N10091
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 48 OF 2022(IECMS)

IN THE MATTER OF JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
PROFESSOR FR JAN CZUBA
Plaintiff

AND:
HON WESLEY RAMINAI in his capacity as MINISTER FOR DEPARTMENT OF HIGHER EDUCATION, RESEARH, SCIENCE & TECHNOLOGY
First Defendant

AND:
DR FRANCIS HUALUMONI as the ACTING SECRETARY FOR THE DEPARTMENT OF HIGHER EDUCATION RESEARCH SCIENCE & TECHNOLOGY
Second Defendant

AND:
HON JOSEPH SUNGI in his capacity as
THE MINISTER FOR PUBLIC SERVICE
Third Defendant

AND:
APEO SIONE in his capacity as THE
CHAIRMAN OF PUBLIC SERVICE COMMISSION
Fourth Defendant

AND:
PUBLIC SERVICE COMMISSION
Fifth Defendant

AND:
TAIES SANSAN
Sixth Defendant

AND:
HON JAMES MARAPE in his capacity as THE PRIME MINISTER AND CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Seventh Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Eight Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani:   Dingake J
2022:    19th August
	        
JUDICIAL REVIEW – Notice of motion by defendants for summary dismissal of proceedings by plaintiff - application by defendants on the grounds of proceedings being incompetent, plaintiff lacks standing, proceedings disclose no reasonable cause of action and for abusing the process of the court – plaintiff has standing as decision subject of judicial review is relating to his employment – defendants have not demonstrated that the proceedings disclose no reasonable cause of action and are an abuse of process of the court – application by defendants for summary dismissal refused 

Cases Cited:

Lowa v Akipe [1992] PNGLR 399
Ronnie Wabia v BP Exploration and Operating Ltd [1998] PNGLR 8

Counsel:

Mr. Edward Sasingian, for the Plaintiff
Mr. Kevin Kipongi, for the First Defendants

RULING

20th December, 2022

1.	DINGAKE J:  This is my ruling with respect to the application filed by the First, Second, Third, Sixth, Seventh, Eighth and Ninth Defendants by way of Notice of Motion filed on the 19th of July 2022.

2.	The aforesaid Notice of Motion seek dismissal of the proceedings summarily for:

a)	being incompetent as the Plaintiff lacks standing to file the proceeding.
b)	disclosing no reasonable cause of action.
c)	being an abuse of the process of Court.

3.	I have read the supporting Affidavit material in support of this application.

4.	The material background facts for the purposes of this application bear stating briefly. At all material times hereto, the Plaintiff was the Secretary for the Department of Higher Education Research Science & Technology (DHERST). He was employed in 2019 on a four (4) year contract ending in April 2023.

5.	On or about the 22nd of April 2022, the Plaintiff was served with the National Executive Council decision, dated 15th of March 2022, revoking his appointment as Secretary of DHERST.

6.	Aggrieved by the aforesaid revocation, the Plaintiff filed judicial review proceedings against the Defendants.

7.	The Plaintiff was granted leave by this Court to review the decision to revoke or terminate his contract of employment on the 4th of May 2022 and on the 11th of May 2022, this Court also stayed the decision of the Defendants.

8.	The Motion for substantive review was filed on the 16th of May 2022.

9.	The issues that fall for determination by this Court are whether, the proceedings instituted by the Plaintiff are liable to be summarily dismissed for being incompetent on the grounds that the Plaintiff lacks standing; the proceedings do not disclose a reasonable cause of action and or are an abuse of Court process and or are otherwise liable to be dismissed pursuant to Order 12 Rule 40 (1)(a) (b) (c) of National Court Rules (NCR) as contended by the Defendants in their Notice of Motion and as further expounded in their submissions filed on the 15th of August, 2022.

10.	It is trite law that a party who litigates without standing cannot be said to have a reasonable cause of action and such litigation would amount to an abuse of Court process. Such litigation would also be frivolous.

11.	No authority is required for the proposition that a party who has real or tangible interest in a matter would have standing to litigate. Without any rights and interests in the subject matter of the litigation he or she would be a busy body who meddles in maters that do not concern him.

12.	The Defendants contend that the Plaintiff has no standing for the following reasons:

i)	He is a non-citizen.
ii)	He does not have an employment visa.
iii)	He lives in PNG under a religious visa.
iv)	He has been appointed as honorary consul of the Republic of Poland.
v)	He is therefore a diplomat.
vi)	Section 10 of the Diplomatic and Consular Privileges and Immunities Act and Article 67 of the Vienna Convention on Consular Relations prevent the Plaintiff from employment in the PNG national public services.

13.	The central question this Court must answer is whether the Plaintiff is a busy body meddling in matters that do not concern him. I do not think so. The subject matter of the proceedings sought to be dismissed (substantive review proceedings) directly concern the Plaintiff.
 
14.	In consequence of the fact that the revocation or termination of employment directly affects the Plaintiff, it is in my mind plain that the Plaintiff has a real interest to approach this Court for appropriate relief. Whether or not he will succeed is not of moment in deciding whether he has standing or not.

15.	I find no merit in the Defendants arguments that the Plaintiff has no standing. The grounds or allegations they rely on to contend that the Plaintiff has no standing are matters that the Defendants can ventilate at the substantive hearing of this matter in due course.

16.	The Defendants also seek the dismissal of the proceedings on the basis that they disclose no reasonable cause of action and amount to an abuse of the process of the Court.

17.	It is trite law that the phrase “cause of action” has two components:

a)	A right which is given by law.
b)	A set of facts which give rise to the claim (Lowa v Akipe 1992 PNGLR 399). 

18.	In this case the Plaintiff has set out allegations of facts, which if proven, would show he was employed as alleged, and his contract was terminated. The Plaintiff avers that the termination of his employment was unlawful and or unfair. 

19.	In my view, the Plaintiff has set out sufficient allegations of facts that makes it clear to the Defendants why these proceedings are instituted against them – and if proven will entitle the Plaintiff to some relief recognized by law, including what he is asking for.

20.	The proceeding sought to be dismissed clearly set out the legal ingredients or elements of the claim and the facts that support such a claim. I am satisfied that the Plaintiff’s proceedings disclose a reasonable cause of action and do not amount to an abuse of process.

21.	It is trite learning that the process of the Court must be carried out honestly and in good faith and should not be used simply to harass another party. In this case, there is nothing to support the submission that these proceedings were initiated dishonestly or in bad faith or were intended to simply harass the Defendants. In my view, the Defendants have failed to establish that the Plaintiff’s proceedings amount to an abuse of Court process.

22.	Having regard to what I have said above, there is no merit in the Defendants invocation of Order 12 Rule 40(1)(a) (b) and (c) of the National Court Rules.  It follows in my view that the argument that the entire proceedings be dismissed for not disclosing a reasonable cause of action and being an abuse of Court process is without merit and liable to be dismissed, as I hereby do.

23.	I am aware that in the alternative the Defendants also claim that the proceedings are frivolous and vexatious.

24.	Proceedings are vexatious if they lack bona fides or when they are hopeless, oppressive and tending to cause unnecessary expenses on the other party. Proceedings are also frivolous when they are a waste of the Court’s time and the other party’s time.

25.	It is beyond dispute that this Court has an inherent power and duty to protect itself from frivolous claims by litigants (see Ronnie Wabia v BP Exploration and Operating Ltd 1998 PNGLR 8).

26.	In this case, there is nothing to suggest that these proceedings, sought to be dismissed, lack bona fides or they are hopeless or otherwise unsustainable.

27.	In the result the application is dismissed with costs. Such costs to be taxed, if not agreed.
_______________________________________________________________
Sasingian Lawyers: Lawyer for the Plaintiff	 
Office of Solicitor General: Lawyer for the Defendants