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Bili v Baki [2011] PGNC 262; N4509 (28 June 2011)

N4509

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 295 OF 2009

BETWEEN:

STANLEY BILLY
Plaintiff

AND:

GARI BAKI – Commissioner of Police
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson, AJ
2011: 28 June

JUDICIAL REVIEW - Application for Leave to Proceed by way of judicial review – relevant principles – requirement for Grounds to be clearly pleaded in Statement – 5 years was undue delay – detrimental to good administration – leave refused.

Cases Cited:

Paul Asakusa & Ors v. National Housing Corporation & Ors (2008) N3303
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Robertson Rataba v. Gari Baki & Ors (2010) SC1014

Counsel:
Mr. S. Uyassi, for the Plaintiff
Mr. M. Norum, for the Defendant

DECISION
28 June, 2011

1. THOMPSON AJ: The Plaintiff made an application for leave to proceed by way of judicial review, seeking certiorari of the Defendant's decision to dismiss him from his employment, which decision was made on 8 May 2006. The Originating Summons, Statement and other documents were filed herein on 9 June 2009. The application for Leave was made on 28 June 2011.

2. The principles relating to consideration of an application for leave, are well settled. After proof of service of the documents on the Secretary for Justice, the Plaintiff has to show that he has sufficient standing to bring the application, that there has been no undue delay in making the application, that he has exhausted all alternative remedies, and that he has an arguable case on a prima facie view.

3. Pursuant to the decision of Paul Asakusa & Ors v. National Housing Corporation & Ors (2008) N3303 and Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, the Grounds pleaded in the Statement must 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 and on which relief by way of judicial review is available. The grounds on which relief by way of judicial review are available, do not include consideration of the merits of the decision. They only cover the decision-making process, where the decision-making authority exceeded its powers, lacked jurisdiction, made an error of law, breached natural justice or made a decision which no reasonable decision- making authority could have made.

4. Order 16 Rule 3(2) provides that an application for leave must be supported by a Statement setting out the grounds on which it is sought. The cases including Asakusa's case say that the material filed in support of the application for leave, is separate from the pleading of the Grounds in the Statement. The Court will not sift through the material to ascertain what the grounds or particulars of those grounds are. Unless leave is sought and granted to amend the pleading of the Grounds in the Statement, then leave to apply for judicial review should be refused. Any ground of review which fails to meet this proper and sufficient pleading test is an incompetent ground, is not arguable, and leave should be refused.

5. The Originating Summons seeks only an Order for leave to apply for judicial review of the Defendant's decision of 8 May 2006 to dismiss the Plaintiff. The supporting Affidavits set out the facts and circumstances. The Statement contains six Grounds for review.

6. In relation to standing, the Plaintiff was the subject of the decision to dismiss him, and clearly has sufficient interest in that decision to challenge it.

7. The Plaintiff has said that he applied to the Defendant for a review of the decision at some time between August 2007 and October 2008, and that his application for review was rejected on 8 October 2008. He says that there are now no other alternative remedies available to him.

8. The next issue is the question of delay. As the Plaintiff is seeking review by way of certiorari, the provisions of Order 16 Rule 4 are applicable to him. His application for leave was made more than four months after the date of the decision. In fact, the proceedings were filed more than three years after, and the application for leave is being made five years after, the date of the decision.

9. The Plaintiff submits that the only relevant period of delay is the period between the date of rejection of his appeal in October 2008, and the date of lodgement of the proceedings in June 2009. However, he has not given any explanation for that delay of almost eight months, apart from the intervention of the National Court vacation. That vacation period is not relevant, because the time limit for issuing proceedings still runs during a Court vacation. It is only the time limit for filing pleadings which does not run during a vacation. Furthermore, there is still the further delay from the date of filing the documents in June 2009, and the date of making this application for leave in June 2011. Apart from a brief reference to his lawyers being busy with other cases, the Plaintiff has given no explanation for this delay.

10. The remaining issue is whether or not the Plaintiff has an arguable case, on a prima facie view. To determine this issue, the Court must consider the Grounds as pleaded in the Statement.

11. The first Ground is that the decision to dismiss him was unreasonable and excessive in the circumstances. However, the circumstances are not pleaded. In any event, this Court is not concerned with the merits of the decision, but only with the decision-making process. There is no pleading of any error in that process.

12. The second Ground is that the service of some document in 2004 was not promptly made, in breach of a statutory requirement. However, there is no pleading of how this 2004 document relates to the 2006 decision which is the subject of the Review.

13. The third Ground is that the Notice was defective because it was signed by a former and not a current Commissioner. No particulars are pleaded of how this may breach some statute or common law provision.

14. The fourth Ground is that the Notice was defective because it was based on charges for which criminal proceedings had also been laid, and was therefore double jeopardy. However, the criminal charges had been dismissed, so there could not be a double jeopardy.

15. The fifth Ground was that the decision was biased, and some particulars are pleaded.

16. The sixth Ground says that there was an error of law by charging him under an Act which did not exist, but no particulars are pleaded.

17. The Plaintiff referred me to the case of Robertson Rataba v. Gari Baki & Ors (2010) SC1014, where the Court upheld a Ground of review that a Sergeant who had investigated the charges was only a non-commissioned officer. The Plaintiff submitted that this was applicable because a sergeant in this case was also a non commissioned officer. However, there is no Ground in the Statement which pleads that a sergeant who laid a charge was not a commissioned officer, and therefore Rataba's case is not relevant.

18. Only one of the six Grounds pleaded in the Statement contains a clear description of a 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. Five of the six Grounds do not comply with the proper and sufficient pleading test, and are therefore incompetent.

19. There is one remaining Ground. However, when taken in conjunction with the fact that the application for leave is being made in June 2011 to review a decision made in May 2006, I consider that there has been undue delay in making this application, and I have formed the opinion that the grant of leave would consequently be detrimental to good administration.

20. I therefore refuse the Plaintiff's application for leave. I make no order as to costs.
____________________________________________________
Mr. S. Uyassi: Lawyer for the Plaintiff
Mr. M. Norum: Lawyer for the Defendant