Elliot v Numan [2024] PGNC 324; N10993 (18 September 2024)

N10993

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 390 OF 2019

BETWEEN
SENORI ELLIOT
Plaintiff

AND
ASHA NUMAN, Provincial Administrator,
Milne Bay Province
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Alotau: Toliken, J.
2024: 18^th September

ADMINISTRATIVE LAW – judicial review – application for leave – whether plaintiff has satisfied requirements for grant of leave – requirements satisfied – leave granted – Constitution, s 155(4); National Court Rules, Order 16 r 3 (1), 4.

Cases Cited:
Papua New Guinean Cases

Manjin v Post and Telecommunication Corp [1990] PNGLR 288
Geno v The State [1993] PNGLR 22.
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Evoa v Kangu (2017) SC1589

Overseas Cases:

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

Counsel:

J Apo, for the Plaintiff
M Tukuliya with K Baloiloi, for the Defendants.

RULING

18^th September 2024

1. TOLIKEN, J: By way of an Amended Originating Summons dated 6 January 2020 and filed on 15 February 2020 the Plaintiff sought leave of the Court pursuant to Order 16 Rule 3(1) of the National Court Rules and Section 155 (4) of the Constitution for the review of:
   
   1. The decision of the Provincial Administrator for Milne Bay Province in refusing to implement the decision of the Public Service Commission dated 1 June 2015 to reinstate the Plaintiff to his former position prior to his unlawful termination and pay back pay of lost salaries and emoluments.
      2. Such further or other orders as the Court deems fit.
         

BACKGROUND

2. The following background facts appear from the Order 16 Statement and the Plaintiff’s Supporting Affidavits:
   
   • (i) The Plaintiff was at the relevant time the Acting Town Manager of Alotau Urban Local Level Government. Prior to that he held various senior positions within the Milne Bay Provincial Administration.
   • (ii) On 10 September 2009, the Provincial Administrator suspended the Plaintiff with pay over allegations of soliciting a fee from a client in the discharge of his duties a Acting Town Manager, Alotau Local Level Government.
   • (iii) The Notice of Suspension and Disciplinary Charge were served on him on 11 September 2009.
   • (iv) On 11 September 2009 the Plaintiff responded to his disciplinary charges.
   • (v) The Plaintiff was dismissed by the Provincial Administrator by Notice of Dismissal dated 14 October 2009.
   • (vi) On 4 December 2009 the Plaintiff applied for review of his dismissal to the Public Service Commission.
   • (vii) On 1 June 2015 the Public Service Commission annulled the decision of the Provincial Administrator.
   • (viii) The Commission also ordered that the Plaintiff be reinstated to his substantive position and paid his contractual allowances and benefits from the date of his termination.
   • (ix) Aggrieved by this, the Provincial Administrator advised the Chairman of the Commission by letter dated 7 July 2015 that the Provincial Administration will file for judicial review.
   • (x) On 5 August 2015 the Milne Bay Provincial Administration filed for judicial review styled OS (JR) No. 497 of 2015, challenging the decision of the Public Service Commission.
   • (xi) On 22 February 2016 the Plaintiff sought and was granted legal aid by the Office of the Public Solicitor.
   • (xii) On 26 July 2017, the Court dismissed the Provincial Administrator’s proceedings for non-compliance with Court directions with costs.
   • (xiii) The Plaintiff served the orders on the Administration on 17 January 2018.
   • (xiv) In response the Provincial Administration gave assurances to the Plaintiff that he would be reinstated and back paid hence he waited for the Administration to effect the Public Service Commission determination.
   • (xv) When nothing was done, the Plaintiff wrote to the Provincial Administrator by letter dated 17 December 2018 requesting that his Court ordered costs be paid.
   • (xvi) On 6 June 2019, the Plaintiff filed these proceedings.
   • (xvii) At the time of filing his application for judicial review the decision of the Public Service Commission for the Plaintiff to be reinstated and the back payment of his contractual allowances and benefits remained unimplemented.
   • (xviii) On 12 December 2019 the Plaintiff signed a Deed of Release where, in consideration of the payment to him by the State (through the Milne Provincial Government) of the sum of K4660.00) and thereby –
     
     • (a) partially released the State and the Provincial Administrator (and the Provincial Government), its servants and agents from and against all actions, claims, suits, demands and costs whatsoever which he the Plaintiff have had, now have or at any time thereafter might have or but for the execution of the Deed might have had arising out of or relating directly or indirectly to or concerned with loss or damages suffered by him.
     • (b) Indemnify and keep indemnified the State (including the Milne Bay Provincial Government) its servants and agents from all actions, suits, claims, and costs which may be brought or made against them in respect of the release in paragraph (a) relates.
     • (c) Agree to withdraw the National Court proceeding, OS (JR) No. 390 of 2019, the matter between Senori Elliot and Ashan Numa Milne Bay Provincial Administrator and the Independent State of Papua New Guinea and any other complainant or claims against the Milne Bay Provincial Administration and the Independent State of Papua New Guinea.
       
3. The Schedule to the Deed of Release stipulated that the payment of K4660.00 being for the National Court legal costs in the matter of OS (JR) NO. 390 of 2019 (this proceeding) , was to assist the Plaintiff with his children’s tuition fees. The balance of K9392.00 shall be paid to the Plaintiff on a quarterly basis.

PRINCIPLES

4. The principles for grant of leave for judicial review are trite and settled. A plaintiff must:
   
   • (1) Have sufficient interest in the matter or has locus standi.
   • (2) Not be guilty of undue delay in bringing his application.
   • (3) Have exhausted all administrative avenues to resolve the matter.
   • (4) Have an arguable case.
     
5. At the leave stage, all that is required, quoting from the celebrated statement of Lord Diplock in Internal Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644 is:
   

“If, on a quick perusal of the material then available, the court (that is judge who first consider the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favouring of granting to the applicant the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.” See also Manjin v Post and Telecommunication Corp [1990] PNGLR 288; Geno v The State [1993] PNGLR 22.

6. So, has the Plaintiff satisfied the requirements for grant of leave?
   

DELIBERATIONS

Sufficient Interest/Locus Standi

7. I have considered the material before me – that is the Order 16 Statement and the Plaintiff’s Supporting Affidavits. He is not a busy body. Rather he has shown, at a glance, to my satisfaction that he has sufficient interest in the matter at hand. He is the beneficiary of a lawful determination by the Public Service Commission, a Constitutional body charged with the duty to hear appeals from public servants who are negatively affected by disciplinary decisions of Departmental Heads including Provincial Administrators under the Public Service Management Act.
   
8. The Plaintiff was the Acting Town Manager for Alotau Local Level Government when he was administratively charged and dismissed. The Public Service Commission determined that his dismissal was unlawful and ordered his reinstatement and back payment of contractual emoluments and benefits. The defendants have shown no interest in complying with the determination of the Commission.
   
9. I find that the Plaintiff has shown that he has sufficient interest or locus standi to apply for leave.

Undue Delay

10. The Public Service Commission made its decision on 1 June 2015 (which he communicated to the parties) some 6 years after the Plaintiff appealed his dismissal. Other events came into play soon after that. The Provincial Administrator filed for leave for judicial review on 5 August 2015. It took another two years before the proceeding was dismissed on 26 July 2017 by this Court for non-compliance with court directions.
    
11. Even after the dismissal of its Application for Review, the First Defendant displayed an unwillingness to implement the determination of the Public Service Commission. On 6 June 2019 the Plaintiff filed this proceeding seeking leave to review the Defendant’s failure to comply with the determination of the Public Service Commission. Did the Plaintiff sit on his case and do nothing but watch things pass by. Certainly not, because as can be gleaned from the chronology of events, certain intervening events got in the way. How long was the delay here? If we were to count from the 26 July 2017 when the First Defendant’s review application for review was dismissed to the date of filing of this current proceeding on 06 June 2019, that would be just under 2 years. Is that an inordinate delay? And has the Plaintiff given a reasonable explanation for such a delay?
    
12. Order 16 Rule 4 (2) of the National Court Rules provides that in an application for an order for certiorari to remove into court any judgment, order, conviction or other proceeding for the purpose of quashing it, an application for leave for judicial review must be filed within 4 months.
    
13. The Plaintiff here is not seeking certiorari, but rather an order for mandamus to compel the defendants to comply with and implement the determination of the Public Service Commission for his reinstatement and back payment. Be that as it may, the Plaintiff has a duty to act diligently and with haste, nonetheless. Of course, there may be exceptional circumstances to grant leave despite what may appear to be an inordinate delay. For instance in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC 1120, where there was an apparent delay of about 3 years, the majority of the Court there held that exceptional circumstances existed in a matter involving the fraudulent and irregular transfer of a title to land, and the trial court was correct in its exercise of discretion to grant leave despite the long delay in applying for review. The exceptional circumstance must relate to a clear manifestation of substantial injustice being done if leave is refused due to the delay. (Evoa v Kangu (2017) SC 1589)
    
14. The delay here was only under 2 years and I am satisfied that the Plaintiff has shown a prima facie and reasonable explanation for it.
    

Exhaustion of Administrative Avenues

15. There is simply no avenue available to the Plaintiff to address his grievance. Hence this requirement has been satisfied.
    

Arguable Case

16. The Plaintiff has shown that he has an arguable case which if taken beyond this stage to substantive review may succeed. Again, the defendants have not shown a willingness to comply with the determination of the Public Service Commission. They have tarried and delayed and appear to have been deceitful as well. The Deed of Release signed by the Plaintiff appears prima facie to have been a sham designed to circumvent and avoid implementing the Public Service Commission’s determination and directive.
    
17. Even though the Plaintiff already had the Public Solicitor as his lawyer at the time the Deed was executed, his lawyer was not involved to proffer independent advice to his client. Instead, Mr. Baloiloi, in-house counsel for the First Defendant signed as witness for the Plaintiff. This smacks of unethical and unprofessional conduct on the part of Mr. Baloiloi.
    
18. If that were not enough, it appears that the Plaintiff was taken advantage of by the First Defendant and his lawyer. They appear to have struck at a moment when the Plaintiff was desperately in need of money for his children’s tuition fees. Without advice from his lawyer, the Plaintiff undertook to withdraw this proceeding and indemnify the defendants and their servants and agents from current and future suits and claims in consideration for the sum of K13000.00 which interestingly was for legal costs in these proceeding.
    
19. It appears therefore the defendants conveniently hedged and protected themselves from complying with their legal obligations to the absolute and complete detriment of the Plaintiff. The Deed of Release appears to be fraught with undue influence, fraudulent conduct and unconscionability. This issue must be further ventilated at a substantive review.
    

CONCLUSION

20. I therefore grant leave for substantive review to the Plaintiff.
    

ORDERS

1. Leave for judicial review is granted.
2. Pursuant to Order 16 Rule 5 (2) of the National Court Rules, the Plaintiff shall file and serve his Notice of Motion for Judicial Review on the defendants together with all materials he shall rely on at the review within 14 days from today.
3. Pursuant to Order 16 Rule 5 (5) of the Rules, the Plaintiff shall thereafter file an affidavit of service stating the names and addresses of, the places and dates of service on, all persons who have been served with the Notice of Motion.
4. The Assistant Registrar shall within 21 days from today or within such extended time as the exigency of the matter or availability of a Motions Judge shall allow, allocate a date for hearing of the Motion in consultation with the parties.
5. Costs shall be in the cause.

Ordered Accordingly.
________________________________________________________________
L B Mamu, Public Solicitor: Lawyer for the Plaintiff
I Geita, Acting Solicitor General: Lawyer for the Defendants