Pain v Saleu [2011] PGNC 253; N4497 (5 August 2011)

N4497

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 67 OF 2010

BETWEEN:

MOSES PAIN
Plaintiff

AND:

HELEN SALEU as the INDUSTRIAL REGISTRAR
First Defendant

AND:

DEPARTMENT OF INDUSTRIAL RELATIONS
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson, AJ
2011: 5 August

JUDICIAL REVIEW - Leave to proceed by way of judicial review – Industrial Organisations Act – Police Association Constitution – powers of Industrial Registrar- powers ofstrial Organisatiisations Inspector

JUDICIAL REVIEW - Plaintiff elected to office in Police Association – Association Executive suspended by Industrial Registra211; decision by Registrar trar not to allow Plaintiff to assume office – application by Plaintiff for Leave to Proceed by way of Judicial Review of Registrar's decision – interpretation of Police Association Constitution – interpretation of Industrial Organisations Act – powers of Industrial Relations Inspector – factors relevant to grant of Leave – futility of damages claim – Leave granted.

Cases Cited:

Makeng v. Timbers (PNG) Ltd (2008) N3317
Asakusa v. National Housing Corporation & Ors (2008) N3303

Counsel:
Mr. M. Pain in person
No appearance for the First, Second & Third Defendants

DECISION
5 August, 2011

1. THOMPSON AJ: The objective of the requirement of an application for leave to proceed by way of judicial review, is to provide the Court with the opportunity to screen and only allow cases that merit judicial review. This is to safeguard against the Court being flooded with unmeritorious cases. The process ensures that persons with misguided or trivial complaints of administrative error, do not waste the Court's time.

2. In this case, the Plaintiff is seeking leave to proceed by way of judicial review against the decision of the First Defendant made on 20 November 2009. No copy of the decision has been provided. He says that it was a verbal decision, and he refers to it in his Statement as a "decision to side line me". Obviously a decision which is only described in this way, can not be the subject of judicial review. After being given the opportunity to identify it more specifically, the Plaintiff has said that it was the First Defendant's decision on 20 November 2009 whereby she refused to allow him to exercise the powers of President.

3. Following the cases such as Makeng v. Timbers (PNG) Ltd (2008) N3317 and Asakusa v. National Housing Corporation & Ors (2008) N3303, the Plaintiff is obliged to set out his Grounds clearly and concisely, identifying the statute or common law which is alleged to have been breached, by reference to a recognized ground of judicial review. In this case, the Plaintiff is saying that he was a member of the Executive of the Police Association, the Executive was suspended by the First Defendant in April 2009, and then the suspension was lifted in November 2009. He says that he held the position of Senior Vice President, and that as the President was absent at that time (by virtue of either being terminated or having resigned), then pursuant to Rule 12 of the Constitution of the Police Association, he was entitled to exercise the powers of President. He says that the First Defendant prevented him from exercising that power and that her decision was unreasonable and ultra vires her powers under the Act. He therefore wishes that decision to be set aside. The Plaintiff obtained an injunction from the Court in other proceedings on OS 67 of 2009, restraining the general elections from being held, pending this application.

4. I have considered the provisions of the Industrial Organisations Act and the Constitution of the Police Association. The Act gives the First Defendant the power to control Industrial Organisations which apparently include the Police Association. The First Defendant has the powers of an Inspector, and is entitled to inspect all the Organisation's books and records, conduct an investigation and make a report in relation to compliance with the requirements of the Act. The Act does not specify to whom the report shall be made, and so the assumption is that it can be made to relevant persons.

5. Section 39(4) of the Act gives the First Defendant the power to order the removal from office of the Secretary or Treasurer of an organization. It is likely that by necessary implication, the First Defendant has not been given the power to order the removal of the senior vice president or other executive member of an organization.

6. Section 50 says that on complaint by the First Defendant or by any member of an organization, the Court can make orders for the observance of any of the rules of the organization. Accordingly, if the First Defendant finds after an investigation that the rules of the organization have not been observed, she can apply to the Court for the appropriate orders. For instance, Section 55(2) says that on application by the First Defendant or any member, the Court can grant an injunction restraining unauthorized expenditure of the organization's funds.

7. Section 17 says that a person aggrieved by a decision of the Registrar may appeal to the National Court within 30 days.

8. On the face of it, there is nothing in the Act which gives the First Defendant the power to suspend or terminate the members of the executive of an organization (apart from the Secretary or Treasurer). However, the Plaintiff is not challenging the suspension. Instead, he is challenging the First Defendant's decision not to allow him to exercise the powers of president, which decision is referred to by the First Defendant in her Affidavit of 5 July 2011 in which she gives her reasons for making the decision.

9. There is no specific provision in the Act which gives the 1st Defendant the power to object to the implementation of an organization's rules relating to the exercise of powers in the absence of the President. The fact that the Act specifically empowers the First Defendant to remove two types of office holders, is likely to mean that the First Defendant does not have the power to remove other types of office holders. I do not accept the Defendant's submission that such a power is conferred by Sections 1, 3, 4, 5 or 57-60, as these Sections do not refer to this power at all.
If the First Defendant did not have power to do so, what is the result?
10. Under Section 48 of the Act, the rules of the organization must provide for the matters specified in the Schedule, and can not be altered in any other way. An exception is made in relation to the election of officers. The schedule and ancillary provisions in the Act provide that officers can only hold office for 12 months, and that election of officers must be held annually. The exception is that, with the approval of the First Defendant, the rules may provide that election of officers takes place every two years rather than annually. Section 48(3) says that the rule of an organization shall not be contrary to the Act.

11. The constitution of the Police Association provides that members of the executive are officers whose election is held every 3 years. On the face of it, this rule appears to be contrary to the Act, and therefore in-valid.

12. The Plaintiff has not provided any evidence of the actual date on which he says that he was appointed Senior Vice President. It may have been in 2008 or 2009. Unless there is evidence that the First Defendant had approved the election of officers every two years, then he could only have held the position of Senior Vice President for one year. Accordingly, his term of office is likely to have expired in 2010 at the latest.

13. Further, Rule 12 of the constitution provides that if the President is absent, the Senior Vice President may exercise the powers of President until the next general election. At the latest, that would have been in 12 months time, but was likely to have been much earlier.

14. This means that if the Plaintiff had been allowed to exercise the powers of President in 2009, he could only have held that position until the next election in 2010. It is now 2011. The Court is unable to go back in time and order that the Plaintiff be allowed to assume the office of President in 2009.

15. On an application for leave, the Court is not required to consider the merits of the case in detail – only sufficiently to determine if the Plaintiff has an arguable case. As the Plaintiff is a litigant in person, the Court has spent more time than usual in considering this issue.

16. I find that the Plaintiff has standing to bring this application, as he is directly affected by the 1st Defendant's decision.

17. I find that there has been no delay in bringing the application, which was filed within four months of the decision.

18. In relation to alternative remedies, the Act does provide an alternative, which the Plaintiff did not use. Under Section 17 of the Act, he was entitled to appeal to the National Court within 30 days of the decision. Instead, he applied for judicial review in the National Court, after 30 days. In view of the fact that the decision was not in writing, and that an appeal to the National Court would not be significantly different from a judicial review in the National Court, and as the appeal is no longer available, I am prepared to accept that there are no alternative remedies now available.

19. I find that the Plaintiff has an arguable case on the question of whether or not the First Defendant had the power to refuse to allow him to exercise his right under Rule 12 of the Police Association Constitution to exercise the powers of the President.

20. The Grant of leave is nevertheless discretionary. The Plaintiff has satisfied the minimum requirements. But would there be any purpose served by granting leave to review the decision?

21. The Plaintiff is seeking to quash the First Defendant's decision, and to be reinstated as acting President from the date of that decision, together with payment of lost entitlements, and damages. By reason of the passage of time, the Court is no longer able to order the Plaintiff to be allowed to exercise the powers of President from the date of the decision in 2009. Is there therefore any point in quashing the decision?

22. The Plaintiff says that there is, because he and the other members are entitled to know whether or not the First Defendant's decision was valid. That is not an unreasonable request. The passage of time has not been caused by the Plaintiff. He made his application for leave in June 2010, but a decision was not delivered. I consider that it would be reasonable for the Court to make a declaration that the First Defendant did or did not have the power to make the decision, as this would then provide certainty to the Plaintiff, the First Defendant and to the members of the Association.

23. However, I consider it would not be reasonable for the Courbe asked to determine eine entitlements and benefits which have not been pleaded with sufficient particularity. I had earlier indicated that the Defendant would be able to request particulars, but after considering the requirements for specific pleading laid down in Makeng & Asakusa's cases, I find that these Ground had been insufficiently pleaded.

24. I therefore grant leave to the Plaintiff to proceed by way of judicial review of the decision of the First Defendant made on 20 November 2009 whereby she refused to allow the Plaintiff to exercise the powers of President following the absence of the President.

25. However, as I have indicated, if the First Defendant did not have that power, then the only result would be that the Plaintiff could have acted as President until the next general election. That election should have been held in 2010. It is now 2011. The Court is unable to order the Plaintiff to act in that position of President until the general election which should have been held in 2010.

26. In the circumstances, there is no purpose to be served by continuing the injunction which restrains the election from being held. I therefore discharge the injunction obtained by the Plaintiff in other proceedings on OS 67 of 2009 which restrained the general election from being held.

27. The plain purpose of the Constitution of the Police Association is to enable members to vote for the election of officer on a regular basis. The election process should therefore take place as soon as possible. If the Plaintiff wishes to stand, and is qualified to do so, then he may then stand for election. The general election process shall proceed in accordance with the requirements of the Police Association Constitution and the Industrial Relations Act.

28. In summary:

(a) Leave to proceed by way of judicial review of the 1st Defendant's decision of 20 November 2009 whereby she refused to allow the Plaintiff to exercise the powers of President following the absence of the President, is granted.

(b) The injunction obtained in OS 67 of 2009 restraining the general elections of the Police Association from being held, is discharged forthwith.

(c) The general election process of the Police Association shall proceed in accordance with the requirements of the Police Association Constitution and the Industrial Relations Act.

(d) The Plaintiff is to serve all the documents including this order and the Notice of Motion for the substantive review, on the Defendants.

(e) The matter is to return to Court on 15 August 2011 for directions.

(f) The costs will be costs in the cause.

29. I urge the parties to consider a possible settlement of the substantive application for a Declaration on the validity of the First Defendant's decision, to try and avoid further delay and expense.

_________________________________________________________

Mr. M. Pain in person