SC2206
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 35 OF 2021

PROFESSOR FR JAN CZUBA
Appellant

V

HON WESLEY RAMINAI, MINISTER FOR HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
First Respondent

HON JOSEPH SUNGI, MINISTER FOR PUBLIC SERVICE
Second Respondent

APEO SIONE, CHAIRMAN, PUBLIC SERVICES COMMISSION
Third Respondent

PUBLIC SERVICES COMMISSION
Fourth Respondent

HON JAMES MARAPE,
PRIME MINISTER & CHAIRMAN, NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

NATIONAL EXECUTIVE COUNCIL
Sixth Respondent

DR FRANCIS HUALUPMOMI, ACTING SECRETARY, DEPARTMENT OF HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
Seventh Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Respondent

Waigani: Cannings J, Toliken J, Dingake J
2022: 24th February, 7th March

JUDICIAL REVIEW – leave requirements – whether applicant had standing – whether arguable case for judicial review – whether leave can be granted for judicial review of decision to suspend a departmental head – whether a disciplinary process must be completed before judicial review takes place.

The appellant is Secretary of a Department of the National Public Service. He was suspended by the Governor-General, on a recommendation from the Public Services Commission. He applied to the National Court for leave to apply for judicial review of various decisions culminating in his suspension. The National Court refused leave on the grounds that the appellant lacked standing and that no arguable case for review had been established. It was further held that the Court should not intervene in a disciplinary process that was not complete. The appellant appealed against the refusal of leave on four main grounds that the primary judge erred in law, by: (1) finding that he had no locus standi; (2) finding that there was no arguable case; (3) not finding that the appellant had not delayed the leave application; and (4) making demeaning remarks on the appellant’s professional and religious status. 

Held:

(1)	The appellant was directly affected by the decision to suspend him from duty. This gave him a sufficient interest in the decisions that he wanted reviewed. Ground (1) of the appeal was upheld. 

(2)	There was an arguable case that the Minister for Public Service and the Public Services Commission erred in law. 

(3)	The primary judge erred in finding that it was not proper or appropriate to grant leave to enable judicial review of decisions resulting in suspension of a departmental head, when judicial review is readily available in such situations.

(4)	Ground 3 of the appeal was dismissed as the primary judge was not, in the circumstances of the case, required to form an opinion on whether the applicant had delayed his application for leave.

(5)	Ground 4 of the appeal was dismissed as the remarks of the primary judge were made after the making of his decision to refuse leave and were inconsequential.

(6)	As both major grounds of appeal were upheld, the appeal was allowed, the decision of the National Court was quashed and the decision of the National Court to refuse leave was substituted by the Supreme Court’s decision to grant leave. 

Cases Cited

The following cases are cited in the judgment:

Czuba v Raminai (2021) N9084
Damem v Maipakai (2004) N2730
Darius v Commissioner of Police (2001) N2046
Digicel (PNG) Ltd v Miringtoro (2015) SC1439
Diro v Ombudsman Commission [1991] PNGLR 153
Geno v The State [1993] PNGLR 22
Ilau v Somare (2007) N5511
Klapat v NEC (2014) N5536
Medaing v Minister for Lands and Physical Planning (2010) N3917
Morola v O’Neill (2017) N6878
NTN Pty Ltd v PTC [1987] PNGLR 70

Counsel

E Sasingian, for the Appellant
K Kipongi, for the First, Second and Fifth to Eighth Respondents

7th March, 2022

1.      BY THE COURT: The appellant, Professor Fr Jan Czuba, is Secretary of the Department of Higher Education, Science & Technology in the National Public Service. On 18 May 2021 he was suspended by the Governor-General acting with and in accordance with the advice of the National Executive Council, on a recommendation from the Public Services Commission. He applied to the National Court for leave to apply for judicial review of various decisions culminating in his suspension, which centred on alleged breaches of the disciplinary process under s193(1D) of the Constitution and s 31D of the Public Services (Management) Act 1995. 

2.      The National Court refused leave on the grounds that the appellant lacked standing and that no arguable case for review had been established. The primary judge reasoned that the appellant was asking the National Court to intervene in a disciplinary process that was not complete, which the National Court was not authorised to do, and that persons in the position of the appellant must wait until the process is complete before applying for leave (Czuba v Raminai (2021) N9084).

3.     The appellant appealed against the refusal of leave on four main grounds, that the primary judge erred in law, by: (1) finding that the appellant lacked standing; (2) finding that there was no arguable case for review; (3) not finding that the appellant had not delayed the leave application; and (4) making demeaning remarks on the appellant’s professional and religious status, which had the effect of breaching his right to the full protection of the law under s 37(1) of the Constitution. We now address each of those grounds.

1	STANDING 

4.     The primary Judge was of the view that the appellant lacked standing to pursue an application for judicial review. His Honour stated:
Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd (2008) N3317, Innovest Ltd v Pruaitch (2014) N5949. There is really no arguable basis to maintain this action, nor is the plaintiff with the necessary locus standi to hold forth this action. He is not affected until the final determination of that process internally. He is still there but has been suspended for three months with all that the position offers in his hands. He will be affected and would have the locus standi when the final decision in that process comes out. The gazettal is clear it is three months in the making until final determination which would give him the standing and the leverage to come into Court. Because internal process has now being exhausted fulfilling that requirement to open the door to judicial review. As it is the internal process has not been exhausted, it has just begun and therefore he is not properly in court. He will abide by the internal process. 
5.     We respectfully consider that the primary judge has engaged in an incorrect process of reasoning. There are five considerations to take into account when the court decides whether to grant leave for judicial review:

(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?

(NTN Pty Ltd v PTC [1987] PNGLR 70, Darius v Commissioner of Police (2001) N2046, Medaing v Minister for Lands and Physical Planning (2010) N3917.)

6.     These considerations are generally to be regarded as cumulative, however as the decision whether to grant leave is a matter of discretion, it is conceivable that one or two might not be satisfied but because of the strength of the others, leave might still be granted. However, irrespective of how many of those considerations favour the granting of leave, a correct process of reasoning is one that shows that the judge has assessed each consideration separately. In the present case, the primary judge has in one paragraph conflated the assessment of three considerations – standing, arguable case and exhaustion of alternative remedies – and this has led to the erroneous conclusion that the appellant lacked standing. 

7.      A person such as the appellant, holding a leadership office such as the head of a department in the National Public Service (an office subject to the Leadership Code under s 26(1)(f) of the Constitution), who is suspended from duty, necessarily and inevitably is directly affected by the suspension. The decision has an immediate and deleterious effect on his reputation as a capable and honest administrator and on his standing in the community. This gives him a sufficient interest in the decisions that he wants judicially reviewed. In assessing that the appellant lacked standing, the primary Judge erred in law. Ground (1) of the appeal is upheld. 

2 	ARGUABLE CASE 

8.     Most of the grounds of judicial review set out in the appellant’s O 16, r 3(2)(a) statement under the National Court Rules centre on alleged breaches of the disciplinary process prescribed by s 193(1D) of the Constitution and s 31D of the Public Services (Management) Act 1995. 

9.      Section 193(1D) (appointments to certain offices) of the Constitution states: 

	The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.

10.       Section 31D (procedures relating to suspension from office of Departmental Heads) states:

The procedures relating to the suspension from office of Departmental Heads referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows:—

(a)	the Commission—

(i)	may, on its own volition; or
(ii)	shall, at the request of the Minister responsible for Public Service matters,

investigate any activities, conduct or performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into by that Departmental Head under Section 28;

(b)	where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommend to the National Executive Council;

(c)	on receipt of a recommendation under Paragraph (b), the National Executive Council shall advise the Head of State to suspend the Departmental Head from office.

11.      The appellant argued before the National Court, amongst other things, that:  

•	the Minister for Public Service had acted ultra vires when requesting that the appellant be suspended as he was only authorised to request the Public Services Commission to investigate the appellant’s activities, conduct or performance which would constitute grounds for revocation of his appointment; and 

•	the Public Services Commission erred in law, after conducting its investigation, when it recommended the appellant’s suspension to the Minister for Public Service, rather than directly to the National Executive Council, as required by the relevant laws. 

12.     The primary Judge did not address those arguments in any detail due to his view that judicial review was not available to someone affected by an incomplete disciplinary process. That view is, with respect, flawed. There is no principle of law or practice that dictates that there can be no judicial review of an incomplete disciplinary process, including decisions to suspend a leader from duty. 

13.     Examples of cases in which judicial review has been granted of decisions to suspend a Departmental Head include Damem v Maipakai (2004) N2730, Klapat v NEC (2014) N5536 and Morola v O’Neill (2017) N6878. To similar effect is Ilau v Somare (2007) N5511, where judicial review was granted of the decision to suspend the Commander of the Defence Force. In all these cases the disciplinary process was incomplete, yet the National Court granted leave for judicial review and, on hearing the application for judicial review, quashed the decision to suspend the leader concerned. 

14.     It must be borne in mind that the judge hearing an application for leave for judicial review only has to assess whether the applicant has a case that is arguable, ie whether on a quick perusal of the materials before the court, there is a prima facie case or a serious issue to be tried which, on further investigation by the Court, might favour the relief sought by the applicant (Geno v The State [1993] PNGLR 22, Digicel (PNG) Ltd v Miringtoro (2015) SC1439, Diro v Ombudsman Commission [1991] PNGLR 153). 

15.     In the present case the primary judge did not take that approach and was led into error by adopting the flawed view that judicial review is not available before the completion of the disciplinary process. A proper approach would have resulted in the conclusion that there was an arguable case that the Minister for Public Service acted ultra vires when requesting that the appellant be suspended as he was only authorised by the relevant laws to request the Public Services Commission to investigate the appellant’s activities, conduct or performance which would constitute grounds for revocation of his appointment and that the Public Services Commission erred in law, after conducting its investigation, when it recommended the appellant’s suspension to the Minister for Public Service, rather than directly to the National Executive Council, as required by the relevant laws. Ground 2 of the appeal is upheld. 

3	DELAY

The appellant argues that the primary judge erred in law by not highlighting that there was no delay on the part of the appellant in making his application for leave for judicial review. We consider this argument to be without merit. His Honour stated clearly the reasons for his refusal of the leave application. It was unnecessary in these circumstances to form an opinion on whether the applicant had delayed his application for leave. Ground 3 is refused. 

4 	JUDGE’S REMARKS

16.     The appellant takes issue with the following remarks of the primary judge made at the end of his judgment:
In passing this is a case where a highly learned person holding the title of Professor a Secretary of a Department and a Catholic Priest who ought to know what due process in law and equity is, which derives from Canon Law, and in that regard would have been humbled to allow completion before running the trot here. Christ did not accuse his accusers, nor did he retaliate to them with a sword, because HE said to Peter those who live by it die by it. 
17.     It is noteworthy that the remarks were made in passing, after the making of the decision to refuse leave. For that reason, they are inconsequential. Ground 4 is dismissed.

CONCLUSION 

18.     As the major grounds of appeal are upheld, the issue arises as to what orders we should now make. In a civil appeal the Court’s discretion is exercised under s 16 (decision etc on appeal) of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a)	adjourn the hearing from time to time; or
(b)	affirm, reverse or modify the judgment; or
(c)	give such judgment as ought to have been given in the first instance; or
(d)	remit the case in whole or in part for further hearing; or
(e)	order a new trial.

19.    Further, under s 6(2) of the Supreme Court Act, for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

20.     We will exercise the powers in ss 6(2) and 16(c). We have all the evidence before us to determine the question of whether leave for judicial review should be granted. We have considered the five criteria for granting leave, outlined above. We consider that the appellant has a sufficient interest in the subject matter of the decisions to suspend him. He is clearly seeking review of decisions made by officials and bodies (Ministers and the Public Services Commission) of public authorities. He has an arguable case on the merits. There are no alternative statutory processes available to be invoked to agitate his grievances. He has applied for leave without delay. Leave for review will be granted. 

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 8 July 2021 in OS (JR) No 69 of 2021 is quashed.

(3)	The proceedings OS (JR) No 69 of 2021 are reinstated and, for the purposes of those proceedings, pursuant to s 16(c) of the Supreme Court Act, the appellant is granted leave for judicial review, and, pursuant to s 16(d) of the Supreme Court Act, the case is remitted to the National Court for further conduct of those proceedings.
 
(4)	The first, second and fifth to eighth respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
__________________________________________________________________
Sasingian Lawyers: Lawyers for the Appellant
Solicitor-General: 	 Lawyer for the First, Second & Fifth - Eight Respondents