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Pandum v National Executive Council [2019] PGNC 306; N8019 (23 September 2019)

N8019

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 810of 2019

COLONEL OTTO A. PANDUM
Plaintiff

V
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
MINISTERIAL EXECUTIVE APPOINTMENT COMMITTEE
Second Defendant

AND
HON. ELIAS KAVAPORE, MP. - MINISTER FOR PUBLIC SERVICE
Third Defendant

AND
TAIAS SANSAN SECRETARY FOR DEPARTMENT OF PERSONAL MANAGEMENT
Fourth Defendant

AND
GRACE SO-ON SECRETARY OF THE DEPARTMENT OF NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2019: 23^rd September

PRACTISE & PROCEEDURE – Judicial Review & appeals –notice of motion–stay – service of motion – no appearance respondent –undertaking as to damages – balance of convenience – serious issue to be tried– temporary injunction denied – motion dismissed – cost in the cause.

Cases Cited:

Gelu v Somare [2008] PGNC 166; N3526 (21 November 2008)
Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006)
Attorney-General v Maipakai, Minister for Justice [2004] PGNC 35; N2730 (24 November 2004)
Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005).
Singirok v National Executive Council [1997] PGNC 81; N1590 (3 July 1997)

Counsel:

B Lai, for Applicant
No appearance for Respondents
RULING
23^rd September, 2019

1. MIVIRI, J: This is the Ruling of the Court on an application by motion filed 30^th October 2018 pursuant to Order 16 Rule 3 (8) (a) and (b) of the National Court Rules to be granted interim orders to stay pending the final hearing and determination of the substantive judicial review application. Further, that the Defendants all be restrained forthwith from giving effect to the decision the subject of this review proceedings until further orders of the court. And that the first defendant be restrained forthwith from making any substantive appointment to the position of Director National Intelligent Organization pending the determination of these proceedings. And time for entry of these orders abridged to the time of settlement by the registrar which shall take place forthwith.
   
2. It is the Applicant’s contention by his affidavit that there should be no advertisement of the subject position Director National Intelligent Organization as it was advertised by Fourth Defendant whilst this action is not finalized as yet. He has written to the fourth defendant expressing.
   
3. He has sought to rely on the case Gelu v Somare [2008] PGNC 166; N3526 (21 November 2008) which premises four bases for the grant of stay. These are applicant must show there are serious questions to be tried or an arguable case exists; and there is an undertaking as to damages; that damages would not be adequate remedy if a stay is not granted; and that the balance of convenience favours.
   
4. It is the Applicant’s argument that he satisfies all the grounds for an interim stay to be granted against the Defendants in the terms of the motion sought. Because he was the number one merit-based candidate out of four persons considered for the position of Director National Intelligent Organization. He scored 95/120 and he was ranked one. He accepts that his confirmation in that position was not gazetted, the appointment was rescinded. He was not in that position but was one of the candidates in consideration for it. That is different as was in Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006). Who was in that position but was suspended. He sought a stay as here but was refused.
   
5. Here Applicant is one of the candidates undergoing a process of appointment that did not complete with Gazettal. Leave has been granted for Judicial Review on 6^th May 2019. And trial was allocated for 3^rd July 2019 but did not eventuate. The office of Director National Intelligent Organization is a public office and to stay appointment of a person to that seat will be not serve the justice of the case both for and against even if temporary. The balance is against the grant of the motion pleaded. There is nothing identifiable to sway otherwise.
   
6. The contrast of the present case is Attorney-General v Maipakai, Minister for Justice [2004] PGNC 35; N2730 (24 November 2004) where again the procedure taken to suspend a departmental head was questioned and successfully resolved by this court in favour of the departmental head. Judicial review is concerned with the process or procedure and not the substance. It is not concerned with who is the person in the right or wrong, it is concerned with the process to come out with the decision. In the case here process to appoint a director of the National Intelligent Organization. Which is different from the work of that office that must be allowed to proceed for good governance. The public good outweighs that there be no stay on that office and its duties. The confinement to the process here challenged will not effect what the Applicant Plaintiff has put here. In that sense there may be serious issues to be tried or an arguable case, but the balance of convenience does not favour the grant of an interim stay: Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005).
   
7. The interest of Justice is against the grant of the interim stay. And this is clear also from Singirok v National Executive Council [1997] PGNC 81; N1590 (3 July 1997) former commander of the defence force who sought to a stay to remain in the official commander’s residence but was refused after his termination. It was adjudged that damages were appropriate but not an injunction. There is nothing to sway different against the applicant.
   
8. Accordingly, his application is refused.
   
9. Costs will be in the cause.
   

Orders Accordingly.
__________________________________________________________________
B S Lai Lawyers: Lawyer for the Plaintiff Applicant
No appearance: Lawyer for the Defendant