N9308
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 92 OF 2021 (IECMS)

BETWEEN:
MIN EREMUGE, PHILIP AURE, THERESA KOTIO, ENOS TAUBONA, HELEN INARU, CHARLIE KEAFAE, SAMA SUGUYA, & ANTON KARO
Plaintiff

AND:
DR. JOESPH APA
First Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 12th & 15th November

PRACTICE & PROCEDURE – Judicial Review – Substantive Notice of Motion – Termination of Health Workers – Non-Violent Protest – Breach of Disciplinary Process  – Denial of Natural Justice – Wrong Date Of Alleged Offence – Whether Termination warranted – Ultra Vires – Error Of Law –Wednesbury Principles of Unreasonableness – Public Service (Management) Act 1995 repealed Law  – Correct Current Law Public Service (Management) (Amendment) Act 2014 – Action Not Founded under Current Law – No Cause of Act– Action dismissed with Costs.

Cases Cited:
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 
Garo v The Police [1985] PNGLR 320 
Counsel:

S. Wanis, for Plaintiffs
R. Uware, for Defendants

RULING
15th November 2021
1.	MIVIRI, J: This is the ruling on the Plaintiff’s substantive Notice of Motion of the 15th July 2021 seeking an order in the nature of a certiorari pursuant to Order 16 Rule 1 (1) of the National Court Rules and section 155 (4) of the Constitution, and the inherent powers of the Court to remove into this Court and quash the decision of the First Defendant by way of letters dated the 24th and 29th November 2017 that purportedly terminated the plaintiffs/Applicants.

2.	They also seek damages to be assessed including their missed salaries and other entitlements.

3.	Costs of and incidental to the proceedings is also sought.

4.	The primary facts in the matter are that on the 20th March 2017, there was a non-violent protest by the Eastern Highlands Provincial Health Authority (EHPHA) Staff over the Mismanagement of the Goroka Hospital. The Acting Chief Executive Officer at that time was Dr. Max Manape until on the 08th May 2017, when the second defendant/respondent assumed office as permanent CEO of the EHPHA. On the 24th November 2017 the second defendant/respondent issued termination letters each to the seven plaintiff/applicants. On the 29th November 2017 the employment of Enos Taubona was terminated by the first Respondent and on the 14th December 2017 the plaintiff/Applicant lodged their review application with the Public Service Commission. The Review application was lodged within the 60 days period required by section 18 of the Public Services Management Act 2014. To which on the 30th April 2019 the Public Services Commission issued its decision annulling the decision of the First Respondent and reinstated all plaintiffs/Applicants. 

5.	And its reasons were that the notice of suspension; charge and punishment were not served personally on all the plaintiff/applicants. And further they were not given the opportunity to address on the penalties. And the charge related to the wrong date altogether of the Minister’s visit. The Minister and the Secretary visited on the 20th March 2017 and not the 24th April 2017. And the offence complained was minor but drew penalty which was excessive. And there was gross abuse and breach of the disciplinary process. There were no witness Statements presented against the plaintiffs/applicants.

6.	After the decision of the PSC was delivered the first Defendant/Respondent filed a judicial review proceeding at the Goroka National Court in 2019. On the 12th November 2020 the Court upheld its application and quashed the decision of the PSC which effectively put the plaintiff/Applicants still terminated from their employment.

7.	The relevant particulars of the decision to be reviewed here is the uniform decision of the second defendant/respondent made on the 24th November 2017 and 29th November 2017 in both instances by a letter on each occasion terminating their services as Health workers, Min Eremuge community health worker, Philip Aure nursing officer, Theresa Kotio community health worker, Enos Taubona an anaesthetic scientific Officer, Helen Inaru community health worker, Charlie Keafae community health worker, Sam Suguya nursing officer, and Anton Karo community health worker.

8.	And then against each the plaintiff/applicants asserting that the facts were sustained and applied section 52 (5) of the Public Service (Management) Act 1995 drawing the punishment upon them all:

Your services to EHPHA is no longer required, thus termination of your services is effective as from this notice. You are released openly to seek employment elsewhere in any government or private organizations. Your salaries will cease as from the 26th January 2018 from the EHPHA payroll. If you are not satisfied with the Committee’s decision, you are free to appeal against the decision with higher authorities.

9.	It reasoned that, the notice of suspension; charge and punishment were not served personally on all the plaintiffs/applicants. That they were not accorded the opportunity to address the penalties in each case delivered. The charges were not sustainable because the dates were incorrect, not 24th April 2017, because the allegation arose on the 20th March 2017. There were no witnesses to the allegation and the charges could not have sustained leading to their termination as the ultimate penalty.

10.	Importantly and primarily the charges do not have the correct date of the allegation because the date of the Minister’s visit is when the allegation is supposed to have arisen, 20th March 2017 and not the 24th April 2017. There is immediately a cause for concern substantive to the allegation raised. It means the dismissal and the termination is not founded on a date sustaining. There is no offence committed and therefore the charges do not sustain. 

11.	The defendants did not file any material against the assertions of the Plaintiff as set out above, either affidavits or any material to counter what was asserted by the Plaintiffs. Through counsel they simply urged that the Court still had the ultimate discretion to determine, firstly whether Judicial review did lie in the matter, secondly whether the remedy pleaded did lie in the matter? That is whether damages or certiorari did lie to bring up that initial decision to terminate? And if so whether the remedy pleaded for damages did lie in the matter? They relied on Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797. That reinstatement was in order and repayment of all loss entitlements and salaries was in order, but not damages as pleaded by the plaintiffs. 

12.	What counsel for the defendants has urged is sound basis in my view in all including the present case. And that is what Courts are meant to do, by their discretion by the law and materials illuminated by the evidence relied not to decent into the dust of the arena and be clouded by the dust of the arena. The National Court will independently make the decision on the law with the evidence relied to give what is due therefrom, not without.

13.	I deal with the grounds of Judicial review of Error of Law/Ultra Vires. Here the plaintiffs contend that the first defendant respondent exceeded his powers in the letter that he served of the 24th and the 29th November 2017. He acted in breach and contrary to section 52 (5) of the Public Services (Management) Act 1995, which accords the exercise of that power upon the head of the Department. Here the CEO of the Provincial Health Authority, the First Defendant is not the Head of the Department. That is the Secretary for Health. 

14.	At the outset, I caution counsel to carefully check and verify that the correct law is relied and submitted before the Court. Because all else flows from the correct and current law without which an action fails. The case for the Plaintiff and against him falls or stands on the application of the correct and current law. The current law is not the Public Services (Management) Act 1995, because that has been repealed and replaced by the Public Services (Management) (Amendment) Act 2014. Section 52 (5) of the Public Services (Management) Act 1995 is no longer the relevant law given the facts of this case. It means this action is not derived from the current and operating law: Garo v The Police [1985] PNGLR 320 makes it clear that a repealed law is non-existent and it is treated as such it has not existed. Therefore, there is no judicial review in the case of each of the plaintiffs cause of action before the court. The law must fit the contention of the plaintiffs in every case. Without the law there is no cause of action. Here the Public Services (Management) Act 1995 has been repealed and replaced by the Public Services (Management) (Amendment) Act 2014. The Section 52 (5) is no longer the law applicable. 

15.	As it is judicial review is not made out, no cause of action is sustained against the defendants without the right law. The court will make its determinations on the law that is relied on by the parties. It will not insert its own, nor would it run the case of the parties for them. It will make its determinations based on the materials and importantly the law that is relied on in this case by the plaintiffs. Because the Court is independent of any of the parties to the cause of action. Its determinations are based on the material presented before it. Here the cause of the plaintiff is not supported by the law relied. The action does not sustain because there is no basis in law to sustain and hold for the plaintiff.

16.	The facts here show that the second defendant by a letter on each occasion firstly on the 24th November 2017 and then 29th November 2017, in both instances terminating their services as Health workers. Therefore, PMSA Act 2014 was the law there and then in operation. Judicial review here has not come by the PMSA Act 2014, but Public Services (Management) Act 1995, copy of which counsel has submitted in reliance to Court. It is in evidence before the Court.

17.	The heart of any proceedings, be it civil or criminal is the Law relied on as that gives life to the facts that are pleaded by the evidence. I am not fortified to make the determinations for the plaintiffs, as I do not have the right law applicable cited and relied on to make the determinations pleaded for by the Plaintiffs. The Public Services (Management) Act 1995 has been repealed and replaced by the Public Services (Management) (Amendment) Act 2014. The latter is not the law relied before me here, and so this action for judicial review fails, and is not made out. The judicial review of each plaintiff is dismissed forthwith with costs to the defendants.

18.	There can’t be any related orders made because there is no basis in law engulfing justifying accordingly. This action does not have the law sitting to make the determinations sought by the Plaintiffs.

19.	The formal orders of the Court are:

(i)	judicial review is refused in each case of the plaintiffs.
(ii)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Solomon Wanis Lawyers: 	Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyer for the Defendants