N11646
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) No. 90 OF 2025

BETWEEN:
HON. JUSTICE (RET) ELLENAS V. BATARI CSM OBE
Plaintiff

AND
HON. PILA NININGI, MP, AS CHAIRMAN AND MEMBER OF THE JUDICAL &LEGAL SERVICES COMMISSION
First Defendant

AND
JUDICIAL & LEGAL SERVICES COMMISSION
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: CROWLEY J
7 NOVEMBER, 18 DECEMBER 2025

CIVIL- Adjournment by the State on an application for leave
CIVIL – Judicial review – decisions in their deliberate judgement- definition arbitrary and capricious- definition of bias- nemo judex in re sua

Facts: 
The Plaintiff was a senior judge of the National and Supreme Court who reached the age of statutory senility of 72. He was entitled to seek an extension for a further three-year term as a judge. He did so but was denied that extension by the Second Respondent. He now challenges that decision by way of Judicial Review. 

Held:
1.	Decisions of the Judicial and Legal Services Commission are only amenable to review on the grounds that the decision was bias, arbitrary or capricious.
2.	The Plaintiff did not assert that the decision of the Judicial and Legal Service Commission was bias, arbitrary or capricious therefore he does not establish an arguable case
3.	There is no utility in the judicial review because the Plaintiff is only seeking an order for certiorari to quash the decision of the Judicial and Legal Services Commission and not an order of mandamus to have them consider his application according to law, as such no useful purpose would be served in granting the orders

Cases cited
Alphonse Hayabe v. William Powi (2007) N3113.
Council of the Civil Service Unions -v- Minister for the Civil Service. [1983] UKHL 6; 1984 3 AER 935.
Inland Revenue Commissioners vs National Federation of Self Employed and Small Business Ltd [1982] AC 617.
Innovest Ltd vs Pruaitch [2014] PGNC 288; N5949.
Ombudsman Commission of PNG v. Denis Donohe [1985] PNGLR 348. 
Sevua v Pala [2011] PGNC 86; N4336.
Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488.
Sulaiman v PNG University of Technology (UNITECH) [1987] PGNC 7; N610.

Counsel
Mr J. Wohuingu for the plaintiff
Mr B. Lesitui for the first, second and third defendant

1.	CROWLEY J The Hon. Justice Ellenas Batari is applying for leave to judicially review the decision of the Judicial and Legal Services Commission (JLSC or Second Respondent) not to reappoint him as judge of the National and Supreme Court of Papua New Guinea. The First Respondent is the Attorney General who is the chairman of the JLSC. The Third Defendant is the State. 

Brief Facts

2. The Plaintiff was a very senior judge with commissions to sit in both the National and Supreme Court of Papua New Guinea. In March 2025 he turned 72. The requirements of section 7(1) Organic Law on the Terms and Conditions of Employment of Judges are that a judge may sit until 75 but require reappointment after the age of 72. 

3. The Plaintiff applied for reappointment by letter dated 20 December 2024. He was told informally that the Second Defendant was considering his extra judicial activities and wanted to know if he would forego them. By letter dated 19 March 2025 to the First Defendant, the Plaintiff said that he would. On 26 March 2025 the Second Defendant met. They were chaired by the First Defendant. The Second Defendant resolved not to reappoint the plaintiff.

4. The Plaintiff was informed (he says informally) about the decision. He wrote to the First Defendant seeking reconsideration of the Second Defendant’s decision. He was later informed that the second defendant did not reconsider his reappointment. On 27 July 2025 he commenced these proceedings.

Hearing 7 November 2025

5.   The matter came on for hearing before me on Friday 7 November 2025. The State was represented by a lawyer from the Solicitor Generals Office. He immediately made an application for an adjournment. For the reasons outlined below I rejected that application. Later he made an application to have the matter dismissed because the originating summons did not include the date of the decisions (i.e. it was not sufficiently particularised). It is convenient to deal with my reasoning on those two points first before I address the Plaintiff’s application for leave. 

First, Second and Third Defendants Application for an Adjournment

6.   The originating summons, Notice of Motion, Affidavit Verifying Statement and other documents were filed on 29 July 2025. They were served on the Solicitor General Officer as required by the rules on 30 July 2025. The lawyer from the Solicitor General’s Office sought an adjournment on two grounds:

a.	That the Solicitor Generals Officer was conflicted because it has dealt with Justice Batari in the Plaintiff’s work as a commissioner of Independent Commission Against Corruption (ICAC). As such they proposed to brief the matter out to an outside firm. That firm would need time to familiarise themselves with the material; 

b.	Counsel who appeared had only recently received the file and did not know it well enough to make submissions. 

7.     In Innovest Ltd v Pruaitch [2014] PGNC 288; N5949  (‘Innovest’) Justice Gavara-Nanu observed that:  
“Pursuant to the requirements of Order 16 r.3(3)) the plaintiff must give notice of his application to the Secretary for Justice two clear days before the application is made and must include … sealed copies of the application (originating summons and notice of motion, if filed, the Statement in Support, affidavit(s) in support and the Affidavit Verifying Facts viz. facts pleaded in the Statement in Support)”. (Innovest at [16]).

8.    There is no dispute that this rule was complied with by the Plaintiff in the instant case. 

9.    Justice Gavara-Nanu continued: 
“In my opinion, implicit in r. 3 there, is a discretion vested in the Court to hear an application for leave for judicial review in the absence of the State. Such discretion may be exercised in the following situations: 
(i)	...
(ii)	where the State is a party to the proceeding, has been duly served with notice of the application as discussed above, but has without any reasonable explanation, on more than one occasion, or repeatedly, failed to appear in Court to argue the application.” (Innovest [para 17]).

10.     His Honour concluded that:
“…as a general rule the Court should always be cautious or slow to exercise its discretion in favour of hearing an application for in the absence of the State, particularly having regard to the mandatory statutory requirements under s. 8 of the Claims By and Against the State Act 1996 which provides that, where the State is a Defendant the court shall not grant leave unless the State has been afforded an opportunity to be heard.” (Innovest at [18])
And 
“…whether the State is likely to suffer prejudice if the application is heard in its absence” (Innovest [20]. 
11.    The Court should also consider: 
“…whether the case is of such public interest that the State should be heard. If the State is likely to be prejudiced and or the case is of sufficient public interest…” (Innovest [20])

12.       In rejecting the application for an adjournment, I considered the following: 
c.	The Office of the Solicitor General had ample notice of the existence of this matter (some 4 months) enough time to brief the matter to an outside firm. Similarly, they had ample time to give the file to a lawyer in their officer to familiarise themselves with it such that they could make coherent submissions. The fact that they did neither of those things, at best indicates a level of ineptitude unbecoming of the Office of the Solicitor General and at worse, a disregarding for the court, its processes and the rights of the Plaintiff. 

d.	I did not consider that the State would suffer particularly serious prejudice (Innovest [20]). I was happy to hear the submissions made by the counsel for the State and I was told he had experience in judicial review matters. As such, I reasoned that he could make submissions on the law if nothing else. Further, it being a leave application, should it be granted, the State had an opportunity at the substantive hearing to canvas any arguments it had. 

e.	The hearing of the leave application is a matter of some urgency. Justice Batari turned 72 in March 2025. He can only sit as a judge until March 2028. The questions he raises needs to be decided so as not to prejudice him should he be successful. In that sense I took into account the length of time appeals of decisions might take. Moreover, many judges of the National and Supreme Court are known to the Plaintiff and therefore are conflicted and cannot hear his matter. There has been some delay in listing the hearing because of the scarcity of judges who could sit on it and their availability to do so. I was available in Waigani to hear it but only for a short time. I could not accommodate an adjournment of more than a week which is what the Solicitor General was seeking. I was mindful also that the court year is ending shortly and was mindful of the need, if leave was granted, to have the matter mentioned within 14 days as required under the rules (and decided cases).  
Consequently, I decided to dismiss the application for an adjournment and hear the matter. 

Objection to Competency

13.      Counsel for the Solicitor General made another submission, this one in relation to competency. It can be dealt with in short order. He submitted that because the Originating Summons filed 27 July 2025 did not specify the date the decision was made, therefore his clients (the First, Second and Third defendants) could not calculate whether this matter was brought within the four-month period required under the rules.  

14.     Ironically, this was almost exactly the situation that faced Justice Gavara-Nanu in the aforementioned Innovest case. His Honour went to some length to elucidate Order 16 and its workings. 

15.    In Innovest the complaint was that the originating summons did not identify the decision sort to be reviewed. Justice Gavara-Nanu identified that a failure to specifically plead the decision to be reviewed in the originating summons may result in the matter being summarily dismissed (Innovest at [4]). That would occur if the originating summons was insufficient or ambiguous such that the pleadings did not fulfill the basis or purpose which is to inform the 
Defendant of what case they have to meet. (Innovest [12]). 

16.     In both Innovest and the instant case the relevant facts were found in the accompanying Statement Verifying Facts. But the instant case is not as serious an oversight as in Innovest in that only the date of the decision sought to be reviewed was missing. 

17.    The question before this Court was, ‘is there sufficient information in the originating summons and other documents filed by the Plaintiff to inform the State of the decision the subject of the leave application’? I found that there was. 

18.      This decision was not some obscure bureaucratic order made by a boffin of an enormous government department. It was a decision on the reappointment of a judge of the National and Supreme Court made by a body established under the constitution. The Second Defendant only met a few times a year and only made a handful of decision. Further, it was a decision of some notoriety. Finally, the First Defendant was in the meeting where the decision was made and the Second Defendant was the body that made it. I am not satisfied that the Defendants were prejudiced because they were unsure when the decision was made. 

19.    A more defensible argument would have been that the application for leave was filed outside the time specified under the rules. A quick calculation using the date of the decision (26 March 2025) and the date the originating summons was filed (29 July 2025) demonstrates that the originating summons was filed 4 months and 2 days after the relevant decision was made. Therefore, outside the requirements of the National Court Rules. That argument was not summitted by the State. I raised it. As it has some substance I address below when I consider undue delay. 

Law- Order 16 National Court Rules

20.    The requirement for leave for judicial review is set out in Order 16 of the National Court Rules and caselaw (see expanded on in Dupnai v Weke [2016] PGSC 43; SC1525 (Dupnai)). They are: 
(a) Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision? 
(b) Is the decision sought to be reviewed that of a public authority? 
(c) Does the plaintiff have an arguable case on the merits? 
(d) Have administrative remedies, if any, been exhausted? 
(e) Has the application been made promptly without undue delay? (see para [24] of Dupnai).

Application of law to facts

21.     It seems to be that it is convenient to deal with standing and whether it is a decision of a public authority and exhaustion of administrative remedies because they are made out quite easily. 

22.     The plaintiff clearly has standing to bring the proceedings. He was directly affected by the decision in that it resulted in him not being able to sit as a judge; a position he had held for the previous 26 years.

23.     The decision is one from a public authority. I look to the words of Lord Diplock in Council of the Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; 1984 3 A.E.R. 935 for the relevant definition. In the case His Lordship said:
“For a decision to be acceptable to Judicial Review the decision maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) 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... The ultimate source of a decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute.” (at page 949 cited in Sulaiman v PNG University of Technology (UNITECH) [1987] PGNC 7; N610).

24.   The Second Defendant fits this description.

25.     Finally, there are no formal administrative remedies that the Plaintiff could have pursued provided for in the organic law. I note he requested that his application be reconsidered. As such I am satisfied he had exhausted all other avenues before approaching the court for a remedy. 

26.  As to the question of delay; it seems to me that the matter has proceeded expeditiously. As noted above it was filed outside the 4 month period identified in Order 16 Rule 4(2). However, this “delay” has not created any prejudice for the Defendants. Further, it came about because the Plaintiff sought to resolve the dispute by asking for a review of the decision and without the need for legal proceedings.  Such behaviour is in the spirit of judicial review because an application to the courts should always be the last resort. As such I am satisfied the application was made without undue delay. 

27.     The real question before me is the arguable case. 

28.     The classic statement as to the Court’s consideration of an “arguable case” was again given by Lord Diplock, this time in Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd [1982] AC 617 at p644: 
“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 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” (this was adopted by the Supreme Court in Pora v Leadership Tribunal [1997] PNGLR 1).

29.    At first blush I had concerns about whether this decision was justiciable. I raised this with counsel for the Plaintiff. He said that a judge had previously applied to judicially review the decision of the Second Defendant and directed me to the case of Sevua v Pala [2011] PGNC 86; N4336 (‘Judge Sevua’s case’). I further raised with the Plaintiff whether this was an appropriate question for the leave stage or whether it should be left to the substantive hearing. The Plaintiff submitted that, if it was an issue, it should be dealt with at the substantive hearing. Having now considered the matter, I respectfully disagree. It seems this is a question that goes to whether the Plaintiff has an arguable case. 

30.     Neither party was prepared to address the court on Judge Sevua’s case so I made directions that any party wishing to file submissions regarding it, do so within 7 days. No submissions were forthcoming. 

Consideration of Sevua v Pala N4336, s7 Organic Law on Terms and Conditions of Employment of Judges and s62 of the Constitution 

31.     I turn now to that case. His Honour had been a judge of the National and Supreme Court. He turned 60 (the retirement age at that time) and sought to be reappointed to 65. The Second Defendant denied that request. Judge Sevua then sought review of that decision. He was not successful in obtaining leave.

32.    In that case the Judicial and Legal Services Commission had identified that their decision not to renew Justice Sevua’s term was pursuant to section 7 of the Organic Law on Terms and Conditions of Employment of Judges. That led Justice Hartshorn on a chain of inquiry that was crucial to His Honour’s decision. I will follow the same reasoning below.

33.     Section 7 of the Organic Law on the Terms and Conditions of Employment of Judges is headed RETIREMENT and provides:
“(1) Subject to Subsection (2), a person who has attained the age of 72 years shall not be appointed or re-appointed to be a Judge of the National Court, and a person shall not be appointed or re-appointed for a period that extends beyond the date on which he will attain the age of 72 years. (2) The Judicial and Legal Services Commission may, in its deliberate judgement, in a particular case, extend the retiring age specified in Subsection (1) to, but not beyond, 75 years.” (emphasis added)

34.     This establishes the framework that required the Plaintiff to retire at age 72 and seek reappointment to 75. In the instant case the letter from the First Defendant dated 28 March 2025 conveying the Second Defendants decision did not reference these provisions. It is clear that these are the only provisions under which the decision could be made. 

35.     What is crucial is the use of the phrase “...in its deliberate judgement”. This is a reference to s62 of the Constitution. That section provides: 
DECISIONS IN “DELIBERATE JUDGEMENT”. 
(1) Where a law provides or allows for an act to be done in the “deliberate judgement” of a person, body or authority, the principles of natural justice apply only to the extent that the exercise of judgement must not be biased, arbitrary or capricious. 
(2) Except – 
(a) to the extent provided for by Subsection (1); and 
(b) in accordance with Section 155(5) (the National Judicial System); and (c) as provided by a Constitutional Law or an Act of the Parliament, an act to which Subsection (1) applies is, to the extent to which it is done in the deliberate judgement of the person concerned, non-justiciable. (emphasis added)

36.     The effect of section 62 is to narrow the scope of justiciability to the categories of biased, arbitrary or capricious for decision made by bodies in their “...deliberate judgment”.

37.     The Plaintiff has nine grounds in the Statement under Order 16 Rule 3(2)(a) of the National Court Rules. None of those grounds, they claim that the decision was biased, arbitrary, or capricious. The grounds claim: 
f.	“absence of or without good reason”;
g.	“procedurally flawed and illegal”; 
h.	“a breach of natural justice”; 
i.	“in breach of Wednesday [sic] principles further constitutes a want or excess of jurisdiction”; 
j.	“an abuse of the decision-making process and offends against procedural fairness”; 
k.	“unreasonable, unfair, injustice and illegal”; 
l.	“want of jurisdiction and excessive use of authority”; 
m.	“unreasonable excessive use of power”; and 
n.	“procedural unfairness”.

38.    I am cognisant that on a leave application I am merely conducting “a quick perusal of the material” to see if they “... discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief”. 

39.    However, I am entitled to consider whether the grounds the Plaintiff claim would meet the threshold of “bias arbitrary or capricious”. 

Bias, arbitrary capricious definition

40.    I note firstly that the Plaintiff has not complained of bias or that the decision was arbitrary or capricious. However, I want to satisfy myself that the grounds he articulates are not synonyms for these terms. 

41.    Black’s Law Dictionary defines arbitrary and capricious as; “Characterisation of a decision or action taken by an administrative agency or inferior court meaning wilful and unreasonable action without consideration or in disregard of facts or law or without determining principle” (quote at part 5.6.8.3 in Christopher Karaiye “Administrative Law and Judicial Review in Papua New Guinea” Notion Press 2019).

42.    Though the Plaintiff complains of the unreasonableness, injustice and unfairness of the decision he does not claim that it was made “wilfully... without considerations of the facts or law” as such I do not take his grounds as being synonymous with arbitrary and capricious.
43.     Further the Plaintiff does not claim that there was bias involved in the decision under review. The definition of bias comes from the legal maxim nemo judex in re sua or no man should be a judge in his own cause. This is a fundamental pillar of the rules of natural justice. In a broad sense this means a decision-maker should not have an interest in the outcome of the decision or should not be seen to have an interest in the outcome of the decision.  This is because the principles of natural justice require the decision-maker to be impartial and be seen to be impartial.

44.     None of the grounds of review asserted by the Plaintiff expressly or impliedly suggest the first or second defendant were not impartial nor seen to be impartial. 

45.   As such, “on a quick perusal of the material” I am not satisfied that “... discloses what might on further consideration turn out to be an arguable case...” that the decision of the Second Defendant was bias arbitrary or capricious.

Useful purpose in granting leave

46.     A second similarity between the Plaintiffs current application and Judge Sevua’s case is the relief sought and the utility in granting it. Justice Hartshorn identified that there is authority for the proposition that “...the courts should take into account in exercising its discretion is whether any useful purpose will be served if the relief sought is granted.” Alphonse Hayabe v. William Powi (2007) N3113, Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348, Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488. 

47.    In the current case the Plaintiff seeks: 
“A Declaration that the purported Decision by the First and Second Defendants in their Special Metting No.1 of 2025 dated 26 March 2025, to refuse to reappoint the Plaintiff for a term of three years is unlawful and is therefore null, void and of no effect.
Further in the alternative an order in the nature of certiorari to bring to this Court and quash the purported decision by the First and Second Defendants dated 26 March 3035, not to re-appoint the Plaintiff as a Judge of the National Court and Supreme Court for a three (3) year period on the basis that the said decision is unlawful and is therefore null and void and of no effect.”

48.     In Judge Sevua’s case Hartshorn J said of similar orders: 
“In this instance the relief sought in the originating summons and the statement in support are amongst others, an order in the nature of certiorari to quash the JLSC decision and an order in the nature of a declaration that the JLSC decision is invalid and/or defective in law. If this relief was granted it would have the effect of quashing the JLSC decision and the subject declaration would issue but there would not be an extension to the retirement age. For that to occur, an order in the nature of mandamus is required in respect of the JLSC. That relief has not been sought. Consequently, even if the present relief sought was granted, I am of the respectful view that it would serve no useful purpose. On this issue alone the application should be refused” (at paragraph [8]) (emphasis added).

49.    The Plaintiff is not seeking an order of mandamus requiring the Second Defendant to consider extension to his retirement age as such I concur with the view of Justice Hartshorn in Judge Sevua’s case that “even if the present relief sought was granted, I am of the respectful view that it would serve no useful purpose”.

Conclusion

50.    The decisions of the Second Defendant are only amendable to judicial review on narrow grounds, of bias, arbitrary or capricious. The Plaintiff does not claim any of these, either expressly or impliedly. As such he does not have an arguable case and leave is refused.

51.    Further, there is no useful purpose that would be served in granting leave because, even if the Plaintiff was successful, he would not achieve the result of having his decision reconsidered. He has not sought an order of mandamus to require the Second Defendant to reconsider his request for an extension to his retirement age. He has merely sought the decision be quashed which, on its own, would serve no useful purpose.  

Orders

52.     The relief sought in paragraph 1 of the Originating Summons filed 29 July 2025 is refused and each party bear their own costs 
__________________________________________________________________
Lawyers for the plaintiff: Gileng & Co. Lawyers
Lawyer for the first, second and third defendants: Solicitor General