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Lenturut v Akipe [2021] PGNC 415; N9148 (17 September 2021)

N9148

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 67 OF 2020 (IECMS)


BETWEEN:
DORIS LENTURUT
Plaintiff


AND:
JOHN AKIPE AS SECRETARY FOR DEPARTMENT OF DEFENCE
First Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 15th & 17th September


PRACTICE & PROCEDURE – Judicial Review & appeals –Notice of Motion First & Second – Order 16 Rule 8(1) & 13 (13)NCR – Interim Stay – Locus Standi – Arguable cause – Balance of Convenience – Whether Damages Adequate Remedy – Leave granted for Judicial Review – Pending Substantive Notice of Motion - Mandamus– cost follow event.


Cases Cited:


Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Vakinap v Kambanei [2004] PGNC 264; N3094
McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646


Counsel:


L. Tangua, for Plaintiff
H. Wangi, for Defendant


RULING


17h September, 2021

  1. MIVIRI, J: This is the ruling on the notice of motion of the 06th September 2021 moved by the Plaintiff for Stay of the restructure and recruitment exercise or appointment for the position of FAS Corporate Affairs of the Department of Defence Position No DCA 001 or any renamed position(s) under the new structure which is/are related to that position including FAS Estates & Infrastructure Position No DEL 001 until the final determination of this proceedings.
  2. She seeks pursuant to Order 16 Rule 8 (1) & 13 (13) of the Rules of Court. And it is also sought in similar terms against the Department of Personal Management and its respective servants and agents discharged to restraint in similar relating.
  3. Leave has been accorded the plaintiff for substantive judicial review for mandamus on the 25th June 2021 by this Court. It is clear that from that day up to the present would be almost three months for the plaintiff to move in this terms. She has sought no leave to withdraw an earlier motion filed of the 03rd of December 2020 in similar as the present. It is pleaded as item one of the present motion that leave be accorded for the withdrawal of that motion. The plaintiff agitated upon when given opportunity to reply to defence submission.
  4. It is clear that the intentions are there to formally withdraw the earlier motion and to rely on the present of the 06th September 2021. Accordingly leave is granted for the withdrawal of that notice of motion in similar terms relying on the same provisions of the rules for the withdrawal here. Leave is granted for its withdrawal forthwith.
  5. The applicant relies on her affidavit filed of the 02nd September 2021. She deposes relevantly by annexure “D, E, F, G,” that the position she held then before the subject of the proceedings arose is approved for restructure as of the 25th May 2021 and Department of Personal Management confirms that fact by that letter. Which is implementing Circular instruction No 08 of 2020 by the Department of Personal Management. And the Department of Defence is implementing by the restructure approved. And a proposed department of approved Structure 2020 is listed and attached including the position that the applicant prays for here.
  6. The Secretary of the Department of Defence Hari John Akipe has filed an affidavit of the 07th September 2021 and deposes relevantly that the subject restructure and readvertisement of all the positions is not to avoid the court proceedings and its ramifications it is a long history dating to 24th November 2020. It has rendered all positions vacant and all officers unattached. He confirms the letter that the plaintiff has placed set out above. And since the positions have all been advertised as of the 15th June 2021 annexure “C” to his affidavit. All were screened with the applications that were lodged with interviews of the applicants concluded as of the 25th August 2021. And Selection would be conducted on 31st August 2021 annexure “E” of his affidavit. There is therefore impending need to immediately fill those position so as to tie in with budgetary allocations for the new year 2022.
  7. That maybe so but there are pertinent points that were addressed in the leave application which are and remain relevant here in the determination of whether or not a Stay should be granted particularly in respect of the position FAS Corporate Affairs of the Department of Defence Position No DCA 001 or any renamed position(s) under the new structure including FAS Estates & Infrastructure Position No DEL 001. And these I restate from that Judgement.
  8. What is clear from this evidence is that she was employed with that Department as its Assistant Secretary Corporate Services at grade 18 prior to her termination at the hands of Mr. Vali Asi then Secretary for the Department of Defence then. She appealed from that decision to the Public Services Commission on or around the 02nd March 2017. It upheld her appeal ordering her reinstatement to her position forthwith. Which was communicated to the defendant’s predecessor on the 13th December 2017. He refused to implement that decision after the decision was outstanding to be so implemented after expiry of 30 days. He instituted proceedings OS (JR) 288 of 2018 Trevor Meauri v Dr Philip Kereme, Public Services Commission & Doris Lenturut seeking review and to quash the PSC decision dated 30th November 2017 amongst other reliefs. That proceeding was dismissed following interparty hearings in favour of the plaintiff. Plaintiff pursued the defendants to reinstate her in accordance with the decision of the PSC to no avail hence this proceeding for leave to compel by mandamus.
  9. This case is likened to the case of Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005) where there is deliberate defiance in the face of what is glaring in law against the defendants. That there is no iota of ground that will advance their defiance. In the same way is the case of the defendants here. There is no appearance despite service. But it is clear given that even if there was appearance the law is clear deriving from the facts pleaded here. It fulfills the requirements set out by Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014) fulfilling.
  10. She has demonstrated that she has standing and satisfies that balance. She has not delayed the matter. There are very good reasons as to why and it is all set out by the evidence set out above of the reluctance to admit a fact that is clear on the part of the defendants. It is no fault of hers that the action is here at this time. Here reasons are genuine and clear by her evidence relied. She has satisfactorily established this ground on the required balance to advance her cause here.
  11. The plaintiff has tried in vain to do and see eye to eye with the defendants on the administrative level to no avail. That also qualifies and satisfies that internal process and procedure to avoid court has been attended to and settled. This ground is also in her favour and she discharges on the required balance.
  12. Further there is clearly more than an arguable case demonstrated. For all it is worth she has discharged this ground beyond the balance of preponderance and she is entitled on that basis to be granted leave to review as she has pleaded. The facts relied on are self-explained and leave no option other to grant as she has pleaded because she has discharged to the required level.
  13. Her originating summons is granted as pleaded. She is granted leave to apply for Judicial review for mandamus to lie against the defendants compelling the first defendant to implement the decision of the Public Services Commission contained in letter dated the 30th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any. It would not be out of the context seen by this court in Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004) which drew similar. I adopt the reasoning there and follow likewise here given the facts similar and the relevant law sustaining the application of the plaintiff in her favour.
  14. In my view this is satisfaction of demonstration of a number of very basic requirements for a Stay to be accorded. And these are stated in the following terms; “To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.

    We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The other factors include the following:

(iv) Balance of convenience.

(ix) Whether damages would be sufficient remedy.” McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000)
  1. Plaintiff has been accorded leave and has a decision of the Public Services Commission that has the force of law dictating compliance in law of her to that said position. It has not been implemented and has been outstanding as confirmed by this Court on the OS (JR) 288 of 2018 Trevor Meauri v Dr Philip Kereme, Public Services Commission & Doris Lenturut when the proceeding was dismissed confirming the decision of the Public Service Commission reinstating the plaintiff to that position. It is clear the overall interest of Justice does not warrant a change in the circumstances and the status from that which was in existence when she obtained the decision of the Public Services Commission now confirmed by this Court.
  2. The Balance of Convenience would not favour ignorance of the dictate of this Court in that proceeding confirming the Public Service Commission decision. Because there is apparent error in law if the matter is followed pursuant to the affidavit of Hari John Akipe implementing the Department of Personal Management Restructure with particular relevance to the position FAS Corporate Affairs of the Department of Defence Position No DCA 001 or any renamed position(s) under the new structure including FAS Estates & Infrastructure Position No DEL 001.
  3. There is very strong arguable basis that I have set out with the excerpts of the Judgement on the grant of leave. Inconvenience prejudice of the plaintiff has been far outweighed against the defendant’s cause given these matters I point out above. It is clear the overall position in consideration is to grant a Stay as pleaded in respect of the position FAS Corporate Affairs of the Department of Defence Position No DCA 001 or any renamed position(s) under the new structure including FAS Estates & Infrastructure Position No DEL 001. And I so grant in accordance with the Notice of motion of the plaintiff of the 06th September 2021.
  4. The restructure recruitment exercise pertaining to the position FAS Corporate Affairs of the Department of Defence Position No DCA 001 or any renamed position(s) under the new structure including FAS Estates & Infrastructure Position No DEL 001 is hereby Stayed forthwith pending the determination of the substantive matter in this proceedings.
  5. The substantive matter is now formally set for hearing on the Friday 24th of September 2021 at 9.30am.
  6. Parties are also granted liberty to file extract of arguments and to exchange the same by or before Wednesday 22nd September 2021.
  7. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Baniyamai Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant

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