Lawrence Kalaivi, John Hevie, Yondi Andale, Petrus Uandi, Gilbert Semen and Geoffrey Waffi v Simon Arua, Superintendent SAID, Department of Education, Peter Baki, Secretary for Department of Education and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 15 October 1999
• Citation: (1999) N1922
• Court: National Court
• Year: 1999
• Judgement Number: N1922

National Court: Sevua J

Judgment Delivered: 15 October 1999

N1922

PAPUA NEW GUINEA

[National Court of Justice]

OS 168 OF 1999

BETWEEN: LAWRENCE KALAIVI,

JOHN HEVIE, YONDI

ANDALE, PETRUS UANDI,

GILBERT SEMEN &

GEOFFREY WAFFI

Plaintiffs

AND: SIMON ARUA -

SUPERINTENDENT SALD-

DEPARTMENT OF

EDUCATION

First Defendant

AND: PETER BAKI

SECRETARY FOR

DEPARTMENT OF EDUCATION

Second Defendant

AND: THE INDEPENDENT

STATE OF PAPUA NEW

GUINEA

Third Defendant

Waigani: Sevua, J

1999: 12th May & 15th October

Administrative Law – Judicial review – Application for leave – Plaintiffs not exhausted administrative procedures – Right of appeal provided in Teaching Service Act – Plaintiffs not appealed to Teaching Service Commission – Application for leave misconceived – Teaching service Act, s.13

Cases Cited:

The State -v- Phillip Kapal [1987] PNGLR 417

Kekedo -v- Burns Philp & Ors [1988-89) PNGLR 122

Where plaintiffs sought leave to apply for judicial review but had not exhausted their right of appeal under the Teaching Service Act:

Held:

1. Judicial review jurisdiction will not be exercised where other remedies available have not been used.

2. The plaintiffs had failed to exhaust the administrative procedures under s.13 of the Teaching Service Act (right of appeal) therefore they cannot come to this Court until that procedure is exhausted.

3. There are no exceptional circumstances warranting the Court to exercise its judicial review jurisdiction without the plaintiffs exhausting their right of appeal to the Teaching Service Commission.

4. The application is misconceived and without merit.

L. Manua for Plaintiffs

F. Alua for 1st & 2nd Defendants

L. Keria for 3rd Defendant

15th October, 1999

SEVUA, J: This is an application for leave for judicial review.

The plaintiffs were all teachers at Passam National High School, near Wewak. Sometime in January this year, they were verbally advised that they were either displaced or terminated and they should vacate their school accommodation and move out of the campus. It appears that one of the reasons for that decision was drunkeness. However, no written communication were given to the plaintiffs.

The plaintiffs claimed they were either displaced or terminated and this is unjustifiable, harsh and oppressive. They have therefore come to this Court to seek a review of the first defendant’s decision.

From the evidence before me and the manner in which the plaintiffs and their counsel have addressed this Court, it seems that the action is so bad that the plaintiffs are not able to regain employment as teachers at the same school or anywhere else. Their evidence in support of this application seems to point that way. The statement in support of their application seems to portray a very bad situation where they have been unfairly dismissed and disadvantaged.

However, in reality, that is not the case. The defendants have filed an affidavit sworn by one Papua Kuriki on 12th May, 1999 that all the plaintiffs, except John Hevie, have been relocated to other educational institutions in the country.

I am satisfied that the plaintiffs have sufficient interest in this case and have come to seek redress in this Court by filing this application within the time required by Order 16 Rule 3(5). That is to say, I am satisfied there has been no delay. Those are two of the four fundamental legal principles relevant in the exercise of the Court’s discretion to grant or refuse leave.

However, in my view, the remaining two principles do not favour the plaintiffs. Firstly, the plaintiffs have come to this Court without first exhausting administrative remedies. Both Mr Alua and Mr Keria have correctly pointed to the plaintiffs failure in complying with s.13 of the Teaching Services Commission Act. Whilst the plaintiffs have the right to seek redress in this Court, it is trite law that they must first exhaust all other administrative avenues available before they invoke the discretionary power of this Court.

The Teaching Service Act, Ch 71, is a law that is expressed in the following manner. “Being an Act to make provisions for-

(a) the Teaching Service Commission; and

(b) the terms and conditions of service of members of the Teaching Service; and

(c) other matters relating to the employment and welfare of

teachers, and for related purposes.”

Section 2 of the Act establishes the Teaching Service Commission, whose functions are set out in s.9. I draw attention to s.9(b) and (e) especially because they are relevant to the defendants’ arguments.

“(b)” to ensure that decisions of other authorities under this Act or the Education Act do not infringe or abrogate the rights or the conditions of service of members, and where those rights or conditions are infringed or abrogated-

(i) to give such directions; and

(ii) to take such other actions within its power under this Act or any other law as may be necessary to correct the situation; and

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