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Dopsie v Vanuga [2021] PGNC 301; N9058 (10 August 2021)

N9058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 77 OF 2021 (IECMS)

BETWEEN:
PAUL DOPSIE
Plaintiff

AND:
PALA VANUGA ACTING EXECUTIVE MANAGER NATIONAL DEPARTMENT OF HEALTH
First Defendant

AND:
DR OSBORNE LIKO IN HIS CAPACITY AS SECRETARY FOR THE NATIONAL DEPARTMENT OF HEALTH
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 10^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Notice of Motion – Statement pursuant to Order 16 Rule 3 (2) (a) NCR –Affidavit Verifying Facts – Affidavit in Support Plaintiff Applicant – Locus Standie – Arguable Case – Undue Delay – Exhaustion of Internal Process Procedure – Merit in Application – Materials Sufficient –Leave Granted for Judicial Review – cost follow event.

Cases Cited:

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892

Counsel:
J. Napu, for the Plaintiff
H. Wangi, for State

RULING

10^th August, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons pursuant to Order 16 Rule 3 (1) of the National Court Rules, “the Rules” to apply for leave for judicial review for the grant of Mandamus to compel the defendants to implement the decision of the Public Services Commission dated the 03^rd November 2020.
   
2. That decision was in the following terms:
   
   • (a) The Commission annuls the decision of the then Secretary for National Department of Health dated 29^th November 2019 which effectively suspended the Applicant, Mr. Paul Dopsie from the office.
   • (b) The applicant be reinstated to his substantive position held prior to his suspension from Office; and
   • (c) The Salaries and other contractual benefits lost (if any) as a direct result of the suspension be paid with backdated effect to the date of suspension.
   • (d) Pursuant to Order 16 Rule 5 of the National Court Rules, this Matter be set down for direction for further progressing should leave be granted.
     
3. The plaintiff relies on the following documents for leave to be granted for Judicial review. A notice of motion, the statement in support pursuant to Order 3 (2) (a) of the National Court Rules, Affidavit verifying the facts, and the affidavit of the plaintiff sworn of the 24^th May 2021 filed of the 31^st May 2021. All have been served particulars deposed in the affidavit of service of Thomas Barry Legal Clerk with the plaintiff’s lawyers. That service was effected on the 15^th June 2021 upon the executive secretary to the Office of the Executive Manager. And proofed by annexure “A” of that affidavit Service details form of that firm.
   
4. The relevant details of the affidavit of Paul Dopsie the plaintiff is that he was employed by the National Department of Health as Senior Contract Officer on the position of Executive Manager Corporate Services Grade 18 on three (3) years Performance Based Contract (annexure “A”), which was to have expired on the 21^st December 2021. On the 29^th November 2019 Plaintiff was suspended (annexure “B”) from the office with pay under schedule 3 of the Contract, by then Secretary Mr. Pascoe Kase. This was pending an investigations into serious allegations levelled at him made during the Public Accounts Committee meeting held on the 25^th November 2015 by one Mr. Harupe Peke. He is the Managing Director of Global Customs & Forwarding Limited contracted to provide logical Services for Medical Supplies with the National Department of Health, where the plaintiff was alleged to have solicited and extorted substantial amounts of money in illegal fees exchanged for approving payments made for the Company Services invoices. That is annexure “C” of the Newspaper cuttings relating. And which complaint was withdrawn (annexure“D”) by the Complainant against the plaintiff.
   
5. Plaintiff was late in lodging before the Public Services Commission but was granted on the material that he advanced. And the review sustained that the initial decision by the Health Department of the 29^th November 2019 was annulled. He was reinstated to his position held prior to the suspension from office. His salaries and contractual benefits lost if any as a direct result of the suspension were to be paid back dated effective to the date of his suspension. Annexure “E” is that decision by the PSC. The PSC upheld also on the basis that the complaint against the plaintiff were withdrawn by the complainant.
   
6. Submission was made by the State on the basis of this annexure that it is clear that investigations are intended both administratively and criminally. But each has since the 21^st December 2020 up to the date of this judgment no proof has been filed that that is the current status of the matter. It is broadcasted to the plaintiff in that subject of his reinstatement, but it is not clear when that will happen. It is now eight (8) months since that letter. No evidence has been led of any suspension or charges either administratively or criminally. And this is in the face of the pending facts set out above. Unless and until there are formally suspension and charges the PSC Decision is outstanding to be implemented in all frontiers as made. It has not been disputed formally by the law relating. Nor is there any application before the Court to vary its execution. Therefore, for all intent and purposes it must be executed as the position in law as current.
   
7. This is a matter where the complaint has been withdrawn by the principal complainant who is material to the maintenance of the administrative proceedings against the plaintiff. And similarly with the Criminal Complaint. It must be clear that that is the evidence primary supported by any documents in any on the allegations. As it is withdrawn and does not stand against the plaintiff.
   
8. That in itself is an arguable basis for this proceedings to advance to the proper hearing to settle the issue. It is leaning more to be granted leave than otherwise.
   
9. There is no delay in the matter by the plaintiff and that is clear by the decision of the PSC from which derive this proceedings. It is self-explained and needs no more than what is on that decision. Leave was granted outside the time limitations allowed because there was merit in the application. That remains here and has not altered. Delay is not inexcusable and inordinate and so this ground is made out and discharges the balance required in favour of the applicant.
   
10. He has been seriously affected by the decision and has legitimate interests that must be protected and seen out in a proper process of law. This stemmed from a public hearing in parliament before the public Accounts committee published in the newspapers and therefore would be arguable to have its day in court to settle what has been raised. It is therefore arguable as well as the plaintiff has demonstrated on the required balance that he has standing to pursue as pleaded. Accordingly, this ground succeeds in his favour.
    
11. That leave whether or not internal process and procedures have been exhausted. Here the evidence is very clear this is leave to seek mandamus, sought out from the decision by the PSC that the National Department of Health has agreed to partially implement and not fully. Particularly as to his placement into his position occupied prior to the allegations. Given therefore there is evidence beyond the balance required that internal processes has been exhausted and this ground is upheld in favour of the plaintiff.
    
12. The totality is that all grounds are made out because Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). That is clear by the evidence depicted and there lies leave for judicial review as pleaded.
    
13. Because it is prima facie and that is clear by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 that the discretion of the court does lie here given these facts. There is merit to pursue in his favour as he has contended. He is not a busy body because judicial review is confined to examining the process to the decision. It is not that he has been suspended which is part of that process but the entire process has been completed, Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892 (6 December 2012). He does qualify that leave be accorded here. Accordingly, his action for leave is upheld and granted in the terms of the originating summons forthwith. Cost will follow the event
    
14. The formal orders of the court are:
    
    • (1) The application of the Plaintiff is upheld.
    • (2) Leave is granted for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules.
    • (3) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants