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Muhammed v Schram [2012] PGNC 293; N4693 (7 November 2012)

N4693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 557 OF 2012 (JR)

BETWEEN

PROFESSOR MUHAMMED ABDUS SATTER AS PRO VICE CHANCELLOR (ACADEMIC)
First Plaintiff

AND:

ALBERT SCHRAM AS VICE CHANCELLOR OF THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Second Plaintiff

AND:

PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Third Plaintiff

AND:

PHILLIP STAGG AS CHANCELLOR OF THE PAPUA NEW GUINEA UNIVERSIYT OF TECHNOLOGY
First Defendant

AND:

JOHN FAINAME AS ACTING REGISTRAR OF THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Second Defendant

AND:

JIMMY IMBOK AS BURSAR OF THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Third Defendant

AND:

HONOURABLE DAVID ARORE AS MINISTER FOR HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
Fourth Defendant

AND:

COMMISSION FOR HIGHER EDUCATION
Fifth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Lae: Sawong, J.
2012: 3rd October & 7th November

Case Cited:

Sulaiman v. PNG University of Technology (1997) N610
Ragi v. Maingu [1994] SC459

Counsel:

S. Bluett, for the Plaintiffs
F. Barton, for the six Defendants

RULING

7th November, 2012

1. SAWONG J: This is an application for leave for judicial review by the plaintiffs, in particular the first plaintiff to review the decision by the Chancellor of the University of Technology, Mr Phillip Stagg and the Defendants dated 12th September, 2012 to terminate the employment of the first plaintiff as Pro Vice Chancellor (Academic) of the University of Technology, (the University). The application is made pursuant to Order 16 Rule (3) of the National Court Rules.
   
2. In support of the application the plaintiff relies on:
   

1. Originating Summons

2. Affidavit in Support by the 1st plaintiff

3. Undertaking as to damages filed by the 1st plaintiff for affidavit verifying facts by the 1st plaintiff.

4. A statement pursuant to Order 16 r 3 (2)(a).

5. A further affidavit of the Plaintiff sworn on 11th October and filed on 12th October 2012.

3. The application was opposed by the 4th, 5th, & 6th respondents.

4. A brief background is necessary. This can be ascertained from the affidavit of the first plaintiff. The first plaintiff was originally employed under a contract of employment entered into between himself and the University as Pro Vice Chancellor (Academic) on 18th April 2005.
   
5. On 12th September 2011 his contract was renewed for a further period of 3 years which was to expire on the 31st of December 2014.
   
6. In September of 2011, he was 66 years of age.
   
7. On 11th September 2012, he was informed verbally of a decision made by the First Defendant dated the 2nd September 2012 which terminated his services.
   
8. On the 13th September 2012, he was given a written copy of the First Defendant's decision of Sunday 2nd of September 2012.
   
9. The grounds for his dismissal was that he had reached the age of 67 years which was contrary to the relevant provisions of the Public Service (Management) Act 1995.
   

ISSUES

10. The issue is whether leave should be granted to the plaintiffs to judicially review the decision of the first Defendant.
    
11. The principles of law in relation to applications for leave for judicial review are now fairly well settled in this jurisdiction. The relevant matters for the exercise of the Court's discretion in determining an application for leave to apply for judicial review is based on four major legal principles. These are locus standi, undue delay, arguable case and exhaustion of all administrative remedies.
    
12. As to locus standi, this involves a question as to whether the applicant has sufficient interest in the subject matter of the application. The interest could be social, economic, political, legal equitable or commercial and so on. Whether there is any link or connection between the applicant and the subject matter of the applicant.
    
13. As to whether there is an arguable case, the applicant has to demonstrate that there are or is fundamental or substantial or serious legal issues, not merely a factual issue.
    
14. As to exhaustion of administrative remedies, the principle in general is that, the applicant must exhaust all administrative remedies available. Such administrative remedies include exhaustion of any statutory appeal procedure. Such statutory appeal procedures must be exhausted such that the decision being challenged is the final rule or order of the highest body or official within the hierarchy of authorities.
    
15. Undue delay means that the applicant must bring his application within 4 months from the date of the decision. The applicant must make his application promptly. If there is any undue delay, this may be a ground to refuse the application.
    
16. One other principle that is relevant is that judicial review is concerned with the decision making process by a public authority. If for instance, the applicant was employed by the public body under a contract of employment, the Court would be reluctant in enforcing the terms of the contract by way of a judicial review. The applicant's remedy may lie on the terms of the contract and not necessarily by way of judicial review. See Sulaiman v. PNG University of Technology (1997) N610, Ragi v. Maingu [1994] SC459.
    
17. In the present case, I have carefully considered the submissions. I accept that the first plaintiff has standing to bring this application. He is directly affected by the decision of the First Defendant. This factor favours the applicant. As to the second and third plaintiffs, I am of the view that they have no standing in law to be parties to this proceeding. They have not demonstrated how they are affected and the nature of their interests.
    
18. As to the issue of undue delay, there has been no undue delay in filing this application. This factor favours the applicant.
    
19. There now remains the issue of whether there is or are arguable legal issues to be determined and whether the plaintiff has exhausted all the administrative remedies. I propose to deal with these aspects together as in my view these are related or connected.
    
20. The first thing to note is that the relationship between the first plaintiff and the University is based on a contract of employment. That much is clear from the evidence from the plaintiff.
    
21. Secondly, submissions were made that the termination was unlawful in that, it was in breach of several provisions of the University Act and the relevant statutes, and therefore the plaintiff had an arguable case. It was further submitted that there was no administrative remedy available to exhaust before coming to court.
    
22. In my view, and following on from what I have said above is that the plaintiff has not demonstrated that he has exhausted all administrative remedies, the plaintiff's remedy is not based on judicial review - his remedy may be elsewhere. He was employed under a contract of employment and if it is alleged that the alleged dismissal is in breach of that contract then his remedy is to sue for damages for breach of contract.
    
23. As was said by Woods, J in Sulaiman v PNG University of Technology (1987) N6150: "The right to seek judicial review has been granted to where an injustice has been done and there is no other remedy. For example where a decision by a tribunal or public authority is final and the applicant has and will suffer some damages. However, in this case the applicant if he has suffered some wrong clearly has some other remedy. He has a remedy to sue for damages for wrongful dismissal contrary to his terms of conditions of employment. And further the law is well settled that the court will not grant specific performance of a contract of employment."
    
24. In Ragi v. Maingu (supra) the Supreme Court said: "where court has intervened by way of a judicial review in the process of dismissal because of failure to observe the rules of natural justice. It has been where there is a statutory power or procedure being exercised not a contractual power."
    
25. Section 31(1) of the University Act creates three Pro Vice Chancellor positions, namely, Pro Vice Chancellor (Academic), Pro Vice Chancellor (Administration) and Pro Vice Chancellor (Planning & Development). These three officers are to be appointed "in the manner and for the term" prescribed by the Council.
    
26. Neither Section 31(1) nor any other provisions of the University Act contain any terms and conditions of employment to the occupants of these three positions. All s. 31 of the University Act does is to create these three positions. The terms and conditions of employment of these three officers are to be found elsewhere.
    
27. Amongst the Statutes of the University is the Officers of the University statute. It has only 4 clauses. Clause 2.5 relates to the appointment of Pro Vice Chancellors. It reads:
    

"The council shall appoint Pro Vice Chancellors".

28. Neither the University Act nor the Statute sets out the terms and conditions of employment of these three officers. One has to look elsewhere for these. Neither the Act nor the Statute sets out any remedies. The statute also is silent on the terms and conditions of employment.
    
29. In the present case, it is accepted that the first applicant was appointed by the Council under a contract of employment. I so note that the actual contract of employment between the University and the first plaintiff has not been put before the Court. But what is before the Court is a document called "Standard terms & conditions for contract of employment of non citizen staff." The Court was informed that the First Plaintiff's terms and conditions of employment would be similar to the terms and conditions set out in this document. Accepting that, that is the document which sets out the terms and conditions of employment of the first plaintiff, he must seek relief under it.
    
30. As the relationship between the first plaintiff and the University is governed by the terms and conditions of employment as set out in the contract of employment, the applicant must look to that for his remedy.
    
31. That being the case, the first plaintiff's remedy lies elsewhere. He must seek relief under the terms and conditions of his contract of employment and not by way of judicial review.
    
32. For those reason the application for leave is refused with costs.
    

___________________________________________

Niugini Legal Practice: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the 6th Defendants