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Lokowai v Department of Sandaun [1997] PNGLR 630 (17 July 1997)

[1997] PNGLR 630

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARNOLD LOKOWAI

V

DEPARTMENT OF SANDAUN; and
INDEPENDENT STATE OF PAPUA NEW GUINEA

VANIMO: BIDAR AJ
16, 17 July 1997

Facts

The plaintiff was an Assistant Secretary for Education on a level two position classification in the Department of Sandaun. Following a disciplinary charge under the Public Service Management Act, he was demoted to level one position and suspended from duty. His suspension was lifted subsequently, but remained demoted. He applied for leave of the court to apply for judicial review under Order 16 Rule 3 of the National Court Rules.

Held

The applicant seeking leave to apply for judicial review must:

1. Make an application and give notice of the application to the Secretary for Justice
   
2. Act promptly and without undue delay; and
   

3. Have sufficient interest in the matter.

Papua New Guinea cases cited

Olasco Niugini Pty Ltd & Ors. v John Kaputin & Ors. [1986] PNGLR 244.

Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348.

Other case cited

R. v Inland Revenue Commission, Ex-parte National Federation of Self Employed Small Business Ltd [1981] UKHL 2; (1981) 2 WLR 722.

Counsel

Mr Mosoro, for the applicant/plaintiff.

17 July 1997

BIDAR AJ. The plaintiff in this matter applies, by way of originating summons for an order that the plaintiff be granted leave to apply for judicial review of the administrative decision dated 14 April 1992.

It is necessary to set out the brief history of this matter.

Plaintiff was the Assistant Secretary for Education on a level two classification. He was demoted to level one position by the first defendant following a disciplinary charge of disgraceful conduct laid under the Public Service (Management) Act. Following the charge and demotion, he was also suspended from duty for a period of time, which I think is the usual practice.

On 14 April 1992, his suspension was uplifted but remained demoted to level one position. On 16 May 1992, he applied to the Public Service Commission for review of the decision. On 25 June 1993, the Public Service Commission reviewed the decision and, among other things, recommended that:

(i) the Secretary revoke his decision to demote and relocate applicant;

(ii) the Secretary re-instate applicant to his position as Assistant Secretary for Education and revert applicant’s position classification to level two; and

(iii) the Secretary for Department of Personal Management be advised accordingly.

Whilst all these were taking place, the plaintiff instructed Mosoro Lawyers to institute proceedings in the National Court. The matter went before His Honour Andrew J. by way of notice of motion. His Honour ruled, on 3 November 1994 that the application failed, at the outset, as there was no substantive action pending. His Honour held that court lacked jurisdiction to enforce Public Service Commission recommendation and therefore dismissed the application.

This subsequent action was filed on 2 August 1995. It went before His Honour Sawong J. on 5 August 1995 where His Honour ordered that the State be joined as party to the action. Following procedural requirements to file and serve various documents, the matter was adjourned to 19 August 1995 to be heard at Wewak. On 16 August 1995, Mr David Ipasi, the then legal officer to the Sandaun Provincial Government, informed Mr Mosoro and His Honour that the disciplinary charge against the plaintiff was uplifted, and that the parties undertake to settle the matter out of court. The matter remained on the list until the outcome of out of court settlement.

Surprisingly, no settlement was reached, despite continuous attempts by the plaintiff and his lawyer to negotiate with the defendants.

On 4 September 1995, Mr David Ipasi filed a notice of intention to defend on behalf of the first and second defendants. The Solicitor General’s Office did so on 9 September 1995 on behalf of the third defendant.

Subsequent attempts by the plaintiff’s lawyer to set the matter down for trial failed as the defendants, by their lawyers, continuously failed to make appearances in court. Finally, in April this year, the plaintiff’s counsel obtained a trial date before His Honour Akuram, J. The matter was set down for July 1997 sittings of the National Court. Notice of hearing was duly filed and served on the defendants. At the date of hearing in July 1997, the defendants by their lawyers did not attend court.

I can only assume that the defendants were no longer interested because the original disciplinary charge has been uplifted by the first defendant. It seems also that the first defendant had acted on the Public Service Commission recommendations of 25 June 1993. But the fact is, the plaintiff has not been re-instated to his level two position. The plaintiff, out of all the frustrations and hardships suffered, both financially and emotionally, tendered his resignation on 7 June 1997. He is without a job for over a month now.

The plaintiff brings application seeking leave of court simultaneously with application for judicial review, seeking declarations that:

(1) The decision of the then Secretary of the Department of Sandaun, Mr Chris Vihruni made on 14 April 1992, demoting the plaintiff from Assistant Secretary for Education at level two salary classification to level one in the same Division, is illegal and therefore null and void ab initio.

(2) A declaration that the plaintiff is still the Assistant Secretary for Education Division and he be reinstated to his substantive level two position with salaries and entitlements paid retrospectively to the date of demotion.

(3) Other orders the Court deems fit.

(4) Costs.

Order 16 rule 3 of the National Court Rules is as follows:

O. 16 r. 3 Grant of Leave to Apply for Judicial Review.

(1) The application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this rule.

(2) The application for leave must be by originating summons ex-parte to the Court except in vacation when it may be made to a Judge in Chambers and must be supported:

(a) by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application to the Secretary for Justice (Solicitor General) not later than two days before the application is made must at the same time lodge with the Secretary (Solicitor General) copies of the statement and every affidavit in support.

(4) ..............

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

The necessity for leave was well explained in R. v Inland Revenue Commission, Ex-parte National Federation of Self Employed Small Business Ltd [1981] UKHL 2; [1981] 2 WLR 722, where Lord Diplock said at p. 739:

"It’s purpose is to prevent the time of Court being wasted by busy bodies with misguided and trivial complaints of administrative errors and to remove the uncertainty in which the public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

In our jurisdiction, the Supreme Court held in Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348, that an application for judicial review need only be satisfied as to the requirements of O. 16 rr 2, 3 and 5 and the exercise of discretion.

At the outset, I am satisfied that the plaintiff complied with the requirements of O. 16 r 3 of the Rules of the Court. When the matter proceeded before me, it seems clear that counsel for the plaintiff confused himself with the terminology. Instead of saying that the applicant seeks Leave of the Court to apply for judicial review, he simply said, plaintiff applies for the matter to proceed ex-parte. Applications for leave to apply for judicial review, in my limited experience are usually done ex-parte anyway, with the only requirement to give notice of application to the Secretary for Justice (usually the Solicitor General’s Office) together with copies of statements and affidavits in support pursuant to O. 16 r. 3 of the National Court Rules.

I am also satisfied that applicant acted promptly and there was no undue delay. His initial application before this court was made when the matter was going through other administrative process, which His Honour Andrew J. rightly refused. As regards the issue of ‘sufficient interest’ under O. 16 r. 5, there is no doubt that the applicant’s livelihood was affected and is still affected, and he has all the reasons to come to this court.

Whilst it is not necessary for me to determine the issues now, I am satisfied for the reasons advanced that leave should be granted to the applicant. Because the application for leave is simultaneous with application for judicial review and the urgency of the matter involved, I see no reason for the application proper to proceed, as quickly as the case in appeals: see Olasco Niugini Pty Ltd & Ors. v John Kaputin & Ors. [1986] PNGLR 244.

For all the reasons given, applicant/plaintiff is granted leave to apply for judicial review.

Costs be in the cause.

Lawyers for the applicant: Mosoro Lawyers.