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Kombuk v Simon [2022] PGNC 501; N10034 (18 November 2022)

N10034

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 107 OF 2021 (IECMS)


DANIEL KOMBUK SECRETARY FOR DEPARTMENT OF AGRICULTURE AND LIVESTOCK
Plaintiff


V


HONORABLE JOHN SIMON MINISTER FOR DEPARTMENT OF AGRICULTURE & LIVESTOCK
First Defendant


AND
HONORABLE JOE SUNGI MINISTER FOR PUBLIC SERVICE
Second Defendant


AND
PUBLIC SERVICE COMMISSION COMPRISING OF APEO SIONE CHAIRMAN, JUDITH STENIS ACTING COMMISSIONER AND RICHARD M SIMBIL ACTING COMMISSIONER
Third Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2022: 16th & 18th November


PRACTICE & PROCEDURE – Judicial Review – Substantive Notice of Motion Order 16 Rule 5 NCR – Ultra Vires – Unlawful or Illegal Acts – Denial of Natural Justice – Notice of Motion – Order 16 Rule 13 (13) (2) (a) & (b) (i) of the National Court Rules – Summary Dismissal – Independent Investigation Committee (IIC) Report Yet to Be Determined NEC – No Reasonable Cause of Action – Abuse of Process – Order 12 Rule 40 (1) (a) (b) & (c) of the National Court Rules – Frivolous & Vexatious – Materials Sufficient – Balance Discharged – Motion Granted – Proceedings Dismissed – Costs Follow Event.


Cases Cited:


Charlie v Paki [2021] PGSC 60; SC2134
Damem v Maipakai [2004] PNGLR 41
Haiveta, Leader of the Opposition v Wingti, Prime Minister; and Attorney-General; and National Parliament (No 2) [1994] PNGLR 189
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Isu v Ofoi [2014] PGNC 216; N5518
Kelo v Ipu [2020] PGSC 92; SC2003
Kisa v Talok [2017] PGSC 51; SC1650
Lowa v Akipe [1992] PNGLR 399
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317


Counsel:


R. Lains, for Plaintiff
K. Kipongi, for Defendants


DECISION


18th November, 2022


  1. MIVIRI, J: This is the ruling on the Plaintiff’s application for Judicial Review of his suspension by the National Executive (NEC) in its decision No. 187/2021 gazetted on the 22nd July 2021 National Gazette No. G506. He was granted leave by this Court for Judicial Review on the 13th of August 2021.
  2. Before determining whether Judicial review lies or not, it is necessary to address the defendants Notice of Motion filed as of the 29th September 2022 seeking pursuant to Order 16 Rule 13 (13) (2) (a) & (b) (i) of the National Court Rules, and the Court’s inherent jurisdiction to control proceedings before it, the proceedings herein be summarily dismissed for being incompetent on the grounds that;
  3. Alternatively pursuant to Order 12 Rule 40 (1) (a) (b) & (c) of the National Court Rules, the entire proceedings be dismissed for;
  4. Further in the alternative, pursuant to Order 12 Rule 1 and pursuant to this Courts inherent powers under section 155 (4) of the Constitution, trial of this matter set to proceed on the 30th September 2022 at 9.30am be vacated pending NEC determination on the IIC report and recommendation referred to in term 1 (a) above. He also seeks costs of the proceedings upon the plaintiff and any other orders in the discretion of the Court.
  5. It is necessary to determine it as it challenges the competency of the Judicial Review proceedings. And in my view, it is not erroneous to hear competency as is the case here. It is open in the entire proceedings: Haiveta, Leader of the Opposition v Wingti, Prime Minister; and Attorney-General; and National Parliament (No 2) [1994] PNGLR 189 which cites with approval Lowa v Akipe [1992] PNGLR 399; and Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112. These are competency of the appeals in the Supreme Court. Here the competency of the Judicial review is challenged. The principles are the same and it would not be erroneous to consider and determine the arguments raised. Accordingly, I apply it here in the determination of competency issue raised here.
  6. And the argument of the plaintiff that it will not be argued will not sustain given. Because when the motion itself is glossed it is really rebuttal to what the plaintiff is seeking. It is responding to the plaintiff’s assertion by the defendants. And so, there is no error to proceed to hear the application of the defendants. Because they must defend their case against the plaintiff. No authority has been sited to disallow its hearing. The notice of motion is supported by the affidavit of Taies Sansan sworn of the 21st September 2022 filed 29th September 2022. She is the current Secretary of the Department of Personnel Management (DPM) responsible for all Public Service matters including appointments revocation and suspension processes of Departmental heads, Provincial administrators, and heads of regulatory statutory Authorities. That she is aware that the National Executive Council (NEC) decided to suspend the plaintiff from office as Secretary of the Department of Agriculture and Livestock (DAL) on allegations of misuse and misappropriation of public funds. And that the NEC directed for the establishment of an Independent Investigation Committee (IIC) annexure TS1 is that NEC decision dated 21st July 2021, to be chaired by herself with members of other central agencies as per the regulations and to investigate into the allegations against the plaintiff applicant and to report back to NEC. Annexure TS2 is the Gazettal Notice dated 22nd July 2022.
  7. And which investigation was completed and, on the 17th of February 2022, the IIC report was forwarded to the then Portfolio Minister, Hon. John Simon, MP to proceed to lay Charges as per the IIC findings. Annexure TS3 is a copy of the Letter to Minister for DAL dated 16th February 2022 and TS4 is copy of the IIC Report dated 16th February 2022. And on the 15th March 2022 the then Minister for DAL formally served four (4) Disciplinary Charges dated the 7th March 2022 on Mr Kombuk at his residence, Kennedy Estate, 7 Mile and was received by Rachael Kombuk his daughter. And he was given 14 days to respond to the charges which lapsed on the 29th March 2022. Annexure TS5 is the proof of service served 15th March 2022.
  8. On 19th April 2022 the DAL Minister informed the Public Service Minister by letter that Mr Kombuk had not responded to the charges. And pursuant to his contract of Employment, failure to respond to the disciplinary Charges within time indicated that he was admitting it and so he recommended that his appointment be revoked and his contract of employment be terminated for the cause. That is annexure TS6 dated 19th April 2022. And annexure TS7 is copy of the letter to the office of the Attorney General dated 20th April 2022. Which was written by the Public Services Minister to the Office of the Attorney General Hon. Pila Ninigi, MP seeking a legal opinion on the disciplinary actions against the plaintiff applicant suspended Secretary of DAL pursuant to section 4 (e) of Regulation 7 of 2003. And on the 22nd August 2022 the Attorney General replied annexure TS8 letter dated 22nd August 2022 that all the charges were culpable and that his appointment must be revoked. The Attorney General added that DPM liaise with DAL to commence recruitment process for a substantive appointment of Secretary for DAL. That legal opinion is with the office of the Minister for DAL for consultation before referral to PSC for its recommendation to NEC as per the Regulations on Administrative investigation process.
  9. This evidence is corroborated by that of Hon. Joe Sungi MP Minister for Public Service affidavit sworn dated the 28th September 2022 whereby he says in addition to his affidavit filed of the 19th August 2021 that recent events have affected the utility of the proceedings. Firstly, by the NEC decision No. 195/2022 of the 04th May 2022, annexure “A” to his affidavit, where Stephen Mombi was appointed as the Acting Secretary of the DAL following suspension of the Plaintiff/Applicant. And which was revoked and a new appointment was made of Dr. Nelson Simbiken. And secondly after the suspension of the plaintiff the NEC established an Independent Investigation Committee (IIC) chaired by the Secretary of the Department of Personnel Management which committee completed its report and recommendations were forwarded to the Minster for Agriculture Hon. John Simon. And annexure “B” is copy of that report. That the administrative disciplinary process against the plaintiff/applicant is now nearly completed because the IIC report will be presented to the NEC by a submission which will be after consultation with the both Ministerial offices of DAL and Public Service, and Public Services Commission (PSC) and DPM pursuant to process set out by clause 19 of the Plaintiff applicants contract of employment. NEC is yet to receive the report and to make its decision on the basis of that IIC report. And for the plaintiff he is still on suspension on full pay. There is no prejudice to him. And also, to maintain the office of the Secretary DAL, the NEC has made an acting appointment which is a public office that must be filled for obvious reasons. And recently the plaintiff/applicant was subject to criminal proceedings. And the NEC has overriding authority to make the final decision in the matter which it has not and is pending. And it would be appropriate to have it dealt with and complete the matter. As it is, it is still pending. And his suspension by reference to section 31C of the Public Service Management Act 1995 allows so that investigations are mounted and completed against him. From which the NEC will decide whether to revoke his appointment or uplift the suspension and reinstate him to the job. From which the plaintiff will be at liberty to challenge in Court. But as it is now the process has not been completed.
  10. This affidavit reiterates the earlier affidavit of this witness sworn on the 19th of August 2021 detailing all set out above with annexures evidencing independently. Primarily depicting an administrative disciplinary process that has got underway to deal with the allegations properly lawfully against the plaintiff applicant by authorities designated by law to deal with him. And avoid short cuts and illegalities in that process. It will be completed once the NEC makes its decision based on the report and recommendations by the PSC with the DPM.
  11. And both these affidavits are verified and strengthened by that of Paralegal employed by the Office of the Solicitor General Department of Justice one Celsius Metio who attended on the 28th September 2021 at the criminal registry Waigani National Court to do a file search on the matter CR (FC) No. 117 of 2022-State v Daniel Kombuk and annexure “CM1”are copies of the Court documents in that criminal file against the plaintiff/applicant pending which he obtained from that search. The first is a court Order detailing the revocation of a bench warrant issued for the arrest of the plaintiff/applicant. On which is detailed for the State to file and serve its pretrial review statement by the 25th August 2022 and the Defence to do the same by the 2nd September 2022 and the matter to return to court on the 05th September 2022 for review of the bail and extension of the District Court bail. This order is dated the 15th August 2022 and signed by Justice Therese Berrigan of the National Court of Justice.
  12. Further an Indictment is attached charging the plaintiff applicant with Misappropriation under the Criminal Code Act of K112, 800 belong to the Government of Papua New Guinea contrary to section 383A (2) (b). That attached also is a criminal form 24 Pretrial Review Statement order in which the witnesses will be called issues in law and like that will emanate in that trial against the Plaintiff/Applicant. It also includes the allegation criminally against the Accused plaintiff/applicant.
  13. All these evidence is glossed against that of the plaintiff/applicant dated the 28th July 2021 and later again yet another of the 16th August 2021 in effect both giving opportunity in the disciplinary proceedings currently in progress for the plaintiff/applicant to give his account in defence of what has come about not yet to go to the hands of the National Executive Council for their determination as to whether or not the suspension is uplifted and he goes back to his duties, or it is revoked and his employment as Secretary DAL terminated. He has explained as to how he dealt with the money in the allegation and of his response to the Show cause Notice issued by the Minister for DAL. Again, demonstrating that it was administratively tracked to arrive a just position in law before the ultimate. In that affidavit too is the fact that the plaintiff applicant was employed through a contract of employment which disciplinary clause 19 was being given heed to in the various affidavits in defence that are set out above. It is a delicate process and therefore the length of time that has been taken to heed it. And that is the evidence set out in defence above.
  14. In my view what these evidence point to is that an administrative disciplinary process has been set in train which will be completed with the decision now pending in the hands of the NEC, who will decide either to uplift the suspension or revoke the appointment and recommend to the Head of State to terminate the appointment of the plaintiff applicant as Secretary DAL. It means the suspension is not the final decision in the matter. And further there is the related criminal proceedings now in that court yet to be determined. He is innocent until proven guilty by law, but it is a serious allegation to that office he holds now currently in suspension.
  15. And so, if it is Judicial Review what decision is being challenged by the plaintiff applicant. Certiorari is sought against what decision, let alone prohibition? That is unclear because arguments and submission by Counsel has not pointed to the Substantive Notice of Motion that sets in train the jurisdictional basis upon which his action derives originates from. And Order 16 Rule 5 is specific to this point which is in the following terms relevantly:

“(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.

(2) The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.

(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Notice of Motion.

(6) If on the hearing of the Notice of Motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person.”


  1. The notice of motion pleading has not been drawn to the Court by the plaintiff. When it was filed and what are the grounds pleaded. What is it that the plaintiff seeks by the Order and Rules of the Court given his facts and circumstances. And what remedies he seeks pursuant to it. That has not been the case here for the plaintiff applicant. When Counsel urged for the plaintiff he never in his submission, or in argument referred to the substantive notice of motion pursuant and what he sought from that motion. It is not enough to urge that this is judicial review stemming from an administrative decision. That argument must have the substantive Notice of motion setting out what is pleaded. Because that would be the jurisdictional basis for the Court to draw to make the decision on the facts to give effect to the remedies pleaded. Herewith out Substantive Notice of motion there really is no cause of action to be determined: Isu v Ofoi [2014] PGNC 216; N5518 (3 March 2014). Put another way the pleadings drive the cause of action Kisa v Talok [2017] PGSC 51; SC1650 (15 December 2017). With no pleadings or where it is inadequate the relief is not cured by submissions. Here this is fatal to the cause of action. There is no judicial review without the substantive notice of motion pleading what is submitted by counsel. Ultra vires error of law unlawfulness and section 59 of the Constitution must be pleaded in that Notice of motion complying with Order 16 Rule 5 of the Rules. That is not the case here for the plaintiff. He has not drawn that out to the Court as basis fundamental for his cause of action. It will not take his cause of action any further.
  2. It is not the duty of the Court to bring the material upon which the Case is made out, here for the plaintiff. The seven (7) page submission handed with leave from the bar table do not evidence any reference to that Notice of Motion and what is pleaded therein for the cause of the plaintiff'. Because it is fundamental that the jurisdictional basis from which the remedies flow is tied into the evidence. Particularly as here where the arguments advanced by the Plaintiff applicant is threefold; one, ultra vires, two unlawful and illegal acts and three, denial of natural justice. This proceedings start from that source without which there is and cannot be any judicial review proceedings. The Statement filed pursuant to Order 16 rule 3 (2) (a) is not the instituting process. It is not the fountain from which this action flows. The substantive Notice of motion is the source of this action. Because the order is specific “...the application shall be made by Notice of Motion to the Court.” In all that has been submitted by counsel for the applicant there is no reference to this source and what is pleaded in that document initiating. It would have prompted the next phase after grant leave Order 16 Rule 5 “Mode of Applying for Judicial Review” that a Notice of Motion instituting the Application for Judicial Review. It is an abuse of process and must be dismissed as no reasonable cause of action will be maintained without: Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.
  3. Further Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The plaintiff will have a cause of action once the NEC has made that decision waiting in its domain which will be sanctioned by the dictate of the Head of State and gazetted to take effect. The process must be allowed to be completed: Damem v Maipakai [2004] PNGLR 41 cannot give light to this cause because here is very clear evidence of the process leading to his suspension. He is not suspended without merit the evidence leading foretells that suspension is in order. And there is no ulterior motive except compliance of the law. Hence the gazettal within the terms of the Constitution section 193(1B) and Sections 31B and 31D of the Public Services (Management) Act 1995.
  4. Therefore, in all the circumstances there is no cause of action. Further this is an action that is frivolous and vexatious: Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020). The converse is Charlie v Paki [2021] PGSC 60; SC2134 (17 August 2021). The motion of the defendants sustain the balance. This action is dismissed in its entirety forthwith. It is an abuse of process of Court. And in accordance with the Notice of Motion is granted as pleaded.
  5. Costs will follow the event against the plaintiff in favour of the defendants if not agreed to be taxed.
  6. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Hardy & Stocks Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for Defendants

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