Mareha v Secretary for Department of Works [1999] PGLawRp 686; [1999] PNGLR 517 (18 June 1999)

[1999] PNGLR 517

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SILAS MAREHA

V

THE CHAIRMAN — REDUNDANCY MONITORING COMMITTEE; THE SECRETARY FOR DEPARTMENT OF WORKS;

THE SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT; AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

GOROKA: KIRRIWOM J
11, 18 June 1999

Facts

The applicant, a senior artisan – Grade 3 with Works & Supply Department in Goroka was told that as a result of tight financial situation and necessary cutbacks in many areas, his position was therefore made redundant. He was subsequently retrenched from the Public Service.

Three and a half years later he is seeking leave to apply for judicial review because he says that he should not have been retrenched, as his position was not made redundant. That position still remains and someone else is occupying it. He also says that the purported redundancy exercise was in breach of a memorandum of agreement between Public Service Commission and Public Employees Association as no redundancy notice was given to plaintiff and he was not interviewed. The whole scheme was someone else’s idea that placed his name on the redundancy list and then had him retrenched.

Held

1. The issue now is, has the applicant satisfied the requirements of Order 16 Rule 3 for leave to be granted. Order 16 r 3 provides that an application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
   

Rule 4 provides that: ‘where in any case the Court considers that there has been undue delay in making an application for judicial review ... the Court may refuse to grant leave for the making of the application.’

The applicant must explain the long delay for close to four years before coming to this Court for judicial review. The Independent State of PNG v Lohia Sisia [1987] PNGLR 102 referred to.

2. There are no cogent or acceptable reasons for the delay of almost 4 years. There were no substantial good merits for the application. Other administrative avenues have not been exhausted either.
   
3. Application to apply for leave of the Court to apply for judicial review refused.
   

Papua New Guinea cases cited

The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102.

Counsel

K Kot, for the plaintiff.
No appearance for the defendants.

18 June 1999

KIRRIWOM J. The applicant was retrenched from the Public Service due to budgetary constraints on 21st December 1995. He was told that as a result of tight financial situation and necessary cutbacks in many areas, his position was therefore made redundant. He was a Senior Artisan - Grade 3 with Works & Supply Department - Goroka. Plaintiff/Applicant accepted retrenchment.

Three and a half years later he is seeking leave to apply for judicial review because he says that he should not have been retrenched, as his position was not made redundant. That position still remains and someone else is occupying it. He also says that the purported redundancy exercise was in breach of a Memorandum of Agreement between Public Service Commission and Public Employees Association as no redundancy notice was given to Plaintiff and he was not interviewed. The whole scheme was someone else’s idea who placed his name on the redundancy list and then had him retrenched as redundant.

However without going into the substance of the Plaintiff’s complaint, the issue now is, has the applicant satisfied the requirements of Order 16 Rule 3 for leave to be granted. O. 16 r. 3 provides that an application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

Rule 4 provides that: where in any case the Court considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant leave for the making of the application.

There is no question about the plaintiff having sufficient interest in the matter for review. I am concerned about the long delay in making this application if the Applicant was truly and genuinely concerned about his retrenchment. He got his retrenchment pay, he does not say how much nor does he complain of not receiving it. But he waited for 3 and going to 4 years when he turns around and says he is unhappy with his retrenchment. The plaintiff has to explain why he had delayed for close to four years before coming to this Court for judicial review. In The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102 the Supreme Court held that the power to review administrative acts and to grant declaratory orders deriving from ss 23 (2) and 155(4) of the Constitution should not be exercised where there has been an unreasonable delay in seeking relief. A delay of five and half years between the Minister’s decision and the application to the Court was held to be unreasonable because no special circumstances existed or exceptional circumstances were shown. The principles that apply to judicial review applications under s 155(2)(b), (4) of the Constitution and O. 16 r. 3 compliment each other, if not overlapping in many respects. Therefore in the absence of the Applicant satisfying the Court as to why he delayed for almost four years before coming to this Court, I find he had no good reasons for the delay.

There are mechanisms in place to which he could have challenged his retrenchment if such was forced upon him. On the hindsight, it would appear that other remedies under the Public Service machinery were not exhausted. There is no evidence that there was a review sought with Public Service Commission. No public servant has exclusive right to a designated position in the Public Service. He does not own it. It seems that the Applicant’s reason for seeking this review is that the position he held was not scrapped off or made redundant and someone else is held against it. Is it not the prerogative of the Departmental Head as to who holds that position? There are no substantial good merits for this application apart from the fact that other avenues were not exhausted beforehand.

I therefore refuse to grant leave to the applicant to apply for judicial review.

Lawyer for the plaintiff/applicant: Kot & Co.
Lawyer for the defendants: Solicitor General.