Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

James v Pitala [2012] PGNC 147; N4822 (21 September 2012)

N4822

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 505 OF 2012

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL
REVIEW PURSUANT TO ORDER 12 (1) AND ORDER 16 (3) OF THE
NATIONAL COURT RULES

BETWEEN:

MICHAEL JAMES for and on behalf of himself and 24 Others Students of PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT (N0.2)
Applicant/Plaintiffs

AND:

JOACHIM PITALA, CHAIRMAN STUDENTS DISCIPLINARY COMMITTEE
First Defendant

AND:

PROFESSOR PHILIP SIAGURU, in his capacity as the VICE CHANCELLOR OF PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES AND ENVIRONMENT
Second Defendant

AND:

THE UNIVERSITY OF NATURAL RESOURCES AND ENVORONMENT
Third Defendant

Kokopo: Lenalia J
2012: 14th & 21st September

JUDICIAL REVIEW – Application for stay – Injunctive relief sought – For the Court to stay suspension orders by the Disciplinary Committee which decision is now awaiting judicial review – Application for stay of proceedings following grant of leave to seek judicial review – National Court Rules, Order 16, Rule 3(8) – principles to apply when determining whether to grant a stay of proceedings.

PRACTICE & PROCEDURE – Would a stay or injunctive order preserve the status-quo and would it serve the purpose intended by plaintiffs since the Judicial Review has not been decided? – An Application for stay is not appropriate in this instance – Application refused.

Cases cited.

Robinson-v-National Airlines Commission [1983] PNGLR 476
Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Ila Geno and Others-v-Independent State of Papua New Guinea [1993] PNGLR 22
PNG-v-Gulf Provincial Government [1994] PNGLR 34
Brigadier General Jerry Singorok-v-State (1997) N1590
PNG-v- Daniel Mollen [1997] PNGLR 193
Rimbink Pato-v-Anthony Mangin & 4 Others (1999) SC622
Post PNG Limited-v-Westpac Bank PNG Limited [1999] PNGRL 582
Gary McHardy-v- Prosec Security & Communications Limited [2000] PNGLR 279
Peter Makeng-v-Timbers (PNG) Limited (2008) N3317
Zachary Gelu & 2 Others-v- Sir Michael Somare & 2 Others (2008) N3526

Counsel

Mr. T. Potoura, for Applicant/Plaintiffs
No appearances for Defendants

21st September, 2012

1. LENALIA, J. The plaintiffs were students at the University of Vudal until they were suspended on 24th June 2012. They were suspended following allegations of consumption of liquor on the campus premises. Following their suspension the twenty-four (24) plaintiffs have vacated the University campus and are living off campus in private accommodation. They have been to court twice already and this is their third appearance.

2. On their first appearance, on 7th and 8th August this year, this court refused their application for judicial review because after they were suspended, they appealed to the Vice Chancellor and such process had not been completed. In other words, they had not exhausted alternative statutory or administrative remedies as the principles stated in cases like Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122 or the case of Ila Geno and Others v Independent State of Papua New Guinea [1993] PNGLR 22 say.

3. Their appeal was heard on 6th August, this year. After their appeal was heard, they came to court the second time. Then on 5th this month they applied for leave for them to apply for judicial review. The following day namely 6th, this Court made a ruling on which, it granted them leave to apply for judicial review. The judicial review has not been heard.

4. Up to this stage, the judicial review has not been heard. What the plaintiffs have now done or taken is another cause of action on which they have applied for stay orders pursuant to O.16 r.3. (8)(b) and O.12 r.1 of the National Court Rules.

5. Mr. Potoura arguing this application submitted that their clients are entitled to the stay orders they seek in order for them to wait for the outcome of the review. Counsel relied on O.16 r.3 and (8)(a) where it states that, where leave to apply for judicial review has been granted, the grant of leave operates as a stay in appropriate cases.

6. Counsel cited cases such as Robinson-v-National Airlines Commission [1983] PNGLR 476, Brigadier General Jerry Singorok-v-State (1997) N1590 or Peter Makeng-v-Timbers (PNG) Limited (2008) N3317 and others for the proposition that, injunctive reliefs are granted to maintain the status quo where there is an arguable case. Such applications are granted at the discretion of the Court.

Application of Law

7. The relevant principles in relation to grant of stay or refusing to grant such order are well settled. Principles on the grant of stay are well settled in this jurisdiction. The case now before this court concerns an application for a permanent stay order. The principles in relation to grant of a stay were settled in the case Gary McHardy-v- Prosec Security & Communications Limited [2000] PNGLR 279. The Supreme Court said at page 8 that the principles whether or not to grant the stay order will be applied, in the exercise of discretion. They are;

➢ Whether the leave to appeal is required and whether it has been obtained?
➢ Whether there has been any delay in making the application?
➢ Possible hardship, inconvenience or prejudice to either party;
➢ Return of the judgment sought to be stayed;
➢ The financial ability of the applicant;
➢ Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
➢ Whether on the face of the record of the judgment, there may be indicated an apparent error of law or procedure;
➢ The overall interest of justice;
➢ Balance of convenience;
➢ Whether damages would be a sufficient remedy?

8. In Zachary Gelu & 2 Others-v- Sir Michael Somare & 2 Others (2008) N3526, the Court held that an applicant seeking to stay on-going investigation being conducted by a proper authority under the laws of Papua New Guinea, must show that there is a strong and arguable case.

9. In that case, the trial judge relied on the case of Rimbink Pato-v-Anthony Mangin & 4 Others (1999) SC622 in saying that the Court should exercise considerable caution before deciding to stay investigations of criminal or other allegedly wrongful or improper conduct being conducted by the Police Force or other proper investigating authorities lawfully set up under the laws of this country.

10. The above principles need to be looked at in order to decide if the applicants' application should be granted or not. I adopt what Cannings J said in Zachary Gelu & 2 Others-v-Sir Michael Somare & 2 Others (supra) that when the court is considering an application for a stay of proceedings following the grant of leave for judicial review, special considerations should be considered.

11. First, it is necessary for the court to make an assessment of the strength of the case and arguments for or against such application. It is not sufficient for an applicant to just point to the fact that they have an arguable case. Obviously on the face of it, on the instant case, there may be an arguable case.

12. Otherwise, leave would not have been granted if there were not one. I agree with the law stated in the above case that, the standard is higher when the court is deciding whether to grant a stay of proceedings or as in this case for the court to order the defendants to stay the suspension order by the First Defendant which was affirmed by the Second Defendant on appeal.

13. In PNG-v-Gulf Provincial Government [1994] PNGLR 34, the Supreme Court held that, the power of that Court to grant a stay pending an appeal is an unfettered discretion but should only be granted where "special" or "exceptional circumstances are shown".

14. Then in Post PNG Limited-v-Westpac Bank PNG Limited [1999] PNGRL 582 considered that the earlier case of PNG & The Commissioner, Correctional Services-v-Daniel Mollen [1997] PNGLR 193 had sufficiently clarified the test and it concluded that, the previous test of "special" or "exceptional circumstances" no longer applied and that an applicant for stay need only show or demonstrate "a reason" or "an appropriate case" by evidence to warrant the exercise of discretion in his favour.

15. The plaintiffs/applicants are actually applying for suspending the operation of the Suspension Notices issued by the First Defendant which suspended them then they appealed from that decision to the Second Defendant. On 6th August 2012 the Second Defendant rejected their appeals and upheld the decision of terminating the applicants for 2 years starting on 24th June 2012.

16. Obviously the plaintiffs have a serious case and not only speculative one which will have a real possibility of ultimate success. The plaintiffs have filed undertakings as to damages. The next issue is does the balance of convenience require that the stay orders sought should be granted?

17. I note here that, the applicants seek orders to stay the decision on their suspension which dates back to the beginning of this semester. They also seek orders for them to return to classes and for the court to order the University to conduct remedial classes in order for them to make up for what they have lost.

18. Do the plaintiffs have any equitable rights or interests on the outcome of the review which need to be protected and if so, does the balance of convenience favours the grant of a stay order they seek? The first part of the question can be answered in the affirmative.

19. However on the issue of whether the balance of convenience favours the granting of a stay, I am of the view that, this is now September 2012. Half of the second semester of this year is already gone or almost gone by today.

20. On this application I note from Order 2 of document 4 filed on 22nd August this year (Notice of Motion) that the plaintiffs seek an order under O.16 3 (8)(b) and O.12 1of the National Court Rules for them to re-enroll for the second semester of 2012 academic year and for remedial classes to be arranged for them to attend pending the substantive review.

21. The case of Robinson-v-National Airlines Commission (supra) establishes that in a master and servant relationship in a contract of employment, an injunction will not in ordinary circumstances be granted to compel either the master or servant to continue with their personal relationship which has become noxious to either of them.

22. This court is mindful about any irrationality or unreasonableness which the orders sought might create. Having heard Mr. Potoura address the court on issues faced by the plaintiffs, what guaranty is there that, if the students are ordered to refit themselves into the campus premises, they will be treated justly and fairly having in mind, the pending review case.

23. Would grant of the stay be unreasonable having regard to the effect that it will have on the University's administration? I am of the view that, this application may be unreasonable under the Wednesbury principles, i.e. under the principles developed in the classic case of Associated Provincial Picture Houses Ltd-v-Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

24. The test to apply here is, "is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision.": (See Paul Saboko-v-Commissioner of Police (2006) N2975.)

25. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other errors of law or procedures involved in the process.

26. In this case, the court understands that the students are pursuing various disciplines of professional studies. Nobody represented the University in all three appearances of the plaintiffs/applicants to air the views held by the defendants.
No one knows what the University is thinking about this case.

27. The Plaintiffs are students coming from all over the country. There is no guaranty as to the status and safety of the plaintiffs if the defendants are ordered to effect the re-enrolment of the plaintiffs/students into the Third Defendant's campus.

28. Even that, the plaintiffs/applicants have not given any evidence as to when this semester will end. From reliable sources, the University will close by the third week of next month. To be more specific, classes in all tertiary institutions in this Province might end by the end of October 2012. This is due to the incoming Papua New Guinea Grass-Roots games that will be hosted by East New Britain Province here in Kokopo.

29. If the Court is going to order what the applicants seek, it will be a burden to the University in terms of extra costs to maintain the plaintiffs on the campus after its closure. As well the plaintiffs will have difficulty in trying to catch up on what they have missed.

30. In the circumstances of this case, I refuse this application. The court orders the parties to meet their own costs.

__________________________________________________________

Paul Paraka Lawyers: Lawyer for the Plaintiffs
No Appearances for the three Defendants.