Boutau v Central Provincial Government [2016] PGNC 117; N6284 (20 May 2016)

N6284

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 405 OF 2013

BETWEEN

CLIFF GABI BOUTAU
(Plaintiff)

AND
CENTRAL PROVINCIAL GOVERNMENT
(Respondent)

Waigani: Makail J
2016: 05^th & 20^th May

JUDICIAL REVIEW – Decision of Public Services Commission to order reinstatement of dismissed officer and order for payment of loss of pay and entitlements – Officer appointed on an acting basis – Acting Deputy Provincial Administrator – Effect of decision – Whether implementing authority bound to give effect to decision – Failure of – Whether order of mandamus appropriate – Discretionary relief – Public Services (Management) Act, 2014 – Section 18.

Papua New Guinea Cases Cited:
Ambrose Vakinap v. Thaddius Kambanei (2004) N3094
Daniel Taka v. Dr. Samson Amean & The State (2006) N3070
Doris Korowa v. Yori Yei & The State: OS (JR) No 721 of 2013 (Unnumbered & Unreported Judgment of 6^th November 2015)
Jomino Holee & 2 Ors v. Sem Vegogo, CEO Port Moresby General Hospital & The State (2013) N5101

Overseas cases:
R v. Commission Public Service Commission; Ex parte Killen (1914) CLR 56 at 590

Counsel:
Mr. F. Kuvi, for Plaintiff
Mr. E. Hampelekie, for Defendant

JUDGMENT

20^th May, 2016

1. MAKAIL J: In this judicial review proceeding, the Plaintiff seeks an order in the nature of mandamus to compel the Defendant to implement a decision of the Public Services Commission (“PSC”) dated 31^st May 2010. By that decision, the PSC annulled the decision of the Defendant dated 14^th July 2009 to revoke the appointment of the Plaintiff as Acting Deputy Provincial Administrator. Secondly, ordered the Defendant to reinstate the Plaintiff as Acting Deputy Administrator and thirdly, pay him lost salaries and entitlements.
   

2. The revocation of the Plaintiff’s appointment had something to do with the engagement of a contractor, namely JBR Enterprises Limited to do the fencing for the old Boroko Market which the former Provincial Administrator Mr. Raphael Yibmaramba alleged was unauthorised and illegal as it was done without his approval and proper procurement procedures were not followed.

3. That was on 14^th July 2009, and in its place, the Plaintiff was given the position of Special Project Officer. Following the PSC decision, a copy of the decision was served on the Defendant in June 2010, and the Defendant did not take steps to implement the PSC decision.

4. Instead the Defendant re-advertised “senior management positions” in August 2010 in line with an earlier PSC decision of 09^th May 2008 and engaged M. S. Wagambie Lawyers to seek a judicial review of the decision. The latter was done by January 2011.

5. On 17^th October 2011, the judicial review proceeding was dismissed for want of prosecution. An appeal was immediately filed in the Supreme Court against the order for dismissal.

6. By that time too, as there were two positions of Deputy Provincial Administrator, two officers were appointed, one for Advisory & Monitoring and the other, Infrastructure & Policy (now Coordination & Implementation) after they responded to the public advertisement of August 2010.

7. A Mr. Manasseh Rapila took up the position occupied by the Plaintiff. The Plaintiff never applied for any of them opting instead to assert his claim to the position he previously held based on the PSC decision.

8. As the two positions of the Deputy Provincial Administrator were filled, the Defendant was unable to reinstate the Plaintiff to his previous position. However, the Defendant made two instalment payments to the Plaintiff; one in 2011 for K29, 327.28 and the other in 2012 for K38, 163.86. It says a sum of K110, 761.07 is outstanding. It is unclear whether these sums of money were for lost salaries and entitlements as per the PSC decision. Whatever they were, the Plaintiff does not deny receiving them.

9. By 29^th June 2012, the Defendant’s appeal to the Supreme Court did not progress any further and it was dismissed for want of prosecution. As recent as February 2014, due to vacancies, the two positions of Deputy Provincial Administrator were again advertised. It is not known if they have been filled but at the time they were being advertised, there were two officers acting on them.

10. The Plaintiff asserts that the Defendant wrongfully failed, refused or neglected to comply with the PSC decision which was reaffirmed by the National Court judgment of 17^th October 2011 and Supreme Court order of 29^th June 2012. See grounds of review at paragraph B 1 and 2 of the Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules.

11. He relies on section 18 (6) (b) of the Public Services (Management) Act, 2014 (which replaced the 1995 Act) and submits that the decision is binding after a period of 30 days from the date of the decision. There is no dispute that the time limit of 30 days has long since expired and the Defendant’s bid to challenge the PSC decision in the National Court and subsequently in the Supreme Court has failed.

12. He also relies on the cases of Jomino Holee & 2 Ors v. Sem Vegogo, CEO Port Moresby General Hospital & The State (2013) N5101 and Ambrose Vakinap v. Thaddius Kambanei (2004) N3094 which he submits have held that the PSC decision is legally binding and the Defendant is required to comply with it.

13. I uphold this submission. The view expressed by the Court in Jomino Holee case (supra) was adopted by this Court in Doris Korowa v. Yori Yei & The State: OS (JR) No 721 of 2013 (Unnumbered & Unreported Judgment of 6^th November 2015) and this Court issued an order directing the Defendants to give effect to the PSC decision to reinstate the Plaintiff to her former position with no loss of pay and entitlements. I am satisfied the Defendant’s failure to give effect to the PSC decision is unlawful.

14. However, judicial review jurisdiction of the Court is discretionary and the Court has an overriding discretion as to what type of relief it may grant. The Plaintiff seeks an order in the nature of mandamus. In Daniel Taka v. Dr. Samson Amean & The State (2006) N3070 the Court described the discretionary relief at [14] of the judgment in this way:

“The prerogative Writ of Mandamus is an equitable remedy and it is very much discretionary. Mandamus may be refused if its grant would cause administrative hardship.”

15. And perhaps a more succinct description of the relief was by Griffith CJ in R v. Commission Public Service Commission; Ex parte Killen (1914) CLR 56 at 590 where the Chief Justice of the High Court of Australia said at 588:

“A mandamus will in general be granted to a public officer to do an act which he is bound by law to do and which is a necessary preliminary exercise or enjoyment of some right by an individual. But the writ is discretionary, and will not be granted if it would be futile. A mandamus to admit to an office will not be granted if the office is already full.”

16. In my view there are two factors which will decide how the discretion should be exercised. First, the Plaintiff was acting on the position. In my view by its very nature an acting appointment does not give the holder a right to permanency. This is because it is only a temporary appointment and the appointee may or may not be made permanent. In my view a holder of a position on an acting basis is susceptible to change at any time. For instance, he may be replaced on short notice.

17. Secondly, and following on from the first reason, the Plaintiff is asserting a right to the position of Deputy Provincial Administrator. After his appointment was revoked, he was given the position of Special Project Officer, presumably, a position lower than the Deputy Provincial Administrator.

18. Since then, the position along with other “senior management positions” was advertised and interested applicants applied for it. Mr. Rapila was appointed to the position and then for one reason or another, was once again left vacant. It was temporarily filled by an officer pending it being advertised for suitable applicants to apply.

19. In my view time has moved on and even though the Plaintiff may have a firm view that his claim of right to the position based on the PSC decision was more superior than others he, was also presented with the opportunity, not once, but twice to apply for the position. If he had, it would have given the Defendant the opportunity to consider his interest for a permanent appointment to the position. Obviously, he did not and the opportunities slipped by.

20. The PSC ordered the Defendant to reinstate the Plaintiff as Acting Provincial Administrator. In my view the order does not assist and enhance the Defendant’s efforts in finding a permanent appointee for the position. I say this because, in my view, it is a very senior position, only one level down from the position of Provincial Administrator within the structure of the Defendant’s administration.

21. And it would involve a great deal of duties and responsibilities in terms of overseeing the operations of the Defendant’s administration and service delivery. I think the point is made. There must be a permanent Deputy Provincial Administrator.

22. And to my mind, to order the Defendant to reinstate the Plaintiff as Acting Deputy Provincial Administrator will bring the parties back to square one. This would seriously curtail the Defendant’s efforts in finding a permanent Deputy Provincial Administrator and against good order and administration.

23. To conclude, in respect of the Plaintiff’s request for reinstatement, I am not satisfied that an order for mandamus should lie. As to his request for payment of lost salaries and entitlements, as noted, the Plaintiff does not deny the Defendant’s claim that he received some money from the Defendant. If they are for purposes other than what the PSC has ordered, the Plaintiff may have other recourse to pursue them.

24. The proceeding is dismissed. Costs shall follow the event.

Judgment and Orders accordingly,
_______________________________________________________
Elemi Lawyers: Lawyers for the Plaintiff
M. S. Wagambie Lawyers: Lawyers for the Defendant