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Dambui v Sansan [2023] PGNC 295; N10450 (23 August 2023)

N10450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 51 OF 2023 (IECMS)

CHARLES DAMBUI
Plaintiff

V

TAIES SANSAN
First Defendant

Waigani: Miviri J
2023: 22^nd & 23^rd August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 3 (1) & (2) Leave for Judicial review – Direction of NEC – Contract Plaintiff Not Drawn for Endorsement of Head of State – Affidavit of Plaintiff – Locus Standi – Arguable – Delay – No Other Administrative Avenue – No Evidence Contrary – Materials Sufficient – Leave Granted – Cost On Solicitor Client basis.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290
State v Eluh [2016] PGSC 26; SC1479

Counsel:
N. Kopunye, for Plaintiff
H. Wangi, for Defendants

RULING
23^rd August 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 31^st May 2023, where he seeks pursuant to Order 16 Rule 3 of the National Court Rules for leave to be granted to him to apply for judicial review over:
   
   • (a) the decision of the defendant in not taking steps to implement;
     
   • (b) neglect and failure of the defendant to implement and comply with,

the directive of the National Executive Council made in the NEC Decision No. 196/2022 at its meeting No. 06/2022 wherein the NEC among others, made the following direction: On the 04^th May 2022, Council directed the Secretary for the Department of Personal Management to prepare a performance-based contract of Employment for Mr Charles Dambui for execution by the Head of State.

2. And that by Order 16 Rule 5 of the Rules the plaintiff be granted leave, to file a notice of motion for application for Judicial Review over the decision referred to in claim 1 above. And such other orders as the Court deems appropriate.
   
3. By his statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules the plaintiff pleads against the defendant, the Secretary of the Department of Personnel Management who is bound to comply and adheres with the lawful directions from the NEC. And under sections 21 (b), 22 (A) (2) (a) (b) and (k), 24 (1) (ca), (d) and (2) (i), (ii) of the Public Services (Management) Act 1995 the Defendant as the Departmental Head of the DPM is required to give effect to the directives and decisions of the NEC.
   
4. And here outstanding to be implemented by the Defendant by virtue of her role pursuant to the specific section set out above, is the particulars as set out above in the originating summons, to prepare a performance-based Contract of Employment for Mr. Charles Dambui for execution by the head of State. It is a lawful direction for the implementation of that direction appointing the plaintiff as Chief Executive Officer (CEO) of the Coffee Industry Corporation Limited (CIC). No reason has been supplied by the Defendant for non-compliance of that direction. Therefore the plaintiff pleas that an order for Mandamus be directed at the defendant to comply forthwith and to implement that direction 6 of the NEC Decision No. 196/2022 at its meeting No. 06/2022 wherein the NEC among others, made the following direction: On the 04^th May 2022, Council directed the Secretary for the Department of Personal Management to prepare a performance based contract of Employment for Mr Charles Dambui for execution by the Head of State.
   
5. Alternatively, an order in the nature of a prohibition, prohibiting the defendant from preparing a contract of Employment for the position of CEO of CIC for any other person.
   
6. And that the defendant pay the costs of this proceedings on a solicitor client basis. And any other orders according to the discretion of the Court.
   
7. No Doubt the plaintiff is at the centre of the matter so is directly affected by the actions of the defendant in not carrying out the directions particulars set out above. He has gone through the process of appointment, and it is the last procedure for carrying that into effect in the hands of the defendant which has not been carried out. And no reasons are apparent identifiable and disclosed including the present application.
   
8. In fact, State counsel has merely submitted for the plaintiff to get the defendant to carry out the matter. There are still administrative avenues that must be complied with avoiding the court proceedings present. There is no evidence relied on this aspect by the State. And without which it will not be possible to go down that path.
   
9. In support plaintiff has filed his own affidavit dated the 31^st May 2023 which sets it clear that he has gone fulfilling the process set out and the NEC has duly made his appointment which must be evidenced implementation by the process he has pleaded for not carried out by the defendant who is sanctioned by law sections 21 (b), 22 (A) (2) (a) (b) and (k), 24 (1) (ca), (d) and (2) (i), (ii) of the Public Services (Management) Act 1995, which he has not accorded. Therefore, leave lies to get her to discharge by compulsion of a prerogative writ of mandamus.
   
10. That affidavit has not been refuted or rebutted by evidence to the contrary. It stands uncontradicted and it is the factual basis clear for the fact that the plaintiff is seriously affected by that action of the defendant. It is lawful and has not been accorded compliance fulfilling. And in law here judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [ 2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). That means the plaintiff has locus standi pursuant, NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70. And it is a matter of public law by virtue of Statute as in State v Eluh [2016] PGSC 26; SC1479 (2 February 2016), and is arguable per se deriving from that Statute, the Public Services (Management) Act 1995, particulars set out above. There is no delay as the decision is current and not carried out. It must be carried out and no lawful reasons have been given by the defendant why it has not carried out a lawful process and procedure that has culminated in the appointment of the plaintiff. And there are no administrative procedures disclosed as to how alternatively the plaintiff can implement those directions of the highest administrative body of Government, and the Government itself, the NEC. All grounds necessary for leave have been satisfied on the balance required of preponderance. The plea must be accorded on the pleadings with the materials supporting in favour of the plaintiff.
    
11. In the aggregate the application for Leave for Judicial review is made out on the material relied on and is granted the plaintiff. Plaintiff will file and serve the substantive notice of motion by or before Friday 1^st September 2023. And the matter will be called up at Directions on Monday the 04^th September 2023 at 9.30am.
    
12. In respect of costs I will order because of the facts set out above by the provisions of the Public Services (Management) Act 1995 sections 21 (b), 22 (A) (2) (a) (b) and (k), 24 (1) (ca), (d) and (2) (i), (ii), and given the facts set out above, this is really unnecessary draw on the plaintiff to come as he has come into court on a matter very clear in the hands of the defendant not carried out. For that reason, costs is in favour of the plaintiff to be paid by the defendant on a solicitor client basis following: Opi v Telikom PNG Ltd [2020] PGNC 168; N8290 (29 April 2020). Plaintiff is entitled to be reimbursed his costs, he has been unnecessarily drawn into this matter. Really the defendant should have acted in compliance and not in defiance and entailing the plaintiff. Costs is therefore in his favour on a solicitor client basis incidental to these proceedings.
    
13. The formal orders of the Court are:
    
    • (i) Leave is granted.
    • (ii) The plaintiff will file the substantive Notice of Motion by or before Friday 1^st September 2023.
    • (iii) The matter will be called for Directions Monday 04^th September 2023 at 9.30am.
    • (iv) Costs is on a Solicitor Client in favour of the plaintiff.
      

Orders Accordingly.

__________________________________________________________________

Kopunye Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants