Lili v Gabut, Secretary for Department of Fisheries & Marine Resources [1995] PGNC 56; N1394 (28 December 1995)

Unreported National Court Decisions

N1394

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 196 OF 1993
BETWEEN:
POCHON LILI - Plaintiff
And:
JOSEPH GABUT, Secretary for Department of Fisheries & Marine Resources - First Defendant
And:
PAUL SONGO, Secretary Department of Personnel Management - Second Defendant
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA - Third Defendant

Waigani

Sheehan J
28 December 1995

JUDICIAL REVIEW - claim of failure to comply with statutory procedures - application for reinstatement.

Counsel:

Mr F Gubon for the Plaintiff

Mr L Manua for the Defendants

28 December 1995

SHEEHAN J: Thisa matter which went tont to trial before the late Mr Justice Konilio but not determined before his death. The evidence in this r is r is largely affidavit evidence and by consent of the es submissions on facts ands and law are put before me for decision.

The Applicant formerly a Deputy Secretary of Department oheries & Marine Resourcsources seeks review of a determination to suspend him and charge him with various breaches of duty. The suspension of the Plaintiff arose out of allegations of misconduct against him and other senior officers of the Department that had been made to the First Defendant, Joseph Gabut, on his taking over as Secretary of the Department in December 1992. Thllegations included fail failure to use proper procedures in the issue fishing licences allegations of misuse of Departmental fund failing to acquit travel monies expended both locally and overseas.

The Plaintiffntiff sought judicial review of:

“the decisions made by the Secretary Fisheries and Marine Resources and the Secretary for Personnel Management to suspend and charge the Plaintiff without the complying the requirement of Public Services (Management Act) and for not carrying out the recommendations of the Public Services Commission set out in the Statement filed...”

In the Statement filed in support of the summons the Plaintiffs seeks:

(a) ҈& an orde order for for leave to apply for judicial review of the decision made by the 1st Respondent to suspend the Plaintiff on 11 March 1993 charging him for five offences on 8 April 1ithouplying with the rthe requirequirements and procedures set out in the Public Services and (Management Act) 1986 in dealing with the charges.

(b) ҈& An orde order to d to declaring the said decisions null and void and in its stead, the 1st respondent accept and implement the recommendations of PSC on this matter.

(c) &##160;nte im orim order foer for the stay of the decisions.

And thereafter an order for damages including exemplary damages. By wayxplanation tatemees mees onay (inter alia) that:

“the0;the 1st 1st RespoRespondent decided to charge the Plaintiff with five charges under the Pubervices (Management Act) all of these charges were minor, ror, relating mainly to non acquittal of travel funds for trips that the Applicant took which were dully authorised. The only failurehe part ofrt of the Applicant was his non submission of Public Services acquittal forms. There no suggestion in then these charges that the Applicant improperly apply the use of its funde. he did not take the trip trips for which the moneys were released.”

The grounds on which relief is sought are:

“(a) The decs were wrong in lawn law and harsh and oppressive within the meaning of s 41 of the National Constitution.

(b) &#The decision to suspend aend and charge the Applicant were clearly disproportionate to any improper conduct negligence or breach of any Plaintiff that is the decision was harsh oppressive and unwarranted.

(c) &#160 decesion to suspend aend and charge were made against the spirit of the Public Services Management Act in that the suspension aargin contto na justice and the bias shown by the Secretary is further reasoreason whyn why his his decisdecision should be set aside.

(d) The findings aere edriv that through a very superficial investigation.

(e) ـ The dece decisions were made against the spirit of the Public Services (Management Act) in that the decisions were taken without compliance with rocedrequit of the Act.

(f) ; Thi decisions ions were core core contrarntrary natural justice.

(g) &#16e 1st Respondent was bias biased in his decision in that he took in account wrong and improper considerations.”

Thee of laintclaimlearly misconceived. At the verst it has been ween wron wrongly pgly pleadeleaded.&#1d. As setabove, the Plaintiffntiff apparently seeks to challenge by way of judicial review the decision of the Secretary to suspend him while investigations were made ine allegations that the Plaintiff had been guilty of miscondsconduct, and the decision made upon receipt of a report of that investigation, charges that charges should be laid requiring the Plaintiff to answer.

But in fact at the hearing of this appionation the Plaintiff offered no serious challenge to the Secretary’s undertaking that course though he and his Counsel imissions are critical of him for doing so. The real challenge o PlainPlaintiff (althoalthough it is not pleaded), is aimed at the decisions of the 1st Defendant following the suspension, investigation and laying of charges. That is, although the revought is of the decisions tons to suspend and charge, the real criticism of the Plaintiff is aimed at the decisions of the Secretary pose penalties.

But first, this review must deal with the issues as pleaded by the Pthe Plaintiff. I believe that the Seryry’s letter to the Public Services Commission of the 14 July 1993 is an appropriate summary of the facts concerning tsues of suspension and charges. It covers both the relevant events and it is more or e or less contemporaneous with them. The r was in fact a reply eply to the Public Services Commission of its notice of intention to review the suspension following eceipan appeal by the the applicant.

“SECRETARY FOR FISHERIES AND MARINE RESOURCESURCES

PO Box 165

KONEDOBU

Papua New Guinea

14 July 1993

The Chairman

Public Services Commission

PO Box 2335

BOROKO

National Capital District

Dear Sir

1. This a reply to your lett r of 7th July 1993 regarding the APPLICATION FOR REVIEWING OF A PERSONAL MATTER FROM MR POCHON LILI - DEPARTMENT OF FISHERIES AND MARISOURCith tlevanumentached

BackgBackgroundround.

.

2

2.&#16. &##160;; The chae charges againstocr Pochon Lili were prepared by the former Secretary of DF Mr John Natera, and presented to me on the day I took office as the incoming Secretary.

4.& The Report of the independenendent investigator concluded that Mr Pochon Lili was in the wrong and he should be charged.

My Decision on Mr Pochon Lili’s case.

5. ټ A60; As Mr Lili was the d puty Secretary, he obviously has access to files and relevant documents relating to the duties and functions of the Department. My decisio11th 1993uspend him pending the outcome of the independependentndent repo report was necessary to avoid any possible interference in the independenestigation, especially the possibility of files on the case against him being removed from from his office.

6. ټ&##160; B60; Based osed on the very clear conclusions of the independent investigator, I had no option but to lay charges agaMr Lip>

7. ـ M6 Lili was given tven the opportunity toty to repl reply to the charges laid, and he did deny the charges and the findings of the independent report.

8. ـ҈ I60; I was twas then faced with two options.

(a) ҈ institustitute another ingestigation; or

(b) ـ act on t on the findingshe finveston.

.

9

9. & M60; My decision to recall Mr Lili bili back to duty was contained in my Circular No Sec93 of May Mr Lili was appointed Sl Pial Projectojects Offs Officer as a temporary measure until I gl I get further guidance from the Department of Personnel Manat. He was being paid on his substantive salary level.

10. I was then advised ofdecisdecision by the Secretary for Personnel Management to stop salary payment to Mr Lili as of 19th April 1993.

11. ټ&#16decid stopry pa y pa based on the decision of thef the Secr Secretaryetary for for Personnel Management because Mr Lili defied my instruction to turn upduty. Also I believe Mr Lili shruld reimburse the Stae State for the money paid to him from 19th April 1993 until the time I stopped his pay.

My Conclusions.

12. &#1 beli he I acve acted wied within rules in handling Mr Lili’s case did take a decision within 21 days by recalling him to duty as per my Circular No 14/93 of 11th May 1993.

13.҈&&#160inal deal decisiocision on n on his case requires time and I need to consult with the Department of Personnel Management properly before I can take a final decision.

Yours sincerely

JOSEPH GABUT

Secretary

The Counsel of the Plaintiff contends that the decisions of the Secretary to suspend and subsequently lay charges were harsh and oppressive in terms s. 41 of the Constitution. This c be sustained. #160; Any Secreta a Departmpartment faced with serious allegations of impropriety not only has the authority to under s. 47 of the Public Service (Management) Act suspend and investigate and if necessary lay cs, in appropriate circumstaumstances he may be duty bound to do so. There can be no doubt that, faced with the allegations presented to him and the findings of the investigation he instituted, the Secretary’s decision cannot be faulted.

The s major ground for relief in this application was that the dthe decision to suspend and charge was disproportionate to any improper conduct, negligence or breach by the Applicant. This ground t be sustainedained either. There submissions that &#8t “the Plaintiffs failure to acquit travel funds are very trivial administrative errors” and the submissions “thatfirstndant has used a ed a very small and insufficient administrnistrative oversight” on which to lay complaints. These submis are simply, nly, not acceptable. The accounting for public funds is never a trivial or insufficient matter. Every p servant he obligatligation to account for public funds expended by him. re to d to do so can be a be a matter of serious misco.

qually unacceptabeptable were the Counsel’s allegations that “the charges laid laid were some kind of holding charges penthe completion of Police ince investigation”. There was s no evidence ofce of that. nor was there any justification for the allegation that “the Plaintiff has been made a victim of the first Defendant’s efforts and actions to please his ical masters.” 160; This mply invective, ive, unacceptable and without substance. It appto be based soed solely on the cpplicant’s (or his Counsel’s) annoyance at tcretaking aing a view of w of proper procedures contra his #160; The willingness to impute improper motives ives to the Secretary without justificatiocation does not reflect well on the Plaintr hissel. It wast was said said “the Plaintiff is an honest and hard working public servant unfortunately, not well understood by first Dependant.” Thet Defendant at least unst understood that accounting for public funds is not a trivial matter. laintiff was charged with with such offences. He was given fullrtunity tity to reply to them and did so at length. Tis no evidto show there were was any breach of the rules of natural justice.

It is q is quite clear that the Plaintiff was welre thrious allegationstions requiring police investigation were raised by the Secretary’s 17;s enquiry. These were referred toFrau Fraud Squad for further investigation. That automatically d on hoon hold, any final disposition of the charges laid.& In the event these police investigations were not completed until late 1993.

As fors for not carrying out the recommendation e PSC, that cannot amount tunt to a ground of complaint since the discretion to accept or refuse a PSC recommendation lies with the Secretary alone. But in any the PSC recommecommendations were made in respect of a complaint laid in July of 1993 that:

“(a) Thatcharge has been made iade invalid by the Secretary’s failure to determine the charge and advise Mr Lili on his decision within 21 days after he replied to the charge as required by O 8.35 of the General Orders.”

That was of course with the PSC apparently being unaware of the fact that a police investigation was still on foot and unresolved. The PSC also had apparently taken no obvious account of the actions in respect of the charges taken by the Secretary as outlined in his letter. No reference ie to the repe report of the secretary at all. The PSC apparentlepted thed the Plaintiff’s assertion that he had made no decision. But in fact the real bof t of the PSC recommendation is that his decision was unsnable because of the illegality of the Secretary’s ow;s own appointment, a situation subsequently corrected. The PSC findwere ed on inan inadequate uate and inaccurate information, and the recommendation it made was based on a finding on the status of thretary rather than on the validity or appropriateness of his decisions regarding the Plaintlaintiff.

But, Counsel for the Plaintiff says:

“our main legal argument .is that the first Defendant failed to comply with the requirements of the Public Services Management Act 1986. More specifically, he fatoed to make his decision on the charges he laid against the Plaintiff within the 21 days period prescribed under O 8.35 of General Orders (promulgated) under the Act.”

It was subd that because no decision sion was advised, either within 21 days or at all, that nullified the decision to suspend and should be set aside.

This is not a matter pleaded in the Originating Summons which complains only that the decision to suspend and lay charges was not in compliance with the Public Services (Management) Act. As has been saieady the dehe decisions taken were within the provisions of s. 47 of that Act.

Here too, it is plain that the Secretary did make a decision albeit not sty within the 21 days. He appoinim Special Projecrojecrojects Officer. The Plaintiff was aware is this decision and through his lawyer wrote to the Secretary querying “that decision of yours” in a letter dated 18 May 1993.

In my view faith an outstanding police enquiry, the Secretary’s de;s decision to make a temporary appointment, (which effectively provided for the Plaintiff’s entitlements being paid to him) was eminently reasonable, and arguably, substantial compliance with General Orders. Certainly sucecision is nois not a reason to invalidate a suspension, or to stifle an on-going investigation. Nor is it a reason for this Court to exercise its discretion to set aside the Secretary’s actions with regard suspension as being an invalid exercise of his authority.

It would be within the normal process, that a Plaintiff having failed in the case he pleads, to have his action dismissed. But while thelenge to the the decisions of the Secretary - as pleaded by the Plaintiff in this judicial review cannot succeed, the situation remains unresolved.

The Plaintiff insofar as the evidencore this Court shows, remairemains in a temporary position with a final determination as to the charges not yet made. The Secrein his letter of r of July 1993 states that the action he took in appointing Mr Lili as Special Projects Officer was a temporaryure pending the consultation with others and awaiting result of a police enquiry. The; The PSC t on the 23 O 23 October 1993, also states that the Plaintiff substantive position remains that of Deputy Secretary FMEX.2 Level 5 in the Department of Fisherie Marine Resources. That was als position of t of the the Department of Personal Management duAugust 1993 when it reco recommended to the Secretary that the matter was not resolved properly and that the Plaintiff should be reinstated to his former positith salary and entitlements if there was no final decision mion made. There was no evidence before this Court that this situation has changed. Therefore while harges rels relating failing to acquit funds have been effectively dealt with, and the Polivestigation resulted in the Plaintiff being cleared of any any charges he remains in the limbo of a temporary position which neither the Secretary of the Department Personnel Management nor the Public Service seem to have been able to resolve.

It is the view of this Court that this situation is unreasonable and should be resolved in favour of the Plaintiff. It is unreasonable tect thct that there should now be orders of this Court that the furtheurther enquiry into these matters or further hearingmake final resolutions of matters now more than two years old. Such ties as have have beee been imposed on the Plaintiff for thrges proved are obviously ssly sufficient. The lengthy progress of tais matter through the Public Services Commission and befors Court have only aggy aggravated those penalties. It is plain thatrder that that he be now reinstated is appropriate.&#1ccordingly there will be anbe an order that no reason having been shown why the Plaintiff should not now be reinstated, the Court orders hinstatement to his substantstantive position of Deputy Secretary FMEX.2 Level 5 in the Departme Fiof Fisheries & Marine Resources or such equivalent position as the Department of Personnel Management shall determine.

There will be no order as to costs.