Kalaivi v Arua [1999] PGNC 90; N1922 (15 October 1999)

Unreported National Court Decisions

N1922

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 168 OF 1999
BETWEEN : ټ#1AWRELCE KALAIVI, JVI, JOHN HEVIE, YONDI ANDALE, PETRUS UANDI, GILBERT SEMEN & GEOFFREY WAFFI
PLAINTIFFS
AND: SIMON ARUA - SUPERINTENDENT SALD- DEPARTMENT OF EDUCATION
FIRST DANTSECOND DEFENDANT
AND : THE INDEPENDENT STATE OF APUA NEW GUINEA
THIRD DEFENDANT

Waigani

Sevua Jtober

>ADMINISTRATIVE LAW – Judicial review &#8w – 211; AppliApplicatiocation forn for leave – Plaintiffs not exhausted administrative procedures – Right of appeal provided in Teaching Service Act – Plaintiffs not appealed to Teaching Service Commission – Application for leave misconceived – Teaching service Act, s.13

Cases Cited

The State -v- Phillip Kapal [1987] PNGLR 417

Kekedo -v- Burns Philp & Ors [1988-89) PNGLR 122

Where plaintiffs sought leave to apply for judicial review but had not exhausted their right of appeal under the Teaching Service Act:

Held

1. &##160; Judicial review jurw jurisdiction will not be exercised where other remedies available have not been used.

2. &##160; The plaintiffs had had failed to exhahe adtratiocedures unds under s.er s.13 of13 of the Teaching Service Act (right of appeal) therefore they cannot come to this Court until that proceis exed.3. < &160;&#160 e; Thre noptxceptional onal circumstances warranting the Court to exercise its judiciaiew jurisdiction without the plaintiffs exhausting their right of appeal to the Teaching Seng Service Commission.

4. ; T60 appeication is misconisconceived and without merit.

Counsel

L. Manua for Plaintiffs

F. Alua foup>st> &amsup>np> Dents

L. Keria for 3^rd Defendant

1ht">15 October 1999

SEVUA J: This is an application for leave for judicial review.

The plaintiffs were all teachers at Passam National High School, near Wewak. Sometime in January this year, they were verbally advised that they were either displaced or terminated and they should vacate their school accommodation and move out of the campus. It appears that one of the reasons for that decision was drunkeness. However, no written communication were given to the plaintiffs.

The plaintiffs claimed they were either displaced or terminated and this is unjustifiable, harsh and oppressive. They have therefore come to this Court to seek a review of the first defendant’s decision.

From the evidence before me and the manner in which the plaintiffs and their counsel have addressed this Court, it seems that the action is so bad that the plaintiffs are not able to regain employment as teachers at the same school or anywhere else. Their evidence in support of this application seems to point that way. The statement in support of their application seems to portray a very bad situation where they have been unfairly dismissed and disadvantaged.

However, in reality, that is not the case. The defendants have filed an affidavit sworn by one Papua Kuriki on 12^th May, 1999 that all the plaintiffs, except John Hevie, have been relocated to other educational institutions in the country.

I am satisfied that the plaintiffs have sufficient interest in this case and have come to seek redress in this Court by filing this application within the time required by Order 16 Rule 3(5). That is to say, I am satisfied there has been no delay. Those are two of the four fundamental legal principles relevant in the exercise of the Court’s discretion to grant or refuse leave.

However, in my view, the remaining two principles do not favour the plaintiffs. Firstly, the plaintiffs have come to this Court without first exhausting administrative remedies. Both Mr Alua and Mr Keria have correctly pointed to the plaintiffs failure in complying with s.13 of the Teaching Services Commission Act. Whilst the plaintiffs have the right to seek redress in this Court, it is trite law that they must first exhaust all other administrative avenues available before they invoke the discretionary power of this Court.

The Teaching Service Act, Ch 71, is a law that is expressed in the following manner.

“Being an Act to make provisions for-

(a) ;ټ the Teae Teaching hing Service Commission; and

(b) &##160; the tere terms and tondi oons of service of members of the Teaching Service; and

(c) ҈&&#160er matt matters rers relating to the employment and welfare of teachers, and for related pued purposes.”

Section 2 of the Act estaes the Teaching Service Commission, whose functions are set out in s.9. I draw attention toon to s.9(b) and (e) especially because they are relevant to the defendants’ arguments.

“(b) to ensurt decisions of othf other authorities under this Act or the Education Act do not infringe or abrogate the rights or the conditions of service of members, and whhose s or tions are infringed or abrogated-

(i)p>(i)&#160 ټ t60; to give such directians; and

(ii) ـ&#1o take take such such other actions within its power under this Act or any other law as may be necessarcorree sitn; and

e)҈ t60; to deto ditermppeals eals as provided for by thiy this acts act; and”

The plaintiffs have not disputed that they are not subject to this Act. The point I make here is that they are subject to the provision of this Act. They have the right to appeal against the first defendant’s decision to the Teaching Service Commission, which is the appellate body under s.9(e). The plaintiffs’ appeal is provided by s.13(1).

Section 13 provides as follows:

“(1) Where-

(a) ټ&#a membemember of t of the Teaching Service is aggrieved by a decision or action of an education authority (other than the Commission) on the ground that it was unfair or unreasonable;

the member may appeal to the Commission against the decision or action.”

The plaintiffs have the right to appeal to the Commission, because it is obvious to me they have bitterly opposed the decision of the first defendant and said it was unfair and unreasonable. However, they have not exercised their right of appeal. Instead they have come to this Court to seek redress. This is an abuse of process, in my view, because the law gives them the right of appeal to an administrative body, and they have not exercised that right. Simply, the plaintiffs have not adhered to the principle of exhaustion of administrative remedies.

Mr Manua’s arguments on the plaintiff’s right of appeal, ie, that the right in s.13 is not mandatory, but discretionary because of the use of the word, “may” is not only illogical and contrary to common sense, but preposterous and misconceived. The law cannot force upon a party a right to appeal if he does not desire, that is why appeal provisions in legislations like ss 22 and 24 of the Supreme Court Act; s.219(1) of District Courts Act; Order 16 Rule 11, National Court Rules, and many other appeal provisions in other legislations do not impose a mandatory right of appeal. It is a matter of personal judgment for a person or a legal entity if he or it desires to appeal against a decision of an administrative authority or a Court. The right of appeal cannot be forced upon someone by operation of law as implied by counsel for the plaintiffs. His argument just does not make sense as I have not found any law which imposes a mandatory right of appeal to an aggrieved party.

The law has been settled in this jurisdiction. In the Independent State of Papua New Guinea -v- Phillip Kapal [1987] PNGLR 417, Kidu, CJ and Woods, J said at 421:

“Use of the fundamental rules in relation to judicial review is the question as to whether the application for judicial review has exhausted other remedies, provided by law, eg, statutory provisions for appeal. Secondly, it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used.”

I therefore, consider that the judicial review jurisdiction of this Court will not be exercised where the right of appeal procedures has not been exhausted.

That principle of law was adopted and applied in Kekedo –v- Burns Phillip (PNG) Ltd & Ors [1988-89] PNGLR 122, at 124 where the Supreme Court held:

“2. & Save inve in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where otherdies vaila/p> <#160; #160;
h0; Wr the stheutortutory procedurcedure woue would beld be quicker, or slower than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body are amongst the matters which a Court may take into account when considering the exercise of discretion. The fact that judicial review is quicker and more convenient is of itself not sufficient ground for the exercise of jurisdiction.

Counsel for the plaintiffs submitted that the plaintiffs have appealed to the National Education Board and Provincial Education Board pursuant to s.84(5) of the Act. This procedure is irrelevant. The plaintiffs have not been charged with any offence therefore they could not purport to appeal under Division 2 and 3 which deal with disciplinary offences. I think there is a degree of misunderstanding in the whole case. The plaintiffs were not disciplined under ss 83 or 84 of the Act. They were not charged with any disciplinary offence under these provisions, therefore they could not correctly say they had appealed under ss 84 and 85.

I consider that the appropriate provision of the Act which the plaintiffs should have had recourse to is s.13, which gives them the right to appeal to the Commission. They proceeded upon a wrong assumption that they had been disciplined. There is no evidence at all that they were disciplined. Their respective positions at Passam National High School did not give them the licence to remain there forever. Of course, their engagement as teachers is subject to the overall administrative decision of higher education authorities.

I therefore find that the plaintiffs had failed to exhaust the administrative procedures available under s.13 and therefore they cannot come to this Court until that procedure is exhausted. Their application is therefore premature and, procedurally, conceptually and substantially wrong.

I can see no basis for an arguable case here. Whilst it may seem that the verbal advice by Mr Mowana in relation to the plaintiffs’ displacement or termination would have no doubt come as a shock to them, there is no evidence that they were terminated for disciplinary reasons. They therefore cannot correctly argue that they were not given opportunity to present their case. What the plaintiffs failed to appreciate, in my view, is that the displacement of teachers at one institution for purpose of relocation to another institution or province is an intergral part of the overall administration of the education system in this country, which responsibility is vested on the first and second defendants.

Every teacher, lawyer, doctor, or public servant for that matter has to be relocated to another institution or province during his public career at one time or another, no matter how well his public and private life has been entrenched in a particular culture or society in the country. Serving the country in a public service career is a sacrifice one makes when he joins the public service. It does not mean one cannot be transferred or relocated to another institution or province. Transfers and relocations are an intergral part of the whole public service regime we have so that, in the case of the plaintiffs in this case, they can claim no licence or right to remain at Passam National High School for life.

I find therefore that the plaintiffs have not exhausted their right of appeal to the Teaching Commission pursuant to s.13 of the Teaching Service Commission Act, therefore they have no right to come to this Court to seek review at this stage. They must exhaust that administrative procedure before they can invoke the Court’s discretion in its judicial review jurisdiction. I find no exceptional circumstances warranting this Court’s exercise of its judicial review jurisdiction as the plaintiffs had not exercised their right of appeal to the Teaching Service Commission.

Accordingly, the plaintiffs’ application is misconceived and without any merit. I order that the application for leave be dismissed and the plaintiffs pay the defendants’ costs.

Lawyer for Plaintiffs: Harricknen Lawyers

Lawyer for 1s & 2^nd Defendants: Patterson Lawyers

Lawyer for 3^rd Defendant: Acting Solicitor General