Bomai v Kia [2023] PGNC 497; N10656 (14 November 2023)

N10656

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 126 OF 2022

BETWEEN:
CLETUS BOMAI
Plaintiff

AND:
JOSEPH KIA
First Defendant

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
TAIES SANSAN as the SECRETARY of the DEPARTMENT of PERSONAL MANAGEMENT
Third Defendant

AND:
DAVID MANUA as the SECRETARY of the DEPARTMENT of PETROLEUM AND ENERGY
Fourth Defendant

AND:
ROSELYN WRAKUAVIA as the CHAIRMAN of the DEPARTMENT of PERSONAL MANAGEMENT SELECTION COMMITTEE
Fifth Defendant

AND:
KILA WALO as ACTING HUMAN RESOURCE MANAGER of the DEPARTMENT OF PETROLEUM AND ENERGY
Sixth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Purdon-Sully J
2023: 14^th November

JUDICIAL REVIEW - Order 16 Rule 3(2) & (3) of the National Court Rules – Application for leave to apply for Judicial Review – discretion – requirements for leave – leave granted

Cases Cited:

Papua New Guinea Cases
Dawidi v Jacob [2001] PGNC 130; N2083
NTN v PTC (1987) PMGL 70
Asakusa v Kumbakor & Others (2008) N3303
Kekedo v Burns Philip [1988-89] PNGLR 122
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Overseas Cases
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Legislation:
National Court Rules
Claims By and Against the State Act 1996

Counsel
Mr Apo, for the Plaintiff
No appearance, for the Seventh Defendant

DECISION

14^th November 2023

1. PURDON SULLY; J: This is an application for leave for judicial review by the plaintiff pursuant to an Originating Summons filed on 19 December 2022.
   
2. The application for leave is made under Order 16 r 3(2) and (3) of the National Court Rules (NCR).
   
3. The seventh defendant, the Independent State of Papua New Guinea, who by virtue of s 8 of the Claims By and Against the State Act 1996 and Order 16 r (3) of the NCR is required to be heard on a leave application did not engage in the process.
   
4. A Notice of Application to Apply for Judicial Review dated 9 December 2022 was filed on 19 December 2022.
   
5. The seventh defendant was served with the relevant documents as detailed in the Affidavit of Kili Kirikawa filed on 10 February 2023.
   
6. This matter was before me on 7 and 8 November 2023 at which time I adjourned it to 13 November 2023 to ensure that the State had notice.
   
7. The State did not appear yesterday. I had my orderly go outside and call the seventh defendant. There was no appearance. I accordingly proceeded to hear the matter.
   

FACTS

8. The plaintiff is a senior petroleum engineer who has worked for the Department of Petroleum and Energy Department for 25 years.
   
9. He applied for the position of Assistant Director of Petroleum Grade 16 when advertised on 1 July 2019. At the time of his application, he was employed as a consultant.
   
10. Mr Kia, the first defendant, who had been acting in the position, also applied.
    
11. The plaintiff was the successful candidate. Mr. Kia was not.
    
12. On 18 November 2020, the selection process conducted by the Department of Personnel Management announced its decision. The fifth defendant is the Chairman of that Committee.
    
13. By letter dated 30 November 2020, the plaintiff accepted appointment to the position and was formally appointed to the position by notice from the third defendant, the Secretary of the Personnel Department to him dated 8 July 2021. The contract was sent to the fourth and sixth defendants to sign, the Secretary of the Department of Petroleum and Energy and the Human Resources Manager of that Department. That did not happen.
    
14. Mr Kia appealed the plaintiff’s appointment to the second defendant, the Public Services Commission on 10 February 2021.
    
15. His appeal was upheld by decision of the Commission dated 31 August 2022.
    
16. If the contents of the written decision is accepted, the delay between lodgement of the appeal and the decision appeared to arise as a consequence of Mr. Kia being time barred and him seeking and being granted a waiver, and a deferral of the oral hearing from 28 April 2022 to 18 May 2022 to afford the Department of Personnel Management (the second defendant) or its delegate an opportunity to be heard, they failing to attend on both occasions.
    
17. It is the plaintiff’s evidence that while the Commission had summoned the third defendant to make submissions at the hearing of the appeal, they failed to do so because of short notice. That evidence is possibly at odds with the matters I have outlined in the decision.
    
18. Relevantly, the plaintiff gave evidence that he was denied the opportunity to be personally heard on a decision that directly affected him.
    

APPLICATION

19. The plaintiff seeks leave to apply for judicial review of the following decision of the second defendant made on 31 August 2022 without affording the plaintiff an opportunity to be heard:
    
    1. The annulment of the appointment of the plaintiff to the position No PENG 001 designated as Assistant Director, Grade 16 within the Department of Petroleum and Energy by the Selections Committee of the Department of Personnel Management;
    2. That the Department of Petroleum and Energy immediately readvertise the position;
    100. That the Secretary, Department of Petroleum and Energy appoint a new Selections Committee, excluding previous members, with the Chairperson of the Committee to be a Senior Officer at Deputy Secretary Level; and
    4. That the Selection must be made in strict compliance with the provisions of the Public Service (Management) Act 1995 (as amended) and the Public Service General Orders.
       
20. The plaintiff relies on the following grounds in his Statement of Support:
    
    1. Bias actual or apprehended on the part of the Commission.
    2. Denial of natural justice, namely the plaintiff’s right to be heard.
       

MATERIAL CONSIDERED

21. The Plaintiff relies upon, and I have considered the following material:
    
    1. Originating Summons filed on 19 December 2022;
    2. Statement pursuant to Order 16 Rule 3(3) of the NCR filed 19 December 2022;
    100. Affidavit Verifying Facts filed 19 December 2022;
    4. Affidavit in Support filed 19 December 2022;
    5. Undertaking as to damages filed 19 December 2022;
    6. Notice of Application to Apply for Leave for Judicial Review to the Secretary of Justice filed 19 December 2022;
    7. Affidavit of Service upon the State as earlier outlined.
       

LEGAL PRINCIPLES

22. The legal principles on leave applications for judicial review are well settled in this jurisdiction. An application for leave involves an exercise of judicial discretion. The plaintiff carries the burden of proof on the balance of probabilities. The plaintiff must show:
    
    1. He has sufficient interest in the decision;
    2. There has not been any undue delay in making the application;
    100. He has exhausted all other statutory or administrative avenues for redress before making the application; and
    4. There is an arguable case justifying the grant of leave for judicial review.
       
23. Even if the applicant satisfies the above criteria, the Court retains the discretion to refuse leave, as it does to grant leave if the relevant criteria are not met.
    

Sufficient Interest

24. Order 16 r 3(5) of the NCR provides:
    

The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

25. Whether the plaintiff has established a sufficient interest is a question of both law and fact having regard to all the circumstances of the case.
    
26. I am satisfied that the plaintiff has sufficient interest to bring the proceedings. He is directly aggrieved or affected by the decision of the Commission to annul his appointment having been the successful candidate to the relevant position (Dawidi v Jacob [2001] PGNC 130; N2083).
    

Exhausted all other remedies.

27. Whilst there are some exceptions, the applicant if required to exhaust all the administrative remedies available to him before coming to this Court on a review application.
    
28. There is no evidence of other statutory or administrative remedies available to the plaintiff to review the decision of 31 August 2022 by the Commission other than judicial review.
    
29. This requirement is accordingly met.
    

Undue Delay

30. Order 16 r 4 of the NCR provides that all applications for judicial review must be made promptly.
    
31. The plaintiff seeks an order in the nature of certiorari. There is no dispute that the proceedings were filed within the four month period required under Order 16 r 4(2).
    
32. The decision of the Commission made on 31 August 2022 was received on 14 September 2022. The plaintiff then filed his application for leave to review on 19 December 2022.
    
33. There is no delay and this requirement is met.
    

Arguable Case

34. In determining whether there is an arguable case, the Court is not concerned with determining the merits of the case. The discretion the Court is exercising is not the same as that which it is called upon to exercise when all of the evidence is before it and the matter is fully argued at the substantive hearing of the application. The Court is only required to form a prima facie view based on a quick perusal of the material as opposed to a detailed analysis of the material before it, namely the grounds of the review pleaded and supporting affidavits together with any material presented by the State (see NTN v PTC (1987) PMGL 70 citing with approval Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 per Lord Diplock at p644; see also Asakusa v Kumbakor & Others (2008) N3303 at [15]-[16]).
    
35. The grounds on which judicial review is available is well settled. They include where the decision-maker exceeds its powers or there is a lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers (Kekedo v Burns Philip (1988-89) PNGLR 122 at [124] per Kapi DCJ.)
    
36. It would include procedural impropriety such as a failure to comply with the rules of natural justice by reason of bias. It is trite law to say that any person who makes an administrative, quasi-judicial or judicial decision must not have any personal interest in the outcome of the decision. It may also be a breach of natural justice to deny a person the opportunity to be fairly heard before a decision is made contrary to their interests (Ilau v Somare [2007] PGNC 265; N5511 per Cannings J at [66]).
    
37. The rule against bias and the right to be heard are part of the principles of natural justice adopted under ss 59 and 60 of the Constitution.
    
38. Those principles would apply to the hearing that was before the Commission (Nilkare v Ombudsman Commission (1996) SC498).
    
39. On a quick perusal of the material, I am satisfied that the plaintiff has made out an arguable case for judicial review.
    
40. Whilst the plaintiff may be challenged to show that the third defendant and the sixth defendant or their delegates did not have sufficient time to respond to any summons issued to them, the plaintiff gives evidence that he also was denied a right to be heard. It is submitted on behalf of the plaintiff that the plaintiff’s right to be heard is grounded in the provisions of ss 13(1) and 18(3) of the Public Services (Management) Act 1995 in that the Commission had the opportunity to summon the plaintiff, a person material to determining the subject matter before the Commission. This obligation was possibly heightened given that there was no material before it from the first defendant who was appealing and the sixth defendant who appeared to be supportive.
    

CONCLUSION

41. For these reasons, I propose to grant leave to the plaintiff to apply for judicial review of the decision of the second defendant of 31 August 2022 in terms of the relief no. 1 sought in the Originating Summons with one amendment.
    
42. The only matters that should be pleaded in the originating summons are leave to apply for judicial review, which is the relief sought, and the decision to be reviewed for which leave is sought (Innovest Ltd v Pruaitch [2014] PGNCS 288 at [5]). In my respectful view, it is not necessary or appropriate to add that the decision was made without the plaintiff being heard. Nothing in my view turns on the defect highlighted either by reason of prejudice or an abuse of the process.
    
43. The wording of the decision is as detailed at [1.1] – [1.4] of the decision that was made is detailed at 1.1 to 1.4 of the decision of the second defendant which is found at Annexure N of the plaintiff’s affidavit.
    

ORDERS

44. The Court Orders as follows:
    
    1. Leave is granted to the plaintiff for judicial review of the decisions of the first defendant made on 31 August 2022 that:
       
       1. The annulment of the appointment of the plaintiff to the position No PENG 001 designated as Assistant Director, Grade 16 within the Department of Petroleum and Energy by the Selections Committee of the Department of Personnel Management;
          
       2. That the Department of Petroleum and Energy immediately readvertise the position;
          
       3. That the Secretary, Department of Petroleum and Energy appoint a new Selections Committee, excluding previous members, with the Chairperson of the Committee to be a Senior Officer at Deputy Secretary Level; and
          
       4. That the Selection must be made in strict compliance with the provisions of the Public Service (Management) Act 1995 (as amended) and the Public Service General Orders.
          
    2. The plaintiff file and serve a substantive Notice of Motion for judicial review within 21 days of this Order.
       
    100. The matter be adjourned to 6 February 2024 at 9:30am for a directions hearing.
         
    4. The time for entry of the Orders be abridged to the time of settlement of the order which shall take place forthwith.

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Office of the Public Solicitor: Lawyers for the Plaintiff