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 (2004) N2691

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 October 2004
• Court: National Court
• Citation: (2004) N2691
• Year: 2004
• Judgement Number: N2691

Full Title: 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 (2004) N2691

National Court: Cannings J

Judgment Delivered: 19 October 2004

1 Judicial review—application for leave—National Court Rules, O16—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.

2 Ombudsman Commission v Donohoe [1985] PNGLR 348, Ex parte Application of Eric Gurupa (1990) N856, Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board v Joseph Maingu (1994) SC459, Young Wedau v Alfred Daniel and Others [1995] PNGLR 357, Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353, Leto Darius v The Commissioner of Police (2001) N2046 referred to

Judgment

___________________________

N2691

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 396 OF 2004

JOHN KOMBATI

Plaintiff

V

FUA SINGIN, CHURCH SECRETARY,

EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA

1st Defendant

REVEREND KIAGE MOTORO, ACTING HEAD BISHOP AND

CHAIRMAN, SPECIAL EXECUTIVE COUNCIL,

EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA

2nd Defendant

EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA

3rd Defendant

MT HAGEN : CANNINGS J

8, 19 OCTOBER 2004

JUDGMENT

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.

Cases cited

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

Young Wedau v Alfred Daniel and Others [1995] PNGLR 357

Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353

Leto Darius v Commissioner of Police (2001) N2046

Mr J Kombati, the plaintiff, in person

Mr J Peri for the defendants

CANNINGS J:

INTRODUCTION

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...