Serah Muingepe Kani v Barrick (Niugini) Limited (formerly Placer Dome (PNG) Limited)
| Jurisdiction | Papua New Guinea |
| Judge | Toliken J,Shepherd J,Berrigan J |
| Judgment Date | 25 April 2024 |
| Neutral Citation | SC2557 |
| Citation | SC2557, 2024-04-25 |
| Counsel | Mr Solomon Wanis, for the Applicant,Mr Wilson Mininga, for the Respondent |
| Docket Number | SC REV NO. 24 OF 2022 [IECMS] |
| Hearing Date | 27 July 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV NO. 24 OF 2022 [IECMS]
Between
Serah Muingepe Kani
Applicant
v.
Barrick (Niugini) Limited (formerly Placer Dome (PNG) Limited)
Respondent
Waigani: Toliken J, Shepherd J & Berrigan J
2023: 27th July
2024: 25th April
PRACTICE & PROCEDURE — Application for review under s.155(2)(b) of the Constitution — review sought of oral decision of trial judge to dismiss applicant's claim — principles relating to pleading of causes of action and particulars — Order 8 Rules 27, 29 & 32, National Court Rules — whether dismissal of claim was breach of natural justice — duties of decision-makers to provide reasons for decision — failure to provide reasons — review upheld and case remitted for re-trial.
Cases Cited:
Amaiu v Yalbees (2020) SC2046
Avei v Maino [2000] PNGLR 157
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No 2) [1982] PNGLR 44
Electoral Commission v Kaku (2019) SC1866
Giru v Edo (2007) N5032
Golobadana No. 35 Ltd v. Bank of South Pacific Ltd [2013] N5340
Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138
Irafawe v Riwong (1996) N1915
Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122
Kuman v Digicel (PNG) Ltd (2013) SC1232
Laki v Alaluku (2002) N2001
Lerro v Stagg (2006) N3050
Manui v ANZ Banking Group (PNG Ltd (2008) N3405
Mataio v August (2014) SC1361
Micah v Lua (2015) SC1445
Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370
Papua New Guinea Banking Corporation v Tole [2002] SC694
PNG Forest Products Pty Ltd v The State [1992] PNGLR 85
Sigianisi v Aimo (2013) SC1237
Toap v The State [2004] 1 PNGLR 191
Waranaka v Dusava (2009) SC 980
Woodbank Pacific Ltd v Paropet (2021) SC2021
Yakasa v Piso (2014) SC1330
Counsel:
Mr Solomon Wanis, for the Applicant
Mr Wilson Mininga, for the Respondent
Solomon Wanis Lawyers: Lawyers for the Applicant
Bradshaw Lawyers: Lawyers for the Respondent
REASONS FOR JUDGMENT
25th April 2024
1. BY THE COURT: Before the Court is a substantive review application filed by the applicant Serah Muingepe Kani seeking a review of a decision of the National Court whereby her claim against the respondent was dismissed on 1 July 2022 after a trial on liability. The application is made pursuant to s.155(2)(b) of the Constitution.
BACKGROUND
2. The applicant commenced suit against the respondent by the filing of WS No. 1463 of 2018 in the National Court on 20 November 2018.
3. The applicant is a former employee of the respondent company. She was employed as a supervisor at the respondent's waste water treatment plant at the Porgera mine site. Her employment with the respondent was terminated by email notification on 5 April 2017 under clause 11.2 of her contract of employment dated 12 April 2014.
4. The applicant claimed that during the course of her employment the respondent failed to provide a safe system of work and that this had resulted in her falling ill, ultimately causing her to suffer a miscarriage.
5. The applicant further claimed that her male supervisors and colleagues used profane words against her and that they were discourteous and unprofessional in the manner in which they dealt with her complaints. The applicant has contended that the adverse manner in which she was treated by her male supervisors seriously affected her wellbeing and peace of mind causing her mental anguish and stress, which was a further reason why she had fallen ill and had a miscarriage.
6. There are four causes of action that are pleaded in the applicant's amended statement of claim:1
(1) tort of negligence;
(2) breach of statutory duty by the respondent;
(3) breach of contract; and
(4) breach of Constitutional rights.
7. Prior to trial, the applicant gave notice to the respondent that she would not be pursuing her claim of breach of contract against the defendant.
8. A trial was conducted on 12 June 2022 before the National Court.
9. The trial proceeded on the basis that the applicant's substantive claims against the respondent were three causes of action based on (1) negligence (2) breach of statutory duty, and (3) breach of Constitutional rights.
10. The respondent's defence at trial was that it denied all adverse allegations against it. In closing submissions at the end of the trial it contended that the applicant had not sufficiently pleaded the applicant's claims for negligence, statutory breach and breach of Constitutional rights. The respondent submitted that the plaintiff's various causes of action pleaded in her amended statement of claim were convoluted and did not comply with Order 8 Rules 27, 29 and 32 of the National Court Rules (NCR) and that the proceeding should be dismissed.
11. On 1 July 2022 the trial judge delivered a short oral judgment which dismissed the applicant's proceeding and which in essence agreed with the respondent's submissions.
12. The trial judge found that the applicant's amended statement of claim failed to disclose any reasonable cause of action when considered in its entirety or its separate allegations. Her Honour ruled that the applicant's amended statement of claim was confusing and that it failed to assist the Court to determine the relevant issues for determination, leaving the Court to guess as to the nature of the applicant's different causes of action.
13. The applicant applied to the Supreme Court for leave for review of the decision of the trial judge. Leave for review was granted on 30 November 2022, the applicant having satisfied the judge who heard the application that there were convincing reasons as to why leave should be granted and that an arguable case for review had been demonstrated.
14. The applicant filed her substantive application for review on 9th December 2022. The application was listed for hearing by the Supreme Court on 23rd July 2023, at which time we heard the application and reserved our decision.
RELEVANT LAW ON REVIEW APPLICATIONS
15. We observe at the outset that the matter before the Court is an application for judicial review, not an appeal. The law governing review of decisions of the National Court is well settled.
16. Earlier leading authorities on judicial review are the twin decisions in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No 2) [1982] PNGLR 44 (Kidu CJ, Kearney DCJ, Greville–Smith, Andrew & Kapi, JJ, which make it clear that an applicant must make out a case and the Court must find on the merits of the application that the applicant has demonstrated “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”. An insightful discussion of these principles by Deputy Chief Justice Kearney is set out in those cases.
17. Subsequent decisions of the Supreme Court have followed these principles. The decision in Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138 (Kapi DCJ, Bredmeyer & Amet, JJ) referred to applicable case law up to that point and concluded that the discretionary power of the Court should be exercised only where:
(a) it is in the interest of justice;
(b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision.
18. In Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122 the following principles fundamental to judicial review were enunciated Kapi DCJ at p. 124:
The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error law, commits a breach of natural justice, reaches a decision which no reasonable tribunal court have reached or abuses its powers.
The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.
19. A clear statement of the difference between the appeal process and judicial review was provided by Supreme Court in Avei v Maino [2000] PNGLR 157 (Hinchliffe, Sheehan, Jalina JJ) where it was said at paragraphs 161–162:
It is common ground that there are fundamental differences between appeals and reviews. They are in fact different jurisdictions.
In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.
Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the … Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction of the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker… Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record,...
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