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Sipison v Tkachenko [2018] PGNC 445; N7560 (2 November 2018)

N7560

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 479 OF 2018 (CC1)

BETWEEN
LUTHER SIPISON
Plaintiff

AND
HON. JUSTIN TKACHENKO in his capacity as MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND
TAIES SANSAN in her capacity as ACTING SECRETARY DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 19, 26 & 30 July & 7 August

PRACTICE AND PROCEDURE – Application to dismiss proceeding – whether the relief sought is an order in the nature of prerogative writs – whether an abuse of process to commence proceedings pursuant to Order 4 Rule 3(2) not Order 16 of the National Court Rules.

Cases Cited:

Hon. Puri Ruing v Hon. Dr. Allan Marat (2012) N4672
Polye v O’Neill and Others (2014) (unreported;
Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906);

Counsel:

Ms. Tiffany Twivey, for Applicant
Mr. Tom Manjin, for Respondents

2^nd November, 2018

1. DINGAKE J: This is an application to dismiss the proceedings as an abuse of process of the Court.
2. The application is made pursuant to Order 12 Rule 40 (1) of the National Court Rules, alternatively, pursuant to Order 12 Rule 40(1) of the National Court Rules. The applicants (defendants) pray that the proceedings be dismissed for failing to disclose a cause of action.
3. The applicants submit that the plaintiff ought to have commenced proceedings by way of Judicial Review in terms of Order 16 of the National Court Rules, as the decisions sought to be challenged are public law decisions and the relief sought are Orders in the nature of Certiorari and Mandamus; and that effectively the plaintiff (respondent) is seeking judicial review by the back door through civil proceedings.
4. The applicants also submit that the jurisdiction for the disciplinary investigation into the validity or otherwise of the conduct of the plaintiff (respondent) has already been assured by the Investigation Committee and the Ministerial Appointments Executive Committee and that the Court has no jurisdiction in this matter until the administrative processes are complete.
5. The plaintiff (respondent) opposes the application and argues that the proceedings were properly commenced pursuant to Order 4 Rule 3(2) of the National Court Rules.
6. The plaintiff (respondent) also argues that the proceedings disclose a cause of action because the respondent seeks, inter alia, a declaration that Ministerial Executive Appointments Committee (MEAC) Resolution appended to the Statutory Business Papers No. 43/2018 from the Minister for Public Services as Chairman of Ministerial Executive Appointments Committee, signed only by two Ministers contravenes Section 28(4) of the Public Services (Management) Act 2014 (PSMA), which requires that the quorum of a MEAC meeting is three.
7. The respondent argues that if the Court finds that the Resolution of MEAC referred to above is void then it would automatically nullify, a substantial portion of the National Executive Council Decision No. 26/2018, in particular, paragraphs 5, 6, 7, 9 and 10, whose net effect is to authorise disciplinary measures against the respondent to be undertaken.
8. It is clear from reading Decision No. 126/2018 and other affidavit material filed by the parties hereto that the respondent was suspended from the position of Secretary for Lands on 8^th February, 2017, but that such suspension was subsequently quashed by the National Court in proceedings OS(JR) No. 758 of 2018, and the respondent reinstated to his previous position as Secretary for the Department of Lands and Physical Planning.
9. It would appear that following his reinstatement, other allegations pertaining to his conduct surfaced. The Ministerial Executive Appointments Committee (MEAC) found that the allegations were serious and the respondent was served with a Show Cause letter detailing the new allegations and requesting a response within seven (7) days as to why disciplinary action should not be taken against him.
10. Following a receipt of a response from the respondent and certain processes, on the 13^th of July, 2018, the National Executive Council advised the Head of State to suspend the respondent, and the respondent was suspended.
11. An Investigation Committee was established to investigate the new allegations against the respondent.
12. Essentially, the proceedings commenced by the respondent, which the applicant, maintain is an abuse of Court process raise the issue of whether the NEC, MEAC and the Independent Committee are permitted to deal with and or determine the respondent’s disciplinary matter outside of one (1) month time limit set by NEC pursuant to its powers under Section 29 (4)(b) of the Public Services (Management) (Employment of Departmental Heads) Regulation.
13. In the Originating Summons, the respondent seeks wide ranging relief in the form of injunctions preventing the first and second applicants from inter alia, dealings with the disciplinary matter raised in the Notice to Show Cause for Misconduct in Office dated 24^th May, 2018, and the convening the Independent Investigation Committee as directed by the NEC on the 14^th May, 2018, to determine whether the respondent has a case to answer in relation to allegations raised in the Notice to Show Cause served on the respondent on the 4^th June, 2018, respectively.
14. The balance of the relief sought by the respondent is a series of declaratory orders, including, an order declaring that one month notice limit determined by the NEC on 14^th May, 2018, pursuant to Section 29 (4)(b) of the Regulation lapsed on or about 15^th June, 2018.
15. The above factual matrix raises the question whether the entire proceedings should be dismissed pursuant to Order 12 Rule 40(1) of the National Court Rules.
16. It seems to me that in his proceedings the respondent seeks to challenge the decisions of governmental entities or public authorities.
17. The Supreme Court has stated that whether or not a party seeking to challenge the decision of a government body or public authority should be by way of Order 16 of the National Court Rules or not is dependent on the relief being sought (Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906).
18. In the case of Polye v O’Neill and Others (2014) (unreported), the respondent had commenced ordinary civil proceedings by Originating Summons, seeking, orders in the nature of a declaration that the decision of the NEC made on the 6^th of March, 2014, for the procurement of some loan facility by the Prime Minister contravened Section 209 (1) and (2) of the Constitution and was null and void. The Court held that the respondent was effectively seeking judicial review of the procurement process and that the Orders sought are in the nature of prerogative writs and that in such a situation the proper procedure to invoke is the judicial review process under Order 16.
19. In the case of Hon. Puri Ruing v Hon. Dr. Allan Marat (2012) N4672, the respondent’s commenced proceedings by Originating Summons, seeking, substantively a declaration that the third applicant’s appointment as Director and Chairman of the National Airports Corporation by the Head of State pursuant to the advice of the National Executive Council was illegal and void ab initio for non compliance with statutory provisions. The Court held that the application constitute an abuse of Court process as it was commenced in correctly; The proceedings were dismissed.
20. In this case, it is plain that the respondent attades, inter alia, the legality of NEC Decision No. 200/2018 of 5^th July, 2018, to suspend him on the basis that is was made outside the one month time limit determined by the NEC on 14^th May, 2018. He also complains that the first applicant and Chairman of MEAC operated outside the directions of the NEC and that therefore the decision cannot stand.
21. It is also plain from paragraphs 1, 8 and 10 of the Originating Summons that the respondent avers that the decision to suspend him cannot stand on the basis of violations of various provisions of the Public Services (Management) (Employment of Departmental Heads) Regulations 2014.
22. In my mind the respondent is effectively seeking judicial review of the process that led to his suspension. It is plain that in reality the respondent is seeking judicial review although he has come to Court under Order 4 of the National Court Rules, seeking orders in the nature of injunctions and declarations.
23. In my mind, there is no disguising the fact that the respondent’s cause of action is that his suspension was void because the proper process was not followed in that the first and second applicants acted outside the directives issued by the NEC. He is primarily seeking a judicial review. He is effectively seeking orders in the nature of a prerogative writ and asking the Court to issue Orders, inter alia, preventing the applicants from acting contrary or outside the law.
24. In my mind, in order to determine the nature of the relief sought by a party, the Court does not necessarily look at the label a party chooses to attach to the proceedings but the substance of the relief sought.
25. Given my conclusion that the orders sought by the respondent are, in my considered and respectful opinion, in the nature of prerogative writs, in substance, it is not necessary to consider the other arguments advanced by the applicants. The proceedings are liable to be dismissed on the basis that Order 16 of National Court Rules was not utilized.
26. I state in passing, without deciding, that I am sympathetic to view that, this Court, whenever, invited by a litigant, to halt an investigation that is being conducted by a proper authority under the laws of Papua New Guinea, must be slow to do so, unless there is a compelling reason to interfere, based on the circumstances of each case.
27. In the result, it is ordered that:
    • (a) This proceeding is dismissed as being an abuse of Court process in terms of Order 12 Rule 40(1) of the National Court Rules.
    • (b) The costs of the proceedings to be paid by the respondent.

____________________________________________________________
Twivey Lawyers: Lawyers for the Applicant
Manjin Lawyers: Lawyers for the Respondents