Kana Construction Ltd v Frank [2021] PGNC 36; N8753 (4 February 2021)

N8753

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 52 OF 2020

BETWEEN:
KANA CONSTRUCTION LIMITED
Plaintiff

AND:
RAVU FRANK-IN HIS CAPACITY AS MANAGER WASTE MANAGEMENT DIVISION
First Defendant

AND:
SIMEON TERINA-IN HIS CAPACITY AS MANAGER WASTE MANAGEMENT DIVISION
Second Defendant

AND:
NATIONAL CAPITAL DISTRICT
Third Defendant

Waigani: Miviri J
2020: 10^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons Order 16 Rule 3 (1) NCR – Order 16 Rule 3 (2) (a) NCR Statement – Affidavit verifying Order 16 Rule 3 (2) (b) NCR – Notice to Secretary Order 16 Rule 3 (3) NCR – Affidavit in Support Order 16 Rule 3 NCR – Leave for Judicial Review – Waste Disposal Contract – Privity of Contract – Private Law Not Public Law – Judicial review not appropriate mode – Motion refused – cost follow the event

Cases Cited

Gesa v Kipit, City Manager [2003] PGNC 66; N2457
Kekedo v Burns Philip Limited [1988-89] PNGLR 122
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303
Nivani Ltd v China Jiangsu International (PNG) Ltd [2007] PGNC 46; N3147

Counsel:

P. Yapa, for Applicant
H. Wangi, for State

RULING

04^th February 2021

1. MIVIRI, J: This is the ruling of the court on the Plaintiffs application for leave pursuant to Order 16 rule 3 of the National Court Rules to review the decision of the defendants served 28^th August 2020 by letter dated the 18^th August 2020 to stand down and terminate the engagement of the plaintiff as a contractor to manage solid waste Disposal facility at the Baruni Dump National Capital District.
   
2. The originating summons dated 22^nd September 2020 filed the 24^th September 20 pleads for leave pursuant to Order 16 Rule 3 of the National Court Rules to apply for judicial review of the subject set out above. It is supported by Statement pursuant to Order 16 Rule 3 (2) and (c) of the Rules. A notice to the Secretary for Justice to apply for judicial review is also filed dated the same. Including an affidavit verifying the facts of the same date and affidavit by one Roxon Kunuma Undi all dated the same and filed.
   
3. This material establishes the following facts undisputed that the plaintiff Kana Construction Limited (KCL) of Post Office Box 1753 Port Moresby National Capital District is a construction Company incorporated pursuant to the provisions of the Companies Act 1997 (as amended).
   
4. The decision sought to be reviewed is that of the defendants National Capital District Commission Management’s decision of the 18^th August 2020 not to extend or renew the Plaintiff/ Applicant’s engagement or contract for the provision of the Land filling management services at Baruni Dump Project National Capital District. It was engaged by the National Capital District Commission Waste Management Division to provide land filling Management Services at Baruni land fill site National Capital District. And this was by way of a minor contract agreement dated the 31^st June 2019 which lapsed on the 31^st May 2020. But the plaintiff was allowed to continue working for a further (3) three months from the 31^st May 2020 to the 31^st August 2020. And after which advice was relayed to it that the defendants were not going to renew the contract. No reasons were disclosed as to why the defendants took that position. The plaintiff is aggrieved and seeks to review that decision by this proceeding.
   
5. The law on review is that the following grounds must be satisfied on the balance of preponderance before leave is granted to the applicant. Firstly, that the applicant has standing in the matter or is affected by the matter. He has locus Standi. He is affected by the decision that has been made by the defendants. But that Standing is as a party to a contractual agreement with the defendants. And that is a private matter between him and the defendants. There is privity of contract it is not a public relationship with the public at large: Gesa v Kipit, City Manager [2003] PGNC 66; N2457 (6 August 2003). And would not be amendable to judicial review it is a matter that is personal between the plaintiff and the defendants on the other part. Hence in every sense it is not of Public Law as in Kekedo v Burns Philip Limited [1988-89] PNGLR 122. There though private law in the sense that the employment was between the non-citizen, the cancellation of his work permit by the secretary Department of Labour and Employment was a public law matter. It was therefore properly to be judicially reviewed. Which isn’t the case here for all intent and purposes.
   
6. Here the procedure under the contract has dictated to where the plaintiff has been left. If he has been prematurely terminated it is not a matter where Judicial review lies because the termination is not as in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) where the provincial administrator did not comply with the Public Services Commission decision to reinstate the appellant. The Supreme Court ordered his reinstatement and payment of entitlements due. That is not the case here. This is a matter of contract between service provider and one utilizing that service: Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994).
   
7. Judicial review is time driven. It is a challenge to a decision of a public body which is not the facts as set out above. It is not a case of administrative decisions discharged by Government in the management for example of its land resources for all. And the pleadings justify and are properly made insisting by the Rules: Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303 (10 April 2008).
   
8. What is available at law to the plaintiff is certainly not in judicial review but a matter for the enforcement of the contract if the condition and terms have been violated: Nivani Ltd v China Jiangsu International (PNG) Ltd [2007] PGNC 46; N3147 (10 August 2007).
   
9. The orders of the court are:
   
   • (1) The application of the plaintiff for Judicial Review is refused
   • (2) The proceeding is dismissed forthwith in its entirety.
   • (3) Costs to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Nandi Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants