Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006)

N3064

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 199 OF 2006 (JR)

BETWEEN

THADEUS KAMBANEI
Plaintiff

AND

THE NATIONAL EXECUTIVE COUNCIL & 5 OTHERS
Respondent

Waigani: Injia, DCJ
2006 : April 5, 6, 7 & 10

JUDICIAL REVIEW - Administrative action - Decision of National Executive Council to suspend Departmental Head on disciplinary grounds -Application for Leave to apply for judicial review - Granted - Application for interim injunctions - Whether interim orders which restores the applicant to his position pending the determination of the substantive application should be granted - Relevant Principles - Application refused - National Court Rules. O.16 r.3(8).

Cases cited in the judgment:
Francis Damem v Minister for Public Service & Ors N2730 (2004).
Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831.

Counsel:
H. Nii, for the Plaintiff
D. Lambu, for the First, Second, Third, Fourth & Sixth Defendants
S. Singin, for the Sixth Defendant

10 April, 2006

1. INJIA, DCJ: The Plaintiff applies for leave for judicial review of the Sixth Defendant's decision (NEC) made on 24 March 2006 to suspend him from office as Secretary for the Department of Finance. If leave is granted the Plaintiff applies for interim mandatory injunction to prevent the service of the suspension notice on him and other consequential orders which would result in him being restored in office pending the determination of the substantive application. The application for leave is brought under Order 16 Rule 3 of the National Court Rules (NCR) and the application for interim mandatory injunction is made under Order 16 Rule 3(8) and principles of the common law. The defendants contest both applications.

2. At the hearing, the plaintiff sought to rely on various affidavits, some of which were annexed copies of correspondences exchanged between the Plaintiff's lawyer and the Public Service Commission (PSC), the National Executive Council (NEC) and Public Service Minister (The Minister), the PSC and the Minister. The affidavits also referred to details of communications exchanged between the plaintiff's lawyer and the Secretary for NEC.

3. The defendants objected to the facts submitted to the court by the defendants' counsel. The Defendants objected to the admissibility of all facts, except only two, set out in the Plaintiff's Statement in support of application for leave filed under O.16 r.3 (the Statement) and additional facts, notice of which was given in writing by the Plaintiff's counsel to the defendants' counsel. The main basis for the objections was that in the case of the information and documents from the NEC, they were obtained in breach of the privilege accorded by s.51(1)(b) of the Constitution. In respect of information and documents released by the PSC, they were obtained in breach of ss.3, 7 and 8 of the Attorney-General Act 1989 and Rule 10 of the Lawyers Professional Conduct Rules. Counsel for the NEC then sought leave to withdraw an affidavit filed by the Prime Minister as Chairman of NEC which contained evidence which could contradict some of their objections on the facts. The defendants admitted only two facts and these were (1) the Gazette Notice published by the head of State on 24 March suspending the Plaintiff and appointing one Gabriel Yer as Acting Secretary and (2) the Notice of allegations served by PSC on the Plaintiff dated 22 March 2006. Full arguments were made by both parties on the facts ad I indicated I would rule on it when I rule on the application for leave. I have considered all of those arguments.

4. In my view, a hearing of an application for leave for judicial review normally does not involve a dispute or contest on the verified facts set out in the statement or additional affidavits. The court makes no determinations on disputed facts. The Court is simply required to make a quick perusal of the material in order to form a judgment on the requirements for leave and not get bogged down with disputed facts which would involve determination of the merits of the case for or against a party. The time for that is at the hearing of the substantive application if leave is granted. For this reason, I dismiss the defendants' objections on the facts and also refuse leave to withdraw the affidavit filed by NEC Chairman. If leave for judicial review is granted, the defendants are at liberty to revive the same objections and the court will determine their admissibility on their own merits. For purposes of the present application, I will peruse all the affidavit evidence filed by all parties in order to determine if the requirements for leave have been met.

5. As for the four requirements for grant of leave, full arguments were also made on behalf of all parties. I have considered all of them. There is no contest on three of the four requirements - the plaintiff has locus standi, there is no delay in making the application and there is no administrative avenue for appeal or review of the NEC decision. The dispute is over whether the Plaintiff has an arguable case. There is one main ground for review and that is that the NEC decision is seriously flawed in that it was made without a recommendation for suspension by the PSC as required by s.193 ID of the Constitution and s.31 D of the Public Service Management Act (PSMA). In Francis Damem v Minister for Public Service & Ors N2730 (2004), I said that there appeared to be an inconsistency between these two provisions in that under s.193 ID of the Constitution, PSC is required to make the recommendation direct to the Head of State under procedure prescribed by an Act of Parliament, whereas under s.31D of the PSMA, PSC is required to make a recommendation for suspension to the NEC. Whichever way one reads these provisions, the recommendation for suspension must come from PSC and the NEC and/or the Head of State must act in accordance with the recommendation.

6. On the evidence before me, I am satisfied that the Plaintiff has an arguable case on the question of whether PSC made such recommendation, based on which the NEC or the Head of State made the decision to suspend. The Gazette notice shows that PSC was consulted by NEC before it made the decision to recommend suspension by the Head of State. The evidence suggests that PSC was not consulted and it did not make such recommendation. This gives rise to an arguable case in law. For these reasons, I grant leave for judicial review.

7. The principles on mandatory injunction, interim or permanent, are those canvassed by Justice Lay in Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831, a case extensively cited by Mr. Nii in his submission. His Honour examines the main English, Australian and PNG cases and extracts nine (9) principles established by those cases as follows:

1. A mandatory injunction should normally only be granted where a strong case that serious damage will occur to the applicant is made out.
2. The general principles for negative injunctions apply, that is that there is a serious case to be tried, damages are not an adequate remedy and the balance of convenience favour the applicant, but the case should normally be one giving an unusually strong and clear view that the applicant will be successful at trial.
3. The more likely it appears that the plaintiff will succeed at trial the less reluctant the court will be to interfere on an interim basis.
4. But if it is necessary to make some interim order the Court will do so whether or not the high standard of probability of success is made out.
5. The costs to the defendant of performing the mandatory acts should be weighed against the likely damage to the applicant.
6. If the relief sought is such as would normally only be granted after a trial, it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportion to the prejudice and hardship to be caused to the defendant in performing the order.
7. If the mandatory injunction is simply to restore some activity which has been previously performed by the defendant, rather than to embark upon some new activity, it will be more readily granted.
8. Ultimately, in deciding whether or not to grant a mandatory injunction the overriding consideration is an exercise in deciding which course will do the least damage, or, to put it another way, the lower risk of injustice, if it turns out that the court has made the "wrong" decision.
9. If an injunction is granted the order should specify exactly what it is the defendant has to do, leaving the defendant in no doubt as to what is required to comply with the order.
   

8. Most of the English, Australian and PNG cases from which the above principles are established are cases on preservation of property and business rights in actions in contract or torts. They are general principles however and are equally applicable in judicial review proceedings where the Court is asked to consider the grant of stay following grant of leave, under Order 16 Rule 3(8). A stay under Rule 3(8)(a) is a prohibitive injunction in nature and it is wide enough to allow interim mandatory injunction to be granted. Also s.155(4) of the Constitution is available for this purpose. Of course judicial review proceedings challenging administrative decision is different in nature and it is very much discretionary. Unlike actions in tort or contract or for enforcement of constitutional rights, a person seeking judicial review has no right to bring an application unless and until leave is granted. Even when leave is granted, the grant of substantive relief is very much discretionary. Because the decision under review is made by a statutory authority or tribunal which is empowered to make the decision, greater deference is normally paid to the judgment of the decision-maker.

9. Counsel for both parties were unable to cite any PNG or overseas cases on the question of grant of mandatory injunction in a judicial review proceeding. In the time I have, I am unable to fully research the point. I am aware that interim injunctive orders have been issued in a few cases in our jurisdiction where a public official is challenging his dismissal on disciplinary grounds. In many cases, public officials have fought their case in court without the benefit of an interim order, a stay order or interim mandatory injunction, which restores him in office whilst he is fighting his case. Indeed the procedural scheme for judicial review under Order 16 is that upon grant of leave, the substantive application is expeditiously heard and determined, so that waiting time is minimized and the need for interim injunctive orders is removed.

10. For this reason, the nine principles set out above which are generally applicable to ordinary actions in tort and contract should be tailored by the Court to suit the special nature and purpose of judicial review. The standard of scrutiny of an application for stay applying those nine (9) criteria or for any application for interim injunctive orders under O.16 r.3(8) should be much higher than in ordinary suits in law. In respect to application for a stay or interim injunctive orders in a public employment situation, the primary consideration which I would add as principle No. 10 to the nine principles set out above is this:

"10. As a general principle, in an application for interim injunction or interim mandatory injunction under Order 16 Rule 3(8), in a case of judicial review of a decision concerning suspension or removal of a public official on disciplinary grounds, a stay or an interim injunction or interim mandatory injunction should not be readily granted except in very exceptional cases where the public interest of the public employer in maintaining continuity of good administration of the office would be best served by the applicant's restoration to office pending the hearing and determination of the substantive application for judicial review. The public interest in the good administration of public office is the paramount consideration. The private rights of the employee such as in protecting the applicant's integrity and reputation is a relevant consideration but it is not an important consideration."

11. In the present case, I have carefully considered all the submissions made by counsel on behalf of all the parties. I have weighed all the different considerations. It is my view that serious allegations of mismanagement in the government's key department have been leveled against its departmental head. The existence of those allegations is not denied by the Plaintiff. The allegations have come to the attention of his appointing authority, the NEC. They were raised in Parliament circles. They were also raised with the PSC and the Minister for Public Service. Also the NEC has seriously taken offence of other actions of the Plaintiff as bringing into question the independence of the three arms of government. For this reason, the government has suspended him to facilitate investigations to be carried out and for charges to be laid against him. The government has appointed his deputy to act on the position in his absence. In these circumstances, it is not in the best interest of the government and the department itself for the plaintiff to be returned to his position. The department appears to be in the capable hands of his deputy and there is no clear evidence of chaos and disruptions in the department as a result of the change in heads.

12. I do accept Mr. Nii's submission that his client has a good "arguable case" which I would say has a chance of success but that is not the only important consideration. This consideration must be balanced against other important consideration. In addition to consideration 10 above, principle 8 is another important consideration which is particularly relevant here.

13. Finally, the grant of interim injunctive relief is an equitable remedy and it is discretionary. In a case where serious allegations of financial mismanagement and abuse is made against senior managers within the department concerned, whilst they remain mere allegations, a court of equity and good conscience will not ignore those allegations and grant interim relief. Equity militates against grant of interim injunctive relief and insists that the applicant prove its substantive claim before the applicant requests appropriate relief.

14. For these reasons, I refuse the interim mandatory injunction sought. This means the suspension will remain. The matter is now fixed for directions on 1 May 2006 for listing the substantive application for hearing. I direct the Plaintiff to file and serve a Notice of Motion which is returnable on 1 May 2006 at 9:30a.m. I also direct parties to file and serve further affidavits they wish to rely on by the end of April. This will enable the substantive application to be given an expedited hearing. Cost of the application shall be in the cause of the substantive application.

15. Before I finish, I wish to make a statement regarding certain media statements regarding the conduct of this case on Wednesday 5 as reported on Thursday 6 in the two daily newspapers and an editorial in the National Newspaper on Friday 7. Normally the Court does not engage in discussions in court in what is reported in the newspapers but in this case since Mr. Nii mentioned the matter in Court on Thursday 6, I though I should make this statement. I would request the media to publish the full text of my statement as follows:

"On Wednesday 5th at about 4:30p.m., Mr. Nii of counsel for the Plaintiff requested some form of direction or order be made directing the media not to report on the submissions on the disputed facts made by the defendants' lawyers until he had made his reply because they contained serious allegations against himself and his client. I did not invite defendants' counsel or the media to respond. I did request the media to note the concern raised and refrain from publishing anything on what had been submitted until Mr. Nii had responded the next day. No order or direction was made nor intended. It appeared from what transpired between Mr. Nii and the newspapers concerned that they may have misunderstood what I said and taken things to the extreme a bit. For that reason, when Mr. Nii raised the matter in court on Thursday 6th at 9:30a.m., I reminded him that I did not make any order or direction in that regard on the previous day and I declined to entertain whatever point Mr. Nii attempted to raise that morning.

The Court has total control of the conduct of proceedings in Court in a matter before it. It is an open court and subject to availability of courtroom space, the public including the media is free to attend and report on proceedings except in those cases where the Court is conducting proceedings in camera. The public is those who attend Court proceedings. The nominal public outside the courtroom I suppose is represented by the media. The general public has the right to have access to that information. The media in PNG plays an important role in the dissemination of Court information to the public. In the absence of government media, the Courts are increasingly relying on the private media to disseminate that information. In a paper I delivered at the Pacific Judicial Conference at Madang in June 2003, I publicly acknowledged the important role played by the media in disseminating Court information. I also acknowledged the freedom of the press in this country."
______________________________________________________
Harvey Nii Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the First, Second, Third, Fourth Defendants
Sumasy Singin: Lawyer for the Sixth Defendant