Nelson v Pruaitch, Minister for Forests [2003] PGNC 61; N2440 (31 July 2003)

N2440

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 294 of 2003

BETWEEN

DAVID S NELSON
Plaintiff

AND

PATRICK PRUAITCH
MINISTER FOR FOREST
First Defendant

AND

THE NATIONAL FOREST BOARD
Second Defendant

AND

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Sevua, J
27th & 30th June & 31st July 2003

ADMINISTRATIVE LAW – Judicial Review – Decision of First Defendant – Suspension and/or revocation of defendant – Whether Minister has power to suspend and/or revoke – Serious allegations against defendant leading to suspension and/or revocation – No formal charge laid in accordance with terms and conditions of employment – More than four months lapse without any formal charge – Defendant not given the opportunity to be heard - Natural justice – "audi alteram partem rule" – Whether error on the face of the record – Whether suspension/and or revocation unreasonable – Whether defendant’s relief is mandamus or certiorari – Whether decision subject to review – Whether public or private law.

Forestry Act 1991.
Interpretation Act 1975.

Cases cited:
Bill Skate & Philip Taku v. Ruma Tau & Others, (2001) unreported, N2126, 4th October 2001
Cooper v. Wandsworth Board of Works [1863] EngR 424; [1863] 143 ER 414
Selvarajan v. Race Relations Board [1976] 1 All ER 12

Counsel:
A.Jerewai for Plaintiff
G.Garo for First Defendant
J.Kumura for Second & Third Defendants

30th June 2003

SEVUA, J: On 30th June 2003, I announced my decision and undertook to publish my full reasons. This I now do.

This is an application for judicial review, leave having been granted by His Honour Justice Sakora on 19th June 2003.

The facts are not in dispute except the issue whether the plaintiff was suspended and his appointment revoked or that he was only suspended.

The plaintiff was appointed Managing Director of the Papua New Guinea Forest Authority pursuant to s. 34 of the Forestry Act 1991 (the Act) on 9th August 2002. Notice of that appointment was gazetted in National Gazette No G. 132. A contract of employment with standard terms and conditions as the Public Service employment contract was later executed on 6th December 2002 with retrospective effect to 23rd May 2002.

By written notice dated 24th February 2003, the first defendant, Minister for Forest, suspended the plaintiff "pursuant to Section 34 of the National Forest Service Act effective 4:00 pm Tuesday 25th February 2003 until further notice." The grounds for suspension were:

"you have fallen short in areas of due diligence and prudential standards and accountability in your performance as Managing Director.

Furthermore, you negotiated your contract without Board’s endorsement, without Ministerial and National Executive Council approval and recommendation to the Head of State which is an act of impropriety in due process and is an act of blatant abuse of authority in office."

It is not necessary to state other matters in the Minister’s letter of suspension save that the State through the Minister had determined that the plaintiff’s service was no longer required and that the plaintiff would serve his tenure in another capacity in the State Services. In the meantime the suspension was with full pay. If the Court were to accept this as the official position of the third defendant, why didn’t the State through the Minister for Forest just redeployed the plaintiff instead of suspending him and then terminating his appointment? As it were, serious allegations were made against the plaintiff consequently leading to his suspension and purported determination, however the plaintiff was never charged and was never given the opportunity to defend himself as required by the cardinal rules of natural justice. This issue will be considered in more detail later.

Following the suspension of the plaintiff, the first defendant issued a Circular on 26th February 2003 to all staff of the Forest Service including the Chairman of the National Forest Board advising that the plaintiff had " "ceased" to be the Managing Director of the National Forest Service." Then on 27th February 2003, the Minister caused a notice of revocation of appointment pursuant to s. 34 of the Act to be gazetted in the National Gazette No G.28. The notice was signed by the Governor General and stated:

"(a) revoke the appointment of David S Nelson as Managing Director of the National Forest Service; and

(b) appoint Brown Kiki to be Acting Managing Director of the National Forest Service for a period commencing on and from 25th February 2003 until further notice."

On 19th March 2003, the plaintiff’s lawyers wrote to the first defendant highlighting certain features of this case in particular, the rules of natural justice. The Minister did not respond, but the Chief Secretary did on 21st March 2003 and said that formal charges would be preferred against the plaintiff. It is to be noted with concerns that to date no formal charges have been laid. The defendants’ counsels in a spurious, if not very convoluted way, submitted that the reason for not laying any charge was that the defendants were still pursuing "administrative process". The Court needs to ask what "administrative processes" as there are none under the Forest Act 1991 and the Court’s attention has not been drawn to any other legislation which contains such "administrative processes". Despite the Court’s insistence that counsels point to any specific provision of the Act or any other legislations which contain these so called ‘administrative processes’, they were unable to do so. Again this issue will be discussed later in the judgment.

Almost four months after the suspension and purported revocation of the appointment of the plaintiff, the plaintiff’s lawyers wrote another letter to the second defendant on 5th June 2003 after rumours of a proposed meeting that the second defendant was preparing a Board Meeting to recommend the termination of the plaintiff. The letter threatened to institute proceedings if the second defendant did not refrain from convening such meeting. Nevertheless, the plaintiff commenced these proceedings on 6th June 2003.

On 23rd June 2003, a notice was published in the National Gazette No G.80 wherein the plaintiff was said to be suspended and not terminated. It is to be noted that that notice was published after leave to review had been granted to the plaintiff and if I may add, His Honour Sakora,J had specifically ordered that the defendants be restrained from deliberating on the revocation of or appointment of another person to the position of the Managing Director until the determination of this application. The defendants’ action can be seen as a direct violation of the Court order and the plaintiff is at liberty to have the defendants charged with contempt of court. In my view, if the State and its instrumentalities cannot respect the National Court, a court of superior record established by the Constitution, then they should be charged with contempt of court. Such action can only be seen as a blatant disregard of the order of this Court and the contemnors should be dealt with severely in my view.

Finally, there is another fact which the plaintiff did not depose to in his affidavit but which the first defendant did and this Court should refer to it because of its significance.

Annexure "C" of the first defendant’s affidavit is a request by the first defendant to the second defendant to convene a meeting to deliberate on the suspension of the plaintiff and appoint Brown Kiki as Managing Director. The request reads:

"REQUEST BY THE MINISTER TO "CHAIRMAN/DEPUTY
CHAIRMAN OF THE BOARD TO CONVENE OF THE BOARD"

"To Chairman

Pursuant to Section 16 (4) of the Forestry Act 1991 I hereby request that you convene a meeting of the Board within 14 days of the date of receipt of this request to consider and advise me on those matters as set out below.

Matters:

• Suspension of Mr. David Nelson, the Managing Director of National

Forest Service before 25th of February 2003; and

• Appointment of Mr. Brown Kiki as the Managing Director of the

National Forest Service.

Dated this 4th day of February 2003

(signed)

.................................

Minister for Forests."

The plaintiff submitted that there are three issues for determination in this case and these are:

1. That the revocation of the appointment of the plaintiff as Managing Director of the National Forest Service by notice in the National Gazette on 27th February 2003 (G. No 132) was null and void and of no effect.
   
2. That the plaintiff’s suspension from that position by the first defendant on the 24th February 2003 was also null and void and of no effect.
   
3. That in affecting the said decisions, the first defendant was dutibound (sic) to comply with the following requirements which he did not –
   

(a) compliance with Section 34 of the Forestry Act as well as Section 36 of the Interpretation Act so that there was prior consultation with the second defendant before suspension or revocation can be effected;

(b) adherence to the rules of natural justice requiring fair treatment including properly preferred allegations against the plaintiff and particulars presented with clarity and affording him an opportunity to respond (audi alteram partem); and

(c) the requirement to act reasonably under the Wednesbury Principles.

Counsel for the plaintiff, Mr. Jerewai has referred to s. 34 of the Act and s. 36 of the Interpretation Act 1975 in relation to the appointment and removal or suspension of a person. He submitted that the appointment and removal of the plaintiff are made under those provisions. In relation to the removal or suspension, he submitted that as s.34 of the Act does not provide for suspension or removal, s. 36 of the Interpretation Act applies. In either case, the second defendant must be consulted. In the present case, there was no such consultation, however even if there was consultation, the Minister did not observe the rules of natural justice as enshrined in Section 59 of the Constitution. In a nutshell, that is the plaintiff’s case.

In support of his submissions, the plaintiff relies on my decision in Bill Skate and Philip Taku v. Rima Tau & Ors.[1] Counsel also referred to cases cited in that judgment: Cooper v. Wandsworth Board of Works[2], Selvarajan v. Race Relations Board[3], Ridge v. Baldwin[4], Durapayah v. Fernando[5], Gerald Sidney Fallscheer v. Iambakey Okuk[6] and Associated Provincial Picture Houses Ltd v. Wednesbury Corporation[7].
Some of the excerpts cited in Skate and Taku (supra) will be referred to when I determine the law applicable in the present case.

The plaintiff’s final submissions was that the following conclusion can be drawn from this case.

1. The first defendant’s actions on the face of the record absolutely void;
   
2. The first defendant’s actions and decisions were ultra vires the enabling powers under Section 34 of the Forestry Act 1993 (as amended);
   
3. The first defendant’s actions and decisions were clearly in breach of natural justice requiring fair treatment and in particular proper particularization of allegations to which reasonable opportunity must be afforded to the plaintiff to respond (audi alteram partem); and
   
4. The first defendant’s implicit unreasonableness in the entire manner in which he went about dealing with the plaintiff which is a requirement under the Wednesbury principle as recognized in this jurisdiction from the principle enunciated in the case of Associated Provincial Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 especially the majority view in the judgment of the Master of Rolls, Lord Greene at pp 233-234.
   

The plaintiff therefore urged the Court to uphold his submissions and grant his application by the following relief:

1. Certiorari to bring up to this Court and quash the first defendant’s decision to suspend the plaintiff and or revoke his appointment as Managing Director of the National Forest Service.
   
2. Certiorari to bring up to this Court and quash the second defendant’s purported action to endorse the said actions of the first defendant to suspend the plaintiff and/or revoke his appointment.
   
3. Ancillary orders that both the first and second defendants be restrained from proceeding with any disciplinary action against the plaintiff on the basis of incompetency, insubordination and misconduct (the allegations resulting in the plaintiff’s suspension and/or revocation).
   
4. Order for reinstatement as Managing Director of NFS.
   
5. Order for costs.
   
6. Order for abridgment.
   

The defendants opposed the application, but prior to discussing their submissions, I wish to make some observations here. Firstly, the Minister for Forests, the first defendant, refused to accept service of the documents on 10th June 2003, in fact he returned the documents to the process server. Secondly, none of the defendants filed any notice of intention to defend until this Court directed them to do so on 25th June 2003. Thirdly, at the hearing of the application for leave before His Honour Justice Sakora on 13th June 2003, none of the defendants filed any affidavit in response to the plaintiff’s affidavit until this Court directed them to do so on 25th June 2003. In spite of that, all the defendants were represented by counsels on 13th June and also on the 19th June when His Honour’s judgment on the leave application was delivered. Fourthly, on 25th June 2003, when the plaintiff desired to move his application for substantive review, the defendants found all sorts of excuse to delay the hearing as if they were caught unaware of this application. The fact is, they were duly served however they were not interested enough to prepare for the hearing and I observed that this is part and parcel of the whole scheme to continue to delay the final resolution of this matter to the prejudice and detriment of the plaintiff although the defendants were ready to say that there was no prejudice here because the plaintiff was suspended with full pay. I will draw a conclusion on this aspect later. Finally, the defendants could not care less as to the status of the plaintiff in the light of the very serious allegations levelled at him by the first defendant which touched on his clevacto [sic] reputation and integrity.

Having made those observations let me now turn to the defendant’s submissions. Mr Garo’s first submission was that the first defendant did not lay any charge against the plaintiff because he (Minister) chose to redeploy the plaintiff in another area and discussions were being pursued. In spite of these arrangements, the plaintiff’s lawyer threatened legal action. On 10th June the second defendant advised the plaintiff of the error in the notice of revocation of his appointment and advised that an error was made in the gazettal which referred to the plaintiff’s revocation of appointment as a suspension not a revocation. Because the plaintiff was suspended and not terminated, grounds 1(b), 2(a), 3(a) & (b) and 4 of the application were now irrelevant. The only issue for the Court to determine therefore was the failure by the first defendant to charge the plaintiff after his suspension.

The first defendant’s second submission relates to jurisdiction. Mr Garo submitted that this Court has no power of judicial review over this matter because it is not one of public law but private law. He cited Ereman Ragi & Ors v. Joseph, SCA 459, unreported, 29th June, 1994. I will canvass this argument at some length because I consider that this argument is spurious and secondly, there is a clear distinction of that case to this present case which counsel has seem fit to mislead the Court on.

The next submission by Mr. Garo was that the Court should not grant the application if it finds this is a public law matter. The basis for their application was that certiorari is not an appropriate remedy in administrative matters. He continued that certiorari does not apply in this case because the issue in this case is not one of exercise of legal authority.

Consistent with that submission, counsel further submitted that the appropriate remedy in this case is mandamus and the plaintiff had failed to seek mandamus to compel the Minister to lay charges against the plaintiff. It was submitted that this is analogus to an order for specific performance of a contract and it is the most appropriate remedy in this case, not certiorari.

In response to the plaintiff’s submission, Mr Garo submitted that the gazetted notice of 23rd June 2003 that the plaintiff’s appointment was not revoked, but he was only suspended from office was a clarification and not a violation of Justice Sakora’s order of 19th June 2003.

It was also submitted that Skate & Taku’s case and Selvarjam’s case are different as they relate to ...................................... body therefore they are not applicable in the present case.

In respect of s.155 (4) Constitution, which the first defendant referred to, it was submitted that even though the Court has inherent power, the plaintiff has not yet been charged therefore his right to be heard has not arisen yet. The defendant would have no objection if mandamus was sought to compel the first defendant to charge the plaintiff within 14 days so he can be heard and if that fails then the suspension can be quashed.

The first defendant does not concede that the need for the plaintiff to reply has not yet arisen. The Minister does not agree that there has been unnecessary delay and that the defendants have not been pursuing this interest of the plaintiff. The defendants have been pursuing the redeployment of the plaintiff elsewhere therefore it is not a situation that they have not .................................. .........................................

The second and third defendants adopted the first defendant’s submissions and emphasized that the first defendant’s intention was to suspend the plaintiff, which he did. It was not a revocation of the plaintiff’s appointment.

Secondly, Mr Kumura, counsel for the second and third defendants submitted that the error in the publication of the revocation of appointment had been corrected by Ms Elizabeth Helali, who was the Assistant Secretary to the National Forest Board and who was instructed by the second defendant to prepare the necessary instruments to the ....................................... counsel to prepare the notice of suspension in the National Gazette. She also swore an affidavit on 25th June 2003, two days prior to hearing, and said she was not sure of the instructions to her as it was said the plaintiff’s appointment would possibly be revoked. When the Court asked why the correction was not made in February 2003, soon after the gazettal of 22nd February 2003, Mr Kumura had no explanation. I consider that the affidavit of Ms Helali is not the truth and I will refer to this later.

Finally, Mr Kumura submitted that the "administrative processes" must be allowed to continue and reach a finality and only then can the plaintiff seek a remedy. In the circumstances, the plaintiff’s application is premature and should be dismissed. With respect to counsel, this submission flies against commonsense and is quite demonstrative of the whole attitude of the defendants. To the defendants, as long as the plaintiff is receiving his normal salary, there is no prejudice. We will see that this view is wrong and contravenes the basic requirement of natural justice.

Having listened to all the oral submissions and read the written submissions by the plaintiff and the first defendant, I will at this juncture, say that I am not persuaded at all by the defendants arguments and I reject them outright for having no basis in law.

The glaring fact is that the plaintiff was suspended on 24th February 2003 on very serious allegations that the defendants, especially the first defendant, have never proven. I find as a fact that the allegations made by the Minister for Forest against the plaintiff are very serious in nature that they impinge on the plaintiff’s character, reputation, profession and integrity. In view of the serious nature of these allegations, the first defendant should have proceeded to lay charges against the plaintiff, but for reasons only known to the Minister, he did not, and instead tried to side step the issue by saying that those were ongoing discussions on the possible redeployment of the plaintiff.

Be that as it may, I consider that the defendant’s attitude did not eliminate the fact that there were serious allegations made against the plaintiff which, surely must have painted a very bad picture of the plaintiff. Whilst the plaintiff was being paid his full salary amount is not the issue, because that is provided for in his contract of employment.

Firstly, I wish to deal with the law relating to the appointment and/or suspension and/or revocation of the appointment of the Managing Director of the National Forest Service because I consider this to be the underlying basis for this case.

The plaintiff relies on s.34 of the Forest Act 1991 and s.36 of the Interpretation Act. Those provisions are as follows:

Section 34 of the Forest Act provides:

"34. Managing Director

(1) There shall be a Managing Director of the National Forest Service who –

(a) Shall be appointed by notice in the National Gazette by the Head of State, acting on the advise of the Minister after consultation with the Board; and"

It is to be noted that s.34 does not contain a provision for the suspension of or revocation of the appointment of the Managing Director and because of that, I accept the plaintiffs submission that s.36 of the Interpretation Act can be involved.

The section states:

"36. Implied power to remove or suspend

(1) Where a statutory provision confirms a power to make an appointment, the power includes power, subject to subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject".

I accept the position in law to be what the plaintiff’s counsel has submitted. Where a legislation contains a power to appoint, that power also includes the power to suspend or revoke. Subsection (1) of s.36 is subject to subsection (2) however, in the present case, if there is no condition which the original power to appoint is subject to.

There is one important aspect of this argument that needs to be highlighted. The first defendant’s power of appointment under s.34 of the Forest Act is made after consultation with the National Forest Board (the Board). I consider that the converse procedure is applicable if the Minister wants to suspend or remove the Managing Director. That is, he is required to consult with the Board if he wants to suspend or remove the Managing Director. The converse was not done, at least, there is no evidence that the first defendant did consult the Board.

There is evidence that the first defendant, pursuant to s.16 (4) of the Act did required the second defendant to convene a Board Meeting to consider the plaintiff’s suspension. See annexure "C" of the first defendant’s affidavit sworn on 26th June 2003. However there is no evidence that the Board did convene that meeting and pass any resolution to effect the suspension of the plaintiff. There is no evidence of any of the matters required by s.17 of the Act in respect of the minutes of the second defendant’s meeting. If consultation is by that provision, than I am not satisfied that there was any consultation between the Minister and the Board. Furthermore, if consultation is by a different mode, there is no evidence of that consultation before the Court. I need not emphasis that consultation of a legal requirement and in the present case, I find that there was no consultation between the first and second defendants. The first defendant’s decision is therefore open to challenge by way of judicial review. Because the first defendant did not comply with the legal requirement to consult the Board, there is error on the face of the record.

The necessity to consult is not only a matter of statute, but it is a constitutional law requirement as well, s.255 of the Constitution deals with consultation and it provides:

"In principle, where a law provides for consultation between persons or bodies, the consultation must be meaningful and allow for a genuine interchange and and consideration of views".

This provision was reinforced by the Supreme Court in Ila Geno & 2 Ors v. The State [1983] PNGLR 22, where the Supreme Court alluded to the correspondences of non-compliance with s.193 (3) Constitution relating to Public Service appointments. In Public Service Commission v. The State [1994] PNGLR 603, where the National Court was also dealing with s.193 (3) of the Constitution, the Court held that where the Constitution imposes a duty it must be carried out and since s.197 (3) Constitution imposed a duty to consult the making of an appointment that duty is mandatory. These authorities were applied by the Leadership Tribunal in re. Hon. Peter Ipu Peipul in 2002. See pages 32 of the Tribunal decision.

This Court is satisfied that the first defendant, the Minister for Forest, not only failed to comply with the requirement for consultation under s.34 of the Forest Act, but also did not adhere to the Constitutional ................................ in s.285 Constitution. This issue can be considered either under the principle of want or excess of legal authorities or error on the face of the record. But whatever way one approaches it, it is my opinion that the plaintiff’s application for judicial review ought to be granted on this basis alone.

The next issue I wish to discuss is that of natural justice. The plaintiff was given notice of suspension on 24th February 2003, on the grounds that -

"You have fallen short in various areas of due diligence and prudential standards and accountability in your performance as Managing Director. Furthermore, you negotiated your contract without Board’s endorsement, without ministerial and National Executive Council approval and recommendation to the Head of State Which is an act of impropriety in due process and is an act of blatant abuse of authority in office".

The plaintiff was further directed to vacate his office by 4.06pm on 25th February 2003. Similar responses were said to have been made in consultation with the second defendant pursuant to s.34 of the Act, however, I have already found that there was no such consultation.

I have already found as a fact that the allegations made by the first defendant against the plaintiff were very serious in nature. Clause 27 of the Contract of Employment between the plaintiff and the third defendant provides the disciplinary procedures. The procedure stipulated therein is that the Minister shall suspend the Managing Director in full pay upon allegations of a serious offence and the Minister shall formally charge the Managing Director (my underlying). The Managing Director then is obliged to respond to the charge in writing within seven (7) days. There is no doubt in my mind that this procedure applies to the basic principle of natural justice.

As a matter of law, the first defendant in the present case is obliged to charge the plaintiff, it is his duty to do so. The argument of redeployment does not, in fact or in law, extinguishes the duty of the first defendant. He has made some very serious allegations against the plaintiff and he ought to have charged the plaintiff but he did not. I consider that the first defendant, has not only failed to comply with his mandatory duty but has not been fair to the plaintiff. The fact that he levelled very serious allegations of misconduct against the plaintiff, but failed to formally charge the plaintiff, in my view, is a breach of natural justice, the principles of which form part of one underlying law. Section 59 (2) Constitution states, "The minimum requirement of natural justice is the duty to act fairly and in principle, to be seen to act fairly". It is my opinion therefore that the failure of the Minister for Forest to formally charge the plaintiff following the suspension of the latter is a breach of this Constitutional provision. The first defendant did not act fairly, and in the eyes of the public, could not be seen to have acted fairly.

The defendant agreed that the breach has not yet ................................... because the right to reply is yet to arise. This submission is not only spurious, but lack merit. The first defendant was obliged by law to formally charge the plaintiff but failed to do so. The question that needs to be asked is, is that natural justice? The answer, as far as the Court is concerned, is no. The duty to act fairly and to be seen to act fairly is a constitutional directive. The defendants cannot say that the issue of natural justice does not apply here because the plaintiff has not yet been charged with an offence. However, at the time of the commencement of suit, the first defendant had failed to lay a charge against the plaintiff for almost four months. In that the kind of mischief by agents of the State that the powers that he condones? Needless to say, at the time of the substantive hearing of this application, the Minister for Forest, the first defendant herein continued to breach his mandatory contractual obligations.

As I have already alluded to, the conduct or actions of the Minister in failing to charge the plaintiff as was mandatory to do was in breach of the ............................. of natural justice emphasized in s.59 (2) Constitution. That failure and denial by the first defendant resulted in the plaintiff not being given the opportunity to answer those serious allegations made against him. Counsel for the plaintiff, Mr. Jerewai relies on my decision in Bill Skate & Philip Taku v. Ruma Tau & Ors, (2001) N2128, 4th October 2001, unreported; and he specifically cited some excerpts of my judgment in that judgment. I want to refer to that judgment.
____________________________________________________________________________

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^[1] N.2126, unreported, 4^th October 2001
^[2] [1863] 143 ER 414; (1863) 14 CB (NS) 180
^[3] [1976]1 All ER 12
^[4] [1964] AC 40; [1963] 2 WLR 935; [1963] 2 All ER 66
^[5] [1967] 2 AC 337
^[6] [1980] PNGLR 101
^[7] [1947] EWCA Civ 1; [1948] 1 KB 223