N9587
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) 132,133,134, 135,136,137 and 141 of 2021 (IECMS)

BETWEEN:
JOHN KIU, HEBERT PIWILI, RACHAEL GAU, NANCY ORAKA, MARK RAMI, FRANK BABAGA AND RAYMOND JUARY
Plaintiffs

AND:
BRIAN LILLYWHITE AND ORS
First Defendant

AND:
DAVID TOWE
Second Defendant

AND:
PAPUA NEW GUINEA CUSTOMS SERVICES
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Tamade AJ
2021: 12th October
2022: 05th April

JUDICIAL REVIEW – application seeking leave to stay the respective decisions under review and also seeking interlocutory injunctions seeking to have all the Plaintiffs continue with their employment with The PNG Customs Services - 

Cases Cited

The following cases are cited in the judgement:

Asakusa v Kumbakor [2006] PGNC 157; N3257 
Employer Federation v Waterside Workers (1982) N393
Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2001] PNGLR 279
Kambanei v National Executive Council [2006] PGNC 7; N3064 
Kondra v Lenalia [2016] PGSC 44; SC1527 
National Airlines Corporation (1983) PNGLR 476
Yer , Secretary for Department of Finance v  Yama  [2009] PGSC 13; SC990
Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831

Counsels:	

Mr Peterson Kewa, for the Plaintiff
Mr. Fred Katu & Ms. Mark, for the First and Second Defendants
Mr White, for the State

05th April, 2022

1. 	TAMADE; AJ: The Plaintiffs are former employees of The PNG Customs Services and have filed these judicial review proceedings over their dismissal in office.

2. 	The Plaintiffs were granted leave for judicial review on 1 October 2021 and this is a ruling on their application seeking a stay on the respective decisions under review and also seeking interlocutory injunctions seeking to have all the Plaintiffs continue with their employment with The PNG Customs Services.

3. 	As the decisions the subject of the judicial review is not the same, I will deal with the case of John Kiu and Hebert Piwili which is concerned with the Dismissal Notice issued on 20 January 2020 by Mr Brian Lilywhite, the Director Internal Affairs Division and the cases of Rachael Gau, Nancy Oraka, Mark Rami, Frank Babaga and Raymond Juary are in regard to the Chief Commissioner’s Appointment Memo No. 39 of 2021 dated 31 August 2021.

John Kiu and Frank Babaga
4. 	John Kiu states in his affidavit that on 20 January 2020, both him and Hebert Piwili were terminated from employment from the PNG Customs Services.

5. 	John Kiu was terminated for damaging a motor vehicle owned by PNG Customs Services which was involved in an accident in Vanimo, West Sepik Province. Mr. Kiu was discharged by the Court in Vanimo however he states that on 6 October 2020, the former Chief Commissioner of Customs made a decision to affirm the termination of his employment. Mr. Kiu has attempted to have his termination rescinded however this has been unsuccessful.

6. 	Hebert Piwili states in his Affidavit that his dismissal was on an allegation of consuming alcohol whilst on duty and failure to preserve the property of the PNG Customs Service.

.7. 	On 27 January 2020, Mr. Piwili lodged an Appeal on his dismissal. On 6 October 2020, Mr. Piwili’s dismissal was reaffirmed by the Chief Commissioner of Customs. 

Rachael Gau, Nancy Oraka, Mark Rami, Frank Babaga and Raymond Juary
a)	Rachael Gau
8. 	Rachael Gau was employed by the PNG Customs Services since 11 February 2002. She states that on 9 March 2020, she was appointed to the substantive position as the Director Excise. It is the position she holds, and the term of her contract will end on 9 March 2023.

9. 	On 7 September 2021, she received an email from a Senior Administration Officer in the PNG Customs Services containing a Memo from the Chief Commissioner referred to as Memo No. 39 of 2021 announcing certain new Acting Appointments in the PNG Customs Services. In the Memo, the position of Director Excise in which she was serving was replaced by a new appointee, one Mrs Kiri Arthur.

10. 	Rachael Gau aggrieved by the decision in the Memo as to the reshuffle, emailed to the Assistant Commissioner for Trade Excise & Valuation who replied to her that he had nothing to do with the decision as to the reshuffle.

b)	Nancy Oraka

11. 	Nancy Oraka was employed by the PNG Customs Services since 21 June 1999. She was appointed to the position of Regional Director, Southern Region Operations of PNG Customs Services which would expire on 5 July 2022.

12. 	On 30 August 2021, she received a letter from the Chief Commissioner on matters of performance regarding the role that she occupied.

13. 	The next day on 31 August 2021, she received the same Memo as received by Rachael Gau, the Memo No. 39 of 2021 that Mr Gamini Ora was appointed to her position as Regional Director for Southern Region Operations. 

14. 	Nancy then responded by way of letter dated 13 September 2021 to the Chief Commissioner’s Letter dated 30 August 2021 and also in relation to the new appointment to the position she was holding. She also had a meeting with the Chief Commissioner however her attempts to get the decision makers to rescind their decision were unsuccessful therefore she is seeking redress from the Court.

c)	Mark Rami

15. 	Mark Rami was employed by the PNG Customs Services since 23 February 2004. Mr. Rami was appointed to the position as Assistant Commissioner – Compliance & Procedures of PNG Customs Service and his contract would end on 20 March 2022.

16. 	Mr. Rami received a Suspension Notice dated 3 June 2021 for investigations into alleged offence committed, however the offence was not named. The period of suspension would lapse on 28 August 2021 and on 30 August 2021, Mr. Rami enquired on the status of his suspension.

17. 	Mr. Rami also received the same Memo No.39 of 2021 sent to him on 31 August 2021 that Ms Stella Ireng had replaced him on his position as Acting Assistant Commissioner Compliance & Procedure.

18. 	Mr. Rami had an interview with the delegates of the Chief Commissioner however nothing came out of that meeting as to the new appointment to the position Mr. Rami was occupying.

19. 	On 13 September 2021, Mr. Rami was served a Memo to attend a meeting for a Record of Interview for official corruption and abuse of office. Mr. Rami now seeks redress through judicial review through the Courts.

d)	Frank Babaga

20. 	Mr. Babaga was employed by the PNG Customs Services since 18 September 1984. On 20 March 2019, he was appointed to the position of Assistant Commissioner- Regional Operations of PNG Customs Services. His contract will end on 20 March 2022.

21. 	On 30 August 2021, Mr. Babaga received a letter from the Chief Commissioner regarding performance on the Regional Operations leading to significant loss of revenue and increasing non-compliance of Customs Requirements.

22. 	On 31 August 2021, Mr. Babaga also received Memo No. 39 of 2021 regarding the reshuffle and announcing new Acting appointments. Mr James Barasuru was appointed as Acting Assistant Commissioner- Regional Operations, the position that Mr. Babaga was occupying.

23. 	Mr. Babaga responded to the new appointment to his position by way of an Office Memo to the Chief Commissioner which was followed up by a meeting with the Chief Commissioner however the decision to appoint the incumbent remained. Mr. Babaga is before the Court seeking redress.

e)	Raymond Juari

24. 	Mr. Juari was employed by the PNG Customs Services since 17 December 1990. On 5 July 2019, Mr. Juari was appointed to the substantive position of Director Cargo Management of PNG Customs Services which will end on 5 July 2022.

25. 	Mr. Juari states in his affidavit that sometime in October 2019, he was put off the payroll and by way of a letter dated 23 April 2021, a letter was given to him by the Chairman of the Housing Committee for him to vacate the accommodation provided by the PNG Customs Services.

26. 	Mr. Juari responded to the eviction notice on 18 July 2021 and on 5 August 2021, Mr. Juari was charged for abscondment of duties when he claims that he was already put off the payroll for two years.

27. 	Mr. Juari responded to the charge on abscondment of duties and on 14 September 2021, the charges as to abscondment were withdrawn and Mr. Juari asserts that there is no decision as to his reinstatement to his contractual position. Mr. Juari is therefore seeking redress from the Court. 

Application for stay

28. 	Are the Plaintiffs entitled to a grant of stay after leave?

29. 	The Plaintiffs are seeking a grant of stay and for interlocutory injunctions on the respective decisions challenged. The Plaintiff rely on the Supreme Court case of Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2001] PNGLR 279 which states that the grant of stay is discretionary and should be exercised on proper principles and on proper grounds. The considerations enumerated in the Gary McHardy case after setting the principle that a judgement creditor is entitled to the benefits of the judgement are:

a)	Whether leave to appeal is required and whether it has been obtained.
b)	Whether there has been any delay in making the application.
c)	Possible hardship, inconvenience or prejudice to either party.
d)	The nature of the judgement sought to be stayed.
e)	The financial ability of the applicant.
f)	Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
g)	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
h)	The overall interest of justice.
i)	Balance of convenience.
j)	Whether damages would be sufficient remedy.

30. 	The effect of a stay is to halt or suspend the decision under review before the National Court until the substantive review or hearing before the National Court. A stay is therefore an equitable remedy and is discretionary. The Court is tasked to assess the considerations in the McHardy case and decide whether the decisions under review should be suspended or stayed until determination in the final hearing of the matter.

31. 	In the Supreme Court case of Yer , Secretary for Department of Finance v  Yama  [2009] PGSC 13; SC990 (3 July 2009), the Supreme Court in considering an application for stay of the National Court decision stated that not all the considerations in the Mc Hardy case will be applicable to any given case.

32. 	There is also a need to consider public interest in addition to the considerations in the McHardy case above. The case of Kondra v Lenalia [2016] PGSC 44; SC1527 (21 June 2016), the Supreme Court in making this observation to the Mc Hardy case in an application to stay the National Court decision said this;

“We would like to add that McHardy is not a public interest case. McHardy is a case that relates to a dispute over a contract clause on restraint of trade. These are private interest issues. This case is clearly a public interest case in that it raises Constitutional Law issues and issues of good governance. In appropriate public interest cases, it would be in the public interest that a person found guilty of misconduct in office be prevented from occupying a public office pending appeal. Respect for and confidence in the integrity of a public office is adversely affected when a person found guilty of misconduct in office continues to occupy a public office. In appropriate cases, public interest may override the considerations in McHardy.”

33. 	It is an interesting point raised by Ms Mark as inhouse counsel for the PNG Customs Service at the hearing of these applications that the decision of the Chief Commissioner of Customs will be challenged every time a decision is reached as to the employment of its employees if the Court intervenes and grants a stay every time an aggrieved employee runs to Court which will undermine the Chief Commissioner’s authority and or set a bad precedent. Judicial review is only concerned with the administrative process of decision making of public bodies and not with the actual decisions reached.

34. 	I consider that the employment of all the Plaintiffs in these proceedings before me concern the public interest as the decision the subject of judicial review is from a public body being the Papua New Guinea Customs Services.

35. 	The decisions the subject of judicial review also include the fact that other incumbent individuals now occupy the positions the Plaintiffs say they were contracted to serve under and therefore and in considering the Mc Hardy considerations as well as the public interest, I am inclined to give my highest considerations to the public interest factor as in the Kondra v Lenalia case, that the stay is refused to keep the status quo of whoever is the incumbent until the decisions the subject of the review is carefully considered at the substantive hearing of the matter and to allow the services of the PNG Customs Services in regard to the respective roles the Plaintiffs claim to occupy to be uninterrupted in its delivery of service in the public interest.

Interim Interlocutory injunctions

36. 	The Plaintiffs also seek interlocutory injunctive orders. At the hearing of the matter, I enquired with counsel for the Plaintiffs Mr Kewa, whether the effect of a stay is the same as orders for interlocutory injunction and or what was the desired outcome Mr Kewa sought to achieve concerning the decisions the subject of the judicial review.

37. 	Mr Kewa’s submissions were in essence that the Plaintiffs should be allowed to return to their respective roles prior to the decisions affecting their employment which is the subject of the judicial review and be allowed to continue to perform those functions for the good of the PNG Customs Services. Mr Kewa is asking this Court to restore the Plaintiffs to their employment in the interim when the very decisions they seek to review is yet to be determined before the Court. Mr Kewa goes at length to make submissions on the substantive matter regarding the Plaintiffs cases that their cases have merits before the Court.

38.    The purpose of a stay and an injunction are distinct though they both work to preserve the status quo, a stay is a freeze or suspension of the decision the subject of the judicial review whilst an injunction is a Court Order aimed at a person or an office to refrain from acting in a certain way.

39. 	The Court in Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) in differentiating a stay and an injunction said this:

There is little difference between an order for stay issued under par (a) and an interim order, usually an interim injunction, issued under par (b) because both have the same effect. In De Smith, Wolf and Jowell, Judicial Review of Administrative Action, 5th Ed; Sweet & Maxwell, 1995, the distinction between RSC Ord 53 3 (10) (a) and (b) is explained, at page 670, par 15-29:
"When the relief sought includes an order of certiorari or prohibition, the grant of leave, if the court so directs, operate as a stay or until the court otherwise orders. The term "stay of proceedings" is not confined to proceedings of a judicial nature but encompasses the process by which any decision challenged has been reached, including the decision itself. When any other relief is requested, the court may at any time grant such relief as could be granted in an action commenced by writ, most usually an interim injunction. Although a stay of proceedings and an interim injunction perform the same function of preserving the status quo until the full hearing, there are conceptual differences between the two forms of relief. Whilst the injunction protects the interest of the litigant in dispute with another, the stay is not addressed to an "opposing party" but rather is directed at suspending the operation of a particular decision. While the grant of an interim injunction is usually conditional upon the applicant giving a cross-undertaking in damages, there appears to be no such requirement or practice in relation to a stay of proceedings".

40. 	The general principles for the grant of injunction are set out in the case of Employer Federation v Waterside Workers (1982) N393 and National Airlines Corporation (1983) PNGLR 476 which are:

a)	Has the Plaintiff delayed in making the application?
b)	Is the action frivolous or vexatious?
c)	Is there a serious question to be tried-does the Plaintiff have a serious and not a speculative case, which has a real possibility of ultimate success
d)	Does the balance of convenience favour granting or refusing the injunction, 
e)	If an injunction is not granted, can the Plaintiff’s loss be adequately compensated by damages
f)	Is the Defendant adequately protected by the Plaintiff’s  undertaking as to damages
g)	When all things considered, the status quo should be preserved.

41. 	The Plaintiffs rely on the case of Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006), where the National Court considered an application by Mr Kambanei for interlocutory injunctions to prevent the service of a suspension notice on him and for orders that would restore him to his position the subject of the judicial review. The Court considered the considerations for the grant of injunctions as in the case of Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831 wherein the following principles were set out for the Court to consider in considering whether to grant injunction;

1.	A mandatory injunction should normally only be granted where a strong case that serious damage will occur to the applicant is made out.
2.	The general principles for negative injunctions apply, that is that there is a serious case to be tried, damages are not an adequate remedy and the balance of convenience favour the applicant, but the case should normally be one giving an unusually strong and clear view that the applicant will be successful at trial.
3. 	The more likely it appears that the plaintiff will succeed at trial the less reluctant the court will be to interfere on an interim basis.
4. 	But if it is necessary to make some interim order the Court will do so whether or not the high standard of probability of success is made out.
5. 	The costs to the defendant of performing the mandatory acts should be weighed against the likely damage to the applicant.
6. 	If the relief sought is such as would normally only be granted after a trial, it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportion to the prejudice and hardship to be caused to the defendant in performing the order.
7. 	If the mandatory injunction is simply to restore some activity which has been previously performed by the defendant, rather than to embark upon some new activity, it will be more readily granted.
8. 	Ultimately, in deciding whether or not to grant a mandatory injunction the overriding consideration is an exercise in deciding which course will do the least damage, or, to put it another way, the lower risk of injustice, if it turns out that the court has made the "wrong" decision.
9. 	If an injunction is granted the order should specify exactly what it is the defendant has to do, leaving the defendant in no doubt as to what is required to comply with the order.

42. 	The Court in the Kambanei v NEC case added another consideration to the nine criteria set out above in saying that:

“…the nine principles set out above which are generally applicable to ordinary actions in tort and contract should be tailored by the Court to suit the special nature and purpose of judicial review. The standard of scrutiny of an application for stay applying those nine (9) criteria or for any application for interim injunctive orders under O.16 r.3(8) should be much higher than in ordinary suits in law. In respect to application for a stay or interim injunctive orders in a public employment situation, the primary consideration which I would add as principle No. 10 to the nine principles set out above is this:
“... As a general principle, in an application for interim injunction or interim mandatory injunction under Order 16 Rule 3(8), in a case of judicial review of a decision concerning suspension or removal of a public official on disciplinary grounds, a stay or an interim injunction or interim mandatory injunction should not be readily granted except in very exceptional cases where the public interest of the public employer in maintaining continuity of good administration of the office would be best served by the applicant's restoration to office pending the hearing and determination of the substantive application for judicial review. The public interest in the good administration of public office is the paramount consideration. The private rights of the employee such as in protecting the applicant's integrity and reputation is a relevant consideration but it is not an important consideration."

43. 	Mr Kewa therefore submitted that based on the public interest in the good administration of public office, the Plaintiffs should be restored to their positions pending the hearing of the substantive hearing quoting the public interest consideration in the Kambanei v NEC case. The Court in the Kambanei v NEC case however refused to grant the injunction sought by the Applicant stating:

“… the grant of interim injunctive relief is an equitable remedy, and it is discretionary. In a case where serious allegations of financial mismanagement and abuse is made against senior managers within the department concerned, whilst they remain mere allegations, a court of equity and good conscience will not ignore those allegations and grant interim relief. Equity militates against grant of interim injunctive relief and insists that the applicant prove its substantive claim before the applicant requests appropriate relief.”

44. 	The Plaintiffs also rely on the case of Asakusa v Kumbakor [2006] PGNC 157; N3257 (19 October 2006) wherein Injia DCJ (as he then was) differentiated with his decision in the case of Kambanei v NEC and stated this:

“The facts of this case are slightly different from Kambanei’s case in important aspects. Unlike in Kambanei’s case, a suitable career Senior Officer with NHC has not been identified by the NEC to fill in the temporary vacancy. Instead, a non-career NHC senior officer has been brought in. There is no evidence before me that the affairs of NHC will be jeopardized if the applicant is allowed to remain in office. Finally, unlike Kambanei’s case where Mr Kambanei was a departmental head who was directly accountable to the NEC, the NHC is a public body corporate, whose corporate affairs are controlled by the Board. The Board has a direct and critical say on matters of appointment, suspension and dismissal of the Managing Director. When the Board’s involvement is wanting, the position of the Managing Director should not be easily interfered with. Public interest in the continuity in office of the Chief Executive Officer of a public corporation is better served by allowing the Chief Executive Officer to remain in office until his suspension or dismissal is properly done with the involvement of the controlling body of the Corporation, which in this case is the NHC Board, as provided for by statute. In such cases, the public interest in ensuring the business or commercial interest of the corporation is protected from all forms of undue interference is also an important consideration.”

45. 	Every case before a Court should be considered on its own set of facts. The Plaintiffs before this Court have been removed from their positions with new incumbents now performing these roles and functions. The Court correctly said in the Kambanei v NEC decision that:

“the private rights of the employee such as in protecting the applicant's integrity and reputation is a relevant consideration but it is not an important consideration.”

46. 	In the Asakusa v Kumbakor, the decision for injunction was made in the public interest to ensure ‘the business and commercial interest is protected from all forms of undue interference’ cannot be said to be the same in the Plaintiffs case before this court. I am bound to follow the Supreme Court in the Kondra v Lenalia decision that to determine what is public interest in this case is to ensure there is continuity of service in the subject roles previously held by the Plaintiffs in the PNG Customs Services is discharged and this is achieved by allowing those incumbents or those who are currently carrying out these functions to continue to do so to maintain due service. To restore these Plaintiff’s to their previous roles even in a temporary state pending an outcome of the hearing of the substantive matter is premature and unreasonable to my mind. An injunction acts to prevent an act to keep the status quo but not to reverse an act. I will therefore refuse the application for injunctions sought.

.47. 	I therefore make the following orders:

1)	The Plaintiffs applications seeking a stay of the decisions the subject of judicial review and for injunctions to restore them to their previous roles is therefore refused.

2)	As costs is discretionary, each party shall bear their own costs for the application.

Orders accordingly.

Serria Legal Services: Lawyers for the Plaintiff
IRC Inhouse Lawyers: Lawyers for the First and Second Defendant
Solicitor General’s Office: Lawyer for the State