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Woiang v Daton [2021] PGNC 319; N9062 (12 August 2021)

N9062

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 904 OF 2019

LEENA WOIANG
Plaintiff

AND:
DR. ALOIS DATON ACTING COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION
First Defendant

AND:
INTERNAL REVENUE COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 07^th July, 12^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Substantive Judicial Review – Reconciliation officer – Termination of Employment – right of hearing – opportunity accorded – whether certiorari appropriate– breach of natural Justice Section 59 Constitution – balance Not discharged – Judicial review denied – Motion dismissed – cost follow event.

Cases Cited:

Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Mai and Avi, The State v [1988-89] PNGLR 56
Yawip v Commissioner of Police [1995] PGNC 79; N1370

Counsel:

J. Unua, for Plaintiff
G. Wau, for Defendant
RULING

12^th August, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s substantive notice of motion of the 28^th February 2020 for judicial review against the decision of the First defendant of the 22^nd November 2018 in terminating her employment with the second respondent as a Senior Debt Recovery Officer. She seeks certiorari to remove that decision into Court and quash it.
   
2. Further she seeks declaration that the decision of the First Defendant made on the 22^nd November 2018 terminating her employment with the second defendant as Senior Debt Recovery Officer was unlawful.
   
3. That because of that fact mandamus lies against the First and Second Defendants to reinstate her to her substantive position of Senior Debt Recovery Officer of the second defendant.
   
4. That Damages are due her because of mental distress, anxiety, public humiliation, and financial loss suffered by the Plaintiff after being terminated by the first defendant from employment with the Second defendant as Senior Debt Recovery Officer. She also seeks costs of the proceedings. And abridgement of time to the date of settlement by the Registrar which shall take place forthwith.
   
5. She contends that the first defendant failed to or refused to properly consider her version of facts prior to handing down the decision to terminate her employment with the second defendant. Here it would not be so much as to procedure but the substance of the decision at first instance to terminate. That is not the heart of Judicial review substance is not what judicial review is. It is procedure therefore it follows that any argument that the reason did not support the charges is substance. Because guilt or innocence to the charges is substance not procedure, Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The concern in the present is not about subsisting the decision made of termination with reengagement back on the job with all peaks, privileges, emoluments, wages and salary missed as a result. The truth or veracity of the facts that she contends as opposed to the defendants is a matter to the substance rather than procedure. Picking or choosing one or the other is a matter in the discretion of the defendants at first instance. It is not net of the court now.
   
6. The affidavit sworn of the 02^nd July 2020 of the plaintiff deposes that her version of facts in the matter were never considered by the second defendant administration, when the decision to terminate her employment with the second defendant were made. She deposes that she never filled out a loan application for the sum of K7000.00, but that she did fill in a loan application for K1000.00. Because she had an outstanding loan and would not have qualified to seek a higher amount. This is evidence to the merit of the matter not procedure; it will not take her case any further. Nor the fact that she was a victim of the defrauding of National Finance Limited.
   
7. But the contentions that the first defendant had failed to set out the reasons why the charges against her were made out. There were no proper investigations and it was merely concluded that she had colluded with Ray Asi to defraud National Finance Limited. This ground is proper to run in judicial review as it is to the process in securing termination. And will be considered by and determined.
   
8. To further this the plaintiff has in support furnished her statement annexure “B” of the affidavit of Teko Naomy sworn of the 14^th July 2020, filed 15^th July 2020. It is made of the 27^th April 2018 detailing that she is a senior Payment Enforcement Officer with the IRC with the Division of Debt Lodgement and Enforcement, located level four of the Bogen Gapo Building Downtown Port Moresby. She commenced employment there on the 05^th May 2009. That was as Source Collection Audit as a Telephone Auditor. And she has now served for nine (09) years and would be going into the tenth (10^th) year 2019.
   
9. As a Senior debt recovery officer, she is tasked to follow up and recoup debts owing to the IRC. And this is by telephone to taxpayers or emails and notices issued to the taxpayers for their compliance to lodge tax returns and do payments. And she assists new officers where possible in her duties.
   
10. She states, “The incident that occurred between National Finance Limited and Ray Asi took me by surprise. As I know I was going to be implicated in there since he was the one the I went through to apply for the loan. It was 10.00am as usual, I went out for a smoke break, while smoking I saw Ray and approached him. I told him that I had an emergency that I desperately need a K1000 loan to sort out some personal issues. Finished my smoke and we both came up to the 3^rd Floor where he gave me the application and told me to sign. For the amount part he said he’ll fill it up and asked for my card. I did have second thoughts about giving him the card but he said...Sister trust me if you want it to be same day or next, first thing tomorrow morning. Knowing him well and that I trusted him, I gave him the card. The following day after4.06pm and going past 5.00pm he came to my house and gave me my card. Went straight to Boroko Food world checked and the amount I requested was there in my account (K1000). I didn’t notice it till the second pay that I realized deductions were not going through hence this noise came about National Finance coming to IRC looking for Ray Asi. I knew very well as stated above and I went straight to our internal audits.”
    
11. A record of interview annexure “B” of the affidavit of Plaintiff is conducted with the plaintiff on the 30^th August 2018. The interviewed is Manu Gomara corroborated by Susan Ali. The plaintiff participates in it. Questions are directed to her and answers that she gives together are recorded. At the outset she is informed as to why she is being questioned. And it is in relation to an allegation that she has acted in a disgraceful and improper manner by signing a loan application to the National Finance Limited on the 16^th March 2018. And those funds were raised from there into her account in which she together with Ray Asi withdrew all the funds and used it for their own benefit.
    
12. The record of interview is very formal and in compliance of section 42 (2) of the Constitution. There is nothing that vitiates reliance on it in law. It is a document consistent complies with the law. Its veracity is not questioned either apparent or identifiable against the law. It is the evidence that gives the opportunity in law for the applicant plaintiff to voice his side of the allegation of fraud, deceit and misappropriation apparent. Particularly with the fact that her account 1001564602 in the Bank of South Pacific was used for the deposit of K7000 out of which she benefitted in the sum of K1000. Her signature appears on the loan application dated the 16^th March 2018. She explains all other details were filled out by Ray Asi she only signed her signature. She trusted him with her pin number and her bank card. She only withdrew a K1000 at the ATM at food world Boroko from a credit of K 6, 843.08 on the 19^th March 2018. Then there are various amounts withdrawn from that account leading. These are verified by the Statement from the Bank and the loan application that she signs.
    
13. It is very clear that she has been accorded all the procedures in law particularly the fact that section 42 (2) of the Constitution, the highest law of the land has been heeded in the way she has been accorded and treated leading eventually to her termination. In this respect, there is no room for the breach that she contends because this is an administrative process that has been treated with the highest regard for the rights she has under the Constitution. That is supported by the other evidence corroborating that procedure has been heeded to the letter of the law. It leaves no room to go past that judicial review is restrictive.
    
14. It must be overt and demonstrated that there is error of law in the procedure can the plaintiff sustain in her cause, Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). That is not the case for the plaintiff in the materials that he has pursued here. Section 59 of the Constitution has been heeded clear from the record of interview set out above. And this is particularly clear from a seasoned Department of Government fundamental to good governance, the IRC. It is in the interest of that Department and the State that public servants important to its duties are not derailed without just cause. Here that is evident by all set out above. And particularly material by the CAO 5-15 a document based on the law and heeded to in all material respects. The evidence meticulously speaks that display bring the balance fundamentally to adherence rather than non-adherence. The minimum of being duty bound to give effect to act fairly and to be seen to act fairly is the soul here. I am not convinced that the balance is in favour of the plaintiff by the evidence set out above.
    
15. She is a seasoned Senior Debt Recovery officer of nine (9) years as at the date of this matter going ten (10) 2019. Her duties set out that what happened here is inexcusable on her part considering it was second nature to her. She would have been versed from her experience as a Debt Recovery Officer to know what was wrong in law and what was right in law. And there is really no excuse for her role in the matter. It is a deliberate choice that she has made with the knowledge of its repercussion. It leaves no excuse to come back and tilt back into the cup what has spilled out. Her experience and knowledge ought to have tailored her better from the others in the allegation; there are 23 officers in all. The decision was open given what is underlying for the defendants. And there is no room to derail because the procedure observed was by the highest law of the land the Constitution section 42 (2) clear by the case of Mai and Avi, The State v [1988-89] PNGLR 56 (3 June 1988) has in all respects been heeded here. There is no room for argument against. It has been applied and observed leaving no room as to the arguments of the plaintiff. Her plea and argument are without merit and dismissed forthwith.
    
16. The remedies pleaded follow suit in view of all set out above. Certiorari and mandamus do not lie given. There is no unreasonableness portrayed by the evidence set out above. It is clear within all that reason has been accorded the plaintiff. She has not derailed the evidence because they foretell compliance and good reasoning to arrive at what is due in law by the facts and circumstances, termination of the plaintiff. There is consistency with Yawip v Commissioner of Police [1995] PGNC 79; N1370 (14 September 1995). The balance has not been discharged to fit what the plaintiff contends against. It fails judicial review has not been made out by the plaintiff on the evidence relied. The motion is dismissed with costs forthwith.
    
17. There really is no room because, “TAKE NOTICE that I have considered your reply dated the 1^st November, 2018. Further, I have considered the best interest of the Internal Revenue Commission, the relevant laws, all evidences available to me, and the charges which have been laid against you under a notice of charge dated and served upon you on the 24^th October, 2018.” What has eventuated finally is an accumulation of all presented not without. Therefore there is no merit in the contention by the Plaintiff. Her notice of motion is not made out for judicial review and dismissed forthwith with costs following.
    
18. The formal orders of the Court are:
    
    • (i) Judicial Review is not made out.
    • (ii) The notice of motion is dismissed forthwith
    • (iii) The cost of the proceedings follows the event if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

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

In house Lawyers IRC: Lawyer for the Defendants