Nemambo v Peipul and PNG [1994] PGSC 23; SC475 (21 December 1994)

Unreported Supreme Court Decisions

SC475

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 106 OF 1993
BETWEEN
JOHN JOE NEMAMBO
APPELLANT
AND
PETER PEIPUL
FIRST RESPONDENT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND RESPONDENT

Waigani

Kapi DCJ Andrew Sakora JJ
25 October 1994
27 October 1994
21 December 1994

PRACTICE - National Court - Appropriateness of applying by way of Judicial Review - Where an administrative decision is challenged - Scope of judicial review.

PRACTICE - Disciplinary Action - Where a person refuses to accept service documents - Whether this is effective service.

Counsel

L Gavara-Nanu for the Appellant

P Ame for First and Second Respondents
21 December 1994

KAPI DCJ ANDREW SAKORA JJ: This is an appeal from a decision of the National Court which dismissed the Appellant/Plaintiff's claim for orders and declarations in relation to his suspension and dismissal from his employment with the Department of Defence.

The background to this appeal is as follows. The appellant was a Senior Contracts Officer in the Department of Defence in 1990 and in 1991. The Auditor-General's Report for the Department of Defence for the financial year 1991 reported some gross irregularities and errors in management practices by the Department in respect of its financial management. This included the expenditure of K800,000 for the purchase of 20 houses. A subsequent Department of Finance report recommended that disciplinary charges be laid against senior officers in relation to this transaction. The appellant was charged under s 47 of the Public Service (Management) Act. The details of these charges were:

"Take note that you are hereby charged with committing serious offences within the meaning of Section 45, Clause (1) of the Public Service (Management) Act, in that you breached the Public Finance (Management) Act and the Regulations thereto, contained in the Finance Manual of the Department of Finance and Planning."

The charge then set out some 8 factual grounds in support. Notice of the charges was attempted to be given to the appellant by an officer of the Department of Defence but he refused to accept them. Subsequently, pursuant to s 47 (5) of the Public services (Management) Act, he was issued with a termination notice dated 2nd June 1992 advising that he had been dismissed in default of reply to the charges. The notice of dismissal also advised of his right to seek review of that decision by the Public Services Commission pursuant to s 17 of the Act. The appellant applied for review by the Public services Commission on the 17th June 1992. On the 7th September 1992 the Commission advised that it had completed its review and recommended that the first respondent vary his decision to dismiss the appellant and that he revoke the decision and reinstate the appellant into a lower classification and to repay or reimburse his salary entitlements as of the date of dismissal, at the lower classification that he was recommended to be reinstated into. The first respondent replied to the Public Services Commission's recommendation on the 17th September 1992 rejecting the recommendations as unwarranted and unacceptable. From all of these decisions the appellant proceeded by way of originating summons seeking orders and declarations that the charges and facts disclosed no cause of action; that that first respondent had acted ultra vires in dismissing him; that the dismissal was unlawful; that he be reinstated with full benefits and that he be reimbursed all his entitlements and salary.

It is not clear as to the process by which the appellant commenced his proceedings in the National Court. He sought orders and declarations by way of originating summons which were commenced by way of Notice of Motion. That would seem to show that he was seeking an application for a declaration by way of an application for judicial review of an administrative decision under O 16 of the National Court Rules and the National Court in its judgment referred to the appellant as seeking declarations by way of review. If that is so then it appears that the proceedings were flawed from the outset as there had never been an application for leave to apply for judicial review as required by O 16 r 3 of the National Court Rules. Alternatively the appellant may have been seeking declaratory orders according to the principles of equity adopted under Sch 2.2 of Constitution, such powers deriving from s 155 (4) of the Constitution: See per Kapi DCJ in National Capital District Interim Commission -v- Bogibada Holdings Pty. Ltd and Continental Trading Pty. Ltd. (1987) P.N.G.L.R. 135. However, in our opinion, that process was inappropriate here for the relief sought went beyond a mere declaration and the correct process to challenge an administrative decision in the circumstances here is by way of judicial review. As already found, the National Court proceeded were flawed because the leave of the Court had not been obtained. What is clear is that the National Court proceeded to hear the matter as if it was an appeal and consequently a mass of evidence was tendered so that there was a complete re-hearing of the facts of the case. In our view this exceeded the established principles of the parameters of judicial review of an administrative action but does not render the original administrative decision to dismiss the appellant as invalid.

Section 60 of the Constitution emphasises the need to develop a system of administrative law, including principles of natural justice, which are specifically designed for Papua New Guinea. In that context the Supreme Court has established the nature and limitations of judicial review and in particular, the distinction between review and appeal. Judicial review is concerned not with the decision but the decision making process. In Temu, Department of Works and The State -v- James Wani, SCA 96 of 1993, decision of the 28th October 1994, the Supreme Court at p 4 found:

"Judicial review is a discretionary remedy. It should not be used to monitor or oversee the actions of Statutory department heads or authorities directly empowered and responsible for their own sphere, other than in exceptional circumstances. Leave should not, as a matter of course be granted unless exceptional circumstances can be shown .........

.... Courts should not interfere with the decisions of properly constituted national bodies of this nature when a person aggrieved comes before the court seeking another result, not because of any failings in the decision making process but rather because he seeks to fashion and appeal as it were, from such decision. To oversee work practices in the guise of affording relief to an aggrieved employee takes little account of the embryonic socio-political development of our Government and semi-Government departments run by National Officers according to local aspirations and expectations. To interfere in the exercise of an undoubted discretion, however, in other than exceptional circumstances is unjustified in law and can only stifle initiative in those directly responsible for the administration and development of an indigenous public service with the decision making process. There is no brief for a Court to believe that it has a right to judge for other people in these circumstances. The court is only empowered to consider the "reasonableness" of a decision by a disciplinary authority where it can clearly be shown that there has been a failure to afford the aggrieved, invariably a right to be heard, or that procedures, where laid down, have been shown not to have been substantially complied with".

Judicial review involves the exercise by the courts of their inherent supervisory jurisdiction to determine whether the conduct of public authorities is lawful or unlawful. The proper scope of judicial review therefore, is confined to questions of legality. Appellate jurisdiction, on the other hand, is not inherently possessed by the courts: it is necessarily a creature of statute and its scope will vary in accordance with the relevant statutory provision. Where the statute expressly restricts a right of appeal to "a question of law" or a "point of law" its scope will be the same as that of judicial review. Where however, a right of appeal is conferred without restriction, its scope will be much wider: the appellate body will have jurisdiction to review the original decision completely - that is on its merits, not on its legality (See Principles of Administrative Law 6th ED. S.D. Hotop). See also Kekedo -v- Burns Philip (1988-1989 P.N.G.L.R. 122 per Kapi DCJ at 124, "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinions. Judicial review is concerned not with the decision but the decision making process".

In this case of course the National Court did not in fact substitute its own opinion and in fact upheld the decision of the first respondent to dismiss the appellant from his employment. But because the matter became a re-hearing on the facts most of the grounds of appeal now concern the admissibility or otherwise of parts of the evidence on that re:hearing. In our opinion most of that re-hearing was irrelevant and a nullity for the reasons already expressed and consequently the grounds of appeal as they relate to those questions of the admissibility of evidence before the National Court are also irrelevant.

Leaving aside for the moment the fact that the appellant had failed to apply for leave for judicial review, there are only three grounds which properly raise matters relevant to judicial review as to whether the appellant was afforded natural justice. They are that he was not afforded a right to be heard and secondly that the charges laid against the appellant did not disclose a cause of action and thirdly that there was a failure to implement the recommendations of the Public Service Commission.

As to the matter of the right to be heard the learned Trial Judge found that the appellant was informed and shown the charge documents by an officer of the Department Defence but he declined to accept them and demanded that they should be served upon him by someone else. The Court found that these reasons were not justified and that the consequences were therefore entirely of the appellant's own making. It was found that the appellant was aware of the contents, nature and purpose of the documents and that the attempted service was adequate compliance with the Public Services Management Act. We can see no error in this finding. The appellant knew of the charges and elected to ignore them. This was not the service of a summons or Court Document where the National Court Rules provide that where a person refuses service then the summons or document may be served by leaving it in his presence (O 11 r 6 (3), O 6 r (3). These were disciplinary charges which the appellant chose to ignore when he was aware of what they were. It would be a mockery of the law if a person could elect to ignore charges laid against him, thus taking the law into his own hands through arrogance or any other reason, and then complain that he was not given a right to be heard. Further, the consequence of this conduct was, that he made no reply to the charges and by virtue of s 47 (4) of the Public Service (Management) Act he was deemed to have admitted the truth of the charges. This should have been a further reason for the National Court not to have embarked upon a re-hearing of the matter and is another reason why this ground of appeal should be dismissed.

In relation to the ground that the charges did not disclose a cause of action it was submitted that the facts as outlined in the charge did not disclose a cause of action. We can see no substance in this argument. The charge sets out the section of the Act under which it is laid and that the breaches alleged relate to the Public Finance (Management) Act and the regulations thereto. There are then set out 8 alleged sets of facts constituting the breaches of that Act. All are in unequivocal terms and could not lead to any doubt as to the nature of the charges. Again, the appellant chose to ignore the charges and was deemed to have admitted the truth of them by refusing to reply so that there is simply no merit in any argument that they do not disclose a cause of action.

In relation to the recommendations of the Public Service Commission that the decision to terminate the appellant be revoked and that he be reinstated at a lower classification, the National Court found that such recommendations are to be treated with respect and given serious consideration by the appropriate Departmental Head and that if they are rejected then proper and adequate reasons should be given. The learned Trial Judge properly considered the very serious nature of these offences and found that the reasons given in rejecting the recommendations were regular and valid. We can see nothing wrong with that finding. There is no error of law.

For all of these reasons we would dismiss the appeal and award costs to the Respondents as agreed or taxed.

Lawyer for the Appellant: L. Gavara-Nanu Lawyers

Lawyer for the Respondents: Solicitor General