Bire v Kereme [2016] PGNC 93; N6328 (4 May 2016)

N6328

PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]

OS NO. 427 OF 2015

BETWEEN:

PETER BIRE as Director of National Aids
Council Secretariat
Plaintiff

AND:

NATIONAL AIDS COUNCIL SECRETARIAT
Second Plaintiff

AND:
DR PHILIP KEREME as the Chairman,
Public Services Commission
First Defendant

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW
GUINEA
Third Defendant

AND:
PHILIP TAPO
Fourth Defendant

Waigani: Gavara-Nanu J
2016: 8 April & 4 May

CONTRACT – Non-renewal of a contract of employment – Deputy Director of National AIDS Council – Whether the Deputy Director a public servant - Whether the non-renewal of the contract a private matter – Whether the Public Services Commission had power to review the non-renewal of the contract - National AIDS Council Act, 1997; ss.3,7,8 and 9, 20,21,22 and 23 - Status of the National AIDS Council.

PRACTICE & PROCEDURE – Lawyer – Duty of a lawyer appearing in court – Lawyer an officer of the court - Lawyer’s duty to the court paramount event to his client – Lawyer’s duty to the court attached to the duty to assist in the administration of justice by the court – The duty extends to disclosing to the court all cases relevant to the issues before the court – Lawyer’s duty to court includes the duty to disclose cases that may be against his client – Lawyers Professional Conduct Rules, 1989; rr. 10 (1) and 15 (5)

PNG Cases cited:
National Agriculture Quarantine and Inspection Authority v. Tetaga [2009] PGNC 220
Ronald Jack v. Director, National Aids Council Secretariat (2012)

Overseas cases cited:
Arthur Hall v. Simons [2002] 1 AC 615
Copeland v. Smith [2000] 1 WLR 1371
Giannarelli & Shulkes v. Wraith [1988] 81 ALR 417
Rondel v. Worsely [1966] 3 WLR 950
Saif Ali v. Sydney Mitchell [1980] AC 198

Counsel:
N Tame, for the Plaintiffs
R. Simbil, for the First and Second Defendants
E. Mel, for the Third Defendant
S. Nakilai, for the Fourth Defendant

4^th May, 2016

1. GAVERA-NANU J: The fourth defendant was the Deputy Director of the National AIDS Council Secretariat (NACS). He was employed on a three year contract. The contract expired on or about 18 October, 2014. Prior to the expiry of the contract, the fourth defendant in a letter dated 12 September, 2014, to the first plaintiff sought renewal of his contract. The request was made pursuant to clause 30.1 of the contract. After considering the fourth defendant’s request, the first plaintiff in a letter dated 6 November, 2014, advised the fourth defendant that his contract would not be renewed. This decision was made pursuant to clause 30.1 of the contract.
2. Aggrieved by the decision of the first plaintiff, the fourth defendant on 21 November, 2014, lodged an application with the first and second defendants (PSC) to review the decision of the first plaintiff not to renew his contract, as a personnel matter (the matter).

3. The PSC in a letter dated 20 January, 2015, invited the plaintiffs to respond to the issues raised by the fourth defendant in his application to the PSC for review. In a letter dated 22 January, 2015, the plaintiffs told the PSC that the matter was private in nature and it had no power to review it. The PSC nonetheless went ahead and reviewed the matter resulting in it issuing the following orders.

1. the decision of the first plaintiff made on 6 November, 2014, refusing to renew the fourth defendant’s contract be annulled on the grounds that the decision breached Public Service General (PSG) Order 9 and that it was in breach of natural justice.
2. the first plaintiff to immediately commence a review process of the fourth defendant’s performance in order to renew or not to renew his contract. That a review team be appointed by the first plaintiff to do the review.
3. that the fourth defendant be re-employed immediately as an attached officer on a position equal to his previous position.
   

4. The plaintiffs are now challenging the power of the PSC to review the matter and to issue the above orders.

5. The plaintiffs initially raised five grounds of review but at the hearing, grounds (iii) and (iv) were abandoned, thus leaving only grounds (i), (ii) and (v) to pursue.

6. In ground (1), the plaintiffs claim that the fourth defendant was not a public servant, thus the non-renewal of his contract was not a matter that the PSC could review under s.18 of the Public Services Management Act, 2014 (PSM Act) . The PSC therefore lacked power to review the matter, and its decision was null and void.

7. In ground (ii), the plaintiffs claim that the fourth defendant’s position was not designated by the National Executive Council (NEC), as such it was not gazetted in the National Gazette by the Minister for Public Service. The fourth defendant’s contract therefore was not covered by ss.40, 41 and 42 of the PSM Act. As such, the (PSG) Order 9 had no application or relevance to the case.

8. In ground (v) which is the third and final ground of review, the plaintiffs claim that the matter did not fall within the definition of a “personnel matter” given in s. 194 of the Constitution. Thus it was not a matter that the PSC could review under s.18 of the PSM Act.

9. Mr. Nicholas Tame of counsel for the plaintiffs argued that the NACS is not a State Service as defined by s.188 of the Constitution. He also argued that the National AIDS Council (NAC) is not a governmental body as defined by s. 1.2 of the Constitution. He argued that the fourth defendant was therefore not a public servant and the PSC lacked power to review the matter.

10. Mr Richard Simbil of counsel for the PSC argued that the fourth defendant was a public servant thus the PSC had power to review the matter under s.18 of the PSM Act. He told the Court that this was in fact not the first time for the PSC to review a matter emanating from NACS because it (PSC) had previously reviewed a similar matter in the case of Ronald Jack v Director, National Aids Council Secretariat (2012) (un-numbered). He told the Court that in that case, the second plaintiff did not challenge the PSC’s power to review. Mr. Simbil also argued that the NAC does not create or constitute a new State Service because it is part of the Public Service. He submitted that the NAC Act, 1997, does not exclude or prohibit the PSC from reviewing matters relating to NACS staff. He further argued that cl.1 of the fourth defendant’s contract also made the contract subject to the PSM Act, and the PSG Orders.

11. Mr. Simbil argued that what is of essence here is that s.191 (1) (a) of the Constitution empowered the PSC to review the matter. He argued that the NAC is a governmental body because it is funded by the government. Mr. Simbil further argued that whilst the fourth defendant’s position was not created under the PSM Act, the fact that it is made subject to the PSG Orders made the matter amenable to review by the PSC. He argued that this is made clear by cl.36 of the contract.

12. Ms Eunice Mel of counsel for the third defendant argued that the fourth defendant was a public servant and therefore the matter could be reviewed by the PSC, however, she submitted that this could only be so if the fourth defendant’s contract was silent on how the matter should be dealt with. She argued that the matter in this case was not one which the PSC could review because the key issue which is the renewal or non-renewal of the fourth defendant’s contract had to be determined according to cl. 30 of the contract. In other words, clause 30 of the contract effectively determined the matter and the PSC had nothing to review.

13. It was further submitted by Ms Mel that because the NEC did not designate the fourth defendant’s position, his contract was not covered by ss. 40, 41 and 42 of the PSM Act, and PSG Order 9 also did not apply. It was submitted that the PSC had therefore acted beyond its powers when it reviewed the matter and its decision was null and void.

14. Mr. Stephen Nakilai of counsel for the fourth defendant basically supported the arguments advanced by Mr. Simbil.

15. I am grateful to Ms. Mel for a number of cases she handed up to the Court to assist the Court decide the issues before it. One of those cases is National Agriculture Quarantine and Inspection Authority v Tetaga [2009] PGNC 220; the case is also numbered N4030, a decision of Injia CJ. That decision does not fully support Ms. Mel’s line of argument because the learned trial judge held that the termination of the contract of employment for the General Manager of National Agriculture Quarantine and Inspection Authority (NAQIA) by the NAQIA Managing Director was not amenable to review by the PSC at all. The learned trial judge held that s. 27 of NAQIA Act, which is similarly worded as s. 23 of NAC Act, did not confer public service rights on the NAQIA staff including the General Manager therefore the PSC which conducted a review of the termination of the contract had no power to do so. His Honour said s. 3 of the NAQIA Act, conferred a corporate entity status on NAQIA and the terms of employment of NAQIA staff, discipline and staff organizational machinery were all placed in the hands of the NAQIA Managing Director and not in the public service machinery.

16. By way of background information, it should be noted that in the above mentioned case, the General Manager appealed against the termination of his contract to the NAQIA Board; but the appeal was unsuccessful. The General Manager then wrote to the PSC to review the termination of his contract. However the PSC referred the matter to the Department of Personnel Management, which then referred the matter to the Salaries and Conditions Monitoring Committee (SCMC). The SCMC as part of its investigation into the matter wrote to the NAQIA Managing Director for his response to the General Manager’s claims. The NAQIA Managing Director in a letter told the SCMC that it had no power to deal with the matter. The SCMC nonetheless went ahead and determined the matter and said that the termination of the General Manager’s contract was unlawful and ordered the reinstatement of the General Manager. The NAQIA Managing Director refused to reinstate the General Manager. In the mean time, the General Manager sought the assistance of two State Ministers to have him reinstated but was unsuccessful. The General Manager then made another application to the PSC to review the termination of his contract. The PSC as a result issued a notice under s.18 of the PSM, Act, for NAQIA to attend the PSC review. The NAQIA attended the review but disputed the power of the PSC to review. The PSC nonetheless went ahead and reviewed the matter and subsequently ordered the General Manager’s reinstatement, thus annulling the termination of the General Manager’s contract. The NAQIA Managing Director sought judicial review of the decision of the PSC to review the matter. As discussed above, the trial judge held that the PSC had no power to review the matter.

17. I applaud Ms Mel for bringing the above case to the attention of the Court because although the case does not fully support her line of argument, it is of great assistance to the Court in deciding whether the PSC had power to review the matter. In this regard, I consider it important and convenient that I make some pertinent observations on the duty of counsel to assist the court fully in deciding issues before it. The significance of this duty lies in the counsel’s duty to assist the court in the administration of justice. It is a fundamental principle of law that a lawyer’s duty to the court takes precedence over his other duties, including his duty to his client. This principle is based on the position of the lawyer as an officer of the court, and as one who has control of his client’s case in court. This duty includes the duty to disclose to the court all the cases that are or may be relevant to the issues before the court, even those which may not support his client’s case. This in fact is a requirement under the Lawyers Professional Conduct Rules, 1989, viz; rr.10 (1) and 15 (5). What is of paramount importance is that the court must be fully assisted by counsel, in deciding issues and in the administration of justice to all the parties to the litigation. It is important for one to remember that administration of justice is not a mere intellectual concept or a professional routine. It is more than a step in a process. It is central to the work of every judge, because justice has to be administered ‘according to law’. A judge must therefore discharge this duty with every care and skill he can muster and how a judge administers justice in the broadest sense is of vital importance. This is why assistance by counsel to the judge is very important and indeed the judges look to counsel appearing before them for guidance and assistance. Entitlement to justice is a right to everyone and where one is denied justice, it must be for sound and valid reasons. This is important to build public confidence and trust in the impartiality and integrity of the judiciary. This is of fundamental importance to administration of justice and the rule of law generally. These observations may be obita dicta, but an occasion has arisen for the observations to be conveniently made as they relate to a basic principle of advocacy which every lawyer should be aware of, especially those who appear in court. The significance of the principle has been prominently stated in many cases, but I will highlight only a number of them.

18. In Rondel v. Worsely [1966] 3 WLR 950 at 962. Lord Denning MR stated:

“Counsel has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice”

19. In Saif Ali v. Sydney Mitchell [1980] AC 198, Lord Diplock stated:
    

“The special characteristic of a barrister’s work upon which the greatest stress is laid by their Lordships was that he does not owe a duty only to his client; he owes a duty also to the court. This is an overriding duty which he must observe even though to do so in a particular case may appear to be contrary to the interests of his client...,”

20. In Giannarelli v. Wraith, Shulkes v. Wraith [1988] 81 ALR 417, Mason CJ at p. 421 stated:

“...the barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and the management of a case in which he is an eye, not only to his client’s success, but also to the speedy and efficient administration of justice”.

21. In Arthur Hall v. Simons [2002] 1 AC 615 Lord Hoffmann at pp. 686 and 692 stated:
    

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case.

....I have no doubt that the advocate’s duty to the court is extremely important in the English system of justice...The substantial orality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers appearing before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced...

22. Then Lord Hope in the same case at pp. 715 and 726 stated:
    

“The advocate’s duty to the court is not just that he must not mislead the court, that he must make sure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him...

....The duty which the advocate undertakes to his client when he accepts the client’s instructions is one in which both the court and the public have an interest. While the advocate owes a duty to his client, he is also under a duty to assist the administration of justice...his duty to the court and the public requires that he must be free, in the conduct of his client’s case at all times, to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability”.

23. In Copeland v. Smith [2000] 1 WLR 1371, the Court said:
    

“It is of course, the duty of an advocate under the English system of justice to draw the judge’s attention authorities which are in point, even if they are adverse to that advocate’s case”.

24. Turning now to the issues at hand, I find National Agriculture Quarantine and Inspection Authority v. Tetaga (supra) to be the case in point. That case and this case present similar issues. In this case, the NAC is established by s.3 of the NAC Act, 1997, as a corporate entity. Its membership is made up of people from all walks of life. They include senior public servants, members of the private sector, churches, para-church organizations, non-governmental bodies and individuals. Sections 7 and 8 give the membership of the NAC. The functions of the NAC are wide ranging, but its primary function is to effectively address issues relating to HIV and AIDS and to take appropriate measures to control, manage and prevent the spread of the HIV and AIDS in Papua New Guinea.

25. In order to carry out its powers and functions effectively, the NAC has a Secretariat which is established by s.20 of the Act. The Secretariat constitutes the staff of the NAC and is headed by a Director who is appointed under s.21. The Director is the Chief Executive Officer (CEO) of the NAC, and is the head of the service of the NAC, he is responsible for the efficient carrying out of the functions of the NAC, and has to, in the performance of his responsibilities, act in accordance with the policy and directions of the NAC. The appointment, suspension and or dismissal of the Director, as provided under s.21 (2) are governed by the Regulatory Statutory Authorities (Appointment to Certain Officers) Act, 2004. The Director holds office for three years as determined by the Minister and is eligible for re-appointment.

26. Pursuant to s. 23 (1) all staff of the NACS, other than the Director are appointed by the Director. Every staff, including the Director is employed under a contract of employment pursuant.

27. The Director’s contract is executed by the NAC and the Director, while the contracts for the other staff including the Deputy Director are executed by the Director on behalf of the NAC and the particular staff concerned. Pursuant to s. 23 (1) and (2), the NAC determines the terms and conditions of employment for all the staff, including the Director.

28. As provided under s. 21 (2) of the Act, Part III of Regulatory Statutory Authorities (Appointment to Certain Offices) Act, sets out an elaborate procedure for the revocation of the appointment of the Director. This procedure is stipulated under ss. 7 to 9. Under this procedure, the Board of the NAC has to investigate the grounds or the reasons for revocation; the Board would then in consultation with the Head of the Department of Personnel Management and the Minister make appropriate recommendations to the Ministerial Executive Appointments Committee for the suspension and or revocation of the Director. The Committee would then through the NEC advise the Head of State of such suspension or revocation.

29. The involvement of the head of the Department of Personnel Management is only for purposes of consultation. In case of a vacancy arising in the office of the Director, the Board has to make appropriate recommendations to the Minister for appointment of a suitable candidate. The Ministerial Executive Appointment Committee would then through the NEC advise the Head of State accordingly.

30. This case is of course not about suspension or revocation of the Director. The case is about the non-renewal of the Deputy Director’s contract of employment. But I have outlined the schemes under the NAC Act, and the Regulatory Statutory Authorities (Appointment to Certain Officers) Act, to demonstrate that the PSC is not authorised and empowered by the two legislations to investigate any matter by the Director who is aggrieved by the actions of the NAC. Under s.21 the Director is responsible to the NAC, thus any grievances of the Director have to be brought to the attention of the NAC Board to deal with, as it is the Board that has the power to investigate such grievances.

31. It is clear from the terms of ss. 22 and 23 of the NAC Act, and Regulatory Statutory Authorities (Appointment to Certain Officers) Act, that the above process applies to other staff of the NAC, including the Deputy Director.

32. Pursuant to s. 23 (3) of the NAC Act, a staff of the NACS, including the Director , can be a public servant, in which case his service with the NACS would count towards his service in the Public Service. A staff may also be a non-public servant; but in either case, the PSC would have no power to investigate a matter concerning a staff of the NACS basically because the NAC has its own process of review.

33. So like in National Agriculture Quarantine Inspection Authority v. Tetaga (supra), the schemes of the two governing legislations place all the personnel matters relating to the NACS staff in the hands of the Director, not in the public service machinery, including the PSC.

34. The only way the PSC could review a personnel matter for any of the NACS staff is by an express provision in the NAC Act, conferring power on the PSC to review such personnel matter: National Agriculture Quarantine and Inspection Authority v. Tetaga (supra). There being no such provision in the NAC Act, the PSC had no power to review the matter.

35. For the foregoing reasons, I also accept the arguments by Mr Tame and Ms Mel that the fourth defendant’s contract is not covered by ss. 40, 41 and 42 of the PSM Act.

36. This is a case where the contract of the Deputy Director had expired and the NAC had decided not to renew the contract. The contract having expired, the case fell firmly within the terms of clause 30.2 of the contract and had to be determined pursuant to the terms of this clause.

37. Consequently, I make the following findings:
    

i. There being no evidence before the Court that the fourth defendant was a public servant before his appointment as the Deputy Director of the NACS, he was not a public servant.

ii. Even if he was a public servant, the PSC would have had no power to review the matter because the power to investigate and review such a matter is vested in the Board of the NAC, pursuant to ss. 22 and 23 NAC Act.

iii. The case being about the non-renewal of the fourth defendant’s contract of employment with the NAC, the case had to be determined according to clause 30.2 of the contract. It follows that the NAC having decided against renewing the contract that was the end of the matter. It was not a matter which the NAC Board could review.

iv. The PSC having no power to investigate the matter, its decision made on 5^th June, 2015, annulling the first plaintiff’s decision not to renew the fourth defendant’s contract is ultra vires and is null and void.

v. The NAC is not a State Service as defined by s.188 of the Constitution. Thus the non-renewal of the fourth defendant’s contract was not a personnel matter as defined by s.194 of the Constitution and s.18 of PSM Act. The NAC is a Regulatory Statutory Authority established by an Act of Parliament, namely s.3 of the NAC Act, 1997, to perform statutory functions stipulated under s.5 of the Act. These functions centre around the NAC’s primary function which is to address issues relating to HIV and AIDS.

vi. The NAC is by virtue of s.3 of the Act, a corporate entity. Thus the Director and the staff of the NACS including the Deputy Director are responsible to the NAC and its Board. For that reason, matters relating to grievances of the staff of NACS must be raised with the NAC Board to deal with. However, this matter is not one of them because it relates to a non-renewal of a contract, which had to be dealt with under the terms of the contract, namely, cl.30.2.

vii. The fourth defendant’s contract is not one to which ss.40, 41 and 42 of the PSM Act, apply.

38. Consequently, the Court makes the following Orders:

1. The decision of the PSC made on 5^th June, 2015, is quashed.
2. The plaintiff’s costs and incidental to the proceeding be paid by the first, second and third defendants.
3. The fourth defendant will pay his own costs.
   

39. Orders accordingly.
    

__________________________________________________
Nicholas Tame Lawyers: Lawyers for the Plaintiffs
PSC Legal Division: Lawyers for the First and Second Defendants
Solicitor General: Lawyers for the Third Defendant
Kaipu and Associates Lawyers: Lawyers for the Fourth Defendant