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Yanaga v Manning [2021] PGNC 597; N9427 (15 December 2021)

N9427

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 73 OF 2020 (IECMS)

BETWEEN
JOHANNES YANAGA
Plaintiff

V
DAVID MANNING In His Capacity as Commissioner of Police (RPNGC)
First Defendant

AND:
JOAN CLARKSON In her Capacity as Acting Deputy Police Commissioner for Administration
Second Defendant

AND:
JOHANNES YAPI In his Capacity as Acting Assistant Commissioner (ACP) of Police for Human Resources
Third Defendant

AND:
TAIS SANSAN In Her Capacity as The Secretary for the Department of Personal Management
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2021: 09^th & 15^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion Judicial Review – Section 133 Police Act – Expiration of Contract – Non-Renewal – Privity of Contract – Whether Judicial Review lies – Contract Action for Damages – Certiorari inapplicable – Judicial Review Refused – cost follow event.

Cases Cited:

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192

Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Dekenai Constructions Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800

Rataba v Commissioner of Police [2010] PGSC 51; SC1014

Nii v Manning [2020] PGSC 78; SC1986

Counsel:
P. Daime, for Plaintiff
K. Kipongi, for Defendants

RULING

15^th December, 2021

1. MIVIRI, J: This is the decision on the plaintiff’s substantive notice of motion of the 22^nd February 2021 for certiorari pursuant to Order 16 Rule 1 & 3 of the National Court Rules, against the decision of the 16^th October 2020 made by the defendant terminating the contract of employment with the Royal Papua New Guinea Constabulary allegedly without reasonable cause or explanation.
   
2. At the outset the motion for certiorari denotes that there is error on the face of the record prompting the decision to be brought into Court and quashed: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. That is the process taken to make the decision to terminate the contract of employment of the Plaintiff has not followed due process of law. Here peculiar to the facts is that a contract under section 133 of the Police Act was entered into between the Plaintiff and the Commissioner of Police on the other part. It is therefore important to gauge the terms and conditions of that contract to ascertain if procedure was indeed followed in its termination.
   
3. Hence the questions posed for determination would be, is there error on the face of the record, where the plaintiff is employed by Contract with the defendants? What are the requirements of that Contract? Is there cause of action for Judicial Review when the contract is between the Plaintiff and the defendants?
   
4. The essential facts are that the Plaintiff was employed on a three-year contract as Director Lands and Buildings at the Royal Papua New Guinea Constabulary Police Headquarters. This was in accordance with section 133 of the Police Act. By subsection (2) that contract was between the plaintiff and the Commissioner of police, because he was director, Superintendent of Police P4890 and was a commissioned officer. It is also clear by the Act that there were no terms within for termination, but for what is provided under that section 133 (3). These include conviction, failure to meet the conditions of the contract, negligence, dereliction, misconduct of the applicant, infirmity of the applicant, failure to perform duties within rank and office, resignation, or retirement, lastly in the interests of the State: Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103 (9 August 2001). It set clear that even in the case of the Commissioner of Police he is entitled to be seen out in proper procedure and process otherwise damages lie for failure. In my view the same would be so of a commissioned officer.
   
5. Relevantly is the failure to meet the Conditions of the Contract, including negligence, dereliction, misconduct by the Plaintiff, or infirmity, or failure to perform duties within rank and the office, resignation, or retirement, or in the interests of the State here? The consideration of these questions means that it is no longer a case of discipline so that Judicial review is applicable to the case of the Plaintiff. Because the Contract is between the plaintiff and Commissioner of Police, and not the world at large. There is privity in the relationship. They alone determine as to what are the terms and conditions within. And they are responsible amongst themselves as to how it is run between them, including its duration and termination. It is by that fact not public Law where Judicial review would descend into the arena to govern the proceedings and see out where, there is error in the procedure undertaken to arrive at a decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
   
6. There is no doubt that the Plaintiff was occupying that office as of the 10^th November 2020 up to 31^st October 2011. And has received no notice leading up eventually to his termination letter. The subject of notice is between the parties to that Contract and not the world at Large. Even though by Section 133 Subsection (5) “Employment under contract under this section constitutes service in the Force for all of the purposes of this Act.” Effectively this incorporates the disciplinary process of the Constabulary under Part IV Discipline. The Plaintiff was not the subject of disciplinary proceedings at the discretion of the defendants. So that Judicial review was drawn into the picture because the process of law undertaken would be reviewed to eventual termination. Here the one-year contract has simply not being renewed upon its expiry.
   
7. Is there a cause of action for Judicial Review given?
   
8. Here annexure “E” of the affidavit of the plaintiff is a letter dated 16^th October 2020, subject is expiry of his one-year contract on the 13^th March 2020 which is not disclosed in the affidavit. “The letter refers to it denied by the plaintiff that he never signed one. But the letter signed by the Commissioner David Manning says, “I have no intention of renewing your contract thus I thank you for your services to the Constabulary and wish you well in your future endeavours.” It means there was a valid and enforceable contract in law between the plaintiff and the defendants through the office of the Commissioner of Police. And the Commissioner of Police who is the other party to the Contract has simply elected not to enter into that relationship with the Plaintiff again after lapse of the former. This is perfectly legal and if there is complaint in its termination, then the appropriate forum is for damages for breach of contract, a different sphere of the law as there is privity of contract: Dekenai Constructions Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800 (3 May 2019). Any party external to that relationship has no say in the conduct of that relationship in law. Hence Judicial review is inapplicable given.
   
9. The facts do not show an internal disciplinary process in action against the Plaintiff employed by Contract with the Police Act. He has not breached any of the terms of the Contract so that a disciplinary process has eventuated by the Police Act, so that Judicial review applies because it is now Public Law. It is not the situation likened to Kekedo v Burns Philip Limited (supra) it is entirely private law which is not the ambit of Judicial Review. This is not the same situation observed in Rataba v Commissioner of Police [2010] PGSC 51; SC1014 (26 February 2010), nor is it a situation as in Nii v Manning [2020] PGSC 78; SC1986 (27 August 2020). Here there is no disciplinary issue, it is only Contract and that is through that process to unearth and examine for damages for breach. Accordingly, Judicial review is refused with costs following.
   
10. The formal orders of the court are:
    
    • (1) The application of the plaintiff for Judicial Review is refused.
    • (2) Costs to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Peter Daime Kaii Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants