Maliu v Geno [2013] PGNC 303; N5144 (15 April 2013)

N5144

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 387 OF 1999

POMBROS MALIU
Plaintiff

V

SAMUEL K GENO, DIRECTOR-GENERAL OF CIVIL AVIATION
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2013: 19 March, 15 April

JUDICIAL REVIEW – failure to comply with recommendation of Public Services Commission as to review of personnel matter – Public Services (Management) Act – remedies – when appropriate to award damages in judicial review proceedings.

The plaintiff was an officer of a government office. The head of the office retrenched the plaintiff upon receiving a notice of resignation signed by the plaintiff, who later claimed that he had been tricked into signing it. The office head refused to change his decision so the plaintiff complained to the Public Services Commission, which inquired into the matter and recommended to the office head that the decision to retrench the plaintiff be revoked and that the plaintiff be reinstated and paid back-pay. The office head rejected the recommendation on the grounds that the office had not been given a fair hearing and that the plaintiff had intended to resign. The plaintiff applied for judicial review of the decisions of the office head to retrench him and to reject the recommendation of the Public Services Commission, seeking orders for payment of lost salary and entitlements and damages.

Held:

(1) No proper grounds were argued for reviewing the decision to retrench the plaintiff, so that part of the application for judicial review was refused.

(2) As to the decision to reject the recommendation of the Public Services Commission, it was made prior to the 2003 amendments to the Public Services (Management) Act under which decisions of the Public Services Commission, upon review of personnel matters, are binding.

(3) Though the Public Services Commission made a recommendation as distinct from a decision it was nevertheless the duty of the office head to either adopt the recommendation or provide cogent and convincing reasons for rejecting it (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied).

(4) The office head failed to comply with his duty as he rejected the recommendation and failed to provide cogent and convincing reasons for doing so. Error of law was established and the decision was susceptible to judicial review.

(5) All remedies in judicial review proceedings are discretionary and here the Court exercised its discretion to refuse the primary relief (back-pay) sought by the plaintiff because of the extraordinary delay in bringing the matter to trial which was not adequately explained by the plaintiff and the unjustified windfall gain that would result from back-payment of 25 years of salary and entitlements. However, an award of damages was appropriate, which was assessed in the sum of K10,000.00.

Cases cited

The following cases are cited in the judgment:

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094
Anthony John Polling v MVIT [1986] PNGLR 228
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Bau Waulas v Veronica Jigede (2009) N3781
Dale Christopher Smith v Minister for Lands (2009) SC973
John Mark v National Housing Corporation (1999) N1924
Lawrence Sausau v Joseph Kumgal (2006) N3253
Mathew Mononga v The Secretary for Health (2002) N2407
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Niugini Mining Limited v Joe Bumbandy (2005) SC804
Paul Asakusa v Andrew Kumbakor (2009) N3303
Tau Kamuta v David Sode (2006) N3067

Counsel

L Mamu, for the plaintiff
E Geita, for the second defendant

15th April, 2013

1. CANNINGS J: This is a very old judicial review case. The plaintiff Pombros Maliu, who is now aged 58, joined the Department of Civil Aviation at the age of 19 in 1974. He held a Labourer position. He was in 1981 promoted to the position of Linesman Assistant at Jackson's Airport, Port Moresby. He held that position, an office in the National Public Service, until 11 December 1987 when he was retrenched by the Director-General of Civil Aviation (the first defendant) who acted on a notice of resignation that was signed by the plaintiff. The plaintiff disagreed with his retrenchment, claiming that he had been tricked into signing the resignation notice and did not know what he was signing. The Director-General rejected the plaintiff's plea for reinstatement and the plaintiff complained to the Public Services Commission, which inquired into the matter and recommended on 18 October 1993 to the Director-General that his decision to retrench the plaintiff be revoked and that the plaintiff be reinstated and paid back-pay. The Director-General on 28 May 1996 rejected the recommendation on the grounds that the Department had not been given a fair hearing and that the plaintiff had intended to resign. On 28 July 1999 the plaintiff commenced the present proceedings in the National Court. On 19 August 1999 the Court granted him leave to seek judicial review. His application for review was heard on 19 March 2013. How the case managed to survive for more than 13 years without being dismissed or determined is a mystery but survive it has, as well as the plaintiff. I am determining an application for judicial review of two decisions of the Director-General:

• the decision of 11 December 1987 to retrench the plaintiff; and
  
• the decision of 28 May 1996 to reject the recommendation of the Public Services Commission.
  

2. The plaintiff does not seek reinstatement but wants the Court to order payment of the salary and entitlements he has lost since the date of his retrenchment – about 25 years worth of benefits. He also seeks damages. I will review the two decisions separately before considering what orders the court should make.

THE FIRST DECISION: 11 DECEMBER 1987

3. I reject the application for review of this decision as there are no proper grounds of review set out in the statement under Order 16, Rule 3(2)(a) of the National Court Rules. The Order 16 statement is a critical document in any judicial review. It must set out precisely the grounds of review relied on to vitiate the decision being challenged. The grounds must be recognised by law as proper grounds upon which judicial review is available and refer to the statutory provision or common law duty alleged to have been breached (Paul Asakusa v Andrew Kumbakor (2009) N3303). Here the ground relied on to challenge the decision to retrench the plaintiff was that the Director-General did not determine the 'veracity' of the resignation notice and that this amounted to negligence. It was not claimed that the Director-General erred in law or took into account irrelevant considerations or acted unreasonably or breached any statutory or common law duty or exceeded his jurisdiction or acted in any other way falling within any established ground of judicial review. The Order 16 statement is just an invitation to the Court to revisit the merits of the decision, which is not permissible. Hence the application for judicial review in respect of the first decision is refused.

THE SECOND DECISION: 28 MAY 1996

4. The Order 16 statement (which was not drafted by the plaintiff's present lawyer, the Public Solicitor) is in respect of the second decision adequately drafted. The ground of review that can be discerned is that the decision to reject the PSC recommendation was harsh, oppressive and unwarranted, in other words it was so unreasonable no reasonable decision-maker in the position of the Director-General could have rejected the PSC recommendation. This can be regarded as an unreasonableness argument in terms of the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Does the argument have merit?

5. It must be borne in mind that when the Director-General made his decision the Public Services Commission did not make binding decisions on review of personnel matters. It now makes binding decisions by virtue of amendments in 2003 to the Public Services (Management) Act) but prior to those amendments the Public Services Commission only made recommendations (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094). It is evident that in the 1990s many recipients of Public Services Commission recommendations, such as the Director-General in this case, took the view that a recommendation was just a suggestion and as long as they considered it, they had an absolute discretion to accept it or reject it. That was the approach approved by Hinchliffe J in John Mark v National Housing Corporation (1999) N1924. However a series of subsequent National Court decisions including Mathew Mononga v The Secretary for Health (2002) N2407 and Tau Kamuta v David Sode (2006) N3067 together with the decision of the Supreme Court in the leading case Mision Asiki v Manasupe Zurenuoc (2005) SC797 have shown with respect that the absolute discretion approach was wrong.

6. The correct approach as confirmed in Asiki is one that reflects the status of the Public Services Commission as a constitutional institution: it was the duty of every recipient of a Public Services Commission recommendation to either adopt the recommendation or provide cogent and convincing reasons for rejecting it. Here the Director-General provided two reasons rejecting the recommendation: the Office of Civil Aviation had not been given a fair hearing and the plaintiff had intended to resign. Neither amounts to a cogent and convincing reason as the Director-General did not address the critical findings of the Public Services Commission that an irresponsible senior officer tricked the plaintiff into signing the resignation notice and that the plaintiff signed the notice unknowingly and unintentionally. I find that the Director-General breached his duty under the Public Services (Management) Act to give cogent and convincing reasons for rejecting the Public Services Commission recommendation and that by doing so he acted unreasonably. He made a decision that was so unreasonable, no reasonable decision-maker in his position could have made it. The argument of unreasonableness has merit. The ground of review has been proven.

WHAT ORDERS SHOULD BE MADE?

7. An application for judicial review proceeds in two stages. First the plaintiff must establish at least one ground of review. Secondly if one or more grounds are established the plaintiff must make a case for a remedy, which is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973). Here the unreasonableness ground of review has been proven and it is appropriate to make a declaration to that effect. However the plaintiff has not made a good case for the relief that he is seeking.

8. To order that he be paid 25 years worth of back-pay would be contrary to the interests of justice and award the plaintiff an unwarranted windfall gain. I say unwarranted for two reasons. First he would be paid a huge amount of money for doing no work. Secondly when a case is attended by so much delay – 25 years since he was retrenched; 16 years since the decision being reviewed; 13 years since being granted leave for review – it is incumbent on the plaintiff to prove that he is not responsible for it. The court can only speculate as to the real cause of the extraordinary delay. Perhaps it is the fault of the plaintiff's lawyers (he appears to have had a number of different lawyers). Perhaps it is the fault of the Court (it is surprising that the case has survived the summary determination procedures). Perhaps it is the fault of the Solicitor-General (who should have been more assertive in applying to have the case dismissed for want of prosecution). Whosever fault it is, the delay has not been explained by the plaintiff. I refuse to order that he be paid any back-pay.

9. The appropriate relief is an award of damages under Order 16, Rule 7 of the National Court Rules, which is one of the remedies sought, to compensate the plaintiff for the inconvenience and stress that he has inevitably endured as a result of trying over so many years to correct the injustice done to him as a result of the unreasonable decision of the Director-General in 1996 to reject the PSC recommendation. Normally the court would insist on a statement of claim and particulars before considering awarding damages. However I dispense with those requirements under Order 1, Rule 7 of the National Court Rules. I consider, having regard to the leading cases on dispensation, Anthony John Polling v MVIT [1986] PNGLR 228 and Niugini Mining Limited v Joe Bumbandy (2005) SC804, that the interests of justice require that the severity of the Rules be relaxed. There is good justification for non-compliance with the Rules. No prejudice is done to the defendants. I have considered the cases of Lawrence Sausau v Joseph Kumgal (2006) N3253 and Bau Waulas v Veronica Jigede (2009) N3781, where successful judicial review applicants who established that they had been unlawfully dismissed from public employment were awarded damages of K3,000.00 and K5,000.00 respectively. I consider that the suffering and inconvenience of the plaintiff is greater than that in those cases. I will award damages of K10,000.00 against the second defendant, the State. It is proper that the State bears vicarious liability for the actions of the Director-General. Imposing liability on the State for what is a moderate amount of damages should avoid any uncertainty as to enforcement of the judgment debt. I decline to award pre-judgment interest on that sum as I remain unsatisfied that the plaintiff was not responsible for the delay in having the case finalised. Costs will follow the event.

ORDER

(1) The application for judicial review is granted.

(2) It is declared that the decision of the first defendant of 28 May 1996 to reject the recommendation of the Public Services Commission dated 18 October 1993 was unreasonable and wrong in law.

(3) The second defendant is liable to pay damages of K10,000.00 to the plaintiff, which shall be paid within a reasonable time after entry of this order in accordance with the Claims By and Against the State Act 1996.

(4) The second defendant shall pay the costs of these proceedings to the plaintiff on a party-party basis, which shall if not agreed be taxed.

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

Judgment accordingly.
___________________________________________________________
Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendant