by the trial Court.

18.	We refer to the respondent’s submissions and her reliance on this Court’s decision in Kekedo and Philps.  With respect, we observe that the submission is premised on this misconceived view that the trial Judge had the discretion to and may, in exceptional circumstances when considering the element exhaustion of administrative remedies, make orders such as those made under terms 3 and 4 of the Court Order.  The submission is clearly without merit for the reason that the requirement, exhaustion of administrative remedies, is 1 out of a total of 4 requirements that an applicant must establish before a leave Court may decide whether or not to grant leave to apply for judicial review.  The others include sufficient interest or standing, arguable case and delay.  These elements or requirements for leave, in our view, cannot be considered separately and for different reasons outside their purpose.  It is therefore and with respect, misconceived to say that a leave Court Judge may, based entirely on this consideration, exhaustion of administrative remedy, be able to exercise his discretion and make orders under terms 3 and 4 of the Court Order.  It must also be noted here that the trial Judge found that the respondent had established 3 out of the 4 requirements for leave to apply for judicial review, namely, sufficient interest, arguable case, and no undue delay.  The only requirement that the trial Judge found against the respondent was that she had not exhausted the administrative remedy that was available to her, that is, in regard to her appeal to the PSC which was still pending at the time.  So, having said that, we are baffled and wonder why the respondent would make such an argument relying on the requirement, exhaustion of administrative remedy.  This Court’s decision in Kekedo and Philps does not in any way support the argument or proposition that is put forward by the respondent herein.  We therefore dismiss the respondent’s argument.

19.	So, when the trial Judge refused the respondent’s leave application, what does that mean?  In our view, it simply means that she was denied permission to challenge the decision of the appellants in terminating her on 19 April 2021 by way of judicial review.  When leave was refused, that concluded the judicial review proceeding.  It meant that there was no proceeding on foot that was pending.  However, in the present case, the trial Judge proceeded to make additional orders that favoured the respondent, which were orders 3 and 4 respectively, on 11 August 2021.  

20.	We find that in so doing, the trial Judge erred in law.  We find that His Honour acted ultra vires or beyond his purview or jurisdiction.  On the same token, we find that the trial Judge lacked jurisdiction as there was no basis, foundation, or cause of action that was pending before him at the time when he made these additional orders, namely, order 3, which was for the respondent to be reinstated and be paid her dismissal entitlements, and order 4, which was for the judicial review proceeding to be adjourned to the registry to await the outcome of the respondent’s appeal to the PSC.  

21.	We therefore uphold grounds 1 & 5.

GROUNDS 2, 3 & 4

22.	Given our findings on grounds 1 and 5, it is not necessary to consider grounds 2, 3 and 4, which do not take the matter any further.

SUMMARY

23.	In summary, we uphold grounds 1 and 5 of the appeal.

ORDERS OF THE COURT

24.	We therefore uphold the appeal.  In so doing, we quash terms 3 and 4 of the Court Order of 11 August 2021.  We further order, for clarity, that proceeding OS (JR) 434 of 2021 has been determined and that the file is to close.  We will order costs of this appeal to follow the event, that is, against the respondent on a party/party basis which may be taxed if not agreed.
________________________________________________________________
Jema Lawyers:	Lawyers for the Appellants
Jaminan & Partners Lawyers:	Lawyers for the Respondent