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Lara v Samy [2020] PGNC 157; N8328 (2 June 2020)

N8328

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 901 OF 2019

WAPSON LARA
Plaintiff

V
BR. ANTHONY SAMY, Principal Dela Salle Secondary School
First Defendant

AND
SAM LORA, Assistant Secretary NCD- Education Services
Second Defendant

AND
THE APPOINTMENTS OFFICER NCD EDUCATION
Third Defendant

AND
THE SECONDARY SCHOOL COORDINATOR NCD
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 21^st May

PRACTISE & PROCEEDURE – Judicial Review & appeals – Amended Originating summons – Leave application Order 16 Rule 3 NCR – Standing – effected by decision – no delay – Arguable case – Alternative remedies exhausted – application for leave for Judicial Review granted – cost follow event.

Cases Cited

Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746
NTN Pty Ltd v The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70

Counsel:

T. Ilaisa, for Applicant

No appearance for Respondents

RULING

02^nd June, 2020

1. MIVIRI, J: This is the ruling of the court on an application seeking leave under Order 16 Rule 3 of the National Court Rules to apply for Judicial review of the decision of the defendants not to engage the services of the plaintiff/applicant as a teacher at Della Sale Secondary School and to terminate his services in January 2019.
   
2. Leave to review must be satisfied on the balance of probabilities on four basic grounds. He must have standing in the matter. And must demonstrate an arguable case, including exhaustion of all internal process in the resolution of this matter. And finally, there is no delay to bring forth this matter. In other words, there is no inordinate delay demonstrated so as to entail leave in his favour.
   
3. He seeks to establish these on the material that he has filed, firstly the amended originating summons filed the 12^th March, 2020 the amended statement pursuant to Order 16 rule 16 (3) (2) (a) of the National Court Rules, Affidavit verifying filed under Order 16 rule 3 (2a), Notice for application for Judicial Review of 10^th December 2019 and the affidavit of the applicant dated 10^th December 2019, his affidavit in support also dated the same date, and undertaking as to damages also of the same date and the following in my view have been established prima facie.
   
4. The applicant is a registered teacher who was teaching at the subject school since 2010 and this year 2020 will be his tenth year serving that school. He is married with two young children aged 10 and 7 years old both attending school at the Wardstrip Demonstration School. Together all live at the school in an Institutional house provided for the time that he has been in that employ. He was reappointed in November 2018 to that school for the academic year 2019. He made a criminal complaint against the first defendant for making defamatory remarks in January 2019 against himself amongst other teachers together for being involved in theft of the first defendants motor vehicle. Plaintiff complaint to police leading to his arrest. Prima facie there is bad blood between and therefore without any evidence to the contrary would be a cause for concern in the case of the plaintiff leading. Against this backdrop the following facts come to give favour in the plaintiff’s plea for leave.
   
5. He has been told to vacate that house and to make way for new teachers there. It directly affected him in that he is no longer in the position he held in the school as a teacher and has been told to vacate the institutional house with his family since the 8^th of May 2020 by the Chair lady of the Board of the school by letter of that same date.
   
6. There is no undue delay in bringing forth this action for leave satisfying order 16 rule 4 of the National Court Rules. The proceedings were filed on the 10^th December 2019. Applicant is within time after the decision that was made affecting him. Because on the 21^st January 2019 he was refused resumption of his duties by the first defendant. Twice he wrote electing that his training to be deferred to later both in January 2020. Then he raised his complaint by letter of the 4^th February 2020 that he was displaced in the appointments made as a teacher there. And in response on the 14^th February 2020 the Teaching Services Commission wrote to the National Capital District Education Board instructing his reappointment with others to their respective positions he being at the subject school. To which the latter did not implement as directed and notice to that effect was made 7^th March 2020 by the Plaintiff to the Teaching Services Commission. Plaintiff followed through the education secretary and also the acting director legal of that department in both instances on 1^st August and 14^th October 2019. On the 10^th December 2019 he filed this cause of action seeking leave. Importantly prima facie no material has been shown to the contrary that there was a process followed to his demise in the position he held in that school.
   
7. In my view these relevant facts illuminated by the material filed establish on the balance of probabilities that all internal avenues reasonable have been seen to by the applicant to see out the matter internally to no avail. Hence his recourse here is without alarm and must on these facts be granted in his favour satisfying exhaustion within of all process there. In the same it cannot be held against him that he has delayed the cause of action for leave. On these facts in my view again he has demonstrated there is no inordinate unexplained delay. It cannot be held against him on the facts rather the contrary that he has satisfied on the balance required this ground. It is held out in his favour. He discharges on the required balance.
   
8. It leaves whether he has an arguable case prima facie. He challenges the process that there were no investigations nor was he given the right to be heard in his defence. The process under his employment were not followed by the Defendants. There was therefore prima facie error of law to derail him from his employment and engagement at the subject school for 10 years running this year since 2010. His position at the school was given without justice disclosure as to the reasons why he lost out on it. He demonstrated no ill to be displaced from it. Hence the actions that he derailed called for cause in law prima facie in a proper hearing of review of the decision by the first defendant a public official in a public school where the plaintiff/applicant was employed for 10 years. These rise that there is discharge of the required balance that he has an arguable case. And these is set by NTN Pty Ltd v The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70 which are in favour of the applicant by his facts here. Accordingly, he succeeds on this ground here.
   
9. The totality is that he has demonstrated on all grounds to the required balance, I am satisfied on the material that he has presented that he be accorded leave to apply for Judicial Review. I am fortified in my view by Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018).
   
10. As a consequence, he is directed to file and serve the Substantive Notice of motion and all other documents on all the parties effected. The matter is formally adjourned for directions hearing on Monday 8^th June 2020 at 9.30am.
    
11. Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff /Applicant

No appearance for the Defendant