N10518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 62 OF 2023(IECMS)

KILA HARRY
Plaintiff

V

DAVID MANNING COMMISSIONER OF POLICE
First Defendant

And
RAPHAEL HUAFOLO AS DEPUTY COMMISSIONER OF POLICE
Second Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 05th & 12th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Leave Application for Judicial Review – Order 16 Rule 3 (2) (a) (b) Dismissal of Plaintiff Section 26 (5) Police Force Act 1998 – Locus Standie – Delay – Arguable Case – Internal Process Exhausted – Leave Granted for Judicial Review.

Cases Cited:
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 

Counsel:
M. Kuma, for Plaintiff
M. T. Kopi, for Defendants

RULING

12th October 2023

1.	MIVIRI, J: This is the ruling on the Plaintiff’s application seeking leave for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules. The originating summons of the 20th June 2023 is in these terms: -

(i)	Leave to apply for Judicial Review of the decision of the Second Defendant that dismissed the Plaintiff from the Police Force on 16th April 2019;

(ii)	Leave to review the decision of the First Defendant made on the 23rd  June 2021 that refused the plaintiff’s application under section 26 (5) of the Police Force Act 1998 and affirmed the decision of the Second Defendant that dismissed the Plaintiff from the Police Force dated 16th April 2019.

(iii)	Costs be in the cause.

(iv)	Any other orders in the discretion of the Court.

2.	The applicant was the subject of internal disciplinary process involving five serious disciplinary offences on the 08th June 2017. The Commissioner then at her dismissal was Gari Baki. The five disciplinary offences against her were sustained and she was penalized with dismissal from the Police Force. To which she appealed on the 29th April 2019 to the First Defendant against that decision dismissing her. That appeal brought two conflicting decisions, one confirming the dismissal and the other overturning and reengaging her services as a policewoman.

3.	She alleges that the First Defendant acted ultra-Vires section 25 (5) (7) (8) (9) of the Police Force Act in not considering her grounds for review under section 26 (5) of the Police Force Act. The review did not sustain when on the 25th June 2021 her dismissal was sustained by the First Defendant. And that the First Defendant also reinstated her by letter dated the 25th June 2021. The plaintiff relies on her affidavit sworn 04th July 2023 and filed of the 10th July 2023. 

4.	By these facts it is clear the process to settle her demise has not been properly settled out. She has been affected by it because there are two conflicting decisions one confirming dismissal of her employment from the Police force. And the other reinstating her back into the Police Force. She has standing to bring this matter as it is now. It is culmination of the internal process that has been exhausted with two conflicting decisions that affect her. One says she is dismissed and the other reengages her services as a policewoman. That process must be allowed its course according to law. Here it did not; there was obvious error demonstrated prima facie. Including ultra vires and error on the face of the record, judicial review grounds demonstrated prima facie as arguable. It is within the realm of Judicial review and leave ought to be granted as pleaded: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. There could not be two decisions emanating from that internal disciplinary process, either she was dismissed, or the initial decision was annulled and voided so that she was reengaged back as a policewoman.

5.	And materially these come out of her Statement pursuant to Order 16 Rule 3 (2) (a) (b) and is prima facie basis upon which leave lies for Judicial review. Order 16 Rule 3 (2) (a) (b) is in mandatory terms, that the originating summons seeking leave for judicial review must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought. Which would be verified by an affidavit filed. The applicant has filed both in her application for leave. She has sufficiently pleaded her cause pursuant to sections 25 (5) (7) (8) (9) and 26 (5) of the Police Force Act 1998. She has prima facie an arguable cause that must be reviewed: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008), affirmed and endorsed boldly in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). 

6.	Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers: Kekedo supra 122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court, Asakusa supra. Examining all I am satisfied that there is arguable basis for leave to be granted. 

7.	This is a matter that arose in decision made on the 16th April 2019. Which is four years ago. But this is a case where the plaintiff appealed the decision within administrative review under the Police Force Act. She was reinstated back on the 25th June 2021. But there was another letter and on the 22nd November 2022 She was put off the payroll reasons of being of being illegally reengaged. And so, this application by the originating summons was filed of the 20th June 2023. She is delayed by 3 months and 28 days in so doing. It is not inordinate and clearly there is prima facie a cause of action for leave to be granted demonstrated here discharging the balance to be accorded in her favour. The Courts are slow to derailing a litigant from the seat of Judgement. In her case it is clearly demonstrated given all above that to give effect to the delay will be injustice more than justice. The process is clearly demonstrated as questionable in law as there is issue of ultra vires, error on the face of the record, and unreasonableness within the Wednesbury principles prima facie. It is arguable and ought to be explored in detail. Therefore, the aggregate is that Leave is granted for Judicial review as pleaded in the originating summons.

8.	The formal orders of the Court are:

(i)	Leave is granted for Judicial review.

(ii)	The applicant will file the substantive notice of motion by Friday 20th October 2023 and have it served proof filed.

(iii)	The Matter will be called up at Directions on Monday 06th November 2023 at 9.30am.

(iv)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Kuma Lawyers: Lawyers for the Plaintiff/Applicant		
Office of the Solicitor Generals: Lawyers for First Defendants