Dopsie v Tetaga, Chairman, Public Services Commission [2009] PGNC 98; N3720 (17 June 2009)

N3720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 67 OF 2007

PAUL DOPSIE
Plaintiff

V

JERRY TETAGA, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Defendant

CHRISTOPHER KABARU
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2009: 17 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.

The chief executive officer of a public hospital charged an officer of the hospital with two disciplinary charges, found him guilty and terminated his employment. The officer complained to the Public Services Commission, which reviewed the chief executive officer’s decision and found that the guilty findings were correct but the penalty of termination was too harsh. It annulled the termination and decided that the officer should be reinstated. Its reasons were that the chief executive officer had failed to take account of a number of relevant considerations and failed to give the officer a right to be heard on the question of penalty. 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 not satisfied in this case as: the PSC articulated in a logical and coherent manner the considerations that it considered the CEO had failed to consider, including its view that the officer found guilty had a right to be heard on penalty; the PSC’s decision was neither irrational nor absurd and it could not be said that no reasonable decision-maker in its position could not have formed the view that it did.

(3) The relief sought by the plaintiff was accordingly refused and the PSC’s decision affirmed.

Cases cited
Papua New Guinea Case

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094
Jeffery Afozah v Commissioner of Police (2008) N3300
John Unido v Commissioner of Police (2008) N3369
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

Abbreviations

The following abbreviations appear in the judgment:

Counsel

P Harricknen, for the plaintiff
O Avorosi, for the second defendant
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 to uphold a complaint by the hospital’s former Director of Finance and Administration, Christopher Kabaru, the second defendant.

2. Mr Dopsie’s predecessor, Mr Mark Mauludu, laid two disciplinary charges against Mr Kabaru in 2004. One alleged insubordination and the other, misappropriation of hospital funds. He was found guilty and terminated from employment at the hospital. Aggrieved by both the decision that he was guilty and the decision to impose the penalty of termination, Mr Kabaru complained to the PSC which conducted a review of Mr Mauludu’s decisions under Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act 1995.

3. The PSC found that the guilty findings were correct but the penalty of termination was too harsh. It annulled the termination and decided that Mr Kabaru should be reinstated. Its reasons were that Mr Mauludu had erred in his decision making by failing to take account of a number of relevant considerations:

- that this was the first time that Mr Kabaru had faced disciplinary action in his short stint at the hospital;

- that he had been recruited from the private sector and is a very qualified and experienced officer who the hospital cannot afford to lose;

- Mr Kabaru’s track record.

4. Also, the PSC said that Mr Kabaru was not given a right to be heard on penalty, which he was entitled to.

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:

Was the decision of the PSC unreasonable?

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, that 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 its 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.

Specific arguments raised in Order 16, Rule 3(2)(a) statement

11. The plaintiff argues that the test of unreasonableness is satisfied in that the PSC failed to consider two matters:

- the fact that Mr Kabaru had committed two serious disciplinary offences; and

- the matters set out in Section 18(2)(c)(i) of the Public Services (Management) Act 1995.

Did PSC ignore the seriousness of the offences?

12. I am unable to accept the first submission as the PSC clearly appreciated the seriousness of the offences. It rejected Mr Kabaru’s views that the charges against him were motivated by retaliation. This matter has a long history. Mr Kabaru had earlier prepared a report making allegations against Mr Mauludu that resulted in Mr Mauludu being suspended as CEO. The PSC considered the history of the matter, rejected Mr Kabaru’s argument and sustained the guilty findings. The PSC did not fail to consider the seriousness of the matter.

Section 18(2)(c)(i)

13. As to Section 18(2)(c)(i) of the Act, it is a key provision that the PSC is obliged to apply in all reviews of personnel matters. It states:

The Commission shall ... consider all the facts relative to the matter, including—

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make.

14. There are two observations to make concerning this provision. First, it is mandatory for the PSC to consider "all the facts relative to the matter", which must include the matters (A), (B) and (C). Secondly, while I think it is desirable for the record of the PSC’s decision to include a part that expressly identifies those matters, it is not necessary that its decision be set out that way. The Act is silent on the format of a decision. It follows that provided the record of the decision demonstrates that the PSC has in fact (even if only impliedly or tacitly) considered the prescribed matters, the requirements of Section 18(2)(c)(i) will have been complied with.

15. In this case I am satisfied, having examined the record of the decision, that all of the prescribed matters were in fact considered.

16. I therefore reject the two specific arguments that were relied on by the plaintiff to support the unreasonableness ground of review.

General arguments

17. In addition to those specific arguments there were more general arguments raised by the plaintiffs counsel, Mr Harricknen, in the course of the hearing:

- that the PSC was wrong in saying that Mr Kabaru was entitled to a hearing on the question of penalty;

- that the PSC was wrong in questioning the severity of the penalty;

- that the PSC failed to consider internal reports and the record of proceedings of the hospital disciplinary committee and other information made available to it;

- that the PSC had ignored the serious breach of trust committed by Mr Kabaru, which warranted the penalty of termination;

- that the PSC’s decision was absurd and unreasonable.

Hearing on penalty

18. On the question of whether Mr Kabaru was entitled to be heard by the CEO, having been found guilty, on the question of penalty, Mr Harricknen cites a number of National Court decisions (some of them mine) in which the court has held that under some disciplinary codes a hearing on penalty is not required. For example in Paul Saboko v Commissioner of Police (2006) N2975 and Jeffery Afozah v Commissioner of Police (2008) N3300 I took the view that in the disciplinary code under the Police Act a separate hearing on penalty is not required. Gabi J took a similar approach in John Unido v Commissioner of Police (2008) N3369. However, in other cases in the context of other disciplinary codes – including the code under the Public Services (Management) Act 1995 – it has been held that an officer found guilty does have a right to be heard on penalty, eg Sevua J’s decision in Ambrose Vakinap v Thaddeus Kambanei (2004) N3094. So I do not think it can be said that the PSC was wrong in saying in this case that Mr Mauludu erred by not giving Mr Kabaru a separate right to be heard.

19. It must be remembered that the PSC is not a court. It is an administrative review body. It is entitled to take the position that as a matter of good and fair administrative practice and procedure an officer of the National Public Service who has been found guilty of a disciplinary offence must be given a separate hearing on penalty. Certainly the position taken by the PSC in this case is not evidence of an unreasonable decision.

Severity of penalty

20. It is a fallacy to say that the PSC cannot review the severity of a penalty. There is nothing in Section 18 of the Act to support this proposition.

Failure to consider internal reports

21. I do not agree that the PSC failed to consider the material put before it. In its reasons for decision the PSC acknowledged the seriousness of the findings that the officer was guilty of two offences, particularly the offence of misappropriation.

Breach of trust

22. I reject the submission that the PSC failed to consider this matter adequately.

Absurdity of decision

23. This is the crucial issue. Was the PSC’s decision absurd? If so, was it so absurd or unreasonable that no reasonable decision-maker could have made the decision to substitute the penalty of termination with a caution? In answering these questions there is one important fact that has been glossed over by Mr Harricknen in his submissions: the PSC’s decision that Mr Kabaru be reinstated was qualified by the decision that "the salaries and entitlements lost as a result of termination are forfeited to the State as penalty for committing the offences". So the penalty was not just a caution. Mr Kabaru was losing all the salary and entitlements that he would have otherwise enjoyed from the date of termination to the date of reinstatement. He was out of the office for a considerable period so this by itself was a considerable penalty. It may well be said that he did not deserve to be paid anything as he was not working during that time. But the PSC had the power to decide that the salaries and entitlements lost in that period be paid to him. The PSC, however, exercised its discretion in the other direction; and I think this undermines the argument about absurdity.

24. My assessment of the decision is that it is a carefully considered one. The role of the court is not to sit as an appellate tribunal and decide whether it believes that the PSC decision was the right one but rather to see whether the decision-maker has made an error of law. Even if I were prepared to say for the sake of argument that this was an absurd or unreasonable decision I am not prepared to go further and conclude that it is so absurd or unreasonable or irrational that no reasonable decision-maker could have made this decision.

25. I dismiss the ground of review of unreasonableness.

2 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

26. As unreasonableness was the only ground of review relied on, the application for judicial review must fail. It is appropriate that a declaration be made as to the lawfulness of the PSC’s decision.

ORDER

(1) The application for judicial review of 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, to terminate the second defendant, Christopher Kabaru, and requiring the recall and reinstatement of Mr Kabaru, the forfeiture of salaries and entitlements and the giving of a caution to Mr Kabaru, is dismissed.

(2) It is declared for the avoidance of doubt that the decision of the Public Services Commission referred to in order (1) is lawful and binding.

(3) Costs of these proceedings shall be paid by the plaintiff to the defendants 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
Narokobi Lawyers: Lawyers for the Second Defendant