Polup v Garry [2020] PGNC 299; N8507 (14 September 2020)

N8507

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 573 OF 2019

BETWEEN:
JOHN POLUP
Plaintiff

AND
JERRY GARRY MANAGING DIRECTOR OF MINERALS RESOURCES AUTHORITY
First Defendant

AND
MINERAL RESOURCES AUTHORITY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 30^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Notice of Motion Order 12 Rule 40 (1) (a) (b) & (d) NCR – Dismissal of Proceedings – no reasonable cause of action – frivolous & vexatious – abuse of process – Evidence sufficient – balance discharged – contract law applicable not judicial review – application granted – Proceedings dismissed – cost follow event.

Cases Cited:

Kekedo v Burns Philip Limited [1988-89] PNGLR 122.
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Ragi and State & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC459
Malai v PNG Teachers Association [1992] PGSC 8; [1992] PNGLR 568
Kombati v Singin [2004] PGLawRp 27; [2004] PNGLR 476
Malewo v Faulkner [2009] PGSC 3; SC960

Counsel:

J. Unua, for Plaintiff
G. Pipike, for First & Second Defendants

RULING

14^th September, 2020

1. MIVIRI, J: This is the Ruling on the first and second defendants application by notice of motion dated the 29^th July 2020 for orders pursuant to order 12 rule 40 (1) (a) (b) & (d) of the National Court Rules, “the Rules” for dismissal of the proceedings for not disclosing a reasonable cause of action. And frivolous vexatious and abuse of court process.
   
2. Order 12 rule 40 (1) (a) (b) & (d) of the National Court Rules is in the following terms:- “Frivolity, etc (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 Court,

(d) 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).”

3. The background to the matter is contained in the affidavit of Edward Lasisi filed on the 06^th March 2020 and the 03^rd June 2020. He is the Human Resources Manager and the Acting Executive Manager for the Corporate Services Division employed by the first and second defendants. He is directly responsible for staff disciplinary matters through that committee. He deposes that the plaintiff was employed as the Finance Manager by Mineral Resources Authority from the 18^th December 2017 for three years. He was employed on a Contract of Employment annexure “A” of the affidavit of Edward Lasisi. Which was entered into on the 05^th March 2018 running for three years. It was terminated on the 23^rd April 2019. In accordance with clause 23 of the contract he was charged and suspended by letter dated 21^st March 2019. There were six charges altogether which are:
   

“(i) Committed a material breach of the provision of his contract and corporate policy of the Mineral Resources Authority.

(ii) Disgraceful or improper conduct in the discharge of official duties- inappropriate relationship with subordinate employee-Miss Monique Mileng, who you are obliged by virtue of your role to uphold the Mineral Resources Authority code of conduct and demonstrate principles of leadership and ethical behaviour.

(iii) Absent from work without proper authority and good reasons for a period seven days- absent from work for a period commencing 7 January 2019.

(iv) Use of profane language against other employees during or within Mineral Resources Authority premises, verbal abuse against Mineral Resources Authority Staff and breach of IT Policy-via Mineral Resources Authority email dated 5 November 2018 at 0922am to Leonie Madgwick, Serah Philip and Mary Nicolas. Using Mineral Resources Authority email for personal matters and not business-related matters.

(v) Wilful and deliberate damage to Mineral Resources Authority assert-CUG issued mobile phone.

(vi) Authority funds taken without approvals-cash taken from the Mineral Resources Authority petty cash without approvals on numerous occasions.”

4. These comprised the basis of his suspension letter dated the 21^st March 2019 annexure “B” which was by clause 23.1 (a) of the Employment Agreement. It was the basis of his suspension reading, “Take Notice that pursuant to clause 23.1 (a) of your staff Employment Agreement (Employment Contract”) executed between yourself and Mineral Resources Authority (“MRA”) on the 18^th of December 2017 you are hereby suspended from duties under the following charges.” It is important to set out what follows in that letter. And these are in the following, “Take Further notice that you are suspended forthwith from duties with full pay and are now requested to provide in writing your admission or denial of the charges referred to above within seven (7) working days upon the receipt of this Notice.

Upon receipt of your response I will proceed to deliberate on the facts and evidence before me and make a determination as to whether the charges are proved.

Your failure to provide a written response to this Notice after seven (7) days will not constitute any admission, however, in the absence of such response I am obliged to reach a determination on the facts and fix such penalty or impose such administrative action as I deem appropriate in all of the circumstance.

In the event, sufficient evidence is provided within the suspension period, you will be informed.

This notice shall take effect forthwith and you are expected to evacuate the Mineral Resources Authority Mining Haus immediately. You will have no access into the Mineral Resources Authority office during the suspension period.

Dated Thursday the 21^st day of March 2019.

Signed

Jerry Garry Managing Director.”

5. What has happened here is by the contract that has been entered into between the plaintiff and the first and second defendants it would appear that there have been breaches under it which are set out above. Which have been served the plaintiff and for his side of the story on it so that determination is made on it. It is therefore in all essence a matter of privity of contract between master and servant. The former is the first and second defendants and the latter is the servant. It is a matter that is personal between the plaintiff with the first and second defendants on the other part. Hence in every sense it is not of Public Law as in Kekedo v Burns Philip Limited [1988-89] PNGLR 122. There though private law in the sense that the employment was between the non-citizen, the cancellation of his work permit by the secretary Department of Labour and Employment was a public law matter. It was therefore properly to be judicially reviewed. There an administrative internal procedure was available to address and therefore judicial review was not open until that was exhausted. Here the procedure under the contract have dictated to where the plaintiff has been left. If he has been prematurely terminated it is not a matter where judicial review lies because the termination is not as in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) where the provincial administrator did not comply with the Public Services Commission decision to reinstate the appellant. The Supreme court ordered his reinstatement and payment of entitlements due. That is not the case here. This is a matter of contract between employee and employer as in Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994).
   
6. It is not a public matter it is more towards the facts and circumstances of Malai v PNG Teachers Association [1992] PGSC 8; [1992] PNGLR 568 (30 July 1992), the master can at will based upon the relationship hire and fire as he sees on the contract. And any suggestion , “of a duty to act fairly and any rights under the Constitution to natural justice only go so far here as to whether he was terminated with proper notice, such as that required under the Employment Act Ch 373, namely, on two week's or a month's notice, depending on the basis of his salary payment in the absence of any contractual arrangement which provided otherwise". That has been the case here with the plaintiff depicted out by the evidence set out above. There is therefore fairness within the meaning of that term as inscribed under section 59 of the Constitution. It is not as if the plaintiff has been swept aside without recourse to fairness and an opportunity given of what is alleged time given to response of which has been considered in the decision taken to terminate. It is for all intent and purposes employment covered by contract between the plaintiff on the one hand the first and second defendants on the other. It is therefore not a matter where judicial review is called upon because contract law underpins. There is no cause of action in judicial review within, that is certiorari and mandamus are not available, Kombati v Singin [2004] PGLawRp 27; [2004] PNGLR 476 (19 October 2004) but a writ of summons.
   
7. There is no cause of action in judicial review by the evidence and the requirement of law for is not satisfied on the balance of probabilities from all set out above. Originating summons is not the correct mode to start the proceedings in view of all set out above it means the proceedings cannot sustain in law and must be dismissed as such: Malewo v Faulkner [2009] PGSC 3; SC960 (13 March 2009), proceedings stemming from originating summons was dismissed by the Supreme Court because the proper mode was by writ of summons and so the proceedings were dismissed as frivolous, vexatious and abuse of process. It is clear that the present facts depict similar and therefore the application of the first and second defendants are made out that pursuant to Order 12 rule 40 (1) (a) (b) (c) & (d) of the National Court Rules the motion sustains. There is no cause of action founded and the proceedings are an abuse of process, is frivolous and vexatious and accordingly is dismissed with costs.
   
8. The orders of the court are:-
   
   • (i) the motion of the first and second defendants is upheld.
   • (ii) there is no cause of action disclosed.
   • (iii) the proceedings are frivolous and vexatious.
   • (iv) the proceedings are an abuse of process.
   • (v) the proceedings are dismissed in its entirety.
   • (vi) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

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

GP Lawyers : Lawyer for the Defendants