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
• Court: National Court
• Citation: (2004) N2691
• Date: 19 October 2004
• Year: 2004

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 v Joseph Maingu (1994) SC459, Young Wedau v Alfred Daniel [1995] PNGLR 357, Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353, Leto Darius v The Commissioner of Police (2001) N2046 referred to

Judgment

___________________________

Cannings J:

INTRODUCTION

This is a ruling on an application for leave to seek judicial review. The plaintiff/applicant seeks leave under O16 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 O16 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 O16 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...