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Bill v Secretary, National Judicial Staff Services [2011] PGNC 290; N4406 (10 October 2011)

N4406

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 218 OF 2011

BETWEEN

SIMON BILL
Plaintiff

AND

SECRETARY, NATIONAL JUDICIAL STAFF SERVICES
First Defendant

AND

NATIONAL JUDICIAL STAFF SERVICES
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail, J
2011: 07th & 10th October

PRACTICE & PROCEDURE - Interim injunction - Preservation of status quo - Dispute over position - Position of administration officer - Vacancy of - Change of circumstances - Whether injunction appropriate - Injunction refused - National Court Rules - O 14, r 9.

PRACTICE & PROCEDURE - Application to dismiss proceeding - Grounds of - Abuse of process - Vacancy in the position of administration officer - Proceeding dismissed - National Court Rules - O 12, r 40(1)(c).

No cases cited:

Facts

Following a restructure of the second defendant in 2005, positions were advertised and interested persons were invited to apply for them. The plaintiff applied for the position of administration officer of Mt Hagen National Court. He was successful and was appointed in November 2006. The then substantive holder of the position who missed out obtained an interim order to remain as administration officer with court proceeding to be issued on a later date to challenge the decision to appoint the plaintiff as administration officer. Following issuance of court proceeding, the interim order was made permanent by way of a consent order between the first and second defendants and the then substantive holder which effectively formalised his appointment as administration officer. Subsequently, the then substantive holder left the position and the position fell vacant.

On an application by the plaintiff to restrain the first and second defendants from making any new appointment pending the determination of the substantive proceeding seeking inter-alia, declaratory orders to assert his right as duly appointed administration officer and on the defendants' application to dismiss the proceeding inter-alia, for being an abuse of process pursuant to O 12, r 40(1)(c) of the National Court Rules.

Held:

1. The application for an interim order by the then substantive holder of the position of administration officer and grant of the order without the filing of a court proceeding was proper and permissible by O 14, r 9 of the National Court Rules.

2. There was no serious question to be tried and there was nothing for the Court to protect by way of an interim injunction as there was a vacancy in the position of the administration officer and neither the plaintiff nor the then substantive holder could assert any right of tenure over it. The application for interim injunction was accordingly refused.

3. The plaintiff commenced proceeding under a misconception that he was the duly appointed administration officer when circumstances had changed and the position had become vacant such that neither the plaintiff nor the then substantive holder could assert any right of tenure over it. The proceeding was accordingly dismissed as being an abuse of process pursuant to O 12, r 40(1)(c) of the National Court Rules.

4. The cost of and incidental to the applications and proceeding was ordered against the first and second defendants as they were responsible for creating the dispute in relation to the appointment of the administration officer.

Counsel:

Plaintiff in person
Mr B Koae for First & Second Defendants
No appearance for Third Defendant

RULING

10th October, 2011

1. MAKAIL, J: This is a ruling on two applications. The first one is the plaintiff's application for an interim injunction to restrain the defendants from appointing an officer to the position of Administration Officer of Mt Hagen National Court pending the determination of substantive proceeding and the second is the first and second defendants' application to dismiss the proceeding inter-alia, for being an abuse of process pursuant to O 12, r 40(1)(a),(b)&(c) of the National Court Rules.

2. On 29th April 2011, the plaintiff filed an originating summons seeking the following substantive orders:

"1. A declaration that the Plaintiff is the duly appointed Administration Officer of Mt Hagen National Court under the restructure process of the National Judicial Staff Services.

2. An order restraining the First Defendant from making any new appointment to the position of Administration Officer, Mt Hagen, until the interim Order obtained by John Pea and Yule Wambe, dated 6th December, 2006, at Waigani National Court, be settled in Court.

3. An Order, ordering the Defendants to pay the Plaintiff's cost of and incidental to this proceedings.

4. Any other or further order the court deems fit."

3. In his affidavit in support sworn and filed on 29th April 2011, the plaintiff deposed that he is the duly appointed administration officer of Mt Hagen National Court. His appointment came about following a restructure in the National Judicial Staff Service in 2005. During the restructure, all substantive positions were made vacant and all substantive holders were made to act on those positions pending selection and appointment. All the positions were advertised in open market through the two daily newspapers, the Post Courier and the National seeking suitable persons for the positions.

4. As an outsider, he applied for the position of administration officer. He was short-listed and was interviewed. Following the interview, he was informed by the first defendant by way of a letter dated 13th November 2006 that he was appointed as administration officer effective from 09th November 2006. He accepted his appointment by sending a letter to the first defendant dated 04th December 2006. He commenced work and a week later, he was restrained from performing duties by a Court order of 06th December 2006 obtained by Messrs John Pea and Yule Wambe before Hinchliffe, J at Waigani. Mr Pea was the substantive holder of the position of administration officer prior to the restructure in 2005.

5. He then left work and went to his village and stayed there. While in the village, he sent a letter to the first defendant dated 15th January 2007 informing him that he wanted to engage a lawyer to defend him in the court case commenced by Messrs Pea and Wambe. Instead, he was assured over the telephone by the first defendant that the second defendant would provide its in house lawyer to defend him as it was a case involving a dispute over a position with the second defendant's organisation in which he was appointed to.

6. After almost 4 months out of work, on 10th April 2007, he resumed work at the request of the Assistant Registrar of Mt Hagen National Court. He was tasked to help out at the National Court Registry while awaiting the outcome of the Court proceeding by Messrs Pea and Wambe. At one stage, he was asked by the Assistant Registrar to take up the position of sheriff officer but he refused because was the successful candidate for the position of administration officer and should have taken up that position.

7. As a re-affirmation of his position, he sent another letter to the first defendant dated 11th April 2007 informing him that he would not take up any other position other than the position of administration officer. He also renewed his request to engage a lawyer of his own choice to defend the court case but the first defendant informed him by way of a memorandum dated 12th April 2007 that the Principal Legal Officer of the second defendant would act for him in the matter.

8. While the Court case was pending, Mr Pea filed another court proceeding against the defendants in OS No 184 of 2007 in Mt Hagen in relation to the same dispute. As he was previously assured by the first defendant that the second defendant's Principal Legal Officer would act for him, he assumed that the Principal Legal Officer would also act for him in the new matter. Without his knowledge, the first defendant entered into a consent order with Mr Pea. It was subsequently endorsed by the Court on 30th July 2008 in proceeding OS No 184 of 2007 which effectively formalised Mr Pea's appointment as the administration officer.

9. Despite the consent order in OS No 184 of 2007 proceeding, the Court order obtained by Messrs Pea and Wambe before Hinchliffe, J in Waigani is still pending and must be brought to trial and finalised. He even wrote to the Judge Administrator of Mt Hagen National Court and the Registrar to sort out the dispute but did not receive any response. Despite all these Court proceedings against him, he maintained he is the duly appointed administration officer and this was confirmed by the first defendant when he sent a memorandum to him dated 29th January 2010 confirming his appointment as administration officer as of 10th October 2007.

10. In his supplementary affidavit sworn on 17th May 2011 and filed on 18th May 2011, he further deposed that a search of the Court file in proceeding OS No 184 of 2007 revealed that the filing fee of K50.00 was not paid by Mr Pea, and even if it was waived by the Assistant Registrar at the time of filing because of the urgency of the matter, Mr Pea was still obliged to pay later. As proof of the non-payment, he produced a copy of the Court file cover showing no receipt of payment attached to it. On 30th July 2008, when the Court endorsed the consent order appointing Mr Pea as administration officer, the Court also ordered cost against the first and second defendants and Mr Pea had claimed cost of K7,000.00. In the total cost of K7,000.00, Mr Pea also claimed filing fee of K50.00. This was improper and yet the first and second defendants have gone ahead and paid Mr Pea the costs of that proceeding.

11. The first and second defendants opposed the application for interim injunction and also seek dismissal of the entire proceeding inter-alia, for being an abuse of process. It is their evidence in the affidavit of Bernard Koae sworn and filed on 10th August 2011 that the Court order of 06th December 2006 obtained by Messrs Pea and Wambe was an interim one to enable them to remain as administration officer and librarian respectively pending commencement of substantive proceedings. As a result, the application was made orally to the Court.

12. Subsequently, on 10th April 2007, Mr Pea commenced proceeding in OS No 184 of 2007 which eventually led to the consent order of 30th July 2008 declaring him as administration officer. Following that, the proceeding was withdrawn as there was nothing further for the Court to determine. The second defendant's establishment registrar of Mt Hagen National Court shows that Mr Pea is the holder of the position of administration officer described as JS.NCH.020 at pay grade NJS08 and the plaintiff as the current holder of the position of process enforcement officer described as JS.NCH.019 at pay grade NJS06. Mr Pea has since left the position. Since his departure, there is a vacancy in the position of administration officer and it has been re-advertised under the due process of recruitment of officers either internally or externally.

13. In his supplementary affidavit sworn and filed on 11th August 2011, Mr Koae further deposed that the plaintiff had filed an earlier proceeding against the defendants on 11th September 2008 in OS No 537 of 2008. In that proceeding, the plaintiff sought to have the Court declare the appointment of Mr Pea as administration officer unlawful and have it quashed. He has not prosecuted it and it is still pending. The appointment of Mr Pea as administration officer was based on a recommendation from the Assistant Registrar of Mt Hagen National Court who based his recommendation on staff performance.

14. Based on the recommendation of the Assistant Registrar, the first defendant after consultation with the Principal Legal Officer and the Director, Human Resource, approved the recommendation for Mr Pea to be appointed administration officer. Subsequently, on 30th July 2008, the Court endorsed a consent order to effect the agreement reached between Mr Pea and the defendants in proceeding OS No 184 of 2007. Based on the consent order, the first defendant sent a memorandum to Mr Pea dated 15th August 2008 confirming his appointment as administration officer.

15. The law on interim injunctions is clear. The Court will grant it if the applicant is able to establish that there is a serious question to be tried and the balance of convenience favours the grant of it. It will not be granted where damages would be an adequate remedy. An injunction is granted by the Court to preserve the status quo of a matter pending the determination of the dispute by the Court.

16. In the present case, the first matter that needs to be clarified is, the Court order of 06th December 2006 obtained by Messrs Pea and Wambe was an interim one. There was no substantive proceeding on foot at the time Hinchliffe, J granted the order. That means, Messrs Pea and Wambe had not filed any proceeding at the time the Court issued the interim order but they were required to commence proceedings immediately following the grant of the interim order. There is nothing wrong or improper with this type of application as it is permissible under our National Court Rules. O 14, r 9 is the pertinent rule and it states:

"9. Order before commencement of proceedings. (28/1)

In an urgent case, the Court may, on the application of a person who intends to commence proceedings -

(a) grant an injunction; or

(b) make any order which the Court might make in proceedings in the nature of an application for habeas corpus ad subjiciendum; or

(c) make orders for the custody of minors; or

(d) appoint a receiver,

to the same extent as if the applicant had commence, the proceedings and the application were made in the proceedings."

17. The Court has inherent power to hear this type of application and grant interim orders in the nature of the orders specified in paragraph (a)-(d) of rule 9 in cases where it is satisfied that it is urgent and great injustice may be caused if the order is not granted. In my view, the proceeding OS No 184 of 2007 commenced by Mr Pea was the substantive proceeding and was proper and in accordance with O 14, r 9 of the National Court Rules. Out of that proceeding, Mr Pea and the first and second defendants entered into the consent order of 30th July 2008. That is the first point.

18. The second point is, there is no evidence of any other proceedings commenced by Mr Pea at Waigani before the Court except the OS No 184 of 2007 proceeding. In the absence of such evidence, I accept the first and second defendants' submission that the only substantive proceeding is the OS No 184 of 2007 proceeding. This means, the dispute in relation to the position between the plaintiff and Mr Pea was and can be determined in OS No 184 of 2007 proceeding.

19. The dispute was resolved by an agreement between the defendants and Mr Pea, apparently without the knowledge of the plaintiff even though the first defendant had repeatedly informed the plaintiff that the Principal Legal Officer of the second defendant would act for him, a fact that has not been denied by the defendants. Consequently, a consent order was endorsed by the Court, thus formalising or giving effect to the agreement of the parties for Mr Pea to be the administration officer. In other words, even though Mr Pea missed out on the position following the restructure in 2005 and recruitment process in 2006, he was given back the position when he took the matter to Court.

20. In my view, the consent order of 30th July 2008 endorsing the appointment of Mr Pea superseded the appointment of the plaintiff of 09th November 2006 and this is the critical aspect of the entire dispute. In other words, the Court has declared Mr Pea as administration officer. It is a Court decision and must be obeyed by all parties affected by it either directly or indirectly. This means, the plaintiff's appointment as administration officer had ceased by operation of law on 30th July 2008. The new administration officer from that date onwards was Mr Pea. But then, it is not disputed Mr Pea has left the position. There is no evidence when he left the position and whether he had resigned or not. But what is not disputed is, he left the position and that the position is presently vacant.

21. In my view, there has been a change of circumstances since the appointment of Mr Pea. As he had left the position and it is vacant, I consider that this constitutes a new set of events since the dispute over the position of administration officer began in December 2006 when the Court ordered that Mr Pea remain as the administration officer up until the consent order of 30th July 2008 and the time he left. The effect of this is, neither the plaintiff nor Mr Pea can assert his right as holder of the position. The position must be re-advertised for interested persons to apply. That is what the first and second defendants have said they have done. Whether they have indeed done it is another matter as there is no evidence showing that the position has been advertised internally or externally, but the point is, neither the plaintiff nor Mr Pea is the holder of the position and can claim any right of tenure over it.

22. If either of them is still interested in the position, he must submit his application to the first and second defendants to consider along with other interested applicants. As there is a vacancy in the position, I am of the view, to grant an interim injunction would not be appropriate because it will serve no purpose. In other words, the plaintiff has failed to demonstrate that he is the substantive holder of the position upon which he can ask the Court to grant an interim injunction in his favour to protect his interest in the position. For this reason I am not satisfied there is a serious question to be tried in this case and there is nothing for the Court to protect by way of an interim injunction.

23. At the same time, I am of the view the proceeding is an abuse of process and must be dismissed because the plaintiff commenced it under a misconception that he is the duly appointed administration officer when in fact, circumstances had changed and that the position had become vacant such that neither the plaintiff nor Mr Pea could assert any right of tenure over it. Further, it must be dismissed because the substantive reliefs he seeks in the originating summons for the proceeding in Waigani to be transferred to Mt Hagen is misconceived. As I have found, there is no such proceeding in existence. Therefore, there is nothing for the Court to determine at trial. For these reasons, it is the ruling of the Court the application for interim injunction is refused and the proceeding is dismissed as being an abuse of process.

24. As to cost, counsel for the first and second defendants submitted the plaintiff should be ordered to pay the first and second defendants' costs because it was obvious the proceeding was bound to fail. Counsel submitted this is because there is a vacancy in the position and the first and second defendants are in the process of advertising and recruiting an officer. Further, since the plaintiff had filed an earlier proceeding in OS No 537 of 2008, he has failed to prosecute it and has gone ahead to file this further proceeding against the defendants, thus abusing the process of the Court.

25. Cost is a matter of discretion. The general rule is, cost is awarded to the successful party but there are exceptions to this rule. In a case where a party commences legal proceeding against another to resolve a dispute and it is found that the successful party is responsible for causing the dispute in the first place, the Court may order that party to pay the cost of the unsuccessful party.

26. In this case, I will exercise my discretion in favour of the plaintiff and order the first and second defendants to pay his cost because it is clear to me they were responsible for creating the dispute in the first place. It must be re-iterated the plaintiff was the successful applicant for the position of administration officer. His appointment came about as a result of a stringent recruitment process under taken by the second defendant in 2006 following a restructure of the organisation in 2005. Mr Pea who was the substantive holder at that time missed out. Thus I fail to see how the first defendant would accept the recommendation of the Assistant Registrar and appoint Mr Pea in the plaintiff's place and subsequently formalise it by way of a consent order. In my view, the actions of the first defendant and the Assistant Registrar are counter- productive to the whole process of recruitment of 2006.

27. Their actions had led to so much confusion and anxiety not only at Mt Hagen National Court but also at the headquarters in Port Moresby (Waigani) and I think I can make these observations because it is clear from the evidence before the Court that the first defendant was also confused as to who was the administration officer. For example, after Mr Pea obtained the interim order on 06th December 2006 to remain as administration officer, and subsequently formalised it by way of a consent order on 30th July 2008, on 29th January 2010, some one and a half years later, the first defendant informed the plaintiff by way of a memorandum that he was still the administration officer effective as of 10th October 2007.

28. The first defendant's advice cannot be correct because there was in existence an interim order of 06th December 2006 recognising Mr Pea as the administration officer and that interim order was made permanent by way of a consent order of 30th July 2008 which effectively made Mr Pea the substantive administration officer. The advice is also conflicting. Then, after Mr Pea's departure, there is no evidence from the first and second defendants showing that someone has been appointed to act on the position of administration officer pending a new appointment.

29. But the person most affected by all this confusion is the plaintiff. On the one hand, he was informed by the first defendant that he is the administration officer. On the other hand, he was informed by the Assistant Registrar that he was appointed process enforcement officer (sheriff). The Assistant Registrar's advice was later confirmed by the first defendant when he purportedly transferred the plaintiff from the position of administration officer to the position of process enforcement officer pursuant to his powers under section 11(2)(g) of the National Judicial Staff Service Act, 1987. All this confusion would have been avoided and the dispute would not have come this far if the first and second defendants had called the plaintiff and Mr Pea to a meeting with them and settled for either of them to occupy the position instead of entertaining only one party (Mr Pea).

30. Finally, what is more disturbing and hard to comprehend is that, despite the first defendant's assurance to the plaintiff on two separate occasions that the second defendant's Principal Legal Officer would be acting for him in the proceeding commenced by Mr Pea, there is no evidence from the first and second defendants that the Principal Legal Officer had sought and obtained instructions from the plaintiff prior to the agreement between them and Mr Pea for Mr Pea to be confirmed the administration officer. It appears this has led to the plaintiff having no say at all in the dispute and the appointment of the administration officer. That is why he has taken the first and second defendants to Court to voice his concerns and perhaps get their attention.

31. For these reasons, I order the first and second defendants to pay the plaintiff's cost of and incidental to the applications and the proceeding.

Ruling accordingly.
____________________________________________________________
Plaintiff in person
Principal Legal Officer, NJSS: Lawyers for the First & Second Defendants Acting Solicitor General: Lawyers for the Defendants