Winning a judicial review does not always mean getting your job back. The Chief Secretary to Government learned that in 2008, and a five-judge Supreme Court confirmed it in 2010.
Isaac Lupari v Sir Michael Somare, Rigo Lua and The State [2010] PGSC 21; SC1071
Supreme Court, Waigani — Salika DCJ, Kandakasi, Batari, Gabi and Hartshorn JJ, 10 June 2010. SCM 14 of 2008.
What happened
In April 2008 the National Executive Council advised the Head of State to revoke Mr Lupari’s appointment as Secretary of the Department of Prime Minister and NEC and Chief Secretary to Government. He applied for judicial review under Order 16 of the National Court Rules, arguing that the mandatory procedure in section 193 of the Constitution and section 31C of the Public Services (Management) Act 1995 had not been followed. He asked for certiorari and for reinstatement to a post that was still vacant.
What the National Court held
In Lupari v Somare [2008] PGNC 121; N3476, Injia DCJ found the NEC had failed to follow the prescribed procedure and granted certiorari, but refused reinstatement. His Honour treated reinstatement as a mandatory injunction, equivalent to specific performance of a contract for personal services, which equity grants only when it is just and administratively convenient. He set out five principles for deciding whether to reinstate a dismissed public official: the nature of the office and the relationship between the parties; whether that relationship has broken down; the conduct of the applicant, who must come with clean hands; the public interest in the good administration of the office, which is paramount; and the fact that the post is vacant, which is relevant but not important. He left Mr Lupari free to pursue damages. Mr Lupari appealed.
What was argued
The appellant said the judge had wrongly admitted belated affidavit evidence about events after the dismissal, had invented five new principles that fettered the discretion and departed from Asiki v Zurenuoc, and had failed to decide all his grounds of review. The State said remedy had always been discretionary.
What the Court decided
1. Judicial review is a two-stage process: the lawfulness of the decision, then the remedy. Belated evidence is irrelevant to the first stage but may be considered in determining the remedy (Gabi J at [33]; Hartshorn J at [65]).
2. The National Court, having upheld a review, has a discretion whether to grant any remedy and, if so, which (Hartshorn J at [55]).
3. The trial judge’s five principles are principles of common law and equity already part of the law, relating to remedy in unlawful dismissal cases in both public and private law. They do not restrict the discretion (Gabi J at [39]; Hartshorn J at [73]).
4. The Court must look at all the circumstances, including whether the employer and employee relationship should continue (Hartshorn J at [71]).
5. A judge who upholds a review on one ground need not decide the others. Appeal dismissed with costs (Salika DCJ, Batari, Gabi and Hartshorn JJ; Kandakasi J’s reasons not published).
Did it make new law?
The Court affirmed the National Court and, sitting as five judges, gave Injia DCJ’s principles the authority of the full bench. It did not overrule Asiki, which also treated reinstatement as discretionary, but it settled that post-decision events and the state of the working relationship are legitimate considerations at the remedy stage. The principles apply beyond departmental heads to any dismissed public official.
Why it matters
Plead damages in the alternative. A review that succeeds on process may still end without reinstatement, and Order 16 rule 7 allows damages to be claimed in the same proceeding.
Evidence of the aftermath is admissible on remedy. Both sides should be ready to prove what has happened since the decision: who holds the office, whether the relationship survives, how the applicant has conducted himself.
Senior contract officers are the hardest case for reinstatement, because the relationship with the appointing authority is personal and damages are easily calculated.
In Rimbunan Hijau v Enei (2017) SC1605 the Court described Lupari as having settled that a party cannot raise on appeal an issue not first raised below. That proposition comes from Kandakasi J’s reasons, which are marked “not yet available” in the published text of SC1071, so readers should rely on Papua Club v Nusaum Holdings for that rule.
What it does not decide
Lupari does not say reinstatement is never available. Where the relationship has not broken down, the office is a career post rather than a personal contract, and damages would be hard to assess, later courts have reinstated. Nor does it decide the measure of damages for a public officer unlawfully removed, which was left for separate proceedings.
Recent cases applying it
- Monouluk v Pala [2020] PGSC 119; SC2031 — a magistrate’s dismissal was quashed; applying Lupari and Injia DCJ’s reasoning in N3476, the Court held certiorari was not barred by alleged unclean hands but refused reinstatement.
- Pokanis v Sirereba [2022] PGSC 110; SC2307 — reinstatement of Correctional Service officers upheld; the trial judge had distinguished Lupari because the officers were not on personal contracts and could be deployed anywhere.
- Kiiark v Luio [2020] PGSC 54; SC1964 — Lupari cited among the authorities adopting the Curtain Bros test for appellate review of a discretion.
- Pitu v Markham [2022] PGSC 59; SC2261 — Lupari relied on in an appeal against an assessment of damages.
Sources
- Lupari v Somare [2010] PGSC 21; SC1071 (Salika DCJ, Kandakasi, Batari, Gabi and Hartshorn JJ, 10 June 2010)
- Lupari v Somare [2008] PGNC 121; N3476 (Injia DCJ, 22 September 2008)
- Constitution — ss 155(4), 193; Public Services (Management) Act 1995 — s 31C; National Court Rules 1983 — Order 16
- Asiki v Zurenuoc [2005] PGSC 27; SC797; Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605
- Monouluk v Pala [2020] PGSC 119; SC2031; Pokanis v Sirereba [2022] PGSC 110; SC2307; Kiiark v Luio [2020] PGSC 54; SC1964; Pitu v Markham [2022] PGSC 59; SC2261
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