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Mangulik v Torovi [2023] PGNC 490; N10629 (1 December 2023)

N10629

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 113 OF 2023

BETWEEN:
STANLEY MANGULIK
Applicant/Plaintiff

AND:
SAMSON TOROVI as the Provincial Administrator of East Sepik Province
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Purdon-Sully J
2023: 24^th November

NATIONAL COURT – practice and procedure – application for stay pending determination of judicial review – principles applicable for grant of application for stay – stay refused – matter listed for early trial – interlocutory injunction prohibitive in nature made.

Legislation:
Constitution of the Independent State of Papua New Guinea
National Court Rules 1983

Cases Cited:

Papua New Guinean Cases
McHardy v Protect Security and Communications Ltd [2000] PNGLR 279
Yama Group of Companies Ltd v PNG Power Ltd (2005) N2831
Koim v O’Neill [2014] PGNC 147; N5694
Ramu Niko Management (MCC) Ltd v Eddie Tarsie (2010) SC1075
Lupari v Somare (2010) SC1071
Komdra v Lenalia [2016] SC1527
Kekedo v Burns Philp [1988-89] PNGLR 122
Hon Peter O’Neill v Ombudsman Commission of Papua New Guinea (2014) N5642
Gelu v Somare (2008) N3526
Ilau v Somare [2007] PGNC 265; N5511
Ombudsman Commission v Yama [2004] PGSC; SC747
National Capital District Interim Commission v Crusoe Pty Ltd [1993] PNGLR 139
Koim v O’Neill [2016] N6558
Ramu Niko Management (MCC) Ltd v Eddie Tarsie (2010) SC1075Z
Pamaraka v Tare [2022] PGNC 103; N9567
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Robinson v National Airlines Commission [1983] PNGLR 476
Markscal Limited v Mineral Resources Development Co Ltd [1996] PNGLR 419

Overseas Cases
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 760
Shepherd Homes Ltd v Sandham [1971] Ch 340

Counsel:
Mr. Jonathan Asupa, for the Applicant/Plaintiff
Mr. Nou Vada, for the First Defendant

DECISION

01 December 2023

1. PURDON-SULLY J: By Notice of Motion filed 27 October 2023 the applicant, Stanley Mangulik, seeks the following interlocutory relief:
   
   1. An interim order pursuant to Order 16 Rule 3(8) and order 12 Rule 1 of the National Court Rules (NCR) and/or section 155(4) of the Constitution that, leave granted on 25 October 2023, operate as a stay of a decision of the First Defendant on 26 September 2023 to revoke his appointment as the Acting District Administrator of Maprik District.
   2. An interim injunction pursuant to Order Rule 3 (8)(b) and Order 12 Rule 1 of the National Court Rules and/or section 155(4) of the Constitution that the Plaintiff continue to perform his functions as the Acting District Administrator and Chief Executive Officer of the Maprik Development Authority with no loss of entitlements, powers, functions, and responsibilities pending the determination of the substantive review application.
   100. An interim injunction pursuant to Order Rule 3 (8)(a) and Order 12 Rule 1 of the National Court Rules and/or section 155(4) of the Constitution that the Defendants and their servants or agents and instrumentalities and whosoever acting for or on their behalf be restrained forthwith from taking any further steps, actions, or decisions to affect the Plaintiff’s position as Acting District Administrator and Chief Executive Officer.
   4. Costs
      
2. The application is opposed by the first respondent who seeks the following orders:
   
   1. The application be dismissed.
   2. The Registrar be ordered to list the matter for next directions hearing for the determination of a date for the hearing of the substantive application.
   100. The First Defendant’s costs for this application be paid by the Plaintiff/Applicant on a solicitor client basis to be taxed of not agreed, and
   4. Any other orders that court deems appropriate.
      
3. The application was heard by me on 25 November 2023 and my decision reserved. I indicated to the parties that I wished to reflect on the matter over the weekend and would seek to deliver my decision the following Monday subject to my Supreme Court commitments in the week of 27 September. That could not occur and the matter was listed on 1 December 2023. These are my reasons.
   

BACKGROUND

4. The applicant’s case is that his appointment as the Acting District Administrator of Maprik District and Chief Executive Officer of the Maprik District Development Authority was unlawfully revoked by the first defendant on 27 September 2023 on the grounds of gross abuse of public funds and non-performance of administrative duties.
   
5. He was then replaced by Mr. Godfreid Raushem as caretaker administrator. Mr. Rashem annexes to his affidavit his instrument of appointment dated the 26 September 2023 which is in the following terms:
   

I, Samson Torovi, Provincial Administrator for East Sepik Provincial Administration, by virtue of the Powers conferred Section 39 of the Public Service (Management) Act 1995 and all other powers me enabling, hereby "Appoint Mr Godfried Raushem to act in the Position No. ESPM 001- District Administrator for Maprik, Grade 17". All Section 32 Powers are also delegated concurrently.

This Instrument is effective as of 26 September 2023 and shall remain until Investigation of Miss (sic) Conduct In Office are fully completed and or, the position is filled by a permanent incumbent.

6. The applicant asserts that the revocation of his appointment was unlawful, that it involved a denial of procedural fairness and was otherwise in breach of the principles of natural justice.
   
7. On 10 October 2023, he initiated proceedings in this Court seeking leave to apply for judicial review.
   
8. By Order of 25 October 2023, the applicant was granted leave by a Judge of this Court, the matter then adjourned on the 6 November for a directions hearing on 21 November 2023.
   
9. The applicant, who is yet to file a Notion of Motion seeking judicial review, seeks interim orders pending the substantive hearing for judicial review that will preserve the status quo by staying the decision to revoke. He also seeks the equitable remedy of injunction forbidding the first defendant from inter alia taking steps that may affect his position.
   
10. In opposing the stay application, the first defendant contends, inter alia, that the applicant does not have an arguable case as he has not produced an Instrument of Appointment or contract such as to suggest that he was appointed to the position of Acting District Commissioner. Further, even if he had been validly appointed, damages would be the appropriate remedy, not his reinstatement.
    
11. The applicant relies upon the following documents:
    
    1. Notice of Motion filed 27 October 2023;
    2. Affidavits of the applicant filed 27 October 2023 and 20 November 2023;
    100. Written submissions filed 20 November 2023.
         
12. The first defendant relies upon:
    
    1. Affidavit of Godfried Raushem filed 16 November 2023;
    2. Affidavit of Samson Torovi filed 16 November 2023;
    100. Further affidavit of Samson Torovi filed 23 November 2023;
    4. Written submissions filed 20 November 2023.
       

DISCUSSION

13. The applicant does not now seek to ground his application under Order 12 Rule 1 of the National Court Rules nor section 155(4) of the Constitution. He conceded there were difficulties in him doing so. He relies solely upon the provisions of Order 16 r 3(8) of the Rules.
    
14. Order 16 r 3(8) provides as follows:
    

Where leave to apply for judicial review is granted, then –

(a) if the relief sought is an order for prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders.
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in any action begun by writ.

15. Order 16 Rule 3(8) makes clear that two conditions must be met for the granting of a stay order: firstly, the grant of an ex parte application for judicial review, secondly, the pleading of relief in the form of an order for certiorari or prohibition and, additionally, where those conditions are met, where the court so directs, the grant of leave shall operate as a stay.
    
16. The onus lies on the applicant for a stay to persuade the Court to grant it. The grant or refusal of a stay is discretionary. A number of factors have been enumerated in the case law relevant to the Court exercising its discretion, the Court required to have regard to the evidence or material relied upon by the parties and consider the totality of those factors as may be relevant to the particular circumstances as the justice of the case requires (McHardy v Protect Security and Communications Ltd [2000] PNGLR 279; Yama Group of Companies Ltd v PNG Power Ltd (2005) N2831).
    
17. The onus lies with the Applicant for a stay to persuade the Court to exercise the stay in his or her favor.
    
18. Whilst a stay order may be technically different to an injunctive order, they are the same in that they both operate to preserve the status quo until a full hearing. Thus, the principles applicable to a stay may be applied to an injunction (Koim v o’Neill [2014] PGNC 147; N5694; Ramu Niko Management (MCC) Ltd v Eddie Tarsie (2010) SC 1075Z).
    
19. Having regard to the principles identified in the authorities and having considered the submissions on behalf of the parties, I have had regard to the following factors that I view as being relevant to the circumstances of this case:
    
    1. Whether leave for judicial review has been granted
    2. Whether an undertaking as to damages has been filed
    100. Possible hardship, inconvenience or prejudice to either party
    4. The nature of the decisions sought to be stayed
    5. Whether there is a serious issue to be tried
    6. Whether damages would be a sufficient remedy
    7. Where does the overall interest of justice lie; and
    8. Balance of convenience.
       
20. I shall address each in turn.
    

Whether leave for judicial review has been granted

21. Leave has been granted to the applicant to seek judicial review.
    

Whether an undertaking as to damages has been filed

22. This requirement has been met, the applicant providing an undertaking of damages filed on the 27 October 2023.
    

Possible hardship, inconvenience or prejudice to either party

23. The Court accepts that the abrupt termination of the applicant's employment, and being publicly accused of financial impropriety and incompetence without being afforded the opportunity to be heard, are all matters that could cause significant hardship, prejudice and inconvenience to the applicant. They include reputational damage. We live in a society that respects the rights of the individual with an expectation they will be accorded due process and fair treatment, principles enshrined in the Constitution.
    
24. Further, the first respondent’s contention that the applicant was not appointed to the position from which he was terminated by the first defendant was a shock to the applicant necessitating him having to place further evidence before the Court to meet the first defendant’s case.
    
25. The applicant also deposes to the importance to him and to the public of him being returned to his previous role because of the current political vacuum. It is not a factor however to which the Court accords particular weight, absent supportive evidence. Nor is there evidence to suggest that the applicant would be the only person qualified to undertake the administrative role pending the substantive hearing by reason of any particular skill set.
    
26. On the evidence the political vacuum is likely to be filled with an election being held in January 2024 and the administrative role is not vacant. It has been filled by Mr. Raushem. He deposes to being a public servant with multiple years' experience in provincial government administration. There is no persuasive evidence he does not have the skill set to undertake the responsibilities of the role pending a substantive hearing. Whilst the terms of his instrument of appointment appear tied to some investigation, he appears to have the confidence of the first defendant, a circumstance relevant to public interest considerations.
    
27. Further, it is not the case that the applicant has held the office for many years where continuity in the public interest may favor his return pending the substantive hearing and the grant of a stay. Notwithstanding his appointment in February 2023, on his evidence he only became solely in charge of the administrative leadership of the district from 13 August 2023 when the local member died. Mr Raushem was appointed the following month. What effect, if any, the applicant’s absence may have on the administration of the district is a circumstance likely ameliorated by an expeditious hearing of the substantive judicial review.
    
28. The Court accepts that a granting of the stay is likely to also cause hardship, prejudice, and inconvenience to the first defendant. It would involve a further change to an administration head. If the change is made and the applicant is unsuccessful at trial or successful and not reinstated, that would occasion a further change causing disruption and inconvenience to the first defendant with potential administrative impacts for the public.
    
29. Relevantly, given the nature of allegations before the Court, it would involve the applicant assuming an office where both parties raise issues to do with the other's integrity and capacities.
    
30. The applicant does not address how he would see the relationship working if he was returned to the role when on his evidence, he views the first defendant as having acted unfairly and unlawfully and, further, as having committed a fraud on the Court by lying about his appointment.
    
31. He also raises the spectre of 'forces' at play to undermine him, which if accepted, may suggest disruption in the performance of his responsibilities.
    
32. The evidence does not suggest a future working relationship based on trust and mutual confidence, a relevant factor underscored, on the applicant’s case, by the current political vacuum.
    
33. Where the interim orders sought would result in the applicant returning to the position, some assessment of the working relationship between the applicant and first defendant would be necessary before interim orders such as those sought by the applicant ought to be made. This is because of the potential impact on the public interest, including the maintenance of good administration (Lupari v Somare (2010) SC1071).
    
34. In Komdra v Lenalia [2016] SC1527, the Supreme Court said that in public interest matters the interest of the public will dictate and override private interests that an applicant may seek to protect.
    
35. It is submitted on behalf of the first defendant that Mr. Raushem’s rights must also be considered. However, both parties accept that by operation of the law, his term will expire on or about 25 December 2023. Whilst his instrument of appointment appears to link the end date of Mr. Raushem’s appointment to an unstated investigation of misconduct in office, Counsel for the first defendant was clear on his instructions with respect to the end date of Mr Raushem's term of appointment being 25 December 2023. The impact of the Court’s decision on Mr Raushem's rights is accordingly not a factor of weight for the Court on this application.
    
36. In short, where a proper assessment of the working relationship between the parties is not possible at an interim stage and where this is a public interest matter, the Court should proceed with caution.
    
37. For the above reasons I am unable to conclude that the impacts on the applicant would be greater for him if the stay was refused than for the first defendant if the stay was granted. This is accordingly not a factor that would favour one party over the other in the Court’s consideration as to whether to refuse or grant the stay.
    

The nature of the decisions sought to be stayed

38. The decision sought to be stayed is whether the decision of the first defendant on 27 September 2023 by Circular Instruction revoking the appointment of the applicant as District Administrator was unlawful.
    
39. It concerns the relationship between a Provincial and a District Administrator and whether the former wrongly removed the latter.
    

Whether there is a serious issue to be tried

40. There is a serious issue to be tried, a consideration which would support the granting of the stay. I repeat and rely upon earlier findings relevant to this consideration.
    
41. The applicant asserts that in revoking his appointment, the first defendant, inter alia, acted without authority in terminating his appointment, appointed a caretaker administrator which was also an unlawful act and otherwise failed to accord him procedural fairness and due process including by putting to him the serious allegations that led to his removal thus denying him the opportunity to be heard.
    
42. The applicant submits that a combined reading of the relevant provisions of the Public Service (Management Act) 1995 and the Public Service General Order 1 outline the procedure for the revocation of the position of District Administrator which he asserts was not followed by the first defendant. He further contends that the procedures for the appointment of Mr Raushem were not followed.
    
43. The Court is able to review decisions where the decision maker acts ultra vires by exceeding its powers or jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision no reasonable decision maker could have reached (Wednesbury principles of unreasonableness) or abuses its powers (Kekedo v Burns Philp (1988-89) PNGLR 122 per Kapi DCJ at [124].)
    
44. Section 59 of the Constitution provides for the consideration of the principles of natural justice in judicial and administrative proceedings, with the minimum requirement of natural justice stated to be “the duty to act fairly and in principle to be seen to act fairly” (s 59(2)).
    
45. It is a well-recognized principle that it would be a breach of the principles of natural justice if a person was denied the opportunity to be fairly heard before a decision was made contrary to their interests (Ilau v Somare [2007] PGNC 265; N5511 per Cannings J at [66]).
    
46. It may also be a denial of natural justice and a breach of a duty to act fairly if a public authority failed to follow prescribed procedures with respect to a lawful appointment (Ombudsman Commission v Yama [2004] PGSC; SC747).
    
47. It may also be a breach of natural justice and/or amount to procedural impropriety if a person acting on a representation of a public authority had a legitimate expectation that the public authority would act in a certain way, yet failed to do so to the person’s detriment (National Capital District Interim Commission v Crusoe Pty Ltd [1993] PNGLR 139; Koim v O’Neill [2016] N6558).
    
48. The fact that the Court has found an arguable case in granting leave is a relevant matter to be considered in an application for a stay if after the granting of leave the materials upon which an arguable case was found have not changed substantially (Hon Peter O’Neill v Ombudsman Commission of Papua New Guinea (2014) N5642). Here, however, the evidence of the first defendant that the applicant was not appointed to the position was not before the Court on the leave application which was an ex parte hearing.
    
49. Further, the standard applicable for an arguable case in an application for leave for stay is much higher than that in an application for leave (Gelu v Somare (2008) N3526, cited with approval in Pamaraka v Tare [2022] PGNC 103; N9567 at [11]).
    
50. It is submitted on behalf of the first defendant that the applicant does not have a strong arguable case because he has not produced an Instrument of Appointment as Acting District Administrator of the Maprik District nor an employment contract evidencing such appointment. The applicant counters by submitting that the appointment was made and accepted by him in good faith, acting on the first defendant’s representation as to his appointment and assuming the responsibilities of the office. It is submitted on his behalf that it was the responsibility of the first defendant to take the necessary procedural steps to formalise his appointment by way of an Instrument of Appointment, a responsibility made known to the first defendant in writing in December 2022.
    
51. I find that the applicant has a strong arguable case on the evidence. I am unable to conclude in the circumstances of this case that a lack of an instrument of appointment or contract per se is fatal to the applicant’s case or a circumstance that denies him the right to be accorded procedural fairness or leaves him without remedy. A public authority exercising statutory powers, here the power to appoint and revoke an appointment of an officer to a statutory role, must act in good faith and reasonably.
    
52. In support of this case, the applicant leads evidence inter alia of:
    
    1. a letter dated 14 December 2022 to the first defendant from the Office of the Secretary of the Department of Personnel Management directing the first defendant to attend to various matters including actioning the applicant’s Instrument of Appointment to the office of Acting District Administrator of the Maprik District and the revocation of the appointment of his predecessor;
    2. a letter dated 1 February 2023 to the applicant signed by the first defendant appointing him to the office of Acting District Administrator of the Maprik District and congratulating him on such appointment;
    100. media coverage of the applicant’s appointment on 6 February 2023 in the National newspaper and on 13 February 2023 in LoopPNG;
    4. photographs of the signing of the applicant’s letter of appointment in the presence of the first defendant;
    5. a Circular Instruction no 27/2023 signed by the first defendant revoking the applicant’s appointment as Acting District Administrator of the Maprik District by reason of the applicant’s purported non-performance of administrative duties as District Administrator amongst other matters;
    6. a letter to the applicant from the first defendant dated 27 September 2023:
       1. informing the applicant that he had revoked his ‘Acting Appointment’ on 26 September 2023 which shall “remain until investigation of Possible miss-conduct (sic) in Office are fully completed and or the position is filled by a permanent incumbent”; and
       2. requesting a report from the applicant within 7 days “to facilitate the Handover Takeover on 5 October 2023”, such report to cover inter alia asset and manpower, major issues and achievements, revenue and expenditure and the disbursement of particular monies by the applicant.
          
53. The first defendant did not meaningfully respond to this evidence notwithstanding having been afforded the opportunity to do so by way of an adjournment.
    
54. It is submitted on behalf of the first defendant that if it is found that the applicant had been appointed, his term of appointment would have expired 90 days thereafter, namely in May 2023. It is a submission that assumes, however, that the applicant’s appointment would not have been extended. On the evidence of the applicant, he had a close and supportive working relationship with the elected member who died on 13 August 2023.
    

Whether damages would be a sufficient remedy

55. This is a relevant factor.
    
56. I am unable to conclude that if the stay is not granted there would be no remedy open to the applicant if he was successful at the substantive hearing. If successful, damages may be an adequate remedy to compensate the applicant for rights which may have been lost or any injury suffered particularly if a fulsome consideration of the evidence were to lead the court to find that an order for his reinstatement should not be made.
    
57. This supports a refusal of the stay.
    

Where does the overall interest of justice lie?

58. The overall interest of justice lies in maintaining the status quo pending trial if the Court is able to provide the parties with an expeditious hearing.
    
59. A significant consideration on the facts of this case is the public interest in ensuring that the administration needs of the district are met without undue disruption given the nature of the allegations and counter allegations of the parties on the evidence. I repeat and reply upon my earlier discussion of this consideration.
    
60. Even if the applicant was successful at the substantive hearing, reinstatement is not an automatic remedy. It involves a consideration as to whether it would be impracticable to do so (Pamaraka (supra) at [12]).
    
61. Further, the principal dilemma about granting interlocutory injunctions in aid of a stay and to preserve the status quo is that there is by definition a risk that the Court may make the ‘wrong’ decision in the sense that granting an injunction to a party who fails to establish his right at trial or alternatively in failing to grant an injunction to a party who ultimately succeeds at trial. As Hoffmann J said in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 760 at p 679-680, the Court should “take whichever course appears to carry the lower risk of injustice if it should turn out to have be “wrong” in the sense as described where the final result of the case cannot be known and the Court is required to do the best it can on the evidence it has before it at an interlocutory hearing stage” (see also Shepherd Homes Ltd v Sandham [1971] Ch 340 at p349B).
    
62. The injunction sought at Order 3 of the Notice of Motion is very wide. It carries with it the risk of creating more injustice. It leaves the first defendant in a position where he may be unclear what he should or should not do, with potential public interest consequences. It could be appropriate and within the lawful decision-making responsibility of the first defendant to take “further steps, actions or decisions’ that affect the applicant’s position. As currently drafted, the injunction would, for example, prohibit the first defendant from increasing the applicant’s salary.
    
63. These considerations call for a cautious response. It suggests that the interests of justice are best served by the Court setting the matter down for an early trial to enable the issues of fact and law to be argued in circumstances where I am unable to conclude that in so proceeding a refusal of the stay would result in some disproportionate damage or prejudice to or hardship to the applicant, one that would not be able to be remedied at a final hearing.
    

Balance of convenience

64. The relevant test, as outlined in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878, is who stands to suffer the most if the stay and injunction is not granted. I repeat and reply upon my earlier discussion relevant to this consideration.
    
65. The applicant’s private interests cannot be ignored, however the public interest in ensuring good governance and the lack of evidence of how the working relationship between the parties could be managed in the interim if the applicant was returned to office suggest restraint by the Court and a conclusion that the balance of convenience favors a refusal of the stay.
    

CONCLUSION

66. Taking into account the above factors, in my discretion I refuse the stay and list the matter for an early trial. Counsel for both parties agreed they would be ready for a trial if listed in the week of 18 December 2023. The Supreme Court is sitting on 18 and 19 December 2023. I accordingly list the application for judicial review for a hearing on 20 December at 9.30 am. I shall take submissions on directions.
    
67. Pending the substantive hearing however and to preserve the current status quo I shall restrain the first defendant from extending the appointment of Mr Raushem beyond 25 December 2023 or appointing another person to the office. The injunction, prohibitory in nature, meets the evidence and is otherwise just and convenient to ensure the applicant’s rights are not jeopardised pending trial where he has established a serious, not a speculative case (Robinson v National Airlines Commission [1983] PNGLR 476 at 482; Markscal Limited v Mineral Resources Development Co Ltd [1996] PNGLR 419). I am unable to conclude that Mr Raushem’s rights would be unduly affected by such a course.
    
68. Costs should be in the cause. Whilst the applicant has not been successful on his stay application, there is a serious issue to be tried and interlocutory injunctive relief made.
    

ORDERS

69. The Court makes the following orders:
    

(a) The application for a stay filed 27 October 2023 is dismissed.

(b) That until further order the first defendant is restrained and an injunction issue restraining the first defendant from extending beyond 25 December 2023 by Instrument of appointment or otherwise the appointment of Mr Godfreid Raushem as Acting District Administrator of the Maprik District described in Instrument of Acting Appointment dated 26 September 2023 as Position No ESPM 001 – District Administrator for Maprik, Grade 17 (‘the position’) and the first defendant is further restrained and an injunction issue restraining the first defendant from appointing any other person to the position.

(c) The application for judicial review be listed for hearing on 20 December 2023 at 9.30am with directions.

(d) Costs in the cause

(e) Abridgment of time
________________________________________________________________

Mr. Jonathan Asupa: Lawyer for the Plaintiff/Applicant
Mr. Nou Vada: Lawyer for the First Defendant