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Supreme Court of Papua New Guinea |
PRIVATE LAW AND PUBLIC LAW – WHETHER JUDICIAL REVIEW IS AVAILABLE IN CHALLENGE TO REVOCATION OF APPOINTMENT AS PROVINCIAL ADMINISTRATION
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCM NO 12 OF 2024 (IECMS)
MICHAEL BAL TEMAI
Appellant
V
HON NOAH COOL in his capacity as Governor for Simbu Province and Chairman of the Provincial Executive Committee
First Respondent
HON. JAMES MARAPE in his capacity as Chairman of the National Executive Council; for and on behalf of the National Executive Council
Second Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
SEBASTIAN KEE in his capacity as Acting Administrator for Simbu Province
Fourth Respondent
JOHN PUNDE in his capacity as Administrator for Simbu Province
Fifth Respondent
WAIGANI: KARIKO J, ANIS J, COATES J
24 JUNE, 3 OCTOBER 2025
JUDICIAL REVIEW APPEAL – Challenge to revocation of appointment as Simbu Provincial Administrator –judicial review appeal – Order 10 Rule 1(1)(a) – Supreme Court Rules - whether trial judge erred in considering standing which had been considered in favour of the appellant at the leave stage – whether public or private law was available to the appellant to pursue in relation to his employment contract - whether lack of naming correct party or the name of the decision maker was fatal to the judicial review proceeding – whether the appeal should be upheld and relief granted
Facts
The appellant challenged his termination as Provincial Administrator of Simbu Province in a judicial review proceeding in the National Court. Leave to apply for judicial review was granted and the substantive judicial review application was heard. The appellant argued in the court below that his termination was unreasonable and also that he was denied his right to natural justice. The respondents denied the claim. They also raised preliminary issues, namely, that the appellant lacked standing because his employment contract had expired before he commenced the judicial review proceeding. They also argued that the judicial review application was substantially or fatally flawed because the appellant had failed to name the legal person that terminated him whose decision was the subject of the review. The judicial review Court upheld the submissions of the respondents and dismissed the judicial review application.
The appellant was aggrieved and filed this appeal. The main grounds of appeal were that (i) the trial Court erred in law by considering the issue of standing which had been raised and determined in his favour at the leave stage, (ii), the trial Court erred in law in finding that he had no standing given that his four (4) year employment contract had ended before he commenced the judicial review proceeding, (iii), and trial Court erred in law when it found that the error in not naming the party whose decision was challenged was fatal to the judicial review proceeding.
Held:
1. The prerequisites for granting leave to apply for judicial review including standing may be raised at the hearing proper in an application for judicial review.
Cases followed: Wilson Mavoko v. Israel Kumbu and 3 Ors (2022) SC2308, Pora v. Leadership Tribunal [1997] PNGLR 1, Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Ken Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and Ors (2007) SC886, Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734 and Mack Saviak v. Michael Elias and 3 Ors (2024) N11301.
2. In a judicial review proceeding, when the National Court determines that private law shall apply on a matter that is before it, all other issues including standing become irrelevant or inconsequential and the Court shall cease its jurisdiction on the matter.
3. Having standing to bring a matter before a court depends on various factors and may change as facts change.
4. The name of proper parties is fundamental to legal proceedings, as are the crafting of draft orders which can be made.
5. No errors were committed by the trial Judge as alleged.
6. The appeal is dismissed with costs.
Cases cited
Green Wood (PNG) Ltd v Pulie Anu Timber Company Ltd (2023) SC2361
Honk Kiap v National Capital District Commission and Frederick Kasper and Independent State of Papua New Guinea (2023) SC2435
Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Ken Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and Ors (2007) SC886
Lupari v Somare (2008) N3476
Mack Saviak v. Michael Elias and 3 Ors (2024) N11301
Michael Bal Temai v. Hon. Noah Kool and 4 Ors (2024) N10667
Pora v. Leadership Tribunal [1997] PNGLR 1
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu (1994) SC459
Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734
Wilson Mavoko v. Israel Kumbu and 3 Ors (2022) SC2308
Counsel
T S McGregor, for the appellant
C M Gagma, for the first & fifth respondents
P Yom, for the second & third respondents
No appearances by the fourth respondent
1. KARIKO J: I have had the benefit of reading the draft opinions of my brothers. I agree with their reasoning and conclusions and have nothing relevant to add. I also agree with the orders proposed by Anis, J.
2. ANIS J: This is a judicial review appeal. It was filed under Order 10 of the Supreme Court Rules (SCR). The appellant was aggrieved by a final decision of a judicial review judge of the National Court (trial Judge) made on 20 February 2024, in proceeding OS (JR) No. 118 of 2023 – Michael Bal Temai v. Hon. Noah Kool and 2 Ors (OS 118 of 23). The appellant applied for judicial review therein where he challenged the decision of the respondents, in particular, the National Executive Council (NEC), for terminating his Contract of Employment (Employment Contract). Before his termination, the appellant was employed as Provincial Administrator of Simbu Province. His Employment Contract was signed on 2 April 2019. It had a 4-year tenure from 30 October 2018 to 30 October 2022.
3. On 30 April 2021, the appellant was suspended from employment. The appellant challenged his suspension by judicial review in OS (JR) 59 of 2021 – Michael Bal Temai v. James Marape and Ors (OS 59 of 2021). On 1 November 2021, the National Court upheld the appellant’s judicial review application and restored him to his position as Simbu Provincial Administrator. The respondents appealed the decision in OS 59 of 2021 to the Supreme Court in proceeding SCM No. 63 of 2021 – Michael Dua and Ors v. Michael Bal Temai and Ors (SCM 63 of 2021). The Supreme Court granted a stay in favour of the respondents (who were appellants in SCM 63) pending its final decision. Whilst the stay was in place and the decision to suspend the appellant was sub-judice or pending, on 1 June 2022, the NEC revoked or terminated the appellant’s Employment Contract. The appellant then filed OS 188 of 2023.
4. SCM 63 of 2021 was later heard where the Supreme Court dismissed the appeal and affirmed the decision of the National Court in OS 59 of 2021. What that meant was that the appellant’s suspension was nullified and the appellant was restored to his position as Simbu Provincial Administrator. However, by that time, the appellant had been terminated from his post, and he was already in Court challenging his termination, that is, in OS 118 of 2023.
5. OS 118 of 2023 proceeded to a full hearing after the grant of leave. On 20 February 2024, the trial Judge dismissed the appellant’s judicial review application. A transcript of the decision is contained at [820] of the Appeal Book (AB) - Volume 3. The decision was later published as an unreported judgment, that is, Michael Bal Temai v. Hon. Noah Kool and 4 Ors (2024) N10667.
GROUNDS OF APPEAL
6. The grounds of appeal are contained at [6] of the AB. The appellant pleads 6 grounds in total, and I summarise them as follows:
(i) Grounds 1, 2 and 3
These grounds are related, and they address the issue of standing or locus standi. First, the appellant alleges that the trial Judged erred in law when he found that the appellant lost his standing when the 4-year tenure of his Employment Contract ended. Secondly, he alleges that the issue of standing was res judicata because it had been raised and determined at the leave stage. The appellant also alleges that the respondents did not take standing as an issue beforehand or prior the judicial review hearing, thus, they should never have been allowed to raise that before the judicial review Court. Thirdly, the appellant alleges that the trial Judge erred in law when he took into account the fact that the Employment Contract had expired. The appellant alleges that judicial review is concerned with the decision-making process which was what he was challenging which had nothing to do with the fact that his Employment Contract had expired before he commenced OS 188 of 2023.
(ii) Ground 4
The appellant alleges the trial Judge erred in law when His Honour ruled that he had used an incorrect mode of proceeding. The trial Judge had ruled that the correct mode should be a claim in damages for breach of contract; that the appellant’s claim was in private law rather than public law. The appellant alleges that judicial review was available to him to review a decision of a public body.
(iii) Ground 5
The appellant alleges that the trial Judge erred when he ruled that OS 118 of 2023 was defective because the appellant did not name the decision makers whose decision he was challenging. The appellant alleges that (i), the respondents did not raise the issue earlier until at the hearing, (ii), the respondents would not be prejudiced with the defects, and (iii), the defects were minor errors. As such, the appellant alleges the trial Judge erred when he found lack of naming of the decision makers as a basis to also dismiss OS 118 of 2023.
(iv) Ground 6
The ground is general and does not appeal against or challenge any findings that were made by the trial Judge.
The appellant alleges the trial Judge erred when he failed to proceed to consider and deliberate on the merit of his judicial review application, which was, whether the NEC had followed due process when it properly revoked his Employment Contract.
7. Ground 6, in my view, is obviously frivolous, and so I dismiss it at the outset. It does not constitute a ground of appeal. It appears as a submission or contention. The ground is also, in my view, erroneous and misconceived. The reason why His Honour did not proceed to consider and deliberate on the merit of the judicial review application was because of the fact His Honour had upheld the preliminary issues that were raised by the respondents, which meant that the case had to end there.
ISSUES
8. The main issues, in my view, are, (i), whether the trial Judge was correct in re-visiting the issue of locus standi or standing as a preliminary matter, (ii), if so, whether the trial Judge erred when he ruled that the appellant lacked standing because his Employment Contract expired before he commenced OS 118 of 2023, (iii), whether the appellant had invoked the correct mode of proceeding when he commenced OS 118 of 2023, which will lead to the question of whether the appellant’s case concerned application of public or private law, and (iv), whether the trial Judge was correct in considering and making findings on the defects concerning naming of parties and, if so, whether the defects were substantive to an extent that His Honour was correct in using it as a further ground or reason to dismiss the judicial review application.
STANDING
9. In regard to the first issue, that is, whether standing may be revisited at a hearing of a judicial review application, the case law is settled on this point which is in the affirmative. See cases: Wilson Mavoko v. Israel Kumbu and 3 Ors (2022) SC2308, Pora v. Leadership Tribunal [1997] PNGLR 1, Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Ken Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and Ors (2007) SC886, Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734 and Mack Saviak v. Michael Elias and 3 Ors (2024) N11301.
10. In Paul Pora v. Leadership Tribunal (supra), Kapi DCJ stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644 as follows:
“If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.” [Underlining mine]
11. The passage was adopted by this Court in Ila Geno & Ors v The Independent State of Papua New Guinea (supra).
12. This Court in Ken Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and Ors (supra) also stated at [45] and [46]:
“45. We do not consider that this ground can succeed. It is well settled that, apart from the grant of leave itself, nothing is finally determined on the application for leave. All issues are open and only finally determined on the substantive hearing of the judicial review.
"On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O16 rr2,3 and 5. The application, of course, is ex parte and the Court does not have any other material contesting the application. The Court is not required to address the matter specified in O16 r1(2). These are matters for consideration by the Court hearing the substantive application". Ombudsman Commission v Donohue [1985] PNGLR 348 at 361 Amet J. [Underlining mine]
46. Even questions concerning standing to apply for judicial review, which must be decided in a preliminary way on the application for leave, are not finally decided until the substantive hearing. It is preferable to lean towards recognizing the standing of the applicant on the application for leave and to let the issue be finally determined on the substantive hearing, except in cases where it is very clear that the applicant does not have standing: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378 at 642-644.” [Underlining mine]
13. And finally, and for this purpose, in Wilson Mavoko v. Israel Kumbu and 3 Ors (supra), this Court held as follows:
The grant of leave to bring judicial review proceedings is a preliminary step in those proceedings. It is not conclusive of a party’s standing to seek judicial review. There is no barrier to a Court examining questions of standing at a later date despite leave having been granted. The Appellant lacked standing to seek judicial review as he was never the registered owner of the relevant land: Pipoi v Seravo, National Minister for Lands [2008] SC909.
14. Therefore, and in the present matter, the trial Judge did not commit an error when he revisited the issue of standing as a preliminary matter.
MODE OF PROCEEDING
15. I will address issues (ii) and (iii) together.
16. It is not disputed that the appellant’s Employment Contract was signed between himself and the State. The terms and conditions of his employment are contained in his Employment Contract. A copy of the contract is located at pp. 137 of the AB (Vol.1). At the appeal hearing, the Appellant’s counsel conceded with the Court that regardless of the outcome of this matter, the appellant still has his rights under his contract and that it would not stop him from suing the State for breach of contract. Despite that, counsel proceeded and maintained the appellant’s grounds of appeal.
17. Clauses 1, 3, 8, 9 and 13 of the Employment Contract, in my view, are relevant and so I set them out herein as follows:
......
......
......
18. Having carefully considered the Employment Contract as a whole, and in view of the specific clauses as stated above, it is clear to my mind that the Employment Contract is subject to or falls under private law and not public law. The appellant’s cause of action may be to seek damages for breach of contract, but not judicial review.
19. The issue of whether a public servant may commence his or her action for judicial review under public law or sue for damages for breach of contract under private law, was clarified by this Court earlier in the leading case of Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu (1994) SC459. This Court stated the following:
As a general rule judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged.
In R v East Berkshire Health Authority ex part Walsh [1984] EWCA Civ 6; [1984] 3 AER 425 at 429 “The remedy of judicial review is only available where issues of ‘public law’ are involved”.
And in O’Reilly v Mackman [1982] 3 AER 680 per Lord Denning at 693:
“Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty.”
And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935 @ 949:
“For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers.”
Note here the emphasis is on public law. So what is public law as against private law?
Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.
Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.
The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.
In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.
But here before us the respondent was merely challenging his termination, yet neither this court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.
20. The decision continues to remain as good law in this jurisdiction, and I do not see any valid reason to dissent from it. No arguments were also made in that regard by the appellant’s counsel.
21. With these and in summary, I find no error committed by the trial Judge when His Honour stated at [112] of the transcript of proceedings, line 10 (at pp. 855 AB (Vol.3) that, “these proceedings also ought to be dismissed for the reason that judicial review is really not available to the plaintiff having regard to the nature of the contract that subsisted between the parties. It was, as I see it governed by private law and not public law. And the remedy of judicial review in my mind is not available....”
22. Having affirmed that the Employment Contract is governed by private law, it means that the question of whether the applicant had standing or locus standi, as well as the other pre-requisites such as arguable case, undue delay and exhaustion of other administrative remedy are inconsequential or irrelevant. I find that to be the case.
23. Also inconsequential would be the issue of whether the appellant had named the correct decision maker in his now misconceived judicial review proceeding, that is, OS 188 of 2023.
SUMMARY
24. In summary, the appellant’s judicial review appeal will fail.
COST
25. The appellant shall be ordered to pay the first, second, third and fifth respondents’ costs of the appeal proceedings which may be taxed if not agreed.
ORDERS
26. I make the following orders:
27. COATES J: This is an appeal by way of judicial review by the former Provincial Administrator of the Simbu Provincial Government, whose appointment was revoked, allegedly without cause.
28. The Notice of Motion to commence proceedings was filed on 22 March 2024 and amended on 20 June 2024 to insert the words “The Appeal lies without leave”.
CONTEXT
29. The appellant had been appointed as Provincial Administrator under a contract for four years, beginning 30 October 2018 and ending 30 October 2022.
30. He was suspended from his position on 4 May 2021, and the National Executive Council revoked his appointment on 18 May 2022, with such published in the Gazette on 1 June 2022.
31. There had been allegations of criminality, but no particulars were ever put to the appellant, and he was not charged with any offence.
32. He sought judicial review of his dismissal process.
33. Leave was granted in the National Court to allow the matter to proceed and after hearing the matter, the case was dismissed, with reasons given, on 20 February 2024.
REMEDY SOUGHT
34. The appellant now seeks on appeal that the decision below be set aside and that he be reinstated to the position of Provincial Administrator for the rest of the term of his contract of appointment.
GROUNDS OF APPEAL
35. There are six grounds of appeal.
36. Each allege the court below erred in law.
37. Three of the grounds are different arguments surrounding the appellant’s initial standing to bring the matter to court, another ground challenges the finding that the action should have been one for damages, another ground claims that the decision was defective for not naming the decision-makers, and the last was that there were no reasons given as to whether the appointment was properly revoked, the substantive issue.
38. The respondents seek to have the appeal dismissed.
DECISION IN COURT BELOW
39. The judgement from the court below refers to the judicial review application being based on unreasonableness and a breach of natural justice with regard to revocation of the appointment.
40. Relevantly, the judgment notes:
(a) The defendants raised the issue of the application being filed 15 November 2022, two weeks after the contract would have otherwise expired;
(b) Consequently, the appellant had lost his locus standi to bring proceedings;
(c) Proceedings were instituted using the wrong mode seeking relief, stating it should have been by way of Writ of Summons for damages;
(d) A claim that the proceeding was out of time, and
(e) A claim that the appellant had never properly named the decision-makers, meaning that he failed to identify the proper respondents.
41. There was no submission on the matter being out of time (paragraph 14 (2) (d) immediately above) so I dismiss that aspect of the case.
42. The judgement refers to preliminary issues being raised – that since the application was filed after the appellant’s contract of appointment ended, the appellant had no standing to bring the proceeding, or, no standing to continue the proceeding.
43. The court below treated standing as the critical issue.
DISCUSSION
44. Standing was the principle legal issue that the court below considered fatal to judicial review.
45. In referring to Green Wood (PNG) Ltd v Pulie Anu Timber Company Ltd (2023) SC2361, which held the plaintiff there could not maintain judicial review proceedings as a contract had ended, the court below held that decision as authority to rule that the appellant did not have standing to maintain the judicial review proceedings, but that he did have a case for breach of contract.
46. The appellant’s case was that standing was determined when leave was granted to proceed with the judicial review case in the National Court, so His Honour erred in law, on the basis that even though the grant of leave was an ex parte decision, it was a judicial decision recognising that there were sufficient grounds to appeal, which must including standing.
47. I did not have the transcript of the decision giving such leave, but it is the case that the granting of leave to proceed with the review is not a ‘rubber stamp’ decision, and takes into account a number of issues including a basic issue of whether an applicant would have standing.
48. The respondents reject the proposition that such a decision is then binding.
49. The law upon standing in such a matter is not as clear as the appellant submits.
50. While a case in which it is apparent that a person who has no standing will not be allowed to proceed, the status of standing may not be apparent until after submissions upon the law, or evidence of facts, is available, despite an initial decision to allow a matter to proceed.
51. Although there was no application by the respondents warning the appellant that the issue would be raised, the appellant was under no illusion that his standing had been raised orally at the beginning of the proceeding.
52. It was at this stage that His Honour considered the standing issue, and came to a conclusion.
53. His conclusion was that since the date of the contract expiring would have passed without the revocation when this matter was originally filed in the National Court, such deprived the appellant of standing to bring a judicial review case, which is an examination of decision making, because time had overtaken the events.
54. He relied on the Green Wood case, although he did not refer to the reasoning of that matter.
55. The appellant submitted that the fact-in-issue in the court below was the nature of the respondents’ decisions, and the issue of his standing - not particularised with any precision - was wrong at law, and his case was allowed to proceed regardless.
56. The judicial review application was filed two weeks after the contract would have ended but for the intervening decision of revocation of the contract.
57. While I do not hold that the mere ending of a contract always deprives a litigant of standing to bring such a matter to court, the issue of time overcoming events is a factual situation which cannot be ignored.
58. Standing in this circumstance has a nexus to orders which can be made upon the appeal and is not necessarily a black and white legal position.
59. Facts could arise after a matter begins which could place the position of standing very much in question, so that an order recognising standing made earlier is simply overcome.
60. That is a matter of fact.
61. In this matter there exists a clear relationship between standing and the orders able to be made, so at this stage I will address the orders sought on appeal.
62. The Notice of Motion and amended document simply seek reinstatement, although we were told that the Appellant also seeks damages.
63. Damages were actually sought in the court below.
64. The appellant’s Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, filed for the National Court proceedings on 15 November 2022, sought consequential orders allowing for pleadings on a finding of liability.
65. But that is not what the documents bringing this matter before the Supreme Court seek – they seeking reappointment to the position.
66. The appellant relied on Lupari v Somare (2008) N3476, which addressed criteria for reinstalment.
67. The appellant summarised these requirements as being;
(a) Whether the relationship between employer and employee had broken down to the extent of losing trust;
(b) Whether damages is suitable;
(c) Reinstatement is an equitable relief and its grant must be consistent with or promote principles of equity;
(d) It must be in the public interest;
(e) The position occupied is available at the time of trial to be filled by an acting or substantive appointment.
68. Without needing to determine (a) to (d) in the above paragraph, there was no evidence that the position was available, and I understood it had been filled, and it is now three years beyond the date when the contract, but for its revocation, would have expired, with the appellant otherwise appearing to seek reappointment for only four months.
69. He is seeking an order the court cannot make and although it was said orally that he was seeking damages, that is not what his Notice of Motion and his amended Notice of Motion seek.
70. Further, even if the appellant was successful on all grounds, the court is not empowered to make an appointment which would interfere with the appointment processes of government and public service entities if there is no vacancy, when matters of this nature come before it.
71. So the issue of what orders can be made has a very clear link to the issue of standing, and although not addressed in these terms, the decision of the court below as to standing can be understood from the perspective that standing could only be allowed if the orders sought could be made. That is a factual issue for the court below and the court made its decision. Here the orders sought on appeal cannot be made for reasons stated above, and although there may be a discretion of the Supreme Court in these proceedings to make other orders, the court was not asked to do so.
72. On that basis, I would not disturb the decision made on standing because of the context of the decision made is now understood.
73. The other major ground found in the court below was that the wrong parties were named.
74. This is a fundamental issue in legal proceedings, and it is not one in which a discretion could be exercised by simply inserting the proper party in place of a wrong party.
75. The proper party, the decision-maker, was the National Executive Council, which is made up of various people who were not before the court.
76. If the proper party or parties are not before the court, the court cannot guess what their evidence would be despite the parties named here as the decision-maker having interests which appear to be the same as the proper party.
77. That is so because the court cannot know what proper legal advice would have been given to the proper party, had the proper party been named, and what the action of the proper party would have been in such a case, considering that the proper party, being the National Executive Council, is required to make decisions and exercise powers both properly and as part of good government.
78. Nor would substituting a party in such circumstances afford the proper party, who had not had opportunity to take part in proceedings as it had never been served, satisfy the needs for natural justice.
79. In dismissing the appellant’s case the court below relied on the case Honk Kiap v National Capital District Commission and Frederick Kasper and Independent State of Papua New Guinea (2023) SC2435, as binding.
80. That not engaging the proper party is fatal was described in Honk Kiap, at paragraph 39, by Kandakasi DCJ, who stated:
“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.”
81. In the appellant’s case in the court below, His Honour, referring to Honk Kiap, stated:
“The first defendant ...is not the person or entity that took the decision sought to be reviewed. The same applied to the second defendant, the chairperson of the National Executive Council. The decision was taken by the National Executive Council [and] by virtue of that decision that I have quoted...should have been the party cited”.
82. His Honour was not incorrect in concluding that the proper party or parties were not named, as proper parties are essential to the administration of justice.
83. In also referring to the Honk Kiap case, His Honour dismissed the proceeding on the basis that judicial review was not available, having regard to the fact that the contract was governed by private law and not public law, and breach of contract was the appropriate remedy.
84. Again, in the Honk Kiap case, after examining a history of decisions with regard to contracts within the public service, Kandakasi DCJ stated:
“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”.
85. In referring to the terms of contract, His Honour was referring to private law.
86. In the court below then, His Honour was correct to dismiss the matter, as the rights of the parties stemmed from the contract, not from the actions of revocation reviewable on judicial review.
87. Clearly then, the appellant, as was conceded by his counsel, has time to bring an action for damages for breach of contract, especially if his contract was revoked without cause as is being claimed here, which would be the appropriate remedy.
88. On that basis, the appeal by way of judicial review is dismissed.
89. I have read the decisions of my colleagues and agree with their decisions. I agree with the orders proposed by Anis J.
ORDERS OF THE COURT
90. We make the following orders:
________________________________________________________________
Lawyers for the appellant: McGregor & Associates
Lawyers for the first & fifth respondents: Gagma Legal Services
Lawyer for the second & third respondents: Solicitor General
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