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Yopo v Gure [2020] PGNC 250; N8496 (1 September 2020)

N8496

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 657 OF 2019

BETWEEN
RICHARD YOPO, the Managing Director and Chief Executive Officer of the National Airports Corporation Limited & Director of the Board of National Airports Corporation Limited
Plaintiffs

AND
HON. LEKWA GURE, as the Minister for Civil Aviation
First Defendant

AND
HON. CHARLES ABEL as the Minister for Department of Finance
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
JERRY AGUS as the Director and Acting Chairman of the Board of the National Airports Corporation Limited
Fourth Defendant

AND
EPHRAIM WASEN, as the Acting Managing Director and Chief Executive Officer of National Airports Corporation
Fifth Defendant

Waigani: Dingake, J
2020: 1^st September

JUDICIAL REVIEW – whether decisions of Ministers acting as Trustee shareholders of an incorporated company reviewable – whether decisions of an employer incorporated under the Companies Act 1997 to suspend an employee and appoint another reviewable – whether decisions invoke issues of private law or public law – held not reviewable.

Cases Cited:

Daniel v Air Niugini Ltd 2017 PGSC 61
Napitalai and Another v Wallace (2010) SC 1016
Medaing v Gabut (2016) N6431)

Counsel:

Mr. J. Aku, for the Plaintiff
Mr. R. Lains, for the First, Second and Third Defendants
Ms. D. Doiwa, for the Fifth Defendant

JUDGMENT

1^st September, 2020

1. DINGAKE J: The plaintiff has brought judicial review proceedings before this Court, seeking, inter alia, orders in the nature of certiorari, to quash, the decisions of the first, second and the fourth defendants.
   
2. The decisions sought to be quashed are:
   
   • (a) the decision to suspend Reuben Aila as Chairman of the National Airports Corporation Limited (“NAC”);
     
   • (b) the decision to appoint the fourth defendant, Jerry Agus, as the acting Chairman of NAC.
     
3. The plaintiff says that the above decisions were taken on the 5^th of August 2019. Indeed, letters from the Minister for Civil Aviation written to Reuben Aila and Jerry Agus, confirms that the above decisions were taken by the first defendant in consultation with the second defendant. The first defendant says in his letter aforementioned that the decisions were taken in their capacity as Trustee shareholders of NAC.
   
4. Additionally, the plaintiff prays that subsequent decisions by the fourth defendant to suspend the plaintiff from his employment as the Managing Director and Chief Executive Officer of NAC and the other to appoint the fifth defendant, Ephraim Wasem, as acting Managing Director and Chief Executive Officer of NAC, taken on the 14^th of August 2019, be declared void.
   
5. It is instructive to note that the letter dated the 14^th of August 2019, to the plaintiff is written by the fourth defendant in his capacity as Acting Board Chairman of NAC. The letter records that the Board of NAC resolved to suspend the plaintiff in accordance with Provision 14 of the plaintiff’s contract of employment dated the 1^stAugust, 2017.
   
6. The facts that forms the basis of the prayers sought are simple and straight forward.
   
7. At all material times hereto, and prior to the events leading to this litigation, the plaintiff was the Managing Director and Chief Executive Officer of NAC and Reuben Aila was the Chairman of the Board of NAC.
   
8. It is a matter of record that on the 13^th of August 2019, the plaintiff was suspended as Managing Director and Chief Executive Officer of NAC, by the Board. On the same day, the Board also appointed the fifth defendant as the acting Managing Director and Chief Executive Officer of NAC.
   
9. It is also a matter of verifiable record that the plaintiff and the fifth defendant were informed of the suspension and appointment respectively by letter dated14^th of August 2019.
   
10. The reasons for the plaintiff’s suspension are not germane to my conclusions with respect to the threshold issue of competency raised by the fifth defendant.
    
11. On or about the 23^rd of September 2019, the plaintiff instituted this proceeding, challenging:
    
    1. the suspension of Mr. Aila by the first and second defendants.
       
    2. the appointment of the fourth defendant as Acting Chairman.
       
    100. his own suspension as Managing Director and Chief Executive Officer, by the fourth defendant; and
         
    4. the appointment of the fifth defendant by the fourth defendant, as Acting Managing Director and Chief Executive Officer.
       
12. On the 9^th of October 2019, the plaintiff was granted leave to apply for judicial review of the decisions of the first, second and fourth defendant.
    
13. The relief sought by the plaintiff is opposed by the fifth defendant.
    
14. The fifth defendant has taken a jurisdictional point in line, which he is entitled to take before or after the grant of leave.
    
15. I propose to deal with the preliminary point raised first because if it succeeds that would be the end of the matter; and it would not be necessary to traverse other grounds on the merits of the judicial review application.
    
16. The fifth defendant contends that these proceedings are incompetent and should be dismissed, as the plaintiff seeks to review the decisions of a private entity, a company, which is not susceptible to judicial review. Alternatively, the fifth defendant contends that the plaintiff has not made out a case for the relief sought and the application should be refused.
    
17. In elaboration of the above point, the fifth defendant argues that the jurisdiction of this court has not been properly invoked for two reasons:
    
    • (a) the decisions being reviewed are of a private law nature and are not open to judicial review which is only available to decisions of a public law nature; and
      

(b) the plaintiff has been granted leave of two non -existent decisions.

18. It is trite learning that judicial review is only available against a body exercising public functions in a public law matter. The question whether a decision of a public body or private body with statutory linkages or underpinnings is subject to review depends on the circumstances of each case.
    
19. I turn now to consider the nature and character of the decisions taken by the first and second defendants on the 5^th of August 2019, referred to above. As I indicated earlier the decisions were taken by the said defendants in their capacity as Trustee shareholders of NAC. The question that arises is whether these decisions are susceptible to judicial review.
    
20. The other element that must be established by the plaintiff, in addition to establishing that the decision sought to be reviewed is that of a public body or body performing public functions, is that the subject matter of the challenge involves claims based on public law principles, not the performance of private law rights. (Lewis, C. Judicial Review in Public Law (5^th ed, Sweet and Maxwell, United Kingdom, 2014); Medaing v Gabut(2016) N6431.
    
21. In this matter the decisions of the 5^th of August 2019, were taken by the first and second defendants as Trustee shareholders of a company incorporated under the Company’s Act pursuant to the provisions of the Civil Aviation Act.
    
22. There is nothing in the letters of the first and second defendants where they invoke any statutory powers. The subject matter of the challenge involves the enforcement of private rights.
    
23. In my mind the plaintiff has failed to meet the two requirements enunciated above, firstly that the body under challenge is a public body or is a body performing public functions; and secondly that the subject matter of the challenge involves claims based on public law principles, not the enforcement of private law rights. Matters relating to contracts of employment fall under private law rights.
    
24. I turn now to consider the decisions of the 13^th of August 2019, by the Board of NAC. It is important, before delving deeper into the preliminary points raised, to properly characterize NAC. The creation or incorporation of NAC is authorized by Section 147A of the Civil Aviation Act 2000 (as amended) (‘’CAA’’). The aforesaid Section provides for the incorporation of NAC, as a company incorporated under the Companies Act of 1997 (as amended) for the purposes of owning, operating, managing and maintaining airports, amongst other functions.
    
25. The governing body of NAC is the Board of Directors as established by the CAA.
    
26. It would seem to me having regard to the relevant provisions of the CAA, more particularly sections 132 and 147A thereof and the Companies Act that NAC is a company incorporated under the Companies Act.
    
27. The question whether an entity similar to NAC is a private entity or a public body whose decisions are susceptible to judicial review was decided by the Supreme Court in the case of Napitalai and Another v Wallace (2010) SC1016 whose facts are materially similar to the present case and therefore binding on this court, irrespective of any possible inclinations to the contrary on my part.
    
28. In the above case the Supreme Court was dealing with an appeal which arose out of the grant of leave for judicial review by the National Court. One of the grounds of Appeal was that the PNG Ports Corporation Ltd was a private company and that the trial judge fell into error when he held that it was a public body whose decisions were susceptible to judicial review.
    
29. The Supreme Court held that PNG Ports Corporation Ltd was in fact a private company incorporated under the Companies Act and controlled by a Board that hires and dismisses employees of the company.
    
30. The thrust of the above authority supports the view that NAC is a company and its decisions with respect to appointment, suspension and termination of employment are matters of private law.
    
31. The Napitalai decision was affirmed and followed in another case, also similar to the present one, by the Supreme Court, being the case of Daniel v Air Niugini Ltd 2017 PGSC 61.
    
32. On the basis of the above authorities, I hold that NAC decisions being those of a company incorporated under the Companies Act, and not being a public body, are not susceptible to judicial review and the remedy for any employee who may be aggrieved by its decisions lie in private law.
    
33. I would therefore dismiss the review application on this ground alone.
    
34. Having held that these proceedings are incompetent as contended by the fifth defendant, it is not necessary to interrogate the second leg of the preliminary points raised by the fifth defendant relating to a review of “non-existent decisions”.
    
35. In all the circumstances of this case, the point in line discussed earlier, raised by the fifth defendant, having been found to be merited, concludes this matter and there is no need to traverse the merits of the judicial review application as same is incompetent.
    
36. In the result the court issues the following orders:
    
    1. The preliminary point raised by the fifth defendant, namely, that the decisions being reviewed are of a private law nature and are not open to judicial review which is only available to decisions of a public law nature is upheld
       
    2. The judicial review application is accordingly dismissed as incompetent.
       
    100. The plaintiff shall pay the costs of the application, to be agreed or taxed.

__________________________________________________________________
Manase Lawyers: Lawyers for the Plaintiff
Hardy & Stocks Lawyers: Lawyers for the First, Second and Third Defendant
Makap Lawyers: Lawyers for the Fifth Defendant