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Gore v Bowada [2021] PGNC 535; N9355 (13 December 2021)

N9355

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 947 OF 2019

BETWEEN:
GABRIEL GORE
Plaintiff

AND:
ELIZABETH BOWADA as the Acting Managing Director,
National Housing Corporation
First Defendant

AND:
NATIONAL HOUSING CORPORATION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2021: 13^th December

JUDICIAL REVIEW – application for leave for judicial review – review of decision which dismissed the plaintiff by the first defendant from his employment -test to be satisfied when applying for leave for judicial review – consideration of – defendants argue plaintiff has not exhausted administrative remedies – based on documents tendered plaintiff has a strong and arguable case – there is evidence that plaintiff has exhausted administrative remedies available to him – leave for judicial review is granted

Counsel:

Mr. Canute Nidue, for the Plaintiff
Mr. Harrison White, for the Defendants

13^th December 2021

1. DINGAKE J: INTRODUCTION: This is an application for leave to institute judicial review proceedings against the decision of the First Defendant made on the 5^th of August, 2019 whereby the First Defendant dismissed the Plaintiff from employment with the National Housing Corporation effective as of 6^th August, 2019.
   
2. The dispositive facts of the application turn on a narrow compass.
   
3. The Plaintiff was at all material times hereto employed as the Principal Legal Officer until the First Defendant, Elizabeth Bowada, then Acting Managing Director of the Second Defendant dismissed him from employment on the 5^th of August, 2019.
   

Background

4. The background to the dismissal bears stating briefly as it has a bearing on the discretion I am being asked to exercise.
   
5. It is common cause that disciplinary proceedings against the Plaintiff were commenced on the 6^th of August, 2018 when the Plaintiff was suspended by former Managing Director of the Second Defendant, Mr. Kenneth Cooke regarding allegations about the Plaintiff fraudulently receiving K10,000.00 from Mr. Javen Lin, a client of the Second Defendant.
   
6. The Plaintiff denied receiving K10,000.00 but contended that he was only a witness who signed an acknowledgment of receipt of payment of K10,000.00 by Mr. Javen Lin to Mr. Edwin Orapa.
   
7. The above explanation notwithstanding, on or about the 11^th of January, 2019, Mr. Kenneth Cooke invited the Plaintiff to resign from his position as Principal Legal Officer or his employment will be terminated.
   
8. Aggrieved by the ultimatum he received from Mr. Cooke, the Plaintiff appealed to the Second Defendant’s Appeals Committee, which deliberated on the Plaintiff’s appeal and recommended his reinstatement and demotion from the substantive position.
   
9. On the 14^th of May, 2019, the Plaintiff was reinstated to his position as Principal Legal Officer but demoted to Grade 12.4.
   
10. On the 3^rd of June 2019, a notice of appointment of First Defendant as Acting Managing Director was published, including that her appointment would commence on the 2^nd of May, 2019, for a period of three (3) months.
    
11. The First Defendant’s appointment expired on the 2^nd of August, 2019. However, the Plaintiff was dismissed from employment, on the 5^th of August, 2019, based on the same charges.
    
12. The letter dismissing the Plaintiff from employment was dated the 5^th of August, 2019 and signed by the First Defendant on the 6^th of August, 2019.
    
13. On the face of the letter, it is not clear, what the reasons for the dismissal are. The letter makes reference to the Disciplinary Committee findings to the effect that “all charges levelled against you have been sustained thus unanimously recommended your termination.”
    
14. It is not clear from the letter of dismissal whether reference to the Disciplinary Committee, means the Committee that reinstated the Plaintiff but demoted him on the 14^th of May 2019.
    
15. The letter from First Defendant, Elizabeth Bowada, on its face suggests that reference to the Disciplinary Committee means the Committee that the Plaintiff appealed to following receipt of Mr. Cooke’s letter dated the 11^th of January 2019, because it says: “However, you were given the opportunity for a lesser penalty by way of an invitation to tender your resignation within 14 working days which you declined.” This is so because the letter of 11^th of January, 2019 from Mr. Cooke gives the Plaintiff 14 days to resign, failing which his employment would be terminated.
    
16. The above means that the termination letter from First Defendant relates to matters which the Disciplinary Committee had already dealt with and eventually resolved to reinstate the Plaintiff and demote her as earlier indicated.
    

Requirement for Leave

17. It is trite law that there are four (4) requirements for leave namely:
    
    • (a) Locus standi
    • (b) Arguable case
    • (c) Undue delay
    • (d) Exhaustion of administrative remedies.
      
18. To succeed the Plaintiff must establish that he has locus standi, an arguable case, that he has not delayed in bringing the application for leave and that he has exhausted administrative remedies.
    
19. In this case, the parties have agreed that the Plaintiff has met the first three (3) requirements. They disagree over whether the fourth element, namely exhaustion of administrative remedies has been met or not.
    
20. The Plaintiff concedes that after receiving a letter of termination from the First Defendant he did not appeal that decision. The Defendants contend that such failure is fatal and leave to institute review proceedings must be refused.
    
21. Every case must turn on its unique circumstances. In this case, it seems clear to me that the Plaintiff’s dismissal was based on the same reasons as the first threatened termination by Mr. Cooke.
    
22. The Plaintiff appealed against Mr. Cooke’s decision dated 11^th of January 2019 on the 30^th January, 2019. The Second Defendant’s Appeal Committee reinstated the Plaintiff with demotion.
    
23. It seems to me that the Plaintiff has exhausted administrative remedies available to him. He cannot be expected to go back to same Committee on a matter it has already ruled upon.
    
24. In any event, even if I may be wrong to hold as I hereby do that the Plaintiff has exhausted administrative remedies, I would still being inclined to exercise my discretion to grant leave in view of the fact that on the papers the Plaintiff has not only has an arguable case on the merits but what appears a very strong case on the papers filed so far.
    
25. Furthermore, the Second Defendant’s Disciplinary Appeal Committee has already made recommendations to reinstate the Plaintiff after considering the same charges that the Plaintiff faced during the tenure of Mr. Cooke.
    
26. In all the circumstances of this case, the Plaintiff has made out a case that he is entitled to be granted leave as prayed.
    
27. In the premises, the Court makes the following Orders:
    
    • (a) Leave for judicial review is hereby granted.
    • (b) The Defendants are to pay the Plaintiff costs of this leave application.

_______________________________________________________________

Nidue & Associates Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants