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Wereh v Cajetan [2020] PGNC 196; N8418 (17 July 2020)

N8418

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 16 OF 2020 (IECMS)

BETWEEN:
SAMSON WEREH CHIEF EXECUTIVE OFFICER IALIBU PANGIA DISTRICT DEVELOPMENT AUTHORITY
Plaintiff

AND:
JOESPH CAJETAN ACTING PROVINCIAL ADMINISTRATOR
First Defendant

AND:
SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 30^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice of Motion – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case – Exhaustion of Internal processes – Evidence to the contrary – leave for review not made out – application denied – cost follow event.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Counsel:

G. Anis, for Plaintiff
K. Kipongi, for Defendant
RULING

17^th July, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons under order 16 Rule 3 (3) of the National Court Rules for leave to review the decision of the first defendant dated the 4^th June 2020 to suspend him from his duties as Chief Executive Officer Ialibu Pangia District Development Authority.
   
2. In compliance with the rules the other documents on record in support are a notice of motion of the 22^nd June 2020, a notice pursuant to Order 16 Rule 3 (3) of the National Court Rules, “the Rules” to the Secretary for Justice, a Statement pursuant to Order 16 Rule 3 (2) (a), an Undertaking as to Damages, including an affidavit sworn by the applicant verifying facts, affidavit of the applicant sworn 16^th June 2020 filed the 22^nd June 2020, yet a second affidavit of the applicant of the 24^th June 2020 filed same date. These are served with an affidavit of service of one Thompson Kama of the 23^rd June 2020 filed the 24^th June 2020. Which is supported by the affidavit of the 24^th June 2020 of this witness notifying the date of the hearing of this matter upon the State.
   
3. The facts that come to light in support of the application from these material is that the applicant was Chief Executive Officer of the Ialibu Pangia District Development Authority until the 4^th June 2020 when by letter of that date under hand of the Acting Provincial Administrator Joseph Cajetan he was suspended. It is annexure “A” of the affidavit of the applicant. And is in the following terms, “ The Acting District Administrator & Acting CEO, Ialibu Pangia District Development Authority P. O. Box 249, MENDI, Southern Highlands Province, Attention: Mr. Samson Wereh, the subject is Notice of Suspension from Duties as the Acting District Administrator & Acting CEO for Ialibu Pangia District.
   
4. I, Joseph Cajetan, Acting Provincial Administrator for Southern Highlands Province, by virtue of the powers conferred by section 74 (1) of the Organic Law on Provincial and Local Level Governments and Section 52 of the Public Service Management Act 1995 and the Public Service General Orders and other powers enabling, hereby suspend you with immediate effect from your duties as the Acting District Administrator and Acting CEO for Ialibu Pangia District.
   
5. Pursuant to section 50 of the Public Services Management Act 1995 you are hereby charged with the following disciplinary offence as the grounds for your suspension; You have been defying instructions and have not been attending to our Provincial Covid 19 Taskforce committee meetings for the past five consecutive weeks. That is a blatant disregard for the Emergency Orders as issued by the Controller for the Provinces to have their provincial Covid 19 Taskforce committee established to coordinate plans and measures to address the pandemic in the event that we have a case detected in the province.” It is very clear that the applicant has been suspended and with a charge to which he has replied particulars set out in annexure “B” of his affidavit.
   
6. This is very clear evidence that this matter is yet to be completed within that internal process. And it will not come into this court without exhaustion of that process. Leave cannot be sought without that completion. Further he is by that fact a person who does not have standing because suspension is not the same as dealing with the matter and completing it. He has not been affected by the process completed. The internal process has just merely started and the ink on the paper has not dried up for him to run into court. There is no delay but that is dependent on the exhaustion of the internal process which has not taken place here. It means also there is no arguable ground demonstrated because the internal process is still open and pending completion. It does not fit in with Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
7. The discretion of the court has not been satisfied on the material filed that leave should be granted. Suspension is the beginning of the process including charging and to which the applicant has replied. There is yet to be a decision taken as to whether that internal process has been sustained in the demise of the applicant as an employee there at the hands of the Acting Administrator and the defendants jointly. It is clear by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PGLawRp 495; [1987] PNGLR 70 (6 May1987) that the discretion of the court does not lie here given these facts. There is no merit to grant as applied.
   
8. Leave is refused with costs to follow the event if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Nicholas Tame Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants