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Warokra v Wereh [2017] PGNC 381; N7095 (11 December 2017)

N7095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 158 OF 2015

BETWEEN:
BONAVENTURE WAROKRA
First Plaintiff

AND:
LAWRENCE WALEMEI
Second Plaintiff

AND:
DAVID WEREH, SECRETARY DEPARTMENT OF WORKS
First Defendant

AND:
PUBLIC SERVICES COMMISSION OF PAPUA NEW GUINEA
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Nablu, J
2017: 7^th June &11^th December

JUDICIAL REVIEW – Review of the decision of the Secretary – relief sought – declaratory orders – damages – application dismissed – O.16 r.1, National Court Rules – incorrect relief sought – judicial review application dismissed.

Cases cited:

No cases cited.

Counsel:
L Baida, for the Plaintiff
N Yano, for the First and Second Defendants

JUDGEMENT

11^th December, 2017

1. NABLU, J: Bonaventure Warokra and Lawrence Walemei were granted leave to review the decision of the Secretary for the Department of Works to sideline them from their substantive positions and then proceed on to suspend, charge them for disciplinary offences and then consequently dismiss them from the Public Service. The plaintiffs were also granted leave to review the decision of the second defendant in affirming the first defendant’s decision on the basis that the decision was made outside of the 90 days statutory period under Section 18 of the Public Services (Management) Act.

2. The plaintiff only seeks declaratory orders and general damages for a range of things such as embarrassment, hardship, suffering mental distress, stress, anxiety, stroke suffered, shame, defamation of character and standing in the community, shun, ridicule, disgrace and shock. I note that the claim for damages is not pleaded in the Statement of Support. The claim for damages for a liquidated amount equivalent to the lost salaries and entitlements is provided in paragraph 10 and 11 of the Substantive Notice of Motion. I will come to that later in my judgment.

3. The background facts are provided in the Statement of Agreed and Disputes Facts. It is agreed that the first and second plaintiff were senior Public Servants employed by the Department of Works inVanimo, Sandaun Province. Mr Warokra was employed as the Provincial Plant Manager. Mr Walemei was employed as the Provincial Transport Supervisor. On 7^th December 2012, Mr Joel Luma, the former Secretary for the Department of Works decided to appoint other officers to those positions and issued a Department Circular to that effect. On 11^th December 2012, the plaintiffs were directed to vacate their offices and barred from the Department office.

4. There are four main grounds of review which the plaintiffs rely on to challenge the decision of the defendants. They are;

1. The first defendant’s decision in Circular No. 105 of 2012 was ultra vires Section 39 of the Public Services (Management) Act. They were unlawfully sidelined and they were not formally suspended or charged for disciplinary offences.
   
2. The decision by the first defendant to suspend the plaintiff on the 25^th June 2013 was unlawful, because their complaint was still under consideration by the Public Services Commission.
   
3. The first defendant’s decision to dismiss the plaintiffs from the Public Service was unlawful because the plaintiffs were not formally charged as required by Section 52 of the Public Services (Management) Act.
   
4. The first defendant’s decision was unreasonable within the Wednesbury sense of unreasonableness. The second defendant’s decision was unlawful because it was made outside the 90 days statutory time limit as prescribed under section 18 of the Public Services (Management) Act.

5. The plaintiffs relied on their affidavits which were filed and contained in the review book.In response the first defendant filed his affidavit on behalf of himself and the State.

6. Before proceeding on to considering this matter, I am of the view that there is a preliminary issue which should be considered first. That is, whether the first and second plaintiff are correctly before this Court. This issue is integral in determining whether this Court has the jurisdiction to consider this application for judicial review. Leave was sought and granted on 6^th November 2015.The plaintiff’s notice of motion seeks the following relief. It is necessary to set out the contents of the notice of motion. The relief stated are as follows:

1. A declaration that the decision of the first defendant (Memorandum Circular No.105 of 2012) dated 7^th December 2012 in appointing other individuals to act in the positions of the plaintiffs is null and void for breaching section 59 of the Constitution which provides for the principle of natural justice – the right to be heard.
   
2. A declaration that the decision of the first defendant (Memorandum Circular No.105 of 2012) dated 7^th December 2012 in appointing other individuals to act in the positions of the plaintiffs is null and void for breaching section 37(1) and (4)(a) of the Constitution which provides for the right of the plaintiffs to be ‘presumed innocent until proven guilty’.
   
3. A declaration that the decision of the first defendant (Memorandum Circular No.105 of 2012) dated 7^th December 2012 in appointing other individuals to act in the positions of the plaintiffs is ultra vires his powers under Section 39 of the Public Services (Management) Act 1995.
   
4. A declaration that the decision of the first defendant (Memorandum Circular No.105 of 2012) dated 7^th December 2012 in appointing other individuals to act in the positions of the plaintiffs is null and void for breaching Sections 18 and 52 of the Public Services (Management) Act 1995.
   
5. A declaration that the decision of the first defendant dated 25^th June 2013 in suspending the plaintiffs is null and void for breaching Section 18 of the Public Services (Management) Act 1995 because their original complaint before the second defendant was still pending determination.
   
6. A declaration that the decision of the first defendant date 1^st August 2013 to dismiss the plaintiffs from the public service is null and void as no charges were brought against and served on the plaintiffs within seven (7) days from the date of suspension as required under Sections 52(4)(a) of the Public Services (Management) Act 1995 and Notice of Suspension as contained in Form DIS15.5 of the National Public Service General Orders (Fourth Edition).
   
7. A declaration that the decision of the first defendant dated 1^st August 2013 to dismiss the plaintiffs from the public service is so unreasonable that no reasonable tribunal would under the circumstances come up with such a decision especially when there are other alternative punishment available under Section 52(5) of the Public Service (Management) Act 1995).
   
8. A declaration of the decision of the second defendant dated 22^nd December 2014 upholding the dismissal of the plaintiffs is null and void because it was made more than sixteen (16) months after the complaint was made to the second defendant (on 1^st March 2013) thereby breaching Section 18(3)(d)(i) of the Public Services (Management) Act 1995.
   
9. The plaintiffs be awarded general damages for the hardship, suffering, mental distress, stress, anxiety, stroke suffered, shame, embarrassment, defamation of character and standing in the community, shun, ridicule, disgrace, and shock.
   
10. The plaintiffs be awarded liquidated damages for loss salaries and entitlements that they lost as from the date 7^th December 2012 to the date of entry of court order and interest at eight percent (8%) per annum pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 1962.
    
11. The defendants pay the plaintiffs costs of proceedings to be taxed if not agreed.
    
12. Such further orders the court deem it.

7. Order 16 Rule (1) of the National Court Rules states that;
“

1. An application for an order in the nature of mandamus, prohibition, certiorari or quo warrant shall be made by way of an application for judicial review in accordance with this Order.
   
2. An application for an declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to –
   
   1. the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
      
   2. the nature of the persons and bodies against whom relief may be granted by way of such an order; and
      
   100. all the circumstances of the case,
        

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

8. I am of the view that the applicants are not properly before this Court, they do not seek orders in the nature of certiorari, or mandamus or quo warrant or prohibition. Order 16 Rule 1(2) of the National Court Rules is clear. Declaratory relief are meant to complement the grant of the relief specified in Order 16 Rule 1(1) of the National Court Rules. The Court has the discretion to grant declarations where it is satisfied that it would be just and convenient to do so.

9. It is clear in the evidence before me, in particular the Statement of Support and the substantive Notice of Motion that the relief sought were only declaratory orders. I also note thatthere is no specific claim for damages in the Statement of Support. It would appear that the claim for damages was later pleaded in the substantive Notice of Motion.

10. Where a party only seeks declaratory relief, the proceedings should be instituted by way of an ordinary originating summons. If the applicant seeks damages only, then the appropriate procedure is to file a writ of summons seeking damages for breach of contract or unlawful dismissal.

11. Judicial Review is an exclusive procedure for special category of cases. The Court’s inherent supervisory jurisdiction is only invoked where the applicant seeks orders in the nature of certiorari, mandamus, prohibition and quo warranto.

12. The Court has the discretion to grant damages in a Judicial Review application (see Order 16 Rule 7 of the National Court Rules), however, that claim must be specifically pleaded in the Statement of Support and the applicant would have been entitled to such damages if they had commenced a similar action at the same time. In the present case, the plaintiff did not plead a claim for damages in the Statement of Support.

13. Even though the judicial review claim failed, the Court has the discretion to convert the application to a writ of summons. The statement in support pursuant to Order 16 Rule 3(2) is akin to a Statement of Claim. However, in the present case, to convert the Statement of Support would be an abuse of process in my view. The reason for this is that, the applicants did not plead a claim of damages in their Statement of Support. Notwithstanding that fact, the applicants are not without a remedy, they are still within time to file appropriate civil proceedings to seek damages.

14. For the foregoing reasons and in the exercise of my discretion, the plaintiffs’ application for judicial review is refused and is dismissed. Costs follow the event. The first and second plaintiff are to pay the State’s costs of and incidental to the proceedings to be taxed if not agreed.

Orders accordingly,

Gubon Lawyers: Lawyers for the Plaintiff
Office of the Solicitor-General: Lawyers for the Defendants