N8931
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 338 OF 2016

BETWEEN:
DR LAWRENCE KALINOE
Plaintiff

AND:
DR PHILIP KEREME IN HIS CAPACITY AS THE CHAIRMAN OF THE PUBLIC SERVICES COMMISSION
First Defendant

AND:
AQUILA SAMPSON
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 04th June, 09th July

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Dismissal of Proceedings – Order 12 Rule 40 (1) (a) (b) (c) NCR – No cause of action – Frivolous and vexatious proceedings  – Legal Tenant – Balance discharged – Leave granted for JR – cost follow event.

Cases Cited:
Vua v Mavu [2008] PGNC 20; N3294 
Manase v Opa [2013] PGNC 94; N5280 
 Liriope v Usurup [2009] PGNC 2; N3572 
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8 
Vaki v Baki [2014] PGNC 21; N5612
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47.
Counsel:

L. Kainde, for Plaintiff
J. Yapu, for Second Defendant

					RULING 
 09th July, 2021
1.	MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion for dismissal of the second respondent’s Notice of motion filed of the 23rd November 2020 with a Statement of Charge of Contempt against the Plaintiff of the same date pursuant to Order 12 Rule 40 (1) (a) (b) and (c) of the National Court Rules (NCR). 

2.	In short, he is seeking dismissal of the contempt proceedings on the basis that no reasonable cause of action is disclosed. Secondly the proceedings are frivolous and vexatious and lastly the proceedings are an abuse of the process of court.

3.	He also seeks that the second Respondent pay the costs of and incidental to the proceedings. And any other orders in the discretion of the Court.

4.	In so pursuing he relies on the affidavit of Beldon William Lawyer sworn 11th June 2021 filed same day. He deposes that he has personal knowledge of the facts that he deposes to in the affidavit. Importantly he deposes that the alleged contemnor has taken the necessary steps to comply with the orders of this Court of the 01st October 2020. On the 06th May 2021 they wrote to the second Respondent applicant in the contempt application conveying the decision of the department of Justice & Attorney General to give effect to the order of the Court of the 1st October 2020. That letter is annexure “A” of his affidavit. It specifically addresses the decision of the Department taken in favour of the second respondent which is in the following:

“(1)	You are to commence work or employment immediately at the Department as an unattached officer. (2)	Once onboard, the Department will offer you a position as Commissioner (Grade 17) with the Land Titles Commission (LTC) as the grade 17 position of LTC is the only available position at this point in time. (3) As soon as you settle on the position offered, the Department will pay you the monies payable to you in lost entitlements from the date of your termination in 2013 as Deputy State Solicitor up to the date of your voluntary resignation in 2018 as a Commissioner with the LTC and pay you the difference of the position of Deputy Solicitor General and Commissioner (LTC Grade 17) at the maximum salary point.

5.	The Department is assessing all your loss entitlements covering the above period, inclusive of the period you were dismissed from the Public Service and time it took for you to review your termination with the Public Service Commission. However, the Department’s effort at finalizing its assessment, prior to giving you this offer, has been hindered by a number of lockdown (shutdown and restriction of activity) in the department due to the upsurge in Covid19. The Department is confident that its Human Resources Division will finalize the assessment of your lost entitlements before the end of this month, or anytime sooner or earlier.

6.	Please revert to us with your response and attitude to this offer at your earliest convenient time so that we advise our client of your decision straightaway, in order for you to commence duty, without delay. Signed Wagambie Lawyers”

7.	It is copied to the Attorney General & Secretary for Justice and also the Solicitor General. It is dated 06th May 2021 written to Mr. Aquila Sampson. He acknowledges receipt by his endorsement and signature on the delivery acknowledgment sheet. The second annexure is “B” also letter from MS Wagambie Lawyers addressed to Mr Aquila Sampson dated the 14th May 2021. It is a follow up of the letter dated 06th May 2021. Which evidences the discussion of the 11th May 2021 with Mr Laias Kandi and offer by the Department of Justice and Attorney General for the total sum payable to Aquila Sampson in the lost salaries and entitlements pursuant to the Court Order of the 1st October 2020. “The total sum payable, as per assessments made by the Department of Justice & Attorney General, in accordance with the Court Order dated the 01st October 2020, is K 827, 186. 29. The net amount payable, after tax, is K 526, 859.39 as assessed and calculated as follow; And the calculations are set out in periods with the formulars leading to the figures above. “We trust you will appreciate from your audiences with out client the formula applied in the computation of the lost salaries and entitlements which accrued since the date of your termination from the Public Service and to the date you voluntarily resigned from the department. Kindly revert to us with your attitude to the above offer, as well as your response to our clients initial offer made in our letter dated 06th May 2021 at your earliest possible time.” It is signed by Wagambie Lawyers copied to the Attorney General and Secretary for Justice and so too the Solicitor General. 

8.	The order against of the 01st October 2020 is in the following terms:

(1)	The plaintiff’s application is dismissed.
(2)	The decision of the Public Services Commission made on 25th March 2016 is affirmed.
(3)	The Second respondent be reinstated to his previous substantive position of Deputy State Solicitor.
(4)	If the position of Deputy State Solicitor is already occupied by another officer, then the Second Respondent be given a position equivalent to the Deputy State Solicitor.
(5)	The Second Respondent’s reinstatement to his previous substantive position serves to restore his service in the Public Service which may have been lost as a result of his termination.
(6)	The Second Respondent’s record of service in the Public Service are to be corrected appropriately forthwith.
(7)	The Second Respondent’s lost salaries, entitlements and other emoluments be reimbursed to him starting from the date these salaries, entitlements and emoluments were lost or ceased up to this day, i.e., the date of Judgment, 1st October 2020.
(8)	As to costs, the plaintiff was a servant of the State and therefore his actions were on behalf of the State although the State was joined as the third Respondent. The Plaintiff is now deceased. In the circumstances, it is only fair that the Plaintiff’s cost be paid by the State.
(9)	The Second Respondent’s costs be also paid by the State, because although he may have been regarded as a nominal defendant, or respondent, he is directly affected by this application.
(10)	The First Respondent’s costs be also paid by the State.”

9.	As against this is the evidence of Aquila Sampson 02nd June 2021 affidavit filed 03rd June 2021, deposing that he has not been filled into a position of grade 19 as employed with the State Solicitor.  But that pursuant to an offer by then Secretary Dr. Lawrence Kalinoe he was offered employment as Acting Commissioner Land Titles Commission. He sent an expression of interest that culminated in two Short Term Contracts (STC) that he held and served until July 2018. But whilst serving he noticed that he had no formal STC. Secondly the PSC decision in his favour was outstanding to reinstate as Deputy State Solicitor and there were vacancies at the material time within the State Solicitors and office of the Solicitor General. Thirdly he was paid whilst still maintaining his normal payroll and employee file number used for his original position as deputy State Solicitor International Law division. He raised this by Minute dated 23rd October 2017 annexure “C” to his affidavit.

10.	On 2nd July 2018 he wrote a minute to the Secretary Lawrence Kalinoe that he was appointed by the National Executive Council as Provincial Administrator Western Province. And in paragraph 3 of this letter, he formally expressed, “I formally give notice of severance of the STC” which engaged him with the department. It was resignation as to the STC of Acting Commission employed by Secretary Kalinoe at the NLC. That is annexure “D” to his affidavit.

11.	He swears that to date the Court Orders have not been given effect to or implemented, because he continues to remain without being reinstated to his substantive position as Deputy State Solicitor International Law Division Office of the State Solicitor, or equivalent position in the Department of Justice and Attorney General within the terms of the Court Order of the 1st October 2020. And this is despite there being from 01st October 2020 to 26th November 2020 six vacant grade 19 positions including at the office of the State Solicitor and the office of the Solicitor General advertised in an internal advertisement authorized by Dr. Erick Kwa. And annexure “E” is that advertisement number 1/2020. “I remain out of employment against Orders of Court and thus, without being put back on payroll since 01st October 2020 dated of Court Order. I have not being paid all of my salaries, entitlements and emoluments backdated to date of my termination per the said Court Orders to the date of the said court orders i.e., 01 October 2020. This is the eight (8) year running.” This is since the PSC decision of 25th March 2016 reinstating him to his contract position as Deputy State Solicitor Grade 19 International Law Division Office of the State Solicitor. Which decision was served on the Office of the Secretary Department of Justice and Attorney General on 16th June 2016 annexure “C” to his affidavit. And this annexure draws out the non-implementation of PSC decision and request back dating of allowances entitlements reimbursement of all backdated to date of termination of 27th August 2013.

12.	The Notice of motion for the  contempt is in the following; “ Pursuant to Order 14 Rule 42 (1) of the National Court Rules, the Contemnor be adjudged guilty of Contempt of Court for breach of Court order of 1st October 2020, ordering reinstatement of Mr. Aquila Sampson to the position of Deputy State Solicitor, without loss of Salaries and entitlements and be sentenced to imprisonment; Costs of the proceedings in favour of the Second defendant.”

13.	Order 14 rule 42 (1) is in the following terms; “Where contempt is committed in connection with proceedings in the Court, an application for punishment for contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.

14.	The allegation in the Statement of Charge of Contempt against the Plaintiff filed of the 23rd November 2020 names the alleged Contemnor as the incumbent Secretary for Justice and that the Court order dated 01st October 2020 the subject of the contempt proceedings is directed at him. It names out the parties to either side of the dispute. It sets out the background facts which is evidence more than the elements of a charge of contempt. It is also setting out the evidence of the length of service of the order. Here what is contempt what constitutes contempt and what are the particulars deriving from the rules have been set out more than adequately in the Statement of Charge pursuant to Order 14 Rule 43 of the National Court Rules filed of the 23rd November 2020. These are clear concise and elaborate to define what is contempt and there is no misunderstanding or misapprehension of what the specific act of contempt is. Because it is within the elements called by Order 14 rule 42 (1) and quells the contention raised by the applicant of the motion to dismiss. There is no inadequacy of the Statement of Charge levelled.

15.	Read together with the affidavit of second respondent Aquila Sampson of the 23rd November 2020 filed that same day, it is clear that the termination was successfully appealed to the PSC decision which is annexure “A” there and from which emanated judicial review proceedings by the Secretary and Attorney General now current. He passed on and the incumbent is Dr. Erik Kwa. On the 01st October 2020 the Court after trial ordered for my reinstatement without loss of salaries and entitlements, annexure “B” is that sealed copy of the Court Order. It was issued inter parte. The contemnor’s Lawyers were in attendance and copies of the court orders were served there through my lawyers on the Secretary or personal assistant at his office 10th Floor Sir Buri Kidu haus. The Service details form were not returned to me or my lawyers. “On the 17th November 2020, a Thomas Barry, Clerk from Napu & Company lawyers, served a copy in person on the Contemnor, at Gordons Brian Bell Home Centre, Coffee Shop. Despite all these, the Contemnor is ignoring the Court Orders.” This is the excerpt from the affidavit of Aquila Sampson of the 11th December 2020 filed the 16th December 2020 as to witnessing together with his lawyer Mr John Napu service of the Orders upon Dr Eric Kwa after they had handed him to effect service there. This is confirmed by the evidence of Thomas Barry by his affidavit dated 23rd February 2021, 29th April 2021, 19th May 2021, 28th of May 2021 in various forewarning letter served on this subject leading up.

16.	And which is confirmed in all material aspects by the affidavit of Dr. Eric Kwa of the 14th December 2020 filed 15th December 2020. He deposes, “I am aware of the terms of the Court Order dated the 01st October 2020. Upon becoming aware of the Court Orders dated 01st October 2020, I have, without delay, instructed responsible officers in the Department to undertake the necessary steps in implementing and or giving effect to the court Orders. “The  preliminary information I have amongst others are as follows; 

(1)	The second respondent was terminated on 27th August 2013.
(2)	Shortly after his termination and, when the judicial review proceedings were pending, the second respondent reached an agreement with the department that he be re-employed in the department to a position equivalent to deputy State Solicitor on the basis that he discontinued the judicial review proceedings.” 

17.	And He confirms reemployment of the second respondent until resignation June 2018 to take up post of Administrator of Western Province. And attests that the position of Deputy State Solicitor is not vacant it is permanently occupied. And 
that he must get information from Department of Personal Management, Land titles Commission, and the Human Resources Division of the Department of Justice and Attorney General to ascertain the exact status of the Second respondent’s employment History and records, including details of payment made to him during that period he was in employment following and all other payments made to him at the time of his resignation in June 2018. It is a task that needs time to be able to complete adequately and fully. The contempt application is premature.

18.	What is clear from all these evidence is that the motion by the plaintiff has no basis in the evidence to satisfy the balance that this is a cause of action that is not disclosed. Rather the contrary is evident there is a clear cause of action of a court order that is outstanding since 01st October 2020, that has not been heeded to despite service and from the origin of the proceedings from the PSC decision of the 25th March 2016 reinstating him to his contract position as Deputy State Solicitor Grade 19 International Law Division, Office of the State Solicitor. it would be now almost 6 years since for the wheels of Justice to be realized materially for the second respondent. Court Action in contempt to enforce orders of the Court should not be the case against law offices of the State. They should be the first to adhere and implement not despise and argue or counter implementation unnecessarily or inordinately. There is a genuine cause of action that must go the length for the wheel of Justice to be realized for the second respondent.

19.	This is not a frivolous or vexatious action and cannot be an abuse of court process when enforcement of court orders is sought here by the evidence set out above. It leaves a lot to be desired of the plaintiff in the way it has stood by, without adequate genuine heed and dispensation of the orders made. Paper adherence is no real adherence of court orders. Action in substance both in compliance and effect is what matters do not voice projections or echo of. Especially of the Department of Justice and Attorney General the very Department that should be an example to the law and law enforcing authorities be it in public or private. Here it leaves a lot to be desired from the evidence set out above compounded by the very case authorities that have been relied of Vua v Mavu [2008] PGNC 20; N3294 (26 March 2008) in all its facts and circumstances adds salt to the wound here for the applicant rather than sooth his cause. It is inapplicable because the facts show the other end which is the portrait of the fact  and circumstances here.

20.	The same is echoed by Manase v Opa [2013] PGNC 94; N5280 (31 July 2013) and by Liriope v Usurup [2009] PGNC 2; N3572 (27 January 2009). These are the converse of the facts circumstances here, and therefore are not applicable given the light of the evidence set out above. The balance of which are not tilted in favour of the applicant plaintiff, but for the second respondent that indeed in law, there lies a cogent credible cause of action that must see out the full force of the law due it. And it leaves a lot to be desired of the Department who is supposed to be seen as the role model in all matters relating to the rule of law, its application enforcement abidance. And given it begs whether the argument of the plaintiff and his reliance on Wabia v BP Exploration Operating Co Ltd [1998] PGNC 177; [1998] PNGLR 8 (26 March 1998) does indeed hold water for his cause, because this is not a case, “not worth serious attention or manifestly futile” but given all set out above he is obligated to discharge what is called for by this Court since the 01st October 2020 outstanding on his balance sheet if all he can master is what is set out above only on paper a year ago from today, it will be serious hurdle for his call looming. 

21.	It is a very clear order unambiguous serving remaining to be carried out and for which complaint has now being filed by the second respondent. He is genuinely aggrieved with a cause of action not a frivolous or vexatious claim in the light of Wabia (supra). This is a very serious case likened to Vaki v Baki [2014] PGNC 21; N5612 (13 June 2014) and no light matter if a commissioner of police was imprisoned. The same law is applicable without fear or favour and is now at the liberty of the second respondent to pursue given all set out above. In the aggregate this is a genuine cause of action not frivolous nor vexatious and the same cannot be said of the applicant plaintiff’s application. 

22.	Accordingly, his application is dismissed as being without merit with costs to the second respondent following the event on an indemnity basis given all set out above. This was an unnecessary application it ought not to have been run given the material all set out above. It drew the second respondent to endure account unnecessary expenditure to his accounts for which the Plaintiff must make good on an indemnity basis. Cost is discretionary what is set out above clearly portray that the second respondent was unnecessarily drawn given the clear position set out above. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant, Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:
“The award of costs on an indemnity basis is discretionary.   An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order.  The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”
23.	 Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted and congested actions must be avoided, but there ought to be a sense of balance drawn so that equity meets equity not without. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done piecemeal, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice. The road to justice is with fairness and equity not without. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. or is this a case where there is blameworthiness and therefore indemnity follows in costs. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.

24.	The formal orders of the court are; 

(1)	The Notice of Motion of the plaintiff is dismissed.
(2)	Costs will be on indemnity basis to follow the event. 
Orders Accordingly.
__________________________________________________________________
MS Wagambie Lawyers           : Lawyer for the Plaintiff/Applicant
Napu & Company Lawyers      : Lawyer for Second Respondent
Office of the Solicitor General : Lawyer for the Third Respondent