N10152

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 219 OF 2021 (IECMS-CC1)

KARO RUPA

V

KAKAITO KASI & THE STATE

Waigani: Wawun-Kuvi, AJ
2022:16th December
2023: 3rd March
CIVIL PRACTICE AND PROCEDURE-National Public Service- Termination of Officer- Application for mandamus sought under incorrect provisions of the National Court Rules- Abuse of Process. 
Karo Rupa was employed by the Office of Library and Achieves. She applied for the position that she held in an Acting capacity. Prior to the selection she was terminated by the Director General. She complained to the Secretary for the Department of Personal Management. He was informed to reinstate her. He did not. She commenced proceedings by way of Originating Summons seeking orders that were in the nature of mandamus.
Held:
1.	A party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. Order 16(1) is mandatory: see Madang Timbers Ltd v Wasa [2021] PGSC 84; SC2154 (30 September 2021), Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008), Pomaleu v Skate Jnr [2006] PGSC 24; SC838 (21 July 2006), Sapu v Commissioner of Police [2003] PGNC 80; N2426 (9 July 2003), Electoral Commission v Niningi [2003] PGSC 9; SC710 (20 June 2003), Attorney General v Hamidian-Rad [1999] PNGLR 444 (27 August 1999), Maniho v Wenge [1999] PGNC 66; N1870 (2 July 1999), Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another  SC630  (1999), Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557 and Kawage v Solicitor General [1999] PGNC 65; N1875 (2 July 1999)
2.	The effect and substance of the orders sought by the plaintiff were in the nature of an order for mandamus and therefore she should have properly initiated proceedings by way of Judicial Review pursuant to Order 16 of the National Court Rules 1983.
3.	A party seeking an order for mandamus must first obtain leave of the Court: see Order 16 rule 3 of the National Court Rules and Kawage v Solicitor General [1999] PGNC 65; N1875 (2 July 1999)
4.	 A requirement for leave to be granted is that the plaintiff has exhausted all remedies provided by law: see Nii v Manning [2020] PGSC 78; SC1986 (27 August 2020), Sapu v Commissioner of Police [2003] PGNC 80; N2426 (9 July 2003), Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989) and The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417. 
5.	The Plaintiff did not complain to the Public Service Commission pursuant to Section 18 of the Public Services (Management) Act.
6.	For the foregoing reasons the proceedings are dismissed. The Plaintiff is at liberty to file fresh proceedings pursuant to Order 16 of the National Court Rules 1983 after she has exhausted all remedies provided by law.

Cases Cited:
Papua New Guinean Cases

Kandiu v Kumbi [2021] PGSC 89; SC2160 
Madang Timbers Ltd v Wasa [2021] PGSC 84; SC2154 
Nii v Manning [2020] PGSC 78; SC1986 
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 
Pomaleu v Skate Jnr [2006] PGSC 24; SC838 
Sapu v Commissioner of Police [2003] PGNC 80; N2426 
Electoral Commission v Niningi [2003] PGSC 9; SC710 
Attorney General v Hamidian-Rad [1999] PNGLR 444 
Maniho v Wenge [1999] PGNC 66; N1870 
Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another (1999) SC630
Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557 
Kawage v Solicitor General [1999] PGNC 65; N1875 
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

Overseas Cases:
Barker v Furlong [1891] 2 Ch 179
Reference
National Court Rule 1983
Public Services (Management) Act

Counsel:
Mr. John S Goava, for the Plaintiff

dECISION
3rd March, 2023

1.	WAWUN-KUVI, AJ: Karo Rupa (plaintiff) was employed with the Office of Library and Achieves. She was the Acting Assistant Director Reader Services. She applied for the substantive position following an internal advertisement. She was terminated prior to receiving the results of her application. 

2.	The Office of Library and Achieves is created under section 3 of The National Library and Achieves Act 1993. The Director General is the person appointed to oversee the Office. The First Defendant is the incumbent Director General. He terminated the plaintiff.
 
3.	The plaintiff complained to the Secretary for the Department of Personal Management. The Secretary informed the First Defendant to reinstate the plaintiff. The First Defendant did not. The plaintiff now seeks the intervention of the Court for her reinstatement.

4.	These preceding events are uncontradicted. This follows from the combination of the Defendants failure to file their respective Notices of Intention to Defend and non-appearances after notices were served of court dates. The matter now proceeds in the absence of the defendants pursuant to Or4 Rule 33 of the National Court Rules 1983 (the Rules).
 
5.	However, it does not necessarily follow that judgement should be entered in favour of the Plaintiff. I am required to independently satisfy myself that the merit of the case warrants the granting of the reliefs. The plaintiff is still required to prove her claim to the required standard. The proof is limited to the matters pleaded: Kandiu v Kumbi [2021] PGSC 89; SC2160 (12 October 2021) and Barker v Furlong [1891] 2 Ch 179.

6.	Prior to venturing into the substance of the claim, it is necessary to first determine whether the plaintiff has commenced proceedings under the proper mode.

7.	The following reliefs are sought:
“1.	A declaration pursuant to Order 12 Rule 8(3)(b) of the National Court Rules 1983 (as amended), a declaration that the entered decision of the Secretary of Department of Personal Management Taies Sansan (Ms) to approved last post Plaintiff held as Assistant Director-Readers Services Grade 17- consistent with Section 33 Appointments and OLA Act 1993  for immediate resumption on or about 18 August 2019 be applied and enforced forthwith by the respondent Director General- Mr Kakaito Kasi.
2.	A declaration pursuant to order 12 Rule 8 (3) (b) of the National Court Rules 1983 (as amended), a declaration that the entered decision of the Secretary of Department Personal Management Taies Sansan (Ms) to approved last post Plaintiff held as Assistant Director-Readers Services Grade 17- consistent with Section 33 Appointments and Office of Libraries and Achieves Act 1993 for immediate resumption on or about 18 August 2019 be applied and enforced forthwith by the respondent Director General- Mr Kakaito Kasi.
3.	A declaration pursuant to order 12 Rule 8 (3) (b) of the National Court Rules 1983 (as amended), a declaration by of virtue of follow on events that salary and other emoluments due to be back dated to 20 April 2018 and paid forthwith.
4.	Orders pursuant to Order 16 rule 7 of the National Court Rules to pay damages for distress and anxiety at K20, 000.00 per year for loss and suffering due to deliberately ignoring lawful direction for the past 2 years to the present to be assessed.
5. 	Any other orders deemed appropriate in the circumstances by this Honourable Court.
6. 	Time of entry of these orders be abridged to the date of settlement which takes place forthwith.”

8.	The plaintiff filed in person without the assistance of a lawyer. It is obvious that she had relied on the wrong provisions of the Rules. Order 12, Rule 8(3)(b) applies to the setting aside or variation of a Court Order and has no correlation to the declarations that she seeks.

9.	Additionally, relief 4 seeks damages pursuant to Order 16 rule 7, which applies to Judicial Review which she also does not seek.
 
10.	Mr.  Goava having entered his appearance did not seek to either withdraw the matter or obtained leave to amend the originating summons.

11.	Momentarily, setting aside the issue on the reliance on the wrong provisions of the Rules, the next question is what is the substance and effect of the relief sought?

12.	In my view the reliefs sought under 1, 2 and 3 in the Originating Summons are in substance and effect, in the nature of prerogative writs; namely an order in the nature of mandamus to compel the First Defendant to perform his duty to reinstate the plaintiff.

13.	The law is settled that a party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. Order 16(1) is mandatory: see Madang Timbers Ltd v Wasa [2021] PGSC 84; SC2154 (30 September 2021), Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008), Pomaleu v Skate Jnr [2006] PGSC 24; SC838 (21 July 2006), Sapu v Commissioner of Police [2003] PGNC 80; N2426 (9 July 2003), Electoral Commission v Niningi [2003] PGSC 9; SC710 (20 June 2003), Attorney General v Hamidian-Rad [1999] PNGLR 444 (27 August 1999), Maniho v Wenge [1999] PGNC 66; N1870 (2 July 1999), Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another  SC630  (1999), Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557 and Kawage v Solicitor General [1999] PGNC 65; N1875 (2 July 1999).

14.	  Injia J (as he then was) in Francis Kawage v Solicitor-General & The State (1999) stated:

“I have reservations concerning the regularity of the procedure employed in this application. An application by an interested party for an order for mandamus to compel a statutory authority to perform its statutory duty where it has refused or failed to perform that duty is required to be commenced by an application for judicial review under Order 16 of the National Court Rules. Order 16 r (1) provides that: ‘An application for an order in the nature of mandamus, prohibition, certiorari or quo warrant shall be made by way of an application for judicial review in accordance with this Order’. The requirement under O 16 r (1) is mandatory.” [Emphasis mine]

15.	 The combination of the foregoing factors leads me to conclude that the plaintiff commenced proceedings under the incorrect mode. The result is that this proceeding is incompetent and an abuse of process. 

16.	The plaintiff is at liberty to file fresh proceedings however, it is also apparent on the pleadings and the evidence in support that the plaintiff has not exhausted all available remedies. She has not made a complaint to the Public Service Commission pursuant to Section 18 of the Public Services (Management) Act. 

17.	A party seeking an order for mandamus must first obtain leave of the Court. A requirement for leave to be granted is that the plaintiff has exhausted all remedies provided by law: see Nii v Manning [2020] PGSC 78; SC1986 (27 August 2020), Sapu v Commissioner of Police [2003] PGNC 80; N2426 (9 July 2003), Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989) and The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417. 

18.	Considering that the plaintiff has not exhausted all remedies, the appropriate course for her would be to do so before seeking to file fresh proceedings.

19.	For those reasons I dismiss the proceedings. The plaintiff is at liberty to file fresh proceedings under Order 16 after she has exhausted all remedies provided by law.
 
20.	There is no merit to address the substance of the claim.
Orders
21.	The Orders of the Court are:

1.	The Originating Summons filed on 28 September 2021 is dismissed.
2.	The Plaintiff is at liberty to file fresh proceedings pursuant to Order 16 of the National Court Rules 1983 after exhausting all available remedies provided by law.
3.	The Plaintiff shall bear her own costs of the proceeding.
4.	Time is abridged.
________________________________________________________________
Sannel Lawyers: Lawyer for the Plaintiff