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Anguali v Mosoro [2024] PGNC 391; N11063 (29 October 2024)

N11063

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE\


OS (JR) NO. 64 OF 2024


BETWEEN:
HENGEPE ANGUALI
Plaintiff


AND:
NICHODEMUS MOSORO in his capacity as the SECRETARY FOR NATIONAL JUDICIAL STAFF SERVICES
First Defendant

AND:
NATIONAL JUDICIAL STAFF SERVICES
Second Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Purdon-Sully J
2024: 12th September, 29th October


JUDICIAL REVIEW – Order 16 Rule 3(2) of the National Court Rules – Application for leave to apply for Judicial Review following termination of Plaintiff’s employment – Court’s discretion – Whether requirements for leave met – State challenges Plaintiff’s standing, exploration of available remedies and arguable case – Whether Plaintff’s remedy lies in public law - Plaintiff found to lack standing – leave refused.


Cases Cited:

Papua New Guinea Cases
Gelu v Sheehan [2013] N5498
O’Neill v Eliakim [2016] SC1524
Ragi v Maingu (1994) SC459
Wedau v PNG Harbours Board [1995] PNGLR 357
Luma v Kali [2014] SC1401
Kiap v Kasper [2023] PGSC 95; SC2435
Andrias v Kapavore [2017] PGNC 288; N7007
NTN Pty Ltd v Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70 Pipoi v Seravo, National Minister for Lands [2008] SC909
Steamships Trading Ltd v Garamut Enterprises Ltd [2000] N1959
Mondai v Wawoi Guavi Timber Co Ltd [2007] SC886


Legislation:
National Court Rules, Order 16 Rule 3
Claims By and Against the State Act 1996, s 8
National Judicial Staff Service Act 1987, s 3


Counsel
Mr T Jugari, for the Plaintiff
Ms P Yom, for the Defendants


29th October 2024


  1. PURDON-SULLY J: This is an application for leave for judicial review made pursuant to an Originating Summons filed on 2 August 2024, pursuant to Order 16 r 3 (2) of the National Court Rules (NCR) and s 155 (4) of the Constitution.
  2. The Plaintiff seeks leave to review the decision of the former Acting Secretary of the Second Defendant, Mr Jack Kariko, dated 6 June 2024 to terminate his contract of employment as a senior accountant with the Second Defendant.
  3. The Third Defendant, who by virtue of s 8 of the Claims By and Against the State Act 1996 and Order 16 r 3 of NCR has a right to be heard on the application, opposes the grant of leave on three (3) bases, namely that the Plaintiff has not evidenced standing, the Plaintiff has not exhausted all administrative avenues available to him and he has not made out an arguable case.
  4. In brief compass, the facts that gave rise to the application are that the Plaintiff was initially employed by the Second Defendant for a period of three (3) years, his contract of employment renewed thereafter on two occasions before expiring on 1 August 2020.
  5. The Plaintiff’s contract was performance based and whether to renew or not renew was determined by a performance review or performance appraisal as prescribed in his contract of employment and Schedule 1, Table 1 attached to the contract and the NJSS Administrative Orders, which govern the terms and conditions of employment of NJSS.
  6. Before the Plaintiff’s contract expired on 1 August 2020, the then acting HR Director gave the Plaintiff six (6) month’s notice by letter dated 19 February 2020 that the management of the Second Defendant would review the Plaintiff’s work performance to determine whether to renew or not to renew his contract.
  7. On the Plaintiff’s evidence the review did not take place.
  8. Following the expiry of this contract on 1 August 2020 the Plaintiff continued to perform his duties without a renewal of his contract. He did so without any objection by the management of the Second Defendant.
  9. On 22 September 2022, without notice to him, the Plaintiff’s position was advertised by the HR Acting Director and recruitment manager.
  10. No recruitment was undertaken however on 26 June 2023 the Plaintiff received the following memorandum from Mr Kariko:

Dear Mr Anguali

As you are aware, you have an acting appointment notice dated 28 August 2020. The notice informed “You will be acting on the position until the new structure comes into effect”.


Be informed, in light of management decision to recruit on the accountant position, you are hereby informed that this notice now supersedes the previous notice.


The position will now be advertised, and you are invited to apply.

You will continue to act on the position until the recruitment is complete with a substantive appointment.


  1. On the evidence of the Plaintiff, he was not given any letter of acting appointment following the expiration of this contract, this memorandum the first time he received any communication that he was in an acting role.
  2. Dissatisfied with the contents of the memorandum the Plaintiff in a reply to Mr Kariko dated 20 July 2023, detailed his complaints, including with respect to a failure to comply with the terms of his contract to review his performance. He requested management reconsider the decision to re-advertise the position and confirm his position.
  3. The position was advertised in 2023 and again in 2024.
  4. On 6 June 2024 Mr Kariko terminated the Plaintiff’s employment.
  5. Aggrieved by the decision to terminate his contract of employment, the Plaintiff instituted these proceedings.

LEGAL PRINCIPLES


  1. An application for leave involves an exercise of judicial discretion.
  2. The Plaintiff carries the burden of proof on the balance of probabilities.
  3. The Plaintiff must show:
    1. He has standing to bring proceedings for judicial review.
    2. There has not been any undue delay in making the application for leave.
    1. He has exhausted all other statutory or administrative avenues for redress before making the application;
    1. There is an arguable case justifying the grant of leave for judicial review.
  4. Even if the applicant satisfies the above criteria the Court retains the discretion to grant leave, the Court able to refuse leave on the basis that the overall circumstances of the case do not favour an exercise of discretion in favour of the applicant (Gelu v Sheehan [2013] N5498; O’Neill v Eliakim [2016] SC1524 per Sakora J at 46]).
  5. It is a settled principle that judicial review is concerned with public not private law (Ragi v Maingu (1994) SC459; Wedau v PNG Harbours Board [1995] PNGLR 357; Luma v Kali [2014] SC1401; Kiap v Kasper [2023] PGSC 95; SC2435). This consideration is a fundamental issue, a threshold issue that goes to the jurisdiction of the Court.

THE ARGUMENTS


  1. In summary it is submitted on behalf of the State that:
    1. The Plaintiff lacks standing or a sufficient interest to challenge the decision of the First Defendant to terminate his employment because his contract expired in 2020. Even if the Plaintiff was thereafter appointed on an acting basis that fact alone does not ground standing. In this regard the Plaintiff relying upon the decision of Andrias v Kapavore [2017] PGNC 288; N7007 where a grant of leave to judicially review a decision by the National Executive Council was refused because the Plaintiff found not to have a sufficient interest or standing to challenge the decision of the National Executive Council to terminate his acting employment his contract of employment having expired.
    2. The Plaintiff has not exhausted all remedies available to him as s 30 and 31 of the National Judicial Staff Service Act 1987 (the Act) states that any matters relating to appointment must be done under the Public Services Management Act 1995, officers of the NJSS also officers of the Public Service, as such the Plaintiff had not exhausted the remedies available to him under s 18 of that Act before coming to Court, namely the avenue of appeal to the Public Services Commission.
    1. The Plaintiff did not establish an arguable case, the Plaintiff mis-identifying the applicable legislation in referring to the incorrect passing date.
  2. The Plaintiff contends, in summary, that:
    1. He has a sufficient interest to bring the proceedings having occupied the position of accountant for 15 years prior to his termination;
    2. The provisions of the Public Services Management Act 1995 have no applicability to the Plaintiff and the Plaintiff has exhausted all avenues for redress open to him;
    1. The Plaintiff has established an arguable case, the Defendants inter alia failing to follow mandatory processes and procedures under his contract of employment, relevant Administrative Orders and provisions of the Act in terminating him from his employment. Further, the misdescription of the date of the Act was a clear typographical error, one that does not prejudice the State.

DISCUSSION


  1. It is not challenged that the Second Defendant, a creature of statute, is a body performing public functions (see for example s 3 of the Act)). The question is, however, whether in the circumstances of this case the Plaintiff’s remedy lies in public law as opposed to private law, the Plaintiff conceding that he had a remedy in damages for breach of contract.
  2. It is an issue that goes to the heart of the Plaintiff’s standing to file for judicial review and the Court’s discretion to grant leave overall (Kiap at [7] – [8]). The Court cannot grant leave unless the Court is satisfied that the Plaintiff has a sufficient interest in the subject matter. If the Plaintiff cannot show that he has a sufficient interest - a sufficient right to bring the action and challenge the decision, then the Court cannot invoke its powers of judicial review (NTN Pty Ltd v Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70 per Wilson J at [74] cited with approval in Pipoi v Seravo, National Minister for Lands [2008] SC909).
  3. Sufficient interest is a mixed question of fact and law having regard to all the circumstances of the case, a matter of fact and the degree of the relationship between the Plaintiff and the subject matter of his complaint (Steamships Trading Ltd v Garamut Enterprises Ltd [2000] N1959; Mondai v Wawoi Guavi Timber Co Ltd [2007] SC886).
  4. I have concluded that the Plaintiff has not demonstrated a sufficient interest in the matter to which the application relates to bring proceedings for judicial review, the parties’ relationship based on a contract of employment which was governed by private law, as opposed to a relationship based on public law for the purpose of judicial review.
  5. The applicable legislation makes no provision for the terms and conditions of employment of NJSS officers, the provisions of the Act with respect to disciplinary offences of its officers and any reference in the Plaintiff’s contract of employment to the Act, Administrative Orders and regulations and adherence to the principles of natural justice as referenced in the Constitution insufficient, on balance, to make the Plaintiff’s employment a matter of public law entitling him to judicial review.
  6. The Plaintiff was a senior Contract Officer employed under contract, acknowledged as such at [39] of written submissions on behalf of the Plaintiff. His performance commitments, assessments and ratings were governed by his contract of employment (Schedule 1), as were his salaries, allowances and benefits (Schedule 2), the termination provisions applicable to him (Schedule 3, including as a result of the non-renewal of his contract (Schedule 3 Clause 1 (b)) and the Code of Business Ethics and Conduct to which he was to adhere (Schedule 4). Schedule 5, not in evidence but referred to in the contents page of the contract listed his Job Description and Accountabilities.
  7. While a matter of importance to him personally, there is nothing on the evidence to suggest that the decision to terminate the Plaintiff’s employment was a matter of public importance or interest. The Plaintiff’s employment was that of accountant. His office and functions did not place him in the public domain. Nor was it one that evidenced any requirement such that a member of the public could demand an account of his work for the Second Defendant.
  8. The Plaintiff’s deposition in his Affidavit in Support filed 2 August 2024, evidences all the indicia of an employer/ employee relationship (see for example, [4], [6], [11], [12] – [15] and [28]).
  9. Relevantly, at the time the Plaintiff commenced these proceedings his contract of employment had expired four (4) years earlier. Notwithstanding that fact, one of the orders sought by him by way of judicial review, if leave was granted, is his reinstatement to a position in circumstances where he had been off contract since 1 August 2020, albeit permitted thereafter to continue his duties.
  10. On the failure of management of the Second Defendant to engage in a performance review of the Plaintiff in 2020, as required by Schedule 3 of his contract, the Plaintiff could have looked to the terms of his contract and pursued the remedies open to him in contract law. He did not do so.
  11. The fact that the Plaintiff, on expiration of his contract of employment, was permitted by his employer to remain on the payroll and continue his duties without a formal acting appointment, a circumstance that was unfortunate and possibly improper, if not legally incorrect (see Kiap v Kasper [2023] PGSC; SC2435 (Kiap) per Kandakasi DCJ at [8]), does not alter a determination on a leave application as to whether judicial review is properly available to the Plaintiff where the Plaintiff’s position and the securing of his employment was created by his contract of employment.
  12. Given the status of his employment arrangements as detailed above, the whole of the evidence does not suggest a “sufficient flavour of a public nature” (underlining mine) to justify the grant of leave for judicial review (Wedau v PNG Harbours Board [1995] PNGLR 357 per Kapi DCJ, Brown & Andrew JJ, cited with approval by Kandakasi DCJ in Kiap at [32])).
  13. In Kiap, following an analysis of relevant authorities, Kandakasi DCJ said at [35]:

The sum effect of the foregoing decisions of the Supreme and National Courts is clear. Where a person is employed in the public service or a public authority on a written contract, the terms of the contract determine whether the relationship is governed by public law or private law.


  1. I have thus concluded that the Plaintiff’s remedy lies in private, not public law. Given that finding, and given the critical importance of his standing to bring an action to judicially challenge a decision in a court of law, the Plaintiff’s application for leave should be refused.
  2. Even if, I am wrong in reaching that conclusion, the grant of leave is an exercise of judicial discretion. The Court is charged with a duty in its filtering jurisdiction to grant leave to only those cases deserving of judicial review. Taking into account the overall circumstances of the case, it is now over four (4) years since the Plaintiff’s contract of employment expired, his complaint at the time was one based on a failure on the part of his employer to conduct a a performance appraisal before the expiration of his contract in August 2020 as required by his contract. It was an appraisal that was to be undertaken six (6) monthly, on his case, one that did not take place. Whilst it is unfortunate that the Plaintiff’s employment status was not resolved at the appropriate time, the Plaintiff now seeks a form of relief at [4] of his Statement Pursuant to Order 16 r 3(2)(a) of the NCR which includes reinstatement and renewal of a long-expired contract. It is one that as the title to the contract suggests is ‘performance based’ with reference to non-exhaustive measurable performance targets and performance ratings computed at the end of a budgetary year (clauses 3.2 – 3.5 of the contract), an assessment that was to be undertaken under the management of the First Defendant’s predecessor, now retired.
  3. Judicial review is not an alternative to a cause of action at law. In my respectful view the Plaintiff’s relief lies elsewhere under another process in a different forum, not in judicial review.
  4. Having so determined it is not necessary to consider the other arguments advanced on behalf of Counsel for the State against the granting of leave.
  5. In my discretion I refuse the application for a grant of leave.

ORDERS


  1. I make the following orders:
    1. The application for leave for judicial review is refused.
    2. The Originating Summons filed 2 August 2024 is dismissed.
    1. The Plaintiff pay the Defendants party and party costs to be agreed or taxed.

Time to abridge.


Stout Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants

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