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Hualupmomi v Sansan [2024] PGNC 96; N10753 (28 March 2024)

N10753

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF JUDICIAL REVIEW UNDER
SECTION 155(3) OF THE CONSTITUTION AND
ORDER 16 OF THE NATIONAL COURT RULES

OS(JR) NO. 16 OF 2024 [IECMS]

BETWEEN:
DR. FRANCIS HUALUPMOMI, DEPUTY SECRETARY OF POLICY AND QUALITY ASSURANCE IN THE DEPARTMENT OF HIGHER EDUCATION RESEARCH SCIENCE & TECHNOLOGY
Plaintiff/Applicant

AND:
TAIES SANSAN

First Defendant/Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant/Respondent

Waigani: Dingake J
2024: 12^th & 28^th March

JUDICIAL REVIEW – practice and procedure – application for leave for judicial review – first defendant allegedly terminated plaintiffs contract of employment - the Plaintiff has to show that he has sufficient interest in the matter; he has exhausted all available administrative avenues, he has not delayed to file this proceeding and he has an arguable case - State concedes Plaintiff has established all of the requirements, save for exhaustion of all the available administrative avenues before coming to Court - Plaintiff failed to appeal to the Public Services Commission as required – plaintiff has failed to exhaust all available administration remedies open to him before approaching this Court – plaintiff did not appeal decision to Public Services Commission – application for leave for judicial review refused

Counsel:

Mr. Solomon Wanis, for the Plaintiff
Ms. Pauline Yom, for the First & Second Defendants

RULING

28^th March 2024

1. DINGAKE J: This is my ruling on the leave application filed by the Plaintiff on or about the 28^th of February 2024.
   
2. The Plaintiff prays that he be granted leave to review the Second Defendant’s decision to terminate his employment as Deputy Secretary of Policy & Quality Assurance in the Department of Higher Education Research Science and Technology on the 25^th of October 2023.
   
3. It seems on a consideration of the totality of the Plaintiff’s papers filed of record that reference to the Second Defendant in the Originating Summons is a typographical error as the Plaintiff clearly intended to mean the First Respondent because it is clear that it is the First Respondent who took the decision complained of and sought to be reviewed.
   
4. The Plaintiff was at all material times hereto serving under a three (3) year written contract of employment that commenced on the 13^th of December 2021.
   
5. It is common cause that he was suspended by the Secretary for Higher Education on or about the 12^th of May 2023, and subsequent thereto his contract was terminated by the First Defendant/Respondent on the 25^th of October 2023.
   
6. In terms of the Statement in support, pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, the Plaintiff if granted leave seeks to challenge the decision to terminate his employment on several grounds, namely, error of law, denial of natural justice and Wednesbury principles of unreasonableness.
   
7. In order to succeed in this application, the Plaintiff has to show that he has sufficient interest in the matter; he has exhausted all available administrative avenues, he has not delayed to file this proceeding and he has an arguable case.
   
8. The State concedes that the Plaintiff has established all of the requirements, save for exhaustion of all the available administrative avenues before coming to Court.
   
9. I agree with the concession of the State.
   
10. The State argues that the main administrative avenue that was available to the Plaintiff was to appeal his termination to the Public Services Commission (PSC).
    
11. At paragraph 7 of the Plaintiff’s Affidavit in Support (Doc No. 5) the Plaintiff states that: “... as a matter of exhausting administrative procedure, caused an appeal letter to the First Defendant/Respondent, the Secretary for Department of Personnel Management.”
    
12. The supporting Affidavit does not say why the Plaintiff did not appeal the decision of the First Defendant to terminate his employment to the Public Service Commission in terms of Section 18 of the Public Service Management (PSMA) Act of 1995.
    
13. On the evidence before me, it is clear that the Plaintiff failed to appeal to the Public Services Commission as required. He therefore failed to exhaust all available administration remedies open to him before approaching this Court.
    
14. It follows from the above, that this application is not entitled to succeed.
    
15. In the result, the application for leave is refused with costs, such costs to be agreed or taxed.

_______________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants