national court of justice

JOHN KOMBATI

v

FUA SINGIN, CHURCH SECRETARY,
EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA;
REVEREND KIAGE MOTORO, ACTING HEAD BISHOP AND
CHAIRMAN, SPECIAL EXECUTIVE COUNCIL, EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA; and
EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA

mt. hagen: cannings j

08 & 19 October 2004

Judicial review – Application for leave – National Court Rules, Order 16 – Applicant's employment as officer of Church terminated – Application for leave to seek review of decision to terminate – Decision made by Church incorporated by statute – Relevant considerations to exercise of Court's discretion whether to grant leave – Whether decision-maker a public body – Whether public law remedies appropriate – Identification of relevant considerations re exercise of discretion – Application of considerations – Ruling.

Facts

The applicant was employed by the Evangelical Lutheran Church of Papua New Guinea at the time his services were terminated by the Special Executive council. The plaintiff denied the allegations of misappropriation and misconduct and protested against the procedures being used and claimed that the defendants unlawfully terminated his employment as an officer of the Evangelical Lutheran Church of Papua New Guinea.

Held

1.	As a general rule judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made under statute or subordinate legislation. 

2.	The Church is not a public body for the purposes of determining whether its decision to terminate the employment of a Church officer is amenable to judicial review. It has fewer features of a public or governmental body than the bodies whose termination decisions were found beyond the scope of judicial review in number of decided cases referred to pp 483 – 4 below. 

3.	The rights and obligations that regulated the relationship between the Church and the plaintiff have their source in private law – not public law.

Papua New Guinea cases cited
Ereman Ragi and State Services and Statutory Authorities Superannuation Fund Board (Public Officers Superannuation Fund Board) v Joseph Maingu (1994) SC459.
Leto Darius v Commissioner of Police (2001) N2046.
Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353.
Young Wedau v Alfred Daniel and Others [1995] PNGLR 357.

Counsel
J Kombati, the plaintiff, in person.
J Peri, for the defendants.

19 October 2004

Cannings j. This is a ruling on an application for leave to seek judicial review. The plaintiff/applicant seeks leave under Order 16 of the National Court Rules. He claims that the defendants unlawfully decided to terminate his employment as an officer of the Evangelical Lutheran Church of Papua New Guinea (the Church). 

Background 

The plaintiff claims that he was appointed to the position of Finance Secretary of the Church with effect from 3 January 2003. He says that he had been a member of the Finance Board of the Church since 1988. 

He claims that on 23 October 2003 the first defendant wrote to him, making allegations of misappropriation and misconduct. A few days later the first defendant suspended him from duty. During November 2003 the defendants took various steps in relation to the allegations, which the plaintiff maintains were unlawful and unfair. On 10 December 2003 a special executive council meeting was held. The council decided to terminate the plaintiff's employment. On 12 December 2003 he was given a notice of termination. Throughout this period, the plaintiff denied the allegations and protested against the procedures being used.

On 12 February 2004 the plaintiff filed an originating summons (OS No 54 of 2004) and other documents pursuant to Order 16 of the National Court Rules. He sought leave to make an application for judicial review of the defendants' various decisions regarding his suspension and termination.

On 20 April 2004 OS, No 54 of 2004 came before Mogish J at Mt Hagen for hearing. The plaintiff represented himself. There was no appearance by the defendants. On 22 April 2004 his Honour declined the application for leave, as the plaintiff had failed to produce the constitution and by-laws of the Church. His Honour, however, indicated that the plaintiff was at liberty to make a fresh application for leave, once relevant materials were filed.

On 28 July 2004 the plaintiff filed a fresh originating summons (OS No 396 of 2004) and other documents pursuant to Order 16 of the National Court Rules. He is again seeking leave to make an application for judicial review regarding his suspension and termination as Finance Secretary of the Church. He produced, as suggested by Mogish J, copies of the Church's constitution and by-laws. If he is granted leave, he will seek a declaration that his employment was not validly terminated and that he remains the Finance Secretary. He will also seek an order that he be paid salaries, allowances and other entitlements back to 12 December 2003 and damages and other consequential relief. 

In support of his application for leave, the plaintiff claims that disciplinary procedures for suspension and termination of Church officers are prescribed by the Church's constitution and by-laws. Those procedures were not followed. He claims that he was denied natural justice. 

On 8 October 2004 the fresh application for leave (OS No 396 of 2004) was heard. The plaintiff again represented himself. The defendants were represented by Mr Peri of Warner Shand Lawyers.

Applications for leave under Order 16 can generally be made ex parte. The exception is if the State is a defendant, in which case it must be afforded an opportunity to be heard, by virtue of Section 8 of the Claims By and Against the State Act. In this case the State was not a defendant. So the defendants were not entitled to be heard. Nevertheless the plaintiff took no objection to Mr Peri's attendance.

I heard brief submissions from the plaintiff. Mr Peri assisted the Court by identifying relevant laws pertaining to the Church. I alerted the plaintiff to the possibility that there was an important issue to address about the appropriateness of commencing his case against the Church under Order 16 of the National Court Rules. He appeared to understand the point that I was making. He indicated that he wanted to press ahead with his application. I then reserved a ruling on the matter. 

Relevant law

When the National Court deals with applications for leave to seek judicial review, it takes account of a number of considerations. These were summarised by Kandakasi J in Leto Darius v Commissioner of Police (2001) N2046.

His Honour stated, at pages 6-7:

Whether or not leave should be grant is a matter which calls for an exercise of the discretion vested in the Court by O.16 r.1(1) and ss. 166 and 155(3) and (4) of the Constitution. As the Supreme Court said in Ombudsman Commission of Papua New Guinea v. Denis Donohoe [1985] PNGLR 348 at page 361 per Amet J (as he then was), a Court considering that issue need only be satisfied of the requirements under O.16 rr. 2, 3 and 5 and not r.1(2). I venture to add that the Court must also be satisfied of the requirements under r.4. This is because any delay in bringing an application is a very important factor for consideration. That can be appreciated from the perspective of changes in administration including changes in personnel that may take place once a decision has been made. Thus any delay in bringing an application for judicial review may prove detrimental to good administration and that may form the basis for a denial of leave. See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70 at 76; The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 and An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (1990) N856.

According to these rules and the case law on it to date, the requirements amongst others that must be met by an applicant for leave for judicial review, can be summarised as follows:

1.	He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;

2.	The decision sought to be reviewed is that of a public body or authority;

3.	The applicant has an arguable case on the merits;

4.	All other available remedies have been exhausted; and

5.	The application is being made promptly without undue delay.

The five matters listed by Kandakasi J are not considerations to be weighed in the balance. They are a checklist of minimum requirements to be satisfied. Every one of them has to be satisfied. If they are all satisfied, there are still other things that the Court might take into account, eg whether the applicant is acting in good faith. If one or more of the five matters is not satisfied, then only in exceptional circumstances will the Court grant leave.

Consideration of checklist
In the present case it is clear that items Nos 1 and 5 on Kandakasi J's checklist are satisfied. As to No 3 and No 4, I make no finding yet. The other item on the checklist – No 2 – stands out as the key issue that needs consideration.

KEY ISSUE: IS THE CHURCH A PUBLIC BODY? 

The issue

Was the decision that the plaintiff wants reviewed, made by a public body or authority? In other words, is the Church a public body? 

If the answer is yes, item No 2 on the checklist is satisfied. If no, item No 2 is not satisfied; and, unless exceptional circumstances exist, the application for leave to seek judicial review must be refused.

Leading case: Maingu

The leading case on the issue of whether decision-making bodies are public bodies for the purposes of applications for leave to seek judicial review is Ereman Ragi and State Services and Statutory Authorities Superannuation Fund Board (Public Officers Superannuation Fund Board) v Joseph Maingu, Supreme Court, (1994) SC459. The plaintiff was a senior officer of the POSF Board. The Board terminated his employment on the ground of non-performance and negligence. He sought leave to apply for judicial review. The grounds of review were, amongst other things, that the Board did not have power to summarily dismiss him, as he was a "permanent" officer of the Board; that he was denied natural justice; and that there was no evidence he had been negligent in the discharge of his duties. 

The National Court granted leave for review. Then, in the substantive application, it granted an order for judicial review. It found that the plaintiff had been wrongfully terminated and ordered his reinstatement.

The Board and its then Managing Director, Mr Ragi, appealed to the Supreme Court. They were successful. The Supreme Court (Woods J, Sheehan J and Andrew J) in a joint judgment held that the National Court erred in finding that the Board had made errors of law and denied natural justice to the plaintiff. Significantly for the present case, the Supreme Court also held that the National Court had erred when granting leave to the plaintiff in the first place. 

The Supreme Court said that only decisions that have their basis in 'public law' can be subject to judicial review procedures, such as those under Order 16 of the National Court Rules. If the decision that a person is aggrieved about has its basis in 'private law', judicial review procedures and remedies are inappropriate and cannot be invoked.

The Court stated, at pages 3-4:

As a general rule judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged.

In R v East Berkshire Health Authority ex part Walsh [1984] 3 A.E.R. 425 at 429: "The remedy of judicial review is only available where issues of 'public law' are involved."

And in O'Reilly v Mackman [1982] 3 A.E.R. 680 per Lord Denning at 693: "Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty."

And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 A.E.R. 935 @ 949: "For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers."

Note here the emphasis is on public law. So what is public law as against private law?

Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.

Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.

The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.

In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.

But here before us the respondent was merely challenging his termination, yet neither this Court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.

And see Sulaiman v PNG Unitech [1987] Unreported N610 where it was clearly stated: "The right to seek Judicial Review has been granted where an injustice has been done and there is no other remedy. For example where a decision by a tribunal or public authority is final and the applicant has and will suffer some damage. However in this case the applicant if he has suffered some wrong clearly has some other remedy. He has a remedy to sue for damages for wrongful dismissal under his terms and conditions of employment." And further: "The law is well settled. The Court will not grant specific performance of a contract of employment"; and see the authorities quoted in that case.

Where courts have intervened by way of review in the process of dismissal because of the failure to observe the rules of natural justice it has been where there is a statutory power or procedure being exercised; not a contractual power. The Respondent here is trying to make the position of the Board a position of special status. We are not satisfied the Respondent here has a special status which would enable the Court to interfere in this way in a contract or agreement of employment.

There is nothing before this Court to show that the claim in this matter is an appropriate matter for judicial review.

In Maingu the Supreme Court thus found that the POSF Board's decision to terminate an officer had its basis in private law – not public law. So judicial review was not available.

Other cases

Maingu has been followed in other cases. For example in Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353 the National Court (Woods J) refused leave for judicial review. The plaintiff had his employment with Telikom PNG Ltd terminated. Woods J held that, though Telikom had community service obligations and performed public functions, the decision to terminate the plaintiff had been made under private law. Telikom was not a public body for the purposes of determining the leave application. 

In Young Wedau v Alfred Daniel and Others [1995] PNGLR 357 the Supreme Court came to a similar conclusion in relation to the Papua New Guinea Harbours Board. The Board dismissed the plaintiff from his position as legal officer to the Board, exercising its private law powers. The plaintiff did not hold office under a particular statutory provision. The rights and obligations of the Board and the officer were regulated by private law. So the Supreme Court, relying on Maingu, dismissed an appeal against Salika J's decision in the National Court to refuse leave for judicial review.

The Church

The Church is established as a corporation by the Evangelical Lutheran Church of Papua New Guinea Act No 5 of 1992 (hereafter referred to as "the Church Act").

The Church Act provides, amongst other things, that Church property shall be managed by the Church Council. It provides for the composition of the Council, which shall be chaired by the Bishop of the Church. It provides generally for the quorum and procedures of the Council. It requires the Council to appoint a public officer, who shall exercise all the powers and functions of a public officer of a company incorporated under the Companies Act. There are two provisions of the Church Act concerning other officers. Section 7 provides that the Council "may appoint such officers as it thinks necessary for the proper administration of affairs relating to Church property". Section 13 states that the constitution of the Church "shall provide for the management, appointment of officers, duties and other such powers as from time to time the Council or Synod shall adopt".

Resolution of key issue

I have examined copies of documents described as the constitution and by-laws of the Church, annexed to the plaintiff's affidavit of 28 July 2004. After considering those documents in the context of the Church Act, I draw the following conclusions:

The plaintiff did not hold public office under any particular statutory provision. The Church Act does not create the office of Finance Secretary, the position he held from January to December 2003. Nor do the constitution or by-laws of the Church create that position.

The Church is not a public body for the purposes of determining whether its decision to terminate the employment of a Church officer is amenable to judicial review. It has fewer features of a public or governmental body than the bodies whose termination decisions were found beyond the scope of judicial review in the cases referred to above, ie the POSF Board (Maingu); Unitech (Sulaiman); Telikom (Supro); and the Harbours Board (Wedau). Those bodies are subject to a greater degree of control by the legislative arm of government (through the more detailed legislation that provides for the running of each body). They are also subject to greater accountability and control by the executive arm of government, eg by appointment and dismissal of the controlling board of each body. They are also subject to supervision and control by constitutional institutions such as the Ombudsman Commission and the office of Auditor-General; whereas the Church is not. 

The rights and obligations that regulated the relationship between the Church and the plaintiff have their source in private law – not public law.

Item No 2 in the checklist derived from Kandakasi J's judgment in the Darius case is not satisfied. 

There are no exceptional circumstances which would warrant the Court allowing leave for judicial review.

It is not necessary to consider the other items in the checklist, ie whether there is an arguable case and whether the plaintiff exhausted other remedies. 

Therefore it would not be proper to grant leave for judicial review under Order 16 of the National Court Rules. 

Remarks

The Court will refuse the plaintiff leave for judicial review. But that does not necessarily mean he has no right to seek redress. The Court is not closing all doors and saying that he cannot enter to sort out his grievances with the Church. The Court is just saying 'he has knocked on the wrong door'.

The appropriate course of action might be for the plaintiff to file a writ of summons under Order 4 of the National Court Rules. He could perhaps then claim that he was wrongfully dismissed or that the Church breached the terms of a contract of employment between it and him.

In making those remarks the Court is not expressing any view as to whether the plaintiff has a cause of action.

Order

The Court will make the following order:

The plaintiff's application for leave to seek judicial review of the decisions of the defendants and other relief referred to in the notice of motion filed on 28 July 2004, is refused.

The parties will bear their own costs.

Lawyers for the plaintiff: Plaintiff appearing in person.
Lawyers for the defendants: Warner Shand.