N4892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 652 OF 2012

BETWEEN

ALBERT SCHRAM AS VICE CHANCELLOR
OF THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
First Plaintiff

AND

PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Second Plaintiff

AND

PHILLIP STAGG AS CHANCELLOR
OF THE PAPUA NEW GUINEA UNIVERSWITY OF TECHNOLOGY
First Defendant

AND

RALPH SAULEP AS PRO CHANCELLOR
OF THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Second Defendant

AND

HONOURABLE DAVID ARORE AS MINISTER
FOR HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
Third Defendant

AND

COMMISSION FOR HIGHER EDUCATION
Fourth Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Lae: Batari, J
2012: 6 December

JUDICIAL REVIEW – leave – application for leave to review act of defendants in issuing notice of special meeting of University Council - ex parte nature of – defendants right to be heard at leave stage – whether party other than Secretary for Justice be heard at leave stage.

JUDICIAL REVIEW – leave – grounds for judicial review – form of – whether grounds properly pleaded – whether grounds based on statute or common law duties – standing - issue of proper joinder of parties - notice of meeting – whether reviewable - power to call meeting of University Counsel - arguable case – whether defect in notice arguable under the University Act. 

JUDICIAL REVIEW – leave – arguable case – "on a further consideration" – extent of – whether materials before the court warrants leave on a quick perusal – leave refused on a further consideration principle . 

Facts

The First Plaintiff sought to judicially review the act of the Second Defendant, to call a meeting of the Second Plaintiff, on the basis, that the Second Defendant was without power and his notice of meeting was ultra virus the University of Technology Act.

Held

1. The University of Technology Act 1986 Section 47 provides that no act of any authority or committee or any person shall be invalidated by reason of a defect in the convening of a meeting;

2. Consequently the act of the Second Defendant in issuing the notice to convene a meeting of the Council cannot be invalidated;

3. While applications for leave are made ex parte, apart from notice to the State where relevant, the Court may call upon the parties or allow the parties to make submissions, on questions of law only, where that would assist the Court;

4. Application for leave refused.

Cases Cited
Papua New Guinea Cases

Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22.
Ila Geno & Ors v The Independent State of PNG [1993] PNGLR 22
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Kekedo v Burns Philp [1988-89] PNGLR122
NTN v Board of the Post and Telecommunications Corporation [1987] PNGLR 70
Paul Asakasa v Andrew Kumbakor, Minister of Housing & 3 Ors (2008) N3303
Thomas Kamo v Commissioner of Police (2001) N2084
Tiga Nalu v Commissioner of Police (1999) N1972

Overseas Cases

Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644

Counsel

S. Bluett, for the Plaintiff/Applicants
A. Manase, for the First & Second Defendants/Respondents

6 December, 2012

1.	BATARI, J: This is an application for leave to seek a judicial review of a decision of the Second Defendant, Ralph Saulep as Pro-Chancellor of the Papua New Guinea University of Technology (the University) to convene a Special Council Meeting (the proposed meeting) of the University Council.

2.	When the matter first came before me on Friday 22 November, the first and second defendants had filed appearances to be heard on the leave application. They also filed a separate Notice of Motion seeking inter alia, orders that:

(a)	The Second Plaintiff be removed as one of the Plaintiffs and be named as a Third Defendant pursuant to Order 5, Rule 9 (a) of the National Court Rules.

(b)	The Third, Fourth and Fifth Defendants be removed as parties to these proceedings pursuant to Order 5, Rule 9 (a) of the National Court Rules.

(c)	The interim restraining orders of 7th November 2012 obtained by the Plaintiffs against the Defendants be set aside on the basis that the said Order was granted contrary to Order 16 Rule 3(8) of the National Court Rules and the principles established by the Court in the case of Peter Makeng v Timbers (PNG) Limited (2008) N3317.

(d)	The entire proceedings be dismissed pursuant to Order 12 Rule 40 of the National Court Rules for failing to disclose a reasonable cause of action, or is frivolous and vexatious and an abuse of process.

(e)	The First Plaintiff vacates the office of the Vice Chancellor of the Second Plaintiff forthwith and must not interfere with the affairs of the Second Plaintiff.

3.	I granted the defendants leave then be heard on at the leave stage. On 27 November, I only heard the plaintiff's application for leave. Procedurally, applications for leave to apply for judicial review are made ex parte. In this case, I granted the defendants permission to be heard on the leave application on two pertinent issues, namely, the standing of the University and whether the grounds are arguable. I will return to this aspect later. 

Background

4.	On 1 November, 2012 the University Pro-Chancellor published in the media and circulated to the University Council members, notice of the proposed meeting to be convened on 8 November, 2012 at 9.30 am. The Notice specified, that the proposed meeting was prompted by a petition signed by a majority of the Council members and that the Vice-Chancellor, Albert Schram must attend to show cause why he should not be terminated. The Vice-Chancellor responded, communicating his dissension. He questioned the necessity for the proposed meeting and cited 13 December 2012 as the only legitimate scheduled meeting date for the Council on the University Calendar. The plaintiff also queried the motive for the proposed meeting when the University Council had earlier rescinded its decision for him to show cause as to his dismissal, pending report by a National Executive Council appointed Mediation Team.

5.	On 5 November, 2012 the plaintiffs filed this proceeding. The University Council met on 8 November and terminated Albert Schram's employment contract for purported cause.

Grounds in support of Leave to Apply for Judicial Review 

6.	The grounds for leave to apply for judicial review are numerous and complex. In an attempt to make them read a little easier, they are fairly paraphrased as follows:

1.	The Decision of the Second Defendant by way of Notice dated 1 November 2012 for a Special Council Meeting of the University Council to be held on 8 November 2012 is ultra vires s.2 and s.27 of the Papua New Guinea University of Technology Act 1986 (the University Act) in that the Second Defendant, in the absence of the First Defendant, is only the ceremonial head of the University. The First Defendant has no powers under s.26 or under any other provision of the Act or its subordinate statutes to singularly call for and schedule a Special Council Meeting, whether in an emergency or otherwise. The Second Defendant similarly does not have powers under the Act to singularly call for and schedule a Special Council Meeting whether in an emergency or otherwise. The First Plaintiff is the only Officer of the University with emergency powers pursuant to s 29(c).

2.	The Decision of the Second Defendant referred in paragraph 1 above is ultra vires and inconsistent with s.6 of the University Act, in that pursuant to this provision the Second Defendant has no power to act on behalf of the University to call for, announce, or schedule Special Meetings for the University Council.

3.	The Decision of the Second Defendant, by way of a Notice referred to in paragraph 1 above, is ultra vires and inconsistent with s.10 (1) (a), (d), and (e) of the University Act, in that pursuant to these provisions the Second Defendant has no power to act on behalf of the University to call for, announce, or schedule Special Meetings for the University Council.

4.	The Decision of the Second Defendant referred to in paragraph 1 above is ultra vires and inconsistent with s.14(1) and s.2 of the University Act, in that neither Section specifically empowers an appointed Pro Chancellor Officer to call for, announce, or schedule Special Council Meetings for the University Council.

5.	The Decision of the Second Defendant, referred to in paragraph 1 above, is ultra vires and inconsistent with s. 15 of the University Act in that in the event that the Chancellor is disqualified from being elected, appointed, or remaining as a member of a prescribed authority to which the Office of Chancellor is prescribed, the Pro Chancellor does not have reserve powers to call for, announce, or schedule a Special Council Meeting for the University Council.

6.	The Decision of the Second Defendant referred to in paragraph 1 above is ultra vires and inconsistent with the entirety of Sections 16, 17 and 18 of the University Act, in that these sections do not provide the Office of Pro Chancellor with powers for the calling of, announcement of, or scheduling of Special Council Meetings in the event of a vacation in the Office of Chancellor.

Grounds for Judicial Review

7.	Grounds for judicial review must relate directly to the decision making process of an administrative body or authority on any of those grounds set out in Kekedo v Burns Philp [1988-89] PNGLR 122 namely that the body or authority; 

(i)	exceeds its powers;

(ii)	commits an error of law;

(iii)	commits a breach of natural justice;

(iv)	makes a decision no reasonable tribunal could have reached under the Wednesbury principles of unreasonableness;

(v)	 abuses its powers. 

8.	See also, Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. Judicial Review is available on one or a number of those grounds based on statutory provisions or common law duties.

Test for Leave

9.	Grant of Leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review under O. 16 of the National Court Rules. The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process: Thomas Kamo v Commissioner of Police (2001) N 2084. The rationale as stated in Kekedo v Burns Philp [1988-89] PNGLR 122, is simple: Judicial review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances.
 
10.	To grant permission, the court has to be satisfied that, (i) the applicant has a sufficient interest in the matter before the Court (O 16 r 3); (ii) there has not been "undue delay" (O 16 r 4); (iii) the applicant has exhausted all available alternative or administrative remedies (O 16 r 3(6)) and (iv) that there is an arguable case for review: Kekedo v Burns Philp. See also, Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22; Paul Asakusa v Andrew Kumbakor, Minister of Housing & 3 Ors (2008) N3303; Tiga Nalu v Commissioner of Police (1999) N1972.

Special Nature of the Leave Application 

11.	The ex parte nature of a leave application for judicial review, with Secretary for Justice being the only nominal authority to be served the original process and the right to be heard, means that the leave application hearing must be simple and less contentious, with the Court exercising the discretion that is less strict than that, "which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." (Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617). Furthermore, under s.8 of the Claims By and Against the State Act, leave for judicial review, in which the State is a defendant, shall not be granted unless the State has been afforded an opportunity to be heard.
 
12.	The leave stage of a judicial review application should be confined or restricted to a quick perusal of the materials available to the Court then, without going into the matter in depth. The traditional test for grant of permission has been that the applicant must demonstrate to the court there is an arguable case for granting the relief upon, 'a quick perusal of the papers' as Lord Diplock stated in Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644: 

"If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

13.	This statement of principle adopted by Wilson, J in NTN v Board of the Post and Telecommunications Corporation [1987] PNGLR 70 at 74 was approved by the Supreme Court in Geno & Ors v The Independent State of PNG (supra).

14.	It is clear from those authorities that the judge ought only be satisfied there is a case fit for further investigation at a full hearing with notice of a substantive claim for judicial review. At the leave hearing, neither the defendant nor any other interested party need attend because at that stage, all the materials are not before the Court and there is no obligation to serve any other person with the leave application documents, apart from the Secretary for Justice. 

15.	There may be cases where difficult or complex issues of law and facts are raised which may require assistance from the parties. A situation may arise where the judge is unable to decide whether there is an arguable case on the materials then before the Court. He or she may invite the anticipated parties to attend the hearing for proper and meaningful perusal and consideration of the materials for judicial review. Those instances would be rare and exceptional. There is danger in inviting detailed and full consideration of the materials and the merits of the case when all the evidence is not before the Court, and the matter has not been fully argued by all persons having interest at the hearing of the application.

16.	A more stringent criterion is now developing which require a claimant to demonstrate something near a reasonable prospect of success or a strong prima facie case. In Paul Asakusa v Andrew Kumbakor, (supra) Injia DCJ (as he then was) suggested that the arguable nature of a case should be determined on a further consideration of firstly, whether the grounds of review pleaded in the statement filed under O 16 r 3(2) (a) contain a clear and concise description of the statutory provision or common law alleged to have been breached with reference to established proper grounds of review.

17.	The second aspect of a consideration of an arguable case suggested in Paul Asakusa's case is for the Court to peruse the materials and decide whether the grounds as pleaded and materials relied upon raise arguable issue of law. If they do not, leave should be refused on that particular ground on this basis alone.

18.	The phrase, "on further consideration …" used in the Internal Revenue Commission case in my view means nothing more than a close scrutiny of the materials before the court, which may show the grounds pleaded either merit, or do not merit, a substantive review of the administrative decision or act. 

19.	The view in Paul Asakusa's case appears to go beyond the extent of, "… on a quick perusal of the materials then available…." but it possibly comes within the ambit of "..on further consideration …" which suggests the judge ought to closely scrutinize the form and quality of formulating the grounds for review, so that they amount to proper grounds which the law recognizes. With respect, the proposition in Paul Asakusa's case is sound and consistent with the restrictive nature of a judicial review application, so long as it does not extend to blown-out contentious arguments by the parties at the leave stage. But, if left uncontrolled, the submissions at the leave stage can descend into that, unnecessarily.

20.	In this case, I allowed Mr. Manase audience at the leave stage after his clients were served the application for leave documents. The discretion was, however, decided essentially on two important issues namely, the standing of the University as the second plaintiff in these proceedings and whether the Notice of the proposed meeting of the Council is reviewable. This involved issues of both fact and law on which the court required the parties' assistance for a meaningful perusal and consideration of the papers before the Court. 

Sufficient Interest and Standing

21.	The Vice- Chancellor's 'sufficient interest' is contested on the basis, that the University Council did not authorize him to bring this proceeding for and on behalf of the University, either in his own name, or position or in the University's name. Mr. Manase submitted, that the University is a Statutory Corporation, represented by the Council and any proceedings in a representative capacity on its behalf are void unless it is authorized by the Council.

22.	I do not accept the defendants' proposition. Albert Schram is the incumbent Vice-Chancellor of the University. The establishment of the position of the Vice-Chancellor under s.28 of the Papua New Guinea University of Technology Act 1986 (the University Act) and the functions and powers vested in that Office under s.29 makes the Office-holder the Administrative Head, Chief Executive Officer or Managing Director of the University. 

23.	For that reason, the incumbent is the proper person or officer of the University under s.25 of the University Act charged with the responsibility of managing the everyday affairs of the University. He is entitled to bring proceedings against the Council if he feels aggrieved by decisions by the Council, or any member of the Council, on any matter affecting the management functions of the University. The decision may include disciplinary matters involving staff members of the University including himself: See Paul Asakusa v Andrew Kumbakor, Minister of Housing & 3 Ors (2008) N3303.

24.	I am satisfied that Albert Schram being the incumbent Vice-Chancellor has sufficient interest to commence proceedings under his own name and official capacity as CEO of the University. He has standing to commence this proceeding.

25.	The standing of the Second Plaintiff is contested on the basis, that in its corporate status, the University is run by the University Council as its mind and mouth piece. Hence, the University has no standing to sue the Council and its members, but it has standing with sufficient interest in this proceeding as a defendant. On that basis, the University should be joined as one of the defendants.

26.	I accept Mr. Manase's submission that the First Plaintiff requires a resolution of the Council to authorize him to bring the proceeding in the name of the University: Paul Asakusa v Andrew Kumbakor & 3 Ors (supra). There is no such resolution of the Council in place. But can the University be joined as a defendant to this proceeding as contended by Mr Manase?

27.	For the same reason that a resolution of the Council is required for the University to be party to this proceeding, I reject the defendants' proposition for the Second Plaintiff to be retained and joined in these proceedings as one of the defendants. I have not been referred to, nor have I sighted any relevant material on this issue. I am not satisfied that a resolution of the Council exists authorizing the University to be joined in this proceeding as a defendant. The University shall be removed as a party to this proceeding.

Whether there is Undue Delay

28.	This proceeding was commenced within 1 week of the circulation of the Notice of the proposed meeting. The validity of that Notice is sought to be reviewed. Under O.16 r 4(2), proceedings in the nature of certiorari, must be commenced within 4 months. There is no undue delay in bringing this action.

Whether the Plaintiff has exhausted Other Remedies

29.	The University Act is silent on this issue. And it has not been argued that other statutory or administrative avenues are available to the plaintiff to review the decision, either of the Council or the Chancellor or the Pro-Chancellor. The plaintiff has properly come to this court for a review of an administrative act.

Whether the Issues raised are Arguable

30.	This is contested by the defendants. Their first contention is that the Notice of the proposed meeting of the Council does not amount to a 'decision', nor does it come within the principles governing judicial review applications. Hence, the whole proceeding is an abuse of the Court process and should be dismissed pursuant to O 12 r 40 of the National Court Rules. 
 
31.	I reject that submission. An executive act or decision may be outside the provisions of the enabling Act. Giving notice of a meeting of the governing board, authority, body or Council is an act, which if made outside the legal process set out in the Act or subordinate legislations, will be void under the doctrine of ultra vires. 

32.	Mr. Manase next submitted that the grounds do not amount to a reasonable cause of action. They are confusing in form and raised irrelevant questions as to the interpretation of provisions of the University Act. Mr. Bluett on the other hand submitted the grounds raise substantive issues of law and these are clearly set out. The Pro-Chancellor had called a meeting of the Council when he had no power under the University Act, or its subordinate statutes or regulations to do so.

33.	The grounds for judicial review are prima facie, complex. According to the view in Paul Asakusa's case which neither counsel relied on, a failure to plead in clear and concise terms, issue(s) of law relied upon as a ground or grounds for judicial review will render the ground incompetent and not arguable.

34.	In this case, it is true; the grounds are drafted in, unwieldy and convoluted fashion, such that they do not make easy reading. They are also needlessly long and knit-picking for a minor issue, that the court is best saved the time on. A closer perusal of the grounds, showed the issues of law and facts are precise and meticulously set out. They can be drafted with more simplicity, brevity and clarity. 

35.	The six grounds come down to this simple all embracing issue: The Second Defendant exceeded his powers under the University Act in that he was neither authorized by the Council nor under the University Act to issue a Notice on 1 November, 2012 calling for a Special Council Meeting of the University Council.

36.	The plaintiff relies on sections 2, 6, 10 (1) (a) (d), 14, 15, 16, 17, 18, 27 and 29(c) of the University Act to allege that the Second Defendant had no power to unilaterally convene a Council Meeting and that his Notice of the proposed meeting was ultra vires those provisions. 

37.	I have perused those grounds together with the materials before the Court and the relevant provisions of the Act set out. 

38.	The plaintiffs rely on the affidavit of Anna Wakana filed on 5 November 2012. The substance of what she deposed is set out in the background information to this application. She also stated that the Notice of the proposed meeting did not specify what the first plaintiff was required to answer or explain and that as of 2 November; her office were yet to receive the purported petition signed by a majority of Council members.

39.	Mrs. Wakana is the Senior Assistant Registrar. She does not assert in her affidavit, her role and function in relation to calling or scheduling of Council Meetings. Nor does she assert for proof, the legal position and procedure for calling of Council meetings or the usual practice in giving notice of the Council meetings.

40.	 For the defendants, Mr. Saulep set out in his affidavit, the history of the stand-off between the Vice-Chancellor and the Chancellor, which resulted in a mediation team being set-up. A report from the Mediation Team had been pending since about March 2012, and in the meantime, the relationship between the two University Heads had worsened. Mr. Saulep asserted, that the Chancellor had asked the Vice-Chancellor twice to call a meeting of the Council, without result. He then decided to call the proposed meeting following a petition from the Council members. Mr Saulep did not cite or rely on any legal source which enabled him to call the meeting.

41.	There is no specific procedure in the University Act that expressly prescribes the procedure for convening and conducting a Council Meeting. I have also not been referred to any By-law which prescribes rules of practice to be followed in convening and conducting meeting of the Council. Mr. Bluett's submissions are, that the grounds for review are substantial and such that leave should be granted. Counsel relies particularly on s 26 and s 27 of the Act to say that the substantive issue there is, that the decision of the Pro-Chancellor to issue a Notice of the Special Council Meeting of the Council is ultra vires those provisions. I set out the relevant provisions for convenience:

"26. The Chancellor

(1)	There shall be a Chancellor who shall be appointed in the manner and for the period prescribed by the Statutes.

(2)	The Chancellor shall be the ceremonial head of the University and, if present, shall preside at convocations of the University for conferring degrees and at meetings of the Council.

(3)	The Chancellor shall perform such other functions and duties as may be prescribed by this Act.

27. The Pro-Chancellor

(1) There shall be a Pro-Chancellor who shall be appointed in the manner and for the period prescribed by the Statutes.

(2) The Pro-Chancellor shall, in the absence of the Chancellor, perform the functions of the Chancellor."

42.	 These provisions merely establish the offices of the Chancellor and the Pro-Chancellor with their respective functions and duties under the University Act. Neither provision provides for calling of Meeting of the Council. Nor do they cure the defect in the University Act in failing to provide for the procedure for meeting of the Council. Because of that, the Courts cannot be seen to be interfering with legislative function of the Parliament to cure the defect in a statute. I adopt what Injia, DCJ (as he then was) stated in Asakusa's case: 

"Where there is no such express provision in a statute, the Court cannot, in the exercise of its interpretative function, fill in the gap, to create a new procedural law."

43.	In this case, there is no expressed provision which imposes a duty or obligation on a particular authority under s 8 and s 13 or Committee under s 23 or any person acting as a member thereof under s 24 or an officer of the University under s 25 of the University Act to give notice of a proposed meeting. As a matter of law, this begs the question that is not open for the Court to answer. The Court cannot be asked to fill in the gap. That is a matter for Parliament to rectify.

44.	In normal circumstances, it is expected that such matters as giving notice of meeting is left with a statutory board or authority or as in this case, the University Council. Where the legislative board, authority or a person authorized to do so, calls or gives notice of a proposed meeting, the calling of the meeting for all purposes is valid. The University Act makes this clear in s 47 which reads:

"47. Validity of proceedings

No act or proceedings of any authority or committee or by any person acting as a member thereof or as an Officer of the University shall be invalidated by reason of-

(a)	a defect in the appointment of such a person; or
(b)	a disqualification of such a person; or
(c)	a defect in the convening of a meeting; or
(d)	a vacancy in the number of members of an authority or of a committee.

45.	This provision puts to rest, the challenge to the issuance of the Notice of the proposed meeting. The Pro-Chancellor is a member of the University Council, an authority under s 8. The incumbent is also an Officer of the University under s 25. His act in issuing the Notice will not be invalidated by a defect in the convening of the meeting of 8 November, 2012.

46.	The Application for Leave is refused. The Plaintiff has forced the First and Second Defendants to defend the leave application. Costs will follow the event.

Niugini Legal Practice: Lawyer for the Plaintiffs
Manase & Co. Lawyers: Lawyer for the Defendants