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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 373 OF 2001
MICHAEL ANIS WINMARANG
Plaintiff
V
DAVID ERICHO, DIRECTOR
NATIONAL NARCOTICS BUREAU
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Cannings J
2004: 9, 10 December,
2006: 1, 31 March
ADMINISTRATIVE LAW – judicial review of decisions of Director of National Narcotics Bureau to terminate employment of public official and ignore a recommendation from the Public Services Commission for reinstatement – application for judicial review under National Court Rules, Order 16.
CONSTITUTIONAL LAW – Public Services Commission – review of personnel matter in the Public Service – recommendation for reinstatement – refusal to comply with recommendation – status of recommendations made by Public Services Commission – duty of respondent to implement recommendations or give cogent and convincing reasons for failure to implement.
The plaintiff was an officer of the National Narcotics Bureau employed under a contract of employment. The Director of the Bureau laid disciplinary charges against him, heard from him, then dismissed him, terminating his employment. The plaintiff sought review of that decision by the Public Services Commission, which considered the matter and having found procedural errors recommended to the Director that the plaintiff be reinstated. The Director did not comply with the recommendation. The plaintiff sought and was granted leave to seek judicial review. This was the hearing of the substantive application for review.
Held:
(1) It is part of the principles of natural justice – and part of a person's right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence.
(2) The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is to be inferred that there were no good reasons for the decision being made. (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied.)
(3) An applicant is confined at the hearing of an application for judicial review, unless the court grants leave for amendment, to the grounds of review set out in the Order 16, Rule 3(2)(a) statement filed in support of the application for leave. It is sufficient if a ground of review is raised by necessary implication. It is not necessary that it be expressly stated. Constitution, Section 158(2) applied.
(4) The head of a governmental body, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so.
(5) The present proceedings were properly regarded as being a review of both (a) the first defendant's decision to dismiss the plaintiff and (b) the first defendant's decision not to implement the recommendations of the Public Services Commission.
(6) The first defendant's decision to dismiss the plaintiff involved errors of law as he charged and dismissed the plaintiff under a repealed law, failed to lay the charges in the express words of any law and failed to give reasons for his decisions to find the plaintiff guilty and dismiss him.
(7) The first defendant neither implemented the recommendations of the PSC nor gave cogent and convincing reasons for failing to do so. His decision not to follow the PSC recommendations was bad in law.
(8) As the plaintiff was employed under a contract of employment the period of which had expired by the time of the trial and the terms of which did not guarantee future employment, it was not appropriate to order reinstatement.
(9) Remedies in judicial review proceedings are at the discretion of the court and in the circumstances it was in the interests of justice to award damages under Order 16, Rule 7 of the National Court Rules.
(10) Accordingly, the Court entered judgment on liability for the plaintiff with damages to be assessed.
Cases cited
The following cases are cited in the judgment:
Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850
Felix Bakani and OPIC v Rodney Daipo (2001) SC659
Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66
Ibrahim Sulaiman v University of Technology (1987) N620
Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123
Robinson v National Airlines Commission [1983] PNGLR 476
Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00
The State v James Yali (2006) N2989
JUDICIAL REVIEW
This was an action in which the plaintiff sought judicial review of his dismissal as an officer of a governmental body.
Counsel
R Uware, for the plaintiff
H Polume-Kiele, for the defendants
31st March, 2006
1. CANNINGS J: This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as an officer of the National Narcotics Bureau. The facts are not in dispute. The plaintiff was employed by various governmental bodies from 1974 until he joined the National Narcotics Bureau ("the Bureau") in 1993. At all times he was employed by the Bureau the plaintiff held the position of Director of Research, Policy and Planning.
2. The Bureau is a governmental body established by the National Narcotics Control Board Act 1992. Its functions are prescribed by Section 13. Amongst other things it makes recommendations to the National Narcotics Control Board on policies, measures, plans, matters or projects relating to the abuse of drugs. The Board is a separate body established by the same Act. Its functions include initiating and implementing policies on drug abuse. The Director of the Bureau is appointed under Section 14 and is responsible amongst other things for the proper administration of the Act and the general working and efficient conduct of the Bureau. It has become conventional to call the Director the "Director-General". The latter term is a colloquialism, indicative of tardy nomenclature, and is avoided in this judgment unless reference is made to a document in which it is used. The Director and such other staff as are considered necessary by the Director constitute the staff of the Bureau whose terms and conditions are determined under the Public Services (Management) Act 1995.
3. In 1998, after five years as a non-contract officer, the plaintiff entered into a three-year written contract of employment with the State. It provided that he would be employed as Director, Research, Policy and Planning in the National Narcotics Bureau (the position he had occupied since 1993). The period of the contract was from 30 June 1998 to 29 June 2001. The contract provided for termination of employment (clause 19) and for disciplinary procedures for serious disciplinary matters (clause 25). Employment in the Public Service after expiry of the contract was dealt with in clause 27. Provision was made for further employment but it was not guaranteed.
4. On 9 May 2000 the plaintiff was served with a document containing three disciplinary charges, which stated:
SUBJECT: NOTICE OF CHARGE UNDER SECTION 47 OF THE PUBLIC SERVICE (MANAGEMENT) ACT [sic]
Take Notice that you are hereby charged with committing an offence within the meaning of Section 45 of the Public Service (Management) Act, [sic] and the facts are as follows:
(a) You have continuously absented yourself from duties without any good explanation as of the 17th April 2000 to the date of this notice.
(b) That you have failed to perform your duties by delaying a UNDCP project (the RAPID SITUATION ASSESSMENT) for more than 21 (twenty one) months.
(c) That you have shown insubordination since I resumed duties as the Director General of the Bureau.
Take further notice that, in accordance with Section 47(4) of the Act, I hereby call you to state in writing, whether you admit the truth of the above charges and give your written explanation for my consideration.
You are to reply to the above charges within 7 (seven) days, and take note that, if there is no reply within the given time frame, you may be deemed to have admitted the truth of the charge.
5. The plaintiff responded to the charges in writing on 18 May 2000, denying all of them.
6. On 18 August 2000 the first defendant wrote a letter to the plaintiff headed "Note of Termination", which stated:
I acknowledge receipt of your reply to the charges laid against you. After having thoroughly read through your reply to each charge and weighing them against the evidence I have on hand, my decision is as follows:
That your services to the Public Service and the National Narcotics Bureau as Director of Research, Policy and Planning is terminated forthwith.
Thank you for your invaluable services to the Public Service and the National Narcotics Bureau.
7. Enclosed with that letter was a notice of punishment under the Public Services (Management) Act, signed by the first defendant. This stated that the three charges had been sustained, that the punishment was termination forthwith and that the plaintiff had a right to a review of the decision by the PSC. The first defendant gave no other reasons or explanation for his decision.
8. The plaintiff sought review of his dismissal by the PSC. It is not clear when he did this as the letter or other document showing how he sought review was not in evidence. The defendants' counsel attempted to make an issue of this at the trial but I think it is of no consequence. Clearly the plaintiff or perhaps his lawyers asked the PSC to review the matter.
9. On 1 February 2001 the Acting Chairman of the PSC, Mr J E Tetaga OBE, wrote to the first defendant to inform him that the PSC had completed its review and arrived at five recommendations:
10. Mr Tetaga said that the PSC had found that the first defendant committed several significant procedural errors, namely:
11. Mr Tetaga gave particulars of each of the above findings and notified the first defendant that as part of its constitutional functions the PSC's recommendations would be included in its annual report to the Parliament. The first defendant was invited to direct any queries to the Office of the Chairman of the PSC. Copies of the letter were forwarded to the Chief Secretary to Government, the Secretary for Personnel Management and the plaintiff.
12. On 23 March 2001 Harricknen Lawyers wrote on behalf of the plaintiff to the first defendant, advising that he should comply with the PSC's recommendations within seven days, failing which court proceedings would be commenced.
13. The first defendant did not respond to the PSC's recommendations or to the letter from Harricknens.
14. On 10 May 2001 Harricknens wrote to the Solicitor-General, suggesting that the PSC's recommendations be immediately implemented as they had instructions to apply for judicial review.
15. There was no response to that letter either.
16. On 14 June 2001 the plaintiff, through Harricknens, filed an originating summons and other documents under Order 16 of the National Court Rules. He sought leave for judicial review, set out the grounds on which he proposed to rely and the relief sought.
17. On 18 July 2001 Amet CJ granted leave to seek judicial review.
18. On 9 October 2003 Harricknen Lawyers ceased acting for the plaintiff and the Public Solicitor commenced acting for the plaintiff.
19. In December 2004 the trial of the application for judicial review was held in Waigani. There was a lapse of more than three years between the granting of leave and the trial but this was apparently not attributable to the plaintiff.
THE PLAINTIFF'S EVIDENCE
20. Mr Uware, for the plaintiff, tendered two affidavits by consent and called the plaintiff, Michael Winmarang, to give oral evidence. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.
TABLE 1: SUMMARY OF AFFIDAVITS
| Exhibit | Description | Content |
| A | Affidavit: Michael Anis Winmarang, plaintiff, 08.06.01 | States that he was recruited into the Public Service in January 1974 – held positions in a number of different governmental
bodies before joining the National Narcotics Bureau in July 1993 – executed a contract in 1998 – charged in May 2000
– terminated in August 2000 – later sought review by the PSC which in February 2001 recommended that he be reinstated
– no response from the Director so he sought legal advice and commenced the current proceedings – states that he has
been under mental stress and frustration since the date of termination and has been unable to support his wife and children and has
had difficulty repaying a housing loan from Westpac Bank – has been unable to find alternative employment. |
| B | Affidavit: Russell Uware, Lawyer, 11.10.04 | This affidavit by the plaintiff's lawyer gives an account of the steps taken to get the matter set down for trial. |
21. The plaintiff Michael Anis Winmarang adopted his affidavit in examination-in-chief. He confirmed that his employment was terminated on 18 August 2000. He sought review of the decision to dismiss him by the PSC. There has never been any response to the PSC recommendation to reinstate him. In cross-examination he stated that he had sought employment since he was dismissed and had been working for a year part-time for the Education Reform Program. In re-examination the plaintiff stated that he sought legal advice straight after he was dismissed. The plaintiff's case was then closed.
THE DEFENDANT'S EVIDENCE
22. The defendant offered no evidence.
THE ORDER 16, RULE 3(2)(a) STATEMENT
23. The statement filed under Order 16, Rule 3(2)(a) of the National Court Rules in support of the application for judicial review is the document that sets the parameters of these proceedings. Order 16, Rule 3(2) (grant of leave to apply for judicial review) states:
An application for leave [to apply for judicial review] must be made by originating summons ... and must be supported—
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
24. If leave is granted the plaintiff is constrained by the relief sought and the grounds on which it is sought that are set out in the Order 16, Rule 3(2)(a) statement, unless leave is granted to amend the relief or the grounds. This is the case per force of Order 16, Rule 6 (statements and affidavits), which relevantly provides:
(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion [by which the application for judicial review is made] and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.
(2) The Court may on the hearing of the notice of motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.
25. The plaintiff relies on the following grounds of review:
26. The plaintiff seeks eight substantive remedies:
MAJOR ISSUES
27. This case raises three major issues:
28. Before addressing each of these issues in turn, there is a preliminary issue to address: is it open to me to consider the second issue at all in view of the way in which the Order 16, Rule 3(2)(a) statement is drafted? I see three possible defects in the statement.
29. I regard these three aspects of the Order 16, Rule 3(2)(a) statement as possible defects – or instances of poor drafting – in view of the insistence of Order 16, Rule 6(1) that an applicant for review only rely at the hearing of the application on the grounds for relief that are set out in the statement. The statement does not expressly mention what appears from a cursory examination of the case to be a strong point: that the first defendant erred in law by ignoring the PSC's recommendations. So what should the court do? Disregard the second major issue because it was not set out properly in the Order 16, Rule 3(2)(a) statement? Or interpret the statement broadly, regard the issue as having been impliedly raised in the statement and proceed to determine the issue?
30. There was little or no argument about this preliminary issue – or even the second major issue – at the hearing of this case. Both counsel focussed on the first major issue. I have decided to take the second course of action – interpret the Order 16, Rule 3(2)(a) statement broadly – in light of Section 158 (exercise of the judicial power) of the Constitution, which states:
In interpreting the law the courts shall give paramount consideration to the dispensation of justice.
31. I do not think I would be dispensing justice if I were to interpret Order 16, Rule 6(1) too strictly and insist that all arguments that arise on the hearing of an application for judicial review be raised expressly in the statement filed on commencement of the proceedings. Each case must be decided on its merits. The court must be mindful of the dangers of bending the rules too far when dealing with ill-drawn court documents. However, I think it is sufficient if a ground of review is raised by necessary implication and I conclude that that is the case here. The first remedy expressly sought by the plaintiff is an order that the defendants implement and/or give effect to the "decision" (put correctly, the recommendations) of the PSC of 1 February 2001. The PSC's recommendations were based on findings that the first defendant acted unlawfully in terminating the plaintiff, which is the first ground of review expressly set out in the Order 16, Rule 3(2)(a) statement.
32. I conclude that the issue of whether the first defendant committed an error of law by not complying with the PSC's recommendations was by necessary implication raised as a ground of review and therefore I will determine it.
PLAINTIFF'S SUBMISSIONS
33. Mr Uware focussed his submissions on the first major issue: whether the decision to dismiss the plaintiff was unlawful. He argued, firstly, that the first defendant acted unlawfully as there were disciplinary offences specifically prescribed by the plaintiff's contract of employment, clause 20, which should have been relied on. Secondly, the first defendant laid the charges under the Public Services (Management) Act 1986, which was repealed by the 1995 Act. Thirdly, the charges were vague as they failed to indicate the specific parts of the section being relied on that were allegedly infringed by the plaintiff. Fourthly, though the charges were laid under the 1986 Act the punishment purported to be imposed was under the 1995 Act. This was irregular and unlawful. Fifthly, it was argued that at the time he laid the charges the first defendant did not hold the office of Director. His appointment had lapsed and he lacked any legal power to lay the charges.
34. On the issue of whether the first defendant erred in law by not following the PSC's recommendations, Mr Uware had little to say. He seemed to concede that the first defendant was entitled to reject the recommendations. However, that proposition cannot be accepted without some significant qualifications, which I will address in a moment. As to remedies Mr Uware adequately explained the delay in bringing the matter to trial. If the court fails to make an order for reinstatement of the plaintiff Mr Uware asked that consideration be given to an award of damages.
DEFENDANTS' SUBMISSIONS
35. Ms Polume-Kiele submitted that the first defendant was not confined to laying disciplinary charges in accordance with the terms of the contract, which clearly cross-referred to the Public Services (Management) Act. There was evidence that the first defendant considered the plaintiff's response and there was no evidence that he did not take into account all relevant matters. The first defendant was not required to give a statement of the matters he took into account in arriving at his decision to dismiss the plaintiff. He stated the reasons for his decision in his letter to the plaintiff of 18 August 2000.
36. Like Mr Uware, Ms Polume-Kiele had little to say on the issue of whether the first defendant erred in law by not following the PSC's recommendations. As to remedies, Ms Polume-Kiele urged the court not to order reinstatement in the event that it found error on the part of the first defendant but rather to consider an award of damages (Robinson v National Airlines Commission [1983] PNGLR 476, National Court, Andrew J; Ibrahim Sulaiman v University of Technology (1987) N610, National Court, Woods J).
FIRST MAJOR ISSUE: WAS THERE ANY ERROR OF LAW INVOLVED IN THE DECISION TO DISMISS THE PLAINTIFF?
37. I agree with Mr Uware's submission that the charges against the plaintiff were sloppily drafted. They were confusing as they refer to two provisions (Sections 45 and 47) of the repealed Public Services (Management) Act 1986. They should have referred to Sections 50 and 52 of the Public Services (Management) Act 1995. This is not a trivial matter. I reject Ms Polume-Kiele's argument that the gist of the charges was sufficiently set out and that the plaintiff would have known the case that he had to answer. Referring to the wrong law was a fatal flaw in the charges and constitutes an error of law, which renders the charges and the decision based on them defective (Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00, unreported, National Court, Sevua J; Felix Bakani and OPIC v Rodney Daipo (2001) SC659, Supreme Court, Gavara-Nanu J).
38. The other problem with the charges exposed by Mr Uware is that they were not expressed in the words of the law that creates the disciplinary offences the plaintiff was charged with committing. Section 50 of the Public Services (Management) Act 1995 states:
An officer who—
(a) commits a breach of this Act; or
(b) except as authorized in the course of official duty, does or divulges, directly or indirectly, any confidential information concerning public business or any matters of which he has official knowledge; or
(c) except with the consent of the Head of State, acting on advice, or of an officer authorized for the purpose by the Head of State, acting on advice, publicly comments on administrative action or the administration of a Department; or
(d) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(e) is negligent or careless in the discharge of his duties; or
(f) is inefficient or incompetent from causes within his own control; or
(g) uses intoxicating liquors or drugs to excess; or
(h) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or
(i) is guilty of disgraceful or improper conduct in his official capacity or otherwise; or
(j) having taken an oath or made an affirmation in the form in Schedule 1, does or says anything in violation of it; or
(k) seeks the influence or interest of any person in order to gain promotion, transfer or other advantage; or
(l) supplies to another officer, for use for any purpose referred to in Paragraph (k), a certificate or testimonial relating to official capacity or the performance of official duties,
is guilty of a disciplinary offence and is liable to be dealt with and punished—
(m) in the case of a Departmental Head—under Part VI; and
(n) in the case of an officer other than a Departmental Head—under this Part.
39. The charges should have referred to the particular paragraph in Section 50 that was being relied on. For example, the first charge – continuously absenting himself from duty – could have been based on Section 50(i) in which case it should have stated:
You are charged with being guilty of improper conduct in your official capacity, in that ....
40. The second charge – delaying a project – could have been based on Section 50(f) in which case it should have stated:
You are charged with being inefficient from causes within your own control in that ....
41. The third charge – insubordination – could have been based on Section 50(d) in which case it should have stated:
You are charged with wilfully disregarding a lawful order given by a person having authority to give it, in that ....
42. It is part of the principles of natural justice – and part of a person's right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he or she has to answer. The person laying the charge and the person determining the charge (who will sometimes be a different person to the one who laid the charge) will not have a clear mind on the real issues to be decided. (Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported, National Court, Los J; The State v James Yali (2006) N2989, National Court, Cannings J.)
43. Mr Uware's remaining argument about mistakes made by the first defendant in his references to the law – that having charged the plaintiff under the 1986 Act he should have imposed punishment under that Act and not the 1995 Act as he purported to do – was not one that impressed me. By the time the plaintiff was charged, vaguely, under the wrong Act the damage had been done. I do not think it is of any consequence that the notice of punishment was issued under the 1995 Act. The other arguments raised by Mr Uware also do not warrant much attention. One was that the first defendant should have charged the plaintiff under the provisions of the contract, not under the Act. Ms Polume-Kiele adequately responded to this: the contract cross-referred to the Public Services (Management) Act so there was nothing wrong in charging the plaintiff under the Act.
44. The other argument was that the first defendant's appointment was revoked at the time that he laid the charges. It seems that the making and revocation of appointments to the directorship of the National Narcotics Bureau for several years resembled a game of musical chairs. However, the evidence was not clear enough on this issue to warrant the court making any findings of fact or law.
45. Ms Polume-Kiele put forward some contentious propositions in her submission. She submitted that the first defendant was not required to give a statement of the matters he took into account in arriving at his decision to dismiss the plaintiff; and that, in any event, he stated the reasons for his decision in his letter to the plaintiff of 18 August 2000. These propositions are incorrect, in law and fact. The duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official's decisions. If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction (Ombudsman Commission v Peter Yama (2004) SC747, Injia DCJ, Sakora J, Sawong J; Mision Asiki v Manasupe Zurenuoc (2005) SC797, Jalina J, Cannings J, Manuhu J.)
46. In the present case all that the first defendant said in his letter of 18 August 2000 when he wrote to the plaintiff to tell him he was being dismissed was that he had read the plaintiff's reply to the charges and weighed them against the evidence he had on hand, and made his decision. I wonder how an accused person would feel if this is all a Judge said before convicting them and sending them to gaol. Such glibness means nothing and is unacceptable. It falls well short of giving reasons. The first defendant gave no reasons for either finding the plaintiff guilty of the charges or deciding that the appropriate punishment was dismissal. It follows that he had no good reasons to support either decision.
47. Summing up the first major issue, I find that there were three errors of law involved in the first defendant's decision to dismiss the plaintiff:
48. I therefore uphold the grounds of review Nos 1 to 3 in the Order 16, Rule 3(2)(a) statement.
SECOND MAJOR ISSUE: WAS THERE ANY ERROR OF LAW IN THE FIRST DEFENDANT'S RESPONSE TO THE PSC RECOMMENDATIONS?
49. This is a straightforward issue to determine and it is surprising that it was given little attention by both counsel. In the present case the PSC made recommendations for the reinstatement of the plaintiff and payment of back-pay that were ignored by the first defendant. In Mision Asiki v Manasupe Zurenuoc (2005) SC797 the Supreme Court confirmed that the head of a governmental body, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so. This principle of law was not new. It had been clarified as early as 1993 by the decision of Amet J, as he then was, in Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66, and subsequently applied by Gavara-Nanu J in Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123.
50. The first defendant neither implemented the recommendations of the PSC nor gave cogent and convincing reasons for failing to do so. He did the worst possible thing: he ignored the recommendations. By doing that, he is deemed to have made a decision not to follow the recommendations. That decision was therefore bad in law. For this reason also, it follows that the first defendant's decision to dismiss the plaintiff was bad in law.
51. As the Supreme Court pointed out in Mision Asiki's case the Parliament in 2002 made significant changes to the laws regarding the PSC's powers, functions, duties and responsibilities. The PSC now makes binding decisions on personnel matters that it reviews, as distinct from recommendations. (See Public Services (Management) Act 1995, Section 18(3)(d)(ii), introduced by the Public Services (Management) (Amendment) Act No 24 of 2002, which commenced operation on 1 June 2002, and Constitutional Amendment No 25, The State Services, which commenced operation on 11 August 2003, referred to in Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.) Those changes to the law make no difference to this case as the first defendant's decisions regarding the plaintiff were made in August 2000 (the decision to dismiss him) and in March 2001 (the approximate date of the deemed decision not to follow the PSC's recommendations). There is ample authority to support the conclusion that the second decision was made contrary to the law as it then stood.
52. The second major issue is determined in favour of the plaintiff: the first defendant's failure to follow the recommendations of the PSC involved an error of law and was unlawful.
THIRD MAJOR ISSUE: WHAT RELIEF SHOULD BE GRANTED?
53. As the Supreme Court emphasised in Mision Asiki's case it is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.
54. The plaintiff wants the court to make an order that he be reinstated to his position in the National Narcotics Bureau. I do not think that in all the circumstances that is an appropriate order. The plaintiff has not worked in the Bureau for more than five years. At the time of his dismissal (18 August 2000) he was engaged under a contract of employment that was due to end on 29 June 2001. That contract gave him no guarantee of re-employment. I will therefore not order reinstatement. I think that this is a case in which the interests of justice dictate that the court make or sanction an award of damages under Order 16, Rule 7 (claim for damages) of the National Court Rules, which states:
(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if—
(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 8, Division 2, shall apply to a statement relating to a claim for damages as it applies to a pleading.
55. I consider, without deciding (as I have not heard argument on these issues) that damages should probably be awarded to cover:
56. I do not have sufficient evidence before me to make an assessment of damages so I will direct that the parties return to court to notify whether any settlement can be reached that can be made the subject of a consent order. If no settlement is reached I will consider ordering under Order 4, Rule 35 (continuation on pleadings) of the National Court Rules that the matter continue by way of pleadings.
(1) The Court may order that the proceedings continue on pleadings.
(2) The Court may, on or after making an order under Sub-rule (1)—
(a) order that any affidavits stand as pleadings; or
(b) make orders for the filing of a statement of claim or other pleadings.
(3) The provisions of these Rules concerning proceedings commenced by writ of summons shall, except as far as the Court otherwise orders, and except so far as the context or subject matter otherwise indicates or requires, apply to proceedings ordered under this Rule to continue on pleadings.
JUDGMENT
57. I grant the application for judicial review and direct entry of judgment in the following terms:
Judgment accordingly.
_____________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants
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