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Duwang v Manning [2020] PGNC 421; N8691 (10 December 2020)

N8691

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 71 OF 2020 (IECMS)

BETWEEN:
TONNY DUWANG
Plaintiff

AND:
DAVID MANNING COMMISSIONER OF POLICE
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 1^st & 10^th December

PRACTICE & PROCEDURE – 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 – Material relied sufficient – Balance discharged – Leave granted – cost in the cause.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Rataba v Commissioner of Police [2010] PGSC 51; SC1014

Wauwia v Inguba [2013] PGNC 61; N5232

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Counsel:

R. Diweni, for Plaintiff
K. Kipongi, for Defendant
RULING

10^th December, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 16^th November 2020 under order 16 Rule 3 (3) of the National Court Rules for leave to review the decision of the first defendant dated 16^th October 2020. The Statement under Order 16 Rule 3 (2) (a) supports together with an affidavit verifying and affidavit of the applicant and a notice of intent to move of even date.
   
2. This is in satisfaction of all originating process being in order for the applicant to move as he does. He is seeking leave to proceed by way of Judicial review because judicial review is a very restrictive process and there are stringent basis settled which must be discharged to the required balance for the applicant to be granted leave: Innovest td v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
3. Leave is granted if it is demonstrated to the required balance that there are arguable basis of the case that is being sought to be brought to review. And the applicant has standing in the matter. He is affected by that matter. Here no doubt and it is established and discharged to the required balance that the applicant has standing in the matter. Because he was employed by a contract of employment entered into of the 18^th December 2018 until the 08^th October 2021 with the Royal Papua New Guinea Constabulary annexure “TD4” of his affidavit sworn 12^th of November 2020 filed16^th November 2020. As a result of the decision taken by the Commissioner annexure “TD6” where his contract is terminated for cause effective immediately by the 15^th October 2020.
   
4. The termination is on the basis of breaches of the contract employing him clauses which are set out in that termination letter. And on the basis that the show cause replied has been considered but the view is to terminate. He is immediately affected as he has been employed with the constabulary since 23^rd February 1993 as an officer Cadet rising up to the date of termination Assistant Commissioner Logistics of Police. That is a career span of 27 years of loyal service to be ended by this termination. He has in all respects standing discharged to bring this matter as it is. The state has conceded that is the case in this regard. This ground is made out in his favour and the balance is discharged.
   
5. He has been very prompt in this application for leave which has been filed 18^th November 2020 after his termination on the 15^th October 2020 there really is no issue as to the time taken to file. It is just getting into a month. He discharges this ground for leave on the balance required. Because Order 16 rule 4 (2) sets the limit at 4 months because he is seeking certiorari here.
   
6. The remaining is that he must demonstrate that there is arguable case and there is merit in what he contends if it were left to go into a proper hearing on the substance. Here he advances that the contract was made under section 133 of the Police Act 1998 which meant that the provisions within the Police Act 1988 and the relevant provisions thereunder in particular as to dealing with serious offences came into consideration in his case or relevance section 23 dealing with serious offences. It sets out procedure that was to be followed in his case because it was a serious case. And which led onto sections 24 determination of the charge and section 25 Imposition of penalty were the charge was sustained. Then in particular section 26 penalties for serious offences. And then of section 153 Standing Orders which were issued by the commissioner and comprised orders instructions not inconsistent with the Act. They were not part of the way nor did they constitute the basis upon which his matter proceeded eventually to his termination. He relies on Rataba v Commissioner of Police [2010] PGSC 51; SC1014 (26 February 2010) which settles that provision of the disciplinary process set out by the Police Act are applicable and failure to adhere will be erroneous to the law in this case the disciplinary officer was not accordingly. So the appeal was upheld. And which has been followed in Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013).
   
7. I have considered the material advanced founded on the law set out above. I am satisfied that this ground has been made out on the balance of probabilities that the applicant has an arguable case in law and fact to be advanced on the required balance. There is merit to the cause accordingly he discharges all grounds for leave.
   
8. The discretion of the court has 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. A decision has been taken to that internal process sustaining in the demise of the applicant as an employee there at the hands of the Commissioner of Police. It is clear by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May1987) that the discretion here is prima facie and that is discharged on the merits accordingly leave is granted for Judicial Review with costs in the cause.
   
9. The formal orders of the Court are:
   
   • (i) Leave is granted for judicial review.
   • (ii) The matter will be mentioned Monday the 14^th December 2020 at 9,30am for directions.
   • (iii) Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Diwenis Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants