Kaluga v Danton [2020] PGNC 195; N8417 (17 July 2020)

N8417

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 799 OF 2019

BETWEEN:
ITI KALUGA
Applicant

AND
DR ALOIS DANTON, ACTING COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION
First Respondent

AND
INTERNAL REVENUE COMMISSION
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Miviri J
2020: 30^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons Order 16 Rule 3 (1) & (2) NCR – Notice of Motion – Statement in support Order 16 Rule 3 (2) (a) NCR – Affidavit verifying facts Order 16 Rule 3 (2) (b) NCR – affidavit of applicant – locus Standie – delay – No arguable case – internal process exhausted – no error in procedure shown – balance not discharged for leave – Leave refused – cost follow event.

Cases Cited

Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Counsel:

J. F. Unua, for the Plaintiff
H. White, for the Defendant
RULING

17^th July, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s application for leave for Judicial review against the decision of the first respondent of the 22^nd November 2018 to terminate his services as Debt Recovery Officer from the second respondent.
   
2. This is a relationship of employer employee and therefore there are rights and obligations in law either way. Which is all the more for there to be observance of process to see out a dispute in the relationship. Because failure would see a cause of action arise against. Therefore, at the outset the procedure and process taken to ultimately arrive at a decision is all there is to judicial review. The Substance is immaterial the process is what counts. Leave is therefore the gate keeper to Judicial review. Because administration must be left to those who are parties as is the case here. And it is their own processes that take care what is disputed as here. Hence the important question always posed is has internal processes being exhausted. If the answer is yes is there error apparent or identifiable so that judicial review lies. The balance lies with the evidence relied on.
   
3. In this regard applicant deposes by his affidavit dated the 11^th October 2019 that an allegation arose of fraud and misappropriation, and he was used in it by another also within the same office in the human resources division. Through that person he applied for a loan of a lessor amount than what was demanded to from him by lawyers for the finance company. Because the moneys were paid into his account and so demand made. The resultant was that he was terminated from his position of a Debt recovery officer with the second respondent for one year since the 9^th January 2017.
   
4. This was the culmination of three charges which he received on the 24^th October 2018 detailed out at paragraph 17 of his affidavit. As firstly, “Pursuant to section 26 (h) of the Commission Administrative Orders (CAO) that on the 12^th February 2018 you conspired with one Ray Asi and others with the intention to defraud submitted to the National Finance Limited a personal loan application with false, forged and uttered supporting documents fraudulently obtained from the Internal Revenue Commission a total of K15, 000.00 as a result of this loan application, was approved against your name, deposited into your account bearing the account number 1012398879 held at Bank of South Pacific, withdrawn and applied to your use and the use of Ray Asi and others.”
   
5. And Secondly, “Pursuant to section 26 (i) your actions with Ray Asi and others in fraudulently obtaining supporting documents from the Internal Revenue Commission (IRC) then uttering and manipulating those documents and subsequently defrauding the said National Finance Limited amounts to disgraceful and improper conduct.”
   
6. And thirdly, “Pursuant to section 26 (j) you violated the oath you took on the 6^th January 2017 when you commenced employment with the IRC, to well and truly serve the Independent State of Papua New Guinea”.
   
7. These are attached as annexure “D” of his affidavit. They detail out the allegation against the applicant. And call upon the applicant to reply in writing as to whether he admits or denies them. And gives notice that if no reply is received by the 7^th day it may be deemed that he has admitted the charges. Two officers of the Respondents witness the charges in their official capacities set out within as authorized delegation of the commission. There is a certification of service also included signed by one of the officers.
   
8. In response to this is annexure “E” response of the applicant four-page document dated the 2^nd November 2018 denying the charges levelled. And it is thorough in the way that the applicant has put. Annexure “G” is response dated the 28^th November 2018 from the National Fraud & Anti-corruption Directorate by its director Detective Chief Superintendent Mathew Damaru of registering the matter as a false pretence criminal complaint.
   
9. Prior to the charges he was interviewed August 2018 by the fraud Investigations Manager of the second respondent one Manu Gomara with two others. On the 2^nd November 2018 he replied to the charges denying them all. On the 22^nd November 2018 he was served notice of punishment which is annexure “F” of his affidavit. It is addressed to the applicant and is in the following terms, “Take Notice that I have considered your reply dated 2^nd November 2018. Further I have considered the best interest of the Internal Revenue Commission, the relevant Laws, all evidence available to me, and the charges which have been laid against you under a notice of charge dated and served upon you on the 24^th October 2018. I am of the opinion that the following charges outlined in the said Notice of charge have been sustained”. And these are set out above which have sustained, and the punishment is termination from the Internal Revenue Commission. This was the decision taken by the first respondent upon the applicant.
   
10. It is also important to see the backdrop of the matter enlightened by the Bank account of the applicant from the Bank of South Pacific in his name attached as annexure “A” to his affidavit showing K 14, 244. 62. Annexure “B” to his affidavit is a letter from the Pacific Legal Group addressed to him Iti Kaluga Internal Revenue Commission P. O. Box 777 Port Moresby National Capital District. The subject is Outstanding Loan Repayments due to the National Finance Limited of K 30, 745. 97. It draws the applicant to his loan obligations agreement entered into of the 14^th December 2017 for which he is indebted to them in the sum of K30, 745. 97 due and payable. Because a letter of demand dated the 30^th May 2018 met with no response in the repayment of the money. And the subject letter asks for authorization of salary deduction to off set that amount. Also notifying that failure will lead the lawyers to institute proceedings to recover that amount together with costs. The letter is signed by the pacific Legal Group per Emmanuel Asigau.
    
11. Annexure “C” of the affidavit is statement of the applicant made in response to the allegations. It was initially emailed to him by fraud Investigations Manager of the second respondent Manu Gomara with instructions that he fill out and return. Applicant filled it out denying the allegations and returned it to him. He in turn informed that it would be forwarded to the Legal division within for their assessment. In this regard it is worth noting his annexure “E” his reply to the charges. He denies the allegation gives reason that shifts the blame away from himself and upon another.
    
12. What is exposed here is a process of the consideration and determination of the dispute. It is internal process that is invoked to see out the dispute between the applicant and the respondents. Which decision has ended with the demise of the applicant. There is clear evidence of opportunity given the applicant to air in response to the allegation made. As is set out these has been given proper scrutiny and analysis to arrive at the decision to terminate the applicant. Section 59 natural justice has been heeded to in the way that is pictured by the evidence set out above. What is clear is that the applicant has not been smothered so that he is not heard in his defence. There is no error apparent or identifiable in the process administered against the applicant. This ground is not made out in the applicant’s favour.
    
13. There is no arguable case presented as in Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). An allegation or series of allegations has arisen in law following a due process of law in its investigation deliberation and determination culminating at the pinnacle in his demise. He has been an integral part in its compilation and conclusion. There is no room for allegations that he was not part of the process. Because the evidence by his own affidavit is to the contrary. There is no room to disturb nor invoke the discretion of the court against. Leave does not lie where no arguable case is made out as here. The result entailing is that this ground is not made out and the applicant fails. This is coupled with the fact that there is no error in the procedure followed necessitating the discretion of the court to follow: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May 1987).
    
14. Compounded here the originating summons is dated the 11^th October 2019 and the subject decision is of the 22^nd November 2018. Clearly time has been delayed and the material relied on to explain the delay is not satisfactory particularly the affidavit of Junior Fish Unua. Because the administration of the office of the Public Solicitor is not a matter in issue before the court. Time in law is important and lawyers are trained in and have no excuse to be lax in it. Order 16 Rule 4 is explicit and clear. Here examining the granting of the relief would see substantial hardship and prejudice to the respondents. Here the file was in the office as of the 8^th April 2019 but prior to that was in the possession of the applicant. He made no move after the 22^nd November 2018 which was when he was served the notice of penalty to bring the matter to a lawyer. His position was such that he did understand between right and wrong as a debt recovery officer. All the more his failure is not remedied by the affidavit he has filed with his lawyer. Rather it is safe to hold that time has being delayed unreasonably inordinately and his plea fails in these respects. The discretion of the court will not be invoked in his favour given.
    
15. He is affected by the decision, but he has not made out the grounds set out above, the aggregate effect is that his application is not made out. There is no merit to invoke the discretion of the court.
    
16. He does not qualify for leave to be granted accordingly. Leave for Judicial review is refused.
    
17. The costs will follow the event if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants