Gagari v Public Service Commission [2007] PGNC 44; N3149 (20 July 2007)

N3149

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 108 OF 2007

BETWEEN

IMELDA GAGARI
Plaintiff

AND

PUBLIC SERVICE COMMISSION
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Lay J.
2007: 14 June and 20 July

CIVIL - judicial review - right to be heard - negligent failure to provide current address - opportunity to be heard on appeal - refusal of leave to proceed.

Overseas Cases Cited

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Glynn v Keele University (1971] 1 WLR 487
Al-Mehdawi v Secretary Of State for the Home Department [1990] 1 AC 876

References
Public Services Management Act

Counsel
A. Waviha, For the Plaintiff
T. Tanavasa, For the Respondents

Facts

The Plaintiff wrote to her employer, the Department of Health, seeking an unspecified period of leave without pay to attend a funeral out of the country. She left her employment without waiting for a reply and was away from Papua New Guinea, for three and half months. On returning to work she was served with disciplinary charges and a notice of termination, in her absence the charges had been served at her last known place of address pursuant to specific provisions of the Public Service General Orders. The plaintiff appealed to the Public Service Commission and the decision on appeal upheld the decision of the Departmental Head. The Plaintiff sought leave for judicial review on the basis that she had not been given fairness in the making of the original decision as required by Constitution Section 59.

Held

1. A person whose rights are to be determined by an administrative tribunal cannot complain if the effective cause of not being heard is the failure of that person or their agent to ensure that their current address was made known to the decision maker or to have made effective arrangements for on forwarding of correspondence or the opening of correspondence and subsequent communication to them.

2. Where provision is made by an Act of Parliament for a full rehearing of the case by a body vested with exercising original jurisdiction, a court may readily conclude that a full and fair rehearing will cure any defects in the original decision.

3. The cause of the Plaintiff's not being heard on the charges laid against her before the original decision was made was her own negligence in not providing a current address or arranging for on forwarding of her mail.

4. The Plaintiff's appeal to the Public Service Commission pursuant to the Public Services Management Act Section 18 gave her the opportunity to be heard, which was sufficient to comply with the requirements of Constitution Section 59.

5. No arguable case was disclosed, leave to proceed with judicial review refused.

2007 20th July

1. LAY J.: Mrs Gagari was employed in the Department of Health as a Public servant. In April 2005, she received a message that her estranged husband had died at Darnley Island Torres Strait, Queensland, Australia. There was a customary obligation on Mrs Gagari to attend the funeral with her children. On 11 April, 2005, she wrote to the Chief Matron of Port Moresby General Hospital seeking leave without pay. There was no immediate response and Mrs Gagari travelled on the 14 April 2005 without receiving a reply and without further notification to her employer. She did not arrive back in Port Moresby until 1 August 2005, over three months after her departure. On the 2 August 2005 when Mrs Gagari reported for duty she was served with a notice of charge, and a few minutes later she was served with a letter of dismissal from employment in the Public Service.
   
2. Mrs Gagari was never personally served with the charges made against her before a decision was made. She made a written appeal to the Director of Nursing Services on 8 August 2005 but received no response. Then on 13 August 2005, Mrs Gagari applied to the Public Services Commission for a review of the decision to terminate her services. The Public Service Commission confirmed the decision of the departmental head terminating Mrs Gagari's services.
   
3. Mrs Gagari seeks leave of the court to have judicial review of the decision of the Public Services Commission on the ground that Constitution Section 59 requires the decision maker to act fairly and to be seen to act fairly. It is submitted, this means a citizen is to be given equal and fair opportunity to be heard on issues that affect his or her interest and rights. Further it is submitted Mrs Gagari had no real opportunity to respond to the original letter of charges so that it is alleged that she was denied her right to be heard. It is submitted that consequently the Public Service Commission was wrong in upholding the decision of the Secretary for Health because that decision was made in breach of natural justice. The State opposes the application.
   
4. The questions which arise for decision on these facts are:
   
   1. was Mrs Gagari given the opportunity to be heard?
   2. Was a right to be heard an essential prerequisite to determination of the charges by the Secretary for Health if Mrs Gagari was given a full opportunity to be heard on the review by the Public Service Commission?
      
5. A judge who is considering an application for leave to proceed to judicial review must consider four issues in the exercise of his discretion: (1) does the applicant have sufficient interest, (2) has the application been brought without delay, (3) are all administrative remedies available to the applicant exhausted, and does "the material available... disclose what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed": Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, 644 per Lord Diplock. This latter consideration is commonly known as an arguable case and I will address that issue first as I find that it determines the application.
   

Was Mrs Gagari given the opportunity to be heard?

6. The following Public Service General Orders 15.36, 15.37, 15.39, 15.47 and 15.52, are relevant:
   

15.36 Where an officer does not report for duty without good reason for a period of two weeks, then the officer will be charged with a serious disciplinary offence under 15.19(a). If the address, or whereabouts of the officer is unknown, then the procedure described in paragraph 15 .39 shall be used..."

15.37 if the responses received from the officer within seven days of receipt of the charge (allowing for normal postal delivery, if applicable), then the officers shall be dismissed.

15.39 if the Departmental Head is unaware of the address or whereabouts of an officer, all notices relating to disciplinary proceedings shall be posted to the last known address of the officer and that shall be sufficient service on that officer.

15.47 if an officer is irregular in his attendance or absents himself/herself without leave during office hours, the circumstances shall be reported by the officer in charge to the Departmental Head and the officer shall be charged under the disciplinary procedure.

15.52 an officer shall not be absent from duty without prior approval unless reasonable cause is shown.

7. Mrs Gagari's letter of 11 April 2005 to the Chief Matron did not provide a forwarding address. In fact in the letter Mrs Gagari gave her address as care of Port Moresby General Hospital. The reason for her absence given in the letter, attending a funeral, one would not expect to justify an absence of more than two weeks and certainly not an absence of 3 1/2 months. I therefore consider that Mrs Gagari's employers were perfectly entitled to rely on the provisions of the General Orders and serve charges at Mrs Gagari's last known address. The charges were in fact received at that address as Mrs Gagari's own evidence shows.
   
8. Actual personal service can be excused where the party to be served negligently fails to notify change of address: Glynn v Keele University [1971] 1 WLR 487; Al-Mehdawi v Secretary Of State for the Home Department [1990] 1 AC 876. In the latter case, the appellant was not heard on his appeal against a deportation order because his lawyers sent the notice of the hearing date to the wrong address, and neither the appellant nor his lawyers appeared on the appeal. Lord Bridge, with whom Lords Roskill, Brandon, Oliver and Goff agreed, said:
   

"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of privates law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter parties? I cannot discover any such principle, and none has been suggested in the course of argument."

9. In the case of Glynn v Keele University, [1971] 1 WLR 487 a student had appeared naked on the university campus. Without hearing the student the Vice-Chancellor imposed a fine of £10, and exclusion from residence at the University for the ensuring academic year. He wrote to the student advising him of the decision and his right to appeal. The student wrote expressing his wish to appeal, but he went abroad on holiday before receiving notification of the date on which the appeal would be heard, and he did not return until after the date fixed for the hearing. The Vice-Chancellor's decision was upheld by the appeal committee of the council, the student being neither present nor represented. Vice-Chancellor Penicuik Chancery division of the High Court under the Vice-Chancellor had breached the principles of natural justice by not hearing the student before imposing a penalty. In relation to the appeal to the council Vice-Chancellor Penicuik said (at 495G):
   

" The next step in the matter is the appeal to the council under section 19 of the statutes. It is unfortunate that the plaintiff failed to make the necessary arrangements to enable him to attend a meeting of the council, if and when convened, but I do not think it is possible to reach the conclusion that in this respect he has been deprived of his right of appeal. He chose to go away either without giving an address or, if he did leave an address, without coming home, and I think so far as that is concerned, one must treat the decision of the council as effective.

10. I consider from those authorities that it must follow that a person whose rights are to be determined by an administrative tribunal cannot complain if the effective cause of not being heard is the failure of that person or their agent to ensure that their current address was made known to the decision maker or that they have made effective arrangements for on forwarding of correspondence or the opening correspondence and subsequent communication to them.
    
11. As the charges were served at the only address known to the Department of Health in accordance with the provisions of General Order 15.39, the obligation was on Mrs Gagari to give the Department her current address, or arrange on forwarding or opening of her mail if she wanted to be kept abreast of what was happening in her absence. It was not for the Department of Health to carry out investigations as to where Mrs Gagari was and arrange service of charges on her, out of the country. General Order 15.39 was created for the very purpose of avoiding a Departmental Head being placed in that position. What in fact occurred here was that Mrs Gagari negligently failed to notify her employer of her temporary change of address. On those facts, I do not consider that Mrs Gagari was deprived by the Departmental Head of an opportunity to be heard. In my view it was Mrs Gagari's own conduct which deprived her of the opportunity to be heard. It is quite unrealistic to consider that one can be absent for 3 1/2 months from your employment without the employer being concerned, and attempting to make contact at the employee's last known address. The obligation was on Mrs Gagari to make arrangements to ensure that any attempted communication at the address last known to her employer, would be successful.
    
12. The obligation on the Departmental Head pursuant to Constitution Section 59 is the obligation to act fairly. It seems to me that the Departmental Head acts fairly when he acts in accordance with the rules applicable to the parties, in this case the General Orders. There are situations in which the Court has extended statutory provisions to ensure that there is fairness in fact, rather than just in law. But I do not consider that this is a situation in which the General Orders or any lack of provision in the General Orders has wrought unfairness on the plaintiff. For those reasons I consider that the application must fail on that ground alone.
    

Was a right to be heard an essential prerequisite to determination of the charges by the Secretary for Health if Mrs Gagari was given a full opportunity to be heard on the review by the Public Service Commission?

13. Where provision is made by an act of Parliament for a full rehearing of the case by a body vested with exercising original jurisdiction, a court may readily conclude that a full and fair rehearing will cure any defects in the original decision: Glynn v Keele University [1971] 1 WLR 487, 495, see also De Smith, Woolf, & Jowell; Judicial Review of Administrative Action, Fifth Edition, paragraph 10-022 at page 490 and Lloyd v. McMahon [1987] UKHL 5; [1987] AC 625.
    
14. The Public Service Commission is not bound by the facts found by the Departmental head, nor is it restricted to questions of law only. The Public Service Commission under Section 18 of the Act must consider all of the facts relative to the matter and the interested parties.
    
15. Although Mrs Gagari was not heard before the initial decision was made on the charges, she was given the full opportunity to make her submissions and be heard in that way by the Public Service Commission once she was back in the country, before it made its decision. Pursuant to Public Service Management Act Section 18 (1) (c) (A) the Public Service Commission must take into account the views of the person summonsed, which includes the officer seeking the review, in this case Mrs Gagari. The Public Service Commission was aware that Mrs Gagari was not heard and was able to take that factor and Mrs Gagari's views into account in coming to its decision. So that, while before the initial determination of the charges by the Departmental Header was made, Mrs Gagari was given an opportunity in law to be heard; before the Public Service Commission made its decision, she was given an opportunity in fact to be heard.
    
16. Consequently taking an overall view of what occurred, and not solely concentrating on the initial hearing of the charges, in my view any defect in the initial decision (and I consider there was no defect) was cured by the full hearing with opportunity for the Plaintiff to be heard, accorded by Public Service Management Act Section 18. Consequently in my opinion there has been no procedural unfairness, the Plaintiff had an opportunity to be heard and no arguable case is demonstrated by the material before me.
    
17. For these reasons, I refuse leave for the relief sought by Mrs Gagari. Costs follow the event.
    

ORDERS:

1. The application for leave for judicial review is refused;
2. The Plaintiff shall pay the Respondent's costs of the application.

_______________________________

Liria Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyer for the Defendants