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Meauri v Kereme [2021] PGNC 192; N8906 (25 June 2021)

N8906

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 220 OF 2018
OS (JR) NO. 181 OF 2018
OS (JR) NO. 178 OF 2018
OS (JR) NO. 177 OF 2018


TREVOR MEAURI-In His Capacity As SECRETARY FOR DEPARTMENT OF DEFENCE
Plaintiff


AND:
DR. PHILIP KEREME In his Capacity CHAIRMAN OF THE PUBLIC SERVICES COMMISSION
First Defendant


AND:
PUBLIC SERVICES COMMISSION
Second Defendant


AND:
CARMEL TAMILEONI
& MARY CHILEN & ANNA LAPU & MAMEL WINGU
Third Defendants


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Miviri J
2021: 18th February


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 5 NCR – Certiorari – PSC decision Annulling – Section 18 (5) PSC Act – Failure to Implement decision by Plaintiff Acting Secretary Defence Department –lapse of 30 days Decision binding – Implementation of PSC decision – No error of Law – No Ultra Vires – No Unreasonableness – Decision by PSC Confirmation of – Motion of Plaintiff dismissed – cost follow event.


Cases Cited:

Mapa v The State [1979] PNGLR 135

Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797

Keboki Business Group (Inc) v State [1984] PNGLR 281

Begilale v Moutu [2018] PGNC 440; N7549

Palaso v Kereme [2016] PGNC 381; N6638

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47
Counsel:


R. Joesph, for plaintiffs
M. Raniata & T. Torato, for the First & Second Defendants
L. Tangua, for Third Defendants
K. Kipongi, for Fourth Defendants


RULING

25th June, 2021

  1. MIVIRI, J: This is the ruling on four substantive notices of motion beginning firstly, with OS (JR) 220 of 2018 of the plaintiff filed of the 25th June 2018 pleading for:
  2. The third defendant in that proceeding is Carmel Tamileoni, First, Second Fourth defendants are the same for all four-proceeding heard together here. But the third defendants in each of the proceedings consolidated here heard together will be individually identified.
  3. The second proceedings is OS (JR) 181 of 2018 where the third defendant is Mary Chilen who held the position of Assistant Secretary, Human Resources Management, grade 16 Position No; DHRM 008 prior to this proceeding. She is now deceased as of the 22nd March 2020. Her cause of action is pursued by her substitution her next of kin, legitimate daughter Marian Williams whose affidavit filed of the 18th November 2020 annexing medical certificate of death of that fact and letter from Public Curator on the same. She is now the substituted third defendant in place of her mother now deceased.
  4. The notice of motion of the 25th June 2018 that the plaintiff moves against her is in the following:
  5. The other orders sought 2 to 4 are the same as in OS (JR) 220 of 2018.
  6. Thirdly in proceeding OS (JR) 178 of 2018 the third defendant is Anna Lapu who held the position Principal Staff Development & Training Officer grade 14, Position No: 011 with the department of Defence. The notice of motion of the 30th April 2018 by the plaintiff moves against her in the following:
  7. As with the other two proceedings the orders sought from 2 to 4 are the same.
  8. Fourthly in proceeding OS (JR) 177 of 2018 the third defendant is Mamel Wingu who held the position Manager Civil Staff and Salaries, grade 14, Position No: DHRM 008 with the Human Resources Division of the Department of Defence. She has since passed on and an affidavit of the 18th November 2020 has been filed of the husband Keith Wingu and next of kin, who now takes as substitute of her as third defendant in the proceedings. He has in this respect attached a medical certificate of death annexure “A” depicting that the deceased died on the 12th September 2019. Also, a true copy of the Public Curators letter 20th October 2020 annexure “B” confirming substitution as applied. He is now for all intent and purposes in place as third defendant after the demise of his wife.
  9. In the notice of motion of the 08th May 2018 that was pleaded against her as the third defendant the plaintiff pleaded for:
  10. As with the other three proceedings above the other orders from 2 to 4 are the same and therefore are not specifically addressed separately.
  11. The initial proceeding for leave was filed on the 10th April 2018 and leave was granted on the 22nd June 2018. It was over a matter that was allegedly not in compliance of the law which affected the running of the Department of Defence on or about 04th April 2016, when the defendants wrote a petition complaining. For a matter that underpinned the running of that Department it was not engaged through the process of the law to remedy immediately. Particularly with the fact that judicial review is time conscious by order 16 rule 4 of the Rules. Also, in view of the fact that the PSC decision was of the 30th November 2017. It was against the plaintiff’s credibility to wait a year over the initial decision and to file for leave. Also, in view of the fact of the grounds that he now raises in this judicial review as basis which vitiated the decision of the PSC, that if not allowed on quickly meant money continued to be spent on employees who were unlawfully on the payroll. A genuine concerned head of a Department of Government such as here the department of Defence, would have taken immediate steps to put a stop and secure a remedy in law. Especially where Lawyers were also on hand in the office of the Solicitor General to assist settle. It did not occur.
  12. How genuine is this cause of action instituted given these facts, and in particular the contents of the letter, or petition of the 04th April 2016, counter signed by a Deputy Secretary, First Assistant Secretary Corporate Services, an Assistant Secretary Human Resources Management, Principal Staff Development & Training Officer and Manager Civil Staff and Salaries, very experienced disciplined officers holding very Senior Positions within that Department, long seasoned careers officers with no records of discipline against them, would they risk their positions and career over mere allegations and circulate to almost 13 other organizations and Departments of the State including ministries knowing fully well the consequences.
  13. That is annexure “C” of the affidavit verifying the facts of Trevor Meauri dated the 10th April 2018 sworn of the 31st January 2018. It is a well written 14-page letter addressed to John Kali, OBE Secretary Department of Personal Management P. O. Box 519 Waigani NCD. The subject is Petition Report on Maladministration, Mismanagement and Misappropriation of Funds of Defence by Secretary Vali Asi. It calls for urgent action on the part of the DPM due to the alleged maladministration, mismanagement and misappropriation of funds by the Secretary Vali Asi. And states that the total moneys misappropriated are in the sum of K 120, 032.54 particulars which are set out in the table by item, amount, and date. The period over which the moneys are allegedly spent, how much including cash advances of K 158, 800.00 payment of personal medical bills cash advance collected in the sum of K16, 000.00 Ministerial Forum Meeting in Canberra Australia but not travelled, and not refunded back to the Departmental accounts. Accommodation of the secretary coming from the Public Purse and not from the Secretary’s own funds paid out in his salary. Hire vehicles, unaccounted expenditures from Paymaster’s Impress Account, Abuse of power in approving claims, Abuse of Defence Funds, Issue of Displaced contract officers and senior non-Contract officer’s appointment of Junior and unattached officers to Senior Positions, nepotism.
  14. These are itemized in sums over what period and paid to whom. It is signed by the defendants now before the court with others not before the Court including David Porykali, FAS Financial Services, Gergory Roaveneo FAS Defence Strategic Intelligence Estimates, Judy Oa Assistant Secretary Budget, and Hiri Haro Accountant. And it is circulated to the then Chief Secretary Issacs Lupari, Secretary Dairi Vele Department of Treasury, Dr Ken Ngangan Secretary Department of Finance, Auditor General Auditor General’s Office, The Chief Ombudsman office of the Ombudsman Commission, Brigadier General Gilbert Toropo Commander PNGDF, Dr Philip Kereme Public Services Commission, Chief of Staff to the Prime Minister, The Chairman Finance Audit Committee Department of Finance, Director Fraud Squad Royal Papua New Guinea Constabulary, Provost Marshall- PNGDF, The President Transparency International PNG and Emma Faiteli President Public Employees Association.
  15. In my view this is a letter and petition that is written with a sense of justice and fear of the law. It is written with the intention to see out the law against alleged maladministration, mismanagement and misappropriation of funds by the Secretary Vali Asi. And in my view should not have attained the Public Service disciplinary charges that followed against the individuals very senior officers of the Department of Defence. These officers are now the subject of this proceeding as defendants. Because that is clear by the content of that letter petitioning that is followed by circulations to Offices Departments of Government responsible for the upkeep of the law and the rule of law. It is well intended and not with mischief or vindictiveness or hatred. It is clearly a letter that should not have drawn what is now before this court.
  16. And this view becomes clearer in the affidavit of Trevor Meauri of 2nd June 2018 in particular annexure “A” Letter dated 18th June 2018 addressed to Ministers Honourable Elias Kapavore and Honourable Solan Mirisim again signed by the same officers as that to the Secretary Department of Personal Management set out above. Again, it is a very detailed letter itemized and is in the way set out raising a genuine governmental concern by officers within that Department who hold very senior Offices within for the good of that Department and for good governance of the Country. Because it is copied to the Prime Minister then Honourable Peter O’Neil, Minister for Treasury Honourable Charles Abel, and Minister for Finance then Honourable James Marape. It is a very open and transparent complaint supported by independent itemized corroborative evidence. And circulated to Ministers versed and relevant, including the Prime Minister. It is therefore in my view a genuine complaint made with a very strong sense of justice and the rule of law to prevail rather than to decapitate the plaintiff in his position as the Secretary of the Department of Defence. Experienced officers of Government who saw that if they did nothing Government services in that Department will stand to lose a lot. It is in that respect commended on the part of the officers.
  17. The other side of the view is that what is deduced from these is that the plaintiff was not making a genuine complaint against the defendants. His was being vindictive and with mischief. He was reacting to suppress them rather than to see how a genuine cause of injustice. It was not intended as a genuine complaint for certiorari. Because there is no error in the process on the required balance by the Public Service Commission of that decision that has annulled all the termination against each of the officers’ defendants named here.
  18. The relevant facts are that Plaintiff is the Secretary for the Department of Defence (DOD). Interestingly the third defendant was charged by the former Secretary Vali Asi on the 12th December 2016. She replied to her charges on the 21st December 2016. He deliberated on the charges and her reply and on the 25th of January 2017 plaintiff terminated Carmel Tamileoni’s contract of employment as Deputy Secretary of the DOD. It was for three (3) years contract starting initially on the 06th December 2013 and ending on the 06th December 2016. On or about the 04th April 2016 she with other senior officers including, Mary Chilen, Anna Lapu and Mamel Wingu authored and signed a petition to the Secretary of Department of Personal Management divulging very confidential information relating to the functions of the DOD without the consent and authority of the Secretary of the DOD. It was copied to a number of organizations thirteen (13) in all, including the PSC. On the 21st February 2017 she appealed to the Public Services Commission (PSC) pursuant to section 18 of the Public Service Management Act (PSMA) against her termination. The PSC responded on the 30th November 2017 annulling the decision of the Plaintiff, recommending her reinstatement to her substantive position as Deputy Secretary DOD, with full payment of all lost salaries and entitlements resulting from the termination. This was also the case of the other three defendants now before the court by the PSC in that decision. All were annulled of the decision terminating them and ordered to be reinstated to the positions they held prior with full payments of all salaries and entitlements resulting from those terminations.
  19. Mary Chilen has passed on 22nd March 2020 whilst pursing this matter. On the 1st December 2020, her daughter Marian William was granted leave to substitute her as third defendant. It is not reinstatement in her case but favourable outcome to do justice to the family and be beneficial towards claim of her estates. She joined the DOD and the National Public Service (NPS) on the 28th February 1989 and has since remained for a total of 28 years unblemished service until dismissal on the 25th January 2017. At that time, she was Assistant Secretary Human Resources Management, grade 16 under contract for a term of three (3) years effective 26th February 2014 to 26th February 2017.
  20. She was unlawfully displaced from her position and made an unattached officer without any good reasons on 03rd August 2015. To which she successfully appealed to the PSC and was reinstated back to her substantive position with all salary and entitlements but it was not implemented despite notice to the Secretary and remained outstanding pursuant to section 18 (6) (b) of the PSM Act. She was charged again with a malicious and false disciplinary charge and terminated on the 25th January 2017. She was still on contract current and had a month before expiry. She lodged her second review pursuant on or about the 21st February 2017 to the PSC against. The 90 days lapsed on the 27th June 2017 extension was sought and was granted by the PSC and it delivered its decision 30th November 2017 as with the other in similar terms.
  21. The plaintiff did not implement that decision again but filed this proceeding challenging it. He advances the same arguments in law against her case.
  22. In the case of Anna Lapu, the third defendant she joined the DOD and the NPS on the 25th October 1976 and remained there faithfully unblemished for 41 years of loyal disciplined service until dismissal on the 25th January 2017. At that time, she was Principal Staff Development & Training Officer grade 14 with a contract for Three (3) years effective 26th February 2014 to 26th February 2017. She was unlawfully displaced from that position on the 03rd August 2015 and made an unattached officer without any good reasons. To which she successfully appealed to the PSC who reinstated her to her substantive position held prior. It was communicated to the Secretary who refused to implement pursuant to section 18 (6) (b) of the PSM Act. She was charged further with some Malicious and false disciplinary offence and terminated from employment on the 25th January 2017. She had a month remaining on her contract then and had a right of renewal subject to performance appraisal which was circumvented by the Plaintiff.
  23. Like her co defendants she too lodged her appeal to the PSC on or about the 17th February 2017 against. In her case 90 days lapsed on or about the 27th June 2017, extension was sought and granted by the PSC and it delivered its decision pertaining with the others on 30th November 2017 annulling termination reinstalling all salary and entitlements similarly as with the others. Again, no implementation has taken place by the plaintiff who has opted institution of this proceedings. He also advances similar arguments against her as with the others in his cause against.
  24. In the case of Mamel Wingu she has passed on 12th December 2019 whilst pursing this matter. And like her co-defendant on the 1st December 2020, she sought leave and was granted to substitute her husband, Keith Wingu. Like the other reinstatement is not sought but Justice to the family and beneficial for the purposes of claiming her estate.
  25. Mamel Wingu joined the DOD and the NPS on the 20th February 1975 and remained faithfully unblemished there for 42 years until dismissal on the 25th January 2017. She was Manager Civil Staff & Salaries, Human Resource Management grade 14 with a contract for three (3) years effective from 26th February 2014 to 26th February 2017. On the 03rd August 2015 she was unlawfully displaced from her position and made unattached officer without any good reasons. To which she successfully appealed to the PSC who reinstated her back to her position held with all salary and entitlements pertaining. It was not implemented like the others, despite being communicated to the Secretary who did not heed section 18 (6) (b) of the PSM Act.
  26. Instead, she was charged again with a malicious and false charge on the 25th January 2017 with a month still open in her contract of employment and terminated. She lodged an appeal successfully to the PSC on the 14th February 2017. In her case 90 days expired on the 20th June 2017 but extension was made by the PSC and granted with the decision eventually as with the others on the 30th November 2017. Again section 18 (6) (b) of the PSM Act has not been heeded by the plaintiff who has instead filed this proceedings advancing the same arguments in her case as with the others.
  27. All four cases have been heard together because there is no prejudice to hearing all together. Because the evidence is common to all. The circumstances arise from the same facts and the evidence. And this view is clear from Pacific Trade International Ltd v Waisime [ 2020] PGSC 20; SC1935 (31 March 2020). Conversely similar in criminal law, Mapa v The State [1979] PNGLR 135 (4 May 1979). And that is clear by the intent of the plaintiff who seeks certiorari in all the defendant’s respective cases upheld by the decision of the Public Services Commission made on 30th November 2017.
  28. He must discharge on the balance of preponderance that there is error in law in the process and procedure in the decision of the Public Services Commission in each case. That effectively is what it is in certiorari. There is allegation of excess of power or ultra vires, District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192 (1 July 1981). He must demonstrate on the balance of probabilities that there is error on the face of the record of the decision of the public Services Commission that made annulling the decision to terminate each one of the third defendants, Carmel Tamileoni as Deputy Secretary Department of Defence; Mary Chilen as Assistant Secretary, Human Resources Management, grade 16 Position No; DHRM 008; Anna Lapu as Principal Staff Development & Training Officer grade 14, Position No: 011; and Mamel Wingu as Manager Civil Staff and Salaries, grade 14, Position No: DHRM 008 with the Human Resources Division.
  29. In summary he argues that the PSC decision in each case could not stand and must be quashed forthwith because there was error of law, it was ultra vires, unreasonable in the Wednesbury sense, and there was apprehension of bias which effectively vitiated that decision void ab initio. It was erroneous by the PSC including the first defendant by making findings of fact that in the case of Carmel Tamileoni, she had a valid and subsisting silent Contract, because her initial contract expired on the 06th December 2016. It was not renewed following. Therefore, the decision of the Public Services Commission was contrary to section 41 (4) of the Public Services (Management) Act 2014. It authored contractual employment which was not the case here therefore the PSC decision annulling did not stand in law.
  30. He relies on his own affidavit filed of the 10th April 2018 contained review book pages 16 to 69. A second one verifying the facts of the 23rd April 2018 review book pages 74-75. A third one of the 02nd July 2018 contained review book pages 91-125 of the review book. And a last one yet of the 14th October 2018 at pages 200-202 in the review book.
  31. What is clear is that the affidavit of the Plaintiff of the 10th April 2018 verifies the facts in support of the originating summons seeking leave for Judicial review. It does not contain the base document referred to in paragraph 12 of the affidavit, the contract of employment between Carmel Tamileoni with the department of Defence as Deputy Secretary.
  32. The Subject contract is annexure “A” in the affidavit of Carmel Tamileoni of the 17th August 2018 sworn 16th August 2018. It was signed on the 06th December 2013 for 3 years running. And two years into that position she was elevated on the 27th February 2015 by the National Executive Council as Acting Secretary Department of Defence after the resignation of the incumbent one John Poti to run for the Pomio Open seat. This is evidenced by annexure “B” to her affidavit of the National Gazette to this effect G277 dated the 02nd April 2015. That is further supported by the evidence annexure “C” by the Minister for Defence Honourable Fabian Pok MP of the 18th March 2015 and which appointment ceased on the 28th July 2015 on the appointment of Sebulon Tovaira on the 28th July 2015 by Gazette number G477 as dated.
  33. And she continued in that position until displaced by Secretary for Defence then Vali Asi on the 03rd November 2015. He did not administratively address despite being raised of that fact by this witness. Together with eight other senior officers, three of whom are now present in this court wrote a letter together, counter signed it dated the 04th April 2016, to the Secretary Department of Personal Management seeking his views. Pending that she was charged with two disciplinary Charges under section 25 of the Terms and Conditions of the Employment Contract on Form SOC9.3 for that fact for insubordination suspended without pay forthwith. Which were served on the 20th December 2016 to which she replied on the 21st December 2016 denying them. The consideration returned on the 25th of January 2017 she was found guilty and terminated from the Public Service as being her penalty to the offences. It was lodged for review against with the Public Services Commission on the 21st February 2017 who responded on the 30th November 2017 annulling the decision to terminate her. Reinstalling her to her position of Deputy Secretary Position number DEX 006 Grade 19.
  34. The plaintiff has not implemented the decision of the Public Services Commission since 30th November 2017. And which decision the plaintiff contends as ultra vires and erroneous in law. Because the decision was delivered outside the statutory period of 90 days and secondly that the contract of the third defendant had expired and therefore, she could not be reinstated as held by the PSC.
  35. This is not the position that the plaintiff maintains in his affidavit of the 02nd June 2018 at paragraph 11, where he states:

“This is not the first time that the Third defendant and these officers have done this. In March 2017, they referred me to the Ombudsman Commission who then directed me to reinstate these officers who had lodged their appeals with the Public Services Commission which were pending determination. The Public Services Commission being a Constitutional Office was required by law to independently deal with those respective appeals.”


  1. This evidence is corroborated by annexure “E” of the affidavit of the plaintiff. It is a letter addressed to the Plaintiff Secretary Department of Defence and subjected as reinstatement of Senior Officers of Department of Defence by lawyers for the defendants. The letter refers to the following officers, Carmel Tamileoni, Doris Lenturut, Mamel Wingu, Anna Lapu, Mary Chilen and Hirimaih Haro. The letter refers that all were terminated by then Secretary Vali Asi on the 25th January 2017 without compliance with relevant procedures provided in their respective contracts of employment and the relevant procedures under the Public Services (Management) Act. That all their reviews were filed with the Public Services Commission in February and March 2017. Each were reviewed and reinstated to their substantive positions as per schedule “A” to that letter.
  2. This schedule is in the following terms; Carmel Tamileoni to Deputy Secretary GR/PS 19 POS No. DEX 006 and the date of contract is 06th December 2013 effective as of 21st October 2016. And the PSC decision to be implemented as of the 30th November 2017.
  3. Doris Lenturut First Assistant Secretary-Corporate Affairs GR/PS 18, POS No. DCA 001 the date of the contract is 06th December 2013 effective as of 21st October 2016. And the PSC decision to be implemented as of the 30th November 2017.
  4. Anna Lapu Principal Staff Development Officer GR/PS 14 POS No. DHRM 011. The date of the contract is 30th September 2014 effective as of the 26th February 2014. And the PSC decision is to be implemented as of the 30th November 2017.
  5. Mary Chilen Assistant Secretary-Human Resources & Payroll GR/PS 16, POS No DHRM 008. The date of the Contract is 02nd April 2015 effective as of the 26th February 2014. And the PSC decision to be implemented 30th November 2017.
  6. What has happened here is to the letter of the law following Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005) for all four defendants. The Public Services Commission has overturned annulled the decision of the Department of Defence through the Office of the Secretary that terminated the defendants. That decision has not been attained in breach of the law but in compliance of the law. The argument advanced by the plaintiff that Carmel Tamileoni had her contract expired 06th December 2016 as Deputy Secretary is without any real basis, because she signs the contract each of Anna Lapu, Mary Chilen, Mamel Wingu, David Porykali and Doris Lenturut in her capacity as Deputy Secretary for that period. And if that is not confirmation the payslips that she has attached for annexure “I” 12th October 2016 to 08th June 2018 show the same figure of K 3337.92 gross and net K 1918.95. If indeed she was no longer Deputy Secretary and that her contract had ended, why she is still paid the same pay figure even after the 06th December 2016. And she travels in that capacity her itinerary annexure “K” to her affidavit here. It means for all intent and purposes she continues to be employed as Deputy Secretary and hence the pay. The decision by the PSC here is not in error by the law but in compliance and stands against in favour of the third defendant. There is a contract at law by the overt actions of the parties in the matter, Keboki Business Group (Inc) v State [1984] PNGLR 281). The argument of the plaintiff is without merit and fails.
  7. Similarly, the argument that the PSC failed to take into all relevant matter in its decision is without merit considering all the discussions set out above. What is without merit in the light of the discussion set out above is the contention of the plaintiff. The decision of the PSC was very considerate and did not fail to as allege by the Plaintiff. This ground is without merit and fails. Similarly, the argument that there was no delegation also fails because the decision is very explicit and clear leaving nothing to chance. It is covered both for and against and is sealed to ensure justice considering what is set out above. There is no merit in this argument by the plaintiff. He does not advance his case in reliance.
  8. In this respect the argument based upon Ultra Vires is also not made out because there is clearly extension made not at the contradiction of the PSC but the non-cooperation of the plaintiff. PSC made every effort to hear all sides of the story and it meant bending back to give time for the plaintiff to speak his case. It did not show on the records that the plaintiff was not given an opportunity. And in so doing time lapsed so that it led as it did to 30th November 2017 when the decision came out. It is a Constitutional Office and would not bend the Constitution to defy it as alleged by the Plaintiff, Begilale v Moutu [2018] PGNC 440; N7549 (2 November 2018).
  9. And the evidence is self-explained by the affidavit of the First Defendant filed of the 31st May 2018. It is a very detailed and very extensive affidavit covering all spheres together with annexures. There is nothing in it that shows defiance of the law or the Constitution, what it set out to do and came out with the ruling annulling of the 30th November 2017. As it is it does not advance the cause of the Plaintiff rather it gives material and independent effect to the case of each of the defendants. There is on the basis of its veracity truth that the law was complied with and the decision has no breaches as contended by the plaintiff. The aggregate is that this argument is without merit and fails in all its form contended, Palaso v Kereme [2016] PGNC 381; N6638 (19 August 2016).
  10. And given these bases by this evidence it is not unreasonable nor is it contrary to the Wednesbury sense as contended by the plaintiff. Because by this evidence coupled with all set out above leaves no merit in the argument advanced by the plaintiff. To argue it in the sense conveyed by Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 (13 April 1989) would not draw any blood given the veracity of the evidence of the first defendant read with all set out above. The socio-political aspirations of the Country and the scheme of the legislative amendments designed do not enhance that the views contended by the plaintiff be acceded to. This is cemented out by the views set out in the primary here particularly the letter or petition that erupted leading here.
  11. It leads that Carmel Tamileoni, Mamel Wingu, Anna Lapu, and Mary Chilen all lead out against the Plaintiff in their cause of action. Because the evidence is clear from the First defendant paragraph 11 of his affidavit:

“The Commission in conducting its review of a complaint, considers two things namely; procedural compliance by the Departmental Head under the PSM Act and Public Service General Orders and secondly, the merits of the allegations.


12. In the instance, since there were breaches in the disciplinary process instituted against the third Defendant, the merits of the allegations could not be considered as the allegation had no legal basis to stand on.”

13. The plaintiff alleges that the Commission’s decision was somehow biased because of a letter written by a number of officers including the Second Defendant that was addressed to the Secretary, Department of Personal Management and copied to various other authorities including my office raising allegations against the Former Secretary, Department of Defence the late Vali Asi.


I refute the allegations of bias mentioned in paragraph 13 above on the following reasons: 14.1 The commission comprises of three (3) individuals who make decisions independently of each other. 14.2 The Commission is an impartial constitutional office whose independence in conducting its Constitutional functions is guaranteed by section 192 of the Constitution.”


  1. Given all the aggregate is that the notice of motion of the plaintiff is without substance and fails in all frontiers pleaded and argued against the defendants. It is dismissed in its entirety forthwith with costs. In this respect cost is on an indemnity basis given all the facts discussed above. It was an action that was unnecessarily brought in court cost is discretionary what is set out above clearly portray that the defendants were unnecessarily drawn into court. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant that stern action be taken against blameworthy conduct, Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

  1. The facts set out above show a piece meal approach in the way the actions were instituted by the plaintiff. Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted congested actions must be avoided, but there ought to be a sense of balance drawn so that equity meets equity not without. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done piecemeal, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice.
  2. Similarly, here when the position is clear by reading section 18 (6) (b) of the PSM Act that ought to be implemented there and then. Here it was twice in the making. On each occasion the plaintiff sought to maintain defiance and persistent perseverance to ignore. Right to the extent of bringing this action to where two defendants have had to die waiting. And it was all to do to satisfy ego rather than serve the lady Justice who holds the hand of equity and law. The road to justice is with fairness and equity not without. There was no urgency to move. It was in the plaintiff’s favour that leave was granted rather than wait that process and see the hearing of the review he put the defendants to tasks by bringing their attendance here including court time. Appreciating what the law was on in like proceedings. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. In my view there is blameworthiness and therefore costs will be on an indemnity basis. Costs will therefore be on indemnity basis to follow the event upon the plaintiff in favor of the defendants.
  3. And The decision of the PSC of the 30th November 2017 reinstating all defendants Carmel Tamileoni, Mary Chilen, Mamel Wingu, and Anna Lapu to the respective positions that they each held forthwith with all salaries and entitlements pertaining is hereby confirmed in all material respects as the position in law in respect of all defendants and must be implemented forthwith. All entitlements due and emanating to all defendants from the positions each held by confirmation of that decision are to be settled in full forthwith if not done so. In respect of the deceased defendants Mary Chilen, and Mamel Wingu both be accorded in lieu of reinstatements what is lawfully due emanating from their Salary and entitlements to the positions each held when that decision was given by the PSC 30th November 2017.
  4. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Raurela Lawyers : Lawyer for the Plaintiff /Applicant

PSC Inhouse Lawyers : Lawyer for the First & Second Defendant

Baniyamai Lawyers : Lawyer for Third Defendants Anna Lapu

Office of the Solicitor General: Lawyer for the Fourth Defendant

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