Norman Daniel v Air Niugini Limited and The Independent State of Papua New GuineaSCM 4 of 2017; Vincent Tongia v Air Niugini Limited and The Independent State of Papua New GuineaSCM 5 of 2017; David Seken v Air Niugini Limited and The Independent State of Papua New GuineaSCM 6 of 2017; Joseph Kumasi v Air Niugini Limited and The Independent State of Papua New GuineaSCM 7 of 2017; Able Kanego v Air Niugini Limited and The Independent State of Papua New GuineaSCM 8 of 2017; Elijah Yangi v Air Niugini Limited and The Independent State of Papua New GuineaSCM 9 of 2017; Boris Ageda v Air Niugini Limited and The Independent State of Papua New GuineaSCM 10 of 2017; Benjamin Lopa v Air Niugini Limited and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Batari & Collier JJ
• Judgment Date: 04 August 2017
• Court: Supreme Court
• Citation: (2017) SC1886
• Docket Number: SCM 3 of 2017
• Year: 2017
• Judgement Number: SC1886

Full Title: SCM 3 of 2017; Norman Daniel v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 4 of 2017; Vincent Tongia v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 5 of 2017; David Seken v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 6 of 2017; Joseph Kumasi v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 7 of 2017; Able Kanego v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 8 of 2017; Elijah Yangi v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 9 of 2017; Boris Ageda v Air Niugini Limited and The Independent State of Papua New Guinea
SCM 10 of 2017; Benjamin Lopa v Air Niugini Limited and The Independent State of Papua New Guinea

Supreme Court: Salika DCJ, Batari & Collier JJ

Judgment Delivered: 4 August 2017

SC1886

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2017

NORMAN DANIEL

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 4 of 2017

VINCENT TONGIA

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 5 of 2017

DAVID SEKEN

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 6 of 2017

JOSEPH KUMASI

Appellant

v

AIR NIUGINI LIMITED

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 7 of 2017

ABLE KANEGO

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 8 of 2017

ELIJAH YANGI

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 9 of 2017

BORIS AGEDA

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

SCM 10 of 2017

BENJAMIN LOPA

Appellant

v

AIR NIUGINI LIMITED

First Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Salika DCJ, Batari & Collier JJ

2017: 27th June & 4th August

JUDICIAL REVIEW – whether judicial review remedies available – decision to terminate employment – employment contracts and Industrial Award – whether employer a public body – whether decisions invoked issues of private law or public law – employer incorporated under Companies Act 1997 – Kumul Consolidated Holdings sole shareholder of employer –corporatised entity – whether declaration under Public Employment (Non-citizens) Act 1978 in respect of predecessor entity relevant – comprehensive terms of employment in employment contracts and Industrial Award

JUDICIAL REVIEW – earlier appeal against leave to commence judicial review proceedings dismissed – comments in interlocutory proceedings – substantive issues not finally determined at interlocutory stage

Cases Cited:

Air Niugini Ltd v Unagi [2007] SC901

Air Niugini v Salter (2001) SC 679

Bougainville Copper Foundation v Minister for Trade & Industry [1988-89] PNGLR 110

Nelson v Pruaitch (2004) N2536

Dupnai v Weke [2016] SC1525

Helifix Group of Companies Ltd v Papua New Guinea Land Board [2012] SC1150

In the Matter of The Association by Waghi Mek Plantations Ltd [2001] N2051

Joel Luma v. John Kali (2014) SC1401

Koi Toki v Moeka Morea Helai (2016) SC 1558

Kombati v Singin [2004] PNGLR 476

Lupari v Somare [2010] SC1071

Maiyau v Tupiri [2015] N5985

Napitalai v PNG Ports Corporation Ltd [2010] SC1016.

National Airline Commission trading as Air Niugini v Lysenko [1990] PNGLR 226

National Airline Commission v Joel [1992] PNGLR 132

Nemambo v Peipul [1994] SC475

Okuk v Fallscheer [1980] PNGLR 274

Ombudsman Commission v Yama [2004] SC747

O'Neil v Klapat [2014] SC1385

Owa v Popuna [2015] N6111

Ragi v Maingu (1994) SC459

Robinson v National Airline Commission [1983] PNGLR 476

Sausau v Kumgal [2006] N3253

SCR No 1 of 1990; Re Recount of Votes [1990] PNGLR 441

State v Eluh [2016] SC1479

State v Kapal [1987] PNGLR 417

Supro v Aopi [1997] PNGLR 353

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906; Somare v Manek [2011] SC1118

Temu, Department of Works and The State v James Wani, SCA 96 of 1993

Timothy v Marus [2014] SC1403

Wadau v PNG Harbours Board [1995] PNGLR 357

Waulas v Jigede (2009) N3781

Wawoi Guavi Timber Company Ltd v Mondia [2007] SC1028

Yafai v Kereme (2016) SC1513

Counsel:

Mr M Murray, for the Appellants

Mr I Molloy with Mr C Joseph, for the First Respondent

No appearance for the Second Respondent

JUDGMENT

4th August, 2017

1. BY THE COURT: These proceedings have been listed together because they are in the nature of eight appeals based on the same factual substratum, with the same grounds of appeal, common submission and the same Counsel representing all appellants. The facts are not in dispute – the issue for the Court in all appeals concerns the application of legal principles by the primary Judge and whether the relevant decisions of the first respondent could properly be the subject of judicial review by the National Court.

Background

Facts

2. The first respondent conducts an airline, Air Niugini. All eight appellants were employed by the first respondent as pilots or cadet pilots. While there is some controversy concerning the exact basis of their employment, we understand that they were employed pursuant to agreements between themselves and the first respondent.

3. All appellants were dismissed on disciplinary grounds at various dates in September 2016 following a refusal to undertake second medical checks required by the first respondent after they had failed to attend work due to claimed medical conditions.

4. Termination of the employment of the appellants also resulted in the cessation of their entitlement to accommodation provided by the first respondent.

5. By originating summonses filed in the National Court on 30 September 2016 the appellants sought:

· Orders pursuant to Order 16 Rule 3 (3) of the National Court Rules granting leave for judicial review of the decisions of dismissal and removal/eviction on the part of the first respondent

· Orders in the nature of certiorari to quash those decisions of the first respondent

· Orders in the nature of declarations that those decisions were void

· Stay orders and

· Additional orders not relevant to these reasons.

Leave to Apply for Judicial Review

6. On 7 October 2016 the primary Judge made the following orders in each proceeding:

1. Leave granted to the Plaintiff to apply for judicial review of the decision of the First Defendant to dismiss him from employment on Thursday 01st September 2016.

2. The decision of the First Defendant is stayed until further order of the court.

3. …

7. On 13 October 2016 the respondents filed an application for leave to appeal from his Honour’s orders of 7 October 2016. The application for leave to appeal came before the Chief Justice on 9 December 2016. A copy of the transcript of the hearing is annexed to the affidavit of Mr Moses Murray sworn 22 February 2017.

8. The Chief Justice dismissed the respondents’ applications for leave to appeal. In delivering his ruling, the Chief Justice observed in summary that the respondents were required to show that the trial Judge had erred in finding that the appellants had an arguable case for judicial review. The Chief Justice then defined the main point of the respondents as:

“… whether the contract of employment entered into between the appellants and the respondents was of a private nature that came under private contract law and therefore is not amenable to judicial review under the procedures set out in order 16 of the National Court Rules.”

9. The Chief Justice observed that the primary Judge had considered this very point, and further observed that the point would be raised and determined fully in the trial of the substantive proceedings. After considering the arguments of the appellant, and the decision of the Supreme Court in Joel Luma v. John Kali (2014) SC140, his Honour continued:

“I accept the appellant’s argument that the appellant is a company incorporated under the Companies Act and it possesses all the characteristics and attributes of a body corporate...