Vutliu v Ganai [2023] PGNC 330; N10491 (14 September 2023)

N10491

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 203 OF 2023 (IECMS)

JOSEPH VUTLIU
Plaintiff

V

DAVID GANAI IN HIS CAPACITY AS SECRETARY DEPARTMENT OF COMMERCE & INDUSTRY
First Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 12^th & 14^th September

PRACTICE & PROCEDURE – Originating Summons – Section 155 (4) Constitution – Section 18 (6)(b) Public Services Management Act 1995 (As Amended) – Order Reinstatement of Plaintiff Applicant – No Jurisdiction –Facilitate Payment of Lost Salaries and Entitlements – Return Vehicle Used By Plaintiff Applicant to His Possession – Allocation Of Different WorkStation –Order Extension of Contract Expired On 09^th September 2023 to Be Extended Period Equivalent Since Disciplined –Declaration That Subject Position Advertised in Post Courier Page 54 Be Stayed – No Basis In Rules of Court For Originating Summons – No Basis In Law For Remedies Sought – Dismissal Appropriate – Cost Follow Event.

PRACTICE & PROCEDURE – Originating Summons – Section 155 (4) Constitution – Section 18 (6)(b) Public Services Management Act 1995 (As Amended) – Privity of Contract Not Open to Whole World – Section 155 Constitution Inapplicable – No Jurisdiction to Extend Contract – Lapse of Contract – No Relationship at Law Between the Parties – No Enforcement of Contract – Dismissal Of Proceedings – Cost Follow Event.

Cases Cited:

Hol v Ila'ava [2021] PGNC 500; N9271
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Holland v Nauga [2015] PGNC 218; N6116
Saiho v Solomon [2016] PGNC 282; N6474
Luma v Kali [2014] PGSC 46; SC1401
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459
Malewo v Faulkner [2009] PGSC 3; SC960
Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees [2006] PGSC 2; SC837
Avia Aihi v The State [1981] PNGLR 81
In the Matter of an Application for Judicial Review Pursuant to Constitution Section 155(4); Skate v Nape [2004] PGSC 5; SC754
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290

Counsel:

Y. Otmar, for Plaintiff/Applicant
Z. Rekeken, for Defendants

DECISION

14^th September 2023

1. MIVIRI, J: This is the ruling on the originating summons of the Plaintiff/Applicant who prays by it that:
   
   • (i) Pursuant to Section 155 (4) of the Constitution of the Independent State of Papua New Guinea a Declaration that the Decision of the Public Services Commission dated the 20^th June 2023 is valid and binding on the First Defendant to be effected forthwith by virtue of Section 18 (6)(b) of the Public Services Management Act (As Amended)
     
   • (ii) Consequently, pursuant to Section 155 (4) of the Constitution of the Independent State of Papua New Guinea, an Order that the First Defendant shall within 7 days from the date of this Order, reinstate the plaintiff to his position described as Deputy Secretary-Operations, Department of Commerce and Industry, Grade 19, Position No. CIEX 15 .
     
   • (iii) An Order that the First Defendant shall within 14 days from the date of the Plaintiff’s reinstatement to the Plaintiff’s substantive position;
     
     • (a) Facilitate payment of the Plaintiff’s lost salaries and entitlements,
     • (b) Return the vehicle normally used by the Plaintiff when the plaintiff was on duty, and
     • (c) Allocate a different workstation within the office for the Plaintiff to effectively perform his duties.
       
   • (iv) An Order that the Performance Based Contract of Employment between the First Defendant and the Plaintiff made on the 09^th September 2020, which will expire 09^th September 2023 be extended for a period equivalent to the Period in which the plaintiff has not performed on his substantive position as a result of the disciplinary Action to the date of his reinstatement.
     
   • (v) Declaration that the recruitment on the Plaintiff’s substantive position which was advertised on Post Courier, page 54, by the First Defendant on the 09^th June 2023 is invalid and unlawful or alternatively an Order that the recruitment on the Plaintiff’s substantive position which was advertised on Post Courier page 54 by the First Defendant on the 09^th June 2023 be stayed for a period in accordance with the period of extension of the Plaintiff’s contract based on performance stated under Order No 2 (c) above.
     
   • (vi) Abridgement of Time
     
   • (vii) First Defendant to pay the Costs of the Proceedings on full indemnity Basis.
     
   • (viii) Any other orders as discretion by the Court.
     
2. This originating summons relies on the affidavit of the applicant plaintiff Joseph Vutliu sworn of the 31^st July 2023, filed of the 03^rd August 2023. He deposes that he was a senior officer employed as Deputy Secretary Operations grade 19 position number CIEX 15. And he was employed pursuant to a performance-based contract entered into with the Defendants on the 09^th September 2020 running for a duration of three years hence would be expired or lapsed as of 09^th September 2023.
   
3. On the 10^th January 2022 the First Defendant made the applicant unattached officer through an internal circular, annexure “C” of his affidavit, and was put off the payroll number 13/2022-29^th June 2022. And on the 08^th August 2022, he was served a notice of Charge with two charges, Abscondment and Insubordination to which he replied annexure “D” to his affidavit, on the 15^th August 2023. Which drew no response from the Department and waiting until the 11^th August 2022 there was still no response so applicant drew out the matter to the Public Services Commission, annexure “E”. On the 23^rd February 2023 the PSC conducted an oral hearing of my application for review with the representative of the defendants present with me there. The hearing concluded and on the 20^th June 2023 PSC made its decision, annexure “F” annulling the decision of the First Defendant and ordered that I be reinstated to my substantive position with backdated payment of the lost salaries and entitlements as a result of the disciplinary action taken against me. On the 26^th June 2023 my lawyer caused a letter Annexure “G1” to the First Defendant to comply with the PSC decision which I served him on the 28^th August 2023 together with the Department of Personal Management and the PSC. I also asked then for the defendants not to proceed with any permanent appointment to the subject position. My service acknowledgment is annexure “G2”.
   
4. That after the expiration of 30 days therefrom 20^th June 2023 the decision would be binding on the First Defendant if he did not seek variation of it and dismissal of it in Court. This is now the action instituted to enforce that decision against the First Defendants. Because the 30 days has since expired, and the First Defendant has not done anything to set it aside vary it or dismiss its impact in law against pursuant to Section 18 (6)(b) of the Public Services Management Act (As Amended). The decision of the PSC is now binding and must be implemented by the First Defendant. Because similar action has drawn similar as in Hol v Ila'ava [2021] PGNC 500; N9271 (9 November 2021) and must be implemented Asiki v Zurenuoc, Provincial Administrator [ 2005] PGSC 27; SC797 (28 October 2005). And this is the law followed in Holland v Nauga [2015] PGNC 218; N6116 (10 November 2015).
   
5. But here there is a twist as observed in Saiho v Solomon [2016] PGNC 282; N6474 (7 October 2016) section 18 was considered as and that it was appropriately sought out by the Originating summons that was filed to implement the decision of the PSC that was made in favour of the applicant/plaintiff as is the case here. But the applicant/plaintiff was employed by a performance-based contract as is the case here. That relationship was personally between the applicant/plaintiff as is the case here and the defendants. It could not be enforced by the Court because it was private law matter, as opposed to a public law matter: Luma v Kali [2014] PGSC 46; SC1401 (14 November 2014) settles this fact.
   
6. It follows that the contract entered into with applicant plaintiff with the First Defendant of the 09^th September 2020 expired on the 09^th September 2023. It is a private relationship at law between the parties that has come to lapse naturally as agreed to between them. They are by privity of contract not answerable to the whole world that it has terminated. And this Court will not enforce its extension, nor would it accede to the other orders that have been pleaded as set out above. Because the privity of contract precludes enforced observed in Saiho (supra) and Luma (supra). It is bold Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994) that it is a matter within the domain of the parties and will not be enforced unless it is within, not without. So, in the case here its enforcement for extension will not be allowed as pleaded. It is not likened to the situation observed in Asiki (supra) which was by order 16 Judicial review proceedings and so it was open to the court to go that way. That is not the case here by the facts, the contract has come to the end of its natural life. Whatever consequences that have come out as a result of the allegation against the defendants will not be by the process instituted here. A writ will be appropriate: Malewo v Faulkner [2009] PGSC 3; SC960 (13 March 2009) not originating summons in an allegation where there is breach of the terms of the contract leading to the expiration of the contract: Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees [2006] PGSC 2; SC837 (22 May 2006).
   
7. It naturally flows that the other remedies pleaded set out above will not be accorded given. They have no basis in law in the relationship to be granted because the contract has now lapsed naturally. If the plaintiff has an argument as pleaded that is a matter by writ of summons before another tribunal. For now all remedies pleaded particulars set out above in the originating summon will not be accorded favour for the applicant/plaintiff. All will be refused with costs.
   
8. Further the Rules of the National Court and the law is clear, section 155 (4) Constitution cannot be used to delve into the domain of private law to give extension to the life of the Contract between the parties here. “This provision has been interpreted to apply to remedial orders in respect of primary rights in particular circumstances of a case. It is not intended to cover every situation. If this was the case, s 155 (4) would override specific provisions of the law. In Avia Aihi v The State [1981] PNGLR 81 the Court held that s 155 (4) of the Constitution could not override the provision of the Supreme Court Act on the 40 days period in which to appeal against the decision of the National Court. The specific provision dealing with interim orders pending determination of an originating process under s 18 (1) of the Constitution is expressly provided for under O 3 r 2 (b) of the Supreme Court Rules. Section 155 (4) of the Constitution can have no application to the interpretation of O 3 r 2 (b) of the Rules. Whether or not interim order should be made in any case is determined by the words "prejudice to the claims of the parties" and not on any general notion of justice under s 155(4) of the Constitution. We reject the submission based on s 155(4),” In the Matter of an Application for Judicial Review Pursuant to Constitution Section 155(4); Skate v Nape [2004] PGSC 5; SC754 (9 July 2004).
   
9. The action by the originating summons is without merit on the facts circumstances and the law. It will be dismissed forthwith. And the costs will follow the event against the plaintiff in favour of the defendants on a solicitor client basis following Opi v Telikom PNG Ltd [2020] PGNC 168; N8290 (29 April 2020). A prudent lawyer would have seen that the contract was going to expire and with it the action if originating summons was maintained, a writ would have seen explored coupled with section 18 of the Public Services Management Act (As Amended) reward for the applicant/plaintiff. It is not the case here and so would be dismissed in all its entirety forthwith with costs on a solicitor client basis forthwith following the event in favour of the defendants. Time that has been taken up must be compensated by the costs here now ordered.
   
10. The formal orders of the court are:
    
    • (1) The originating summons is refused and dismissed forthwith.
    • (2) Cost is on a Solicitor Client basis to follow the event forthwith in favour of the defendants against the plaintiff applicant.

Orders Accordingly.

__________________________________________________________________

Don Wapu Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendant