Wakias v Gamato [2017] PGNC 62; N6687 (17 March 2017)

N6687
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 697 OF 2016

BETWEEN
DAVID WAKIAS

Plaintiff

AND

PATILIAS GAMATO as PNG Electoral Commissioner
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Makail, J

2017: 13^th& 17^th March

JUDICIAL REVIEW – Review of Decision of Electoral Commissioner to revoke and appoint Election Manager – Grounds of – Breach of natural justice – Denial of right to be heard – Absence of reasons – No good reasons – Unreasonableness of decision – Irrelevant matters – Failure to take into account relevant matters – Constitution – Section 59

Cases cited:

Papua New Guinea cases
Hon, Peter O’Neil &Ors v. Joseph Klapat& PSC (2014) SC1385
John Kopil v. Malcolm Culligan&The State (1995) N1333
Mathew Himsa&Anor v. Richard Sikani&The State (2002) N2307
Niggints v. Tokam[1993] PNGLR 66
Ombudsman Commission v. Peter Yama (2004) SC747

Overseas cases

Associated Provincial Picture House Ltd v. Wednesbury Corporation Ltd [1947] EWCA Civ 1; [1948] 1 KB 223

Counsel:

Mr. S. Ranewa, for Plaintiff
Mr.R. Awalua, for First Defendant
No appearance, for Second Defendant

JUDGMENT

17^th March, 2017

1. MAKAIL J: This is an application for judicial review of the decision of the Electoral Commissioner to revoke the appointment of the Plaintiff as Election Manager of Southern Highlands Province and appoint Mr. Jacob Kurap in his place pursuant to Order 16 of the National Court Rules.

Brief Facts

2. According to the various affidavits relied upon by the parties the undisputed facts are that, the Plaintiff was the Election Manager of Southern Highlands Province after he was recruited from the open market through the public service recruitment process in consultation with the Electoral Commission senior management team.

3. He held the position until his appointment was revoked by the Electoral Commissioner on 4^th October 2016 and redeployed to Port Moresby as a support staff in the Operations Division. In his place a Mr. Jacob Kurap was appointed Acting Election Manager.

5. He was employed under a contract of employment signed on 6^th April 2016. In a letter dated 4^th October 2016 the First Defendant advised the Plaintiff that he had revoked his appointment. The letter read:

“You are hereby advised that your appointment as election Manager for Southern Highlands Province is revoked as of this date.

You are recalled to the PNG Electoral Commission headquarters as a support staff with Operations to assist in the election preparations and operations. Please hand the roles and responsibilities to Jacob Kurap who (sic) I have appointed as Acting Election Manager for Southern Highlands Province. The Provincial Administrator for Southern Highlands will witness the HOTO. Jacob Kurap is a staff of the Southern Highlands Provincial Administration.

Please report to the Director for Operation for your new duties and responsibilities.”

6. The First Defendant gave no reasons for revoking the Plaintiff’s appointment nor did he charge the Plaintiff for any disciplinary offence or breaching his contract of employment.

7. The Plaintiff was more or less left in the dark, so to speak and immediately the next day, 5^th October wrote a letter of appeal to the First Defendant and pointed, amongst other things, that he was the substantive holder of the position thus, could not be removed at will or on short notice, that he had overseen two previous elections in Southern Highlands Province without much trouble and that Mr.Kurap had not applied for the position.

8. He received no response to this letter although the First Defendant said that by the time the letter was brought to his notice, the Plaintiff had commenced these proceedings. The lack of response together with the lack of reasons left him to wonder why he was asked by the Electoral Commissioner on short notice to leave Southern Highlands Province and caused him to file these judicial review proceedings.

9. Meanwhile, Mr.Kurap was one of the unsuccessful applicants for the subject position in 2014 while working for Telikom (PNG) Limited. He then moved to Southern Highlands Provincial Administration as its legal officer when he was handed the job after the Plaintiff’s appointment was revoked.

Breach of Natural Justice

10. It was contended on behalf of the Plaintiff that he was not given the opportunity to be heard before his appointment was revoked by the First Defendant nor given reasons for revocation of his appointment. The actions of the First Defendant were in breach of the principles of natural justice under Section 59 of the Constitution and must be quashed.

11. It became apparent later that the Acting Provincial Administrator Mr. Joe Kaiyo had twice written to the First Defendant to request him to remove the Plaintiff as Election Manager. The first time was on 21^st March 2016 and the second, 20^th June 2016. This was, amongst other things, due to the Plaintiff’s lack of cooperation and attendance at Provincial Election Steering Committee meetings chaired by Mr.Kaiyo to prepare for the coming election and updating of common roll.

12. Even so, the Acting Provincial Administrator was not the Plaintiff’s superior and he was not obliged to report to him and that it was not for the First Defendant to act on the information supplied by the Acting Provincial Administrator to revoke his appointment without verifying it. Verification of the information is almost mandatory because the information revealed serious allegations of poor performance and impropriety against the Plaintiff and in all fairness to him, the First Defendant should have asked him to explain. That was not done.

13. It was contended for the First Defendant that the First Defendant had an overriding discretion to revoke the Plaintiff’s appointment in appropriate cases to meet operational requirements of the Electoral Commission hence he was not obliged to hear the Plaintiff before revoking his appointment or to give reasons for his decision. Reliance was placed on clause 16 of the contract of employment.

14. While the First Defendant may have assumed power to dealt with the issue of revocation/relocation of the Plaintiff in the way he did, it is equally important to note that it has been recognised in public law that the duty to give reasons forms part of the principles of natural justice.

15. Where there is a duty to give reasons, no reasons are given, it means there are no good reasons for the decision and the decision-maker or decision-making authority will have acted in excess of its jurisdiction. If there is no expressed duty, the duty is implied. Thus, the decision-maker or decision-making authority must give reasons for its decision. Ombudsman Commission v. Peter Yama (2004) SC747and Niggints v. Tokam[1993] PNGLR 66.

16. The position of Election Manager is not established under the Organic Law on National and Local-level Government Elections where a duty to give reasons may be mandatory. It is established under the administrative structure of the Electoral Commission office where there is no mention of a duty to give reasons.

17. However, I accept the Plaintiff’s submissions that the duty to give reasons may be implied by virtue of Section 59 of the Constitution because the position of Election Manager is within the staff structure of the Electoral Commission and the Plaintiff was the substantive holder of the position having being recruited in the open market.

18. Thus, based on the letter of 4^th October 2016 I find that the First Defendant failed to give reasons for revoking the Plaintiff’s appointment. The lack of it means that there were no good reasons for arriving at the subject decision.

19. This was not the end of the matter. It became apparent later that the Acting Provincial Administrator had requested the First Defendant to remove the Plaintiff as Election Manager as evident in his letters of 21^st March and 20^th June 2016. Quite apart from the credibility of the reasons he gave, I accept the Plaintiff’s submission that the Acting Provincial Administrator was not his superior and that he was not obliged to report to him.

20. The information supplied to the First Defendant raised serious allegations of poor performance and impropriety against the Plaintiff. Rules of natural justice required that they should have been put to the Plaintiff before a decision was taken.

21. The allegations raised matters of discipline and such were to be dealt with under the procedure set in clause 25 of the contract of employment which included a charge and response to the charge by the Plaintiff within seven days of being charged. Clause 25 reinforces the argument that the Plaintiff had a right to response or be heard before the decision was taken. This procedure was not complied with by the First Defendant and in my view, not only constituted a breach of contract but a denial of the Plaintiff’s right to natural justice under Section 59 of the Constitution.

22. This ground is upheld.

Unreasonableness

23. The information was pivotal to the decision by the First Defendant. However, it was irrelevant because the Plaintiff was not a staff of the Provincial Administration and further still, asked to respond to the allegations.

24. In relying on it, the First Defendant overlooked a number of matters favouring the Plaintiff. First was the Plaintiff’s long distinguished career and service as an electoral officer, secondly, his supervision of two previous elections without much trouble, thirdly, his family welfare and finally, inconvenience caused to him and his family in terms of relocating on short notice. This evidence was not refuted by the First Defendant and stands uncontroverted.

25. A further matter which was overlooked was the manner in which Mr.Kurap was appointed. He was appointed without applying for the position and this is regardless of an earlier application which was unsuccessful. Furthermore, it may be that his appointment was only to act on the position pending appointment of a permanent officer but as it has been revealed, the circumstances did not justify it. Another matter was that, there is no evidence of consultation with the Secretary of the Department of Personnel Management before the appointment was made.

26. Clause 16 of the contract of employment comes to the fore of the second ground of review where the question of reasonableness of the decision based on the case of Associated Provincial Picture House Ltd v. Wednesbury Corporation Ltd [1947] EWCA Civ 1; [1948] 1 KB 223 is alleged.

27. The First Defendant contended that this clause conferred on him power to relocate the Plaintiff on short notice and without reasons. This clause stated:

“The Election Manager’s Work Location shall be at the location of the Commission, and the Electoral Commissioner may require the Election Manager to relocate his or her place of work at such time as determined by the Electoral Commissioner, and the Election Manager shall comply with all instructions issued for this purpose.”

28. The First Defendant contended that the appointment of Plaintiff was not revoked but he was merely being relocated from Southern Highlands Province to Port Moresby in accordance with clause 16 and that it was a temporary measure until a permanent relocation is made as will be done for the other Election Managers around the country.

29. This was the first time the Plaintiff has heard of this. Further, there was no evidence that other Election Managers’ relocations were being processed through the same process as the Plaintiff. Even then, it was contradictory because the Plaintiff was also the Returning Officer for the Province and that his appointment has not been revoked.

30. I accept the Plaintiff’s submission that the decision was arrived at with no consideration to these matters. It was illogical and defies common sense when a decision-maker in the position of the First Defendant would over-look the Plaintiff’s outstanding career and service to the province, that his appointment as Returning Officer has not been revoked, his family welfare and inconvenience and revoke/ relocate him to Port Moresby on a temporary basis.

31. Further, I am not persuaded by the First Defendant’s submission that what he had done was consistent with his power under clause 16 of the contract of employment. What he should have done was before relocating the Plaintiff he must and should have ensured that the Plaintiff’s travel expenses are met, sufficient time given for the hand-over take-over, sufficient time for the Plaintiff and his family to repatriate and settling in the new location. These were relevant matters which were not taken into account. As a result, parties have ended up in this conflict.

32. Finally and interestingly, the Plaintiff has been relocated to Port Moresby as a support staff. It is unclear from the evidence whether the position is at the same level as the Election Manager with same remuneration and entitlements.

33. It is not for the Court to speculate but it was incumbent on the First Defendant and the Human Resource Manager to place evidence before the Court to show that the Plaintiff’s relocation was done in accordance with the operational requirements of the Commission and that he was not disadvantaged in terms of his earnings, entitlements and repatriation.

34. These matters have led me to conclude that the decision was unreasonable as no person in the position of the First Defendant would have arrived at such a decision. This ground is upheld.

35. The Plaintiff abandoned the third ground on ultra vires (breach of procedure) because it was not pleaded as a ground in the Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules and no leave was sought to rely on it at trial. It will not be considered.

Remedy

36. As to the question of remedy, the Plaintiff sought declaratory orders to void the decision and a further order for reinstatement.

37. It was submitted for the Plaintiff that there were no good grounds for revoking his appointment, that he has shown that he possessed the qualification and experience, that he supervised successful elections in the past such that he should continue to serve as Election Manager especially at this time where work was underway in updating the common roll for the coming election. On the other hand, change in the election head in the province will cause disruption to the work that is in progress.

38. In relation to the newly appointed Acting Election Manager, he lacked qualification and experience. He was hand-picked from the provincial administration by the First Defendant at the request of the Acting Provincial Administrator for no good reason.

39. The First Defendant did not rebut these submissions but urged the Court to refuse the orders sought by the Plaintiff. It was submitted that the appropriate remedy is in damages for breach of contract consistent with past decided cases such as John Kopil v. Malcolm Culligan & The State (1995) N1333 and Mathew Himsa & Anor v. Richard Sikani& The State (2002) N2307.

40. The question of remedy is discretionary. It is decided based on the particular circumstances of the case. If there are compelling reasons to order reinstatement, normally damages would not be awarded and vice versa.

41. I accept the submissions of the Plaintiff. The matters pointed out by the Plaintiff point to a case where there had been serious breaches of the substantive and procedural laws which are so flagrant and wilful, thus justifying a grant of orders sought by the Plaintiff: Hon, Peter O’Neil &Ors v. Joseph Klapat& PSC (2014) SC1385.

Order

42. The orders are:

1. The application for judicial review is upheld.

2. The decision of the First Defendant to revoke the appointment of the Plaintiff as Election Manager of Southern Highlands Province of 4^th October 2016 and replace him with Mr. Jacob Kurap is null and void, and of no effect.
3. The decision of the First Defendant to revoke the appointment of the Plaintiff as Election Manager of Southern Highlands Province of 4^th October 2016 and replace him with Mr. Jacob Kurap is brought into the Court and quashed.
4. The Defendants shall reinstate the Plaintiff to the position of Election Manager of Southern Highlands Province forthwith.

5. Costs of the application shall follow the event.

______________________________________________________
Kawat Lawyers: Lawyers for Plaintiff
Kimbu& Associates Lawyers: Lawyers for First Defendant