Oli v Puri Ruing, Chairman, Judicial and Legal Services Commission [2001] PGNC 69; N2130 (5 October 2001)

N2130

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 90 of 2001

BETWEEN:

STEPHEN OLI FOR HIMSELF AND
ON BEHALF OF 25 OTHERS WHOSE
NAMES ARE INSCRIBED IN THE
SCHEDULE HERETO

Plaintiffs

AND:

THE HON. PURI RUING IN HIS CAPACITY AS
CHAIRMAN AND MEMBERS OF
THE JUDICIAL AND LEGAL SERVICES COMMISSION

First Defendant

AND:

LEO TOHICHEM,
THE SECRETARY,
NATIONAL JUDICIAL STAFF SERVICES

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

WAIGANI: GAVARA-NANU, J
2001 : 05th, October

PRACTICE & PROCEDURE – Satisfaction of judgements against the State – Except in cases with special circumstances, the proper recourse for a successful Plaintiff in a claim against the State is to obtain a Certificate of Judgement given, under s.13(2) of the Claims By and Against the State Act, 1996, and invoke s.14(1),(2),(3) and (4) of that Act for the satisfaction of the judgement by the State.

PRACTICE & PROCEDURE – The decision by the Salaries and Monitoring Committee (‘the SCMC’), approving entitlements under s.12(4) of the SCMC Act,1988, after receiving a proposal from a public authority under s.11 of that Act, is binding on the public authority after the public authority is notified of such approval in writing as required by,(s.12(5)) of the Act, and where the public authority has accepted such decision.

PRACTICE & PROCEDURE – Review process provided under s.13 of the SCMC Act, 1988, of a decision of the SCMC cannot be invoked if the public authority affected by the decision has accepted the decision.

Cases cited.
Stephen Oli & Ors –v- Hon. Puri Ruing & 3 Ors.- ( National Court Judgement – 9th May, 2001)
Embda Limited Trading as Tribal Plumbers –v- Tropical Habitat Limited (National Court Judgement – 7th May, 2001)

Counsel:
Davis Steven: For the Plaintiffs
John Kumura: For the Defendants

GAVARA-NANU, J: The main judgement in this case was delivered on 09th May, 2001. The issue I had to determine in that judgement was whether the Plaintiffs’ entitlements should be calculated and paid under the Public Service Category B contract level pursuant to the NEC Determination No. 125 of 1993. In that judgement, I ruled that the Plaintiffs’ entitlements be calculated and paid under the Public Service Category B contract level as approved by the JLSC and the SCMC in 1997. See Stephen Oli & Ors.-v- Hon. Puri Ruing & 3 Ors.- ( National Court Judgement – 9th May, 2001).

The parties are now asking the Court to decide on a number of issues relating to the Plaintiffs’ entitlements and to assess the overall amount the Defendants will pay to the Plaintiffs. The issues relate to the vehicle and housing allowances claimed by the Plaintiffs and under what Public Service Category contract level the Acting Principal Magistrate should receive their entitlements.

The parties filed two submissions containing calculations of the Plaintiffs’ entitlements, one is referred to as Version 4 and the other is referred to as Version 5. The calculations in Version 4 were put together after the parties consulted each other on the Plaintiffs’ entitlements under the Public Service Category ‘B’ contract level. The calculations in Version 5 on the other hand were prepared by the Defendants without consulting the Plaintiffs and this Version reduces the entitlements in Version 4 because it takes away the vehicle and the housing allowances.

The Plaintiffs argued that the calculations in Version 4 are correct because they include the housing and vehicle allowances. They say Version 5 calculations are wrong because they were done by the Defendants without consulting them and the calculations do not include the allowances approved by the JLSC and the SCMC in 1997.The Plaintiffs argued that they are entitled to the housing and vehicles allowances because the SCMC approved these allowances in 1997 pursuant to s.12(4) of the SCMC Act, 1988, (‘the SCMC Act’), after the JLSC made a submission or proposal to the SCMC, pursuant to s.11 of the SCMC Act and further more, the JLSC had already accepted the SCMC decision.

There are three issues to be determined; first is whether the vehicle and the housing allowances should be paid to the Plaintiffs, second is if the vehicle and the housing allowances are to be paid to the Plaintiffs, should the Acting Principal Magistrates be paid those allowances for the periods in which they were acting or are acting and the third is whether the Acting Principal Magistrates should be paid at Category B, C or D Public Service contract level. There are three Acting Principal Magistrates among the Plaintiffs in this action.

The Defendants argued that because the Acting Principal Magistrates are substantive Grade 4 Magistrates, they should be paid at the Public Service Category D contract level.

To determine these issues, it is appropriate that I revisit the submissions or the proposals made by the JLSC on 18th June, 1997 and 17th July, 1997, respectively, to the SCMC regarding these allowances. In a letter dated 17th July, 1997, the Chairman of the JLSC made a submission to the SCMC in which the Chairman of the SCMC was informed of the special allowances the JLSC had approved for the Deputy Chief Magistrate at the Public Service Category A contract level and for the Principal Magistrates at the Public Service Category B contract level. In that submission, the JLSC attached a Schedule of proposed increases in allowances for the Deputy Chief Magistrate and the Principle Magistrates which the JLSC had already approved. In the third last paragraph of that submission, a specific reference was made to the new vehicle allowance the JLSC had approved for the Principal Magistrates at the Public Service Category A contract level, the basis of which was that it was not available at the Public Service Category B contract level. The JLSC reasoned that it considered that allowance an important component of the Principal Magistrates’ allowances given the nature of their work. The JLSC asked the SCMC to endorse the submission.

The increased allowances proposed and approved in the Schedule by the JLSC were not only in the vehicle allowances but in the rental allowances as well, for both the Deputy Chief Magistrate and the Principal Magistrates. Here, I am only concerned with the Principal Magistrates’ allowances.

In the allowances proposed and approved by the JLSC, the rental allowance for the Principal Magistrates was increased by 96 %; in that the increase was from the previous amount of K183.00 per annum to K 4,550.00 per annum and for the vehicle allowance, the increase was 100 %, in that previously, they had no vehicle allowance but in the proposed increase, the amount was from nil to K7,045.00. As noted earlier, although these were proposals by the JLSC, the JLSC had already approved them so, they were submitted to the SCMC only for purposes of its endorsement.

The submission by the JLSC on 17th July, 1997, was preceded by a similar submission on 18th June, 1997, in which the JLSC advised the SCMC of the underlying reasons for the submission. In the 18th June, 1997, submission, the JLSC advised the SCMC that in its meeting on 01st April, 1997, it approved in principal, the allowances to be paid to the Principal Magistrates which would put the Plaintiffs’ allowances in the same level as the senior public servants’ contract packages. The JLSC also advised the SCMC in that submission that on 21st May, 1997, it reviewed its principal decision of 01st April, 1997, and included a vehicle allowance for the Principal Magistrates at the Public Service Category B contract level which was not available in the normal Public Service Category B contracts. This was the basic difference between the ordinary public servants on Category B contract level and the Plaintiffs who were given these allowances at that level.

The purpose of the increased allowances as noted above was to put the Plaintiffs in the same level as the public servants who were on the Category B contract level because the Plaintiffs as judicial officers could not be appropriately employed at that level under contracts of employment.

The reason why the Plaintiffs were given the increased vehicle and accommodation allowances was because they had no suitable accommodations and transport, which were vital for them to perform their duties effectively. It was submitted to the SCMC by the JLSC that the Plaintiffs could not conveniently travel in public transports from their residences to their work places and vice versa because that would be taking great personal risks; it was also submitted that the Plaintiffs also found it very difficult to perform their duties due to lack of suitable accommodations in their various locations of work. So it was for these reasons that the new vehicle and accommodation allowances were approved and proposed by the JLSC to the SCMC for its endorsement.

Under Schedule C to the submission by the JLSC to the SCMC on 18th June, 1997, the allowances proposed for vehicle and accommodation were same as those later submitted in the 17th July, 1997, submission. So the 17th July, 1997, submission by the JLSC was the repeat of its 18th June, 1997, submission.

In the letter dated 30th September, 1997, the Chairman of the SCMC advised the Chairman of the JLSC that the SCMC had given approvals for the allowances it proposed, on the condition that the Plaintiffs were employed on fixed terms.

The Defendants filed two affidavits sworn by Ms Karen Konjib who is employed in the Department of Personnel Management. Ms Konjib said that Version 4 calculations are correct except for the vehicle and housing allowances which she said the Plaintiffs are not entitled to receive.

Ms Kongib is a Contract Administration Officer and her duties include drawing up contracts for the Senior Managers and the Departmental Heads in the National and Provincial Public Services. She has been employed by the Department of Personnel Management as Contract Administration Officer since 1985 and is involved in the implementation of contracts in the Public Service and other public authorities through the Department of Personnel Management. She has been doing this job since 1994.

Ms Konjib’s two affidavits were sworn on 31st July, 2001 and 03rd August, 2001, respectively. In paragraph 9 of her affidavit of 31st July, 2001, she said it is a Pubic Service contract policy that an officer is not entitled to receive a vehicle or housing allowance if the officer has the use of a Government vehicle and lives in an institutional accommodation. She said, she had reason to believe that some of the Plaintiffs had at the material times had access to or used Government vehicles and lived in the institutional houses, therefore they are not entitled to receive these allowances. In paragraph 15 of the same affidavit, Ms Kongib said she is aware of the Plaintiffs’ claim that the Acting Principal Magistrates should receive allowances at the Public Service Category C contract level, but she said, that is contrary to the Public Service policies. She said the appropriate contract Category level for the Acting Principle Magistrates is Category D, because they are substantive Grade 4 Senior Magistrates. In the last paragraph of her affidavit, she said she checked the calculations in Version 4 and has confirmed that apart from the figures for the vehicle and the housing allowances, the calculations are correct. In paragraph 4 of her affidavit of 03rd August 2001, she reconfirmed that the Version 4 calculations are correct except for the vehicle and the housing allowances.

The parties therefore agree that the Version 4 calculations are correct, except for the vehicle and the housing allowances which are disputed by the Defendants.

It is clear that Ms Konjib’s rejection of the vehicle and the accommodation allowances for the Plaintiffs is due to her misunderstanding of the Plaintiffs’ position as opposed to the ordinary senior public servants who are employed on contracts. The Plaintiffs are not employed on contracts, but have been given special approvals by the JLSC and the SCMC to receive these allowances at the Public Service Category B contract level.

Ms Konjib said that the Acting Principal Magistrates should receive entitlements or allowances at Category D contract level because under the Public Service policy they are only acting and they cannot receive the same allowances as the Principal Magistrates. Again, in my view, this is based on her misunderstanding that the Plaintiffs are to be treated as ordinary public servants employed on contracts. It is wrong to equate the Plaintiffs with the public servants because they are not public servants employed on contracts. It must be noted that the Plaintiffs were given these allowances because of their special status and the special nature of their work.

Ms Konjib said that because the Plaintiffs had already benefited from the use of the Government vehicles and lived in the institutional houses, they should not receive these allowances. As I understand the system on the allocation of the Government vehicles to the Courts, the vehicles are allocated for the general use of all the Court house staff including the Plaintiffs. The vehicles are not allocated to the Plaintiffs for their individual use as their entitlements. In most, if not in all cases, the system allows the Plaintiffs only little or no use of those vehicles and the vehicles are kept and controlled by the staff or other Court house officials. There is evidence before this Court of that fact by the Plaintiffs and I accept it.

I have no doubt in my mind that the Plaintiffs did not have vehicle allowances before these allowances were approved. I therefore find that the Plaintiffs are fully entitled to the vehicle allowances as approved by the JLSC and the SCMC in 1997.

As to the accommodation allowance, the Defendants have not provided any evidence to show that the Plaintiffs have benefited from the institutional houses at the material times but maintain that some of the Plaintiffs have already received this benefit. They have the onus to prove what they are asserting. See Embda Limited, Trading as Tribal Plumbers –v- Tropical Habitat Limited (National Court Judgement – 7^th May,2001). They have not discharged that onus. It is to be noted that the accommodation allowance was increased by 96 %. This is a very significant increase in the Plaintiffs’ entitlements, it would therefore be unfair to the Plaintiffs, if they were deprived of the benefit of this entitlement without proof from the Defendants that they have indeed benefited from it. The Defendants had more than sufficient time to adduce evidence to substantiate their claim, but they did not. They told the Court that they do not have any documentary evidence to show that the Plaintiffs have received this benefit. In other words, they cannot substantiate their allegation. It is not good enough for the Defendants to just verbally say that the Plaintiffs might have benefited or benefited and not produce any evidence to prove their claim. Therefore, in the absence of any evidence from the Defendants to show that the Plaintiffs have indeed received this benefit, the Plaintiffs are fully entitled to receive the accommodation allowance as approved by the JLSC and the SCMC.

As to the question of whether the Acting Principal Magistrates should receive allowances under the Public Service Category B, C or D contract levels, it is my opinion that they are entitled to receive allowances under the Public Service Category B contract level as approved by the JLSC and the SCMC in 1997. These entitlements or allowances are attached to the Office they held or are holding as the Acting Principal Magistrates. It is important to note that when the allowances were approved and submitted by the JLSC in 1997 and later endorsed by the SCMC, the two authorities did not differentiate between the substantive Principal Magistrates and the Acting Principal Magistrates, in that the allowances were approved for the judicial officers who were or are performing the powers and functions of the Principal Magistrates, it is therefore immaterial whether these judicial officers were or are Acting or substantive Principal Magistrates. They are all entitled to claim the allowances at the same level as long as they were or are performing the powers and functions of the Principal Magistrates.

Therefore all the Acting Principal Magistrates like the substantive Principal Magistrates are entitled to receive these allowances under the Public Service Category B contract level for the periods in which they acted or are acting. In my opinion it is wrong for any one to draw a distinction between the substantive Principal Magistrates and the Acting Principal Magistrates at this stage when no such distinction was made by the JLSC and the SCMC when approving their allowances in 1997.

The allowances for the Plaintiffs were approved by the SCMC under s.12(4) of the SCMC Act, following the proposals made by the JLSC under s. 11 of that Act and the SCMC having notified the JLSC in writing of the approval pursuant to s.12(5) of the SCMC Act, the SCMC decision is binding on the JLSC. Any variation to these allowances can only be made under s.13 of the same Act, but that provision cannot be invoked now because the public authority affected by the SCMC decision, namely the JLSC, has already accepted the decision. The SCMC decision therefore remains binding on the JLSC and the other Defendants.

For the foregoing reasons, the Court orders that the entitlements for the Plaintiffs which will include the vehicle and housing allowances be recalculated in accordance with the Orders of the Court.

I understand that the Version 4 calculations may already contain the appropriate calculations for the substantive Principal Magistrates but not for the Acting Principal Magistrates, if this is the case, the Court orders the Second Defendant to immediately recalculate the allowances for the Acting Principal Magistrates at the Public Service Category ‘B’ contract level, in full consultation with the Plaintiffs.

The parties are also ordered to discuss and work out a Payment Schedule under which the Defendants will pay the entitlements, if the Plaintiffs’ entitlements are to be paid by the Defendants over a period of time.

Because this is a claim against the State, the judgement has to be satisfied in accordance with the procedures set out in ss. 13(2) and 14(1),(2),(3) and (4) of The Claims By and Against the State Act, 1996. The Plaintiffs are therefore to obtain a Certificate from the Registrar certifying the judgement for the endorsement by the Solicitor General and for his further appropriate actions as required under these provisions.

But before that, the parties are to prepare and file a Consent Order incorporating the final amount that is to be paid to the Plaintiffs by the Defendants together with any Payment Schedule.

The Orders of the Court are as follows:-

1. The Plaintiffs are entitled to receive vehicle and accommodation allowances.
2. The Acting Principal Magistrates are entitled to receive vehicle and accommodation allowances for the periods they acted or are acting.
3. The Acting Principal Magistrates are to be paid entitlements at the Public Service Category B contract level.
4. The Second Defendant to recalculate the entitlements for all the Plaintiffs in accordance with Orders 1, 2, and 3 herein, in full consultation with the Plaintiffs.
5. The parties are to file a Consent Order, incorporating the final amount that is to be paid to the Plaintiffs by the Defendants together with any agreed Payment Schedule.
6. The Plaintiffs to obtain the Certificate of Judgement consistent with the terms of the Consent Order for the endorsement by the Solicitor General and for his further appropriate actions.
7. The Plaintiffs are at liberty to apply with sufficient notice.
8. The Defendants to pay the Plaintiffs costs.
   

Orders accordingly.
________________________________________________________________________
Lawyer for the Plaintiffs : Stevens Lawyers
Lawyer for 1st & 2nd Defendants : Solicitor General