Lupari v Somare [2010] PGSC 21; SC1071 (10 June 2010)

SC1071

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 14 OF 2008

BETWEEN:

ISAAC LUPARI
Appellant

AND:

SIR MICHAEL SOMARE, MP – PRIME
MINISTER & CHAIRMAN OF THE
NATIONAL EXECUTIVE COUNCIL
First Respondent

AND:

RIGO LUA – CHAIRMAN OF PUBLIC
SERVICE COMMISSION
Second Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Salika DCJ, Kandakasi,
Batari, Gabi and Hartshorn JJ.
2009: 3rd July,
2010: 10th June

ADMINISTRATIVE LAW - judicial review of decision of National Executive Council to revoke the employment of the appellant - decision held unlawful by National Court - certiorari granted - National Court not ordering reinstatement - appeal against non-reinstatement

JUDGMENTS AND ORDERS - appropriate orders for judicial review - matters to be considered in determining relief, if any, after certiorari granted - employer employee relationship

Facts:

The appellant commenced proceedings against the respondents to judicially review the decision by the National Executive Council to revoke his employment. The National Court quashed the decision but refused to order reinstatement. The appellant appealed the decision of the National Court for amongst others, refusing to order his reinstatement.

Held:

1. Belated evidence is irrelevant and ought not to be considered when reviewing the lawfulness or otherwise of the decision, but it is relevant and may be considered in determining the remedy; per Gabi J at [33];

2. The trial judge correctly considered the affidavit evidence in determining the remedy and correctly refused reinstatement; per Gabi J at [35];

3. The five principles developed by the trial judge are principles of common law and equity found in this jurisdiction. They are principles relating to the grant of remedy in unlawful dismissal cases and apply generally in both the public and private law context; per Gabi J at [39];

4. The trial judge was correct in not dealing with all grounds of review. If one of the grounds disposes of a matter there is no need for the trial judge to consider the other grounds of the case; per Gabi J at [44];

5. The National Court, upon upholding a judicial review application, has the discretion whether to grant a remedy and if it decides to grant a remedy, the type of remedy; per Hartshorn J at [55];

6. It is appropriate for a Court to consider evidence of post decision circumstances in determining a remedy as distinct from whether a decision is unlawful; per Hartshorn J at [65];

7. The Court must look at all of the circumstances of the case in deciding whether and if so, what remedy should be granted. This includes, in the private or public law context, a consideration of whether the employer employee relationship should continue; per Hartshorn J at [71];

8. That the trial judge did not consider other grounds of review is not an error as he did not have to consider them after determining that the appellant was entitled to have his application for judicial review upheld on another ground; per Hartshorn J at [79];

9. The appeal is dismissed. The appellant shall pay the costs of the first and third respondents' of and incidental to the appeal; per Salika DCJ. and Batari, Gabi and Hartshorn JJ.

Cases cited:

Papua New Guinea Cases
Allen Pinggah v. Margaret Elias (2007) SC888
Avia Ahi v. The State (No. 1) [1981] PNGLR 81
Bean v. Bean [1980] PNGLR 30
Christopher Appa v. Peter Wama [1992] PNGLR 395
Curtain Bros (PNG) Ltd v. The UPNG (2005) SC788
Ereman Ragi v. Joseph Maingu (1994) SC459
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
Koitachi Ltd v. Walter Schnaubelt (2007) SC870
Michael Gene & Ors v. Hamidian-Rad [1999] PNGLR 444
Mision Asiki v. Manasupe Zurenouc & 2 Ors (2005) SC797
MVIL v. John Etape [1994] PNGLR 596
MVIT v. Pupune [1993] PNGLR 370
Robinson v. National Airlines Commission [1983] PNGLR 476
Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016
Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
State v. Sam Akoita & Ors (2009) SC977
Tom Abai & Ors v. The State (2000) SC632
Young Wadau v. PNG Harbours Board (1995) SC489

Overseas Cases
Ball v. Coggs (1710) 1 Bro Parl Case 140
C. H Giles and Company Ltd v. Morris [1972] 1 All ER 960
Chief Constable of North Wales v. Evans [1982] UKHL 10; [1982] 1 WLR 1155
Cuckson v. Stones (1858) 1E & E 248
East India Co v. Vincent (1740) 2 ALK 83
Ferriday v. Chief Constable of Gwent [2009] EWHC 2083
Francis v. Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411
Gregory v. Philip Morris (1987) 80 ALR 455
Gunton v. Richard-upon-Thames London Borough Council [1980] 3 All ER 577
Hill v. C.A. Parson and Co. Ltd [1971] 3 All ER 1345
Howe v. Gosford Shire Council [1962] N.S.W.R. 58
Lane v. Fasciale (1991) 5 VIR 33
Lavarack v. Woods of Colchester Ltd [1966] EWCA Civ 4; [1966] 3 All ER 683
Liddell v. Lembke (1994) 124 ALR 342
Lumley v. Wagner [1843-60 All ER 368
R. Muir, Ex Parte Joyce [1980] Qd R. 567
Thomas Marshall (Exports) Ltd v. Guinle [1978] 3 All ER 193
Vine v. National Dock Labour Board [1956] 1 All ER 1
Warbuton v. Co-operative Wholesale Society Ltd [1917] 1KB 663

Counsel:
Mr. H. Nii, for the Appellant
Mr. L. Kandi and Mr. S. Singin, for the First Respondent
Mr. E. Andrew, for the Second Respondent
Mr. L. Kandi, for the Third Respondent

10th June, 2010

1. SALIKA DCJ. I have read the draft judgments of Gabi J. and Hartshorn J. and I agree with their reasoning and their conclusions. I would dismiss the appeal and order costs against the appellant in favour of the first and third respondents.

2. KANDAKASI J. [Not yet available.]

3. BATARI J. I also have had the benefit of reading the draft judgments of Gabi J. and Hartshorn J. and I agree with their reasoning and the conclusions reached. I have nothing further to add.

4. GABI J. This is an appeal against the decision of Injia, DCJ (as he then was) on 22nd September 2008, whereby His Honour quashed the National Executive Council ("NEC") decision dated 24th April 2008, which revoked the appointment of the appellant as the Secretary to the Department of Prime Minister and NEC and Chief Secretary to Government. The appellant specifically sought reinstatement and the position was vacant at the relevant time. However, His Honour refused to reinstate him. He was of the view that the appellant's remedy lay in damages not reinstatement. The appellant appeals against the refusal to reinstate and the failure to consider the other grounds of review, "more particularly the ground of breach of natural justice."

FACTS

5. The brief facts are that the appellant was a career public servant and has held a number of senior positions in the Public Service. On 12th April 2007, NEC appointed him to the position of Chief Secretary for a period of four years. On 20th July 2007, he executed a contract of employment with the State, effective from 12th April 2007. On 24th April 2008, at its meeting held at Madang, NEC revoked his appointment. On 28th April 2008, the Head of State issued an instrument of revocation which was published in the National Gazette and on the same day copies of the instrument of revocation were served on the appellant. The Public Services Commission ("PSC") was not consulted before the decision was made to terminate the appointment of the appellant. The appointment was revoked "in the interest of the State."

GROUNDS OF APPEAL

6. The appellant relies on ten grounds of appeal. They are lengthy as they include submissions. As such, they are not reproduced in full but are paraphrased for the purposes of convenience.

7. The grounds of appeal, in essence, are that the trial judge erred in law:

a) In holding that he did not have the power under sections 23 and 155(4) of the Constitution to reinstate the appellant;

b) In improperly exercising his discretion by failing to reinstate the appellant;

c) In admitting and relying on the affidavits of the first respondent and Ms. Winnie Kiap to justify the revocation of the appointment of the appellant and his refusal to reinstate the appellant;

d) Ground 4 was abandoned;

e) By misinterpreting the application of Order 16 Rule 1 of the National Court Rules and the Supreme Court judgment in Mission Asiki v. Manasupe Zurenouc (2005) SC797 to refuse reinstatement;

f) In developing five new principles of law which are applicable in private contract situations under private law, not public or statutory contract situations under public law;

g) In applying the five principles to the inadmissible evidence of the first respondent and Ms. Winnie Kiap, which evidence influenced the trial judge to hold that the appellant's remedy lay in damages;

h) In failing to consider the "floodgate" arguments raised by the appellant, which were directly relevant to the consideration of the issue of whether or not to reinstate the appellant;

i) In failing to reinstate the appellant when his case was considered to be "a special and peculiar" one;

j) In law in dealing with the ground of error of law only and not considering the other grounds of review, especially breach of natural justice, that is, lack of reasons for the decision to revoke the appointment of the appellant.

8. The central issue raised by the above grounds is the remedy available to the appellant. The appellant, though conceding that the grant of remedy was discretionary, argued that after the finding that the revocation was unlawful, reinstatement ought to have been readily granted. The respondents, on the other hand, argued that the trial judge was correct in holding that the appellant's remedy lay in damages.

Ground 1

9. In order to understand the power of the court, it is appropriate to consider briefly the common law remedies generally and statutory remedies, specifically in Australia, to illustrate the point that no statutory remedy exists in this jurisdiction.

COMMON LAW REMEDIES FOR UNFAIR DISMISSAL

10. In Vine v. National Dock Labour Board [1956] 1 All ER 1, Jenkins L J said at 8:

"In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more."

11. That statement was adopted by the House of Lords (Vine v. National Dock Labour Board [1956] 3 All ER 939). Ordinarily, an injunction will not be granted to compel either a master or a servant to continue a personal relationship which has become noxious to either of them, and the remedy for an employee who has been wrongfully terminated is damages for wrongful dismissal: Howe v. Gosford Shire Council [1962] N.S.W.R. 58 and Robinson v. National Airlines Commission [1983] PNGLR 476. The traditional rationale is that the courts will not force parties in a "personal relationship" to continue in the relationship against the will of one of the parties. The other considerations in refusing to order specific performance are the loss of trust and confidence between the parties in cases of wrongful termination. Traditionally, the courts have been very reluctant to order reinstatement or specific performance of an employment contract, particularly where the employer has dismissed the employee. However, the rule is not inflexible. In "special" or "exceptional" circumstances, a court may order specific performance of a contract for personal services: Francis v. Municipal Councillors of Kuala Lumpur [1963] 3 All ER 633; Hill v. C. A. Parson and Co. Ltd [1971] 3 All ER 1345; C. H Giles and Company Ltd v. Morris [1972] 1 All ER 960; Thomas Marshall (Exports) Ltd v. Guinle [1978] 3 All ER 193 and Gunton v. Richard-upon-Thames London Borough Council [1980] 3 All ER 577.

12. In Hill v. C. A. Parson and Co. Ltd (supra), the plaintiff was within two years of retirement and his pension depended on his average salary for his last three years of employment. The plaintiff was a chartered engineer aged 63. He worked for the defendants for 35 years and was due to retire at the age of 65. The amount of his retirement pension depended on his average salary during the last three years of his employment. The defendants wrote to the plaintiff purporting to terminate his contract of employment. He was given one month's notice. The plaintiff issued a writ against the defendants for wrongful dismissal and asked for an interim injunction restraining the defendants from treating the notice as having determined his employment. The injunction was granted. Lord Denning M.R said at 1349 to 1350:

"Suppose, however, that the master insists on the employment terminating on the named day? What is the consequence in law? In the ordinary course of things, the relationship of master and servant thereupon comes to an end; for it is inconsistent with the confidential nature of the relationship that it should continue contrary to the will of one of the parties thereto. As Viscount Kilmuir LC said in Vine v. National Dock Labour Board [1956] 3 All ER 939 at 934, referring to the ordinary master and servant case:

'...if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract.'

Accordingly, the servant cannot claim specific performance of the contract of employment. Nor can he claim wages as such after the relationship has determined. He is left to his remedy in damages against the master for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less, of course, anything he has, or ought to have earned, in alternative employment. He does not get damages for the loss of expected benefits to which he had no contractual right: see Lavarack v. Woods of Colchester Ltd [1966] EWCA Civ 4; [1966] 3 All ER 683. I would emphasise, however, that that is the consequence in the ordinary course of things. The rule is not inflexible. It permits of exceptions. The court can in a proper case grant a declaration that the relationship still subsists and an injunction to stop the master treating is as at an end. That was clearly the view of the Privy Council in the latest case on the subject, Francis v. Municipal Councillors of Kuala Lumpur [1962] 3 All ER 633 at 637, where Lord Morris of Borth-y-Gest said:

'...when there has been a purported termination of a contract of service a declaration to the effect that contract of service still subsists will rarely be made.'

He added that in 'special circumstances' it may be made."(Emphasis added)

13. In Australia, the courts have been very reluctant to order specific performance of an employment contract. Although there is no absolute principle that a court will not order specific performance of a contract of employment, an order for specific performance will be made only in "exceptional and rare circumstances": Lane v. Fasciale (1991) 5 VIR 33. In that case, the governing body of the school decided in February 1991 that the school should be closed at the end of 1991. Some public concerns arose as to the closure, and the plaintiff, who was the headmaster of the school at the time, joined in public meetings concerning the closure. He was thereafter expressly instructed in writing to assist the defendant in giving effect to the closure decision. He was instructed in particular to refrain from any further public comment against the closure. The plaintiff continued to participate in certain activities in connection with opposition to the closure which ultimately resulted in his dismissal without notice in 1991. After his termination a person was appointed to fill the headmastership of the school. The plaintiff sought reinstatement as headmaster for the remainder of the academic year. The court found that the plaintiff was wrongfully terminated, but refused to reinstate him on the basis that the reason for reinstating the plaintiff lacked merit, that the defendant no longer had confidence in the plaintiff and that damages would be adequate remedy.

14. With respect to the issue of specific performance of a contract of employment, Nathan J after having canvassed authorities on the question in United States, United Kingdom, Canada and Australia said at 37 to 38:

"The present position in Australia is best recited as follows: specific performance of employment contracts will be enforced in exceptional and rare circumstances where damages would provide an inadequate remedy, and where the confidence necessary between the employer and employee has not been eroded to such an extent that observance of the contract would require frequent court supervision, or where there is a reasonable expectation that parties could accommodate themselves to each other.

There is much authority on this proposition. I commence with the recent Australian authorities, referring as they do to the earlier English ones. In Turner v. Australasian Coal and Shale Employees Federation of Australia [1984] FCA 275; (1984) 55 ALR 635, the principles were examined and set out as follows: 'The courts will no longer set their faces against granting remedies of declaration injunction with respect to contracts of employment.'

The general proposition was there highly qualified, because of the nature of the employment, it being a large statutory electricity corporation, where close relationship between actual employer and employee was not present. In this case, Father Fasciale and Mr Lane come face to face, almost on a daily basis. Their relationship has been a personal one in the past, and even if their meetings are not perhaps as frequent as I had mentioned, in a small, local parish school of some 310 students, one could expect a degree of propinquity between headmaster and parish priest. That is entirely different in character to that which exists between the director general of a large statutory corporation, and the wage earner at the coal face.

I also refer to Gregory v. Philip Morris (1987) 80 ALR 455, a decision of the full court of a Federal Court and a case not wholly apposite because it involved the application of a federal award. But there the court did say at 481 in relation to specific performance, following Francis v. Kuala Lumpur [1962] 1 WLR 1411 which is the English case setting out the equivocation from the broad principles to which I have already referred, the full court went on to say:

'The judicial committee referred to the general principle of law that the courts will not grant specific performance of contracts of services. This was not put as a rule of law, but the committee observed that special circumstances will be required before a court exercises its discretion to make such an order. Despite recent judicial criticism of the assumptions underlying the general principle referred to in Francis (and Australasian Coal was referred to) the court then went on to consider those exceptional circumstances and recited Chapel and Times Newspaper [1975] 1 WLR 482, and particularly of the Master of the Rolls referring again to his earlier decision in Hill v. Parsons [1972] Ch 305 as being an exception to the general principle. But, as I have read Hill v Parsons, and as was put to me, the relief there obtained was not specific performance. The order of the court was merely to restrain the employer from treating as valid a particular notice of dismissal, the invalidation of that particular notice was important to the plaintiff. In any event, the case was unusual because as Lord Denning pointed out in Chapel both employers and Mr. Hill had complete confidence in one another. The notice of dismissal had been given under pressure from a trade union.'" (Emphasis added)

15. His Honour continued and concluded at 41:

"The courts have declined to enforce specific performance where the essential mutual confidence between the parties has been so eroded that the employer/employee relationship could have little substance."

STATUTORY REMEDIES FOR UNFAIR DISMISSAL

16. In Australia, effective from 30th March 1994, the Industrial Relations Reform Act 1993 amended The Industrial Relations Act 1988 (Commonwealth) ("The Commonwealth Act") to provide Australian employees statutory remedies for unfair termination. The new provisions were enacted to give effect to the International Labour Organisation's (ILO) "Termination of Employment Convention," which was ratified by Australia on 26th February 1993. The Commonwealth Act closely follows the Convention in relation to remedies. The States of Australia also have their own statutory regime dealing with questions of termination and reinstatement.

17. Under the Commonwealth Act, reinstatement is the "primary" remedy in that it must be considered "first" unless it is "impracticable." Section 170EE(1) provides:

"(a) an order requiring the employer to reinstate the employee by:

(i) reappointing the employee to the position in which the employee was employed immediately before the termination; or

(ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

(b) if the Court makes an order under paragraph (a):

(i) any order that it thinks necessary to maintain the continuity of the employee' employment; and

(ii) an order requiring the employer to pay the employee the remuneration lost by the employee because of the termination."

18. Subsection (2) provides an alternative remedy that applies "if the Court thinks...that reinstatement of the employee is impracticable." In such a case "the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate." Subsection (3) provides that, in working out the amount of the compensation for the purposes of subs (2), "the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment," but subject to some limitations of amount.

19. In Liddell v. Lembke (1994) 124 ALR 342, Wilcox CJ and Keely J said at 360:

"If any further indication of the fact that Parliament did not intend this court to have an open discretion in relation to the granting of relief under s 170EE is required, it is provided by the word 'impracticable' in s 170EE(2). The court may order the payment of compensation for unlawful termination (as distinct from an order under s 170EE(1)(b)(ii) concerning remuneration lost in the period between termination and reinstatement) only where it thinks 'the reinstatement of the employee is impracticable.' Plainly, it was Parliament's intention that the primary remedy for unlawful termination should be reinstatement and that compensation should be available only where this was impracticable."

20. The position in Australia then, has gone from specific performance of employment contracts being enforced in exceptional and rare circumstances to reinstatement being the primary remedy for wrongful termination. This change has occurred because of legislative intervention.

21. Counsel for the appellant submitted that the trial judge had power under sections 23 and 155(4) of the Constitution to reinstate the appellant and that reinstatement was the only remedy available and ought to have been readily granted after finding that the dismissal was wrongful. For the purposes of this appeal and without determining the point, I proceed on the basis that the trial judge does have power under these provisions of the Constitution to order reinstatement.

Grounds 2, 3 and 5

22. The appellant's arguments are that the learned trial judge misinterpreted and misapplied O. 16 rules 1(1) and 1(2) of the National Court Rules in that they are two separate jurisdictional provisions and should not be read together. The proceedings were commenced under O. 16 r. 1(1) seeking an order in the nature of certiorari and the relief of mandatory injunction or reinstatement was a consequential relief sought pursuant to section 155(4) of the Constitution. Secondly, Mision Asiki v Manasupe Zurenuoc & 2 Ors (supra) was equally misapplied. Thirdly, the trial judge exercised his discretion improperly or incorrectly by considering the affidavit evidence of the first respondent and Ms Winnie Kiap.

23. The learned trial judge ruled that O. 16 provides the exclusive procedure for judicial review and that an order for mandatory injunction or reinstatement should be granted if it meets the twin test of "just" and "convenient" under O. 16 r. 1(2). The issue is not as to the jurisdictional basis for seeking mandatory injunction or reinstatement, but whether the grant of the remedy of mandatory injunction or reinstatement is discretionary. Clearly it is.

24. Counsel for the appellant conceded that the power to reinstate is not automatic, but discretionary following the grant of certiorari. Even though an applicant for judicial review has been successful in establishing that there has been an error of law, it is a separate step to establish that a remedy should be granted by the court. The grant of a remedy is not automatic and is always within the discretion of the court and will only be granted to avoid injustice: Mision Asiki (supra). In that case, the court said:

"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v. Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is,what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v. Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v. Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v. Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ." (Emphasis added)

25. The position is the same in the United Kingdom and Australia. The grant of remedy in judicial review is discretionary. Reinstatement is not automatic following the grant of certiorari.

26. In Chief Constable of North Wales v. Evans [1982] UKHL 10; [1982] 1 WLR 1155, the Chief Constable forced Mr. Evans, a probationary constable, to resign his office. Mr. Evans applied for judicial review of the Chief Constable's decision and sought reinstatement as a relief. Woolf J held that the Chief Constable had not acted fairly in exercising his discretion but declined to grant Mr. Evans any relief except costs. Mr. Evans appealed in order to obtain substantive relief and the Chief Constable cross-appealed. The Court of Appeal confirmed Woolf J's decision but added a declaration that the Chief Constable's decision to require Mr. Evans to resign or be dismissed was void. The Chief Constable appealed to the House of Lords. The House of Lords dismissed the appeal. It held that while an order of mandamus ordering his reinstatement was the only satisfactory remedy so far as Mr. Evans was concerned, in practice such an order might border on usurpation of the powers of the Chief Constable, which was to be avoided, and that a declaration that the decision of the Chief Constable was void was unsatisfactory because it was not clear what consequences flowed from it; and that Mr. Evans should be granted a declaration affirming that, by reason of his unlawfully induced resignation, he had thereby become entitled to the same rights and remedies, not including reinstatement, as he would have had if the Chief Constable had not unlawfully dispensed with his services.

27. As seen in the Australian case of Lane v. Fasciale (supra), the court found the termination to be wrongful, but refused to reinstate the plaintiff for the remainder of the academic year due to loss of mutual confidence between the parties. Again in R v. Muir and Others, ex parte Joyce [1980] Qd R. 567, a probationary officer, who was denied natural justice, was not confirmed in the position and the position he held was filled by another person. The court found the decision to be unlawful but refused to reinstate him. He was allowed to claim damages.

28. It is clear from the authorities that the grant of a mandatory injunction or reinstatement is discretionary following the grant of certiorari. The question is whether the trial judge exercised his discretion properly in refusing reinstatement. This Court has set out the principles upon which the exercise of discretion may be disturbed. An appellate court may overturn a discretionary judgment if there was some error. An error exists when, for instance, the primary judge acts upon a wrong principle, or allows extraneous or irrelevant matters to guide or affect him, or fails to take into account some material consideration: Bean v. Bean [1980] PNGLR 30. The fact that an appellate court would have arrived at a different conclusion, is no basis for a reversal of the decision. There must be an error of law or mistake of fact.

29. In Tom Abai and Others v. The State (2000) SC632, the Court said:

"The National Court's review of taxation by the Registrar under O22 r62 is discretionary. Order 22 r62 gives the judge wide discretion to 'enter such judgment for the costs as the nature of the case requires.' A similar discretion is vested in a judge under Order LIV r55 of the Australian High Court Rules 1928 which gives a judge a general discretion to 'make such orders as he may think just.' The extent of an appellate Court's intervention of the judge's exercise of discretion under OLIV r55 was considered by the High Court of Australia in Commissioner of Land Tax v. Jowett, [1930] ArgusLawRp 76; (1931) 45 C.L.R. 115. In that case, the High Court adopted a statement of Cotton L.J. in The Oriental Bank Corporation (1887) 56 L.J. 874 — 875 where His Lordship said:

'In order to justify a Court of Appeal in interfering with the discretion of a Judge it must be shown (1) that he has exercised it in a manner not within his discretion, or (2) that there has been an exercise of his assumed discretion on wrong principles, or (3) that there has been some great loss occasioned by someone by a clearly erroneous exercise of his discretion.'

We adopt these principles as being relevant and appropriate to this Court's review of a judge's exercise of discretion under our Order 22 rule 62."

30. Again in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788, the Court said:

"The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is 'unreasonable or plainly unjust' and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees' Union v. The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 – 113:

"The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees' Union v. The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance..."

31. The belated affidavits of the first respondent and Ms Winnie Kiap were admitted into evidence without any objection from counsel for the appellant. The evidence was uncontested and the trial judge was entitled to rely upon it. There was no error of law in allowing the evidence in or relying upon it (see MVIT v. Pupune [1993] PNGLR 370 and MVIL v. John Etape [1994] PNGLR 596).

32. In Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705, the Court said:

"It is settled law that unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal."

33. Judicial review is a two stage process: determination of the lawfulness of the decision under review; and determination of the remedy. Belated affidavit evidence is irrelevant and ought not to be considered when reviewing the lawfulness or otherwise of the decision. It is, however, relevant and may be considered for purposes of determining the remedy. A court is required to look at all the circumstances of the case. Matters such as the nature of employment, the conduct of the applicant and the relationship between the parties prior to, at the time of and subsequent to the decision are relevant considerations in determining a remedy.

34. Counsel for the appellant argued that the vacancy in the position of Chief Secretary at the time and the fact that the Department of Prime Minister & National Executive Council has not been restructured called for reinstatement "in the interest of justice." Vacancy in an office and restructure of an organization are just some of many matters a court must consider in determining a remedy.

35. I am of the view that the trial judge correctly considered the affidavit evidence in determining the remedy and correctly refused reinstatement.

Grounds 6 and 7

36. Counsel for the appellant submitted that the five principles of law developed by the learned trial judge are bad in law in that they restrict judicial discretion and that they allow the courts to go outside the traditional function of the review court and review the merits and demerits of the decision. Secondly, it was wrong to apply the five principles to the belated affidavit evidence.

37. The five principles the learned trial judge considered in determining the remedy in this case are: (i) where the relationship between an employer and an employee has broken down to such an extent that mutual trust no longer exists, specific performance or mandatory injunction will not be granted to compel them to continue a personal relationship; (ii) damages rather than specific performance or mandatory injunction is the appropriate remedy for breach of contract for personal services; (iii) specific performance or mandatory injunction is an equitable remedy and the applicant must come to court with clean hands; (iv) public interest in good administration must justify the applicant's reinstatement; and (v) vacancy in the position once occupied by the applicant is a relevant consideration but not an important one.

38. The principles a court considers in determining the lawfulness or otherwise of a decision under review are whether the decision making authority exceeded its power or jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision no reasonable tribunal could have reached or abuses its power (see Rose Kekedo v. Burns Philp (PNG) Ltd [1988 – 89] PNGLR 122).

39. The five principles developed by the trial judge are principles of common law and equity found in this jurisdiction. They are principles relating to the grant of remedy in unlawful dismissal cases and apply generally in both public and private law context. They are matters a court considers when the circumstances of a particular case are looked at. They do not restrict judicial discretion nor are they designed to review the merits or otherwise of the decision. I am of the view that the belated evidence was correctly taken into account in refusing reinstatement.

Ground 8

40. The appellant's argument is that by refusing to reinstate, the trial judge had opened the floodgates of abuse by NEC and that it would break the law in the future and get away with it because the court will do nothing about it.

41. This argument is speculative, nonsensical and without any foundation whatsoever. The learned trial judge clearly declared the decision to be unlawful. Grant of a remedy in judicial review, if any, has always been discretionary. The trial judge has not exercised his discretion wrongly in refusing reinstatement.

Ground 9

42. The argument that the trial judge erred in failing to reinstate the appellant as his case was a "special and peculiar" one has no merits. The trial judge gave very detailed reasons for refusing reinstatement and I find no error in the exercise of his discretion.

Ground 10

43. The appellant submitted that if the trial judge had considered the other grounds of review, particularly breach of natural justice, he would have granted reinstatement.

44. The trial judge was correct in not dealing with all grounds of review. If one of the grounds disposes of a matter there is no need for the trial judge to consider the other grounds of the case. I agree with the trial judge that even if he dealt with all the other grounds the conclusion and the reasons would be no different. The decision by NEC to terminate the appellant was unlawful.

CONCLUSION

45. I am not satisfied that the trial judge erred in the exercise of his discretion. Accordingly, the appeal should be dismissed with costs.

46. HARTSHORN J. The appellant was the Chief Secretary to the Government. The National Executive Council revoked his appointment in April 2008 on the ground that it was in the interest of the State. The National Court reviewed and quashed that decision but did not reinstate the appellant. The Court was of the view that the appellant's remedy lay in damages.

47. The appellant appeals the decision not to reinstate him and the non consideration of other grounds of review by the National Court.

48. The grounds of appeal are paraphrased in the decision of my brother Justice Gabi and do not require reproduction here. In essence they are that the trial judge erred in:

a) deciding that he did not have the power to reinstate,

b) relying on improper evidence as to the reasons for the termination,

c) developing and applying 5 new principles of law,

d) not considering the "floodgate" argument,

e) categorising the appellant's case as special and peculiar and not warranting reinstatement,

f) not considering other grounds of review especially the ground of breach of natural justice.

49. As to whether the trial judge erred in deciding that he did not have the power to reinstate, if he did make that decision, then without determining that question, I will proceed for present purposes on the basis that one of the remedies available to be granted by the trial judge was the power to reinstate.

50. Apart from the ground of appeal concerning the trial judge not considering other grounds of review, the remaining grounds concern whether the trial judge correctly exercised his discretion in deciding not to order reinstatement. I will consider the exercise of discretion grounds first.

Exercise of discretion by primary judge on judicial review application

51. As to the question of the exercise of discretion generally in circumstances such as the present, counsel for the appellant in his submissions conceded that the National Court's power to reinstate is not automatic following the grant of certiorari; it is discretionary.

Reliance was placed principally upon the Supreme Court case of Mision Asiki v. Manasupe Zurenuoc, Provincial Administrator & 2 Ors (2005) SC797, where the court said:

"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v. Geita and Mugugia (No. 2) [1990] PNGLR 479, National Court:

.... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the .... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are..." (various cases cited.)

52. In Asiki (supra), the Court, in relation to the fact situation before it, said that it had been persuaded that the interests of justice required that the appellant public servant should be reinstated to his former or an equivalent position and ordered accordingly. In relation to this finding it is apparent however that the Court in Asiki (supra) only considered whether to remit the matter back to the decision making authority or whether to order reinstatement. It did not appear to have considered the option of not granting any relief, even though it had previously said that, "The court must.... decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be."

53. Similarly in the case of Allen Pinggah v. Margaret Elias (2007) SC888, although the Supreme Court cites Asiki (supra), it states that the appellant is entitled to be reinstated without apparently giving any consideration as to whether reinstatement or any other orders were appropriate.

54. I note that the position that reinstatement is not automatic following a grant of certiorari and is discretionary, is also the position in comparable overseas jurisdictions the decisions of which are persuasive in our jurisdiction. In Chief Constable of North Wales v. Evans [1982] UKHL 10; [1982] 1 WLR 1155, the House of Lords declined to issue mandamus to force the Chief Constable to reinstate the appellant but issued a declaration that his dismissal was unlawful. That decision was recently followed in Ferriday v. Chief Constable of Gwent [2009] EWHC 2083, and in the Queensland Supreme Court case of R. Muir, Ex Parte Joyce [1980] Qd R. 567, where a public servant, denied procedural fairness in an application for tenure was granted certiorari quashing an unlawful decision but was refused mandamus for reinstatement as someone else had been appointed to his position. The Court however, made it possible for him to claim damages instead.

55. It is clear then that the National Court, upon upholding a judicial review application, has the discretion whether to grant a remedy and if it decides to grant a remedy, the type of remedy.

Review of exercise of discretion by primary judge

56. This Court's role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. I reproduce the following passage from that decision:

"The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees' Union v The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

"The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees' Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance..."

57. This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977 and Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016.

58. Notwithstanding that the above cases concern appeals from the exercise of judicial discretion under Rules of Court, to my mind the principles are equally applicable to a review by this Court of the exercise of judicial discretion by the primary judge in this instance.

Reliance on improper evidence

59. The appellant submits that the trial judge erred in relying upon the evidence in the affidavits of Grand Chief Sir Michael Somare and Ms. Winnie Kiap as they contained belated reasons for the appellant's revocation of appointment.

60. The National Court transcript discloses however, that both affidavits were admitted into evidence by the trial judge with there being no objections as to their admission by counsel for the appellant. There were submissions made by counsel for the appellant as to the weight that should be given to the affidavit evidence for the reasons of hearsay and that the reasons given were belated.

61. As no objections were raised as to the evidence being admitted, the trial judge was entitled to rely upon it. In addition, the appellant is not able to object to the evidence now as no objection was made to it in the National Court. As the Supreme Court said in Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705,

"It is settled law that unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal."

(see also the Supreme Court cases of MVIT v. John Etape [1994] PNGLR 596, MVIT v. Pupune [1993] PNGLR 370 and Koitachi Ltd v. Walter Schnaubelt (2007) SC870.)

62. As to the weight to be given to the evidence, although the appellant submits that the evidence should not have been considered as the reasons for the revocation were given 4 weeks after the National Executive Council decision, no authorities were cited to the effect that a Court should not consider such evidence or other post decision evidence in determining whether to order reinstatement.

63. The authorities cited, concerned whether belated reasons should be considered in the context of determining if a decision was made lawfully, but not in determining any remedy to be granted once a decision is found to be unlawful.

64. In Evans (supra), Ferriday (supra) and Muir (supra), the decisions declining to issue mandamus orders to force reinstatement were made after the Courts had considered post decision circumstances such as not having the effect of usurping a Chief Constable's powers and that someone else now occupied a subject position. The consideration of these post decision circumstances was no doubt following a consideration of post decision evidence.

65. To my mind, it is appropriate for a Court to consider such evidence as different considerations are involved in determining an appropriate remedy as distinct from whether a decision is lawful.

66. I am not persuaded that the trial judge erred in relying upon the evidence that he did.

New principles of law

67. The appellant submits that the trial judge erred in developing 5 new principles of law.

68. As to the first principle, the appellant submits that the trial judge fell into error in holding that the Court should concern itself with external circumstances leading to the decision and by looking at whether the relationship between the employer and employee had broken down. This is because such considerations restrict or inhibit judicial discretion, are contrary to the test laid down in Asiki (supra) and remove the power of the court in reviewing the decision-making process by allowing the court to go outside its traditional role by considering evidence that became available after the subject decision.

69. If the Court concerns itself with matters occurring before and after the subject decision, how can this be interpreted to be a restriction on the court's judicial discretion? The opposite is the case if more matters are considered in determining how the judicial discretion should be exercised. By concerning itself with such matters, the Court is acting in accordance with the statement in Asiki (supra) that the Court must look at all the circumstances of the case to decide whether it is appropriate to grant a remedy and if it is, what the remedy should be.

70. As already referred to, the cases of Evans (supra), Ferriday (supra) and Muir (supra), are examples of post decision circumstances being considered in the determination of whether a remedy should be granted and if so what type, after a judicial review decision has been upheld.

71. As to the submission that the principle that, "a mandatory injunction will not be granted to compel either master or servant to continue a personal relationship", is applicable in the private employment contract situation, as opposed presumably to the public law context; the decision of Christopher Appa v. Peter Wama [1992] PNGLR 395 is an example of a decision in the public law area, where reinstatement was not granted, as are the decisions of Evans (supra), Ferriday (supra) and Muir (supra). Again, the Court must look at all of the circumstances of the case in deciding whether and if so, what remedy should be granted. This includes, in the private or public law context, a consideration of whether the employer employee relationship should continue.

72. The submissions of the appellant as to the other 4 new principles of law developed by the trial judge are in essence the same as those for the first principle. That is that they restrict judicial discretion and allow the Court to consider external circumstances leading to and occurring after the subject decision. Consequently, my comments as to the first principle submissions apply equally to the submissions made in respect of the other principles.

73. I am not satisfied that the trial judge erred in developing the 5 principles as submitted by the appellant. The subject matter of the 5 principles are relevant matters that have been considered in comparable cases and are matters that should be considered when all of the circumstances of a particular case are looked at in determining whether a remedy should be granted and if so, the type of remedy.

Floodgate argument

74. As to the "floodgate" argument, the appellant submits that the trial judge failed to consider his submissions. In essence his submissions are that the trial judge failed to consider the implications of him not being reinstated. These implications are submitted to be that the respondents must not be seen to benefit from their illegal actions and that an award of damages would not 'drive home' to the National Executive Council that they "cannot continuously flagrantly breach constitutional duties".

75. This submission is based on the incorrect premise that all subsequent similar cases to that of the appellant's will result in damages being awarded as a remedy and not reinstatement. As was said in Asiki (supra), the Court must look at all of the circumstances of a case in deciding whether a remedy should be granted and if so the type of remedy. Whether to grant a remedy and if so the type of remedy, remains always at the discretion of the Court. To suggest that by finding as he did, the trial judge has opened the floodgates to orders for damages, is to misunderstand how the National Court's discretion is to be exercised.

76. I mention here that I found the written submissions of the appellant on this point to be emotive and illogical and not of a standard that should be accepted by either the National or Supreme Courts.

Special and peculiar

77. As to the appellant's submissions that the trial judge erred in failing to reinstate him as his case was a special and peculiar case, the appellant refers to "drummed-up evidence" and that the trial judge's reasoning is an "affront". Again in my view, this submission is emotive and disrespectful and not of a standard that this Court should accept. As to any merit in the submission, I am satisfied that the trial judge considered all of the circumstances of the appellant's case. This necessarily involved a consideration of amongst others, the appellant's former position. That this is a proper consideration is reflected in Evans (supra) and Ferriday (supra).

Other grounds of review

78. This ground is in essence that if the trial judge had considered other grounds of review, he would not have considered post decision evidence and would then have granted reinstatement.

79. As previously referred to, the trial judge in my view, did not fall into error when he considered post decision evidence, Evans (supra), Ferraday (supra) and Muir (supra). I am satisfied that he considered all the circumstances of the appellant's case in deciding whether to grant a remedy. This is in accordance with Asiki (supra). The fact that he did not consider other grounds of review is not an error by the trial judge as he did not have to consider them after determining that the appellant was entitled to have his application for judicial review upheld on another ground.

80. After a consideration of the above, I am not satisfied that the trial judge erred in the exercise of his discretion such that the appeal should be allowed. Given this finding it is not necessary to consider the other arguments of counsel.

81. The appeal should be dismissed and the appellant should pay the costs of the first and third respondents of and incidental to the appeal.

Orders

82. a) the appeal is dismissed,

b) the appellant shall pay the costs of the first and third respondents of and incidental to the appeal.

_________________________________________________
Harvey Nii Lawyers: Lawyers for the Appellant
Office of the Solicitor General: Lawyer for the First and Third Respondents Public Services Commission: Lawyer for the Second Respondent