Taki v Wosae [2017] PGNC 229; N6812 (29 June 2017)

N6812

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 675 OF 2013

BETWEEN:
MATU TAKI
Plaintiff

AND:
KAIN WOSAE AS THE CHAIRMAN OF THE BOARD OF DIRECTORS FOR THE NATIONAL BROADCASTING CORPORATION
First Defendant

AND:
MEMAFU KAPERA AS THE MANAGING DIRECTOR OF THE NATIONAL BROADCASTING CORPORATION
Second Defendant

AND:
THE NATIONAL BROADCASTING CORPORATION
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Nablu, J
2017: 19^th April
29^th June

JUDICIAL REVIEW – Staff disciplinary process – Clauses 153, 155 and 156 – National Broadcasting Corporation Staff Determination No.1 of 1975 (as amended) – whether the determination is the applicable law – disciplinary procedure provided in the determination – Kapera v. Yaruso (2016) SC 1533 followed – whether the Managing Director has the power to terminate officers – grant of relief – reinstatement and or back payment of lost salaries and entitlements – what is a fair and equitable remedy – delay – seriousness of the breach warrants reinstatement and back payment of salaries and entitlements.

Cases cited:

Ramram v. National Broadcasting Commission (1990) N1110
Kapera v. Yaruso (2016) SC 1533
The Central Bank of PNG v. Gabriel Tugiau (2009) SC103
Rose Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122
Mision Asiki v. Manasupe Zurenouc [2005] SC 797
Issac Lupari v. Sir Michael Somare and Others (2008) N3476
Paul Saboko v. Commissioner of Police (2006) N2975
Peter Bon v. Mark Nakgai (2001) PNGLR 18
Ombudsman Commission v. Peter Yama (2004) SC747

Counsel:

E. Hampalekie, for the Plaintiff
C. Kup – Ogut, for the First and Second Defendants
E. Manihambu, for the Third Defendant

29 June, 2017

1. NABLU, J: Matu Taki seeks to review the decision of the National Broadcasting Corporation Board on 12^th August 2013 to uphold the decision of the Managing Director made on 24^th October 2012 to terminate him from employment with the National Broadcasting Corporation. Prior to his termination the plaintiff was employed as Co-ordinator Engineering Training.

2. The plaintiff seeks various declarations and orders in the nature of certiorari to quash the decision of the Managing Director dated 24^th October 2012 and the decision of the NBC Board on 12^th August 2013. The plaintiff also seeks to be reinstated without loss of salary, entitlements, emoluments, general damages and costs.

3. The background facts of the matter are adequately provided in the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules and the plaintiff’s affidavit filed on 13^th August 2014. I have adopted them as follows.

4. It is not disputed that the plaintiff joined the National Broadcasting Corporation in November 1975. He commenced employment as the Co-ordinator Engineering Training, a position he maintained in his 36 years of service to the Corporation.

5. He was charged on 28^th August 2012 for breaching Clauses 153(b) and (e) of the National Broadcasting Corporation (National Officers and Employees) Determination No.1 of 1975 as amended (NBC Determination). It was alleged that on 13^th August 2012, the plaintiff divulged the corporation’s financial information to people in other offices and in high places including the Public Employees Association and the Office of the Minister with the aim of discrediting the Managing Director and his Executive Management Team. The alleged financial details provided included copies of documents that related to normal payments for goods and services made under the Public Finances (Management) Act. It was also alleged that the plaintiff was inefficient and incompetent from causes within his control by failing to undertake internal avenues to address his grievances but instead resorted to providing information to persons outside of the Corporation. It is alleged that the information divulged related to their grievances and the financial information concerning operational matters.

6. The charges were endorsed by the Chairperson and the Deputy Chairperson of the Staff Discipline Advisory Committee which comprised of Mrs Amean and Mr Arifeae. The plaintiff was also suspended on the same day by way of a letter dated 28^th August 2012. The letter was signed by the Managing Director, Mr Kapera.

7. The plaintiff denied the charges and responded to the charge and suspension on 10^th September 2012 by way of a written statement. On the 24^th October 2012, the plaintiff was terminated from employment by way of a letter from the Managing Director. The plaintiff then on 5^th November 2012, appealed to the NBC Board. The Board considered the appeal and decided to uphold the Managing Director’s decision on 12^th August 2013.

8. The plaintiff relied on his affidavit filed on 13^th August 2014.

9. In response, the defendants relied on three affidavits of Janet Amean and Memafu Kapera which were filed on 21^st August 2014. The defendants also relied on the affidavit of Miglishi Girua’konda filed on 4^th October 2013.

10. The grounds of review which the plaintiff relies on to challenge the decisions are contained in the Statement of Support pursuant to Order 16 of the National Court Rules. They are as follows:

1. there was a breach of the prescribed process;
2. the Managing Director had committed an error of law;
3. the Managing Director acted ultra vires; and
4. the plaintiff was denied the right to Natural Justice.

11. The parties agreed to seventeen (17) legal issues for determination. In my view a number of these issues are repetitious and frivolous. At the hearing and as per the plaintiff’s amended written submissions, the issues were narrowed down to eleven (11) legal issues.

12. In my view, these issues can be further reduced and simplified as follows;

1. Whether the relevant provisions of the National Broadcasting Corporation Staff Determination No.1 of 1975 is the applicable procedure for discipline of the officers?
   
2. If the answer to the first issue is ‘yes’; then whether the defendants breached the prescribed disciplinary procedure under Clause 155 and 156 of the National Broadcasting Corporation Staff Determination No. 1 of 1975?
   
3. Whether the plaintiff was denied Natural Justice, in particular denied the right to appeal?
   
4. Whether the plaintiff is entitled to the relief sought, that is, should the relief of reinstatement or damages be granted?
   

13. The relevant provisions of the disciplinary process is captured in Part 10 of the National Broadcasting Corporation Staff (National Officers and Employees) Determination No. 1 of 1975 (Determination).

14. It is necessary to set out the relevant provisions of the Determination as follows;

153. OFFENCES AND PUNISHMENTS

An officer –

1. commits a breach of the provisions of this Determination; or
2. except in the course of official duty, uses or divulges, directly or indirectly, any information concerning Commission or public business or any matters of which he has official knowledge; or

100. wilfully disobeys or disregards a lawful order made or given by any person having authority to make or give it; or

4. is negligent or careless in the discharge of his duties; or
5. is inefficient or incompetent from causes within his own control; or
6. uses intoxicating liquors or drugs to excess; or
7. solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or
8. is guilty of any disgraceful or improper conduct either in his official capacity or otherwise; or
9. having made or subscribed an oath or affirmation in the form of the FIRST SCHEDULE to this Determination, does or says anything in violation of that oath of affirmation,

is guilty of an offence and is liable to be dealt with and punished under this Part.

154. DEALING WITH MINOR OFFENCES

1. If the Chairman or any officer authorised by the Chairman to deal with minor offences, has reason to believe that an officer has committed an offence specified in the last preceding clause which, in his opinion, would properly be dealt with under this clause, he may call upon the officer for an explanation as to the alleged offence, and if, on consideration of the explanation, he is of the opinion that the offence has been committed he may caution or reprimand the offending officer or fine him a sum not exceeding ten kina.
   
2. A caution, reprimand or fine by an officer other than the Chairman shall be forthwith reported to the Chairman and, where the offence has been punished by a fine, the officer affected may appeal to the Chairman within forty-eight hours after the notification to him of the punishment.
   
3. Upon such appeal under the last preceding sub-clause the Chairman may confirm, annul or vary the punishment, and his decision is final.
   

155. DEALING WITH SERIOUS OFFENCES

Where there is reason to believe that an officer other than a Divisional Head has committed an offence, specified in clause 153 of this Determination other than an offence which may be dealt with under clause 154 the succeeding provisions of this clause apply.

1. The officer may be charged by the Chairman or an officer authorised by the Chairman to lay charges under this Part and may, if it is considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by the Chairman or, in case of emergency, by an officer authorised by the Chairman to lay charges under this Part;
   
2. Suspension may be effected before, at the time of, or after the laying of the charge, and may be removed at any time by the Chairman pending determination of the charge, and where the charge has not been sustained shall be lifted immediately upon a finding to that effect;
   

100. Upon a charge being laid against an officer, he shall forthwith be furnished with a copy of the charge, and shall be directed to reply forthwith in writing, stating whether he admits or denies the truth of the charge, and to give any explanation he desires in regard thereto, and, if a reply is not made by the officer within seven days after his receipt of the charge, the officer may be deemed to have admitted the truth of the charge.
     

4. If the Chairman, after consideration of reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report he considers necessary, is of the opinion that the charge has been sustained, he may –
   1. fine the officer any sum not exceeding two hundred kina; or
   2. reduce the officer’s salary; or
   3. reduce the officer to an office having a lower salary classification and to a salary within that classification; or
   4. transfer the officer to some other office or locality either in addition to or in lieu of imposing a punishment specified in paragraphs (i), (ii), (iii) of this sub – clause; or
   5. recommend to the Board that the officer be dismissed from the Service; and
      
5. The Chairman shall notify an officer of a punishment imposed or recommendation made under the last preceding sub – clause and where the punishment is other than the imposition of a fine not exceeding ten kina the officer may, within a period of seven days or such further period as the Chairman may allow, appeal to the Board.
   

156. POWERS OF BOARD IN RELATION TO SERIOUS OFFENCES

Where –

1. The Chairman under the last preceding clause recommends to the Board that an officer be dismissed from the Service; and
   
2. The officer does not appeal to the Board within the specified time; and
   

100. The Board, after consideration of reports relating to the offence and charge, the reply and explanation (if any) of the officer charged, the recommendation of the Chairman and any further reports it considers necessary, is of opinion that the charge has been sustained,
     

the Board may impose a punishment specified in paragraph (i), (ii), (iii) or (iv) of sub – clause (d) of the last preceding clause; or may dismiss the officer from the service of the Commission.

Breach of Disciplinary Procedure

15. The plaintiff contends that the Managing Director breached all the required steps in the disciplinary process as provided for under Clauses 155 and 156 of the Determination. The plaintiff argued further that the disciplinary procedure is a mandatory prescribed process which is contained in the Determination. The alleged breach is from the beginning, therefore, it renders the rest of the process illegal. The main contention is that the Managing Director exercised powers which he did not have. The power to charge and suspend an officer is vested in the Chairman of the National Broadcasting Corporation Board. The procedure in the Determination is mandatory.

16. Mr Kup–Ogut of counsel for the first and second defendant’s submitted that the Determination is not applicable for two reasons. The first reason is that the Determination is not law, it is not subordinate legislation, therefore, it does not have legal force. The State is not bound to follow the Determination. The defendants however, argue that if the Court is of the view that the Determination is applicable then the inconsistencies in the Determination render it also inapplicable. In other words, the Chairman deliberates on the charge and imposes a punishment then later sits as part of the Board to consider an aggrieved officer’s appeal.

17. Mr Manihambu of counsel for the State submitted that the applicable law is the Determination as held in the case of Kapera v. Yaruso (2016) SC1533. According to the written submission the State conceded that the Managing Director intentionally or negligently failed to follow the prescribed process under the Determination.

18. At the outset, the first issue to be determined is; what is the applicable law? Is the Determination the applicable law? If it is found that the Determination No.1 of 1975 is the applicable law then the disciplinary process is, as prescribed under the Determination.

19. Mr Kup–Ogut of counsel argued that, the Determination is not applicable. He submitted that the Determination is not applicable because it is not law or subordinate legislation, a regulation or a by – law. Therefore, the Determination is only a statement of a NBC officer’s terms and conditions of employment. Counsel submitted that the case of Ramram v. National Broadcasting Commission (1990) N1110 to support his contention. Counsel referred this court to Her Honour Justice Doherty’s Judgement. Her Honour found that the Determination;

“...sets out the terms and conditions and procedures of recruitment and discipline of employees of the National Broadcasting Corporation.”

20. He further submitted that the Determination was not mandatory and referred the Court to the decision of Her Honour at page 5 of that Judgement. It is necessary for me to set it out here. Her Honour stated that:

“The Determination says if an officer is guilty of an offence in such a situation the Chairman may call upon the officer to give an explanation. This is not a mandatory obligation on the Chairman, he has a discretion to call upon the officer or not. Paragraph 155 deals with serious offences and the powers of the Commission in relation to the finding of a serious offence. These include recommending to the Board that the officer be dismissed from the service (paragraph 155(d)).” (Emphasis mine).

21. The plaintiff and the State argued that the applicable law is the Determination. To support this proposition, they submitted the recent Supreme Court case of Kapera v. Yaruso (supra).
22. The Supreme Court held in that case that the applicable law was the NBC Staff Determination No. 1 of 1975. The Court was of the view that the Managing Director was not the Chairman of the Board and therefore could not exercise the disciplinary powers. The Chairman was vested with the disciplinary powers as provided for in the Determination.

23. The plaintiff and the State’s counsel urged this Court to follow the Supreme Court decision which is binding on this Court.

24. The first defendant’s lawyer, however, urged this Court not to follow this Judgement. This submission is quite mischievous and baseless. I reject this submission outright. This Court is bound to follow the decision of the Supreme Court. I see no exceptional reasons why I should not follow the Supreme Court’s decision. It is clear that Mr Kup-Ogut attempts to mislead this Court. I remind Mr Kup-Ogut, he is an officer of this Court first and foremost. Therefore, as an officer of the Court you have an ethical duty to this Court. That duty includes the duty not to mislead the Court. Apart from this, there are other reasons why I reject his submissions.

25. The first defendant argued that unlike the Public Services (Management) Act which provides a specific section which authorizes or enables the Departmental Head, that is, the Secretary for Personnel Management to enact regulations (see s.70 of the Public Services (Management) Act). The equivalent enabling provision is not provided for in the Broadcasting Corporation Act.

26. The proposition put to the Court by the defendant is that the Determination has no legal basis. Mr Kup-Ogut referred the Court to various legislation like the Broadcasting Corporation Act 1973 (Chapter 149) and the legislation that preceded it, the repealed Broadcasting Commission Act 1973.

27. According to Section 22 of the Broadcasting Corporation Act, the Corporation may appoint persons to be officers of the Corporation. Subject to Section 22 and the regulations, the officers hold such terms and conditions as determined by the Corporation. The Board of the Corporation is responsible for the affairs of the Corporation.

28. The defendant’s argument is that the Determination is not mentioned in the earlier legislation, therefore, it is not applicable and it is not law.

29. I am of the view that, the argument advanced by the first defendant is flawed for two reasons. Firstly, Section 22 of the Broadcasting Corporation Act, is clear, the Corporation is responsible for determining the officer’s terms and conditions of employment. The corporation is the National Broadcasting Corporation and the body responsible for the affairs of the Corporation is the Board.

30. Section 22 of the Broadcasting Corporation Act is the enabling provision of the law which allows the Board to determine the officer’s terms and conditions of employment.

31. The Broadcasting Commission Act was adopted in 1973. There was a change in the name of the Commission in 1995 through the Broadcasting Commission (Change of Name and Corporate Structure) Act No. 49 of 1995. The Commission changed its name and structure to that of a Corporation. Some of the legislative changes included the clarification of the Chairman’s role and the establishment of the Service of the Corporation which comprised of the newly established offices of the Managing Director and the Deputy Managing Director. While these were significant changes to the structure, the power to determine the officer’s terms and conditions in my view remained the same.

32. For the foregoing reasons, I am persuaded that the NBC Determination is still valid and in force. I reject the first and second defendant’s argument that the Determination is not a by – law. I also find that the charge notice is entitled Notice of Charge under Clause 155. The heading is stated clearly as the “National Broadcasting Corporation (National Officers and Employees) Determination No.1 of 1975 as amended to date”.

33. It is clear in the evidence before me, that the charge was imposed under the Determination (Annexure A of the Affidavit of Matu Taki, page 33 of the Review Book). The termination letter (Annexure D of the Affidavit of Matu Taki, page 41 of the Review Book) also stated that the charges were laid pursuant to Clause 153 of the Determination. I find that the disciplinary process the Managing Director purportedly followed was that under the Determination. It is quite bizarre for the first defendant to now deny that the Determination is not a by – law and the plaintiff cannot rely on it. The first and second defendant’s argument is flawed. I note that the first and second defendant advanced this line of argument in the Supreme Court and the Court stated that:

“...It is our view that in essence, Mr Kapera is estopped from denying Ms Yaruso from relying on the wording of Clause 155 of the Determination, the very wording he attempted to rely upon.”

34. As stated earlier in the Judgement, the first and second defendant argued that the Determination was not mandatory and referred to a passage by Doherty J. This argument is also without merit and I reject it. When reading the whole paragraph of the Judgement, Her Honour does not state that the determination is not mandatory, she is simply, referring to the Chairman’s discretion to call upon an officer to give an explanation. Mr Kup-Ogut has misconstrued Her Honour Justice Doherty’s words. This submission is clearly misconceived and without merit.

35. Furthermore, in the case of The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013 at paragraph 42, the Supreme overruled the line of cases which included Ramram’s case, for the reason that they did not correctly represent the law and should not be followed.

36. For those reasons, I find that the first, second and third counsel’s submissions are without merit and I reject them all in full.

37. Having found that the applicable law is the NBC Staff Determination, I will now consider the disciplinary procedure in the Determination. The disciplinary offences are listed in Clause 153 of the Determination. An officer who except in the course of official duty, uses or divulges, directly or indirectly, any information concerning the Commission or public business or any matters of which he has knowledge is guilty of an offence (Clause 153(b) of the Determination). Minor offences are dealt with by the Chairman. Serious offences are dealt in accordance with the process under Clause 155 of the Determination.

38. Briefly, the disciplinary process is initiated by the Chairman. The Chairman lays the charges. The Chairman can authorize other officers to lay charges under Clause 155(a) of the Determination. If the Chairman is of the view that the officer is charged with a serious offence and therefore should not be in office, the Chairman can suspend the officer (Clause 155(a)). The officer then has seven (7) days to respond to the charge. The Chairman then considers the charge, the officer’s reply, the reports relating to the charge and other relevant documents. If the Chairman is of the view that the charges are sustained, he can impose a penalty under Clause 155(d)(i)-(iv) of the Determination. The penalties range from a monetary fine, reduction of the officers salary or salary classification or transfer to a different area or location. If the Chairman is of the view that the officer should be dismissed, the Chairman does not have the power to terminate the officer. The Chairman makes a recommendation to the Board to dismiss the officer. (Clause 155 (d)(v) of the Determination).

39. Then the Chairman notifies the officer of the punishment that he has imposed or in cases, where the Chairman recommends dismissal, the recommendation he has made to the Board. If the punishment imposed is a penalty other than a fine less than K10.00, then the officer has the right of appeal to the Board. The appeal to the Board must be made within 7 days. The Chairman has the discretion to extend the time to appeal pursuant to Clause 155(e) of the Determination.

40. On the other hand, if the Chairman’s recommendation is for the dismissal of the officer and the officer fails to lodge an appeal within the specified time, the Board proceeds to consider the matter. The Board can deliberate on the reports of the offence, the charge, the reply to the charge, any explanation, the recommendation of the Chairman and any other reports it considers necessary. If the Board is of the opinion that the charges are sustained. The Board has the power to impose a punishment specified or may dismiss the officer from the service of the Commission.

41. The case of Rose Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122 supports the proposition that judicial review is concerned with the decision making process and not with the decision itself (per Kapi DCJ at page 124 of the Judgement).

42. When applying the prescribed process to the facts to the present case, it is clear that the first defendant breached the mandatory process. The Chairman of the Board is authorised to lay the disciplinary charges. There is no evidence that the power to lay charges was delegated to the Disciplinary Committee which comprised of Janet Amean and Alan Arifeae. It is not disputed that the Disciplinary Committee laid the charges. By laying the charge without authority against the plaintiff under the Clause 155, the Disciplinary Committee committed a serious error of law and acted without power. Furthermore, the Managing Director is not authorized to suspend the officer. The Disciplinary Committee nor the Managing Director have the power to consider the charges or impose a punishment under Clause 156 of the Determination. The Chairman is the lawful authority to consider the charge and impose any punishment from a fine to transfer of an officer. In regard to termination, the Chairman can only recommend to the Board to terminate the officer. It is clear in the evidence before me that the Managing Director did not have the power to terminate the plaintiff. By unilaterally exercising the power to terminate, he acted ultra vires the Determination.

43. The plaintiff has proven the first three (3) grounds of review. The first and second defendants had committed serious breaches of the mandatory statutory procedure for disciplining officers under the Determination. For the foregoing reasons, I uphold the plaintiff’s three grounds of review.

44. In the fourth ground of review, the plaintiff contends that his right to natural justice was denied. He argues that the first defendant informed him to appeal after his termination.

45. The minimum requirement for the principle of natural justice is the duty to act fairly and to be seen to act fairly (Section 59 of the Constitution). Public officials are required to observe the principles of natural justice when making decisions in the discharge of their statutory functions and duties.

46. In the present case, there is evidence that the decision by the Managing Director was unfair and tainted with bias. The plaintiff has established that the decision-maker was bias. It is clear that a reasonable fair minded observer knowing all the relevant facts would conclude that the decision-maker was bias.

47. I am of the view that the Managing Director and the Disciplinary Committee breached the plaintiff’s right to natural justice when they failed to give an opportunity to the plaintiff to make submissions on the penalty to be imposed. After the purported consideration of the charges by the Managing Director and or the Disciplinary Committee, they have a duty to inform the plaintiff that the charges where sustained and therefore, the plaintiff should address them on what penalty should be imposed. The evidence before me, indicates that the right to address the decision maker on penalty was not afforded to the plaintiff.

48. Furthermore, public officials are under a duty to give adequate reasons for their decisions (see Ombudsman Commission v. Peter Yama (2004) SC 747). In the evidence before me, I find that the Managing Director and the NBC Board failed to give cogent and adequate reasons for their decisions. The failure to give adequate reasons is a denial of the plaintiff’s right to natural justice. I am satisfied that the plaintiff has made out this ground of review and that there was a clear denial of natural justice.

49. Now turning to the issue of relief. The question is whether the plaintiff having established the grounds of review is entitled to the relief he seeks.

50. It is trite law that judicial review applications proceed in two steps. The successful applicant after establishing its grounds of review must then make a case for the relief: Mision Asiki v. Manasupe Zurenouc (2005) SC 797. The grant of relief is discretionary.

51. In the present case, I consider the breaches of the Determination are so serious that the decisions must be quashed. The actions of the Managing Director are so blatant, a deliberate and serious breach of the law and serious breach of the plaintiff’s right to natural justice. There is evidence before me that infers that the former Managing Director abused the powers of his office and the decision was tainted with bias. Despite the fact that there are some inconsistencies, the Managing Director is not Parliament nor, as in this case the Chairman of the Board who can pass laws or determine rules at whim. His job is to carry out his function and responsibilities within the confines of the law.

52. The next issue is whether the plaintiff should be reinstated and back paid his lost salary and entitlements to the date of his termination. Bearing in mind that the termination was made in 2012. The plaintiff argued that the plaintiff should be reinstated without loss of salary and entitlements, because he was unlawfully terminated.

53. Whilst I consider that reinstatement is a fair and adequate remedy. I am mindful that there is a delay of about four (4) years. There is no evidence before me as to whether the plaintiff’s reinstatement would cause substantial hardship or prejudice or be bad for administration to the National Broadcasting Corporation or any other person. The first defendant argued that there was a long delay and therefore the grant of relief of reinstatement would be detrimental to the good administration of the second defendant. There is however, no evidence to support these submissions. I was not referred to any evidence to substantiate the submission that reinstatement would be detrimental to the NBC’s rights or interest, they would suffer great prejudice or that it would affect the good administration of the Corporation.

54. The plaintiff argued that a delay in the prosecution of these proceedings was due to the period of time taken waiting for the outcome of the appeal to the Supreme Court by the first defendant, for the case of Kapera v. Yaruso (supra).

55. There is a difference in views in regard to whether a successful judicial review applicant should be reinstated and paid his lost salaries and entitlements. The views have differed in the cases before this Court and the Supreme Court. It appears that the grant of relief is discretionary and each case is determined on its merits.

56. In Issac Lupari v. Sir Michael Somare and Others (2008) N3476, His Honour Injia, DCJ (as he then was) granted the relief of certiorari but refused the plaintiff’s claim for reinstatement. That case involved a public office namely the position of the Chief Secretary to Government.

57. In Mision Asiki v. Manasupe Zurenouc (supra), despite a long delay, the Supreme Court considered the breach of law by the Provincial Administrator so serious, blatant, bad in law and flagrant enough to grant reinstatement and payment of all the appellant’s lost salaries and entitlements.

58. In Paul Saboko v. Commissioner of Police (2006) N2975, His Honour Justice Cannings reinstated a police officer but refused to back pay him for the date of the termination which would result in the plaintiff gaining a windfall of seven (7) year’s salary for doing nothing.

59. The Supreme Court referred to the Judgement of His Honour Justice Gavara-Nanu in Peter Bon v. Mark Nakgai (2001) PNGLR 18. His Honour stated at pages 32 -33 of that Judgement that:

“The primary purpose of a judicial review is to determine whether the administrative action been reviewed was legal. In termination cases, it is to determine whether the termination was legal or lawful. The customary scope of judicial review therefore, is confined to question of legality. However, in this jurisdiction, the Courts have gone beyond the customary scope by using their equitable inherent supervisory review jurisdictions to order reinstatement of officers terminated unlawfully where the circumstances of the cases warranted reinstatement, and if reinstatement was the fair and adequate remedy for the plaintiff, as in Godfrey Niggins’ case. The threshold question is, What is a fair and adequate remedy for the plaintiff whose termination is declared unlawful and is therefore null and void? If the fair and adequate remedy is reinstatement then subject to Order 16 Rule 4 of the National Court Rules, such remedy should be readily granted by the Courts. In considering Order 16 Rule 4, the primary issue is whether there had been an undue delay, if not, the related issue is whether the reinstatement is likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would be detrimental to good administration, see Steven Pupune & 7 Ors v. Aita Ivarato & Ors N1539 at p6 and NTN Pty Ltd v. Post and Telecommunication Corporation [1987] PNGLR 70. If reinstatement is refused in cases with exceptional circumstances such as those in this case because of undue delay and the other factors in Order 16 Rule 4, the Court can in my opinion, properly invoke its inherent equitable jurisdiction under Section 155(4) of the Constitution to order that the officer be treated either has having been retired or retrenched and be compensated in accordance with the appropriate rates in Public Services General Orders. Such Orders would in my opinion accord with the principle of fair and adequate remedy and would be appropriate to do justice in the circumstances of such cases.”

60. I agree and adopt His Honour’s views. In that case, His Honour granted judicial review and ordered the relief of reinstatement without loss of salary and entitlements.

61. The principle consideration for the Court to determine the issue of whether to reinstate an officer that has been unlawfully terminated is; what is a fair and adequate remedy in the circumstances.

62. The seriousness of the breaches of the disciplinary procedure culminated with the evidence of actual bias, in my view, justifies the plaintiff’s reinstatement. There is no evidence as the current status of the position the plaintiff previously occupied. Is the position vacant or has it been filled by someone else? There is also no evidence of the status of the relationship between the plaintiff and the employer. Has the relationship between the plaintiff and second defendant soured and become so noxious, that to force them to continue their relationship as employer and employee would be bad for the good administration of the NBC.

63. I am of the view that the delay is also a factor which should be considered. In my view, the plaintiff has contributed to the delay by not bringing this judicial review application earlier. The delay would be about four (4) years. The plaintiff cannot argue that he did not progress the case because of the defendant’s lawyers actions in disrupting their case by constantly trying to evict them and having to wait for the outcome of the Supreme Court appeal by Yaruso. At the end of the day, the plaintiff has a duty to take steps to prosecute their applications regardless of any impediment faced. This would, be a substantial amount of salaries to be repaid. This would result in unjust enrichment of the plaintiff. I am reluctant to order back payments to the date of dismissal. This would result in the plaintiff unjustly enriching himself. Public money should not be spent to make right one official’s bad decision.

64. On the other hand, the first defendant after having received the High Court’s decision should have in my view, attempted to settle the cases out of Court. Instead, the first defendant pursued these cases with a clearly flawed defence which was clearly unjustifiable and clearly without merit. It was a mere token position only meant to, in my view, prolong and impede the plaintiff’s case.

65. Therefore, I am satisfied that the fair and adequate remedy is for the plaintiff to be reinstated to his substantive position or equivalent position forthwith and the first defendant should pay the plaintiff’s lost salaries and entitlements from the date of the decision of the NBC Board to uphold the illegal decision to the date of trial. In this particular case, the plaintiff to be reinstated to his substantive position and or equivalent position.

66. The plaintiff also sought general damages. The Court has the discretion to award damages in a judicial review application pursuant to Order 16 Rule 7 of the National Court Rules. The claim for damages however must be pleaded in the Statement of Support. Order 16 Rule 7(2) of the National Court Rules states that Order 8 Division 2 applies in relation to pleadings for a claim for damages. I am of the view that a claim for general damages or any other head of damages must be properly pleaded. It is not sufficient to just state that you claim general damages. The claim must be properly pleaded according to the Rules and there must be sufficient evidence to support the claim for damages. In the present case, the pleading for general damages is insufficient; in my view to invoke the Court’s discretion. Even if I am wrong there is no evidence to support the claim for general damages. Furthermore, the reimbursement of the plaintiff’s lost salaries and entitlements is a fair and adequate remedy to compensate the plaintiff for the unlawful termination. I refuse the relief of general damages sought.

67. In regard to costs, I am of the view that the actions of the first defendant and the second defendant are blameworthy and therefore they should be penalised for pursuing a case which was clearly wrong in law and fact. Such actions are deliberate and made in bad faith, I will exercise my discretion to order that they pay the plaintiff’s costs on a solicitor – client basis. As for the State, the third defendant, they were a nominal defendant in the proceedings and they did not vigorously contest the judicial review application but ultimately conceded during trial, I make no order as to costs against them.

68. For the foregoing reasons and in the exercise of my discretion, the plaintiff’s application for judicial review is granted.

Court Orders

1. The plaintiff’s application for judicial review is granted.
   
2. The decision of the National Broadcasting Corporation Chairman and Board made on 12^th August 2013 is declared unlawful, null and void ab initio and quashed forthwith.
   
3. The decision of the Managing Director of the National Broadcasting Corporation on 24^th October 2012 to terminate the plaintiff from employment is declared unlawful, null and void ab initio and quashed forthwith.
4. The Chairman and Board of the National Broadcasting Corporation is compelled to reinstate the plaintiff to his substantive position or equivalent position with the same level of salary and entitlements within the National Broadcasting Corporation forthwith.
   
5. The Chairman and Board of the National Broadcasting Corporation is compelled to reimburse the plaintiff’s lost salaries and entitlements from the period commencing 12^th August 2013 to 19^th April 2017 forthwith.
   
6. The first, second and third defendant’s to pay the plaintiff’s costs of and incidental to the proceedings on a solicitor –client basis.
   
7. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.
   

Orders accordingly,

Mordelai & Associate Lawyers: Lawyers for the Plaintiff
Ninai Lawyers: Lawyers for the First, Second and Third Defendants
Office of the Solicitor General: Lawyers for the Fourth Defendant