N9567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 383 OF 2021

BETWEEN:
MICHAEL PAMARAKA
Plaintiff

AND:
CLEMENT TARE IN HIS CAPACITY AS ACTING PROVINCIAL ADMINISTRATOR OF MADANG PROVINCIAL GOVERNMENT
First Defendant

AND:
ANTHONY CHARLES SAKAT IN HIS CAPACITY AS ACTING DISTRICT ADMINISTRATOR OF RAI COAST DISTRICT & CHIEF EXECUTIVE OFFICER OF RAI COAST DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

AND:
MADANG PROVINCIAL GOVERNMENT
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2022	: 4th April

JUDICIAL REVIEW – application for stay of proceedings following grant of leave to seek judicial review – National Court Rules, Order 16, Rule 3(8) – principles to apply when determining whether to grant a stay of proceedings.

The Plaintiff is seeking to stay the decision of the First Defendant after he was granted leave to apply for judicial review.

Held:

(1) For a stay to be granted, the applicant must show the following requirements have been met:

(a) there are serious questions to be tried and that an arguable case exists;
(b) an undertaking as to damages has been provided;
(c) damages would not be an adequate remedy if a stay is not granted;
(d) the balance of convenience favours the granting of a stay; and
(e) the interests of justice require that there be a stay of proceedings. (Gelu v Somare (2008) N3526 adopted).

(2) In a case seeking interim orders for an employee to remain in office pending the outcome of the substantive hearing, it is necessary to assess the working relationship between the employer and the employee before any interim orders can be issued (Lupari v Somare (2010) SC1071, applied).

(3) The requirement of arguable case is assessed at a much higher level of scrutiny when interim reliefs are being sought as opposed to the application for grant of leave for judicial review. This is for the reason that application for leave for judicial review is usually ex parte. (Gelu v Somare (2008) N3526 adopted).

(4) In the present case all the requirements for grant of stay were met and accordingly orders sought for stay are granted.
 
Cases Cited:
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ewasse Landowners Association Incorporated v Hargy Oil Palms Ltd (2005) N2878
Gelu v Somare (2008) N3526
Innovest Limited v Hon Patrick Pruaitch (2014) N5949
Lupari v Somare (2010) SC1071
Makeng v Timbers (PNG) Limited (2008) N3317
Statutes Cited:
District Development Authority Act 2014
National Court Rules
Organic Law on Provincial Government and Local Level Government 1995
Public Services (Management) Act 1995
Counsel
R Pariwa, for the Plaintiff
K Makeu for the First and Third Defendants
Y Wadau. for the Second Defendant 
S Maliaki for the Fourth Defendant 

RULING

4th April, 2022

1.	NAROKOBI J: The Plaintiff was granted leave on 22 March 2022 to apply for judicial review, that is to review the decision of the First Defendant to remove him on 17 November 2021 as the District Administrator of Rai Coast District and have in his place the Second Defendant.

2.	The application now before the court is for an interim order to have the applicant reinstated pending the outcome of the hearing of the judicial review.

3.	The brief background to the case is as follows. Sometimes in 2008, the Plaintiff was appointed as the Deputy District Administrator of Rai Coast District administration in Rai Coast District of Madang Province.

4.	During December 2010, the Plaintiff was appointed as the Acting District Administrator of Rai Coast District Administration.

5.	Sometimes in 2015, after the coming into operation of the District Development Authority Act 2014, the Plaintiff was appointed as the Chief Executive Officer of Rai Coast District Development Authority.

6.	On 17 November 2021, the First Defendant, revoked the appointment of the Plaintiff and appointed the Second Defendant in an acting capacity.

7.	Although the Plaintiff filed a separate motion for interim restraining orders together with the Originating Summons on 17 December 2021 for leave to apply for judicial review, he did not move the court for orders in the motion, until after leave was granted following the court’s ruling in Makeng v Timbers (PNG) Limited (2008) N3317. In Makeng the court was of the view that grant of leave is a pre-condition to an application for any interim orders. The opposing view is in Innovest Limited v Hon Patrick Pruaitch (2014) N5949, where the court held that in an appropriate case, the court is at liberty to grant a stay before the hearing of the leave application. Although the issue is not before me, I adopt the reasons offered by His Honour Gavara-Nanu J in Innovest for the reason offered by his Honour:

“I consider that such a rigid application of the Rule would likely result in injustice and prejudice to parties and would give no room for the Court to exercise its discretion in appropriate cases: Les Curlewis v. Reuben Renagi & Ors SC 1274.”

8.	That issue is however not before me, as the Plaintiff only sought to move his application for interim relief after leave was granted, so my comments are obiter on this point.

9.	The Plaintiff submits that there are five requirements for the grant of a stay or injunction, and he has satisfied them all, for there to be interim relief ordered, that is:

•	There is a serious question to be tried;
•	Undertaking as to damages has been given;
•	Damages would not be an adequate remedy;
•	Balance of convenience favours the granting of the relief;
•	Interests of justice favours the grant of relief.

10.	 As I consider the case authorities on this point, I note that the National Court in Gelu v Somare (2008) N3526, a judicial review proceeding under Order 16 rule 3 of the National Court Rules adopted the above considerations following the Supreme Court case of Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. I also do so in this case.

11.	Mr Pariwa submits that the requirements for an arguable case, has been met as the court considered this when granting judicial review. Mr Makeu made submissions on this point by highlighting that there is no arguable case, as the Plaintiff relied on s 61 of the Public Services (Management) Act 1995 when they should have relied on s 39 of the same Act. In Gelu’s case, the National Court held that the standard applicable for an arguable case in an application for leave for stay is much higher than that in an application for leave. I adopt this statement of the law and consider that I am required to consider the requirement of arguable case at a much higher level of scrutiny when interim relief are being sought as opposed to the grant of leave. This is because application for leave is usually ex parte.

12.	There is another consideration that I would like to add to the other considerations listed, in a case where it relates to an employer/employee relationship, and it comes from the case of Lupari v Somare (2010) SC1071. That is whether the employer/employee relationship is such that it would be impractical to order re-employment of the Plaintiff.

13.	Turning now to the first consideration as to whether there is an arguable case. Mr Makeu raises an interesting point in that the grounds in the Statement pursuant to Order 16, Rule 3(2)(a) of the National Court Rules relies on s 61 of the Public Services (Management) Act 1995 and should have relied on s 39. Section 61. “Appointment procedures in relation to District Administrators.” That section states:

“(1)A District Administrator shall be appointed by the Provincial Administrator, in consultation with the elected Member of Parliament representing the district following a merit-based selection process in accordance with the Regulations.
(2)The procedures relating to the substantive appointment, temporary appointment, suspension or termination of appointment of a District Administrator are as prescribed in the Regulations.”     

14.	Section 39, “Acting Appointments,” states:

“Where an officer other than a Departmental Head is absent from his office or unable to perform the duties of his office for purposes specified in Section 36(4) or when there is a vacancy in an office other than an office of Departmental Head, the Departmental Head concerned may, if he thinks fit, appoint another officer to act in the place of the officer during his absence for inability, or may appoint an officer to fill the vacancy temporarily.”

15.	A close reading of s61(2) states that “The procedures relating to the substantive appointment, temporary appointment, suspension or termination of appointment of a District Administrator are as prescribed in the Regulations.” This to me suggests that any temporary appointments are done in accordance with a Regulation. I am unable to locate any such Regulation to that effect. I have perused the District Development Authority Act 2014, and it does not speak to the issue. I have not heard arguments from Counsel on this point. This to me suggests that this is an arguable ground.   

16.	Does that then mean that s 39 of the Act is applicable? Again, I am of the view that this raises an arguable ground that must be determined at the substantive hearing.

17.	The other arguable ground relates to the actual notice of 17th November 2021. It does not cite under what powers the First Defendant is relying on to revoke the appointment of the Plaintiff. This is important because there is a number of laws at play here – District Authority Act 2014, Public Services (Management) Act 1995 and the Organic Law on the Provincial and Local Level Government 1995. This speaks to the issue of natural justice, which is specifically pleaded as a ground for judicial review in the statement.

18.	Ultimately this case concerns the relationship between the National government, provincial government and district authorities. This case will provide some guidance as to this relationship.

19.	Since I have found that there are arguable grounds here, it is not necessary for me to consider in detail all the other grounds raised in the Statement. We are not at the substantive hearing of the review yet. 

20.	The next requirement is in relation to an undertaking as to damages. The plaintiff has filed an undertaking, so I consider that this requirement has been met.

21.	The other consideration is whether damages would be an adequate remedy. For this consideration I place much weight on the affidavit of Honourable Peter Sapia filed on 17 December 2021. He says that he has a good working relationship with the Plaintiff and wants him to continue in that role. I consider that a good working relationship with the Member of Parliament as the Chairperson of the District Development Authority and his District Administrator is necessary to meet their developmental agendas. For this reason, I find that damages would not be an adequate remedy.

22.	In relation to balance of convenience, I apply the test determined in Ewasse Landowners Association Incorporated v Hargy Oil Palms Ltd (2005) N2878 by asking the question, who stands to suffer the most if the injunction is not granted. When comparing the interest of the Plaintiff and that of the Defendants, against the backdrop that his appointment was abruptly revoked without consideration for the fact that he occupied this role since 2010, suggests to me that he stands to suffer the most from the revocation of his appointment. I also consider the disruption it may cause to the smooth running of the District Administration because of this abrupt appointment in this regard as well. I would surmise therefore that the balance of convenience favours the grant of the injunction.

23.	As to what is in the interest of justice, I adopt what Cannings J said in Ewasse:

“Justice is often in the eyes of the beholder. If I granted the injunction sought and ordered the defendant to close down, that may well be seen as a great victory by the people of  Ewasse . However, how would the workers in the oil palm mill feel if they are laid off work? Would it be justice, in their eyes? And the smallholders around Bialla, what would their reaction be? I am inclined to the view that if I granted the injunction, based on the material now before the court, I would be doing an injustice to many thousands of individuals.”

24.	In this case, the efficient management of the district as deposed to by the affidavit of the Honourable Member for Rai Coast would be affected. I have had regard to the Rai Coast District Development Authority resolution dated 11 December 2021 annexed to the affidavit of Honourable Peter Sapia which states that they were not consulted before the change took place in the position of the District Administrator and this change would have a material effect on the running of the District Authority. In my respectful view, it would be in the overall interest of justice if the injunctions were ordered.        

25.	The final consideration I add comes from the Lupari case. This is in relation to an employer/employee relationship. The person that made the decision to revoke the appointment of the Plaintiff has a distant relationship with the Plaintiff. The immediate persons who have a “employer/employee” relationship with the Plaintiff is the Chairman of the DDA and the DDA board. There is evidence before the court through the affidavit of Honourable Peter Sapia, that they wish for this relationship to continue, and they were not consulted before the revocation of the appointment of the Plaintiff. I therefore determine this consideration in favour of the Plaintiff. 

26.	Since I have determined all the considerations in favour of the Plaintiff, it stands to reason that the orders sought in the Notice of Motion filed by the Plaintiff on 17 December 2022 should be granted, and I make the following orders:

1)	The Second Defendant is restrained from occupying the office of the District Administrator of Rai Coast District and Chief Executive Officer of Rai Coast District Development Authority and further performing duties and responsibilities thereof pending final determination of this proceeding; and

2)	The First Defendant be restrained from issuing any instructions to the Plaintiff in respect of hand-over and take-over of duties and responsibilities of the Plaintiff as the Acting District Administrator of Rai Coast District and Chief Executive Officer of Rai Coast District Development Authority to the Second Defendant, as advised by the First Defendant in his letter dated 17 November 2021, pending final determination of this proceeding; and

3)	The Acting Director Human Resource is restrained from facilitating the hand-over and take-over of duties and responsibilities of the Plaintiff as the Acting District Administrator of Rai Coast District and Chief Executive Officer of Rai Coast District Development Authority to the Second Defendant, as advised by the First Defendant in his letter dated 17 November 2021, pending final determination of this proceeding; and

4)	Costs of the application is cost in the cause.

5)	Time is abridged.

Orders accordingly.

Pariwa & Co Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the First and Third Defendants
Young Wadau Lawyers: Lawyers for the Second Defendant