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Okuk and State v Fallscheer [1980] PNGLR 274 (3 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 274 - Iambakey Okuk and The State v Gerald Sidney Fallscheer

[1980] PNGLR 274

SC180

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IAMBAKEY OKUK

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

GERALD SIDNEY FALLSCHEER

Waigani

Andrew Kapi Pratt Miles JJ

30-31 July 1980

1 August 1980

3 October 1980

CIVIL AVIATION - National Airline Commission - Termination of appointment of general manager - Termination by Minister on ground of “inefficiency” - Natural justice - “Audi alteram partem” rule - Right to be heard - National Airline Commission Act 1973, s. 23(2)[cdxiv]¹.

STATUTES - Interpretation - Civil aviation - National Airline Commission - Termination of appointment of general manager - Termination by Minister on ground of “inefficiency” - Natural justice - “Audi alteram partem” rule - Right to be heard - National Airline Commission Act 1973, s. 23(2)[cdxv]².

CONSTITUTIONAL LAW - Underlying law - Application of common law principles - Natural justice - “Audi alteram partem” rule - Right to be heard - National Justice Commission Act 1973, s. 23(2)[cdxvi]³ - Constitution of the Independent State of Papua New Guinea ss. 59, 60, 61, 62, Sch. 2.2, Sch. 2.3.

The general manager of the National Airlines Commission appointed under s. 22 of the National Airlines Commission Act 1973, has a right to be given reasons for his dismissal, and an opportunity to be heard in his own defence, before being removed from office under s. 23(2) of that Act.

Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; and

Durayappah v. Fernando [1967] 2 A.C. 337 applied.

Fallscheer v. Iambakey Okuk [1980] P.N.G.L.R. 101 approved.

There is nothing in the National Airlines Commission Act 1973 which either expressly or impliedly excludes the principles of natural justice, and accordingly the common law principles are appropriately adopted and applied as part of the underlying law of Papua New Guinea according to Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea.

Fisher v. Keane [1878] UKLawRpCh 301; (1897) 11 Ch. D. 353;

Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B.N.S. 180;

Hopkins v. Smethwick Local Board of Health [1890] UKLawRpKQB 25; (1890) 24 Q.B.D. 712, and

Malloch v. Aberdeen Corporation [1971] 2 all E.R. 1278 at pp. 1282-1283, applied.

Appeal

This was an appeal against a judgment on demurrer, the question determined on the demurrer being whether the Minister administering the National Airline Commission Act 1973 was required by law to give the General Manager of the National Airline Commission, an opportunity to be heard in his own defence before terminating his employment. The question on the demurrer was answered in the affirmative (see Fallscheer v. Iambakey Okuk [1980] P.N.G.L.R. 101).

Counsel

P. Young Q.C. and M. Fitzsimmons, for the appellants.

I. V. Gzell Q.C. and R. Thompson, for the respondent.

Cur. adv. vult.

3 October 1980

ANDREW J: This is an appeal against a judgment on demurrer made by his Honour Mr. Justice Greville Smith on 25th June, 1980.

Briefly stated, the history of the matter is that on 28th April, 1980 the first named appellant, the Minister for Transport and Civil Aviation referred to in the National Airline Commission Act 1973, purported to terminate the appointment of the respondent from the office of general manager of the National Airline Commission, on the stated ground of inefficiency. The respondent instituted an action against the Minister and the Government of Papua New Guinea by way of writ of summons seeking declarations that a purported suspension from employment as general manager of the National Airline Commission was ultra vires the powers of the Minister for Transport and Civil Aviation and was void and of no effect; secondly, that the purported termination of the respondent from his employment as general manager of the National Airline Commission was also void and of no effect and the respondent claimed damages. The statement of claim, delivered on 20th May, 1980, contained fifteen grounds including the claim that the respondent had not been given notice or particulars of the alleged grounds of inefficiency nor an opportunity to be heard and that the principle of natural justice enshrined in the phrase “audi alteram partem” applied with respect to the termination of the respondent’s employment upon a ground specified in s. 23(2) of the National Airline Commission Act 1973.

To the statement of claim the defendants, under the provisions of O. XXIX of the National Court Orders and Rules, demurred on 27th May, 1980, in the following terms:

“The defendants demur to the plaintiff’s statement of claim, and say that the same is bad in law on the following grounds:

1. It is not incumbent on the Minister in acting under Section 23 of the National Airline Commission Act to abide by the principles of Natural Justice as pleaded.

2. Alternatively to one above the Minister may in the interest of the State or in the case of urgency act without regard to any principles of natural justice if that appears to him to be in the national interest or it is an emergency situation.

3. The decision of the Minister under Section 23 of the National Airline Commission Act is not one that is reviewable by this Honourable Court.

4. The plaintiff’s cause of action (if any) is an action for wrongful dismissal.”

His Honour the trial judge was of the opinion that the respondent had a legal entitlement to be heard in his own defence before the Minister terminated his appointment and the demurrer was overruled. The hearing of the action was adjourned to a date to be fixed.

Appeal is now brought against the judgment on demurrer.

That judgment[cdxvii]⁴ examines the principles of natural justice and the “audi alteram partem” rule in relation to the facts of this case. In my view it is an exhaustive and detailed examination of those principles and I accept the reasons and the conclusion as a correct statement of the law. I have also had the advantage of reading the judgments of Kapi J. and Miles J. who would dismiss the appeal and I agree also with their conclusions. As I am so far in agreement I wish to add only the following.

The “right to be heard”, where it exists, is properly categorized as one of the principles of natural justice. These principles are specifically referred to in Div. 4 of Pt. 3 of the Constitution of the Independent State of Papua New Guinea and the principles of natural justice in force in England on 16th September, 1975 are part of the underlying law of this country: See Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea & Ors. [cdxviii]⁵. That case however was dealing with the deportation of an alien which is a quite separate question from the present one, depending as it does on an interpretation of different areas of the Constitution and of the Migration Act 1963, and in my view is of no further relevance to the present case.

The major issue before the trial judge was whether the principles of natural justice apply to dismissal from the office of general manager of the National Airline Commission under s. 23(2) of the National Airline Commission Act 1973. His Honour framed the question as follows:

“Purely as a matter of statutory construction of the Act in question was the Minister required by law to give the General Manager an opportunity to be heard in his own defence before terminating his employment.”

It was submitted by counsel for the appellants that the framing of the question in that way amounted to a misunderstanding of the real point in issue, or in other words that it was the wrong question. I am unable to see that this is so. It seems to me that that was precisely the point in issue and to which the argument was directed.

I think it is important to consider that no general rule can be laid down as to the application of the principles of natural justice. Each case must be determined on its own facts. But the requirements of natural justice in circumstances similar to the present case received its modern expression in Ridge v. Baldwin[cdxix]⁶. I see little point in examining decisions prior to that case. I respectfully agree with the learned trial judge’s findings, when in consideration of Ridge v. Baldwin he said (supra):

“It seems to me to be quite clear that the plaintiff falls within the boundaries delineated by Lord Reid in the ‘third’ category of dismissal cases, to which the common law will apply the rule of ‘audi alteram partem’ unless the application of such rule is excluded by the legislature by express words or necessary intendment, namely dismissal from an office where there must be something against a man to warrant his dismissal. In addition the plaintiff has this in common with the appellant in Ridge v. Baldwin, that he was not the servant of the dismissing party, and he stood to lose a substantial right as a result of dismissal. As to the latter, in Ridge v. Baldwin, the loss was of pension rights, and in the case of the plaintiff it is the loss of the balance of the fixed term of his employment to which he was entitled subject to lawful dismissal under the act for cause. The loss of the balance of that term would be in my view enough, but in addition there is the damage to his reputation. There are no words in the relevant act expressly excluding a right to be heard, and no provisions, such as a statutory right of appeal or other remedy which might be taken to imply an exclusion of an initial right to be heard.”

I would only add that if one pays regard simply to the terms of s. 23(2) of the National Airline Commission Act 1973, it would seem that the general rule requiring natural justice to be afforded would apply. The nature of the office and position affected, the circumstances in which the Minister is empowered to act and the sanctions which he may impose, appear to me to point quite clearly in favour of a requirement that natural justice be afforded.

The office or position of the respondent is a most significant one and it is his means of livelihood. As the sanction imposed, namely dismissal, affects that livelihood, this points to the desirability of the power being qualified by the principles of natural justice.

Upon all of those considerations I presume that the legislature intended the power conferred on the Minister by s. 23(2) to be qualified by the principles of natural justice. I can find no other indication in the National Airline Commission Act to suggest that the legislature intended to exclude the principles of natural justice. It follows, in my opinion, that the Minister was obliged to give the respondent an opportunity to be heard before dismissing him under s. 23(2).

I also agree with the learned trial judge that the result is the same if one applies the approach enunciated by Lord Upjohn in Durayappah v. Fernando and Others [cdxx]⁷.

I would dismiss the appeal together with costs and I would certify for overseas counsel.

KAPI J: The respondent issued a writ of summons seeking two declarations, first that his suspension by written notice dated 20th April, 1980 is ultra vires the powers of the Minister, and is of no effect; secondly, that his termination by written notice dated 28th April, 1980 did not comply with the principles of natural justice and is void and of no effect, and he claims damages.

In the statement of claim the respondent set out the factual basis upon which he sought the declarations and damages. The appellants demurred to the respondent’s statement of claim. Under O. 29 r. 1 of the Rules of the National Court the appellants may demur to the respondent’s statement of claim which set up the cause of action, on the ground that the facts alleged do not show a cause of action. The appellants demurred only to the termination of the respondent and not the suspension. The legal issue raised for consideration was whether, on the facts alleged in the respondent’s statement of claim, the principles of natural justice should be complied with before the Minister for Transport and Civil Aviation can exercise the power of termination under s. 23(2) of the National Airline Commission Act.

Under O. 29, r. 4 a party demurring may also plead to the statement of claim. That is, he may plead facts in defence. The appellants did not plead any facts. The facts upon which the legal issue has to be determined are contained in the respondent’s statement of claim. I set out the relevant parts:

“1. The First Defendant is the Minister referred to in the National Airline Commission Act 1973.

2. The Plaintiff was appointed General Manager of the National Airline Commission for a period of two (2) years from the 7th day of June 1979.

...

8. The First Defendant signed a Notice of Termination of Appointment of General Manager (the “Termination”) in respect of the Plaintiff, bearing date the 28th day of April 1980.

9. The said Termination recited inter alia that it was made “on the grounds of inefficiency”.

10. Prior to the said Termination the First Defendant did not give the Plaintiff notice of the alleged grounds of inefficiency nor of any particular thereof.

11. Prior to the said Termination the First Defendant did not give the Plaintiff an opportunity to be heard upon the alleged grounds of inefficiency.

12. The principle of natural justice enshrined in the Latin phrase ‘Audi alteram partem’ applied as between the Plaintiff and the First Defendant with respect to the termination of the Plaintiff upon a ground specified in Section 23(2) of the National Airline Commission Act 1973.

13. By reason of the facts alleged in paragraphs 10 and 11 the First Defendant’s acts were in breach of the principle ‘Audi alteram partem’.

...

15. By reason of the facts alleged in paragraphs 10, 11 and 14 the Termination is void and of no effect.”

By agreement of the parties cl. 14 of the statement of claim was disregarded for the purposes of deciding the issue.

It has been suggested by the appellants that the Minister for Transport and Civil Aviation is not a judicial authority and therefore the National Court has no inherent power to review the exercise of his authority under s. 155(3)(a) of the Constitution. This provision was considered in Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea & Ors. [cdxxi]⁸. However this submission is not destructive as the National Court has jurisdiction and powers conferred on it by s. 155(3)(b) of the Constitution. It appears from the majority judgments in the Premdas case (supra) that the National Court has such other powers conferred under this provision by the common law of England. The question is what are the powers given by the common law of England?

In this case we are concerned with the principles of natural justice. These principles are set out under s. 59 of the Constitution which reads:

“(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

These principles are the common law principles of natural justice as adopted under Sch. 2.2 of the Constitution or as developed under Sch. 2.3 and s. 60 of the Constitution. See the Premdas case[cdxxii]⁹. It is only five years since the Constitution came into existence and this Court has yet to develop its own principles of natural justice. In considering these matters, the court has to look to see what the common law of England is on principles of natural justice. Whether the common law principles of natural justice apply in the present case where it involves a use of statutory power under the National Airline Commission Act, the answer depends on the true construction of the provisions of the National Airline Commission Act in the light of the common law principles.

COMMON LAW

I shall begin with the examination of the common law principles of natural justice and their application to the circumstances of this case. If the common law principles show that the respondent does not have a right to be notified and a right to be heard then there is no need to go further into the National Airline Commission Act as the Act is silent about these principles.

In discovering and applying the common law to the circumstances of this country regard should be given to the matters set out under Sch. 2.2 of the Constitution. As a matter of law the court should only consider the English cases declaring the common law as Sch. 2.2 of the Constitution is only concerned with the common law of England. If there are cases from other common law countries such as Australia or Canada which declare common law as similar to common law declared by the English courts, then these cases may be used to supplement or strengthen the English cases. However, every precaution must be taken in referring to the decisions from these jurisdictions because the courts there might give their own interpretation or application of the common law principles. I consider that this Court should obtain the common law of England direct from the English cases. If the cases from other common law countries differ from the English cases then no regard should be given to them unless this Court has found itself in a situation where the common law of England is either inconsistent or is inappropriate or contrary to the Constitution or any statute or the customs of the people, then the court shall have regard to these cases in formulating its own underlying law under Sch. 2.3 of the Constitution. I will therefore refer to English cases only.

The English authorities have shown that there was a marked distinction between judicial and administrative acts. Where an authority was exercising an administrative act it was said that this was not subject to the scrutiny or control of the courts. In Franklin v. Minister of Town and Country Planning[cdxxiii]¹⁰ (the Stevenage case) the Minister made an order designating Stevenage as a new town. The local land owners made an objection to this. The House of Lords declined to entertain the objection on the ground that the Minister was not acting judicially. However there is a line of English authorities which show that the distinction between judicial and administrative acts is no longer a valid one. See Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government and Another [cdxxiv]¹¹; Ridge v. Baldwin [cdxxv]¹²; In re H.K. (An Infant)[cdxxvi]¹³; Padfield & Ors. v. Minister of Agriculture, Fisheries and Food and Others [cdxxvii]¹⁴; Schmidt and Another v. Secretary of State for Home Affairs [cdxxviii]¹⁵; Birdi v. Secretary of State for Home Affairs[cdxxix]¹⁶ and Reg. v. Secretary of State for the Environment; Ex parte Ostler [cdxxx]¹⁷. These cases show that an administrative decision is not exempt from review by courts simply because it is administrative.

English cases have shown that it is difficult to define the circumstances in which the court should review a decision by a body or an authority for want of compliance with the principles of natural justice. In Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida, Lord Denning said[cdxxxi]¹⁸:

“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter.”

Thus in the Premdas case[cdxxxii]¹⁹ the Supreme Court refused to apply the principles of natural justice on the ground that it was dealing with a subject-matter, namely, a question of immigration considerations which involve matters of policy, and the court should not be concerned. Therefore the decision of the Supreme Court in the Premdas case[cdxxxiii]²⁰ which involves a different subject-matter, cannot be of assistance in considering the instant case. In this respect the trial judge was right in not being influenced by the approach of the court in the Premdas case (supra). It is clear that the English cases dealing with different subject-matter may not be of much assistance. I therefore confine my examination of the English cases to those dealing with dismissal from office, or similar cases.

It seems that the starting point is the case of Ridge v. Baldwin [cdxxxiv]²¹. The case is extensively discussed in the trial judge’s judgment. It seems to me that there are three bases upon which the House of Lords found that the principles of natural justice applied in the case of Ridge v. Baldwin (supra). These can be found in the judgment of Lord Reid. First it was a case which involved dismissal from office for a cause; secondly, it involved property rights; thirdly, it involved the exercise of authority with civil consequences to the constable. Lord Reid, in his judgment, refers to authorities dealing with each of the three considerations set out above. After discussing all these authorities, Lord Reid said[cdxxxv]²²:

“I would sum up my opinion in this way.... The respondents’ contention is that, even where there was a doubtful question whether a constable was guilty of a particular act of misconduct, the watch committee were under no obligation to hear his defence before dismissing him. In my judgment it is abundantly clear from the authorities that I have quoted that at that time the courts would have rejected any such contention.”

It is clear from this that Lord Reid would find that the principles of natural justice applied on any of these three bases. It seems to me that it was only necessary to refer to one of these three matters upon which the principles of justice applied.

The next important case is Durayappah v. Fernando[cdxxxvi]²³ in which Ridge v. Baldwin was approved. Lord Upjohn said[cdxxxvii]²⁴:

“Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their lordships’ opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or on what occasions is the person claiming to be entitled to exercise the measure or control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose on the other. It is only on a consideration of all these matters that the question of the application of the principle can properly be determined.” (Emphasis mine.)

This is a very good general statement of the test to be applied and I have no difficulty in finding that the rationale of their lordships’ decision in Ridge v. Baldwin[cdxxxviii]²⁵ is consistent with these principles.

The next case is Gaiman v. National Association for Mental Health [cdxxxix]²⁶. The first thing I would like to say about this case is that it is a judgment of a single judge. This judgment cannot have any overruling effect over the decisions of the House of Lords or the Privy Council. Counsel for the appellants suggested that the principles stated in this case differ from those stated in Durayappah [cdxl]²⁷. He suggested that the principles set out by Mr. Justice Megarry in this case did not include the question of status in an office. The principle, or the test, in this case is stated[cdxli]²⁸:

“... there is a tendency for the court to apply the principles to all powers of decision unless the circumstances suffice to exclude them. These circumstances may be found in the person or body making the decision, the nature of the decision to be made, the gravity of the matter in issue, the terms of any contract or other provision governing the power to decide ...”

In my view the test in this passage does not lay down a different test to that laid down in Durayappah’s case[cdxlii]²⁹. The principles stated in Durayappah’s case (supra) are wide enough to embrace the principles stated in the above passage. In substance, they do not conflict.

The matter of status or holder of an office is now finally settled by the House of Lords in the case of Malloch v. Aberdeen Corporation [cdxliii]³⁰. The question of status or holder of an office as the basis for requiring the principles of natural justice is evident in the speech of Lord Reid[cdxliv]³¹:

“An elected public body is in a very different position from a private employer. Many of its servants in the lower grades are in the same position as servants of a private employer. But many in higher grades or ‘offices’ are given special statutory status or protection. The right of a man to be heard in his own defence is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right.” (Emphasis mine.)

(See also Lord Wilberforce[cdxlv]³²). Lord Wilberforce, after discussing the master and servant cases said this:

“A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre.”

Counsel for the appellants suggested that the master and servant test in Ridge v. Baldwin[cdxlvi]³³ should not be applied because of this criticism. However Lord Wilberforce, after making his criticism of the master and servant test, goes on to say:

“One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called ‘pure maser and servant cases’, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void.” (Emphasis mine.)

As far as questions of status or holder of an office is concerned, the House of Lords has established that a person who is occupying an office or status cannot be dismissed without complying with the principles of natural justice. I should observe that even before the cases I have referred to, Lord Morris of Borth-y-Gest in the case of Vidyodaya University of Ceylon v. Silva[cdxlvii]³⁴ said:

“In a straightforward case where a master employs a servant the latter is not regarded as the holder of an office and, if the contract is terminated, there are ordinarily no questions affecting status or involving property rights.” (Emphasis mine.)

I am not aware of any case of high authority overruling the principles I have discussed in the above cases.

Before I consider the application of these common law principles to the circumstances of this country, I should discuss an Australian case upon which the appellants have based so much reliance. As I have stated earlier in my judgment it is not necessary to go through these cases and the need to go to these cases does not arise until the appropriateness or applicability of the common law principles are considered. The case is Ex parte The Queen on the Relation of Warringah Shire Council and Another; Re Barnett[cdxlviii]³⁵. This case has a similar fact situation with the case of Durayappah[cdxlix]³⁶. The circumstances and the statutory provisions upon which a council may be dismissed are completely different and bear no relationship to the present case. However, in this case the court applied the principles enunciated in Durayappah (supra). In applying the principles in Durayappah (supra) the New South Wales Court of Appeal said[cdl]³⁷:

“There is here no dissolution of the council or deprivation of its property. No specific charge needs to be made against the councillors or any of them in order that the circumstances in which the power is operative may exist. The subject matter of s. 86 of the Local Government Act is the acceleration of the time within which an election of councillors may be held and provision for the interim administration of the council. The dismissal of the councillors as a body can take place without culpability existing in them or in any of them, for reasons which in the circumstances are characterized as advisable, not necessarily because of turpitude or fault or breach of the law but because of the Governor’s opinion that any of an innumerable variety of circumstances make fresh elections ‘advisable.’ Emoluments or fees are compensatory for time spent and are not of the same nature as property or salaries. All this is far removed from deprivation of status or of property in the sense in which these terms have been used, and finally it is to be observed that the tenure of office as an alderman or councillor is subject to and upon the terms of the Act read as a whole and that all or any of the dismissed councillors can be re-elected if not otherwise disqualified.” (Emphasis mine.)

There are two things I want to say about this passage. First that the court of appeal adopted the tests in Durayappah[cdli]³⁸ and particularly the question of deprivation of status and of property. Secondly, the court of appeal has placed salary on an equal footing to property. So it would appear from this passage that if the councillors were paid a salary in the ordinary sense, then this would have been regarded as deprivation which would have brought about the application of the principles in Durayappah (supra). In the instant case, there would appear to be no question about deprivation of the respondent’s salary as a result of the termination.

Are these common law principles applicable and appropriate to the circumstances of this country?

Under Sch. 2.2 of the Constitution, the principles and rules of common law of England are adopted and shall be applied and enforced as part of the underlying law except to the extent that:

(a) they are inconsistent with a Constitutional Law or statute; or

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c) in their application to any particular matter they are inconsistent with custom as adopted by Pt. 1 (of that Schedule).

I am not aware of any constitutional law or statute which is inconsistent with these principles and there are no customs which may be said to be inconsistent with these principles. It remains to be seen whether these common law principles are inapplicable or inappropriate to the circumstances of the country. In considering this question, the court must be guided by, amongst other things, the terms of Sch. 2.2(4) of the Constitution which is in the following terms:

“In relation to any particular question before a court, the operation of Subsection (1)(b) shall be determined by reference, among other things, to the circumstances of the case, including the time and place of any relevant transaction, act or event.”

I do not consider that the circumstances of the instant case turn on anything of particular significance. In considering the appropriateness or applicability of the common law principles to the circumstances of this country, one must not take it for granted that these common law principles should apply or, on the other hand, care must be taken in rejecting these principles. This is well expressed by Lord Denning in the case of Nyali Ltd. v. Attorney-General[cdlii]³⁹:

“The next proviso provides, however, that the common law is to apply ‘subject to such qualifications as local circumstances render necessary.’ This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfil this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom.” (Emphasis mine.)

As to what the circumstances are, in my view these will vary from case to case depending on whether the principle is dealing with a question of custom or whether dealing with a system of government or the law as provided by the Constitution or statutes of this country. In the case of Reg. v. Dabat[cdliii]⁴⁰, Chief Justice Mann there was considering the applicability of common law principles to the customs of the people in the East Sepik Province. In the instant case we are not at all involved with questions of customs of our people. It seems to me that these common law principles are dealing with the powers and rights of the employer on the one hand, and the rights of the employee on the other. The concept of employment and the rights attached to the employer and the employee are of recent introduction by the colonial powers since the beginning of Western influence in this country. I do not see how the circumstances in this country regarding the powers and rights of the employer and employee would differ greatly from those in England. Generally speaking, the circumstances as far as this subject is concerned in this country do not warrant, or at least do not amount to the principles being inappropriate or inapplicable. Therefore I would adopt these common law principles in these cases as part of the underlying law of Papua New Guinea.

It is now necessary to consider the provisions of the National Airline Commission Act 1973. The general manager of the Commission is appointed by the Minister for Transport and Civil Aviation under s. 22 of the Act, and he is the chief executive and the head of the services of the Commission. I should say that the general manager of the Commission is subject to the provisions of the Leadership Code. I think this is significant because it gives the general manager special status. Under s. 23(2) of the Act, the Minister may, at any time, terminate appointment of the general manager for inability, inefficiency, incapacity or misbehaviour.

The question to ask here is whether the Act expressly or impliedly excludes the application of the principles of natural justice. There is no express provision in the Act which would give this Court assistance in coming to a conclusion on this matter.

Counsel for the appellants submitted that where there is no clear provision on the question, the court should begin with the premise that the Act did not intend to imply the principles of natural justice. I cannot accept this submission on the decided cases. It is clear from the authorities discussed by the trial judge in his judgment that where positive words in a statute do not expressly state or exclude the principles of natural justice the common law will supply this implication to the statute. (See Fisher v. Keane[cdliv]⁴¹; Cooper v. Wandsworth Board of Works [cdlv]⁴²; Hopkins v. Smethwick Local Board of Health [cdlvi]⁴³.) In this regard it may only be necessary to refer to what Lord Reid said in Malloch v. Aberdeen Corporation[cdlvii]⁴⁴ at pp. 1282-1283:

“The right of a man to be heard in his own defence is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right.”

In the instant case I would find no difficulty in implying the right to be notified and the right to be heard into the National Airline Commission Act 1973.

Counsel for the appellants further argued that the whole of s. 23 of the Act is not definite and is deliberately left vague because the legislature intended that it be left to the Minister to make up his mind on these matters and that it be not the subject of the review of the courts. Some support for this proposition may be gained from what Lord Upjohn said in Durayappah v. Fernando[cdlviii]⁴⁵.

“Had the Minister been empowered to dissolve the council only for incompetence and no other ground, it might have been argued that as ‘incompetence’ is very vague and difficult to define Parliament did not intend the principle audi alteram partem to apply, in the circumstances ...”

I do not consider that Lord Upjohn was necessarily establishing a principle of law where such a situation exists that that necessarily establishes that the Parliament did not intend the principles of natural justice to apply. It is significant that after this passage Lord Upjohn went on, on the same page, to say the following:

“... but their lordships would point out that charges of inefficiency or failing to be diligent or to set a good example have been held subject to the principle; see Fisher v. Jackson[cdlix]⁴⁶.”

In my view that disposes of that argument.

In summary as to when the common law principles of natural justice should apply it is difficult to lay down any definitive rules. However in considering its application the matters set out in the judgment of Lord Upjohn in Durayappah’s case[cdlx]⁴⁷ should guide the courts in any dismissal case. The case of Ridge v. Baldwin[cdlxi]⁴⁸ and other cases come within the general test set out in Durayappah’s case (supra). Ridge v. Baldwin (supra) can be regarded as an authority for dismissal from office involving, first, status or holder of an office, or, secondly, where property rights are involved, or where civil consequences to the party is involved.

These principles were applied by the trial judge to the facts of this case. I am in agreement with the trial judge’s application of these principles.

Counsel for the appellants suggested several reasons why the principles referred to should not be applied to the present case. I do not find it necessary to go through these reasons or points in my judgment as I find myself in agreement with the trial judge’s treatment of these matters in his judgment.

I find that there is a cause of action on the facts stated in the respondent’s statement of claim. The respondent has pleaded the essential facts to support the cause of action namely that he was appointed the general manager of the Commission, a statutory office with status, and that he has been terminated from this office without being notified of the grounds of the termination and without the opportunity of being heard on the grounds of termination.

I was impressed with appellants’ counsel’s submission that the respondent’s statement of claim did not disclose a cause of action under the National Airline Commission Act 1973. However, having come to the conclusion I have reached, it can be said that the common law principles of natural justice are implied under the National Airline Commission Act 1973. I find that in these cases a writ of summons can be issued seeking a declaration for breach of the principles of natural justice. See Schmidt v. Secretary of State for Home Affairs [cdlxii]⁴⁹.

Whether or not the dismissal by the Minister is void or voidable is not a question which has been posed before this Court by the demurrer. There is a notice of motion before the National Court seeking relief sought under the writ of summons including damages. Whether or not the declaration will be made and damages follow is a matter for the National Court to decide. However, in relation to the matter of a declaration, I only wish to refer to O. 4 r. 11 of the Rules of Court which provides:

“An action or proceeding shall not be open to objection on the ground that a merely declaratory judgment or order is sought thereby; and the Court may make binding declarations of right in an action or other proceeding properly brought, whether any consequential relief is or could be claimed therein or not.”

This rule was considered by Andrew J. in the case Taumaku Morea v. Central Provincial Government [cdlxiii]⁵⁰.

I dismiss the appeal and order that the appellants pay the respondent’s costs.

PRATT J: I agree generally with the content of the judgments of my brother judges herein and I specifically adopt the reasons and conclusions of the learned trial judge and Miles J. I would therefore dismiss the application and order that the appellants pay the respondent’s costs. I also agree that the complexity and importance of the matter warrants briefing of overseas counsel.

MILES J: This is an appeal from a decision of Greville Smith J. over-ruling a demurrer by the appellant to the respondent’s statement of claim. The statement of claim seeks an order declaring null and void the dismissal by the appellant as Minister of Transport of the respondent from the position of general manager under the National Airline Commission Act 1973.

The decision of his Honour was that as a matter of statutory interpretation the plaintiff respondent had a legal entitlement to be heard in his own defence before the Minister terminated his appointment. The statement of claim raised this legal entitlement and further alleged that the appellant did not give the plaintiff notice of the alleged grounds nor the opportunity to be heard. The statement of claim therefore as a matter of pleading provided a basis on which declaratory relief might be granted. The demurrer was accordingly overruled.

It should be said that the statement of claim raised other issues, namely the alleged invalid suspension of the respondent, the bad faith of the appellant and a claim for damages, but these were not raised on the demurrer nor on this appeal.

I find myself so far in agreement with the decision and reasons of Greville Smith J. that for me to give reasons of my own involves the risk of adding to uncertainty in what is already an uncertain and difficult area of the law. However because of the important implications of the case both for the parties and for the development of the constitutional and administrative law of Papua New Guinea I would make some observations on some aspects of the matter.

First I deal with the legislation itself. His Honour recorded the terms of s. 23(2) thus: “(2) The Minister may, at any time, terminate the appointment of the General Manager for inability, inefficiency, incapacity or misbehaviour” (emphasis mine).

Although counsel did not address us on the point, the legislation is not precisely in the above terms. The Act was originally an Ordinance in which it was provided that the Administrator may, amongst many other things, exercise the power of termination mentioned in s. 23(2). By s. 4 of the Constitutional Change (Consequential Provisions) Act 1973 a reference in an enactment to the Administrator was thenceforth to be read as a reference to the High Commissioner and the enactment was amended accordingly. Then by notification published in the Government Gazette on 13th September, 1975, the High Commissioner acting under the Administrative Arrangements (Vesting of Powers) Act 1971 delegated his powers under s. 23(2) of the National Airline Commission Act 1973 to the Minister for Transport and Civil Aviation. I am indebted to the researches of my brother Kapi J. for this latter piece of information. It should have been pleaded in the statement of claim.

For the sake of completeness it may be observed that upon Independence reference to the High Commissioner is to be read as a reference to the Head of State: Interpretation (Interim Provisions) Act 1975, s. 98. Although the Constitutional Change (Consequential Provisions) Act 1973 is repealed by the Statute Law Revision (Independence) Act 1975, that repeal does not affect anything duly done or affect any right, privilege, obligation or liability acquired or accrued or incurred under the provision so repealed: Interpretation (Interim Provisions) Act 1975, s. 63(1). See also s. 49. The power delegated to the Minister for Transport and Civil Aviation continues in the Minister presently holding the relevant portfolio. Had there been no delegation the power would be exercisable by the Head of State.

I come now to the question of whether the Minister in exercising the power under s. 23(2) is bound to observe the rules of natural justice.

The rules of natural justice so called or more precisely the obligation to observe the rules of natural justice are part of the underlying law of Papua New Guinea. So much flows from the Constitution, insofar as it makes express provision for the application of the rules of natural justice to certain bodies (namely tribunals established under the Leadership Code (s. 28(5) and village courts (s. 37(22)) and in so far as Sch. 2.2(1) adopts as part of the underlying law the principles of common law and equity in England immediately before Independence. The reception into the underlying law of the English principles is of course limited to the extent, inter alia, that they are inapplicable or inappropriate to the circumstances of the country from time to time, or inconsistent with custom.

The present case concerns a Minister for Transport and his powers in relation to the general manager of a national airline. No question of custom was argued or arises. Nor was any argument addressed to the question of whether the circumstances of the country as they presently exist justify a departure from or a limitation of the rules of natural justice as otherwise recognized. Mr. Young, senior counsel for the appellant, relied upon a general argument that the rules of natural justice were inappropriate in the circumstances of the present case by reason of what he submitted was the proper interpretation of s. 23 of the National Airline Commission Act and by reason of the very principles of English law and equity brought into the underlying law by Sch. 2.2(1), not by reason of any departure from those rules necessitated by current circumstances in Papua New Guinea.

The content of the rules of natural justice is to some extent dealt with in Pt. III of the Constitution which deals with Basic Principles of Government and Div. 4 thereof is entitled “Principles of Natural Justice”. The division is not an exhaustive statement of those principles. It contains four sections. The first two are as follows:

“59 PRINCIPLES OF NATURAL JUSTICE

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

60 DEVELOPMENT OF PRINCIPLES

In the development of the rules of the underlying law in accordance with Sch. 2 (Adoption, etc., of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization.”

It is further provided in s. 61 that the preceding two sections do not derogate the rights and freedoms provided for by Div. 3 (basic rights). In cases where the law provides for an act to be done in the “deliberate judgment” of a person, s. 62 provides that the principles of natural justice apply only to the extent that the exercise of judgment must not be biased, arbitrary or capricious. Such act is otherwise, subject to exceptions, declared to be non-justiciable.

The present case is not one of an act to be done in the “deliberate judgment” of the Minister and if the rules of natural justice are to apply then their application goes beyond the restriction imposed by s. 62 and the Minister’s decision is justiciable.

The use of language in s. 59 and s. 60 shows that the makers of the Constitution avoided a definition of what comprise the elements of natural justice. The provisions of Div. 4 provide a minimum requirement of acting fairly or “in principle” being seen to act fairly. Otherwise the court has a duty to pay particular attention to the development of a system of natural justice and of administrative law “specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations and also of typically Papua New Guinean procedures and forms of organization”. (Emphasis mine.)

After very careful consideration of the National Goals and Directive Principles and of the Basic Social Obligations I am unable to see that they shed much light on the present question as to whether the general manager of Air Niugini has a right to be heard before he is removed from office under s. 23(2). There was nothing in counsel’s submissions, as I understood them, on this point. I note that under the Constitution the third national goal of the people is expressed to be that of national sovereignty and self-reliance and that the people accordingly call for the leaders of the nation “to be committed to these National Goals and Directive Principles to ensure that their freedom to make decisions is not restricted by obligations to or relationships with others, and to make all of their decisions in the national interest”. I see this as a call for leaders to put aside personal obligations and relationships in favour of the national interest. It is not a charter for leaders to make decisions regardless of the rights accorded by law to other people. I agree with the view expressed by Greville Smith J. that it is not necessarily in the national interest that the chief executive of the national airline should be liable to dismissal without having an opportunity to be heard in his own defence.

In any case involving a consideration of the rules of natural justice the court is bound under s. 60 of the Constitution to take special account of typically Papua New Guinean procedures and forms of organization into account. We were not told of any such procedures or forms of organization during the course of argument, nor am I with my imperfect knowledge and experience aware of any that would be relevant to the present case.

For the purpose of ascertaining the law on the subject in this country in accordance with Sch. 2.2(1) of the Constitution, I believe that the focal point must be taken to be the judgment of Lord Reid in Ridge v. Baldwin[cdlxiv]⁵¹. With great respect to the researches of counsel I think that there is nothing to be gained from a further analysis of the older cases, which were themselves extensively analyzed in Ridge v. Baldwin (supra), in order to show the true meaning of the decision in that case or in order to show that cases decided since have proceeded on an erroneous view of it. That would be tantamount to going back to Donoghue v. Stevenson[cdlxv]⁵² and beyond in order to ascertain the modern law of negligence. What Ridge v. Baldwin (supra) decided and whether the rule so decided is to be expanded or curtailed may better be answered by looking at the ways in which the courts have approached the problem since and not before that decision was handed down. This was the approach adopted by Greville Smith J. and I respectfully agree with it.

For my own part I think that the position was nowhere more precisely or concisely put than by Barwick C.J. in Twist v. Council of the Municipality of Randwick[cdlxvi]⁵³ in the passage which was cited by Greville Smith J. A statement more general in character (and for that reason no less appropriate for this country) was made in In re Mackellar; Ex parte Ratu[cdlxvii]⁵⁴ by Murphy J. (although dissenting on the question of whether the rules of natural justice had in fact been complied with):—

“The doctrine of natural justice is not a modern development; it is traditional in most English speaking countries. It is an aspect of due process, traceable in English law at least back to Magna Charta. This referred to ‘the law of the land’ which became ‘due process’ in the statutory version of 1534: ‘No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law” (28 Ed. III c.3). Coke, who translated ‘the law of the land’ as ‘due process’ regarded the concept as fundamental and Magna Charta in this respect as merely declaratory of the old law of England (Second Institutes, ss. 50-51).

In the American colonies, ‘the law of the land’ and ‘due process’ were used interchangeably. The concept found its way into the United States Constitution and most of the State Constitutions in the guarantees of due process (see generally Constitution of the United States of America, Analysis and Interpretation, Senate Document 92-82, p. 1137). In what has become a classical description of due process, Frankfurter J. said: ‘It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.’ (Solesbee v. Balkcom[cdlxviii]⁵⁵.)

clap class=BodyP1>[cdlxix]⁵⁶.) To paraphrase Murphy J. the Constitution shows a disposition against granting or continuing arbitrary powers; at the least the rules of natural justice and the duty to observe them are part of the underlying law of statutory powers and apply unless excluded by the legislation.

I would also refer to the passage from the judgment of Lord Wilberforce in Malloch v. Aberdeen Corporation[cdlxx]⁵⁷ which seems particularly appropriate to the present case:

“One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called ‘pure master and servant cases,’ which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspect the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void.”

It was conceded on behalf of the appellant that there was an obligation on the part of the Minister to “act fairly” but it was contended that this did not carry with it a duty on the part of the Minister to notify the appellant of what was alleged against him. Conversely it was argued that there was no right on the part of the appellant to be heard on his own behalf. The argument was that the notion of acting fairly was not the same as that of acting in accordance with the recognized rules of natural justice and in particular with the maxim audi alteram partem: and so the right to be heard had to be spelt out from the legislation itself.

It is true that an examination of the cases shows that the notions of acting fairly, natural justice and the right to be heard are not always consistently treated in relation to each other. Sometimes acting fairly is considered to be the same thing as following the rules of natural justice; sometimes the two are clearly distinguished. Sometimes natural justice is treated as necessarily including the duty to give an opportunity to be heard, sometimes not. But it seems to me that in the cases which bear most directly on the present, where “there must be something against a man to warrant his dismissal”[cdlxxi]⁵⁸ the courts have repeatedly referred in the clearest terms not merely to “acting fairly” or even to “natural justice” but to what amounts to the principle of audi alteram partem. To confine the point to the cases cited by Greville Smith J., one finds the following expressions used: “an opportunity to respond”, Re Nicholson and Haldimand v. Norfolk Regional Board of Commissioners of Police[cdlxxii]⁵⁹; “the opportunity of making his defence”, L’Alliance Des Professeurs Catholiques De Montreal v. Quebec Labour Relations Board[cdlxxiii]⁶⁰; “an adequate opportunity of being heard”, The Commissioner of Police v. Tanos[cdlxxiv]⁶¹; “right of self defence”, Durayappah v. Fernando[cdlxxv]⁶²; “opportunity of being heard”, Wiseman and Another v. Borneman and Others[cdlxxvi]⁶³; “opportunity being afforded the affected party of opposing its exercise”, Twist v. Council of the Municipality of Randwick[cdlxxvii]⁶⁴.

It was submitted on behalf of the appellant that the rule in Ridge v. Baldwin[cdlxxviii]⁶⁵ applied only in a situation where a person’s “rights” properly so called were interfered with or about to be interfered with. If I understand the argument correctly the “right” to be heard is properly viewed as part and parcel of a broader “right” which is not to be taken away without giving the person concerned the opportunity of being heard on his own behalf. On this basis Ridge v. Baldwin (supra) should, so it seems on the argument, be regarded as a case really about pension rights and not so much about the rules of natural justice.

Although some of the judges in Ridge v. Baldwin[cdlxxix]⁶⁶ referred to the loss of pension which would have been involved in the Chief Constable’s dismissal, I do not regard the question of pension as being part of the ratio of the decision. It is therefore unnecessary to decide whether the respondent in the present case stood to lose accrued benefits in accordance with s. 24 of the National Airline Commission Act 1973.

Nor is it to the point in my view to endeavour to decide the present case on the question as to whether the respondent had a right to remain in office until the completion of his term. To say that his right to remain in office subsisted only until such time as the Minister saw fit to dismiss him pursuant to s. 23(2) is to beg the question, for the Minister is empowered to dismiss him only according to law and that is the very point we have to decide. I would accept that it is not clear whether the doctrine of “legitimate expectation” as expounded by Lord Denning in Schmidt v. Secretary of State[cdlxxx]⁶⁷ and Birdi v. Secretary of State[cdlxxxi]⁶⁸ is part of the law of Papua New Guinea. In Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea[cdlxxxii]⁶⁹ Wilson J. seemed to think it was, Saldanha J. seemed to think that it was not and the other judges did not advert to the subject. The two English cases involved the power to deport aliens which is a very special area of the law in which it has been said that “the courts are never at a loss to find a reason for denying the alien a right to a hearing”[cdlxxxiii]⁷⁰. I do not find it necessary to decide whether the law in this country should provide a remedy for a plaintiff who holds a “legitimate expectation” to an office or a status or some other sort of benefit of which he has been deprived.

I must make some reference to Mr. Young’s initial submission that for the purpose of the demurrer the plaintiff has not identified the cause of action upon which he relies. As one who shares for better or worse a background in the strict common law system of pleading I found that submission attractive. The plaintiff’s claim is clearly not an action in contract, nor is it founded on one of the common law forms of action; nor is it a claim in equity; therefore, so the argument goes, the cause of action must be found in the statute itself. Yet the statute which is couched in terms of the Minister’s powers makes no reference to a right to be heard, not even to a duty from which a right may be inferred.

Part of the answer it seems to me is that the demurrer in the case is to a statement of claim which is of course pleaded according to the judicature system which has always applied in Papua New Guinea. Demurrers do not fit easily into the judicature system of pleadings. Most jurisdictions which adopted the judicature system abolished the demurrer and replaced it with a procedure of argument on a preliminary point of law, which procedure is usually available only by leave and where a decision on the preliminary point of law would be decisive of the action itself. The Supreme Court of Queensland has retained the demurrer as well as utilizing the preliminary point of law, and this Court has for the time being at least to follow the Queensland rules as adopted into this country.

It therefore needs to be said that whilst it is true that there is no “right of action” at law for a plaintiff owed and denied the application of the rules of natural justice, the situation had been reached in England by 15th September, 1975 where the courts granted relief to such a plaintiff in a variety of ways—whether by way of order in the nature of prerogative writ of mandamus or prohibition[cdlxxxiv]⁷¹ or certiorari[cdlxxxv]⁷², or by injunction[cdlxxxvi]⁷³, or as is sought in the present case, by declaration[cdlxxxvii]⁷⁴. Proposals for the simplification of procedures and clarification of remedies have been made by various law reform bodies[cdlxxxviii]⁷⁵.

I am in agreement with the submission of Mr. Young that the statement of claim, particularly par. 12 thereof, might have been cast in such a way as to enable the issues between the parties to be more precisely formulated, but this is not fatal to the statement of claim. There has been no application for further particulars or to strike out any part of the statement of claim and the ultimate question to be decided on the demurrer is whether the respondent would (subject to the court’s discretion) be entitled to the declaratory relief sought on the statement of claim as it stands.

One of the submissions on the appellant’s behalf (or perhaps a theme common to more than one of the submissions) was that the act of the Minister in exercising the power of dismissal under s. 23(2) involved an administrative discretion similar to the exercise of a power to control the movement of aliens in and out of the country. This Court has already decided that the power to make decisions in relation to the deportation of an alien is not subject to the right of the alien to be given a hearing: In the matter of Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea[cdlxxxix]⁷⁶. However as indicated above the power to deport aliens has always been regarded as a special category and I do not think that any purpose is served by drawing an analogy between that power and the power to dismiss a general manager appointed under the National Airline Commission Act 1973.

However the submission went further and was to the effect that the Minister for Transport was in relation to s. 23 carrying out a function which in pre-Independence days would have been regarded as part of, or at least allied to, the prerogative of the Crown and it would not be part of the court’s function to interfere with the exercise of that prerogative. Reliance was placed on the decision of the N.S.W. Court of Appeal in Ex parte The Queen on the relation of Warringah Shire Council and Another; re Barnett[cdxc]⁷⁷ in which it was decided that the principle of audi alteram partem had no application to the power given to the Governor-in-Council to remove shire councillors from office under local government legislation.

It seemed to me initially that this was a persuasive argument. The Minister of Transport is the inheritor of powers which were originally given to the Administrator of the Territory before Independence, and it was argued that the Administrator’s position was similar to that of a Governor. The Governor of an Australian State is a vice-regent exercising the powers of the Sovereign with the advice of the Executive Council[cdxci]⁷⁸ and with regard to the Governor-General it has been indicated in the Australian Communist Party v. The Commonwealth[cdxcii]⁷⁹ that the courts will not examine the exercise of vice-regal power on any ground.

However upon reflection and with the assistance of some remarks that fell from Pratt J. during the hearing of the appeal, I have come to the conclusion that the position of the Administrator (or High Commissioner as he became) was not to be assimilated to that of the representative of the Crown even though he was the delegate of the Governor-General in Canberra: see Fishwick v. Cleland & Ors.[cdxciii]⁸⁰. Because of the autochthonous nature of the Constitution of the Independent State of Papua New Guinea it may in any event be irrelevant to look at the position of the Administrator in the pre-Independence situation: see The State v. John Mogo Wonom[cdxciv]⁸¹.

I express no view as to whether there is any room for the operation in Papua New Guinea for the principal in Barnett’s case[cdxcv]⁸². It is not uncommon in other countries for people in public office to be appointed and removed by the Governor or Governor-in-Council without the right to a hearing (for instance the Commissioner of Police in South Australia, Public Defenders in New South Wales, Commissioners of the Australian National Airlines Commission). The general manager of Air Niugini is not in such a vulnerable position, at least while the power to dismiss remains delegated to the Minister, and not with the Head of State.

It follows then for the purpose of deciding the demurrer that if no defence were made to the statement of claim as it stands then the respondent would be entitled to the relief sought, namely a declaration that the Minister’s decision was null and void, such entitlement being subject to the discretion of the court to refuse to make a declaration, declaratory relief being always in the discretion of the court.

Lest it be considered that the point has been overlooked I would add that I am far from convinced that if the respondent were to prove the allegations in the statement of claim then he would be entitled to damages against the Minister. Mr. Young foreshadowed that argument on this aspect might take place at a later stage in the proceedings but it did not form part of the demurrer.

It was agreed between the parties that the only question to be decided on this appeal related to the respondent’s claim to a right to be notified of what was alleged against him and to be heard in his own defence. The appropriate order then is to dismiss the appeal, appellant to pay respondent’s costs. The complexity and importance of the appeal warrants certifying for overseas counsel.

Appeal dismissed. Appellants to pay respondent’s costs. Certification for overseas counsel granted.

Solicitor for appellants: Acting State Solicitor, R. K. Woods.

Solicitor for respondent: Young & Williams.

[cdxiv] Infra p. 275.

[cdxv] Infra p. 275.

[cdxvi] Infra p. 275.

[cdxvii] [1980] P.N.G.L.R. 101.

[cdxviii] [1979] P.N.G.L.R. 329.

[cdxix] [1964] A.C. 40; [1963] 2 All E.R. 66.

[cdxx] [1967] 2 A.C. 337; [1967] 2 All E.R. 152.

[cdxxi] [1979] P.N.G.L.R. 329.

[cdxxii] [1979] P.N.G.L.R. 329.