Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board v Joseph Maingu [Public Officers Superannuation Fund Board (POSFB)] (1994) SC459

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Sheehan J, Andrew J
• Judgment Date: 29 June 1994
• Court: Supreme Court
• Citation: (1994) SC459
• Year: 1994
• Judgement Number: SC459

Supreme Court: Woods J, Sheehan J, Andrew J

Judgment Delivered: 29 June 1994

SC 459

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 138 of 1993

EREMAN RAGI

First Appellant

&

THE STATE SERVICES & STATUTORY AUTHORITIES SUPERANNUATION FUND BOARD

Second Appellant

V

JOSEPH MAINGU

Respondent

WAIGANI: Woods, Sheehan, Andrew, JJ

27 April & 29 June 1994

Judicial Review — when applicable — public law and private law — not applicable in an ordinary master and servant situation — where alternate statutory remedies not exhaused.

Employment — terms — common law categories applicable unless varied by contract — right of employer to terminate employment — terms of employment and termination no better than under Employment Act ch 373 — no contract — no unfair dismissal.

Cases cited:

The following cases are cited in this judgement.

Council of Civil Service Unions & Minister for the Civil Service [1984] 3A.E.R. 935.

Kekedo v Burns Philp Ltd [1988-89] PNGLR 122.

Malai v PNG Teachers Association [1992] PNGLR 568.

O'Reilly v Mackman [1982] 3A.E.R. 680.

R v East Berkshire Health Authority ex parte Walsh [1984] 3 A.E.R. 425

Talin v PNG Waterboard [1992] PNGLR 211.

Sulaiman v PNG University of Technology [1987] Unreported N610.

J. Baker for the Appellants.

J. Kemaken for the Respondent.

29 June 1994

BY THE COURT: This is an appeal against the decision of the National Court given on 15 October 1993 following a Review of a decision of the First Appellant whereby he summarily terminated the employment of the Respondent from his employment with the State Services and Statutory Authorities Superannuation Fund Board, hereinafter referred to as the Board. The National Court granted the Review and found that the respondent had been wrongfully terminated and ordered the Appellant to reinstate him. The Appellants have appealed against these orders.

The history is that the Respondent was a lawyer employed as Corporate Secretary to the former Public Officers Superannuation Board from April 1985. At the end of 1992 there was a restructuring of the Board and the position of Corporate Secretary ceased to exist and from then the respondent held the position of acting Board Secretary. By virtue of the new structure the position of Board Secretary was advertised and for some reason unexplained the Respondent did not apply. Then in June 1993 the Respondent was given a notice of dismissal. It appears from the evidence presented to the Court that this was for a combination of non-performance and negligence in the performance of his duties.

The respondent therefore sought and obtained leave to apply for Judicial Review of the decision by the appellant to summarily dismiss him.

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...