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Maiyau v Tupiri [2015] PGNC 75; N5985 (16 June 2015)

N5985

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 540 OF 2014

BETWEEN:

PATRICK MAIYAU
Plaintiff

AND:

JOSEPH TUPIRI, as ACTING MANAGING DIRECTOR AND CHIEF EXECUTIVE OFFICER OF NATIONAL AIRPORTS CORPORATION
First Defendant

AND:

NATIONAL AIRPORTS CORPORATION
Second Defendant

AND:

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Nablu, AJ
2015: 4, 16 June

JUDICIAL REVIEW – Application for leave – Whether decision of National Airports Corporation subject to judicial review – Sections 3 and 132 of the Civil Aviation Act - Employees of National Airports Corporation - Private law nature - National Airports Corporation Ltd an incorporated Company - Leave Refused.

Cases cited:

Ereman Ragi v. Joseph Maingu (1994) SC459
Young Wedau v. Alfred Daniel (1995) PNGLR 357
Ron Napitalai v. Casper Wallace (2010) SC1016

Counsel:

N Kubak, for the Plaintiff
A Nasu, for the Third Defendant
K Kawat, for the First and Second Defendants
16th June, 2015

1. NABLU, AJ: By way of an amended originating summons filed on 2 June, 2015, the plaintiff seeks leave to review the decision of the first defendant to suspend the plaintiff from employment as the Head of Safety and Compliance of the National Airports Corporation (the second defendant) pursuant to Order 16 Rule 3 (1) of the National Court Rules.

2. The State opposed the application for leave and took issue with the following leave requirements of arguable case, exhaustion of administrative remedies and delay. Mr Kawat of counsel for the first and second defendant was granted leave to make submissions in the application for leave.

3. It is evident that the plaintiff has locus standi, the decision subject of review affects him directly.

4. But before I determine the other requirements for leave, there are two pertinent issues which should be determined first before I delve into the application for leave. The first issue is to ascertain the nature of the plaintiff's employment whether it is of a private law nature or public law nature. The second issue is whether the decision of the first defendant is subject to judicial review.

5. In regard to the first issue, Mr Kubak of counsel for the plaintiff submitted that the plaintiff's employment was pursuant to a Contract of Employment and the first defendant did not comply with the disciplinary process therefore he denied the plaintiff's right to natural justice. The first defendant's decision to retrench him is subject to judicial review because the first defendant did not have the power to retrench the officer; such powers are under the Public Service General Orders therefore, the decision is subject to public law and susceptible to judicial review. It was also submitted that the second defendant was a public body because directors of the Board were Government Ministers.

6. The State argued that the plaintiff did not have an arguable case because the decision of the first defendant is that of a company or corporate body and not a public or government authority.

7. Mr Kawat also submitted that the first defendant is an official of the second defendant who is a company incorporated under the Companies Act and therefore his decisions are not subject to judicial review. The plaintiff's remedy lies in private law and not public law. The plaintiff is at liberty to pursue a claim for damages for breach of contract or other civil remedies.

8. In determining what the nature of the plaintiff's employment is; the status of the second defendant should be examined in order to determine the plaintiff's terms and conditions of employment. Following that determination, then the question of whether the first defendant's decision is subject to judicial review can be determined.

9. The plaintiff was a career officer who served about 30 years in the Aviation Industry beginning with the Department of Civil Aviation, then the Civil Aviation Authority (the second defendants' predecessor) and then the National Airports Corporation.

10. On 13 April, 2012, the plaintiff was suspended without pay by the first defendant's predecessor Mr Joseph Kintau. On 20 May, 2013 the plaintiff was informed that he would be retrenched and that his contract would not be renewed. According to the plaintiff's amended originating summons, the decision which he seeks to review is the decision of the first defendant to suspend him on 13 April, 2012.

11. It is trite law that employees of companies or statutory corporations are subject to private law and not public law. The relationship between the employees and employers of private companies or entities are categorised as master and servant relationships. Therefore, they are not subject to judicial review. Their remedies lie in damages for breach of contract.

12. Counsel for the first and second defendant submitted the case of Ereman Ragi v. Joseph Maingu (1994) SC459, as authority to support the proposition that the plaintiff is employed by the second defendant which is an incorporated company and therefore the nature of his employment is one of private law, which gives rise to a master and servant relationship and therefore not subject to public law. This means, the first defendant's decision is not susceptible to judicial review.

13. In Ereman Ragi v. Joseph Maingu (supra), the respondent was employed by the State Services and Statutory Authorities Superannuation Fund Board as the board secretary. In a restructure of the Board, the respondent's position ceased to exist and he was dismissed. On appeal, the Supreme Court held that, the plaintiff's employment was a matter at private law and not public law; therefore his remedy lies in damages.

14. In Young Wedau v. Alfred Daniel (1995) PNGLR 357, this was an appeal against the decision of the National Court to refuse leave for judicial review of Papua New Guinea Harbours Board's decision to terminate the appellant as a legal officer. The Supreme Court dismissed the appeal and held that the nature of the appellant's work as a legal officer was not one of a "public office" therefore his rights were of a private law nature and not susceptible to judicial review. The appellant's private law rights, such as the right to seek damages for breach of contract or unlawful dismissal are not affected.

15. This principle of law is now settled in the case of Ron Napitalai v. Casper Wallace (2010) SC1016, where the Supreme Court held that PNG Ports Corporation Ltd was a not a governmental or public body and its decision was not subject to judicial review. PNG Ports was an incorporated body under the Companies Act and not a creature of statute. Judicial review was not available to the respondents whose dismissal was of a private law nature. The appeal was upheld and the decision of the trial judge in granting leave for judicial review was quashed.

16. In that case, the Supreme Court considered the facts of the earlier decisions of Ereman Ragi (supra) and Young Wedau (supra) and found that the facts of those cases were not distinguishable from the facts of that case. Therefore, the trial judge erred in law when not applying the principles in those cases. The fact that PNG Ports was not created by statute but was incorporated under the Companies Act supported the contention that the respondent's employment was that of a private law nature as opposed to a public law nature.

17. In the present case, the applicable legislation is the Civil Aviation Act 2000. Section 3 of that Act defines an airport authority as including the National Airports Corporation Ltd. NAC is defined as National Airports Corporation Limited, a company incorporated under the Companies Act 1997 pursuant to Section 132 of the Civil Aviation Act (Section 3 of the Civil Aviation Act). Section 132 of the Act provides the mandate for the Minister responsible for civil aviation and the Minister for finance to incorporate a company under the Companies Act to own, operate or manage an aerodrome or airport.

18. The relevant provisions of the Civil Aviation Act 2000, clearly stipulates that NAC is a company incorporated under the Companies Act. Employers employed in the NAC find their rights under private law nature and in the absence of any evidentiary material to the contrary, I find that the National Airports Corporation Ltd is a company incorporated under the Companies Act. When applying the settled principles of law established by the Supreme Court, I am satisfied that any decision regarding employees of the National Airports Corporation Ltd and in this case suspension and consequent, redundancy of the plaintiff is of a private law nature and therefore not susceptible to judicial review. The plaintiff's rights at private law to seek damages for breach of contract or other remain unaffected and he is at liberty to pursue them.

19. For those foregoing reasons, the plaintiff's application for judicial review is refused and is dismissed. Accordingly, the ex parte interim injunction ordered on 01 May, 2015 is discharged forthwith. In regard to costs, an application for leave is an ex parte application pursuant to O 16 r 3 (2) of the National Court Rules. In this case, the State, who is the only party by virtue of s. 8 of the Claims By and Against the State Act to make submissions was ordered by the Court to be joined as a party. Counsels for the first and second defendant also sought and were granted leave by the Court to make submissions at the leave stage. On that basis and bearing in mind that the general rule is that the awarding of costs is discretionary, I exercise my discretion to order that each party bear their own costs.

Kubak & Kubak Solicitors & Barristers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Third Defendant
Kawat Lawyers: Lawyers for the First and Second Defendant