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Pia v Danton [2020] PGNC 39; N8219 (3 March 2020)

N8219

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 791 of 2019

CHRIS PIA
Applicant

V
DR ALOIS DANTON, Acting Commissioner General of Internal Revenue Commission
First Respondent

And
INTERNAL REVENUE COMMISSION
Second Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Miviri J
2020: 03^rd March

PRACTISE & PROCEEDURE – Judicial Review & appeals – Application for Leave – National Court Rules Order 16 Rules 3, 4, 5 & 6 – Termination –Sufficient interest – No delay – Exhaustion of administrative remedies – Arguable case not made out – four grounds leave – leave refused – cost follow event.

Cases Cited:

Asiki v Zurenuoc , Provincial Administrator [2005] PGSC 27; SC797

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:

J. Unua, for Plaintiff
No appearance Respondents

RULING

03^rd March, 2020

1. MIVIRI, J: This is the Ruling on the originating summons of the applicant seeking leave pursuant to Order 16 rules 3 (1), and (2) of the National Court Rules “the Rules” and section 155 (4) of the Constitution for Judicial review against the decision of the first respondent. On the 22^nd November 2018 the first respondent terminated his employment with the second respondent.
   
2. By affidavit dated the 12^th November 2019, one Gabriel Kapi Land search officer of the office of the Public Solicitor served all relevant documents to this application, the originating summons, a notice of motion, affidavit of the applicant Chris Pia, affidavit verifying facts, notice of application for Judicial Review, Statement in support and a letter dated the 12^th November 2019 of that fact. It is determined that this material is sufficient for the applicant to proceed ex parte on his leave application.
   
3. Material excerpts of the Statement of Facts pursuant to Order 16 Rule 3 (2) (a) of the Rules verified by his affidavit sworn 29^th October 2019 are that he is directly affected by the decision of the respondents. He was employed as a debt recovery officer by the second respondent initially from 8^th May 2017 until the 22^nd November 2018 when he was served notice of punishment. This ground for leave is satisfied.
   
4. On or around 31^st January 2018, He approached a fellow employee of the Human resource division one Ray Asi to assist him with a loan of between K 1500 to K 2000 from a company Moni Plus. He signed a form to this effect and left it with Ray Asi. On the 7^th February 2019 Ray Asi got his bank card to access his funds because his was not working. The applicant gave it on the understanding that he would be paid K200 for its use by Ray Asi. The next day 8^th February 2019 He returned the applicant’s bank card advising that his loan was deposited within. On 14^th May 2019 he received a letter of demand from a company National Finance Limited for a loan of K13, 500.00. On the 27^th July 2018 Pacific Legal Group lawyers for National Finance Limited demanded for the repayment of the loan. He was directed to his bank statement and confirmed the loan for the period May 2018. And that K 11, 701.63 was withdrawn between the 7^th and the 8^th February 2019. He contended that he had not signed nor did he enter into a loan agreement with that company. What was done was that his signature was forged. He never got that money as contended by National Finance Limited.
   
5. He relayed all to the Fraud investigations Manager of the respondents who advised that it would be forwarded to the Legal branch. On the 24^th October 2018 he received notice of the charge. He was required to reply within 7 days upon receipt. There were three charges from the administrative orders of the respondents. He replied to the charges on the 29^th October 2019 stating that he was not responsible for the allegation’s particulars set out above.
   
6. On 22^nd November 2018 he was served the notice of punishment. He states that respondent failed to properly consider his version of facts prior to handing down the decision to terminate his employment. This is not the same as not being given an opportunity to rebut what is alleged against. The decision maker is entitled to consider what is brought there as he sees fit. It is not analogous to the National Court proceedings brought on appeal to the Supreme Court where the material at first instance is looked at on appeal. That is not the case here.
   
7. Rather this is internal process within the respondents in the determination of this matter at first instance that has followed firstly with the laying of an allegation that has been investigated and charges have followed which have been served the applicant. From which he has been invited to reply and it has been considered and determination made internally there and then with the punishment delivered of termination. Prima facie there is no arguable case demonstrated given.
   
8. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc , Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
9. His own affidavit confirms explaining that his version was before the decision maker but preference was given there to eventually terminate him as a result. There was ample consideration in accordance with Wednesbury principles and there was no denial of Natural justice so as to vitiate the process to warrant leave to be granted. Particularly set out in his own affidavit as, “Pursuant to section 26 (h) of the CAS on the 7^th day of February 2018, you conspired with one Ray Asi and others with the intention to defraud submitted to the National Finance Limited a personal loan application with false, forged and uttered supporting documents fraudulently obtained from the internal Revenue Commission. A total of K13, 500.00 as a result of this loan application, was approved against your name, deposited into your account bearing the account number 1010434429 held at the bank of South Pacific, withdrawn and applied to your use and the use of Ray Asi and others.
   
10. Pursuant to section 26 (i) your actions with Ray Asi and others in fraudulently obtaining supporting documents from the Internal Revenue Commission then uttering and manipulating those documents and subsequently defrauding the said National Finance Limited amounts to disgraceful and improper conduct.
    
11. Pursuant to section 26 (j) you violated the oath you took on the 6^th January 2017 when you commenced employment with the Internal Revenue Commission, to well and truly serve the Independent State of Papua New Guinea.
    
12. This is in summary the fundamentals that were before the decision maker and in my view do not make out an arguable case to sustain that leave be granted. The annexures to his affidavit from annexures ‘A’ to the last annexure ‘E’ show that a process was followed. On the balance it does not warrant leave to be given. Internal Process was followed and exhausted he has come to the court as that is where the process leads to. There has been no delay in bringing the matter. These are satisfied for leave.
    
13. But the application fails no arguable case has been made out for leave on the required balance and will fail on that front. All grounds must be made out only three have been made out one has not and the totality is that this application fails.
    
14. Leave is denied and dismissed with cost to follow the event.

Orders Accordingly.

__________________________________________________________________

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