Yalakun v Agon [2024] PGNC 152; N10827 (13 May 2024)

N10827

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 25 OF 2024 [IECMS]

BETWEEN:
JEFFREY YALAKUN
Applicant

AND
IMELDA AGON AS THE CHIEF EXECUTIVE OFFICER OF NATIONAL GAMING CONTROL BOARD
First Defendant

AND
NATIONAL GAMING CONTROL BOARD
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dowa J
2024: 8 & 13^th May

CIVIL PROCEDURE-JUDICIAL REVIEW-application for leave to apply for judicial review- – Demotion of appointment as Director Gaming Administration to Senior Gaming Inspector - Whether judicial review available-considerations for leave to apply for judicial review discussed- Public Law rights and Private Law rights - Plaintiffs employment contract is personal and governed by private law-judicial review not available -application refused.

Cases Cited:
NTN -v- PTC [1987] PNGLR 70
Asakusa -v- Kumbakor (2008) N3303
Joseph Klapat v. NEC & Ors (2014) N5536
Isaac Lupari v. Sir Michael Somare & Ors (2008) N3476
Issac Lupari v Sir Michael Somare & others (2008) SC930
Ereman Ragi v. Joseph Maingu (1994) SC459
Young Wadau v. PNG Harbours Board [1995] PNGLR 357
Rose Kekedo v. Burns Philip Limited [1988-89] PNGLR 122
Hon, Peter O'Neil & Ors v. Joseph Klapat & PSC (2014) SC1385
Ron Napitalai v. Caspar Wallace (2010) SC1016
Thadeus Kambanei v. The National Executive Council & 5 Ors (2004) N3065
Ibraham Sulaiman v PNG University of Technology (1987) N610
Tom Gesa v Bernard Kipit & other (2003) N2457
Joel Luma v John Kali & others (2014) SC1401
NCDC v Kasper (2023) SC2435
Albert Kuluah v UPNG [1993] PNGLR 494

Counsel:
M Koimo, for the Plaintiff
R. Saulep, for the Defendants

13th May 2024

1. DOWA J: The Applicant applies for judicial review of the decision of the First Defendant dated 06th December 2023 terminating the employment contract of the Plaintiff dated 22nd August 2022 as Director- Gaming Administration and demoting the Plaintiff to the position of Senior Gaming Inspector. The application was filed on 25th March 2024 and is made pursuant to Order 16 Rule 13(1) of the National Court Rules (NCR).
   

Brief Facts

2. The Applicant was the substantive holder of the position, Director-Gaming Administration, with the Second Defendant by virtue of employment agreement dated 22nd August 2022 for a term of three (3) years. On 6th of December 2023, the First Defendant terminated the Applicant’s employment contract and demoted him to the position of Senior Gaming Inspector. The reason for decision was that the Plaintiff divulged confidential information to external clients about the second Defendant’s operations. The Plaintiff alleges he was punished twice for the same allegations as he was previously cautioned on 11th August 2023 for the offence.
   
3. The Plaintiff applies for leave to apply for judicial review of the first Defendant’s decision.
   

The Application

4. The application was heard on 8^th May 2024. The Defendant opposed the application on the basis that judicial review is not available to the Plaintiff as his allegations are based on breach of contract of employment which is governed by private law.

5. The Plaintiffs rely on the following documents:

1. Originating Summons filed 25th March 2024
2. Statement Pursuant to Order 16 Rule 3, NCR, filed 25th March 2023

100. Affidavit in Support by Jeffrey Yalakun filed 25th March 2024
     

Issue

6. The main issue for consideration is whether the Plaintiff is entitled to be granted leave to apply for judicial review.

Law

7. The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:

1. The applicant must have sufficient interest.
2. The applicant must have an arguable case.

100. There must be no undue delay.

4. The applicant must have exhausted all other statutory/administrative avenues for appeal or review.
   

8. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:

“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 (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).

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 Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

"If, on a quick perusal of the material then available, 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 to 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."

Consideration

1. Does the Plaintiff have Sufficient interest.
   

9. There is no doubt the decision to demote the Plaintiff from his contracted position of Director- Gaming Administration to Senior Gaming Inspector directly affected him, thus, he has sufficient interest to institute the proceedings.

2. Does the applicant have an arguable case.
   

10. The Plaintiff alleges he was penalised twice for the same disciplinary offence. On 17th March 2023, the Plaintiff was served notice to show cause for divulging confidential information to external clients prior to Board meetings. He was given seven (7) days to respond. The Plaintiff provided a response on 29th March 2023. On 11th August 2023, the first Defendant issued a disciplinary warning and cautioned the Plaintiff. On 6th December 2023, the first Defendant issues a notice of demotion to the Plaintiff, demoting him from Director Gaming Administration to Senior Gaming Inspector. The Plaintiff alleges that he was disciplined twice for the same offence as he was already cautioned on 11th August 2023. A perusal of the Notice of Demotion dated 6th December 2023, show he was demoted for a Disciplinary Notice issued on 17th August 2023, not the one cited for 17th March 2023. In the absence of any clarification, it is arguable that he is penalised twice, amounting to a breach of the contract of his employment. Whether the Plaintiff’s complaint advances to a substantive review hearing will depend on whether the Plaintiff has a right of review.

100. Has the Plaintiff exhausted all administrative avenues for redress?
     

11. Mr. Koimo, counsel for the Plaintiff, alleges that the Plaintiff is employed by a Statutory body and that the decision of the first Defendant as the CEO of the second Defendant is final pursuant to clause 25 (1) (d) of the Terms and Conditions of Employment of the Employees in the National Gaming Control Board and thus the only course is for the Plaintiff to seek judicial review.

12. Mr. Saulep, counsel for the first and second Defendants, argues that judicial review is not available to the Plaintiff submitting that the decision by the first Defenant is not made by a public body, and the Plaintiff’s claim is for breach of contract of employment and is governed by private law.

13. Judicial review concerns the review of decisions made by quasi- judicial bodies. The law on applications for judicial review on contracts of employment is discussed and applied in the following cases:

Joseph Klapat v. NEC & Ors (2014) N5536
Isaac Lupari v. Sir Michael Somare & Ors (2008) N3476
Issac Lupari v Sir Michael Somare & others (2008) SC930
Ereman Ragi v. Joseph Maingu (1994) SC459
Young Wadau v. PNG Harbours Board [1995] PNGLR 357
Rose Kekedo v. Burns Philip Limited [1988-89] PNGLR 122
Hon, Peter O'Neil & Ors v. Joseph Klapat & PSC (2014) SC1385
Ron Napitalai v. Caspar Wallace (2010) SC1016

Thadeus Kambanei v. The National Executive Council & 5 Ors (2004) N3065

Ibraham Sulaiman v PNG University of Technology (1987) N610.

Tom Gesa v Bernard Kipit & other (2003) N2457

Joel Luma v John Kali & others (2014) SC1401

NCDC v Kasper (2023) SC2435

Albert Kuluah v UPNG (1993) PNGLR 494

14. The main principles or proposition of law that emanate from the discussions and decisions in the above cases are:

a. Judicial review is not available where the employing agency is not created by Statute but under the Companies Act.

b. Judicial review is not available, though the employing agent is created by Statute, where the employment contract is governed by the agency’s own terms and conditions of employment and the employment relationship is personal, private and the appropriate remedy is for damages.

c. Judicial review is not available where the decision does not involve any breach of substantive or procedural statutory law.

d. Judicial review is available to an applicant where his contract of employment is supplemented by the Constitution and Statute, like the Public Service (Management) Act, and his appointment is for public importance and interest, thus governed by public law.

15. In Joel Luma v John Kali & others (2014) the Supreme Court stated the relevant considerations to be applied reinforcing the consideration(d) at paragraphs 54 to 55 of the judgment:

“54. Summarising the foregoing discussions, in a case where a terminated contract employee seeks leave for judicial review, the question of whether his remedy lies in judicial review or damages is a relevant consideration and threshold issue. However, each case must be considered on its own merits. We consider that the Court must be guided by the following basic principles; first, it must look at the process of appointment and revocation. If it is governed by the Constitution or statute, it is open to judicial review. If not, it is a matter of private law where the appropriate remedy is damages for breach of contract.

55. Secondly, the subject action or decision must be of public importance and interest. It must be a subject of an exercise of power. The third consideration is that if the employing agency is not created under a statute but is incorporated under the Companies Act, the termination is of a private law nature and the remedy of judicial review is not available to the aggrieved party: Ron Napitalai v. Caspar Wallace (2010) SC1016.”
16. Turning to the present case, it is clear, the Plaintiff’s contract of employment is personal and private. The allegations are for breach of the terms of his employment contract. The position he holds under the contract is not one of public importance or interest. The decision is made by the first Defendant, a fellow but senior employee who is entrusted with the responsibility of managing the employment contract on behalf of the second defendant. The decision maker is not a public body perse. The Plaintiff has the option of suing the Defendants for breach of contract seeking various reliefs he considers appropriate in private law as opposed to public law. It is not as though he has no option nor has, he exhausted other means of seeking redress.

17. For the foregoing reasons, judicial review is not available to the Plaintiff. The application for leave to apply for judicial review shall be refused.

Costs
18. Cost is a matter of discretion. Usually leave applications are heard exparte. In the present case, the Defendants were represented by private counsel. It is appropriate that cost be awarded to the Defendants. It is also appropriate to fix the amount for the cost given the limited life of the proceedings in Court. The Court will hear parties first before fixing any specific amount.

Orders
19. The Court orders that:

1. The Plaintiff’s application for leave to apply for judicial review is refused.
2. The Plaintiff shall pay the Defendants cost which cost shall be fixed by the Court after hearing submissions from the parties.
3. Time be abridged.
   

________________________________________________________________
Kipes Lawyers: Lawyers for the Plaintiff
Saulep Lawyers: Lawyer for the First and Second Defendants.