Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Memo v Alu [2023] PGNC 293; N10449 (22 August 2023)

N10449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 66 OF 2023[IECMS]

ALTHEA MEMO
Plaintiff

V

JOEL ALU, MANAGING DIRECTOR, NATIONAL AGRICULTURE QUARANTINE & INSPECTION AUTHORITY
First Respondent

AND
NATIONAL AGRICULTURE QUARANTINE & INSPECTION AUTHORITY
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Miviri J
2023: 20^th July, 22^nd August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave to apply for Judicial review Order 16 Rule 3 NCR – Employment Contract – Three Year Duration Expiring – No Intent to Renew By Respondent – Payment In lieu of Notice – Privity of Contract – Private Law Not Public Law – Balance Not Discharged – Leave Refused– cost follow event.

Cases Cited:
Papua New Guinean Cases

Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886
Innovest ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122
Marfu v Gaupu & 4 ors [2022] PGNC 439; N9881
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459
State v Eluh [2016] PGSC 26; SC1479
Sarua v Kali [2013] PGNC 256; N5616
Wauwia v Inguba [2013] PGNC 61; N5232

Overseas Cases

Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935
O’Reilly v Mackman [1982] 3 AER 680
R v East Berkshire Health Authority ex part Walsh [1984] EWCA Civ 6; [1984] 3 AER 425

Counsel:

A. Walne, for Plaintiff
Z. Rekeken, for Defendants

RULING

22^nd August 2023

1. MIVIRI, J: This is the ruling on the Originating summons of the applicant dated the 23^rd June 2023 seeking leave for Judicial Review of the decision of the First Respondent not to renew the employment Contract of the applicant with the Respondents.
   
2. She relies on her affidavit sworn of the 22^nd June 2023 where she deposes that she was employed by a contract of employment with the Respondents. And that the last contract of employment commenced on the 05^th February 2020 and was to end on the 05^th February 2023. In it were the Employment Agreement, terms and conditions and Job description. It was for three years term. And annexure “A1, A2 and A3” were the Employment Agreement, Terms and Conditions and Job description constituting that Employment Contract. And the affidavit confirmed the existence of that contract of employment between herself and the respondents. It was clear that the respondents did not want to enter into a contract with her again after it had expired. So allowed the period that She was paid after its termination to follow in lieu of notice to her. Which is normal in a contractual relationship.
   
3. The Respondents who are the other party to the Contract have now elected not to enter that relationship again. It is a voluntary and discretionary relationship. As such it would not be a contract for the Courts to step in to engage the relationship between them. Because that would offend privity of contract between them. Each must come to the relationship by independent free will to engage mutually, not with cohesion or force into it. And such would not be Judicial review. Because leave will not be given it is a matter not of public law, but private law as privity of contract is involved. It does not involve the play of an act of parliament and its construction as in the Police Act in Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013). Judicial review would lie there. And leave sought for would be granted given as Judicial review is as to the process rather than the substance: Innovest ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). What is intended by the action filed is to the process and that is not what privity of contract is about.
   
4. It is in similar vein as in Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994), where the court defined: “As a general rule judicial review is used where a public body is relying for its decision-making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged.

In R v East Berkshire Health Authority ex part Walsh [1984] EWCA Civ 6; [1984] 3 AER 425 at 429 “The remedy of judicial review is only available where issues of ‘public law’ are involved”.

And in O’Reilly v Mackman [1982] 3 AER 680 per Lord Denning at 693:

“Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty.”

And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935 @ 949:

“For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers.”

Note here the emphasis is on public law. So, what is public law as against private law?

Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.

Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.

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.

In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.
But here before us the respondent was merely challenging his termination, yet neither this court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.

5. This is simply a contract of employment entered into between the applicant and the respondent, to which the latter have opted not to renew again. But in lieu of notice have paid her up to the period required under that contract. It is therefore a matter that should go by writ for allegation of breach of contract. Certainly not leave for Judicial review. It is not a contract that is subject to an Act of Parliament as in State v Eluh [2016] PGSC 26; SC1479 (2 February 2016) including Rataba (supra) and Wauwia (supra), where the Police Act was involved, hence leave accorded for Judicial review.
   
6. In my view the mode is not right to hear the matter. It should be the subject of a different proceedings between the parties: Sarua v Kali [2013] PGNC 256; N5616 (20 September 2013) and Marfu v Gaupu & 4 ors [2022] PGNC 439; N9881(11 August 2022) illustrates that what is sought is in law of contract and in damages if indeed there are breaches evidenced. And this view is firmed out by the Supreme Court in Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886 (4 August 2017) that Judicial review is not the mode to address the matter because it is private law. And Judicial review is public law. Therefore, leave will not lie here given. I refuse the application with Costs.
   
7. The formal orders of the court are:
   
   • (1) Leave is Refused.
     
   • (2) Costs will follow the event.

Orders Accordingly.
__________________________________________________________________

Walne Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for Respondents