Liu v Mel [2021] PGNC 221; N8936 (16 July 2021)

N8936

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 77 OF 2020 (IECMS)

BETWEEN
MOSES LEI LIU
Plaintiff

AND:
MICHAEL MEL, PHILIP ISU, ROBERT LEO, GRAHAM KING, TAUVASA TANUVASA AS CHAIRMAN AND MEMBERS OF THE NATIONAL DEVELOPMENT BANK LIMITED’S BOARD OF DIRECTORS
First Defendant

AND:
NATIONAL DEVELOPMENT BANK LIMITED
Second Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 24^th June, 16^th July

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion Order 16 Rule 3 (8) (a) NCR – Stay – Serious Question to be tried – balance of convenience – Whether or not Damages would be Adequate remedy – Nature of Judgement Sought to be Stayed – Evidence Relied – balance not discharged – Application refused – Cost follow event.

Cases Cited:

Independent State of Papua New Guinea v Charlie [2019] PGSC 78; SC1836
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Yer, Secretary for Department of Finance v Yama [2009] PGSC 13; SC990
Gary McHardy v Prosec Security & Communications Limited trading as Protect Security [2000] PNGLR 279.
Yakasa v O’Neil [2011] PGNC 167; N4461

Counsel:

B. Lai, for Plaintiff
B. Nutley, for First & Second Respondents/Applicant
I. Mugugia, for State

RULING

16^th July, 2021

1. MIVIRI, J: The plaintiff is seeking a stay pursuant to his notice of motion filed of the 2^nd December 2020.
   
2. It is made pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules. He has been granted leave by this Court on the 18^th February 2021. He seeks that operate as a State by that rule until determination of this judicial review proceedings. And he seeks the costs be in the cause and time for entry of the orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
   
3. Effectively it is his application that the decision of the 28^th October 2020 the subject of this judicial review proceedings be stayed pending the hearing and the determination of this matter. It must be a very clear case and the balance of the facts relied support his way to so grant. It should not be seen as barricading the defendants from the hands of Justice. The balance must warrant that it is what is in order and not without. Leave has been granted importantly on the basis that clause 19.1 of the contract of employment provided for its continuance. It will also be the case to see out as it is a legally binding document between, him and the defendants. But that is subject to the ultimate Authority employing the National Executive Council to decide on the recommendation of the Board of the Bank section 23 (2) of the National Development Bank Act 2007 (NDB Act 2007). Because he was employed by a contract of employment entered into of the 19^th August 2014 until the 19^th August 2018 as the Managing Director of the second defendant Bank. That Contract has ended its natural life.
   
4. The material question is should there be a Stay granted in view of that Fact that the Contract has now ended, and the Board be given what the law accords to recommend a new person for the National Executive Council to appoint by Section 23 of the NDB Act? What is the status of the evidence relied for the Stay application? Is it that the defendants be restrained forthwith from giving effect to the decision the subject of these proceedings until further order of the Court?
   
5. A preliminary point has been raised in respect of the competency of this notice of motion of the plaintiff that it seeks substantive relief against the established principles and in this regard reliance has been placed on Independent State of Papua New Guinea v Charlie [2019] PGSC 78; SC1836#disp0" title="Previous Hit"> SC1836 SC1836#disp2" title="Next Hit"> (27 June 2019). That is in respect of interlocutory matters which is not the case here. This is part of the leave application that was filed and leave obtained. It was left to be pursued later after grant of leave. Which is because of the practise in judicial review that if a stay is sought, it is not immediate but after leave is obtained. That is clear by the authority in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The facts and circumstances did not depict immediate grant of Stay flowing from leave granted. Hence the present application since. It is not improper nor does it make the application incompetent and not viable. So, the preliminary does not stand given.
   
6. The defendants further contend that Yer, Secretary for Department of Finance v Yama [2009] PGSC 13; SC990#disp0" title="Previous Hit"> SC990 SC990#disp2" title="Next Hit"> (3 July 2009) is applicable because the motion has not been moved and there has been delay in moving since.
   
7. Again, that argument is not made out because the court granted the Stay there even after 10 months, here it is almost five months now since 18^th February 2021 when leave was granted. And its application here supports the application rather than dismiss for incompetency. And the reasons advanced above also support the competency of the application and the motion. It is competent and stands to be moved as is now pursued. The preliminary issue as to competency raised is dismissed as being without merit.
   
8. That means in effect that delay seen out in Gary Mchardy v Prosec Security & Communications Limited trading as Protect Security [2000] PNGLR 279 is not a ground here now discharged on the basis of this preliminary point now settled. What remains to be considered is the other grounds by that case of whether there is possible hardship, inconvenience, or prejudice to either party, the nature of the judgement sought, the financial ability of the applicant, preliminary assessment whether there is arguable basis, whether on the face of the record of the judgement there is apparent error of law or procedure, and what is the overall interest of justice in the matter. Including where lies the balance of convenience and whether damages would adequately cater given.
   
9. In this regard the first and second defendants both rely on the affidavits of Michael Mel of the 21^st April 2021 with a supplementary one of the same witness of the 12^th May 2021. Arguing that the National Executive Council is in the process of appointing a permanent Managing Director. This evidence has been improved with annexure “D” National Executive Council decision number 326/2020 Meeting No. 18/2020 subject; Termination of the Acting Managing Director of the National Development Bank Limited and Appointment of a New Acting Managing Director. “On 21^st October 2020, council: (1) Noted the content of Statutory Business Paper No. 50/2020; (2) Approved to terminate the appointment of Mr Moses Liu as the Acting Managing Director of the National Development Bank; (3) approved to appoint Mr. Aron Underdown as the new Acting Managing Director of National Development Bank, until a new Managing Director is appointed effective on or from the date of the decision; (4) directed the Board of National Development Bank through the assistance of the Kumul Consolidated Holdings Limited to publicly advertise the position and return to the NEC with a recommendation candidate, as soon as possible; and (5) directed the acting First Legislative Counsel to prepare the instrument of appointment for execution by the Chairman of the NEC and for gazettal.
   
10. It is signed by Grace So-on as Secretary of NEC and James Marape as Chairman and dated the 28^th October 2020.
    
11. The effect of this evidence is that clause 18 in particular 18.2 comes into play, the Board has considered that the plaintiff’s appointment be terminated and has recommended to the NEC who has endorsed that and terminated the appointment of the plaintiff as Managing Director. It means there is effectively no one now in the seat of the Managing director except the new Acting appointment now made by the National Executive Council pending appointment of the Managing Director. But that too cannot be so as Mr Aron Underdown has resigned as of the 29^th December 2020. It means for all intent and purposes by reference to section 23 of the National Development Bank Act 2007 appointment is for four years. In the case of the plaintiff, he was surviving because of the effects of clause 19.1. And as observed above it is not warranting now to preserve as there has been a material change in the circumstances and the environment operating. He is no longer in the seat by operation of Clause 19.1.
    
12. There is no possibility of hardship or inconvenience, or prejudice to either party, especially the plaintiff because he no longer assumes and still in by Contract as observed earlier in the leave stage of this proceeding. He has been taken out as evidenced above. It means the balance is not in his favour to preserve by the restraint in a Stay. He if aggrieved can seek damages which is adequate given that the relationship is contractual and has since now formally ended at the hands of the Authority in law, the NEC. There is in this respect no arguable basis to be the subject of a stay to preserve. The aggregate is that it will not be granted so that the decision made by the authority in law the National Executive is not prejudiced or inconvenienced from its proper place in law. There is in this respect no apparent error of law prima facie to be the subject of a preservation until determination of the substantive cause of action because the security of tenure observed in Yakasa v O’Neil [2011] PGNC 167; N4461 (8 December 2011) is no longer there given the observation above. It means that this action does not sustain the balance beyond preponderance. It does not accord merit to be granted and accordingly it is refused with Costs.
    
13. The formal orders of the Court are;
    
    • (i) The application is not made out.
    • (ii) Stay is Refused and dismissed forthwith.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

B.S.Lai Lawyers: Lawyer for the Plaintiff

Goodwin Bidar Nutley Lawyers: Lawyer for the First /Second Respondents

Office of the Solicitor General: Lawyer for First Defendants