Home | Databases | WorldLII | Search | Feedback

Supreme Court of Papua New

Guinea
You are here:  PacLII >> Databases >> Supreme Court of Papua New Guinea >> 2017 >> [2017] PGSC 61

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context |
Help

Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886 (4 August

2017)
SC1886

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2017

NORMAN DANIEL
Appellant

AIR NIUGINI LIMITED

First Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

SCM 4 of 2017
 VINCENT TONGIA
Appellant

AIR NIUGINI LIMITED

First Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

SCM 5 of 2017

DAVID SEKEN
Appellant

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

AIR NIUGINI LIMITED

First Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

SCM 8 of 2017

ELIJAH YANGI
Appellant

AIR NIUGINI LIMITED

First Respondent
 And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

SCM 9 of 2017

BORIS AGEDA
Appellant

AIR NIUGINI LIMITED

First Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

SCM 10 of 2017

BENJAMIN LOPA
Appellant

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) SC 1513

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
incorporated under the Companies Act. But the question is whether the appellant company
has any characteristics of a statutory corporation whose actions include the entering into
contract of employment, bring that contract of employment into the public domain so to be
subject or amendable to  judicial review  .

From my research in the short time that I have had, it seems to me that the appellant is not
completely divorced from any statutory connection. The appellant appears to have some
elements of a public company because its existence is derived from a statute. The statute that I
am referring to is the National Airline Commission Act Chapter No. 244. The National Airline
Commission Act establishes the National Airline of Papua New Guinea and the National
Airline Commission has certain regulatory powers and controls over the airline.
And some of those controls come from the National Executive Council to whom the National
Airline Commission is responsible to for the administration of the National Airline. Air
Niugini has no law, is and has always been the National Airline of Papua New Guinea and I
take judicial notice of it. There is also case law on this point that has settled this point that Air
Niugini is a public corporation because it derives its existence from the National Airline
Commission Act, in particular section 13 of that Act. And I make reference to the case of Air
Niugini trading as National Airline Commission v Salter [2001] PGSC 3; SC 679 at page 8 (9
November 2001). If one reads the judgment, the Supreme Court – a full court of the Supreme
Court which apparently included myself on the bench went on to say that the National Airline
Commission Act establishes the National Airline Commission and for all intents and purposes,
Air Niugini is a public authority and reference is made to section 2 of the Public Employment
of Non-Citizens Act that shows that Air Niugini was declared to be a public authority. The
purpose of that Act of just one instance where Air Niugini has been determined to be a public
authority, the purpose of that Act is available. So there is case law that clearly says that Air
Niugini is a public authority because it derives its existence from the National Airline
Commission Act.

The appellant has relied on the ruling of the Supreme Court in the case of Joel Luma v John
Kali where the Supreme Court sets out a number of situations in which the actions of an
authority or public authority for that matter becomes amenable to  judicial review  . And
one of those criteria says that if a statutory – if a body concerned is not established by statute
but it is incorporated under the Companies Act, its actions are not amenable to  judicial
review  . Now applying that principle to this case, obviously Air Niugini although a
privately incorporated company is established under a statute so that particular criteria –
obviously Air Niugini fails to meet this particular criteria.

So in the end I am not persuaded that an arguable case has been made out that the trial judge
erred in granting leave for  judicial review  and for the application to proceed to a full
hearing and for those issues that it considered to be raised and fully argued and determined
by the trial judge at the trial. There is another issue raised here concerning the exercise of the
public powers of the industrial registrar under the Industrial Associations Act. It is not
necessary for me to deal with that particular issue given that I have already formed a view as
to the public nature of the contract of employment entered into between the parties in this
case and that the performance of that contract is subject or amenable to  judicial review 
as determined by the trial judge. So for these brief reasons, I dismiss the application with
costs to the respondent. That is my short ruling counsel.”

Primary judgment

10. The matter returned before the primary Judge for hearing. The appellants contended,
in essence, that the first respondent had not complied with proper procedures in
dealing with allegations resulting in the suspension and dismissal of the appellants.
The first respondent opposed the application on the basis that the appellants were
employed under employment agreements for which  judicial review  was not
available.
11. On 7 February 2017 his Honour delivered the primary judgment. He observed that the
threshold issue before him was whether the decision of the first respondent to dismiss
each appellant was reviewable by way of  judicial review  . His Honour referred
to the decision of the Supreme Court in Luma v Kali [2014] SC1401 and said that the
 Court had identified three useful tests relevant to determining this threshold issue,
namely :
1. Whether the appointment and revocation process is governed by the
Constitution or an Act of Parliament – if not, the matter is one of private law
where the appropriate remedy is damages for breach of contract.
2. Whether the subject action or decision is of public importance and interest; and
3. Whether the employing agency is created under statute, or incorporated under
the Companies Act – if not under statute, the termination is considered of private
nature and the remedy of  judicial review  will not be available.
12. His Honour applied these tests, and found that:
1. The employment with the respondent was not governed by statute because there
was no statute making provision for the terms and conditions of employment
including termination. The appellants argued that the respondent was a public
authority because it is a State-owned public enterprise, however his Honour took
the view that
Although the State funds the first respondent, there was no evidence to
establish that the first respondent reported to the public accounts
committee or that its accounts were audited by the Auditor General;
There was no evidence as to how the State became involved in matters of
discipline in dismissal of employees of the first respondent;
The evidence favoured the first respondent’s argument that disciplinary
process and dismissal of employees was under contract
The first respondent is subject to the Kumul Consolidated Holdings
Authorisation Act 2002 (formerly the Independent Public Business
Corporation of Papua New Guinea Act 2002). There was no specific provision
in that legislation making provision for dismissal of the appellants to bring
the first respondent within the ambit of a public authority.
The employment of the appellants could not be equated with that of the
public officials like that in Luma v Kali [2014] SC1401.
2. The argument that the appellants as pilots served the interests of the State was
insufficient to make a claim of entitlement for  judicial review  .
3. The first respondent was a company incorporated under the Companies Act 1997,
managed by a board of directors appointed pursuant to its constitution. The
proceedings were distinguishable from such cases as National Airline Commission v
Joel [1992] N1055 where the plaintiffs sought review of the decision of the Department
of Labour. In this case the appellant’s employment was of a private nature and the
decision was not reviewable.
13. In those circumstances his Honour considered that it was unnecessary to consider the
grounds of review and submissions of the parties. His Honour ordered:
1. The proceedings for  judicial review  are dismissed
2. The interim injunction granted on 7 October 2016 is discharged forthwith
3. The plaintiffs shall pay the costs of the proceedings to be taxed if not agreed.

Notice of appeal

14. By notice of motion dated 2 March 2017 the appellants appealed the primary
judgment, relying on the six grounds. In summary, those grounds raised the following
two issues:
 1. The primary Judge erred in dismissing the proceedings on the ground that the
first respondent was a private authority rather than a public authority, when the
Supreme Court had found in numerous cases (including National Airline
Commission v Salter (2001) SC 679) that the first respondent was a “public
authority”, and the first respondent had been established as a Public Statutory
Corporation by section13 of the National Airline Commission Act 1973 (which
remains good law) (grounds 3.1.1-3.1.3)
2. The primary Judge overlooked a ruling by the Chief Justice on 9 December 2016
that the first respondent was a “public authority” and to that extent could be the
subject of  judicial review  (ground 3.1 particulars (a), (b) and (c))

Application for stay

15. Pending the hearing of the notice of appeal the appellants filed an application for a
stay of the orders of the primary Judge. This application came before the Chief Justice
who on 23 March 2017 granted the stay, on the basis that the appeals would be listed
in the Supreme Court fast track. His Honour observed :

“... it is clear to me that there is only one main point in contention between the parties in this
appeal, and that is whether the trial judge erred in holding that the appellants’ employment
contract with the respondent was not of a public employment contract nature but one of a
private employment contract that was not amenable to  judicial review  . And this is the
key issue raised in the grounds of appeal and the only pivotal issue in which the case was
decided by the trial judge after a trial on the substantive application for  judicial review 
.

I accept the respondent’s submissions that I did not decide this issue when I delivered my
ruling on an application for leave to appeal from the decision of the same trial judge to grant
leave for  judicial review  . I did in fact say in my ruling that this particular issue is an
arguable issue and it remains to be fully litigated and determined at the trial of the
substantive applications for  judicial review  . The arguments and suggestions by the
appellants’ counsel before the trial judge that I decided that issue in the context of that ruling
is not accurate, and therefore no error can be imputed to the trial judge in terms of
entertaining arguments on this threshold issue and determining the issue afresh and
determining the applications before him. So, there is no arguable issue in terms of this
particular issue being fully litigated by the trial judge.”

Submissions in the appeals

16. At the hearing of the appeals, the appellants did not press arguments relating to the
second issue we set out earlier in this judgment. They then submitted, in summary:
Section 13 of the National Airline Commission Act remains in operation. As a
result of this legislation the first respondent is clearly a public authority.
 The public interest in the employment of the appellants arises from the
operation of the Industrial Relations Act and the Industrial Organisations Act. The
appellants’ membership of the National Airline Pilots Union also brings sections
47 and 48 into play.
The decision of the Supreme Court in Salter, where the Court found that the first
respondent is a public authority, remains good law.
17. The first respondent submitted, in summary:
The primary Judge was correct to find that the dispute was of a private law
nature and therefore not properly the subject of  judicial review 
There were other grounds on which the application for  judicial review 
could have been dismissed, however it was unnecessary for the primary Judge to
rule on those grounds in the circumstances where the threshold had not been
met
Generally issues concerning employment involve private law even where the
employer is a statutory corporation. Employment is of a public nature if the
employee holds a statutory office, or appointment or removal is by a public
official or entity, or where there is a statutory procedure which must be followed.
The characterisation of the employer is not decisive. In any event the first
respondent is a company incorporated under the Companies Act 1997.
The reference in the amended notice of motion to section 13 of the National
Airline Commission Act dealing with the functions of the previous Commission is
irrelevant. The first respondent’s powers and functions are subject to the
Companies Act.
Although the appellants rely on the Public Employment (Non-citizens) Act 1978
which was the subject of the decision in Salter, that reliance is misplaced. Under
section 5 of that Act the Minister may declare a body to be a public authority –
there is no evidence of such declaration in respect of the first respondent. In any
event such declaration would not affect the appellants’ employment.
Further:
The National Court could and should have refused relief by way of
 judicial review  because the appellants had not exhausted their other
available remedies
The grounds of review advanced by the appellants are not applicable to
employment situations
Remedies in  judicial review  are discretionary
Reinstatement is rarely ordered because it is tantamount to specific
performance of an employment contract
There would be no utility in the remedy sought because the employment
contract could be terminated by two months notice (in relation to the 2015
contract) or four weeks notice (under the relevant award)

Preliminary issue – application for leave

18. First, and as a preliminary issue, we consider it important to make comment on the
grounds of appeal abandoned by the appellants referable to observations of his
Honour the Chief Justice in the course of interlocutory hearings in this matter.
19. To the extent that the appellants argued that the Chief Justice had on 9 December 2016
conclusively decided the substantive issue of whether the relevant decisions of the
 first respondent could be the subject of  judicial review  , this argument was
obviously misconceived from the outset.
20. Not only did the Chief Justice on 23 March 2017 make it clear that he had not so
conclusively decided this point on 9 December 2016, the nature of the proceedings
before the Chief Justice were such that his Honour could not have conclusively made
a decision of the type alleged by the appellants. The original application for leave to
apply for  judicial review  pursuant to Order 16 of the National Court Rules, and
the appeal heard by the Chief Justice against the primary Judge’s decision granting
leave to apply for  judicial review  , were both interlocutory matters. At that stage
of a proceeding, an applicant seeking leave to apply for  judicial review  must
satisfy the Court that it has raised an arguable case for the grant of remedies by way of
 judicial review  . The Court has no power at that point to make binding findings
as to substantive matters in the proceedings, including the ultimate issue whether
remedies by way of judicial review are available.
21. To the extent that the Chief Justice expressed a view on 9 December 2016 in relation to
whether the first respondent was a public authority whose decisions could be the
subject of  judicial review  , his Honour’s comments must be read in light of the
stage of the proceedings. Indeed as the Chief Justice had pointed out in an earlier case,
Wawoi Guavi Timber Company Ltd v Mondia [2007] SC1028:
3. The grant of leave to apply for  judicial review  under NCR O16 r 3 is a special
discretionary judgment in a civil matter within the Court’s jurisdiction. The error
to be demonstrated must relate to the nature of the discretion exercised by the trial
Court. In an application for leave to apply for  judicial review  under O16 r 3
of the National Court Rules, the applicant is required to demonstrate an arguable
case under any of the recognized grounds on which  judicial review  relief is
available: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. In an
application under O16 r 3, the Court is not determining the merits of any
application for  judicial review  . The Court simply forms an opinion on
whether there are arguable or triable issues to warrant a full hearing on
the merits, based on a quick perusal of the matters pleaded in the
Statement filed under O 16 r 3 and the material placed before the Court in
support of or in defence of the application for leave: R v Inland Revenue
Commissioners; Ex parte National Federation of Self-Employed and Small
Businesses Ltd [1981] 2 WLR 722 at 739, 749; Olasco Niugini v Kaputin [1986]
PNGLR 244 at 245; Ila Geno & Others v PNG [1993] PNGLR 22 at 24.

(emphasis added)

(see also Dupnai v Weke [2016] SC1525 at [24], Helifix Group of Companies Ltd v Papua New
Guinea Land Board [2012] SC1150at [9]).

22. Had the appellants not abandoned this issue at the hearing, we consider they would
certainly have been unsuccessful in this aspect of their claim.

Were the relevant decisions of the first respondent judicially reviewable?

23. This leads us then to the key question in these appeals –that is, were the decisions of
the first respondent subject to  judicial review  ? In answering this question it is
appropriate that we consider:
 Relevant principles of  judicial review  , in particular where an application is
made for  judicial review  of a decision of an entity to terminate
employment of staff; and
The application of these principles to this case, in particular whether the first
respondent is a “public body” and whether the decisions in question were open
to  judicial review  .
24. We will address each matter in turn.

1. Relevant principles

25. The principle that  judicial review  involves the exercise of the Court’s inherent
supervisory jurisdiction in respect of activities of public authorities in the field of
public law is,without question, the law in this country (see for example Temu,
Department of Works and The State v James Wani, SCA 96 of 1993 at 4; Nemambo v
Peipul [1994] SC475; SCR No 1 of 1990; Re Recount of Votes [1990] PNGLR 441;Ragi v
Maingu (1994) SC459;Wadau v PNG Harbours Board [1995] PNGLR 357; Ombudsman
Commission v Yama [2004] SC747; Telikom PNG Ltd v Independent Consumer and
Competition Commission [2008] SC906; Somare v Manek [2011] SC1118; Luma v Kali
(2014) SC1401; Timothy v Marus [2014] SC1403at [20]). Further, section 60 of the
Constitution emphasises the need to develop a system of administrative law, including
principles of natural justice, which are specifically designed for Papua New Guinea. It
is in this context that Rules of the Court established the nature and limitations of
 judicial review  , in particular the distinction between review and appeal
(Nemambo v Peipul [1994] SC475).
26. However individual circumstances may be such that the jurisdiction of the Court to
order  judicial review  is, at least initially, ambiguous.  Judicial review 
remedies are not available at large. As Sir Clive Lewis, writing extra-judicially,
recently explained:

“  Judicial review  is only available against a body exercising public functions in a

public law matter. In essence, two requirements need to be satisfied. First, the body under
challenge must be a public body or a body performing public functions. Secondly, the subject-
matter of the challenge must involve claims based on public law principles, not the
enforcement of private law rights...”

(emphasis added)

(Judicial Remedies in Public Law (5th edition) Sweet & Maxwell, 2015 page 9)

27. It is convenient to briefly expand on these requirements before more closely

examining the present facts.

What is a “public body”?

 28. Ascertaining whether a body is a public body or a body exercising a public function,
such that its decisions may be judicially reviewable, can be a difficult task. A useful
summary of factors relevant to such an exercise is set out in Halsbury’s Laws of
England Volume 61 “  Judicial Review  ” paragraph 604:

“There is no single test for determining whether a body will be amenable to  judicial
review  . The source of the body's power is a significant factor. If the source of the body's
power is statute or subordinate legislation it will usually be amenable to  judicial review 
. Decisions of bodies whose authority is derived solely from contract or from the consent of
the parties will usually not be amenable to  judicial review  . In between these extremes it
is helpful to look not only at the source of the power but also at the nature of the power. The
principal distinction that appears from the cases is between a domestic or private tribunal on
the one hand and a body of persons who are under some public duty or exercising some public
function on the other. If the duty is a public duty or the function a public function, then the
body in question will be subject to public law. 'Possibly the only essential elements' giving rise
to the exercise of the supervisory jurisdiction of the court are 'what can be described as a
public element, which can take many different forms, and the exclusion from the jurisdiction
of bodies whose sole source of power is a consensual submission to its jurisdiction'. A 'public
element' suggests a governmental or quasi-governmental element. A public element is not to
be equated with the interest of the public. A body which, although not established through the
exercise of governmental power, is integrated into a system of statutory or public regulation,
will be amenable to  judicial review  . Factors which indicate that the body is so
integrated include whether the body is supported indirectly by a periphery of statutory powers
and penalties. A governmental element may also be said to exist where, if the body did not
exist, the government would intervene to create a body to carry out the same functions. By
contrast, if the nature of the functions are not such as to generate any governmental interest,
the body will not be amenable to  judicial review  . If the source of power is contractual,
as in the case of private arbitration, then the arbitrator is not subject to  judicial review 
. Thus  judicial review  is not the appropriate procedure to challenge the decisions of
private or domestic tribunals or any body whose jurisdiction derives from contract or from
the consensual submission of the parties. Where a disciplinary body has no statutory powers,
its jurisdiction must be based on contract. Thus members of trade unions, business
associations and social clubs who have contractual rights based on contracts of membership,
should in appropriate cases seek the private law remedies of declaration and injunction and
not the remedy of  judicial review  .”

(footnotes omitted)

29. “Public bodies” for  judicial review  purposes in Papua New Guinea have
included:
the Commissioner of Police (State v Eluh [2016] SC1479);
the National Executive Council (State v Kapal [1987] PNGLR 417; Luma v Kali
[2014] SC1401, Lupari v Somare [2010] SC1071)
a State superannuation fund board (Ragi v Maingu [1994] SC459, although in that
case the actual decision was not reviewable)
Ministers of the Crown (Okuk v Fallscheer[1980] PNGLR 274, Bougainville Copper
Foundation v Minister for Trade & Industry [1988-89] PNGLR 110; Nelson v
Pruaitch (2004) N2536)
the Public Services Commission (Yafai v Kereme (2016) SC1513)
 the National Housing Corporation (Koi Toki v Moeka Morea Helai (2016) SC 1558)
the National Airline Commission (Air Niugini v Salter (2001) SC679)
the PNG Harbours Board (Sausau v Kumgal [2006] N3253)
a Provincial administrator (Waulas v Jigede (2009) N3781)
the Public Curator of Papua New Guinea (Owa v Popuna [2015] N6111)
the Registrar of Companies (In the Matter of The Association by Waghi Mek
Plantations Ltd [2001] N2051)
30. In contrast with entities and legal persons who are manifestly established by
legislation, it is clear that merely fulfilling a task traditionally associated with
government does not, of itself, mean that the entity is a “public body”. This is the case
even if that entity is owned by the State.
31. A textbook example of this principle can be seen in the Supreme Court decision of
Napitalai v PNG Ports Corporation Ltd [2010] SC1016. At first instance in that case the
trial Judge found that the respondent,PNG Ports Corporation Ltd, was a public body
because it was “a State-owned enterprise and the management and its affairs are still
regulated by statute and by the Executive arm of government”. The Supreme Court
held that the trial Judge was wrong in so finding. While PNG Ports Corporation Ltd
was a State-owned corporation:
sections 9, 9A and 10 Harbours Board Act upon which the trial judge appeared to
rely and which give powers to the Minister responsible and the National
Executive Council in respect of employees, officers and the General Manager,
concerned the Papua New Guinea Harbours Board and not PNG Ports
Corporation Ltd. The functions of the Harbours Board had been, in effect,
corporatized, with the State vacating the field. At material times in those
proceedings relevant functions had been performed by PNG Ports Corporation
Ltd.
PNG Ports Corporation Ltd performed only some of the functions of the Harbours
Board and the Harbours Board’s commercial activities – the governmental,
regulatory and advisory functions of the Harbours Board had been transferred
to the Department of Transport, the Independent Consumer and Competition
Commission and the National Maritime Safety Authority.
PNG Ports Corporation Ltd had been incorporated under the Companies Act 1997.
Its affairs and the appointment of its managers were controlled by its Board of
Directors under its constitution, not by the State.
Although the National Executive Council had the right to object to a proposed
nomination of a person to be a member of the Board of PNG Ports pursuant to s.
9A Independent Public Business Corporation of Papua New Guinea Act, the
National Executive Council had no right to appoint the senior management of
PNG Ports Corporations Ltd or to run its affairs
The Public Finances (Management) Act, the Salaries and Conditions Monitoring
Committee Act and the Public Service Conciliation and Arbitration Act did not
apply to PNG Ports as they did to the Harbours Board.
32. Accordingly the Supreme Court found that  judicial review  remedies were not
available in respect of the relevant decisions of PNG Ports Corporation Ltd.
33. In Supro v Aopi [1997] PNGLR 353 Woods J held that, though Telikom had community
service obligations and performed public functions, nonetheless Telikom was not a
public body for the purposes of determining the application seeking leave for
 judicial review  .
34. In Kombati v Singin [2004] PNGLR 476 Cannings J held that the Evangelical Lutheran
Church of Papua New Guinea, which was established as a corporation by the
 Evangelical Lutheran Church of Papua New Guinea Act 1992, was not a “public body”
for the purposes of an application for  judicial review  . His Honour noted :

“The Church Act provides, amongst other things, that Church property shall be managed by
the Church Council. It provides for the composition of the Council, which shall be chaired by
the Bishop of the Church. It provides generally for the quorum and procedures of the Council.
It requires the Council to appoint a public officer, who shall exercise all the powers and
functions of a public officer of a company incorporated under the Companies Act. There are
two provisions of the Church Act concerning other officers. Section 7 provides that the Council
"may appoint such officers as it thinks necessary for the proper administration of affairs
relating to Church property". Section 13 states that the constitution of the Church ‘shall
provide for the management, appointment of officers, duties and other such powers as from
time to time the Council or Synod shall adopt’”.

35. However, his Honour noted that the Church had even fewer features of a public or
governmental body than the bodies whose termination decisions were found beyond
the scope of  judicial review  . In particular, his Honour observed that, unlike the
Church, such entities :
Were subject to a greater degree of control by the legislative arm of government
through the more detailed legislation that provided for the operation of each
body;
Were subject to greater accountability and control by the executive arm of
government, for example by appointment and dismissal of the controlling board
of each body; and
Were subject to supervision and control by constitutional institutions such as the
Ombudsman Commission and the office of Auditor-General
36. More recently in Maiyau v Tupiri [2015] N5985 Nablu AJ (as her Honour then was)
found that the National Airports Corporation Ltd was not a “public body”, and that the
relevant decision of that entity was not open to  judicial review  .

The decision – termination of employment

37. The next question is whether the decision the subject of a claim for  judicial review 
is referable to public law principles, rather than the enforcement of private law
rights. So far as concerns decisions made by an employer (even a public body) in
relation to its employees, unless the employment relationship or key aspects thereof
are founded in statute, any decisions concerning that employment relationship invoke
private law issues and are not judicially reviewable.
38. As the primary Judge in this case observed, the leading case articulating relevant
principles is Luma v Kali where the Supreme Court said :

“54. Summarising the foregoing discussions, in a case where a terminated contract employee
seeks leave for  judicial review  , the question of whether his remedy lies in  judicial
review  or damages is a relevant consideration and threshold issue. However, each case
must be considered on its own merits. We consider that the Court must be guided by the
following basic principles; first, it must look at the process of appointment and revocation. If
it is governed by the Constitution or statute, it is open to  judicial review  . If not, it is a
matter of private law where the appropriate remedy is damages for breach of contract.
55. Secondly, the subject action or decision must be of public importance and interest. It must
be a subject of an exercise of power. The third consideration is that if the employing agency is
not created under a statute but is incorporated under the Companies Act, the termination is of
a private law nature and the remedy of  judicial review  is not available to the aggrieved
party: Ron Napitalai v. Caspar Wallace (2010) SC1016.”

(emphasis added)

39. One the one hand, there have been a number of examples in the Courts where
appointment and revocation of employment of employees was regulated by statute,
such that  judicial review  was available.
40. In State v Eluh [2016] SC 1479 the respondent, Mr Eluh, was employed under a
contract of employment. The Supreme Court found however that the decision to
dismiss him was susceptible to  judicial review  in circumstances where :
He was employed by the State through the Police Force, which is established by
the Constitution; and
He held the rank of Assistant Commissioner of Police and assumed the Office of
ACP (Crimes) within the Police Force. The rank and office he held and functions
he performed were directly derived from the Constitution and the Police Act.
41. In Luma v Kali [2014] SC1401 and O'Neil v Klapat [2014] SC1385 the Supreme Court
accepted that  judicial review  was available in circumstances involving the
employment of a Departmental Head. In Luma v Kali the Court noted the emphasis
placed by the respondents on the contract of employment to which the appellant was
a party, arguing that it displaced his right to seek  judicial review  against the
State. The Court found however that the contract of employment could not be
separated from the appointment and revocation process under the Constitution and
the relevant Act of Parliament, observing :

“45. The significance of this is that the Constitution and the PSM Act provides a measure of
protection to the Departmental Head from being terminated at will by the Minister or the
NEC. Where the Minister or the NEC decides to terminate the Departmental Head, they must
be held accountable for their decision and the only way is by way of  judicial review  .

46. In the case of appointment, suspension and revocation of appointment, the contract of
employment supplements the procedure in s. 193(1A), (1C) & (1D) of the Constitution and s.
31A, C & D of the PSM Act by setting out details of the procedure for appointment, suspension
and revocation of appointment respectively....”

(see also O’Neil v Klapat at [35])

42. In Sausau v Kumgal [2006] N3253 the applicant was employed by the PNG Harbours
Board in 1992 as its Port Security Manager pursuant to a written contract of
employment. His employment was terminated in 1996 following a disciplinary charge
brought against him. The Court held that he was an officer of the service appointed by
the Harbours Board under its wide powers of administration of the service of the
Board (s.9(1)PNG Harbours Board Act) and to that extent he was a public employee for
all intents and purposes. It followed that  judicial review  was available to him in
respect of the decision to terminate his employment.
 43. Similarly in Nelson v Pruaitch (2004) N2536 the Managing Director of the National
Forest Authority entered into a contract of employment under section 3 of the Forestry
Act. Clause 27 of the contract provided:

"27. DISCIPLINARY PROCEDURES

27.Serious disciplinary matters pursuant to Section 18 hereunder, allegedly involving the

Managing Director shall be resolved through the following procedure:-

Where the Managing Director is alleged to have committed a serious offence under Section 18,
the Minister shall suspend the Managing Director on full pay, and the Minister shall formally
charge the Managing Director in writing with the offence allegedly committed and enable the
Managing Director to reply to such charges prior to submitting a report to the National
Executive Council.

(a) The Managing Director shall formally respond to the charge in writing to the Minister
within 7 days of the charge being laid and the Minister shall consult the Minister for Public
Services prior to advising the National Executive Council.

(b) The Council shall upon receiving a report and any other relevant evidence, shall determine
whether or not the Contract should be terminated.

(c) The decision of the National Executive Council shall be final, and the terminated Managing
Director may seek redress through the Papua New Guinea Courts of Law in the event that
he/she considers the termination to have been made unfairly."

44. The trial judge observed :

“In my view, when a statute or Contract of Employment entered into under a statute,
prescribes disciplinary procedures designed to ensure fair play or fairness or to put it in
another term, to ensure compliance with principles of natural justice, then any exercise of
disciplinary power, as provided under the Contract of Employment, is a proper matter for
 judicial review  . Such a Contract of Employment is a public Contract of
Employment for service. I use the term "public Contract of Employment" to connote the
exercise of statutory power on the part of an authority of the State, to enter into a contract of
employment for service with a person, for that person to discharge public functions prescribed
under Statute. Upon his engagement under the Contract, he becomes a public official.”

(emphasis added)

45. On the other hand, however, there are manyexamples of findings by the Courts to the
effect that employment arrangements and termination thereof involved a private law
rights.
46. In Ragi v Maingu [1994] SC 459 the respondent was a lawyer employed in April 1985 as
Corporate Secretary to the former Public Officers Superannuation Board. In 1992
there was a restructuring of the Board, the position of Corporate Secretary ceased to
exist, and the respondent assumed the position of acting Board Secretary. He was
subsequently dismissed. The Supreme Court found that the termination of the
respondent’s employment involved private law matters rather than public law:
“The respondent here claimed his wrongful dismissal from employment was a matter of public
law. In fact it is merely a matter of a private law nature, the right of an employer to
control and deal with his own employees. There is no statutory duty here, there is no
statutory protection which makes this a matter of public law. This is purely a matter
of the relationship between a master and servant. Whilst the master here is a Board
created by statute the employment of the staff of the Board is not a matter of statute, there are
no provisions in the legislation setting up the Board which give terms and conditions of
employment or other matters which have been raised in this case. Merely stating in the Act
that the Board may employ staff does not by itself make that employment a matter of public
law.

In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of  judicial review 
was clearly the exercise by a government official of a power under legislation namely the
cancellation of a work permit.

But here before us the respondent was merely challenging his termination, yet neither this
court nor the National Court have been referred to any legislation which shows that there is
anything of a public nature about this, this is matter of private law which should be the
subject of the usual writ of summons.”

(emphasis added)

47. In Wedau v Daniel [1995] PNGLR 357 the employment of the appellant, a legal officer
employed by the Papua New Guinea Harbours Board, was terminated for disciplinary
reasons. In the National Court the appellant sought  judicial review  of the
decision to terminate him, but was unsuccessful. He appealed to the Supreme Court.
48. The Supreme Court noted that the appellant was charged under Part X of
Determination No.1/1970 (Terms and Conditions of Employment) made pursuant to the
Papua New Guinea Harbours Board Ordinance 1963. Their Honours noted further that
the appellant’s position as “legal officer” was neither designated nor created by the
clause 2 or the Second Schedule of the Ordinance, and continued at 359-360:

“He was employed for a period and accepted salary on the strength of his appointment and
did (presumably) some work for and at the direction of, the officers of the Harbours Board.
The indicia of an employer/employee relationship are clearly made out. He is not a person on
a superior footing, as it were, as those officers designated by the Second Schedule. He has not
been appointed to a public office, nor statutory authority or State instrumentality as was
Robinson, the Deputy General Manager of Air Niugini (see Robinson v. The National Airline
Commission [1983] PNGLR 476).

Rather he is an employee subject to the usual incidents of the employer/employee relationship

but varied in the particular circumstances, here, in that the Board has afforded its employee
the rights accorded an officer under Part X of the 1970 Determination.”

49. At 362 the Court concluded:

“There is nothing in the circumstances of this case, to give it any sufficient flavour of a
“public” nature to justify this Court’s interference. A lawyer especially, may make his own
arrangements for employment and the fact of his employment does not place his position in
the public domain, to such an extent for instance, that a member of the public could demand
an account of the appellant’s work at the Harbours Board. That is the sole prerogative of the
employer, the Board and the Court has no business to enquire into the private arrangements
made between these two parties. This highlights the distinction between public law and
private law rights.”

50. Accordingly the Supreme Court upheld the refusal of the National Court to grant leave
for  judicial review  , and dismissed the appeal.

2. Application of these principles to this case

51. In our view it is clear that the primary Judge was correct in concluding that
 judicial review  was not available to the appellants in relation to the decisions of
the first respondent to terminate their employment. The first respondent is not a
public body, and there is no public importance associated with the decisions in the
sense used by the Supreme Court in Luma v Kali. Further, the employment
relationships between the first respondent and the appellants are sourced in private
law, not public law.
52. We have formed these views for the following reasons.

First respondent is not a public body

Salter

53. The appellants relied heavily on the decision of the Supreme Court in Air Niugini v
Salter [2001] SC679 as supporting their claims that the first respondent is a public
body. On examination of Salter however, it quickly becomes apparent that Salter does
not assist the appellants.
54. In Salter two employees of Air Niugini under contracts of service, both of whom were
non-citizens, claimed entitlement to long service leave following the termination of
their employment. Because their contracts did not make specific provision for long
service leave, their claims were pursuant to section 63 of the Employment Act or
alternatively, pursuant to Clause 7 of the Port Moresby General Employment (Common
Rule Award 1975) made under Part VI of SS 46 - 48) of the Industrial Relations Act.
55. Of particular importance in the Court’s analysis of the employees’ claims was the
operation of the Public Employment (Non-citizens) Act 1978. The recital to that Act
referred to it:

Being an Act to regulate the employment by the State of non-citizens in the Public Service,
Parliamentary Service, Police Force, Teaching Service and other bodies and in overseas
missions, and for related purposes.

56. Sections 3 and 4 of the Public Employment (Non-citizens) Act 1978 stated that the
relevant parts of the Act applied to non-citizens employed or to be employed in a
“public authority”, defined in turn by section 2 as follows :

“public authority” means–

(a) the Public Service; and

(b) the Parliamentary Service established under Section 2 of the Parliamentary Service Act
1997; and

(c) the Police Force; and

(d) the Teaching Service in so far as it relates to auxiliary members or associate auxiliary
members employed in educational institutions, as defined in the Teaching Service (Auxiliary
Members) Act 1973, run by the State; and

(e) any other body declared by the Minister under Section 4 to be a public authority for the
purposes of this Act;

57. Section 5 of the Act provided:

MINISTER MAY DECLARE PUBLIC AUTHORITIES.

The Minister may, by notice in the National Gazette, declare a body, whether corporate or
unincorporate and whether established by statute or otherwise, to be a public authority for
the purposes of this Act but shall not declare a body to be a public authority where a written
agreement, whether made before or after the commencement date, between the State and the
body, specifically provides that this Act shall not apply to the body.

58. Further, section 9 of the Act provided :

NON-CITIZENS NOT TO HAVE RECOURSE TO ARBITRATION PROCEDURES

(1) A non-citizen to whom this Part applies shall, in respect of his salary or any other term or
condition of his employment, have no access to conciliation or arbitration procedure under
any law.

(2) Subsection (1) does not derogate from any remedies available to the non-citizen under the
common law in respect of his salary or any other term or condition of his employment.

59. Relevantly the Supreme Court in Salter found:

sections 5, 6, 8 and 9 of the Act determined the outcome of the appeals in the
case.
The National Airline Commission Act established the National Airline
Commission “which is responsible for the management of the National Airline,
Air Niugini”
Various provisions of the National Airline Commission Act (in particular sections
24 and 38) dealt with management and governance issues in Air Niugini
including terms of employment of employees and the legal capacity of the first
respondent
Air Niugini had been declared a “public authority” within the meaning of section
2 of the Public Employment of Non-Citizens Act following publication on 4
November 1982 of a notice in the National Gazette No. G73
 On 21 June 1987, pursuant to the Organic Law on the Public Service Commission,
the Chairman of the Public Services Commission, by notice in the National
Gazette, No. G43 published 7 July 1983, delegated his power under sections 5, 6,
and 9(2) of the Public Employment of Non-Citizens Act 1978 to the National Airline
Commission, which was by then a public authority
The National Airline Commission Act and the Public Employment of Non-Citizens
Act provided a complete employment code in respect to terms and conditions of
employment of non-citizens by Air Niugini.
The appellants, who were non-citizens, were not entitled to long service leave on
the termination of their employment as it was not provided for in their contracts.
Because of the operation of the Public Employment of Non-Citizens Act 1978 the
appellants could not avail themselves of the provisions of the Employment Act,
60. That the decision in Salter is of little to no relevance to the circumstances of the
appeals currently before this Court is apparent from the following points.
61. First, the proceedings in Salter did not involve issues of  judicial review  . The
Court in Salter was concerned with the application of the provisions of the Public
Employment of Non-Citizens Act 1978 to the contracts of employment of the pilots in
question. Although by no means conclusive, the headnote of Salter is instructive –
namely:

MASTER AND SERVANT – Written Employment Contract – Between Statutory Corporation,

(a “public authority”) and Non-Citizen – Accrued long service leave entitlements not term of
written Contract – Application of Statute – Employment Act (Ch. No. 373); Employment of
Non-Citizens Act (Ch. No. 374); Public Employment of Non-Citizens Act (Ch. No. 342); National
Airline Commission Act (Ch. No. 244); Industrial Relations (Ch. No. 174); Port Moresby
Common Rule 1975

62. The case required consideration of principles of employment law, influenced by the
particular legislation applicable to non-citizen employees of entities specifically
declared by the Minister to be “public authorities” for the purposes of that legislation.
None of the principles of  judicial review  which we have set out in detail in this
judgment were examined or applied by the Supreme Court in Salter, because the
Court was not required to do so.
63. Second, the declaration by the Minister of “Air Niugini” or the National Airline
Commission as a “public authority” was for the purposes of the Public Employment of
Non-Citizens Act. No reason was advanced to us during the hearing to explain why a
body declared as a “public authority” for the purposes of that Act is the same as a
public body in the context of  judicial review  . Indeed, section 5 of the Public
Employment of Non-Citizens Act empowers the Minister to declare “a body, whether
corporate or unincorporate and whether established by statute or otherwise, to be a
public authority for the purposes of this Act.” This power given to the Minister is
broad, and not limited by considerations of public law to which we have adverted. We
are not persuaded that the mere declaration by the Minister of an entity as a “public
authority” for the purposes of the Public Employment of Non-Citizens Act requires the
Court to find that  judicial review  is available in respect of decisions of that
entity.
64. Third, it is clear to us from material before the Court that the entity declared on 4
November 1982 by the Minister to be a “public authority” within the meaning of
section 2 of the Public Employment of Non-Citizens Act, is not the first respondent.
 There is no evidence that the first respondent has at any time been the subject of a
declaration as a “public authority” by the Minister pursuant to section 5 of the Public
Employment of Non-Citizens Act 1978.The first respondent is a company, incorporated
under the Companies Act 1997, and perforce cannot be the National Airline
Commission established by the National Airline Commission Act 1973.
65. We note that, at some point, the National Airline Commission traded as “Air Niugini”
(see, for example, National Airline Commission trading as Air Niugini v Lysenko [1990]
PNGLR 226). If the appellants seek to persuade this Court that the mere adoption by
the first respondent of the name “Air Niugini” means that the first respondent can, in
the context of  judicial review  remedies, be equated with the National Airline
Commission, such a submission would be naïve in the extreme. The first respondent is
not the “National Airline Commission”, which was the entity the subject of orders in
Salter.
66. In our view, Salter is of no assistance to the appellants in their challenge to the
decision of the primary Judge, and we certainly do not consider ourselves in any wise
bound by it to find in favour of the appellants in this current appeal.

Nature of the first respondent

67. The National Airline Commission Act 1973 made provision for the establishment of a
national airline (s. 13 (1)(a)), and in sections 13 and 14 of that Act vested the National
Airline Commission with functions and powers to carry out the business of operating
that airline.
68. However, before the primary Judge was the uncontroverted evidence of Mr Benneth
Kome, the company secretary of the first respondent. In his affidavit sworn 19 October
2016 Mr Kome deposed that the first respondent is a corporation registered on 7
August 1996 in accordance with the provisions of the Companies Act 1997. Further, the
first respondent has its own constitution which makes provision for such matters as
corporate governance and structure, shareholdings, legal capacity, record keeping and
capital maintenance.
69. The Company Extract for Air Niugini Limited as at 14 October 2016 (annexed to Mr
Kome’s affidavit) lists Kumul Consolidated Holdings as the only shareholder. We note
that Kumul Consolidated Holdings was formed by the Independent Public Business
Corporation of Papua New Guinea (Kumul Consolidated Holdings) (Amendment) Act
2015 to act as trustee owner for state owned assets and enterprises.
70. In light of this material we draw the following conclusions.
71. Although no evidence to this effect was drawn to our attention, it is apparent that the
first respondent is a corporatised entity, being the successor to the National Airline
Commission. Certainly the first respondent is not the statutory body created by the
National Airline Commission Act 1973. Further, there is no evidence before us that the
provisions of that Act so far as concerns such matters as employment (including
section 24 of the Act) apply to the first respondent. As his Honour observed in the
primary judgment, there is also no evidence that the first respondent is required to
report to the public accounts committee, that its finances are audited by the Auditor
General, or that the State becomes in any way involved in employment (or
termination of employment) of staff of the first respondent.
72. We also note that, contrary to the submissions of the appellants, we have no evidence
before us of any substance relating to the continuing existence of the National Airline
Commission So far as we understand the situation, the National Airline Commission
no longer has an active presence or operation. The presence in the statute books of the
 National Airline Commission Act 1973 appears to be of historical relevance only –
certainly the appellants did not inform us of any activity (whether corporate, financial
or otherwise) of the entity created by that statute.
73. It cannot be said from the constituent documents of the first respondent that it
performs any function on behalf of the State. We understand that the first respondent
conducts the business of operating an airline, however its constitution does not
restrict its activities to such business. At most, so long as the majority shareholder of
the first respondent is Kumul Consolidated Holdings it is obliged by its constitution to
perform its functions and direct its policies to the greatest advantage of the people of
Papua New Guinea (Schedule 4). This obligation is clearly transitory and dependent on
the pattern of shareholding in the first respondent.
74. Further, while the operation of airlines in Papua New Guinea is clearly subject to
regulatory controlsof particular agencies (in particular the Civil Aviation Safety
Authority), this is a function of international aviation safety standards operating in
this country. Regulation of an industry does not, of itself, result in the regulated bodies
becoming “public bodies” (otherwise, for example, all companies in Papua New
Guinea would be deemed “public bodies” under the Companies Act 1997).
75. Rather, the facts of this case are analogous to those in Napitalai v PNG Ports
Corporation Ltd [2010] SC1016 to which we referred in detail earlier in this judgment.
Like PNG Ports Corporation Ltd, the subject of consideration by this Court in Napitalai
v PNG Ports Corporation Ltd, the first respondent is a corporation with its own powers
and functions, although in certain respects the successor to a government entity. The
source of its powers is not the National Airline Commission Act. Like PNG Ports
Corporation Ltd, the first respondent is owned by a statutory entity, however as the
Court made plain in Napitalai v PNG Ports Corporation Ltd this does not result in the
first respondent being a public body. The first respondent operates an airline,
however this in itself cannot be termed a “public function” or “public duty”.
76. The first respondent is not a creature of statute, akin to the examples we gave earlier
in this judgment. It does not perform government functions. It is not a public body in
the sense described by this Court in Luma v Kali.

Public importance

77. The appellants submitted that there was an issue of public importance to their claim
for remedies by way of  judicial review  , because they were subject to the
Industrial Relations Act 1962 and the Industrial Organizations Act 1962. We have some
difficulty following this argument. To the extent that we do follow it, we consider this
aspect of the appellants’ claims to be misconceived.
78. The Industrial Relations Act 1962 was enacted for the “better development of
industrial relations and the prevention and settlement of disputes, to be incorporated
and read as one with the Industrial Organizations Act 1962.”Section 2 of that Act notes
that it “applies to and in relation to the State and an authority constituted by or under
a law.’ It also defines employer as;

a person, firm or association employing one or more employees, whether on behalf of himself
or itself or any other person, and includes –

(a) the State; and

(b) an authority established by or under a law; and
(c) a managing director or manager of a company, firm or association; and
 (d) a manager for an employer; and
(e) a club;

79. The Act does not appear to differentiate between public and private employers in its
operation.
80. The Industrial Organizations Act 1962 was enacted to “provide for the registration and
control of industrial organizations, and for related purposes.” Section 2 also notes that
the Act applies to and in relation to the State and an authority constituted by or under
law, subject to the exception of when the Public Services Conciliation and Arbitration
Act 1969 or the Teaching Service Conciliation and Arbitration Act 1971, or any other
law relating to the settlement of trade or industrial disputes, applies.
81. Again, that Act does not appear to differentiate between public and private employers
in its operation. For example, section 33 states that a person is qualified for admission
as a member of an industrial organization if he or she is:
(a) engaged or usually engaged in an industry or occupation within the country; or
(b) qualified to be engaged in an industry or occupation within the country and
wishes to be engaged in it,

and is–

(c) a resident of the country; and

(d) not otherwise disqualified.

82. The industrial legislation on which the appellants rely is of general application to
workers in the community. In our view the appellants have not demonstrated any
public interest relevant to them in seeking  judicial review  , arising from the non-
specific application of broad-ranging industrial legislation.

Employment relationship sourced in private law

83. We note in passing that there are numerous cases in both this Court and the National
Court where the first respondent –and the National Airline Commission – have been
involved in litigation concerning employees. These cases include Air Niugini Ltd v
Unagi [2007] SC901; Robinson v National Airline Commission [1983] PNGLR 476,
National Airline Commission v Joel [1992] PNGLR 132 and National Airline Commission
trading as Air Niugini v Lysenko [1990] PNGLR 226.
84. In our view, it is somewhat telling to note that these cases,with the exception ofJoel, all
concerned private law claims, including damages, rather than claims for  judicial
review. Judicial review  was relevant in Joel only to the extent that the National
Airline Commission sought  judicial review  remedies against the Secretary of
Labour for reinstating employees (interestingly the National Court in that case found
that the Secretary of Labour had acted as a private arbitrator and not in his official
office, which had no regulatory power over the employees in any event).
85. Indeed even in Air Niugini v Salter [2001] SC679, upon which the appellants heavily
relied in submissions, former employees of the National Airline Commission sought
damages upon termination rather than  judicial review  .
86. Examination of evidence before the primary Judge in this case indicates that the
appellants Joseph Kumasi, Boris Ageda, Vincent Tongia, Benjamin Lopa and Norman
Daniel were employed under contracts of employment with the first respondent. A
 copy of each contract, entitled “Air Niugini Pilots Contract 2015” is annexed to the
affidavits of Captain SamiuTaufa in each matter, filed 27 October 2016.
87. The appellants Elijah Yuangi, David Seken and Abel Kanego were employed pursuant
to an industrial award, the National Airline Employees Association of PNG Members
Consolidated Agreement 2015/2018 (Award No 09 of 2015). A copy of each agreement
is annexed to the affidavits of Captain SamiuTaufa in each matter, filed 27 October
2016.
88. These contracts and industrial instruments comprehensively set out the terms of
employment of the appellants. The contracts of appellants Joseph Kumasi, Boris
Ageda, Vincent Tongia, Benjamin Lopa and Norman Daniel are 43 pages in length,
dealing with the following issues:

• Clause 1.0 contains definitions

• Clauses 2.1 - 2.9 relate to ‘Contract objective and application’
• Clauses 3.1 - 3.3 relate to ‘Health requirements and immigration’
• Clauses 4.1 – 4.10 relate to ‘Remuneration’
• Clause 5.1 relates to ‘Probation’
• Clauses 6.1 – 6.8 relate to ‘Promotion, seniority and by-pass’
• Clauses 7.1 – 7.2 relate to ‘Education and school travel’
• Clauses 8.1 – 8.5 relate to ‘Employees – Accommodation’
• Clauses 9.1 – 8.3 relate to ‘Transport’

Clause 10.0 provides the ‘Alcohol and Drug Policy While on Company Duty Travel’

• Clauses 11.1– 11.12 relate to ‘Settling in and out’

• Clauses 12.1 – 12.4 relate to ‘Joining and repatriation’
• Clause 13.0 relates to ‘Medical insurance’
• Clause 14.0 relates to ‘Employee contact details’
• Clauses 15.1 – 15.5 relate to ‘Recreational leave’
• Clause 16.0 relates to ‘Maternity leave’
• Clauses 17.1 -12.3 relate to ‘Sick leave’
• Clause 18.1 relates to ‘Leave of absence or special leave’
• Clauses 19.1 – 19.3 relate to ‘Compassionate leave’
• Clauses 20.1 – 20.4 relate to ‘Travel and cargo privileges’
• Clauses 21.1 – 21.3 relate to ‘Termination of employment’
• Clauses 22.1 – 22.3 relate to ‘Training bonds’
• Clauses 23.1 – 23.2 relate to ‘Transfers and postings’
• Clauses 24.1 – 24.3 relate to ‘Employment files’
• Clauses 25.1-25.2 relate to ‘Pilot Licence renewals’
• Clause 26.1 relates to ‘Loss of Licence’
• Clause 27.0 relates to ‘Workers compensation’
• Clause 28.0 relates to ‘Insurance cover’
• Clause 29.1 relates to ‘Uniforms’
• Clause 30.1 relates to ‘Internment’
• Clause 31.0 relates to ‘Jurisdiction’
• Clause 32.1 – 32.3 relates to ‘Immigration’
• Clause 33. 1 relates to ‘Notices’
• Clause 34.1 relates to ‘Flight Administration Manual’
• Clauses 35.1 – 35.2 relates to ‘Legal Liability’
• Clauses 36.1 – 36.3 relates to ‘Allowances’

Clauses 37.1 – 37.3 relate to ‘Payment of expense claims and other payments’
• Clause 39.0 relates to ‘Personal will and probate’
• Clause 40.1 – 40. 5 relates to ‘Retirement payment for retirees’
• Clause 41.0 relates to ‘Retirement benefits’
• Clause 42.0 relates to ‘Contract variation’
• Appendix A provides the annual salary levels
• Appendix B provides the rules for salary scale entry
• Appendix C provides the overtime rates

89. Similarlycomprehensive terms of employment were in evidence before his Honour in

relation to appellants Elijah Yuangi, David Seken and Abel Kanego, including
remuneration, hours of work, leave provisions and termination of employment.
90. The first respondent is a company incorporated under the Companies Act, and has
legal capacity to enter employment agreements of the type currently before the Court.
There is no evidence before the Court that the employment relationship, or key
aspects thereof, between the first respondent and the appellants wasfounded in
statute, as was the case in such cases as State v Eluh, Luma v Kali, O'Neil v Klapat,
Sausau v Kumgal and Nelson v Pruaitch.
91. We conclude that the decisions of the first respondent in these appeals invoked
private law issues. They are not judicially reviewable. His Honour the primary Judge
was correct in so finding.

Conclusion

92. In our view the primary Judge identified and applied the correct legal principles in
determining the appellants’ claims before him. We can identify no flaw in his
Honour’s reasoning, and agree with his conclusion dismissing the proceedings in the
National Court.
93. Finally, no reasons were put to us to support any finding other than that costs should
follow the event.

THE COURT ORDERS THAT:

95. The appeals are dismissed with costs.

________________________________________________________________
Murray & Associates: Lawyers for the Appellants
Ashurst Lawyers: Lawyers for the First Respondent
Lawyers for the Second Respondent: Nil

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback

URL: http://www.paclii.org/pg/cases/PGSC/2017/61.html