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Auma v Manau [2021] PGNC 57; N8800 (23 April 2021)

N8800

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 422 OF 2017

BETWEEN:
NOEL AUMA
Appellant

AND:
DAVID MANAU-ACTING SECRETARY DEPARTMENT OF PETROLEUM & ENERGY
First Defendant

AND:
PHILIP KEREME CHAIRMAN PUBLIC SERVICES COMMISSION
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 11^th December

2021: 18^th March

PRACTICE & PROCEDURE – Judicial Review & appeals – Leave for Judicial Review – Amended Originating Summons –Notice of Motion – 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 – Locus Standi – Delay inordinate – Arguable case – Exhaustion of Internal processes – Material relied insufficient – Balance not discharged – Leave refused – cost in the cause.

Cases Cited:

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsel:

G. Yagi & G. Konjib, for Plaintiff
M. Tukuliya, for Respondent

RULING

23^rd April, 2021

1. MIVIRI, J: This is the ruling of an application for leave for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules.
   
2. The applicant relies upon his amended originating summons, an amended Statement in support, an amended affidavit verifying the facts and notice to the Secretary for Justice. The Documents were filed the 18^th December 2018.
   
3. Essentially, he seeks leave to review the decision of the First Defendant of the 07^th June 2016 to terminate his employment as Deputy Registrar in the Department of Petroleum & Energy. Which he appealed to the Second Defendant who upheld the decision of the First Defendant terminating the applicant. He had held that position since 15^th June 2010. On 04^th February 2014 he was demoted as Acting Registrar back to his substantive position of Deputy Registrar. On the 17^th May 2016 he was charged and suspended on the same allegation for improper conduct and eventually terminated on the 07^th June 2016.
   
4. He appealed to the Public Service Commission (PSC) on the 24^th June 2016 to review the decision of the First Defendant to terminate him. And on the 28^th February 2017, the second defendant on behalf of the PSC upheld the decision of the First Defendant to terminate the Plaintiff.
   
5. It is now four years 3 months since that decision and this is an application for leave in the light of Order 16 Rule 4 (2) of the Rules. Certiorari is being sought and therefore four months after the date of the proceeding would have expired on the 07^th October 2016 to bring this proceeding. He is outside by 4 years and the reasons that he has enlightened that he could not seek the services of a lawyer is not good enough to waive that time limitation imposed. It is not substantive to say that he could not secure the services of a lawyer, because he was not employed so did not have the means to pay and engage one. It is also not good enough to say he could not secure in good time the services of the Public Solicitors Lawyers. To give heed to such reasons would open the flood gate on others similar. It is neither a substantial nor a good reason to waive time: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008).
   
6. And this is particularly so viewed in the light of the affidavit that the applicant has filed of the 18^th December 2018. That affidavit clearly depicts that the applicant was the author and also signed that letter asking for “Pay Cash” for the sum of K 200, 000.00 to be paid by a Company Petro Energy Limited who were applying for a Petroleum prospecting Licence. He said he was in hurry to another meeting and did not know what he was signing. Which excuse was a weak one not accepted by his own department and also the PSC confirming the departmental decision terminating his employment. And he was replaced with one Joy Mataenge as Acting Registrar. His affidavit details out a disciplinary process that was in order and complied with the Law hence the PSC views confirming his Department’s decision. He has admitted the matter by the evidence he has filed by this affidavit. There is no room to go past that evidence, it is self-serving. He demonstrates no cogent and convincing reasons to open the gate for leave to be granted. Nor does he demonstrate an arguable case to sway, and the reasons he has advanced do not see favour for leave to waive coming out of the four years three months limbo that he has drawn into out of the requirement of 4 months. The discretion is prima facie and by clear read of NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PGLawRp 495; [1987] PNGLR 70 (6 May1987) he has not demonstrated to the required balance that it be exercised in his favour.
   
7. The totality is that viewed in the light of administrative processes available under the Public Services Management Act that is now completed and exhausted. The summary is well set out by annexure “P” to his affidavit Public Service Commission decision of the 28^th February 2017 referenced PSC2-18-PETE: 73/2016. Where it states, “Based on the foregoing, the Commission considers the decision made to dismiss Mr. Auma to be proper in the circumstances. Please take note that pursuant to Section 18 of the Public Services (Management) Act 2014 the decision of the Commission becomes legally binding after a period of 30 days from the date of the decision.” It is three years since that decision it has become law. He has not taken the matter further at his own leisure no fault of anyone. He has destined his own course in this regard which is that the matter will not open because time has run out to expedite any more, Order 16 Rule 4 (2) of the Rules: Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989).
   
8. The public policy considerations coupled with the underlying law, here that judicial review is not to substitute the decision but to look at the process of the decision that has been made. There is no cause for alarm here to prompt that there is arguable basis to grant leave to open. Because there is nothing against the process to so do. Accordingly, the application for leave for judicial review is refused in its entirety. And costs will follow the event.
   
9. The formal orders of the court are:
   
   • (a) The application for leave for judicial review is refused.
     
   • (b) It is dismissed in its entirety forthwith.
     
   • (c) Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

Konjib & Associate lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants