SC1281

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 27 OF 2013

BETWEEN

NATIONAL NARCOTICS BUREAU
Applicant

AND

JOHN PATRICK NAURO
First Respondent

AND

PUBLIC SERVICES COMMISSION
Second Respondent

Waigani: Kassman, J
2013: 13th May & 2nd August

Cases Cited

Viviso Seravo and Electoral Commission v John Giheno (1998) SC555

Legislations Cited

Section 155(2)(b) Constitution
Order 5 Rule 1 Supreme Court Rules
Order 5 Rule 6 Supreme Court Rules 
Order 10 Supreme Court Rules 2012
Order 16 Rule 11 National Court Rules
Section 19 Supreme Court Act
The National Narcotics Control Board Act 1992
Section 9 Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004
Section 50 Public Service (Management) Act 1995

Counsel

Johannis Poya, for the Applicant
Brian Boma, for the First Respondent
No appearance for the Second Respondent 

JUDGMENT
(Application for Leave to Review and Application for Stay)

2nd August, 2013

1.	KASSMAN J: The National Narcotics Bureau ("NNB") applies for leave to review a Decision of the National Court of His His Honor Acting Justice Kangwia of 2 April 2012 in proceedings OS (JR) No. 184 of 2011 John Patrick Nauro v. John Mapusa, National Narcotics Bureau and The State. 

2.	John Patrick Nauro ("Nauro") is named as the First Respondent and Public Services Commission ("PSC") as the Second Respondent. 

3.	In the event leave is granted and pending determination of the application for review, NNB also applies for stay of contempt proceedings initiated by Nauro on 21 May 2012 in the National Court proceedings OS (JR) No. 184 of 2011.

Notice of Motion or Application for Leave 

4.	After hearing submissions on the application for leave to review, I asked the parties for submissions as to whether the correct form of the process for NNB was by way of a Notice of Motion and not an Application for leave to review.

5.	This issue was posed after having read Order 10 of the Supreme Court Rules 2012 which is titled "Appeal from orders made under Orders 16 and 17 of the National Court Rules" and specifically Rule 1(1) which provides "An appeal under this Order shall be instituted by a notice of motion." 

6.	Further, Order 16 Rule 11 of the National Court Rules provides "An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review." 

7.	I have considered submissions from both parties and adopt those of the applicant NNB. Being out of time to file an appeal, NNB has sought review pursuant to section 155(2)(b) of the Constitution and such a review may proceed upon a grant of leave to review as required by Order 5 Rule 1 of the Supreme Court Rules. 

8.	The requirement to proceed by the filing of a notice of motion applies to proceedings that fall within the appeal jurisdiction or where, as of right, an aggrieved party files proceedings in the Supreme Court. As NNB is out of time to file an appeal from the order of the National Court, it is properly before the Supreme Court in this application seeking leave to review the decision of the National Court. 

Application for leave to review

9.	There were multiple proceedings commenced following the decision by NNB to terminate Nauro's employment as Deputy Director of NNB. As such, it is necessary to set out a brief outline on each proceeding starting with the PSC review, the various proceedings in the National Court and the Supreme Court appeal from a decision of the National Court. 

10.	Before that, a brief description of the establishment of the statutory entity is provided by way of introduction.

National Narcotics Board and National Narcotics Bureau

11.	The National Narcotics Control Board Act 1992 ("the Act") established the National Narcotics Control Board whose functions are to initiate and implement policies and laws on drug abuse and to advise the government and liaise on behalf of government with appropriate international governments and non-government organizations (sections 3 and 7). The Act also established the National Narcotics Bureau whose functions are to make recommendations to the National Narcotics Control Board on policies, measures, plans, matters or projects relating to drug abuse and coordinate related projects and programs (sections 12 and 13). 

12.	The Act also provides the manner of appointment, suspension and dismissal of the Director of the NNB is as specified in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. The Act also provides the Director shall appointment a member of the staff of the NNB to be the Deputy Director (section 14). The Act also provides the Director of the NNB may be removed by the Minister following a recommendation of the National Narcotics Control Board (section 16).

Background essential facts

13.	At the relevant time, John Mapusa ("Mapusa") was the Acting Director General and Nauro was the Deputy Director General of NNB.

Charges and termination

14.	On 20 February 2008, NNB through Mapusa laid three charges against Nauro. The first charge was for absconding duties for a period of seven months from July 2007 to February 2008. The second charge was for defiance of lawful orders and making a fraudulent claim for a substantial amount of money and bypassing management authority. The third charge was for writing to the PSC and querying the legality of the appointment of the Acting Director General and for Nauro holding himself out as Acting Director General. 

15.	Nauro replied to the three charges in a letter to NNB dated 29 February 2008.

16.	On 11 March 2008, NNB found Nauro guilty of the three charges. As a result, Nauro's employment with NNB was terminated.

Public Services Commission - Review of decision to terminate employment of Nauro 

17.	Some eight months later on 12 November 2008, Nauro applied to the PSC for a review of NNB's decision in terminating his employment. 

18.	NNB failed to appear at the PSC review hearing but did submit a letter dated 21 October 2009 detailing its response and arguments to sustain the decision to terminate Nauro's employment with NNB.

19.	Some fifteen months after the application for review was filed by Nauro, the PSC delivered its decision on 10 February 2010 ("the PSC Decision"). In its decision reviewing the termination of Nauro by NNB, the PSC directed the immediate reinstatement of Nauro and payment of his salary as a result of his suspension without pay and dismissal. 

20.	There were a number of reasons given for the PSC decision. Firstly, the PSC found Mapusa was acting without authority when he charged, convicted and terminated Nauro in circumstances where Mapusa's own appointment as Acting Director General was not renewed and confirmed. Further, even if Mapusa's appointment had not expired, the PSC had not been consulted on Mapusa's appointment as required by section 9 of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004. I will come back to this.

21.	The PSC also found the three charges to be defective as they failed to specify which of the offences under section 50 of the Public Service (Management) Act 1995 Nauro committed. Further, the PSC found that no reasons were given for the conviction of Nauro when he was entitled to know of the reasons for his conviction and termination. The PSC also found Nauro was not given the opportunity to be heard on punishment and penalty. 

22.	The decision of the PSC was not brought to the attention of NNB for another eight months until Nauro wrote to NNB on 25 October 2010 and provide NNB with a copy of the PSC decision.

Various National Court proceedings

23.	Various proceedings were then instituted in the National Court by Nauro and NNB. 

OS 253 of 2009 by Nauro

24.	After applying for review by PSC and prior to the decision on the review by the PSC, Nauro filed National Court proceedings OS 253 of 2009. In his Originating Summons filed 14 May 2009, Nauro named Mapusa, Margaret Elias, Secretary Department of Personnel Management and the State as First, Second and Third Respondents respectively. Nauro claimed, among others, orders for review of the decision to terminate his employment.
 
25.	Those proceedings have yet to be determined and neither have they been withdrawn or discontinued. Nauro did not reveal any of this in his Affidavit and submissions filed here. This was all mentioned by Mapuso and his lawyer Johannis Poya in Affidavits filled in these Supreme Court proceedings. I will come back to this.

OS 184 of 2011 by Nauro

26.	On 18 April 2011, one year and two months after the PSC decision, Nauro filed National Court proceedings OS 184 of 2011. In his Originating Summons filed 10 April 2011, Nauro named Mapusa, NNB and the State as First, Second and Third Defendants respectively. Nauro claimed an order in the nature of mandamus to compel the Defendants reinstate him to his substantive position as Deputy Director General of NNB.

27.	The review was heard by His Honor Acting Justice Kangwia, as he then was. On 2 April 2012, the National Court found firstly the decision of the PSC is binding on the Defendants. Further, there was no application filed seeking review of the decision of the PSC in those proceedings. PSC was not a party to the proceedings and there was no application before the court alleging impropriety and procedural errors by the PSC in arriving at its decision. The Court then ordered reinstatement of Nauro to his substantive position as Deputy Director General of NNB with all entitlements for the period 13 March 2008 to 10 February 2010.

OS (JR) 321 of 2011 – by Mapusa and NNB

28.	On 14 June 2011, Mapusa and NNB as First and Second Plaintiffs respectively filed National Court proceedings OS (JR) 321 of 2011. In the Originating Summons they named PSC and Nauro as First and Second Defendants respectively. Mapusa and NNB claimed a number of declarations, the main ones being the decision of the PSC is null and void on the basis they were not accorded the right to be heard. They also claimed PSC erred in making a decision that Mapusa's appointment was null and void. They also claimed PSC erred in finding Nauro had the right to be heard on penalty. 

29.	This proceeding was withdrawn by consent on the filing of a Notice of Withdrawal on 30 May 2012 following discussion in the course of the hearing of proceedings in OS 184 of 2011.

OS (JR) 320 of 2012 – by Mapusa and NNB

30.	On 29 May 2012, a day before the withdrawal of proceedings OS (JR) 321 of 2011, Mapusa and NNB as First and Second Plaintiffs respectively filed National Court proceedings OS (JR) 320 of 2012. In the Originating Summons they named PSC and Nauro as First and Second Defendants respectively. Mapusa and NNB claimed a number of declarations, the main ones being the decision of the PSC is null and void on the basis they were not accorded the right to be heard. They also claimed PSC erred in making a decision that Mapusa's appointment was null and void. They also claimed PSC erred in finding Nauro had the right to be heard on penalty. These were the exact terms as those in the Originating Summons in OS (JR) 321 of 2011. 

31.	On 2 July 2012, the National Court, Deputy Chief Justice Salika presiding, granted leave to review the PSC Decision and ordered the State be joined as the Third Defendant.

32.	On 12 July 2012, Nauro filed an application seeking dismissal of the proceedings for being res judicata. The application was heard by His Honor Justice Kirriwom. The Court discussed at length the arguments raised and found the judgment of Acting Justice Kangwia in OS 184 of 2011 had determined the issues raised by Mapusa and NNB in these proceedings and as such these proceedings OS (JR) 320 of 2012 were res judicta. These proceedings OS (JR) 320 of 2012 were then dismissed.

33.	With respect, I see strength in the arguments raised by Mapusa and NNB that their issues raised were not fully raised and determined in the judgment of His Honor Acting Justice Kangwia in OS 184 of 2011. In fact Acting Justice Kangwia specifically stated that he refrained from ruling on the issue whether there was error in, and the process by which, PSC questioned the validity of the appointment and/or extension of term of appointment of Mapusa as Acting Director of NNB. Acting Justice Kagwia said he refrained from ruling on this issue on the basis that issue was not raised in the pleadings in OS 184 of 2011 and the decision of the PSC was not in itself before the Court for review and the PSC was not a party to the proceeding.

34.	Clearly Mapusa and NNB had a right to be heard on any issue concerning the validity of the appointment and/or extension of term of appointment of Mapusa as Acting Director of NNB. It is arguable the PSC erred in inquiring into the issue without fully hearing from Mapusa and NNB as the officer directly affected and the NNB being the appointing authority. This was an issue squarely raised by Mapusa and NNB as a critical issue but the Court refrained from addressing that issue.

35.	It is also arguable there was no error in the decision of Acting Justice Kangwia of 2 April 2012 in OS 184 of 2011 as the issue was not raised in the pleadings, PSC was not a party as discussed above however this could be countered with the argument that finality to the litigation would have been best served by the court adjourning proceedings and issuing directions to join the PSC and the State as parties to the proceedings and have the claims and counter-claims of all parties properly ventilated by the respective parties before finally adjudicating on the matter. 

36.	On the basis of my assessment made here, I find there is an arguable case on the merits of this review. 

Supreme Court proceedings SCA 112 of 2012

37.	Prior to the filing of this review, Mapusa and NNB filed Supreme Court appeal SCA 112 of 2012 naming the PSC and Nauro as First and Second Respondents respectively. That was an appeal from the orders of His Honor Justice Kiriwom of 12 October 2012 in OS (JR) No. 320 of 2013 referred to above. The grounds of appeal were that there was error in the finding of res judicata and there was error in considering and ruling on matters that were considered and determined at the leave stage. These appeal proceedings were then discontinued on 4 March 2013. There was no explanation provided.

38.	I have considered and accept the explanation for the failure to promptly file an appeal from the order of Acting Justice Kangwia of 2 April 2012. 

39.	Clearly there has been a calamity of errors by the parties and their lawyers in failing to take all necessary steps at critical times to have all the relevant facts fully articulated and the issues competently identified for determination with finality. There is evidence of extended delays starting with the delay in the PSC adjudication and then the failure to promptly bring to the attention of NNB the decision of the PSC. Then there is evidence of delays in service of documents and commencement of proceedings that contributed to confusion. On top of that were the pursuit of interlocutory applications in the absence of the other party and that also contributed to delays. These factors are attributable to all parties and not just Mapuso and NNB.

40.	I grant the application for leave to review.

41.	I note the PSC did not participate in argument on the application for leave. I urge PSC to fully participate so that some finality is brought to this ongoing litigation. For the same reason, parties should also consider the joinder of the State as a party to this review. 

Application for stay of proceedings in OS 184 of 2011

42.	NNB also applies for the stay of proceedings OS 184 of 2011 pending determination of the review application.
 
43.	The application for stay is made pursuant to Section 19 of the Supreme Court Act which provides "Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings."

44.	That clearly applies to an application for stay in an appeal proceeding. 

45.	This is a proceeding brought in the review jurisdiction of the Supreme Court. It has been held by the Supreme Court in Viviso Seravo and Electoral Commission v John Giheno (1998) SC555 that only the Court may grant a stay in the review jurisdiction. The "court" is defined in Order 1 Rule 7 of the Supreme Court Rules to mean the "full court of the Supreme Court of Justice" and that is distinct from the meaning of "Judge" which is also defined in the same rule to mean "… a judge of the Supreme Court of Justice". I am sitting as a single Judge of the Supreme Court and I am not sitting as the full court. As such, I do not have the power to hear and determine an application for stay. 

46.	In the course of writing this judgment, I have read Order 5 Rule 6 of the Supreme Court Rules which provides "A Judge may grant leave to proceed, give directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending the hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review." 

47.	This appears to suggest that I, sitting as a single judge of the Supreme Court, have the power to make a stay order which in effect is an order "to preserve the interests of the parties pending hearing of the review". Unfortunately, I did not receive submissions from counsel on this so I will not assume jurisdiction in view of the clear ruling of the Supreme Court in the Viviso Seravo case. 

48.	The application for stay must go to the Supreme Court.

49.	Following my assessment of the matter where I have found all parties carried equal responsibility for the calamity of errors which I described above, it is just that each party bear their own costs of the application for leave and the application for stay. 

50.	The formal Orders of the Court are:

1.	The application for leave to review is granted

2.	The application for stay must go to the Supreme Court.

3.	Each party shall bear their own costs of the applications.

Judgment accordingly:

______________________________________________________
Liria Lawyers: Lawyers for the Applicant 
Boma Lawyers: Lawyers for the First Respondent
Lawyers for the Second Respondent: No Appearance