Klapat v National Executive Council [2014] PGNC 157; N5668 (10 June 2014)

N5668

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 143 OF 2014

BETWEEN:

JOSEPH KLAPAT
Secretary, Department of Community Development
Plaintiff

AND:

NATIONAL EXECUTIVE CONCIL
First Defendant

AND:

THE PUBLIC SERVICES COMMISSION
Second Defendant

AND:

HON. SIR PUKA TEMU
Minister for Public Service
Third Defendant

AND:

HON. LOUJAYA TONI
Minister for Community Development
Fourth Defendant

AND:

ANNA SOLOMON
Fifth Defendant

AND:

SIR MICHAEL OGIO, G.C.M.G., K. St J
Governor General & Head of State
Sixth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Gavara-Nanu, J
2014: 5 & 10 June

JUDICIAL REVIEW - Practice and Procedure - Application for leave for judicial review – National Court Rules, Order 16 r 3 (1)(2) and (3) - Applicant employed under a contract of employment - Applicant a Departmental Head - Applicant challenging revocation of his appointment as a Departmental Head - Revocation made by the Head of State acting with and in accordance with advise of National Executive Council – Requirements set out under s. 193 (1C) of the Constitution and s. 31C of the Public Services Management Act 1995 not followed - Such requirements form part of plaintiff's contract of employment - Judicial review inappropriate - Remedy lies in damages - Leave refused.

Cases cited:

Ereman Ragi & Ors v. Joseph Mamgu [1994] PNGSC3; SC459
Hans Sarua v. John Kali & Ors (2013) N5616
Isaac Lupari v. Sir Michael Somare & Ors (2010) SC1071
Issac Lupari v. The State (2008) SC930
KL Engineering and Constructions (PNG) Ltd v. Damansara Forest Products (PNG) Ltd (2002) N2250
Nakikus v. Tabal & Ors [2012] PGNC130; N4845.

Counsel

B. Lai, for the plaintiff
J. Saka, for the defendants.

10th June, 2014

1. GAVARA-NANU J: The plaintiff is seeking leave for judicial review of three decisions of the defendants. First is the decision of the National Executive Council (NEC) on 10 March, 2014 to advice the Head of State (sixth defendant) to revoke his appointment as Secretary for Department of Community Development and to appoint the fifth defendant as Acting Secretary for the Department. The second decision relates to the signing of the Instrument of his revocation by the Head of State on 12 March, 2014. The third decision relates to the National Gazette Notice No. G87 dated 12 March, 2014, which gave effect to his revocation and appointment of the fifth defendant as Acting Secretary for the Department.

2. It is convenient to note that at the time of plaintiff's revocation, he was employed on a contract with the State for 4 years and the contract was to terminate in 2015.

3. This application essentially challenges the advice of the NEC to the Head of State to revoke the plaintiff's appointment as Secretary for Department of Community Development. The challenges to the plaintiff's revocation as Secretary for the Department of Community Development and the subsequent gazettal of the revocation and the appointment of the fifth defendant as Acting Secretary for the Department are consequential. If the plaintiff's revocation was proper then the other two challenges should also fail. But if plaintiff's revocation was in breach of the set procedures governing such revocations then the revocation and its subsequent gazettal may be in improper, thus illegal. However, the Court must first decide whether the plaintiff can seek judicial review of his revocation.

4. Section 193 (1C) of the Constitution provides that revocation of an appointment of a Departmental Head shall be made by the Head of State acting with and in accordance with the advice of the NEC. This section further provides that the advice by the NEC be given in accordance with a recommendation by the Public Services Commission (PSC) pursuant to the procedures prescribed by or under an Act of the Parliament. Section 31C of the Public Services Management Act 1995, sets out the relevant procedure and it is noted that the plaintiff's contract of employment makes reference to and adopts s. 193 (1C) of the Constitution and s. 31C of the Public Services Management Act. Thus the requirements of these two provisions are part of the plaintiff's contract of employment.

5. The plaintiff contends that the revocation of his appointment did not follow the procedure set out under s. 31C of the Public Service Management Act, thus it constitutes a serious issue to be tried, for which leave for judicial review should be granted. In this case the plaintiff's revocation was made following a recommendation made by the Minister for Public Service to the NEC not the PSC as required under ss. 193 (1C) of the Constitution and 31C (c) (iii) and (d) of the Public Services Management Act. Furthermore, the Minister's recommendation was for the plaintiff to be suspended not for his revocation as Secretary for Department of Community Development. The plaintiff argues that this is a factor which would render his revocation unlawful.

6. The supplementary affidavit of the plaintiff sworn on 24 April, 2014, confirms that the NEC's decision to revoke his appointment as Secretary for Department of Community Development was made following a recommendation by the Minister for Public Service. The recommendation was in a form of a Statutory Business Paper which the Minister submitted to the NEC. The Business Paper was No. 30/14 dated 3 March, 2014. As noted, in the Business Paper the Minister recommended that the plaintiff be suspended. The NEC however decided to revoke the plaintiff's appointment as Secretary for Department of Community Development instead.

7. The supplementary affidavit also confirms that the Minister's recommendation to the NEC for the plaintiff to be suspended was following a recommendation by the PSC to the Minister based on PSC's own investigations. The PSC did not make a direct recommendation to the NEC as required under s. 193(1C) of the Constitution and s. 31C (c) (iii) and (d) of the Public Services Management Act. In its investigations the PSC found that the plaintiff had committed serious disciplinary offences which warranted his suspension.

8. The plaintiff argues that the PSC should have made its recommendation directly to the NEC as required under s. 193 (1C) of the Constitution and s. 31C (c) (iii) and (d) of the Public Services Management Act, and not to the Minister then the Minister to make a recommendation to the NEC as happened here.

9. Having considered the issue, I do not see anything improper or illegal with the Minister receiving the PSC recommendation then submitting it to the NEC as a Business Paper. The Minister is responsible for all Public Service matters and the PSC therefore in my view the Minister acted within his powers to receive the PSC's recommendation then to present it to the NEC, in a form of a Business Paper. Thus the actions of the Minister in my view fell within the scope of s. 193 (IC) of the Constitution and s. 31C (c) (iii) and (d) of the Public Services Management Act.

10. A related issue is whether the NEC acted properly in advising the Head of State to revoke the plaintiff's appointment as Secretary for Department of Community Development instead of suspending him as recommended by the PSC and the Minister. Looking at s. 193 (1C) of the Constitution, s. 31C(c) (iii) and (d) of the Public Services Act and clause 26.3 of the plaintiff's contract of employment, the NEC appears to have acted outside of its powers in deciding to revoke the plaintiff as Secretary for Department of Community Development instead of suspending him as recommended by the PSC and the Minister.

11. The question then is does that constitute a ground for judicial review?

12. Having found ss. 193 (1C) of the Constitution and 31C of the Public Services Management Act, as forming part of plaintiff's contract of employment, if the requirements under the two provisions were not complied with by the State when revoking the plaintiff's appointment as the Secretary for Department of Community Development then that would constitute a breach of plaintiff's contract of employment by the State. The effect of this breach is that the plaintiff's remedy would lie in damages against the State. The plaintiff was not an ordinary public servant, he was a Departmental Head employed under a contract and his rights would flow from his contract: Isaac Lupari v. The State (2008) SC930 and KL Engineering and Constructions (PNG) Ltd v. Damansara Forest Products (PNG) Ltd (2002) N2250.

13. If the plaintiff was not employed under a contract of employment, then he would be entitled to invoke judicial review process under Order 16 of the National Court Rules. However, since he was employed under a contract this process is in my opinion not available to him. He has to look to the terms of his contract to find his remedy which as I said is in damages: Isaac Lupari v. Sir Michael Somare & Ors SC1071, Issac Lupari v.The State (supra), Nakikus v.Tabal & Ors [2012] PGNC130; N4845.

14. The issues raised by the plaintiff in this application arise out of or are pertinent to his contract. This puts this case within the domain of the private law: Ereman Ragi & Ors v. Joseph Mamgu [1994] PNGSC3; SC459 and Hans Sarua v. John Kali & Ors (2013) N5616.

15. There is also evidence that the plaintiff's termination payout has already been processed by the State and his final entitlements will be paid to him soon. This is another strong reason why the plaintiff cannot be availed of the judicial review process. The action of the State in processing plaintiff's final entitlements clearly indicates that the State is not willing to continue to employ him. The State cannot be forced to continue to employ the plaintiff, if it (State) has decided to sever the contractual relationship with the plaintiff. This is a fundamental principle of law of contract: Isaac Lupari v. Sir Michael Somare & Ors (supra). The plaintiff's relationship with the State is forged by his contract, thus if the State is refusing to honour the contract or has breached the contract then the plaintiff must look to his contract for his remedy which as noted is in damages against the State for the breach of his contract.

16. For the foregoing reasons leave is refused.

______________________________________________________________
B. S. Lai Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants