Luma v Awesa [2013] PGSC 36; SC1259 (24 June 2013)

SC1259

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 20 OF 2013

Between:

JOEL LUMA
Appellant

And:

THE HONOURABLE FRANCIS AWESA MP – MINISTER FOR WORKS AND IMPLEMENTATION
First Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 24th June

ORDERS- Application for interim orders pending determination of appeal – Interim order sought under s 5 (1)(b) Supreme Court Act- An interim order given under s 5 (1) (a) is not "a direction" or directional orders that may be issued under s5 (1)(a) – meaning of – exercise of discretion – relevant consideration – Suspension of Departmental Head – Application dismissed

Counsel

D Tambili, for the Appellant
W Mapiso, for the Respondents

24th June, 2013

1. INJIA CJ: This is a contested application for interim relief or orders under s 5(1)(b) of the Supreme Court Act pending determination of the appeal. All parties relied upon affidavits filed in support of their respective positions on the application.

2. The application relates to a decision of the National Court to dismiss the appellant's application for judicial review following grant of leave for judicial review under O 16 of the National Court Rules (NCR). The trial Judge had before him two applications. The first was the appellant's application to amend the Originating Summons, the Statement in Support of the Application for Leave (O 16 Statement) and the Application for Judicial Review (Notice of Motion).The second is an application by the respondents to dismiss the application for judicial review pursuant to the provisions of NCR, O 12 r 40. The trial judge dealt with the second application and dismissed the proceedings and in the process, did not deal with the first application.

3. I heard extensive arguments with regard to the established criteria for grant of interim orders under s 5 (1) (b) of the Supreme Court Act, the facts and how those facts when applied to the established criteria for grant of such orders favoured the case for the respective parties. It is not my desire to restate those matters. I propose to consider the main or important points in the case and deal with those arguments in that context.

4. The discretionary power given to this Court found in s 5 (1) (b) of the Supreme Court Act is distinct from the discretionary power given in s 5 (1) (a). Those provisions are expressed conjunctively in the following terms:

5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court—

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties;

or......

5. An interim order given under s 5 (1) (b) is not "a direction" or directional orders that involves a decision on the appeal - a decision that disposes of the substantive orders sought in the appeal and thereby disposes of the appeal. It is an "interim order" or relief which preserves the rights arising from the claim pending the decision on the appeal. It does not dispose of the appeal in any way. There may be in existence decisions of single Judges of this Court that may have decided that in an application under s 5(1)(b), a decision involving the substantive appeal cannot issue by way of interim orders. Those decisions seem to confuse an interim order given under s 5 (1)(b) with a directional order given under s 5(1) (a). Those other decisions need to be revisited by the full Court in an appropriate case. For this reason I reject Mr Mapiso's argument on that point.

6. With regard to the criteria to be satisfied by the applicant, I am satisfied that the preponderance of judicial opinion expressed by case law supports the appellant's case that an arguable case has been demonstrated that the trial Judge was wrong in law in entertaining an application to dismiss the application for judicial review that was not properly founded on the appropriate provision of the NCR. The procedure for dealing with an application for judicial review of administrative action is exhaustively spelt out in NCR, O16. Prior to 2005, NCR O 16 had no provision for summary determination of applications made under that Rule. In 2005, NCR O 16 was amended to add r 13 which provides a summary procedure for dealing with applications to dismiss an application for judicial review for different reasons (see NCR O 16 r 13 (2)). The trial judge was not referred to that provision. None of the counsel who appeared before me seem to be aware of the existence of this provision. NCR O 12 r 40 applies to ordinary civil proceedings and have no application to judicial review proceedings under NCR O 16. I accept Mr Tambili's arguments on this point.

7. The arguable nature of the case for a party is to be determined by considering the "claims" of the parties that is sought to be protected or preserved by the interim order. The term "the claims of the parties" in s 5 (1)(b) of the Supreme Court Act is not defined in s 5. I would think that it refers to and includes the claim for relief in the appeal or originating process commenced in the Supreme Court (brought in the Supreme Court under matters within its Original Jurisdiction). Insofar as it relates to the claim for relief in the appeal, the nature of the claim advanced in the proceedings commenced in the National Court and considered by that Court and decision made in those proceedings that is the subject of the appeal, is a relevant matter to be considered.

8. I have considered the arguments made by both counsel in the light of the material placed before me. In an application for judicial review made under NCR O 16, the applicant's cause of action is set out in the O 16 Statement filed under NCR, O16 Statement. I have perused the original O 16 Statement filed in the proceedings and find it wanting or lacking in clarity and substance. It is vaguely worded and I am not able to ascertain precisely what that cause of action is that the appellant is aggrieved by that is being challenged. The grounds set out in clause 4 of the O 16 Statement merely alleges the decision to suspend was contrary to s 193(D) of the Constitution, and the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. It then merely recites s 31D of the Public Services Management Act. Such pleadings stand in sharp contrast to the pleadings in Dr Vele Ila'avas' case, cited by counsel for the appellant, a case that I dealt with recently.

9. The decision the subject of the review for which leave for judicial review was granted by the National Court was the one made by the first respondent on 7 December 2012 to suspend the appellant. That decision was subsequently retracted by the first respondent after it was pointed out to him by the Department of Personnel Management that he lacked power to suspend the appellant unilaterally. Subsequently, on 21 February 2013, the NEC suspended the appellant.

10. The second decision was made after grant of leave for judicial review and interim orders were made by the National Court restraining the first respondent from further referring the appellant to the NEC for suspension.

11. The appellant's application before the National Court to amend the Originating Summons, O 16 Statement and Notice of Motion (instituting the substantive application for judicial review) was an attempt to challenge the second decision but it also contained references to the first decision.

12. Whilst I note that the first and second suspensions are intricately connected in that the first respondent engineered both decisions, the fact remains that the second decision was made by the appropriate and lawful authority after the first decision made by the first respondent was retracted. The second decision is a separate decision for which leave to apply for judicial review was not granted.

13. The proposed amended Originating Summons, amended Order 16 Statement and amended Notice of Motion contained statements challenging both decisions. That would have the Court reversing its earlier decision to grant leave in respect of the decision of 7 December 2012 and consider the question of leave to review the first decision afresh. That was compounded further by mounting a fresh application for leave to review the second decision on an application for leave that had already been determined.

14. The four grounds on which the decisions were challenged in the amended Order 16 Statement which related to the decision of 7 December 2012 were retained from the original O 16 Statement. The vague pleading of the cause of action in those grounds were not rectified in the amended grounds.

15. In the amended O 16 Statement, the decision of 21 February 2013 was sought to be challenged on the ground that it was made in breach of the Court order of 1 February 2013 without specifying other grounds to do with compliance with Constitutional prescriptions for making the appointment.

16. Considering all these matters, I am of the view that the first decision to suspend was administratively resolved by retraction of the decision made by the person who made that wrong decision. The second decision stands on its own and is open to challenge by fresh/separate proceedings under O 16. The case for challenge of the second decision as it is in the proposed grounds of review contained in the amended documents is vaguely worded and a cause of action, apart from the alleged breach of Court order, has not been spelt out.

17. It is open to the applicant to pursue the breach of the Court order of 1 February 2013 as a ground of review in the fresh application under O 16 challenging the second decision. An application for contempt may also be prosecuted separately in such application as an ancillary matter.

18. I am of the view that in the circumstances alluded to, the appellant's claim for substantive relief in the appeal in terms of quashing the decision of the National Court and reinstating those proceedings is no longer viable such that there is no viable cause of action to be preserved by an interim relief given under s 5 (1)(b). In reaching this conclusion I accept arguments of counsel for the respondents on those points and reject those of counsel for the appellant.

19. With regard to the public interest in the good administration of the office in question in the interim period pending determination of the appeal, the applicant and the new appointee to the position, I am satisfied that each person are equally placed in terms of job qualifications and experience to run the Department pending the determination of this appeal. The new appointee is a long term career officer in the department and was the appellant's deputy for some time. In terms of the allegations of mismanagement that provided the reason for the appellant's suspension, those remain allegations until proven.

20. In my view, notwithstanding the considerations which favour the appellant referred to, above, the nature of the claim for relief advanced in the appeal and the claim advanced in the National Court do not support the grant of interim relief under s 5 (1)(b) of the Supreme Court Act. I agree with Mr Mapiso that the interim order will serve little purpose in preventing prejudice to the appellant's claim for relief in the appeal and his claim in the Court below. This consideration is an important and critical consideration that weighs heavily against the appellant and tilts the balance of scale in favour of the respondents. For the foregoing reasons, I refuse the application.

21. The orders of this Court are as follows:

(1) The appellant's application for interim orders is dismissed.
(2) Costs shall be costs in the appeal.

_____________________________________________
Capital Legal Group Lawyers: Lawyer for the Appellant
Solicitor General: Lawyer for the Respondents