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Unido v Mamu [2020] PGNC 96; N8307 (20 March 2020)

N8307

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 924 OF 2019

BETWEEN:

JOHN UNIDO
Plaintiff

AND:
LESLIE B. MAMU – PUBLIC SOLICITOR
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Dowa AJ
2020: 4^th & 20^th March

PRACTICE AND PROCEDURE – application by first defendant to dismiss plaintiff’s proceedings on the grounds of not disclosing a reasonable cause of action and want of competency –office of public solicitor is independent and not subject to control by public services commission – ruling made by supreme court in special reference filed by public solicitor seeking clarification as to its role - Supreme Court rules office of the Public Solicitor is a Constitutional Institution and the Public Service Commission does not have jurisdiction to review the decision of the Public Solicitor and/or his officers on personnel matters – Supreme Court ruling binding on National Court - plaintiffs application for judicial review dismissed

Cases Cited:

Attorney General Gene v Hamidina-Rad (1999) PNGLR 444
Kekedo v Burns Philip (1988-1989) PNGLR 122
National Provident Fund Board v Maladina& Others (2003) N2486
Wabia v BP Exploration Co.Ltd (1998) PNGLR8)

Counsel:

John Unido In Person
R. Pariwa, for the First Defendant
No Appearance for the Second Defendant

JUDGMENT

20^thMarch, 2020

1. DOWA AJ: This is a ruling on an interlocutory application by the Respondent in these proceedings, pursuant to Order 16 Rule 13 off the National Court Rules.

2. The background facts are not disputed. The Applicant is a Lawyer formerly employed by the Respondents at their Lae Office. He was terminated from employment on 4^th August 2017.

3. The Plaintiff applied to the Public Service Commission for review on 22 June 2018. After reviewing, the Public Service Commission quashed the decision of the Respondent and directed him to reinstate the Plaintiff.

4. The Respondent aggrieved by the decision of the Public Service Commission filed a Supreme Court Reference under SCR 03/2018 questioning the Public Service Commission’s review jurisdiction over the decisions of the Public Solicitor on personnel matters of officers of the Public Solicitor.
   

Plaintiff’s Application

5. Pending the determination of the Supreme Court Reference, the Plaintiff filed a Notice of Motion on 31 May 2019, seeking Judicial Review of the Respondents decision for failing to comply with the direction of the Public Service Commission.

6. The Plaintiff in his Notice of Motion was seeking the following orders:

“1. A declaration pursuant to Order 16, Rule 2 of the National Court Rules that the continuation of the First Defendant’s delay, failure, refusal or neglect to comply with the Public Service Commission’s decision dated 22^nd June 2018 to reinstate the Plaintiff’s the Senior Legal officer – Crimes, based in Lae, which was served on the first Defendant’s office on the 5^th July 2018 is unreasonable and without any legal basis.

2. An order by way of Mandamus pursuant to order 16, Rule 2 of the National Court rules that the first Defendant be directed to reinstate the Plaintiff to his former position or equivalent level and the Plaintiff’s wages, salary and entitlements be back dated to 21^st June 2017 forthwith.
   
3. In the alternative, an order by way of certiorari that the Decision dated 28^th April 2017 that is still maintained by the First Defendant, whereby the Plaintiff was dismissed from the Public Service made pursuant to section 52(5)(e) of the Public Service (Management) Act 1995 be brought into this Honourable Court and be quashed.
   
4. In the further alternative, the Plaintiff claims Damages for unlawful termination.
   
5. Costs of this proceeding be paid by First and Second Defendants.
   
6. Any other Orders the Honourable Court deems just.”
   

7. In order to succeed in his Notice of Motion for the grant of judicial review, the Plaintiff has to satisfy the Court that, the decision sought to be reviewed is erroneous, procedurally flawed, unreasonable and that there was breach of natural Justice, and abuse of power. See Attorney General Gene v Hamidina-Rad (1999) PNGLR 444; Kekedo v Burns Philip (1988-1989) PNGLR 122

Supreme Court Ruling

8. On 13^th November 2019, the Supreme Court, gave its ruling stating that the office of the Public Solicitor is a Constitutional Institution and the Public Service Commission does not have jurisdiction to review the decision of the Public Solicitor and/or his officers on personnel matters.

9. The ruling of the Supreme Court prompted the Respondent to apply to the Court to dismiss the Plaintiff’s Notice of Motion for Judicial Review. The terms of the Respondent’s Notice of Motion are:

1. The Plaintiff’s application for judicial review by way of Notice of Motion filed on 31^stMay, 2019, seeking substantive relief for judicial review be dismissed in its entirety for disclosing no reasonable cause of action; and,
   
2. The Plaintiff’s application for judicial review by way of Notice of Motion filed on 31^st May, 2019, seeking substantive relief for judicial review be dismissed in its entirety for Want of competency in failing to plead the appropriate jurisdictional basis of the Court to deal with such application; and,
   
3. The plaintiff’s application for judicial review be dismissed in its entirety for disclosing no reasonable cause of action in failing to plead appropriate grounds for review in the Order 16 Statement filed on 7^th December, 2018; and,
   
4. The Plaintiff’s application for judicial review be dismissed in its entirety for want of competency in failing to plead the appropriate grounds for review in the order 16 Statement filed on 7^th December, 2018.”

No Reasonable Cause of Action

10. I now turn to the first ground. The Plaintiff’s main application was to enforce the decision of the Public Service Commission. I have read the Supreme Court decision in SRC No.03/2018 by Public Solicitor (2019) SCA No. 1871. The Supreme Court has now ruled that the Public Solicitor’s decision on personnel matters are not subject to review by the Public Service Commission.

11. The Public Solicitor is not subject to any direction or control by the Public Service Commission. The ruling is binding on the National Court, and the current proceedings. It renders the current proceedings frivolous and without cause. It is clear, if allowed to proceed to full hearing, it is bound to fail. (See Wabia v BP Exploration Co.Ltd (1998) PNGLR8).

Want of Proper Jurisdiction

12. The second ground relates to Want of Jurisdiction. The Respondent alleges, that the Plaintiff failed to cite the proper jurisdictional basis under the Rules. The Plaintiff cited Order 16 Rule 2 as the jurisdictional basis. The Respondent submitted the proper rule was Order 16 Rule 5(1). Having failed to cite the proper rules, the Notice of Motion is therefore incompetent.

13. The Plaintiff responded that the Court has inherent jurisdiction to deal with the matter by involving powers under Order 1 Rule 7, Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.

14. I do not follow the Plaintiff’s submission. Whilst the Court has general powers, those powers are exercised within the confinement of prescribed law, the National Court Rules, settled case law and fair play. Where a Court is invited to exercise its powers, it is incumbent on the party seeking relief, to cite the appropriate jurisdictional basis of the Court to invoke its powers.

15. In the present case, the Plaintiff cited Order 16 Rule 2 as the jurisdictional basis. I agree with counsel for the Respondent that it is not the correct rule.

16. The Plaintiff did not plead the correct jurisdictional basis. Generally, the pleadings drive the evidence. Pleading the proper law notifies the opposing party what case he is facing.

17. In the Case of National Provident Fund Board v Maladina& Others (2003) N2486, Kandakasi J (as he then was) said:

“The law on pleadings generally is settled in our jurisdiction. A clearest statement of the law is by the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. John Etape, in these terms:

"‘besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’.

Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. In Pilato -v- Metropolitan Water Sewerage and Drainange Board, McClemens J said at 365 – ‘Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies’."

Competency of Statement/Application

18. The third ground challenges the competency of the Application. The Respondent submitted that the Statement filed in Support of the Leave Application, and the Judicial Review did not disclose a cause of action.
The Plaintiff maintained that at the time of seeking leave, he had a case against the Public Solicitor for failing to comply with the direction of the Public Service Commission.

19. I find the Statement was drafted and filed before the decision of the special Supreme Court Reference. After the decision being made, the grounds are now rendered frivolous. To this end, they are not proper and competent grounds to be pursued.

20. For the reasons given above, I grant the application sought by the Defendants.

21. At this stage I must comment that, the Plaintiff’s proceedings were somewhat disrupted by turn of events. There was some evidence that suggest that the Plaintiff was aware of the Special Supreme Court Reference. With some patience, the Plaintiff would have weighed out his options and chosen a proper course.

22. Also, at this juncture, I must also state, I am not dealing with any substantive case involving the Plaintiff’s termination. That is a matter for another forum.

23. The formal orders of the Court are:

1. The Plaintiff’s Notice of Motion filed 30^th May 2019 is dismissed.
   
2. The entire proceedings are dismissed.
   

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Public Solicitors: Lawyers for the First Defendant