Chapau v Kingsley [2006] PGNC 224; N3073 (21 July 2006)

N3073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 85 OF 2006

MOLEAN CHAPAU
Plaintiff

AND:

HONORABLE ALOIS KINGSLEY, MP the then Minister for Fisheries
First Defendant

AND:

BAMAKE RUMBAM
Chairman of the National Fisheries Authority
Second Defendant

AND:

RIGHT HONORABLE SIR MICHAEL SOMARE
Prime Minister in his capacity as Chairman of the National Executive Council
Third Defendant

AND:

THE NATIONAL FISHERIES AUTHORITY
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Lay, J.
2006: 14 and 21 July

JUDICIAL REVIEW - particular decision - procedure to be followed - whether law correctly identified;
REGULATORY STATUTORY AUTHORITIES (APPOINTMENT TO CERTAIN OFFICES) ACT 2004-whether applicable to decision under review.

Cases Cited:

Papua New Guinea Cases

Kim Foon & Sons Pty Ltd v Minister for Finance and Planning N1464.
Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401.
Application of Demas Gigimat [1992} PNGLR 322.
Kekedo v Burns Philp (PNG) Ltd [1988-89] 122.

Overseas Cases

Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680.
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984} 3 All ER 935

Facts

The Plaintiff was appointed Managing Director of the Fourth Defendant pursuant to Gazettal on 9 September 2003 by the Governor General in accordance with s.16 of the Fisheries Management Act. Also by Gazettal by the Governor General on 30 April 2004 he was suspended from duty and continues to be suspended with no disciplinary proceedings commenced against him. The Plaintiff seeks a review of the decision to suspend him and contends that it is contrary to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and the terms of his employment contract.

Held

The procedures set out under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 are not applicable to the decision to suspend the Plaintiff because that Act was not in force at the time the decision was taken. The relevant procedures are contained in the Fisheries Management Act s.16 and the Interpretation Act s.36.

The draft contract of employment tendered to the Plaintiff and not signed by him could not be deemed the terms of a contract by conduct because pursuant to Fisheries Management Act s.18 it was mandatory that the Managing Director sign a contract and since the draft contract was made available to him the Plaintiff had not signed it. There was no evidence the Plaintiff had adopted its terms. Inference was that he had not adopted the contract.

The Plaintiff was validly suspended pursuant to the procedures applicable at the time. Pursuant to Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 s.15(2) the valid suspension continues until it is lifted or his term of appointment expires.

The decision to continue to suspend the Plaintiff and not to lay disciplinary charges are not fairly and clearly raised and challenged by the Statement in Support filed for the Plaintiff. He can not have relief in respect of matters not pleaded.

Counsel

I. Mambei, for the Plaintiff
T. Elemi, for the Second and Fourth Defendants
D. Lambu, for the Third and Sixth Defendants

21 July, 2006

1. LAY, J.: The Plaintiff seeks judicial review of the decision of the National Executive Council made on 16 April 2004 to suspend the Plaintiff from performing his duties as the Managing Director of the National Fisheries Authority, the Fourth Defendant.

2. The Plaintiff was appointed Managing Director of the National Fisheries Authority for a period of four (4) years by notice inserted in National Gazette No. G120 of 9 September 2003 pursuant to the powers of the Governor - General contained in s.16 of the Fisheries Management 1999.

3. On 19 April 2004, a letter on the letter head and under the hand of the First Defendant was sent to the Plaintiff which read in part:

"I am writing to advise you that the National Executive Council in its meeting on the 16 April 2004 suspended you with full pay from acting as the Managing Director of NFA following serious allegations of financial mismanagement, violation of Fisheries Management Act 1998, Financial Management Act, and serious insubordination to the Minister. The detailed charges will be sent to you shortly..."

4. Notice of suspension of the Plaintiff, dated 30 April 2006, was inserted in National Gazette No. G43 by the Acting Governor- General on 3 May 2004.

5. The Plaintiff has remained suspended on full pay and no charges have ever been served upon him.

6. The Plaintiff has never signed a contract of employment because he says the draft contract only became available on terms approved by the Salaries and Conditions Monitoring Committee and the Board of the Fourth Defendant in early April 2004, just before the Plaintiff travelled to Bali to attend a conference; and he was suspended during that trip.

7. The grounds on which the Plaintiff seeks relief are as follows:

"4.1 The Second Defendant failed to comply with s.8(1) and (2) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 in that it failed to conduct an investigation to establish grounds to warrant suspension.

4.2 The Second Defendant failed to comply with s.8(2) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 in that it failed to advise the First Defendant that there are insufficient grounds consistent with Clause 18 of the Plaintiff''s Contract of Employment to warrant suspension of the Plaintiff.

4.3 The First Defendant acted ultra viries pursuant to s8 (3) and (4) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 by issuing a Notice of Suspension in a letter dated 19 April 2004 and asked the Plaintiff to vacate the Office.

4.4 The Third Defendant acted ultra viries pursuant to s8(4) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 in suspending the Plaintiff on the 16th of April 2004 from performing his duties as the Managing Director of the National Fisheries Authority on full pay.

4.5 The First, Second and Third Defendant's actions or inactions in not complying with the process of suspension provided for in s8 of the Regulatory Statutory Authorities (Appointment Certain Offices) Act 2004-

4.5.1 have denied the Plaintiff the rights to Natural Justice as provided for in s59 of the Constitution of Papua New Guinea, in that the disciplinary procedures were not followed and that the Plaintiff was treated unfairly where there was no proper particularization of the allegations to which reasonable opportunity must be afforded to the Plaintiff to respond as per audi alteram partem rule.

4.5.2 the entire manner in which the Defendants went about dealing with the Plaintiff leaving him in suspense and dark was unreasonable under the Wednesbury Principle.

Submissions

1. The Plaintiff's submissions were in line with the grounds recited and in addition it was submitted that there existed between the Plaintiff and the Fourth Defendant a contract by conduct in the terms of the draft contract annexed to the Plaintiff''s affidavit.
   
2. The Defendants submitted that the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (" RSAACO") came into force on 12 August 2004, pursuant to a notice in the National Gazette of that date No. G92 after the suspension decision;
   
3. The date to ascertain the law applicable to the suspension of the Plaintiff is the date on which he was suspended and at that date the law was contained in the Fisheries Management Act and the Interpretation Act.
   
4. The Plaintiff was properly suspended in accordance with the provisions of the law applicable at that time and that suspension is validated by s15(2) of the RSAACO;
   
5. Ground 4.5.2 is not clear and cannot support the relief sought;
   
6. The Contract of Employment was not pleaded; an order should not be made based upon it.
   

Decision

8. There is no need to spend a great deal of time on the argument concerning the applicability of the RSAACOA. That Act was brought into force as submitted by the Defendants on 12 August 2004. The Plaintiff was suspended on 30 April 2004. That Act was not in force at the date of suspension of the Plaintiff and consequently it cannot be the law applicable to that suspension, apart from s.15 which, by its terms, is applicable to valid suspensions prior to the coming into force of the Act.

9. It follows that none of the grounds of review which are solely based on s.8 of the RSAACOA (grounds 4.1 to 4.4) can be sustained because that provision was not in force and was not applicable to the suspension of the Plaintiff.

10. The law applicable at the date of suspension, 30 April 2004, was the Fisheries Management Act s.16 which provided in respect of the appointment of the Managing Director that he:

"16(2)(a) Shall be appointed by the Head of State, acting on the advice of the National Executive Council, by notice in the National Gazette.

The Interpretation Act s.36 provides:

"(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to ss(2), to remove or suspend a person so appointed.

(2) The power provided for by ss(1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject."

11. Was the power provided by s.36 (1) "subject to any condition" within the meaning of Interpretation Act s.36 (2)? Annexed to the affidavit of the Plaintiff sworn on 9 February 2005 (annexure "J") is a draft unsigned contract of employment. The Plaintiff submitted that this draft contract was, by virtue of the conduct of the Defendants, the terms of the contract between the Plaintiff and the Fourth Defendant. I am unable to draw that inference of fact from the evidence. From the Plaintiff's evidence the draft contract was approved by the Board of the Fourth Defendant and available to the Plaintiff in early April 2004. The Plaintiff never signed and returned it. There is no evidence that the Plaintiff ever accepted those terms. The Fisheries Management Act s.18 provides:

"The Managing Director and every employee of the Authority shall be employed under a contract of employment which, in the case of the Managing Director, shall be executed by the Board on behalf of the Authority and by the Managing Director, and in the case of an employee, shall be executed by the Managing Director on behalf of the Authority and by the employee concerned.

12. There was a positive duty on the Plaintiff by the terms of the Act to execute the contract. The fact of his suspension did not prevent him from signing and returning the contract. Not having done so, the only inference that I can draw is that the Plaintiff did not accept its terms. That he was suspended does not seem to me to be any explanation for not signing and returning the contract.

13. It might well be that there is a contract by conduct between the parties based on the National Gazette notice of appointment for four years and the salary and allowances which the Plaintiff is being paid. But I am unable to infer that the form of draft contract which the Plaintiff has not signed contains the terms of that contract.

14. Whether or not the draft unsigned contract contained the terms of the contract between the Plaintiff and the Fourth Defendant is the only relevant issue with respect to whether or not there is a contract of employment. The draft unsigned contract contained clauses which might have had some bearing on the question of whether or not the original appointment was subject to a term or condition. As I have found that draft contract has not been adopted by the Plaintiff the relevant clauses can have no bearing on the matter.

15. I find that there is no relevant term or condition to which the original appointment was subject, other than the recited provisions of the Fisheries Management Act and the Interpretation Act. Those provisions have been complied with. It follows that it has not been shown that the suspension process was irregular.

16. The RSAACOA Section 15 (2) provides:

"(2)A chief executive officer or non ex officio member of the Board of a Regulatory Statutory Authority to which this Act applies who—

(a) was, before the coming into operation of this Act, validly suspended from office; and

(b) immediately before that coming into operation was so suspended from office,

shall, on that coming into operation, be deemed to be validly suspended from that office in accordance with this Act, and shall continue to be so suspended from office until the suspension is lifted or until he ceases to hold that office according to law, whichever first shall happen.

17. Pursuant to that provision the Plaintiff, having been validly suspended, continues to be validly suspended.

18. That leaves only ground 4.5 to be considered. On first reading this ground could also be dismissed on the basis that its foundation is the inapplicable Act. However the subparagraphs raise new issues:

1. That the Plaintiff was treated unfairly because there was no proper particularization of the allegations; and
   
2. Leaving the Plaintiff ""in the dark"" was contrary to the Wednesbury principles.
   

19. In regard to these matters the relief claimed is an order that the ""Defendants be restrained from proceeding with the disciplinary action against the Plaintiff on the basis of allegations that resulted in the Plaintiff''s suspension.""

20. On the hearing of a judicial review the Court is not necessarily concerned with the merits of the decision but with the decision making process.[1] Judicial review may be available where there is a lack of power, there is an error of law on the face of the record, there is a breach of the rules of natural justice, or in breach of the Wednesbury[2] principles a power is exercised in an unreasonable manner, or a decision is made which no reasonable tribunal could have reached.[3] This latter consideration is often referred to as ""Wednesbury unreasonableness"". The principle is summarized by Doherty J in Kim Foon & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) at as follows:-

(a) It must be a real exercise of the discretion;

(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;

(c) It must ignore irrelevant considerations.

(d) It must not operate on the basis of bad faith or dishonesty;

(e) It must direct itself properly in law; and

(f) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

21. On an application for judicial review the National Court Rules require that:

O16 r3(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported—

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

22. The Rule sets out the complete requirement for pleading in a judicial review application unless amendment is allowed at the hearing pursuant to O.16 r.6(2). It is therefore important that the statement sets out clearly and in a detailed way the matters required by the Rules, so that the parties and the court are not in any doubt as to (a) what is the decision which is challenged and (b) the grounds on which the decision is challenged. Relief cannot be obtained which is not sought in the pleading: Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401.

23. Can the decision being challenged be identified from ground 4.5.1 or ground 4.5.2? There is difficulty of interpretation with these grounds because the opening words of paragraph 4 .5 identify a decision relating to Section 8 (4) of the RSAACOA whereas in the particularization of procedures allegation contained in paragraph 4.5.1 particulars of irregularity are given (disciplinary procedures not followed, no proper particularization of the allegations, no opportunity to respond) and paragraph 4.5.2 which might relate to another decision, such as the decision not to proceed with disciplinary action or the decision to continue the suspension of the Plaintiff. But in my view these latter decisions are not fairly or clearly raised by the Statement in Support paragraph 4 .5.

24. Paragraph 4 .5 of the grounds identifies a process of suspension under an Act which did not apply to the decision to suspension. Subparagraphs 4.5.1 and 4.5.2 by themselves do not identify with sufficient clarity the decision which the Plaintiff seeks to have reviewed. The Statement in Support is a single document and I would be prepared to read all of its provisions together to properly construe the grounds. However I have found a reading of the entire document does not assist. The decisions in respect of which the relief is sought are clearly set out and confined to the initial decision to suspend and its promulgation. That decision was properly made. The pleading does not seek review of subsequent decisions. In those circumstances ground 4.5 cannot be sustained and the Plaintiff cannot have the relief sought.

25. The Plaintiff may have a legitimate grievance which would support interference by the Court in the administrative process. For the court to be able to assist, that grievance must be framed in terms of O.16 with clarity. The decision challenged must be identified precisely. The Defendants must have a proper opportunity to file evidence and make submissions relevant to the issues clearly and properly raised by the Statement in Support. The Court cannot take on the role of sorting out what the real issues are and of reframing the Plaintiff's claim.

26. The Plaintiff's application is dismissed. Costs follow the event.

Mambei Lawyers: Lawyers for the Plaintiff
Elemi Lawyers: Lawyers for the Second & Fourth Defendants
Solicitor General: Lawyers for the Third & Fifth Defendants

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^[1] Application of Demas Gigimat [1992} PNGLR 322 at 323 Woods J
^[2] Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680.
^[3] Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984} 3 All ER 935 at 953 per Roskill LJ; Kekedo v Burns Philp (PNG) Ltd [1988-89] 122 at 124 per Kapi DCJ