N8319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) No. 29 OF 2017

ABLERT SALEPA MONAVE
First Plaintiff

AND
DR. PETER NAUGA in his capacity
as the AUDITOR GENERAL
Second Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:  Tamate, J
2018:  28th May
2020:	19th May

CONSTITUTIONAL LAW - Public Services Commission – review of personnel matters in the Public Service pursuant to section 18(3)d(ii)of Public Service (Management) Act 1994 – whether decision to re-instate a terminated officer binding on Auditor General.

PRACTICE AND PROCECURE - Application for Default Judgment pursuant to Order 12 Rule 25(b) of National Court Rules - whether defendants at default for failing to file defence – Can default judgment be entered in the exercise of the Court’s discretion?

Facts

The plaintiff instituted his proceedings through filing of the Writ of Summons against the first and second defendants claiming in his Statement of Claim among others; for breach of his right to freedom of employment under Section 48 of the Constitution and breach of his statutory right pursuant to Section 18(6)(b) of the Public Services (Management) Act, 2014. 

Held:

(1)	First defendant was in breach of failing to comply with the review decision of Public Service Commission to reinstate plaintiff to his substantive position.

(2)  	Default judgment is therefore granted against the defendants with 
        	damages to be assessed.

(3)  	 Plaintiff to be reinstated without loss of salaries and entitlements 
back dated to date of termination of employment to the date of the
Public Services Commission’s (PSC) decision to re instate him which is 22nd April 2014.

Cases Cited:

Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services 
Commission and the State (2005) N2850
Christine Gawi v Public Services Commission & Mandus Wukawa
(2014) N5473
Henry Bailasi v Rigo Lua (2013) N5145-
Paul Dopsie v Jerry Tetaga, Chairman Public Services Commission (2009) N3720.
Lambu v Torato[2008] PGSC 34; SC 953of 
Mission Asiki v Manasupe Zurenuoc (2005) SC 797
National Executive Council v Williams [2005] PGSC 5, SC819.
Paul Dopsie v Jerry Tetaga, Chairman Public Services Commission 
(2009) N3722
Thomas Holland, Peter Siperau & Gabriel Koh v Philip Nauga, 
Auditor’s General Office & the State (2015) N6116
Urban Giru v Luke Muta[2005] PGNC 83

Counsel:

T. Jugari, for the Plaintiff
J. Monei, for the Defendants

RULING ON NOTICE OF MOTION

18th March, 2020
1. 	TAMATE, J: This is an application by plaintiff by way of Notice of Motion filed on 4 May, 2018 seeking default judgment against the defendant for failing to file their defence within the required period of time within the National Court Rules and the Claims By And Against the State Act, 1996 (CBASA).
2. 	The Plaintiff/applicant is seeking an order for default judgment pursuant to Order 12 Rule 32(1) of the National Court Rules and for damages to be assessed as per paragraph 14 of his Statement of Claim.
3.	In support if his application the Plaintiff has relied on the following documents:
•	Writ of summons (WS) and SOC filed on 6 December 2017
•	2 x Affidavits of service by Steven Mondo filed on 12 December 2017 (Doc # 2 and 3)
•	Affidavit of search by Steven Mondo filed on 05 April 2018
•	Affidavit of service by John Palma filed on 3 May 2018
•	Affidavit in support by John Palma filed on 3 May 2018
•	Affidavit of service by John Palma filed on 10 May 2018
•	Affidavit of Betty Donny filed on 28 May 2018
•	Affidavit of John Napu filed on 28 May 2018
•	Affidavit of Albert Salepa Monave filed on 28 May 2018
Background Facts
4.	Plaintiff was employed as Deputy Auditor General, Corporate Services prior to his termination on disciplinary charges on 29 August 2013 by the first defendant. He was terminated on allegations of breach of discipline pursuant to his contract of employment under the Public Services (Management) Act, 1995.
5.	He applied to the Public Services Commission for a review of the decision by first defendant to terminate him from the Public Service under Section 18(1)(2)(3)(4) and (5) of the Public Services (Management) Act, 1995.
6.	Upon the review been heard the Public Services Commission upheld plaintiff’s appeal and ordered his reinstatement without loss of salaries and entitlements backdated to the date of his unlawful termination through a decision dated 22 April 2014.
7.	Since the decision of the Public Services Commission for plaintiff to be reinstated the first defendant has failed to comply with that decision. That is the basis why plaintiff has instituted the proceedings in the Human Rights Court.
8.	Prior to that the Plaintiff filed for judicial review at the National Court upon failure by first defendant to re-instate him per the decision by PSC.
9.	Plaintiff applied for leave to challenge the refusal by first defendant to act on PSC’s decision to re-instate him through JR but was refused by the National Court for want of form and pleadings been defective.  He took the matter to the Supreme Court, but it was refused on the same basis.
10.	The applicant has come to this Human Rights Court by way of an action seeking enforcement under Section 57 of the Constitution of his constitutional right under Section 48 of the Constitution commenced by a Writ of Summons and a Statement of Claim which was filed on 06 December 2017. His application for default judgment is supported by Writ of Summons and affidavits of the plaintiff and others referred above in paragraph 3.
11.	The following issues need to be considered:
(i)	Whether plaintiff has satisfied the requirements for applying for default judgment?
(ii)	Is the application proper before this Court?
(iii)	Has the plaintiff disclosed a reasonable cause of action?
(iv)	How can the Court exercise its discretion?
(v)	Are the defendants in default for not filing defence within the required period per National Court Rules?
Law
12.	Before answering the above one must consider the law and case laws and the evidence that have been submitted in support of the application.
•	Order 12 Rule 25 of the National Court Rules:  Default
A defendant shall be in default for the purpose of this Division –
(a)	where the originating process bears a note under Order 4 
Rule 9, the time for him to comply has expired but he has not
 given the notice; or 
(b)	where he is required to file a defence and the time for filing 
          his defence has expired but he has not filed his defence;
(c)	where he required under Order 8 Rule 24 to verify his defence 
          and the time for him to verify his defence in accordance with 
          that Rule has expired but he has not so verified his defence.
•	Section 18 of the Public Services (Management) Act, 1995:
“REVIEW OF PERSONNEL MATTERS CONNECTED WITH 
THE NATIONAL PUBLIC SERVICE

(1)  The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.
(2) A complaint referred to in Subsection (1) shall be –
(a) in writing; and
(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the compliant; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant.
(3) The procedure to be followed in a review under this section is 
as follows: –
(a) the Commission shall summons –
(i) the Departmental Head of the Department of Personnel Management or his delegate; and
(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and
(iii) the officer making the compliant, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;
(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;
(c) the Commission shall –
(i) consider all the facts relative to the matter, including –
(A) the views of the persons summonsed under Paragraph (a); and
(B) the personnel management policies of the National Public 
Service; and
(C) the cost implications of any decision which it may make; and
(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and 
(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);
(d) the decision of the Commission under Paragraph (c)(ii) –
(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and
(ii) shall become binding after a period of 30 days from the date of the decision.
•	Section 41 of the Constitution:
“41. Proscribed acts.
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements 
of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably 
justifiable in a democratic society having a proper regard for the 
rights and dignity of mankind is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

•	Section 48 of the Constitution: Freedom of employment.
 
(1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.
(2) Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.
 
Evidence by Plaintiff
13.	Plaintiff has relied on various affidavits referred to above in support of his application including his Writ of Summons and Statement of Claim while claiming for enforcement under Section 57 of the Constitution for breaches of his constitutional rights pursuant to Sections 41 and 48 of the Constitution.
14.	The Writ of Summons was duly served on the defendants on 11 December 2017. 
15.	The Plaintiff is applying for default judgment on the basis that defendants have defaulted in filing their defences with the time limits provided for under the National Court Rules and Claims By and Against the State Act 1996.
16.	Evidence shows that the writ was served on the defendants on 11 December 2017 thus the commencement of pleadings began on 12 December 2017. Since the service was done about a week prior to the commencement of Court vacation period which is 20 December 2017 one has to consider the timing issue for filing of notice of intention to defend (NOID) or defence according to the National Court Rules and the Claims By and Against the State Act 1996 (CBASA).
	 National Court Rules (NCR)
	Order 2 Rule 3: Vacation:
“(1)	There shall be a vacation in each year from 20 December to the following 31 January, both inclusive.
(2)	… .
(3)	The time of the vacation shall be reckoned in the times appointed or allowed by these Rules for filing, delivering or amending any pleading unless so directed by a Judge nor shall a pleading be delivered or amended, nor judgment be entered in default, unless under the direction of a Judge”.
  Claims By and Against the State Act, 1996 (CBASA)	
		Section 9: FILING OF DEFENCE BY THIS STATE.
Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint (as the case may be) shall be–
(a) in a claim commenced by writ in the National Court–
(i) where the statement of claim is endorsed on the writ–before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or
(ii) where the statement of claim is not endorsed on the writ–before the expiry of 60 days from the date of service of the statement of claim; or
(b) where a cross-claim is made against the State–before the expiry of 30 days from the date of service of the cross-claim; or
(c) in an application under Section 57 of the Constitution–before the expiry of 90 days from the date of service of the application; or
(d) in a claim made in the District Court–before the expiry of 90 days from the date of service of the summons,
or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows.
17.	The main issue before this Court is the time required for defendants to file notice of intention to defend and defence. In doing so since the State is a party to this proceeding section 9 of the Claims by and Against the State Act, 1996 applies.
18.	The rules are clear that the Court Vacation period is not to be reckoned for filing of documents including NOITD or defence. Therefore, for any ordinary defendants other than the State the period between 20 December 2017 and 31 January 2018 will not be counted when considering the time for filing of the NOITD or defence by the defendants.
19.	However, the CBASA provides a statutory period of defence that must be complied with and this period should not be extended by reason of the court vacation as stated in the NCR. This Act gives a statutory period in which a defence is to be filed. In total the period given is 90 days unless the Court gives an extension upon reasonable cause been shown. Public Holiday dates are not to be included in this 90-day period.
20.	Calculation of time for filing of Notice of Intention to Defend or Defence by defendants is determined by the date the Writ of Summons was served by plaintiff including the vacation period.
21.	As per the CBASA the State is required to file its defence within the period of 90 days from the date the WS was served on the State. It is required by statute to file defence within that period regardless of the vacation period.
22.	The Plaintiff has submitted that the defendants had failed to file their defence within the required period stated by CBASA. Therefore, the defendants have defaulted as there is no defence on file. 
Response by Defendants
23.	Mr. Monei for the defendants had submitted that the notice of motion should be dismissed for not disclosing a reasonable cause of action. He also submitted that the State was still within time to file its defence considering the court vacation period between the 20th of December, 2017 to the 31st of January 2018. He further submitted that the application was pre-mature and should be dismissed.
Does the Plaintiff have a reasonable cause of action?
24.	Facts and evidence show that he was terminated by the first defendant on disciplinary charges against his contract of employment. However, when Plaintiff sought a review with the PSC his appeal was successful, and PSC ruled for his re instatement to his substantive position without loss of salary and entitlement. 
25.	This was a decision made under section 18 of Public Service (Management) Act. There is no evidence to show that the Defendants appealed the decision of the PSC nor did they file for a judicial review of the decision to the National Court.
26.	The first defendant did not comply with the PSC decision to reinstate the Plaintiff to his original position. He therefore had filed this proceeding in the HR court for breach of his rights under sections 41 and 48 on the Constitution seeking damages pursuant to Section 57 of the Constitution.
27.	Section 18 (6) of Public Service (Management) (Amendment) Act provides:
	- The decision of the Commission under Subsection (5)(b)-
	(a) shall be made within 90 days from the date of receipt by the 
                Commission of the complaint, but this period may be extended 
                by the Commission where the reason for the delay is beyond the 
                control of the Commission; and
	(b) is binding after a period of 30 days from the date of the decision.
28.	Prior to this amendment the decisions of the PSC were expressed as recommendations (Mission Asiki v Manasupe Zurenuoc (2005) SC797) to the body or authority whose decision was reviewed and declared null and void. Since the amendment such decisions became binding after 30 days if no appeal or judicial review was sought in the National Court. 
29.	The above amendment came into operation on 01st June 2002 and was reinforced by the Constitutional Amendment No. 25, State Services, which commenced operation on 11th August, 2003 (Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and the State (2005) N2850). 
30.	In the present case the decision was not appealed or reviewed by the National Court. As a result of that and by virtue of Section 18(3) (d)(ii) of the Public Services (Management) Act 1995 the decision became binding on the first defendant and the State. I adopt the finding and discussion by his honour Cannings, J in the case of Thomas Holland, Peter Siperau & Gabriel Koh v Philip Nauga, Auditor’s General Office & the State (2015) N6116 where it was held: 
“The binding status of a decision of the Public Service Commission has the following consequences:
(a)	it is not a mere recommendation:
(b)	the decision must be immediately implemented by the person 
          to whom it is directed;
(c)	the decision is similar to a Court order, in that it is the duty  of the person to whom it is directed to comply with it, even if it is genuinely thought that the decision is wrongin law and fact or made without jurisdiction, unless and until the decision is stayed or set aside or otherwise rendered ineffective by an order of a Court or some other body authorized by law to do so.”
31.	His honour in that case referred to few cases where the PSC decisions were stayed by the National Court and by successful judicial review those decisions were quashed. Such cases include: Paul Dopsie v Jerry Tetaga, Chairman Public Services Commission (2009) N3722, Henry Bailasi v Rigo Lua (2013) N5145. However, those cases where the original decision maker had been unsuccessful and the Commission’s decision been affirmed by the Court include: Paul Dopsie v Jerry Tetaga, Chairman Public Services Commission (2009) N3720 and Christine Gawi v Public Services Commission & Mandus Wukawa (2014) N5473.
32.	Has the Plaintiff satisfied the pre-conditions for entering ‘default judgement’ discussed in the case of Urban Giru v Luke Muta [2005] PGNC 83 where the following check list are to be satisfied:
(a)	Whether the application is in proper form?
	Yes, the application is in proper form
(b)	Whether the NOM and affidavits in support were served on 
the defendants? 
	Yes, there is evidence that these documents were served on the defendants as per the affidavit of Service by John Palma filed on 20 May 2018.
(c)	Whether the defendants have defaulted per National Court 
Rules: Order 12 Rule 25(a) (default); Order 04 Rule 9 (NOID); Order 4 Rule 11(1)(b)(i) (time for giving NOID)?
	The State did file a NOID to defend on 12thFebruary 2018 which is within time however, it failed to file its defence within the 90 days period as per Section 9 of CBASA.
(d)	Whether Plaintiff has served or provided a forewarning 
letter? 
The Plaintiff had served a forewarning letter on 11thApril 2018 as per annexure ‘F’ of Affidavit of John Palma filed on 4 May 2018. 
(e)	Whether there is proof of service of the writ?
Yes, the writ was served on the Defendants by a Steven Mondo on 11th of December 2017 as per the affidavits of service sworn on 11thand filed on 12thDecember 2017.
(f)	Whether there is proof of default?
Yes, there is proof of default by the defendants per the 
affidavit of search by a Steven Mondo filed on 05th of April 2018.
Considerations
33.	There is no dispute that the Plaintiff has satisfied the above preconditions. There is also no issue with the Section 5 notice. The only issue is: “whether this case is ripe for default judgment to be entered in the exercise of the Court’s discretion?”
34.	The law is also clear that despite there been default on the part of the  defendant and all preconditions been satisfied the Court still has the discretion to refuse the entry of default judgment.
35.	In the case of Urban Giru v Luke Muta [2005] PGNC 83 the Court held that even if the pre conditions are satisfied the Court can still refuse entering of default judgment in the exercise of its discretion. It further held that default judgment is not as of right but is a matter for the discretion of the court. 
36.	The discretion must be exercised judicially. The trial judge must be satisfied that there are convincing or cogent reasons not to exercise his discretion in favour of granting the default judgment: National Executive Council v Williams [2005] PGSC 5, SC819.
37.	In exercising its discretion, the Court must take into account various considerations such as those discussed in the case of Lambu v Torato [2008] PGSC 34; SC 953 and other PNG cases.
38.	In the present case I have considered the circumstances of the case and the evidence that have been presented including the submissions by the parties.
39.	I am satisfied that the applicant has satisfied the preconditions for the entry of default judgement. I am also satisfied that he has a valid and a reasonable cause of action as per Section 18(6) of the Public Service (Management) Act. However, can default judgment be entered in the exercise of Court’s discretion?
40.	The Plaintiff  seeks for reliefs in paragraph 14 of his Statement of Claim to be granted one of which is his re-instatement to his substantive position as Deputy Auditor General – Corporate Services without loss of salary and entitlements from the date of termination to the date of settlement.
41.	I note that the Plaintiff had applied for JR in trying to challenge or review the actions of first defendant in not complying with the PSC’s decision to reinstate him.
42. 	He should have filed the current application earlier similar to the case of Thomas Holland and 2 others v Philip Nauga and the State (supra)
43. 	I am of the view that any loss salaries or entitlements should be backdated to the date of the Plaintiff’s termination to the date of the decision of his reinstatement by the Public Services Commission (PSC) which is the 22nd April 2014.
44.	Plaintiff filed his initial WS (HR) No. 249/2016 proceedings in 2016 under the same cause of action and the same party names but withdrew it as a result of non-service of section 5 Notice under CBASA on the State. Then on 06th December 2017 he filed this current WS (HR) proceedings (after been granted an extension to serve Section 5 notice) and served it on the Defendants on 12th December 2017.
Exercise of Discretion
45.	In light of the discussions above and the fact that defendants had defaulted to file their defence I am of the view that this is a case where the default judgment should be entered in the exercise of discretion.
Orders of the Court
46.	The Court therefore makes the following orders:	
(1)	Pursuant to Order 12 Rule 25(b) of the National Court Rules default judgment is hereby entered against the defendants.
(2)	Damages to be assessed at a separate trial. 
(3)	Consequential to the entry of default judgment Plaintiff shall be re-instated to his substantive position forthwith without loss of salaries and entitlement for the period backdated to the date of his termination to the date of his re-instatement per the decision of the Public Service Commission dated 22 April, 2014.
(4)	Costs in favour of the Plaintiff.
(5)	Time for entry of this order is abridged to the date of 
settlement by the Registrar which shall take place forthwith.
Ruling accordingly.
___________________________________________________________
Napu Lawyers:	Lawyer for the Plaintiff
Solicitor General:	Lawyer for Defendants