N3431
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 396 OF 2008

CASPER WALLACE
Plaintiff

V

RON NAPITALAI
FOR AND ON BEHALF OF THE BOARD APPEAL COMMITTEE OF PNG PORTS CORPORATION LIMITED
First Defendant

PNG PORTS CORPORATION LIMITED 
Second Defendant

Kimbe: Cannings J
2008: 14, 19 August

RULING 

JUDICIAL REVIEW – application for leave – whether a person dismissed as an officer of a State-owned corporation can be granted judicial review of the decision to dismiss him – whether PNG Ports Corporation Ltd is a public body whose employment decisions are susceptible to judicial review. 

PNG Ports Corporation Ltd terminated the plaintiff’s employment. He went through the appeals process provided for by the terms and conditions of employment, but was unsuccessful. Aggrieved by the original decision to terminate him and the manner in which his appeals were determined, he sought leave for judicial review. The Corporation objects to the granting of leave, saying that it is not a public body whose employment decisions can be subject to judicial review.

Held:

1	When determining whether the decision to terminate a person’s employment has been made by a public body whose employment decisions can be subject to judicial review, the key consideration is whether the dismissal from employment can be regarded as a matter of public, as distinct from private, law (Ereman Ragi v Joseph Maingu (1994) SC459; Young Wadau v Alfred Daniel and Others [1995] PNGLR 357 applied).

2	Several factors are relevant when determining whether the dismissal is a matter of public law, viz:

•	was the office held by the person whose employment was terminated, created by or under a statute?
•	can the decision-maker be regarded as a governmental body?
•	are the terms and conditions of employment, in particular the procedure leading to termination of employment, determined by or under a statute?
•	does the procedure leading to termination of employment have the trappings of public employment?

3	In this case the office held by the plaintiff at the time of his dismissal was not one directly created by statute. However, the decision-maker is a governmental body, the terms and conditions of employment were made under a statute and the procedure for termination (involving laying of disciplinary charges, akin to those available under the Public Service General Orders, and a two-tier appeal process) bore the trappings of public employment. Therefore the plaintiff’s dismissal is properly regarded as a matter of public law.

4	The other prerequisites for granting leave (locus standi; the plaintiff has an arguable case; exhaustion of other remedies; no undue delay) were satisfied and the court granted leave for judicial review. 

Cases cited

The following cases are cited in the judgment:

Ereman Ragi v Joseph Maingu (1994) SC459 
Kombati v Singin (2004) N2691
Leto Darius v Commissioner of Police (2001) N2046
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Supro v Aopi and Telikom PNG Ltd [1997] PNGLR 353
Young Wadau v Alfred Daniel and Others [1995] PNGLR 357 

Abbreviations

The following abbreviations appear in the judgment:

J – Justice
Ltd – Limited
N – National Court judgment
No – number
OS – originating summons
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
POSF – Public Officers Superannuation Fund
SC – Supreme Court judgment
v – versus

NOTICE OF MOTION

This is a ruling on a motion seeking leave for judicial review. 

Counsel

J Unido, for the plaintiff
H Kila, for the defendants

19 August, 2008

1.          CANNINGS J:   Casper Wallace was employed by the PNG Harbours Board and its successor company, PNG Harbours Ltd, for 20 years. In March 2003 he was Wharf Superintendent at Kimbe. He was served with three disciplinary charges (consuming illegal drugs while on duty, having sex while on duty and disobeying a lawful instruction not to conduct immoral sexual practices within the workplace). He replied to the charges but was found guilty of all three and his employment was terminated. 

2.          He appealed under the Harbours Board Employment Determination that had been promulgated in 2002. He appealed, first, to the Management Appeal Committee. It upheld the appeals against the first two charges but dismissed the appeal against the third one, as well as the appeal against the decision to terminate his employment. He then appealed to the Board Appeals Committee, which dismissed the appeal and confirmed the decision to terminate his employment.

3.          Mr Wallace now seeks leave for judicial review of the decision of the Board Appeals Committee. He has named the Chairman of that Committee, Ron Napitalai, as first defendant, and PNG Ports Corporation Ltd (the most recent name of PNG Harbours Ltd) as second defendant. He wants leave to argue a number of grounds of review, including that his appeals were dealt with contrary to the time limits set out in the Employment Determination; that he was denied natural justice; that the Committee took into account irrelevant considerations; and that the Committee was improperly constituted as there was no union representative, as required by the Employment Determination.

4.          The defendants object to the granting of leave, saying that the Corporation is not a public body whose employment decisions can be subject to judicial review. That is the principal issue raised by this case. 

IS PNG PORTS CORPORATION LIMITED A PUBLIC BODY WHOSE EMPLOYMENT DECISIONS CAN BE SUBJECT TO JUDICIAL REVIEW?  

5.          Ms Kila, appearing, with the leave of the court, for the defendants, submitted that there is a strong line of Supreme Court authority to say that decisions of State-owned corporations to dismiss or discipline their employees are matters of private, not public, law. The judicial review procedures of Order 16 of the National Court Rules, which the plaintiff has invoked in this case, are thus not available. If Mr Wallace wants to pursue his grievances against the Corporation he must approach the court correctly. The proper procedure would be to bring an action for wrongful dismissal by filing a writ of summons.

Supreme Court cases

6.          The cases Ms Kila relies on are Ereman Ragi v Joseph Maingu (1994) SC459 and Young Wadau v Alfred Daniel and Others [1995] PNGLR 357. 

7.          In Maingu the plaintiff was a senior officer of the POSF Board. The Board terminated his employment on the ground of non-performance and negligence. He sought leave to apply for judicial review. The National Court granted leave for review, then found that the plaintiff had been wrongfully terminated and ordered his reinstatement. The defendants successfully appealed to the Supreme Court, which held that the National Court should not have granted leave for judicial review, as only decisions that have their basis in public law can be subject to judicial review. If the decision that a person is aggrieved about has its basis in private law, judicial review procedures and remedies cannot be invoked.

8.          The Court stated:

The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.

9.          In Wadau the Supreme Court came to a similar conclusion regarding the PNG Harbours Board. The Board dismissed the plaintiff from his position as legal officer to the Board, exercising its private law powers. The plaintiff did not hold office under a particular statutory provision. The rights and obligations of the Board and the officer were regulated by private law. The Supreme Court, relying on Maingu, said that the plaintiff was correctly refused leave for judicial review. 

10.          Ms Kila points out that I followed those Supreme Court decisions in Kombati v Singin (2004) N2691, when refusing leave for judicial review of the decision of the Secretary of the Evangelical Lutheran Church to terminate the plaintiff’s employment as Finance Secretary of the Church. I refused leave as the plaintiff did not hold public office under any particular statutory provision, the Church was not a public body and the rights and obligations regulating the relationship between the Church and the plaintiff had their source in private law.

Submissions for the plaintiff 

11.          Mr Unido, appearing for the plaintiff in the present case, submitted that all those cases can be distinguished. In both Maingu and Wadau the plaintiffs were lawyers who did not hold any particular statutory positions and their terms and conditions were regulated by private contracts. In Kombati the Church was clearly not a public body. 

12.          By contrast, he submitted, Mr Wallace’s employment was regulated by public law and PNG Ports Corporation Ltd, though it has been set up recently as a company under the Companies Act is nonetheless still a public body, and the terms and conditions of its officers and employees are set under a statute, the Harbours Act Chapter No 240. 

The critical question: public law or private law? 

13.          The critical question, when determining whether the decision to terminate a person’s employment has been made by a public body whose employment decisions can be subject to judicial review, is whether the dismissal from employment can be regarded as a matter of public law, as distinct from private law. 

14.          Several factors need to be addressed when determining that question, the most important being:

1	Was the office held by the person whose employment was terminated, created by or under a statute?

2	Can the decision-maker be regarded as a governmental body?

3	Are the terms and conditions of employment, in particular the procedure leading to termination of employment, determined by or under a statute?

4	Does the procedure leading to termination of employment have the trappings of public employment?

Statutory office?

15.          The office held by the plaintiff – Wharf Superintendent – was not one directly created by statute, so that does not help his cause. 

Governmental body? 

16.          I agree with Mr Unido’s submission that PNG Ports Corporation Ltd is a governmental or public body. I say this, even though it is a company established under the Companies Act and it has taken over the assets and business of the PNG Harbours Board, and even though, as highlighted by Ms Kila, all of the employees of the PNG Harbours Board have been transferred to it by a direction under Section 36C of the Harbours Act. The Corporation is a State-owned enterprise and the appointment of its senior management and its affairs are still regulated by statute and by the Executive arm of government. 

17.          This does not, by itself, mean that the Corporation’s employment decisions are susceptible to judicial review. In Supro v Aopi and Telikom PNG Ltd [1997] PNGLR 353 Woods J held that Telikom’s decision to dismiss one of its executive managers could not be judicially reviewed. Even though Telikom (in a similar position to PNG Ports Corporation) was previously a statutory authority and continued to have community service obligations, his Honour concluded that Telikom had no statutory duties to its employees whose rights were determined by private law. 

18.          I nonetheless consider that deciding whether the decision maker is governmental body is one of the key factors to take into account in determining whether the dismissal of an employee can be regarded as a matter of public law. 

Terms and conditions set by statute?

19.          The terms and conditions of employment of the Corporation’s officers and employees are still as set out in the Employment Determination of 2002, which was promulgated by the then Chairman  of the PNG Harbours Board, William Duma, on 12 April 2002. The Determination was expressed to have been made under Sections 9 and 10 of the Harbours Board Act. 

20.          It is therefore a “subordinate legislative enactment” as defined in both Schedule 1.2(1) of the Constitution and Section 3 of the Interpretation Act. It should have been tabled in the Parliament under Section 116 of the Constitution as soon as practicable after it was made. Whether that was done or not does not affect its validity (per Constitution, Section 116(3)). The fact that the Determination is a subordinate legislative enactment means that it forms part of the written laws of Papua New Guinea under Section 9(e) of the Constitution. 

21.          The terms and conditions of employment – and the procedure by which an employee of the Corporation can be dismissed – are therefore set by, and regulated by, statute. 

Trappings of public employment?

22.         The procedure for termination or dismissal provided by the Employment Determination is quite elaborate. It involves laying of disciplinary charges, akin to those available under the Public Service General Orders, and a two-tier appeal process. It bears the trappings – the appearance – of a public sector procedure, which, in numerous other cases, has been found to be amendable to judicial review. (See, for example, the decision-maker’s duty to give reasons for dismissal, explained by the Supreme Court in Mision Asiki v Manasupe Zurenuoc (2005) SC797). 

Conclusion

23.          Three of the four factors point to the conclusion that Mr Wallace’s dismissal is properly regarded as a matter of public law. I uphold Mr Unido’s submission that the facts of this case can be distinguished from those in Maingu, Wadau and Kombati. 

24.          PNG Ports Corporation is a public body whose employment decisions – at least a decision to dismiss an employee under the Employment Determination of 2002 – can be subject to judicial review. 

OTHER ISSUES

25.           The defendants did not challenge the other prerequisites for granting of leave for judicial review, viz:

•	that the plaintiff has locus standi (sufficient and genuine interest in the decision sought to be reviewed);
•	that the plaintiff has an arguable case; 
•	that other remedies have been exhausted;
•	that the plaintiff is not guilty of undue delay.

(For a summary of the prerequisites see Kandakasi J’s decision in Leto Darius v Commissioner of Police (2001) N2046.)

26.          Nevertheless I have considered each of them. 

Locus standi?

27.          This is clearly established as Mr Wallace, more than anyone else, has a direct interest in the termination of his employment. 

Arguable case?

28.          I am satisfied that he has an arguable case. On the face of it, his claims that both his appeals were dismissed after the time limits in the Employment Determination expired have merit. 

29.          A cursory look at the other grounds of review he wants to agitate reveals that he is raising matters of substance and not trivial or unarguable points. 

Exhausted other remedies?

30.          I am satisfied that Mr Wallace has exhausted all other avenues of redress reasonably available to him before approaching the court. 

No undue delay?

31.          The only thing that bothers me is whether he has brought his application expeditiously. The appeal process took a long time to be completed. It was over four years from the time that he was terminated (2003) until he was given official notification of the dismissal of his second appeal (May 2007). Fourteen months followed before he filed the application for leave for judicial review. 

32.          However, I note that he has still been seeking the assistance of his Union in that period. He has been persistently pursuing his case and I note that the Board Appeals Committee seemed to take a long time to determine his second appeal. There are no hard-and-fast rules about delays. Each case must be judged on its merits. Here, I do not think the apparent delay should be held against the plaintiff.

Conclusion

33.          The decision whether to grant leave for judicial review is ultimately a matter of discretion and good sense. Having considered the relevant criteria, I exercise my discretion in favour of the plaintiff. 

34.          As to costs, as the defendants appeared with the leave of the court (as an application such as this is normally heard ex parte) and vigorously opposed leave, it is appropriate that they pay the plaintiff’s costs. 

ORDERS

(1)	The plaintiff, Casper Wallace, is granted leave to seek judicial review, in accordance with the statement filed under Order 16, Rule 3(2)(a) of the National Court Rules on 15 July 2008, of the decision of Ron Napitalai, for and on behalf of the Board Appeal Committee of PNG Ports Corporation, dated 29 December 2006, upholding the decision of the PNG Harbours Board Ltd Management Appeal Committee to terminate the employment of the plaintiff. 

(2)	The defendants shall pay the plaintiff’s costs of these proceedings on a party-party basis, to be taxed if not agreed. 

Ordered accordingly.
____________________________

Muromu Lawyers: Lawyers for the Plaintiff
PNG Ports Corp Legal Services Dept: Lawyers for theDefendants