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Polup v Garry [2020] PGNC 173; N8398 (30 June 2020)

N8398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 573 of 2019

JOHN POLUP
Plaintiff

V
JERRY GARRY MANAGING DIRECTOR OF MINERALS RESOURCES AUTHORITY
First Defendant

AND
MINERAL RESOURCES AUTHORITY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 30^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Notice of Motion Order 11 Rule 28 (1) (a) & (b) NCR – Section 155 (4) Constitution – Application extraction of paragraphs in affidavits by defendants– affidavits in support – scandalous irrelevant material – oppressive material – balance not discharged – application against overall interest of Justice – application denied – cost follow event.

Cases Cited

Kui Valley Business Incorporated v Mosley [2011] PGNC 278; N4548
Duma v Hriehwazi [2004] PGNC 237; N2526
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Limited v Pruaitch [2014] PGNC 288; N5949
Abiari v The State (No 1) [PNGLR 250

Counsel:

J. Unua, for Plaintiff
S. Haihavu, for Defendants

RULING

30^th June, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff/applicant’s application by notice of motion dated the 30^th June 2020 for orders pursuant to order 11 rule 28 (1) (a) & (b) of the National Court Rules, “the Rules” and the courts inherent jurisdiction under section 155 (4) of the Constitution of matters raised in paragraphs 18, 19, 20, 21, 22, 23 and 24 of the affidavit filed by the defendants of Edward Lasisi sworn 6^th March 2020 be struck out for being irrelevant and or oppressive.
   
2. The same is also sought in respect of matters raised in paragraphs 5, 6, 7 (i) (ii), 8, 9, 10, 11, 12, 13, 14, 15, and 16 also of the affidavit of this deponent of the 3^rd June 2020. In support he relies on Kui Valley Business Incorporated v Mosley [2011] PGNC 278; N4548 (18 August 2011) and Duma v Hriehwazi [2004] PGNC 237; N2526 (14 April 2004) that the affidavits relied must disclose fact and not arguments and or submissions or opinions. That is the case here and accordingly both affidavits filed of the deponent named be struck out in the particulars set out. Alternatively, the affidavits be struck off the record. Both cases do not support what a court can do in respect of affidavit material. It means that the affidavit relied must be viewed in its totality to get the argument advanced. And that I will do here.
   
3. The defendants have countered that the affidavit of deponent Edward Lasisi is relevant and material to the cause of action for judicial review. Both affidavits first of the 6^th March 2020 and the 3^rd June 2020 are not oppressive or irrelevant. Both are facts evidence on the merits because they set out the process undertaken to and the reason relating to the eventual demise in the employment of the plaintiff. They explain that he was in charge of money from the petty cash that went missing and so lead eventually to his termination after due process within. Including any reinstatement that he seeks these reason evidence covers that fact. Including the fact after the event that the position he occupied is now occupied by another. In all the circumstances they cover relevant and admissible evidence as opposed to scandalous or irrelevant as he contends. There is no merit in his motion it should be dismissed with cost to follow.
   
4. In my discretion exercised I have viewed in total both affidavits contested of the deponent Edward Lasisi one of the 6^th March 2020 and the second of the 1^st of June 2020 document number 24 of the 3^rd June 2020. I am not convinced on the balance of probabilities of the allegations made that both are scandalous and irrelevant materials pursued against the plaintiff. In both instances the evidence is by Edward Lasisi in his capacity as the Human Resource Manager and the Acting Executive Manager for the corporate Services Division and he is better placed to make the evidence that he alludes in from paragraph 1 to 18 of the affidavit dated the 1^st June 2020 filed 3^rd June 2020. It is a chronology of events as it unfolded at the hands of the plaintiff after his termination and why it was necessary to protect staff and property of the Authority with the engagement of police and accommodation of this witness and others away from the institutional accommodation because of violent behaviour exerted by the plaintiff. Staff who played important pertinent parts to the eventual termination following a process of law to deal with the plaintiff. That in my view is very relevant and material evidence necessary for the determination of this judicial review application, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). To my mind the court will be not doing its call by section 155 (4) of the Constitution and the Evidence Act section 34 to heed the application. As it stands this ground is without merit and must be dismissed in its entirety.
   
5. In similar terms is the lengthy and thick affidavit of the deponent of the 6^th March 2020 from paragraphs 1 to 25 with all annexure’s “A” to “F” attached to it. Again, it is an intricate and minute process that was administered to the eventual demise of the employment of the plaintiff. It is material as it enlightens the court as to the process that was taken by adherence to the rule of law and the Constitution with relevant principles of Judicial review in mind. It is very material and relevant evidence and to my mind the applicant has not discharged given to the required balance. It is not scandalous to describe first hand the process one followed as officer designated and responsible for the upkeep of all administration relating to personal to come with evidence first hand to how and why leading eventually to the termination of the employment of the plaintiff. Edward Lasisi in his capacity as the Human Resource Manager and the Acting Executive Manager for the corporate Services Division and he is better placed to firsthand give that account. And this he does in this affidavit in its entirety.
   
6. In both cases it is material evidence in the proceedings for Judicial review because it is the process of law that was followed by the defendants eventually to where his demise was laid to rest. That is what Judicial review is and reliance upon section 155 (4) of the Constitution to cure does not go any further because it is only facilitating the primary source the rules here Order 16 Rule 3 (8) where leave must be sought for Judicial review and granted given the facts of the present case in light of the views in Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) settle that the contention by the applicant do not hold out in his favour.
   
7. The aggregate of all this is that the balance of convenience does not stand in his favour to grant the relief to strike out excerpts of the evidence in both affidavits set out above. They are not scandalous or irrelevant material but are very pertinent cogent expedient and fundamental evidence that must be considered for the overall interest of Justice which does not favour grant of the motion: Abiari v The State (No 1) [1990] PNGLR 250 (15 June 1990).
   
8. It will be refused with costs to follow. He who seeks equity must come with clean hands. The applicant is not clean in the way he professes as illuminated by this evidence filed.
   
9. Motion is denied in all the terms sought. Plaintiff will pay the cost of the defendants if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

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

In house counsel Minerals Resources Authority: Lawyer for the Defendants