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Siaguru v Elias [2015] PGNC 125; N6018 (16 June 2015)

N6018

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 179 OF 2015

BETWEEN:

PROFESSOR PHILIP SIAGURU
Vice Chancellor of the Papua New Guinea
University of Natural Resources & Environment
Plaintiff

AND:

MARGARET L. ELIAS
Chancellor of the Papua New Guinea University
of Natural Resources & Environment
First Defendant

AND:

DR. SAMSON LAUP
Second Defendant

Kokopo: Higgins, J.
2015: 16th June

ORIGINATING SUMMONS – application for reinstatement of Vice-Chancellor – allegations of misconduct – University Council finds some sustained – no procedural fairness – failure to prosecute claim – action dismissed.

Case Cited:
Gene v. Hamidian-Rad [1999] PNGLR 444

Counsel:
Mr. Paul Yange, for the Applicant
Ms. Jacqueline Marubu, for the First & Second Defendants

DECISION

1. HIGGINS, J: On 4 April 2015, the plaintiff, Professor Philip Siaguru, sought relief against the defendants, the Chancellor of the Papua New Guinea University of Natural Resource and Environment (the University) and Dr. Samson Laup, the acting Vice-Chancellor. The plaintiff was the duly appointed Vice-Chancellor of the University.
   
2. On 12 February 2015, a report in the Post Courier newspaper reported concerns raised in Parliament about the administration of the University accusing the plaintiff of "high levels of nepotism". The same day the Minister for Higher Education Research Science Natural Resources and Environment ('the Minister') wrote to the first defendant requesting an urgent response to those allegations, which had been raised in Parliament by the Member for Rabaul and became the subject of the media report.
   
3. Accordingly, on Friday 20 February 2015, a meeting of the Council of the University was held. The plaintiff denied the allegations but agreed that a Sub-Committee should be appointed to deal with the issues raised and reported. It was resolved that the plaintiff would step aside pending the outcome of the investigation and an acting Vice-Chancellor be appointed. The second defendant, Dr. Samson Laup was subsequently so appointed by the Council. On 26 March 2015, the Council received an interim report from the Sub-Committee that its work was 90% done: It was stated that "they did not find evidence that will support those allegations but it became clear to the committee that the UNRE is lacking many policies that will guide the administration of the University".
   
4. On 1 April 2015, lawyers for the plaintiff wrote to the first defendant demanding his reinstatement protesting that the first defendant had no authority to call the meeting of 20 February 2015.
   
5. Be that as it may, the plaintiff had raised no objection at that meeting and had agreed to step aside whilst the allegations were investigated. The University of Vudal Act 1997 (PNG) constituted the University, then under that name. By s.8(a), the Council was "the principal executive authority" of the University. By s.29(f), the Vice-Chancellor is empowered to convene meetings of the Council. Though, under s.30, in the absence of the Vice-Chancellor, a Pro Vice-Chancellor might do so. Under s.10, the Council has the power to appoint "University officers". Under s.28, the Vice-Chancellor is one such officer.
   
6. In consequence, the Council was directed by the Court to meet on 8 April 2015 to consider and act upon the report of the investigation team. That date was varied to 17 April 2015.
   
7. On 22 April 2015, the defendants applied to dismiss the plaintiff's proceedings as frivolous or vexatious or an abuse of process. Non-compliance with O 16 r.3(1) was relied upon.
   
8. Strictly speaking, this was premature. Whilst it is true that leave had not been given for judicial review, the application for review had not been denied.
   
9. It was simply a case where it was preferable to await the outcome of the investigation set up by the Council before determining whether the relief sought should be permitted to proceed. Indeed, under Order 16 r.3(2), the application for leave is to be made ex parte.
   
10. The Council met again on 17 April 2015 and received a Draft Report of the Sub-Committee. It resolved further to discuss the matter on 6 May 2015.
    
11. The proceedings of that meeting were deposed to by the Pro-Chancellor, George Bopi.
    
12. In three respects, the plaintiff was found by the Committee prima facie to have breached the Leadership Code and Public Service General Orders. Firstly, in the appointment of his spouse as Acting Registrar. Secondly, in relation to the procurement of a motor vehicle from an unapproved dealer at considerable extra cost to the University. Thirdly, in failing to follow proper procurement processes in breach of the Public Finance (Management) Act. The plaintiff was sent a letter inviting him to show cause why his appointment should not be terminated.
    
13. On 2 June 2015, all parties were represented before the Court. The matter was fixed for hearing on 12 June 2015 at 9:30am. On that day, the defendants were represented but the plaintiff failed to appear. The matter was adjourned for further argument to 16 June 2015. Again, there was no appearance by or for the plaintiff.
    
14. Ms Maribu, for the defendants, seeks that these proceedings be dismissed on a number of bases.
    
15. The first is that the plaintiff proceeded under Order 4 r.3 rather than O16 r.1. The latter procedure requires leave of the Court. To proceed otherwise is, the defendants submit, an abuse of process.
    
16. Reference was made to Gene v. Hamidian-Rad [1999] PNGLR 444. However, in that case, an order was sought and granted at first instance quashing an administrative ban imposed on the respondent. The procedure by way of notice of motion was found, on appeal, to be inappropriate. There being no case for dispensing with compliance with O 16, the procedure was held to be invalid.
    
17. In the present case, the decision to call a meeting of Council was sought to be challenged on the basis of lack of authority to do so. That may have had merit but for the acquiescence of the plaintiff in that process which, arguably at least, validated the meeting. I do not need to consider whether the Minister's direction was sufficient for the purpose.
    
18. That left the question as to whether the failure to reinstate the plaintiff was open to challenge. That occurred after he had applied by Originating Summons for relief. No doubt had he wished to do so he could have regularised the proceedings by seeking leave to proceed to challenge the subsequent decision. He has not appeared in order to do so. The original claim is now otiose in the light of subsequent events.
    
19. These proceedings are dismissed accordingly.
    
20. I will hear the parties as to costs.

______________________________________________________________

Islands Legal Services: Lawyers for the Plaintiff
Solwai Lawyers: Lawyers for the First & Second Defendants