N7571

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS  (JR) 824 of 2016

BETWEEN:
BRUCE GIGMAI
Plaintiff

AND
DR PHILIP KEREME
as the Chairman of the Public Service Commission
First Defendant

AND
GUL GORGOM
as the Provincial Administrator of the Western Provincial Administration
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson J
2018: 4 & 25 September

JUDICIAL REVIEW - PRACTICE AND PROCEDURE - Application for Leave to Proceed by way of Judicial Review – suspension of officer – arguable case – exhaustion of remedies – delay – detrimental to good administration.

Counsel

Mr R Pariwa, for the Plaintiff
Ms M Irakau, for the third Defendant

25	September, 2018

1.	THOMPSON J:	This is the hearing of the Plaintiff’s application for Leave to proceed by way of Judicial Review.  

Facts

2.	The Plaintiff is applying for Leave to proceed by way of Judicial Review for certiorari of the decision of the Public Services Commission made on 31 May 2016.  That decision was a Review of a decision to suspend the Plaintiff from his employment with the Western Provincial Administration, which the Plaintiff asserts was made in January 2004.

3.	The period of 4 months from the date of the decision is prescribed by O16 R 4 as the period in which such proceedings can be brought.  In this case, it was 6 months after the PSC decision that these proceedings were filed, and it has now been nearly 2 years since the decision, before the application for leave has been made.  In turn, the PSC decision was made 12 years after the alleged decision to suspend Plaintiff in January 2004, which is now over 14 years ago. 

4.	The Plaintiff has given an explanation for his delay in filing these proceedings outside the 4 month period for certiorari.  He has given some explanation for his delay of nearly 2 years in then making this application.  But his explanation for the delay since the alleged decision in 2004, is not satisfactory.  He took no steps at all to challenge his suspension.  The Plaintiff is not an unsophisticated villager, he is a University graduate and aware of his rights. If he had in fact been suspended without pay, there is no rational explanation for his failure to take any action for over 10 years. 

5.	Under S 52 of the Public Services Management Act, an officer may be suspended before a charge is laid, which may be removed at any time by the Departmental Head.  The Plaintiff did not apply to the Departmental Head to remove the suspension, and nor did he take any steps to require a charge to be laid or the suspension to be lifted.  

6.	In fact, there is no evidence that the Plaintiff was suspended from his employment.  It is merely his assertion.  There is evidence that in April 2004 the Plaintiff was paid his service entitlements, but that is all.  There is nothing showing if these entitlements were pursuant to long service leave, or pursuant to a resignation, or a termination, or any other reason.  The fact that a lump sum payment was made might give rise to an inference of termination.  It does not provide proof of a suspension, for which lump sum payments are not made.  There is no evidence of a decision to suspend the Plaintiff from his employment, either in January 2004 or on any other date.  

7.	The lack of evidence is why the PSC determined that it was unable to review the decision – the delay was too long, and there were no records of the decision or anything else. 

8.	The Plaintiff asserts that the PSC denied him natural justice because he was not given an opportunity to respond to the second Defendant’s claims before making its’ decision.  The Plaintiff has failed to see that there were no claims made by the second Defendant for him to respond to – 11 years after the alleged suspension, the second Defendant had been unable to locate any records relating to the matter.  The PSC had no evidence before it that any decision had been made, and so found itself unable to Review a decision of which there was no record.  

9.	If there had in fact been a decision to suspend the Plaintiff in 2004, and if he had promptly challenged it, there would have been a record.  Instead, he did nothing for over 10 years, and then was unable to produce any record to support or verify his allegation that a decision had been made to suspend him.    

10.	I turn now to the relevant factors for decision.

11.	The Plaintiff clearly has standing to bring this application.  

12.	There were alternative remedies available to him in 2004 whereby he could have applied to the Departmental Head to remove the suspension, and/or he could have applied to the PSC for a Review.  He did not utilise these remedies.  

13.	In relation to delay, while he has explained the delay in filing these proceedings outside 4 months, and has given some explanation for the nearly 2 years delay in bringing this application for leave, it must be seen in the context of his earlier delay, making it 12 years before filing these proceedings and over 14 years before making the application for leave.    

14.	Both parties have cited numerous cases showing what periods of delay have and have not been found to be inordinate.

15.	Any application for relief arising out of an employment decision made over 14 years earlier, is almost bound to be detrimental to good administration.  Cases such as Talopa v Police Commissioner (2002) N2302 have determined that to grant relief after such a delay, would be detrimental to good administration.      

16.	The Defendants would be substantially prejudiced in this case, even where reinstatement is not sought, where an order for payment of salary and entitlements is sought, backdated to 2004.  Neither the Plaintiff nor the Defendants have been able to produce any relevant records, so that there is no objective basis on which any calculations could be made concerning the Plaintiff’s possible entitlements to his allowances, recreation leave or such like.  As a matter of practicality, it would not be possible for the Defendants to comply with such an order.  

17.	I find that the delay of over 10 years in taking any action to challenge his suspension, combined with the delay of nearly 2 years since filing his application for Judicial Review, is inordinate, and under O 16 R 4 the grant of relief now would be detrimental to good administration.  

18.	Finally, the Plaintiff has shown no valid ground for asserting that the decision of the PSC was made after failing to comply with any procedures or in breach of natural justice.

19.	Despite the long delay of over 10 years, the PSC agreed to hear his application for Review.  The Plaintiff made his application, and was given the opportunity to make his case, which he did.  The Plaintiff produced no record of the alleged decision to suspend him.  It was just an assertion that this was what had happened. 

20.	The PSC found that there were no records available because of the delay, and so they were actually unable to Review the alleged suspension.  In the absence of any documents or records, it was not unreasonable for the PSC to find that it was unable to review a decision said to have been made 10 – 12 years earlier, of which there was no written record.  

21.	In the circumstances, there was no breach of natural justice in the PSC determination that it could not review the alleged suspension.  The PSC had given the Plaintiff the opportunity, even though he was 10 years outside the Review period, to put forward his best case.  Despite this, virtually no records or documents were produced, and none which showed that he had been suspended from his employment in January 2004.

22.	I therefore find that the Plaintiff has not shown that he has an arguable case. 

23.	The application for leave is refused.

Costs

24.	Each party is to pay its own costs.
________________________________________________________________
Office of the Public Solicitor:  Lawyer for the Plaintiff   
Office of the Solicitor General: Lawyer for the First Defendant