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Yatu v Pok [2025] PGNC 388; N11563 (26 September 2025)

N11563

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 66 OF 2025

BETWEEN:
JUSTIN YATU in his capacity as General Secretary and Public Officer of Social Democratic Party Inc
Plaintiff

AND:
EMMANUEL POK in his capacity as the Registrar of Political Parties and Candidates
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI: PURDON-SULLY J
8 AUGUST, 26 SEPTEMBER 2025

JUDICIAL REVIEW - Practice and Procedure – application for leave – undue delay – application for leave refused

Cases cited
Hon Mao Zeming v Justice Timothy Hinchcliffe [2005] SC791
Mathew Sisimolu & 1 Or v Phillip Kende and Ors [2022] SC2267
Mari v Marape [2022] SC2311
Matava v Sungi [2024] SC2567
Wiko Development Corporation Ltd v Samson & Ors [2025] PGSC 40; SC2732
Baki v Koim [2017] N6840
Lae Bottling Industries Ltd v Law Rental Homes Ltd [ 2011] SC1120
Sekesu Sisapi Land Group Inc ILG No 2121 v Turama Forest Industries Ltd [2010] SC1072
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746

Counsel
Mr Y Otmar for the plaintiff
Mr B Naris for the State

DECISION

1. PURDON-SULLY J: This is an application for leave for judicial review by the plaintiff pursuant to Originating Summons filed on 30 May 2025.
2. The application for leave is made under Order 16 r 3(1) and (2) of the National Court Rules (NCR) to review decisions of the First Defendant made on 3 April 2024 and 23 May 2024 suspending the Plaintiff from the government payroll (the decisions).
3. The Second Defendant, The Independent State of Papua New Guinea, who by virtue of s 8 of the Claims by and Against the State Act (the Claims Act) and Order 16 r 3(3) of the NCR is required to be heard on a leave application objects to the grant of leave by the court.
4. The relevant background to the application is detailed in the Plaintiff’s Statement in Support filed on 30 May 2025.
5. The genesis of the dispute concerns the proper office holders of the National Executive of the Social Democratic Party (SDP).
6. On 10 May 2022 the Plaintiff was elected General Secretary and Public Officer of SDP.
7. On 22 August 2022 the First Defendant by letter to the Plaintiff and other executives nullified the elections of other executives while accepting the election of the Plaintiff.
8. On 4 February 2024 the SDP held a secret meeting without the knowledge of the Plaintiff and elected new executives of the SDP.
9. On 3 April 2024 the First Defendant nullified the elections due to non-compliance with the Organic Law of Integrity of Political Parties and Candidates (Organic Law) and Constitution of the SDP 2022-2027 and further affirmed that the Plaintiff as the duly elected General Secretary and Public Officer of the SDP.
10. In that same decision the First Defendant then suspended the Plaintiff from the payroll.
11. Aggrieved by the decision on 17 May 2024, the Plaintiff wrote to the First Defendant seeking reinstatement on the payroll.
12. On 23 May 2024 the First Defendant refused to reinstate the Plaintiff for the reasons given on 3 April 2024.
13. The Plaintiff received no response to follow up communication.
14. On 30 April 2025 the Plaintiff served Notice on the Second Defendant under s 5 of the Claims Act.
15. On 30 May 2024 the Plaintiff commenced these proceedings.
16. The Plaintiff raises the following grounds of review:
    1. Error of Law/Ultra Vires namely failure by the First Defendant to take into account his duties under ss 25(4) and 75(4) of the Organic Law.
    2. Failure to take into account relevant considerations, namely that as duly elected the Plaintiff was entitled to his salary and there was no court order for the First Defendant to suspend an executive from the payroll.
    100. Unreasonableness (Wednesbury).

Legal principles

17. An application for leave involves an exercise of judicial discretion. The discretion must be exercised judicially (Hon Mao Zeming v Justice Timothy Hinchcliffe [2005] SC791; Mathew Sisimolu & 1 Or v Phillip Kende and Ors [2022] SC2267; Mari v Marape [2022] SC2311).
18. The Plaintiff carries the burden of proof on the balance of probabilities.
19. The requirements for leave are well settled in this jurisdiction (Mari v Marape [2022] SC2311; Matava v Sungi [2024] SC2567).
20. For leave to be granted the Plaintiff must show that the decision sought to be reviewed is that of a public authority and that the following requirements are met:
    1. Locus standi, that is a sufficient interest in the subject matter of the decisions (Order 16 r 3(5);
    2. The application for leave has been brought without undue delay (Order 16 r 4);
    100. He has exhausted all other statutory or administrative avenues for redress before making the application (Order 16 r 3(6)); and
    4. There is an arguable case.

CONSIDERATION

21. There is no issue that the First Defendant is a body exercising public functions in a public law matter. The State, however, takes issue with whether the Plaintiff has met the requirements for the grant of leave with respect to undue delay and arguable case.
22. I pause here to observe at the outset that in my consideration of this matter the question arose in my mind as to whether the Plaintiff, who sues in his capacity as General Secretary and Public Officer of the SDP had the authority of the SDP to do so. This is because of the issues to do with whether the National Executive of the SDP is properly constituted. It is an issue that goes to standing. It was not raised during the hearing of this matter. However, given that I propose to refuse the Plaintiff’s application for leave for the reasons that will shortly be outlined, it is not necessary for me to raise and seek further submissions on the matter.
23. Provision for consideration of the issue of delay in the context of an application for leave for judicial review is found in Order 16 r 4 of the NCR which relevantly provides:

4. Delay in applying for relief

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or
(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub-rule (1) is four months after the date of the proceeding.

[Underlining added]

24. The need for the Court to carefully examine the question of delay was reaffirmed in the recent decision of Wiko Development Corporation Ltd v Samson & Ors [2025] PGSC 40; SC2732 (Wiko) where the Supreme Court (Collier J, Geita J & Anis J) said at [27] – [29]:
    27. There is a considerable body of case law which requires examination of the question of undue delay to be carried out in consideration of whether a reasonable explanation for the delay has been given by the applicant for leave for judicial review. Such consideration is consistent with examination of the adjective “undue” for the purposes of Order 16 r 4. “Undue” is defined in the Macquarie Dictionary to mean:

(1) Unwarranted, excessive; too great: undue haste.
(2) Not proper, fitting or right; unjustified: to exert undue influence.

28. Whether a reasonable explanation for delay in applying for leave for judicial review has been given is relevant to determination by the Court as to whether that delay is “undue”. A reasonable explanation may mean that the delay was not, in fact, undue.
    
29. However, Order 16 r 4 does not end there. The rule specifically requires the exercise of the Court’s discretion in refusing leave on the basis of undue delay to be in conjunction with a consideration of whether the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. If, in the opinion of the Court, where there has been undue delay and the granting of the relief would be likely to cause such hardship or prejudice, the Court may refuse to grant the leave sought.
25. The difficulty for the Plaintiff is that he has failed to provide a reasonable explanation for the delay in bringing these proceedings. Applications for leave for judicial review must be made promptly. Time starts running when the subject decision is made (Baki v Koim [2017] N6840 at [16]).
26. The Plaintiff seeks relief inter alia in the nature of certiorari quashing the decisions made on 3 April and 23 May 2024. He should have filed his application for leave by 23 September 2024 at the latest. However, he filed on 30 May 2025, seven (7) months out of time.
27. Where there is delay an applicant for leave needs to explain it and provide a reasonable explanation for it. The question of delay is one that is to be assessed subjectively having regard to the circumstances of the case (Lae Bottling Industries Ltd v Law Rental Homes Ltd [ 2011] SC1120).
28. In this regard the Plaintiff relies upon [22] to [27] of his Statement in Support filed 30 May 2025 (written submissions of the Plaintiff dated 7 August 2025 at [25]) and a supplementary affidavit in support filed 1 August 2025.
29. There is no evidence by the Plaintiff to explain why he could not have sought legal assistance before he first did on 18 November 2024 nor why, where his attempts at resolution had “fallen on deaf ears”, he could not have instituted proceedings for leave before 30 May 2025. The proceedings were time sensitive. The institution of legal proceedings did not prohibit attempts at settlement. In that regard, the First Defendant had made its position clear in its response letter dated 23 May 2024. On the Plaintiff’s evidence there was no “positive feedback” from the First Defendant in a meeting on 4 October 2024 and yet a further five (5) months were allowed to pass.
30. While the Plaintiff sought legal assistance on about 18 November 2024 his evidence is silent as to why there was a further delay of over four (4) months before he engaged his current firm of lawyers who sent a further letter dated 26 March 2025 to the First Defendant.
31. Further, the submissions made on behalf of the Plaintiff did not advance matters in response to the Courts inquiry as to whether the relief sought was likely to cause substantial hardship or prejudice to any person or be detrimental to good administration. The authorities make clear that the two parts of Order 16 r 4(1) must both be addressed (Sekesu Sisapi Land Group Inc ILG No 2121 v Turama Forest Industries Ltd [2010] SC1072; Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] SC1746; Wiko (supra)).
32. There is no evidence before the Court to conclude that the granting of the relief sought, namely certiorari and declarations and mandamus compelling the reinstatement of the Plaintiff’s salaries entitlements and benefits lost since 19 April 2024 would likely cause substantial hardship to or substantially prejudice the rights of the First Defendant and/or would be detrimental to good administration. No submissions were made in that regard by the State.
33. This is notwithstanding correspondence annexed to the affidavit of the Plaintiff filed 1 August 2025 (some incomplete and poorly copied), suggesting that the SDP is dysfunctional with infighting that has spanned years (the election of the National Executive at the Stanley Hotel on 10 May 2022 involving “shouting and screaming”), the infighting variously described by the First Defendant to the Plaintiff as “fiercely contested” (letter of 3 April 2024) and “prolonged” (letter for 23 May 2024) and the First Defendant’s administrative intervention as a consequence to no avail in encouraging the SDP to address its governance issues and get its affairs in order.
34. Notwithstanding my finding of undue delay in making the application for leave for judicial review it is still open to the Court to nonetheless grant leave if there is no hardship or prejudice occasioned to the Defendant and achieve a just outcome for the case taking into consideration such factors as whether substantial hardship or prejudice could be occasioned to the Plaintiff if leave was refused (Wiko at [36]).
35. I am unable to conclude that a refusal of a grant of leave would substantially prejudice or cause significant hardship to the Plaintiff who is still employed with the SDP. While he has been put off the payroll, he does not give evidence of any substantial hardship or prejudice to him as a consequence, such as to suggest that this is an issue to which the Court should accord significant weight in informing its discretion. In his letter of 15 May 2024 to the First Defendant the Plaintiff refers to his surprise at being put off the government payroll. He took issue with the manner in which he was informed at a time when the “country is going through tough times with the cost of living so high putting me off the payroll is a cut throat situation for me”. However, he adduces no direct evidence to this effect or the impact on him in terms of hardship and/or prejudice, if that was the case. It is not open to the Court to speculate on these matters.
36. Similarly, while the letter from the Plaintiff’s lawyer to the First Defendant dated 26 March 2025 refers inter alia to First Defendant’s actions as being harsh and disproportionate and in breach of s 41 of the Constitution causing the Plaintiff “mental stress, financial hardship and general damages” these assertions are not particularised. Nor does the Plaintiff plead this as part of any ground of review in his Statement in Support. Nor does he give direct evidence of these matters in his affidavit. Nor are these matters the subject of any written submission.
37. The Plaintiff maintains his rights to his salaries and allowances upon the uplifting of his suspension which will occur once the SDP addresses its governance issues in respect of which it has received detailed advice from the First Defendant.
    

CONCLUSION

38. In conclusion, and for the reasons given, I find that the requirement for no undue delay in bringing the proceedings has not been met and, in consequence, given the importance of expedition in judicial review proceedings, leave to review should be refused on this basis alone.
39. It is not necessary for me to consider whether the further requirement of arguable case has been made out. The authorities make clear that even if one of the considerations for the grant of leave is not satisfied it is unnecessary for the Court to go on and determine the remaining considerations (Matava v Sungi [2024] SC2567 at [15] cited with approval in Wiko at [23]).
40. In reaching my decision to refuse the Plaintiff a grant of leave I have also considered whether the interests of justice overall are served by that outcome. Having concluded that to be the case, the Plaintiff’s application should be dismissed. In my discretion I have determined that each party should bear their own costs.

ORDERS

41. In consequence the Court makes the following orders.
    1. Leave for judicial review filed by way of Originating Summons on 30 May 2025 is refused.
    2. The proceedings are dismissed.
    3. There be no order as to costs.
    4. Time to abridge.

________________________________________________________________
Lawyers for the plaintiff: Don Wapu Lawyers
Lawyer for the State: Solicitor General