Joseph Yonge v Luke Niap, Acting General Manager PNG Harbours Board and Papua New Guinea Harbours Board (2001) N2101

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2101
• Date: 22 June 2001
• Year: 2001

Full Title: Joseph Yonge v Luke Niap, Acting General Manager PNG Harbours Board and Papua New Guinea Harbours Board (2001) N2101

National Court: Kandakasi J

Judgment Delivered: 22 June 2001

1 PRACTICE AND PROCEDURE—Want of Prosecution—Failure by Plaintiff and his lawyer to appear on date set by consent for hearing—Rules and the law requires prompt prosecution of such applications—Failure to comply should result in dismissal of action—O16 r4 of the National Court Rules (Ch38).

2 ADMINISTRATIVE LAW—Application for Leave for judicial review—Arguable case—Failure to show arguable case for review—Employment termination after charging Plaintiff with disciplinary offences and hearing the Plaintiff in his defence—Failure to demonstrate by appropriate evidence error of the Defendants—O16 r3 of the National Court Rules (Ch38).

3 Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund (1995] PNGLR 276, Ex parte Application of Eric Gurupa (1990) N856, Re Alleged Misconduct in Office by Honourable Peter Ipu Peipul: Peipul v Sheehan (2001) N2096, Inland Revenue Commissioners v National Federation of Self–Employed and Small Businesses Ltd (1982] AC 617, Ila Geno, Paul Lawton and Florien Mambu v The Independent State of Papua New Guinea (1993] PNGLR 22, Leto Darius v The Commissioner of Police (2001) N2046, Application of Demas Gigimat (1992] PNGLR 322, Application of Christopher Haiveta (1998) N1783 and John Joe Nemambo v Peter Peipul and The Independent State of Papua New Guinea (1994) SC475 referred to

___________________________

Kandakasi J: The Plaintiff is applying under O16 r3 of the National Court Rules (Ch38) for leave to apply for judicial review of a decision of the Defendants terminating his employment contract. He claims that, the defendants acted in excess of jurisdiction, acted unreasonably and the decision to terminate his employment was a sever penalty. The Defendants deny these claims and argue that the Plaintiff's application does not disclose an arguable case to warrant grant of leave for review. Also, on the date set for a hearing of the application, neither the Plaintiff nor his lawyer turned up to proceed with the hearing. The Defendants argued for a dismissal of the application both for want of prosecution and on the merits for failure to disclose an arguable cases.

Issue

There are two issues for me to determine. First, whether the Plaintiff's application should be dismissed for want of prosecution. Secondly, whether there is an arguable case, for grant of leave for judicial review.

First Issue: Want of Prosecution

(a) Background

The Plaintiff issued these proceedings on 11 May 2001, together with a notice of motion seeking inter alia, leave for judicial review. The motion was initially returnable on 25 May 2001. On that day, the motion was adjourned by consent of both parties to 6 June 2001...