Tamoko v Waipo [2014] PGNC 202; N5852 (26 September 2014)

N5852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 230 of 2014

BETWEEN:

JOB TAMOKO
Plaintiff/Applicant

AND:

MICHAEL WAIPO as Commissioner of Papua New Guinea Correctional Services
First Defendant/Respondent

AND:

MICHAEL MONDIA, Assistant Commissioner of Papua New Guinea Correctional Services
Second Defendant/Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

Waigani: Nablu, AJ
2014: 18, 26 September

JUDICIAL REVIEW – Application for leave to apply for judicial review – Exhaustion of administrative remedies –Whether the Public Services Commission can review disciplinary matters under the Correctional Services Act - Leave to apply for judicial review granted

Cases cited:
Papua New Guinea Cases

Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Michael Mondia v. Richard Sikani (2007) N3256
NTN Pty Ltd vs. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70

Overseas Cases

Inland Revenue Commissioners vs. National Federation of Self Employed and Small Business Ltd [1982] AC 671

Counsel:

Mr. F.Kuvi, for the Plaintiff/Applicant
Ms. A.Nasu, for the Third Defendant/Respondent

RULING

26th September, 2014

1. NABLU, AJ: The Plaintiff seeks leave to apply for judicial review of the decision of the Commissioner of Papua New Guinea Correctional Services, the First Defendant, made on the 20th of May 2013 to suspend him from duty, without pay.

2. The Plaintiff relies on the Originating Summons filed on 26th April 2014 and the Notice of Motion filed on 26th April 2014. The Plaintiff seeks an order in terms of paragraph No.2, for leave to apply for judicial review.

3. The application is supported by the Statement in Support filed under Order 16 Rule 3(2) of the National Court Rules and the Affidavit verifying the Statement of Facts and the Affidavit of Job Tamoko filed herein.

4. Counsel for the Third Defendant, Ms Nasu indicated that she would only take issue with two of the requirements for leave, and they were; that there is a delay in bringing this application and that the applicant has not exhausted other administrative remedies before seeking judicial review.

Interest/Locus Standi

5. The Plaintiff is the aggrieved person directly affected by the First Defendant's decision; therefore, there is no contest in regard to this requirement.

Arguable Case

6. At the leave stage, the Court does not have to hear and determine the substantive merits of the case, it need only quickly peruse the material before it and determine whether the Plaintiff has an arguable case and whether there are serious issues to be tried and that warrant a substantive hearing: Inland Revenue Commissioners v. National Federation of Self Employed and Small Business Ltd [1982] AC 671 at 644 per Lord Diplock which was applied in NTN Pty Ltd vs. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70.

7. Without going into the substance of the matter, the Plaintiff argues that on 20th May 2013, the First Defendant's suspension of the Plaintiff from duty without pay was unlawful and contrary to the Correctional Service Act 1995. On or about 28th May 2013, the Plaintiff was served the formal notice of investigation and Notice of Serious Charge, which he replied to on 3rd June 2013. Since then the First Defendant has not made a decision in regard to his disciplinary charge. Evidence before the Court shows that other Correctional Officers, who were suspended at the same time as the Plaintiff, had their disciplinary matters determined on 7th April 2014. Those officers had all their suspensions lifted and they were placed back on the payroll.

8. I find that the Plaintiff has an arguable case.

Delay

9. Counsel for the Plaintiff argued that there is no delay in bringing this application, seeking leave to apply for judicial review. It was submitted that that there is no delay, because the First Defendant has not convened the appropriate Disciplinary Board to determine the charges that were laid against him.

10. Counsel for the Third Defendant argued that there is undue delay of over 11 months since the purported date of the decision to suspend the Plaintiff on 20th May 2013.

11. On this issue, the Counsel for the Plaintiff argued that the Court must look into the circumstances of each case and determine whether there is delay. If the Court finds that there is delay, the Court must consider whether there is a reasonable explanation as to the delay. Counsel for the Plaintiff contended that because the First Defendant has not determined the appropriate Disciplinary Board to deal with the Plaintiff's charge, this resulted in the delay in seeking administrative review remedies. Furthermore, evidence was adduced that other officers who were charged for disciplinary offences at the same time as the Plaintiff, had their disciplinary matters dealt with on 7th April 2014 and all were reinstated and have commenced duties.

12. I find that there is reasonable explanation for the delay in not bringing this application for leave to seek judicial review.

Exhaustion of Administrative Remedies

12. Counsel for the Third Defendant argued that the Plaintiff has not exhausted all the administrative remedies before coming to this Court. She further argued that the Public Services (Management) Act is applicable and the Plaintiff has not appealed to the Public Service Commission.

13. Counsel for the Plaintiff in reply argued that the Public Services (Management) Act does not apply to this case; the applicable law is the Correctional Services Act. He contended that the Public Services (Management) Act is only applicable if there is no governing legislation providing for the review of the decision. He submitted that the process of review is provided by section 45 of the Correctional Services Act.

14. It is well settled principle in this jurisdiction that judicial review is not available to an applicant who is yet to exhaust other administrative remedies. This principle was enunciated in the case of Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417 and was subsequently affirmed by the Supreme Court in Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

15. The Supreme Court said in Kekedo v. Burns Philip (PNG) Ltd (supra) that there must be exceptional circumstances that exist to warrant departure of the general rule that an applicant must exhaust all administrative remedies.

16. In my view, exceptional circumstances do exist in the present case. The Plaintiff is not able to exhaust the administrative remedies available to him, because the disciplinary process has not come to finality. That is, the disciplinary body that is supposed to determine the charges have not dealt with his disciplinary charge. However, in the case of his colleagues, who were suspended at the same time as he was and allegedly for the same circumstances, they had their disciplinary charges determined in April 2014 and they were reinstated and placed back on the payroll.

17. I accept the submission of the Counsel for the Plaintiff that the Correctional Services Act provides for its own disciplinary and review process; therefore, the Public Service (Management) Act is not applicable.

18. Section 3 of the Public Services (Management) Act, states that the "...Act applies to in relation to Officers, employees and all other persons otherwise employed or engaged under this Act, whether inside or outside Papua New Guinea". In the National Public Service, an officer can seek review of a decision on a personnel matter that relates to appointment or selection or discipline by lodging a written complaint with the Public Services Commission pursuant to section 18 of the Public Services (Management) Act. The term "officer" means an officer of the Public Service, but does not include- an employee; and a person employed in an honorary capacity or a person remunerated by fees, allowances or commission only (Section 2 of the Public Services (Management) Act). A personnel matter covers a range of decisions concerning an individual that either relate to appointment, promotion, demotion, transfer, suspension, discipline or cessation or termination of employment according to Section 2 of the Public Services (Management) Act.

19. Section 18 of the Public Services (Management) Act provides for the review process for decisions related to a personnel matter. Under that provision, the Public Services Commission is required to make a decision within 90 days and the decision becomes binding after a period of 30 days from the date of the decision.

20. On the other hand, the Correctional Service Act is an Act establishing a Correctional Service of correctional officers and it is declared as a State Service as permitted by Section 188(2) of the Constitution. The disciplinary process for correctional officers is contained in Part V of the Act. There are two categories of offences- minor offences and serious offences. Minor offences are dealt with by the Commanding Officer.

21. Serious offences on the other hand are dealt with by a Disciplinary Board which is appointed by the Commissioner and is comprised of the Commanding Officer of that correctional institution and two Correctional Officers from that correctional institution (Section 42 of the Correctional Service Act). The Disciplinary Board upon hearing a charge can either dismiss the matter or if the charges are substantiated, apply one of the penalties prescribed under the Act.

22. The Disciplinary Board has the power to impose penalties under s.44 of the said Act. However, it can only make a recommendation to the Commissioner to decide on the penalty where the member is reduced in rank to a lower classification and to salary within that classification or where the member is recommended for dismissal. In such cases, the recommendation is made to the Commissioner to make the decision. Section 45 of the Correctional Services Act provides that where an officer is aggrieved by the decision of the Commissioner, the aggrieved officer has recourse to the remedy of judicial review in the National Court.

23. In comparison, the disciplinary processes under the Public Services (Management) Act and the Correctional Services Act are not the same. They provide for different types of disciplinary offences and different procedures for dealing with them. In my view, one of the key differences is the process of review of those disciplinary decisions. Under the Public Services (Management) Act, an aggrieved officer's avenue for review is to the Public Services Commission pursuant to Section 18 of that Act. On the other hand, under the Correctional Services Act, if a member is aggrieved by the decision of the Commissioner, he may appeal to the National Court for Judicial Review.

24. In Michael Mondia v. Richard Sikani (2007) N3256, Injia DCJ (as he then was) found that there was fundamental flaw in the disciplinary process adopted by the Respondent under the Public Services (Management) Act and that the correct disciplinary process for a correctional officer is that which is stipulated in the Correctional Services Act. I agree with those views.

25. I find that the Plaintiff has met all the requirements for leave to be granted.

26. For the foregoing reasons, leave is granted to the Plaintiff to apply for Judicial Review.

Court Order

1. Leave is granted to the Plaintiff to apply for judicial review pursuant to Order 16 Rule 3(2) of the National Court Rules.
2. Costs be in the cause.
   

Orders accordingly.

Elemi Lawyers: Lawyer for the Plaintiff/Applicant
Solicitor General: Lawyer for the Third Defendant/Respondent