N9731

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 69 OF 2022

JACK KARIKO, SECRETARY, NATIONAL JUDICIAL STAFF SERVICE
Plaintiff

V

DR KEN NGANGAN, SECRETARY, DEPARTMENT OF FINANCE
First Defendant

DEPARTMENT OF FINANCE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2022: 3rd, 18th, 23rd May, 1st July

GOVERNMENTAL BODIES – National Judicial Staff Service (NJSS) – salaries and terms and conditions of employment of officers – determination of salaries of officers – roles and functions of Judicial Council regarding salaries of officers – whether Secretary for Finance obliged to implement decisions or recommendations of Judicial Council regarding salaries of officers of NJSS.

CONSTITUTIONAL LAW – duties of National Government and governmental bodies to arrange staff and facilities to enable and facilitate proper and convenient performance of functions of constitutional institutions – Constitution, s 225 – whether Secretary for Finance obliged to implement decisions or recommendations of Judicial Council regarding salaries of officers of NJSS.

REMEDIES – declarations – circumstances in which it is appropriate to declare that an administrative decision is lawful.  

The plaintiff, in his capacity as Secretary of the National Judicial Staff Service (NJSS), sought declarations and orders aimed at implementing a decision of the Judicial Council to approve salary increases for officers of NJSS for the years 2017 to 2022, in particular that part of the decision regarding 2021 and 2022. The Secretary of the Department of Finance (Secretary for Finance) was named as the first defendant, and was the primary defendant. Other defendants were the Department of Finance and the State. The Secretary for Finance implemented the decision of the Judicial Council for the years 2017 to 2020, but the plaintiff claimed that he failed to implement the decision regarding 2021 and 2022. The plaintiff sought four remedies: (1) an order summoning the Secretary for Finance to appear before the Court to explain his failure to fully implement the decision of the Judicial Council; (2) a declaration that the Judicial Council’s decision in respect of the years 2017 to 2022 was lawful; (3) a declaration that the failure to fully implement the Judicial Council’s decision is in breach of s 225 of the Constitution; and (4) an order that the Judicial Council’s decision be implemented in full forthwith by payment to all NJSS officers of salary increases for 2021 and 2022 in the first pay week after the order.

Held:

(1)	The Secretary for Finance is the primary defendant in adversarial proceedings commenced against him by a plaintiff who is prosecuting a cause of action categorised as a breach of a constitutional and statutory duty. Both parties are legally represented. It is neither necessary nor appropriate to transform the proceedings into an inquiry in which the Secretary for Finance would be required to appear in Court and justify his alleged failure to implement an administrative decision. It is the plaintiff’s case and he is obliged to prove it according to law. The Secretary for Finance, as a defendant, is entitled to the full protection of the law under s 37 of the Constitution, and that right would be denied him if were summoned to Court to justify his actions. First remedy refused.

(2)	A declaration is an equitable remedy that should only be granted where it is necessary and convenient to do so and where it would aid in resolution of the real issues at the centre of a dispute between parties. Here it was neither necessary nor convenient to grant a declaration and it would not aid in resolution of the dispute as (a) there was insufficient evidence that the Judicial Council had in fact made a decision in the terms claimed by the plaintiff; and (b) the Judicial Council had no authority under the law establishing it, the National Judicial Staff Service Act 1987, to determine or recommend the salaries or other terms and conditions of officers of NJSS. Second remedy refused.

(3)	The Secretary for Finance was under no specific legal obligation to implement any decision or recommendation of the Judicial Council. Though he was under a general obligation perforce of s 225 of the Constitution to facilitate the proper performance of functions of all constitutional institutions, including the Supreme Court and the National Court and NJSS, there was insufficient evidence that he had failed to perform that obligation. Third remedy refused.

(4)	The question of salaries of officers of NJSS is determined either by the making of regulations under the NJSS Act or through determinations of the Salaries and Conditions Monitoring Committee under the Salaries and Conditions Monitoring Committee Act. No regulations have been made under the NJSS Act, therefore salaries of officers of NJSS are determined, as for officers of the National Public Service and other public authorities, in accordance with the SCMC Act. There is no evidence that the SCMC has authorised salary increases for 2021 and 2022, so there is no obligation on the Secretary for Finance to implement such increases. There is no basis for an order that the Secretary for Finance implement such increases. Fourth remedy refused.

(5)	All claims for relief were refused and the proceedings were dismissed. 

Cases Cited

The following cases are cited in the judgment. 

Papua New Guinean Cases

Donigi v The State [1991] PNGLR 376
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425
The State v Central Provincial Government (2009) SC977

Overseas Cases

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Counsel

F Barton & J Topo, for the Plaintiff
K Kipongi, for the Defendants

1st July, 2022

1.      CANNINGS J: The plaintiff, in his capacity as Secretary of the National Judicial Staff Service (NJSS), seeks declarations and orders aimed at implementing a decision of the Judicial Council of 18 February 2020 to approve salary increases for officers of NJSS for the years 2017 to 2022, in particular that part of the decision regarding 2021 and 2022. 

2.     The Secretary of the Department of Finance (Secretary for Finance) is named as the first defendant, and is the primary defendant. The Department of Finance is second defendant and the State is third defendant.

3.    The plaintiff’s primary contention is that although the Secretary for Finance has implemented the decision of the Judicial Council for the years 2017 to 2020, he has failed in his duty, arising under the Constitution, to implement the decision regarding 2021 and 2022. 

4.     The plaintiff seeks four remedies: 

(1)	an order summoning the Secretary for Finance to appear before the Court to explain his failure to fully implement the decision of the Judicial Council; 

(2)	a declaration that the Judicial Council’s decision in respect of the years 2017 to 2022 is lawful; 

(3)	a declaration that the failure to fully implement the Judicial Council’s decision is in breach of s 225 of the Constitution; and 

(4)	an order that the Judicial Council’s decision be implemented in full forthwith by payment to all NJSS officers of salary increases for 2021 and 2022 in the first pay week after the order.

5.     Those remedies are sought in paragraphs 1 to 4 of the further amended originating summons filed on 19 May 2022, in the following terms: 

The Plaintiff/Applicant seeks the following orders:

1.	Pursuant to Section 225 of the Constitution, an order or summons be issued by this Honourable Court for the first defendant to personally appear before this Court to answer to this application. 

2.	A declaration that the Judicial Council’s decision of 18 February 2020 for an annual 4.5% General Base Salary increase (CPI) for the years 2017, 2018 and 2019 to the National Judicial Staff Service officers and employees and the 7.5% increase for the years 2020 to 2022 is lawful.

3.	A declaration that the defendants’ failure to complete payment of the Judicial Council’s decision of 18 February 2020, is in breach of Section 225 of the Constitution.

4.	Pursuant to Section 23(2) and Section 225 of the Constitution, an order that the defendants take all necessary steps as reasonably practicable within and incidental to their lawful powers and functions to ensure the National Judicial Staff Services (NJSS) outstanding annual 7.5% General Base Salary Increase (CPI) for the years 2021 and 2022 be paid in full in the first pay week immediately following this order.

6.      I will address each remedy sought in turn.

1	ORDER SUMMONING THE SECRETARY FOR FINANCE 

7.     The plaintiff argues that the Secretary for Finance should be summoned to Court to explain or justify his failure to fully implement the Judicial Council’s decision. I decline to issue such a summons.

8.     It is important to appreciate that these are adversarial proceedings commenced against the Secretary for Finance by a plaintiff who is prosecuting a cause of action categorised as a breach of a constitutional and statutory duty. By commencing and prosecuting the proceedings the plaintiff is representing the interests of officers of a governmental body, the NJSS, of which he is the head. Both parties are legally represented. 

9.     It is neither necessary nor appropriate to transform the proceedings into an inquiry in which the Secretary for Finance would be required to appear in Court and justify his alleged failure to implement an administrative decision. It is the plaintiff’s case and he is obliged to prove his case according to law. The Secretary for Finance, as a defendant, is entitled to the full protection of the law under s 37 of the Constitution, and that right would be denied him if were summoned to Court to justify his actions, before the case against him has been proven. The first remedy sought is refused.

2	DECLARATION THAT THE JUDICIAL COUNCIL’S DECISION IN RESPECT OF 2017 TO 2022 IS LAWFUL

10.     A declaration is an equitable remedy that should only be granted where it is necessary and convenient to do so and where it would aid in resolution of the real issues at the centre of a dispute between parties. Other conditions that should exist before the Court considers granting a declaration have been spelt out by Kapi DCJ in Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425 and by Brown J in Donigi v The State [1991] PNGLR 376 and by the Supreme Court in The State v Central Provincial Government (2009) SC977. We continue in PNG to have regard to the persuasive authority of the House of Lords in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438. This means that the inherent jurisdiction of the National Court to grant a declaration of the rights and obligations of parties or the legal effect of their actions should only be exercised if the following criteria are satisfied:

•	there must exist a controversy between the parties;
•	the proceedings must involve a right;
•	the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
•	the controversy must be subject to the court's jurisdiction;
•	the defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim; and
•	the issue must be a real one, it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

11.     I have considered those criteria. Most are satisfied. However, I consider that it is neither necessary nor convenient to grant the declaration sought by the plaintiff, and it would not aid in resolution of the dispute between the parties, for two reasons:

first, there is insufficient evidence that the Judicial Council in fact made a decision in the terms claimed by the plaintiff; and

secondly, the Judicial Council has no authority under the law establishing it, the National Judicial Staff Service Act 1987, and it is beyond its statutory functions, to determine or recommend the salaries or other terms and conditions of officers of NJSS. 

Insufficient evidence of a decision 

12.     The plaintiff’s case is that the Judicial Council made a decision on 18 February 2020 to approve salary increases for officers of NJSS for the years 2017 to 2022. Where is the evidence of that decision? The best that the plaintiff can provide is annexure B to his affidavit filed in these proceedings on 13 April 2022, exhibit P1. This is a three-page submission of the plaintiff to the Judicial Council bearing the same date as the decision relied on, 18 February 2020, entitled “PAYMENT OF CPI ADJUSTMENT SALARY INCREASE FOR NJSS STAFF OF 4.5% EACH FOR THE YEARS 2017, 2018 AND 2019 AS BACK PAYMENT”. 

13.     The full text of the submission is as follows:

A.	PURPOSE

1.	To inform the Council that the NJSS staff:

(a)	have always received 7.5% since 2013 which ended on 2016 consistent with the same CPI award for Judicial officers.
(b)	received 3% CPI adjustment for the years 2017, 2018 and 2019.

2.	To seek approval and endorsement of the Council that the staff of the NJSS be awarded the balance of the CPI award for 2017, 2018 and 2019 of 4.5% per annum to be paid in 2020 as back payment and 7.5% annually for the years 2020, 2021 and 2022 consistent with the recent CPI award for the Judges for the same periods.

B.	BACKGROUND

1.	The memorandum of agreement (MOA) for Salaries, Allowances and Benefits in the Public Service 2013-2015 between the Department of Personnel Management and the Public Employees Association to be effective from 1st January 2013 for the three year period ended on 31st December 2015.

2.	The MOA does apply to employees within the Public Sector whose salary increase is provided through a separate agreement or other legal instruments. This includes the National Judicial Staff Service and the Magisterial Service, as provided for by Clause 2.2.7 of the agreement.

3.	The NJSS does not have a separate agreement or other legal instruments to award this general salary increase but seeks the Judicial Council’s approval for implementation of the salary increase to maintain the salary structure variance between the Public Service and the NJSS.

4.	In 2016 the NJSS staff received the general increase of 7.5% after approval from the Judicial Council. This was the last time the 7.5% was paid and implemented for NJSS staff. Similarly, the Judicial Officers including the Secretary and the Registrar did not receive any CPI adjustments.

5.	In 2017 and subsequent budgets we have budgeted for the implementation of this general increase of 7.5% CPI annual awards but due to mainstream public service not receiving, the flow on effect was that the NJSS did not apply it.

6.	The Public Service through NEC decision No 304/2016 awarded 3% CPI awarded for 2017, 2018 and 2019.

7.	The NJSS accepted the 3% CPI increase as applicable also to NJSS without the usual 7.5%.

8.	This submission now seeks for the NJSS staff to be paid the balance of the 7.5% for the years 2017 - 2019 which is 4.5% for each of these years in 2020 consistent with the 7.5% CPI awarded to the Judicial Officers in December 2019.

C.	FINANCIAL IMPLICATIONS

It will cost K4.9 million but because the salary component of NJSS is retained by the Department of Finance, it will not have any impact on NJSS Goods and Service component of the funds.

D.	POLICY IMPLICATIONS

By not awarding NJSS staff of this 4.5% CPI adjustment, we are not abiding by our practice where the Judicial Officers and NJSS Officers have always enjoyed 7.5% annual CPI award. Therefore, since the Judicial Officers have been awarded 7.5% CPI adjustment, it follows that NJSS staff be awarded the balance outstanding, which is 4.5% to make it 7.5% annually.

E.	LEGAL IMPLICATIONS

Nil

F.	RECOMMENDATIONS

It is recommended that the Judicial Council:

1.	Approves and endorses this submission to award NJSS staff 4.5% CPI adjustment for the years 2017, 2018 and 2019 to be paid as one off back payment in 2020.

2.	Directs the Secretary, NJSS to inform the Chairman, SCMC of the Judicial Council decision for implementation.

The Judicial Council noted the recommendations and: (circle the decision)

1.	approves the recommendation in its entirety;

2.	varied the recommendation.

3.	referred back to the Secretary for further information

Dated this the day 18th day of February 2020.

[signed]

Sir Gibbs Salika, GCL, KBE CSM OBE
Chief Justice & Chairman, JC

14.     The plaintiff maintains that the above document has been transformed from a submission to a decision of the Judicial Council by virtue of it being signed by the Chief Justice as Chairman of the Judicial Council. I am not convinced.

15.     As it reads, the purported decision makes little sense. What is the decision? The only decision, if any decision has been made, is this:

The Judicial Council … 

1.	approves the recommendation in its entirety;

2.	varied the recommendation.

3.	referred back to the Secretary for further information

16.     If that is the decision, it is contradictory, internally inconsistent, vague, meaningless and, therefore, a nullity.

17.     There is not even evidence that there was a meeting of the Judicial Council on the day in question, 18 February 2020. Membership of the Judicial Council is prescribed by s 3A(2) of the National Judicial Staff Service Act 1987:

The Council shall consist of the following members:—

(a)	the Chief Justice; and
(b)	the Deputy Chief Justice; and
(c)	the Chief Magistrate; and
(d)	the Judge nominated by the Chief Justice; and
(e)	a Magistrate nominated by the Chief Magistrate.

18.    Was there a quorum for the meeting? If there was no meeting, did a majority of members of the Council concur with the purported decision, in accordance with s39 of the Interpretation Act? 

19.    Really, there is nothing to suggest that there was a meeting of the Judicial Council. No minutes of any meeting have been adduced in evidence. 

20.     I observe that in the document in evidence, a circle has been put by some person around the first number 1 in Part F. Who placed the circle there? And what does it mean? There is no evidence and there are no clear answers to these questions.

21.    I am in no position to properly grant a declaration that the purported decision of the Judicial Council was lawful. I cannot even make a declaration that the Judicial Council made a decision. 

Judicial Council has no authority to determine or recommend the salaries or other terms and conditions of officers of NJSS 

22.     The functions of the Judicial Council are prescribed in general terms by s3A(4) of the National Judicial Staff Service Act, which states:

The functions of the Council are as specified in this Act and the Council has full power to carry out its functions.

23.     The main function of the Judicial Council specified in the Act is to consider and determine a limited range of disciplinary matters referred to it under Part III (discipline). It is not a specified function of the Judicial Council to determine salaries of NJSS officers or even to make recommendations to any other person or authority, including the Secretary for Finance, let alone enforceable recommendations, on what the salaries should be.

24.     I decline to make any declaration in the terms sought by the plaintiff in paragraph 2 of the originating summons.

3	DECLARATION THAT FAILURE TO FULLY IMPLEMENT THE JUDICIAL COUNCIL’S DECISION IS IN BREACH OF CONSTITUTION, SECTION 225

25.     Section 225 of the Constitution provides:

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.

26.     I find that the Secretary for Finance was under no specific legal obligation to implement any decision or recommendation of the Judicial Council and though he was under a general obligation perforce of s 225 of the Constitution to facilitate the proper performance of functions of all constitutional institutions, including the Supreme Court and the National Court and NJSS, there is insufficient evidence that he has failed to perform that obligation. The declaration sought in paragraph 3 of the originating summons is refused.

4	ORDER UNDER SECTIONS 23(2) AND 225 OF THE CONSTITUTION THAT THE JUDICIAL COUNCIL’S DECISION BE IMPLEMENTED FORTHWITH

27.     The question of salaries of officers of NJSS is determined either by the making of regulations, pursuant to s 26(1) of the National Judicial Staff Service Act or through the determinations of the Salaries and Conditions Monitoring Committee under the Salaries and Conditions Monitoring Committee Act (SCMC Act). 

28.     No regulations have been made under the NJSS Act. Therefore, salaries of officers of NJSS are determined, as for officers of the National Public Service and other public authorities, in accordance with the Salaries and Conditions Monitoring Committee Act. There is no evidence that the SCMC has authorised salary increases for 2021 and 2022, so there is no obligation on the Secretary for Finance to implement such increases. To implement such increases without lawful authority would itself be unlawful. 

29.     There is no basis for an order that the Secretary for Finance implement such increases. The Court cannot make an order under s 23(2) or 225 of the Constitution in a vacuum. There must be some underlying legal obligation and evidence that the Secretary for Finance is in breach of that obligation before the Court could properly and lawfully make the order sought.  

CONCLUSION 

30.     These proceedings will be entirely dismissed. Costs would normally follow the event. However, due to the failure on the part of the Secretary for Finance to communicate effectively, courteously and respectfully with the plaintiff and due to his apparent failure, with respect, to cooperate with the office of Solicitor-General in defending these proceedings (this is apparent from the evidence of the defendants’ counsel, Mr Kipongi), I will order the parties bear their own costs. Had the Secretary for Finance acted in the manner in which he was required to, as a leader subject to the Leadership Code, the need for these proceedings would have been avoided. 

ORDER

(1)	All relief sought by the plaintiff is refused and the proceedings are dismissed.

(2)	The parties shall bear their own costs of the proceedings. 
__________________________________________________________________
Emunah Legal: Lawyers for the Plaintiff		
Solicitor-General: Lawyers for the Defendants