You are here:
PacLII >>
Databases >>
National Court of Papua New Guinea >>
2023 >>
[2023] PGNC 146
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
Pakii v Schnaubelt [2023] PGNC 146; N10254 (16 May 2023)
N10254
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS(JR) NO. 37 OF 2023 (IECMS)
BETWEEN:
TED PAKII
Plaintiff
AND
Honorable WALTER DAVID SCHNAUBELT, MP, in his capacity as Minister for Transport and Civil Aviation
First Defendant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Dowa J
2023: 12th &16th May
PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for
Judicial review – Suspension of Plaintiff pending investigations –prerequisites of leave- whether grounds exist for leave-all
requirements met-leave granted.
Case Cited:
Asakusa v Kumbakor (2008) N3303
Kekedo v Burns Philp [1988-89] PNGLR 122
NTN v PTC [1987] PNGLR 70
Counsel:
W. Mininga, for the Plaintiff
P. Kuman, for the first Defendant
K. Kipongi, for the second Defendant
RULING
16th May, 2023
- DOWA J. The Plaintiff seeks leave to apply for Judicial Review of the First Defendant’s decision made on 20th April 2023 to suspend him as Managing Director of Niusky Pacific Limited under section 143F of the Civil Aviation Act 2000 (as Amended).
- The Plaintiff relies on the following documents:
- Originating Summons filed 5/5/2023.
- Affidavits verifying facts.
- Statement under Order 16 Rule 3 (2) of the National Court Rules.
FACTS
- The Plaintiff is the Managing Director of Niusky Pacific Limited, formally known as PNG Air Services Limited. He is employed under
a contract of employment for a six-year period. On 20th April 2023, the First Defendant as Minster responsible for Civil Aviation matters, suspended the Plaintiff using his powers under
section 143F of the Civil Aviation Act 2000 (as Amended); and appointed one Jordon Imal as Acting Managing Director for three (3) months.
APPLICATION
- Aggrieved by the decision, the Plaintiff applies for Leave to apply for Judicial Review of the decision of the First Defendant.
GROUNDS OF REVIEW
- The following are proposed grounds of review as set out in the Statement filed pursuant to Order 16 (3) of the NCR are:
- Errors of law.
- Breach of natural justice and procedural fairness.
- Unreasonableness and unjustified.
- Bad faith.
REQUIREMENTS FOR LEAVE
- Applications for leave for judicial review involve the exercise of discretion. The principles applicable to an application for leave
for judicial review are well settled in the cases, NTN v PTC (1987) PNGLR 70 and Kekedo v Burns Philp (1988-89) PNGLR 122.
- In NTN v PTC (supra) the Court said:
“Applications for leave for judicial review, involve the exercise of discretion, such discretion must be exercised judicially.
Once a court is satisfied that the applicant has sufficient interest it then exercises his discretion whether leave should be granted.”
In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners
v National Federation of Self-Employed and Small Businesses(1982) AC 617 Lord Diplock set out the principles upon which the court
should act and I respectfully adopt them-If on a quick perusal of the material 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 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 at this stage 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.”
- The main prerequisites an applicant for leave must show under Order 16 Rules 3 & 4 of the National Court Rules are:
(a) sufficient interest,
(b) an arguable case,
(c) exhaustion of all other administrative avenues for redress,
(d) no undue delay.
(e) decision made by a public administrative body.
SUBMISSIONS OF COUNSEL
- Mr. Mininga, counsel for the Plaintiff, submits that the Plaintiff has raised proper and valid grounds which have merit for judicial
review. He submits that the Plaintiff has met the prerequisites for leave under Order 16 rules 3 & 4 of the National Court Rules.
- Mr. Kipongi, counsel for the State, opposes the application, arguing that the proposed grounds fail to disclose an arguable case.
He submits that the Minister had the powers under section 143 F of the Civil Aviation Act to suspend with or without a cause, and he exercised those powers as allowed by law.
- Mr. Kuman, counsel for the First Respondent, (who appeared with leave), supported the State’s argument in opposing the application.
Mr. Kuman went on further to argue that the Plaintiff does not have sufficient interest as he was suspended with full pay in his
substantive position. The Plaintiff’s contract of employment will end by mid-June 2023 and that he is under investigation for
mismanagement and official corruption. The decision by the First Defendant suspending the Plaintiff is necessary to continue the
investigation and the prosecution of the criminal proceedings unhindered.
CONSIDERATION
Where the Plaintiff has sufficient interest, Order 16 rule 4 (6) National Court Rules.
- Although the decision by the Minister is only a suspension, it directly affects the Plaintiff who holds the position of the Managing
Director. Therefore, I find the Plaintiff has sufficient interest.
Was the Decision made by a Public Authority?
- The decision is made by a Minister for State, exercising his statutory powers under the Civil Aviation Act 2000. The decision sought to be reviewed is therefore made by a Public Authority and is subject to the judicial review process.
Whether the Plaintiff has exhausted all other administrative avenues for appeal or review.
- It appears that there are no other known administrative avenues to seek redress except for judicial review, which the Plaintiff has
done.
Whether there is no undue delay.
- The decision was made on 20th April 2023, less than a month from the date of filing these proceedings. It is within the time as allowed by Order 16 Rule 4 (2)
of the National Court Rules.
Whether there is an arguable case. Order 16, Rule 3 National Court Rules
16. In deciding what is an arguable case, the Court is to carefully consider the proposed grounds so that only clearly pleaded and
meritorious grounds of review proceed to substantive hearing. In Asakusa v Kumbakor (2008) N3303, Injia DCJ (as he then was) stated at paragraph 18 of his judgment:
“...The grounds must contain reference to some established grounds recognised by law as proper grounds upon which judicial review
relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review
is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack
of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could
have reached (Wednesbury principles of unreasonable) or abuses its powers: Kekedo v Burns Philp (1988-89) PNGLR122 at 124, per Kapi
DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal (1987) PNGLR 417. These grounds on which judicial review
is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should
be such that the clear issues of law are raised for determination by the court.”
Consideration of the grounds
Errors of Law
- The first ground pleaded is that the first defendant committed an error of law in his decision to suspend the Plaintiff under section
143F (1) of the Civil Aviation Act.
- Section 143F (1) reads:
“(1) In the interest of the aviation sector, the Minister shall suspend the Managing Director, with or without cause, if –
(a) the Managing Director is absent from duty (from whatever cause arising); or
(b) there is a vacancy (whether by reason of death, resignation, or otherwise); or
(c) from time to time while the absence or vacancy continues and appoint a senior person in the company in terms of the number of
years he has worked in the company or a suitable person to act in the position.”
- The Plaintiff argues that pursuant to section 143F (1) of the Act, the First Defendant can only suspend the Managing Director of NSPL,
if the Managing Director is absent from duty or when there is a vacancy. The First Defendant suspended the Plaintiff as Managing
Director of NSPL when he (Plaintiff) was not absent from duty and there was no vacancy.
- From the evidence and material provided, the Plaintiff was on approved leave when he was suspended by the first Defendant. He was
not absent from duty. There was no vacancy at the time when the first Defendant made the decision to suspend the Plaintiff.
- In the circumstances it is arguable that the grounds under section 143F (1) did not exist for the first Defendant to exercise his
powers to suspend the Plaintiff as the Managing Director for Niusky Pacific Ltd and therefore committed an error of law. The Plaintiff
be allowed to seek substantive review of the decision of the first Defendant.
Breach of Natural Justice and Procedural Fairness
- The second ground for review raised by the Plaintiff is that he was denied natural justice and procedural fairness. The Plaintiff
alleges that apart from summarily suspending him as Managing Director in breach of section 143F of the Act, he was not given an opportunity
to be heard before the decision was made.
- The evidence shows the Plaintiff was in this executive job for more than eight (8) years. His current employment contract is due to
expire by 30th June 2023. There is no evidence of him being spoken to before he was suspended. In the circumstances, it is arguable that not only
was he suspended in breach of section 143F but also that he was not heard before the decision was made to suspend him. In the circumstances,
it is arguable that there is a breach of natural justice and procedural error.
The decision was unreasonable and made in bad faith.
- The final two grounds raised by the Plaintiff is that the decision of the first Defendant was unreasonable and made in bad faith.
These two grounds are based on and are an extension of the first two grounds. The first defendant suspended the Plaintiff as Managing
Director of NSPL when the Plaintiff was not absent from duty and there was no vacancy being the grounds specified under section 143F
(1) of the Civil Aviation Act by which the first Defendant could exercise his powers, and that he gave no opportunity to the Plaintiff to be heard before he made
the decision. In the circumstances, it is arguable that the decision was made in bad faith and the first defendant abused his powers
in reaching a decision that no reasonable decision-making authority could have made under the Wednesbury principles.
- I have considered the matters submitted by counsel for the Defendants some of which are relevant for the substantive application.
What orders should the Court make.
- Upon a brief perusal of the material presented, the Plaintiff has demonstrated that he has an arguable case. On the other hand, the
Plaintiff has disclosed in his affidavit that his current contract of employment will expire on 30th June 2023. He has about six (6) weeks remaining. He is receiving his normal wages and entitlements under the employment contract.
He has also disclosed that he has been charged by the police with criminal offences relating to financial and administrative abuses
and those investigations are ongoing (which he denies). In the circumstances, I ask. Is there any utility in granting leave to the
Plaintiff to pursue a matter which may eventually prove to be a futile exercise. Nevertheless, that is really a matter for the Plaintiff
to consider and decide.
- The issue before the Court is whether the Plaintiff has disclosed a case for substantive judicial review. I have found and am satisfied
that the Plaintiff has an arguable case for reasons given and am inclined to grant leave to the Plaintiff to seek review of the decision
of the first Defendant.
Orders
- The Court orders that:
- Leave is granted to the Plaintiff to apply for judicial review of the First Defendant’s decision made on 20 April 2023 to suspend
him (Plaintiff) as the Managing Director of Niusky Pacific Limited (NSPL) under section 143F of the Civil Aviation Act 2000 (as amended) (the CA Act).
- The Plaintiff shall file and serve a substantive Notice of Motion for judicial review pursuant to Order 16 Rule 5 of the National Court Rules within 21 days from the date of this order.
- The matter will return to Court on 8th June 2023 or thereafter for directions.
- Time be abridged.
_____________________________________________________________
Bradshaw Lawyers : Lawyers for the Plaintiff
Kuman Lawyers : Lawyers for the First Defendant
Solicitor General : Lawyer for the Second Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/146.html