Amean v Kereme [2020] PGNC 511; N9982 (20 November 2020)

N9982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 51 OF 2019

DR. SAMSON AMEAN in his capacity as the Provincial Administrator of Enga Province
Plaintiff

AND
DR. PHILIP KEREME in his capacity as the Chairman of Public Service Commission
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND
JUSTIN ISSACK
Third Defendant

Waigani: Kandakasi DCJ,
2020: 09^th & 20^th November

JUDICIAL REVIEW – Motion seeking to dismiss review applicantion for being filed out of time – Time fixed by s. 18 (3) (d) (ii) Public Services (Management) Act - Whether it fixes a deadline for judicial review – Courts inherent power to judicially review quasi-judicial authorities decision - Time limit Order 16 of the National Court Rules for judicial review - Effect of time stipulation under s.18 (3) (d) (ii) – Stipulation of time when the decision of the Public Service Commission becomes effect – Not a limitation of time for judicial review – Motion dismissed with costs.

Facts

The Plaintiff in his capacity as Provincial Administrator of the Enga Province (the Administrator) successfully applied for leave for judicial review. Before the hearing of the substantive review application the Third Defendant, former Director Legal Services in the Enga Province (the Officer) applied by motion to dismiss the review for being incompetent. The Officer’s claim of incompetency was in the Administrator filing this proceeding outside the 30 days stipulation under s. 18 (3) (d) (ii) of the Public Services (Management) Act (PSMA). The Administrator opposed the claim of incompetence and argued that the time stipulated under the PSMA is the stipulation as to when a decision of the Public Services Commission (PSC) takes effect and is not a stipulation of time limit for judicial review against the decisions of the PSC.

Held:

1. The powers of judicial review vested in the Courts is a necessary and important process for a review of the exercise of the appeal powers vested in the PSC under PSMA for the purposes of ensuring all due processes are followed, the decisions the PSC arrives at are sound, fair, reasonable and legally correct and thereby ensure there is integrity in the appeal process and ultimately contribute to good order administration and respect in the public service for the delivery of public services.
   
2. The time stipulated under s. 18 (3) (d) (ii) is not a stipulation of a time limit for judicial review but is a stipulation as to when a decision of the PSC takes effect, which are not one and the same.
   
2. The time limit for judicial review of the decisions of the PSC is in Order 16, r. 4 (2) of the National Court Rules.
   
3. Any legislative limitation on the Courts judicial review powers must by expressed legislative enactment and not by inference.
   
4. For these reasons, the motion claiming incompetence was dismissed with costs against the officer to be agreed if not taxed.
   

Cases Cited:

Francis Damem v. Jerry Tetaga (2005) N2900.
John Andrias v. Dr Philip Kereme & Anor (2019) N8190.
Paul Dopsie v. Jerry Tetaga, Chairman, Public Services Commission (2009) N3720.
Jomino Holee v. Sem Vegogo (2013) N5101.
SC Ref No.2 of 2018: Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re the public money management regularisation act 2017 (2020) SC1944.
Peter Yama v. Mathew Gubag and Electoral Commission of Papua New Guinea (1998) SC547.
Avia Aihi v. The State [1981] PNGLR 81.
Balakau v. Torato [1983] PNGLR 242.
Dany Sunu & ors v. The State [1984] PNGLR 305.
S.C. Rev. 5&6 [1988-89] PNGLR 197.

Counsel:

Mr. J. Issack, the Third Defendant in Person
Mr. M. Wangatau, for the Plaintiff

20^th November, 2020

1. KANDAKASI DCJ: The Plaintiff, Dr. Samson Amean in his capacity as the Enga Provincial Administrator (the Administrator) was granted leave for a review of a decision by the First Defendant, the Public Service Commission (PSC). The PSC decision annulled decisions taken by the Administrator to suspend without pay Third Defendant, Mr Justin Issack (J Issack), a former senior officer in the Public Service. J Issack is applying by motion for a dismissal of proceedings for being incompetent.

Parties claims or arguments

2. In support of his application, J Issack claims the application for review is incompetent because it was filed outside the 30 days stipulated by s. 18 (6) (b) of the Public Services (Management) Act (PSMA). The Administrator argues, the provision in question provides only as to the time when PSC decisions take effect and it’s not a stipulation in the form of a time limit for judicial reviews against the decision of the PSC.

Issues for determination

3. The parties’ claims, or arguments presents two issues for the Court to determine. They are:

(1) Is s. 18 (6) (b) of the PSMA stipulating a time limit for judicial review of decisions of the PSC?

(2) Subject to an answer to question (1), is this proceeding incompetent for being filed outside the 30 days stipulation under s. 18 (6) (b) of the PSMA?

The relevant background and facts

4. The relevant background and facts are as set out in the parties’ statement of agreed facts and issues for resolution filed on 15^th October 2020 and the affidavits filed by the parties. From these, the following are the relevant facts:

(1) The Enga Provincial Government employed, J Issack as its Director of Legal Services, a Grade 15 and a senior officer in the National Public Service;

(2) Consistent with practice in the Public Service, J Issack signed a senior officers employment contract commencing 21^st October, 2010 for 3 years;

(3) After his contract term expired, J Issack continued in that employment until on or about 13^th January 2017, when he was suspended from duty without pay in accordance with ss. 49 and 52 (2) of the PSMA;

(4) Only a day less of one year later on 12^th January 2018, J Issack applied to the PSC for a review of the decision suspending him on 13^th January 2017;

(5) The PSC conducted the review on the 16^th January, 2018; and on 07^th March 2018, it found the application was time-barred and consequently requested J Issack to apply to the Chairman of PSC to waive the statutory time period under s. 18 (2) (b) of the PSMA;

(6) On 16^th March 2017, J Issack wrote to the Chairman of PSC giving reasons for the delay and asking for a waiver of the statutory time period;

(7) On 28^th May 2018, the PSC informed J Issack that his application for waiver was approved on the same day of his application;

(8) There after the PSC served summons on both parties and a directional hearing was conducted on 28^th June 2018, at the Highlander Hotel Conference Room in Mt. Hagen at 12:11 pm;

(9) On 27^th July 2018, the Administrator responded to a 21 days’ notice arguing that J Issack had absconded from duties for more than a year;

(10) J Issack responded to the Administrators submission on 14^th October, 2018;

(11) On 02^nd November 2018, the PSC delivered its decision annulling the decision of the Administrator to suspend J Issack without pay. The decision was communicated to both parties through an advice letter from the Chairman of PSC;

(12) J Issack was served with a copy of the decision of the PSC on 07^th November 2018, while the Administrator received a copy of the decision on 30^th November 2018, by post.

(13) Formally, on the Court file the Administrator had filed this proceeding on 1^st February 2019. But according to the Mr Michael Kambaos’ affidavit sworn 08^th and filed on 12^th October 2020, which is not rebutted, he lodged the relevant documents for filing on 21^st December 2019. That was precisely 21 days upon receipt of the PSC’s decision. He followed up on 22^nd and 24^th December as well as the last two weeks in January 2019 to uplift the sealed copies to serve on the defendants. The sealed copies were not yet ready because according to the Court Registry staff, they were waiting on a file number allocation from Waigani.

5. From these facts, there is no issue between the parties that on its face, this proceeding was filed outside the 30 days period provided for in s. 18 (6) (b) of the PSMA. The issue is whether this renders this proceeding incompetent. An answer to that issue is dependent on the question of whether s. 18 (6) (b) is imposing a time limit for judicial reviews of decisions of the PSC. I will deal with the second issue first.

Issue 1 - Is s. 18 (6) (b) of the PSMA stipulating a time limit for judicial review?

6. Section 18 (6) (b) of the PSMA states:

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

...

(b) is binding after a period of 30 days from the date of the decision.”

7. This provision has been considered in a number of National Court decisions. In Francis Damem v. Jerry Tetaga (2005) N2900, it was argued by counsel before the Court that the provision in question limits judicial reviews to be filed within 30 days of the PSC decision. In rejecting that argument, Injia DCJ (as he then was) held:

“In relation to the purpose of the 30 days grace period, I do not think it is open to read into the provisions of s.18(3)(d)(ii) [former provision] the interpretation advanced by Mr. Andrew and Mr. Baniyamai. To do so would in effect to inserting a new provision in s.18(3)(d)(ii) which does not exist. This Court has no power to do that.”

8. Thompson J adopted and applied that decision in John Andrias v. Dr Philip Kereme & Anor (2019) N8190 in the following terms:

“The Defendants also submitted that because the proceedings were not issued within 30 days of the PSC decision, they were invalid. In my view, that is not the correct interpretation of Section 18 (3) (d) of the PSM Act. This section simply provides that after that date, the decision is binding. It does not prevent the decision from subsequently being challenged by way of judicial review. In Francis Damem v Jerry Tetaga & Ors (2005) PGNC 57, Injia DCJ rejected the same argument that judicial review had to be brought within 30 days. I respectfully adopt his opinion..”

9. In Paul Dopsie v. Jerry Tetaga, Chairman, Public Services Commission (2009) N3720, Cannings J opined that:

“Section 18(3)(d)(ii) [former provision] of the Public Services (Management) Act states that decisions of the PSC become binding after 30 days. That does not, however, prevent a person with a sufficient interest in the matter seeking judicial review of a PSC decision (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094), which is what has happened here.”

10. Cannings J, in Jomino Holee v. Sem Vegogo (2013) N5101, effectively reviewed the relevant cases on point and observed as follows:

“5. Once the Public Services Commission inquires into complaints of this nature and makes a decision on the matter its decision becomes binding after 30 days. Section 18 (review of personnel matters connected with the National Public Service) sets out the powers and procedures of the PSC and states in Section 18(3)(c)(ii) that after considering all the facts relative to the matter it shall ‘make a decision to uphold, vary or annul the decision the subject of the complaint’ and in Section 18(3)(d)(ii) that the decision ‘shall become binding after a period of 30 days from the date of the decision’.

6. A binding decision is one that must be complied with. It imposes a statutory duty on the person to whom it is directed to comply with it. This has been made clear in a number of decisions of the National Court, in particular Ambrose Vakinap v Thaddeus Kambanei (2004) N3094, Robin Sam v Peter Tsiamalili (2006) N3072 and Francis Damem v Jerry Tetaga (2005) N2900. It is open to the person at whom a PSC decision is directed to apply by judicial review to have the decision quashed (eg Paul Dopsie v Jerry Tetaga (2009) N3722) but unless the decision is set aside or amended or quashed by some lawful means it must be complied with. It is a self-executing decision, tantamount to a court order.”

11. In the present case, J Issack borrows from Cannings J in the above judgment and submits, the decision of the PSC here was “a self-executing decision, tantamount to a court order” that becomes enforceable upon the expiry of the 30 days stipulation. He therefore submits, no decision of the PSC is open for judicial review after the expiry of the 30 days limit. This submission however, with respect, ignores the decisions in Francis Damem v. Jerry Tetaga (supra), and the decision of her Honour, Thompson J in John Andrias v. Dr Philip Kereme (supra). These decisions stand for the proposition that the 30 days limit is not a time limit for any applications for judicial review against the decisions of the PSC. Taking such a view would amount to reading into s. 18 (6) (b) of the PSMA, something that is not there.

12. It is settled law that the duty of the Court is to interpret and apply the law, whilst it is within Parliament’s power and prerogative to legislate. Section 99 of the Constitution after specifying the three arms of government in subsection (2) it goes on to clearly stipulate in subsection 3 that in principle, the three arms of government should be kept separate from each other. It is an aged old tradition in the West Minster system of government that, this principle of separation of powers between the three arms of government has been recognised, respected and applied which has resulted in the orderly running of governments and countries. The importance of the principle of separation of powers have been repeatedly acknowledge by our highest Court of the land the Supreme as recently in its decision in SC Ref No.2 of 2018: Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re the Public Money Management Regularisation Act 2017 (2020) SC1944.

13. Also, it is settled law that the National and the Supreme Courts have inherent powers under s. 155 (2), (3) and (4) of the Constitution to review all decisions by judicial and quasi-judicial authorities and grant such reliefs in the nature of prerogative writs and such other reliefs as are necessary in the circumstances of a case to do justice. Given that, the Supreme Court as repeatedly made the point in the case of s. 220 of the Organic Law on National and Local-level Government Elections, that the prohibition of appeals against a decision of the National Court sitting as the Court of Disputed Returns does not include judicial review of such decisions: See Peter Yama v. Mathew Gubag and Electoral Commission of Papua New Guinea (1998) SC547, per Kapi DCJ, Injia J, Sawong J (as they then were); Avia Aihi v. The State [1981] PNGLR 81, Balakau v. Torato [1983] PNGLR 242, Dany Sunu & ors v. The State [1984] PNGLR 305 and S.C. Rev. 5&6 [1988-89] PNGLR 197.

14. The import of this position of the law is very clear. The inherent power to review all judicial and quasi-judicial decisions vested in the Supreme and National Courts cannot be ousted or restricted by implication. This has to be done expressly by Parliament in the exercise of its exclusive legislative power subject to the requirements of the Constitution. Proceeding on that basis, I am of the view that s. 18 (6) (b) of the PSMA is specific. It provides for when a decision of the PSC becomes effective. This is nothing unusual. Certain orders of the Courts for example do not become effective until a formal minute of the order is entered. Also, with a very few exceptions and unless the Court otherwise orders, the National Court’s judgments and orders in civil cases become effective within 14 days of service of a minute of the orders on the person who is required to comply: See Order 12, r. 4 (2), (3) and (4) of the National Court Rules. Despite that, appeals against such orders and judgments have a time limit of 40 days under s.17 of the Supreme Court Act (Chp. 37) to appeal. Further, in exceptional cases judicial reviews even outside the appeal period or after a loss of one’s the right of appeal have been allowed: See for example, Avia Aihi v. The State (No. 2) [1982] PNGLR 44 and Danny Sunnu v. The State [1984] PNGLR 305.

15. Having regard to the foregoing, I first find, J Issack’s argument that the 30 days limitation under s. 18 (6) (b) applies to all applications for judicial review of the PSC’s decision is seriously flawed. Secondly, that submission goes against the clear statutory expression. The clear statutory expression makes it clear that the 30 days stipulation concerns only the issue of when a decision of the PSC takes effect which is not the same has limiting judicial review applications to within 30 days of a PSC decision. The argument is also against the grain of the relevant judgments on point as noted earlier.

16. Thirdly, judicial review is a completely separate subject or matter from when a decision of the PSC takes effect. As noted, the National and Supreme Courts are vested with inherent powers to judicially review the decisions of lower judicial and quasi-judicial authorities under s. 155 (2) (b) of the Constitution. Hence, if parliament in his wisdom wanted to limit the courts judicial review powers in respect of the PSC’s decisions, that Parliament had the power and authority to provide for that in clear and expressed language. This the Parliament did not do. In keeping with the separation of powers doctrine and the respective functions of each arms of government, this Court or indeed any other court, person or power cannot build or read into s. 18 (6) (b) what is being suggested by J Issack. To do so would amount to usurping the powers of Parliament.

17. Fourthly, the argument advanced fails to recognise and accept the fact that except only for persons in Port Moresby or where ever the PSC is located, most of the persons affected by a decision of the PSC would most probably not receive the decision within 30 days of the decision being made. What happened in this case illustrates the point. Whilst J Issack received a copy of the PSC’s decision the subject of this proceeding within 5 days of the decision being made, the Administrator did not receive a copy of the decision until 28 days later. That left him with only 2 days to do something about the decision. That is hardly any sufficient time to apply for judicial review.

18. Flowing on from the fourth flaw in J Issack’s argument is the fact that, by virtue of the time limit under s. 18 (6) (b) it assumes all decisions of the PSC flawless and therefore they must be enforced once the 30 days is up. That is contrary to the experience so far. Some of the decisions on review of the PSC reveals clear erroneous decisions made by the PSC which no reasonable tribunal faced with the same facts would have arrived at. They comprise of entertaining appeals lodged by an aggrieved public servant clearly, outside the 60 days limitation under s. 18 (2) (b) without any waiver of the time limit, failing to attach any or any sufficient weight to relevant considerations, such as a deed of release settling all liability arising out of the revocation of the officer’s appointment, valid grounds for termination or decision by a departmental head, the costs implications of ordering reinstatement and backdating pay, the legal impossibility of any reinstatement of concerned officers to their former positions. The decision in John Andrias v. Dr. Philip Kereme (supra) illustrates this point well. There, an officer, John Napu, had been employed as a Public Servant Grade 14 with the Department of Trade, Commerce & Industry. He was on 24^th April 2001 appointed by the Minister as the Registrar of Co-operative Societies, pursuant to s. 2 of the Co-operative Societies Act. He then signed a 3 years contract of employment from 25 April 2001 to 24 April 2004.

19. On 27^th December 2001, his appointment was revoked by the Minister. It seems that the officer then resumed his former position, but as a Grade 14 public servant was a lower position than that of Registrar, the officer issued legal proceedings against the State claiming damages for wrongful termination. For reasons which were not apparent, the State eventually agreed to settle the officer’s claim by payment of the balance of his 3-year contract. The officer’s contract of employment expired on 25^th April 2004. On 22^nd June 2004, the officer and the State executed a Deed of Release whereby in consideration of payment of the balance of the contract, of K178,844, the officer released the State from all liability arising out of the termination of his employment.

20. Further, although the officer resumed his former Grade 14 position and continued to receive his Grade 14 salary, the Plaintiff found that the officer did not actually attend work or carry out any employment duties. After issuing several warnings to him, the officer was eventually charged, suspended and finally terminated on 9 August 2005. The officer was subsequently paid out all his entitlements.

21. Suddenly, on or about 3^rd October 2006, the Plaintiff received a letter from the PSC summoning him to appear at a hearing on 5^th October 2006, concerning a “review of a personnel matter” between the Plaintiff and the officer. The Plaintiff duly appeared on that date, and on several subsequent dates in October 2006 and March 2007. The Plaintiff also submitted a written response on 19^th March 2007. This response was detailed, and amongst other matters, drew the First Defendant’s attention to the fact that the officer’s appeal had been lodged more than 60 days after his termination and was therefore out of time, in breach of s.18 (2) (b) of the Public Services (Management) Act, and that the First Defendant had not made a decision within 90 days of receiving the appeal and was therefore out of time, in breach of Section 18 (3) (d) of the Act. The Plaintiff’s response further drew the First Defendant’s attention to the facts leading up to the termination, the Deed of Release, and the previous payment of all salaries and entitlements.

22. No response was received, and the Plaintiff heard nothing further until on or about March 2014, when the Plaintiff received a letter from the PSC dated 24 February 2014 containing its decision on the officer’s appeal. The decision purported to annul the decision made by the Plaintiff in December 2001 to terminate the officer’s employment, as well as to annul the First Plaintiff’s decision in August 2005 to terminate his employment. The PSC purported to order the officer’s reinstatement to the position of Registrar of Cooperative Societies with back pay of salary and allowances.

23. On these facts, the Court found as follows:

“In relation to the First Defendant’s decision, the Plaintiff has shown that, prima facie, the First Defendant failed to attach any or any sufficient weight to relevant considerations, such as the Deed of Release settling all liability arising out of the revocation of the officer’s appointment, the valid grounds for the subsequent termination, the costs implications of ordering reinstatement and pay back to 2001, and the legal impossibility of the Plaintiff being able to reinstate the officer to the position of Registrar when only the Minister had the statutory power to make an appointment. On the face of it, part of the decision was made ultra vires, and the cumulative effect of all the parts of the decision was to make it unreasonable in the Wednesbury sense.”

24. Had it not been for judicial review that decision would have been forced upon the department head and the public service and ultimately the people of Papua New Guinea. The officer would have been allowed to gain doubly if not more at the expense of the people. Judicial review therefore, provides for an avenue that enables a removal and or prevention from being implemented clearly erroneous and bad decisions of the PSC. Without the benefit of judicial review, such decisions would obviously affect good administration in the Public Service and any sense of fairness, right and justice. This in turn as the potential to seriously affect the integrity, respect and moral of the Public Service and hence adversely affect the country’s public administration and standing. It also comes with the risk of corruption in the Public Service especially in the area of hiring and discipline of officers which no doubt has a flow on effect on the quality and timely delivery of the various public services. The ready availability of judicial review ensures integrity in the process of a public servant taking his complaint to the PSC, the PSC’s process, and procedures and ultimately the soundness and or the correctness of a decision on any complaint the PSC is dealing with.

25. For these reasons I answer the first question in the negative.

Issue 2 – Is this proceeding incompetent?

26. Turning then to the second issue, the discussions under the first issue and the answer to that question, provides the necessary foundation to answer the second question. Additionally, the unrebutted affidavit evidence of Mr. Kambao demonstrates that this proceeding was filed on 21^st December 2019 but for the failures in the Court Registry resulting on the formal filing on 1^st February 2020. I therefore find that this proceeding was in fact filed on 21^st December 2019, which means the application was filed within 21 days of the receipt of the decision. Under O.16, r. 4 (2) of the National Court Rules, the time limit for filing of judicial review is 4 months from the date of a decision. The same rule also allows for applications to be filed outside that period if reasonable explanation is provided for any delay and that no prejudice or injustice will be or is caused by the delay. It is also established law that the 4 months’ time period runs from the date when the plaintiff in a case for judicial review becomes aware of the decision.

27. In these circumstances, although the application was filed outside the 30 days limit under s.18 (6) (b) of the PSMA, it does not render the proceeding incompetent. The 30 days limit is not a time limit for the filing of an application for judicial review but a clear legislative indication as to when a decision of the PSC takes effective. The applicable time limits for judicial review is what is provided for in Order 16, r. 4 (2) of the National Court Rules in the absence of any specifically expressed provisions to the contrary. Hence, I find this proceeding was filed within time and is therefore competent.

Decision on the Application

28. Based on the answers to the two questions presented, I find the motion is without merit and order its dismissal with costs against J Issack, to be taxed, if not agreed.

29. The substantive matter is now fixed for mention on 28^th December 2020 at 9:30am or soon thereafter for the allocation of a date for hearing.
________________________________________________________________
Justin Issack: Third Defendant Appearing in Person
Ace Lawyers: Lawyers for the Plaintiff