Gima v Culligan [2015] PGNC 80; N5989 (19 June 2015)

N5989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 324 OF 2012

BETWEEN:

HANS GIMA
Plaintiff

AND:

MALCOLM CULLIGAN
Provincial Administrator
Western Highlands Provincial Administration
First Defendant

AND:

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

AND:

MARTHA POWIH
Advisor
Human Resource Management
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mt Hagen: Poole, J
2013: 18th June
2015: 19th June

PRACTICE - No relief can be granted which is not claimed in the pleadings - Judicial Review - Order 16 Statement of Facts is the pleadings of facts which form basis of claim to be established by evidence.

JUDICIAL REVIEW - An Appointment will not be set aside even though objectively unmeritious if the appointment procedure is correct – Appointments only open to challenge if appointment procedurally flawed.

Cases Cited:
Papua New Guinea cases

Kekedo v Burns Phillip (PNG) Limited [1988-80] PNGLR 122.
Patterson v NCDC (N2145) and Golobadana No. 35 Limited v BSP Limited (N5340)
SCR 1 of 1990 [1980] PNGLR 441

Overseas Cases

Associated Picture Houses v Wednesbury Corporation.
Reg v Chief Constable of North Wales Police, exp Evans [1982] WLR1155 @ 1160
Ridge v Baldwin [1964] AC40 at p71).
Cooper v Wandsworth Board of Works (1863) 143 E.R.414)

Counsel:

Mr. Peri, for the Plaintiff
Nil appearance for the Defendants

19th June, 2015

1. POOLE J: Background: This matter was commenced on the 4th of June 2012 when the Plaintiff applied by Originating Summons, for Judicial Review of the decision of the Defendant/Respondents to appoint another person Acting Assistant Secretary of the Division of Education of the Western Highlands Province. The Summons document, itself, is defective in that it contains 11 paragraphs of improper argument.

2. A Motion, filed the same date as the Summons, sought Leave for Judicial Review on behalf of the Plaintiff who was, until the decision sought to be reviewed, the "Acting Assistant Secretary of the Division of Education." Leave was granted on the 10th of April 2013. Since then the matter returned to court on the 8th of May 2013, the 7th of June 2013, the 13th of June 2013, the 18th of June 2013 the 01st of July 2013 and, on each occasion, the matter was adjourned. On the 4th of July 2013 the matter was listed, argument presented and it was adjourned for submissions to be filed. Despite the direction for this, no submissions have been filed.

3. The Applicant's case proceeds (as stated in his lengthy affidavit filed in support of the Leave Application) on the basis that, after an appeal, he was appointed by the Western Highlands Provincial Administration to the position of Acting Assistant Secretary Education on the 17th of May 2010. Then, on the 5th of July 2010, the Western Highlands Provincial Administration appointed another man to the position of Acting Assistant Secretary of Education. The Applicant then appealed and lodged an Application for Review to the Public Service Commission on 9th of January 2011.

4. The Public Service Commission completed its review, upheld the Applicant's appeal and ordered that he be reinstated. It is the Applicant's complaint that this was not done, despite the decision in his favour being served on the Defendants, and he argues that this is a breach of section 18(3)(11) of the Public Service (Management) Act. He emphasises the merit of his experience and service in education but complains (in his affidavit filed on the 17th of June 2013) that "the Defendants instead of confirming me as Assistant Secretary Division of Education optioned to appoint someone also on an acting position", and seeks the Orders in the Originating Summons.

5. The Law applicable to Judicial Review of administrative decisions made by public authorities (such as is pleaded in this case) is well settled. Unfortunately, the number of cases which come before the courts seems to indicate a lack of appreciation of the law or an inclination simply to ignore it by many officials exercising public functions. Equally unfortunately, all too often, applications are made in which voluminous material is filed to show the court that the applicant is a person of superior character, achievements and excellence and should have been preferred to someone else for a position.

6. The first thing to remember, always, is that this is a case in which the court is engaged in a Judicial Review of a decision of public administrative bodies. The bases on which a court will interfere in such "public" administrative decisions are limited to matters concerning the procedure by which the challenged decision was made – not (with one exception) about the merit of the decision. Provided the mechanism and objective procedures of the decision - making process are correct, the virtue of the decision made is not open to judicial review. The only possible deviation from this rule is when the decision is so blatantly illogical and unreasonable that it maybe said to be one which no rational and reasonable person or body could make. Then it maybe ground for a court to review the decision. This is the principal expressed in the often quoted decision of Associated Picture Houses v Wednesbury Corporation.

7. This point, and the reason for it, was clearly expressed by the Supreme Court in SCR1 of 1990 [1990] PNGLR 441, when it stated, "Judicial Review is not an appeal procedure. Judicial Review does not consider the merits of any decision that may be challenged. Judicial Review is only concerned with the validity of the decision, the subject matter of the decision always remains in the discretion of the relevant authority, otherwise the court would be assuming the powers delegated to others."

8. The Supreme Court has specifically adopted "a succinct modern statement" of the correct operation of Judicial Review, made by Hailsham LJ in the Reg v Chief Constable of North Wales Police, ex p Evans [1982] UKHL 10; [1982] WLR 1155 @ 1160, when he stated that Judicial Review "is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question".

9. To state the position most baldly, although a party may think that the decision is wrong, provided the decision maker made its decision after following all the necessary procedures correctly, the decision is not open to review (See Rose Kekedo v Burns Phillip (PNG) Limited [1988-80] PNGLR 122.

10. For an Applicant to have an administrative decision successfully reviewed he or she must show one or more of the following grounds:

• The decision maker lacked the jurisdiction to make the decision (generally referred to as "the ground of ultra-vires");
  
• The decision maker, in reaching its decision, misdirected itself by taking into account matters which should have been excluded from consideration or by failing to take into account matters it should have considered;
  
• The decision maker was not impartial;
  
• The decision maker failed to give the applicant natural justice; and
  
• The decision was so illogical and unreasonable that it should be set aside in accordance with the principles in the Associated Picture Houses Ltd v Wednesbuy Corporation case.
  

11. Finally, and importantly, an applicant must, before coming to court, have exhausted any administrative remedies or rights of appeal open to him or her.

12. The applicant here says that the respondent's decision to replace him with another person on the 5th of July 2010, less then three months after he was appointed on the 17th of May 2010, was a breach of the provisions of section 39 of the Public Service (Management) Act and of Public Service General Order 13.34. These provisions are:

39. Temporary employment

(1) Where, in the opinion of the departmental head of the Department of Personnel Management, the business of a department –

(a) warrants the engagement of temporary assistance to provide a particular skill or service to a department; or

(b) has given rise to an unexpected workload which could not have been anticipated and is expected to continue for more than six months, the departmental head of the Department of Personnel Management may approve the employment of a person or persons to render temporary assistance to that department, for a period not exceeding 12 months.

(2) A person employed under Subsection (1) shall be employed on contract as specified in the General Orders.

(3) Notwithstanding Subsection (1)(b), a person may be employed on contract under this section for a period exceeding 12 months where the departmental head of the Department of Personnel Management to as prescribed in the General Orders.

(4) A national contract to which this section applies shall provide for a salary and duty-related allowances.

(5) A person employed under a national contract may apply to the departmental head of the Department of Personnel Management for a discretionary allowance and may be granted if warranted.

It should be noted that the terms of section 39 do not restrict the numbers of acting appointments which can be made. It enables temporary appointments for a period not exceeding 12 months (unless an extention is authorized) where the departmental head is of the opinion that it is warranted.

13. The Applicant claims that, instead of filling the position of Assistant Secretary through the normal selection process before the three months acting appointment had expired, it just made another acting appointment to the same position on the 5th of July 2010.

14. When this was done the Applicant applied to the Public Service Commission under section 18 of the Public Service (Management) Act for a review of the decision. That review resulted in the Public Service Commission, on the 21st of February 2012, annulling the appointment of Joseph Yaga as Assistant Secretary (Education) and reinstating the Applicant. It directed the Western Highlands Provincial Administration to "immediately advertise the said position" and directed a proper selection to be made including (on the selection panel) a delegate of the Secretary of the Department of Personnel Management in short-listing and screening the applications. The Respondents/Defendants have apparently ignored the Public Service Commission decision, even though section 18 of the Public Service (Management) Act makes it legally binding upon the Respondents 30 days after it is received.

15. The question is, does the fact that the Respondents have ignored the decision of the Public Service Commission give grounds for the Applicant to review the decision of the Respondents to appoint Joseph Yaga Acting Assistant Secretary, division of Education, Department of Western Highlands and Declarations and Orders, the affect of which would be to appoint the Applicant Assistant Secretary of the division of Education.? There is evidence before the court that the Respondents were officially notified of the Public Service Commission's decision. The letter of the 21st of February 2012 from the Public Service Commission to the First Respondent is clear and explicit. It is annexed to the Applicant's affidavit filed on the 4th of June 2012. The court also has evidence of the Applicant writing to the First Respondent, on the 8th of March 2012, seeking information and a response to the Public Service Commission's letter.

16. The Respondent's responses to the Public Service Commission was, in effect, to defy it and appoint the Applicant to the position of Acting Superintendent of Community Primary Schools and notify him by an instrument of appointment to take effect from the 14th of April 2012.

17. On the 2nd of May 2012 the Applicant wrote to the First Respondent and indicated that the appointment was contrary to the Public Service Commission's decision and asked the Respondents to adhere to the Public Service Commission's decision.

18. There is no evidence of any response. The Respondents, for the purposes of this Review, made a decision by ignoring the request and responded to the request by making no response.

19. But as the courts have made clear for many years (at least since Kekedo's case) a Judicial Review is not properly concerned about the merits of the decision or reasons for it. It is concerned solely about the process by which a decision is made.

20. The Applicant contends that, in deciding to appoint Joseph Yaga and not him to the position of Assistant Secretary (a position in which he had been acting for some time) in defiance to the Public Service Commission's direction and neither giving him any reason for the decision or an opportunity to be heard, he was denied the natural justice which, by section 59 of the Constitution, make part of the rules developed for control of administrative proceedings such as those under review. But this contention raises the question of whether in the facts and circumstances of this case, the right to natural justice had been breached at all.

21. I have already noted the five general classifications which are accepted as the bases for the courts of Papua New Guinea to review an administrative decision, and now the question to be decided is if any of these grounds exists to justify the Applicant's claim for the Orders sought.

22. It is trite law, and often stated in the courts, that no relief can be granted unless it is claimed in the pleadings. (See Patterson v NCDC (N2145) and Golobadana No. 35 Limited v BSP Limited (N5340)).

23. One of the questions which arise in this case is, does the obligation to observe the principals of natural justice (and in particular the right to be given a hearing) exist in all cases or whether, depending on the circumstances of the matter and the exercise of the power, the decision can stand, despite the absence of the hearing, if it were to be fair (see the speech of Reid LJ in Ridge v Baldwin [1964] AC40 at p71).

24. Traditionally, at least since Cooper v Wandsworth Board of Works ((1863) 143 E.R.414) the courts were of the view that if a tribunal has power to affect the property of a subject it is bound to give the subject an opportunity of being heard before it proceeded to exercise that power. By extension, property was also taken to include legal rights. A decision maker must find out the law or ascertain the objective facts and in doing either of these things must act in good faith and fairly listen to both sides of the argument before reaching the decision.

25. The relevance of this is that, in Judicial Review, the Order 16 Statement of Facts takes the place of a Statement of Claim annexed to a Writ of Summons. It is intended (See Order 16(3)(2)(a)&(b)) to set out the relief sought and the grounds upon which the relief is sought. The facts upon which an Applicant relies to base his claim for relief must be established by affidavit evidence. Pleadings, it must be noted, are not evidence.

26. In this matter the relevant evidence before the court is contained in the affidavit of the Applicant which was filed on the 3rd of May 2012. This, significantly, deposes:

• (Paragraph 5) around September 2010 the Western Highlands Provincial Administration declared all administration positions open and invited applications for appointment.
  
• The Applicant applied for the position of Assistant Secretary Education.
  
• (Paragraph 6): "The screening and selection committee went through all the applications and made the decisions in awarding either substantive or promotion level to positions applied for on permanency basis. During that process my application for the position of Assistant Secretary Education was not considered even though that was my first choice and I was more qualified for the position."
  
• The Applicant appealed to the Public Service Commission which, decided "the decision was for me to be reinstated by the Department of Western Highlands Administration through Provincial Administrator, Mr Malcolm Culligan OBE. The original letter containing the decision was officially delivered to him on the 24th of February 2012 to his executive officer."
  
• The Provincial Administration took no action and did not respond to this communication
  
• The Applicant was appointed Acting Superintendent Community Primary Schools.
  

27. Despite the Applicant's assertion that his application was not considered, there is no evidence that, after it was received, his application was not considered by the Respondents.

28. I find that the Respondents are not bound by the Public Service Commission decision. Their decision to appoint another person to the position which the Applicant seeks may have been, on the merits of the matter, mistaken because of the age of the party which they have appointed but, even if this was so, there is no evidence at all that the appointment procedure was flawed.

29. When all positions were advertised in "around September 2010" they where, in effect, declared open. The fact that some other person was appointed to the position the Applicant sought can only be Judicially Reviewed if it is shown that the appointment procedure was flawed. It is the procedure and only the procedure which is relevant to this application – not the merits of the decision to appoint someone else to the position which the applicant desired.

30. The evidence shows his application was received. There is nothing to support his contention that his application was not considered and, despite his sense of grievance, there is no reason to upset the appointment made unless there is evidence of procedural shortcomings serious enough to invalidate the appointment. There is no such evidence.

31. The application is refused.

32. The Defendant's costs of and incidental to the application shall be paid by the Plaintiff, such costs to be taxed if not agreed. Time is abridged.

___________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
N/A: Lawyers for the Defendants