Nelson v Pruaitch [2004] PGNC 233; N2536 (14 April 2004)

N2536

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 756 OF 2003

Between:

DAVID S. NELSON
-Plaintiff-

And:

HON. PATRICK PRUAITCH, MP, MINISTER FOR FORESTS
-First Defendant-

And:

NATIONAL FOREST BOARD OF PNG FOREST AUTHORITY
-Second Defendant-

And:

NATIONAL EXECUTIVE COUNCIL
-Third Defendant-

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-

Waigani: Injia, DCJ
2004: April 2, 14

ADMINISTRATIVE LAW – Judicial Review – Application for leave for judicial review – Dismissal of head of Statutory Authority – Employed under Contract of Employment entered into under Statute – Dismissal under disciplinary procedures prescribed by Contract of Employment – Disciplinary procedures require fairness of process of dismissal – Appropriateness of procedure for challenging dismissal – Whether a matter of private contract law or public law – Public law – decision reviewable under judicial review procedure - Leave to apply for judicial review granted – National Court Rules O16 r3.

No cases cited in the judgement

Counsel:
A. Jerewai for the Plaintiff
B. Frizzel for the First Defendant
J. Naipen for the Second Defendant
R. Pato for the Third and Fourth Defendant

14 April 2004

INJIA, DCJ.: The Plaintiff applies for leave to apply for judicial review of his dismissal by the First and Third Defendants as the Managing Director of the Second Defendant. The application is made under Order 16 of the National Court Rules. There is no issue taken of the Applicant’s compliance with the pre-application requirements of Order 16 r 3 of the National Court Rules, i.e, filing and service of application on Secretary of Justice, filing of Statement In Support and Affidavit verifying Statement In Support and giving of notice under S.5 of the Claims By and Against the State Act. The application however is contested on other grounds which I will come to later in my short ruling.

All parties filed written submissions upon my request on this issue and other issues to be argued depending on the outcome of the leave application. The submissions are extensive and cover my issues in detail, they are of assistance to me and I have read them. I am also assisted by oral submissions put to me by counsel representing all the parties.

The grant of leave is discretionary. An Applicant for leave must show four (4) requirements: (1) he has locus standi or sufficient interest in the matter subject of review, (2) that other statutory or administrative avenues have been exhausted, (3) that the application is brought without delay, and (4) he has an arguable case. It seems to me there is no real issue taken of the first, second and third requirements being met in the circumstances of the present case. The Applicant is aggrieved by the decision of the Defendants to terminate his employment. He filed this application promptly after being terminated. That under the Terms and Conditions of the Employment Contract under which he is employed, termination is the final decision and there is no other statutory avenue for appeal or review of that decision. As to whether the Applicant has an arguable case is to some extent taken issue of in the context of the appropriateness of the mode of commencement of the proceedings.

The Defendants contend that on the grounds pleaded in the Statement in Support, the relief of certiorari in judicial review is not available to the Plaintiff for two reasons, namely:

1. The decision subject of review is a matter of private contract; the Plaintiff’s relief is in a common law action for damages for breach of contract of employment. Whilst the Minister’s power to appoint and terminate the Plaintiff is governed by Statute (Forestry Act), their relationship is governed by private Contract. When the Minister acts under the Contract, he is not exercising a public power. Various cases are cited in support of this proposition.
   
2. Insofar as those grounds relating to breach of Sevua J’s previous orders as affirmed by the Supreme Court Order on appeal is conceded including some aspects of bias, the Plaintiff should institute Contempt proceedings against the Minister and the NEC in respect of those grounds which say the Defendants laid the same charges as those dealt with by Sevua, J.
   

It has been long held in this jurisdiction that breach of established disciplinary procedures which incorporate principles of natural justice for dealing with misconduct of public officers, laid down by Statute or sub-ordinate legislation, regulations or by-laws made under a statute, is a proper ground for judicial review. Certiorari is available to quash the decision of a disciplinary authority. It has not been authoritatively determined however, whether in the absence of statutory provision prescribing disciplinary procedures, the disciplinary procedures prescribed in a written contract of employment, between the State and a public official pursuant to an Act of Parliament, may also be proper ground for judicial review.

In the present case, the relevant provision is Clause 27.1 of the Terms and Conditions of Employment of the Managing Director of the National Forest Authority, which I believe is a standard contract for Departmental Heads, which is part of the Contract of Employment, entered into under S.3 of the Forestry Act. Clause 27 provides:

"27. DISCIPLINARY PROCEDURES

27.1 Serious disciplinary matters pursuant to Section 18 hereunder, allegedly involving the Managing Director shall be resolved through the following procedure:-

Where the Managing Director is alleged to have committed a serious offence under Section 18, the Minister shall suspend the Managing Director on full pay, and the Minister shall formally charge the Managing Director in writing with the offence allegedly committed and enable the Managing Director to reply to such charges prior to submitting a report to the National Executive Council.

(a) The Managing Director shall formally respond to the charge in writing to the Minister within 7 days of the charge being laid and the Minister shall consult the Minister for Public Services prior to advising the National Executive Council.

(b) The Council shall upon receiving a report and any other relevant evidence, shall determine whether or not the Contract should be terminated.

(c) The decision of the National Executive Council shall be final, and the terminated Managing Director may seek redress through the Papua New Guinea Courts of Law in the event that he/she considers the termination to have been made unfairly."

There is no contest that this provision is a "natural justice" provision. But the Defendants submit that those procedures were followed in the present case. Any complaints about unfairness of the termination should be pursued in the Courts, by way of an action for damages for breach of contract or by way of contempt proceedings and not by way of judicial review. The Plaintiff contends clause 27.1(d) is broad enough to permit him to seek "redress" either by action for damages or by way of judicial review. He submits the grounds of review which include breach of Sevua, J’s order, error of law, perceived bias and malice are part of principles of natural justice or "fairness" adopted in Clause 27.1, and the Plaintiff should be granted leave as a matter of course, to challenge the decision by way of judicial review. He submits the Minister and NEC’s exercise of statutory powers is a proper matter for judicial review.

In my view, when a statute or Contract of Employment entered into under a statute, prescribes disciplinary procedures designed to ensure fair play or fairness or to put it in another term, to ensure compliance with principles of natural justice, then any exercise of disciplinary power, as provided under the Contract of Employment, is a proper matter for judicial review. Such a Contract of Employment is a public Contract of Employment for service. I use the term "public Contract of Employment" to connote the exercise of statutory power on the part of an authority of the State, to enter into a contract of employment for service with a person, for that person to discharge public functions prescribed under Statute. Upon his engagement under the Contract, he becomes a public official.

The Plaintiff in this case fits into that definition of a public official. He should not be precluded from seeking judicial review by the mere existence of what may be inaccurately described as "private" Contract of Employment when that very Contract of Employment is a public contract and it incorporates principles of natural justice through it disciplinary procedures. Clause 27.1(d) of the Terms and Conditions imposes a duty on the NEC, to act fairly in terminating the public officer’s Contract of Employment and confers almost a right on the person terminated to seek redress in the Courts "in the event that he/she considers the termination to have been made unfairly". The unfairness of course would relate to alleged breach of the procedures prescribed for laying charges, service of charges and reply under Clause 27.1(a) – (b) or the actual determination of the charges and the termination decision under Clause 27.(1)(c).

The terms "unfairness" in Clause 27.1(d) is a broad phrase which encompasses a wide range of situations, depending on the circumstances of each case. Matters of errors of law, breach of Court orders, bias and malice are also embodied in the principle of "unfairness". If such decision is made in breach of previous Court orders, then whilst such breach no doubt gives rise to an action for contempt, it may also be a proper ground for judicial review, under the principle of "unfairness" in Clause 27.1(d).

In the present case, all these issues are raised in the grounds in support of the application for leave set out in the Statement In Support. In my view, they are arguable grounds for which leave to review should be given as a matter of course, as submitted by Mr. Jerewai.

As to the relief sought, declaratory orders to follow by re-instatement and even damages are remedies available to a plaintiff under Order 16. Such relief may or may not be available on proceedings for contempt. Re-instatement by way of specific performance of contract of employment and damages of course may be reliefs sought by the Plaintiff in an action for breach of contract but they are also available under judicial review.

Why then, I ask, should the Plaintiff be turned away from seeking judicial review, if all these relief are equally available to him under judicial review, told to go and institute another round of actions for breach of Contract and/or contempt of Court. And if say he were successful in contempt proceedings, why would he institute another set of proceedings seeking re-instatement and/or damages? Judicial review, it is clear to me, is the most convenient, and perhaps the quickest, less costly and most appropriate proceedings for a public official occupying a statutory office, who is aggrieved by a disciplinary action to seek redress.

Judicial review is all about fairness of the process by which the decision is arrived at and not the decision itself. In the present case, the fairness of the procedure for termination is under serious challenge in the proposed grounds of review and they should proceed to a full hearing.

For these reasons, I grant leave for judicial review. Costs shall be costs in the judicial review.
____________________________________________________________________
Lawyer for the Plaintiff : Jerewai Lawyers
Lawyer for the First Defendant : Melanesian Legal Group
Lawyer for the Second Defendant : Warner Shand Lawyers
Lawyer for the Third & Fourth Defendants : Posman Kua & Aisi