An Ex parte Application of Eric Gurupa for leave to apply for Judicial Review (1990) N856

• Jurisdiction: Papua New Guinea
• Judge: Doherty AJ
• Judgment Date: 09 January 1990
• Citation: (1990) N856
• Court: National Court
• Year: 1990
• Judgement Number: N856

Full Title: An Ex parte Application of Eric Gurupa for leave to apply for Judicial Review (1990) N856

National Court: Doherty AJ

Judgment Delivered: 9 January 1990

N856

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 69 OF 1989

AN EXPARTE APPLICATION OF ERIC GURUPA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

Lae

Doherty AJ

21 December 1989

9 January 1990

PREROGATIVE WRITS — Certiorari — Application for Discretionary matter of — Delay as seeking — Grounds for Court to interfere with decision — Public Service (Management) Act 1986 ss 46, 47, 57 — Constitution s 155 (4).

An application for a writ of certiorari is, under O 16, r 4 of the National Court Rules, required to be made within four months. An applicant must show a body with a duty to act judicially has not done so.

The issue of an order nisi in the nature of a writ of certiorari being a discretionary matter, delay on the part of the applicant in seeking relief by means of the writ is an important factor to be taken into account.

Held

Accordingly, where there had been a delay of almost two years by the applicant in seeking leave for a judicial review, which was in effect an application for a writ of certiorari, in respect of his dismissal by the Secretary of the Department of Works, where the illegal use of Government vehicle was at issue, an order for leave should be refused.

Cases Cited

Dent v Thomas Kavali and Others [1981] PNGLR 488.

Ibrahim Sulaiman v The Papua New Guinea University of Technology (Unreported Judgment, No N 610, dated 20 August 1987).

Jovanes Arazi v Department of Transport and Civil Aviation [1981] PNGLR 436.

R v Electricity Commissioners [1924] 1 KB 171.

State, The v Giddings, Ex parte Tatian Tiangan Koan [1981] PNGLR 423.

State, The v District Land Court [1981] PNGLR 192.

Counsel

G Langtry, for the plaintiff

DOHERTY AJ: The applicant applies for leave for judicial review of the decision of the Secretary of the Department of Works dismissing him from the Public Service. He had been employed for a period of eleven years prior to his dismissal.

From the originating summons and the statement in support it appears that the Secretary of the Department of Works laid two charges against the applicant following an incident on the 21st of May 1987. The two charges relate to the same event and are for illegal use of the Government vehicle and threatening two night watchmen. Apparently this occurred at about 8.30 pm following a staff party. The vehicle was locked away at that time in the Works Department yard, which was being guarded by the night watchman. It was a Government vehicle. The applicant did not drive the vehicle he directed another person to do so and to take other staff members, who had been at the party home.

Notice under the Public Service (Management) Act 1986 was served on the applicant six days after the incident. He replied on the 29th of June 1987 but was dismissed. He says he appealed but was not called to appear before the appeal board. He says this action was unfair. He also says he considered the incident was a minor offence and that the vehicle was not damaged. He concedes he was drunk at that time. Other grounds given in the statement of support were:

(1) That the decision of the defendant through its servant or agent was harsh, oppressive, and unjust.

(2) That the defendant, through its servant or agent should have considered other forms of punishment under s 47 of the Public Services (Management) Act.

(3) That the decision was erroneous as the defendant was innocent of the charge of unlawful use of a motor vehicle.

(4) That there is no appeal from the defendant's decision provided for in the said Act, therefore the plaintiff seeks judicial review of the said decision by virtue of s 155 (4) of the Constitution.

The applicant brought his action under s 155 (4) of the Constitution. It appears to be an application to quash a decision of the Secretary for Works. It is in effect on application for certiorari.

The rules relating to certiorari are provided for in O 16 of the National Court Rules. As I pointed out to counsel for the applicant there appears to be two matters which he has to address. One is the time limits stated in the rules and the other is a substantive grounds for the application to show the Secretary for the Department of Works erred.

This application was lodged in the National Court in May 1989 that is almost two years after the original dismissal. The applicant's explanation is he needed to collect money for lawyers fees and he asked the Public Employees Association to assist in November 1987; that is five months after his dismissal. He cannot recall the dates when he sought legal assistance but he paid the first deposit to his lawyers in August 1988; that is one year and two months after. Documents were lodged in the National Court eight months later.

The National Court Rules O 16, r 4 (1) state that leave may be refused for undue delay. The relevant period in applications for certiorari is four months. This period restriction actions in certiorari were considered by the National Court in several cases prior to the introduction of the present National Court rules. These included Dent v Thomas Kavali and other [1981] PNGLR 488...