Stanley Miam v Joe Dai, Deputy Secretary, Department of Labour & Employment and Margaret L Elias, Secretary for Department of Labour & Employment and Peter S Tsiamalili, Secretary for Department of Labour & Employment and Independent State of Papua New Guinea (2009) N3699

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 12 May 2009
• Court: National Court
• Citation: (2009) N3699
• Docket Number: O.S. No. 267 OF 2004
• Year: 2009
• Judgement Number: N3699

Full Title: O.S. No. 267 OF 2004; Stanley Miam v Joe Dai, Deputy Secretary, Department of Labour & Employment and Margaret L Elias, Secretary for Department of Labour & Employment and Peter S Tsiamalili, Secretary for Department of Labour & Employment and Independent State of Papua New Guinea (2009) N3699

National Court: David, J

Judgment Delivered: 12 May 2009

N3699

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. No. 267 OF 2004

BETWEEN:

STANLEY MIAM

Plaintiff

AND:

JOE DAI, DEPUTY SECRETARY, DEPARTMENT OF

LABOUR & EMPLOYMENT

First Defendant

AND:

MARGARET L. ELIAS, SECRETARY FOR DEPARTMENT OF LABOUR & EMPLOYMENT

Second Defendant

AND:

PETER S. TSIAMALILI, SECRETARY FOR DEPARTMENT OF LABOUR & EMPLOYMENT

Third Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Mt Hagen: David, J

2009: 23rd March & 12th May 2009

PRACTICE & PROCEDURE – application for judicial review under O.16 National Court Rules – leave granted – failure to file notice of motion to apply for substantive relief under O.16 r.5 (1) - application to dismiss for want of prosecution under O4.r.36 National Court Rules – time is of the essence in judicial review proceedings – date for hearing to be fixed in accordance with O.16 rr.5 (3)(4) and 13 - delay is intentional, inordinate and inexcusable – failure of plaintiff to prosecute proceedings with due despatch – proceedings dismissed.

Cases cited:

Kai Ulo & 2 Ors v. The State [1981] PNGLR 148

Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55

Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133

Vivisio Seravo v. Jack Bahofa (2001) N2078

Joseph Yonge v. Luke Niap (2001) N2101

John Niale v. Sepik Coffee Producers Ltd & ors (2004) N2637;

Kely Kerua v. Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534

Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845

Counsel:

Danny Gonol, for the Plaintiff

Veronica Yobone, for the First & Second Defendants

RULING ON MOTION

12th May, 2009

1. DAVID, J: INTRODUCTION: I gave a brief ruling this morning and undertook to publish my full reasons later. This I now do.

2. By an Amended Notice of Motion filed on 19th March 2009, the First and Second Defendants sought, inter alia, the following orders:-

1. That the proceedings be dismissed for want of prosecution pursuant to O.4 r.36 (1) of the National Court Rules.

2. That the proceedings be disposed of summarily for being incompetent pursuant to r.13 (2)(a) of the Judicial Review (Amendment) Rules 2005.

3. That the proceedings be disposed of summarily for abuse of court process pursuant to O.12 r.40 (1) of the National Court Rules.

3. The First and Second Defendants rely on the Affidavit in Support of David Tibu sworn on 2nd March 2009 and filed on 10th March 2009. Mr. Tibu is the current Secretary for the Department of Labour and Industrial Relations. It is quite apparent from the evidence that the Department of Labour and Industrial Relations is the new name for the Department of Labour and Employment and therefore the names will be referred to interchangeably in the judgment.

4. The Plaintiff contests the application. He relies on the following Affidavits:-

1. Affidavit of Plaintiff of Stanley Miam sworn on 11th May 2004 and filed on 17th May 2004 (the Plaintiff’s First Affidavit);

2. Affidavit in Support of Stanley Miam sworn on 7th July 2008 and filed on 9th July 2008 (the Plaintiff’s Second Affidavit);

3. Affidavit in Response of Danny Gonol sworn on 17th March 2009 and filed on 18th March 2009.

5. At the hearing, Ms. Yobone of counsel for the First and Second Defendants handed up her clients’ written submissions for my assistance for which I am grateful. I have perused and considered those submissions together with her oral submissions as well as those advanced by Mr. Gonol of counsel for the Plaintiff.

BRIEF BACKGROUND AND FACTS

The Plaintiff’s allegations

6. The Plaintiff was employed as a Senior Labour Officer, occupying position No.FOSH 006, Grade 10 and was attached to the Department of Labour and Employment, Mt Hagen Regional Office. He had been employed in that position at Mt. Hagen since 1984 until his purported retrenchment in early 2001.

7. He was forced to be retrenched which was in breach of procedures contained in General Order No.16 governing redundancy and retrenchment in the public service. He was never personally served with a purported notice of retrenchment dated 8th January 2001, but a copy of the notice was sent to him by facsimile on 15th January 2001 together with a Deed of Release. He did not sign the Deed.

8. The Plaintiff concedes that his retrenchment payout was paid into an account of his, but that was done without his consent.

9. By his letter addressed to the Secretary of the Department of Personnel Management dated 17th January 2001 which was made to the attention of the Redundancy Monitoring Committee, the Plaintiff lodged an appeal against his retrenchment requesting to be reinstated.

10. On 2nd February 2001, the Redundancy Monitoring Committee considered and dismissed the appeal. The Secretary for the Department of Personnel Management at the time, the late Mr. Peter Tsiamalili conveyed the decision of the Redundancy Monitoring Committee to the Plaintiff in his letter to the Plaintiff dated 8th February 2001. That letter contained the grounds for dismissal and also by which the Plaintiff was notified that he was required to collect his retrenchment cheque from that Department if he had not done so already.

11. Aggrieved by the dismissal of his appeal, the Plaintiff, by his letter addressed to the Secretary for the Department of Personnel Management dated 16th March 2001 which was made to the attention of one Robert Yass, Chairman, Redundancy Monitoring Committee, requested the Redundancy Monitoring Committee to review its decision. No response to that letter was received from the Redundancy Monitoring Committee.

12. In the meantime, because his substantive position was advertised, the Plaintiff applied, but was unsuccessful as the Selection Committee viewed him to be unsuitable for the position. He then corresponded with; the Secretary of the Department of Personnel Management by his letter of 27th August 2001; and one Mr. Peter Neimani, First Assistant Secretary, Field Operations with the Department of Labour & Employment by his letter of 29th August 2001 requesting to be reinstated to his former position because the successful applicant, to be precise, Mr. Pingi Sakato was a former Provincial Labour Officer who had a run in with the law previously and had been retrenched. No response was received in respect of both letters.

13. After a lull, which was due to the dismantling of the Redundancy Monitoring Committee and renegotiations of a new redundancy and retrenchment agreement between the Public Employees Association and the Department of Personnel Management, he, in an undated letter, wrote to the Public Services Commission requesting for a review of a personal matter basically in regard to the propriety of the appointment of Mr. Pingi Sakato.

14. The Plaintiff also wrote to one Dr. Pok who was the Minister for Labour and Employment then to intervene. That resulted in the Minister writing to the Second Defendant, Ms. Elias, Secretary for the Department of Labour and Employment on 22nd April 2002 directing her to liaise with officers concerned at the Department of Personnel Management and to brief him on the status of reinstating the Plaintiff within the Department of Labour and Employment. No response was given to that letter.

15. Whilst waiting, an advertisement was placed inviting applicants to apply for the vacant position of Provincial Labour Officer, Goroka, No. 01/2003-FOSH 003, Grade 12. He applied, but was unsuccessful.

Commencement of proceedings

16. The Plaintiff was not achieving anything so on 17th May 2004, he filed the present proceedings seeking the following orders:-

“1. leave to apply for judicial review of the procedures taken by the Defendants culminating in the Plaintiff being retrenched from employment;

2. an order in the nature of certiorari to bring up to this Court and quash the decision to retrench the Plaintiff;

3. the Plaintiff be reinstated to his substantive position or in the alternative be accorded a position parallel to his substantive;

4. an order that the Plaintiff be paid his lost entitlements from the date of retrenchment to the date of this order;

5. cost on the substantive application.”(sic)

17. Leave was granted on 23rd August 2004.

Further allegations about developments after commencement of proceedings

18. On or about 16th November 2006, the Public Services Commission reviewed the Plaintiff’s matter and decided that he be reinstated to his substantive position. That decision was conveyed by the Public Services Commission to the Secretary for the Department of Personnel Management in its letter of 16th November 2006. The Secretary for the Department of Personnel Management then wrote to the Secretary for the Department of Labour and Employment on 20th May 2007 and 30th August 2007 directing him to implement the decision of the Public Services Commission to reinstate the Plaintiff.

19. Despite numerous letters having been sent by himself or by...