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Kai v Tilau [2021] PGNC 270; N9077 (21 May 2021)

N9077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 232 OF 2020

BETWEEN:
JULIE WAREO KAI
Plaintiff

AND:
CONRAD TILAU in his capacity as the
Provincial Administrator for West Sepik Provincial Administration
First Defendant

AND:
SANDAUN PROVINCIAL GOVERNMENT
Second Defendant

Vanimo: Rei, AJ
2021: 21^st May

PRACTICE AND PROCEDURE – Civil Law – Judicial Review - Employment Contract - Defects in pleadings - Matter dismissed

Cases Cited:

Paul Pora -v- The Honourable Justice Sakora, George Manuhue and Orim Karapo constituting The Leadership Tribunal and Panuel Mogish [1996] SC 51
NTN Pty Limited -v- PTC [1987] PNGLR 70
Diro -v- Ombudsman Commission [1991] PNGLR 153
Leto Darius -v- The Commissioner for Police [2001] N2046
Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122
Somare -v- Manek [2011] PNGLR 223
Raim -v- Koren Korua [2010] PGSC8; SC1062

Counsel:

Mr. K Masket, for the Plaintiff
No Appearance for the Defendants

RULING ON AN APPLICATION FOR LEAVE TO SEEK JUDICIAL REVIEW

21^st May, 2021

1. REI AJ: BACKGROUND FACTS: The Plaintiff was previously employed as the Executive Manageress, Corporate Services held against Grade 18 Position No. WSA EX.013 within the West Sepik Provincial Administration set up.

2. The basis of this leave application was that the contract of employment of the Plaintiff entered and executed with the Sandaun Provincial Government Administration was prematurely terminated and (she) was demoted two levels from her substantive salary level and made unattached. Subsequently, she was transferred to the Community Development Division of the Sandaun Provincial Government.

3. Being aggrieved with that decision, the Plaintiff lodged a review to the Public Services Commission (“PSC”) and The PSC reviewed that decision and quashed it. A decision was made which was a recommendation to the Sandaun Provincial Government Administration for her reinstatement to her previously contracted position.

4. The West Sepik Provincial Government Administration refused to comply with the recommendation of the PSC.

5. On the 5^th of August 2020, the Plaintiff filed an application for the judicial review of the decision of the Sandaun Provincial Government Administration not to reinstate her. She also filed a Statement in Support of that application pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, a Notice of Motion together with her own supporting Affidavit.

6. The Plaintiff did not specify the date of the decision of the Sandaun Provincial Government Administration which refused the recommendation of the PSC.

HEARING OF THE LEAVE APPLICATION

7. The application for leave seeking judicial review was heard on the 21^st of May 2021.
.
8. Counsel for the Plaintiff submitted that the Plaintiff has sufficient interest and that there is prima facie an arguable case.

9. I was reminded of the law relating to judicial review in this matter.

10. The cases of Paul Pora -v- The Honourable Justice Sakora, George Manuhu and Orim Karapo constituting The Leadership Tribunal and Panuel Mogish [1996] SC 51; NTN Pty Limited -v- PTC [1987] PNGLR 70; Diro -v- Ombudsman Commission [1991] PNGLR 153; Leto Darius -v- The Commissioner for Police [2001] N2046; Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122 deal with the manner in which leave should be granted.

DECISION

11. While I am satisfied that the Plaintiff has the locus standi to bring this action as she is directly affected and that there is seriously an arguable case since the Sandaun Provincial Administration has refused to comply with the recommendation(s) of the PSC to reinstate her since the disciplinary procedure set out under the Public Service Management Act was not followed when disciplining the Plaintiff, she has failed to properly plead relevant facts in the Originating Summons, the Statement in Support and the Notice of Motion forming the basis of her application.

12. For clarity reasons, I quote the pleadings in the Originating Summons and the Notice of Motion as follows:

“THE PLAINTIFF CLAIMS

“(1) Leave to apply for judicial review of the First Defendant’s decision to:

(i) Terminate Julie Wareo Kai’s contract of employment with the East Sepik Provincial Administration;

(ii) Demote Julie Wareo Kai down to two (2) levels below her substantive salary level; and

(iii) Make Julie Wareo Kai an unattached officer and redeploying her to the Community Development Division of the Provincial Administration”.

13. The Notice of Motion filed on 5^th August 2020 on the other hand seeks the following Order(s):

“(1)An Order granting leave to apply for judicial review of the decision of the First Defendant not to implement the decision of the PSC dated 10^th February 2020 in reinstating the Plaintiff to her substantive position as Executive Manageress, Corporate Services, Grade 18, Position No. WSAEX 013 with the West Sepik Provincial Administration”.

14. It is noted from the contents of the pleadings contained in the Original Summons and the Notice of Motion that the following information or details were not properly and fully pleaded or disclosed:

(i) The date of termination of the Plaintiff, description of position demoted to, the decision of the Sandaun Provincial Government Administration not to implement the decision of the PSC.

(ii) The originating summons fails to succinctly plead dates on which the Sandaun Provincial Government Administration terminated the Plaintiff nor the date of its decision not to implement the decision of the PSC, and the date of the decision of the PSC and its motive.

15. In order to form the basis of her application, it is a strict legal requirement that all material facts relied on be clearly and precisely pleaded in the Originating Summons and Notice of Motion at the leave stage.

16. Absence of these material facts in the pleading should automatically result in the application invalid and should be dismissed.

17. The law on pleadings is clear and settled which states emphatically that necessary and relevant facts be succinctly pleaded so that the other party has the opportunity to competently address them in his/her defence. This is clearly stated in many cases dealing with pleadings: Raim -v- Koren Korua [2010] PGSC8; SC1062. In judicial review matters, it has been said by the Supreme Court of Justice in Somare -v- Manek [2011] PNGLR 223 an applicant is under an obligation to put to the Court all of his evidence and relevant considerations so that a ruling against the application, subject to appeal, is the end of the matter. All material facts must be disclosed which includes facts known to the applicant and those he would have known if he had made appropriate enquiries before making the application.

18. The Originating Summons that was filed by the Plaintiff did not plead material facts as it only pleads for leave to be granted for judicial review of the unspecified decision of the First and Second Defendants. I, however, note that the Statement in Support filed pursuant to Order 16 Rule 3(3) discloses some of the facts. But those were not pleaded in the Originating Summons seeking leave for judicial review which merely seeks a blanket order for leave to apply for judicial review. The Plaintiff did not seek for leave to amend which may have been granted. But this was not done.

19. Although the Statement in Support provides some particulars of the claim, such particulars were not pleaded in the Originating Summons or Notice of Motion thereby posing issues as to the jurisdictional basis of the application for leave for judicial review. Had leave been granted the Court could have been seen to be doing so without any jurisdictional basis properly pleaded and cited in the Originating Summons or the Notice of Motion; the application for leave being incompetent.

20. The option to seek leave to amend or even to seek an adjournment to July 2021 to correct these patent errors was not sought.

21. As if this was going to happen, I enquired of Counsel whether he was prepared to proceed to which he emphatically said he would.

22. After hearing all the arguments as encapsulated in his written submission, I asked Counsel to enlighten me on the details of the pleadings contained in the Originating Summons and Notice of Motion.

23. Counsel was unable to assist me on this as he himself noted the serious defects in his pleadings. I then slowly read out the contents of the Originating Summons and the Notice of Motion to the Counsel and asked if he agrees that there was a serious lack of particularity. He did agree.

24. In all fairness to the Defendants, I refused to grant leave and Order that the entire proceedings be dismissed.

25. The matter stands dismissed.
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Public Solicitor: Lawyer for the Plaintiff