Nidue v Wangihome [2023] PGNC 303; N10468 (11 September 2023)

N10468

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 106 OF 2022 (IECMS)

BETWEEN:
PAUL DEBASHOM NIDUE
Plaintiff

AND:
SAMSON WANGIHOME-CHAIRMAN TEACHING SERVICE COMMISSION
First Defendant

AND:
JEROME SAWIN – EXECUTIVE OFFICER OF THE DISCIPLINE COMMITTEE OF THE TEACHING SERVICE COMMISSION
Second Defendant

AND:
TEACHING SERVICE COMMISSION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Carey J
2023: 7^th & 11^th September

JUDICIAL REVIEW – Decision of the Teaching Service Commission – Breach of Process – National Court Rules, Order 16, Rule 13 (14) – Breach of Principles of Natural Justice- Error of Law – Ultra Vires to Lawful Process.

Facts

This is a Judicial Review of the decision made by the First to Third Defendant on 30^th April 2021 which confirmed the dismissal of the Plaintiff. The application for Leave for Judicial Review was made pursuant to Order 16, Rule 3 (2) of the National Court Rules (NCR) by Paul Debashom Nidue who is the Plaintiff, and, will be referred to hereinafter as (the Applicant). Leave for Judicial Review was granted by the National Court on 26 April 2023. The Applicant sought orders that the decision to terminate employment by the First to Third Defendant 30^th April 2021 be quashed. The Applicant sought orders that the Second Defendant acted ultra vires to section 85, 85(4) (f), 85(5) of the Teaching Service Act 1988. The Applicant also sought orders that the decision of the First to Third Defendant was based on an error of law and therefor unlawful. The Applicant sought orders that the decision of the First to Third Defendant was a breach of natural justice under section 59 of the Constitution.

Held

1. Decision to terminate the Plaintiff on 30^th April 2021 be quashed.
2. The First and Third Defendant to reinstate Plaintiff to substantive position and pay all loss entitlements.
3. The First to Third Defendant to pay costs on full indemnity basis.
   

Cases Cited

Asiki v Zurenouc (2005) SC797
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Timothy v Marus (2014) PGSC 50

Legislation Cited

Constitution of Papua New
Teaching Service Act 1988
National Court Rules 16 Rule 3(2)
National Court Rules 16 Rule 13 (14)

Counsel

Mr. Greg Konjib, for the Plaintiff
Ms. Rosa Mobiha, for the Fourth Defendant

JUDGMENT

11^th September 2023

1. CAREY J: The Applicant is aggrieved by the decision of the First to Third Defendant referred to in paragraph 1 on the following grounds:
   
   1. Breach of Process and Procedures - The First to Third Defendant failed to follow the procedure prescribed as set out under Section 83, 84, 85 and 86 of the Teaching Service Act 1988.
      
   2. Error of Law – The First to Third Defendant erred in law by failing to comply with the law in the investigation process requirement and in suspension of the Plaintiff before investigation.
      
   100. Ultra Vires to Law Process – The decision by the Second Defendant is ultra vires to law and process.
        
   4. Breach of Principles of Natural Justice – Constitution Section 59 – The Plaintiff was not afforded an opportunity to respond to the allegations against him prior to any decision to terminate him by the First to Third Defendant.
      
2. To succeed for leave for Judicial Review, the law requires the applicant to meet the following requirements:
   
   1. He has sufficient interest in the matter;
   2. He has an arguable case;
   100. There are no other statutory or administrative remedies that have to be exhausted to challenge the decision; and
   4. The application is brought without undue delay or within four months after the date of the decision.
      
3. As Leave was granted for the Judicial review per paragraph 9, it is noted that it was done without delay per Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120.
   
4. The Grounds of Review were submitted by the Applicant. The First to Third Defendant did not provide any instructions to the Fourth Defendant.
   
5. I have considered the written submissions of the parties and heard the oral arguments.
6. The Applicant contends that the dismissal was made without according him the opportunity to be heard prior to the decision being made per Asiki v Zurenouc (2005) SC797.
   
7. The First to Third Defendant did not follow procedure prescribed by the Teaching Service Act based on the evidence submitted to the Court. It is indeed odd that the Applicant was permitted to be transferred to another province while a determination was being made to terminate his employment.
   
8. Further, in being in breach of the requirements of sections 83 to 86 of the Teaching Service Commission Act 1988, the First to Third Defendant erred in law.
   
9. The principles of natural justice are fundamental legal concepts which indicates fairness and suggests that an individual has a right to a fair trial. The Applicant was able to show that the principles were breached in the manner in which he was treated. Judicial review is available where the public authority commits a breach of natural justice (Kekedo v Burns Philp (PNG) Ltd) [1988-89] PNGLR 122.
   
10. The First to Third Defendants are obligated to act fairly and, in this case, it was clear that this did not occur. Section 59 (2) of the Constitution indicates this expectation.
    
11. On the assertion that the Second Defendant’s decision was ultra vires to law and process, there appeared to be a duplication of this terminology with that of the breach of process and procedure in relation to the First to Third Defendant. However, after more careful examination of the evidence that there were mandatory requirements which were not followed by the Second Defendant in Sections 83 to 86 of the Teaching Commission Act 1988 and failing to conduct a thorough investigation through the Senior Secondary School Inspection for suspension of the Applicant, it was not a duplication. Therefore, this ground also succeeds in persuading the court.
    
12. The submission by the Fourth defendant was based on statute and did not address the facts due to the inability to get instructions from the First to Third defendant.
    
13. The submissions in relation to the technicality concerns raised by the Fourth Defendant were not persuasive and with the exception of Timothy v Marus (2014) PGSC 50, whose application in this instance was not relevant, all issues related to whether the court can exercise its discretion.
    
14. In Equity there is a maxim, that Equity will not suffer wrong to be without remedy and the Court is required to act and fill in the gaps through its wide powers in relation to its exercise of discretion where there may be competency or technicality issues which do not meet the threshold of being fatal to an arguable case.
    
15. As such, the Court was convinced by the Applicant in relation to the submissions for this Judicial Review.
    

Orders

16. It is ordered that:
    1. The Decision to terminate the Plaintiff on 30^th April 2021 communicated on 4^th June 2021 be quashed.
    2. The First and Third Defendant to reinstate Plaintiff to substantive position and pay all loss entitlements.
    3. The First to Third Defendant to pay costs on full indemnity basis.
    4. The Court Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Konjib & Associates Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants