Ila'ava v O'Neil [2018] PGNC 441; N7548 (24 October 2018)

N7548

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 364 of 2018

BETWEEN:
DR VELE PAT ILA’AVA
Plaintiff

AND:
HON. PETER O’NEIL IN HIS CAPACITY AS THE PRIME MINISTER AND THE CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:
HON. BENNY ALLAN, IN HIS CAPACITY AS THE MINISTER FOR AGRICULTURE AND LIVESTOCK
Third Defendant

AND:
HON. ELIAS KAVAPORE, IN HIS CAPACITY
AS MINISTER FOR PUBLIC SERVICE
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Thomson, J
2018: 19^th October - 24^th October

JUDICIAL REVIEW – Reappointment of incumbent office holder – Sections 6 and 7 of the (Public Services Management) (Employment of Departmental Heads) Regulation 2014 – Even though error found, the case for a remedy is in the Court’s discretion – Whether or not any purpose would be served by remedy – Whether or not error can be rectified – Whether or not it would be futile to grant a remedy.

Counsel:

Mr A Serowa, for the Plaintiff
Mr E Bua, for the First, Second, Third, Fourth & Fifth Defendants

24^th October, 2018

1. THOMPSON, J: This is the hearing of the Plaintiff’s substantive application for Judicial Review.
   
2. The decision that is the subject of the Review, is the decision of the Second Defendant dated 29 March 2018, by which the NEC directed the Acting Secretary for the Department of Personnel Management to immediately advertise the position in the open market.
   

Background

3. The Plaintiff had been appointed as Secretary of the Department of Agriculture and Livestock on 27 June 2014, on a contract of employment for a term of four years.
   
4. Pursuant to Section 6 and 7 of the Public Services (Management) (Employment of Departmental Heads) Regulation 2014, a substantive office holder who, prior to declaration of a vacancy, states their willingness to continue in that office, shall have his performance appraised as per the Regulation, (which requirements for performance appraisal are set out in Sections 22 – 26 of the Regulation) and the Ministerial Executive Appointments Committee (“MEAC”) shall recommend to the NEC to determine whether to reappoint that person without advertisement of the position.
   
5. If this occurs, the NEC shall not introduce new candidates into the appointment process, but may at its sole discretion, reject the MEAC recommendation and direct that the position be re-advertised in order to conduct a merit-based selection process.
   
6. Under Section 7 (1), the Secretary shall inform the incumbent Departmental Head not less than 6 months prior to expiry of the appointment, and ask him to state in writing if he wishes to be considered for reappointment, subject to receipt of satisfactory Performance Appraisals. The incumbent shall respond within 14 days, shall state if he wishes to be reappointed, and shall submit satisfactory Performance Appraisal Reports to support the application. The Secretary consults with the Chief Secretary and the Minister, and provides a brief to the MEAC. If the MEAC recommends the incumbent for reappointment, the Secretary shall prepare a submission to the NEC describing the incumbent’s performance record over the period of the contract. Where the NEC determines not to reappoint, the Secretary shall advertise the position.
   
7. Pursuant to Section 26, six months prior to end of the Departmental Heads’ appointment, the Senior Executive Service shall assemble not less than two Performance Appraisal Forms. The Secretary shall provide a report to the MEAC signed by the Minister, to recommend whether or not to reappoint the Departmental Head.
   
8. By a letter dated 16 January 2018 which the Plaintiff says that he received on 23 January 2018, the Acting Secretary of the Department of Personnel Management informed the Plaintiff that his contract would expire on 26 June 2018, asked him to state in writing if he wished to be considered for reappointment subject to receipt of satisfactory performance appraisals in accordance with Section 7, and said that his intention to be considered for reappointment must reach the Office of the Secretary for the Department of Personnel Management together with the satisfactory Performance Appraisals within 14 days.
   
9. On 29 January 2018 the Plaintiff wrote to the Acting Secretary acknowledging receipt of the letter, saying that in his view his response had to reach the Acting Secretary’s office by 7 February 2018, and asked for an extension of time. He did not make any objection to the date of the Acting Secretary’s letter.
   
10. On 12 February 2018, the Plaintiff wrote a letter to the Minister for Agriculture and Livestock in which he informed the Minister of his wish to renew his contract and submitted what he called a Performance Assessment Report prepared by himself. There was no evidence showing if this letter was received by the Acting Secretary of the DPM, as required by Section 7 (2).
    
11. On or about 26 February 2018 the Plaintiff was arrested and charged with 20 counts of official corruption and abuse of office.
    
12. On 22 March 2018, the Minister for Public Service submitted a Statutory Business Paper to the NEC supported by a MEAC resolution, confirmation of arrest letter from the Police, and other documents. In the Paper, the Minister stated that the Plaintiff had been arrested and charged, that he had commenced the process of disciplinary action against the Plaintiff which was continuing, that the Plaintiff’s performance had not been assessed at all during his contract period, and recommended that the Plaintiff’s employment be terminated.
    
13. At its meeting on 29 March 2018, subsequently recorded in a Decision dated 4 April 2018, the NEC noted the contents of the Paper, rejected the recommendation for termination, directed that the plaintiff be allowed to serve out his contract, and directed the Acting Secretary for the DPM to immediately advertise the position.
    
14. On 30 May 2018, the position was advertised. The Plaintiff did not apply for the position.
    
15. On 1 June 2018, the Plaintiff filed these proceedings, seeking Judicial Review of that NEC decision.
    
16. On 13 June 2018, the Plaintiff was given leave to proceed by way of judicial review.
    
17. On or about 26 June 2018, the Plaintiff’s contract expired.
    
18. On 27 June 2018, the Defendants appointed another person as Acting Secretary of the Department of Agriculture and Livestock for a period of three months or until a substantive appointment was made, whichever occurred first.
    
19. On 22 August 2018, the Plaintiff was granted an interim injunction restraining the Defendants from making a substantive appointment to the position, pending the determination of these proceedings.

Required Procedures

20. Under the Regulations, the Plaintiff and the Defendants were required to produce Annual Performance Appraisals throughout the term of a contract. The Defendants proceeded on the basis that no Appraisals had ever been prepared. The Plaintiff also initially proceeded on the basis that Appraisals had never been prepared, and in June 2018 he sought Relief in his statement for mandamus compelling the Defendants to conduct an Appraisal. After the Defendants served an affidavit on 26 September 2018 by the Minister, annexing documents showing that annual Appraisals had never been provided, the Plaintiff advised his lawyer that he had contacted the former Minister and would provide evidence, and on 15 October 2018, he served a further affidavit annexing two documents which he said were his Performance Appraisals sent by the former Minister in 2016 and 2017.
    
21. In paragraph 10 of his affidavit of 29 May 2018, the Plaintiff had said that on 12 February 2018, he supported his written wish for contract renewal with a “Performance Assessment Report from 2012 to 2017”. The document which he attached to his letter was not a Performance Appraisal Report. It was merely a statement prepared by himself in 2018. It was not a ocument in the form of the Reports annexed to his later affidavit of 15 October 2018 which were described as “Schedule 1 Matrix Key Result Areas and Performance Commitments” apparently signed by the former Minister in 2016 and 2017.
    
22. These annexed documents were in conflict with the earlier documents, including the affidavit of Elias Kapavore of 21 September 2018 in which the Minister for Public Service and Chairperson of the MEAC stated that he had not received any Performance Appraisals from the Plaintiff and that the DPM records showed that no Appraisals had ever been received during the four year period of the contract.
    
23. The two documents annexed to the Plaintiff’s affidavit of 15 October 2018 were not signed by the Chief Secretary, Secretary for Treasury and Secretary for Personnel Management as required by Section 24 of the Regulation.
    
24. Accordingly, even if it is accepted that the two annexed documents were sent by the former Minister in 2016 and 2017, the fact remains that they were not Appraisals in the form required by the Regulation.
    

Breaches of Procedures

25. Several breaches of the procedures prescribed by the Regulation have been identified.
    
26. Under Section 7 (1), the Defendants were obliged to inform the Plaintiff not less than 6 months prior to expiry of his contract, and request him to state in writing if he wished to be considered for reappointment.
    
27. The Plaintiff’s contract was due to expire in June 2018. However, the Defendants’ letter informing him and requesting his intention, was sent only five, and not six months prior to the contract expiry.
    
28. Under Section 7 (2), the Plaintiff had to respond within 14 days, stating if he wished to be reappointed, and had to submit satisfactory Performance Appraisal Reports as prescribed by the Regulations.
    
29. The Plaintiff did not state his wish to be reappointed until 12 February 2018, more than 14 days after receipt of the Defendants letter, did not submit satisfactory or any Performance Appraisal Reports with his letter, and did not show that he had responded to the Acting Secretary as required.
    
30. On the basis that there had been no renewal, the position became vacant under Section 8, and had to be advertised. The provisions of Section 7 (3) – (5) did not become activated.
    
31. If activated by compliance with Section 7 (2), then under Section 7 (3), the Secretary had to provide a brief to the MEAC no later than 4 months prior to expiry of the contract. Under Section 7 (4), if the MEAC then decided to recommend the incumbent for reappointment, the Secretary had to prepare a submission to the NEC no later than 3 months prior to expiry of the contract. Under Section 7(5), if the NEC decided not to reappoint, the position must be advertised.
    
32. It is unclear from the documents if a brief was provided to the MEAC, as a result of which the MEAC decided not to reappoint, by way of a MEAC resolution. If so, there would then have been no requirement for the Secretary to prepare a submission to the NEC. It is unclear if Section 7 (3) was breached. The evidence was that the MEAC resolution and a Statutory Business Paper signed by the Minister were submitted to the NEC, recommending the termination of the Plaintiff’s contract. Either a brief was not prepared, or it was prepared and the MEAC decided not to recommend reappointment.
    
33. The NEC rejected the recommendation to terminate, and decided to allow the Plaintiff to continue in employment until the expiry of his contract, and to advertise the position. It is only the part of the decision relating to advertising the position, that is the subject of this Review.
    
34. The Plaintiff has not shown that he was prejudiced by being given five instead of six months notice. He did not make any objection to the lesser time. He was still given the opportunity to inform of his wish for reappointment, and he did so.
    
35. In relation to the breach of Section 7 (2), the Defendants say that because the Plaintiff did not submit the Appraisals either in the required time or at all, he could not have made a valid wish to be reappointed.
    
36. There is no evidence that there were in fact any Appraisals to be submitted. There is contradictory evidence on the existence of the minimum two required Appraisals, but it is not disputed that the two documents produced by the Plaintiff were not signed in accordance with Section 24 (1) of the Regulation. They were therefore not valid Appraisals. Both the Plaintiff and the Defendants were required under the Regulations and various Circular Instructions to prepare Appraisals annually, and it seems that all parties failed to comply with those obligations.
    
37. The Plaintiff has shown that there was an error by the Defendants in the procedures for the reappointment process, namely, the breach of Section 7 (1).
    
38. The Defendants have shown that there was also an error by the Plaintiff in the procedures, namely, a breach of Section 7 (2). First, there is no evidence that the Defendants had in fact received the Plaintiff’s letter informing of his wish to be reappointed. It appears from the affidavit of Elias Kapavore that the MEAC resolution and the Statutory Business Paper were prepared for the NEC in response to the criminal charges against the Plaintiff, and not in response to a wish for reappointment. If the Plaintiff had not complied with Section 7 (2) by giving the required response to Acting Secretary, then none of the subsequent requirements in Section 7 (3) – (5) were activated. Secondly, even if the Plaintiff’s letter had been received by the Acting Secretary, and even if it had been received in time, it was not supported by the required Performance Appraisals.
    
39. In fact, it has been subsequently shown that there were no duly signed Appraisals, so they could not ever have been submitted by the Plaintiff in support of his wish for reappointment, and he could not ever have complied with Section 7 (2).
    

Grounds

40. I refer next to each of the Grounds for Review in the Statement:
    

Ground E a) i – it is unclear if there was any consultation between the Acting Secretary for DPM, the Chief Secretary and the Minister regarding the Plaintiff’s performance, or that there was no brief to the MEAC. It was not shown that there was a requirement for such a brief, because it was not shown that the Plaintiff’s wish to be reappointed was given to the Acting Secretary within time or at all, and was not supported by the required Appraisal Reports.

(a) ii - It is unclear if there was a recommendation from the MEAC to the Secretary DPM, although it might be inferred that this was the document referred to in the Statutory Business Paper as the MEAC Resolution. It was not shown that there was a requirement for a recommendation from the MEAC, because it was only required if the MEAC decided to recommend reappointment, and there was no evidence that such a recommendation was made.

1. iii - There is no requirement for the MEAC to make a “proper recommendation about the Plaintiff’s performance” – the only requirement under Section 7 (4) is that if the MEAC recommends reappointment, the Secretary should prepare a submission. The Plaintiff did not show that the MEAC recommended reappointment, so no such requirement arose.
   
2. There is nothing to support a submission that, by taking into account the Plaintiff’s arrest and 20 criminal charges for official corruption and abuse of office as being more important than Performance Appraisals, the Defendants were acting in bad faith.
   

100. i – The Plaintiff only had a right to be heard, to the extent that he had the right to inform of his wish to be reappointed and to provide his Appraisal Reports. He was given that right. Under the Regulation, the incumbent Plaintiff had no further involvement in the process.

ii - iii The Plaintiff has not shown these, as set out in Ground E a), i and ii above.

4. There is nothing to support a submission that the absence of Appraisals, in circumstances where the Plaintiff was under arrest for official corruption and abuse of office was so unjust as to be a breach of Section 59 of the Constitution.
   

4. Section 7 did not require a Performance Appraisal to be conducted. Section 7 only refers to providing Appraisals which have already been conducted during the contract period.
   

ii - The Plaintiff did not show that his performance was the only factor to be taken into account.

iii - The Plaintiff could not have had a legitimate expectation that there would be a Performance Appraisal conducted in accordance with Section 7, because Section 7 contains no such requirement. He also could never have had a legitimate expectation that his contract would be renewed. Under Section 6 (3) and 7 (5), the NEC always had the sole discretion to approve, or reject a recommendation and direct advertisement.

2. The Plaintiff did not pursue the Grounds relating to unreasonableness.
   

Effect of Breaches of Procedures

41. The Plaintiff has shown an error in the procedures prescribed by the Regulation which led to the NEC Decision of 29 March 2018 to advertise the position. He has not sought Review of any of the earlier decisions, and the decision to advertise is the only decision subject to this Review.
    
42. Even before the Plaintiff filed these Review proceedings, the decision to advertise had already been implemented on 30 May 2018. Less than a month later, the Plaintiff’s contract of employment expired, and the Defendants appointed another person as Acting Secretary.
    
43. By the time of hearing the application for review, the Plaintiff was no longer an incumbent in the position, and no longer had a right to be considered for reappointment. He always retained the right to apply for the position in response to the advertisement on 30 May 2018, but he did not apply.
    
44. This may have been because of the requirements in Section 5 (1) (g), (h) or Section 12 (2) of the Regulations for applicants to be free of any criminal charges or outstanding investigations or disciplinary proceedings, which meant that the Plaintiff may not have been qualified to apply.
    
45. The Plaintiff made a submission that, as an incumbent, he was not required to comply with those qualifications prescribed by Section 5 and Sections 10 – 13 of the Regulations relating to having no outstanding criminal charges or investigations or disciplinary proceedings. However, it is not necessary to determine that issue, as the Plaintiff did not in fact apply for the position.
    
46. In summary, the Plaintiff says that the decision to advertise the position was wrong, because the procedures leading to that decision were not followed. He has shown that there was a breach of Section 7 (1) of the procedures. The subsequent breaches alleged by the Plaintiff would only be breaches if the process for reappointment had been validly invoked by the Plaintiff’s compliance with Section 7 (2). He did not comply with the requirements of Section 7 (2), and so the Defendants were not required to follow the subsequent procedures. However, the Plaintiff submits that the requirement for compliance with Section 7 (2) was dependent on the requirements of Section 7 (1) having been earlier complied with, and this was not done.
    
47. It has therefore been established that there was an error of law by the Defendants in not complying with Section 7 (1). It is necessary to determine the consequences of that error.
    
48. As the Supreme Court said in Mision Asiki v Manasupe Zureneoc and Ors (2005) PGSC 27, it is one step to establish an error of law and for the Court to uphold an application for judicial review. It is another separate step to establish a case for a remedy. In judicial review proceedings, the remedy is in the discretion of the Court. The Supreme Court adopted with approval the statement in Tohian v Geita & Mugugia (2) (1990) PNGLR 479, that “... in judicial review, even though the Court might find that there has been an error, even an error affecting matters of jurisdiction, the Court would not thereby be obliged automatically to quash the proceedings. The remedies available under judicial review remain always at the discretion of the Court, and will only be granted to avoid injustice”.
    
49. The Supreme Court went on to say that the Court “... must look at all the circumstances of the case and decide whether it is appropriate to grant a remedy ... The court should only consider granting a remedy... that would serve a useful purpose.” The Court went on to cite three decisions of the Supreme and National Courts where they had upheld applications for judicial review but did not grant any remedy.
    
50. In one of those cases, Allan Pinggah v Margaret Elias & Ors (2005) PGNC 107, the then Deputy Chief Justice Injia had found an error of law and quashed the decision. He considered whether or not to send the matter back for rehearing in accordance with the prescribed procedures, but found that it would not be appropriate to do so. This was because as a matter of law, the Defendant would have made the same decision that the Plaintiff could not be re-employed after being retrenched, and so a rehearing would serve no purpose. He found that it would be detrimental to good administration and would serve no purpose for the Court to order reinstatement when the dismissal was otherwise valid. The Court went on to also reject the other remedies which were sought.
    
51. The Supreme Court in the case of Lae Bottling Industries Ltd v Lae Rental Homes Ltd & Ors (2011) PGSC 22 quoted with approval a passage from Alphonse Hayabe v William Powi and Ors (2007) PGNC 5, where Hartshorn J was determining an application for Leave for judicial review of a decision to appoint a person as Acting Provincial Administrator after the Plaintiff had been appointed to that position. Following Hitolo v Geno, Chief Ombudsman N2700, and Ombudsman Commission v Peter Yama SC 747, the Court found that the Plaintiff’s application for judicial review was misconceived, because the decision he sought to review had already been superceded by a later decision. No useful purpose would be served if judicial review was granted, and so Leave was refused.
    
52. In the circumstances of the present case, the decision to advertise the position was already carried out before the Plaintiff filed these proceedings. The Plaintiff’s contract of employment already expired before the hearing of the proceedings. The decision to appoint someone else in the position had already been made before the hearing.
    
53. The error of law shown by the Plaintiff in respect of Section 7 (1) could be considered as a relatively minor error, which did not deprive him of his right to inform of his wish to be reappointed. The subsequent possible errors under Section 7 (3) would only be errors if the Plaintiff had complied with Section 7 (2), which he had not.
    
54. It is arguable that the Plaintiff’s failure to comply with Section 7 (2) did not matter when the Defendants had first failed to comply with Section 7 (1). However, even if Section 7 (1) had been complied with, the Plaintiff could never have complied with Section 7 (2) because he could not submit the prescribed Performance Appraisals. The provisions of Section 7 (3) – (5) could therefore not have been activated, and the procedures followed by the Defendants would have been same, and resulted in the same decision.

Relief

55. When deciding whether or not to grant relief, all the circumstances of this case need to be considered.
    
56. In circumstances where the remedies sought by the Plaintiff are unable to be carried out, it would be futile to grant them.
    
57. The Plaintiff cannot ask the Court to put him into a position which he was unable to be in, before the NEC decision, namely, the position of an incumbent who could validly apply for renewal, supported by the correct documents. The required procedures cannot now be followed by the parties, because none of the parties conducted the Performance Appraisals which were required to be conducted annually during the term of the contract and then prepared and signed as required by Sections 22 – 26 of the Regulations. Those Appraisals do not exist, and the Plaintiff could not have ever provided then in support of his application.
    
58. It would therefore serve no purpose to order the matter to return for a re-hearing in accordance with the procedures prescribed by Section 7. The prescribed procedures can no longer be carried out by any of the parties.
    
59. In his Relief, the Plaintiff has proposed that the Court orders the Defendants to conduct a Performance Appraisal now, and then extend the term of his contract to the time when the procedures under Section 7 are followed. However, it is not possible for the Defendants to conduct a Performance Appraisal of a person whose contract has expired, and in any event, a single Performance Appraisal is not what is prescribed by Section 7. Section 7 (2) requires the Plaintiff to provide Appraisals as prescribed by the Regulation. The Appraisals prescribed by the Regulation are set out in Sections 22 – 26, and include a Performance Commitment Matrix being drafted annually, ratified annually by the Secretary, DPM, Chief Secretary to Government and the Minister, that the Matrix be signed annually by the Chief Secretary, Secretary for Treasury and Secretary for Personnel Management as well as the Minister, that a Performance Appraisal Form must be completed in respect of each annual Matrix, and there must be not less than two such appraisals.
    
60. It is physically impossible for the parties now in 2018 to carry out each of these requirements which were required to be done annually between 2015 – 2018.
    
61. Section 7 does not prescribe the conduct of a Performance Appraisal, but even if it did, and even if such an Appraisal could be conducted now, in 2018, it would not and could not be an Appraisal which complied with the requirements of Sections 22 – 26 of the Regulations relating to the annual procedures. It would therefore be futile for the Court to order such an Appraisal to be conducted.
    
62. In my view, the error in giving five instead of six months notice of expiry of the contract was not such a flagrant or substantive error that it infected the subsequent procedures or denied the Plaintiff natural justice. The sole purpose of the letter giving notice was to give the Plaintiff the opportunity to inform of his wish for reappointment, this was done, and the Plaintiff was not deprived of his right to respond and indicate his wish for reappointment.
    
63. The Defendants considered the Plaintiff’s continuing employment in the absence of his Performance Appraisal Reports, although the Plaintiff says that the Defendants did have the document he referred to as his Performance Assessment Report from 2012 to 2017. In my view, the Defendants’ decision to rely on the 20 pending criminal charges for official corruption and abuse of office, was not an unjust decision, and it was a decision which was open to be made even if there had been Appraisal Reports.
    
64. The Acting appointment to the position was due to expire on 26 September 2018. By an injunction granted on 22 August 2018, the Defendants were restrained from making a substantive appointment to the position, pending the determination of these proceedings. It is open to the Plaintiff to apply for the substantive position, if he is qualified.
    
65. No claim has been made for damages.
    
66. For these reasons, I make the following orders:
    
    1. The Plaintiff’s application for judicial review is granted.
       
    2. The part of the decision shown as No. 5 in the Second Defendant’s Decision No. 95 of 2018 whereby the position of Secretary for Department of Agriculture and Livestock was directed to be immediately advertised in the open market, is removed into this Court and quashed.
       
    3. The Plaintiff’s application for mandamus ordering the Defendants to conduct a Performance Appraisal and to consider his eligibility for renewal following the procedures under Section 7of the Regulations, is refused.
       
    4. The Plaintiff’s application for an injunction restraining the Defendants from advertising the position until a performance appraisal is done following the procedures in Section 7 of the Regulation, is refused.
       
    5. The Plaintiff’s application for mandamus for his contract of employment to be extended until compliance with Section 7 of the Regulations, is refused.
       
    6. The injunction granted on 22 August 2018, restraining the Defendants from making any substantive appointment to the position of the Secretary for Department of Agriculture and Livestock, is discharged.
       
    7. Each party is to pay their own costs.
       

Jema Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the First, Second, Third, Fourth & Fifth Defendants