Morola v Kapavore [2020] PGNC 368; N8693 (16 December 2020)

N8693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 905 OF 2018

BETWEEN:
MARY MOROLA SECRETARY OF THE DEPARTMENT OF LABOUR AND INDUSTRIAL RELATIONS
Plaintiff

AND:
HONOURABLE ELIAS KAPAVORE, MP & MINISTER FOR PUBLIC SERVICE
First Defendant

AND:
HONOURABLE MEHERRA KIPEFA, MP MINISTER FOR LABOUR & INDUSTRIAL RELATIONS
Second Defendant

AND:
HONOURABLE PETER O’NEIL, MP PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 16^th October, 16^th December

PRACTISE & PROCEEDURE – Judicial Review & appeals – Amended notice of motion –Order 4 Rule 36 (1) & Order 16 Rule 13 (13) (2)& Order 12 Rule 40 NCR – Want of Prosecution – Dismissal abuse of Process – Maturity employment Contract – Acting appointment – no error in procedure & process – Judicial review not made out – dismissal of proceedings – cost follow the event.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

General Accident Fire & Life v Farm [1990] PNGLR 331

Markscal Ltd v Mineral Resources Development Company Pty Ltd [1999] PGNC 117; N1807
Counsel:

I. Dalu, for Plaintiff
J. Issac, for Defendants

RULING

16^th December, 2020

1. MIVIRI, J: This is the Ruling of the Court on the amended notice of motion of the defendants filed 18^th September 2020 pursuant to Order 04 Rule 36 (1) and Order 16 Rule 13 (13) (2) of the National Court Rules for dismissal of the entire proceedings for being an abuse of court process pursuant to Order 12 rule 40 of the National Court Rules.
   
2. Order 4 rule 36 invokes that there must be prior orders or direction as to the conduct of the proceedings, and that due despatch or prosecution of is not accorded therefore the court is empowered to either stay or dismiss the proceedings. Hence it is upon the applicant to demonstrate whether there are orders or direction open and pending which by the conduct of the plaintiff has not been heeded to or discharged. Secondly there is no due despatch of the matter; it is outstanding for want of prosecution and on the balance would be basis to dismiss the proceedings.
   
3. And Order 16 rule 13 (13) (2) is specific as here to judicial review proceedings which can be determined summarily for failure to comply with directions or order under Order 16 or any other competency grounds. In effect giving authority to the application as made here. And Order 12 rule 40 is in similar regard provided where there is no cause of action disclosed, or the proceedings are frivolous or vexatious and constitute an abuse of the process of court it can be dismissed for so discharging the balance.
   
4. The allegation is that there is inactivity towards prosecution of the matter with due discharge within reasonable time since filing. Reliance is sought upon the affidavit of the 01^st September 2020 sworn by Kenny Kepas lawyer in the employ of Lawama Lawyers who searched the registry confirming that the proceedings were instituted on 04^th December 2018. Leave was granted on the 15^th August 2019. And direction was made for filing of the substantive notice of motion for judicial review 22^nd August 2019 which the plaintiff did. A year and two months accumulating the plaintiff has not in any way moved or prosecuted the case. Notice by letter annexure “A” to her lawyers has been made that application would be made for dismissal of the matter for want of prosecution.
   
5. This is notice for the plaintiff to justify take action, and to prepare for what is intended to by the defendant. The rights due to the defendant were taken with regard to that of the plaintiff. She has not been summarily removed from the seat of Judgement without just cause including opportunity to defend her cause of action. Further that since the filing of the action by the plaintiff the National Executive Council has appointed a new Secretary Ravu Vagi, for Labour and Industrial Relations and there is no utility to pursue the matter. His affidavit filed dated 14^th September 2020 sworn 04^th September 2020, evidence he is the Secretary for Department of Labour and Industrial Relations since the 10^th December 2019. The decision of the NEC is NG169/2019 annexure “RV1”, and the publication of that decision in the National Gazette confirming is annexure “RV2”. The signing of the Contract of employment advised by the Secretary of the National Executive Council at government haus on Tuesday 01^st Sept 2020.
   
6. She was the former secretary for Department of Labour and Industrial Relations. And her contract of employment was signed on 25^th May 2015 and expired on 25^th May 2019. Which she has attached as annexure “A” to her affidavit of the 11^th July 2019. In it are the standard terms and conditions of the contract that she signed 11^th February 2016 which emanated from the 25^th May 2015 NEC decision No. 118 of 2015. It was to have been read with the Performance Based Employment Agreement. This is the preliminary to her affidavit intended to be relied on in this proceeding. But that affidavit is without basis in the pleadings to be invoked in the cause of the plaintiff.
   
7. The notice of motion of the 05^th September 2019 for substantive relief pursuant to Order 16 Rule 5 (1) of the National Court Rules pleads for an order in the nature of certiorari to bring into court, “the said decision of the Plaintiff’s termination from position of Secretary for Department of Labour and Industrial Relations in Gazettal No. G725 dated 07^th November 2018 (including any instruments flowing) from that decision and quashing the same forthwith; (2) Damages of loss of all employment entitlements guaranteed under the Plaintiff’s Contract of Employment as well as mental distress and anxiety, professional reputation, public humiliation, financial loss suffered as a result of the decision the subject of review dating back to the date of termination to the date of determination by the Court.
   
8. The notice of motion is originating the substantive cause of action for the plaintiff. It does not state as to whose decision it is challenging. And what is the substance of that decision which has affected the plaintiff. That is not clear from the notice of motion. The pleading of the Gazettal No. G725 dated 07^th November 2018 publishing her termination is not the act that is sought to be quashed by the prerogative writ of certiorari. Rather the writ will be directed at a decision maker, to get that decision from that authority into this court, and to quash it because judicial review lies, because of error in the procedure to arrive at the decision. The author of the decision that led to her termination is not set out in the notice of motion. It defeats what is called pursuant because the pleading does not fit the evidence. It is basic that the pleadings drive the cause of action. Judicial review is against a decision maker whose decision has affected the subject, that is not the pleadings here: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
9. The plaintiff has sought to rebut the allegation raised by filing and seeking to rely on the affidavit of Lawyer Ian Dalu sworn the 15^th September 2020 filed that same day. He is the lawyer who has carriage of this matter for the plaintiff from the office of the Public Solicitor. He deposes that the plaintiff sought assistance of the Public Solicitor when the private lawyer she initially engaged could not continue as she could not afford, annexure “A” copy of the legal aid application form. That resulted in the grant of legal aid on the 28^th March 2019. And Public Solicitor formally filed notice of appearance on the 16^th May 2020. Also, on that day were filed the amended affidavit verifying the Statement including the amended Statement pursuant to Order 16 Rule 3 (2) (a) of the Rules. From which on the 15^th August 2019 leave was granted for Judicial Review which was affected with the substantive notice of motion filed but it was not served on the State. Because the file was in the Judges Chambers. There were no developments on the file 2019.
   
10. Beginning of 2020 there was nothing done on the file because of Covid19 emergency being declared from April to June 2020. Upon the up lifting of the State of Emergency other cases were pursued not the matters that were adjourned to the registry. And in the month of 27^th to 30^th July 2020 deponent was in Supreme Court in Kokopo according to the boarding pass attached as annexure “B”. The public Solicitor issued restrictions conforming with the outbreak of Covid19 “C” effective 22^nd July 2020.
    
11. The deponent was not aware of the notice of appearance of the 25^th November 2019 by the defendants was not served until the 31^st August 2020. And so were not aware that Lawama Lawyers were acting for the defendants. And were also not aware of any approval from the Attorney General to secure the services of Lawama Lawyers to represent all including the State. And that Lawyers who usually act for State is the Solicitor General. “And now that this application is brought before the Court on behalf of the defendants we’ve decided to file our Statement of Agreed and Disputed Facts (annexure “D”) as well just to show to the Court that we are willing to progress the matter further in fact we are trying to show that we are taking some effective steps in progressing the matter.
    
12. The substantive notice of motion by the plaintiff is filed 05^th September 2019. Naturally it should be served upon the defendants’ lawyers always the Solicitor Generals who would have directed the plaintiff and counsel to Lawama Lawyers whose notice of appearance is the 25^th November 2019 document 16 together with the Notice of Intention to defend document 17. A simple search of the court file by the plaintiff would have uncovered who was defending. But that has not eventuated from when it was filed up to when this application was filed as its clear from the language of the lawyer set out above from his affidavit. It is clear that this case has not been of prime importance considering the time limitations known to the law applicable here. There is no evidence to this effect from the plaintiff’s lawyer in this regard let alone the plaintiff.
    
13. By the same token if the defendants can file a notice of intention to defend where was the plaintiff there and then. The file is not the personal property of the lawyer but of the office of the Public Solicitor. Another officer would have been tasked to take the matter in the absence of the lawyer Dalu. The express views of this witness lawyer on record set out above is indicative of very unprofessional work attitude that should not be tolerated. If this is to be the conduct pertinent of this lawyer, it must cease forthwith because it will not lead anywhere else other than his demise. Particularly in the light of the fact that decisions would be made in the matter as time progressed in the matter. It was an action that needed attention to attend to the cause raised and in good time to avoid what has not come out at the discretion of the defendants. If the plaintiff’s lawyer can be aroused at the hour of this amended notice of motion to seek out dismissal it really is not good enough to save the cause, because it is He who alleges that must prove not the other way around.
    
14. The plaintiff and her lawyer have caused no good reason particulars which I set out above to defend and to save this action from the inevitable incumbent in the light of the evidence they have filed in defence of this motion. Here is clear evidence that for one year two months the plaintiff and her lawyer have done nothing substantive as required necessary for the upkeep of the action they have instituted and drawn the defendants in. Their attitude and discharge combined show clearly no due diligence in the despatch of the matter. They have simply not prosecuted it with due diligence. Rather there has been inordinate delay which cannot be kept open on the records of the Court: General Accident Fire & Life v Farm [1990] PNGLR 331 (25 July 1990).
    
15. The delay has been inexcusable and has caused unnecessary impediment to the good administration and governance as shown out by the appointment of the new Secretary which was not immediate. And in such situation this court has followed the principles set out above and dismissed proceedings for instituting legal action as here and not discharging the obligation to prosecute it with due diligence in accordance with the Rules of Court so that finality is reached in litigation avoiding prejudice and impediment to the defendant: Markscal Ltd v Mineral Resources Development Company Pty Ltd [1999] PGNC 117; N1807 (18 March 1999).
    
16. I have considered the arguments advanced by the plaintiff in full and for the reasons set out above find no merit in the evidence relied. And further that the pleadings in the notice of motion do not make out the balance to the required of preponderance to find in her favour. The evidence has supported corroborated what has been raised by the defendants in the particulars I set out above. Consequently, there is no reason apparent or identifiable other than to accord the amended notice of motion of the defendants as pleaded. The entire proceedings are dismissed for want of prosecution in accordance with the jurisdiction of the court set out in the rules relied in the amended notice of motion.
    
17. Costs will follow the event forthwith.
    
18. The formal orders of the Court are;
    
    • (i) The amended notice of motion of the defendants is granted as pleaded.
    • (ii) The entire proceedings are dismissed forthwith for want of prosecution and for being an abuse of process.
    • (iii) Cost will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Office of the Public Solicitor: Lawyer for the Plaintiff
Lawama Lawyers: Lawyer for the Defendants