Marfu v Gaupu [2022] PGNC 439; N9881 (11 August 2022)

N9881

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 05 OF 2022

BETWEEN:
JEFFRIE MARFU
Plaintiff

AND:
BOTO GAUPU - In his capacity as the Chief Executive Officer of the Cocoa Board of Papua New Guinea
First Defendant

AND:
COCOA BOARD OF PAPUA NEW GUINEA
Second Defendant

AND:
JOHN SIMON – In his capacity as the Minister for Agriculture & Livestock
Third Defendant

STEVEN MOMBI – In his capacity as the Secretary of the Department Agriculture & Livestock
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kokopo: Dingake J
2022: 11^th August

JUDICIAL REVIEW – plaintiff filed application to review decision of defendants to terminate him from employment - judicial review is only available to challenge the decision of the public body or a body performing public functions and where the subject matter of the challenge involve claims based on public law principles and not the enforcement of private law and rights - whether plaintiff’s employment comes under private law or public law that warrants judicial review – what is a public body? - If source of the body’s power is statute or subordinate legislation it will usually be amenable to judicial review – whether or not the nature of employment is underpinned by public law principles - although the Plaintiff was employed by creature of Statute, the terms and conditions of his employment (including appointment, suspension and termination) are not governed by the Cocoa Act, and the termination of his employment is not amenable to judicial review – application for judicial review dismissed – plaintiff to meet costs of defendants

Cited Cases:

Ereman Ragi v Joseph Maingu (1994) SC459
Oneil v Klapat (2014) SC1385
The State v Eluh [2016] SC1479
Joel Luma v John Kali (2014) SC1401
Norman Daniel & Ors v. Air Niugini & The State: SCM Nos 3-10 of 2017 (Unnumbered & Unreported Judgment of 4th August 2017;
Air Niugini and National Airline Commission v Denis Salter and Geoffrey McLaughlin (2001) SC679

Counsel:

Mr. Andrew Furigi, for the Plaintiff.
Mr. Paul Yange, for the Defendants

11^th August, 2022

1. DINGAKE J: This is an application for judicial review of the decision of the First Defendant, in his capacity as the Chief Executive Officer of the Second Defendant to terminate the employment of the Plaintiff on the 6^th March, 2020.
2. At the commencement of the hearing of this matter the Plaintiff sought and was granted leave by this court to remove the Third and Fourth Defendants from this review proceedings as they were unnecessarily named as parties to this proceedings.
3. Before dealing with the merits of the review application a threshold issue has arisen that requires being determined first before proceeding to deal with the merits of the review application if that becomes necessary to do.
4. It is also important to record at this stage that this ruling does not deal with the competency issue relating to whether or not the Plaintiff invoked the correct rule to approach this court. The parties have agreed that the competency issue will be taken up later, if necessary.
5. The threshold issue is whether the termination of the Plaintiff’s employment is amenable to judicial review.
6. It is common cause that at all material times hereto the Plaintiff was an employee of the Second Defendant before his contract of employment was terminated on the 6^th of March 2020. The Plaintiff was employed as a Director of Research and Development by contract of employment on or about 1^st of January 2018.
7. There are many Supreme Court decisions of respectable lineage that have grappled with the question whether an employee of a corporatized public body, whose contract has been terminated, can approach the National Court for the review of that decision (See Ereman Ragi v Joseph Maingu (1994) SC459, O’Neill v Klapat (2014) SC1385, State v Eluh (2016) SC1479, Luma v Kali (2014) SC1401).
8. In the case of Norman Daniel v Air Niugini SCM 3 – 10 of 2017, the court held that judicial review was not available to dismissed pilots who sought to review the decision to dismiss them.
9. In the above case the court found that the contract between the pilots and Air Niugini could best be characterized as a matter of private law, reasoning that each employee was employed under a contract of employment.
10. The facts of the above case bear stating briefly: the appellants who were employed as pilots were dismissed by their employer, Air Niugini Limited. They approached the National Court by way of judicial review, seeking to quash the decision to dismiss them. The National Court held that judicial review was not available to them. Being unhappy with the decision of the National Court they appealed to the Supreme Court. The Supreme Court dismissed the appeal and confirmed the decision of the National Court.
11. The appellants in the above case relied on the earlier decision of the Supreme Court in Air Niugini v Salter (2001) SC679 in arguing that Air Niugini had already been determined to be a public body. However, the Court took the view that it was not bound by the findings in the earlier matter mainly because since the determination in the Air Niugini v Salter case, Air Niugini had undergone fundamental changes to its corporate structure.
12. There is a plethora of decisions of both the National and Supreme Court that have established the principle that judicial review is only available to challenge the decision of the public body or a body performing public functions and where the subject matter of the challenge involve claims based on public law principles and not the enforcement of private law and rights. (Napitalai v PNG Ports Corporation Ltd (2010) SC1016).
13. It seems clear from the above authorities that in order to answer the threshold issue, this Court has to analyze the nature of the Second Defendant, to determine whether it is a public body and if it is not a public body then judicial review is not available. However, if the Court finds that it is a public body, the Court must then assess the nature of employment; and if the subject matter of the challenge relates to enforcement of private rights and involves claims not based on public law principles then the decision sought to be impugned is not amenable for judicial review.
14. It follows from the above that whether or not the issue of termination of employment by a public body or a body performing public functions is amenable to judicial review would invariably turn on the circumstances of each case and it would be unwise to seek to frame the criteria in any mechanical way.
15. The question arises as to what is a public body? Assessing whether a body is a public body or a body exercising public function can be a slippery exercise. It is generally acknowledged that there is no single test for determining whether a body will be amenable to judicial review. The source of the body’s power is a significant factor but not decisive. If the source of the body’s power is statute or subordinate legislation it will usually be amenable to judicial review.
16. I must say after a careful review of recent authorities of the Supreme Court, discussed earlier, it is clear to me that whether a body is a public body would turn on own circumstances. The jurisprudence of the Supreme Court on the question of what constitutes a public body is not characterized by any bright lights that pinpoint with any precision the boundaries of a public body as opposed to a private one, nor are the elements that go into a public body capable of being singled out with any accuracy. In my respectful opinion the jurisprudential tapestry remains slippery and fluid.
17. Having regard to the above, the fact that the Second Defendant is established by statute, although not decisive is a strong pointer that the Second Defendant may be a public body. Not only is the Second Defendant created by statute, it is also a body as far as I can discern, established to carry out specific public tasks defined by law, in public interest, such as acting in the best interest of cocoa growers of the country and to promote research and development programs for the benefit of the cocoa industry. The applicability of the Public Finance Management Act to its operations and the Regulatory Statutory. Authorities (Appointment to Certain Offices) Act 2004 (with respect to appointment of the employees of the Board) and its mandate broadly considered reinforce my inclination that the Second Defendant is a public body and I so hold.
18. Having found that the Second Defendant is a public body for the reasons I have given does not end the enquiry. Next, I must determine the nature of employment, whether or not it is underpinned by public law principles.
19. In the case of Luma v Kali the Supreme Court suggested that the court in considering the subject matter, namely, the nature of employment, must be guided by issues such as the process of appointment and revocation. Where the appointment of the aggrieved party who seeks to review the dismissal decision is governed by the constitution or statute, then certainly the decision would be amenable to judicial review, if not it is a matter of private law, where the appropriate remedy is damages for breach of contract.
20. In Ragi v Mainga [1994] SC459, the Board Secretary’s contract of employment with Public Officers Superannuation Board was terminated. He brought judicial review proceedings in the National Court to quash the decision. On appeal, the Supreme Court characterized the nature of his employment, as a private law matter, because according to the court there was no statutory duty involved or any statutory protection that would make his claim to be based on public law principles.
21. In my assessment the case of Ragi is similar to the present case in that in the Ragi case the Board, just like the Second Defendant, in this case, was created by the statute but the employment of staff was not governed by statute. In this case the pleadings do not allege that the Plaintiffs’ terms and conditions of employment were sourced from statute or underwritten by same.
22. Having considered the pleadings in this case, and the relevant provisions of the Cocoa Act 1981, establishing the Second Defendant, I am clear in my mind that the Plaintiff is challenging termination of his written contract of employment and no part of the Cocoa Act expressly or impliedly suggest that the said challenge or claim is based on any public law principle or legislative provisions.
23. On the facts, this case can be distinguished from the case of State v Eluh (2016) SC1479, because in that case, although the respondent was employed under a contract, the court found that his claim or challenge was based on public law principles, not private rights, because he was employed by the State through a Police Force established by the Constitution; where he held the rank of Assistant Commissioner of Police.
24. On the facts of this case, I am persuaded that the nature of employment of the Plaintiff, who was employed under a written contract of employment was clearly a matter of private law, as that contract itself illustrates. The contract of employment the parties entered into evinces an employer and employee relationship in terms of which the employer had the right to control the employee and discipline him where same is required. It is for this reason that this court cannot intervene in this matter.
25. I have considered the provisions of Section 15 of the Cocoa Act 1981. On closer scrutiny, it seems to single out the Executive Officer of the Board as the authority or employee whose appointment, suspension and dismissal is specified in the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004.
26. Section 15(3) of the Cocoa Act makes reference to appointed employees who immediately before their appointment, were officers in the public service. The section says that those employees service shall be counted as service in the public service for purposes of determining their rights with respect to:
    • (a) Leave of absence
    • (b) Furlough or pay instead of furlough; and subjects the appointment and removal of Executive Officer of the Board to strictures of statute.
27. With respect to Section 15 of the Cocoa Act, I do not think it has been pleaded or suggested that the Plaintiff was immediately before his appointment an officer in public service. In any event even it was so pleaded and proved, I do not consider that Section 15 (3) governs the appointment and removal of the Plaintiff.
28. The fact that the Plaintiff was a senior officer has little bearing, if any, on whether the decision of the First Defendant is amenable to judicial review.
29. In summation, I agree with the submissions of learned counsel for the First and Second Defendants:
    • (a) That although the Plaintiff was employed by a creature of Statute, the terms and conditions of his employment (including appointment, suspension and termination) are not governed by the Cocoa Act, and the termination of his employment is not amenable to judicial review.
      
30. In the result the court orders as follows:
    • (a) The proceedings are dismissed in their entirety with costs. Such costs to be agreed or taxed.

_______________________________________________________________
Furigi Lawyers: Lawyer for the Plaintiff
Islander Legal Services: Lawyer for the Defendants