Every application for leave to apply for judicial review in Papua New Guinea is tested against a 1989 case about work permits for expatriate employees of a trading company.
Dr Rose Kekedo v Burns Philp (PNG) Ltd and others [1988] PGSC 19; [1988-89] PNGLR 122; SC373
Supreme Court, Waigani — Kapi DCJ, Amet and Cory JJ, 13 April 1989. Appeal from a grant of leave to apply for judicial review.
What happened
The Secretary for Labour and Employment, Dr Kekedo, cancelled work permits held by non-citizen employees of Burns Philp under the Employment of Non-citizens Act. Section 9(4) of that Act gave a person aggrieved by a cancellation a right of appeal to the Minister. Burns Philp lodged that appeal and, at the same time, applied to the National Court for leave to apply for judicial review of the Secretary’s decision. The National Court granted leave. The Secretary appealed.
What was argued
The Secretary argued that Parliament had provided a specific administrative remedy and that the Court should not intervene until it had been used. Burns Philp said the judicial review jurisdiction was available whenever an administrative decision was challenged and that the existence of a ministerial appeal did not oust it.
What the Court decided
1. The judicial review jurisdiction exists and may be invoked even where an alternative statutory remedy is available. But as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted. The State v Kapal [1987] PNGLR 417 followed.
2. In exercising the discretion, relevant considerations include the public policy behind the legislation; the socio-political circumstances and aspirations of the country; the practicalities of the two procedures, such as speed; and whether the matter depends on technical knowledge more readily available to the statutory review body.
3. The Act showed a legislative intention that the employment of non-citizens be overseen through administrative structures. Those remedies had to be exhausted first.
4. It would be an abuse of process for the National Court to grant leave while an alternative administrative appeal was being pursued.
Kapi DCJ, adopting R v Chief Constable of Merseyside; Ex parte Calveley, said that the purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting the Court’s own opinion. Judicial review is concerned not with the decision but with the decision-making process. Review is available where the decision-maker exceeds its powers, commits an error of law, breaches natural justice, reaches an unreasonable decision, or abuses its powers.
Amet J added that it was time the courts made “a more meaningful effort at developing an underlying law” responsive to Papua New Guinea’s circumstances “instead of slavishly following English and other overseas common law precedents”.
Did it make new law?
Kekedo followed the Supreme Court’s earlier decision in Kapal rather than affirming a National Court ruling; the National Court’s grant of leave was reversed. What it added was the list of discretionary considerations, expressed in terms of Papua New Guinea’s own conditions, and a formulation of the purpose and grounds of review that the National Court has applied ever since under Order 16 of its Rules.
Why it matters
At the leave stage, the applicant must show that any statutory appeal or review has been used and finished, or explain why the case is exceptional. Public servants, for example, are ordinarily expected to go to the Public Services Commission first.
Do not run both. Filing for judicial review while an administrative appeal is pending invites dismissal as an abuse.
Frame the grounds as process errors. A ground that says the decision was wrong on the merits is not a ground of review.
What it does not decide
Kekedo does not decide what counts as “exceptional circumstances”, which is worked out case by case, nor what remedy follows a successful review, a separate discretionary step addressed in Asiki v Zurenuoc (2005) SC797. It also predates the requirement, from Makeng v Timbers (2008) N3317, that no interim relief be granted before leave.
Recent cases applying it
- Life Outreach Ministries Association Inc v Gware [2026] PGSC 52; SC2896 — the Court restated from Kekedo both the purpose of judicial review and the grounds on which it is available.
- Kenneth v Momis [2022] PGSC 115; SC2314 — Kapi DCJ’s statement that review concerns the decision-making process, not the decision, applied to a Bougainville appointments dispute.
- Himata v Warkia [2022] PGSC 32; SC2226 — Kekedo relied on for the discretion over exhaustion of administrative remedies; the Court held the trial judge could not make substantive orders after refusing leave.
- Electoral Commission v Kaku [2021] PGSC 61; SC2137 — settled law from Kekedo that a review, not being an appeal, is limited to the decision-making process.
Sources
- Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (Kapi DCJ, Amet and Cory JJ, 13 April 1989)
- The State v Kapal [1987] PGSC 11; [1987] PNGLR 417
- National Court Rules 1983 — Order 16; Constitution — s 155(4)
- Life Outreach Ministries Association Inc v Gware [2026] PGSC 52; SC2896; Kenneth v Momis [2022] PGSC 115; SC2314; Himata v Warkia [2022] PGSC 32; SC2226; Electoral Commission v Kaku [2021] PGSC 61; SC2137
The Employment of Non-citizens Act (Chapter 374) considered in the judgment has since been replaced by the Employment of Non-Citizens Act 2007.
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.