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Raga v Foyap [2021] PGNC 216; N8930 (6 July 2021)

N8930

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 813 OF 2019

BETWEEN:
GILBERT RAGA
Plaintiff

AND:
EDWARD T. FOYAP CHIEF WARRANT OFFICER RECORDS
First Defendant

AND:
GILBERT TOROPO BRIGIDIER GENERAL PNG DEFENCE FORCE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 06^th July

PRACTICE & PROCEDURE – Notice of Motion – Order 16 Rule 6 (2) NCR – Leave to Amend Statement in Support – Judicial Review – Leave granted– Determination of Real Issues – Not New ground to – Materials sufficient – Motion granted – Cost follow event.

Cases cited:

Inugu v Maru [2020] PGNC 404; N8649
Counsel:

T. Ilisa, for Plaintiff
N. Yano, for Defendants

RULING

06^th July, 2021

1. MIVIRI, J: This is the ruling on the Plaintiffs notice of motion pursuant to Order 16 Rule 6 (2) of the National Court Rules for leave to be granted to amend the statement in support.
   
2. It is clear that judicial discretion can be exercised on the basis of Order 16 Rule 6 (2) to allow amendment so that the real issue posed in the matter are tried. And here reliance is placed on the affidavit dated the 06^th October 2020 which attaches the proposed amendment under Grounds for the Relief as sub headed (a) Acting under dictation and (b) under breach of natural Justice and (c) Wednesbury’s Principles of Unreasonableness.
   
3. This is particularly relevant because the challenge is to the process that was followed to the eventual dismissal of the plaintiff. It is therefore enhancing address on the real issue that is posed for Judicial review: Inugu v Maru [2020] PGNC 404; N8649 (20 November 2020). It is not advancing new grounds to the course action nor is it prejudicial to the other side. In this regard it is worth noting that the application is not opposed. I have read the amendments proposed and order the amendment in the terms as proposed which I set in full as follows:
   
   • (a) Acting under Dictation
     

The first defendant’s decision to issue Administrative Discharge was akin to an act of dictation given that the plaintiff was not offered any opportunity to show cause as to why he should not be administratively discharged instead of being subjected to disciplinary proceedings.

In addition, there were no reasons given to the Plaintiff for his administrative discharge. The plaintiff was simply informed of the decision following allegations of his absenteeism.

(b) Breach of Natural Justice

The first defendant issued an administrative discharge to the Plaintiff without informing the Plaintiff of the reasons for him to take such course instead of a disciplinary proceeding. Nor was the plaintiff afforded an opportunity to show cause as to why he should not be administratively discharged.

A decision was made without any regard for natural justice to prevail at all times and therefore the decision was not reasonably justified in a democratic society such as PNG that upholds and has regard for the rights and dignity of mankind.

(c) Wednesbury’s Principles of Unreasonableness

The discharge signal issued to the Plaintiff was unreasonable as no reasonable person in the position of the First Defendant would have as a matter of course resorted to an administrative discharge when the plaintiff had valid reasons to show cause for his absenteeism, which was to attend to his sick parents, one of whom had died and given that he was the only sibling in his family who had formal employment.

4. The formal orders of the Court are:
   
   • (i) The motion of the amendment is granted forthwith in the terms of annexure “A” to the affidavit of the plaintiff as set out.
   • (ii) The costs will be in the cause.
   • (iii) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

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

Office of the Solicitor General: Lawyer for First Defendants