SC2435

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 54 OF 2021

HONK KIAP AS CHAIRMAN OF THE STAFF APPEAL TRIBUNAL
First Appellant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Second Appellant

AND
FREDRICK KASPER 
First Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi, DCJ, Polume-Kiele J, Dowa J
2022: 23rd August
2023: 11th August

APPEALS & REVIEWS – Appeal against successful judicial review granting certiorari and order for reinstatement of contract employee with backdated salary on an expired contract – Relationship governed by private law – Contract not providing for continuity of employment after expiry of – Public Service practice of unattachment officers or pool is unlawful, unfair and is unenforceable - Judicial review and reinstatement not available remedies - No arguable case presented - Decision maker not named – Wrong decision reviewed – Effect of – Decision sought to be review intact – Appeal upheld – National Court decision quashed with originating proceeding dismissed.

Cases Cited:

Papua New Guinean Cases
National Capital District Commission v. Kasper (2022) SC2217
Richard Sikani & Ors (2002) N2307
 John Kopil v. Malcolm Culligan & The State (1995) N1333
Sulaiman v PNG University of Technology [1987] PNGLR 267
Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494
Tom B. Gesa v. Bernard Kipit & NCDC [2003] PNGLR 23
Ereman Ragi v. Joseph Maingu (1994) SC459
Young Wadau v. PNG Habours Board (1995) SC489; [1995] PNGLR 357
Robinson v. The National Airlines Commission [1983] PNGLR 476
Lupari v. Somare (2008) SC930
Isaac Lupari v. Sir Michael Somare (2010) SC1071
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
Awesa v. PNG Power Ltd (2016) N6359
Tian Chen Ltd v. The Tower Ltd (No 2) (2003) N2319
.Jack Pinda v Sam Iguba (2012) SC1181
Paul Gigmai v Motor Vehicles Insurance Limited (2004) SC750
Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949
Application by Joseph Kintau (2011) SC1154
Willie Kili Goya v The State [1991] PNGLR 170
Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Monomb Yamba v Maits Geru (also known as Mas Geru) [1975] PNGLR 322
Johnny Pokaya Philp v James Marape [1998] PNGLR 5276
Avia Aihi v The State (No.1) [1981] PNGLR 81
Application by Jeffery Balakau [1998] PNGLR 437
Application by John Mua Nilkare [1998] PNGLR 471; SC536
Paul Asakusa v Andrew Kumbakor (2008) N3303
Bakani v Dipo (2001) SC659
Isaac Lupari v. Sir Michael Somare, MP (2010) SC1130
Alina Sara Bean v. Ian Maxwell Bean [1980] PNGLR 307; SC187
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
State v Sam Akoitai & Ors (2009) SC977
Ron Napitalai v PNG Ports Corporation Ltd & Ors (2010) SC1016

Overseas Cases

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 614

Facts

The first Respondent, Mr. Kasper was employed by the first Appellant, NCDC, as Council Manager for Moresby South Electorate under a contract of employment for a term of three years commencing 4th November 2008 and expiring on 04 November 2011. In May 2011, Mr. Kasper was charged with disciplinary offences for misconduct to which he responded. Having found his responses unsatisfactory, the first Appellant’s Staff Disciplinary Committee decided to terminate him on 27th September 2011, which Mr. Kasper appealed against to the NCDC Staff Appeals Tribunal on 14 August 2012. The Appeals Tribunal dismissed the appeal and upheld the decision to terminate. Consequently, Mr. Kasper on 19th July 2018, sought judicial review of that decision. He named only the chairman of the Appeals Tribunal and the NCDC. The trial court upheld the review application, quashed the decision of the Appeals Tribunal, and ordered Mr Kasper’s reinstatement to a position, Deputy Works Manager, which he did not hold or asked for and ordered damages with back dated salaries. In upholding the application, the trial judge held the Appellants failed to follow section 10 Part 4 of the first Appellants Staff Disciplinary Code. Also, his Honour quashed a decision of 12 January 2012 contrary to the pleading that the decision for termination was 20th February 2012.

Held:

1.	The relationship between the parties was based on a contract of employment which was governed by private law and not public law for the purposes of judicial review.

2.	(Per Kandakasi DCJ and Dowa J) Upon expiry of the contract of employment, the relationship between the parties ended with no right of continuous employment vested in the first responded as an unattached employee or an employee waiting in a pool to be re-employed, by reason of which, the first respondent had no standing to institute the judicial review proceedings and succeed.

3.	(Per Kandakasi DCJ and Dowa J) The Public Service practice of “unattached officers” or “being in the pool” is unlawful, unfair, and is unenforceable.

4.	(Per Kandakasi DCJ and Dowa J) The proceedings were defective in that the real decision maker, the Appeals Tribunal was not properly named and heard before the final decision by the learned trial judge.

5.	The relief of reinstatement and the other reliefs granted by the learned trial judge were therefore inappropriate, not open, and not available to the first respondent in the whole of the circumstances. 

6.	For the foregoing reasons, the learned trial judge fell into clearly identifiable errors which needs to be corrected by the Supreme Court.

7.	The appeal was therefore upheld with the decision and orders of the National Court were quashed and the judicial review proceedings were dismissed with costs ordered against the first respondent. 

Counsel

Mr. Nelson Kopunye, for First and Second Appellants 
Mr. Frederick Kasper, First Respondent in person
No Appearance for Second Respondent

DECISION ON APPEAL

11th August, 2023

1.	KANDAKASI DCJ:	I had the benefit of reading the draft decision of her honour Polume-Kiele J.   I agree with her honour that the appeal should be upheld, and the decision and orders of the learned trial judge should be quashed.  I agree with her honour’s reasons as to the learned trial judge:

(a)	getting the date of the decision terminating the First Respondent, Fredrick Kasper (Kasper) from his then employment wrong as 13 January 2012 which was contrary that which was pleaded, namely, 20 February 2012.

(b)	the relief of reinstatement as an inappropriate remedy when the position the learned trial judge reinstated Kasper to, Deputy Works Manager was not the position Kasper held, pleaded, and asked for; and 

(c)	the learned trial judge failing to give any reasons for his decisions referred to in (a) and (b) above. 

2.	I add, the National Court proceeding, OS (JR) No.497 of 2018 (judicial review proceedings) should be dismissed with Kasper ordered to meet the appellants costs of both the appeal and the National Court proceedings.

Reasons for decision

3.	My reasons are in addition to those given by her honour, Polume-Kiele J., some of which I will express in my own words, except for the areas in which we might differ. The relevant facts and background to this appeal are covered in her honour’s judgment.  I wish not to repeat them save only as they are necessary for the reasons I will be shortly giving.

Nature of relationship and consequences  

4.	The first of my reason 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 dependant on the nature of the parties’ relationship. There is no contest that the parties were in a contractual employment relationship, where Kasper was employed by the Second Appellant, the National Capital District Commission (NCDC) under a written contract of employment (Contract) as the Council Manager, South Moresby Electorate, National Capital District. It was for a term of 3 years, commencing on 04 November 2008 and expiring on 4 November 2011.

5.	On 10 May 2011, Kasper was served with charges of serious disciplinary offenses.  He responded to those charges on 11 May 2011.  Almost two months later, on 5 July 2011, Kasper was served with further charges, which he responded to the very next day, 6 July 2011.  On 27 September 2011, the Staff Disciplinary Committee (SDC) sat and deliberated on the charges and arrived at a decision to have Kasper’s employment with the NCDC terminated.  The decision was however communicated to Kasper by the First Appellant (Kiap) on 20 February 2012.   By then, it was more than 3 months after the Contract of employment had expired.  

6.	About 10 months after the expiry of the Contract and about 6 months after receiving of the notice of his termination Kasper on 14 August 2012, appealed to the Appeals Tribunal against the decision terminating his employment.  On 24th August 2012, the Appeals Tribunal dismissed Kasper’s appeal and confirmed the SDC’s decision.  Almost 6 years later, on 19 July 2018, Kasper filed his judicial review proceeding, which the National Court dismissed.  On 4 September 2018, Kasper appealed against that decision to the Supreme Court. On 17 December 2020, the Supreme Court granted Kasper leave for judicial review, quashed the decision of the National Court and ordered a rehearing of the judicial review proceedings.  On 18 August 2021, after a rehearing Miviri J., granted an order for certiorari quashing the decision of the Appeals Tribunal and ordered a reinstatement of Kasper to a position of Deputy Works Manager, with backdated salary and emoluments to 13 January 2012, assessment of damages and costs.  All of these happen well after the contractual relationship between the parties had expired on 4 November 2011.

7.	Kasper adduced no evidence of a renewal of his Contract of employment after its expiry on 4 November 2011.  In the absence of any such evidence the relationship between the parties had long come to an end well before Kasper filed his judicial review proceedings on 19 July 2018.   Logan J, who sat as a single member Supreme Court and who decided to grant a stay of the National Court decision and orders, picked this point up in his judgment.  The decision is reported as National Capital District Commission v. Kasper (2022) SC2217.  Relevantly, his Honour said at [8]:

“One issue raised for consideration in the course of the hearing of the stay application flows from a finding of fact made by the learned primary judge at paragraph 8 of his Honour’s reasons for judgment. His Honour found that the prevailing contract of employment at the time when termination occurred in May 2011 was a contract of three years which ran from 4 November 2008 to 4 November 2011. The question which does not appear to have been addressed by the learned primary judge but was sitting there on his finding of fact as to the length of the contract was that the effect of the orders was to order the reinstatement of someone whose term of employment would have expired in any event if not renewed on 4 November 2011.”
 
8.	In my view, this fact goes into the very heart of Kasper’s standing to file for judicial review.  I am aware that a practice has developed in the area of employment in the public service or public authorities following an expiry of a written contract that is not renewed either before or after its expiry.  The former employees continue to remain on the payroll but become “unattached” or get placed in a “pool” waiting to be redeployed. Meanwhile, they get paid without rendering any service to the public service or authority.  Strictly speaking, that is legally not correct and is not proper. 

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.”

(Underlining supplied)

13.	In Kuluah v. UPNG, the plaintiff was also on a written contract of employment with the University. When the contract expired, the defendant refused to renew it. The plaintiff applied to the Court for a judicial review of that decision. In refusing the application, Sheehan J., held at p. 497:

“In the first place, it is acknowledged that the plaintiff's contract of employment was a private contract. As such, the action or the decisions of the parties to it are outside the scope of judicial review. Judicial review is concerned only with the protection of rights under public law, not the private rights and duties of parties that arise under contract or tort. Judicial review is certainly not available to those involved in disputes regarding private contracts of employment: Sulaiman v PNG University of Technology [1987] PNGLR 267.”
(Underlining supplied)

14.	As will be apparent from the above, whether a person continues to remain employed after the expiry of a written contract would very much depend on the terms of the contract.  In Himsa v. Sikani, I considered the relevant terms of the contract in the following terms:

“The words in clauses 97.2, 27.5, 35.1 and 35.2 of the contract in this case are very clear. The parties agreed that, if at the end of the applicants’ contract the applicants do not get a new contract with the DCS [Department of Correction Services] or get employed in the National Public Service, their services would cease, ‘provided that the Selection and termination procedures in the Correctional Service Act shall be followed’”.  

15.	At the same time however, I found both the contract and the Correction Services Act (CSA) were silent on the terms and conditions under, which the applicants could continue as employees of the DCS after the expiry of their contracts. I went on to observe:

“If the parties indeed intended that the applicants would continue to remain as employees of the DCS, they would have at the least agreed and provided as to what position the applicants would hold and their salary or wages and other terms and conditions of their employment.

16.	Further I noted that the CSA empowered the Commissioner to recruit such employees as he considers necessary on terms and conditions, he considers appropriate subject to the approval of the Salaries and Conditions Monitoring Committee (SCMC) (s. 30 of the CSA). Consistent with employment contracts, parties’ agreement on the duration of the contract, salary and other benefits and entitlements would be fundamental.  Given the importance of such terms, the law requires certainty in them. For where there is uncertainty in the terms, the contract would be null and void. 

17.	Applying that law then to the case before me I found:

“… there is no provision at all either in the contract or in the CSA as to the terms and conditions under which the applicants were to continue to remain in the employ of the DCS after the expiry of their contracts. There is no evidence at all of what were the terms and conditions on which the applicants were to remain in the employ of the DCS. Also, there is no evidence showing what position the applicants would hold, their salary and other terms and conditions of employment and how they could be terminated under the CSA once their contract expired.”

(Underlining supplied)

18.	Hence, I found:

“There is a complete failure or a lack of certainty of agreement in these important areas. Given that, I find that the parties were not at any consensus ad idem on these important aspects. In the circumstances, the words ‘provided that the Selection and termination procedures in the Correctional Service Act shall be followed’ as used in the contracts have no practical meaning and effect.”

19.	Furthermore, in the Himsa v. Sikani case, I went on to consider the practice of former employees in the public service or public authorities being placed in the “public service pool” or “unattached” category pending re-employment once a position becomes available. I found this might be a well-known practice in the public service, but it did not mean it was the law and is therefore enforceable.  The law requires valuable consideration passing from one party to the other in a contractual relationship and not for a one-way traffic only favourable to a former employee, who renders no service but continues to receive pay and other benefits.   I therefore held:

“In the public service pooling arrangement, a person continues to be on the State’s payroll even though such a person is not rendering any services to the State. He or she is in fact being paid for nothing. Such an arrangement lacks the passing of any valuable consideration, that is services from the public servants in the pool. Such a contract is in my view void and unenforceable for lack of valuable consideration. In my view, this kind of arrangement fails to serve any good to the State and therefore the people of Papua New Guinea. It only benefits the individuals involved at the expense of the people. I believe that over the years this as contributed to unnecessary public expenditure. No sensible government or person would allow such a practice to continue. Such arrangements therefore ought not to exist in the public service, as they are unnecessary source of a drain in the public purse. As such, the practice should cease immediately if not already stopped.”
(Underlining supplied)

20.	Finally, I accepted the defendants’ argument that the relevant terms of the contract in that case, were like the Public Service General Orders in relation to contracts of senior officers within the public service, including the Police and the Correctional Service. The relevant General Orders were clause 9.26 to 9.29. Those provisions, I noted:

“…set out the grounds upon which a contract may be terminated. They provide for a standard contract of three years duration may be entered into and may be terminated by either party at any time in accordance with the provisions of the contract. A person under such a contract may resign by giving appropriate notice under the contract to their Departmental Head. Also, the Departmental Head, having consulted the Department of Personnel Management may also give notice of termination, provided that, reasons of termination shall be given in writing to the senior officer. They further provide that upon termination of such a contract at any time, unless the contract specifically specifies otherwise, employment in the public Service will cease.” 
(Underlining supplied)

21.	I then went on to hold:

“When these provisions are read together with the terms of the particular contracts in this case, it is clear that at least the contract will have to come to an end and that the officer concerned no longer remains an employee of the State.”

22.	A case closer to the present case is the matter of Tom B. Gesa v. Bernard Kipit & NCDC [2003] PNGLR 23.  That was a case in which the applicant was employed by the NCDC as the Deputy City Manager, Community and Social Services under a written contract of employment. He was suspended from duties for alleged mismanagement, charged and eventually a decision was taken to terminate his service. He claimed, however, that following an appeal against the decision to the Full Board of the NCDC, the first defendant was directed to reinstate him, but he failed to do so. The applicant sought a review of the first defendant's failure to reinstate him. I applied the law as discussed and stated in Himsa v. Sikani (supra) and refused the plaintiff’s application for judicial review. In so doing I concluded:

“Ultimately therefore, I find that there is no provision in the contract allowing for the normal public service or the NCDC’s own disciplinary process to apply to the contract of employment in this case. Consequently, I find that the parties by agreement evidenced and contained in the written contract of employment decided to render Mr. Gesa’s employment with the NCDC as a private matter of contract and not something in the domain of public administrative law. Accordingly, I find that judicial review is not available as a remedy to the plaintiff.”
(Underlining supplied)

23.	Subsequent decisions of the Supreme Court affirmed the law as discussed and applied in the foregoing decisions.  Relevant Supreme Court decisions include the decisions in Ereman Ragi v. Joseph Maingu (1994) SC459 and Young Wadau v. PNG Harbours Board (1995) SC489.

24.	In both cases, the employers, PNG Harbours Board (Harbours Board) and the Public Officer’s Superannuation Board (POSF) were creatures of statute.   In respect of recruitment, terms and conditions of employment, discipline and termination the respective legislation was silent.  The first of the two cases did not involve a written contract of employment. The employee, Mr. Maingu was employed from the public service. Subsequently, there was a restructure of the POSF. That saw advertisements going out for the various positions in the POSF.  To his detriment, Mr. Maingu did not apply for any of the advertised positions, for reasons only known to himself.  Despite that, he argued before the National Court in a judicial review application that he had a permanency of employment. He therefore claimed that he was entitled to judicial review of a decision to terminate him summarily and if successful be reinstated as a remedy for unlawful dismissal.  The National Court decided in favour of Mr. Maingu and ordered his reinstatement.

25.	On appeal, the Supreme Court upheld the appeal, quashed the decision of the National Court and declared the termination of Mr. Maingu was proper and valid in law.  In coming to that decision, the Supreme Court pointed out the difference between employment under public law and private law.  Under the former, the process and procedure for employment, terms and conditions of employment and matters of discipline and termination are provided for and governed by the relevant statute.  On the other hand, the Court explained employment under private law is based on the relevant contract and its terms.  Applying the law to the case at hand, the Court held:

“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.”
(Underlining supplied)

26.	On the question of permanency of employment, the Court held:
	
“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.
…
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.
(Underlining supplied)

27.	In Young Wadau’s case, he was terminated from his employment with the Harbours Board.  That followed internal investigations, which were referred to a special investigation committee which reported its findings to the full Board. The Board resolved to terminate Mr. Wadau but before doing so, referred the Committee’s report to the Chairman for disciplinary action. He was charged under Part X of a determination made pursuant to the Papua New Guinea Harbours Board Ordinance, 1963-1969, namely, Determination No.1/1970 (Terms and Conditions of Employment) (Determinations 1970). The Ordinance has been adopted and consolidated in the Harbours Board Act, Ch 240. Mr Wadau was given the right to be heard by the Chairman and did reply. The Chairman recommended to the Board that Mr. Wadau’s services be terminated. Mr. Wadau had a right of appeal which could result in a confirmation, annulment or variation of the decision appealed against. A decision on any appeal would be final.

28.	It was difficult to categorise Mr Wadau’s employment because he argued that it was not by virtue of any contract of employment as there was no written contract of employment. He therefore argued that the procedure adopted by the Harbours Board and its Chairman in its deliberations must therefore fail. He also argued that the respondents had no power under the Harbours Boards Act, to employ persons. Yet the position he held per his own pleadings as legal officer, was not designated nor created by the Act or the Ordinance or elsewhere. The position he held was advertised by the Board, he applied for it and was successful. He was employed for a period and accepted salary on the strength of his appointment and worked at the direction of, the officers of the Board.  Hence, the indicia of an employer and employee relationship clearly existed. 

29.	The Supreme Court noted, Mr Wadau was not a person on a superior footing, he was not appointed to a public office, nor statutory authority or State instrumentality as was Robinson, in the case of Robinson v. The National Airlines Commission [1983] PNGLR 476.  He was rather an employee subject to the usual incidents of an employer and employee relationship but varied in the circumstances, in that the Harbours Board has afforded him the rights accorded an officer under Part X of Determination 1970.

30.	Given these circumstances, the trial judge refused an application for leave for judicial review by Mr. Wadau.  The court took the view that Mr. Wadau’s employment was under private law.  Hence, the trial judge held that the decisions of the Board and its Chairman were not open for judicial review.  That was despite the Board being established by its statute.   Accordingly, Mr. Wadau’s application for leave for judicial review was dismissed.

31.	On appeal, Mr. Wadau claimed the trial judge erred because the court has inherent power to review actions of a public officials empowered by statute. He also claimed that the trial judge erred in ruling that the effect of proceedings under Determination 1970 was to cloth the actions of the Board as those within private law as opposed to public law, when the Determination was made pursuant to a public Act of Parliament. 

32.	In dismissing the appeal, the Supreme Court reasoned amongst others:

“Order 16 of the National Court Rules cannot give rise to a cause of action. It relates to judicial review of administrative acts and in some circumstances, quasi judicial acts but only where there is a sufficient public interest. 
…
There is nothing in the circumstances of this case, to give it any sufficient flavour of a public nature to justify this Court’s interference. A lawyer especially, may make his own arrangements for employment and the fact of his employment does not place his position in the public domain, to such an extent for instance, that a member of the public could demand an account of the appellant’s work at the Harbours Board. That is the sole prerogative of the employer, the Board and the Court has no business to enquire into the private arrangements made between these two parties. This highlights the distinction between public law and private law rights.

33.	The Court then cited its earlier decision in Ereman Ragi v. Joseph Maingu, (supra) summed up what it said there and held:

“We are of the view that the incidents of the appellant’s employment with the Harbours Board are of a private law nature and consequently not amenable to judicial review. Since the Board has embarked on procedures of a quasi judicial nature when dealing with Mr Wedau’s appeal against the conditions laid down for his continued employment, Mr Wedau’s argument that he consequently has the right of review by virtue of the nature of the tribunal (quasi judicial), cannot succeed in the face of the private law status of his employment arrangements.”

(Underlining supplied)

34.	Later in Lupari v. Somare (2008) SC930, a 5-member Supreme Court on referral by Injia ACJ (as he then was) under s. 15 of the Supreme Court Act suggesting amongst others that there was a conflict in authority, held:

“In terms of the issue in question 4, we note that, the issue has arisen in the light of the conflicting National Court decisions we have noted in paragraphs 6 and 7 above. The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra) support the proposition in the case of a public servant employed under a contract that, unless there is express provision for the application and continuation of a public servant’s rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court.

In the case before us, there might well be conflicts in the decisions of the National Court as highlighted in the arguments of the parties before us and in the Court below. But that is no reason to say that, there has been much controversy in relation to the issue of appointment and revocation of Departmental Heads and other senior public servants. Though s. 193(1C) of the Constitution and ss. 28 and 31C of the Public Services (Management) Act, were not under consideration in the Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra), these decisions state the law as to when an employer-employee relationship is governed by public law and when it is not.”
(Underlining supplied)

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. 

36.	Applying the law as discussed above to the present case, I note Kasper neither adduced nor referred to the trial Court and or this Court any evidence on the continuity of his employment with the NCDC despite the expiry of his contract of employment on 04 November 2011.  Also, he did not adduce any evidence as to the terms and conditions on which his employment was to continue after the expiry of the contract.  Similarly, he has not pointed to any evidence as to the passage of a valuable consideration by him to the NCDC in return for the NCDC keeping him employed.  Further, he did not refer to any part of his expired contract that made the public service employment and disciplinary process being incorporated into his contract and being made a term or condition of his then employment.

37.	Given the legal position and the circumstances attending this case, I am of the view that Kasper did not have any standing to file for judicial review and eventually succeed.  His remedy lied in suing for damages, if any, for breach of contract and not in judicial review.

Wrong decision reviewed

38.	I next turn to my second reason for upholding the appeal.  Kasper filed for judicial review of a decision made on 20 February 2012 to have his already expired employment with the NCDC terminated.  Unfortunately, the learned trial judge on his own motion dealt with a purported decision made on 13 January 2012.   The parties were not heard before the trial judge’s decision in relation a decision that might have been made on that date. Consequently, in my view, the decision Kasper sought to be reviewed was not reviewed, or if reviewed, a decision on that was not made. 

Not naming the decision maker

39.	   Closely connected to the decision that was the subject of the judicial review proceeding is the question of who made that decision.   That question gives rise to my third reason.   Kasper took his appeal against his termination decision by the SDC to the Appeals Tribunal. It is the Appeals Tribunal that decided to affirm the decision of the SDC and not Kiap alone in his capacity as Chairman of the Appeals Tribunal.   If Kasper was entitled to judicial review, he could only go for a review of the decision by the Appeals Tribunal and not against its chairman only.  Kasper was obliged to name each of the members of the persons collectively constituting the Appeals Tribunal. However, the proceedings named only the Chairman of the Appeals Tribunal, Kiap. This gives rise to several questions, such as, was he a single member tribunal.  Or was he the Chairman of a tribunal comprising of other members? If the Appeals Tribunal comprised of several other members, who are they and why have they not been named as the persons constituting the Appeals Tribunal. In short, the proceeding proceeded without the decision maker being properly named and heard before the final decision in the matter. This rendered the proceedings defective and most importantly the hearing and outcome was defective, improper and not binding on the decision maker. Consequently, the decision of the Appeals Tribunal remains unchallenged and undisturbed. 

40.	The application for leave for judicial review and later the review itself was therefore defective.  This in my view rendered the grant of leave for judicial review, the substantive judicial review and the various reliefs the learned trial judge granted were highly irregular which warrant an immediate quashing and set aside. 

Remedies granted

41.	This leads me to the fourth reason which concerns the kinds of relief the learned trial judge granted.  As was restated by the 5-member Supreme Court decision in Isaac Lupari v. Sir Michael Somare (2010) SC1071, judicial review is a two-stage process after a grant of leave for judicial review.  The first determines the lawfulness of the decision under review. The second determines the appropriate remedy to be granted if the first part of the process finds the decision under review was unlawful. To determine what is an appropriate remedy, the court is required to look at all the circumstances of the case. In the context of an employment setting, “the nature of the employment, the conduct of the applicant and the relationship between the parties prior to, at the time of and subsequent to the decision are relevant considerations in determining a remedy.”

42.	In the Lupari case, the trial judge developed, and the Supreme Court endorsed five principles.  These are:

(1)	where the relationship between an employer and an employee has broken down to such an extent that mutual trust no longer exists, specific performance or mandatory injunction will not be granted to compel them to continue a personal relationship.

(2) 	damages rather than specific performance or mandatory injunction are the appropriate remedy for breach of contract for personal services.

(3)	specific performance or mandatory injunction is an equitable remedy, and the applicant must come to court with clean hands.

(4)	public interest in good administration must justify the applicant's reinstatement.

(5)	vacancy in the position once occupied by the applicant is a relevant consideration but not an important one.

43.	In this case, the relationship between the parties was governed by a contract of employment which had expired on 4 November 2011.  As I already said, specific agreement of the parties was therefore required to allow for Kasper to continue to remain as an employee of the NCDC. Without any such agreement of the parties, no court can rewrite the expired contract to effectively allow for a continuation of a contractual relationship that had long expired.  The courts duty is instead to enforce the parties’ contracts: See Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705; Awesa v. PNG Power Ltd (2016) N6359; Tian Chen Ltd v. The Tower Ltd (No 2) (2003) N2319.  In the present case, it means the Court needs to accept the fact that the contract between the parties had long expired on 04 November 2011 and the parties’ relationship came to an end at that point. Going by that, I am of the view that Kasper was not entitled to remain in the employ of the NCDC.  Consequently, I am of the view that, the learned trial judge erred in ordering reinstatement.

44.	The relief of reinstatement as ordered was not an option that was not avail for two additional reasons. Firstly, the position Kasper held prior to the termination of his employment, was Council Manager, South Moresby, National Capital District. In his claim and prayer for relief Kasper asked for a reinstatement to that position.  The learned trial judge however, decided to have him reinstated to the position of Deputy Works Manager. That was contrary to the pleadings and the evidence place before the Court.  

45.	Secondly, there is no evidence in the record of proceedings before the trial court and the learned trial judge’s judgment of any consideration being given to the factors stated in the second of the Lupari v. Somare (supra) case.   If he had done so, the learned trial judge would have been slow to order reinstatement and the grant of the other reliefs because:

(1)	the relationship between Kasper and the NCDC had already expired on 04 November 2011 and was not renewed.

(2)	the relationship between Kasper and the NCDC had broken down to such an extent that mutual trust no longer existed and therefore ordering the parties to continue in the relationship was not an appropriate remedy.

(3)	damages rather than specific performance or ordering the parties to continue in the relationship were appropriate remedies for any breach of Contract for personal services.

(4)	the serious charges with which Kasper was charged indicated he was not in court with clean hands which render any grant of reinstatement as an equitable remedy was not available to him.

(5)	public interest in good administration did not warrant and justify Kasper’s reinstatement after a passage of a close to10 years since the expiry of his Contract of employment on 04 November 2011 and decision to terminated him made on 27 September 2011 by the SDC and affirmed by the Appeals Tribunal on 20 February 2012.

(6)	there was no vacancy in the position once occupied by Kasper or the position of the Deputy Works Manager, or any other position in which Kasper could be reinstated to.

In summary 

46.	I repeat, for these reasons and for most of the reasons her Honour Polume-Kiele J., gives, I agree that the appeal should be upheld, and the National Court decision appealed against should be quashed with costs awarded to the respondents.   Additionally, for these reasons I would also go on to order a dismissal of the proceedings under OS (JR) No. 497 of 2018, rather than remitting the matter back to the National Court or the ultimate decision maker, the Appeals Tribunal. 

47.	POLUME-KIELE J:  This is an appeal against the decision of the primary judge, Miviri J, made on 18 August 2021; in a judicial review proceeding (OS, (JR) No.497 of 2018) to grant an order for certiorari quashing the decision of the first defendant terminating the first respondent from his employment with the second respondent and making orders for reinstatement to his former position of Deputy Works Manager, with backdated salary and emolument to 13 January 2012, assessment of damages plus costs. 

48.	The Notice of Motion was moved pursuant to Order 10 of the Supreme Court Act 2012 seeking a review of the orders made by the primary judge, Miviri, J on 18 August 2021.

49.	The appeal lies without leave. 

Background facts.

50.	Mr. Kasper was a contract employee. He was employed as Council Manager, South Moresby Electorate, the National Capital District Commission (second appellant) for a term of three years which commenced on 8 November 2008. It expired on 8 November 2011. 

51.	On 27 September 2011, Mr. Kasper was terminated following allegations of misconduct whilst employed as an employee of the National Capital District Commission (second appellant). 

52.	On 20 February 2012, Mr. Kasper was informed by the Chairman of the National Capital District Commission Staff Appeals Tribunal (NCDC Staff Appeal Tribunal) that his appeal was unsuccessful, and his employment with the second respondent was terminated.
	
53.	On 19 July 2018, Mr. Kasper (first respondent) sought judicial review of the decision of the second respondent in OS (JR) No. 497 of 2018 proceedings (Frederick Kasper v Honk Kiap, Chairman of Staff Appeals Tribunal and National Capital District & The Independent State of Papua New Guinea) where he sought declaratory and certiorari orders seeking reinstatement to his former position of Council Manager, Moresby South Electorate, with salary backdated to 20 February 2012 plus damages and costs. 

54.	His application is supported by a Statement which he filed on 19 July 2018. In paragraph 4 of his statement in support of the notice of motion, he pleaded that he was terminated on 20 February 2012 from his employment as Council Manager, Moresby South Electorate with the Second Respondent.  Further and in addition the relief sought in paragraph 1 of the Originating Summons, OS (JR) No. 497 of 2018, he pleads also that he was terminated from employment on 20 February 2012. 

55.	On 4 September 2018, the National Court dismissed the Judicial Review proceedings, (OS, (JR) No.497 of 2018). 

56.	Mr. Kasper appealed the decision of 4 September 2018, in SCA No. 165 of 2018 – (Frederick Kasper v Honk Kiap, Chairman of Staff Appeals Tribunal and National Capital District & The Independent State of Papua New Guinea). On 17 December 2020, the Supreme Court granted leave to the appellant, quashed the decision of the National Court dated 4 September 2018 and ordered a rehearing of the judicial review proceedings (OS (JR) No.497 of 2018).

57.	In the re-hearing of the (OS (JR) No.497 of 2018); the primary Judge, Miviri J, on 18 August 2021, made the following orders. I reproduce the terms of the Orders below:

“PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]
OS (JR) NO. 497 OF 2018

FREDRICK KASPER 
Plaintiff

HONK KIAP AS CHAIRMAN OF THE STAFF APPEAL TRIBUNAL
First Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

COURT ORDER

THE COURT ORDERS that:

(1)	Judicial review is granted to the plaintiff.

(2)	Certiorari is issued and granted quashing the decision of the First Defendant of the 13 January 2012 terminating him from his employment with the Second Respondent.

(3)	Declaration is issued and granted that the decisions of the First Defendant made 13th January 2012 terminating him from his employment with the Second Respondent is null and void and of no effect.

(4)	The Plaintiff shall be reinstated to his former position of Deputy Works Manager before termination, or Alternatively to a similar post with all salary and other emoluments to be backdated to 13th January 2012 and paid forthwith.

(5)	Damages are awarded to the Plaintiff pursuant to Order 16 Rule 7 of the National Court Rules to be assessed.

(6)	The defendants shall pay the costs of and incidental to these proceedings to be taxed if not agreed.
Signed
-------------------
IAN AUGEREA
REGISTRAR
ORDERED 6th day of August 2021.
ENTERED 25th day of August 2021”. 

Grounds of review

58.	Twelve (12) grounds of review were raised by the appellants. These are reproduced as follows:

Ground 1

It is clear from the Court documents before the Learned Judge, that he erred in both in fact and in law in granting an order in the nature of certiorari to quash a decision that did not exist from what was pleaded in the claim and adduced into evidence.

Ground 2

It is clear from the Court documents before the Learned Judge, that he erred in both in fact and in law in granting an order in the nature of certiorari to quash a decision that did not exist from what was pleaded in the claim and adduced into evidence.

Ground 3

In granting a relief of reinstatement the Learned Judge failed to adhere to the duty bestowed on him under Order 16 Rules 4 (1) and 4 (2) of the National Court Rules, which required him to consider whether the grant of such relief was in the best interest of good administration and or whether the Defendants would be prejudiced.

Ground 4

In granting a relief of reinstatement the Learned Judge failed to:

(a)	Observe that decision was made more than 9 years and 6 months before the date of judgement.

(b)	Adhere to the duty bestowed on him under Order 16 Rules 4(1) and 4(2) of the National Court Rules, which required him to consider whether the grant of such relief was in the best interest of good administration and or whether the Defendants would be prejudiced.

Ground 5

Sitting as a judicial review Court, it is not the Court’s function to consider the substance of the matter and substitute it with its own decision.  The Court is to consider whether the applicant for judicial review has shown that accepted principles to review an administrative decision have been made out.

Grounds 6, 7 & 8

The Learned Judge erred in considering the substance of the administrative decision before him and substituting it with his own.

The Learned Judge failed to distinguish the body that made the original decision (SDC) and the decision of the appellate body (SAT) within the NCDC.

This crucial error laid to the Learned Judge ultimately making orders that were not supported by the pleadings and the evidence.

Ground 9

Delay in seeking redress in judicial review proceedings will affect the relief that the Court can fairly grant.  There was inordinate and substantial delay that rendered the grant of an order for reinstatement unreasonable and grossly unfair.

Ground 10

There was undisputed evidence that the SAT considered the Respondent’s appeal. Therefore, it was clear that he was afforded natural justice.

Ground 11

In Order 16 Rule 9 (4) of the National Court Rules permitted the Learned Judge to remit the appeal of the 1st Respondent to SAT.  A reasonable exercise of his function, would have been for the Learned Judge to refer the appeal of the 1st Respondent back for re-hearing before another SAT.

Ground 12

It is clear from the Court documents before the Learned Judge, that he erred in both fact and law in granting an order in the nature of certiorari to quash a decision that did not exist from what was pleaded in the claim and adduced into evidence.

The fact that the 1st Respondent’s Contract of Employment was found to have expired on 4 November 2011 by the Learned Judge, it clearly demonstrated that he wrongly exercised his discretion to subsequently order reinstatement of employment by the 1st Respondent.

In granting a relief of reinstatement the Learned Judge failed to:

(a)	observe that decision was made more than 9 years and 6 months before the date of judgement.

(b)	adhere to the duty bestowed on him under Order 16 Rules 4 (1) and 4 (2) of the National Court Rules, which required him to consider whether grant of such relief was in the best interest of good administration and or whether the Defendants would be prejudiced.

Issue for determination

So, the issue for determination here is, whether on the face of the record of the judgment, there may be indicated apparent error of fact or law?

Preliminary assessment of the evidence

59.	To determine this, I will consider the material (affidavits) relied upon by the parties and submissions made by both counsels to come to some determination.

For the appellant

60.	The appellants relied on the affidavit of Gabi Lega sworn on 18th June 2021. In his affidavit, he deposed that he is the Manager, Human Resources and that the procedure leading to the termination of Mr. Kasper was made with the initial charges being made on 4 May 2011 (Annexure “B”), he was served on 10th May 2011. 

61.	On 11 May 2011, Mr. Kasper responded to the charges and his respond is referred to and marked as Annexure “C” of his affidavit. 

62.	On July 2011, additional charges were laid against Mr. Kasper (Annexure “D”) and these were served on 5 July 2011 (Annexure “E”). 

63.	Mr. Kasper responded to the additional charges on 6 July 2011, (Annexure “F”). 

64.	On 27 September 2011, the Staff Disciplinary Committee sat and deliberated on the charges and a decision was taken by the Committee to terminate his employment, (Annexure “G”).

65.	On 20 February 2012, the first appellant informed Mr. Kasper that his employment with the second appellant is terminated (Annexure “H”).

66.	On 14 August 2012, Mr. Kasper lodged an appeal against the decision of the Staff Disciplinary Committee (Annexure “I”). 

67.	On 24th August 2012, the Staff Appeals Tribunal in its determination of the appeal endorsed the decision of the Staff Disciplinary Committee made on 27 September 2011 to dismiss Mr. Kasper (Annexure “J”).

68.	Mr. Lega also deposed that Mr. Kasper was employed under a contract of employment and as part of his contract, he signed a Code of Ethics statement (Annexure “K”).  He deposed further that staff charged under the NCDCSDC are not usually called to attend the SDC or SAT meetings as they have provided their written responses to charges which are considered sufficient. 

69.	The employment is for a term of 3 years. The employment contract commenced on 4 November 2008. It expired on 4 November 2011. 

For the respondent

70.	Mr. Kasper relied on his own affidavit of 19th July 2018, in which he deposed to details of his employment including his qualification, in Civil Engineering and his employment history from being a general labourer to a civil engineer, Council Manager, Moresby South Electorate on or around 04th November 2005. At the time of his termination he was on a three-year contract position with the National Capital District Commission. The contract commenced on 04th November 2008 and expired on 04th November 2011, copy of the contract is referred and marked as Annexure “B” of his affidavit. 

71.	Furthermore, Mr. Kasper deposed to the particulars of his charges which are set out at annexure “D” of his affidavit. He states that the charges ranged from “his careless discharge of duties includes particulars of missing properties from the Store house that he held the keys to, and which were not accounted for” and for disgraceful conduct was in relation to his assault upon the Bowser attendant over fuel” which was served personally on him on 10 May 2011, and he replied to the charges on 11 May 2011 (Annexure “E” and “F” respectively. 

72.	On 4 July 2011, (Annexure “G”) an additional Charges of negligent and careless discharge of duties and this was in relation to the engagement of Hornbill Construction Company. The charge is dated 04th July 2011. He was required to respond to it within 7 days upon receipt. Annexure “H” is his response to the charges handwritten. Annexure “I” is his appeal to the Staff Appeals Tribunal after he was found guilty by the SDC. Annexure “J” is the dismissal of his appeal. Confirmation of the decision of the SDC dated the 28th January 2013.

73.	Mr. Kasper deposed that he was informed of his termination on 20th February 2012. Particulars of which are set out in annexure “C” to his affidavit. The charges are that: “he wilfully disobeyed or disregarded a lawful order made or given; Negligent or careless in the discharge of your duties; guilty of disgraceful conduct or misconduct in your official capacity as otherwise which charges were sustained by resolution No. SDC05-04-2011 by the Staff /disciplinary Committee” Due to that fact, he was effectively terminated and that he should see the payroll manager for his final settlement. It was signed by Leslie Alu the City Manager”.  Under Part 3 Division C of the Staff Disciplinary Code sub section 5 (b) he was given two days within which to appeal to the Staff Appeals Tribunal constituted under Part 4 of the Code.

74.	On 28 January 2013, the respondent was advised by the first appellant that his appeal against termination was unsuccessful. A copy of the advice is referred to and marked as Annexure “J” in the affidavit of Frederick Kasper sworn on or about 19 July 2018.

75.	On 9 July 2018, the respondent, (then applicant) filed proceedings (OS (JR) 497 of 2018, seeking a judicial review of the first and second appellants (then respondents) seeking a number of orders including by way of declaration:

(i)	that the decision of the (National Capital District) Staff Disciplinary Committee made on 20 February 2012 terminating the applicant (then) from employment were wrongful, null and void and: 

(ii)	seeking orders in the nature of certiorari quashing the said decisions made on 20 February 2012 and 24 August 2012 respectively: and 

(iii)	reinstatement to his former position including an order for damages and costs including out of pockets expenses.

76.	Relevantly, Mr. Kasper was on a contract of employment for a term of 3 years which commenced on 4 November 2008. The contract of employment expired on 4 November 2011. He was employed as the Council Manager, Moresby South Electorate. He was terminated on 27 September 2011 for cause.

Judicial Review Proceedings

77.	Order 16 Rule 3 (2) allows Mr. Kasper to bring his proceedings before the Court to seek leave for judicial review which provides the basis for the Court to exercise its inherent power under s. 155 (4) of the Constitution to grant the interim relief sought, such as a stay or an injunction, before grant of leave: Innovent Ltd -v- Patrick Pruaitch (2014) N5949. These are discretionary remedies, which the Court in the exercise of its unfettered inherent discretionary power and unlimited jurisdiction can grant: Application by Joseph Kintau (2011) SC1154 and Willie Kili Goya v. The State [1991] PNGLR 170. The inherent power of the Court is derived from the people (s. 158 (1) of the Constitution): Dr. Rose Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Thus, the exercise of that power by the Court to protect the primary rights of parties cannot be limited even by a statute: Monomb Yamba v. Maits Geru (also known as Mas Geru) [1975] PNGLR 322; Johnny Pokaya Philp v. James Marape (2013) N5276; Avia Aihi v. The State (No.1) [1981] PNGLR 81 and Application by Jeffery Balakau [1998] PNGLR 437. 

78.	Further, the Statement in Support is a vital part of a judicial review application wherein the matters required under Order 16 r 3 (2) (a) should be strictly and clearly pleaded. These include particulars of the applicant, including the position which the applicant held at the time of the decision, the nature of the decision to be reviewed, the particulars of the decision maker and the date of the decision. The relief sought and the grounds for review should also be clearly pleaded: Paul Asakusa v. Andrew Kumbakor (2008) N3303.

Appeal grounds

79.	Twelve grounds of appeal are raised but I consider that from all these grounds, only two grounds of appeal are raised:

(i)	The first ground relates to the error on the face of the record of the judgment in terms of the “termination date” of 13 January 2012 and an order for reinstatement to former position of Deputy Works Manager with back dated salary and emoluments to 13 January 2012 with damages and costs; and

(ii)	The second ground relates to the primary judge’s exercise of discretion in granting the orders.

80.	I now deal with these two grounds of appeal.

Whether on the face of the record of the judgment, there may be indicated apparent error of fact or law?

81.	From the preliminary assessment of the evidence, I find that the affidavit in support of the notice of motion in the judicial proceedings, filed on 19 July 2018, (paragraph 4), Mr. Kasper pleads 20 February 2012 as the date of termination of his employment with the National Capital District Commission (Second Respondent).

82.	This is contrary to the decision delivered in OS (JR) 497 of 2018, where the trial judge in his judgment delivered on 18 August 2021, did make an order intimating that the date of termination is 13 January 2012.  Further and in addition, the trial judge went on in his judgment delivered on 18 August 2021 to make an order intimating that the position to which the first respondent was reinstated to, is the position of Deputy Works Manager… and with salaries and emoluments back dated to 13 January 2012.

83.	Apparently, several anomalies are discovered:

•	Firstly, the date of termination as pleaded in the Originating Summons and Statement in Support is 20 February 2012.

•	Secondly, the position that Mr. Kasper held prior to his termination as pleaded in the Originating Summons is Council Manager, Moresby South Electorate.

•	Thirdly, he sought reinstatement with salary backdated to 20 February 2012. 

84.	These dates, events and or occurrences do have an impact on the validity of the proceedings. This is because, the first respondent did not plead 13 January 2012 as the necessary facts giving rise to the actions or the nexus or connection within which these actions or omissions were committed. Hence, the issue of establishing a nexus or connection to the claim or entitlement comes into play.  In Jack Pinda v Sam Inguba (2012) SC1181, the Supreme Court held that the lack of pleading is a point of law and must be founded on a proper pleading of a cause of action in law ...” Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750. 

85.	In the case of Paul Asakusa v Andrew Kumbakor (2008) N3303, his Honour Injia CJ (then) stated (para 17) … Judicial review is a restrictive process: Thomas Kamo v Commissioner of Police (2001) N2084. It is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances: Tiga Nalu v Commissioner of Police (1999) N1972. His Honour Injia CJ (then) stated:

“At the outset let me say that the grounds of review purporting to challenge the finding of guilt as they are pleaded are vaguely worded and not sufficiently particularised, to demonstrate the error on the face of the record, Judicial review is a discretionary remedy which is exercised in favour of an applicant on proper cause being shown. The exercise of the judicial discretion is governed by the established principles, some of the pertinent ones being reflected in Order 16. It is not open forum for disgruntled plaintiff and/or their lawyers to stage an all-out attack on the day of the review hearing on every conceivable error extracted from a post-mortem examination of the disciplinary records provided by the disciplinary authority”. 

Arguable case

86.	Upon my preliminary assessment about whether the appellants have an arguable case on the proposed appeal, I have reviewed the transcript of the proceedings and I note that the main point in relation to the primary judge’s view is expressed in the legal status of the first respondent’s case in terms of the judicial review application is in terms 2, 3 and 4 of the Orders made on 18 August 2021 in (OS (JR) No. 497 of 2018 in Frederick Kasper v Honk Kiap, National Capital District and Anor). The terms of the Orders are set out below: 

“(i)	Judicial review is granted to the plaintiff.

(ii)	 Certiorari is issued and granted quashing the decision of the First Defendant of the 13 January 2012 terminating him from his employment with the Second Respondent.

(iii)	Declaration is issued and granted that the decisions of the First Defendant made 13th January 2012 terminating him from his employment with the Second Respondent is null and void and of no effect. 

(iv)	The Plaintiff shall be reinstated to his former position of Deputy Works Manager before termination, or Alternatively to a similar post with all salary and other emoluments to be backdated to 13th January 2012 and paid forthwith.

(v)	…

(vi)	…” 

87.	Here, the orders of 18 August 2012 are a conclusive determination reached by the trial judge on the application for judicial review itself. In that, the Court has expressed an opinion on a settled legal position on a point of contention: Richard Wapua v Poss Lopkopa & 4 Ors (2009) SC1048.  It is an assessment of a party’s case on a disputed interpretation of a statutory provision or assessment of material fact before the Court upon which the Court has reached a conclusion:  It is a ruling that favours the first respondent.

88.	In this present case, the primary judge did not explain to the parties why he decided to make a ruling for reinstatement of the first respondent with backdated salary and emoluments to 13 January 2012 and to his former position as Deputy Works Manager. All these are contrary to the pleadings and material adduced during the trial of the matter. The pleadings in the Statement in Support of the application and the relief sought in the Originating Summons (OS (JR) No. 497 of 2018) did plead 20 February 2012 as the date of the decision to terminate employment of the first respondent as Council Manager, Moresby South Electorate with the Second Appellant. Further it also pleaded reinstatement and backdated salary to 20 February 2012 including damages and costs.

89.	So given this scenario, there are discrepancies apparent which appear on terms (2), (3) and (4) of the Court orders made on 18 August 2021. Hence, on the face of the record of the judgment there may be indicated apparent error of fact and law.

90.	I would allow this ground of appeal. 

91.	I now consider the primary court’s exercise of discretion.

92.	The Court in its discretion under s 154 (2) of the Constitution in dispensing with the requirements in appropriate cases where in the interests of justice to correct that error subject to wide judicial discretion. 

93.	The appellants contend also, that the application is made outside of the four-month period and the delay is not limited to the four-month period under Order 16 Rule 4 (2) only. This is because under Order 16 Rule 4 (1) of the Rules, it requires the Court to consider the delay generally; taking into account all the relevant circumstances. Under this sub-rule the Court may refuse to grant a relief sought, including an order for certiorari, if the Court is of the opinion that because of the undue delay in making the application, the grant of the relief sought would:

(i)	“be likely to cause substantial hardship; or
(ii)	substantially prejudice the rights of any person; or
(iii)	be detrimental to good administration”. 

94.	In this case, Mr. Kasper was a contract employee. He entered into a contract of employment for the position as Council Manager, Moresby South Electorate. The contract commenced on 4 November 2008. It expired on 4 November 2011. 

95.	Further, Mr. Kasper was not employed as the Deputy Works Manager as ordered by the primary judge as on the face of the record of the judgment, there is an indicated apparent error of law or fact. This is because at the date of the order for the reinstatement (18 August 2021) of the first respondent, it is obvious that the position during this period would be likely filled by some else and duties performed by others and or was non-existent. The position may not be available. 

96.	Further and in addition, even if the order for reinstatement was proper, this would likely cause substantial hardship; or substantially prejudice the rights of any person who has since been appointed to the position. Hence, reinstatement would be detrimental to good administration. If anything, it is arguable that damages maybe an adequate remedy. 

97.	In Avia Ahihi v The State (No. 1) [1981] PNGLR 81 at 107, the full Court said, “the interest of justice” means “justice according to law.” The judicial discretion must be exercised properly and judicially when it comes to determining the interest of justice: per Gavara-Nanu in Bakani v Dipo (2001) SC 659. The Court must “having regard to the primary relief claimed, the nature of the persons and bodies against whom relief may be granted by way of such an order and all the circumstances of the case, it would be appropriate, just and convenient for the injunction to be granted on an application ...”: Isaac Lupari v Sir Michael Somare (2008) N3476.

98.	Established principles exist which will determine whether this Court should disturb the primary judge’s exercise of discretion. In exercising its supervisory power, the Court decides to disturb the primary judge’s exercise of discretion, it must be done with great caution and only if the primary judge was clearly and manifestly wrong. In Alina Sarah Bean v. Ian Maxwell Bean [1980] PNGLR 307; SC187, in the statement of Andrew J, when adopting what was said in Gronow v. Gronow (1979) 54 A.L.J.R 243 to elaborate the principles said:

“In the absence of an error of law or mistake of fact, the exercise by the trial judge of discretion in the award of custody ought not to be disturbed by reason of the particular weight attached by the trial judge to considerations arising out of the evidence in the trial and referable, inter alia, to the character and demeanour of the parties or witnesses. The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight. It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. See per Stephen J. in Gronow v. Gronow (1979) 54 A.L.J.R. 243.13”.

Then the Court per Kapi J (as he then was) in adopting a passage from the decision of the High Court of Australia in House v. King [1936}55 C.L.R 499, further said:

“On matters of judicial discretion, the High Court of Australia in House v. The King 55 C.L.R. 499 at pp. 504-5 said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if 	upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

“These principles have been recently approved in the case of Gronow v. Gronow (1979) 54 A.L.J.R. 243.21. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea Unreported judgment No. SC178, 29th August, 1980.22. All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea”.

99.	The same principles were reiterated in Isaac Lupari v. Sir Michael Somare, MP (2010) SC1130. The Court said:  

“It is clear from the authorities that the grant of a mandatory injunction or reinstatement is discretionary following the grant of certiorari. The question is whether the trial judge exercised his discretion properly in refusing reinstatement. This Court has set out the principles upon which the exercise of discretion may be disturbed. An appellate court may overturn a discretionary judgment if there was some error. An error exists when, for instance, the primary judge acts upon a wrong principle, or allows extraneous or irrelevant matters to guide or affect him or fails to take into account some material consideration: Bean v. Bean [1980] PNGLR 30. The fact that an appellate court would have arrived at a different conclusion, is no basis for a reversal of the decision. There must be an error of law or mistake of fact… 

100.	These are time-honoured principles which have been followed in many earlier cases, they are now embodied as part of our underlying law.  In Pabe Uwi v. Ehau [1965-66] PNGLR 404, for example, Ollerenshaw J, adopted the principles enunciated in House v. King (supra). In Pabe Uwi, the court was discussing exercise of sentencing discretion in a criminal case by a trial judge, but the principles have universal application in all cases where exercise of judicial discretion by a primary court is challenged on appeal.

101.	A significant effect of this procedure is, if at the substantive judicial review, the materials provided by the parties, including affidavits filed by the defendants, alter the initial prima facie view favouring the grant of leave, the substantive relief may be refused. In Inland Revenue Commissioners, Lord Diplock in elaborating this process said: 
	
“The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself. The former, or "threshold" stage is regulated by rule 3. The application for leave to apply for judicial review is made initially ex parte but may be adjourned for the persons or bodies against whom relief is sought to be represented...Rule 3 (5) specifically requires the court to consider at this stage whether "it considers that the applicant has a sufficient interest in the matter to which the application relates". So, this is a "threshold" question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself”. (My underlining).   

102.	Having regard to the principles discussed above, the Court can only disturb the primary court’s exercise of discretion in granting leave to the first respondents if the exercise of discretion was improper and not made judicially. 

103.	According to the established principles, the primary court's exercise of discretion would have been improper and wrong if it made mistakes as to facts, or acted on wrong principles, or took into account matters which it should not have taken into account or did not take into account matters which it should have taken into account or over emphasized on matters before it. 

104.	Consequently, the threshold question is – Did the primary judge err in exercising his judicial discretion in favour of the first respondent in granting orders for certiorari for reinstatement to his former position of Deputy Works Manager including backpay of salary to 13 January 2012 and damages to be assessed plus costs? 

Overall interest of justice

105.	Here, the primary judge, upon upholding a judicial review application, has the discretion to grant a remedy and if it decides to grant a remedy, the type of remedy.

Review of exercise of discretion by primary judge

106.	In reviewing the exercise of discretion by the primary judge, this Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. I reproduce the following passage from that decision: 

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred.  These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

107.	This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977 and Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016. 

108.	Notwithstanding that the above cases concern appeals from the exercise of judicial discretion under Rules of Court, the principles are equally applicable to a review by this Court of the exercise of judicial discretion by the primary judge in this instance. 

Reliance on improper evidence

109.	The appellant submits that the trial judge erred in both fact and law in granting an order in the nature of certiorari to quash a decision that did not exist. The affidavit of Mr. Kasper did not contain a claim for termination of employment on 13 January 2012. There is no evidence in the affidavits of Mr. Kasper for termination of employment on 13 January 2012. 

110.	Further, delay was not an issue raised before the primary judge as leave had already been granted by this Court in SCA No. 165 of 2018 (Fredrick Kasper v Honk Kiap as Chairman of the Staff Appeal Tribunal, National Capital District Commission & The Independent State of Papua New Guinea) on 17 December 2020.

111.	The appellant argue that the issue of delay is a live issue and that whilst there were reasonable explanations for any delay.  See, Tau Gumu v. Papua New Guinea Banking Corporation Limited (2002) N2251 and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (supra), the issue of delay can still be raised at the trial when all the evidence is before the Court. 

Appeal against exercise of discretion.

112.	The power of the National Court to grant or refuse leave for judicial review is a discretionary one to be exercised judicially; NTN v Board of the Post and Telecommunication Corp [1987] PNGLR 70. On appeal against the exercise of a discretionary power, an appellate court will only disturb the lower court’s decision only if that court made the following errors:

(a)	it acted upon a wrong principle, or
(b)	it considered extraneous or irrelevant matters, or
(c)	it did not take into account relevant considerations; or  
(d)	it misapprehended the facts.

Bean v Bean [1980] PNGLR 307; Telikom PNG Limited v ICCC (2008) SC906 and a matter which this Court can in its review powers, interfere with given this issue. 

113.	Whilst noting that an appellate court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, we are of the view that in this situation, it is an exception which this Court can remedy particularly where the exercise of that discretion is clearly wrong in terms of the date of 20 February 2012 being pleaded the date of termination of employment of Mr. Kasper and any ancillary orders thereafter suffers the same consequences. The orders as it stands, are defective in nature and ought to be revisited. 

114.	In this case, it is apparent that the orders of 18 August 2021 are clearly not reflective of the terms of the reliefs sought in the originating summons (OS (JR) No. 497 of 2018) by Mr. Kasper. This is a matter which this Court is obliged to correct and, in this regard, in the exercise of its inherent powers under s 155 (2) (b) of the Constitution, the terms of the orders made by the primary judge in his decision of 18 August 2021 which we bring before this Court and quash: See Inland Revenue Commissioners v. Ross, Re Blaelnech Distilling Co. [1948] 1 All E.R. 616 it was held that courts are not entitled to interfere with the exercise of a discretionary power unless either (a) the exercise of the discretion has not complied with the conditions provided by the statute for the exercise of the discretionary power, or (b) the power has not been exercised judicially: per Lord Thankerton at p. 629.

115.	In arriving at this finding, and the fact that an error both in fact and law has occurred in the trial judge granting an order made on 18 August 2021 in the nature of certiorari to quash a decision that did not exist. The decision of 18 August 2021 was made in a void. It did not conform to the pleadings contained in the proceeding or the evidence adduced in the statement made in support of the relief sought in the proceedings. 

116.	DOWA J:  I had the benefit of reading the draft decisions of their honours, Kandakasi DCJ and Polume-Kiele J. I agree with the conclusions reached that the appeal should be upheld, and the decision of the trial judge quashed for the reasons given by their honours. I also concur with his honour Kandakasi DCJ that the entire National Court proceeding, OS(JR) No. 497 of 2018 (judicial review proceedings) be dismissed with costs to the Appellants. 

117.	I will only add this. By virtue of section 6 of the Supreme Court Act, this Court has the jurisdiction not only to review the decision of the lower court but also to exercise the powers of the National Court when determining this appeal. The appeal arises out of a decision made in a judicial review application under Order 16 of the National Court Rules. The law on judicial review is settled. The question of whether the Appellant’s decision ought to be quashed by way of judicial review of certiorari for non-compliance of procedures, breach of natural justice or errors of law is discretionary. See:  Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, Mao Zeming v Hinchiffe (2006) N2998, Tau Mavaru Kamuta v David Sode (2006) N3067.  Sabako v Commissioner for Police (2006) N2975, and Ombudsman Commission v Yama (2004) SC 747.

118.	  In Kekedo v Burns Philip the Supreme Court stated that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

119.	In the present case, the trial Judge found that the Staff Appeals Tribunal, the second Appellant, committed a breach of natural justice by failing to allow the first Respondent or his lawyer to appear before the Tribunal to present his appeal as prescribed by section 10 Part 4 of the National Capital District Staff Disciplinary Code. The Appellants main contention is that despite finding procedural errors in the disciplinary process, the Appellants decision was not unreasonable, and the trial judge erred in granting reliefs that was caused substantial hardship and detrimental to good administration of the first Appellant.

120.	Was the trial judge’s decision to reinstate the first Respondent to his former job a proper exercise of discretion for a procedural flaw in its disciplinary process. In my view, a proper exercise of discretion should involve consideration of all facts, arguments and reasons presented by the parties and the weighing of those considerations to determine if the Tribunal’s decision caused some real injustice.

121.	Page 12 of the National Court decision by Injia DCJ (as he then was) in Mao Zeming v Hincliffe(supra) is apposite to the issue of exercise of discretion: 

“At the same time, the question of whether the tribunals decision ought to be quashed by way of judicial review of certiorari for this fundamental breach of procedure is discretionary. This discretion is exercised with caution and in appropriate cases, taking into account the sum effect of all relevant considerations. In relation to application for judicial review of decisions of leadership tribunals on grounds of breach of prescribed procedure designed to afford natural justice to parties, the decision should not be readily quashed unless the procedural manner in which the entire proceedings were conducted by the tribunal resulted in some real and substantive injustice caused to the Plaintiff in terms of denying natural justice.”

122.	In the present case, there is uncontroverted proof that the first Respondents contract of employment expired on 4th November 2011. The decision to terminate the first Respondent was communicated to him on 20th February 2012, three months after expiry of his contract of employment. By then the first Respondent had no subsisting position to be reinstated to let alone whether he had standing to seek review in the first place.  Besides, there was undue delay on the part of the first Respondent filing these proceedings. The last of the administrative decision was made on 24th August 2012 and the review proceedings were filed in July 2018, about six years later. Considering the lapse of time and the history of employment relationship between the parties, it is not just to grant the relief of reinstatement sought by the first Respondent as it would be likely to cause substantial hardship or would be detrimental to good administration of the second Respondent. 

123.	The first Appellants’ Staff Disciplinary Committee reached a decision which was upheld by the Appeals Tribunal. The minimum requirements of the disciplinary process were followed, and a decision was reached. There is no clear evidence that the decision reached is so unreasonable and absurd and one which no reasonable decision-maker could have made in the circumstances for it to be reviewed and quashed.

124.	For these reasons, I will uphold the appeal, quash the decision of the lower court, and dismiss the judicial review proceedings.

Decision of the Court

125.	For the foregoing reasons the final decision and orders of the Court are: 

1.	The appeal is allowed.
2.	The decision made on 18 August 2021, by Miviri J in OS (JR) No. 497 of 2018 is brought into this court and quashed.
3.	The proceeding under OS (JR) No. 497 of 2018, is dismissed. 
4.	Costs of this appeal and the related National Court proceeding are awarded to the Appellants to be taxed, if not agreed.

________________________________________________________________
Kopunye Lawyers: Lawyer for First and Second Appellants
Fredrick Kasper:  Respondent In Person