Lokowai v Department of Sandaun [1997] PGNC 84; N1663 (17 July 1997)

Unreported National Court Decisions

N1663

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 326 OF 1995
BETWEEN: ARNOLD LOKOWAI
PLAINTIFF
AND: DEPARTMENT OF SANDAUN
2ND DEFENDANT
AND: INDEPENDENT STATE OF PAPUA NEW GUINEA
3RD DEFENDANT

Vanimo

Bidar AJ
16 July 1997
17 July 1997

ADMINISTRATIVE LAW - Application for Leave to apply for Judicial Review - of administrative action - Relegation from substantive position to lower position - Division of Education - Relevant principles.

Application for Leave of the Court to apply for Judicial Review.

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, Public Service Commission reviewed the decision and among other things recommended that:

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

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

(iii) that the Secretary, 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. By OS 137/94, 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 recommendation and therefore dismissed the application.

Thus this action OS 326/95 was filed on 2 August 1995. It went before His Honour Sawong J. on 5 August 1995 where His Honour ordered that State be joined as party to the action. Following requirement 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 Sandaun Provincial Government informed Mr Mosoro and His Honour that the disciplinary charge against the plaintiff was uplifted, and that 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 plaintiff and his lawyer to negotiate with defendants.

On 4 September 1995, Mr David Ipasi filed a Notice of Intention to Defend on behalf of First and Second Defendants.

Solicitor General’s Office did so on 9 September 1995 on behalf of the Third defendant.

Subsequent attempts by plaintiff’s lawyer to set matter down for trial failed as defendants by their lawyers continuously failed to enter appearances in Court. Finally in April this year, 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, defendants by their lawyers, did not attend court.

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

Plaintiff brings application seeking Leave of Court simultaneous 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 plaintiff from Assistant Secretary 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 Education Division and he be reinstated to his substantive level two position with Salaries and entitlements paid retrospective 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.

O16 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 W.L.R. 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 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. O. 16 r. 3 National Court Rules.

I am also satisfied 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’, O. 16 r. 5 there is no doubt, 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 involved, I see no reason for the application proper to proceed, as often the case in appeals. See Olasco Niugini Pty Ltd & Ors. -v- John Kaputin & Ors. [1986] PNGLR 224.

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

Costs be in the cause.