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Temai v Kool [2024] PGNC 21; N10667 (20 February 2024)

N10667

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 118 OF 2022 (IECMS)

BETWEEN:
MICHAEL BAL TEMAI
Plaintiff

AND:
HON. NOAH KOOL in his capacity as Governor for Simbu and Chairman of the Provincial Executive Committee
First Defendant

AND:
HON. JAMES MARAPE in his capacity as Chairman of the National Executive Council for and on behalf of the National Executive Council
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
SEBASTIAN KEE in his capacity as
Acting Administrator for Simbu Province
Fourth Defendant

AND:
JOHN PUNDE in his capacity as Administrator for Simbu Province
Fifth Defendant

Waigani: Dingake J
2023: 14^th December
2024: 14^th & 20^th February

NATIONAL COURT – Practice and Procedure – Plaintiff’s contract of employment expired – Judicial Review proceedings initiated and heard after the contract had expired – Whether Plaintiff has lost locust standi – held Plaintiff lost locus standi – proceedings dismissed.

Cases Cited:
Green Wood (PNG) Ltd v Pulie Anue Timber Co. Ltd [2023] PGSC 9; SC2361
Honk Kiap v National Capital District Commission (2023) SC2435
John Kopil v Malcolm Culligan & The State (1995) N1333
Ibrahim Suliaman v PNG University of Technology [1987] PNGLR 267

Counsel:
Mr. Tom Sirae, for the Plaintiff
Mr. Camilus Gagma, for the First & Fifth Defendants
Mr. Justin Issac, for the Second & Third Defendants

JUDGMENT

20^th February 2024

1. DINGAKE J: This is an application by the Plaintiff to review the decision to terminate and or revoke his employment as per the Government Gazette No. 9445.
   
2. The Plaintiff was appointed the Provincial Administrator for the Simbu Provincial Government on or about the 30^th of October 2018.
   
3. The Plaintiff was appointed under a contract of employment for a term of four (4) years that expired on or about the 30^th of October 2022.
   
4. The Plaintiff was suspended from is employment on or about the 4^th of May 2021. On or about the 18^th of May 2022, the National Executive Council (NEC) revoked his appointment. The revocation was published on the 1^st of June 2022.
   
5. The Plaintiff’s grounds of review are that there has been unreasonableness and breach of natural justice in the termination of his employment.
   
6. The Plaintiff prays the Court to review and quash the decision terminating his employment and reinstating him to his employment.
   
7. The Plaintiff filed these proceedings on or about the 15^th of November 2022, more than a week after his contract of employment had expired. He was granted leave to bring these review proceedings on the 4^th of March, 2023 and he filed his substantive Notice of Motion on the 9^th of March 2023.
   
8. At the hearing of the substantive review application, Learned Counsel for the First Defendant, Mr. Camilus Gagma, supported by learned Counsel for the Third Defendant, Mr. Isaack, raised a number of preliminary points/issues.
   
9. The preliminary issues they raised were that:
   
   • (a) The judicial review proceedings commenced after the contract of employment had lapsed or expired and as a result the Plaintiff lacked standing.
     
   • (b) That the Plaintiff used the wrong mode of court proceedings (should have proceeded by way of a Writ of Summons claiming damages for breach of contract of employment).
     
   • (c) The judicial review proceeding was filed outside the four (4) months period in breach of Order 16 rule 4 (2) of the National Court Rules.
     
   • (d) The judicial making authority, the Provincial Executive Council (PEC) and the National Executive Counsil (NEC) were not separately named, and the decision of NEC was not pleaded in the Statement made pursuant to Order 16 rule 3 (2)(b) of the National Court Rules.
     
   • (e) The statutory breach in the process of decision making has not been specified and the terms of the contract of employment have not been pleaded.
     
10. The Defendants contended that as these proceedings were commenced after the expiry of the Plaintiff’s contract of employment, the Plaintiff lacked standing to continue or sustain these judicial review proceedings.
    
11. The Defendants also contend that judicial review is not available to the Plaintiff because his contract was a private contract.
    
12. The Defendants contend further that the entities that took the decision that terminated the Plaintiff’s employment, namely, the Provincial Executive Council (PEC) and the National Executive Council (NEC) were not separately cited and that it was not proper to cite the Chairpersons of the entities and or authorities that took the decision. They argue that the Plaintiff should have sued or cited the PEC and NEC respectively and not their chairpersons.
    
13. On the issue of locus standi, which in my mind is the most critical issue, the question that falls for determination is whether a party whose contract has expired at the time he/she initiated judicial review proceedings (assuming judicial review is otherwise available to him or her) or at the time the matter is heard, has locus standi to continue the matter?
    
14. The Defendants rely on the Supreme Court case of Green Wood (PNG) Ltd v Pulie Anue Timber Co. Ltd (2023) PGSC 9; SC2361, for their argument that the Plaintiff’s contract of employment having come to an end, the judicial review proceedings are not maintainable or sustainable and ought to be dismissed.
    
15. The brief facts in the case of Green Wood, cited supra, are that the Appellant had a Logging and Marketing Agreement (LMA) with the Second Respondent and a logging license from Papua New Guinea Forest Authority (PNGFA). The Agreement and the Logging license both expired when the appeal was pending. The First Respondent filed an application to dismiss the appeal given the expiry of the Agreement and the Logging license. The Court held that that the Appellant lost the standing to pursue the appeal when the LMA and Logging License expired.
    
16. Although learned Counsel for the Plaintiff sought to distinguish this particular case with the above case of Green Wood, I do not find any significant distinguishing features that can lead to a different result.
    
17. Having regard to the above authority, I have reached the conclusion that the Plaintiff has no locus standi to continue or sustain this matter for the reason that his contract had expired by the time he initiated this proceedings.
    
18. I am of the considered view that, if the Plaintiff considers that he has a case based on the contract of employment he may proceed by way of a Writ of Summons for breach of contract, if that route is available to him.
    
19. Assuming I am wrong to hold as I do, that the Plaintiff lacks locus standi to continue these proceedings, I am also of the view that these proceedings are defective for failure to cite the actual decision makers, being, the PEC and the NEC.
    
20. I have read the decision of the Supreme Curt brought to my attention by Mr. Gagma, learned Counsel for the First Defendant, in the case of Honk Kiap v National Capital District Commission (2023) SC 2435, in which the Court held that it was wrong and or defective to cite the Chairman of the Staff Appeal Tribunal instead of the decision maker being the Appeals Tribunal.
    
21. I consider that the decision of Honk Kiap, above, is binding on this Court.
    
22. In the above case of Honk Kiap the Court held that:
    

“The proceedings were defective in that the real decision maker, the Appeals Tribunal was not properly named and heard before the final decision by the learned trial Judge.”

23. In the current proceeding, the First Defendant was sued in his capacity only, but he is not person or entity that took the decision sought to be impugned. The decision-making authority in the Province is the Simbu Provincial Executive Council. The Plaintiff failed to name the Simbu Provincial Executive Council as the legitimate decision-making authority.
    
24. The Second Defendant was named in his capacity only, but his not a decision-making authority or body. The decision-making authority was the National Executive Council. The Plaintiff failed to name the NEC as the legitimate decision-making authority.
    
25. In my considered opinion these proceedings are defective for failure to properly cite the decision makers of the decision(s) sought to be impugned – and for that reason these proceedings are liable to be dismissed.
    
26. I also agree that these proceedings also ought to be dismissed for the reason that the judicial review is not available to the Plaintiff as the relationship between the parties was based on a contract of employment which was governed by private law and not public law. (See John Kopil v Malcolm Culligan & The State (1995) N1333; Ibrahim Suliaman v PNG University of Technology (UPNG) (1987) PNGLR 267).
    
27. There is a long line of authorities of respectable lineage that establish that where a contract of employment exists, that contract governs the rights and obligations of the parties to the contract, and also that such a contract removes one from the protection or procedure of termination that may be provided for in statute, and a right to judicial review as a remedy for any breach of contract.
    
28. Having regard to all that I have said above, I do not consider it necessary to decide the other grounds relied upon by the Plaintiff in this matter.
    
29. The net effect of all the above is that based on the points of law raised, these proceedings ought to be dismissed.
    
30. In the result:
    
    • (a) These proceedings are dismissed in their entirety, with costs such costs to be agreed or taxed.

_______________________________________________________________
McGregor & Associates Lawyers: Lawyers for the Plaintiff
Gagma Legal Services: Lawyers for the First & Fifth Respondents
Lawama Lawyers: Lawyers for the Second & Third Respondent