N10671

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 266 OF 2022 IECMS – CC1

BETWEEN:
FRANK TONGES LAU Provincial Administrator for Madang Province
Plaintiff/Respondent

AND:
TAIES SANSAN Secretary for Department of Personnel Management
First Defendant/Applicant

AND:
HON. RAMSEY PARIWA, LLB, MP – Governor For Madang Province
Second Defendant/Applicant

Waigani: Bre AJ
2023: 18th October
2024: 05th March

CIVIL PRACTICE AND PROCEDURE – Application to dismiss proceedings for wrong mode of originating process – declaratory and injunctive relief – whether prerogative writ of certiorari and prohibition – considerations of nature of dispute, substance of relief, and abuse of process  -  National Court Rules – Order 4 rule 3(2), Order 16 rule 1(1) and (2) NCR – public and private law consideration – nature of dispute construction of employment contract – decision based on contract –statutory power not exercised yet – plaintiff has a choice of proceeding – no abuse of process. 

Cases Cited
Attorney General and the State & Ors v Dr Pirouz Hamidian-Rad [1999] PNGLR 444
Ekepa v Nalepe (2020) N8564
Hiwi v Rimua (2015) SC1460
Keko v Barrik (2015) N7569
Kiap v Kasper (2023) SC2435
Madang Timbers v Wasa (2021) SC2154
National Executive Council, the Attorney-General, and Lucas v Public Employees   Association of PNG [1993] PNGLR 264 
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu (1994) SC459 
Samiak v Mosoro (2011) N4916
Sulaiman  v PNG University of Technology [1987] PNGLR 267
Telikom PNG Limited v ICCC (2008) SC906

References
C Karaiye "Administrative Law and Judicial Review in PNG" 1st edn Notion    
Press, 2019
Zamir and Woolf, 'The Declaratory Judgment' 3rd edn, Sweet & Maxwell,  2000

Counsel
Ms D Doiwa, for the Applicant/First Defendant
Mr M Kombri, for the Applicant/Second Defendant
Mr K Makeu, for the Respondent/Plaintiffs

RULING

05th March 2024

1.BRE AJ: INTRODUCTION: The Secretary for Department of Personnel Management and the Governor for Madang Province apply to dismiss this proceeding for abuse of process for the plaintiff commencing the wrong mode of proceedings.
 
PRELIMINARY MATTER

2.	Counsel indicated that there were three motions before the Court. The plaintiff had an outstanding motion of 17 March 2023 (Doc 12) and the first and second defendants have similar motions for dismissal of proceedings. The plaintiff's motion was for alleged contempt by the second defendant.  I proceeded to hear first the dismissal motions by the first and second defendants. See: Hiwi v Rimua (2015) SC1460
 
BACKGROUND

3.	The plaintiff is the current Madang Provincial Administrator. He was appointed by the National Executive Council for a period of four years from 10 May 2022 to 10 May 2026. 
He filed this proceeding on 12 December 2022 when the Secretary for the Department of Personnel Management informed him by letter dated 09 November 2022 to take paid leave due to criminal charges of corruption and abuse of office laid against him. In that letter, he was informed that the defendants would be proceeding to organise an acting appointment while he took leave.

4.	The plaintiff disputed the legal basis of the Secretary’s decision and requested instead that the Secretary interpret Clause 19.15 of his employment contract that she relied on.

He then commenced this proceeding to remain as the Provincial Administrator for the currency of his term and has obtained a restraining order to restrain the defendants from taking any action to remove him from office.

Application

5.	The first and second defendants' Notices of Motion filed on 17 May 2023(Doc 21) and 28 September 2023 (Doc 31) are in the following terms: -

The first defendant's Notice of Motion filed on 17 May 2023 reads:-

1)	Pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules, this proceeding be dismissed for being an abuse of process of the Court.
2)	Alternatively, that the Court Orders made on 21 December 2022 and 28 March 2023 are set aside pursuant to Order 12 Rule 8 (4) of the National Court Rules.
3)	Costs
4)	Such other Orders this Honourable Court deems fit."

The second defendant's Notice of Motion filed 03 October 2023 reads:-
1)	The proceeding be dismissed in its entirety for being an abuse of process of the Court pursuant to Order 12, Rule 40 (1) (c) of the National Court Rules.
2)	Costs of and incidental to this proceeding be awarded to the Second Defendant pursuant to Order 12 Rules 1 and Order 22, Rule 8 of the National Court Rules.
3)	Time of entry of this orders be abridged to the date of settlement by the Registrar.
4)	Any other or further orders this Honourable Court deems fit."
The only substantive difference between the two motions relates to the first defendant’s alternate submission to set aside interim restraining orders issued earlier. 
EVIDENCE

6.	All counsel relied on Affidavits filed. The first defendant relied on the Affidavits of Taies Sansan filed on 28 April 2023 and 17 October 2023, on 26 April 2023. The second defendant relied on the Affidavit of Ramsey Pariwa filed on October 2023(Doc 32). 
The respondent/plaintiff relied on the Affidavits of the plaintiff filed on 12 December 2022 and 17 March 2023.

SUBMISSIONS

7.	The Applicants submit that the plaintiff's proceedings are misconceived as the nature of the relief sought are in the nature of prerogative orders and should have been commenced by judicial review under Order 16 NCR and not by an ordinary Originating Summons under Order 4 NCR.

8.	The Applicants rely on Order 16 rule1(1) NCR urging a mandatory reading of the word 'shall’ regarding proceedings commenced for prerogative orders and consideration based on case authorities to examine the nature of the proceedings to arrive at a conclusion that the proceedings are an abuse and should be properly constituted by judicial review proceedings. The Applicants referred to the various terms of relief sought in the Originating Summons to support their submission that orders sought were in the nature of certiorari and prohibition.

9.	In response, counsel for the plaintiff, clarified that the primary order sought by the plaintiff is an order for interpretation of clause 19.15 of the plaintiff's employment contract and the injunctive relief follows the declaration sought. 
Mr Makeu relied on Order 4 Rule 3(2) NCR to submit that the plaintiff can choose the mode of proceeding where the relief sought requires construction of an Act or contract and that the plaintiff is seeking straight forward declaratory orders not prerogative orders.

ISSUE

10.	Whether the plaintiff should have commenced judicial review proceedings under Order 16 NCR instead of ordinary Originating Summons under Order 4 NCR? And if so, whether the proceedings should be dismissed for abuse of process under Order 12 rule 40(1)(c) NCR?

LAW 

11.	The applicable law are Orders 12 rule 40(1)(c), Order 4 rule 3 and Order 16 rule 1 of the National Court Rules (NCR), and relevant caselaw.

Order 12 Rule 40 (1)(c) NCR:-

"40. Frivolity, etc. 
(1) Where in any proceedings it appears to the Court that in relation to 	the proceedings generally or in relation to any claim for relief in the 		proceedings—
          	 	  ... 
           	 (c) the proceedings are an abuse of the process of the Court, 
the Court may order that the proceedings be stayed or dismissed 	generally or in relation to any claim for relief in the proceedings."

  Order 4 rule 3 NCR reads:- 

“3. Where plaintiff may choose. 
(1) Except in the case of proceedings which by these Rules or by or under 	any Act are required to be commenced by writ of summons, proceedings 	may be commenced either by writ of summons or by originating 		summons as the plaintiff considers appropriate. 
 
(2) Proceedings— 

              	(a) in which the sole or principal question at issue is, or is likely to 		be, one of the construction of an Act or of any instrument made 			under an  Act, or of any deed, will, contract or other document, or 		some other  question of law; or 
          	 	(b) in which there is unlikely to be a substantial dispute of fact; 		   or 
		(c) in which a person is authorized by an Act, regulation or by these 		Rules to make an application to the Court or a 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." 

(Emphasis mine)
Order 16 rule 1(2) NCR reads:-
 
"1. Cases appropriate for application for judicial review. 
(1) An application for an order in the nature of mandamus, 			prohibition, certiorari or quo warranto shall be made by way of an 	 
application for judicial review in accordance with this Order. 
 
(2) An application for a declaration or an injunction may be made by 	way of an application for judicial review, and on such an application 		the Court may grant the declaration or injunction claimed if it considers 	that, having regard to— 
           	  (a) the nature of the matters in respect of which relief may be 	 
granted by way of an order of mandamus, prohibition or certiorari; and 
 (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and 
(c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review. " 
(Emphasis mine)

ANALYSIS

12.	It is trite law that the Court must be cautious in summarily dismissing the substantive proceeding unless there is a clear case of abuse of process. In Lerro v Stagg (2006) N3050 at [13] his Honour Kanadakasi J (as he then was) stated  in respect of Court rules that:-
  
“…The Rules are designed to enhance .. rights and to ensure the 		prompt and fair disposal of matters coming before the Court. That right 	cannot be lightly set aside.  
At the same time ... the Rules under consideration 	provide for and the 	Court has an inherent jurisdiction to protect and safeguard against any 	possible abuse of the processes of the Court. 
 
The object of these rules are therefore “to stop cases which ought not to 	be launched — cases which are obviously frivolous or vexatious or 		obviously unsustainable. In other words “the object of the rule was to get 	rid of frivolous actions.” 

13.	The primary issue for deliberation is whether the plaintiff is seeking relief in certiorari and prohibition. In addressing the issue, I consider relevant the following matters in my deliberations; the mode of proceeding, the nature of the dispute, the substance of the relief sought, and whether there has been an abuse of process.
		Mode of proceeding

14.	I have considered the submissions of counsel, the evidence and the law and think it proper to set out the following legal position after a survey of the law and case authorities concerning the mode of proceeding:-

1)	It is trite law that a plaintiff has a choice in the mode of proceeding used to commence an action. See Order 4 rule 3 and Order 16 rule 1(2) NCR.

2)	A plaintiff's choice of action largely depends on the nature of the dispute, the state of evidence, the type of relief sought and the persons against whom the relief is being sought. See Order 4 rule 3 (2) and Order 16 rule 1(2) NCR.

3)	Where a plaintiff seeks relief in the form of declarations or injunctions, (s)he can proceed by either ordinary originating summons under Order 4 NCR or by judicial review under Order 16NCR. See Order 4 rule 3 and Order 16 rule 1(2) NCR.

4)	However, the proceeding will be at risk of summary dismissal where the substance of the relief are in the nature of prerogative writs. See Telikom PNG Limited v ICCC (2008) SC906, Madang Timbers v Wasa (2021) SC2154 and Keko v Barrik (2015) N7569 

5)	Where it is established that the relief being sought are in the nature of prerogative writs, the only way for the proceeding to be sustained is if it has been commenced by judicial review. See Order 16 rule 1(1) NCR and Attorney-General, Michael Gene –v- Pirouz Hamidian Radd [1999] PNGLR 444

6)	 Where it is found in (5) that the proceedings were commenced by originating summons and not by judicial review, the proceedings must be dismissed in its entirety or to dismiss some of the relief being sought for abuse of process pursuant to Order 12 rule 40 (1)(c) NCR on grounds that  it avoided the leave requirement under the judicial review process. See Telikom PNG Limited v ICCC (2008) SC906.

 15.	The defendants have challenged the plaintiff's choice of proceeding on grounds that the relief sought are in substance, in the nature of the prerogative writs of certiorari and prohibition.
 
16.	Order 4 rule 3 NCR provides the circumstances in which proceedings commenced by Originating Summons are appropriate and leaves it to a plaintiff to decide the mode of proceeding depending on the issue and evidentiary status.

17.	Order 16 rule 1 NCR provides a plaintiff with a choice of proceeding where declarations and injunctions are being sought but includes certain factors to guide a plaintiff in deciding the proper mode of proceeding to commence litigation.
The plaintiff’s choice of proceeding then stands or falls depending on the nature of the dispute, the relief sought and the persons that the relief are being sought against. 

I take guidance from those factors and apply my reasoning to these considerations.  I turn now to consider the nature of the dispute.

Nature of the dispute between the parties

18.	The nature of the relationship between the parties must be considered in the context within which the Secretary exercised her powers. 
All the parties hold public offices, and exercise various statutory powers under the respective statutes that they administer.
The plaintiff, while holding a public office, is also a senior contract employee of the State whose employment is governed by his employment contract, administered by the defendants on behalf of the State.
The dispute concerns a decision by the Secretary DPM made pursuant to clause 19.15 of the plaintiff's employment contract. The plaintiff is alleging an error of law by the Secretary in relying on clause 19.15 of his employment contract to direct him to step aside or take paid leave. 		

19.	The defendants contend that the plaintiff is in fact seeking a review of an exercise of power by the defendants as public authorities and that decision should be subjected to the judicial review.

20.	The applicant's submission, with respect, assumes that the Secretary, is exercising powers as a public official under statute when she required the plaintiff to take paid leave and informed him of the Governor and her intention to progress the appointment of an acting Provincial Administrator.

21.	The plaintiff’s primary complaint is about the exercise of powers by the Secretary under clause 19.15 of his employment contract, not the exercise of any statutory power by the Secretary under the Public Services Management Act or any other law administered by the Secretary or Governor concerning the plaintiff's employment.

22.	A perusal of the employment contract reveals that the Secretary and Governor represent the State as employer in relation to the plaintiff’s employment. The employment contract guides how matters concerning the plaintiff’s employment including disciplinary matters, are dealt with by the defendants. Clause 19.15 is one of the clauses that specifically authorises the Secretary to ‘advise’ the plaintiff to take paid leave where there are criminal charges against the plaintiff.

23.	The Secretary's letter of 09 November 2022 is reproduced below:-

9 November 2022
Mr Frank Tonges Lau
Provincial Administrator
Madang Provincial Administration 
P O Box 551
MADANG 
Madang Province

Dear Mr Lau,
Subject: Police Charges Against Yourself And The Need To Take Paid 		    Leave Of Absence Under Your Contract Of Employment
“The Office of the Secretary is in receipt of documents informing my office that you were arrested by Police on 22nd October 2022 and charged for two (2) offences namely;
	1) Did abuse the authority of your office by transferring public funds 	meant for 2022 National General Elections purposes totaling 	K900,000.00 without following proper processes and procedures.
	2) Dishonestly applying to your own use K100,000.00 contravening 	Section 383A (1) (a) of the Criminal Code Act.
I note that you are currently out on bail pending further court proceedings.
As these are serious offences, I am now requesting you to take paid leave of absence from the office to answer to the charges in Court until such time you are cleared. This request is made pursuant to Clause 19.15 of the terms and conditions of your employment contract.
As a consequence, a temporary vacancy is imminent in the Office of the Provincial Administrator, therefore I have consulted the Governor pursuant to Section 60A of the Public Service (Management) Act 1995 and Section 7 of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 for an acting appointment to be made to the office.
I, therefore seek your understanding and ask that you vacate the Office of the Provincial Administrator when the new acting appointee takes office upon the decision of the NEC”.
Yours sincerely,
Taies Sansan
Secretary

Copies:
Minister for Public Service
Governor for Madang
Chairman PSC
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               
24.	When considering the Secretary’s letter and clause 19.15 of the employment contract, I find, at the risk of treading into the substantive case, that the message contained in the letter of 09 November 2022 is not an ‘advise’ per the terms of clause 19.15 nor a ‘request’ per the terms of her letter but a ‘directive’ to the plaintiff as an employee.
I make this finding based on the terms of clause 19.15 which does not provide any discretion to the plaintiff to reject or ignore the Secretary’s ‘advise’, rather, there is a contractual expectation that he proceeds to take leave. Clause 19.15 (b) reads:-

	(b) The Secretary Department of Personnel Management shall advise the 	Provincial Administrator to take paid leave of absence (not to count 	against accrued leave entitlement) and the Provincial Administrator 	shall comply, pending the outcome of the case.
					(Emphasis is mine)

25.	The Secretary relayed to the plaintiff an intention to trigger the process of appointing an acting appointment once he took paid leave when she pointed out that 'a temporary vacancy is imminent'. Instead of complying with that instruction, the plaintiff decided to challenge the legal basis of the Secretary's reliance on clause 19.15 and he is entitled to do that to protect his rights to employment under his employment contract. 

26.	Having said that, the defendants have not yet actioned the decision to secure an acting appointment but intend to do so as soon as the plaintiff proceeds on leave. 
The letter of 09 November 2022 seems to me to be the initial action taken by the defendants to address the issue of the plaintiff’s continued employment in light of his arrest and serious criminal charges. 

27.	In terms of the nature of the dispute, I find that the Secretary acted in the capacity of the State employer when she issued the letter of 09 November 2022. She clearly relied on clause 19.15 of the Contract, not a statutory provision under any of the laws she administers. To me, this matter is a private law dispute concerning the construction of clause 19.15 of the plaintiff’s employment contract. That is a material factual consideration guiding my deliberations.

Substance of the Relief being sought

I address this consideration in two parts, firstly the legal consideration and secondly, the type of relief being sought.

i) Legal considerations

28.	The type of relief sought determines whether the plaintiff's current action survives. This calls for scrutiny of the relief being sought by the plaintiff and requires an examination of the Originating Summons. A survey of the case authorities is essential to clarify the law on the issue.
On this aspect, I  adopt and apply the Court's decisions in Telikom PNG Limited v ICCC (2008) SC906, Madang Timbers v Wasa (2021) SC2154 and Keko v Barrik ( 2015) N7569 which ruled that if the substance of the orders being sought are to quash the decisions of public decision makers, proceedings by ordinary originating summons are an abuse of process as the right mode is by judicial review process under Order 16 NCR.    

29.	A certiorari has its origin in equity and deals with questions of excessive jurisdiction where an aggrieved person brings the decision of an inferior tribunal, court or administrative body for review by the superior court and a determination is made on whether the decision should be quashed for acting beyond legal authority or not upholding the principles of natural justice. See State v Rush (1984) N480 (M) and Lupari v Somare (2008) N3476. 

30.	Declaratory orders clarify the respective rights and obligations of parties; it does not compel any enforcement. 

 A Declaration is a " judgement of the Court which clarifies the respective rights and obligations of the parties without actually making any compelling order " 
The learned authors Zamir and Woolf, clarify: - 
"A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.  It is to be contrasted with an executory, in other words coercive, judgment which can be enforced by the courts.    

 Nevertheless, declarations by courts have legal consequences.  A declaration is not “a mere opinion devoid of legal effect. It operates in law either as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal." See Ekepa v Nalepe (2020) N8564. 
 
31.	Declaratory orders are straight forward in cases where a party seeks to establish private rights in contract. Order 4 rule 3 NCR provides that a plaintiff may decide to proceed by ordinary originating summons under Order 4 NCR where:- 

1) facts are not in dispute, and  
2) the relief sought is based on statutory interpretation, or construction of 	a contract. 
 
32.	The prerogative writ of prohibition "prohibits the decision-maker and those relying on the decision from doing something illegal which they are about to do, or from continuing on an illegal course of action already commenced". 
 
33.	An injunction according to Black's Law Dictionary, "is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury" or prevents something from being done that may infringe upon the propriety rights of the applicant and can be temporary or permanent.
 
34.	In the case of Attorney General and the State & Ors v Dr Pirouz Hamidian-Rad [1999] PNGLR 444, the Supreme Court confirmed that judicial review is the exclusive process where an applicant seeks orders in the nature of certiorari. 
 
35.	The nature of judicial review actions are that there is no automatic right to claim prerogative writs unlike the process under Order 4 NCR, because leave must be obtained prior to the Court reviewing the public authority or tribunal's decision. 
Relief sought under Order 4 NCR originating summons is generally suitable for enforcement of private rights arising from contract or construction of a law where leave is not required.  See Gene v Rad and Punangi v Brown, Minister for Public Service (2004) N2661.
 Judicial review is concerned with reviewing the decision-maker’s decision not with the decision itself. See Rose Kekedo v. Burns Philip Limited [1988-89] PNGLR 122.    

36.	Generally, judicial review is a remedy available to a person aggrieved by the exercise of public power by a public official exercising powers under statute or subordinate legislation.  See: Ereman Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994).
In Kekedo v Burns Philip the Supreme Court explained:-
  
	“the circumstances under which judicial review may be available are 	where the decision-making authority exceeds its powers, commits an error 	of law, commits a breach of natural justice, reaches a decision which no 	reasonable tribunal could have reached or abuses its powers.” 

Kekedo's case speaks of power that has already been exercised. Not one that is yet to be exercised. That I consider is a key distinguishing factor in my deliberations on considering the nature or substance of the relief being sought.

37.	Judicial review is concerned with the exercise of powers under a statutory provision by public authorities not with contract rights under private law. See Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu (1994) SC459 and Sulaiman v PNG University of Technology [1971] PNGLR 267.

Also, in Peter Ipu Peipul v Sheehan J, Mr Orim Karapo and Mr Iova Geita (Constituting the Leadership Tribunal), Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2002) N2232 the Court explained that:-

	“Judicial Review does not concern itself with the reasoning of the sub-	orinate authority with a view to substituting it with the Courts own 	decision, rather it is concerned with the decision-making process, and 	not the decision itself, it is concerned about the fairness of procedure and 	fair hearing.”

38. 	On the other hand, Section 62 Public Services Management Act (PSMA) provides that the terms and conditions of a Provincial Administrator’s employment are governed by the employment contract. Employment issues are private law matters governed exclusively by the contact terms between the parties. The ‘contract speaks on the rights and obligations’ of parties to the contract. See Kiap v Kasper (2023) SC2435.

39.	After these considerations, I ask whether private law matters should be subject to judicial review especially where the plaintiff occupies a public office.  The answer to that depends on the factual circumstances of the case. 
It is clear that the manner of appointment and revocation of the plaintiff's employment by virtue of the public nature of the office and his duties are specifically governed by statute. See Section 193 Constitution, 60 PSMA and the Employment Contract clause Preamble (A) and Clause 9. Any powers exercised by the defendants in reliance on those provisions will be subject to judicial review, if it is exercised ultra vires or with no regard to the principles of natural justice, as it governs the plaintiff's appointment, discipline etc,.
40.	In Luma v Kali (2014) SC1401 at [15] to [25], the Supreme Court established three principles to determine if a revocation of employment should proceed by judicial review, these are; the process of appointment and revocation, subject to decision must be of public importance and interest, and whether the employing agency is created under statute. These tests arose from a revocation of employment case and must be distinguished on the facts with this proceeding. 

41.	In Luma v Kali the Supreme Court considered several cases that deliberated on the issue of public law versus private law remedies for state employees and held at [21] that:-

“… judicial review is only available where issues of public law are 		involved and a Department Head or other senior public servants 		employed on contract cannot have it both ways. If they are on contract, it 	is the terms of contract that they must look to for their remedies and not 	by way of judicial review.”

42.	The facts in Luma v Kali are distinguished from this case but the principles established regarding private and public law are clear and supports the view I have taken about the private law nature of the plaintiff’s contract.

43.	I find that only one aspect of the Secretary’s letter may arguably attract judicial review consideration which is her communication to the plaintiff of the Governor and her imminent intention to proceed with appointment of an acting Provincial Administrator in reliance on their statutory powers under Section 60A of the Public Service (Management) Act 1995 and Departmental Heads and Provincial Administrators) Regulation 2003.
These provisions are governed by public law and mandated to the defendants to administer. Any intended action based on these powers could arguable be subjected to judicial review. However, these powers have not been exercised yet and any arguments challenging this by judicial review would be premature as the process has not been exhausted. See Temai v Marape (2021) N8825.

44.	The case authorities indicate that judicial review may be pursued where a public official vested with statutory duties, exercises those duties excessively or without due consideration for the principles of natural justice. Judicial review does not apply where the statutory power has not yet been exercised.
That declarations clarify the respective rights and obligations of the parties or the legal state of affairs and are not coercive in nature, thus injunctions usually accompany declarations to provide the compelling aspect of the order. 
I turn now to address the type of relief sought.  

			ii) The type of relief being sought
 
The Originating Summons is reproduced below:- 

Originating Summons filed 12 December 2022 

The Plaintiff Claims: 

1.	A Declaration that the Plaintiff is the duly appointed Provincial Administrator of Madang Provincial Administration and is employed under his Performance Base Contract of Employment (“Contract of Employment”) and that any decision 	affecting his employment by any authority and public body or office including the Office of the Defendant, shall be made within the framework of the said  Contract.  

2.	A Declaration that the Clause. 19.15 of the Standard Terms and Conditions of Employment under the Plaintiff’s Contract of Employment, shall only apply to the Plaintiff in circumstances where, firstly, the Plaintiff has been charged with a criminal offence that is not related to the Plaintiff’s office, or secondly, where the Plaintiff has been cited with contempt of court for any reason, or thirdly, where the Public Prosecutor has referred to the Plaintiff to the Leadership Tribunal under the Organic Law on the Duties and Responsibilities of Leadership.  

3.	A Declaration that, allegations made against the Plaintiff, in his capacity as Provincial Administrator and Chairman of the Madang Provincial 	Election Steering Committee, of abuse of office for redirecting K900,000.00 to Madang Provincial Administration Covid-Account during the 2022 National General Elections, and misappropriation of another K100,000.00 of additional funds for the 2022 National General Elections and the consequential arrest and charging of the Plaintiff for abuse of office and misappropriation on 22 October 2022, do not give rise to any of the three (3) circumstances as captured under Clause 19.5 of the Standard Terms and Conditions of Employment under the Plaintiff’s Contract of Employment.  

4.	An Order in the nature of the Declaration that, the Defendant’s decision by way 	of a letter dated 09 November 2022, purportedly made pursuant to Clause 19.5 of the Standard Terms and Conditions of Employment of the Plaintiff’s Contract of Employment, directing the Plaintiff to take paid leave of absence or “step-aside” from office of the Provincial Administrator for Madang Province, and to answer to the said criminal charges in Court, is irregular and is therefore null and void and of no effect. 

5. 	An Order in the nature of Declaration that there is NO Vacancy in 	the office 	of the Provincial Administrator for Madang Provincial Administration and therefore there is no urgency and utility to invoke Section 60A of the Public Service (Management) Act 1995 and Section 7 of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, for an acting appointment to be made to the said office.  

6. 	An Order in the nature of a permanent injunction restraining the Defendant and 	any authority or public body and office including the office of the Governor for Madang Province, from directing the Plaintiff to take Leave of Absence and Step Aside from the Office of the Provincial Administrator for Madang Province and from further invoking Section 60A of the Public Services (Management) Act 1995 and Section 7 of the Public Services (Management) (Section and Appointment of Departmental Heads and   Provincial Administrators) Regulation 2003, to deem the existence of a Vacancy in the Office of the Provincial for an acting appointment to the office of the Madang Provincial Administrator.  

7.	An order in the nature of the declaration that the Plaintiff shall continue to remain in office as the Provincial Administrator for Madang Province and exercise his official powers and perform his official duties and   responsibilities as prescribed by law, during the term of his Contract of employment subject to further extension and or re-appointment.  

8.	A further Declaration that the Defendant has also failed to respond to the request by the Plaintiff pursuant to Clause 21 of the Standard Terms and Conditions of Employment of the Plaintiff’s Contract of Employment for interpretation of the contract, and therefore, in addition to orders sought at term (3) above, the Defendant 	is in breach of both Clauses 19.15(a)(i) and 21 of the Contract.  

9.	 In the Interim, the Defendant and any other authority or public body and office be restrained from taking any adverse actions regarding the Plaintiff’s occupation of the Office of the Provincial Administrator for Madang Province including powers and 	perform his official duties and responsibilities as Administrator for Madang Province pending the   outcome of this proceeding.  

10.	The Defendant pays the Plaintiff’s costs of this proceeding. 

11.	Any other orders this Court deems just and appropriate to the circumstances of the case. 

45.	Prima facie, the plaintiff is seeking declarations and injunctions. The applicants submit that the relief sought reviews the Secretary's decision and quashes it and prohibits the defendants from exercising their statutory duties to deal with the disciplinary conduct of the plaintiff. That the suit is therefore misconceived and an abuse of process as the relief is in substance those of the prerogative writs of certiorari and prohibition.  

46.	I set out my views regarding each relief claimed by the plaintiff in the Originating Summons:-
Relief 1: affirms the obvious regarding the plaintiff's employment and the declarations sought are in order. 

Relief 2: requires a declaration concerning the interpretation of a specific clause in his employment contract being Clause 19.15 and remains.  

Relief 3: The circumstances mentioned in this, relief 3, will be considered by the Court in deciding Relief 2 and remains. 

Relief 4: The declaration sought relates to the specific provision of the contract Clause 19.15 which is a matter of construction of the contract and remains. Arguments on whether the relief sought should extend to nullifying the decision is a matter for substantive arguments when clause 19.15 is being interpreted.  The Secretary is not exercising a statutory or public power that requires judicial review. I find the relief seeks to challenge the decision rather than the way the power was exercised.  The 	plaintiff is seeking declarations to the effect that when considered with relief 3, clause 19.15 does not apply to the plaintiff's circumstances. 

Relief 5 seeks declaratory orders to declare that there is no vacancy in the Madang Provincial Administrator position and that there is no need for the defendants to exercise their powers under Section 60A of the Public Services (Management) Act 1995 (PSMA) and Section 7 of the Public Services (Management) (Section and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (PSR) to appoint an acting Provincial Administrator. 
It is argued by the applicants that the effect of this relief is to review and quash the defendant's decision and it is relief sought in the nature of a 	certiorari. 

I am not persuaded by this submission because the relevant decision under consideration is the decision taken by the Secretary under clause 19.15 of the employment contract. No exercise of statutory power by the defendants has occurred yet under s60A PSMA or s7 PSR. Judicial review applies to the review of the exercise of powers under statute by public officials. The relief sought is a declaration seeking to confirm the state of affairs.  

Relief 6 seeks to permanently restrain the defendants from “directing the plaintiff to take leave of absence and step aside from the Office of the Provincial Administrator for Madang Province.” 
Relief 6 has the effect of shutting out the defendants from exercising any lawful statutory powers they may have under statute such as s31C or s31D PSMA, or the contract, to deal with his employment concerning the criminal charges against the plaintiff. 
The plaintiff has not been subjected to the disciplinary process stipulated 	in detail under his contract.
The plaintiff occupies a public office, and the defendants as employers with both contractual and statutory powers to manage the performance and discipline of the plaintiff are rightly concern about the public perceptions 	as alluded to in Secretary Sansan's affidavit. 
While the defendant's concern may be genuine, those powers to deal 	with the performance or discipline of the plaintiff have not yet been exercised.
For the purposes of my consideration, I take note that injunctions seek to prevent something from happening, which in this case, is to prevent the 	defendants from directing the plaintiff from taking paid leave under clause 19.15. As to whether that restrains the exercise of other statutory powers that is a matter for substantive arguments not for my consideration in this application.

Relief 7 seeks declaratory orders for the plaintiff to continue being employed and perform his duties as the Madang Provincial Administrator for the duration 	of his contract. Arguably issues pertaining to the statutory powers of the defendants to deal with his performance and disciplinary matters under s32C and s31D PSMA may be raised. Those arguments would be 	appropriate for the substantive hearing and not for my consideration in this 	application. For this application, the law is clear, judicial review applies to decisions made by public officials under statute. The evidence is that no such statutory decision has been made by the defendants.  

Relief 8: The relief sought refers to specific contract clauses, which is a matter  of construction of a contract and the declaration sought remains. 

Relief 9: The relief sought is an interim injunction. A Court Order on this relief was issued earlier. The applicants contend it is prohibitory in nature. I note that its’ scope extends beyond the scope of the permanent injunction sought under relief 6. My view is that the gist of this relief is to preserve the status quo until the construction of clause 19.15 is made (substantive proceeding). A better approach may be to set aside the interim restraining order then to dismiss it for it being a relief to sought by judicial review.

47.	In the end, I am satisfied on the evidence and law that the relief sought are in the nature of declarations and injunctions, not prerogative writs of certiorari and prohibition. As to whether the relief sought in the originating summons can be lawfully granted, that is a matter for substantive arguments. 
What is clear to me is that judicial review only applies where the public official, in this case, the defendants, have excessively exercised statutory power or not observed principles of natural justice, when dealing with the plaintiff's employment.  The Secretary made her decision under clause 19.15 of the employment contract, not under a section of an Act of Parliament.
I accept the plaintiff's submission that this is a construction of contract case and the primary relief sought are ordinary declarations and injunctions. I therefore rule that, the proceeding has been properly commenced way of originating summons under Order 4 NCR.  

Abuse of process

48.	In case I am wrong, in Samiak v Mosoro (2011)N4916, the applicant was seeking declaratory orders by Originating Summons under Order 4 NCR, concerning his appointment and the authority of the Wewak General Hospital Board to make recommendations for the appointment of an acting Chief Executive Officer and the appointment of the respondent as the acting CEO as irregular amongst other Orders under the relevant laws relating to the appointment of departmental heads etc,. 
The Court did not dismiss the proceedings because it was of the view that the plaintiff was only seeking declarations and injunctive reliefs and had a choice of proceeding under Order 4 or 16 NCR and that the relief sought was not in the nature of a certiorari.
Generally, the Court should be slow to dismiss proceedings in its entirety, where there is no abuse of process. I have found that the plaintiff has properly commenced his proceeding, I rule that there is no abuse of process.

CONCLUSION

49.	After all these considerations, I rule that the court rules allow for the plaintiff to commence proceeding either by ordinary originating summons or judicial review depending on the nature of the dispute and type of relief being sought. I find that the nature of the dispute is one of employee/ employer or contract law and concerns the interpretation of clause 19.15 of the plaintiff's employment contract. 

The Secretary informed the plaintiff of her and the Governor's intention to exercise their powers under the PSMA and PSR to appoint an acting provincial administrator when the plaintiff takes leave.  The defendants did not exercise these statutory powers to make an acting appointment.

50.	Judicial review concerns the excessive use of power or the lack of consideration to the principles of natural justice where a public official makes a decision based on statute.  I find that the objections by the defendants about the mode of proceeding have been raised prematurely as the defendants have not exercised any of their statutory or contractual powers to manage the conduct or performance of the plaintiff.
The proceedings are properly constituted and should proceed to hearing.  

ORDER

51.	The formal orders of the Court are:- 

1.	The defendants Notices of Motion filed on 17 May 2023 and 28 September 2023 are dismissed.
2.	Costs on a party/party basis for preparing and moving the application are awarded to the plaintiff to be borne by the defendants, to be taxed if not agreed. 
3.	Time of entry is abridged to the date of settlement by the Registrar of the National Court, which shall take place, forthwith. 

Orders accordingly.

Makeu Lawyers: 		Lawyers for the Plaintiff
Makap Lawyers: 		Lawyers for the First Defendant 
Kombri & Associates:	 Lawyers Second Defendant