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Airi v Bire [2020] PGNC 49; N8227 (6 March 2020)

N8227

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 380 of 2019

JULIE AIRI
Plaintiff

V
PETER BIRE as the then Director of the National Aids Council Secretariat
First Defendant

AND
DR NICK DALA in his capacity as Director of the National Aids Council
Second Defendant

AND
NATIONAL AIDS COUNCIL
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 05^th March

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Order 16 Rules 3 NCR – Application for leave – Locus Standi – effected by decision –reasonable explanation for delay – Arguable case – Alternative remedies exhausted – leave for Judicial Review granted – cost follow event.

Counsel:

F. Kulala, for Applicant
No appearance for Defendants
RULING
06^th March, 2020

1. MIVIRI, J: This is the ruling on an application seeking leave for judicial review under Order 16 Rule 3 of the National Court Rules against the decision of the First defendant in terminating the services of the applicant.
   
2. The documents relating to the matter have been served on the office of the Solicitor General on the 3^rd December 2019 affidavit dated 04^th December 2019 evidencing by one Gabriel Kapi. In addition affidavit by counsel before the court dated the 5^th December 2019 annexing letter to Solicitor General dated the same of the listing of the matter before this court but not proceeded because of the non attendance of counsel from that office. And a forewarning in that letter of proceeding ex parte in the event of non appearance to defend. And the same has been the case here when the matter came before me on the 2^nd March 2020 given that history. It was further adjourned to today to allow appearance by the State and as evident not the case now. Consequently in the exercise of the discretion of the court the matter has proceeded ex parte given. More than ample opportunity has been served on the State and the defendants to make appearance and defend.
   
3. These evidences laxity that must be weeded out to enhance Justice to the prime for all man and citizens especially where it involves the State, its instrumentalities, agencies and departments. After all the State is the People of Papua New Guinea and the failure to serve and to provide as here must not stand in the way of Justice. The court will be minded to adhere. Further it is no fault of hers that there is a process to attain legal aid within the office of the Public Solicitors that has also contributed to her demise in her cause before this court. Like many others in the public falling into this category for legal aid she must not be denied in law what is due her by this fact.
   
4. From the material before me firstly the originating summons filed the 01^st May 2019, the Statement pursuant to Order 16 rule 16 (3) (2) (a) of the National Court Rules, Affidavit Verifying the Statement filed under Order 16 rule 3 (2a), Notice for Application for Judicial Review, and the affidavit of the applicant the following have been established prima facie.
   
5. The applicant has standing or locus standi; she has sufficient interest in the matter. She was employed by the defendants on January 2010 as Manageress of Behavioural Research and Information. And she formally signed a three-year contract of employment on 28^th October 2011 with the defendants. That the decision of the defendants commenced by way of a notice of suspension on the 3^rd October 2013 charged her with various offences set out in her affidavit paragraph 7. She replied unsuccessfully only to be suspended yet again on the 31^st October 2013 with further four charges laid.
   
6. By letter of the 15^th November 2013 she sought review of the decision of the defendants to the Public Services Commission. And whilst that was underway on the 14^th February 2014 she was served with a termination letter from the defendants dismissing her from the public service. This letter was dated the 4^th February 2014. Prompting her 24^th February 2014 to write a second time to the Public Services Commission requesting review of her termination. From which the Public Services Commission summoned her appearance before it on the 24^th April 2014 for the hearing of her requested review. In turn it served a letter upon the first defendant reminding him of 14 days notice to reply to the application by the plaintiff applying for review. The first defendant complied with a reply to the Public Service Commission on the 12^th May 2014. To which the plaintiff rebut by letter dated the 10^th June 2014. Finally on the 18^th December 2014 the Public Services Commission decided to annul the decision of the First defendant directed him to reinstate the plaintiff and to pay all losses of salary and entitlements retrospect to the date of her termination because the decision to terminate was made in breach of clause 28.1 of her contract with the first defendant.
   
7. Up to the date of this Judgment that decision has not been implemented hence this application for leave. Which is in the light of section 18 (3) of the Public Service Management Act that there is no power in excess for the defendants not to comply with that decision within 30 days thereafter. And its legal effects of being law to be implemented and adhered to: Asiki v Zurenuoc , Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Here it is 5 years 3 months well over that period of 30 days that lapsed already as of Friday 23^rd January 2015.
   
8. Prima facie that on itself shows and makes out an arguable case in favour of the applicant for the grant of leave applied. This ground succeeds in the application for leave in favour of the applicant. She is directly affected by the decision of the defendants the balance is discharged in her favour in respect of this ground.
   
9. And her evidence establishes on the required balance that the delay in the bringing of the matter is not entirely pinned against her but of the defendants not implementing the decision of the Public Service Commission. And following of the break down in her emotional status leading to attempted suicide and the injuries emanating that riddled her with serious life threatening injuries only to be saved and casted remaining with medical complications dwelling within her up to this matter. Her affidavit substantially illuminates this very well. It is therefore reasonable and substantial basis upon which she could not have acted and brought this matter within the minimum of 4 months under the rules. There is therefore in my view no undue delay given because reasonable and cogent reasons have been illuminated and not negatived. And the ring of Justice would be denied her cause if she is to be held defeated by that fact with the strict compliance insisted by order 16 rules 4 of the National Court Rules. The proceedings were filed on the 01^st May 2019 and she was terminated on 14^th February 2014. Clearly strict insistence for non compliance is in order as that is to close 5 years at the prime after the fact. But the converse is the facts set out emanating after which in my view outweigh and sway towards a grant of Justice rather than denial given all for and against. Leave would therefore lie.
   
10. She has an arguable case prima facie discharged on the required balance in her favour demonstrated. She challenges the process that action of the first defendant was ultra vires and therefore had no legal basis to sustain and stand. There was therefore prima facie error of law to dismiss her. This evidence sustains further that there is arguable case demonstrated to the required balance to sway in her favour.
    
11. She has exhausted the internal administrative process set out by her contract of employment which is set out by the excerpts of her evidence that are set out above. That process has led her to the Public Services Commission which has annulled her termination.
    
12. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc, Provincial Administrator (supra). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Given what is set out above her cause for leave is within.
    
13. I am satisfied on the material that she has presented that she be accorded leave to apply for Judicial Review. Consequently, she is directed to file and serve the Substantive Notice of motion and all other documents on all the parties effected. The matter is formally adjourned for directions hearing Monday 9^th March 2020 at 9.30am before this court. It is further in her favour to expedite to get draft directions in place to liaise with the office of the Solicitor General to bring this matter to a close given all set out above.
    
14. Costs will be in the cause.
    

Orders Accordingly.
__________________________________________________________________
Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant