Kombuk v Simon [2021] PGNC 245; N9103 (3 September 2021)

N9103

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) 107 OF 2021 (IECMS)

BETWEEN

DANIEL KOMBUK, Secretary for Department of Agriculture and Livestock

Plaintiff

AND

HON. JOHN SIMON, Minister for Department for Agriculture and Livestock

First Defendant

AND

HON. JOE SUNGI, Minister for Public Service

Second Defendant

AND

PUBLIC SERVICES COMMISSION Comprising of APEO FUATA, Chairman, JUDITH STENIS, Acting Commissioner AND RICHARD M SIMBIL, Acting Commissioner

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Dependant

Waigani: Tamade AJ

2021: 27^th August

PRACTICE AND PROCEDURE – application for stay of the decision the subject of review – whether grant of leave for judicial review can operate as a stay – application for stay is in relation to the decision of the defendants to suspend plaintiff pending investigation – grounds of granting stay order – discussion of – plaintiff has made out the circumstances in which a stay should be granted – the grant of leave granted on 13 August 2021 acts as a stay on the decision the subject of this judicial review - Order 16 Rule 3(8)(a) National Court Rules

Cases Cited

Garry McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279

Gary M Gelu v Somare (2008) N3562

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Counsel

Mr G. Shepperd and Mr Purvey, for the Plaintiff

Mr K. Kipongi, for the First, Second and Fourth Defendants

03^rd September, 2021

1. TAMADE, AJ: This is an application for stay filed by the Plaintiff on 17 August 2021 which was heard before me on 27 August 2021 and reserved for a decision.

2. Leave for judicial review was granted by Justice Yagi on 13 August 2021.

3. The Plaintiff now seeks that the leave granted on 13 August 2021 operates as a stay of the decision the subject of the review pursuant to Order 16 Rule 3 (8)(a) of the National Court Rules.

4. The Plaintiff relies on the Affidavit of himself filed on 17 August 2021.

5. The application is objected to by Mr Kipongi of the Solicitor General’s Office.

6. I have read the Affidavit of the Plaintiff and note the decision the subject of this judicial review. The decision is annexed as annexure “DK-10” in the said Affidavit. I note that the decision by way of a publication in the National Gazette states that based on the advice of the NEC and on the recommendation of the Public Services Commission, the suspension of the Plaintiff was effected and an acting appointment to that role was made.

7. I note that the decision the subject of this review is open ended in that there is no time period as to how long the suspension will last. I enquired with counsels for parties whether the suspension was to trigger an investigation and allow such investigation to be concluded until a decision on the position of the Plaintiff was reached.

8. Mr. Shepperd agrees that the decision the subject of the review is open ended as to the suspension and the acting appointment and therefore a stay is necessary to keep the status quo.

9. Mr. Shepperd refers me to section 31(D) of the Public Services Management Act.

10. Section 31(D) of the Public Services Management Act states that:

31(D). PROCEDURES RELATING TO SUSPENSION FROM OFFICE OF DEPARTMENTAL HEADS.

The procedures relating to the suspension from office of Departmental Heads referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows: –

(a) the Commission –

(i) may, on its own volition; or

(ii) shall, at the request of the Minister responsible for Public Service matters, investigate any activities, conduct or performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into that Departmental Head under Section 28;

(b) where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommended to the National Executive Council;

(c) on receipt of a recommendation under Paragraph (b), the National Executive Council shall advise the Head of State to suspend the Departmental Head from office.
11. I enquired with Mr Shepperd also on one of the considerations for a grant for stay and that is whether damages was an adequate remedy. I note that the Plaintiff is suspended on full pay. Mr Shepperd states that compensation is not only in monetary terms as in loss of salary but the Plaintiff can claim for other heads of damages etc.

12. Mr. Kipongi states that the suspension in this process is the first step to proceeding with investigations in the allegations against the Plaintiff.

13. Mr. Kipongi states that the effect of a stay on these proceedings will restore the Plaintiff to the position that he then was however as an acting position was also made, the stay should be refused and the incumbent in the acting role should continue in the role.

14. Mr. Shepperd however states in response that the effect of the stay is only temporary until the hearing of the substantive matter. I take it that a stay will ultimately freeze or keep the status quo of the matter.

15. In referring to the considerations for a grant of stay in a judicial review matter, I note the case of Gary McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279 referred to me by the Plaintiff.

15. I make these observations in relation to the considerations for a grant of stay:

(a)Whether leave to review is required and whether leave has been obtained- the plaintiff has obtained leave.

(b)Whether there has been any delay in making the application- the Plaintiff was suspended on or about 22 July 2021. The plaintiff filed these proceedings and was granted leave on 13 August 2021. There is no delay in making the application for stay.

(c) The plaintiff complains that he will face hardship or difficulty if a stay is not granted as the suspension was done without any full investigations being carried out. This may perhaps as to how the Plaintiff is perceived in the company of others in his line of work.

(d)The nature of the judgment being stayed. I enquired with Mr Shepperd whether he was putting the cart before the horse in coming to Court early in that should the Plaintiff have waited until the outcome of any formal investigations and any final decisions after the suspension in terms whether he stays on as the Secretary for DAL? Mr Shepperd reiterates that the decision sought to be reviewed is the suspension and the Plaintiff is rightfully before the Court.

(e) If the Court is to consider the financial ability of the Plaintiff, the Plaintiff is suspended on full pay. He does not suffer any loss of salary.

(f) A preliminary assessment as to whether the Plaintiff has an arguable case on the review can be affirmed in the leave hearing that as leave was granted, the Plaintiff does have an arguable case.

(g) Whether damages would be an adequate remedy affirms again that the Plaintiff is suspended but on full salary and would not suffer any damages excepts he stands at risk in the outcome of these proceedings as a matter of costs. I am of the view that costs of litigation is the price every litigant pays in coming to Court.

(h) As to whether the balance of convenience favors the grant of a stay in this case- Mr Kipongi relies on the case of Gelu v Somare (2008) N3562 and the case of Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878. The pertinent question in those cases is that who will suffer the greatest inconvenience if a stay is granted? In asking whether who will suffer the greatest inconvenience, to my mind, the Plaintiff is on full pay and the Defendants are tasked to carry out any investigation as a result of the decision to suspend however the role is currently performed by a person in an acting capacity and therefore the Defendants are not inconvenienced in the regular discharge of that role. The stay only preserves the status quo until the substantive hearing.

(i)Mr Kipongi states that the Plaintiff’s don’t have an arguable case as the process under the Public Services Management Act was duly complied with leading to the notice of suspension to the Plaintiff. Leave granted for judicial review rests this issue.

(j) Mr Kipongi submits that if a stay is granted, it will restore the Plaintiff to he’s original position. It does not. A grant of stay only freezes any further decisions after the suspension and does not restore the Plaintiff to his initial position.

(k) It is also my view that any stay will stop any further investigation and investigations that will lead to deciding the future of the Plaintiff after his suspension. The decision the subject of the review is therefore the suspension, and this matter should be best pursued to an early hearing.

(l) The final consideration in regard to the overall interest of justice in this matter is that the Plaintiff was given leave to judicially review the subject decision and therefore, all considerations being taken into account, a stay should be granted to preserve the status quo until the outcome of the substantive hearing.

16. Having considered all the considerations for the grant of stay in a judicial review matter, I grant stay as sought by the Plaintiff and order pursuant to Order 16 Rule 3(8)(a) that the grant of leave granted on 13 August 2021 acts as a stay on the decision the subject of this judicial review.

Orders accordingly.
________________________________________________________________

Young & Williams: Lawyer for the Plaintiffs

Solicitor General: Lawyer for Defendant