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National Airline Commission v Joel, Secretary for Labour and Employment; PNG Flight Attendants Association; and Bunam Lambert Damon, as Industrial Registrar [1992] PNGLR 132 (2 April 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 132 - National Airline Commission v Aphmeledy Joel, Secretary for Labour and Employment; PNG Flight Attendants Association; and Bunam Lambert Damon, as Industrial Registrar 

[1992] PNGLR 132

N1055

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NATIONAL AIRLINE COMMISSION (TRADING AS AIR NIUGINI)

V

APHMELEDY K JOEL AS SECRETARY FOR LABOUR & EMPLOYMENT, PAPUA NEW GUINEA FLIGHT ATTENDANTS ASSOCIATION AND BUNAM LAMBERT DAMON AS INDUSTRIAL REGISTRAR

Waigani

Brown J

2 October 1991

2 April 1992

JUDICIAL REVIEW - Jurisdiction - Determination by Secretary for Labour on appeal from Grievance Board constituted pursuant to agreement - Determination in the nature of private arbitration - Judicial review not available in these circumstances.

RULES - National Court Rules - Orders in nature of prerogative writs - Certiorari and mandamus - Rules not intended to extend power of court - Circumstances where such writs would previously lie - No statutory extension - No issuing of prerogative orders in private arbitration - National Court Rules O 16 r 1.

Facts

The National Airline Commission (Air Niugini) made an application to the National Court for it to remove and quash the decision of the Secretary for Labour which confirmed the order of a grievance board for the reinstatement of nine dismissed employees of the airline.

The employees who were members of the PNG Flight Attendants Association, the second defendant in the action, were dismissed by the applicant for refusing to carry out their duties as flight attendants on a flight from Singapore to Moresby. The order of termination was made after the airline had enquired into the incident.

There was agreement between Air Niugini and the Flight Attendants Association to refer disputes to the grievance board with a further appeal to the Secretary for Labour or his delegate. Air Niugini, being dissatisfied with the order of the Secretary, which affirmed the decision of the board for reinstatement, sought a certiorari order. The following issues were raised:

(i)       whether the agreement was a private or public document in view of the requirement of registration and whether the Secretary acted in his private or public capacity; and

(ii)      if Secretary acted in a private capacity, whether the Court has jurisdiction to interfere with his decision.

Held

1.       The Airline Flight Attendants Agreement was a private contractual arrangement between the parties. The Secretary was acting as a private arbitrator and not in his official office, which had no regulatory power over the employees in any event. Consequently, the second defendant was not a "decision maker" to whom certiorari will lie.

2.       O 16 r 1 of the National Court Rules does not extend the jurisdiction of the National Court beyond that jurisdiction envisaged by orders in the nature of certiorari or mandamus where a private arbitration under an agreement gives rise to a determination so as to enable the Court to review such determination.

Cases Cited

Papua New Guinea cases cited

Bougainville Copper Ltd v Elias (unreported National Court judgment of 25 November 1987).

Condon v National Airline Commission [1978] PNGLR 1.

Ela Motors Ltd v McCrudden exparte Hoepper [1973] PNGLR 436.

Sulaiman v Papua New Guinea University of Technology [1987] SPLR 267.

Thirlwell v Minister for Labour & Employment (unreported National Court judgment of 3 December 1987).

Other cases cited

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1947] 2 All ER 680.

Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935.

Heywood v Hull Prison Board Visitors [1980] 3 All ER 594.

In Carus-Wilson and Green [1886] UKLawRpKQB 148; (1887) 18 QBD 7.

Industrial Relations Bureau v Knox (1982) 24 AILR 203.

Joseph Crofield & Sons Ltd v Manchester Ship Canal Co [1905] UKLawRpAC 40; [1904] 2 Ch 123.

Law v National Greyhound Racing Club Ltd [1983] EWCA Civ 6; [1983] 1 WLR 1302.

MEPC Australia Ltd v The Commonwealth [1973] 2 NSWLR 848.

R v Civil Service Appeal Board, ex-parte Bruce [1988] 3 All ER 686.

R v Criminal Injuries Compensation Board, ex-parte Lain [1967] 2 QB 864.

R v Disputes Committee of the National Joint Council for the Craft of Dental Technicians [1953] 1 All ER 327.

Counsel

P Payne, for the plaintiff.

J Reeve, for the second defendant.

I Mesulan, for the first and third defendants.

2 April 1992

BROWN J:  This application for judicial review arises out of the confirmation by the first defendant of a determination by a grievance board on 21 March 1991 whereby Mr Joel confirmed the decision of the board to reinstate employees of Air Niugini whose employment had been terminated.

The plaintiff in its application for judicial review seeks orders:

(a)      that the decision of the first defendant dated 21 March 1991 be quashed;

(b)      a declaration that such decision is null and void and of no effect;

(c)      a declaration that the plaintiff's termination of nine members of Air Niugini for misconduct on or about 1 December 1990 was lawful;

(d)      an order in the nature of mandamus requiring the first defendant to hear and determine the plaintiff's appeal from the decision of the grievance board and;

(e)      such further or other orders as the Court deems fit.

The plaintiff did not pursue ground (d), rather it sought this Court's determination of the appeal on other courses which I refer to in discussing Mr Payne's (for the plaintiff) argument below.

BACKGROUND

The plaintiff (Air Niugini) employed some nine members of the second defendant (the Association) who, on or about 1 December 1990, refused to carry out their duties as flight attendants on Air Niugini's flight PX 393 from Singapore to Port Moresby. The nine members of the Association alleged that they had not received a proper rest break prior to the commencement of the flight and, despite receiving lawful directions from Air Niugini through its management, the nine flight attendants refused and failed to carry out their duties upon the flight. On 5 December 1990, following the arrival of the aircraft at Port Moresby and consequent upon an inquiry by Air Niugini, the employment of the nine members of the Association was terminated forthwith.

The members of the Association were employed by Air Niugini pursuant to an agreement, Airline Flight Attendant (PNG) Agreement 1987. The agreement is a registered industrial award, having been registered pursuant to s 33(1) of the Industrial Relations Act Ch 174 on 11 June 1987.

The Agreement by clause 29 provides:

"(a)     there shall be a grievance board consisting of five members, two of whom shall be selected and appointed by the Airline Flight Attendants Association and two by the employer, together with an independent chairman, who shall be appointed by the Department of Labour.

(b)      the grievance board shall be empowered to deal with settlement of disputes arising out of the agreement... .

(c)      ... .

(d)      ... and;

(e)      either party to this agreement may at any time appeal to the Secretary for Labour or his delegate against the determination of the grievance board and the Secretary for Labour or his delegate may confirm vary or annul the determination".

Both Air Niugini and the Association were signatories to the agreement.

THE BOARD HEARING

The sacking or termination of the nine members of the Association was referred to a grievance board pursuant to that clause, with a view to reinstatement. The board heard the dispute and ordered that the nine members of the Association be re-instated on 26 February 1991. The following day, Air Niugini gave notice of appeal to the Secretary of Labour & Employment and on 4 March submitted a ten-page letter by way of detailed submissions on appeal. The plaintiff's submissions on appeal cogently identified areas where, Air Niugini asserted, the board had mistaken facts, had taken into account irrelevant considerations, and had ignored certain relevant material. By letter dated 21 March 1991, Aphmeledy Joel, by his determination, confirmed the findings of the board.

COUNSEL'S ARGUMENTS - THE PLAINTIFF'S CASE

Mr Payne appeared for the plaintiff. He stated that the public authority exercising a discretionary power must exercise that power according to law. Any decision of such an authority may be impugned if the authority has been guided by irrelevant considerations or fails to be guided by relevant considerations. He refers the Court to Bougainville Copper Limited v Elias (unreported National Court Judgment, Bredmeyer J, of 25 November 1987). I consider with that premise there can be no argument.

Mr Payne then went on to identify matters which the first defendant has failed to take into consideration by reference to the grounds of appeal contained in the plaintiff's letter of 4 March 1991. As Mr Payne says, the reasons given by Aphmeledy Joel are unsupported by any of the evidence before the grievance board. Mr Payne went on to criticise the reasoning of the first defendant, relying on statements that he made in his letter of determination. Because of the manner in which the first defendant has embarked on the determination of this appeal, Mr Payne says there has been a denial of natural justice for Mr Joel's determination appears to be unrelated to material touched on in the notice of appeal, but rather, is disparaging of Air Niugini's attitude, perceived by Mr Joel as adverse to a sincere attempt at the hearing before the grievance board to resolve this dispute.

Mr Payne submitted that this matter is an appropriate one for judicial review because Mr Joel, in considering the appeal from the grievance board, was acting in his public capacity as the Secretary for Labour & Employment. In support of that argument, he pleads that the agreement is a public document by reason of its registration pursuant to s 33(1) of the Act. Mr Payne points out that Mr Joel, in evidence, states that determinations of boards constituted under clause 29 of the Agreement are not registered as awards, yet Mr Joel forwarded a copy of his determination of 21 March 1991 to the Industrial Registrar.

Mr Joel says it was to be made available for public reference.

Mr Payne was careful to categorise Mr Joel's function as the Secretary for Labour & Employment (whilst dealing with the appeal from the grievance board), not that of a private person. It was by virtue of Mr Joel's position as office-holder, the Secretary for Labour, that he heard the appeal pursuant to clause 29(e) and not because of his expressed knowledge of industrial relations. Consequently, the first defendant was exercising a public function and not a private function. This Court may, accordingly, enter upon a judicial review of the exercise of that function.

Mr Payne further argued that if the Court found that Mr Joel was acting in a private capacity, in any event, the Court still has jurisdiction in these proceedings to make orders setting aside the determination of Mr Joel pursuant to O 16 r 9(5) (the Court may whilst refusing judicial review order the proceedings to continue as if they had been begun by writ). By way of reverse analogy, Mr Payne referred the Court to Heywood v Hull Prison Board of Visitors [1980] 3 All ER 594. (In Heywood's case the Court determined that the proceedings, commenced by writ seeking a declaration, should be stayed as they should have been properly commenced by way of judicial review and there was no power to "convert" proceedings commenced by writ into an application for judicial review).

Mr Payne in these circumstances submitted that the plaintiff had remedies, including an order in the nature of certiorari to quash the decision of the first defendant, as the first defendant had acted ultra vires in taking into account irrelevant matters and failing to take into account the relevant matters contained in the plaintiff's appeal from the grievance board. The plaintiff further submitted that the matter should not be remitted to the first defendant for re-hearing because of the first defendant's attitude to the appeal, for he has misled himself on principle. In the circumstances, the plaintiff says it is appropriate that this Court re-hear the matter and the plaintiff is entitled, on the evidence, to a declaration that its termination of nine members of the Association for misconduct on 1 December 1990 was lawful.

In the alternative the Court should quash the decision of the first defendant and appoint an arbitrator under s 13 of the Arbitration Act Ch 46.

Mr Payne finally says that, if the Court determines that this is not an appropriate matter for judicial review, then the first defendant has been acting as an arbitrator in determining the plaintiff's appeal. As such the Court has power to set aside the determination of the first defendant on the grounds that the first defendant misconducted himself by failing to consider the plaintiff's grounds of appeal according to law.

MR REEVE'S ARGUMENT FOR THE ASSOCIATION

He reminded the Court that the Industrial Relations Act reflected pre-independence industrial relations legislation but that, while ad hoc tribunals may be appointed under s 29 of the Act, there was no industrial court. He argued that the absence of an industrial court should not cloud this Court's realisation that industrial law was altogether different in character, for it was conducted outside a normal court system, was non-legalistic in nature and had its own specialised body of law. He referred me to a monograph by the Secretary for Labour & Employment, Mr Joel, particularly with respect to the role that arbitration plays in Papua New Guinea.

He went on to point out that s 29 of the Act provides for a reference to a tribunal of an "industrial dispute". But such a reference was not made here, for the industrial agreement between the parties, whilst registered as required by law, was a private agreement. Clause 29 of that agreement provided for the constitution of a grievance board and, in this instance, such a board was constituted to deal with the dispute. Further, pursuant to clause 29(e) the decision of the board was appealed to the Secretary for Labour who chose to confirm the board's determination. But it is wrong to confuse this process with the decision-making process under s 29 of the Act, in spite of the Secretary's actions in sending the determination of the appeal to the Industrial Registrar for "safe keeping" not, Mr Reeve says, as an award requiring registration under the Act. Registration only applies to an award of a tribunal under the Act, and the Secretary in these circumstances was not acting as a tribunal under the Act, but rather as an appellate authority constituted by the private agreement. Consequently, the injunction obtained preventing the Registrar from registering the determination of the appeal was obtained on a false premise and, incidentally, totally unnecessary. It was not a decision that could be registered.

Mr Reeve goes on to say that the plaintiff's application contains prayers for relief which misdirect themselves from an examination of the Secretary's determination to that of the airline's wish for a declaration that the termination of employment of the nine staff was lawful. In fact, the Secretary's determination goes not to the correctness or otherwise of the termination of the staff for misconduct but to the Association's claim for reinstatement. He says, by its very nature, reinstatement presupposes a dismissal but that principles relating to reinstatement have been ignored by the plaintiff in its review grounds, which go to the justification of the dismissal, are legalistic in nature, and show a misunderstanding of the system of industrial relations contemplated by the Association and the plaintiff on a proper view of their agreement.

The question for the Secretary was not if the dismissals should stand but whether the reinstatements ordered by the grievance board were justified. The reinstatement principles were touched on in Condon v National Airline Commission [1978] PNGLR 1.

Mr Reeve then went on to criticise the plaintiff's failure to call the Secretary for cross-examination on his affidavit, for the plaintiff had argued that the Secretary had no regard to the submissions made by the airline by letter before his determination, for Mr Joel's letter of determination of 21 March 1991 makes no reference to those submissions. That is as I apprehend his argument, for he summarised the Secretary's stance on review of the grievance board, when dealing with Air Niugini's submissions, as "if you didn't say enough before the board, that is your problem. I see no reason to interfere". So I suppose Mr Reeve is saying that it may be implied, from the tenor of Mr Joel's letter, that he had regard to those submissions of Air Niugini, but that they did not find favour. I should say that I find no merit in that part of his argument. Failure to specifically mention matters in his determination cannot support any inference that the Secretary had regard to such matters.

But Mr Reeve then proceeded to make his principal point, that this Court had no power to judicially review the Secretary's determination. His is a jurisdictional argument, not one of discretion. He says that the rights of the parties are governed by private agreement, that such agreement does not envisage any such judicial review and since the proceedings do not involve a public officer's determination affecting rights, judicial review is not available. He referred me to a series of authorities.

Mr Reeve went on to say that if I was against him, this Court should not substitute a finding but rather should refer the board's determination back to the Secretary for further determination with directions on the proper conduct of such review. He does not concede that this Court should direct Mr Joel on procedural aspects, for they are entirely within his province. Mr Reeve continued to criticise the plaintiff for failing to cross examine Mr Joel as to what was or was not in his mind on review, rather than relying on an expressed belief in Mr Aisa for the plaintiff, that Mr Joel failed to consider material facts. Mr Reeve, if I understood him correctly, related this to Mr Joel's prerogative to determine how he should procedurally deal with the material before him. The fact that, in his reasons of 21 March 1991, he fails to mention specifically the plaintiff's submissions is no evidence, Mr Reeve says, that he didn't consider them.

Addressing Mr Payne's arguments, Mr Reeve says the Court has no jurisdiction. If it should find jurisdiction, but decline to judicially review, rather than, direct continuation of proceedings as if begun by writ, the Court in the exercise of a discretion should decline to become involved because of the peculiar nature of industrial relations. Again, when considering whether the proceedings should have been commenced by way of judicial review or writ, Heywood's case should not be followed for it is not part of the adopted law of PNG and the industrial relations regime in this country is dissimilar to that in England. The appropriate course, Mr Reeve says, if I am against him in his various arguments, is to refer the appeal by Air Niugini back to a delegate appointed pursuant to clause 29(e) for further determination.

MR MESULAN'S ARGUMENTS FOR THE FIRST AND THIRD DEFENDANTS

His was a literal approach to the wording of clause 29 of the Agreement. The board was created and its function was to settle disputes, the parties having agreed on this form of dispute settlement outside the Industrial Relations Act Ch 174. The Secretary for Labour has done no more than confirm the determination of the grievance board in accordance with his powers in clause 29(e). Mr Mesulan criticises the grounds of the plaintiff's claim for judicial review, that "errors of fact and law" are alleged when there is no actual obligation imposed by law. The proper question for this Court, then is whether the Secretary's decision is "reasonable". He uses "reasonable" in the Wednesbury sense. So far as his expressed "reasons" in his letter of determination of 21 March 1991 are concerned, Mr Mesulan says if the Industrial Relations Act, s 52 can be any guide, the Secretary may inform himself as he thinks fit and is not bound to observe strict legal procedure or apply technical rules of evidence. On the question of "reasonableness" Mr Mesulan referred the Court to Industrial Relations Bureau v Knox Auto Parts & Accessories Pty Ltd (1982) 24 AILR 203 and Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935, and Lord Diplock's judgment at 949. He did not develop his argument, but I presume him to be alluding to Lord Diplock's second head of three, the ground on which administrative action is subject to control by judicial review. This head, "irrationality", Lord Diplock refers to as "Wednesbury unreasonableness", Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1947] 2 All ER 680.

POINT OF ISSUE

Mr Mesulan's argument leads me very quickly to what I consider to be the first and most important issue. Mr Mesulan says that the relationship between these two parties is regulated not by law but by an agreement. He makes the point that the grievance board does not arise by operation of law under the Industrial Relations Act, for instance, (Boards of Reference s 32). He says that the parties have agreed on how their participation in a dispute shall be conducted. In other words, there is an established procedure. But Mr Mesulan goes on to deal with Mr Joel's powers on review, powers which are defined by clause 29 of the agreement. It is how he should approach and carry out his function that Mr Mesulan next addresses. He characterises that function as some prerogative right in Mr Joel whilst imbued with quasi judicial powers and concedes that as such Mr Joel's exercise of such powers are subject to judicial review. He is at pains to point out, relying on Council of Civil Service Unions v Minister for the Civil Service that "irrationality" must be found before Mr Joel's decision may be attacked by this Court by judicial review. He fails to address the question of the source of power. It is not statute nor common law but rather is found in the agreement at clause 29. The subject matter of the dispute, the union's claims for reinstatement, are justiciable where an industrial dispute exists. [Ela Motors Ltd v McCrudden exparte Hoepper [1973] PNGLR 436; Condon v National Airline Commission [1978] PNGLR 1]. But neither party had embarked on a course to appoint a board by reporting the dispute in accordance with the provisions of the Industrial Relations Act. So whilst justiciable, both parties have followed the agreement, by pursuing the grievance procedures in clause 29. Either an industrial dispute has been reported or the parties have proceeded by agreement to arbitrate. In fact, the latter course has been adopted.

JURISDICTION ARGUMENT

As I say, on the authority of those two cases, judicial review would be available were the dispute justiciable. That must be the first issue to be decided, for unless the plaintiff can satisfy me on that point, he is without jurisdiction to argue further.

Mr Payne, in support of the plaintiff, says that Mr Joel was acting in his public capacity as Secretary for Labour. That is difficult to accept on its face, for does the Secretary for Labour's public function encompass acting in the capacity of an arbitrator for parties who contract with one another? The Secretary's duty must surely be to his department and indirectly the State, so his appointment as arbitrator does not arise out of, nor is it, in the course of his appointment as Secretary, as the evidence stands. The plaintiff has failed to discharge his onus of proof.

I say that bearing in mind that Mr Joel's function prescribed by clause 29 is that of arbitrator. It was clearly in the nature of an award on an arbitration which he could confirm, vary or annul. His function needs to be clear. There is no doubt he was to act as a final arbitrator and determine the questions which had arisen by appeal. The Secretary was not carrying out some other function. He may be distinguished from that of an umpire, for instance, dealt with by the English court.

The Court of Appeal refused an appeal from the Queen's Bench Division which found that an umpire, appointed by two valuers unable to agree, and who made a valuation, was not making such valuation in the nature of an award on an arbitration. He was merely substituted for valuers. [In re Carus-Wilson and Green [1886] UKLawRpKQB 148; (1887) LR 18 QBD 7].

I am satisfied the Secretary was clearly expected to carry out a function as arbitrator. In my opinion, it was unrelated to his duties as head of department. His primary function is that of arbitrator under the agreement. He could have declined the appointment. He chose not to. That does not bring his function into the public domain sufficient for purposes of review.

His caustic criticism of the appellant's actions by recourse to clause 29(e), while paying scant regard to the very real concerns of the airline over what it considered to be failings in the findings and reasonings of the grievance board, has made up the greater part of counsel's argument before me. But, as I say, I need not consider that aspect unless I am satisfied this Court has jurisdiction to do so. Mr Mesulan appears to concede the point. Mr Payne argues that I have jurisdiction while Mr Reeve denies jurisdiction.

As I have said, Mr Reeve argued that this clause 29 is by way of private agreement, founded on contract. The conciliation process under the Industrial Relations Act has not been resorted to. No arbitration tribunal has been appointed under s 24 of the Act. With those submissions I agree. What effect, then does the private agreement have on the parties' rights to review the arbitrator's award in this Court.

COUNSEL'S ARGUMENTS ON JURISDICTION QUESTION

Mr Mesulan referred me to Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935 as authority for his submissions that the Secretary's actions could only be reviewed where "Wednesbury unreasonableness" was shown, but as Lord Diplock says at 949:

"for a decision to be susceptible to judicial review, the decision-maker must be empowered by public law (and not merely as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph".

Mr Reeve relied upon a decision of Woods J on 20 August 1987 at Lae, where he quotes the same part of that judgment of Lord Diplock as above for finding, in the circumstances of his case, that the National Court will not review a dismissal effected by the Council of the University, effected in accordance with the provisions of a contract, by nature private, for civil remedies were available in contract law. (Sulaiman v Papua New Guinea University of Technology [1987] SPLR 267.)

Mr Payne's submissions proceeded on the basis that "a public authority exercising a discretionary power must exercise that power according to law". He relies on the string of cases which he cites including Bougainville Copper Ltd v Elias (unreported National Court judgment, Bredmeyer J of 25 November 1987); Thirlwell v Minister for Labour & Employment (unreported National Court judgment, Cory J of 3 December 1987). In these cases, the authority whose decision was under review squarely fell within the public domain as an authority or decision-maker empowered by legislation to carry out the administrative or quasi-judicial actions which altered rights of the aggrieved applicants. In the first case, Elias was acting as a tribunal appointed under ss 18, 21 and 29(2)(a) of the Industrial Relations Act Ch 174. In the second case, the Minister for Labour was the appropriate public officer with power to deal with an appeal from the Secretary for Labour's refusal to grant a work permit.

COURT'S FINDINGS

In my view the Secretary cannot be such a decision maker. Firstly, he is clearly an arbitrator. Secondly, he is not acting as a public authority empowered by law (whether a tribunal appointed under the Industrial Relations Act, or otherwise) nor is he a part of the airlines commission, with some regulatory power. He is, in this case, acting by consent in a private capacity as an arbitrator called in by agreement. He is not making decisions which alter rights or obligations. He is arbitrating claims for reinstatement, the rights of the employees having already been adversely affected. It is important to recognise the distinction. In R v Civil Service Appeal Board ex-parte Bruce [1988] 3 All ER 686, the Queen's Bench Division was asked to consider judicial review of a board's decision confirming dismissal of a public servant engaged by letter of appointment, not under a contract of employment. Because of the nature of the employment, there was a sufficient public law element, but nevertheless, the court found that the most appropriate forum for resolving dismissal disputes was an industrial tribunal and consequently exercised its discretion and dismissed the application for judicial review of the board's decision. The Board was not "an industrial tribunal" but that avenue was open to the aggrieved public servant. But here, the appeal has been dealt with by the parties' chosen arbitrator. If I was to interfere, I would be undoing an agreement. I consider it is not a matter of my discretion, whether leave should now be refused or not; rather, before that point is reached, I must be satisfied that the Court has jurisdiction and, as I say, I do not consider Mr Joel is a decision maker "empowered by public law". I, consequently, am not satisfied on the plaintiff's argument to the contrary.

On the other hand, if I am wrong on this point I would not exercise my discretion to grant leave, for the parties clearly agreed in clause 29 on a grievance procedure with an avenue of appeal. Such grievances should be resolved in the manner contemplated by the parties in their agreement. Having registered the Airline Flight Attendant Agreement 1987, the Court, on application, can enforce compliance with the terms of the award. The fact of registration does not, in my opinion, make the Secretary a "public officer" to impute a public law element. Mr Joel's primary role is as an arbitrator, and his powers do not spring from his office as Secretary. They are solely governed by clause 29(e) of the Agreement.

I also wish to say that the manner in which the respective parties conducted the grievance hearing before the board originally constituted to hear this dispute may have partly spawned the manifold complaints that Air Niugini raised over the final decision. It may well be indicative of a lack of industrial experience in the members of the board or representatives appearing, but it is not a relevant matter for this Court when determining the rights of parties to review; rather, the Court looks to clause 29 of the agreement. I am minded to refer to MEPC Australia Ltd v The Commonwealth [1973] 2 NSWLR 848 where Wootten J, dealing with an application for a declaration as to the meaning of certain clauses in a lease document, said at 854(f); "I approach the matter, therefore on the basis that the present rights of the parties are still to be ascertained by reference to clause 3(b)(of the lease) unqualified by anything arising out of the efforts which they hitherto made to carry that provision into effect". Such is the case here. There has been much said about the deliberations of the board, the manner in which Mr Joel has approached his task, but the agreement determines the right, if any, of the parties to a review.

In R v Disputes Committee of the National Joint Council for the Craft of Dental Technicians [1953] 1 All ER 327, on a motion for an order of certiorari to quash an order made on 3 July 1952 by the Disputes Committee Dental Technicians declaring that the employers of an apprentice were entitled to dismiss him from their employment, and for an order of prohibition to prohibit the committee from further proceeding in an arbitration between the employers and the apprentice, Lord Goddard CJ for the Court (QBD) said, referring to a provision in an indenture of apprenticeship dealing with the reference of disputes to the National Joint Council for the Craft:

"That simply is a reference to an arbitrator, and I have never heard of certiorari or prohibition going to an arbitrator. Arbitration is a very old remedy in English law, but in all the centuries that have passed since the decisions of English courts first began there is no trace of an arbitrator being controlled by this Court by writ of either prohibition or certiorari. The bodies to which in modern times the remedies of these prerogative writs have been applied are all statutory bodies on whom Parliament has conferred statutory powers and duties the exercise of which may lead to the detriment of subjects as, for instance, where a statute gives a certain body power for the compulsory acquisition of land an arbitrator is set up by Parliament to assess the compensation, and it is essential that the Court should be able to control the exercise of the statutory jurisdiction within the limits imposed by Parliament. There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom, by statute, the parties must resort. It would be an enormous departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator, whether he be a single arbitrator or a body of gentlemen called a committee or council and I am of the opinion that we must dismiss these applications on the ground that they are wholly misconceived."

This principle has also been applied in Fiji (see In the matter of an application by Subaiya Pillay for leave to apply for judicial review, Review No 23/84 (unreported judgment of Sheehan AJ)). It remains to be said that I consider the principle applies in this case. I am further satisfied that I may entertain Mr Reeve's argument of ouster of jurisdiction on this hearing, even though leave to argue the judicial review has been previously given. Leave implies no final decision on any issue, and the Court's jurisdiction to entertain the application is available for argument. (See Joseph Crosfield & Sons Ltd v Manchester Ship Canal Co. [1905] UKLawRpAC 40; [1904] 2 Ch 123.)

Finally, I do not consider O 16 of the National Court Rules alters the law on judicial review so as to enlarge this Court's jurisdiction and become involved in such domestic arbitrations notwithstanding their decisions may be matters of public interest.

The English Rules of the Supreme Court Ord 53 r 1 is in similar form to our O 16 r 1. The English Court of Appeal had cause to consider that question in Law v National Greyhound Racing Club Ltd [1983] EWCA Civ 6; [1983] 1 WLR 1302. There Ord 53 r 1 had received statutory confirmation in terms of s 31 of the (English) Supreme Court Act 1981. The Court of Appeal adopted and followed R v Criminal Injuries Compensation Board, ex-parte Lain [1967] 12 QB 864, quoting Lord Parker CJ at 882:

"The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari, since their authority is derived solely from contract, that is, from the agreement of the parties concerned."

More particularly, on the question of extended jurisdiction he said at 882:

"Ord 53, r 1(2) does not strictly confine applications for judicial review to cases where an order for mandamus, prohibition or certiorari could be granted. It merely requires that the Court should have regard to the nature of the matter in respect of which such relief may be granted. However, although applications for judicial review are not confined to those cases where relief could be granted by way of prerogative order, I regard the wording of Ord 53, r 1(2) and section 30(2) of the Act of 1981 is making it clear that the application for judicial review is confined to reviewing activities of a public nature as opposed to those of a purely private or domestic character. The disciplinary appeal procedure set up by the B.B.C. depends purely upon the contract of employment between the applicant and the B.B.C., and therefore it is a procedure of a purely private or domestic character."

I consider these comments apposite with respect to our O 16 r 1.

I consider that the grievance procedure in the Airline Flight Attendants Agreement is contractual. The contract provides for an arbitrator by way of final appeal. The fact that such arbitrator is the head of a department does not alter the nature of the private arbitration. As a matter of law, no application for orders in the nature of certiorari lie in that case. Consequently, I consider judicial review is not open to the plaintiff. The plaintiff's motion seeking orders in terms of its application for review is refused.

On the question of costs?

AFTER ARGUMENT

The State and the Secretary conceded that jurisdiction lay with the Court.

I consider these parties should pay their own costs. The plaintiff shall pay the second defendant's costs of the proceedings.

Lawyer for the plaintiff: Blake Dawson Waldron.

Lawyer for the second defendant: Warner Shand.

Lawyer for the third defendant: State Solicitors Office.