Meten v Mamu [2020] PGNC 525; N8690 (10 December 2020)

N8690

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 69 OF 2019

BETWEEN:
AGNES MILLIA OKONA METEN
Plaintiff

AND:
LESLIE B. MAMU In his Capacity as the Public Solicitor of Papua New Guinea
Defendant

Waigani: Miviri J
2020: 08^th October

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of motion – Dismissal of entire proceedings – Whether reasonable cause of action disclosed – No right of law – Employment Contract of Applicant – Private Rights not public – Breach of Contract – Whether proceedings frivolous & vexatious – Whether abuse of process of court – no evidence – balance not discharged – Judicial Review does not lie – cost follow event.

Cases Cited:

Okona-Meten v Mamu [2019] PGNC 5; N7668

Pruaitch v Manek [2019] PGSC 123; SC1884

Thomas v The State [1979] PNGLR 140

Telikom PNG Limited v Independent Consumer & Competition Commission [2008] PGSC 5; SC906

Takori v Yagari [2007] PGSC 48; SC905

Counsel:

S. Phannaphen, for Plaintiff
T. Ilaisa, for Defendant

RULING

10^th December 2020

1. MIVIRI, J: This is the ruling on the substantive notice of motion dated the 11^th February 2019 of the plaintiff pursuant to Order 16 Rule 2 (a) of the National Court Rules. Applicant seeks review against the decision of the respondent made the 11^th January 2019 terminating her employment as Solicitor in Charge with the office of the Public Solicitor Madang.
   
2. Leave was granted by this court on the 19^th September 2019. And in support of her application for review she relies on her own affidavit firstly sworn 11^th February 2019 and a second affidavit sworn 28^th November 2019. In the case of the respondent the affidavit of the 21^st January 2019 of the Public Solicitor Leslie B Mamu is being relied on to counter the motion.
   
3. And these facts are confirmed by both sides in their respective affidavits set out above. The Plaintiff is a lawyer employed since the 03^rd January 2008 with the office of the Public Solicitor as a Senior Legal Office with that office in Madang. She was promoted to Solicitor in Charge, Madang Branch on the 2^nd January 2014, on a contract that she entered into with that office for three years. It was renewed on the 03^rd January 2017 but terminated because of events that give rise to the present matter. Before coming to join the office of the Public Solicitor she had been in practise for 16 years. No doubt as such she was a very experienced lawyer at that. And in that regard, it would have helped her in her quell to see Justice in her demise.
   
4. Significantly on the 13^th September 2018 she filed a HR (OS) No. 23 of 2018, Agnes Millia Okona Meten v Leslie B Mamu. There she sought to enforce her rights pursuant to section 57 of the Constitution claiming that the non-provision of accommodation for her as Solicitor In Charge of the Madang Branch was in breach of her proscribed rights under section 41 of the Constitution.
   
5. That means that the same allegation has been instituted in this court in its human rights track, on the same matter by the plaintiff against the same parties, on the same facts, and allegation now being sought as judicial review. She states she withdrew that proceeding. But that is not the record of the court because judicial time has been expended on the matter in Okona-Meten v Mamu [2019] PGNC 5; N7668 (30 January 2019) with the published decision. It is the very same case by this plaintiff in the human rights track of this court in Madang heard and determined on the 3^rd & 30^th January 2019. The head notes read that it is human rights pursuant to section 41 of the Constitution whether a failure to provide accommodation to an officer of a Constitutional Institution can amount to a breach of human rights. And therefore, proving that it is harsh, oppressive or otherwise proscribed act within the meaning of section 41. And whether the plaintiff was given unequal and unfair or discriminatory treatment.
   
6. That judgment confirms all the material facts set out here confirming that this is the very same action that saw out its day in court on human rights proceeding. The issues that were posed there are identical here arising from the same set of facts as in that case. It went before this court as a human rights matter on the discretion and volition of the plaintiff, a lawyer of 16 years practice in the office of the Public Solicitor, almost in court every day of her life there as an advocate, discharging the constitutional duties of that office. She picked a process of the law which has competently dealt with the same matter in human rights also of this court. She now wants to deal with it as judicial review, coming back before the same court that dealt with it.
   
7. It amounts to jurisdiction which has already been usurped and cannot be invoked on that basis. It is no longer there for her. Because she is confined that she has already exhausted the jurisdiction of this court. It is the primary Court and it is functus Officio having its duty performed having served its purpose with the facts given in evidence. It is ceased of its jurisdiction and will not revisit that which it has competently dealt with and determined. It dismissed that proceeding in its entirety there was no breach of human rights made out. It does not have the jurisdiction to rehear the matter as judicial review matter.
   
8. Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019) illustrates this that:
   

“Abuse of process for litigant who has selected one mode of proceedings and failed to prosecute same cause of action by an alternative proceeding – Both Supreme Court and National Court have inherent power to intervene at any stage of proceedings to prevent abuse of process – Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must take into account circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.”

9. It is another thing to plead in the same proceedings alternative remedies by the rules of court so that if one or the other fails there is a fall back on the alternative that is pleaded. That is not the same with a cause of action because one cause of action is open and the other closes when the pick is made of one or the other. The same is observed in criminal law where the same act of sexual intercourse of a minor could amount to carnal knowledge of a minor under 16 or it may amount to rape, sexual intercourse without consent. If one is pursued with conviction the other is not: Thomas v The State [1979] PNGLR 140 (4 May 1979). That in my view is the position of the plaintiff here. She has opted to take human rights arising out of the same facts against the same defendants. It is their act that she has seen to in the human rights proceedings now dismissed. It means for all intent and purposes she cannot bring that action under a different cause of action. It would amount to an abuse of process as is the case now for her.
   
10. Because abuse of process denotes that proceeding have commenced as they have but not according to law and the rules of court. In this instance the Supreme Court has termed multiplicity of proceedings as amounting to abuse of process: Telikom PNG Limited v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008). Effectively what the plaintiff has done is pick one of a choice which extinguished the other when she made the selection. It is res judicata. As it has been fully determined by a court of competent jurisdiction, it will not be visited again.
    
11. Relevant in this regard on the converse is Takori v Yagari [2007] PGSC 48; SC 905 (28^th February 2007), that:
    

“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.”

12. Here plaintiff has been heard in her plea by this court. And a formal judgment has been handed down as set out above. It means her right to a fair hearing has been accorded to her in compliance of the Constitution section 59. For the defendants they have been brought into court for the allegation against her which has been heard and determined on its merits. The next course open for her was an appeal to the Supreme Court and not coming back to the same court by another track of the same court. There must be finality to litigation, it cannot go on forever: Telikom (supra).
    
13. Therefore, in the exercise of the discretion by section 155 (4) and the Rules of Court Order 16 Rule 13 (13) (2) (a) (b) and Order 12 Rule 40 (1) (c) the proceeding is an abuse of the process of court. There is no cause of action before the court. It has been determined in the human rights track of this court. Accordingly, the proceedings are dismissed in its entirety forthwith with Costs following.
    
14. The formal orders of the Court are:
    
    • (i) The proceeding is an abuse of the process of court pursuant to the Rules of Court.
    • (ii) The proceeding is dismissed in its entirety forthwith.
    • (iii) Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

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

Office of the Solicitor General: Lawyers for the First, Second, & Third Defendants