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David v Provincial Executive Council of Southern Highlands Provincial Government [2024] PGNC 98; N10755 (28 March 2024)

N10755

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 18 OF 2024 [IECMS]

BETWEEN:
JERRY DAVID
Plaintiff

AND:
PROVINCIAL EXECUTIVE COUNCIL OF SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
First Defendant

AND:
TAIES SANAN, SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND:
THE PUBLIC SERVICE COMMISSION
Third Defendant

AND:
HONOURABLE JAMES MARAPE, MP, PRIME MINISTER AND CHAIRMAN OF THE NATIONAL EXECUTIVE COUNTICL
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
DAVID KELMA
Sixth Defendant

Waigani: Dingake J
2024: 6^th, 7^th, 12^th, 19^th & 22^nd & 28^th March

JUDICIAL REVIEW – practice and procedure – application for stay of decision of NEC – legal principles on grant of stay discussed - Whether there are serious questions to be tried and that an arguable case exists; whether an undertaking as to damages has been given; whether Damages would not be an adequate remedy if a stay is not granted; whether the balance of convenience favours the granting of a stay; and the interests of justice require that there be a stay of proceedings - not an appropriate case to grant the stay – application for stay refused

Cases Cited:
Papua New Guinean Cases

Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Thadeus Kambanei v National Executive Council (2006) N3064
Roderick Kamburi v Chief Ombudsman (2009) N3895

Overseas Cases

American Cyanamid Company v Ethicon Limited [1975] UKHL 1; [1975] AC 396

Counsel

Mr. Wesley Bigi, for the Plaintiff
Mr. Rajiv Puyan, for the First Defendant
Mr. Kevin Kipongi, for the Second, Fourth & Fifth Defendants
Mr. Richard Simbil, for the Third Defendant
Mr. Harvey Nii, for the Sixth Defendant

RULING

28^th March 2024

1. DINGAKE J: This is my ruling on the stay application brought by the Plaintiff.
   
2. The Plaintiff was at all material times hereto the Administrator of Southern Highlands Provincial Government (SHPG).
   
3. On the 16^th of February, 2024, his appointment was revoked by the National Executive Council (NEC).
   
4. Being aggrieved by the above decision the Plaintiff commenced proceedings against the Defendants, seeking leave to review the decision of the NEC, on the 1^st of March 2023.
   
5. This Court granted him leave on 12^th of March 2024.
   
6. In his Notice of Motion filed on the 1^st of March, 2024, the Plaintiff sought, inter alia, that if leave is granted, such leave should operate as a stay of the decision of the NEC and that he be allowed to resume duties as the Provincial Administrator of Southern Highlands Province forthwith pending the determination of this proceedings.
   
7. The application for stay is opposed by the Defendants.
   
8. The question that falls for determination is whether the Plaintiff is entitled to be granted stay as prayed.
   
9. The primary legal principles which guide the Court’s consideration when determining whether to grant an interim junction or stay are well settled. The leading authority is a decision of the House of Lords in American Cyanamid Company v Ethicon Limited [1975] UKHL 1; [1975] AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525. These principles have been reaffirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.
   
10. In the case of Chief Collector of Taxes v Bougainville Copper Ltd (supra), the Supreme Court stated that in an application for interim injunction the following considerations are relevant:
    1. Whether there are serious questions to be tried and that an arguable case exists;
    2. An undertaking as to damages has been given;
    100. Damages would not be an adequate remedy if a stay is not granted;
    4. The balance of convenience favours the granting of a stay; and
    5. The interests of justice require that there be a stay of proceedings.
       
11. The application of stay, of a decision of a public authority, involving the suspension or dismissal of an official, serving in a public office (provincial or national) invariably involves the balancing of the interests and or rights of the Plaintiff/Applicant and public interest in good administration because the decision to stay or not to stay may affect the delivery of public services in the affected area.
    
12. The Justices of this Court would be cautious, nay, reluctant, to grant such relief except in very exceptional circumstances, where public interest favours that the public employee suspended or dismissed be brought back to continue his/her duties.
    
13. The above position was brilliantly articulated by Injia DCJ, in the case of Rodrick Kambanei v National Executive Council (2006) N3064.
    
14. In the above case, Injia DCJ, expressed himself in the following terms; with respect to an application for a stay or interim injunctive orders in public employment situation:
    

“10. As a general principle, in an application for interim injunction or interim mandatory injunction under Order 16 Rule 3(8), in a case of judicial review of a decision concerning suspension or removal of a public official on disciplinary grounds, a stay or an interim injunction or interim mandatory injunction should not be granted except in very exceptional cases where the public interest of the public employer in maintaining continuity of good administration of the office would be best served by the applicant’s restoration to office pending the hearing and determination of the substantive application for judicial review. The public interest in the good administration of public office is the paramount consideration. The private rights of the employee such as in protecting the applicant’s integrity and reputation is a relevant consideration but it is not an important consideration.”

(Emphasis mine)

15. My brother Gavara-Nanu J also pronounced himself with clarity on the question whether granting stay in a case similar to the present may be inimical to good administration, in the case of Kamuri v Chief Ombudsman (2009) N3895. At paragraph 18 of the Judgment, Gavara-Nanu J said the following:
    

“18. Furthermore, if I was to grant the relief sought by the plaintiff, it would e contrary to public policy regarding good administration within the Ombudsman Commission, because the plaintiff will not be able to work with the Chief Ombudsman who is the head of the Ombudsman Commission, given that the plaintiff was not his choice for the position in question. This is paramount importance: Thadeus Kambanei v NEC N3064. More significantly, granting of the relief sought by the plaintiff would be contrary to the well established principles of law of contract relating to employer and employee relationship, viz, once the employer does not wish to continue or to renew its contractual relationship with its employee, as is the case here, the employer who is this case is the Ombudsman Commission cannot be forced to continue or to renew the relationship ...”.

19. For the foregoing reasons, I am of the firm view that in the event that the plaintiff is to succeed in his substantive application, his remedy would lie in damages. For plaintiff’s possible damages, there is an undertaking as to damages filed by the defendants and I have no reason to doubt the ability of the defendants to adequately compensate the plaintiff for any damages he may suffer. I also consider that damages would be sufficient compensation for him”.
    

(emphasize mine)

16. I agree with reasoning of the above cases.
    
17. The Court, in considering stay, must deeply reflect whether a stay may not disrupt the delivery of public service. It must balance the interests of the Plaintiff with those of the public and if the interests conflict it must lean in favour of public interest.
    
18. I have considered the possibility that the revocation may have an adverse effect on the Plaintiff personally. I have balanced the above with the imperative of good administration.
    
19. In this case, the NEC has already appointed the Sixth Defendant to act as the Acting Provincial Administrator of SPHG. In these circumstances, it is not in the best interest of good administration to disrupt the arrangement already in place as this may adversely affect the delivery of public service.
    
20. I have not been furnished with any evidence suggesting that preserving the status quo in the sense of directing the Plaintiff to go back to his old position, which would necessarily mean the Sixth Defendant vacating the office, would be in public interest.
    
21. For all the above reasons, I do not consider that granting stay would be appropriate for two (2) main reasons, namely, that to grant stay is not in the interest of good administration and that, even if the Plaintiff is to succeed in his substantive application, in due course, his remedy would lie in damages.
    
22. There is no suggestion or more significantly any evidence that the Defendants may not be in a position to adequately compensate the Plaintiff for damages he may suffer. In my opinion, damages would be sufficient compensation for him.
    
23. In the circumstances, having regard to the authorities cited herein and my reasons above, I do not consider that this is an appropriate case to grant the stay as prayed.
    
24. In the result, this application (Plaintiff’s Notice of Motion filed on the 1^st of March, 2024) is refused with costs, such to be agreed or taxed.

_______________________________________________________________
Henaos Lawyers: Lawyers for the Plaintiff
Baniyamai Lawyers: Lawyers for the First Defendants
Office of Solicitor General: Lawyers for the Second, Fourth & Fifth Defendants
Office of Public Service Commission: Lawyers for the Third Defendant
Harvey Nii Lawyers: Lawyers for the Sixth Defendant