Gura v Perry [2020] PGNC 167; N8314 (13 May 2020)

N8314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR). 684 of 2019

BETWEEN

MICHAEL GURA

Applicant

AND

LIEUTENANT COLONEL RICKAVA PERRY

First Respondent

AND
BRIGADIER GENERAL GILBERT TOROPO, COMMANDER DEFENCE FORCE

Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Lae: Dowa AJ

2020: 18^th March & 13^th May

JUDICIAL REVIEW – application for leave for judicial review – grounds for leave application – consideration of – whether plaintiff has Sufficient interest and an arguable case – whether plaintiff has exhausted other administrative remedies before seeking leave for judicial review – whether plaintiff is seeking judicial review without undue delay – plaintiff has shown undue delay in seeking leave for judicial review – if leave granted would be detrimental to good administration – application for leave for judicial review refused

Cases Cited:

Application of Eric Gurupa (1990) N856
Application of Evangelical Lutheran Church of PNG (1995) PNGLR 276
Asakusa v Kumbakor (2008) N3303
NTN v PTC (1987) PNGLR 70
Pipoi v Seravo (2008) SC209
SHPG V Kalu (2016) SC1568
State v Toka Enterprises Ltd (2018) SC1746
State &Sali v Sisia (1987) PNGLR102
Tepas v Tekum (1999) N1921

Counsel:

T Berem, for the Applicant

S Maliaki, for the Respondent

DECISION

13^th May, 2020

1. DOWA AJ: This is a ruling on an application seeking leave to apply for judicial review under Order 16 Rule 3(1) of the National Court Rules.

2. The applicant, Michael Gura, comes from Maprik District, East Sepik Province. He is a former member of the PNG Defence Force until his discharge from the force. He was discharged from the Force on13^th December, 2014. The applicant has sought leave to apply for judicial Review of this decision.

FACTS

3. The applicant filed three (3) Affidavits, a Statement pursuant to Order 16 Rule3(2) and other relevant documents in support of his application.

4. The applicant commenced service with the PNG Defence Force on 20^th July,1999. He held the rank of Corporal, Service No.812559 at the time of his discharge. He served the PNG Defence Force for about 15 years. The Applicant was discharged for being absent from work without leave.

5. The applicant stated he took his annual leave from February 2012, for about eight (8) months. Whilst on leave, he decided to leave the Force. He tendered his discharge form duly executed and delivered same to the administration office at Igam barracks on 12^th June, 2012, for processing. After receiving no response, the Applicant executed a second discharge form sometimes in 2013. Again, there was no response.

6. The applicant then returned to duty and after advising his immediate Superiors, he commenced work mid, 2014. He worked for about seven (7) months (without pay) when he was verbally terminated on 15^th February, 2015. On the day of his verbal discharge (15^th February,2015), the applicant said he did not know that he was already discharged on 13^th December 2014. The applicant said he was not served with any formal notice of termination. After waiting for three (3) years he made a trip to the PNG Defence Force Headquarters in Port Moresby.

7. On 19^thApril, 2018 the applicant met his superiors at the Defence Force Headquarters at Murray Barracks. The applicant was then given a copy of the discharge notice. And there he found out for the first time that he was terminated on13^th December, 2014. The applicant also established during the meeting that he was discharged by the second respondent for being absent from duty without approved leave. The recommendation for termination was made by the first respondent on 20^th November,2014. The applicant alleges he was not given an opportunity to explain his absence from duty to the respondents. He was not served with the notice of the recommendation and the eventual termination.

8. The applicant said, in May, 2018, he wrote to the Defence Force Commander, appealing against the decision. In July 2018, the Second Respondent refused to reinstate him and confirmed the discharge. As a result, the applicant filed the current proceedings seeking leave to apply for judicial review of the Respondents decisions.

GROUNDS OF REVIEW

9. The following are proposed grounds of review as set out in the statement:

1. The Respondents failed to take into account relevant considerations
2. The Applicant was denied Natural justice/right to be heard

100. The Respondent’s actions were arbitrary, harsh and oppressive

4. There was a procedural breach of the Manual of Personnel Administration
5. The respondent’s decision was unreasonable

REQUIREMENTS FOR LEAVE

10. The law and principles relating to judicial review is settled in this jurisdiction. Applications for leave for judicial review involve the exercise of discretion. The main prerequisites for leave under Order 16 Rules 3 & 4 of the National Court Rules are:

(a) Sufficient interest,

(b) An arguable case,

(c) Exhaustion of other administrative avenues; and

(d) No undue delay.

Submissions by counsel

11. Mr. Berem of counsel for the Applicant submitted that the Applicant has pleaded proper and valid grounds which have merit for judicial review. He submitted that the Applicant has also provided enough evidentiary material in support of the application.

12. Ms. Maliaki of counsel for the Respondents opposed the application. She submitted that the applicant voluntarily discharged himself and stayed away from work for long periods of time. She submitted that it was the Applicant’s responsibility to check on the status of his discharge applications and the status of his employment. Due to his long absence he was discharged. Even when verbally advised of his termination on 15^th February,2015, she submitted, the applicant did nothing to find out further and waited for another three (3) years. Finally, she submitted that there is undue delay in bringing this application and thus the application be refused.

SUFFICIENT INTEREST: Order 16, Rule 4 (5)

13. The Applicant in the present case has standing. He is directly affected by the decision of the Respondents to discharge him.

Exhaustion of Other Administrative Avenues: Order16 Rule3

14. The Applicant deposed to in his Affidavit that sometime in May,2018 he wrote to the first Respondent appealing against the decision and requested the first respondent to reinstate him. In July,2018, the first Respondent replied, stating the appeal was refused and the discharge was confirmed. Copies of the correspondences and appeal documents were not provided. I find the Applicant was slow in taking steps to protect his interests even through administrative means. Nevertheless, the application for leave is in order.

ARGUABLE CASE; Order 16, Rule 3

19. In determining whether the applicant has an arguable case, the court shall consider the grounds set out in the statement and the materials filed in support. The court shall also be guided by the wisdom of developed principles applicable in this jurisdiction.

20. The principles applicable to an application for leave for judicial review are well settled in the case NTN v PTC (1987) PNGLR 70:

“Applications for leave for judicial review, involve the exercise of discretion, such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest it then exercises his discretion whether leave should be granted.”

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses(1982) AC 617 Lord Diplock set out the principles upon which the court should act and I respectfully adopt them-If on a quick perusal of the material the court (that is the judge who first considers the application for leave ) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”

21. In deciding what is an arguable case, the court is to carefully consider the proposed grounds so that only clearly pleaded and meritorious grounds of review proceed to substantive hearing. In Asakusa v Kumbakor (2008) N3303, Injia DCJ (as he then was) stated at paragraph 18 of his judgment:

“...The grounds must contain reference to some established grounds recognised by law as proper grounds upon which judicial review relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonable) or abuses its powers: Kekedo v Burns Philp (1988-89) PNGLR122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal (1987) PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the court.’

GROUND ONE. FAILING TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

22 The first proposed ground for review contains a series of allegations levelled against the first and second Respondents. As against the first Respondent, it is alleged that first Respondent did not find out from the Applicant the reasons for his absence from work before he made the recommendation for the discharge. From the material provided, I find the Applicant’s own prolonged absence from work may have contributed to this. Whilst the first Respondents’ action appears to be unfair, unreasonable and in breach of natural justice, it is not a ground for judicial review. The Applicant did not clearly plead the statutory and procedural role or duty the first respondent is alleged to have breached.

23. In respect of the allegations against the second Respondent, again the proposed ground fails to plead the statutory or procedural breach of duty. The decision to discharge the applicant without first hearing him of the reasons of his absence, may amount to breach of natural justice or may be unreasonable. However, whilst the circumstances leading up to the decision is not clear, the reason for decision is certain. The Applicant was discharged for absence of duty. If that be the case, was the applicant at the place of work to be given that opportunity. As I have found, the applicant has been absent from duty at the relevant times. In the premises, I am of the view there is no merit in allowing this ground to substantive review. Refer Asakusa v Kumbakor (supra ).

GROUND TWO: DENIAL OF NATURAL JUSTICE/RIGHT TO BE HEAR, GROUND THREE: ARBITRARY, HARSH AND OPPRESSIVE, AND GROUND FOUR: UNREASONABLENESS

24. Grounds two, three and four can be dealt with together as they are related and are based on the same material. These grounds relate to the Respondents alleged failure to hear out the applicant of the reasons for his absence, for the failure in giving him the opportunity to explain before being recommended for discharge and the eventual discharge.

25. The facts giving rise to these grounds are the same as those in ground one. I have already addressed them in my findings. Whilst the respondents’ actions, conduct and treatment of the applicant appears to be arbitrary, harsh and oppressive, unreasonable and in breach of natural justice, they lack merit. The conclusions of some unfair treatment of the Applicant by the Respondents is mitigated by the applicant’s own conduct.

Ground Five: Failure to Process the Applicants application for discharge

26. The fifth ground for review relates to an allegation of failure by the Respondents to process the applicants’ application for discharge. From information provided by the Applicant, and without hearing from the respondents, it seems the Respondents did not process the applicant’s application for discharge. This would be in breach of Chapter 58.18 of the Manual of Personnel Administration. No reasons are available for not processing the application for discharge. The Respondents would have their reasons and those reasons are not expected to be provided at this stage. What is clear, is that the applicant was at his home province for most of this time. It is not clear how often the applicant turned up at the respondents’ administration office to check on status of his application. I find the Applicant’s absence from work may have contributed to this. Whilst it appears the conduct of the Respondents amounted to breach of their statutory duty to process the applicants discharge, I am of the view that ground lacks merit.

27. For the reasons given, I am of the view that the Applicant has not satisfactorily shown on the grounds pleaded and materials filed that he has a meritorious and arguable case that should proceed to substantive judicial review hearing.

Detrimental to Good Administration: Order 16 Rule 4(1)

28. Even if I am wrong in my conclusions, there is a second reason why I am not inclined to grant leave. Order 16 Rule 4(1) of the National Court Rules gives the court the discretion to refuse leave if in the opinion of the court, the granting of the relief sought would be detrimental to good administration. The facts are clear. The Applicant wanted to get discharged from the force himself. He carried out his intention by firstly submitting two applications for discharge. Instead of regularly checking on approval, the Applicant left for his home province. The Applicant stayed away from work for a considerable period. Due to the prolonged absence, he was discharged. When the Applicant found out about his discharge, he did nothing about it for a long period of time. Things have moved on. I am not convinced there is merit for review.

Undue Delay: Order 16 Rule 4(2)

29. There is still a third reason why the Applicant’s application should be refused. There has been an in ordinate and undue delay. Order 16 rule 4 (2) of the National Court Rules provides that, “in the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose, of quashing it, the relevant period for the purpose of Sub-rule(1) is four months after the date of the proceeding.”

30. It is generally accepted that the period of four months is not mandatory. The court has the discretion to enlarge that period provided the application is brought within a reasonable time, and a reasonable explanation for the delay is given. What amounts to undue delay depends on the circumstances of each case. The following cases illustrate this point.

31. In NTN v PTC (1987) PNGLR 70, the leave application was refused for undue delay after it was brought 11 months late. The Court was of the view that the grant of leave that late would be detrimental to good administration.

32. In State & Sali v Sisia (1987) PNGLR102, the Supreme Court held, in upholding an appeal, that a delay of five years was undue delay.

33. In Application of Eric Gurupa (1990), N856, the application for leave was refused for undue delay. The application was brought after two years with no reasonable explanation for the delay.

34. In Application of Evangelical Lutheran Church of PNG (1995) PNGLR 276, the Court refused the application for leave for undue delay. The period of delay was 11 months where the applicant offered no good reasons for the delay.

35. In Tepas v Tekum (1999) N1921, the Court refused leave for undue delay. The application was made 13 years after the administrative decision, the subject of the leave application.

36. In Pipoi v Seravo (2008) SC209, the Supreme Court, in dismissing an appeal, held that a delay of 11 years was undue delay and affirmed the decision of the National Court which refused the leave application.

37. In SHPG v Kalu (2016) SC1568, the Supreme Court refused leave for undue delay. The delay was for more than 3 years with no reasonable explanation.

38. In the present case the Applicant applied for discharge in June, 2012. He went home and stayed away from work. He returned to work sometime in July or August,2014. He was discharged on 13^th December,2014. That’s a period of more than two years. He was verbally terminated (or advised of termination) on 15^th February,2015. He did not take any action until April,2018, after another three (3) years. The Applicant provided no explanation for not taking any action for the three years. In paragraphs 14 and 16 of his affidavit, the Applicant deposed that he was kept in the dark and waited for 3 years for the official notice.

39. The next relevant period of inaction is between 19 April,2018 and 30^th September,2019. On 19^th April,2018, the applicant obtained a copy of the discharge notice. Thereafter, he consulted a lawyer who gave notice to the state on 28^th May, 2018. The Solicitor Generals’ office responded on 22^nd October,2018 stating that the applicants section 5 notice under the Claims By and Against The State Act was out of time. The Applicant did not take any further action until 30^th September,2019, a period of 11 months. The Applicant said he could not file proceedings earlier due to financial problems. I do not find this to be a reasonable explanation. The Applicant is a senior officer and educated. If he could not afford the services of the private lawyers, he could do the case either by himself or engage the services of the Public Solicitor, who offers free legal aid. During my short stay in Lae, I have observed that the civil division of the Public Solicitors office in Lae has been active in assisting people in court. There is no evidence that the applicant sought such assistance and was declined.

40. The applicant filed these proceedings on 30^th September, 2019. From 13^th December, 2014 to 30^th September, 2019 is a period of four (4) years, nine (9) months. In my view the delay period is too long and amounted to undue delay and is detrimental to good administration.

Conclusion

41. Whilst I find the Applicant has a reasonable complaint against the Respondents for failing to process and consider his voluntary discharge application, I am of the view that there was inordinate and undue delay in the filing of the application. To grant leave at this stage would be detrimental to good administration. Consistent with the settled principles and reasonings given in the cases referred to in this judgment, the application for leave is refused.

42. The Formal orders are:

1. The application for leave to apply for judicial Review is refused.
   

2. No order as to cost.

_______________________________________________________________
Berem Lawyers: Lawyer for the Applicant

Solicitor General: Lawyer for the Respondents