Dopsie v Tetaga, Chairman, Public Services Commission [2009] PGNC 106; N3722 (20 August 2009)

N3722

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 66 OF 2007

PAUL DOPSIE
Plaintiff

V

JERRY TETAGA, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Defendant

DOUGLAS APENG
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2009: 12 June, 20 August

JUDICIAL REVIEW – unreasonableness – whether the decision of the Public Services Commission on a review of a personnel matter was so unreasonable or absurd no reasonable decision-maker could have made it – remedies – whether appropriate to quash a decision of the Public Services Commission found to be unreasonable.

An officer of a public hospital took unapproved leave without pay for a period of 19 months. He returned to the hospital at the end of that period but the chief executive officer refused to reinstate him. The officer complained to the Public Services Commission, which reviewed the chief executive officer’s decision and found in favour of the officer and decided that he should be reinstated. Its reasons were that the chief executive officer had terminated the officer without following the disciplinary procedures in the Public Service General Orders. The chief executive officer sought judicial review of the PSC’s decision on the ground of unreasonableness.

Held:

(1) The test to apply for the purposes of determining whether an administrative decision has been made unreasonably is to ask whether the decision is so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision.

(2) The test was satisfied in this case as: the officer had been absent without leave for a considerable period and could have had no reasonable expectation that he would be reinstated upon returning from leave; an officer who is absent without leave for an extended period can properly be regarded as having resigned, making it unnecessary to lay disciplinary charges against him; the chief executive officer acted reasonably by recruiting a replacement officer; and, generally, the PSC’s decision was irrational as it had the effect of rewarding an officer who had acted improperly and unlawfully and penalising the chief executive officer, who had acted reasonably, and the hospital he was responsible for running.

(3) The decision of the PSC was accordingly declared null and void and quashed.

Cases cited
Papua New Guinea Cases:

Aegaiya v Baki and The State (2009) N3693
Ambrose Vakinap v Thaddeus Kambanei (2004) N3094
Dale Christopher Smith v Minister for Lands (2009) SC973
Isaac Lupari v Sir Michael Somare (2008) N3476
Paul Saboko v Commissioner of Police (2006) N2975

Overseas cases:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Counsel

P Harricknen, for the plaintiff
G Emang, for the first and third defendants

20 August, 2009

1. CANNINGS J: The plaintiff, Paul Dopsie, is the Chief Executive Officer of Vanimo General Hospital. He is applying for judicial review of a decision of the Public Services Commission. The decision was to uphold a complaint by a former health extension officer at the hospital, Douglas Apeng, the second defendant.

2. Mr Apeng took leave without pay in May 2003 to take up a position with a health project in Madang. The hospital’s Director of Medical Services strongly advised him not to take leave as his absence would disrupt the hospital’s operations. He was told that his position would be advertised and that he would probably lose it. Mr Apeng, however, took leave without pay, which was not approved, and then the hospital recruited a replacement. Mr Apeng returned to Vanimo in January 2005 and asked to be reinstated to his former position. The then chief executive of the hospital, Mark Mauludu, told him that that was not possible as someone else was occupying the position and that there was no other position for him. He refused to reinstate Mr Apeng. Aggrieved by that decision, Mr Apeng complained to the PSC which conducted a review of Mr Mauludu’s decision under Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act 1995.

3. The PSC annulled Mr Mauludu’s decision. It was decided that:

- the implied termination of Mr Apeng was of no effect;

- he was to remain an officer of Vanimo General Hospital on his substantive position;

- all salaries and entitlements lost as a result of the implied termination were to be reimbursed to him;

- an additional position was to be created equal in classification to Mr Apeng’s position to be filled by the officer who had been recruited in Mr Apeng’s absence.

4. Its’ reasons were that the CEO had terminated the officer without following the disciplinary procedures in the Public Service General Orders.

5. Section 18(3)(d)(ii) of the Public Services (Management) Act states that decisions of the PSC become binding after 30 days. That does not, however, prevent a person with a sufficient interest in the matter seeking judicial review of a PSC decision (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094), which is what has happened here.

6. Mr Mauludu’s successor, Mr Dopsie, applied for leave to seek judicial review of the PSC’s decision. Leave was granted and this is a trial of the substantive application for judicial review.

THE GROUND OF REVIEW AND THE RELIEF SOUGHT

7. One ground of judicial review is relied on: the decision of the PSC was unreasonable under the Wednesbury principles. If it is upheld the plaintiff wants the PSC’s decision declared null and void and quashed.

ISSUES

8. There are two issues before the Court:

1. Was the decision of the PSC unreasonable?

2. If yes, what declarations or orders should the Court make?

1 WAS THE DECISION OF THE PSC UNREASONABLE?

9. The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:

- is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975.)

10. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.

11. I consider that the test is satisfied in this case. Mr Apeng was told before he left Vanimo that he was taking leave without approval and that his job would probably be filled in his absence. He was absent for 19 months and could have had no reasonable expectation that he would be reinstated upon returning from leave.

12. An officer who is absent without leave for an extended period can properly be regarded as having resigned. This makes it unnecessary to lay disciplinary charges. The CEO, Mr Mauludu, could have laid disciplinary charges and with the benefit of hindsight might have made things clearer by doing so. Alternatively, he could have written to Mr Apeng and expressly told him that the hospital was treating him as having resigned. However, as a matter of law, I do not consider it was necessary to do those things. The CEO acted entirely reasonably by recruiting a replacement officer.

13. In my assessment the PSC’s decision was irrational as it had the effect of rewarding an officer who acted improperly and penalising the CEO who acted reasonably, and the hospital he was responsible for running.
With respect, it can properly be regarded as an absurd decision: no reasonable decision making body in the position of the PSC should have made such a decision. It was an unreasonable decision. The ground of judicial review relied on is therefore upheld.

2 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

14. It is now time to consider the consequences of upholding the ground of review. It does not necessarily follow that the court will make the declarations sought by the plaintiffs (Aegaiya v Baki and The State (2009) N3693). This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Dale Christopher Smith v Minister for Lands (2009) SC973). Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476).

15. In this case the PSC’s decision has been found to be unreasonable and I can see no compelling reason that it should be allowed to remain in force. It will be declared null and void and must be quashed.

ORDER

(1) It is declared that the decision of the Public Services Commission conveyed by a letter dated 30 November 2006 to the plaintiff, Paul Dopsie, annulling the decision of the then CEO of Vanimo General Hospital, Mark Mauludu, not to reinstate the second defendant, Paul Apeng, to his former position at Vanimo General Hospital, is null and void.

(2) It is ordered for the avoidance of doubt that the decision of the Public Services Commission referred to in order (1) is quashed.

(3) Costs of these proceedings shall be paid by the defendants to the plaintiff on a party-party basis to be taxed if not agreed.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________

Harricknen Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the first & Third Defendants