Supro v Aopi [1997] PGNC 215; [1997] PNGLR 353 (17 November 1997)

[1997] PNGLR 353

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LUKE BENJAMIN SUPRO

V

GEREA AOPI; and
TELIKOM PNG LIMITED

WAIGANI: WOODS J
10, 17 November 1997

Facts

The plaintiff/applicant was employed as Executive Manager Human Resources Services by the second defendant. The first defendant subsequently terminated his appointment. On his application seeking leave for judicial review:

Held

1. Judicial review is available where a public body is relying on and taking a decision on power conferred by statute or subordinate legislation.
   
2. There is neither a statutory duty nor statutory protection in the circumstances of this case. The matter is a private law matter.
   
3. Leave refused.
   

Papua New Guinea cases cited

Ragi v The State Services & Statutory Authorities Superannuation Board (Unreported) (1994) SC459.

Sulaiman v PNG Unitech [1987] SPLR 267.

Other case cited

R v Berkshire Health Authority ex p Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425.

Counsels

R Nonggorr, for the applicant.

17 November 1997

WOODS J. The plaintiff is seeking leave for judicial review of the decision by the defendant to terminate his employment with Telikom PNG Limited. Up until the 21st February 1997, the plaintiff had been employed in the position of Executive Manager Human Resources Services with the second defendant. He was terminated as at the 21st February.

As a general rule, judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made for statute or subordinate legislation. Judicial review is a remedy where the action of a public authority is to be challenged.

In R v Berkshire Health Authority ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425 at 429, "the remedy of judicial review is only available where issues of ‘public law’ are involved."

So what is public law as against private law? Private law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally. Public law prima facie is the law, which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty, this would be where as stated above, the public authority is acting under a statute or subordinate legislation.

The plaintiff here is claiming that his termination from employment is a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with its own employees. There is no statutory duty here; there is no statutory protection, which makes this a matter of public law. This is purely a matter of the relationship between a master and a servant. Whilst the master here is a company created by statute, the Telikom PNG Limited Act 1996 over which the Government may have some overriding control as the company has general community service obligations and general governmental obligations, it is still only a company registered under the Companies Act Chapter 146.

The above statements of the difference between private and public law were considered by the Supreme Court in the case Ragi v The State Services & Statutory Authorities Superannuation Board (Unreported 1994 SC459).

And see the case 1987 of Sulaiman v PNG Unitech [1987] SPLR 267 where it was clearly stated:

"The right to seek judicial review has been granted where an injustice has been done and there is no other remedy. For example where a decision by a tribunal or public authority is final and the applicant has and will suffer some damage. However in this case the applicant if he has suffered some wrong clearly has some other remedy. He has a remedy to sue for damages for wrongful dismissal under his terms and conditions of employment". And further: "The law is well settled. The Court will not grant specific performance of a contract of employment".

I find that this is not a matter of public law for which judicial review is an appropriate remedy. I refuse the application for leave.

The application is dismissed.

Lawyers for the applicant: Warner Shand Lawyers.