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Wallai v Koim [2023] PGNC 394; N10550 (23 October 2023)

N10550

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 1 OF 2023(IECMS)

GRAHAM WALLAI
Plaintiff

V
SAM KOIM OBE COMMISSIONER GENERAL INTERNAL REVENUE COMMISSION
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 22^nd September, 23^rd October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Officer of IRC – Summary Dismissal 1^st September 2022 – Paragraph & 119 Commission Administrative Order 5-15 Discipline – Non Reporting for Duty no Good Reasons 10 Working Days Summary Dismissal – No Audi Alteram Partum –– Breach of Procedure – Whether Breach of Law & Procedure Not Hear Plaintiff Before Dismissal – Communication with Employer On Non Attendance over Time – Suspension – Charging – Due Process – Arguable Basis – Locus Standi – Delay – Leave granted–Cost follow Event.

Cases cited:
Okuk and State v Fallscheer [1980] PNGLR 274
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:
N. Kiuk, for Plaintiff
H. Wangi, for Defendant

RULING

23^rd October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application seeking by originating summons dated the 05^th January 2023 pleading for:
   
   • (i) An order that leave be granted pursuant to Order 16 Rule 3 (1) of the National Court Rules to apply for judicial review to review the decision of the First Defendant dated the 06^th September 2022, whereby the Plaintiff was summarily dismissed from his employment unlawfully under Internal Revenue Commission Administrative Order especially Administrative Order 5-15 Discipline.
     
   • (ii) Costs be in the cause.
     
   • (iii) Time be abridged.
     
2. He pleads by way of his Statement pursuant to Order 16 Rule 3 (2)(a) filed that since his employment with the second defendant he had no disciplinary record, but he is an arthritis patient which the employer is aware of. He was attending to the exercise of his rights to vote in the general election after leave was granted by the employer first defendant. And at the time he went back to his home Province of Enga to cast his vote in the election. And could not come back because of election related violence that escalated out of control preventing travel because of safety and security. And which he communicated to the immediate section taking charge in the employ of defendants.
   
3. He disposes to these facts in his affidavit dated the 28^th December 2022 filed of the 05^th January 2023. A supplementary affidavit that he has deposed to of the 11^th January 2023 and filed of the 16^th January 2023. With two affidavits of service of the 11^th January 2023, filed of the 16^th January 2023, yet a second of the 03^rd February 2023 filed that same day. And toping off with a supplementary dated and filed of the 06^th February 2023. He has summed this evidence in the Statement pursuant to Order 16 Rule 3 (2)(a) filed of the 05^th January 2023 together with affidavit verifying dated the same sworn of the 28^th December 2022. Notice has been given to the Secretary for Justice filed of the 05^th December 2022.
   
4. What is pertinent out of all this evidence is that he was indeed granted leave to take part in the general election to cast his vote in Enga Province where he originates from. And he took that leave of the 06^th July 2022 and flew to Mt Hagen and then travelled by road to his village of Mulitaka Porgera Paiela where polling was to take place on the 09^th July 2022 for the province. And he was within from that date to the 20^th July 2022 because the situation had turned volatile nature of the situation now caused by disgruntled supporters in that election. He could not travel as accessibility was denied by fierce fighting in the nearest District to his village and the road link was destroyed to Porgera and Laiagap station. Hug ditch was dug preventing. He became sick and was admitted to the hospital and so could not return as he was hospitalized at the Ialibu District Hospital on the 24^th July 2022. And this was the case for his attendance in Mt Hagen and Lae from 26^th July 2022 to 28^th July 2022. He eventually resumed duties on 22^nd August 2022 after flying back. But initially could not get on because of problems with the flight being rescheduled. He was served letter of 1^st September 2022 which summarily dismissed him from his employment with the Defendants. He appealed internally on the 22^nd September 2022 but was unsuccessful hence this originating summons.
   
5. It is clear he has not been accorded the opportunity to air his grievance and why he was not able to be on duty leave allowed. Section 59 Natural Justice prima facie has not been accorded in the application of Internal Revenue Commission Administrative Order Especially Administrative Order 5-15 Discipline. Which must be the subject of proper scrutiny in a judicial review application. Audi Alteram Partum is an integral part of Judicial review in equity: Okuk and State v Fallscheer [1980] PNGLR 274. The evidence set out above do not accord that upon the plaintiff applicant in his dismissal. There was communication that he made to the defendants attached to his affidavit, email exchanges that were in my view prima facie a case to be given an opportunity to hear out before the eventual demise of dismissal. He is a university graduate a Bachelor of Business and Management from the University of Papua New Guinea of the 16^th April 2010. He has been in the employment of the Defendants since 05^th May 2019 as debt recovery officer. Which was ended on the 1^st September 2022 with that summary dismissal. There is no prior record of ill discipline and warnings on record to improve or be dealt with summarily next time around. And this was the case on the 1^st September 2022.
   
6. His grounds evidenced prima facie by the observations set out above emanating from the materials relied are on terms with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Because Judicial review is about the process that is taken to arrive at a decision and when there is error in the process taken certiorari lies: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192:
   

. “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 v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).

This is evident in pleading set out above.

7. He has locus standi within his materials relied that he has been directly effected by the actions of the defendants and he has sufficiently pleaded prima facie: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Given all set out above the delay is not inordinate and wanting for prosecution. This is an action against the plaintiff in the hands of the defendant since the 1^st September 2022 and this is now 23^rd October 2023 securing what was filed by the originating summons of the 05^th January 2023. To deny on the basis of four months by order 16 rule 4 (2) of the Rules would be injustice more than justice. There is no evidence to the contrary that substantial hardship is evident against the defendants should this applicant be granted his plea here. I am satisfied that this ground must be held in his favour. It is arguable for the reasons I set out above. And internal avenue has been resorted to finalized with the appeal that was refused so this is an appropriate avenue that the plaintiff has resorted to. He satisfies this ground which sums that his application will be granted as pleaded.
   
8. Leave is hereby granted for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules to apply for judicial review to review the decision of the First Defendant dated the 06^th September 2022, whereby the Plaintiff was summarily dismissed from his employment unlawfully under Internal Revenue Commission Administrative Order Especially Administrative Order 5-15 Discipline. Costs will follow the event.
   
9. The formal orders of the Court are:
   
   • (i) Leave is granted for Judicial review pursuant to the Plaintiff’s originating summons dated 05^th January 2023.
     
   • (ii) Costs will follow the event forthwith.
     

Orders Accordingly.
__________________________________________________________________
Kiuk & Associate Lawyers: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for First Defendants