N9697

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 116 OF 2022

BETWEEN:
KALABE YABAIMANTA, District Administrator for Okapa District
Plaintiff

AND:
JOHN GIMISIVE, Provincial Administrator of Eastern Highlands Provincial Administration
First Defendant

AND:
DICK PENAI, Deputy District Administrator for Okapa District 
Second Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Goroka: Mugugia, AJ 
2022: 21st, 24th June

JUDICIAL REVIEW – Non-extension of Short-term Contract as Acting District Administrator - Application for leave for judicial review of decision to purportedly terminate the Plaintiff - Requirements for leave to satisfy – Whether the Plaintiff has sufficient interest and standing to bring the proceedings - Whether there was undue delay - Whether the Plaintiff has an arguable case - Whether the Plaintiff has exhausted all available administrative remedies – Plaintiff does not have sufficient interest and no standing to bring the proceedings - Application for leave was made promptly - No undue delay - Based on documents relied on, the Plaintiff does not have an arguable case - Plaintiff has not exhausted the available administrative avenue - Application for leave for judicial review refused. 

Cases Cited:

Mondiai & Others v. Wawoi Guavi Timber Company Ltd. (2007) SC886
Asakusa v. Kumbakor (2008) N3303
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsel:

B. Koningi, for the Plaintiff  
No appearance for the Defendants 

RULING

24th June, 2022
 
1. MUGUGIA, AJ: The Plaintiff Mr Kalabe Yabaimanta’s six (6) months Short-term Contract as Acting District Administrator ceased on 4 April 2022. He now seeks leave to review the decision of the First Defendant Mr John Gimisive contained in a letter dated 2 May 2022, in which Mr Gimisive advised him of the non-extension of his Short-Term Contract as Acting District Administrator for the Okapa District Administration with immediate effect. The letter has the subject stated as “Advice on Non-Extension of Short-Term Contract (STC) as Acting District Administrator – Okapa District Administration”. In his Originating Summons filed on 25 May 2022, Mr Yabaimanta seeks leave to apply for review of this decision, which he says purportedly terminated his employment as the Okapa District Administrator, and purportedly replaced him with the Second Defendant Mr Dick Penai. 

2. The Plaintiff’s lawyer Mr Koningi appeared before me on 21 June 2022 to make his client’s leave application. Before proceeding to hear the leave application, I reminded myself of the State’s right to be heard at the leave stage (s. 8, Claims By and Against the State Act 1996). I posed relevant questions to Mr Koninigi, and he drew the Court’s attention to his client’s supporting affidavit evidence confirming the actions taken by his law firm to satisfy this requirement. The Plaintiff’s evidence showed that the Office of the Solicitor General was advised of the judicial review matter, and the hearing date of the leave application. The letter of advice to the Office of the Solicitor General was copied to the other named Defendants. I made an order on 14 June 2022 for a lawyer from the Office of the Solicitor General to appear in Court on 21 June 2022 for the hearing of the Plaintiff’s leave application. However, no State lawyer appeared in Court on the hearing date despite being given adequate notice by the Plaintiff’s lawyers. I allowed Mr Koningi to proceed with his client’s leave application as I was satisfied that the State was afforded an opportunity to be heard, and the Office of the Solicitor General was advised of the hearing date.   

3. At the outset, I noted from the Originating Summons that the Plaintiff sought an order for leave to apply for judicial review pursuant to Order 16, Rule 3(2) of the National Court Rules, as well as an order for stay pursuant to Order 16, Rule 3(8) of the National Court Rules. An applicant must not plead any other relief in the Originating Summons apart from leave. When I asked Mr Koningi whether the Originating Summons was in order, he submitted that he will only pursue the order for leave, and he sought leave to withdraw the order for stay. I was of the view that the relief for leave was clearly pleaded in the Originating Summons. To do justice, I granted Mr Koningi leave to withdraw the order for stay. The order for stay was struck out for being incompetent.  

4. Mr Koningi relied on his written extract of submissions, and the following supporting affidavits at the hearing:

(i) Affidavit in Support of Kalabe Yabaimanta sworn on 23 May 2022, and filed on 25 May 2022; and  

(ii) Supplementary Affidavit of Kalabe Yabaimanta sworn on 24 May 2022, and filed on 25 May 2022. 

5. These are the requirements for leave that an applicant for leave is required to satisfy:

	(a) Sufficient interest.
	
(b) Undue delay.

	(c) Arguable case.

	(d) Exhaustion of administrative remedies.

6. The issue for determination at this leave stage is whether the Plaintiff has satisfied all the requirements for leave for judicial review.  

WHETHER THE PLAINTIFF HAS ‘SUFFICIENT INTEREST’ 
7. Order 16, Rule 3(5) of the National Court Rules provides the test. The Court shall not grant leave for judicial review unless it considers that an applicant has a sufficient interest in the matter to which the application relates. 
8. In Mondiai & Others v. Wawoi Guavi Timber Company Ltd (2007) SC886, the Supreme Court held that:
“To determine whether a person has sufficient interest for the purposes of National Court Rules, Order 16, Rule 3(5), the Court should ask:

(a) Is the party complained about a public body?

(b) Does that party have duties to perform at law, i.e., statutory duties?

(c) What is the nature of the alleged breach of duty? Are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?

(d) What is the Plaintiff’s relationship to the duties alleged to have been breached?

(i) Are they merely busy bodies?or

(ii) Are they genuinely concerned?

(iii) Do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?”

9. Mr Koningi submitted that his client is personally affected by the First Defendant’s decision purporting to terminate him, and therefore, his client has satisfied the requirement of legal standing. 
10. Let me first consider the Plaintiff’s complaint, and the nature of the alleged breach of duty by the First Defendant. The Plaintiff alleged that Mr Gimisive in his decision dated 2 May 2022, purported to terminate his employment as the Okapa District Administrator, and purported to replace him with Mr Penai, without the necessary approval of the Department of Personnel Management, and without consultation with the Okapa District Development Authority under Section 64 of the Public Services (Management) Act 2014. The First Defendant’s decision is therefore null and void. The Plaintiff also alleged that the First Defendant’s decision dated 2 May 2022 was done in serious breach of his constitutional responsibility imposed by Section 59 of the Constitution. The decision is therefore null and void.
 11. I am of the view that this is not a case of termination as alleged. It is a case of non-extension of a Short-term Contract. This is clear from Mr Gimisive’s letter dated 2 May 2022 to Mr Yabaimanta which states the subject as “Advice on Non-Extension of Short-Term Contract (STC) as Acting District Administrator – Okapa District Administration”.  
12. The Plaintiff was acting on the position. His appointment was on an acting basis for six (6) months. His Short-term Contract which was made with the State on 11 October 2021 ceased on 4 April 2022. The period of employment specified in Clause 3.1 in the Schedule to the Agreement states, and I quote: “Employment commences on the 11th day of October 2021 and ceases at the close of business on the 4th day of April 2022”.
13. I am of the view that a person on acting appointment cannot act for an indefinite period. There is limitation placed on the period for an acting position. An acting appointment does not give the holder a right to permanency because it is a temporary appointment. The appointing authority is empowered to make an acting appointment for a person to act where there is a vacancy. 
14. The Plaintiff’s term of the acting appointment has expired. The contract was not extended. His Short-term Contract has ceased. He is no longer the Acting District Administrator, and he no longer has any legal right. His employment as Acting District Administrator had ceased on 4 April 2022, and he had no standing to bring this proceedings. 
15. I therefore find that the Plaintiff does not have sufficient interest, and no longer has sufficient standing (locus standi) to bring this proceedings. He is a mere busy body who has come to this Court. This requirement for leave has not been satisfied by the Plaintiff.  

WHETHER THERE WAS ‘UNDUE DELAY’ 

16. The subject decision was made on 2 May 2022. The Originating Summons was filed on 25 May 2022. I find that the application for leave was made promptly. There was no undue delay. This requirement for leave has been satisfied by the Plaintiff.  

WHETHER THE PLAINTIFF HAS AN ‘ARGUABLE CASE’

17. The test which Injia DCJ (as he then was) referred to as the ‘proper and sufficient pleading test’ in Asakusa v. Kumbakor (2008) N3303 is ‘whether the grounds pleaded in the Statement in Support contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached, with reference to established grounds of review which the law recognizes as proper grounds for review’. The proper grounds for review include those specified by statute and subject to the Constitution or any relevant statute. “Ultra vires” (lack of jurisdiction), breach of procedures prescribed by statute or sub-ordinate legislation, and error of law are examples of some proper grounds for review which can be raised.    

18. Based on a quick perusal of the materials before me, I am of the view that the application for leave does not present an arguable case. I set out my reasons below.
19. Under the grounds in the Statement in Support filed on 25 May 2022, reference was made to the Public Services (Management) Act 2014, and the Organic Law on Provincial Governments and Local-level Governments. 
20. One ground raised in the Statement in Support is breach of Section 64 of the Public Services (Management) Act 2014. Section 64 makes provision for procedures relating to appointment, etc., of District Administrators. The allegation is that the First Defendant’s purported termination of appointment of the Plaintiff as Acting Okapa District Administrator by letter dated 2 May 2022 was without the necessary approval of the Department of Personnel Management, and without consultation with the Okapa District Development Authority under Section 64 of the Public Services (Management) Act 2014, and is therefore null and void. 
21. I asked Mr Konigi whether the Public Services (Management) Act 2014 or the Public Services (Management) Act 1995 applied in his client’s case. I wanted Mr Koningi to confirm this because I noted an inconsistency in the law referred to in the grounds in the Statement in Support, and the law referred to in the Plaintiff’s own supporting affidavit. In the Statement in Support, reference was made to the consultation process in the 2014 Act. In the supporting evidence, reference was made to the consultation provisions of the 1995 Act. 
22. I am of the view that the wrong law has been cited, and relied on by the Plaintiff. The applicable law is the Public Services (Management) (Amendment) Act 2020. The Public Services (Management) (Amendment) Act 2020 has repealed and replaced Section 61 of the Principal Act in relation to the appointment of District Administrators. Section 61 of the Principal Act has been repealed and replaced with the following new section:
"61. APPOINTMENT PROCEDURES IN RELATION TO DISTRICT ADMINISTRATORS.

(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.".
23. So, Section 61 of the Principal Act, that is, the Public Services (Management) Act 1995 has been repealed and replaced. 
24. I apply the ‘proper and sufficient pleading test’ here. On a quick perusal of Mr Yabaimanta’s Statement in Support and Affidavit in Support, I am of the view that the grounds pleaded in the Statement in Support do not contain a clear and concise description of the specific statutory provision(s) in the applicable law, that is, the Public Services (Management) (Amendment) Act 2020 or the applicable Regulation alleged to have been breached by Mr Gimisive. The Plaintiff did not clearly plead the statutory and procedural role or duty under the Public Services (Management) (Amendment) Act 2020 or the applicable Regulation that Mr Gimisive is alleged to have breached. The Plaintiff did not point to some duty in law which has not been observed by the First Defendant. I find that the ground raised by the Plaintiff failed to meet the ‘proper and sufficient pleading test’.
25. The other ground raised in the Statement in Support is breach of Section 59 of the Constitution. The allegation is that the First Defendant’s decision dated 2 May 2022 was done in serious breach of his constitutional responsibility imposed by Section 59 of the Constitution, and the First Defendant’s decision is therefore null and void. I find that the Plaintiff’s supporting affidavits do not support this ground. 
26. I find that the Plaintiff’s supporting affidavits do not support the grounds pleaded in the Statement in Support. I conclude that the grounds are incompetent and not arguable. The grounds are not meritorious warranting leave to be granted. Based on documents relied on, the Plaintiff does not have an arguable case.

WHETHER THE PLAINTIFF HAS ‘EXHAUSTED ALL AVAILABLE ADMINISTRATIVE REMEDIES’  
27. The law is that the applicant for leave must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: See the cases of  The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417, and Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. All available administrative avenues should first be exhausted. 
28. By the Contract Agreement made with the State on 11 October 2021, the Plaintiff is an employee of the State under and by virtue of the provisions of the Public Services (Management) Act. He is a Public Servant. The provisions of the Public Services (Management) Act and the Public Services General Orders apply to him. 
29. Section 18 of the Public Services (Management) Act makes provision for review of personnel matters connected with the National Public Service by the Public Services Commission. The Public Services Commission shall, following a complaint made by an officer to the Commission, review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

30. Mr Koningi had submitted that his client is personally affected by the First Defendant’s decision. When asked by the Court whether his client had exhausted Section 18 of the Public Services (Management) Act, Mr Koningi confirmed that his client did not. 
30. It is my view that the Plaintiff should have first made a complaint to the Public Services Commission. I find that the requirement of exhaustion of administrative remedies has not been satisfied by the Plaintiff. 
31. Mr Koningi had conceded that his client did not lodge his Complaint with the Public Services Commission. He had submitted that due to the urgency of the application, and in considering his client’s duties at this time, this Court should exercise its discretion under Section 155(4) of the Constitution to grant his client leave. 
32. Section 155(4) of the Constitution confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute. 
33. The Plaintiff is no longer the Acting District Administrator, and he no longer has any legal right. He does not have a primary right conferred by law. Considering the circumstances of this case, I am of the view that Section 155(4) of the Constitution does not apply here. 

CONCLUSION
34. I have found that the application for leave was made promptly. The Plaintiff has not delayed in bringing this proceedings. However, he has not shown that he has sufficient interest in the matter to which the application relates, and locus standi to bring the proceedings. The Plaintiff has failed to satisfy this requirement. If an applicant cannot show that he/she has sufficient interest then the Court cannot invoke its powers of judicial review. The Plaintiff has also not shown that he has an arguable case for leave to be granted. He has failed to exhaust the available administrative avenue.  For these reasons, I will refuse his application for leave for judicial review. Since there was no appearance for the State, no order for costs will be made. 

COURT ORDERS

36. I make the following orders:

1. The Plaintiff’s application for leave to proceed by way of Judicial Review is refused. 

2. No order as to costs. 

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
B. Koningi: Lawyer for the Plaintiff