Thadeus Kambanei v The National Executive Council & 5 Others (2006) N3064

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 10 April 2006
• Court: National Court
• Citation: (2006) N3064
• Docket Number: Os No. 199 of 2006 (Jr)
• Year: 2006
• Judgement Number: N3064

Full Title: Os No. 199 of 2006 (Jr); Thadeus Kambanei v The National Executive Council & 5 Others (2006) N3064

National Court: Injia, DCJ

Judgment Delivered: 10 April 2006

N3064

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 199 OF 2006 (JR)

BETWEEN:

THADEUS KAMBANEI

-Plaintiff-

AND:

THE NATIONAL EXECUTIVE COUNCIL & 5 OTHERS

-Respondent-

Waigani : Injia, DCJ

2006 : April 5, 6, 7 & 10

JUDICIAL REVIEW – Administrative action – Decision of National Executive Council to suspend Departmental Head on disciplinary grounds –Application for Leave to apply for judicial review – Granted – Application for interim injunctions – Whether interim orders which restores the applicant to his position pending the determination of the substantive application should be granted – Relevant Principles – Application refused – National Court Rules. O.16 r.3(8).

Cases cited in the judgment:

Francis Damem v Minister for Public Service & Ors N2730 (2004).

Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831.

Counsel:

H. Nii, for the Plaintiff

D. Lambu, for the First, Second, Third, Fourth & Sixth Defendants

S. Singin, for the Sixth Defendant

10 April, 2006

1. INJIA, DCJ: The Plaintiff applies for leave for judicial review of the Sixth Defendant’s decision (NEC) made on 24 March 2006 to suspend him from office as Secretary for the Department of Finance. If leave is granted the Plaintiff applies for interim mandatory injunction to prevent the service of the suspension notice on him and other consequential orders which would result in him being restored in office pending the determination of the substantive application. The application for leave is brought under Order 16 Rule 3 of the National Court Rules (NCR) and the application for interim mandatory injunction is made under Order 16 Rule 3(8) and principles of the common law. The defendants contest both applications.

2. At the hearing, the plaintiff sought to rely on various affidavits, some of which were annexed copies of correspondences exchanged between the Plaintiff’s lawyer and the Public Service Commission (PSC), the National Executive Council (NEC) and Public Service Minister (The Minister), the PSC and the Minister. The affidavits also referred to details of communications exchanged between the plaintiff’s lawyer and the Secretary for NEC.

3. The defendants objected to the facts submitted to the court by the defendants’ counsel. The Defendants objected to the admissibility of all facts, except only two, set out in the Plaintiff’s Statement in support of application for leave filed under O.16 r.3 (the Statement) and additional facts, notice of which was given in writing by the Plaintiff’s counsel to the defendants’ counsel. The main basis for the objections were that in the case of the information and documents from the NEC, they were obtained in breach of the privilege accorded by s.51(1)(b) of the Constitution. In respect of information and documents released by the PSC, they were obtained in breach of ss.3, 7 and 8 of the Attorney-General Act 1989 and Rule 10 of the Lawyers Professional Conduct Rules. Counsel for the NEC then sought leave to withdraw an affidavit filed by the Prime Minister as Chairman of NEC which contained evidence which could contradict some of their objections on the facts. The defendants admitted only two facts and these were (1) the Gazette Notice published by the head of State on 24 March suspending the Plaintiff and appointing one Gabriel Yer as Acting Secretary and (2) the Notice of allegations served by PSC on the Plaintiff dated 22 March 2006. Full arguments were made by both parties on the facts ad I indicated I would rule on it when I rule on the application for leave. I have considered all of those arguments.

4. In my view, a hearing of an application for leave for judicial review normally does not involve a dispute or contest on the verified facts set out in the statement or additional affidavits. The court makes no determinations on disputed facts. The Court is simply required to make a quick perusal of the material in order to form a judgment on the requirements for leave and not get bogged down with disputed facts which would involve determination of the merits of the case for or against a party. The time for that is at the hearing of the substantive application if leave is granted. For this reason, I dismiss the defendants’ objections on the facts and also refuse leave to withdraw the affidavit filed by NEC Chairman. If leave for judicial review is granted, the defendants are at liberty to revive the same objections and the court will determine their admissibility on their own merits. For purposes of the present application, I will peruse all the affidavit evidence filed by all parties in order to determine if the requirements for leave have been met.

5. As for the four requirements for grant of leave, full arguments were also made on behalf of all parties. I have considered all of them. There is no contest on three of the four requirements – the plaintiff has locus standi, there is no delay in making the application and there is no administrative avenue for appeal or review of the NEC decision. The dispute is over whether the Plaintiff has an arguable case. There is one main ground for review and that is that the NEC decision is seriously flawed in that it was made without a recommendation for suspension by the PSC as required by s.193 ID of the Constitution and s.31 D of the Public Service Management Act (PSMA). In Francis Damem v Minister for Public Service & Ors N2730 (2004), I said that there appeared to be an inconsistency between these two provisions in that under s.193 ID of the Constitution, PSC is required to make the recommendation direct to the Head of State under procedure prescribed by an Act of Parliament, whereas under s.31D of the PSMA, PSC is required to make a recommendation for suspension to the NEC. Whichever way one reads these provisions, the recommendation for suspension must come from PSC and the NEC and/or the Head of State must act in accordance with the recommendation.

6. On the evidence before me, I am satisfied that the Plaintiff has an arguable case on the question of whether PSC made such recommendation, based on which the NEC or the Head of State made the decision to suspend. The Gazette notice shows that PSC was consulted by NEC before it made the decision to recommend suspension by the Head of State. The evidence suggests that PSC was not consulted and it did not make such recommendation. This gives rise to an arguable case in law. For these reasons, I grant leave for judicial review.

7. The principles on mandatory injunction, interim or permanent, are those canvassed by Justice Lay in Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831, a case extensively cited by Mr Nii in his submission. His Honour examines the main English, Australian and PNG cases and extracts nine (9) principles established by those cases as follows:

1. A mandatory injunction should normally only be granted where a strong case that serious damage will occur to the applicant is made out.

2. The general principles for negative injunctions apply, that is that there is a serious case to be tried, damages are not an adequate remedy and the balance of convenience favour the applicant, but the case should normally be one giving an unusually strong and clear view that the applicant will be successful at trial.

3. The more likely it appears that the plaintiff will succeed at trial the less reluctant the court will be to interfere on an interim basis.

4. But if it is necessary to make some interim order the Court will do so whether or not the high standard of probability of success is made out.

5. The costs to the defendant of performing the mandatory acts should be weighed against the likely damage to the applicant.

6. If the relief sought is such as would normally only be granted after a trial, it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportion to the prejudice and hardship to be caused to the defendant in performing the order.

7. If the mandatory injunction is simply to restore some activity which has been previously performed by the defendant, rather than to embark upon some new activity, it will be more readily granted.

8. Ultimately, in deciding whether or not to grant a mandatory injunction the overriding consideration is an exercise in deciding which course will do the least damage, or, to put it another way, the lower risk of injustice, if it turns out that the court has made the “wrong” decision.

9. If an injunction is granted the order should specify exactly what it is the defendant has to do, leaving the defendant in no doubt as to what is required to comply with the order.

8. Most of the English, Australian and PNG cases from which the above principles are established are cases on preservation of property and business rights in actions in contract or torts. They are general principles however and are equally applicable in judicial review proceedings where the Court is asked to consider the grant of stay following grant of leave, under Order 16 Rule 3(8). A stay under Rule 3(8)(a) is a prohibitive injunction in nature and it is wide enough to allow interim mandatory injunction to be granted. Also s.155(4) of the Constitution is available for this purpose. Of course judicial review proceedings...