N7549
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 345 of 2016

BETWEEN:
ILAIAH BEGILALE
Plaintiff

AND:
DR ANDREW MOUTU,
Director of National Museum and Art Gallery
First Defendant

AND:
NATIONAL MUSEUM AND ART GALLERY
Second Defendant

Waigani:    Thomson, J
2018:	   23rd October, 2nd November

NATIONAL MUSEUM AND ART GALLERY ACT – Disciplinary Decision by Director –Whether or not Public Service Commission had power to review under Section 18 of the Public Services (Management) Act – Whether NMAG is National Public Service or other State Service or governmental body – Whether PSC decision complied with Section 18 (3) (d) of PSM Act – Whether PSC decision became binding after 30 days.

Counsel:

Mr. N Kopunye, for the Plaintiff
Mr. J Aku, for the First and Second Defendants

2nd November, 2018

1.	Thompson J:	The Plaintiff had been employed by the Defendants until his employment was terminated by the First Defendant on 15 July 2013.  The Plaintiff made a complaint to the Public Service Commission on 19 September 2013, and on 5 June 2015 the PSC gave a decision annulling the First Defendant’s decision and ordering his reinstatement and payment of all entitlements.

2.	The PSC decision did not state that the prescribed period for making the decision had been extended where the reason for delay was beyond the control of the PSC.  The decision stated that it became binding after a period of 30 days.  

3.	The Defendants refused to comply with the PSC decision.
Relevant Law
4.	Under Section 188 (1) of the Constitution, the National Public Service is one of four establishments which constitute the State Services.  Under Section 188 (2), Acts of the Parliament may make provisions for and in respect of other State Services, in addition to the four listed in Section 188 (1). 

5.	Under Section 191 of the Constitution and Section 18 of the Public Services (Management) Act, 1995 (“the PSM Act”), the Public Service Commission (“PSC”) has jurisdiction to review personnel matters for officers in the Public Service who have complaints about disciplinary matters connected with the National Public Service, or other State Services or other governmental bodies prescribed by an Act of Parliament.   Accordingly, in respect of a review of a personnel matter by officers in other State Services or governmental bodies, then the PSM Act or any other Act which establishes the State Service under which the employee or officer is employed, must expressly provide for the PSC to assume jurisdiction. 
  
6.	A body established by an Act, such as the National Museum and Art Gallery established under the National Museum Art Gallery Act 1992, may come under either the National Public Service or other State Services, or governmental bodies.  If it does not come under either of those Services, the body may simply be a corporate entity which is removed from the general public service establishment.  

7.	In the case of National Agriculture Quarantine and Inspection Authority v. Jerry Tetaga and Ors (2009) PGNC 220, the Chief Justice considered the different Services.   He found that the NAQIA was neither the National Public Service nor another State Service.  It was simply a corporate entity which was removed from the general public service establishment.    

8.	There were by-laws made under the NAQIA Act which provided for disciplinary procedures and for an appeal from a disciplinary decision to the NAQIA Board.

9.	The NAQIA Act did not expressly provide for the PSC to assume jurisdiction, and so the PSC had no jurisdiction to review disciplinary decisions.

10.	It is useful to compare the relevant provisions of the National Agriculture Quarantine and Inspection Authority Act with the relevant provisions of the National Museum and Art Gallery Act. 
 
Relevant Sections of NAQIA Act	Relevant Sections of NMAG Act	

Section 20 (1) -  There shall be a Managing Director  of the Authority whose manner of appointment, suspension and dismissal are as specified in the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004.	
Section 20 (1) – There shall be a Director of the Museum  who:

(a)	(a) shall be appointed, suspended or dismissed in the manner as is specified in the Regulatory Statutory Authorities  (Appointment to Certain Officers) Act, and (2) (b) is the head of the Staff of the Museum.	

Section 20 (3) – Subject to the Salaries and Conditions Monitoring Committee Act, the terms and conditions of appointment of the Managing Director are as determined by the Board.	

Section 23 (1) -  The Board may appoint to be officers of the Authority such persons it considers fit and necessary  …..	
Section 22  (1) – The Director may appoint to the officers and employees of the Museum such persons as he considers necessary …

Section  22 (2) – Officers appointed under  this Section constitute the staff of the  Museum.	

Section 23 (2) -  Subject to the Salaries and Conditions Monitoring Committee  Act, the terms and conditions of appointment of officers of the Authority are as determined by the Board  in accordance with this Act.  	

Section 24 (1) – The  Managing Director may … appoint such temporary and casual employees as are necessary …	
Section 23 (1) – The Director … may appoint such temporary and casual employees as he thinks necessary  …

Section 24 (2) – Employees appointed under Sub Section 1 shall be on such terms and conditions as the Board determines.	
Section 23 (2)  - Officers or employees appointed under Section 22 and Section 23 (1) hold office on such terms and conditions as are provided for under the Public Services (Management) Act.

Section 24 – The Public Finances (Management) Act  applies to and in relation to the Trustees …	
Section 26 – The Managing Director and every other officer of the Service (other than temporary or casual employees) shall be employed under a contract of employment. 		

Section 28 (1) – The Board may make by-laws   … for …  (a)  the management … and discipline of the  Authority, and … (c) the … terms and conditions of  employment of officers  and other staff of the Authority and … (e)  the … manner of appointment and dismissal of members  of the … staff of the Authority.		

11.	The factors which distinguish the present  case from the NAQIA case, are:   

a)	The NMAG is not set up as a corporate entity, just as a Museum, although it is administered by a corporate entity comprised of the Trustees.

b)	The NMAG Act does not include any disciplinary procedures, or make any provision for appeal against a disciplinary decision.

c)	The NMAG Act expressly provides that officers and employees appointed by the Director,  hold office on the terms and conditions which are provided  under the PSM Act, whereas officers appointed under the NAQIA Act  are appointed on the terms and conditions determined by the Board.  

d)	Under the NAQIA Act, all officers are employed under contracts, whereas under the NAMG Act, there is no reference to contracts for officers.   Instead, the Act provides that officers hold office on the terms and conditions provided under the PSM Act. 

12.	There are other Acts with similar provisions, which have been considered by the Courts.

National Aids Council Act 1997	Parliamentary Service Act	
Section 21 - There shall be a Director of the Council who is … (2) (a) appointed … or dismissed in the manner as is specified in the Regulatory Statutory Authorities (Appointment to Certain Officers) Act.	Section 14 (2) - An officer shall hold office on terms and conditions (as determined by the Speaker on a recommendation of a Clerk).

Section 22 – The Director may appoint to be employees of the Council such other persons as the Council considers necessary … 	
Section 28 (1) – An officer who … commits a disciplinary offence under this Act … is liable to be dealt with under this Part.	

Section 23 (1) – The Director and every employee of the Council shall be employed under a contract  of employment …	
Section 30 (7) – Where the Clerk .. is of the opinion that the charge has been sustained, he may … (e) recommend to the Speaker that the officer be dismissed from the Service.	

Section 23 (2) -  Subject to the … Salaries Conditions Monitoring Committee Act, the Council shall determine the terms and conditions of employment of the Director and other employees … 	
Section 33 (1)  -   The Public Service Commission shall review a personnel matter connected with the Service following a complaint by an officer of the Service.

Section 33 (2) - The Commission shall  … (c) recommend the confirmation .. or revocation of the decision … to the Clerk.	

13.	In Bob Kaupa v Kala Aufa & Ors (2015) PGNC 262, the Court considered a review of the Clerk of the Parliament’s decision to refuse to comply with the PSC decision annulling the earlier decision to dismiss the Plaintiff.  The Court found that the Parliamentary Service Act did grant qualified jurisdiction to the PSC to review a disciplinary decision.  However, the review was to be conducted under the Parliamentary Service Act, not under Section 18 of the PSM Act, and   under Section 33 of the Parliamentary Service Act, the PSC could only make a recommendation to the Clerk, and so the PSC decision was not binding.  The Clerk was therefore not bound to comply with the PSC decision to annul the dismissal.
 
14.	In Peter Bire & Ors v Philip Kereme and Ors (2016) PGNC 93, the Court found that “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.   … There being no such provision in the NAC Act, the PSC had no power to review the matter”.

Application of Law 
15.	In the present case, Section 23 (2) of the NMAG Act contains an express provision that officers are employed on the terms and conditions provided in the PSM Act.  The issue is whether or not this amounts to an express provision conferring power on the PSC to review personnel matters.   

16.	The PSC could undertake such a review if Section 18 of the PSM Act applied to the NMAG.  

17.	Section 18 of the PSM Act applies to a complaint made by an officer for review of a decision on a personnel matter relating to discipline connected with the National Public Service.  Following the definitions of “officer” in the PSM Act and “National Public Service” in the Constitution, this section means that an officer in the Public Service can make a complaint to the PSC who can review a decision on a personnel matter relating to discipline connected with the National Public Service and State Services, and the Services of other governmental bodies as are prescribed by an Act of Parliament.

18.	The issue then becomes whether or not the NMAG disciplinary decision is connected with the National Public Service or other State Service or the service of a governmental body as prescribed by the NMAG Act.

19.	Following the same approach taken by Injia CJ in the NAQIA case, in the absence of any express provision in the NMAG Act as can be found in the PSM Act, it is unsafe to find that the NMAG comes under the National Public Service referred to in Section 191 of the Constitution.  In the absence of any express reference to the State Service, it is also unsafe to find that it is a State Service under Section 191 of the Constitution.

20.	This leaves the question of whether or not the NMAG is a governmental body as prescribed by an Act of Parliament.

21.	The NMAG Act does not contain any disciplinary procedures which are required to be followed, or provide for any review of disciplinary decisions by either the Director or the Trustees. 
 
22.	The NMAG Act does not contain provisions which confer corporate entity status and which remove any doubt that the officers are corporate staff whose engagement, terms and conditions of employment and discipline and the staff organizational machinery that goes with it, are placed in the hands of the NMAG Director in a way which would show that the Trustees or Director are removed from the general public service establishment.   

23.	There are no provisions in the NMAG Act that officers or employees appointed by the Director are to be employed on terms and conditions as determined by the Director or Trustees, or that they are corporate staff who shall be employed under contracts of employment.

24.	On the contrary, Section 23 (2) of the NMAG Act provides that officers or employees appointed by the Director hold office on the terms and conditions provided under the PSM Act.  

25.	For these reasons, I am of the view that the NMAG is a governmental body as prescribed by an Act of the Parliament, namely, the NMAG Act.   Pursuant to Section 191 of the Constitution, it follows that the PSC is responsible for the services of the NMAG as prescribed by the NMAG Act.

26.	The NMAG Act prescribes that officers appointed by the Director hold office on the terms and conditions provided in the PSM Act.

27.	One of the terms and conditions provided under the PSM Act is the jurisdiction given to the PSC under Section 18, to review disciplinary decisions.

28.	I therefore find that the PSC has jurisdiction under Section 18 of the PSM Act to review disciplinary decisions made by the Director of the NMAG. 
 
Consideration of PSC decision
29.	Having found that the PSC had jurisdiction to review the Defendant’s disciplinary decision to terminate the Plaintiff, it is next necessary to consider the decision which was made by the PSC.

30.	Section 18 prescribes, inter alia, that the officer’s complaint has to be made to the PSC within 60 days, the PSC must consider all the facts including the views of the persons summoned to appear and the costs implications of any decision, and the PSC must make the decision within 90 days of receipt of the complaint.  The decision is binding after 30 days from the date of notification of the date of decision (see Francis Damen v Jerry Tetaga (2005) N2900 and Robin Sam v Peter Tsiamalili & Anor (2006) PGNC 64).

31.	Cases such as Ambrose Vakinop v Thaddeus  Kambanei  & Ors  (2004) N3094  and Holle v Vegogo  (2013) N5101, have considered the effect of  the 30 day provision, and concluded that once the PSC decision had been made, it is binding unless a dissatisfied party seeks judicial review of the decision. 

32.	There is little authority on the issue of whether or not the application for judicial review must be commenced within the 30 day period.    In the case of Francis Damen, The Attorney General v Jerry Tetaga & Ors (2005) PGNC 57, Injia DCJ as he then was, considered this issue, and rejected the argument that an application for judicial review had to be brought within the 30 day period.   He found that it was not “… open to read into the provisions of Section 18 (3) (d) (ii) the interpretation advanced … To do so would in effect be to insert a new provision in Section 18 (3) (d) (ii) which does not exist.  This Court has no power to do that.   …  It follows that the decision of the PSC is open to challenge in the National Court by a Secretary of a Department aggrieved by its decision, either within or after the 30 days, under the judicial review procedure…”.

33.	I respectfully adopt these views, and find that while Section 18 (3) (d) (ii) provides that the PSC decision is binding after 30 days, it is still open to challenge by way of judicial review, commenced within or after the 30 day period. 
34.	The Defendants were therefore entitled not to accept the PSC decision, and to challenge it by way of judicial review. The Court could then review the PSC decision and determine if all the procedures were correctly followed in reaching that decision, and if appropriate, quash the decision. 

Relief
35.	However, that is not in fact what has happened here.  The Defendants did not apply by way of judicial review to review the PSC decision.  They simply refused to comply with it.  As a result, the Plaintiff issued these judicial review proceedings to enforce the PSC decision by way of mandamus.   It is therefore necessary to next consider whether or not the PSC decision should be enforced.  
 
36.	Relief by way of judicial review including certiorari or mandamus, is completely discretionary, although of course the discretion must be exercised judicially.   In the present case, the Plaintiff has shown that there was a PSC decision in his favour, which stated that it became binding after 30 days, and it was not challenged by the Defendants by way of judicial review. The Plaintiff therefore seeks relief by way of mandamus to compel the Defendants to comply with the decision.

37.	The Courts have considered the binding nature of a PSC decision under Section  18 (3) (d) (ii) – See Allan Pinggal  v Margaret Elias and Ors  (2005) PGNC 107 and James Amuna v Rapilla Manase & Ors (2015) PGNC 163.  Because a PSC decision has serious policy, legal and administrative implications and consequences, the PSC decision-making process is carefully worded and expressed in clear and mandatory terms.  When an error of law is found to have been committed, the decision should be quashed.  

38.	Applying that principle to the present case, if an error of law is found to have been committed by the PSC in reaching its decision, the PSC has breached a mandatory requirement.  However, this Court cannot quash the decision because it is not the subject of this review proceeding. The Court is nevertheless entitled to take the error into account when exercising its discretion whether or not to grant relief compelling compliance with the decision.  

39.	In James Amuna’s case, the Court found that the PSC decision was made outside the 90 day period, that was an error of law, and so the decision was not binding and enforceable.  The Court referred to the exception provided by Section 18 (3) (d) (i) where the decision can be made later where the reason for the delay is beyond the control of the PSC.  The Court held that the PSC must provide evidence of the reason why the decision could not be made in 90 days.  The Court went further and found that the evidence – of the reason why the decision could not be made in 90 days – must be before the Court, and should also be stated in the PSC decision.    As neither of those matters had been done, the Court found that the PSC decision was not binding.

40.	In view of the importance attached to the binding nature of a PSC decision, I agree with the finding that the PSC must provide evidence of the reasons why a decision could not be made within 90 days and those reasons were beyond the PSC’s control.  As a PSC decision is prima facie invalid if it is made outside the 90 days period, I also agree with the finding that the fact that an extension was granted, and the reasons for the extension, must be included in the decision.  

41.	In the present case, the PSC decision was given on 5 June 2015, almost two years after the Plaintiff had lodged his application for review.  The Decision did not state that an extension of time had been granted.  The Plaintiff did not call any evidence from the PSC to show that an extension had been granted or the reasons for an extension.

42.	The Plaintiff did tender an affidavit from one of his lawyers, which was objected to by the Defendants.  The affidavit annexed a letter written by the lawyer to the PSC asking if it had granted an extension, and a letter from the PSC saying that an extension had been granted and attaching a copy of the document which was said to show that the extension had been granted.  The attachment was a Minute from the office of the Director of the PSC dated 10 February 2015, attaching six files including the Plaintiff’s file, and requesting extensions for all of them.  No reasons were given to show that the files had been unable to be dealt with for reasons beyond the PSC’s control.  It was merely noted that the files were from 2013 and were still outstanding, and as there were no monthly meetings scheduled, the PSC was asked to deal with them on a round-robin basis.  The Minutes has various hand written notes on it, only two of which seem to be agreeing to an extension.
 
43.	The objection to the use of the affidavit was upheld, as the letter from the PSC was being used not simply to show that it was received by the deponent, it was being used to show the truth of the contents of the letter.  Unless the author of the letter had given evidence by affidavit or otherwise, the contents of his letter were hearsay.  However, even if the letter had been admitted into evidence, it is doubtful that it would have been sufficient to show that the delay was due to reasons beyond the PSC’s control and that an extension had been granted. 
 
44.	The position therefore remained that there was no evidence that an extension of time had been granted by the PSC for reasons beyond the PSC’s control, and the decision contained no statement to that effect.  

45.	 As the decision was made outside the 90 day period, with no evidence of an extension, the decision was made ultra vires Section 18 (3) (d) (i) of the Act, and could not take effect.  

Conclusion

46.	The Plaintiff’s Grounds for Review of the Defendants decision not to comply with the PSC decision, are based on the validity and binding nature of the PSC decision.  

47.	The Defendants have shown that the PSC decision was not validly made, and so did not become binding.  

48.	The Plaintiff has therefore failed to establish his Grounds for Review.   As the PSC decision given on 5 June 2015 is not valid, the Defendants original decision to terminate the Plaintiff made on 15 July 2013, remains in effect.   

Costs

49.	In relation to costs, the Defendants have submitted that the Plaintiff should pay their costs because the Plaintiff refused to withdraw the proceedings, thereby forcing the matter to come to trial.  However, the basis for the Plaintiff’s Review was not frivolous or vexatious or an abuse of process, there was a serious issue to be tried, and the points in issue between the parties are not clear cut, with no binding Supreme Court decisions on those points.

50.	Furthermore, the Plaintiff would not have had to issue the proceedings at all if the Defendants had proceeded properly in the first place.  When the PSC decision was delivered and the Defendants formed the view that it was not valid, they should have challenged the decision by issuing proceedings for judicial review.  Instead, they ignored that decision for a year, until the Plaintiff was forced to bring these proceedings   in order to resolve the position.
  
51.	As the Plaintiff has not been successful, ordinarily costs would follow the event.  However, costs are always a matter for the Court’s discretion.  In circumstances where a terminated employee has had to incur the expense of issuing legal proceedings to enforce a decision against a governmental body which had not challenged that decision in any proceedings, I consider it reasonable for the Defendants to pay the Plaintiff’s costs. 
 
52.	I therefore make the following orders:

1.	The Plaintiff’s application for judicial review by way of a Declaration and mandamus of the Defendants’ decision not to comply with the PSC decision of 5 June 2015, is refused.

2.	The Defendants are to pay the Plaintiff’s costs on a party/party basis, to be taxed if not agreed.  

Kopunye Lawyers : Lawyers for the Plaintiff    
Manase and Company Lawyers: Lawyers for the First and Second Defendants