Nauga v Holland [2018] PGNC 566; N7710 (9 November 2018)

N7710

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 147 OF 2018

BETWEEN:
PHILIP NAUGA – in his capacity as
Auditor General of Papua New Guinea
Plaintiff

AND:
THOMAS HOLLAND
First Defendant

AND:
PETER SIPERAU
Second Defendant

AND:
GABRIEL KOH
Third Defendant

Waigani: Dingake J
2018: 8, 15 & 22 June, 12 & 20 July, 9 November

Cases Cited:

Nema v Rural Development Bank Ltd (2012) N5317
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) PGSC 5; SC906)

Counsel:

Mr. Tau Kamutas, for the Plaintiff
Mr. Bernard Koae, for the Defendants

9^th November, 2018

1. DINGAKE J: This is an application by the defendants to dismiss the entire proceedings for being an abuse of Court process. The defendants contend that the entire proceedings be dismissed under the doctrine of res judicata and estoppel.
2. The application is brought pursuant to Order 12 Rule 40 of the National Court Rules.
3. Order 12 Rule 40 of the National Court Rules provides:
   • “40. Frivolity, etc. (13/5)
   • (1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings —
     • (a) no reasonable cause of action is disclosed; or
     • (b) the proceedings are frivolous or vexatious; or
     • (c) the proceedings are an abuse of the process of the Court,
     • the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
   • (2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”
4. The background facts to this matter are that the applicants herein were at all material times hereto senior officers of the Office of the Auditor General before their employment were terminated following disciplinary proceedings brought against them. Their contracts of employment were terminated on or about the 16^th of December, 2013.
5. The applicants being unhappy with the decision of the Auditor General applied to the Public Service Commission to review the decision to terminate their contracts of employment.
6. The Public Service Commission on the 6^th of January, 2015, quashed the decision of the Auditor General to dismiss the applicants and reinstated them to the substantive positions they occupied immediately prior to their dismissal.
7. The Auditor General refused to comply with the decision of the Public Service Commission, for reasons not necessary to state as they are not material to this decision.
8. The applicants, by originating summons applied to the National Court, seeking wide ranging relief whose net effect was to implement the decisions of the Public Service Commission.
9. The National Court in an Order dated 16^th day of November, 2015, held that the decision of the Public Service Commission was binding on the Auditor General and ordered as follows:
   • (i) The application for enforcement of the decisions of the Public Service Commission is granted.
   • (ii) The decisions of the Public Service Commission dated 6 January 2015 are binding and shall be complied with as soon as practicable, which means that the first defendant shall reinstate the plaintiffs to their former positions by 16^th December, 2015 and the first defendant shall reimburse their lost salaries and entitlements by 18^th January, 2016.
   • (iii) The defendants shall pay the plaintiffs’ costs on a party-party basis which shall if not agreed be taxed.
10. The respondent (Auditor General) had until the 16^th of December, 2015 to comply with the Court Order.
11. The applicants unhappy with the failure of the respondent to reinstate them made an application, before Kariko J, seeking to have the respondent found guilty of contempt of Court. The application was not successful.
12. It would seem that Kariko J in the course of considering the application for contempt ordered or extended time for compliance with the original Court Order and also found that the applicants were not entitled to any salary or other entitlements for the period from the 16^th of December, 2015 until resumption of duties.
13. The applicants, unhappy with the decision of Kariko J, appealed to the Supreme Court. The appeal was successful in part. The order by Kariko J that the plaintiffs were not entitled to salary from 16^th of December, 2015 until reinstatement was set aside and quashed.
14. What is plain from the above narration is that the issue that was before Cannings J related to the question whether the decision of the Public Service Commission was binding on the respondent.
15. The issue before the Supreme Court related to an appeal against the decision Kariko J made during the course of determining an application for contempt.
16. It is also plain that in none of the proceedings before Cannings J, and the Supreme Court was the issue of the applicants’ contract of employment having expired raised and judicially determined.
17. In this current application (notice of motion filed 27^th March, 2018 (Document No. 4)), the applicants seek the dismissal of the respondent’s originating summons, seeking a number of declarations, including that the respondent has fully complied with the Court Order made on the 16^th of November, 2015, by Cannings J and a declaration that the defendants three (3) year Contract of Employment terminated on the 20^th of February, 2015 and same was not renewed.
18. In response to the above originating summons, the applicants came to Court, complaining that the respondent proceedings should be dismissed for being an abuse of the process of the Court on the ground that the matter is res Judicata and or that the respondent is stopped (issue estoppel) from initiating the proceedings in the manner he has done as indicated above.
19. The applicants, during the course of proceedings raised the issue of the locus standi of the respondent to continue with the litigation he initiated having regard to the fact that Mr. Philip Nauga ceased being the Auditor General of Papua New Guinea on the 28^th of March, 2018 and that Mr. Gordon Kega, the Acting Auditor General has no interest to pursue this matter.
20. It seems to me that the short answer to the above complaint is that there is no sufficient evidence that the Acting Auditor General has no interest in this matter. If it were so, he would have instructed his lawyers to discontinue the proceedings. He did not. It is plain in the papers filed of record that Mr. Philip Nauga did not initiate the proceeding complained of in his personal capacity but as the Auditor General of Papua New Guinea. There is in my mind no merit to the argument that the Office of the Auditor General has no locus standi to sustain these proceedings because Mr. Philip Nauga is no longer the Auditor General.
21. I have already indicated that the applicants contend that the respondent’s proceedings must be dismissed because there are res judicata and or that the respondent is estoppel from bringing the proceedings.
22. In order for the plea of res judicata to succeed a party relying on the doctrine must show:
    • (i) The same question was decided in both proceedings;
    • (ii) The judicial decision said to create the estoppel was final; and
    • (iii) The parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies”.
      

(Nema v Rural Development Bank Ltd (2012) N5317; Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) PGSC 5; SC906).

23. In my mind issue estoppel is related to the doctrine of res judicata, but arises where the causes of action are different, but the parties or their privies are the same and the same is raised and judicially determined. In short issue estoppel means that a party is ‘stopped’ to raise an issue of fact or law that has been judicially determined.
24. It seems to me that this matter is not res judicata primarily because the issue with respect to the relief sought by the respondent in the notice of motion which includes a declaration that the respondent has fully complied with the Court order and that the applicants contract of employment have expired has never been raised before Cannings J or before the Supreme Court. It seems plain on the evidence that Cannings J only considered the question of whether the decision of the Public Service Commission was binding on the Auditor General and Supreme Court was dealing with an appeal with respect to Kariko J’s findings on contempt application.
25. The issues captured in respondent’s notice of motion have not been judicially determined and the doctrine of res judicata is not applicable. The plea of issue estoppels does not arise at all.
26. The matter of whether the respondent has fully complied with the Court Order or not; whether the defendants contracts of employment have expired or not and other relief in the respondent originating summons not having been adjudicated upon and determined conclusively in previous proceedings, cannot be an adequate basis to succeed in a plea of issue estoppel. The respondent is not estopped to bring the proceedings he has initiated.
27. The applicants are not contending that the respondent is estopped because he could have raised the issue of the expiry of their contracts in previous proceedings before Cannings J and the Supreme Court. As those issues were not canvassed it is not appropriate to say anything further on same.
28. The respondent has a constitutional right to be heard by this Court. He cannot be driven away from the judgment seat except in the clearest of cases and for credible and cogent reasons.
29. In all the circumstances of this case, this application is without merit and is liable to be dismissed.
30. In the result:
    • (i) The application is dismissed with costs.

_______ ____________________________________________________
Kamutas Legal Services : Lawyers for the Plaintiff
Eda Legal Services : Lawyers for the Defendants