Sireh v Larelake, Administrator, Department of Gulf [2007] PGNC 7; N3181 (26 March 2007)

N3181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 1131 OF 2005

BETWEEN

PAUL SIREH for himself and on behalf of 167 affected Public Servants in the Department of Gulf
Plaintiff

AND

HERMAN ITAGAU
Second Plaintiff

AND

MIAI LARELAKE, ADMINISTRATOR, DEPARTMENT OF GULF
First Defendant

AND

DEPARTMENT OF GULF
Second Defendant

AND

GULF PROVINCIAL AND LOCAL LEVEL GOVERNMENT
Third Defendant

Waigani: Injia DCJ
2007: 26 March

JUDICIAL REVIEW - Application for leave to challenge implementation of approved restructure – Approved Staff Restructure contrary to DPM Secretaries directives as ground of review – application filed after more than two years after restructure approved by DPM - leave refused as it would be detrimental to good administration of public service – O.16 r.4 of National Court Rules

Counsel
S Soi, for the Plaintiffs
L Cherake, for the Defendants

1. INJIA, DCJ: This is an application for leave for judicial review under O 16 r 3 of the National Court Rules. After learning full arguments on the four requirements for leave, I delivered a short ruling on 26 May 2006. In that ruling, I decided to allow the administrative appeal process to be exhausted and issued directions requiring the Secretary for DPM to file affidavits annexing a copy of the DPM’s Internal Investigation Report into the implementation of the approved staff restructure for the Department of Gulf and a copy of the Redundancy Monitoring Committee’s decision on the appeal lodged by the plaintiffs against their retrenchment/Retirement under the approved staff structure.

2. The Secretary for DPM complied with these directions. She filed two affidavits. In her affidavit sworn on 28 November and filed on 29 November 2006, she annexed a copy of the Investigation Report. In her affidavit sworn and filed on 21 February 2007, she annexed a copy of the decision of the Redundancy Committee. I have considered those materials.

3. There are four requirements for grant of leave for judicial review. As to locus standi of the plaintiffs, I am satisfied that they have sufficient interest to bring the proceedings. The plaintiffs are members of the public service who are affected by the Gulf department’s staff restructure exercise.

4. As to delay under O 16 r 4(2), the applicants had four months from the date of the decision to make the application. Where there has been undue delay, the Court may refuse leave if "in the opinion of the court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration": O 16 r 4(2).

5. I note from par 2(a) of the Amended Statement filed under O 16 r 3(a) that the new staff restructure was submitted for approval in June 2003 and approved by DPM on 18 November 2003. In par 2(c) of the Amended Statement, it says the approved restructure was implemented by the Department of Gulf between January 2004 and June 2005.

6. The relief sought are pleaded in the Amended Statement in par 3. In par 3A, the plaintiffs say if leave is granted, the plaintiffs intend to apply for an order in the nature of certiorari to quash "the decision of the First Defendant (Provincial Administrator) to issue Circular No. 54/04 dated 18 November addressed to all district Administrators, directors, Sectional Heads of the Gulf Provincial Administration regarding the retrenchment and retirement of Public Servants in Gulf Province" on various grounds. In par B, the plaintiffs say they will apply for a Writ of Mandamus to compel the Defendants to produce the Investigation Report and to produce directives referenced as 1-7-7 dated 11 February 2004, issued by Secretary for DPM to the Provincial Administrator and to compel the Provincial Administrator and the Department of Gulf, to comply with that Directive and also to comply with provisions of the Public Service Management Act (PSMA), General Orders and Public Finance Management Act relating to retirement and retrenchment. The Plaintiffs will also apply for declaratory orders that the approved staff restructure is illegal pursuant to s 33 of the PSMA and declarations that the appointment of new persons under the restructure to positions which are already occupied by substantive holders and paid is illegal and invalid under s 33 of PSMA.

7. There are twelve (12) grounds pleaded in par 4 of the Amended Statement. The main ground is that the First and Second Defendants implemented the approved Staff Restructure contrary to directives issued by the Secretary for DPM on 11 February 2004. As such they lacked authority or power to implement the approved restructure and make new appointments and retrench or retire the plaintiffs. Relevant provisions of the PSMA and General Orders alleged to be breached by the First and Second Defendants are cited.

8. The application for leave was filed more than two years after the restructure was approved by DPM. The implementation of the restructure followed one year after the approval. Whilst implementation was carried out between January 2004 and June 2005, this application was filed in December 2005. It was filed two months late. It is now more than three years since the application was filed and the application has been argued and determined. In the total of more than three years since the restructure was approved and implemented, a lot has changed on the ground in terms of existing staff being identified and placed on retrenchment or retirement and new appointments made. In some cases, officers have been paid out their retrenchment or retirement benefits. Some signed Deeds of Release and received their pay-outs. Some appealed to the Redundancy Committee, which dismissed their appeals. Many complained of unfair treatment to DPM, which commissioned an investigation. DPM took an objective position by instituting an internal investigation and at some stage halting the implementation pending the internal investigation. The Report containing its recommendations is in evidence.

9. Some attempt was made by the plaintiffs to question the approval of the staff restructure but that does not appear to be the primary decision the subject of this review for which leave is sought. In my view the principal relief sought if leave were granted is to challenge the implementation of the approved restructure. This is apparent from par 3A and B of the Amended Statement. The declaratory orders sought in par 3 and 4 of the Statement are consequential orders, consequent upon grant of Certiorari and Mandamus. In my view, the implementation is a logical consequence of the approved restructure. When the approval of the restructure is not challenged as a primary relief, a challenge to its implementation is a proper subject of declaratory orders and/or breach of contract of employment and damages and not one of judicial review.

10. In these circumstances, I am of the view that the long delay in challenging the approved restructure before its implementation, alone is sufficient to deny leave. Also the challenge to the implementation of the approved structure at an advanced stage of implementation does not warrant grant of leave. The appropriate time to challenge an approved restructure is before it is implemented or in the very early stages of its implementation. To grant leave for judicial review at this late stage of the implementation is likely to result in creating chaos and confusion in the administration. It is likely that it would cause substantial hardship to or substantially prejudice the rights of those persons who were appointed under the restructure. It would also be detrimental to good administration of the public service in Gulf Province to review the implementation process in a wholesale fashion.

11. Further, the whole situation looks pretty messy. Judicial review procedure is not one in which persons aggrieved by decision of public authority can expect the court to sort out the mess and by way of relief, alter irreversible administrative actions that have already taken place, much to the detriment of good public administration and the rights of officers who have been appointed under the approved restructure.

12. I agree with Mr Soi for the plaintiffs that the rights of the plaintiffs are also being affected. However, in my view, the plaintiffs’ rights can be more appropriately enforced by an action for damages for breach of employment contract or declaratory orders for breach of statutory duty such as s.24(2)(v), s.34 & s.37 of the PSMA or General Orders. They should file fresh actions by Writ of Summons and properly plead their cause of action. The appropriate relief would be one of declaratory orders and damages for breach of contract or breach of statutory duty. I do not think judicial review procedure is the way to go.

13. In relation to arguable case, the plaintiffs may have an arguable case on the implementation of the approved restructure but that is a matter they should plead in proceedings commenced by Writ of Summons and have the issue determined by the court after a proper trial.

14. In relation to exhausting of alternative statutory relief such as appeal or review, some of the plaintiffs have exhausted their right of appeal to the Redundancy Committee. It is not pleaded in the Statement as to whether leave is sought to review that decision, the relief sought and the grounds as to where the Redundancy Committee erred in law or abused its powers. There is some evidence to show that the Committee was not properly constituted or constituted by interested persons such as the First Defendant. In my view, if the Redundancy Committee which is a statutory body is to be challenged, that has to be specifically so identified and challenged through a proper pleading in the Statement. The Amended Statement contains no reference to such matters. No application was made to amend the Statement to include such matters. It appears the challenge to the decision of the Redundancy Committee is inappropriately lumped under the general challenge to the defendants’ decision.

15. Further, in relation to the exhausting of other Statutory remedies, I accept Mr Cherake’s submission that the subject matter of this application could be a proper subject for the PSC, to deliberate and make a decision under s.18 of the PSM Act. All the plaintiff’s claims relate "decision on a personal matter relating to appointment or selection and ... connected with the National Public Service." If they have not lodged a complaint within the time period of 60 days stipulated by s.18(2)(b), they may seek the Chairman’s waiver of the time limit under that provision. This alternate avenue has not been exhausted.

16. For these reasons, I dismiss the application with costs to the Respondent. I also discharge the interim orders previously issued and extended to date.

_____________________

Serei Soi & Associate Lawyers: Lawyer for the Plaintiffs
Warner Shand Lawyers: Lawyers for the Defendants