N7376

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 1005 OF 2017

BETWEEN:
JONNY SUAGU
Plaintiff

AND:
DR. KEN NGANGAN, Phd, CMA, CPA, Secretary Department of Finance
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani:    Gavara-Nanu J.
2018:     10th & 11th May
	
JUDICIAL REVIEW – Application for leave for judicial review – National Court Rules; Order 16 r 3 (1) – Termination of the plaintiff from his employment annulled by the PSC – PSC ordering reinstatement – Employer refusing to reinstate – Proper relief – Prerogative writs – Writ of mandamus against the employer the appropriate relief– Application for writ of certiorari against the employer refused.
 
Cases Cited:

Azzam El Cheick v. Rimbink Pato (2017) N6879
Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture (2016) N6785
Innovest Ltd v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change and The State (2014) N5949
Peter O’Neil v. Nellie Eliakim (2016) SC1522
Telikom PNG Limited v. ICCC (2017) N3144

Counsel

J. Bokomi,for the Plaintiff
R. Uare, for the Defendants 
11th May, 2018 

1.	GAVARA-NANU J:	The plaintiff seeks leave to review the decision of the first defendant made on 1 July, 2016, to terminate him from his employment with the Department of Finance as Acting Certifying Officer, Yangoru District, East Sepik Province.  

2.	On 21 August, 2014, the plaintiff applied to the Public Services Commission (PSC) to review his termination under s. 18 (6) (a) of the Public Service Management Act 2014.   

3.	The PSC delivered its decision on 4 May, 2016, in which it annulled the plaintiff’s termination and ordered that he be reinstated to his previous position.  The PSC also ordered that if the position was already filled then he be made an unattached officer on the same level as his previous position.  

4.	The PSC in its written decision among other things found that the plaintiff’s termination was in breach of Public Service General Orders 5.3; 15.5; 15.6; 15.27; 15.28; 15.28 and 15.35.  

5.	Here, the plaintiff is seeking certiorari to quash his termination. Because the plaintiff is seeking certiorari, the requirement under Order 16 r 4 (2) of the National Court Rules arises for consideration.  The requirement under this rule is that an application for leave for judicial review be made within four months after the date of the decision, which for the purposes of this application is the decision of the first defendant to terminate the plaintiff.

 6.	Four months from 01 July, 2014 (date of termination) expired on 01 October, 2014.  It is now well over 3 years since the plaintiff was terminated.  When this period is considered against the four month period under Order 16 r 4 (2), the delay is obviously inordinate:   Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture (2016) N6785

7.	Counsel for the plaintiff however argued that the four month period  prescribed under Order 16 r 4 (2) should run from 4 March, 2016, when the PSC delivered its decision. This argument is clearly misconceived. The Court asked counsel whether his client should have sought mandamus to compel the first defendant to comply with the PSC decision.  He was however adamant that certiorari is the appropriate relief for his client.  

8.	The plaintiff’s termination having been reviewed by the PSC and the PSC having decided in his favour, plainly certiorari is not the appropriate relief for him.  The plaintiff should have sought mandamus to compel the first defendant to comply with the PSC decision.  It is wrong for the plaintiff to be seeking certiorari against the decision of the first defendant, when that decision has already been reviewed and determined by a competent review body (PSC).  The Court has no power to conduct another review of the same decision.  

9.	By seeking certiorari, the plaintiff is effectively asking the Court to decide the validity of his termination which has already been determined as invalid by the PSC. Pursuant to s. 18 (6) (b) of the Public Services Management Act, the decision of the PSC would be binding on the first defendant because the evidence shows that he did not challenge the decision within 30 days from the date of the decision.  The doctrines of res judicata and issue estoppel would operate to bar orders for certiorari. In my view the application of res judicata is very clear. As to issue estoppel it would operate more against the first respondent and the application of the doctrine would be guided by relevant principles and for the purposes of this case, I would respectfully adopt the principles enunciated by Miles J, in First Assistant Secretary Department of Prime Minister v. Michael James Leahy and Highlands Products Pty Limited (1981) N311(L). His Honour said:

	“Estoppel is a subject that has received the detailed attention of many 	textwriters 	and judicial authorities. There is estoppel in law and 	estoppel in equity. My own limited research into this esoteric 	subject in recent times indicates that estoppel, once regarded as a 	rule of evidence, has probably become a doctrine of substantive 	law.  Estoppel in law involves a representation by word or conduct, of 	existing fact upon which the other person has been induced to act, as 	the representor intended that he should act, with the result that the 	person acting on the representation will suffer harm if the person 	who made the representation should be allowed to deny or 	repudiate it: Craine v. Colonial Mutual Fire Insurance Co. Ltd. 	Equitable estoppel, a more recently developed doctrine, seems to 	extend beyond representations of fact to representations of intention 	and 	may not require proof that the person acting on the 	representation will suffer harm 	if the other person is permitted to 	deny or repudiate the representation: Combe v. Combe.

	It is not clear whether the estoppel pleaded in paragraph 7 of the 	proposed statement of defence is of the legal or the equitable 	variety. In any event an allegation of representation either of fact or 	intention is essential. The only 	allegation of that type as pleaded is 	that the claimants "by their silence permitted and induced the 	Defendants to believe that the said lands were the rightful 	property of the First Defendant".  Although the matter is not free from 	doubt, on balance I think that an allegation that the claimants by 	silence induced the second defendant to believe that the land 	belonged to the first defendant may amount to an allegation of a 	representation sufficient to found an estoppel, either legal or 	equitable, depending on whether the representation was as to fact or 	as to intention...” (my underlying)

11.	In this instance, having regard to the above principles, issue estoppel would operate to bar the first defendant from re-agitating or rehashing the issues relating to plaintiff’s termination. The application of issue estoppel would be founded on the failure of the first defendant to mount any form of challenge against the decision of the PSC within 30 days from the date of the decision.  Such failure by the first respondent would be sufficient to induce the plaintiff to believe that the first defendant did not intend to challenge the PSC decision and that he had by his silence acquiesced the decision. See Peter O’Neil v. Nerrie Eliakim SC1522 and Telekom PNG Limited v. ICCC (2017) N3144.   

12.	Counsel for the State in his reply, among other things submitted that mandamus should have been sought because that would have avoided the issue of delay.  However, in my view had mandamus been sought, the only issue that would have been avoided is the four month period prescribed under Order 16 r 4 (2), not the issue of inordinate delay under Order 16 r 4 (1), which would have still been a relevant consideration. The pertinent question would have been whether the application was brought within a reasonable time.  The issue of of inordinate delay automatically raises issues of possible prejudice to the rights of others, possible hardship to such people and good administration, if the relief sought is reinstatement and reinstatement is ordered after a long delay.  Application of Order 16 r 4 (1) in that way prevents possible abuse of process, especially by those applications which suffer from inordinate delays, lack of due despatch and delay in the finality of litigation:  Azzam El Cheick v. Rimbink Pato (2017) N6879 and Innovest Ltd v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change and The State (2014) N5949.

13.	For the foregoing reasons, the application is incompetent.  

14.	The application is dismissed with costs.

_____________________________________________________________
Bokomi Lawyers: Lawyers for the Plaintiffs
Solicitor General:  Lawyers for the Defendants