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Opiari v Fleming [2020] PGNC 424; N8694 (16 December 2020)

N8694

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 25 OF 2020 (IECMS)

BETWEEN:
NATHANIEL OPIARI
Plaintiff

AND:
PROFESSOR PAUL FLEMING In His Capacity as Pro Vice Chancellor Academic & Student Affairs
First Defendant

AND:
THE UNIVERSITY OF PAPUA NEW GUINEA
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 19^th November,

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case –Internal processes not exhausted – Material relied insufficient – Balance not discharged – Leave refused – cost follow the event.

Cases Cited:

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Innovest td v Pruaitch [2014] PGNC 288; N5949
Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103
Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357
Wartoto v State [2013] PGSC 59; SC1298

Counsel:

F. Kulala, for Plaintiff
T. Cooper, for Defendant
I. Mugugia, for the State

RULING

16^th December, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 2^nd July 2020 under order 16 Rule 3 (2) of the National Court Rules, for leave to review the decision of the first defendant of the 9^th June 2020 in suspending the Plaintiff indefinitely from his studies at the second defendant University pursuant to Order 16 Rule 3 (1) and (2) of the Rules and the Constitution section 155 (4).
   
2. That is the language of the pleading in the originating summons. It is underlined in bold because it constitutes one of the four basic requirements to be satisfied on the balance of probabilities before leave is granted an applicant as here. It is explicit and clear that internal disciplinary processes and proceedings have not been exhausted. Only suspension has taken place there is no decision relating to that suspension or emanating out of it as to what entails the plaintiff as a result of the alleged conduct in question on that day. It means for the purposes of this proceeding that Jurisdiction of this Court has not been invoked to step into an internal process yet to be completed. There is no power in the Court to circumvent an internal disciplinary process and procedure: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70.
   
3. The reason is quite simple judicial review is not for busy bodies and the like it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent, Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). And these are not mere assertions but is the law enforced in all spheres that judicial review is open to Innovest td v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
4. The balance is beyond preponderance which has not been met by the plaintiff/applicant here, because he does not have standing in the matter. The decision completing the circle of Student discipline is not before the Court. Because suspension as pleaded is the beginning of the internal process of discipline there. It is not the end. The end will come after all are exhausted. It has not been exhausted and so is not in the hands of the Court but in the hands of the defendants yet to be completed. It will not be taken out of their hands. The Court will not substitute an administrative agency of the State in its duties to its mandate by law.
   

5. It will be only when in the completion of that internal process, there is no recourse to the hands of the law can there be proper basis to be reviewed: Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103 (2 July 2019). It is fundamental and reinforced that the right to be heard is observed where a right is seriously affected it has been affirmed where observance has not eventuated: Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 (4 July 2014). That is not the case here by the pleadings because suspension has taken place. It has begun the process by law. It will not be disturbed by this court. And this is clear from Wartoto v State [2013] PGSC 59; SC1298 (15 November 2013).

6. I have considered at length the material advanced by the plaintiff/applicant in particular and of immediate relevance the order 16 Statement, the affidavit verifying that Statement, the affidavit in support all dated the 2^nd July 2020, including the Supplementary affidavit of the 28^th August 2020 of the plaintiff. I find no cause to deviate because the balance by that material is substantially not in favour of the application for leave to be granted. It is not arguable to proceed as it is not, nor can it be considered delayed where the process internally has not been exhausted to its brim. It would not be appropriately before me by law and therefore will not be the subject of determination here. Each case is determined on its own facts here. Quite plainly there is no merit to grant leave for judicial review here.

7. It would be an error of law to ignore and venture into the unstable platform that has been built by the pleadings of the plaintiff to grant leave. The balance is seriously against the grant and in all the circumstances set out above, leave is denied and refused with costs to follow the event. By section 155 (4) of the Constitution and Order 16 rule 13 (13) (2) (ii) of the National Court Rules the proceedings disclose no reasonable cause of action and are an abuse of the process of court pursuant to Order 12 Rule 40 (1) of the Rules. And therefore, is hereby dismissed in its entirety forthwith with costs.

8. The formal orders of the Court are:

(i) Leave is refused for judicial review.
(ii) The proceedings are dismissed forthwith for abuse of process and for disclosing no cause of action.
(iii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff

Office of the Solicitor General: Lawyer for the State

T.L. Cooper Lawyers: Lawyer for the First & Second Defendants