Ron Napitalai for and on behalf of The Board of Appeal Committee of PNG Ports Corporation Limited and PNG Ports Corporation Limited v Casper Wallace (2010) SC1016

• Jurisdiction: Papua New Guinea
• Date: 08 February 2010
• Citation: (2010) SC1016
• Docket Number: SCM 3 OF 2009
• Court: Supreme Court
• Year: 2010

Full Title: SCM 3 OF 2009; Ron Napitalai for and on behalf of The Board of Appeal Committee of PNG Ports Corporation Limited and PNG Ports Corporation Limited v Casper Wallace (2010) SC1016

Supreme Court: Gavara Nanu, Hartshorn and Makail JJ.

Judgment Delivered: 8 February 2010

APPEAL - Appeal against grant of leave to judicially review—interlocutory judgment—whether trial judge fell into error - whether PNG Ports Corporation Limited a governmental or public body—whether terms and conditions of employment of Respondent set by statute—whether Respondent’s termination was of a private nature—whether remedy of judicial review available

Facts:

The respondent was granted leave to judicially review as to the termination of his employment with PNG Ports Corporation Ltd (PNG Ports). The appellants PNG Ports and its Board of Appeal Committee, obtained leave to appeal and now appeal the decision to grant leave to judicially review.

Held:

1. PNG Ports is not a governmental or public body as held by the trial judge.

2. The Employment Determination of 2002 does not apply to PNG Ports employees.

3. PNG Ports is not created by statute but is incorporated under the Companies Act.

4. The appellants have shown that the trial judge fell into error.

5. The respondent’s termination is of a private law nature. As such the remedy of judicial review is not available to him. Thus the trial judge fell into error in granting leave to the respondent for his termination from employment to be judicially reviewed.

Cases cited:

Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Ereman Ragi v Joseph Maingu (1994) SC459; Garamut Enterprises Ltd v Steamships Trading Company Ltd (1999) SC625; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855; Young Wedau v PNG Habours Board [1995] PNGLR 357

8th February, 2010

1. BY THE COURT: The respondent was granted leave to judicially review as to the termination of his employment with PNG Ports Corporation Ltd (PNG Ports).

2. The appellants, PNG Ports and its Board of Appeal Committee, obtained leave to appeal and now appeal the decision to grant leave to judicially review.

3. In essence the grounds of appeal are that judicial review is not available as a remedy against PNG Ports and even if it is, there has been inordinate delay in seeking that remedy. Consequently the appellants submit, the trial judge fell into error in granting leave.

4. The respondent submits that judicial review is a remedy that is available to him, that the question of delay was not raised and that the trial judge did not fall into error.

5. The decision of the trial judge in granting leave to judicially review is an interlocutory judgment: Garamut Enterprises Ltd v. Steamships Trading Co Ltd (1999) SC625, Tony Kila v. Talibe Hegele (2007) SC855, and is the exercise by him of judicial discretion in considering an application under Order 16 Rule 3 National Court Rules. This court's role in an appeal...