Kepson v Hulahau [2023] PGNC 292; N10448 (22 August 2023)

N10448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 23 OF 2023 (IECMS)

JAMES LOKALYO KEPSON
Plaintiff

V

STANIS HULAHAU IN HIS CAPACITY AS CHIEF MIGRATION OFFICER-PAPUA NEW GUINEA MIGRATION AND CITIZENSHIP AUTHORITY
First Defendant

AND
PAPUA NEW GUINEA MIGRATION AND CITIZENSHIP AUTHORITY
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 20^th July, 22^nd August

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) Leave Application for Judicial review – Employment By Performance Based Contract – Contract For Three years Expired – Contract Not Renewed – No Locus Standie – No arguable basis of – Delay – Public Service Commission decision to – Papua New Guinea Immigration & Citizenship Authority – Not National Public Service – Not Department or Deemed Department Public Service Management Act Section 20 – Decision Not Binding – Leave Refused – Cost follow event.

Cases Cited:

Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886

Hulahau v Kennedy [2020] PGNC 230; N8465

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Reference by the Public Solicitor Pursuant to the Constitution Section 19 (1) Re Jurisdiction of the Public Services Commission [2019] PGSC 93; SC1871

Special Reference Pursuant to Section 19 Reference By the Public Solicitor Re Jurisdiction of the Public Service Commission and the Powers and Functions of the Auditor General [2022] SC Ref 3 of 2021; SC2299
State v Eluh [2016] PGSC 26; SC1479

Counsel:

J. Napu, for Plaintiff
K. Kipongi & M. Narokobi, for Defendants

RULING

22^nd August 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons filed of the 27^th March 2023 seeking leave for judicial review from the decision of the First Defendant in refusing on the 30^th November 2022, to uphold the appeal of the plaintiff by the Public Services Commission who recommended his reinstatement to his substantive position.
   
2. By his statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules plaintiff was employed by the Defendants as Manager Contracts & Property Grade 13 until his termination from employment on the 03^rd February 2021. He argues that there was no lawful justification nor any formal charges laid against him to warrant his termination. He was aggrieved and sought appeal to the Public Service Commission under section 18 of the Public Service Management (Amended) Act 2021. On the 30^th November 2022, the Public Service Commission reached a decision to uphold his appeal. And made the following particulars of that decision:
   
   • (i) The Commission annuls your decision dated 03^rd February 2021 to revoke the appointment of Mr James Lokalyo Kepson from his substantive position of Manager-Contracts & Property, Grade 13 on Position No. ICA CSO68 within the Immigration & Citizenship Services Authority (PNGICA);
     
   • (ii) That Mr Kepson be reinstated to his substantive position immediately; and
     
   • (iii) That his salaries and other contractual entitlements lost (if any) as a direct result of the revocation of his appointment to the position of Manager Contract & Property-Assets Branch be paid with back dated effect to the date of the decision, being 03^rd February 2021.
     
3. That decision was served on the defendants the same day and date. And it was not carried out nor did the defendants seek review of it within 30 days. Then when the 30 days lapsed the plaintiff wrote to the Defendants regarding the implementation of it on numerous occasions without success. But on the 16^th January 2023 the Defendants wrote to the Public Services commission Chairman indicating that he had rejected its decision.
   
4. Plaintiff now invokes by section 18 (3) (d) (ii) of the Public Services Management (Amended) Act 2021 that the First Defendant is bound by the Public Services Commission decision because it has not been reviewed within 30 days here. He is mandatorily bound by it and his noncompliance is unlawful. And therefore, the Plaintiff is entitled to seek judicial review on it. Leave therefore lies in his favour.
   
5. On the other hand, the defendants argue that, that maybe so, but the real question is, whether or not the second defendant is a department, or is deemed a department and part of the National Public Service by the definition in Reference by the Public Solicitor Pursuant to the Constitution Section 19 (1) Re Jurisdiction of the Public Services Commission [ 2019] PGSC 93 ; SC1871 (13 November 2019) at paragraph 13 to 18 and Special Reference Pursuant to Section 19 Reference By the Public Solicitor Re Jurisdiction of the Public Service Commission and the Powers and Functions of the Auditor General [2022] SC Ref 3 of 2021; SC 2299 (11 October 2022). Both decisions seal that the National Public Service consists of the Department of the Prime Minister and the National Executive Council, and the Department of Personal Management, and such other Departments and Offices deemed as Departments as are established under section 20 (2) of the Public Service (Management) Act 1995. In the case of the second defendant, it is neither a department nor is it deemed a department and is therefore not part of the National Public Service. Therefore, the decision of the Public Services Commission is not binding on it in favour of the plaintiff here.
   
6. This is the fundamental question which paves that the Public Service Commission decision is not binding on it to implement in favour of the plaintiff. So, leave will not be granted for judicial review. That process not given effect to by the defendants do not make them liable for breach of procedure for review and leave lying in favour of the plaintiff pursuant. True, it is trite that judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). But the Supreme Court in both references supra, do not define that the first and second defendants are departments, or deemed departments therefore the Public Service Commission decision will have binding effect on them. And specifically addressed in and followed in Hulahau v Kennedy [2020] PGNC 230; N8465 (25 August 2020). Relevantly the Court stated, “11. I reject that argument. These are not judicial review proceedings, so the plaintiff was not obliged to exhaust administrative remedies before commencing the proceedings. The suggestion that he should have sought review by the Public Services Commission is not a good one. The Commission would have no jurisdiction to review personnel decisions regarding the Immigration and Citizenship Service Authority as it is not part of the National Public Service (SC Ref No 3 of 2018, Reference by the Public Solicitor re Jurisdiction of the Public Services Commission (2019) SC1871.”
   
7. It is now clear and settled that the first and second defendants are not departments or deemed departments and therefore the Public Services Commission’s decision in favour of the plaintiff is not binding on the defendants and consequently leave does not lie because the matter is not within the domain of Judicial review. That decision does not bind the defendants for not complying with it and implementing it. It is not arguable, and this ground is not made out consequently. There is no locus standi pursuant: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70. All other grounds are subservient because of the reasons set out above. He was also a contract officer annexure “A” to his own affidavit sworn of the 24^th March 2023, and by that performance-based contract it was for three years since 17^th January 2020 expired on the 17^th January 2023. It was not renewed. It is a matter that arises privity of contract and cannot be the subject of Judicial review: Daniel v Air Niugini Ltd [2017] PGSC 61; SC1886 (4 August 2017) because the matter is private law, not public law. It is not by virtue of Statute as in State v Eluh [2016] PGSC 26; SC1479 (2 February 2016), therefore not arguable and cannot prompt leave for judicial review.
   
8. Leave for Judicial review is not made out on the material relied on and is refused with costs.
   
9. The formal orders of the Court are:
   
   • (i) Leave is refused.
   • (ii) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for the Defendants