Kalinoe v Kereme [2017] PGSC 35; SC1604 (22 September 2017)

SC1604

PAPUA NEWGUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 21 OF 2016

BETWEEN:
DR. LAWRENCE KALINOE
Secretary, Department of Justice & Attorney General
Appellant

AND:
DR. PHILIP KEREME
In his capacity as the Chairman of the PUBLIC SERVICES COMMISSION
First Respondent

AND:
JOSEPH WANNE
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Salika DCJ, Geita J, Kangwia J
2017: 30 June & 22 September

SUPREME COURT - Appeal against decision of National Court to dismiss Appellant’s Application for Judicial Review – Lack of legal capacity hence standing of Appellant as basis for dismissal of Application - Leave for Judicial Review obtained by Appellant not appealed – National Court erred in making decision on standing again - Appellant as employer had standing and legal status to seek review - Application for Judicial Review not a claim under the Claims Act – Judicial Review not connected to Claims under the Claims Act - Legal capacity not a ground for Leave to seek Judicial Review; Sufficient interest was - Appellant’s Administrative decision overturned by First Respondent – Appellant entitled to seek judicial review – National Court erred in a further hearing on issue of standing - Appeal upheld.

Cases Cited:

Dr Lawrence Kalinoe v Dr Philip Kereme & Keti Kenosi –SCM 22 of 2016 (Unreported Judgement of 19 December 2016);
Punagi v Brown (2004) N2661

Counsel:

L. Kaindi, for the Appellant
No appearance for the Respondents

22^nd September, 2017

1. BY THE COURT: This is an appeal against the decision of the National Court which dismissed the Appellant’s application for Judicial Review. The National Court had ruled that the Appellant lacked legal capacity hence standing to apply for Judicial Review.

2. Opposing counsels have not appeared. The records show that the Respondents made no appearances at earlier sittings of the Court. They were interested parties and as Respondents who obtained a decision in their favour which was being challenged would in our view be of great significance to them to appear and at least inform the Court of what their position is. Their failure to appear displays a lack of interest and we consider that it is in the interest of justice to hear the appeal in their absence.

3. The proceedings arose out of a decision by the Appellant to terminate the employment of the 2^nd Respondent. The 2^nd Respondent appealed the Appellants’ decision to terminate him to the 1^st Respondent who over turned the Appellant’s decision and further directed that the 2^nd Respondent be reinstated to his original position with backdated entitlements. Aggrieved by that decision the Appellant sought and obtained leave for Judicial Review. In the substantive Judicial Review hearing the National Court on a preliminary issue ruled that the Appellant lacked legal capacity to apply for Judicial Review and dismissed the proceedings. This appeal emanated from that National Court decision which dismissed the application for Judicial Review.

4. The Appellant relied on an earlier case of Dr Lawrence Kalinoe v Dr Philip Kereme and Ors, (Unreported Judgement) SC No 22 of 2016 as containing the arguments they advanced at that hearing being the same in this appeal. They submitted that Order 16 of the NCR provided for an exclusive and distinct process for Judicial Review applications and could not be confused with proceedings commenced under the Claims by and Against the State Act.
5. The Appellant also submitted that the National Court erred in law in its decision to hold that the Appellant had no legal capacity to apply for Judicial Review. It was further submitted that the Supreme Court decision in SCM No 22 of 2016 (Supra) that quashed the National Court decision was a sound decision as it set out the correct position of the Law and this Court was asked to adopt it in the present appeal.

6. The gist of the Appellant’s submission as we understand it is premised on the principle of Stare Decisis or the doctrine of precedents. Similar or identical issues have been previously brought in SCM No 22 of 2016 and a ruling already issued. We note here that the notion operates both horizontally and vertically. To this end we are satisfied with Mr Kandi’s submission for the Appellant thus invoke a parallel application of Stare Decisis in the present case.

7. We also adopt the views of Injia DCJ (as he then was) in the case of Punangi v Brown (2004) N2661 that Order 16 of the National Court Rules provides a comprehensive and exclusive procedure for Judicial review and was not covered by or in any way connected to the provisions under the Claims by and Against the State Act.

8. It is apparent that the requirements for leave to apply for Judicial Review under Order 16 do not include legal capacity to sue. An applicant must demonstrate that he/she had sufficient interest pursuant to O 16 r 3 (5) in the matter the application relates.

9. We further note from the records that the Appellant was granted leave to apply for Judicial Review of the First Respondent’s decisions. That effectively paved the way for the hearing of the substantive review to proceed.

10. To refuse to acknowledge that leave was granted and all the issues required for leave effectively dealt with, the National Court in our view erred by a further hearing on the issue of legal capacity which was not a requirement for leave. That effectively created in the case, two opposing decisions on the issue of standing that went against the established process of Judicial Review thereby opening a situation that would prejudice public policy and judicial comity.

11. The issue of standing or sufficient interest was effectively dealt with in the National Court when it granted leave but it seems to us that the same issue was re-activated and a second decision of the National Court were made as if from an appeal which in our view was irregular.

12. There is no evidence that the issue went before an Appeal Court either. We are at a loss as to what happened to the National Court decision which earlier granted leave to the Appellants.The earlier Court could not have granted leave if the Appellant had no interest or lacked standing as those issues are corner stones to a grant of leave for Judicial Review.

13. We also view that the Respondents sat on their right to appeal the decision which granted the Appellant leave if they were dissatisfied with the order.

14. They cannot seek a rehearing on an issue that was determined in the National Court. It was in effect an abuse of process. We hold that the National Court erred in rehearing the issue of standing under the guise of legal capacity.
We agree and endorse what the supreme Court said in the earlier case of Dr Lawrence Kalinoe v Dr Philip Kereme & Keti Kenosi - SCM 22 of 2016 where it held that;

“We are unable to agree with the trial judge that only the Attorney General has the legal capacity to bring judicial review proceedings. We are of the view that a Departmental Head can bring Judicial Review Proceeding, which is different from any other cause of action in which the State through the Attorney General would be vested with appropriate legal capacity to institute litigation.”

15. We further affirm the view in the case of Punangi v Brown cited above that the Claims by and Against the State Act did not apply to Judicial Review proceedings. The procedures and processes under Order 16 of the National Court Rules and the Claims Act are distinct and the separate processes therein must be applied accordingly.

16. The Appellant’s administrative decision was overturned by the First Respondent and he was entitled to seek the review he sought. He was accountable for any administrative decision relating to employment and termination of employees under his department and stewardship.

17. We therefore hold that the Appellant had standing in his capacity as the Administrative Head of the Justice & Attorney Generals Department to seek Judicial Review of the decision by the First Respondent. The decision emanated from the Appellant’s decision to terminate the employment of the 2^nd Respondent and he no doubt had an interest in the matter to pursue further. He was not in our view required to prove legal capacity as a requirement to seek Judicial Review.

18. We further add that there is no provision either under Order 16 of the National Court Rules or the Claims Act that gave the Attorney General standing to seek review of decisions made by his Secretary pursuant to the Personnel Management Act.

19. It is unclear where the Attorney General would obtain standing from or under what circumstance he would assume standing to seek judicial review of administrative decisions.

20. The decisions sought to be reviewed were administrative decisions that the Appellant was entitled to make which were personnel matters of employees under the Department he was Secretary for and he was further entitled to seek review of any decision that affected or impinged on his decision.

21. We are of the view that the court below erred when it formed the view that it was the Attorney General who had standing or legal capacity to seek Judicial Review.

22. We do not agree that the present case could be determined as a claim against the State for the Attorney General to be involved in.

23. The present case emanated from an Application for Judicial Review which was not a claim over a right of any kind to pursue under the Claims Act. The judicial review sought prerogative orders against an administrative decision that had its own processes under Order 16 which was unique and quite different from a claim to enforce a right against theState under the Claims Act.We are of the view that the two processes were erroneously overlapped in the Court below.

24. In view of those considerations we uphold the appeal and quash the entire decision of the National Court.

25. The formal Orders of the Court are;

1. The Appeal is upheld
2. The entire decision of the National Court is quashed
3. Costs are in the cause

__________________________________________________________
Wagambie Lawyers: Lawyers for the Appellant
No appearances for the Respondents