Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 122 - Dr Rose Kekedo v Burns Philp (PNG) Ltd 

[1988-89] PNGLR 122

SC373

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KEKEDO

V

BURNS PHILP (PNG) LTD AND OTHERS

Waigani

Kapi DCJ Amet Cory JJ

29 November 1988

13 April 1989

ADMINISTRATIVE LAW - Judicial review of administrative acts - Application for leave - General principles - Where alternative statutory remedies not exhausted - Discretionary considerations - Public policy and socio-political considerations - Whether abuse of process in pursuing remedies concurrently - Employment of Non-citizens Act (Ch No 374), s 9.

PRACTICE AND PROCEDURE - Application for leave to apply for judicial review - Where alternative statutory remedies not exhausted - General rule - Discretionary considerations - Whether abuse of process where alternative procedures pursued concurrently.

EMPLOYMENT LAW - Employment of non-citizens - Cancellation and revocation of permits - Whether judicial review available before statutory remedies exhausted - Whether abuse of process where pursued together - Employment of Non-citizens Act (Ch No 374), s 9.

CONSTITUTIONAL LAW - Underlying law - Development of - By National Court - Slavish reliance on overseas precedents disapproved.

Under s 9(4) of the Employment of Non-citizens Act (Ch No 374), a person aggrieved by the cancellation of a work permit by the Secretary for the Department of Labour and Employment may appeal to the Minister.

On appeal from leave to apply for judicial review of a decision of the Secretary for the Department of Labour and Employment to cancel a work permit,

Held

N1>(1)      That although the judicial review jurisdiction of the National Court exists and may be invoked where an alternative statutory administrative remedy is available, as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted.

Independent State of Papua New Guinea v Kapal [1987] PNGLR 417 at 421-422, followed.

N1>(2)      In the exercise of the discretionary power to grant or refuse an application for judicial review the following considerations may be relevant:

N2>(a)      the public policy considerations behind particular legislative enactments;

N2>(b)      the socio-political circumstances and aspirations of the country;

N2>(c)      the practicalities of the procedures for judicial review and statutory review such as speed of hearing; and

N2>(d)      whether the matter depends on some particular or technical knowledge which is more readily available to the statutory review body.

Independent State of Papua New Guinea v Kapal [1987] PNGLR 417, followed.

N1>(3)      In the circumstances, the legislative intention behind the Employment of Non-citizens Act (Ch No 374) to oversee the employment or continued employment, cancellation and termination of the employment opportunities of non-citizens, through administrative structures and remedies, required that those procedures and remedies be exhausted before an application for judicial review be granted.

N1>(4)      It would be an abuse of process for the National Court to grant an application for leave to apply for judicial review whilst alternative administrative appeal procedures were being pursued.

(Per Amet J) “[I]t is time this Court made a more meaningful effort at developing an underlying law which is more appropriate and responsive to the socio-political circumstances and aspirations of this country instead of slavishly following English and other overseas common law precedents.”

Cases Cited

Papua New Guinea, Independent State of v Kapal [1987] PNGLR 417.

R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 QB 424.

R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380.

Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1987] PNGLR 44.

Appeal

This was an appeal from leave to apply for review of a decision of the Secretary for the Department of Labour and Employment to cancel a work permit pursuant to s 9(4) of the Employment of Non-citizens Act (Ch No 374).

Counsel

Z Gelu, for the appellant.

T Glenn, for the respondents.

Cur Adv vult

13 April 1989

KAPI DCJ: The facts of this case are fully set out in the judgment of Amet J and I do not wish to repeat them.

The principal ground on which the Court was asked to allow the appeal was that the respondents had not exhausted the available statutory remedy of appeal to the Minister under s 9(4) of the Employment of Non-citizens Act (Ch No 374) before invoking the judicial review power of the National Court. The proposition that judicial review is not available where there is an alternative remedy by way of appeal cannot be supported by authority: see R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 QB 424 at 433. Where there are no expressed words taking away the judicial review jurisdiction of the National Court, the existence of the statutory remedy by way of appeal is no bar to the exercise of the judicial review jurisdiction: see R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 at 400. This jurisdiction, of course, is discretionary. The rule is well established now that the judicial review jurisdiction will not be exercised readily where other remedies are available. In R v Chief Constable of Merseyside Police; Ex parte Calveley, Donaldson MR and May LJ reviewed the English authorities regarding the exercise of judicial review jurisdiction where there is an alternative remedy by way of appeal. The following principles emerge from this case:

N2>1.       That the National Court judicial review jurisdiction exists even where appeal procedures are provided by the Parliament. This jurisdiction can only be taken away by express provision.

N2>2.       Save in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where other remedies are available.

N2>3.       Whether the statutory procedure would be quicker, or slower than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellant body are amongst the matters which a court may take into account when considering the exercise of discretion. The fact that judicial review is quicker and more convenient is of itself not sufficient ground for the exercise of jurisdiction.

N2>4.       The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.

N2>5.       The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

The principles stated in this case are no different to those adopted by the Supreme Court in Independent State of Papua New Guinea v Kapal [1987] PNGLR 417.

In applying these principles to the present case, the respondents have failed to bring themselves within the exceptions to the rule. I agree entirely with Amet J in the application of these principles to the particular circumstances of this case, namely, the subject matter and the policy considerations and the scheme of the Employment of Non-citizens Act in Papua New Guinea. I also agree with him that, in the absence of any exceptional circumstances discussed above, the manner in which the appeal was lodged with the Minister and the proceedings brought before the National Court can only amount to abuse of process. I would allow the appeal and quash the order granting leave to the respondents for judicial review. The appeal to the Minister should be allowed to proceed.

AMET J: This is an appeal from an order of the National Court on 24 August 1988 granting leave to the respondents to apply for judicial review of a decision of the appellant as Secretary for the Department of Labour and Employment.

A brief account of the facts leading to this appeal is as follows. On 12 May 1988, an industrial dispute between Burns Philp (PNG) Ltd and Burns Philp Citizen Staff Association was reported to the appellant by the Association, alleging several general issues of unfair practices by Senior Management of Ela Motors, a subsidiary of the Burns Philp Company. Subsequently, a departmental tripartite committee was established to investigate the issues raised, including the two respondent employees. The investigating committee submitted its report to the appellant. On 9 August 1988, the appellant advised the Managing Director of Burns Philp of her conclusions from the report. On 16 August 1988, the appellant advised that:

“After a careful analysis of the investigation report and upon further assessment, I have now decided to cancel the work permits of Mr Collins, Mr Legan and Mr Welch.”

She further advised that:

“Section 9(4) of the Employment of Non-citizens Act (Ch No 374) gives you 14 days from this notification, to lodge an appeal to the Minister for Labour and Employment, whose decision is final.

In conjunction with the above provision, you are also instructed under s 11, to terminate the employment of the three persons concerned within 14 days of this notice and notify this Department accordingly.”

From this decision of the appellant, the respondents applied for and were granted leave by the National Court to apply for judicial review by the National Court, of the appellant’s decision.

The ground of appeal is that the National Court erred both in law and fact in granting leave for judicial review in that the respondents had not exhausted their statutory remedies under the Act, in that a final decision had not been made pursuant to s 9(4) of the Employment of Non-citizens Act.

Section 9 provides:

N2>“(1)    Where the Secretary is satisfied that:

(a)      the application for a work permit ... contained information that was false or misleading in any material particular; or

(b)      there has been a contravention of any conditions of the work permit ...,

he may cancel the work permit ...

N2>(2)      Where the Secretary is satisfied that a non-citizen in respect of whom a work permit has been granted is not a fit and proper person to continue to have a work permit, he may cancel it.

N2>(3)      The Secretary shall give written notification of any cancellation of a work permit ... under this section to the employer and to the non-citizen and the work permit ... shall cease to be valid on the expiry of 14 days from the date of notification.

N2>(4)      Any person aggrieved by the cancellation of a work permit ... under Subsection (1) or (2) may, within 14 days of notification of cancellation, appeal to the Minister whose decision is final.”

The appellant has submitted that the respondents have not exhausted the available statutory remedy of appeal to the Minister under s 9(4) before invoking the review jurisdiction of the National Court.

The originating summons seeking leave to apply for judicial review and consequential restraining orders was filed on 19 August 1988 and orders granted on 24 August. It was disclosed in the affidavits of the Minister, Peter Garong, and the appellant, and counsel for the respondents, that an appeal pursuant to s 9(4) to the Minister was, in fact, lodged on 29 August 1988. Mr Glenn, for the respondents, admitted and submitted that this course was quite proper to save the respondents’ option to pursue that remedy should their application for judicial review be unsuccessful. I will return to this later.

The respondents made a number of submissions relying considerably on overseas decisions relating to administrative tribunals. It was said that the existence of an alternate statutory remedy did not oust the inherent supervisory review jurisdiction of the courts, and thus did not affect the right to apply to the Court in the first instance.

It was submitted that the appellant Secretary’s factual and jurisdictional basis for decision was wrong, that there were technical irregularities and errors of law which only a court of law could properly address. The decision to grant leave to apply for judicial review was a discretionary one, exercised properly by the National Court. Courts would be reluctant to grant leave for review if the alternative remedy provided for a full hearing. In this instance, it was not provided in the Act that a full inquiry was permitted. The appeal was inter-departmental, from the Departmental Secretary to the Minister responsible for the Department. The Act did not provide for a stay of enforcement of the decision appealed against either.

It was submitted that if the existence of an alternative remedy is irrelevant, then that is the end of the matter. But if it is relevant but not dispositive, then the judge at first instance has exercised his discretion and the Supreme Court should not interfere with the exercise of that discretion, unless there has been an error of law.

It was submitted that the decision not to appeal to the Minister in the first instance was a deliberate one to protect the respondent’s right to do so at a later time, should application for leave to apply and the actual application for judicial review be unsuccessful.

I agree that the equitable and, indeed, inherent constitutional supervisory review jurisdiction of the National and Supreme Courts cannot be ousted altogether by provision of statutory administrative alternate remedies.

The Employment of Non-citizens Act is, by its preamble, an Act to control and regulate the employment of non-citizens. It is expressed to be an Act that regulates and restricts the rights to freedom of employment conferred by s 48 of the Constitution, of non-citizens. This being the special nature of this Act, I consider that the courts should be cognisant of, and bear in mind, the public policy considerations behind legislative intentions in enacting special remedial provisions. The area of employment of non-citizens is a particularly sensitive one. Sovereign nations are very zealous in protecting employment opportunities for their national citizens. I believe, therefore, that the legislative intention to oversee the employment or continued employment, cancellation and termination of the employment opportunities of non-citizens, through administrative structures and remedies, should firstly be honoured, and given effect to, by the judiciary, before being encroached upon.

The appeal provision in s 9(4) of the Act, in my view, is such a provision manifesting this sovereign nation’s legislature’s intentions, that any non-citizen, aggrieved by the cancellation of his or her work permit by the Chief Departmental Officer, should first be reviewed by the political head of that Department. This must be the general rule. There will, of course, be cases where recourse directly to the courts will be the most suitable remedy.

In this case, the respondents did lodge an appeal to the Minister pursuant to s 9(4) within 14 days, on 29 August 1988, but five days after having obtained leave from the National Court, on 24 August 1988, to apply for judicial review. As I said, counsel for the respondents submitted that this was adopted as a deliberate choice to protect the believed option still to pursue the remedy of appeal to the Minister, should the application for judicial review to the National Court be unsuccessful.

Well, to say the least, this belief is totally misconceived and mischievous. I cannot imagine that an aggrieved litigant who elects the option of going directly to a superior court of law for redress, would then be permitted, if he were unsuccessful, to pursue the alternative remedy before an inferior court. It is even more improbable to impossible to then seek to go back to an administrative tribunal such as, in this case, to a Minister. There are hierarchies of tribunals, from administrative to judicial, and if an aggrieved party chooses to by-pass a statutory administrative remedy to a superior court, he cannot then be permitted to go back to the administrative remedy with the subsequent rights of appeal to the same superior court should he be further unsuccessful. I find the proposition quite mischievous and without substance. It would be tantamount to an abuse of process, in my view, for this Court to countenance such a contemplated course: see Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44.

Parliament has, on the basis of the public policy considerations that I have alluded to, which can be inferred, deliberately enacted a statutory administrative remedial option which, although it is not exclusive and does not necessarily oust the supervisory constitutional jurisdiction of the superior courts, as a general rule, should be exhausted before recourse is had to the courts.

I do not consider that any exceptional circumstances exist in this case not to adhere to this general rule. The appeal is provided for within fourteen (14) days. Termination is also required to be effected within fourteen (14) days of notification of cancellation of the work permit. I consider that if an appeal to the Minister is not able to be disposed of within 14 days or by the end of the 14-day period, then an application for stay of enforcement of termination can be made to the court. No loss would be suffered in these circumstances. If the appeal is unsuccessful, then the aggrieved person has recourse to superior courts. His or her rights are amply protected.

In Independent State of Papua New Guinea v Kapal [1987] PNGLR 417, Kidu CJ and Woods J said, at 421-422:

“... One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provision for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used: see, eg, R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 per Sir John Donaldson MR (with Purchas LJ concurring). This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice ...

We consider that in this case the learned trial judge should have considered whether or not to exercise the Court’s powers of judicial review. In view of what we have already said on the merits, the fact that the trial judge did not exercise his mind on this matter makes very little difference. But in future, we consider that this threshold question be decided before the National Court invokes its judicial review jurisdiction.”

I consider these remarks totally appropriate to this case, and I would adopt them. In the course of argument, counsel for the respondents referred to many case authorities and precedents of principles from overseas jurisdictions, principally English and Australian. I do not propose to make reference to any of them. Many such overseas precedents have different socio-political contexts and public policy considerations applying to the statutes, administrative structures, tribunals and institutions that they relate to, albeit that some of the general principles are of universal application.

I believe it is time this Court made a more meaningful effort at developing an underlying law which is more appropriate and responsive to the socio-political circumstances and aspirations of this country instead of slavishly following English and other overseas common law precedents. Lawyers appearing before this Court, the National Court, and other courts generally, would do well to research domestic precedents instead of simply relying solely on overseas precedents as was done in this case.

In the final analysis, I hold that the appeal be allowed, the orders of the National Court of 24 August 1988 be set aside, and the proceedings be dismissed. Costs to the appellant.

CORY J: I have read and agree with the judgments of Kapi Dep CJ and Amet J. I have nothing further to add. I would allow the appeal and quash the order granting leave to the respondents for judicial review. The appeal to the Minister should be allowed to proceed. I would order the respondents to pay the appellant’s costs.

Appeal allowed

Lawyer for the appellant: State Solicitor.

Lawyers for the respondents: Blake Dawson Waldron.