SC2567
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 29 OF 2023

WILSON MATAVA
Appellant

V

HON JOSEPH SUNGI, MINISTER FOR PUBLIC SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J, Liosi J, Narokobi J
2024: 24th & 26th April

JUDICIAL REVIEW – leave requirements – whether applicant had standing – whether a provincial administrator whose contract of employment has expired has any rights in public law – whether public law remedies are available to a provincial administrator who is not reappointed after expiry of their contract of employment. 

The appellant was a provincial administrator. Three months before the expiry of his contract of employment he notified the Secretary of the Department of Personnel Management that he wished to be reappointed. The Provincial Executive Council and the Public Services Commission supported the appellant’s proposed reappointment, but before the Minister for Public Service (the first respondent) took a recommendation for the appellant’s reappointment to the appointing authority, the National Executive Council, news broke that the appellant had been charged with a serious criminal offence. The Minister failed to make the recommendation to the National Executive Council, instead writing to the Provincial Executive Council requesting that it reconvene to reconsider candidates for appointment as acting provincial administrator and to settle the appellant’s final entitlements.   The appellant applied to the National Court for leave to apply for judicial review of the Minister’s decision to ‘instruct’ the Provincial Executive Council to reconvene and not to make the submission to the National Executive Council recommending the appellant’s reappointment. The National Court refused leave on the ground that the appellant lacked locus standi as his contract of employment had come to an end and any grievance he had was a matter of private law, not public law, and the Minister was entitled to take the course of action he did and was not in breach of any law. The appellant appealed against the refusal of leave on grounds that the primary judge erred in law by holding that the appellant lacked locus standi and the Minister was entitled to do as he did and by not considering all requirements for a leave application. 

Held:

(1)	The Public Services (Management) Act provides a procedure that can be invoked by a provincial administrator whose term in office is expiring and who wishes to be reappointed, which provides for rights and obligations of various officers and institutions that can result in reappointment of the provincial administrator. The appellant was alleging that that statutory procedure was not followed and that the Minister was the public official primarily responsible for the breach of law that occurred. The fact that the appellant’s contract had expired was irrelevant to the question of his standing and the question of whether he was seeking to review decisions of a public official. His grievance fell within the domain of public law. The primary judge erred by finding that the appellant lacked locus standi and that his remedies lay in private law. 

(2)	The primary judge erred by finding that the Minister was entitled to do as he did as there was an arguable case that he was not so entitled and that he acted in breach of the Public Services (Management) Act.

(3)	The primary judge, having found that the appellant lacked locus standi and that the Minister acted lawfully, was not obliged to address any of the other criteria for leave for judicial review and made no error of law in that regard. 

(4)	As the major grounds of appeal were upheld, the appeal was allowed, the decision of the National Court was quashed and the decision of the National Court to refuse leave was substituted by the Supreme Court’s decision to grant leave. 

Cases Cited

Darius v Commissioner of Police (2001) N2046
Digicel (PNG) Ltd v Miringtoro (2015) SC1439
Diro v Ombudsman Commission [1991] PNGLR 153
Geno v The State [1993] PNGLR 22
Matava v Sungi & The State OS (JR) 49 of 2023, Miviri J, 20 September 2023, unreported 
Medaing v Minister for Lands and Physical Planning (2010) N3917
NTN Pty Ltd v PTC [1987] PNGLR 70

Counsel

L Giyomwanauri & N Yagon, for the Appellant
H Wangi, for the Respondents

26th April 2024

1.     BY THE COURT: This is an appeal against the refusal of the National Court to grant leave for judicial review.

2.     The appellant, Wilson Matava, was Provincial Administrator of East New Britain Province. Three months before the expiry of his contract of employment he notified the Secretary of the Department of Personnel Management that he wished to be reappointed. The Provincial Executive Council and the Public Services Commission supported the appellant’s proposed reappointment, but before the Minister for Public Service (the first respondent) took a recommendation for the appellant’s reappointment to the appointing authority, the National Executive Council, news broke that the appellant had been charged with a serious criminal offence. 

3.     The Minister failed to make the recommendation to the National Executive Council. Instead he wrote to the Provincial Executive Council requesting that it reconvene to reconsider candidates for appointment as acting provincial administrator and to settle the appellant’s final entitlements. As a consequence another person, Mr Levi Manu, was appointed acting Provincial Administrator.

4.    The appellant applied to the National Court for leave to apply for judicial review of the Minister’s decision to ‘instruct’ the Provincial Executive Council to reconvene and not to make the submission to the National Executive Council recommending the appellant’s reappointment. 

5.     The National Court refused leave on the ground that the appellant lacked locus standi as his contract of employment had come to an end and any grievance he had was a matter of private law, not public law, and the Minister was entitled to take the course of action he did and was not in breach of any law (Matava v Sungi & The State OS (JR) 49 of 2023, Miviri J, 20 September 2023, unreported). 

GROUNDS OF APPEAL

6.    Some grounds of appeal are repetitious, so we have repackaged them. The appellant appeals against the refusal of leave on grounds that the primary judge erred in law by:

(1)	holding that the appellant lacked locus standi (grounds of appeal (a) and (d)); and 

(2)	holding that the Minister was entitled to do as he did (grounds of appeal (b) and (c)); and 

(3)	not considering all requirements for a leave application (ground of appeal (e)).

(1)	DID THE PRIMARY JUDGE ERR IN FINDING THAT THE APPELLANT LACKED LOCUS STANDI?

7.    The Public Services (Management) Act 1995 provides a procedure that can be invoked by a provincial administrator whose term in office is expiring and who wishes to be reappointed, which provides for rights and obligations of various officers and institutions that can result in reappointment of the provincial administrator. There is some uncertainty as to the state of the law at the date of expiry of the appellant’s contract of employment in 2021 and whether the relevance of this law was properly brought to his Honour’s attention when the leave application was argued. This will need to be clarified if the matter goes to trial. But for present purposes, it appears that that the relevant law was ss 60(4) and (5), which state:

(4)	Where —

(a)	an office of the Provincial Administrator is vacant or becomes vacant; and

(b)	the person holding the office or who held that office before the vacancy is willing and eligible to continue in that office, 

the Departmental Head of the Department of Personnel Management must justify the re-appointment of that person and notify the Commission accordingly and the procedure under this section must not apply for the re-appointment.

(5)	On receipt of a notification under Subsection (4), the Commission must recommend to the Provincial Executive Council that the person be re-appointed and —

(a)	where the Provincial Executive Council agrees to the reappointment, it must advise the National Executive Council to re-appoint the person as substantive Provincial Administrator; or

(b)	where the Provincial Executive Council does not agree to the re-appointment —

(i)	it must advise the Commission and the Departmental Head of the Department of Personnel Management; and
(ii)	the procedures in this section apply.

8.    The appellant was alleging that that statutory procedure was not followed and that the Minister was the public official primarily responsible for the breach of law that occurred. 

9.    We consider that the fact that the appellant’s contract had expired was irrelevant to the question of his standing and the question of whether he was seeking to review decisions of a public official. His grievance clearly fell within the domain of public law. 

10.     The primary judge, we find, with respect, erred by holding that the appellant lacked locus standi and that his remedies lay in private law. 

(2)	DID THE PRIMARY JUDGE ERR IN FINDING THAT THE MINISTER WAS ENTITLED TO TAKE THE COURSE OF ACTION HE DID?
 
11.    The primary judge took the strong view that the Minister acted properly and was entitled to take a firm stand that the appellant should not be reappointed because of the criminal charges he was facing. 

12.    It must be borne in mind that the judge hearing an application for leave for judicial review only has to assess whether the applicant has a case that is arguable, ie whether on a quick perusal of the materials before the court, there is a prima facie case or a serious issue to be tried which, on further investigation by the Court, might favour the relief sought by the applicant (Geno v The State [1993] PNGLR 22, Digicel (PNG) Ltd v Miringtoro (2015) SC1439, Diro v Ombudsman Commission [1991] PNGLR 153). 

13.     We consider that his Honour jumped to a conclusion in law and did not clearly address the relevant question, which was whether the appellant had an arguable case. We uphold the appellant’s argument that the primary judge erred in law by finding that the Minister was entitled to do as he did.  

(3)	DID THE PRIMARY JUDGE ERR BY NOT CONSIDERING ALL REQUIREMENTS FOR A LEAVE APPLICATION? 

14.    There are five considerations to take into account when the court decides whether to grant leave for judicial review:

(a)	Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision?

(b)	Is the decision sought to be reviewed that of a public authority?

(c)	Does the plaintiff have an arguable case on the merits?

(d)	Have administrative remedies, if any, been exhausted?

(e)	Has the application been made promptly without undue delay?

(NTN Pty Ltd v PTC [1987] PNGLR 70, Darius v Commissioner of Police (2001) N2046, Medaing v Minister for Lands and Physical Planning (2010) N3917.)

15.    We find no error on the part of the primary judge by not specifically addressing all requirements. His Honour found that the appellant lacked locus standi and that he had no arguable case. His Honour was not required to address the other requirements. No error of law was committed in the manner contended for by the appellant. 

CONCLUSION 

16.     As the major grounds of appeal are upheld, the issue arises as to what orders we should now make. In a civil appeal the Court’s discretion is exercised under s 16 (decision etc on appeal) of the Supreme Court Act, which states: 

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a)	adjourn the hearing from time to time; or
(b)	affirm, reverse or modify the judgment; or
(c)	give such judgment as ought to have been given in the first instance; or
(d)	remit the case in whole or in part for further hearing; or
(e)	order a new trial.

17.    Further, under s 6(2) of the Supreme Court Act, for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

18.    We will exercise the powers in ss 6(2) and 16(c). We have all the evidence before us to determine the question of whether leave for judicial review should be granted. We have considered the five criteria for granting leave, outlined above. We consider that the appellant has a sufficient interest in the subject matter. He is clearly seeking review of decisions of public authorities. He has an arguable case on the merits. There are no alternative statutory processes available to be invoked to agitate his grievances. He has applied for leave without undue delay. Leave for review will be granted. 

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 20 September 2023 in OS (JR) No 49 of 2023 is quashed.

(3)	The proceedings OS (JR) No 49 of 2023 are reinstated and for the purposes of those proceedings pursuant to s 16(c) of the Supreme Court Act the appellant is granted leave for judicial review and pursuant to s 16(d) of the Supreme Court Act the case is remitted to the National Court for further conduct of those proceedings.

(4)	The respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
__________________________________________________________________
Public Solicitor:  Lawyer for the Appellant
Solicitor-General: Lawyer for the Respondents