N6327

	PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]
		
OS (JR) NO. 240 OF 2016

BETWEEN:

AITA SANANGKEPE
Plaintiff

AND:

UGWALUBU MOWANA, in his capacity as the NATIONAL GENERAL SECRETARY OF PNG TEACHERS ASSOCIATION
First Defendant

AND:

HELEN SALEU, in her capacity as the INDUSTRIAL REGISTRAR
Second Defendant

AND:

GILBERT PATJOLE, in his capacity as the RETURNING OFFICER for the PNG TEACHERS ASSOCIATION GENERAL ELECTION 2015
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Nablu, J
2016: 17th, 19th May

Cases cited:

Asakusa v. Kumbakor (2008) N3303
Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Zachary Gelu v. Francis Damen (2004) N2762 
Overseas Case cited:
Inland Revenue Commissioners v. National Federation of Self Employed and Small Business Ltd [1982] AC 671
Counsel:
M Koimo, for the Plaintiff
M Mai, for the State

19th May 2016

1.	NABLU, J:	 The plaintiff, Aita Sanankepe seeks leave to review the decision of the Industrial Registrar. The Industrial Registrar had decided that he was not a financial member of the Papua New Guinea Teachers Association (PNGTA) and consequently he was disqualified from nomination for the general election. The applicant seeks various reliefs in the form of declarations, that the decision was wrong in fact and law. In particular, he seeks a declaration that the direct deposit at a bank is evidence of financial membership of the Association. The decision was made on two occasions and communicated to the applicant by letters dated 1st December 2015 and 6th March 2016. It is these two decisions the plaintiff seeks leave to review.

2.	I note from the Amended Statement pursuant to Order 16 Rule 3(2) (a) of the National Court Rules that the applicant has not sought any other relief apart from declarations.

3.	To further complicate the matter, the PNGTA called a general election in February 2016. The declarations of the results of the election were scheduled for 13th May 2016. At the time of hearing the leave application, it was unclear to the Counsel and to the Court whether the elections had been concluded and the results declared.

4.	The State contested the leave application. The State’s main argument in opposing leave was that the plaintiff did not have an arguable case and that the application was incompetent because there was no decision amenable to judicial review.

5.	The grant of leave for judicial review is discretionary. In order for the Court to exercise its discretion, it must be satisfied that the following leave criterion has been made out by the plaintiff. The plaintiff has sufficient interest as provided for under Order 16 Rule 3(5) of the National Court Rules. The applicant has an arguable case. The application is filed promptly and without delay. Finally, judicial review is an equitable remedy which should be the remedy of last resort. Judicial review is not available where the plaintiff has other administrative remedies available to exhaust: Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417.

6.	The facts of the matter are set out in the plaintiff’s affidavit, I adopt them as follows; the plaintiff was a teacher working in Western Highlands Province since 1973. He is an active member of the PNGTA. Sometimes in 2007 he was demoted and terminated allegedly because he was involved in the Nationwide Teachers strike along with other teachers. This was a subject of Judicial Review proceedings. On 11th July 2008 the National Court determined the judicial review application and found in the plaintiff’s favour. The Court ordered their reinstatement and back payment of their lost salaries and entitlements.

7.	The plaintiff stated that his payment of the financial subscription was affected as a result of being suspended from the payroll. However, he claimed that he continued to make direct deposits in the PNGTA bank accounts to maintain his membership. 

8.	In 2009, the plaintiff was nominated for a national management committee position in the PNGTA elections. An issue was raised against him in relation to his membership status. The election was declared null and void by the National Court on the 23rdof February 2011. A copy of the Court Order is annexed to the plaintiff’s affidavit (“Annexure F”). 

9.	In 2013, another election was conducted. The plaintiff was nominated for the position of President of the Western Highlands Branch. However, the elections did not proceed. On 19th September 2014, another attempt at conducting the general elections was made. Again the plaintiff was nominated but this time, he was informed that he was not eligible because of the fact that he was not a financial member of the Association. In October 2014, the Industrial Registrar intervened and wrote to the Secretary General requesting him to determine the plaintiff’s membership issue along with the membership of two other nominated persons. Issues were raised about his membership again and his nomination was declared null and void in October 2015 by the Returning Officer. In his letter, he stated that the payment of subscription fees by direct bank deposit was not stipulated in the PNGTA Constitution and therefore the plaintiff was not a financial member. On 5th November 2015 the plaintiff asked the Industrial Registrar to review the Returning Officer’s decision. 

10.	In response to the request for review, the Registrar decided that the plaintiff was eligible to nominate and stand for elections on the ground that he was a teacher and that he had applied for membership with the PNGTA. Then on 1st December 2015 the Industrial Registrar rescinded her earlier decision (dated 14 November 2015). The reason for rescinding the decision was based on the National Court’s summary determination of proceedings OS No. 542 of 2009, which discharged the restraining orders that prevented PNGTA from removing the plaintiff as a member of the Association. On 6th March 2016, the second defendant reaffirmed her decision not to allow the plaintiff to contest the general elections. Leave is sought to review those two decisions.

11.	The decision not to allow the plaintiff to contest the elections was primarily on the grounds that the National Court Order which reinstated the plaintiff as a teacher and member was determined by Kandakasi J. The Court summarily determined and dismissed the proceedings. Furthermore, the plaintiff was not a financial member of the PNGTA because he failed to pay his subscription fees. 

12.	There is no issue as to whether the plaintiff has sufficient interest. His interests are affected by the Registrar’s decision. However, I am of the view that whether his interests are public law issues is a question which I intend to revisit when considering whether the plaintiff has an arguable case later in my judgement. There is no undue delay the plaintiff has instituted his application for leave promptly. If leave is granted, the final relief he seeks are various declarations. I note, he does not seek a writ of certiorari which would invoke the time limit of 4 months from the date of the decision (Order 16 Rule 4(2) of the National Court Rules).

13.	I am of the view that there are two legal issues before this Court for determination. First issue is whether the plaintiff has an arguable case? Second, whether the plaintiff has exhausted all the administrative remedies?

14.	I will deal with the question of whether the plaintiff has an arguable case first. The plaintiff argued that he had an arguable case. The Court does not have to hear and determine the substantive merits of the case, it only needs to quickly peruse the material before it and determine whether the Plaintiff has an arguable case and whether there are serious issues to be tried that warrant a substantive hearing: Inland Revenue Commissioners vs. National Federation of Self Employed and Small Business Ltd [1982] AC 671 at 644 per Lord Diplock which was applied in NTN Pty Ltd vs. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70.

15.	The principles which apply when determining the question whether an applicant has an arguable case to warrant trial or judicial review are settled. The Court is not concerned with determining the merits of the case. The primary consideration for determination is whether there is an arguable case.

16.	The arguable nature of the case should be determined with due consideration given to amongst other relevant matters, two important matters – the grounds of review pleaded in the statement filed under Order 16 Rule 3(2)(a) of the National Court Rules and the material before the Court by the applicant. In addition to that any submissions or material presented by the State, who is the only party that has the Statutory right to be heard by virtue of Section 8 of the Claims by and against the State Act: Asakusa v. Kumbakor (2008) N3303.

17.	The plaintiff’s primary ground of review is that the second defendant’s decision in her letter dated 1st December 2015 and 6th March 2016 was wrong in fact and law, therefore, it is of no legal effect. The plaintiff argued that the plaintiff was a financial member by virtue of subscription fees he paid. He also argued that the PNGTA Constitution and By-laws did not specifically provide for the method of payment of the member’s subscription fees.

18.	Furthermore, the PNGTA wrongly relied on the summary dismissal order of the National Court on 28th November 2011 as the basis for refusing the plaintiff’s membership when the summary dismissal had no bearing on the administrative operations of the PNGTA and in particular the issue of the plaintiff’s membership. 

19.	After a quick perusal of the evidence before me I am of the view that the plaintiff does not have an arguable case. I am not persuaded that there are serious issues of law from the ground of review raised. Firstly, the decision is not one that concerns “public law” which would make it susceptible to judicial review. The issue which the plaintiff wants to determine is a question of interpretation of the PNGTA’s Constitution and its By-laws. It is not a question of whether the decision-maker had followed the mandatory decision making process under a legislative enactment or breach of law interalia, which are recognised legal grounds of judicial review. The question to be determined is whether he is a financial member of the PNGTA which is a claim of a private nature and therefore an interest related to “private law”. He is claiming to enforce his private right to be a member of the Association. In my view, that is not a serious issue of law which would invoke the Court’s power of review.

20.	Mr Koimo of counsel for the plaintiff submitted that the decision was subject to judicial review because the Industrial Registrar made the decision pursuant to Section 38 of the Industrial Organization Act. I reject this submission for the reason that it is misconceived and erroneous. Section 38 states that;
1)	Where a question or dispute arises as to the entitlement under this Act of a person to be admitted as, or to remain, a member of the organization – 
a)	the person; or
b)	the person who desires to become the employer of the person; or
c)	the organization; or
d)	the Registrar; or
e)	any other interested person,
may apply to the National Court for a declaration as to his entitlement to membership of the organization. (Emphasis mine)

21.	I am of the view that the statutory provision is clear if a question or dispute as to entitlement arises where a person should be admitted or should remain as a member of an organization, either that person or those person listed in Section 1(a) to (e) may seek a declaration as to his entitlement to membership in the National Court.

22.	Judicial review is to review administrative decisions of Public Authorities. Despite the fact that the Registrar is a public authority, I am not persuaded that she made a decision which is amenable to judicial review. The issues raised by the plaintiff are private law issues as opposed to public law issues. He is claiming a private right to be recognised as a member of PNGTA. This claim is not amenable to judicial review.

23.	The second issue to be determined is, whether the plaintiff has exhausted all the administrative remedies. I am of the view that the plaintiff has not exhausted all the remedies. The plaintiff is still at liberty to seek a declaration in the National Court as stipulated under Section 38 of the Industrial Organization Act. He has not yet exhausted that remedy.

24.	According to Order 4 Rule 2(3) (a) of the National Court Rules proceedings where a person who desires to apply for a declaration of right should be commenced by Originating Summons. 

25.	At this stage, when contemplating legal proceedings; the plaintiff should consider two issues before filing the originating process. The plaintiff should consider, whether, the right he or she is seeking a declaration for is related to private law or public law. The second consideration is the type relief they are seeking. If the matter is related to private interests and the only relief sought is a declaration, then the claim should be initiated and prosecuted by way of an ordinary Originating Summons. On the other hand, if it is a matter related to public law and the relief sought is an order in the nature of mandamus, prohibition, certiorari or quowarrants then the claim should be commenced by way of an Originating Summons through the judicial review process under Order 16 of the National Court Rules.

26.	Notwithstanding, the fact that, the rules stipulated Order 16 of the National Court Rules does not expressly provide for the Courts power to grant declarations and injunctions in a judicial review application, the Courts have considered this point. From a quick research of the case law, I am of the view that the Courts have expressed the view that declaratory and injunctive relief are available to successful applicants, where it would be convenient and just to grant the relief. The grant of relief is dependent on the merits and circumstances of each case and ultimately the exercise of the Court’s discretion. (See the cases of Zachary Gelu v. Francis Damen (2004) N2762 and Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; for more discussion of the judicial review application procedure whether to commence legal proceedings via a Writ of Summons or Originating Summons).

27.	According, to Order 4 Rule 3(2) of the National Court Rules in proceedings where the sole or principal question at issue is, or likely to be, one of the construction of an Act or any instrument made under an Act, or of any deed, will, contract or other document, or other question of law or where a person is authorized by an Act, regulation or by these Rules to make an application to the Court or Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules, are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.

28.	I am of the view that the plaintiff’s application for judicial review is misconceived. The dispute as to whether he is a financial member and is eligible to contest the general election is a question of construction of the PNGTA constitution and not a review of the decision of the Industrial Registrar. The process under section 38 of the Industrial Organization Act is that; ‘any of those persons including the Registrar and the person concerned have the right to apply to the court by way of an ordinary originating summons to determine the dispute or question of entitlement.

29.	In my view, the plaintiff should have filed an application by way of ordinary Originating Summons seeking appropriate declaration of his right to be recognised as a member. I am not satisfied that the Registrar made a decision to determine his membership. In my view, such decision would in any event, be contrary to Section 38 of the Industrial Organisation Act, because the National Court assumes jurisdiction to determine the members’ dispute. The plaintiff’s remedy lies in a civil action, brought by way of Originating Summons seeking a declaration of his right. He is still at liberty to apply. Therefore, this application for leave is without merit and flawed. 

30.	For the foregoing reasons and the exercise of my discretion, the plaintiff’s application for leave is refused and is dismissed. The plaintiff is to pay the State’s costs of this application. 

Kipes Lawyers		: Lawyer for the Plaintiff 
Solicitor General’s		: Lawyer for the State