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N'Dranou v Manning [2025] PGNC 313; N11450 (20 August 2025)

N11450

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 73 OF 2025 [IECMS]

BETWEEN:
PEROU N’DRANOU
Plaintiff

AND:
DAVID MANNING, MBE, OSt.J, QPM, Commissioner of Police
First Defendant

AND:
THE INDPEPENDENT STATE OF PAPUAL NEW GUINEA
Second Defendant

WAIGANI: PURDON-SULLY J
14, 20 AUGUST 2025

JUDICIAL REVIEW – Practice & Procedure – Application for leave for judicial review – National Court Rules, Order 16 rr 3, 4 and 5 – Police Act 1998 - State opposes grant of leave based on arguable case – Requirements for leave met – Leave granted.

Cases cited
Kiap v Kaspar [2023] SC2435
O’Neill v Eliakim [2016] SC1524
Mondai v Wawoi Guavi Timber Co Ltd [2007] SC886
Ekip v Gamato [2017] SC1594
Kekedo v Burns Philp (PNG) Ltd [1988-1989] PNGLR 122
Ombudsman Commission v Yama [2004] SC747.
Innovest v Pruaitch [2014] PGNC 288; N5949

Counsel
Mr P Punau, for the applicant
Mr I Kopi, for the State

1. PURDON-SULLY J: This is he Court’s ruling on an application by the Plaintiff by Originating Summons filed 10 June 2025 for leave to apply for judicial review of the decision of the First Defendant made on 21 May 2025 (the decision) to terminate his employment with the Royal Papua New Guinea Constabulary (the police force).
   
2. The application is brought pursuant to Order 16 of the National Court Rules (NCR).
   
3. At the time of the termination of employment the Plaintiff held the rank of Assistant Commissioner of Police.
   
4. It is unchallenged that:
   
   1. the Plaintiff was employed under a three (3) year performance-based contract of employment which expired on 18 January 2018;
   2. on 6 February 2025 the Plaintiff was directed by the First Defendant to continue his employment with the police force as ACP Training and Commandant of National Centre of Excellence.
   100. the Plaintiff’s employment was terminated by letter from the First Defendant dated 21 May 2025.
        
5. In making the decision the Plaintiff asserts that the First Defendant acted ultra vires/in error of law, breached the principles of natural justice and that the decision was harsh and oppressive.
   
6. The relief sought by the Plaintiff as pleaded in his Statement in Support filed 10 June 2025 is that the decision be quashed, a declaration that his termination was void and of no legal effect, a declaration that the First Defendant had appointed the Plaintiff to continue his employment which for all purposes was an appointment under the Police Act 1998 and an order in the nature of mandamus directing the First Defendant to re-instate the Plaintiff to the police force.
   
7. In opposing the grant of leave the only issue raised by the State was whether the Plaintiff had met the requirement that he had an arguable case. It was the State’s case inter alia that the Plaintiff’s performance-based contract of employment had expired, that it was to the contract of employment that he must look and for this reason judicial review and the reinstatement that he sought by way of relief were not remedies available to him. The State relied upon the Supreme Court decision of Kiap v Kaspar [2023] SC2435 (Kiap).
   

CONSIDERATION

8. This application brings into sharp focus an issue that has challenged the Court time and again and that is, where a contract of employment exists, whether it is to the rights and/or duties and obligation of the parties to the contract that the Plaintiff should look or the protection or procedure for termination that may be provided by statute and therefore the right to judicial review as a remedy for breach of contract (Kiap at [9]). Put another way, the issue is whether the Plaintiff’s remedy lies under contract law or in judicial review, a decision to that end often one of a “hair’s breadth”.
   
9. The application also brings into focus the consequences of lax administrative practice by some public authorities. It should not be a high administrative bar to implement procedures that enable employees, the subject of performance-based contracts, to be informed before the expiry of their contract as to whether their contract is to be renewed, thus enabling them to make decisions on a timely basis about their work future. Too often, in the experience of this Court, employees find themselves in a position of disadvantage with little bargaining power, uncertain as to whether to look for other employment or to await a decision by the employer after the expiry date has well and truly passed, the employee, reliant on the income to support themselves and their families and/or the hope of continued employment in their chosen career path, inevitably hanging on. On the facts of the present case, it is the Plaintiff’s evidence that he was not informed, having held at the time of the expiry of his contract a senior position in the police service after 39 years of service.
   
10. In Kiap at [18], Kandakasi DCJ identified as legally incorrect and improper the practice of former employees remaining on the payroll either “unattached” or in a pool awaiting redeployment. Notwithstanding that pronouncement of the law, the matters that come before this Court suggest that the practice continues.
    
11. In this case however, the Plaintiff was not left unattached or in a pool awaiting redeployment. On the evidence he was directed by his employer following the expiration of his contract to undertake another role which he then assumed, before dismissal a few months later. The terms of his dismissal do not prima facie give rise to a suggestion that it arose by reason of disciplinary grounds or his work undertaken following redeployment.
    
12. Turning to the legal principles to be applied, an application for leave for judicial review is discretionary. It is one however that must exercised judicially taking into consideration all the pertinent and relevant facts (O’Neill v Eliakim [2016] SC1524 per Sakora J at [46]).
    
13. It is settled law that there are four requirements for the grant of leave for judicial review. The Plaintiff must demonstrate:
    
    1. locus standi or a sufficient interest in the decision the subject of the application;
    2. that there has been no undue delay in making his application for leave;
    100. that he has exhausted all available statutory and administrative remedies available to him for redress; and
    4. that he has an arguable case justifying the grant of leave for judicial review.
       
14. While the State challenges only one of those requirements, namely arguable case, as advanced by the State in oral submissions it is also an issue, in my view, that also goes to the heart of the Plaintiff’s standing to bring proceedings for judicial review.
    
15. Having considered the material relied upon and the submissions made, I am satisfied that all of the requirements for leave have been met and that the grant of leave should be made.
    
16. The Plaintiff was an Assistant Commissioner of Police. While his contract expired on 18 January 2025, on direction of the First Defendant he shortly thereafter undertook a posting stated to enable those in command positions to serve across both the administrative and operational wings of the police service during their career. The directive concluded:
    

In line with my expectation on well-rounded leadership experiences for those in positions of command, the Executive Management team will periodically review opportunities for professional development and growth of further senior ranks in coming months.

17. On transferring to his new post, the Plaintiff thus continued providing his services to the police service, albeit in another capacity as directed until those services were terminated on 21 May 2025. He has thus demonstrated a sufficient interest to bring the proceedings, being a person directly aggrieved or affected by the decision to terminate his employment (Mondai v Wawoi Guavi Timber Co Ltd [2007] SC886; Ekip v Gamato [2017] SC1594).
    
18. Applications for leave for judicial review must be made promptly. The Plaintiff seeks an order in the nature of certiorari. There is no dispute that the proceedings for leave were filed promptly and within the four (4) month period under Order 16 rule 4(2) of the NCR.
    
19. There is no challenge to the requirement that there are no administrative or statutory remedies available to the Plaintiff.
    
20. The Plaintiff has also demonstrated an arguable case. While the State’s arguments on a full consideration of the matter at a final hearing may ultimately be upheld, that does not mean that the Plaintiff has not made out that he has a case to argue.
    
21. It is settled law that 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 authority could have reached or abuses its powers (Kekedo v Burns Philp (PNG) Ltd [1988-1989] PNGLR 122; Ombudsman Commission v Yama [2004] SC747.
    
22. The grounds pleaded by the Plaintiff contain a reference to proper grounds of review recognised by law and a description of the relevant statutory provision or common law duty alleged to have been breached.
    
23. While a significant focus of the Plaintiff’s pleadings is his contract of employment and asserted breaches as particularised arising thereunder, the pleadings also raise other grounds including breaches of the Police Act 1998, as particularised, arising from his re-deployment and termination.
    
24. The Plaintiff also pleads at [4] a breach of natural justice including short notice and a failure on the part of the First Defendant to give proper reasons for the decision. He further alleges that the decision was outrageous and unreasonable. Breach of natural justice is a common law ground of review as well as a constitutional ground, albeit the latter not pleaded in his Statement. Unreasonableness, which is centred on considerations of irrationality, may also amount to a breach of natural justice.
    
25. In assessing the arguability of the grounds as pleaded, the discretion that Court is exercising at a leave stage is not the same as that which it is called upon to exercise at a substantive hearing when all the evidence has been filed and the matter fully argued. At the leave stage all the Court is required to do is to form a prima facie view on a quick perusal of the material as opposed to detailed analysis of the evidence (Innovest v Pruaitch [2014] PGNC 288; N5949 at [39]-[41]).
    
26. Having considered the Statement in Support and supporting material I am satisfied that the Plaintiff has set out an accurate description of the decision under review, provided a succinct statement of the relevant facts alleged which give rise to the grounds of review, the relief sought and the grounds upon which the relief is sought (Innovest v Pruaitch [2014] PGNC 288; N5949 at [42]-[43],[45]).
    
27. While the Plaintiff did not set out the relevant provision under Order 16 pursuant to which he sought the Court’s leave, namely Order 16 rule 3(1) and (2) of the NCR it is not a defect fatal to his application and the State took no issue to this end.
    

CONCLUSION

28. In the Court’s discretion I grant leave to the Plaintiff as sought in his Originating Summons filed 10 June 2025.

ORDERS

25. The Court makes the following orders:
    
    1. Pursuant to Order 16 rule 3(1) and (2) of the National Court Rules the Plaintiff’s application for leave to apply for judicial review filed 10 June 2025 be granted.
    2. The Plaintiff file a Notice of Motion under Order 16 Rule 5(1) within 14 days of this date.
    3. Within 21 days of this date the Plaintiff serve on the Defendants its Notice of Motion for substantive judicial review together with its Originating Summons for leave and all supporting documents together with this order.
    4. The matter be listed for a directions hearing on 11 September 2025 at 9.30am.
    5. Time to abridge.
       

Lawyers for the plaintiff: Punau & Company
Lawyer for the State: Solicitor General