N2101

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 302 of 2001

BETWEEN:

JOSEPH YONGE
Applicant/Plaintiff

AND:

LUKE NIAP, ACTING GENERAL MANAGER
PNG HARBOURS BOARD
First Respondent/Defendant

AND:

PAPUA NEW GUINEA HARBOURS BOARD
Second Respondent/Defendant

WAIGANI:	KANDAKASI
2001: 	6 & 20 JUNE 2001

PRACTICE & PROCEDURE – Want of Prosecution – Failure by Plaintiff and his lawyer to appear on date set by consent for hearing – Rules and the law requires prompt prosecution of such applications – Failure to comply should result in dismissal of action - Order 16 Rule 4 of the National Court Rules (Chp. 38).

ADMINISTRATIVE LAW - Application for Leave for judicial review – Arguable case – Failure to show arguable case for review – Employment termination after charging Plaintiff with disciplinary offences and hearing the Plaintiff in his defence – Failure to demonstrate by appropriate evidence error of the Defendants – Order 16 Rule 3 of the National Court Rules (chp.38).

Cases cited:
The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276
An Ex parte Application of Eric Gurupa for Leave to Apply for Judicial Review N856.
Peter Ipu Peipul v.Sheehan J, Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001)
Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617 
Ila Geno and Others v. The State [1993] PNGLR 22
Leto Darius v. Commissioner for Police and The State N2046
Application of Demas Gigimat [1992] PNGLR 122
Application of Christopher Haiveta (1998) N1783
Joe Nemambo vs. Peter Peipul SC475

Counsels:
Mr. F. Komang for the Plaintiff
Mr. T. Elemi for the Defendant

22nd June 2001

KANDAKASI, J: The Plaintiff is applying under Order 16 Rule 3 of the National Court Rules (NCRs) for leave to apply for judicial review of a decision of the Defendants terminating his employment contract. He claims that, the defendants acted in excess of jurisdiction, acted unreasonably and the decision to terminate his employment was a sever penalty. The Defendants deny these claims and argue that the Plaintiff’s application does not disclose an arguable case to warrant grant of leave for review. Also, on the date set for a hearing of the application, neither the Plaintiff nor his lawyer turned up to proceed with the hearing. The Defendants argued for a dismissal of the application both for want of prosecution and on the merits for failure to disclose an arguable cases. 

Issue

There are two issues for me to determine. First, whether the Plaintiff’s application should be dismissed for want of prosecution. Secondly, whether there is an arguable case, for grant of leave for judicial review.

First Issue: Want of Prosecution

(a)	Background 

The Plaintiff issued these proceedings on the 11th of May 2001, together with a notice of motion seeking inter alia, leave for judicial review. The motion was initially returnable on the 25th of May 2001. On that day, the motion was adjourned by consent of both parties to the 6th of June 2001 for hearing. When the matter was called for hearing on that day, there was no appearance for or on behalf of the Plaintiff. Mr. Elemi, counsel for the Defendant’s applied for leave to proceed ex parte and I granted him leave to do so.

Mr. Elemi applied for a dismissal of the motion and the entire proceedings for want of prosecution. He also invited the Court to dismiss the motion and the proceeding, because in his submissions, no arguable case was presented for a grant of leave for judicial review. After having heard his arguments, I reserved my ruling. This is now my ruling on that application.

(b)	Want of Prosecution

Judicial review applications by their very nature call for prompt action. Order 16 Rule 4 provides that, all applications for leave for judicial review must be made promptly. Sub-rule (2) of that Rule provides for a period of four months within which to apply for leave for judicial review. Numerous authorities make it very clear that, a failure to observe this requirement may result in a refusal of an application for leave. In The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276, Sevua J refused an application for leave for judicial review because of delays in bring the application. A similar consequence followed in An Ex parte Application of Eric Gurupa for Leave to Apply for Judicial Review N856. These cases provided examples of the consequences that can follow where there is a failure to proceed with an application for leave for review promptly, given the provisions of Order 16 Rule 4(2) of the NCRs.

For want of prosecution generally of proceedings commenced by Originating Summons, the provisions of Order 4 Rule 36 are relevant. That Rule reads:

"Want of prosecution. (5/12)

(1)	Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.
(2)	Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff." 
(Underling mine)

The onus is thus, placed in my view, on a plaintiff to take every step to prosecute his claim with due dispatch. A failure to do so, attracts the risk of dismissal as the ultimate penalty. The court is vested with a discretion to dismiss proceedings that do not get prosecuted promptly. I am of the view that, this discretion should be exercised quite readily in an application for leave to apply for judicial review unless, good and reasonable basis is shown by an applicant to prevent an exercise of that discretion. This view emanates from the fact that, judicial review, by their very nature, require prompt action to avoid unnecessary confusions, disruptions and or uncertainties that could be caused by the fact of an application being filed for leave for judicial review. 

In the present case, the motion seeking leave for judicial review was returnable initially on the 25th of May 2001. It was then adjourned by consent to the 6th of June 2001, with the parties both signing a consent adjournment form. When the matter was called for hearing before me on the 6th of June 2001, neither the Plaintiff nor his lawyer turned up to proceed with the hearing. No explanation has been given for the non-appearance and the failure to proceed with the hearing. The plaintiff by that conduct, has in my view, failed to show any urgency and concern with the need to proceed promptly with his application. The Defendants are entitled to get on with their duties and hence the business of the Second Defendant. They need not be forced to wait around because of an application for leave for judicial review that is not been pursued with any seriousness, evidenced by the non-appearance of the Plaintiff or his lawyers on a date they agreed to for hearing. For these reasons, I consider a dismissal of the proceedings to be in order. 

On the Merits 

There is a further reason to dismiss the proceedings. That goes to the merits of the application. In support of his application, the Plaintiff swore to an affidavit on the 4th and had it filed on the 11th of May 2001. The Plaintiff has also filed a statement pursuant to Order 16 Rule 3 of the NCRs. 

(a)	Facts

From the Plaintiff’s affidavit, the facts are these. The Second Defendant from the 28th of June 1983, employed the Plaintiff under a written contract, until his termination on 9th February 2001. At the time of the Plaintiff’s termination, he was employed as the Port Manager at Wewak, East Sepik Province. 

Prior to his termination, the Plaintiff was charged with four disciplinary offences. The first was an allegation of damages to a vehicle belonging to the Second Defendant with an estimated repair bill of K3, 672.68, which he failed to report to the relevant officer. The second concerned an alleged misuse of K550.00 belonging to the Second Defendant, while, the third concerned an allegation that the Plaintiff used cement mixture to unlawfully obtain a commission of about K50.00. The final charge was an allegation that, the Plaintiff failed to discipline one of his fellow employees, who was answerable to him for allegedly causing damages to one of the Second Defendant’s motor vehicle. 

The Plaintiff replied to each of those charges. The Plaintiff alleges that without properly considering his replies, the Defendant proceeded to terminate him. In so doing he alleges the Defendants took into account irrelevant facts or matters to the exclusion of relevant ones. He does not specify what those facts or matters where and how the Defendants did what he alleges. He also alleges that a copy of the Defendants’ decision was not served on him and in any case the offences were not serious enough to warrant his termination. Again, he does not provide any basis to show the offences were minor.

The Plaintiff does not even annex a copy of his contract of employment and his reply to the charges. He has also failed to provide a copy of the instrument constituting his termination. This is unhelpful because, he does not say how he was terminated, whether verbally or by a letter or any other method. This in turn deprives the Court of getting to know of the reasons for his termination. Further, the onus is always on a plaintiff or he who alleges to prove what he alleges. The plaintiff in this case has in my view, failed to discharge that onus on these aspects.

The Law

As I said in my most recent judgement in Peter Ipu Peipul v.Sheehan J, Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001) at pages 7 – 

"[T]he purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting it, with the court’s own decision. Instead, judicial review is concerned with the decision making process, and not the decision itself. The circumstances under which judicial review may be available are, where the decision making authority lacks, exceeds or abuses its power, commits an error of law, breaches the principles of natural justice and reaches a decision, which no reasonable tribunal could have reached. This position has been made clear in a large number of cases, decided by both this and the Supreme Court. A recent example of that, is the case John Joe Nemambo v. Peter Peipul and The State SC475, a decision of the Supreme Court, delivered on the 21st of December 1994, … See also the case of Kekedo v. Burnsphilip [1988-1989] PNGLR 122 per Kapi DCJ at 124."

I also referred in that case to the judgment of Lord Diplock in Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617 at 663 and Lord Scarman at page 749, which were quoted and adopted with approval by both our National and Supreme Courts, such as the Supreme Court decision in, Ila Geno and Others v. The State [1993] PNGLR 22 at page 24. Based on those authorities I said: 

"The objective, as can be seen from the authorities such as those mentioned above, for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the court’s time. It also helps to remove uncertainties in the public officers and authorities as to, whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived. 

In Leto Darius v. Commissioner for Police and The State N2046, a judgement of myself at page 6 to 9, I said on the question of the need to demonstrate an arguable case:

"To determine whether or not an applicant has an arguable case, regard must be had to what Lord Roskill said in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953. His Lordship in summary said it would be an appropriate case for judicial review if a plaintiff can show any of the following against the decision-making authority: 

1.	Want or excess of jurisdiction. 
2.	Whether there is an error of law on the face of the record.
3.	Failure to comply with the rules of natural justice.
4.	The Wednesbury principle - whether a power is exercised in so unreasonable a manner.’ 

I also noted in that case at the same page that: 

"In our own jurisdiction Kapi DCJ stated that position in this way in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. "

I than considered the case of Application of Demas Gigimat [1992] PNGLR 122] and Application of Christopher Haiveta (1998) N1783 said:

"It is apparent from the above authorities that the question of whether or not an arguable case is shown involves the question of whether the application raises any fundamental or serious legal issue which warrants the Court’s consideration: See Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal (1996) N1720."

The Supreme Court in Joe Nemambo vs. Peter Peipul SC475 held that "leave should not, as a matter of course be granted unless exceptional circumstances can be shown".

Present Case

In the present case, there is no issue on the requirements that must be met before the Court can grant leave for judicial review. The only issue is whether the Plaintiff discloses an arguable case.

The Plaintiff admits being charged and suspended with certain disciplinary offences by the Defendants. The charges were served upon him and he was allowed the opportunity to respond to the charges. He responded to the charges essentially admitting each of the charges. He than claims the Second Defendant did not take into account his responses in its deliberation of the charges before deciding to terminate him. As observed already, he does not show how the Defendants failed to take into account his responses. He also fails to demonstrate how his responses would have led to a lighter penalty.

In my view, although the amounts of money being involved were not substantial, serious criminal and disciplinary offences were committed. In this kind of cases, there is always the need to impose a sterner punishment to deter other like mined persons from engaging in the kind of conduct concerned, unless there are very good mitigating factors. The Plaintiff does not show where the error is in the decision making process resulting in the Second Defendant deciding to terminate the Plaintiff’s employment contract. There is no evidence of where and how the Defendants erred is placed before me. In these circumstances, I find that no demonstrable error on the part of the Defendants, which need to be corrected by way of a review, has been shown. Similarly, the Plaintiff has failed to show how or why he claims the decision of the Defendants was unfair. These failures in my view, fail to demonstrate an arguable case for judicial review. I therefore, accept the Defendants submissions that the Plaintiff has failed to establish a case for leave for judicial review. For these reason, I am also, minded independently of want of prosecution, to dismiss the application. 

Further, I note that the Plaintiff was on a contract of employment, which was terminated by the Defendants. If the Plaintiff considers that his contract of employment was unlawfully terminated then he has an alternative remedy; he could sue the Defendants for unlawful termination or breach of contract. If he wishes to, he could take that course.

In the upshot, I order a dismissal of these proceedings for want of prosecution as well has the Plaintiff’s failure to disclose an arguable case. Costs will follow the event; that is to say, the Plaintiff shall pay the Defendants’ costs.
_______________________________________________________________________
Lawyers for the Plaintiff: 			Frankie Komang Lawyers
Lawyers for the Defendants:			Rageau Elemi & Kikira Lawyers