Kwa v Kereme [2025] PGSC 125; SC2822 (5 December 2025)

SC2822

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC REV NO. 33 OF 2021 (IECMS)

DR. ERIC KWA as Secretary for Justice and the Attorney General of Papua New Guinea
First Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Applicant

AND:
DR PHILIP KEREME in his capacity as the Chairman of the Public Services Commission
First Respondent

AND:
AQUILA SAMPSON
Second Respondent

WAIGANI: MANUHU J, YAGI J, KANGWIA J
28 NOVEMBER, 5 DECEMBER 2025

SUPREME COURT – Practice and Procedure – Application for review of decision of the National Court under s. 155 (2) (b) of the Constitution – Review of Public Services Commission decision -Whether the decision was implemented - Relevant principles.

Cases cited
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122,
Avei v Maino [2000] PNGLR 157,
Waranaka v Dusava (2009) SC980,
Anisi v Aimo (2013) SC1237,
Kani v Barrick (Niugini) Ltd (formerly Placer Dome (PNG) Ltd) [2024] SC2557.

Counsel
L. Kandi, for the applicants.
J. Napu, for the second respondent.

1. BY THE COURT: Before us is an application under s. 155(2) (b) of the Constitution to review the decision and orders of Gavara-Nanu J in National Court proceedings OS (JR) No. 338 of 2016 Dr Lawrence Kalinoe v Dr Philip Kereme & Ors.
   
2. The circumstances giving rise to the proceedings are as follows. The Second Respondent was employed by the Second Applicant, Department of Justice and Attorney General, as Deputy State Solicitor until 27th August 2013 when he was terminated on disciplinary grounds. He appealed his termination to the Public Service Commission (PSC), which appeal was upheld on 25th March 2016. The terms of the PSC decision verbatim were:
   
   • That the Commission annul the decision of the Secretary, Department of Justice and Attorney General to terminate Mr. Aquila Sampson from his substantive position as the Deputy State Solicitor (International Law Division) with the Office of the State Solicitor.
   • That the Commission re-instate Mr. Aquila Sampson to his former position of Deputy State Solicitor (International Law Division) or a similar position in nature, on contract from within the Department of Justice and Attorney General.
   • That the aggrieved lost salaries and entitlements be paid with back dated effective from the date he was put off the payroll.
   • That all documents and papers relating to the charges, suspension, conviction, termination of contract and subsequent dismissal be removed from Mr. Sampson’s personnel and staff file and destroyed in Mr. Sampson’s presence.
     
3. On 6^th June 2016, the then Secretary, Dr. Lawrence Kalinoe sought judicial review in the National Court of the decision of the PSC. He alleged errors of law, breach of natural justice, and that the decision was unreasonable under the Wednesbury principle, as the grounds for review. His honour Gavara-Nanu J presided over the proceeding. On 1st October 2020, his Honor ruled in favour of the Second Respondent. The orders of the Court were:
   • The plaintiff’s application is dismissed.
   • The decision of the Public Service Commission made on 25th March 2016 is affirmed.
   • The second respondent is reinstated to his previous substantive position of Deputy State Solicitor.
   • If the position of Deputy State Solicitor is already occupied by another officer, the second respondent be given a position equivalent to Deputy State Solicitor.
   • The second respondent’s reinstatement to his previous substantive position serves to restore his service in the Public Service which may have been lost because of the termination.
   • The second respondent’s record of service in the Public Service are to be corrected appropriately forthwith.
   • The second respondent’s lost salaries, entitlements and other emoluments be reimbursed to him starting from the date these salaries, entitlements and emoluments were lost or ceased up to this day, i.e., the date of judgment, 1st October, 2020.
     
4. The then Secretary did not appeal the decision. The First Applicant was appointed Secretary on 11^th September 2018 and assumed office on 19^th November 2018. He became aware of the orders of Gavara-Nanu J on 17^th November 2020. On 23^rd November 2020, the Second Respondent filed contempt proceedings against the First Applicant personally. It was served on the First Applicant on 3^rd December 2020.
   
5. Mr. Kandi claimed that the proceeding was “clearly intended to ‘coerce’ and ‘induce’ the unknowing and innocent First Applicant who had taken office as the new Secretary...without knowledge of the controversial Court Order...” We do not agree that the First Applicant was not aware of the court orders. He was aware of the court orders, but the Second Respondent was unduly quick to file the contempt proceeding. It failed.
   
6. The First Applicant decided to set aside the orders to prevent further contempt proceedings. However, he could not appeal. He could have sought declaratory orders in the National Court that the Second Respondent was reinstated but he did not. Instead, he decided to file for review. We have heard full arguments from Mr. Kandi for the Applicants and Mr. Napu for the Second Respondent.
   
7. It is settled law that the discretionary power of the Supreme Court to review should be exercised only where:
   • it is in the interest of justice.
   • there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and
   • there are clear legal grounds meriting a review of the decision.
     
8. Deputy Chief Justice Kapi (as he then was) explained the law succinctly in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122, at p. 124, thus:

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 court have reached or abuses its powers.

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.

9. The distinction between appeals and reviews was explained in Avei v Maino [2000] PNGLR 157 paras 161-162, as follows:

It is common ground that there are fundamental differences between appeals and reviews. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision-making process. It is the supervisory jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction of the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker... Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason.

10. See also Waranaka v Dusava (2009) SC980 and Anisi v Aimo (2013) SC1237. The Supreme Court in Kani v Barrick (Niugini) Ltd (formerly Placer Dome (PNG) Ltd) (2024) SC2557 summarized the principle, thus:

...judicial review may be available where a superior court can be satisfied that:

• the decision-making authority has abused or otherwise exceeded its powers.
• there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record.
• there has been a breach of natural justice, such as the denial of a party’s right to be heard.
• the decision-making authority has decided that no reasonable tribunal could have reached.
  

11. In this case, the Applicants do not take issue with the primary judge’s reasons for the decision. Notwithstanding the pleadings, they do not claim any error of law or fact or both. It was submitted that leave was granted for them to bring to the attention of this Court “the materials that were concealed by the Second Respondent and not disclosed to the trial judge, which non-disclosure resulted in miscarriage of justice and is causing substantial injustice and prejudice to the Applicants.” It was argued that the ‘concealed’ materials would have shown that the Second Defendant was reinstated. Therefore, the primary judge would have reached a different conclusion.
12. The argument is however inconsistent with the position taken by the former Secretary. In his letter dated 19th April 2016, Dr. Kalinoe made it clear that he would “most likely seek a judicial review” of the PSC decision on these issues:
    • Whether or not Circular Instructions from Chief Secretary to Government is a rule within the context of the Public Service (Management) Act and therefore applicable to all Public Servants.
    • Whether the powers delegated to the Secretary for Justice relating to disciplinary matters includes the power of dismissal.
      
13. The very next paragraph reads:

Be that as it may, and in the interim, I wish to offer you employment as Acting Commissioner, Land Titles Commission. Should you concur, I request that you send me an expression of interest with an updated CV for that purpose... (our underlining)

14. The Second Respondent accepted the offer in his letter of 20th April 2016. He was sworn in by the Head of State as Acting Commissioner, National Lands Commission (not Land Titles Commission) on 27th April 2016. Dr. Kalinoe signed the Second Respondent’s Contract of Employment on 31st May 2016. The Second Respondent signed his Contract of Employment on 2nd June 2016. Three other senior officers of the Department counter signed the Contract.
    
15. Four days later, as stated in the letter, the then Secretary filed the judicial review proceedings on 6th June 2016. The Second Respondent was the Acting Commissioner until 2nd July 2018 when he resigned to assume a new role as Provincial Administrator of Western Province.
    
16. The letter clearly shows that Dr. Kalinoe made a deliberate decision to challenge the PSC decision. The offer of employment was an “interim” arrangement. It was not a letter to implement the PSC decision. There is also no evidence that the Second Respondent was paid his lost salaries and entitlements. We find therefore that the Second Defendant’s appointment as Acting Commissioner does not constitute reinstatement or compliance with the PSC decision.
    
17. Secondly, at the material time, the ‘concealed’ materials were within the knowledge and custody of the then Secretary. He was aware that the Second Respondent was appointed Acting Commissioner of National Lands Commission. The former Secretary knew about the Contract of Employment. The former Secretary participated in the signing of the Contract of Employment. When the First Applicant assumed his role as the new Secretary, he was deemed to be aware of the Second Respondent’s employment status. The contract would be in his personal file. We find therefore that the accusation that the Second Respondent concealed documents from the primary judge is incorrect.
    
18. Thirdly, the judicial review proceeding in the National Court was filed by the then Secretary. He alleged errors of law, breach of natural justice, and that the decision was unreasonable under the Wednesbury principle, as the grounds for review. These allegations were against the PSC - not the Second Respondent. The Second Respondent was not obliged to adduce evidence of his engagement as Acting Commissioner. We find therefore that the accusation that the Second Respondent concealed documents from the primary judge is baseless.
    
19. Furthermore, unlike his predecessor, the Second Applicant formed the view that the Second Respondent’s appointment as Acting Commissioner amounted to reinstatement. However, he wrongly accused the Second Respondent of concealing materials and succeeded in obtaining leave. Respectfully, leave should have been refused. We find therefore that this review is misconceived and an abuse of court process.
    
20. We take the liberty to encourage the parties to resolve the issue administratively. We have made a finding that the Second Respondent’s appointment as Acting Commissioner does not constitute reinstatement. That finding does not prevent the Applicants from reimbursing his lost salaries and entitlements from the date his salary was ceased to the date when he resigned from the Department. Salaries and entitlements already paid to the Second Respondent in his position as Acting Commissioner would have mitigated his losses.
    
21. The foregoing considerations and findings are in relation to the allegation that the Second Respondent concealed documents resulting in a miscarriage of justice to the Applicants. In relation to the actual decision and findings of the primary judge, Mr. Kandi conceded that the primary judge did not commit any error, procedural or otherwise.
    
22. In the circumstances, we are reluctant to exercise our discretionary power to review the decision of the primary judge. The discretionary power of the Supreme Court to review is available only where it is in the interest of justice; there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and there are clear legal grounds meriting a review of the decision. None of these requirements exist in this case.
    
23. For the foregoing reasons, the application must be dismissed, and we so order with costs to be taxed, if not agreed.
    

Orders accordingly.

Lawyers for the applicants: M.S. Wagambie Lawyers
Lawyers for the second respondent: Napu & Company Lawyers