Duwang v Manning [2023] PGNC 414; N10380 (22 June 2023)

N10380

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 37 OF 2023 (IECMS)

TONNY DUWANG
Plaintiff

V
DAVID MANNING COMMISSIONER OF POLICE
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 20^th June

PRACTICE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Leave Application for Judicial Review – Police Officer – Expiration of Employment Contract – Renewal Not Made – Private or Public Law – Privity of Contract – Leave Refused – cost in the cause.

Cases Cited:
Papua New Guinean Cases

Duwang v Manning [2020] PGNC 421; N8691
Rataba v Commissioner of Police [2010] PGSC 51; SC1014
Wauwia v Inguba [2013] PGNC 61; N5232
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
State v Eluh [2016] PGSC 26; SC1479
Takori v Yagari [2007] PGSC 48; SC905
Sarua v Kali [2013] PGNC 256; N5616
Marfu v Gaupu & 4 ors [2022] PGNC 439; N9881
Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886

Overseas Cases

R v East Berkshire Health Authority ex part Walsh [1984] EWCA Civ 6; [1984] 3 AER 425.
O’Reilly v Mackman [1982] 3 AER 680
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935

Counsel:

G. Konjip, for Plaintiff
M. T. Kopi, for Defendant

RULING

22^nd June 2023

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons filed of the 08^th May 2023 seeking leave for Judicial review pursuant to Order 16 Rule 3 (2) (b) of the National Court Rules.
   
2. He was assistant Commissioner of Police in the Royal Papua New Guinea Constabulary in charge of Logistics based at the police headquarters Konedobu. And was delivered a letter on the 27^th March 2023 from the Commissioner of Police stating his intention not to renew the performance-based Contract of Employment. The subject letter is annexure “TD1” to his affidavit sworn of the 04^th May 2023 filed 08^th May 2023. That is the evidence relied in this application by the plaintiff/applicant. It is dated 23^rd March 2023 subjected as Non-Renewal of Your Contract as Assistant Commissioner of Police Logistics Division. And the subject contract is from the 09^th October 2015 through to the 08^th October 2018 signed on the 22^nd October 2018. That contract has been replaced with a new one which is noted in the reply by the plaintiff, annexure “TD4” to his affidavit. The new one is not reproduced there, and its terms and conditions are a matter not before the Court. Hence in law one relationship in contract has since died a natural death by operation that it is a three-year term. And if the new one is also for a three-year period there is no evidence before me as to when it starts and when it is due to end.
   
3. But this is contrary to the letter dated 03^rd April 2023 under hand of the Commissioner, annexure “TD5” where there is no other contract except the one set out above signed by the plaintiff. Therefore, the relationship is one of a contract of employment executed between the plaintiff as Assistant Commissioner of Police and the Commissioner of Police on the other part as employer. Which has now ended with the Commissioner expressing that he has no intention of renewing a new one with the Plaintiff. The contract has details as to the duties that is called upon and executed by the Assistant Commissioner. Including what his salary and entitlements are in it, including the subject vehicle. Generally, what are the terms on either side of the contract and what relationships conditions terms on either side it creates. It has a life span of three years upon which it has since expired now. That is what has happened here. It is an agreement between the plaintiff and the Commissioner of police in their work relationship. It is not with the world at large and therefore there is privity of Contract. The state and any other, the world at large are not a party to that contract. By its domain it is private law and not public law. It will not fall into the lane of Judicial review because the latter is the domain of Public Law. And therefore, the Court will in Judicial review have no jurisdiction as to how it falls or stands except in another forum as to the veracity of that contract its terms obligations conditions and the like there. But certainly not here.
   
4. There is a marked difference between the present case and that of Duwang v Manning [2020] PGNC 421; N8691 (10 December 2020) where the contract was current and subsiding and involved sections 23, 24, and 26 of the Police Act leading to the termination of the Plaintiff. It was mixed with Public Law in that sense and so the leave for Judicial review that was granted there. Here I am faced with the contract upon which he was employed now coming to an end after its term of three years. From which the Commissioner has simply voiced that he will not renew it with the plaintiff. By itself it will not follow what the Supreme Court saw in Rataba v Commissioner of Police [ 2010] PGSC 51; SC1014 (26 February 2010). That is not the situation in this case. So, it would not be a judicial review matter and therefore initially now calling for leave.
   
5. Even if it was glossed with reference to the contract, incorporating section 133 of the Police Act 1998 including the provisions within the Police Act 1988. Provisions dealing with serious offences sections 23, 24, and 25 Imposition of penalty where the charge was sustained. And then of section 153 Standing Orders issued by the commissioner and comprised orders and instructions not inconsistent with the Act. The contract has not come to an end because of the actions by the Commissioner. It simply has come to the end of its natural life. And the Commissioner the other party to the Contract has now elected not to enter that relationship again. It is voluntary and discretionary in the relationship. It would not be a contract if the Courts step in to engage the relationship between them. Because that would offend privity of contract between the parties. Each must come to the relationship by independent free will to engage mutually, not with cohesion or force into it. Judicial review is not applicable given. Therefore, leave will not be given as privity of contract is involved. It is really descending into a private relationship between the parties. It would not be the same as in Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013). Judicial review would lie there. And leave sought for would be granted given. Because Judicial review is as to the process rather than the substance: Innovest ltd v Pruaitch [ 2014] PGNC 288; N5949 (17 March 2014). What is intended by the action filed is to the process and that is not what privity of contract is about. Which is the substantive relationship between the parties which the world is not a party to. And this Court will not dwell into invited by the plaintiff.
   
6. What is before me is likened to Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994):
   

“As a general rule judicial review is used where a public body is relying for its decision-making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged.

In R v East Berkshire Health Authority ex part Walsh [1984] EWCA Civ 6; [1984] 3 AER 425 at 429 “The remedy of judicial review is only available where issues of ‘public law’ are involved”.

And in O’Reilly v Mackman [1982] 3 AER 680 per Lord Denning at 693:

“Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty.”

And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935 @ 949:

“For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers.”

Note here the emphasis is on public law. So what is public law as against private law?

Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.

Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.

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.

In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.

But here before us the respondent was merely challenging his termination, yet neither this court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.

7. So, the aggregate here is a matter that is private law rather than public law, or the scrutiny of a Statute, the Police Act as in State v Eluh [2016] PGSC 26; SC1479 (2 February 2016) including Rataba (supra) and Wauwia (supra). I am not called to scrutinize the application and the interpretation of the Police Act. But a contract that has been entered into by the Plaintiff with the Commissioner of Police. By the endorsement of that document, it intertwines the relationship between the Commissioner of Police and the plaintiff as Assistant Commissioner of Police. It does not tie any other assistant Commissioner, Chief Superintendent, or the other rank and file similar. It is peculiar unto them and no other. I am in this regard minded that no litigant should be driven off the seat of Judgement summarily but proper regard to all to come to that decision: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). The discretion must be properly exercised given.
   
8. In my view the matter is serious, but the mode is not right to hear the matter. It should be the subject of a different proceedings between the parties: Sarua v Kali [2013] PGNC 256; N5616 (20 September 2013) and Marfu v Gaupu & 4 ors [2022] PGNC 439; N9881(11 August 2022) illustrates that what is sought is in law of contract and in damages if indeed there are breaches evidenced. And this view is firmed out by the Supreme Court in Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886 (4 August 2017) that Judicial review is not the mode to address the matter because it is private law. And Judicial review is public law. Therefore, leave will not lie here given. I refuse the application with Costs.
   
9. The formal orders of the Court are:
   
   • (i) Leave for Judicial review is refused forthwith.
     
   • (ii) Costs will follow the event against the plaintiff in favour of the defendants forthwith.

Orders Accordingly.

__________________________________________________________________

Konjip & Associate Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants