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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 147 OF 2024
BETWEEN:
DR JOSEPH APA
Plaintiff
AND:
CHRISTOPHER KOPYOTO as the Chairman of the Board of Eastern Highlands Provincial Health Authority
First Defendant
AND:
DR POMUSO WARIMA as the Acting Chief Executive Officer of Eastern Highlands Provincial Health Authority
Second Defendant
AND:
TAIES SANSAN, as the Secretary for the Department of Personnel Management
Third Defendant
AND:
DR LINO TOM as the Minister for Health and HIV
Fourth Defendant
AND:
DR OSBORNE LIKO as the Secretary for the Department of Health and HIV
Fifth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Bre, AJ
2024: 29th August & 03rd September
CIVIL PRACTICE AND PROCEDURE – ex parte interim orders returnable - application for summary dismissal - whether there is a serious question to be tried or a reasonable cause of action - whether proceeding a matter of contract, private law or public law - evidence shows decision aggrieved of made under statute and not under contract - no serious question to be tried - no reasonable cause of action - proceeding dismissed.
Cases Cited
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd [2005] N2878
Kiee Toap v Independent State of Papua New Guinea [2004] N2766
Lau v Sansan [2024] N10671
Robinson v National Airlines Commission [1983] PNGLR 478
Samiak v Mosoro [2011] N4916
Takori v Yagari [2007] SC905
Legislation
National Court Rules, O4r3(2)(a) and O12r40(1)
Provincial Health Authorities Act 2007, ss15, 29, 49 and 56
Provincial Health Authorities (Chief Executive Officer) Regulation 2020, ss54 and 55
Counsel
Mr F. So, for the Plaintiff
Mr A Manase appearing with Ms E Paul, for the First, Second, Third, Fourth and Fifth Defendants
Ms Z Waiin, for the Sixth Defendant
RULING
03rd September 2024
1. BRE, AJ: The matter returned for inter-parte hearing of interim restraining orders granted ex parte on 28 June 2024.
However, the first to the fifth defendants filed an application on 12 August 2024 to summarily dismiss the entire proceeding for not disclosing a reasonable cause of action and for being an abuse of process in commencing the wrong mode of proceeding.
After seeking views from both counsels, I proceeded to hear the dismissal application first as its outcome will determine the interim restraining orders and the proceeding.
2. The plaintiff is the substantive Chief Executive Officer of the Eastern Highlands Public Health Authority. He was appointed for a four-year term on 15 June 2021. He was suspended by the Eastern Highlands Public Health Authority Board (‘the Board’) on 6 June 2024 to which he filed this proceeding and obtained interim injunctive orders on 28 June 2024.
The second defendant was appointed to act for a period of three months but could not take office because of the interim injunction.
3. The defendants rely on the following evidence to move their application:
4. The plaintiff/respondent relies on his affidavit filed on 28 August 2024 (Doc 17).
5. The defendants made submissions challenging the jurisdictional basis of the reliefs sought in the Originating Summons filed on 20 June 2024 as not citing statutory jurisdictional authority for the reliefs sought and the legal basis of the proceeding which they submit should have been correctly commenced by judicial review after the disciplinary process outlined in the Provincial Health Authorities Act 2007 ( 'PHA Act'), Provincial Health Authorities (Chief Executive Officer) Regulation 2020 ('Regulation') and the plaintiff's employment contract are exhausted.
In relation to the interim injunction, the defendants submitted that the interim injunction should be discharged and reaffirmed its submissions on the summary dismissal of the proceedings that there is no serious question to be tried and that the balance of convenience does not favour the extension of the interim junction.
6. Counsel for the plaintiff challenged the defendants' submissions on grounds that the proceeding was seeking declarations and injunctions only and was properly before the court. Counsel relied on the cases of Lau v Sansan [2024] N10671 and Samiak v Mosoro [2011] N4916.
The plaintiff submitted that the balance of convenience favored the extension of the interim injunction as the second defendant’s acting appointment was expiring in eight days time and the plaintiff had established normalcy within the Eastern Highlands Provincial Hospital despite attempts allegedly by the first and second defendants to disrupt the plaintiff and he must be allowed to continue in office. That the interest of justice should be considered to maintain the current status quo and to extend the interim restraining orders.
7. Both parties[1] also raised various allegations of impropriety concerning threats and the use of financial powers of the position of the Chief Executive Officer.
8. Based on the submissions of counsel, the evidence and law relied on by both parties, I consider that the crucial issue for my determination is whether there exists a serious question to be tried. To me, this goes to evidence and the merit of the proceeding and is a crucial issue in deciding both the interim injunction and the vitality of the proceeding. In my deliberations, I will also consider the balance of convenience and the interests of justice.
9. The uncontested facts are that the plaintiff was suspended on 6 June 2024 by the board of the Eastern Highlands Provincial Health Authority whose chairman is the first defendant. The second defendant was appointed by the board on the 5th of June 2024 in the same meeting where the Board resolved to suspend the plaintiff pending investigations into serious allegations. The second defendant’s appointment as acting Chief Executive Officer was gazetted on 10 June 2024.
This proceeding was filed on 20 June 2024 with the interim injunction issued ex parte on 28 June 2024 restraining the defendants from taking any further action and the acting Chief Executive Officer from taking office.
10. The court is mindful that the parties hold public offices and the decisions and actions taken appear to have affected the operations of the provincial hospital. The Court finds the allegations of impropriety by the plaintiff, the first and second defendant, about alleged intimidation and the exercise of financial delegations, concerning. However, these are not substantively before the court, but these matters pertain to leadership and governance of the public health authority and are noted.
11. Order 12 rule 40 of the National Court Rules ('NCR') vests the Court with jurisdiction to summarily dismiss the entire proceeding on grounds of failing to disclose a reasonable cause of action, being frivolous and vexatious or an abuse of process. The case law is well settled. Where the proceeding is alleged to not disclose a reasonable cause of action, the Court must look to the form or legal basis of the proceeding and the facts averred to ascertain whether these two elements disclose a reasonable cause of action known in law. See Kiee Toap v Independent State of Papua New Guinea [2004] N2766 and Takori v Yagari [2007] SC905. Originating summons do not require pleadings so I will only look to the relief claimed and the legal basis of the proceeding.
13. I turn to consider the relief sought in the originating summons and the plaintiff's contract and relevant law pertaining to the
disciplinary process.
The originating summons seeks declarations: -
1) that the plaintiff is employed on contract and that the processes in clauses 14 and 15 of the plaintiff's employment contract was
not followed,
2) that the suspension notice was irregular and contrary to clauses 14, 15 and 16 (a) and (b) of the plaintiff's employment contract,
3) that the first defendant had no power to suspend the plaintiff,
4) that the second defendant's appointment as acting Chief Executive Officer was improper as there was no vacancy,
5) that the plaintiff be allowed to serve out his tenure, and
6) the defendants be restrained from interfering with the plaintiff.
14. Mr So relied on Lau v Sansan and Samiak v Mosoro to submit that the mode of proceeding is correct. He submits that the proceeding is seeking declarations and injunctions only and is based on the plaintiff's employment contract, and the plaintiff has a choice of action. That Order 4 rule 3(2) (a) NCR allows proceedings to commence by originating summons where the principle issue is the construction of, amongst others, a contract.
While I accept that a litigant can bring proceedings by originating summons under Order 4 rule 3(2) (a) NCR seeking the construction of a contract, I disagree with counsel that this is a construction of contract case nor that Lau v Sansan applies.
Lau v Sansan is distinguishable from this case. In Lau v Sansan the defendant decision makers had not yet exercised any of their statutory disciplinary powers in the relevant Act of Parliament.
In that case, Lau took issue with an advice from the Secretary Department of Personnel Management requiring him to take paid leave
pending the outcome of investigations after serious allegations were received by the defendants. I concluded that:-
"46 ... the relevant decision under consideration is the decision taken by the Secretary under clause 19.15 of the employment contract. No exercise of statutory power by the defendants has occurred yet under s60A PSMA or s7 PSR. Judicial review applies to the review of the exercise of powers under statute by public officials. The relief sought is a declaration seeking to confirm the state of affairs.”
15. In Samiak v Mosoro, the National Court held the plaintiff had a choice to decide whether to proceed by originating summons or judicial review and held the proceeding only sought declarations and injunctions and were proper. However, in my view, this is not a relevant case in deciding whether there is a serious question to be tried.
16. The question then is whether the legal form or basis of the proceeding is premised on contract or the PHA Act and Regulations. This is a question of private law and public law and its outcome, in my view, depends on the evidence concerning the actions taken leading up to the plaintiff's suspension.
17. In my view, clauses 14 and 15 of the plaintiff's employment contract provides a two-step process to consider whether to suspend the Chief Executive Officer ('CEO') where evidence of serious misconduct has been brought to the attention of the Board. These are that the Board is to consider : -
18. Clause 16 of the employment contract outlines the process where there is evidence to substantiate allegations and describes the process the Board to follow to lay charges and decide on punishment where applicable. I find clause 16 is not relevant as there is no evidence that the Board has reached this stage.
19. In terms of statutory law, the PHA Act provides for the manner of appointment, suspension and dismissal of the CEO as prescribed in the PHA Act section 29 and the Regulations by virtue of section 56 of the PHA Act. Section 56 of the PHA Act provides for regulations to be made concerning any matter mentioned in the PHA Act. The Regulations are issued pursuant to section 56 and has its basis in the PHA Act.
20. Pursuant to Section 49 of the Regulations, the Board of a Public Health Authority is vested with the authority to discipline the CEO. Where the Board believes that the CEO has committed a disciplinary offence, it is required to investigate the allegations by appointing an independent investigator or a subcommittee of the Board to conduct the investigations. The investigator or the subcommittee then makes its recommendations to the Board concerning the matters outlined in Section 49(3)(c) to (g) of the Regulations.
21. Sections 54 and 55 PHA Act provides that the Board may suspend the CEO at any time during the course of the investigations where the investigator decides that grounds for suspension exists.
22. The evidence[2] of the first defendant is that the Board had received serious allegations of misconduct against the plaintiff and exercised its disciplinary powers to suspend the plaintiff with pay following a preliminary report by an investigator which it had appointed by instrument of delegation on 28 May 2024. The evidence shows the Board convened a meeting on 5 June 2024 to deliberate on the allegations and the suspension of the plaintiff amongst other matters, discussed that day. The suspension notice was signed by the first defendant as the Board chairman and served on the plaintiff, the next day.
23. In my view, the actions by the Board in appointing the investigator, deliberating on the serious allegations received and in suspending the plaintiff brings the dispute squarely into the domain of public law as the Board's decisions are premised on the statutory provisions of sections 49 of the PHA Act and sections 54 and 55 of the Regulations. Accordingly, the right forum to challenge the decision is by way of judicial review pursuant to Order 16 NCR.
I accept Mr Manase's submissions that clause 14 and 15 of the employment contract reflect the terms of Part XI of the PHA Act and in my view, clause 14 and 15 are consistent with section 49 of the PHA Act and sections 54 and 55 of the Regulations.
The Board has exercised its powers under public law to suspend the plaintiff.
24. There is no evidence of any decision regarding the completion of the process of laying of charges and finding of guilt. I accept the State's submission that the suspension is the first stage of disciplinary action taken by the first defendant against the plaintiff. I form the view that the rest of the disciplinary process under statute, going to a decision to laying charges or not, has not commenced.
25. In considering the balance of convenience, the Court will consider where the risk of injustice is the lowest. See Nawae Constructions Ltd v Morobe Concrete Products Ltd [2021] SC2151. In my view, the balance of convenience requires the disciplinary process to be completed. The allegations of impropriety regarding financial powers and allegations of intimidation indicate that the provincial hospital operations may be adversely affected, and sick people may not be able to receive treatment. This is a greater risk compared to the status quo continuing with the Board unable to perform its mandated duty to oversee the performance of the CEO and the provincial hospital. The Board's functions are to ensure the health services provided by the PHA comply with the Act's requirements and for that the Board has powers to appoint and discipline the CEO pertaining to the management of the Public Health authority. See sections 15 and 29 PHA Act.
I consider it crucial to good governance of this important public welfare institution, that the Board must be allowed to complete the disciplinary process under the PHA Act, Regulations and the plaintiff's contract. In my view the balance of convenience does not favour the injunction continuing.
26. Where there is any damage suffered by the plaintiff, I consider that those damages would be to do with the plaintiff's employment for which damages are an adequate remedy.
27. Further, the interest of justice requires the rules of natural justice be observed in disciplining public officials, the court to guard against abuse of its process and the rule of law be upheld. The proper process of the law in disciplining a chief executive officer of a public health authority must be followed through and exhausted before seeking redress before the Court. The evidence is that the first defendant has complied with the first stage of investigation into the allegations and the Board exercised its discretion to suspend the plaintiff according to law. Commencing an action pursuant to Order 4 rule 3 NCR by originating summons regarding a decision made under statute that is subject to judicial review is abuse of process.
28. On the issue of whether there is a serious question to be tried, I do not consider there exists any serious issue to be tried as the suspension of the plaintiff is in my view, consistent with the plaintiff's employment contract clauses 14 and 15, sections 49 of the PHA Act and sections 54 and 55 of the Regulations. I am not satisfied that the plaintiff has a real possibility of success given the evidence of the first defendant of compliance with the disciplinary process in suspending him. See Robinson v National Airlines Commission [1983] PNGLR 478 at 482 and Ewasse Landowners Association Inc v Hargy Oil Palms Ltd [2005] N2878.
It is therefore my ruling that the cause of action is premature as the disciplinary process has not been exhausted and no reasonable cause of action has been disclosed by the proceeding.
29. For these reasons, I exercise my discretion to dismiss the entire proceeding and discharge the ex parte interim restraining order initially issued on 28 June 2024 and subsequently extended to 26 July 2024, 12 and 29 August 2024.
Order
30. The formal Orders of the Court are:
Orders accordingly,.
________________________________________________________________
Ketan Lawyers: Lawyers for the Plaintiffs
Manase Lawyers: Lawyers for the First, Second, Third, Fourth and Fifth Defendants
Solicitor General: Lawyer for the Sixth Defendant
[1] Affidavit Dr Joseph Apa (Court file document No: 17) and Affidavit of Dr Pomuso Warima (Court file document No: 16)
[2] Affidavits of Christopher Kopyoto (Court File Document Nos: 8 and 11)
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