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Wedau v Daniel, Chairman, Papua New Guinea Harbours Board; Manove, Acting Chairman, Papua New Guinea Harbours Board; and Papua New Guinea Harbours Board [1995] PNGLR 357 (20 September 1995)

PNG Law Reports 1995

[1995] PNGLR 357 - Young Wedau v Alfred Daniel, Chairman, Papua New Guinea Harbours Board; Kopi Manove, Acting Chairman, Papua New Guinea Harbours Board; and Papua New Guinea Harbours Board 

[1995] PNGLR 357

SC489

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

YOUNG WEDAU

V

ALFRED DANIEL, CHAIRMAN PAPUA NEW GUINEA HARBOURS BOARD;

KOPI MANOVE, ACTING CHAIRMAN, PAPUA NEW GUINEA HARBOURS BOARD; AND

PAPUA NEW GUINEA HARBOURS BOARD

Waigani

Kapi DCJ Brown Andrew JJ

27 June 1995

 20 September 1995

ADMINISTRATIVE LAW - Judicial review - Jurisdiction, O 16 NCRs - Decision by Papua New Guinea Harbours Board to terminate appellant as its legal officer - Refusal of National Court to entertain review - Termination of employment referrable to a private contractual relationship.

ADMINISTRATIVE LAW - Order in the nature of certiorari - Circumstances where such writs lie - Private law nature of employer/employee relations - Refusal by National Court of leave to review decision of Harbours Board to terminate employee for reasons.

Facts

The appellant sought to overturn the National Court’s refusal to embark on a judicial review of the Papua New Guinea Harbours Board’s decision to terminate him as its legal officer.

Held

1.       The indicia of the working relationship between the appellant and the Board point to that of employer/employee.

2.       The nature of the appellant’s work and his position did not place him in a “public office” contemplated by the Determination or conditions of service made pursuant to the Papua New Guinea Harbours Board Ordinance 1963-1969, such as the Secretary, Port Manager, or Wharf Superintendent, and consequently his rights may be categorised as private law, and as such are not susceptible to judicial review.

3.       His private law rights including for instance the right to sue for breach of contract, remain unaffected.

4.       The refusal of the National Court to grant leave for judicial review is upheld and the appeal is dismissed.

Cases Cited

Papua New Guinea cases cited

Air Niugini v Joel [1992] PNGLR 132.

Ereman Ragi v State Services and Statutory Authorities Superannuation Fund Board; ex parte Joseph Mainge (unreported S.C. Decision 459 dated 29 June 1994).

Other cases cited

Law v National Greyhound Racing Club Ltd [1983]1 WLR 1302.

R v Criminal Injuries Compensation Board; exparte Lain [1967] 2 QB 864, 882.

Counsel

D. Liosi, for the appellant.

G.J. Shepherd with R. Doko, for the respondents.

20 September 1995

KAPI DCJ BROWN ANDREW JJ: The appellant was aggrieved by the decision of Salika J. in the National Court where the judge who was exercising discretionary powers under O 16 r 3 of the National Court Rules, declined to grant leave for the judicial review of the PNG Harbours Board decision to terminate the employment of the appellant as its legal officer.

The short facts leading up to the termination were that, following upon internal investigation, the appellant with other officers were referred to a Special Investigation Committee (comprising four Board members) which reported its findings to the full Board. The Board resolved to terminate the appellant but before doing so, referred the Committee’s report to the Chairman for disciplinary action. The appellant was charged under Part X of Determination No.1/1970 (Terms and Conditions of Employment) made pursuant to the Papua New Guinea Harbours Board Ordinance, 1963-1969. The Ordinance has been adopted and consolidated in the current Act, Ch 240. The appellant was given the right to be heard by the Chairman and did make reply. The Chairman recommended to the Board that the appellant’s services be terminated. As a consequence the appellant exercised his right of appeal under clause 126, Part X to the Board which, by virtue of clause127(2) “may confirm, annul or vary the decision appealed against”. Clause 127(4) provides: “The decision of the Board under this clause is final”.

He was described as the author of his own misfortune for the disciplinary proceedings related in part to the appellant’s conduct whilst employed on the business of the Harbours Board.

Before proceeding to the arguments raised in relation to the refusal to grant leave, it is necessary to deal with the question of the appellant’s status whilst with the Harbours Board. He was employed as a “legal officer”. It is not clear just how he categorised his employment for he argues that it is not by virtue of any “contract of employment”, for he says there was no written document entitled “contract of employment”. The appellant says the approach adopted by the Board and its Chairman in its deliberations, presuming a contract of employment, or a master/servant relationship must fail because of lack of evidence. The appellant says that the respondents have no power either express or implied under the Act, to employ persons. Clearly the position pleaded, “legal officer” has not been designated nor created by virtue of cl.2 and set out in the second schedule. The designated officers are named as “Secretary, Port Manager, Wharf Superintendent, Clerk, Tugmaster” etc but nowhere is there designated legal officer. In fact the position was advertised by the Harbours Board. The appellant applied for and was successful in his application. He was employed for a period and accepted salary on the strength of his appointment and did (presumably) some work for and at the direction of, the officers of the Harbours Board. The indicia of an employer/employee relationship are clearly made out. He is not a person on a superior footing, as it were, as those officers designated by the Second Schedule. He has not been appointed to a public office, nor statutory authority or State instrumentality as was Robinson, the Deputy General Manager of Air Niugini (see Robinson v. The National Airlines Commission [1983] PNGLR 476).

Rather he is an employee subject to the usual incidents of the employer/employee relationship but varied in the particular circumstances, here, in that the Board has afforded its employee the rights accorded an officer under Part X of the Determination.

This brings us, then to the arguments on appeal. The trial Judge said in part -

“The defendants (respondents) argued that the Papua New Guinea Harbours Board, in terminating the plaintiff (appellants) employment acted within the procedure under the Determination and for that reason the seeking of judicial review is mistaken”

And later “For these reasons I will uphold the second submission of the defendants (respondents) and hold that the Court has no jurisdiction to entertain application for judicial review in respect of matters based on private contract”.

The appellant comes before this Court and says that the trial Judge was wrong in refusing to exercise his decision and allow judicial review of the Board’s decision to terminate.

The first two grounds of appeal relate to the Judge’s findings that the Court had no power to review either the Chairman’s recommendations or the Boards decision to terminate, for the Court has inherent power to review actions of a public official empowered by statute in this fashion.

The third ground which is related to the first two alleges that the Court erred in ruling that the effect of proceedings under Determination 1970 was to cloth the actions of the Board as those within “private law” as opposed to “public law”, when the Determination was made pursuant to a public Act of Parliament.

The remaining grounds deal with the Judge’s comments in relation to the power of the Board to appoint and remove “officers” of the Harbours Board which in our view, are obiter his decision. We do not find the need to consider the remaining grounds for they too relate to comments obiter. The crux of the Judge’s reasons for refusal relate to the finding that the termination of the appellants employment was private to the Board and the employee, Mr Wedau, and consequently the Court had no jurisdiction to interfere in the private relationship, by embarking upon a review.

The respondents before us, represented by Mr G.J. Shepherd with Mr R. Doko, press the correctness of the Judge’s reasons. Mr D. Liosi for the appellant presented written submissions but those submissions although voluminous, went more to the substantive aspects of the Board’s hearings and findings. At page 40 of his submissions, the appellant says this:

“In the preliminary submission; Mr Greg Sheppard has a duty to prove;

(1)      the existence of master and servant relationship; or

(2)      a contract of employment.

He has shown no evidence either by documentary evidence or any form of affidavit from the Chairman of the Board, Managing Director of the Secretary of the Board. Mr G. Sheppard had clearly misled the Court in this regard. It is submitted that His Honour was mislead by the conduct of the respondents Lawyer and made a ruling based on no evidence at all.

His Honour erred in law for not considering the relevant statutory provision which created the employment relationship of the officers of the Board. Essentially, the Harbours Board Act [Ordinance] created four categories of employment relationship.

(1)      Appointment of persons to be Board members to constitute the Office of the Board; s 4 of the Act refers. [ss 6 and 7 of Ordinance].

(2)      Appointment of Officers for the services of the Board, s 9 of the Act, [ss 14 and 15 of Ordinance] refers.

(3)      Temporary and casual Employees, s 10 of the Act; [s 16 of Ordinance] refers.

(4)      Registered Workers; s 23 of the Act.”

As touched on earlier, the relationship of employer/employee arises by virtue of the indicium. To argue that the Board had no power to employ him, as it does is a non sequitur for if that were so, he cannot complain if it no longer employs or pays him. But he does complain, and obliquely says that he is entitled to a review because the Board has exercised a quasi judicial function by hearing his appeal against dismissal. Thus he is entitled to take that appeal to the National Court, for it has jurisdiction to review decisions of lesser tribunals. This brings into relief, or distinctness, the respondent’s arguments about public or private law rights where the employer/employee relationship arises.

Order 16 of the National Court Rules cannot give rise to a cause of action. It relates to judicial review of administrative acts and in some circumstances, quasi judicial acts but only where there is a sufficient public interest. This latter question is for the discretion of the Court based on principles which have been spelt out in the Supreme Court and applied in the National Court from time to time.

The appellants employment as a legal officer does not embue his status with that of a “public officer”, of the Harbours Board. Even were that so, we cannot envisage situations where the mere argument over terms of employment would ground a right of review. Where, as in this case, the appellant has had the opportunity to pursue a channel of redress or “appeal” as it is called in the Determination, the Court should be even more chary of interfering with the business of the Harbours Board. To do so would be partial, for there is no judicial warrant to enquire into the workings of the Board in its operations in this fashion such as the right, for instance under certain Public Service Regulations or Defence Force Orders.

Lord Parker expressed the principles in R v Criminal Injuries Compensation Board, exparte Lain [1967] 2 QB 864, 882 where he said -

“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”.

Those principles were adopted and followed by the English Court of Appeal in Law v National Greyhound Racing Club Ltd [1983] EWCA Civ 6; [1983] 1 WLR 1302, and in the National Court in Air Niugini v Joel [1992] PNGLR 132 which had occasion to consider the same questions as are raised here.

This does not affect the appellants rights in common law to pursue any claim for alleged breach of contract by virtue of his dismissal. But in this instance, there can be no expressed or implied right to a review of the Board’s deliberations, in the face of the explicit terms of clause 127(4) which makes the Board’s decision “final”.

There is nothing in the circumstances of this case, to give it any sufficient flavour of a “public” nature to justify this Court’s interference. A lawyer especially, may make his own arrangements for employment and the fact of his employment does not place his position in the public domain, to such an extent for instance, that a member of the public could demand an account of the appellant’s work at the Harbours Board. That is the sole prerogative of the employer, the Board and the Court has no business to enquire into the private arrangements made between these two parties. This highlights the distinction between public law and private law rights.

In Ereman Ragi v The State Services and Statutory Authorities Superannuation Fund Board v Joseph Mainge, (unreported SC 459 dated 29 June 1994) the Supreme Court, dealing with a lawyer aggrieved by a decision to terminate him from a position as Corporate Secretary to the former Public Officers Superannuation Board by virtue of a restructuring when the position was abolished, had this to say -

“We find that His Honour erred in understanding the nature of the respondent’s employment with the Board and erred in his non-application of the Employment Act and further we find that the proceedings were a matter of private law and therefore should not have been the subject of judicial review”.

We are of the view that the incidents of the appellant’s employment with the Harbours Board are of a private law nature and consequently not amenable to judicial review. Since the Board has embarked on procedures of a quasi judicial nature when dealing with Mr Wedau’s appeal against the conditions laid down for his continued employment, Mr Wedau’s argument that he consequently has the right of review by virtue of the nature of the tribunal (quasi judicial), cannot succeed in the face of the private law status of his employment arrangements. Further this Court has no warrant to interfere where regulatory Determinations explicitly state that the Board’s decision is final. Where determinations of this nature afford an employee a right of appeal from an employer’s actions adversely affecting an employees position, that very fact should cause a Court to pause before entertaining a review, for to interfere in those circumstances may appear to be paternalistic.

For these reasons the refusal of the National Court to grant leave for judicial review is upheld and we dismiss the appeal. Costs follow the event and the respondents shall have their costs of the appeal.

Lawyer for the plaintiff: Young Wedau.

Lawyer for the respondent: Carter Newell.