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Jaran v Sayer [2023] PGNC 400; N10552 (25 October 2023)

N10552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 08 OF 2023(IECMS)

MATHEW JARAN
Plaintiff

V

PAUL SAYER AS MANAGING DIRECTOR OF THE PUBLIC OFFICERS SUPERANNUATION FUNDS
First Defendant

AND
PUBLIC OFFICERS SUPERANNUATION FUND
Second Defendant

AND
REGINALD MONGAI AS CHAIRMAN OF PUBLIC OFFICERS SUPERANNUATION FUNDS
Third Defendant

AND
PUBLIC OFFICERS SUPERANNUATION FUND BOARD
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2023: 22^nd September 24^th & 25^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Amended Originating Summons – Leave For Judicial Review Order 16 Rule 3 NCR – Disparity in Calculation of Final Entitlements – Locus Standi– Arguable Case – Delay Inordinate & Excessive –Exhaustion Internal Process – Section 49 (1) POSF Act 1990 Repealed by amended No. 78 of 2006 – No Lawful Basis – Material Relied Insufficient – Leave Refused – Cost follow event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Concord Pacific Ltd v Nen [2000] PNGLR 47
Dupnai v Weke [2016] PGSC 43; SC1525
Gulf Provincial Government v Baimuru Trading Pty Ltd [1998] PNGLR 311
Kagua-Erave District Development Authority v Sugu Cigars Builders Ltd [2023] PGSC 79; SC2429
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Public Officers Superannuation Fund Board v Imanakuan [2001] PGSC 4; SC677
Somare, Re [1981] PNGLR 265

Counsel:

J. Napu, for Plaintiff
M. J. Narokobi, for Defendants

RULING

25^th October 2023

1. MIVIRI, J: This is the ruling on the amended originating summons dated the 21^st July 2023 filed by the plaintiff a retired Correctional Services officer applying for leave for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules to apply for an Order in the nature of a prerogative writ and Mandamus to compel the Defendants to deliberate on the Plaintiff’s grievance regarding his contribution and disparity in the calculation of the total amount of payout owing under the law, within 30 days, and arrive at a decision, forthwith in that; the defendants shall be compelled to perform the subject statutory duties under section 49 (1) of the Public Officers Superannuation Funds Act of 1990.
   
2. Pursuant to Order 16 Rule 5 of the National Court Rules the Court Shall issue such directions for the further conduct of the proceedings.
   
3. Costs in the Cause
   
4. He supports his originating summons with his own affidavit dated 3^rd February 2023. He was a former Correctional Services Officer who started his employment there on the 18^th June 1972 rising to holding the substantive rank of Assistant Commissioner Correctional Services at his retirement on the 31^st December 2000. His signed his authority POSF Application for payment of Superannuation and Separation Authority Form for payment of POSF benefits on the 31^st December 2000. “On the 28^th June 2006, a letter was received from Nambawan Super Showing, the break-up of the POSF contribution benefits. The first lot shows the breakup from POSF contributions benefits of K 26, 903.03 and the interest from the contributions of K 43, 971.00 totalling to K 70, 874.12. The second lot of payment was made from the subtraction of H/A of K 9, 600.00 from the State Share component of K 86, 995.08 less 2% tax of K 2, 619.32 totalling to K 74, 874. 12. The breakup shows that the total amount is differ from the real amount of K 144, 689.88 paid to me when I exited from Correctional Institution Services (CIS).
   
5. Annexure “E1” is a letter dated 28^th June 2006 from POSF Limited signed by Joesph Pupua Manager Member Support & Marketing written to the Plaintiff stating the breakup that was paid him first payment as set out above and second also set out above. That letter is addressed to him six (6) years after he had exited from his employment and that payment had been made settling. “The above payments comprised of your contributions, accrued interest, and the state share component for the period 1972 to 17^th January 2001 the date the last contribution was received. After a thorough investigation and review of your allegations on underpayment of your benefits, the fund maintains that it has paid your benefits in full and there are no further payments to be made to you. We are pleased to close our file on the same. Yours faithfully POSF Limited signed by Joesph Pupua Manager Member Support & Marketing.
   
6. There is no cause for alarm as raised now by the plaintiff there and then. That was on the 28^th June 2006, six years after he retired as a correctional officer on the 31^st December 2000. This is now 25^th October 2023. For a person who was affected he instituted no proceedings there and then after six years to get what he alleged was due to him. Because he was an Assistant Commissioner and an Acting Commissioner, he saw no fault to lift a finger there to get what was due to him. In that rank he ought to have been more than skilled in administration and learned with his experience from 1^st January 1969 to 31^st December 2000 to have raised it on when payment had made him. Even on the eve of when he received his payment of K 144, 689.88. he raised no dispute on that. He did not voice that there were moneys owing and outstanding to his account from POSF he made no complaint, nor did he institute proceedings to recoup. He has waited to today 09^th January 2023 to formally file an originating summons for Leave for Judicial review. It is now 23 years almost and he has not lifted a finger since.
   
7. This is evidence in my view that does not get him past Locus Standie. He has not demonstrated to the requisite balance that he is directly affected by that fact emanating from the hands of the Defendants. The evidence that he has produced relevantly set out above shows that the defendants in particular POSF has discharged its duty called satisfactorily. That is the reason why there was no complaint coming from the Plaintiff until six years had lapsed. And now 23 years later formally in Court for leave for Judicial review. That is a conduct likened to one who has no grudges, nor has he been affected by the Defendants. He has remained without complaint because there was nothing to complain about. He was not affected and therefore has no locus standie discharged to the required balance. He would have followed the footsteps of Public Officers Superannuation Fund Board v Imanakuan [2001] PGSC 4; SC677 (9 November 2001) if he was immediately and directly affected. He has not for 23 years now. It does not reflect that he has sufficient interest to be able to mount an action. He has not done that for the 23 years this matter was glaring at him. His conduct demonstrates that he has no sufficient interest in the matter, Somare, Re [1981] PNGLR 265. He does not demonstrate a genuine cause that he has been affected by the act. He does not demonstrate locus standie to the required balance to come his way.
   
8. There is no arguable basis because section 49 (1) of the Public Officers Superannuation Funds Act of 1990 has been Repealed by amended No. 78 of 2006. That is the reason why it is now known as Nambawan Super fund. It is no longer what the Plaintiff sets out in his statement in support. It is no longer the law and cannot assist the cause of the plaintiff in the way that he argues. There is no other arguable basis apparent or identifiable to discharge this ground in favour of the plaintiff. The pleadings here do not support, nor do they discharge arguable with the materials that he relies on Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). There is no specific pleading detailing what Statutory duties are owed the plaintiff by the defendants and in what manner these have been breached, or process of law that has been breached so much so that the plaintiff is affected by that breach. The Nambawan Super fund is a superannuation fund that is to every public servant. It is not to the plaintiff alone. And if it is to be held accountable to the plaintiff that is not clear because what is owed the plaintiff has been settled in full. This is not an arguable case and the plaintiff does not discharge this ground to the required balance.
   
9. There is no internal process and procedure it is fortnightly deductions that have been made into the account in the name of the Plaintiff kept POSF membership number of 6898. He checks and verifies the statement which was issued him as is the case annexure “B” to his affidavit. It would be more of a fiduciary duty between a banker and his client. So, the POSF is not a public body discharging a public function as is the case of the Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. This is not a case where a public body has exceeded its jurisdiction so that it will be compelled by mandamus to heed that duty. That is not the case here by the fact’s circumstances set out above. This ground is not made out and does not warrant that the matter goes any further from here. Accordingly leave will not be granted in all the circumstances.
   
10. Because this is 23 years after 31^st December 2000, and it is clearly inordinate and unexplained delay that is not excusable to open the door to review for the applicant. Given all set out above justice of the matter does not lie given. Leave was refused appeal was dismissed where it was 3 years almost 6 months since the land Court decisions: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). It is 23 years since, an inordinate and inexcusable delay that cannot be given life by leave granted for Judicial review because in my view the aggregate in this originating summons is that it will be refused with costs on an indemnity basis.
    
11. Costs are discretionary. This is a matter that will be on an indemnity basis because of the reasons set out above. It was a matter that was laid to rest 23 years ago revived briefly in 2006 but did not get off the ground, no doubt with the appreciation that it was a no goer. The law is clear, and this is a senior member of the disciplined forces in particular in Corrective Institution Service who has been decorated for his services. In that capacity having risen to the level of Acting Commissioner he ought to have known it could not be attained. There was clearly no Legal basis to mount the action given his affidavit deposing that it was a hear from sources not verified by law prompting this institution. For a man of that calibre to bring the State and this Court time off to hear his cause not known versed in law, it was appropriate that costs be on an indemnity basis. Because it should never be the case that, let us try and see if it will succeed, the law must build the foundation of any action instituted. It must be clear certain laid out in law for a proceeding to be instituted. Time and logistics have been taken up. Sacrifice has been made of other cases to hear this case which from the word go had no merit in law: Concord Pacific Ltd v Nen [2000] PNGLR 47.
    
12. The provision relied on was repealed no longer the law. There was no clear foundation to mount. Yet Applicant sought reliance to institute. And it is misleading when that happens, institution of an action knowingly on a law that has been repealed. It is a disrespectful fact to go in this way before the National Court or the Supreme Court for that matter. It must be stopped in its tracks with stern punitive action: Gulf Provincial Government v Baimuru Trading Pty Ltd [1998] PNGLR 311. Costs is one way to affect that, and it is clearly warranted here given all set out above. Because this is an action of ill-discipline that must bear responsibility for what it has drawn on the other side and the Court. The instituting party the plaintiff must bear the costs of on an indemnity basis, there is clear evidence of blameworthiness that must meet costs in this regard forthwith. The State must be compensated together with the Court: Kagua-Erave District Development Authority v Sugu Cigars Builders Ltd [2023] PGSC 79; SC2429.
    
13. The formal orders of the Court are:
    
    • (i) The Originating summons for leave is refused as being without merit and is dismissed forthwith.
      
    • (ii) Costs will follow the event on an indemnity basis forthwith.
      

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants