Ragi v Kereme [2018] PGNC 291; N7377 (29 May 2018)

N7377

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 215 OF 2018

BETWEEN:
EVELYN RAGI
Plaintiff

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

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu J.
2018: 29 May

JUDICIAL REVIEW – Application for leave for judicial review – Public Services Management Act, 2014; s.18 (6) (a) – Requirement for Public Services Commission to review a decision upon a complaint – Public Services Commission to deliver its decision within 90 days – Power of the Public Services Commission to extend the period.

JUDICIAL REVIEW – Application for leave for judicial review – Public Services Management Act, 2014; s.18 (6) (a) – Complaint on a personnel matter – Power of the Public Services Commission to review a personnel matter – Exhaustion of administrative remedy - Presumption of regularity.

JUDICIAL REVIEW – Application for leave for judicial review - Public Services Management Act; s. 18 (6) (b) - Review of a decision upon a complaint by the Public Services Commission an administrative remedy – Administrative remedy not exhausted – Prerogative writs – Writ of mandamus sought against the PSC – Application refused.

Cases Cited:
Papua New Guinea Cases

Betty Palaso as Commissioner General of Internal Revenue Commission v.
Philip Kereme as Chairman of Public Services Commission and Ors (2016)
N6638
Innovest Ltd v. Hon. Patrick Pruaitch and The State (2014) N5949
Kekdo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Overseas Cases:

R v. Chief Constable of Merseyside Police , ex p. Calveley [1986] Q.B 424; [1986] 1 All ER 257
R v. Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All ER 257

Counsel:

JC Nidue, for the plaintiff
R. Uare, for the State

29^th May, 2018

1. GAVARA-NANU J: The plaintiff seeks leave for judicial review to seek mandamus to compel the Public Services Commission (PSC) to deliver its decision on her application for review of her dismissal from her employment with the Department of Police.

2. The plaintiff was employed by the Department of Police as Payroll Team Leader. She was dismissed from her employment on 27 April, 2017, by the Police Commissioner. On 27 November, 2017, the plaintiff applied to the Police review tribunal to review her dismissal. On 20 December, 2017, the review tribunal through the Police Commissioner affirmed the dismissal.

3. On 16 February, 2018, the plaintiff applied to the PSC seeking review of her dismissal.

4. In this application the plaintiff claims the PSC failed to make a decision on her complaint within 90 days from the date it (PSC) received her complaint as required under s. 18 (6) (a) of the Public Services (Management) Act 2014.

5. It is not disputed that the PSC has not made a decision yet. However, it is important to note that the plaintiff herself has not enquired with the PSC why it has not delivered its decision within the 90 day period. This is the determinative issue the plaintiff should resolve first. A review of a decision by the PSC upon a complaint under s. 18 of the Public Services Management Act, constitutes an administrative remedy which must be exhausted first by a plaintiff before seeking leave for judicial review. At this stage the plaintiff has not exhausted that administrative remedy.

6. In my view, it is of fundamental importance to note that s. 18 (6) (a) has two legs. Under the first leg, the PSC is required to give its decision on its review of a decision within 90 days from the date it received the complaint. Under the second leg, the 90 day period may be extended by the PSC where the reason for the delay in giving its decision within 90 days is beyond its control. A judicial determination has been made by this Court regarding the second leg, in Betty Palaso as Commissioner General of Internal Revenue Commission and Ors (2016) N6638. In that case, the Court held that if the officer of the PSC who is in-charge of a case found that there would be delay in the PSC giving its decision on its review of a decision within the required 90 day period, and the reason for such delay was beyond its (PSC) control, the officer may seek an extension of the 90 day period from the PSC. If an extension was granted, the PSC could still validly give its decision outside the 90 day period. This would be an internal administrative arrangement within the PSC itself, and the extension would be part of the administrative remedy provided by the PSC.

7. Section 18 (6) (a) appears under PART III of the Act, it is headed — REVIEW OF PERSONNEL MATTERS, and is in these terms:

18. REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE.

(6) The decision of the Commission under Subsection (5)(b) —

(a) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission;

8. In this instance, there is no evidence before the Court whether the PSC has extended the 90 day period for it to make a decision regarding the plaintiff’s complaint. The plaintiff should have verified this with the PSC before seeking leave for judicial review. In the circumstances, it is plain that the plaintiff has not exhausted the administrative remedy provided by the PSC, which is a requirement for leave to be granted for judicial review. The plaintiff is prohibited from seeking leave for judicial review, if she has not exhausted that administrative remedy: Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122. See also, R v. Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All ER 257 at 262. This administrative remedy is mandatory because it is a constitutional function of the PSC and thus it cannot be dispensed with. It is unlike other administrative remedies provided by ordinary bodies. In the latter cases, the Court may under very exceptional circumstances decide in the exercise of its inherent supervisory powers to entertain an application for leave, despite an administrative remedy not being exhausted: Innovest Ltd –v Hon. Patrick Pruaitch and The State (2014) N5949. See also, R v. Chief Constable of Merseyside Police, ex p. Calveley [1986] Q.B 424; [1986] 1 All ER 257.

9. I should mention another matter which in my view is significant. Counsel for the State in his reply to the plaintiff’s application for leave told the Court that the State neither opposed nor conceded the application. When the Court asked counsel what his instructions from the PSC were regarding the requirements under the two legs of s. 18 (6) (a), especially the latter, he told the Court that he had not obtained any instructions from the PSC because he was not the lawyer having carriage of the case for the State. He said he was standing in for the lawyer who had carriage of the case but had not turned up in Court. Whilst I can appreciate that counsel meant well in trying to assist the Court deal with the application, the proper thing for him to do was to inform the Court at the outset when the case was called that he was only standing in for the lawyer having carriage of the case and then should have sought an adjournment. He should not have held himself out as the lawyer having carriage of the case for the State.

10. That said, as counsel for the plaintiff has made his client’s application for leave for judicial review, the Court is obligated to rule on the application.

11. Having considered the application, I have for the reasons given decided that the application should be dismissed.

12. The application is therefore dismissed with costs.

___________________________________________________________
Nidue & Associates Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants