Eremuge v Apa [2021] PGNC 217; N8932 (14 July 2021)

N8932

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 92 OF 2021 (IECMS)

BETWEEN:
MIN EREMUGE, PHILIP AURE, THERESA KOTIO, ENOS TAUBONA, HELEN INARU, CHARLIE KEAFAE, SAMA SUGUYA, & ANTON KARO
Plaintiff

AND:
DR. JOESPH APA
First Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Second Defendant

AND:
APEO SIONE CHAIRMAN PUBLIC SERVICE COMMISSION
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 13^th & 14^th July

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) Leave Application for Judicial review – Termination of Applicants – No delay – No Locus Standie – No arguable basis of – balance discharged – Leave granted in each case – Cost follow event.

Cases Cited:

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892

Counsel:

S. Wanis, for Plaintiffs
R. Uware, for Defendants

RULING

14^th July, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons filed of the 25^th June 2021 seeking leave for judicial review.
   
2. The plaintiffs rely in pursuing on the originating summons which is in the following terms an order pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules for leave to judicially review the decision of the First defendant of the 24^th November 2017 and 29^th November 2017 in both instances by a letter on each occasion terminating their services as Health workers, Min Eremuge community health worker, Philip Aure nursing officer, Theresa Kotio community health worker, Enos Taubona an anaesthetic scientific Officer, Helen Inaru community health worker, Charlie Keafae community health worker, Sam Suguya nursing officer, and Anton Karo community health worker.
   
3. What emanates is a pinnacle of the non-violent protest by the Eastern Highlands Provincial Health Authority Staff over mismanagement of the Goroka General Hospital against Dr. Max Manape who was then acting CEO to which the First defendant succeeded as CEO. He issued termination letters on the 24^th November 2017 against seven plaintiffs. And on the 29^th November 2017 against Enos Taubona. They lodged a review to the Public Services Commission on the 14^th December 2017. It was within 60 days as set by section 18 of the PS Management Act 2014.
   
4. On the 30^th April 2019, the PSC issued its decision annulling the decision of the first defendant and reinstating all plaintiffs. It reasoned that, the notice of suspension; charge and punishment were not served personally on all the plaintiffs/applicants. That they were not accorded opportunity to address the penalties in each case delivered. The charges were not sustainable because the dates were incorrect, not 24^th April 2017, Because the allegation arose on the 20^th March 2017. There were no witnesses to the allegation and the charges could not have sustained leading to the termination the ultimate penalty.
   
5. That decision was challenged by the first defendant in that he was not accorded hearing to in the matter. And therefore, the decision of the PSC did not stand against all. The National Court in that decision attached to the affidavits of the plaintiffs is styled OS (JR) 531 of 2019; Joseph Apa v Eastern Highlands Provincial Authority & Apeo Fuata Sione as Public Service Commissioner & Public Services Commission & The State & Anton Karo and nine others. It was heard on the 20^th August, 05^th October 11^th 12^th November 2020. The decision was given on the 12^th November 2020. It was primarily against the decision of the PSC against Joseph Apa particularly in the light of Section 18 (6) (d) of the PSC Act that the decision of the PSC would be binding after 30 days from the date of the decision. He said that decision could not stand without his evidence against the present plaintiffs.
   
6. Ultimately the order of the court was that the decision of the Public Services Commission delivered on the 16^th May 2019, and 30^th April 2019 in regard to the persons cited as fourth defendants are quashed. Costs is against the PSC on a party party basis to be taxed if not agreed, time abridged. What was remaining directly effected by this decision was that the plaintiffs all remained terminated. Essentially this decision has been examined by the Court in its entirety and is reflective of the position contended of the First Defendant and not of the plaintiffs to this action for leave. This would be the first time that each is coming before the court for review of the decision that was taken by the First defendant to terminate them. It is the end of the completion of the disciplinary process evidenced in their respective affidavits filed also of the 25^th June 2021, individually and severely also proofed by their affidavits verifying facts of the 25^th June 2021 in each case.
   
7. So, in essence the exchange with counsel has not been made out to see that this is a completely new action as opposed. It may have been part but not necessarily as to the decision that were the subject of challenge by each of the plaintiff. In that respect the matter is not res judicata and will progress as it is de novo. The plaintiff has a cause of action open pending to be run for leave for judicial review. And this is particularly arguable where the allegation is as to the notice of suspension charge punishment were not served personally on each of the named plaintiffs. And that they were not each given opportunity to address the penalties that were handed out especially in their individual cases where they are lumped with the ultimate penalty of termination from their employments. Particularly taking account of the positions that they held and the length of service in their individual cases to the State through that Authority.
   
8. Importantly and primarily the charges do not have the correct date of the allegation because the date of the Minister’s visit is when the allegation is supposed to have arisen, 20^th March 2017 and not the 24^th April 2017. There is immediately a cause for concern substantive to the allegation raised. It means the dismissal and the termination is not founded on a date sustaining. There is no offence committed and therefore the charges do not sustain. The reasoning leading to the eventual demise of their employment. They have a substantive cause for leave to be granted to correct.
   
9. The State has not taken issue with the Court proceedings and argues that there is delay in the bringing of this but that is clear by what is set out above that a process of law was in operation by the First defendant that led out to 12^th November 2020 when the decision was handed down. This proceeding was filed 25^th June 2021.
   
10. Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). There is strong arguable basis to uplift the originating summons to a hearing. Leave is in order as applied because all plaintiffs are dismissed because of a process that is arguable as set out above. Prima facie each has locus Standie individually and severely by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May1987) that the discretion of the court lies given these facts. There is merit to pursue in their favour as contended. They are not busy bodies because the examination of the internal process is questionable and not in order, Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892 (6 December 2012).
    
11. The reasons of the delay are outweighed given these facts and circumstances that justice would be denied if there is strict observance of the four (4) months by the rules of Court. These are health workers who were terminated and there are no serious aggravating features warranting prima facie justification for the termination. What is prima facie is a placard depicted reading, “Give us permanent CEO”. There is no evidence of anything apart from that fact so termination of each of the plaintiffs would be a serious cause for concern to properly settle in a substantive motion given.
    
12. The sum total is that the plaintiffs each have demonstrated that they have standing in the matter beyond the balance of preponderance. They have a strong arguable case set out above which effects the process leading to their eventual demise. Time is not an issue given that justice would be denied prima facie if leave is not accorded as pleaded by the originating summons. Internal process has culminated in their demise which has been further derailed by the process instituted by the first defendant. Hence the present proceedings are in order, the Court is empowered jurisdiction to hear this matter now de novo.
    
13. Accordingly, leave for Judicial review is granted all individually and severely in their respective cases for substantive judicial review against the decision of the First Defendant of the 24^th November 2017 and 29^th November 2017 in both instances by a letter on each occasion terminating their services as Health workers, Min Eremuge community health worker, Philip Aure nursing officer, Theresa Kotio community health worker, Enos Taubona an anaesthetic scientific Officer, Helen Inaru community health worker, Charlie Keafae community health worker, Sam Suguya nursing officer, and Anton Karo community health worker. Leave is accorded to all having satisfied on the balance of preponderance all requirements set out above. Delay is not against for the reasons set out above.
    
14. The formal orders of the Court are:
    
    • (i) Leave is granted in each case for judicial review.
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Solomon Wanis Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants