Larsen v Koim [2023] PGNC 399; N10551 (23 October 2023)

N10551

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 02 OF 2023(IECMS)

JEREMIAH LARSEN
Plaintiff

V

SAM KOIM OBE COMMISSIONER GENERAL INTERNAL REVENUE COMMISSION
First Defendant

AND
INTERNAL REVENUE COMMISSION
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 22^nd September, 23^rd October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Officer of IRC – Summary Dismissal 1^st September 2022 – Paragraph & 119 Commission Administrative Order 5-15 Discipline – Non Reporting for Duty no Good Reasons 10 Working Days Summary Dismissal – No Audi Alteram Partum –– Breach of Procedure – Whether Breach of Law & Procedure Not Hear Plaintiff Before Dismissal – Communication with Employer On Non Attendance over Time – Suspension – Charging – Due Process – Arguable Basis – Locus Standi – Delay – Leave granted–Cost follow Event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Okuk and State v Fallscheer [1980] PNGLR 274

Counsel:

N. Kiuk, for Plaintiff
H. Wangi, for Defendant

RULING

23^rd October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application seeking by originating summons dated the 05^th January 2023 pleading for:
   
   • (i) An order that leave be granted pursuant to Order 16 Rule 3 (1) of the National Court Rules to apply for judicial review to review the decision of the First Defendant dated the 06^th September 2022, whereby the Plaintiff was summarily dismissed from his employment unlawfully under Internal Revenue Commission Administrative Order especially Administrative Order 5-15 Discipline.
     
   • (ii) Costs be in the cause.
     
   • (iii) Time be abridged.
     
2. He pleads by way of his Statement pursuant to Order 16 Rule 3 (2)(a) filed of the 05^th January 2023 that his application for recreational leave was approved on the 19^th May 2022 which was for 30 days. And he was to resume duties on the 1^st of July 2022. And he was spending that leave in his home village of Mulitaka with his family members. But few days before the 1^st July 2022 there was election related violence that escalated out of control preventing travel because of safety and security. Because there was fighting in the neighbouring District of Laiagam Surinki causing the main road to be blocked. It was unsafe to travel because there was destruction to properties and disturbance of the peace and order. There were ditches dug in the road way leading. But violence eased 13^th August 2022 making accessibility for travel and so plaintiff returned and resumed duties on the 15^th August 2022. He had notified his Superiors for a leave of absence without pay but that was not placed on the record. No fault on his part.
   
3. He disposes to these facts in his affidavit dated the 29^th December 2022 filed of the 05^th January 2023. A second affidavit that he has deposed to of the 11^th January 2023 and filed of the 16^th January 2023. A further affidavit of service of the 11^th January 2023, filed of the 16^th January 2023, yet a second of the 03^rd February 2023 filed that same day. And toping off with a supplementary dated and filed of the 06^th February 2023. He has summed this evidence in the Statement pursuant to Order 16 Rule 3 (2)(a) filed of the 05^th January 2023 together with affidavit verifying dated the same sworn of the 28^th December 2022. Notice has been given to the Secretary for Justice filed of the 05^th December 2022
   
4. What is pertinent out of all this evidence is that he was indeed granted recreational leave on 19^th May 2022. Which he took flying to Mt Hagen with his family to spend in his village of Mulitaka Enga Province. And he was to resume duties on 1^st July 2022, but the situation had turned volatile caused by disgruntled supporters in that election. He could not travel as accessibility was denied by fierce fighting in the nearest District Laiagam Surinki to his village and the road link was destroyed to Porgera and Laiagap station. Hug ditch was dug preventing. He informed by WhatsApp Message annexure “D” to Ms Juvanduo to be lodged with Human Resources section and he was assured that would be done. It never occurred but he was put off payroll. And on the 06^th September 2022 was informed by letter of his dismissal. And his ground was abscondment pursuant to paragraph 38 of the Commission’s Administrative Orders No 15. But he had taken the time to advice because he could not resume and he had filed a leave without pay form that was not recorded.
   
5. It is clear he has not been accorded the opportunity to air his grievance and why he was not able to be on duty leave allowed. Section 59 Natural Justice prima facie has not been accorded in the application of Internal Revenue Commission Administrative Order Paragraph 38 Order 15. Which must be the subject of proper scrutiny in a judicial review application. Audi Alteram Partum is an integral part of Judicial review in equity: Okuk and State v Fallscheer [1980] PNGLR 274. The evidence set out above do not accord that upon the plaintiff applicant in his dismissal. There was communication that he made to the defendants attached to his affidavit, annexures “B1 to B8” depicting violence preventing his travel back to resume on dates he was due to resume.
   
6. He has no material to the contrary deposed to by the defendants that this is not his first time to abscond. It is his record from previous similar and like behaviour which culminated as here to his dismissal. That is not the case. It is also not the case that he was accorded Audi alteram Partum so that what he had placed on the record was rebutted that there was no reasonable explanation for his lateness in resuming duty. There were no records and he was educated to holding a diploma for accounting from the Port Moresby Business College obtained on the 03^rd December 2016. He was employed with the defendants since 05^th May 2017 as a debt recovery clerk which position, he would have held for almost five years. It was not a light matter not to be heard before the ultimate as here.
   
7. His grounds evidenced prima facie by the observations set out above emanating from the materials relied are on terms with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Because Judicial review is about the process that is taken to arrive at a decision and when there is error in the process taken certiorari lies, District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. “These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court, Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). Which is evident in pleading set out above.
   
8. He has locus standie within his materials relied on that he has been directly effected by the actions of the defendants and he has sufficiently pleaded prima facie: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Given all set out above the delay is not inordinate and wanting for prosecution. This is an action against the plaintiff in the hands of the defendant since the 1^{st of} September 2022 and this is now 23^rd October 2023 securing what was filed by the originating summons of the 05^th January 2023. To deny based on four months by order 16 rule 4 (2) of the Rules would be injustice more than justice. There is no evidence to the contrary that substantial hardship is evident against the defendants should this applicant be granted his plea here. I am satisfied that this ground must be held in his favour. It is arguable for the reasons I set out above. And internal avenue has been resorted to finalized with the appeal that was refused so this is an appropriate avenue that the plaintiff has resorted to. He satisfies this ground which sums that his application will be granted as pleaded.
   
9. I will not subscribe to the arguments that the material relied was on Facebook and could have been cooked to arrive that the applicant was justified. That is the reason why it ought to have been explained at arm’s length rather than summarily against the applicant. He ought to have justified by a proper process to bring out this matter before resorting to the inevitable, summary dismissal. He was pronounced guilty before he was given an opportunity to explain. That is proper basis for leave to be accorded for Judicial review as pleaded.
   
10. And so, Leave is hereby granted for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules to apply for judicial review to review the decision of the First Defendant dated the 06^th September 2022, whereby the Plaintiff was summarily dismissed from his employment unlawfully under Internal Revenue Commission Administrative Order paragraph 38. Costs will follow the event.
    
11. The formal orders of the Court are:
    
    • (i) Leave is granted for Judicial review pursuant to the Plaintiff’s originating summons dated 05^th January 2023.
      
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.
__________________________________________________________________
Kiuk & Associate Lawyers : Lawyers for the Plaintiff/Applicant
Office of the Solicitor Generals: Lawyers for First Defendants