Raga v National Executive Council [2020] PGNC 302; N8505 (21 September 2020)

N8505

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 44 OF 2020

BETWEEN:
GEI GUNI RAGA
Plaintiff

AND
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
HON. WESLEY NUKUNJ MINISTER FOR PUBLIC SERVICE & PERSONAL MANAGEMENT
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 04^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Application for Leave – Section 155 (4) Constitution – National Court Rules Order 16 Rules 3, 4, 5 & 6 – Whether court has jurisdiction to rehear a matter determined – Abuse of process – Court protection of its process – Proceedings dismissed – cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905

Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Counsel:

T. M. Kamuta, for the Plaintiff/Applicant
K. Kipongi, for the Respondents

RULING

21^st September, 2020

1. MIVIRI, J: This is the Ruling on the originating summons filed 17^th February 2020 by the applicant seeking leave pursuant to Order 16 rules 3 (1), and (2) of the National Court Rules “the Rules” for judicial review against the decision of the first respondent of the 25^th June 2019 where the plaintiff was suspended as Provincial Administrator of the Central Province effective on and from that decision’s date to make way for an investigation.
   
2. He relies on the documents that he has filed firstly the originating summons of the 17^th February 2020, Statement pursuant to Order 16 Rule 3 (2) (a) of the Rules, affidavit verifying the Statement dated the 17^th February 2020, his own affidavit in support also dated the 17^th February 2020.
   
3. These establish that on the 18^th May 2017 the National Executive Council by its decision numbered 135/2017 gazetted in G392 renewed the appointment of the Plaintiff as Provincial Administrator, Central Province. On the 24^th April 2019, the Central Provincial Executive Council by its decision numbered 40 of 2019 resolved and recommended to the Public Services Commission to suspend him in that position. And this was conveyed by the Governor Honourable Robert Agarobe MP by letter dated the 25^th April 2019 to then Minister for Public Services Honourable Elias Kapavore MP attaching that decision of the Central Provincial Government. The return of which was the suspension of the plaintiff on the 25^th June 2019 by the National Executive Council decision NGO3/2019 gazetted number G535 28^th June 2019. These details were conveyed to the plaintiff by the acting Secretary of the Department of Personal Management Ms Taies Sansan on the 1^st July 2019.
   
4. On the 18^th July 2019 then lawyers of the plaintiff filed OS (JR) 491 of 2019 for judicial review seeking amongst others to quash that decision of the National Executive Council. Which was not pursued when the Acting Administrators term expired on or about the 14^th November 2019, leave of the court was sought to discontinue the proceedings on this basis. That was granted and the proceeding was discontinued. Plaintiff went to the Central Provincial Headquarters to enquire whether he could resume and continue his term as Central Provincial Administrator. Undoubtedly it was refused because there was no court order to this effect. So, the lawyers were instructed by the plaintiff to file OS (JR) 851 of 2019 yet again to seek quashing of the decision of the National Executive Council set out above. The court there in its decision amongst others stated the plaintiff had failed to exhaust internal administrative avenues by failing to seek a review with the Public Services Commission by section 18 of the Public Services Management Act 1995. The plaintiff from this wrote on 17^th December 2019 to the Public Service Commission who replied by letter dated 05^th February 2020 it lacked the jurisdiction to review the disciplinary decision to suspend plaintiff as Provincial Administrator Central Province. The plaintiff then sought the present action for leave for judicial review. It is pursuant to Order 16 rules 3 (1), and (2) of the National Court Rules “the Rules”. Given the facts set out above this is the third time this same matter has now come to this court one of which has ended in dismissal of the matter. It means for all intents and purposes this court has given judicial time and effort to determine it. The dismissal is that determination.
   
5. It is clear that together with legal counsel he has not properly considered his position in law. What was resorted to was in haste to file judicial review proceedings but not waited out till all substantial bases, for so pursuing fell into line. Because on a proper analysis judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Therefore, it followed that process leading up should have been monitored properly before action was filed in court. It was not complete set out by his own admission seen out by the court and refused him. It meant in law this court was ceased of the matter and had in law settled by a decision in OS (JR) 851 of 2019 parties the same. It could not revisit that same matter again because the plaintiff had of his own volition made a wrong choice in instituting proceedings in judicial review prematurely. His next process open in law was an appeal to the Supreme Court from that decision of this court refusing him leave because he had not exhausted internal process before coming to court.
   
6. The case in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008) sets out the concept of res judicata. It has been determined by a court of competent jurisdiction on its own merits. And the same is pursued again here because the plaintiff has come now after the decision of this court. That amounts to abuse of the process and the court will protect its process from the same. A competent court of jurisdiction has made a determination which must be protected.
   
7. The other side of the balance is that dismissal of the entire proceedings denotes denying the litigant from the judgement seat. Here I have closely and carefully weighed out the facts in particular is there room. Notably the Supreme Court in Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28^th February 2007), states, “our Judicial system should never permit a plaintiff or a defendant to be driven from the judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” The application here must be carefully scrutinized with the evidence.
   
8. And here the matter has been determined by this same court in the proceedings styled OS (JR) 851 of 2019 parties the same as here before her Honour Justice Thompson who dismissed the application for leave because internal process within had not been exhausted before coming to court. So, it is not as if the Plaintiff has been driven from the seat of justice without recourse to it. He has been given that opportunity and has not satisfied on the balance by law hence the refusal. This court is ceased of the matter functus officio and therefore the next avenue is the Supreme Court, not in this court again. It is therefore for all intents and purposes an abuse of process and will suffer that fate due which is dismissal with costs.
   
9. A further fact that must be settled here is of counsels, who are officers of the court first and foremost and must assist the court to serve justice. Professionalism means high professional sense of duty and ethics of the highest. And it is self-serving and needs no second thoughts to the contrary here where a process of the court has been resorted to without proper scrutiny and analysis all to waste court time and logistics. This is not the first time that this action in one form or another has rounded given its facts set out above. No doubt the liability in the costs was a direct attribute of the action of the plaintiff. Given in all fairness the plaintiff will pay the costs of the dismissal on an indemnity basis. I am mindful that costs are a discretionary matter for the court. Given the facts set out above in my view costs will be on indemnity basis given following the event.
   
10. It is a message to all who have similar inclinations as evidenced here. It is awarded where conduct of party or lawyer is so improper, unreasonable, or blameworthy that punishment is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). Here there is negligence rather than professionalism. This is not to say or to suppress a lawyer from serving his client to the best and of discharging his duty without fear or favour but to ensure that the wheels of justice run without abuse. Costs will therefore be on an indemnity basis upon the plaintiff to follow the event.
    
11. The orders of the court are;
    
    • (1) The application of the plaintiff is refused.
    • (2) The proceeding is res judicata.
    • (3) The proceeding is an abuse of court process.
    • (4) The proceeding is dismissed in its entirety forthwith.
    • (5) Costs are on indemnity basis to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Kamutas Legal Services: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants/Respondents