Ipata v Kereme [2020] PGNC 137; N8372 (12 June 2020)

N8372

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 78 OF 2017

JIMMY IPATA
Plaintiff

V
DR PHILIP KEREME as Chairman of the Public Services Commission & The Public Services Commission
First Defendant

AND
DAVID WEREH as Secretary of the Department of Works &The Department of Works
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 04^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of motion –Order 16 Rule 13 (13)(2)(a) NCR – Summary Determination – Incompetency – defence of – Grounds for – Balance not discharged – Motion denied – cost follow event.

Cases Cited:

Talopa v Police Commissioner [2002] PGNC 47; N2302

Counsel:

J. Ipata in person

E. Bua, for respondents

RULING

12^th June 2020.

1. MIVIRI, J: This is the ruling of the court on a notice of motion pursuant to Order 16 Rule 13 (13) (2) (a) of the National Court Rules, “the Rules” for summary determination on grounds of incompetency.
   
2. Plaintiff seeks the dismissal on the basis of the rules set out above for dismissal of the defence of the defendants for failing to comply with the Directions Orders of the court of the 4^th September 2017 and also on the 4^th December 2017 including 29 occassions where they did not appear and not responding to the draft Statement of Agreed and Disputed facts & Legal Issues for the determination in accordance with the rules. If this is the case as it were what has prevented him from attaining the cause he prays to this court. Because an ineffective or weak defence is no barrier to his cause which is dated by the originating summons 23^rd February 2017.
   
3. If the action is genuine as it is, it is now 3 years since filing by reference to Order 16 rule 4 Delay in applying for relief it would be falling towards an undue delay now that it is more than 4 months old by Order 16 rule 4 (2). Because certiorari is sought to bring into court the decision of the Public Services Commission of the 15^th April 2014 that upheld the decision of the second defendant be quashed declared null and void and of no effect. And the decision of the second defendant dated the 15^th May 2013 that terminated the employment contract and respective position with the Department of Works be quashed and stayed pending the judicial review for excessive abuse and breach of statute (error of law) on discipline process of contract officers in the Public Service.
   
4. Relevant History on file endorsed pertinent to the issue raised is the entry of the 12^th June 2018 when the matter was before Late Justice Nablu where the substantive application for leave was set for hearing on Wednesday 15^th August 2018 at 9.30am. Plaintiff was ordered to file and serve upon the defendants the notice of hearing by close of business 29^th June 2018. Counsel for defence was ordered to file notice of appearance by that same date. Parties were ordered to file and serve their respective extract of submissions by close of business on 31^st July 2018. Matter was to come for pretrial hearing on the 06^th August 2018 at 9.30am. Time was abridged. On the 06^th August 2018, matter was adjourned to 15^th August 2018 at 9.30am. On that date, the trial date as allocated of that date was vacated. It was because the affidavit of Philip Kereme intended to be relied on by the first and second defendants was filed 14^th August 2018. Plaintiff was granted liberty to rely on the affidavit cost of K150 was accorded in his favour. Matter was allocated to 20^th August 2018 at 9.30am for allocation of a hearing date and further directions to the hearing. On that date hearing of the substantive application of the plaintiff was fixed for Friday 22^nd October 2018 at 9.30am. He was granted liberty to file any further affidavits in response to the affidavit of Dr. Philip Kereme by close of business on 14^th September 2018. And defendants were accorded similar in response. And Parties were granted liberty to file extract of submissions by close of business 28^th September 2018. Pretrial hearing was set 1^st October 2018. Time was abridged. Counsel on record was E Bua for the state in majority of the endorsements on file set out above.
   
5. On the 1^st October 2018 matter was adjourned to the 18^th October 2018 at 9.30am for plaintiff to raise objection for the use of the affidavit presumably by the defendants. On that it was further adjourned to 08^th November 2018 because the subject affidavits were short served. On that date before Justice Gavera Nanu the appellant was in person there was no appearance by the defendant’s counsel matter was further adjourned to the 20^th November 2018. Direction was made there for the plaintiff to write and inform the defendants of the new return date. He was also directed to file affidavit of service of the same. On the 20^th November 2018 before Justice Gavera Nanu plaintiff appeared in person together with counsel defending Mr. E. Bua. Matter was adjourned to the 06^th December 2018, and cost was awarded the plaintiff. The last entry is of appearance before Justice Gavera Nanu plaintiff in person and no appearance by defence counsel. The date is wrong as it does not correlate with the previous history. It is 17^th August 2018 where the notation is that the matter is now adjourned to 8^th July 2019 at 9.30am, for further directions. Carrying on from the previous the correct date would be 06^th December 2018. When these directions are made setting the matter to 08^th July 2019 at 9.30am. Counsel on record in majority of the occasions was E Bua.
   
6. On the 06^th December 2018 before Justice Thompson plaintiff motion was refused each party was to bear their costs and the matter was fixed for hearing 9.30am Wednesday 06^th March 2019. And Friday 1^st March 2018 it was to return for pretrial hearing. There are other dates in between leading up from that date to the 17^th February 2020 where matter is adjourned for the obtaining of a trial date on the 09^th March 2020. Plaintiff appeared in person and no appearance by defence counsel. On the 09^th March 2020 plaintiff also appeared without defence counsel a notice of motion filed by the plaintiff of the 28^th February 2020 document no 86 was to be heard on the 19^th March 2020. And Plaintiff was ordered to serve papers on the defendants and file proof of the same including notification of the date of hearing. Counsel on record in majority of the endorsements was E Bua.
   
7. That motion is now the subject of this proceedings and excerpts of the file notation that I set out above will be relevant in the determination of it. And of relevance and applicable here is Order 16 Rule 13 (13) (2) (a) of the National Court Rules, “the Rules” which is in the following terms:
   

“Summary disposal

(a) Any application for Judicial review may be determined summarily for failing to comply with directions or orders issued under the order 16 of the National Court Rules or under these Rules or on any other competency grounds.

(b) The court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court’s own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (c) below.

(c) Where..................”

8. The applicant relies on his affidavit of the 28^th February 2020 filed the same day. He deposes that he lodged this Judicial review proceedings on the 27^th February 2017 against a decision made 15^th April 2014 by the chairman of the Public Services Commission arising from the decision of the Secretary for Works to terminate his employment there. It is his argument that the proceedings be determined summarily on the grounds of incompetency in accordance with the rules because the defendants have failed on numerous occasions to comply with the direction/ orders of the court. That is firstly to determine that the defence is inadequate and there is no defence to the cause he prays to the court. Secondly to dismiss it on that basis. Thirdly to determine his cause of action on the basis that there is no defence. In summary he contends that he be accorded the substantive review application reinstatement of a decision that was made 15^th May 2013 that terminated the employment contract and respective position with the Department of Works. In effect quashing that decision on the basis of excessive abuse and breach of statute (error of law) on discipline process of contract officers in the Public Service.
   
9. In my view this is substantive underpinning this matter and would not be level on the balance with the evidence and entry of endorsement of the appearance of this matter by counsel in particular State counsel Mr. E. Bua who has been on record in majority of the appearance of this matter that I have set out above. To summarily determine is to give effect to his pray without heed to the defence who in the majority have appeared and continue to excerpt of which I set out above. Given the history that I set out above this matter is now three years old. Whether there will be utility in the maintenance of the action is another matter for consideration by the plaintiff. Bearing in mind that grant of the relief he seeks would be detrimental to good administration: Talopa v Police Commissioner [2002] PGNC 47; N2302 (1 November 2002).
   
10. This matter has been delayed because of a number of interlocutrices raised as is the present which have swept aside trial dates allocated and this is clear from the submissions that have been filed notably of the plaintiff amended dated 25^th September 2018 filed the 27^th September 2018. Which has taken account of the amended notice of intention to defend filed 21^st November 2017 that the office of the Solicitor General has followed through in the appearance of counsel set out above.
    
11. Given all set out above the motion of the plaintiff is without merit and is denied. The matter is now three years running since the 27^th February 2017 against a decision made 15^th April 2014 by the chairman of the Public Services Commission arising from the decision of the Secretary for Works to terminate his employment there.
    
12. The court directs and fixes the matter for hearing Friday the 19^th of June 2020 at 9.30am. It will return to court Monday 15^th June 2020 at 9.30am for pretrial directions. The plaintiff will take out these orders and serve on the defendants.
    
13. Should the matter not proceed to trial as ordered the matter stands dismissed by Order 16 Rule 13 (13) (2) (a) (b) of the National Court Rules on the initiative of the court because the matter is now 3 years old. There will be prejudice and substantial hardship to those who have since moved into the position then occupied by the applicant.
    
14. Motion of the plaintiff is denied with Costs to follow the event.
    
15. Matter is fixed Friday 19^th June 2020 at 9.30am for Hearing of the substantive matter.
    
16. Matter is fixed for Pretrial hearing Monday 15^th June 2020 at 9.30am.
    
17. Should the matter not proceed to trial it stands dismissed by virtue of order
    
18. Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

J Ipata plaintiff in person

No appearance for the Defendant