Iambakey Okuk and The Independent State of Papua New Guinea v Gerald Sidney Fallscheer

• Jurisdiction: Papua New Guinea
• Judge: Miles J:
• Judgment Date: 03 October 1980
• Citation: [1980] PNGLR 274
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC180

Supreme Court: Andrew J, Kapi J, Pratt J, Miles J

Judgment Delivered: 3 October 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IAMBAKEY OKUK

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

V

GERALD SIDNEY FALLSCHEER

Waigani

Andrew Kapi Pratt Miles JJ

30-31 July 1980

1 August 1980

3 October 1980

CIVIL AVIATION — National Airline Commission — Termination of appointment of general manager — Termination by Minister on ground of "inefficiency" — Natural justice — "Audi alteram partem" rule — Right to be heard — National Airline Commission Act 1973, s. 23 (2) Infra p. 275.1.

STATUTES — Interpretation — Civil aviation — National Airline Commission — Termination of appointment of general manager — Termination by Minister on ground of "inefficiency" — Natural justice — "Audi alteram partem" rule — Right to be heard — National Airline Commission Act 1973, s. 23 (2) Infra p. 275.2.

CONSTITUTIONAL LAW — Underlying law — Application of common law principles — Natural justice — "Audi alteram partem" rule — Right to be heard — National Justice Commission Act 1973, s. 23 (2) Infra p. 275.3 — Constitution of the Independent State of Papua New Guinea ss. 59, 60, 61, 62, Sch. 2.2, Sch. 2.3.

The general manager of the National Airlines Commission appointed under s. 22 of the National Airlines Commission Act 1973, has a right to be given reasons for his dismissal, and an opportunity to be heard in his own defence, before being removed from office under s. 23 (2) of that Act.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; and

Durayappah v. Fernando [1967] 2 A.C. 337 applied.

Fallscheer v. Iambakey Okuk [1980] P.N.G.L.R. 101 approved.

There is nothing in the National Airlines Commission Act 1973 which either expressly or impliedly excludes the principles of natural justice, and accordingly the common law principles are appropriately adopted and applied as part of the underlying law of Papua New Guinea according to Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea.

Fisher v. Keane (1897) 11 Ch. D. 353;

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180;

Hopkins v. Smethwick Local Board of Health (1890) 24 Q.B.D. 712, and

Malloch v. Aberdeen Corporation [1971] 2 all E.R. 1278 at pp. 1282-1283, applied.

Appeal

This was an appeal against a judgment on demurrer, the question determined on the demurrer being whether the Minister administering the National Airline Commission Act 1973 was required by law to give the General Manager of the National Airline Commission, an opportunity to be heard in his own defence before terminating his employment. The question on the demurrer was answered in the affirmative (see Fallscheer v. Iambakey Okuk [1980] P.N.G.L.R. 101).

Counsel

P. Young Q.C. and M. Fitzsimmons, for the appellants.

I. V. Gzell Q.C. and R. Thompson, for the respondent.

Cur. adv. vult.

3 October 1980

ANDREW J: This is an appeal against a judgment on demurrer made by his Honour Mr. Justice Greville Smith on 25th June, 1980.

Briefly stated, the history of the matter is that on 28th April, 1980 the first named appellant, the Minister for Transport and Civil Aviation referred to in the National Airline Commission Act 1973, purported to terminate the appointment of the respondent from the office of general manager of the National Airline Commission, on the stated ground of inefficiency. The respondent instituted an action against the Minister and the Government of Papua New Guinea by way of writ of summons seeking declarations that a purported suspension from employment as general manager of the National Airline Commission was ultra vires the powers of the Minister for Transport and Civil Aviation and was void and of no effect; secondly, that the purported termination of the respondent from his employment as general manager of the National Airline Commission was also void and of no effect and the respondent claimed damages. The statement of claim, delivered on 20th May, 1980, contained fifteen grounds including the claim that the repondent had not been given notice or particulars of the alleged grounds of inefficiency nor an opportunity to be heard and that the principle of natural justice enshrined in the phrase "audi alteram partem" applied with respect to the termination of the respondent's employment upon a ground specified in s. 23 (2) of the National Airline Commission Act 1973.

To the statement of claim the defendants, under the provisions of O. XXIX of the National Court Orders and Rules, demurred on 27th May, 1980, in the following terms:

"The defendants demur to the plaintiff's statement of claim, and say that the same is bad in law on the following grounds:

1. It is not incumbent on the Minister in acting under Section 23 of the National Airline Commission Act to abide by the principles of Natural Justice as pleaded.

2. Alternatively to one above the Minister may in the interest of the State or in the case of urgency act without regard to any principles of natural justice if that appears to him to be in the national interest or it is an emergency situation.

3. The decision of the Minister under Section 23 of the National Airline Commission Act is not one that is reviewable by this Honourable Court.

4. The plaintiff's cause of action (if any) is an action for wrongful dismissal."

His Honour the trial judge was of the opinion that the respondent had a legal entitlement to be heard in his own defence before the Minister terminated his appointment and the demurrer was overruled. The hearing of the action was adjourned to a date to be fixed.

Appeal is now brought against the judgment on demurrer.

That judgment [1980] P.N.G.L.R. 101.4 examines the principles of natural justice and the "audi alteram partem" rule in relation to the facts of this case. In my view it is an exhaustive and detailed examination of those principles and I accept the reasons and the conclusion as a correct statement of the law. I have also had the advantage of reading the judgments of Kapi J. and Miles J. who would dismiss the appeal and I agree also with their conclusions. As I am so far in agreement I wish to add only the following.

The "right to be heard", where it exists, is properly categorized as one of the principles of natural justice. These principles are specifically referred to in Div. 4 of Pt. 3 of the Constitution of the Independent State of Papua New Guinea and the principles of natural justice in force in England on 16th September, 1975 are part of the underlying law of this country: See Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea & Ors. [1979] P.N.G.L.R. 329.5. That case however was dealing with the deportation of an alien which is a quite separate question from the present one, depending as it does on an interpretation of different areas of the Constitution and of the Migration Act 1963, and in my view is of no further relevance to the present case.

The major issue before the trial judge was whether the principles of natural justice apply to dismissal from the office of general manager of the National Airline Commission under s. 23 (2) of the National Airline Commission Act 1973. His Honour framed the question as follows:

"Purely as a matter of statutory construction of the Act in question was the Minister required by law to give the General Manager an opportunity to be heard in his own defence before terminating his employment."

It was submitted by counsel for the appellants that the framing of the question in that way amounted to a misunderstanding of the real point in issue, or in other words that it was the wrong question. I am unable to see that this is so. It seems to me that that was precisely the point in issue and to which the argument was directed.

I think it is important to consider that no general rule can be laid down as to the application of the principles of natural justice. Each case must be determined on its own facts. But the requirements of natural justice in circumstances similar to the present case received its modern expression in Ridge v. Baldwin [1964] A.C. 40; [1963] 2 All E.R. 66.6. I see little point in examining decisions prior to that case. I respectfully agree with the learned trial judge's findings, when in consideration of Ridge v. Baldwin he said (supra):

"It seems to me to be quite clear that the plaintiff falls within the boundaries delineated by Lord Reid in the 'third' category of dismissal cases, to which the common law will apply the rule of 'audi alteram partem' unless the application of such rule is excluded by the legislature by express words or necessary intendment, namely dismissal from an office where there must be something against a man to warrant his dismissal. In addition the plaintiff has this in common with the appellant in Ridge v. Baldwin, that he was not the servant of the dismissing party, and he stood to lose a substantial right as a result of dismissal. As to the latter, in Ridge v. Baldwin, the loss was of pension rights, and in the case of...