National Executive Council, the Attorney-General, and Lucas v Public Employees Association of PNG [1993] PNGLR 264 (27 August 1993)

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[1993] PNGLR 264 - National Executive Council, the Attorney-General, and Luke Lucas v Public Employees Association of PNG

STATE SERVICES - Public Services (Management) Act 1986 - Appointment of a departmental head - Compulsory retirement at 60 - Public Services (Management) Act 1986 s 51(2)(b).

CONSTITUTIONAL LAW - Qualified rights - Freedom of employment - Public Services (Management) Act 1986 - Requirement for compulsory retirement at age 60 - Whether requirement is unconstitutional - Whether requirement is restriction on freedom of employment - Whether "qualification lawfully required" - Constitution s 48.

PRACTICE AND PROCEDURE - National Court - Proceedings by originating summons - Whether judicial review is the only remedy - Whether originating summons is abuse of process of court - National Court Rules O 4 r 3 and O 16.

One of the appellants, Luke Lucas, retired from the public service because he attained the retirement age of 60. Three years later, he was appointed by the Head of State as Secretary of the Department of the Attorney-General for a period of four years. The appointment followed the procedures set out in the Constitution and the Public Services (Management) Act 1986 (hereafter, the Act). The respondent, employees' association issued proceeding by way of originating summons, claiming a declaration that the appointment was illegal and, therefore, null and void as the appellant had reached the mandatory retiring age for public servants, as provided under s 51 of the Act.

The National Executive Council and the Attorney-General were joined as parties in the action. The defendants argued unsuccessfully:

1. preliminarily, that the proceeding by originating summons was an abuse of the court's process in that the matter should have proceeded under Order 16 of the National Court Rules by way of judicial review;

2. that s 51(2)(d) of the Act, in so far as it purported to prevent the Head of State, acting on advice, from appointing as departmental head an officer who had reached the retiring age, was in violation of the guarantee in the Constitution of the right of freedom of employment.

The National Court declared the appointment null and void. The Supreme Court affirmed this.

1. A litigant has a choice of seeking a declaratory order by way of originating summons under O 4 or by way of judicial review under O 16.

2. Since an application for a declaratory order could also be obtained in an application for a prerogative writ under O 16, it may be an abuse of process of court if a litigant applies for a prerogative writ without seeking a declaratory order and then applies in a separate proceeding by way of O 4.

3. Section 51(2)(b) of Public Services (Management) Act 1986 does not infringe s 48 of the Constitution.

4. Compulsory retirement under s 51(2)(b) of the Act is "a qualification lawfully required" within s 48(1) of the Constitution.

AMET CJ KAPI DCJ WOODS LOS ANDREW JJ: On 27 August, the Court unanimously dismissed the appeals in this case, with reasons to be published later. This we now do.

Mr Luke Lucas retired from the Public Service in 1990 at the age of 60, the retiring age for public servants as provided for under s 51 of the Public Services (Management) Act 1986 (hereafter the Act). On 14 May 1993, the Head of State, acting on advice of the National Executive Council, given after consultation with the Public Services Commission, appointed Mr Lucas to be the Secretary of the Department of the Attorney-General for a period of four years. The appointment was made pursuant to s 193(3) of the Constitution and ss 24 and 25 of the Act.

Representations were made by the respondent to the first and second appellants to revoke the appointment as Mr Lucas had exceeded the retiring age under the Act and the Public Service Standing Orders. The first and second appellants were unmoved and the result was a strike by national lawyers employed by the Government.

The respondent subsequently issued proceedings in the National Court by way of originating summons seeking:

"A declaration that the appointment of Luke Lucas the third defendant herein as the Secretary and departmental head of the Department of Attorney-General is illegal and therefore null and void ab initio."

When the matter came on for hearing before the National Court on 2 August 1993, counsel representing the appellants raised preliminary objections to the proceedings. The relevant objection as far as this appeal is concerned was that the proceeding by originating summons was an abuse of the process of court in that the matter should have proceeded by way of judicial review under Order 16 of the National Court Rules (hereafter the Rules). The trial judge rejected this argument and proceeded with the summons.

After hearing arguments from all parties on the merits, the Court granted the declaration sought in the summons.

Two appeals have been lodged against the decision of the National Court. The first and the second appellants have appealed in SCA 94 of 1993, and Mr Lucas appealed in SCA 105 of 1993. Both appeals raise the same issues, and it was agreed to hear them together.

1. The trial judge erred in not ruling that the procedure of originating summons in this matter was an abuse of the process of the court and that the matter should have been instituted by way of judicial review under O 16 of the Rules.

2. The trial judge erred in not ruling that s 51(2)(b) of the Act does not prevent the Head of State acting on advice to re-appoint an officer who has retired at the age of 60 as departmental head under s 193(3) of the Constitution.

Counsel for the first and second appellants argued that the originating summons was an abuse of the process of the court in that the matter should have proceeded by way of judicial review under O 16 of the Rules. There is no authoritative statement from the Supreme Court on this issue.

Counsel for the appellants relied primarily on O'Reilly v Mackman [1983] UKHL 1; [1982] 3 WLR 1096, a House of Lords decision that considered the English equivalent, RSC Order 53. Lord Diplock, who wrote the leading opinion, discussed the background to the introduction of the judicial review procedure by Order 53 in 1977. He discussed the disadvantages prior to 1977 and the benefits brought about by the changes introduced in 1977. In discussing the change brought about in relation to prerogative writs and declarations, Lord Diplock at p 1108 said:

"Finally rule 1 of the new Order 53 enables an application for a declaration or an injunction to be included in an application for judicial review. This was not previously the case; only prerogative orders could be obtained in proceedings under Order 53. Declarations or injunctions were obtained only in actions begun by writ or originating summons. So a person seeking to challenge a decision had to make a choice of the remedy that he sought at the outset of the proceedings, although when the matter was examined more closely in the course of the proceedings it might appear that he was not entitled to that remedy but would have been entitled to some other remedy available only in the other kind of proceeding."

"So Order 53 since 1977 has provided a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of an application for judicial review, and whichever remedy is found to be the most appropriate in the light of what has emerged upon the hearing of the application, can be granted to him."

"My Lords, Order 53 does not expressly provide that procedure by application for judicial review shall be the exclusive procedure available by which the remedy of a declaration or injunction may be obtained for infringement of rights that are entitled to protection under public law; nor does section 31 of the Supreme Court Act 1981."

With respect, the position is the same under O 16 of our Rules. Once this position is conceded, it is open to a plaintiff to choose any of the procedures under the Rules.

As to what may amount to an abuse of the process of the court is within the inherent power of the court. As Lord Diplock points out at p 1110, this discretion will be exercised on a case by case basis. However, he expressed the rule in the following terms:

"Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities."

Order 16 does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected under public law, as opposed to those under private law. The distinctions in O 16 relate to the nature of remedies set out in r 1(1), which provides judicial review as the exclusive procedure, and declaration or injunction under r 1(2) which provide for optional procedures.

An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1(1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.

In the present case, the respondent did not apply for a remedy under O 16 r 1. The only remedy sought was a declaration and, under the Rules, he may choose to proceed by originating summons under O 4 r 3. Our Rules permit such an option. The trial judge distinguished the English rules from our Rules, in that we do not have an equivalent of the English O 5 r 3 (sic). He concluded:

"That rule, it seems to me, points to the obligation to follow (in UK) the O 53 judicial review procedure in the appropriate rights under public law cases. Plainly, the matter now before this Court would be required by O 53 r 1(1)(b) to be brought by way of judicial review....

It may be that an O 4 originated process is intended to allow parties to seek a declaration of law prior to, and to avoid, litigation. But the generality of O 4 r 3 precludes any fixed interpretation that excludes the use of originating process, even when judicial review might be more appropriate. In any case, O 16 r 9 indicates the discretion that remains in the Court to prevent proceedings failing simply because a party adopted an inappropriate procedure.

It seems to me, therefore, there is in this case no absolute rule which obliges the proceedings to have been commenced by way of judicial review, even if it were seen to be more appropriate. I find no prejudice occurs to any defendant in ruling that the proceedings may continue as commenced."

Under s 188(1)(a) of the Constitution, the National Public Service is established. The Public Services Commission is responsible for all public service matters in accordance with an Act of Parliament (s 191 of the Constitution). The relevant act is the Public Services (Management) Act 1986. Section 51 of the act provide as follows:

(1) Subject to this section, an officer who has attained the age of 50 years is entitled to retire from the Public Service if he desires to do so, but such an officer may, subject to this Act, continue in the Public Service until he attains the age of 60 years.

(2) An officer who continues in the Public Service after he has attained the age at which he is entitled to retire:

(a) may be retired from the Service at any time before attaining the age of 60 years; and

(3) A retirement under Subsection (2)(a) shall be effected by the Head of the Department of Personal Management."

Mr Lucas retired from the Public Service in accordance with s 51(2)(b) of the Act. Counsel for the first and the second appellants sought to develop an argument based on s 59 of the repealed Public Service Act Ch 67, which required that "age" be a matter that the Public Services Commission be satisfied about before an officer is appointed, a requirement deleted from the comparable section of the current act - s 34. It is submitted that, as the matter of "age" is no longer required as a relevant consideration under the present legislation, there can be no age limit to appointments.

The relevant provision under which the appointment was made is s 193(3) of the Constitution. This provision does not set out any qualifications for consideration by the Head of State, except the advice of the National Executive Council upon consultation with the Public Services Commission. We accept that there is no requirement to consider "age" as a relevant consideration under this provision.

Mr Lucas was appointed pursuant to s 193(3) of the Constitution on terms provided for in a contract of employment pursuant to s 25B of the Act. Under s 25C of the Act, a contract of employment constitutes service in the Public Service for all purposes. A departmental head is subject to retiring age that is applicable to permanent officers of the Public Service under the Act. General Order 11.29 of the Public Service General Orders specifically adopts the retiring age applicable to permanent officers (s 51) to apply to departmental heads. All officers, including departmental heads, must retire at the age of 60. This is compulsory. The effect of this is that those who retire at 60 cannot continue in the Public Service nor can they be re-appointed in the Public Service. There is no provision in the Act or the Constitution that gives the appointing authority any power to appoint or re-appoint such officers after they are compulsorily retired. The only powers given under the Act for persons who may be appointed beyond 60 are members of the Public Services Commission (see s 10 of the Act). The power to re-appoint such members is expressly given. Those who are re-appointed must retire at the age of 65 (s 10 (2)). We reject the submission by the appellants that a person who retires at the age of 60 may be re-appointed with no retiring age for such appointments. The trial judge did not err in this regard.

If it is considered that there is merit in continuing to employ some officers over the age of 60, the Government can do this by an amendment in similar terms as s 10 of the Act.

It is submitted that, in so far as s 51 (2) of the Act prohibits employment of persons over the age of 60, it is contrary to the right to choice of employment guaranteed by s 48 of the Constitution. It is submitted that as "age" is not required as a qualification for appointment as head of a department, s 51(2) of the Act contravenes s 48 of the Constitution. It is further submitted that the Act is a law that regulates a right and does not comply with s 38 of the Constitution.

Two things may be said of this right. It relates to the right of the employee and not the right of the employer. The right to employ other people is another matter altogether. That is a matter that may be regulated by legislation and is not a matter that comes within the term of s 48 of the Constitution. That is the first matter.

The second is that the right relates to choice of employment and not the practice of employment (see Prentice CJ in Premdas v PNG [1979] PNGLR 329 at 339; Application of Karingu [1988-89] PNGLR 276). In our view, the retiring age relates to the practice of employment and not the choice of employment. The choice of employment outside the Public Service is not affected.

The question then arises whether the retiring age is a "qualification ...lawfully required..." under s 48 of the Constitution? In Application of Karingu (supra) at p 289 Kapi DCJ said:

"The word 'qualification' used in s 48 of the Constitution relates to qualities and the conditions which a person must meet in order to practise a vocation or profession. This word has to be interpreted widely to cover all such matters. The only requirement is that they must be lawfully required."

"The requirement for an insurance premium does not come within what may be regarded as a narrow meaning of 'qualification'. That is to say, qualification meaning a degree, certificate of training from the Legal Training Institute etc.

These are matters which could be said to equip a lawyer for the performance of his duties. An insurance policy does not equip a lawyer in this sense. However, there is a broader meaning of 'qualification' which relates to other matters or circumstances which must be fulfilled before a person becomes entitled to practise a vocation. On this, a residential qualification comes to mind. Some jurisdictions require residence before a person may be allowed to practise law. Residence in a jurisdiction does not qualify a lawyer any better than one who is not resident."

Bredmeyer J (with whom Amet J, as he then was, agreed) reached a similar conclusion in finding that the requirement for a professional insurance premium for an unrestricted practising certificate comes within the meaning of "qualification".

"I now look at what s 48 says about the qualifications of a lawyer. The section does not give any special definition that would limit the meaning of 'qualifications'. I had a difficulty because the Lawyers Act defines qualifications by the adjectives 'required', 'academic', and 'practice'. I think 'qualifications' used in s 48 is wide because it applies to different callings. For any calling, however, there is a restriction; a restriction by way of qualifications. This, to start with, is acknowledged by the introductory section on right to freedom in s 32 of the Constitution. Freedom 'based on law consists in the least amount of restrictions on the activities of individuals.'"

In the present case, the retiring age requires that at age 60, all public servants must retire. It is the maximum age at which a person may be employed in the Public Service. In our view, the meaning of the word "qualification" is wide enough to encompass the requirement for retirement at 60. It is a qualification lawfully required under s 51 (2) of the Act. It does not infringe s 48 of the Constitution and, therefore, does not have to comply with s 38 of the Constitution.

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Papua New Guinea Law Reports

National Executive Council, the Attorney-General, and Lucas v Public Employees Association of PNG [1993] PNGLR 264 (27 August 1993)

PNG Law Reports 1993