Barton-Keene v Davis [2019] PGNC 39; N7780 (20 March 2019)

N7780

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 42 OF 2019

BETWEEN:
FAITH BARTON-KEENE as the Acting Solicitor General of Papua New Guinea
Plaintiff

AND:
HON. STEVEN DAVIS as the Attorney General of Papua New Guinea
First Defendant

AND:
DR. ERIC KWA as the Secretary for Department of Justice and Attorney General
Second Defendant

AND:
THE PUBLIC SERVICES COMMISSION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Nablu, J
2019: 5^th, 20^th March

JUDICIAL REVIEW – application for leave – challenges decision of Attorney General – revocation of appointment of acting Solicitor General – Attorney General Act – proper decision to challenge is the Public Services Commission’s decision – no right to review primary decision – nature of decision to refuse leave – leave refused.

Cases cited:
Felix Alai v. Nakot Waina & Ors (2015) SC1615
Zachery Gelu v. Maurice Sheehan (2013) N5498
Martin Kenehe v. Allan Jogioba & Ors (2008) N4025.
Jacob Yafai v. Dr Philip Kereme & Ors (2016) SC1531

Counsel:
A. Jerewai, for the Plaintiff
D. Wood, for the State

20^th March, 2019

1. NABLU, J: The plaintiff seeks leave to review the decision of the Attorney General to “retire” her as the acting Solicitor General and appoint Mr Tanuvasa as the Acting Solicitor General. The decision was made by way of a memorandum from the office of the Minister and Attorney General on 8^th December 2018.

2. If leave is granted, the plaintiff seeks an order for certiorari to quash the decision. She also seeks an order for re-instatement as the Acting Solicitor General and a mandatory injunction restraining the Attorney-General and the Secretary for Justice from exercising their purported powers under Section 11 of the Attorney -General Act 1989 and Section 37 of the Public Services (Management) Act. The plaintiff also seeks special and general damages.

3. The State was represented by counsel. The application was contested. The counsel opposed the application for leave for the reason that the plaintiff did not have an arguable case. The State relied on the affidavit of the Attorney General which was filed on 7^th February 2019.

4. The application for leave is supported by the Statement of Support and verified by the affidavit of Ms Barton-Keene filed on 26 January 2019.

5. The background facts in those affidavits are not disputed. The plaintiff was appointed the Acting Solicitor General on 15^th December 2017 following the lapse of her tenure as the substantive Solicitor General.

6. On 6^th December 2018, the Attorney General in a memorandum to the plaintiff stated that, “I have therefore decided to retire you as the Acting Solicitor General.” The Attorney General then stated that the office was to be handed over to Mr Tauvasa Tanuvasa on 8^th of December 2018 and thanked the plaintiff for her services and encouraged her to apply for a permanent position.

7. The plaintiff argued that there was no gazettal instrument effecting the decision therefore she remained the Solicitor General pending the publication of the decision in the gazette.

8. It is also not disputed that the applicant had filed an application for leave for judicial review earlier in December 2018. The Court heard and determined that leave application. The Court after full consideration of the issues refused leave and dismissed the leave application on the basis that the applicant had not exhausted the administrative remedies in particular, filed an appeal to the Public Services Commission.

9. It is noted that the earlier leave application challenged the decision of the Attorney General. This is the same decision which leave is sought to review in the current leave application. According to the Amended Originating Summons filed on 17^th December 2018, the plaintiff sought leave to review the decision of the Attorney General to:

1. advertise the position of a Solicitor General;
2. review the performance of the Applicant during her tenure as the Acting Solicitor General;

100. retire the Applicant as the Acting Solicitor General; and

4. appoint Mr Tauvasa Tanuvasa as the Acting Solicitor General effective as of 10^th December 2018.

10. The Originating Summons in this application for leave which was filed on 26^th January 2019 also seeks to review the decision of the Attorney General to retire the plaintiff as the acting Solicitor General. The decision was purportedly made in the same memorandum of December 2018.

11. I have read counsel’s written submissions, considered their oral submissions and had regard to the evidentiary material before me. I now give my ruling.

12. Before proceeding on to consider the principles of leave it is imperative that this pertinent question is determined first. The question is whether this decision is amenable to judicial review. This is a threshold issue which in my view goes to the jurisdiction of the Court to consider whether leave should be granted to review this decision.

13. Mr Jerewai of counsel for the applicant submitted that the decision of the Attorney General is subject to review because it was an administrative decision made by a public authority which was the Attorney General pursuant to provisions of the Attorney General Act. The decision was administrative in nature because it related to the appointment or revocation of the applicant’s acting appointment as the Solicitor General.

14. Mr Woods of counsel for the State on the other hand submitted that this decision was not subject of review for the reason the issues were res judicata. The National Court had heard and determined the application for leave for review of the same decisions and therefore the principle of estoppel acts as a bar from raising the same issues before this Court.

15. The grant of leave for judicial review concerns an exercise of discretion. If the judge is of the view that based on the material before it the applicant has established the four main principles for leave to be granted then as a matter of discretion leave is granted. The originating summons upon which leave is sought is then treated as a decision which is interlocutory in nature. Therefore, any appeal against the grant of leave lies with leave of the Supreme Court; Felix Alai v. Nakot Waina & Ors (2015) SC1615.

16. The Supreme Court in Felix Alai v. Nakot Waina (supra) stated at paragraph 22 of that judgment that:

“If leave to apply is refused, there is no question that the decision is final because the decision brings to an end those proceedings. Therefore, an appeal from a refusal of leave to apply for judicial review made under O 16 r.3 of the National Court Rules lies without leave, a situation falling under the exception in s 14(3)(b)(iii).”

17. In Zachery Gelu v. Maurice Sheehan (2013) N5498, His Honour Injia, CJ, articulated in general terms some considerations which should be taken into account when considering whether to exercise the discretion to grant or refuse leave (see paragraph 14 of that Judgment). I have summarized those important considerations as follows:

1. The decision the subject of the application for leave for review must be one that is a proper subject of or amenable to judicial review.
2. It is the ultimate or final decision in the decision-making process that is amenable to review.
3. The decision is one that raises a genuine grievance over some matters that determines or causes substantial prejudice to the applicant’s legal or civil rights.
4. Judicial review is not available to address breach of a Statutory or Constitutional obligations that can be enforced by way of a cause of action under law, by way of declaratory or injunctive relief or damages.
5. Judicial review process is not an alternative to a cause of action at law.
6. Judicial review process is available in respect of a decision once only.
   

18. In relation to the bullet point (vi), His Honour went on to state that “if (sic) application for leave or the substantive application is determined and disposed off, the same decision should not be subject to another round of judicial review proceedings.”

19. In the present case, it is clear that the decision which the plaintiff seeks to review is the decision of the Attorney General to revoke her appointment as the acting Solicitor General. That decision was the subject of review of the earlier application for leave which was determined and disposed off. The applicant cannot now come before this Court to review the same decision.

20. Furthermore, if leave is refused for the reason that the applicant had not exhausted all the administrative remedies. That Court’s decision is final. If the applicant exhausts the administrative process and is still aggrieved and comes back to Court seeking leave to review. The proper decision which the applicant should seek leave to challenge is the decision of the appellate body. The general rule is that the applicant is not permitted to rehash or reargue the primary decision. The National Court only has the jurisdiction to review the decision of the appellate body and does not have the jurisdiction to consider the scope of matters or new issues which were not before the appellate body: Martin Kenehe v. Allan Jogioba & Ors (2008) N4025.

21. The Supreme Court in Jacob Yafai v. Dr Philip Kereme & Ors (2016) SC1531, approved the approach taken by Injia, CJ in the case of Martin Kenehe v. Allan Jogioba & Ors (supra) and when granting leave in that appeal stated that:

“The grant of leave will only (sic) in relation to review of the decision of the Public Services Commission. It is not the grant of leave for judicial review of the decision to dismiss the appellant from the Public Service.”

22. When applying these considerations to the present case, I am convinced that the plaintiff’s application for leave for judicial review is misconceived. The plaintiff has sought to challenge the decision of the Attorney General when the proper decision for review should be against the decision of the Public Services Commission.

23. For the foregoing reasons and in the exercise of my discretion, the plaintiff’s application for leave to seek judicial review is refused and is dismissed. Costs follow the event. The plaintiff to pay the State’s costs of this application to be agreed if not taxed.

Orders accordingly,

Jerewai Lawyers: Lawyers for the Plaintiff
Ashurst Lawyers: Lawyers for the State