SC2839

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM No. 33 of 2023 (IECMS)

BETWEEN:
RONALD MEKETA in his capacity as Managing Director of National Energy Authority
First Appellant

AND:
JOSEPH GABUT in his capacity as the Chairman of the National Energy Authority Board
Second Appellant

AND:
THE NATIONAL ENERGY AUTHORITY
Third Appellant

AND:
THE NATIONAL ENERGY AUTHORITY BOARD
Fourth Appellant

AND:
LUCAS KIAP
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: FRANK J, CAREY J, KHAN J
24 NOVEMBER 2025; 8 JANUARY 2026

ADMINISTRATIVE LAW— Appeal against decision of the National Court in relation to judicial review – identifiable error by trial judge – jurisdiction of trial judge in a judicial review

The Appellants appealed against the Respondents in a decision of the National Court in a judicial review. The Appellants suggest that the trial judge erred in fact and law in granting the judicial review. The First Respondent contends that the trial judge acted by right principles. 

Held:

By the majority (per Carey J and Khan J):

1.	The jurisdiction of a trial judge in a judicial review is to be appropriately measured to ensure that it is reasonable and just.

2.	The trial judge acted beyond jurisdiction and misapplied statutory provisions.

3.	The appeal is allowed.

4.	The judgment and orders of the National Court dated 19th October 2023 in OS(JR) No. 19 of 2023 are quashed and set aside. 

5.	The judicial review proceeding OS(JR) No. 19 of 2023 is dismissed. 

6.	The First Respondent shall pay the costs of the Appellants to be taxed if not agreed.

7.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases cited
Asuma (trading as Andy Asuma Trading) v Tiong Juk Chuong [2019] PGSC 124
Dads Investment Corporation Limited v Samson & Ors [2023] SC2485 
Kekedo v Burns Philp & Os [1988-89] PNGLR 122

Counsel
L Kandi, for the appellants
L Okil, for the first respondent

JUDGMENT
1.	CAREY J AND KHAN J: This is the decision in relation to an appeal filed by Ronald Meketa (the First Appellant), Joseph Gabut (the Second Appellant), the National Energy Authority (the Third Appellant) and the National Energy Authority Board (the Fourth Appellant) collectively, the Appellants against Lucas Kiap (the First Respondent) and the Independent State of Papua New Guinea (the Second Respondent) from the National Court styled OS (JR) No. 19 of 2023 delivered on 19th October 2023.

2.	The appeal challenged the decision of the trial judge in the judicial review except, the decision to refuse to grant the order for reinstatement of the First Respondent to the position of Executive Manager – Projects Division held with the Third Appellant.

3.	The trial judge made the following orders:

“(1) The substantive Notice of Motion of the Applicant for Judicial Review is upheld  and granted in the terms as pleaded.
(2) Certiorari lies and is granted to remove into this Court Firstly, the decision of the First Defendant dated 01st July 2022, revoking the appointment of the Plaintiff as Executive Manager, Projects, and Secondly, the decision of the Defendants of the 24th August 2022 to terminate him from Executive Manager, Projects with the Third Defendant and both decisions are hereby quashed forthwith.
(3) A consequential order of Declaration is hereby granted that the subject two decisions set out above the subject of this review were both void ab inito.
(4) Further Mandamus lies and is granted directing the Defendants pursuant to compel in particular the Board to exercise its powers under section 14(1)(c) of the National Energy Authority Act to in lieu of reinstatement to pay in full all backdated salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgment debts and the difference thereof including interest at 2 % pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
(5) Further damages to be assessed by way of pleadings and affidavit at trial on the issue of quantum alone pursuant to Order 16 Rule 7 of the National Court Rules on date to be fixed.
(6) Costs will follow the event to be taxed if not agreed.
(7) Time is abridged to the date of settlement by the Registrar which shall take place forthwith.”

BACKGROUND
4.	On 21st April 2021 Parliament passed the National Energy Authority Act 2021 (the NEA Act) which established the new statutory entity called National Energy Authority (the Authority) by separating the Energy Wing of the Department of Petroleum and Energy (DPE) from its main Department.

5.	Following the separation of the Energy Wing of the DPE from its main Department, the former employees of the Wing at DPE and the Department of Public Enterprises migrated to the Authority.

6.	On 10th January 2022 Mr. Vore Veve the then Interim Managing Director of the Authority, in exercising his discretion pursuant to the transitional provisions (sections 138 and 139) of the NEA Act, picked out the First Respondent to assist him for a three-month period with certain projects during the transitional period.

7.	On 1st July 2022 the First Respondent was removed from the interim arrangement made by the then Interim Managing Director, within the ambit of the transitional provisions of the NEA Act (sections 138 and 139), to assist him for three months in an acting capacity as Acting Executive Manager – Projects Division. 

8.	By operation of section 139(2) of the NEA Act, the First Respondent remained in the employment of the Authority as an unattached employee of the Authority. The First Respondent’s perks and privileges under his Contract of Employment with DPE dated 30th November 2020 remained intact and unaffected. 

ISSUES 
9.	The Grounds of Appeal were subsumed into two primary grounds. They are:

a)	Ground 1: Whether the trial judge erred in granting certiorari for two decisions when only one was pleaded.

b)	Ground 2: Whether the trial judge acted in excess of jurisdiction by ordering payment of backdated salaries and entitlements with interest. 

DETERMINATION
10.	The Appellants abandoned the res judicata argument and so the Court did not consider it.

11.	With reference to Ground 1 as to whether the trial judge erred in granting certiorari, the Appellants aver that there was an error in fact and law. 

12.	The Appellants argue that the judicial review application challenged only the decision of 1st July 2022. 

13.	Further, the Appellants indicate that the trial judge erred because two decisions were quashed, which includes the decision of 24th August 2022, which was neither pleaded nor substantiated.

14.	The First Respondent did not have written submissions and did not comply with the deadline of the Court for filing those submissions. Further, there was no reasonable explanation provided and no affidavit in support indicating why written submissions were not filed in time. 

15.	Hence, oral arguments were made by the First Respondent. 

16.	The First Respondent submits that the Grounds of Appeal by the Appellants do not challenge the substantive findings of the trial judge. 

17.	There is also the argument by the First Respondent that the Appellants did not have the statutory power to terminate.

18.	The Appellants contend that the First Respondent remained employed with full benefits and that the claim for reinstatement and back pay was legally unsound.

19.	We reject the First Respondent’s submission that the Appellants do not challenge the substantive findings of the trial judge. The fact that the Appellants contested the position of the First Respondent that he was not terminated indicates a finding of the trial judge found which is being challenged. 

20.	Moreover, the First Respondent states that the rights of the Appellants to natural justice were not infringed and were unchallenged in the trial Court.

21.	Section 59 of the Constitution states:

“(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

22.	In ensuring that the duty to act fairly and the aspect of being seen to act fairly resonates with the reasonable observer such as the person in the buai market the trial judge would have to act on the principle of not considering irrelevant matters. 

23.	Through taking into account irrelevant matters such as the determination of whether a person is terminated when the facts indicate otherwise it demonstrates that the trial judge incorrectly exercised the court’s power of judicial review.

24.	We do not accept this argument as sufficient to vitiate any of the two Grounds of Appeal being deliberated on based on the contested position by the Appellants.

25.	Even if this Court were to accept that argument, the question of whether there was an identifiable error of the trial judge remains to be answered in deciding as to whether a Ground of Appeal fails or succeeds. 

26.	In Asuma (trading as Andy Asuma Trading) v Tiong Juk Chuong [2019] PGSC 124 it states:

“1) An identifiable error may occur where the trial judge acted upon a wrong principle, or gave weight to extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant considerations or made a mistake as to the facts. Even if there is no identifiable error, the judgment or order may be set aside if it is unreasonable or plainly unfair and such that an error can be inferred: Australia Coal and Shale Employees’ Union v. The Commonwealth [1953] HCA 25; (1956) 94 CLR 621, adopted by the Supreme Court in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.”
 
27.	 We find an identifiable error is found on the basis that the trial judge took into account irrelevant matters in granting certiorari for two decisions when only one was pleaded. 

28.	In Dads Investment Corporation Limited v Samson & Ors [2023] SC2485 it states that:
“40.    Given the settled law that, judicial review proceedings are exclusive and completely governed by Order 16, a court hearing an application for leave to amend needs to remind itself of that fact.   Having done so, the court also needs to consider at what stage of the proceeding an application to amend is being made.  An application for leave to amend prior to grant of leave should readily be granted if the purpose of the amendment per the conventional criteria are met.  The same cannot be the case after grant of leave for judicial review.  The plaintiff in such a case is pursuing his proceedings based on the leave granted.   It should follow therefore that, any application for leave to amend after grant of leave for judicial review must be confined to the matters that were pleaded and that which formed the basis for the grant of leave.  Venturing outside the confines of that, would be doing so without leave and therefore be highly irregular and unauthorised.  For a decision to grant leave to proceed with a judicial review application is not a decision authorising a plaintiff to introduce any additional facts and grounds as he pleases but to proceed to a hearing on his or her substantive review application based on what was placed before the court, which the court had considered and decided to grant leave.”

29.	It is clear to this court that the legal principle in this jurisdiction is that the relief in judicial review should be confined to the pleadings and grounds advanced by the Applicant.

30.	The Appellants posit that the decision of the trial judge was ultra vires to section 139(2) of the NEA Act and inapplicable. 

31.	The First Respondent suggests that section 139 of the NEA Act was to ensure there was no vacuum or gap in the transition period of the Authority.

32.	The First Respondent further states that this section of the NEA Act allows for transition arrangements until permanent situation made by the Managing Director. 

33.	It would seem to this Court that there was no dismissal as the First Respondent was placed in an unattached position which is not the same thing as being terminated. 

34.	The Appellants submit that the Authority is not a part of the state service and hence the Public Service Management Act (the PMSA Act) does not apply. 

35.	The Appellants further assert that the provision as to senior management was incorrectly applied.

36.	We accept this line of reasoning as the PSMA Act applies to the public service and not Statutory Authorities.

37.	The Appellants state that the trial judge considered irrelevant matters and this was not a case of judgment debt and principles related to interest did not apply.  

38.	The First Respondent argues that the orders operate in conjunction with the orders and does not impose liability on the Appellants. 

39.	Further, it is proffered that the First Respondent was entitled to any loss of salary or entitlements. It was not a fixed sum and so subject to further assessment.

40.	The First Respondent additionally avers that the Appellants were not under any duty to accept their contention, and they must first satisfy the first part of the Court Orders and then come back for assessment of damages. 

41.	The Appellants suggest that the orders in Ground 2 were too ambiguous. 

42.	The trial judge directed payment of unascertained salaries and entitlements with 2% interest under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. 

43.	We are of the view that judicial review remedies are limited to quashing decisions and compelling lawful action and do not extend to awarding unliquidated sums without assessment. 

44.	In Kekedo v Burns Philp & Os [1988-89] PNGLR 122 it states that:

“We consider that in this case the learned trial judge should have considered whether or not to exercise the Court’s powers of judicial review. In view of what we have already said on the merits, the fact that the trial judge did not exercise his mind on this matter makes very little difference. But in future, we consider that this threshold question be decided before the National Court invokes its judicial review jurisdiction.”

45.	The trial judge should have considered whether to exercise the Courts’ power in relation to the matters of unsubstantiated salaries and entitlements. It was not within an appropriate jurisdiction of the trial judge to make such an order.
CONCLUSION
46.	It follows that the decision at the court of first instance has identifiable errors which are unsustainable for it to remain undisturbed. 

47.	Therefore, the appeal should be granted.

ORDER
48.	By the majority:

1.	The appeal is allowed.

2.	The judgment and orders of the National Court dated 19th October 2023 in OS(JR) No. 19 of 2023 are quashed and set aside.

3.	The judicial review proceeding OS(JR) No. 19 of 2023 is dismissed. 

4.	The First Respondent shall pay the costs of the Appellants to be taxed if not agreed.

5.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
Ordered accordingly.

Lawyers for the appellants: MS Wagambie Lawyers
Lawyers for the first and second respondents: Okil Lawyers