Kariko v Ngangan [2023] PGSC 76; SC2422 (30 March 2023)

SC2422

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 114 OF 2022

BETWEEN:
JACK KARIKO
in his capacity as Secretary for National Judicial Staff Services
Appellant

AND:
DR. KEN NGANGAN
in his capacity as Secretary for Department of Finance
First Respondent

AND:
DEPARTMENT OF FINANCE
Second Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: David J, Hartshorn J, Shepherd J
2023: 28^th & 30^th March

Appeal

Case Cited:

Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153

Counsel:

Mr. D. Kulu, for the Appellant
Mr. K. Kipongi, for the Respondents

30^th March, 2023

1. BY THE COURT: This is a decision on a contested appeal against a National Court judgment which refused all relief sought by the plaintiff, now appellant, Mr. Jack Kariko (appellant). As described by the primary judge, the appellant in his capacity as the Secretary of the National Judicial Staff Service (NJSS) had sought declarations and orders aimed at implementing a decision of the Judicial Council of 18^th February 2020 (JC decision). The JC decision had approved salary increases for officers of NJSS for the years 2017 to 2022.

Judicial Council

2. The Judicial Council is established under s. 3A(1) National Judicial Staff Service Act 1987 (NJSS Act) and pursuant to s. 3A(4), the functions of the Judicial Council are as specified in the NJSS Act. Further, the Judicial Council has full power to carry out its functions.

Grounds of appeal

3. The appellant’s grounds of appeal in essence are that the primary judge erred in fact and law for various reasons in ordering, directing or determining that:

a) the Judicial Council had no authority to determine or recommend salaries and terms of officers of the NJSS;

b) the salaries of officers of NJSS are determined by regulations made under the NJSS Act or through determinations by the Salaries and Conditions Monitoring Committee (SCMC);

c) the appellant amend his originating summons;

d) a certain letter from the Secretary of the Department of Personnel Management be received into evidence from the bar table;

e) there was insufficient evidence that the Judicial Council had made the JC decision;

f) the relief sought by the appellant be refused.

4. The respondents submit that the primary judge did not fall into error and that the appellant has failed to demonstrate any identifiable or apparent error in the judgment now appealed.

Preliminary
5. The ground of appeal challenging the direction by the primary judge to the appellant to amend his originating summons concerns an order or direction of the primary judge made on 3^rd May 2022 (amendment direction). As the amendment direction did not finally determine the National Court proceeding, it is an interlocutory decision: Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153. Leave is required to appeal an interlocutory decision: ss. 1(1) and 14(3)(b) Supreme Court Act but has not been obtained. Further, in the notice of appeal, the appellant appeals orders made on 1^st July 2022 and not 3^rd May 2022. Moreover, the notice of appeal was filed more than 40 days after the amendment decision. Consequently, for the above reasons, ground of appeal 3(a)(iii) is incompetent and is struck out.

Consideration

6. The first ground of appeal is that the primary judge fell into error in finding that the Judicial Council has no authority to determine or recommend salaries and terms of officers of the NJSS.

7. The appellant submits among others, that as the Secretary under the NJSS Act is responsible to the Judicial Council for the general working and efficient conduct of the business of the NJSS and reports to the Judicial Council whenever the need arises, including as to alterations necessary in the salaries or allowances of any of the officers or employees of the NJSS: s.10 (1)(a) of the NJSS Act, this establishes the authority of the Judicial Council to determine or recommend the salaries and the terms of officers of the NJSS.

8. From a perusal of the NJSS Act, notwithstanding that s. 3A(4) provides that the functions of the Judicial Council are as specified in the NJSS Act and that the Judicial Council has full power to carry out its functions, there is no section in the NJSS Act which specifies such functions. The only references to the Judicial Council and to powers which are conferred upon it are contained in ss. 17, 19, 20 and 22. These sections are concerned with disciplinary and criminal offences. No functions per se of the Judicial Council are set out in the NJSS Act. Specifically, no functions or powers are conferred upon the Judicial Council to recommend or determine the salaries of NJSS officers.

9. The submission that under the NJSS Act the Secretary has the responsibility to report to the Judicial Council and that this responsibility has the effect of providing the necessary authority to the Judicial Council to determine or recommend salaries, is flawed, particularly when s. 3A(4) NJSS Act provides that the functions of the Judicial Council are as specified in the NJSS Act. The Judicial Council is created by statute and does not exist otherwise. Any functions and powers of the Judicial Council are provided by statute. Any functions or powers of the Judicial Council are not able to be assumed or implied. If functions or powers are to be bestowed upon or removed from the Judicial Council, this should occur by way of statute or statutory provision.

10. That the Judicial Council does not have the requisite power or has not been conferred with the requisite functions, is perhaps tacitly acknowledged by the appellant in the submission document dated 18^th February 2020 prepared by him at “F Recommendation” at [2]. It states:

“It is recommended that the Judicial Council:

1. ....

2. Directs the Secretary, NJSS to inform the Chairman, SCMC of the Judicial Council Decision for implementation.”

11. In any event, as the NJSS Act does not confer on the Judicial Council the requisite power or function to recommend or determine salaries of NJSS officers, the appellant has failed to show that the primary judge fell into error in his finding as such. Consequently, ground of appeal 3(a)(i) is refused.

12. As the Judicial Council does not have the requisite power or function to recommend or determine the salaries of NJSS officers, the other grounds of appeal and submissions of counsel do not require consideration. The relief which was sought in the further amended originating summons could not have been granted given that the Judicial Council does not have the requisite function or power and the primary judge did not fall into error in refusing all of the relief sought. This appeal should be dismissed.

13. As an aside, we mention that from a perusal of the NJSS Act, it is apparent that a vacuum exists in regard to the functions of the Judicial Council. Its functions are stated as specified in the NJSS Act, but no functions are specified.

Orders

14. The Court orders that:

1) This appeal is dismissed.

2) The respondents’ costs of and incidental to the appeal shall be paid by the appellant to be taxed if not otherwise agreed.
__________________________________________________________________
Kulu Lawyers: Lawyers for the Appellants
Solicitor General: Lawyers for the Respondents