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Suagu v Nepo [2025] PGNC 159; N11283 (12 May 2025)


N11283

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS(JR) NO. 40 OF 2025 [IECMS]


BETWEEN:
DAVID SUAGU
Applicant


AND
CHIEF INSPECTOR BERNARD NEPO as the Acting Commissioner for the PAPUA NEW GUINEA CORRECTIONAL SERVICES
First Respondent


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent


WAIGANI: DOWA J
8, 12 MAY 2025


PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decisions of Commissioner of PNG Correctional Service who terminated the contract of employment of the Plaintiff- prerequisites of leave- whether grounds exist for leave- -having all requirements met-leave was granted.


Case cited
NTN -v- PTC [1987] PNGLR 70
Asakusa -v- Kumbakor (2008) N3303.
JV PNG Investment Constructions Ltd v Samson (2022) SC2224,
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Kalinoe v Paul Paraka Lawyers. (2014) SC1366


Counsel:
Mr. Lunge for the applicant
P H Pato for the first defendant
C Pore for the second defendant


RULING


  1. DOWA J: This is a ruling on an application by the Plaintiff, David Suagu, seeking leave to apply for judicial review of the decision by the first Defendant made 10th March 2025 terminating his employment with the PNG Correctional Service.

BRIEF FACTS


  1. The Applicant is a former Deputy Commissioner-Operations of the Papua New Guinea Correctional Services. He has been in continuous employment with the PNG Correctional Service since 1993 until his termination on 10th March 2025.
  2. Prior to his termination, Plaintiff was appointed as Deputy Commissioner -Operations, in 2019 for a term of three years. He was reappointed for a further term of three years commencing 2nd November 2023. The former Commissioner, Stephen Pokanis, published the appointments in a Circular dated 15th January 2024. The first Defendant, by letter dated 10th March 2025, terminated the Plaintiff from employment. The reasons advanced for the termination were that the Plaintiff’s contract of employment expired and that there were outstanding disciplinary matters pending deliberation.
  3. Aggrieved by the decision, the Plaintiff applies for leave to apply for judicial review of the Dismissal decision of the first Defendant.
  4. The Plaintiff relies on the following documents:
    1. Originating Summons filed 14th April 2025
    2. Order 16 Statement filed 14th April 2025
    1. Affidavit in Support by David Suagu filed 14th April 2025
  1. Notice of application for leave to apply for judicial review filed 14th April 2025

Hearing


  1. The application was heard on 8th May 2025. The first and second Defendants opposed the application. Mr. Pato, counsel for the first Defendant, submitted that the proceedings are incompetent as the Plaintiff’s employment is governed by private contract law. Ms. Pore, Counsel for the second Defendant, raised a preliminary point that the Originating Summons is incompetent for seeking additional interim reliefs in the same application.

Issues


  1. The issues for consideration are:
    1. Whether the proceedings are competent
    2. Whether the Plaintiff be granted leave to apply for judicial review.

Competency Issues


  1. Counsel for the first Defendant submits that the proceedings are incompetent on the basis that the Plaintiff’s employment contract is governed by private contract law and is not available for judicial review. Although the argument is valid, it doesn’t necessarily render the proceeding incompetent. Rather it is an argument that can be raised when determining the issue whether the Plaintiff has an arguable case, and if leave is granted, at the substantive application for judicial review.
  2. Ms. Pore, counsel for the Second Defendant, submits that the proceeding is incompetent on the basis that the Originating Summons seeks, apart from the main relief for leave, other interim orders. The law is settled that the process of judicial review starts with just one relief for leave only and additional reliefs are not allowed. Refer: JV PNG Investment Constructions Ltd v Samson (2022) SC 2224, Peter Makeng v Timbers (PNG) Limited (2008) N3317 and Kalinoe v Paul Paraka Lawyers (2014) SC1366.
  3. In the present case, the Originating Summons contains a reference for additional reliefs to be granted in a separate Notice of Motion. The Originating Summons does not directly state the actual additional reliefs. The additional reliefs are contained in a separate Notice of Motion filed together with the Originating Summons. During the arguments, counsel for Plaintiff sought to abandon the interim reliefs sought in the Notice of Motion. In the circumstances, I find no serious abuse of the National Court Rules and shall allow the application to be considered on its merits in the interest of justice.

Law


11. The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:


  1. The applicant must have sufficient interest.
  2. The applicant must have an arguable case.
  1. There must be no undue delay.
  1. The applicant must have exhausted all other statutory/administrative avenues for appeal or review.

12. On the use of discretion, the Court in NTN v PTC said this at page 7 of the judgment:


“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).


In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):


"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."


13. I will now turn to the present case to consider whether the Plaintiff has met the prerequisites for leave to apply for judicial review.


  1. Sufficient Interest

14. The Plaintiff is directly affected by the decision of the first Defendant; therefore, he has sufficient interest.


b) Undue delay


15. The Dismissal decision was made on 10th March 2025.The Plaintiff filed these proceedings on 14th April 2025. They were filed within the four (4) months prescribed by Order 16, Rule 3 (5) of the NCR and thus no undue delay.


c) The applicant must have exhausted all other statutory/administrative avenues for appeal or review.


16. The Plaintiff submits that there is a CIS Appeals Tribunal under Section 45 of the Correctional Service Act 1995 but is non-existent. The Plaintiff submits further that it would not be appropriate for lower ranking officers to deal with the Plaintiff’s case and the Court is the only appropriate avenue. In my view, the Plaintiff has an option to commence proceedings by way of pleadings in a Writ of Summons. That said, the Plaintiff made his decision, and it does not stop the Plaintiff choosing the mode of proceedings by way of judicial proceedings under Order 16 of the NCRs.


d) The applicant must have an arguable case.


17. Mr. Lunge, counsel for the Plaintiff, submits that the Plaintiff has an arguable case in that:


a. the first Defendant acted ultra vires his powers after his acting position as Commissioner lapsed.

b. The first Defendant made errors of fact when he terminated the Plaintiff on grounds that the Plaintiff’s employment contract lapsed, when in fact the contract has been renewed for a further term of three years.

c. the decision was unreasonable

d. the Plaintiff was not given a chance to be heard, thus a breach of natural justice under Section 59 of the Constitution.


18. Mr. Pato, counsel for the first Defendant, submits that judicial review of the first Defendant’s decision is not available as the relationship between the parties is based on a contract of employment which is governed by private law and not public law. Counsel relies on the decision of the Supreme Court in Kiap v Kasper (2023) SC2435 as authority for his submissions.


Consideration-Private law vs public law


19. The arguments presented by Mr. Pato are valid as decided in the Kiap v Kasper and other cases. It is, however, arguable that the facts in the present case are distinguishable to those in Kiap v Kasper, in that the Plaintiff in the present case had a subsisting contract while in the Kiap case, the employment contract had already expired. In the present case the terms of contract of employment are made subject to and includes an administrative disciplinary process. These are matters that should be properly argued in a substantive review after all evidence is presented and assessed. It is not in the interest of justice to prematurely dismiss the matter summarily.


Ultra Vires


20. The Plaintiff argues that the first Defendant did not have authority to terminate his contract of employment. The Plaintiff argues that the first Defendant’s substantive rank is Chief Inspector, a rank that is inferior to many other officers including the Plaintiff. The first Defendant was appointed Acting Commissioner on 4th July 2024 for a term of three months which lapsed on 4th October 2024, and any further extension of three months thereof lapsed on 4th January 2025. The Plaintiff submits that the first Defendant in his substantive rank of Chief Inspector did not have authority to terminate the Plaintiff on 10th March 2025 when he was no longer the Acting Commissioner. The first Defendant, on the other hand, deposes in his Affidavit filed 6th May 2025 that he is the Acting Commissioner. In my view there is substantial dispute of facts and evidence is required to establish truth. Now is not the time for this Court to make the assessments. Suffice to say, there is an arguable case for substantive review.


Errors of Fact-Contract of Employment


21. The next ground for review is that the first Defendant made errors of fact when he said the Plaintiff did not have a contract of employment, when in fact the Plaintiff was serving as Deputy Commissioner-Operations under a contract of employment signed 2nd November 2023 for a term of three (3) years. There is in evidence a contract of employment between the Plaintiff and the PNG Correctional Service dated 2nd November 2023 for a term of three years. The letter of termination shows the main reason for the dismissal is that the Plaintiff did not have a contract of employment. There was argument from the defendants that the Plaintiff was not appointed by NEC in accordance with Section 17 of the Correctional Service Act 1995. That may be so, and all parties will have the opportunity to advance their arguments in the substantive hearing. But for now, it is arguable that the Plaintiff has a contract of employment, and that the first Defendant erred in denying it. That being the case, the Plaintiff be given a chance to seek review in a substantive judicial review.


Breach of Natural Justice


22. Apart from the above matters, the Plaintiff has raised additional grounds of unreasonableness and breach of the natural justice. The letter of termination shows that there are pending disciplinary actions yet to be processed. I note the Plaintiff’s contract of employment stipulates that the Bylaws and the Correctional Service Standing Orders and Code of Conduct form part of the contract of employment. In case of serious breach of the contract of employment, the matter shall be dealt with by the Commissioner under the disciplinary procedures in Schedule C3. The Plaintiff submits that the disciplinary procedure was not followed. It is arguable that the Plaintiff was not given the opportunity to defend himself, thus a breach of natural justice.


Conclusion


23. In the end I have reached a conclusion that the Plaintiff has an arguable case on several grounds. I am also satisfied that the Plaintiff met all the requirements for the grant of leave to apply for judicial review and shall grant leave accordingly.


Orders


24. The Court orders that:


  1. Leave is granted to the Plaintiff to apply for judicial review of the decision of the first Defendant dated 10th March 2025 dismissing the Plaintiff as Deputy Commissioner-Operations for PNG Correctional Service.
  2. The Plaintiff shall file a substantive Notice of Motion for judicial review within 21 days from date of order
  3. The matter is adjourned to 2nd June 2025 or thereafter for further directions.
  4. Time be abridged.

Lawyers for the applicant: Ninerah Lawyers
Lawyers for the first respondent: Parker Legal
Lawyers for the second respondent: Solicitor General

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