Unreported National Court Decisions
N856
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 69 OF 1989
AN EXPARTE APPLICATION OF ERIC GURUPA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
Lae
Doherty AJ
21 December 1989
9 January 1990
PREROGATIVE WRITS - Certiorari - Application for Discretionary matter of - Delay as seeking - Grounds for Court to interfere with decision - Public Service (Management) Act 1986 ss 46, 47, 57 - Constitution s 155(4).
An application for a writ of certiorari is, under O 16, r 4 of the National Court Rules, required to be made within four months. An applicant must show a body with a duty to act judicially has not done so.
The issue of an order nisi in the nature of a writ of certiorari being a discretionary matter, delay on the part of the applicant in seeking relief by means of the writ is an important factor to be taken into account.
Held
Accordingly, where there had been a delay of almost two years by the applicant in seeking leave for a judicial review, which was in effect an application for a writ of certiorari, in respect of his dismissal by the Secretary of the Department of Works, where the illegal use of Government vehicle was at issue, an order for leave should be refused.
Cases Cited
Dent v Thomas Kavali and Others [1981] PNGLR 488.
Ibrahim Sulaiman v The Papua New Guinea University of Technology (Unreported Judgment, No N 610, dated 20 August 1987).
Jovanes Arazi v Department of Transport and Civil Aviation [1981] PNGLR 436.
R v Electricity Commissioners [1924] 1 KB 171.
State, The v Giddings, Ex parte Tatian Tiangan Koan [1981] PNGLR 423.
State, The v District Land Court [1981] PNGLR 192.
Counsel
G Langtry, for the plaintiff
DOHERTY AJ:  The applicant applies for leave for judicial review of the decision of the Secretary of the Department of Works dismissing him from the Public Service. He had been employed for a period of eleven years prior to his dismissal.
From the originating summons and the statement in support it appears that the Secretary of the Department of Works laid two charges against the applicant following an incident on the 21st of May 1987. The two charges relate to the same event and are for illegal use of the Government vehicle and threatening two night watchmen. Apparently this occurred at about 8.30 pm following a staff party. The vehicle was locked away at that time in the Works Department yard, which was being guarded by the night watchman. It was a Government vehicle. The applicant did not drive the vehicle he directed another person to do so and to take other staff members, who had been at the party home.
Notice under the Public Service (Management) Act 1986 was served on the applicant six days after the incident. He replied on the 29th of June 1987 but was dismissed. He says he appealed but was not called to appear before the appeal board. He says this action was unfair. He also says he considered the incident was a minor offence and that the vehicle was not damaged. He concedes he was drunk at that time. Other grounds given in the statement of support were:
(1)      That the decision of the defendant through its servant or agent was harsh, oppressive, and unjust.
(2)      That the defendant, through its servant or agent should have considered other forms of punishment under s 47 of the Public Services (Management) Act.
(3)      That the decision was erroneous as the defendant was innocent of the charge of unlawful use of a motor vehicle.
(4)      That there is no appeal from the defendant’s decision provided for in the said Act, therefore the plaintiff seeks judicial review of the said decision by virtue of s 155(4) of the Constitution.
The applicant brought his action under s 155(4) of the Constitution. It appears to be an application to quash a decision of the Secretary for Works. It is in effect on application for certiorari.
The rules relating to certiorari are provided for in O 16 of the National Court Rules. As I pointed out to counsel for the applicant there appears to be two matters which he has to address. One is the time limits stated in the rules and the other is a substantive grounds for the application to show the Secretary for the Department of Works erred.
This application was lodged in the National Court in May 1989 that is almost two years after the original dismissal. The applicant’s explanation is he needed to collect money for lawyers fees and he asked the Public Employees Association to assist in November 1987; that is five months after his dismissal. He cannot recall the dates when he sought legal assistance but he paid the first deposit to his lawyers in August 1988; that is one year and two months after. Documents were lodged in the National Court eight months later.
The National Court Rules O 16, r 4(1) state that leave may be refused for undue delay. The relevant period in applications for certiorari is four months. This period restriction actions in certiorari were considered by the National Court in several cases prior to the introduction of the present National Court rules. These included Dent v Thomas Kavali and other [1981] PNGLR 488 which considered the rules were inferior to the Constitution and statute. In Jovanes Arazi v Department of Transport and Civil Aviation [1981] PNGLR 436 it was held that delay on the part of the applicant in coming to Court for relief under the writ is an important factor to be taken into account. The court discussed the period of six months, (which was provided for in the old National Court Rules). The court considered that six months period may, in special circumstances, be extended and it has been extended in this jurisdiction. However the court also considered that an application even within this six months period could be too late.
In the State v Giddings ex-parte Tatian Taiangankoan [1981] PNGLR 423 the court again considered applying for a Writ of Certiorari to quash a District Land Court decision outside the period of six months. The court said at p 424:
“Of course, rules of this court prove that such applications cannot be granted unless made within six months. So the AMBIAS are 14 months too late. However the Court has power to enlarge the six months time-limit.”
In the State v Giddings (supra) the evidence showed that the applicants sought legal advice six weeks after the District Land Court decision and made active attempts to collect copies of the Court depositions in Mount Hagen and to send them to their counsel in Port Moresby. This procedure took seven and half months from the date of the original land court decision. After advice they collected the necessary legal fees and this took a further nine months. This combined with other delays outside the control of the applicants meant the proceedings did not commence until some 20 months after original decision.
The court considered that its discretion to enlarge the time was unfettered but that the discretion must be exercised judicially in order to avoid injustice. They considered that the background of the litigation was a relevant consideration and prejudice to the other parties was also relevant. In that case the applicants had made active attempts to initiate their proceedings within the six months provided in the rule.
As I have already stated the cases referred to above were considered prior to the introduction of the present National Court Rules in 1983. The six months rule referred to in each of those cases has been reduced in O 16 to a period of four months.
Although the current National Court rules state that the four months is “the relevant period” in considering whether there has been undue delay, it is not a mandatory period and the new rules do not fetter the discretion of the court and I consider that the interpretation and attitude shown by the court prior to 1983 are relevant and pertinent today.
Some account must be taken of the difficulty experienced by people in finding legal advice, getting copies of Court depositions and other decisions, becoming aware of the procedure they must adopt. Their remoteness from a court and advice, would also be relevant. Each case must be considered on its merits and it must be apparent that the applicant has made some active attempt to seek redress from the court in a timely manner.
In this case over five months elapsed before he did anything at all to seek advice and further months before he approached a lawyer. There was a further delay in apply that is not explained. I consider this total of two years an undue delay.
The other aspect of a certiorari application are that the applicant must show some ground. An application for certiorari is not a form of appeal which can be used because another form of appeal has failed or the decision was not to the liking of the applicant. There appears to be growing tendency to treat certiorari as another avenue of appeal. This is not the intention of the procedure as was stated by Bredmeyer J in State v District Land Court [1981] PNGLR 192 at 193:
“...an application for an order of certiorari is not an appeal.
In his book “Judicial Review of Administrative Action” de Smith adopts (at 389) the ruling in R v Electricity Commissioners [1924] 1 KB 171 that certiorari may issue:
“Wherever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority.”
Any body or persons includes Inferior Courts, Administrative Tribunals, Local Authorities, Statutory Bodies and individual officers who fulfil public functions. The Secretary for the Department of Works is a departmental head and disciplinary and other functions are vested in him under the Public Service (Management) Act 1986. I consider that discipline and etc. are public servants is a public function and certiorari could lie against a departmental heard exercising a function provided for in the Public Service (Management) Act.
The Departmental Head has powers to lay charges against public servants under ss 46 and 47 of the Public Service (Management) Act [1986} and he therefore has a duty to act in a fair and judicious manner.
Section 47(4) of the Public Service (Management) Act provides a procedure for the laying of a charge and giving notice to a public servant of the charge and allegations against him. There is no allegation on the part of the applicant that the Secretary for the Department of Works failed to follow that procedure. The applicant says he was given the charge and he replied to it.
Section 47(5) of the Public Service (Management) Act list punishment and other actions that can be taken if an officer is found guilty of a charge. This include s 47(5)(3) dismissal from the public service. Hence power of dismissal was within the jurisdiction of the Secretary at the relevant time. The applicant says that the Secretary acted in a harsh and unjust way in terminating employment when other avenues were open to him.
A court does have powers to award certiorari against an Administrative Body or Tribunal in certain circumstances. It has been considered that certiorari can lie in the case of employment situations but these are comparatively restricted (see Sulaiman v University of Technology (Unreported Judgment No N 6710) but certiorari does not lie automatically because an applicant considered the punishment or the action taken against him was excessive or harsh. Some grounds must be shown before a court can interfere with the decision. These include (but are not limited to):
(1)      Lack of jurisdiction if e.g. if the Tribunal was improperly constituted or failed to follow its own rules or the decision it proported to allow him to speak on his own behalf.
(2)      The Tribunal was in breach of the rules of natural justice e.g. failing to inform a person of a charge against or failing to allow him to speak on his own behalf.
(3)      An error of law when reaching or considering the decision, however, this is a restricted grounds.
(4)      Where the decision of the inferior tribunal was procured by fraud or collusion, such fraud must be clear and it must have been the basis of a decision reached by the tribunal. This would include e.g. perjured evidence.
(5)      That the tribunal made its decision on the basis of an irrelevant consideration or considerations.
The applicant before me does not allege that any of these situations occurred. On the information before me it appears that the Department Head gave notice to Mr Gurupa of the charges against him and received a reply from Mr Gurupa.
The grounds given by him allege that punishment was harsh having in mind his 11 years service. I do not find that in reaching that decision any improper facts or grounds were considered. In considering leave it is not open to me to make comment on the punishment however I would remark that I consider a senior officer in a drunken condition ordering misuse of a Government vehicle for a private purpose after a party at a Government office would warrant a severe penalty. I cannot accept the fact that there were no PMV’s running at 7.30 pm is a grounds for misuse of a Government vehicle.
He added another ground in oral evidence, that the appeal tribunal did not consider his appeal or inform him of the appeal hearing.
There is no provision in the Public Service (Management) Act 1986 for an appeal against a decision. The General Order (General Order No 8 which sets out the general order on discipline) does not provide for an appeal system either. This is a contrast to the former Public Service (Management) Act (Ch No 67) which did provide an appeal against a decision s 57 Public Service (Ch No 57). Therefore this cannot constitute a ground. There was no right of appeal - it would not be abused.
I do not consider that this is an appropriate case for judicial review. As His Honour Mr Justice Wood said in Sulaiman v the PNG University of Technology:
“The right to seek judicial review has been granted where an injustice has been done and there is no other remedy... In this case before me the applicant if he has suffered some wrong, clearly has some other remedies. He has a remedy to sue for damages for wrongful dismissal...”.
The same applies here.
I refuse leave on the grounds of failure by the applicant to grounds for this application and because there has been undue delay in making an application.
Leave refused.
Lawyer for the applicant: Mionzing & Associates