Iara v Toraso [2023] PGNC 401; N10553 (25 October 2023)

N10553

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 21 OF 2023 (IECMS)

ALLAN IARA
Plaintiff

V

BILL TORASO IN HIS CAPACITY AS THE ACTING OFFICIAL SECRETARY OF THE OFFICE OF THE GOVERNOR GENERAL

First Defendant

AND
OFFICE OF THE GOVERNOR GENERAL
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 22^nd September, 25^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Application for Leave for Judicial Review Order 16 Rule 3 NCR– Examiner Office of the Governor General – Suspension Criminal Allegation Misappropriation – Criminal Allegation Not Sustained – Suspension Not Uplifted – PSC Sought Advice Uplifting of Suspension – Locus Standi – Arguable Cause – Delay – Exhaustion of Internal Process – Materials Sufficient – Balance Discharged – Leave Granted – Cost follow event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel

J. Bibilo, for Plaintiff
M. Narokobi, for Defendants

RULING

25^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 27^th February 2023 filed of the 20^th March 2023 seeking: -
   
   • (i) Leave be granted pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules and section 155 (4) of the Constitution for the Plaintiff to seek judicial review of the decision of the 1^st Defendant made on the 13^th September 2018 in suspending the Plaintiff from his substantive position with the second defendant.
     
   • (ii) Leave be granted pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules and section 155 (4) of the Constitution for the Plaintiff to seek judicial review of the decision of the 1^st Defendants noncompliance to the decision of the Public Service Commission dated 17^th May 2022 directing the 1^st defendant to uplift the Plaintiff’s suspension and reinstate him with the second defendant.
     
   • (iii) Costs of the proceedings and
     
   • (iv) Time be abridged for entry of these orders to the time of settlement which shall take place forthwith.
     
   • (v) Any other orders in the discretion of the Court.
     
2. The originating summons is supported by the affidavit of the plaintiff applicant sworn of the 27^th February 2023, filed of the 20^th March 2023. He was employee of the third defendant since 22^nd January 2007 as Examiner within. Then subsequently was promoted to being accountant grade 16 also within. Annexure “A” is copy of letter dated 27^th June 2022 confirming that fact. On the 03^rd September 2018 an inter-office memo, annexure “B” was issued by the First Defendant to the plaintiff suspending him from official duties on allegation of official corruption. Plaintiff was subsequently charged by Police with Misappropriation under the criminal code that was cleared on the 07^th May 2021, annexure “E” Notice of Acquittal issued by the national Court of Justice presided by Justice Berrigan dated 07^th May 2023. The plaintiff wrote, annexure “F” to the office of the First Defendant to uplift his suspension but to no avail. Plaintiff then wrote annexure “G” to the Public Services Commission on his lengthy suspension without being uplifted. To which the PSC responded Annexure “H” dated the 17^th May 2022 annulling the decision of the First Defendant of the 03^rd September 2018, ordering his reinstatement to his position as accountant backdated with all his entitlements by that position including all allowances. Which has not been heeded to by the First Defendant hence this originating summons for leave.
   
3. He sought legal aid and assistance, annexure “I” from the office of the Public Solicitor on the 22^nd June 2022 leading to these proceedings being filed by that office to assist. Explanation has also been furnished by affidavit as to the delay in the filing of this proceedings by Counsel on record. It is clear the delay is not at the hands of the plaintiff and is overwhelming such that it must accord favour for the plaintiff. His reasons are substantive that refusal will mean he remains being paid but suspended and not earning his keep for that pay. Justice is overwhelmed and delay will not prevent. This ground is satisfied in his favour.
   
4. On the 07^th November 2022 the plaintiff by annexure “K” alerted Public Solicitor that despite notice of the PSC decision upon the first defendant he made no move to comply with it nor uplift the suspension, and it would appear that internal process to get the matter administratively resolved has not found its way to the first defendant’s accord. It is such as to exhaust administratively so that he is back to his position as accountant with the uplifting of the suspension, reason for cleared in court by the National Court. Internal administrative avenue heeded has come negative in the hands of the first defendant, and so this action to enforce now that it is no longer available to pursue. It discharges this ground in favour of the plaintiff.
   
5. The plaintiff has locus standie he is directly affected by the decision that was made by the First Defendant particulars set out above in his affidavit relied on. He is suspended in the seat that he was appointed to the allegations cleared by the National Court evidence attached. There is in administrative law, no adherence to Audi Alteram Partum because there is no further reason for the continued suspension of the plaintiff accorded by the first defendant. Plaintiff has a cause of action to enforce following because administrative action has seen no light to his cause of action.
   
6. There is arguable cause demonstrated by the facts set out in his affidavit and the supporting statement under order 16 Rule 3 (2)(a) of the NCR. The questions raised in the originating summons confirmed by this statement and verified by the affidavit verifying are basis in my view that the plaintiff has arguable cause for this matter to proceed to a full hearing in the Judicial review. Those grounds give effect to the reliefs that have been sought. The material relied on is sufficient in my view discharging this ground and all others set out above for leave.
   
7. There is internal avenue administratively, but exercise of which have fallen by the wayside because of the first defendant’s reluctance to adhere. And the pleadings with all supporting documents by the rules are in order settling all grounds required of Leave for Judicial Review all seen in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) for leave to be granted for judicial review of the actions by the First Defendant upon the plaintiff. His cause pleaded is within the realm of Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). And in my view, he has discharged the burden to sustain leave for Judicial review in his favour. Accordingly, I grant leave in the terms of the originating summons pleaded for leave for Judicial review in the decisions challenged.
   
8. The formal orders of the Court are:
   
   • (i) The Plaintiff is granted Leave for Judicial review as Pleaded.
     
   • (ii) He will file and serve the substantive Notice of motion by or before Monday 06^th November 2023.
     
   • (iii) The matter will be called up at Directions on Monday 06^th November 2023 at 9.30 for Directions.
     
   • (iv) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for First Defendants