Mari v Sione [2018] PGNC 488; N7607 (3 October 2018)

N7607

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 16 OF 2018

BETWEEN:
RODNEY MARI
Plaintiff

AND:
APEO E. SIONE, MPP as National
Commissioner, Public Service Commission
First Defendant

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

AND:
PUBLIC SERVICES COMMISSION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA
NEW GUINEA
Fourth Defendant

Waigani: Gavara-Nanu J.
2018: 10^th August & 03^rd October

JUDICIAL REVIEW – Application for leave for judicial review – National Court Rules; Order 16 r 3 (1) – Plaintiff dismissed from his employment - Plaintiff applying to Public Services Commission (PSC) to review his dismissal - PSC refusing to review plaintiff's dismissal - Public Services Management Act, 2014; s. 18 - Plaintiff seeking mandamus against PSC to review his dismissal - Principles discussed.

JUDICIAL REVIEW – Administrative remedy – PSC review process - Public Services Management Act; s.18 - Review a constitutional requirement – Review a fundamental constitutional function of PSC – Constitution; s.191- Review a mandatory administrative remedy – Failure to exhaust the PSC review process a serious abuse of process.

JUDICIAL REVIEW - Interpretation - Plaintiff a civilian employee of the Department of Police - Plaintiff dismissed by the Police Commissioner - Whether Police Commissioner a Departmental Head - Principles discussed.

Cases cited:

Kekedo v. Burns Philp (NG) Ltd [1988-89] PNGLR 122
SCR No. 1 of 1982 – In the matter of certain alleged disciplinary offences in the Office by Mr. Philip Bouraga [1982] PNGLR 178

Counsel

C.Nidue, for the Plaintiff
F.Yandi, for the First to Third Defendants
E.Tagu, for the Fourth Defendant

03^rd October, 2018

1. GAVARA-NANU J: The plaintiff is a former employee of the Department of Police. He was occupying the position of a Human Resources Payroll Officer until his dismissal by the Police Commissioner on 28 February 2017.
   
2. The plaintiff was charged under s.50 of the Public Services Management Act 2014, and the Public Services General Orders 15.36 for disgraceful and improper conduct. He was subsequently found guilty of the charges, which resulted in his dismissal.
   
3. When replying to his disciplinary charges, the plaintiff stressed to the Police Commissioner that his responses regarding his disciplinary charges to him (Police Commissioner) were not as the Police Commissioner but as the Head of the Department of Police responsible for the civilian employees, including him.
   
4. In a letter dated 10^th March 2017, the plaintiff applied to the police review tribunal of which the Police Commissioner is a member, for his dismissal to be reviewed.
   
5. In a Minute dated 27^th March 2017, Deputy Police Commissioner, Raphael Huafolo as part of the police review process advised the Police Commissioner that plaintiff’s dismissal was unlawful and recommended that the plaintiff be reinstated. No action was taken on that advice.
   
6. The plaintiff’s application to the police review tribunal was unsuccessful. The plaintiff as a result applied to the Public Services Commission (PSC) for the PSC to review his dismissal as a personnel matter under s.18 of the Public Services Management Act. In a letter dated 8^th May 2017, the PSC through the first defendant wrote to the plaintiff advising him that the PSC had no power to review personnel matters arising from the Department of Police and the Royal Papua New Guinea Constabulary, thus the PSC effectively refused to review his dismissal.
   
7. As a result, the plaintiff filed a judicial review proceeding under Order 16 r 3 of the National Court Rules, seeking leave to apply for the review of his dismissal. Leave was refused by the Court because the Court was of the view that the decision that should be reviewed was the refusal by the PSC to review the plaintiff’s dismissal.
   
8. Consequently, in a letter to the PSC dated 15^th September 2017, the plaintiff again requested a review of his dismissal. Again the PSC, this time through the Chairman in a letter dated 26^th September 2017, advised the plaintiff that the PSC had no power to review his dismissal. Following that refusal by the PSC to review his dismissal, the plaintiff filed this proceeding seeking among other things an order in the nature of mandamus to compel the PSC to review his dismissal.
   
9. In an affidavit sworn by the first defendant on 23 March 2018, it is deposed that in a letter dated 26 September 2017, the second defendant (Chairman of PSC) advised him that although the PSC had advised the plaintiff that it had no power to review his dismissal, it (PSC) was still waiting for a legal advice from its lawyers on whether the PSC did have power to review the dismissal. This advice plainly contradicted the advice the PSC gave to the plaintiff through both the first and the second defendants that the PSC had no power to review his dismissal.
   
10. The first defendant later in the affidavit deposes that the PSC’s lawyers had advised that, PSC had power to review the plaintiff’s dismissal but the advice was received late, due to lack of legal staff. I do not find this explanation reasonable. It was also unacceptable. The proper thing for the PSC to do was to wait for the legal advice on whether it had power to review the plaintiff’s dismissal. Instead, it went ahead without the benefit of a legal advice and told the plaintiff that it had no power to review his dismissal.
    
11. It is also noted that the PSC’s Principal Legal Officer in a Minute to the first defendant advised that the PSC had power to review the plaintiff’s dismissal. The advice was received by the PSC well before this proceeding was filed.
    
12. Having considered all the materials before me, I am satisfied that the PSC had power to review the plaintiff’s dismissal under s. 18 of the Public Services Management Act, for the basic reason that the plaintiff was a public servant. He was indeed dealt with as such by the Police Commissioner as he was charged under the Public Services Management Act, and the Public Services General Orders, viz; laws which prescribed and governed the terms and conditions of his employment.
    
13. The review process provided under s. 18 of the Public Services Management Act, constitutes an administrative remedy. It is also a requirement under s. 191 of the Constitution, Thus, the process of review is also a fundamental constitutional function of the PSC and is mandatory.
    
14. A failure to exhaust the review process provided under s. 18 of the Public Services Management Act, would therefore amount to a serious abuse of process. See, Kekedo v. Burns Philp (NG) Ltd [1988-89] PNGLR 122.
    
15. The mandatory requirement for a review of a personnel matter or complaint under s. 18 of the Public Services Management Act, also imposes a duty on the PSC to review personnel matters or complaints brought to it by aggrieved public servants.
    
16. That said, there remains the other pivotal question of whether the Police Commissioner is a Departmental Head, whose actions adversely affecting the civilian employees of the Department of Police can be reviewed by the PSC under s.18 of the Public Services Management Act. In my opinion, there is no doubt that the Police Commissioner is a Departmental Head, thus as a public authority, his actions can be reviewed. This view finds support in the fact that the appointment of the Police Commissioner by the Head of State (acting in accordance with the advice of the NEC) is as the Head of the Department of Police, which is required to be gazetted as such.
    
17. In this case there is a Gazettal Notice confirming that the appointment of the current Police Commissioner by the Head of State was as the Head of the Department of Police.
    
18. It therefore follows that the dismissal of the plaintiff on 28 February 2017, by the Police Commissioner is subject to review by the PSC under s.18 of the Public Services Management Act. See SCR No. 1 of 1982 – In the matter of certain alleged disciplinary offences in the Office by Mr. Philip Bouraga [1982] PNGLR 178.
    
19. The end result is that the plaintiff’s application must be granted, which I now do.
    
20. The Court therefore orders the PSC to review the plaintiff’s dismissal as required under s.18 of the Public Services Management Act and s. 191 of the Constitution forthwith.
    
21. The plaintiff is to serve all the relevant Court documents on the PSC (if he has not already done so), within 7 days. The PSC will then conduct a review of the plaintiff’s dismissal as soon as possible, given the time span between the date of dismissal and these orders.
    
22. I have raised the issue of costs with the parties and having heard arguments on the issue, I consider that this is a matter which should not have come to Court in the first place. The matter could have been easily settled out of Court had the PSC from the outset conceded that it had power to review the plaintiff’s dismissal.
    
23. Consequently, I order that the plaintiff’s costs of and incidental to the proceeding be paid by the third defendant on solicitor/client basis.
    

Orders accordingly.
_________________________________________________________
Nidue Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants