Maru v Ila'ava [2016] PGNC 296; N6498 (6 September 2016)

N6498

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 495 OF 2014

BETWEEN:
HUMEU MARU, as Chief Executive
Officer of the Rubber Board
Plaintiff

AND:
DR VELE PAT ILA’AVA as Acting Secretary
– Department of Agriculture and Livestock
First Defendant

AND:

HON. TOMMY TOMSCOLL, MP, as

Minister for Agriculture and Livestock
Second Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

AND:
ROBIN NADILE
Fourth Defendant

AND:
REUBEN KOVE
Fifth Defendant

Waigani: Hartshorn J.
2016: 14^th,19^thApril & 6^th September

Trial

Cases Cited:

Ereman Ragi v. Joseph Maingu (1994) SC459
Joel Luma v. John Kali (2014) SC1401
Ron Napitalai v. PNG Ports Corporation Ltd (2010) SC1016

Counsel:

Mr. P. Waraniki, for the Plaintiff
Mr. L. Tangua, for the First, Second and Third Defendants
Mr. B.N. Nouairi, for the Fourth and Fifth Defendants

6^th September, 2016

1. HARTSHORN, J: This is a decision on a contested application for judicial review. The plaintiff Mr. Humeu Maru seeks amongst others, orders quashing decisions:
   

a) that had the effect of the termination of his employment; and

b) that closed the office of the Rubber Board and returned all of its assets to the Department of Agriculture and Livestock.

2. Mr. Maru was granted leave to apply for judicial review on 8^th October 2014.
   

Background

3. Mr. Maru was appointed as a Chief Executive Officer by the then Chairman of the Rubber Board on 29^th March 2011. It has been assumed that he was appointed as Chief Executive Officer of the Rubber Board. Mr. Maru executed a contract of employment for three years. It lapsed on 1^st March 2014 and was not renewed. The members of the Rubber Board at the time of Mr. Maru’s appointment are no longer Board members.
4. The first defendant, the Acting Secretary for the Department of Agriculture and Livestock, and the second defendant, the Minister for that Department, decided that the Rubber Board would close its office and transfer all of its assets to the Department. The decision of the first and second defendants was conveyed in letters dated 6^th February 2014 to the Acting Secretary Department of National Planning and 24^th February 2014 to Mr. Maru and effectively terminated the employment of Mr. Maru and his staff.
   

Preliminary

5. The question arises at the outset, raised by the fourth and fifth defendants, as to whether the remedy of judicial review is available to Mr. Maru in respect of the termination of his employment.
   
6. It is contended that the question of the termination of Mr. Maru’s contract of employment is a matter of private law and not public law and therefore the remedy of judicial review is not available.
   
7. It is a matter of private law, it is contended, as amongst others:
   

a) Mr. Maru’s contract of employment was with a company called the Rubber Industry Board of PNG but such an entity does not exist. The seal of PNG Rubber Board is affixed to the contract but it is purportedly signed by the Chairman of the PNG Rubber Industry Board, another entity that does not exist. As however, the person who signed the contract apart from Mr. Maru, was Mr. Reubin Kaiulo the then Chairman of the Rubber Board, the contract should be considered as being with the Rubber Board;

b) the Rubber Act under which the Rubber Board is established, does not provide for the Board to recruit staff. The Rubber Act and Rubber Regulation do not provide for the appointment and revocation of the appointments of staff;

c) as Mr. Maru was not employed pursuant to the Rubber Act or Regulation, and at best was employed by the Chairman of the Rubber Board to be a Chief Executive Officer of a company that does not exist and ultra vires the powers of the Rubber Board, Mr. Maru was recruited outside any governing laws of the National Public Service;

d) reliance is placed upon the Supreme Court case of Ron Napitalai v. PNG Ports Corporation Ltd (2010) SC1016 and Albert Kuluah v. University of Papua New Guinea [1993] PNGLR 494.

Consideration

8. It is the case that the Rubber Act and Rubber Regulation do not provide for the Rubber Board or its members to recruit staff. Further, Mr. Maru’s contract of employment is purportedly with an entity that was thought to be a company that had a Board of Directors. It is common ground that the company never existed, however it can be taken that the intention was for him to be employed by a company.
   
9. In addition, it is not apparent that Mr. Maru was appointed to his position pursuant to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.
   
10. In Ron Napitalai v. PNG Ports Corporation Ltd (supra), the Supreme Court, of which I was a member, at [24] reproduced the following passage from Ereman Ragi v. Joseph Maingu (1994) SC459 concerning whether the claim for wrongful dismissal from employment in that case was a matter of public or private law:
    

“The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.”

11. The Supreme Court in Napitalai (supra) went on to uphold the appeal before it. It held amongst others, that the respondent’s termination as an employee of PNG Ports Corporation Ltd was of a private and not a public law nature and as such the remedy of judicial review was not available to him.
    
12. Then in Joel Luma v. John Kali (2014) SC1401, the Supreme Court said at [54]:
    

“Summarising the foregoing discussions, in a case where a terminated contract employee seeks leave for judicial review, the question of whether his remedy lies in judicial review or damages is a relevant consideration and threshold issue. However, each case must be considered on its own merits. We consider that the Court must be guided by the following basic principles; first, it must look at the process of appointment and revocation. If it is governed by the Constitution or statute, it is open to judicial review. If not, it is a matter of private law where the appropriate remedy is damages for breach of contract.”

13. This court is bound by these Supreme Court decisions.
    
14. In this instance, even if it could be said that Mr. Maru was appointed by the Rubber Board, and there are significant obstacles to that being the case as mentioned, the employment of the staff of the Rubber Board is not a matter of statute and there are no provisions in the legislation setting up the Rubber Board which gives terms and conditions of employment. Mr. Maru’s employment was not governed by the Constitution or statute. Consequently the termination of his employment is a matter of private law and the appropriate remedy is damages for breach of contract. It is not a matter of public law and the remedy of judicial review is not open to him.
    
15. As to the other relief sought by Mr. Maru, as I have found that he is not entitled to apply for judicial review in respect of the termination of his employment, and it is from his employment that any locus standi or standing that he may have to seek judicial review in respect of the Rubber Board and its assets emanates, I am not satisfied that he has the requisite locus standi or standing to seek the other relief in the proceeding. Given this, it is not necessary to consider the other submissions of counsel apart from submissions of the first, second and third defendants that the fourth and fifth defendants be restrained from accessing assets of the Rubber Board. As to this issue, in my view it should be the subject of fresh proceedings. Consequently I will delay the date that this decision takes effect to allow the parties to file and make application in fresh proceedings, if they so desire.
    

Orders

16.

a) This proceeding is dismissed;

b) The plaintiff shall pay the costs of all of the defendants of and incidental to this proceeding on a party party basis to be taxed if not otherwise agreed;

c) The orders made in paragraphs a) and b) above shall take effect 14 days from today.
____________________________________________________________

Waraniki Lawyers : Lawyers for the Plaintiff
Baniyamai Lawyers : Lawyers for the First, Second and Third Defendants
Bill N Nouairi Lawyers: Lawyers for the Fourth and Fifth Defendants