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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 162 0F 2004
MISION ASIKI
Appellant
V
MANASUPE ZURENUOC, PROVINCIAL ADMINISTRATOR
First Respondent
MOROBE PROVINCIAL ADMINISTRATION
Second Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
LAE: JALINA J, CANNINGS J, MANUHU J
29 JUNE, 28 OCTOBER 2005
ADMINISTRATIVE LAW – judicial review of decisions of provincial administrator to terminate employment of public official and to refuse a recommendation from the Public Services Commission for reinstatement – application for judicial review under National Court Rules, Order 16.
SUPREME COURT – appeals – whether Supreme Court can make orders for judicial review where error of law made by trial judge – whether matter should be remitted to National Court.
PRACTICE AND PROCEDURE – Claims By and Against the State Act, Section 5 – notice of intention to make claim – whether notice under Section 5 must be given prior to commencement of proceedings under National Court Rules, Order 16.
CONSTITUTIONAL LAW – Public Services Commission – review of personnel matter in the Public Service – recommendation for reinstatement – refusal to comply with recommendation – status of recommendations made by Public Services Commission – duty of respondent to implement recommendation or give cogent and convincing reasons for failure to implement.
JUDGMENTS AND ORDERS – appropriate orders for judicial review – whether appropriate to order reinstatement of a person unlawfully dismissed from office – whether appropriate to order payment of entitlements lost.
The appellant was an officer of a provincial administration. He was investigated by the provincial administration for misconduct. The provincial administrator laid disciplinary charges, heard from the officer and then dismissed him, terminating his employment. The appellant sought review of that decision by the Public Services Commission, which considered the matter and having found procedural errors recommended to the provincial administrator that the appellant be reinstated. The provincial administrator did not accept the recommendation and wrote to the appellant, notifying him that his original decision remained. The appellant applied to the National Court for leave to seek judicial review of the decisions of the provincial administrator, firstly, to dismiss him and, secondly, to not act on the recommendations of the Public Services Commission. The National Court granted leave and the matter was set down for substantive review. The National Court refused judicial review on the ground that the appellant had not, prior to commencement of the proceedings in the National Court, given notice of his intention to make a claim against the State under Section 5 of the Claims By and Against the State Act. The appellant appealed against the refusal of judicial review.
Held:
(1) The notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or breaches of constitutional rights.
(2) Section 5 does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules, as Order 16 provides a comprehensive and exclusive procedure for judicial review. Frederick Martins Punangi v Sinai Brown (2004) N2661 approved.
(3) The appellant was under no obligation to give notice under Section 5 and, having been granted leave, ought to have had the merits of his application for judicial review determined by the National Court.
(4) The Supreme Court, having found error by the trial judge, is authorised to set aside the judgment of the National Court and make all orders that could have been made by the National Court.
(5) A provincial administrator, being the equivalent of a departmental head, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so.
(6) The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is to be inferred that there were no good reasons for the decision being made. Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66 approved.
(7) In circumstances where it is clear that a duty imposed on a provincial administrator by or under a Constitutional Law has been breached and that an error has been made by the National Court, it is in the interests of justice for the Supreme Court to judicially review the administrative decisions of the provincial administrator and make orders calculated to avoid a further multiplicity of proceedings.
(8) Accordingly, the Supreme Court ordered the reinstatement of the appellant and the payment to him of the salary and emoluments lost because of his unlawful dismissal.
Cases cited:
The following cases are cited in the judgment:
Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported
Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850
Aloysius Eviaisa v Sir Mekere Morauta (2001) N2744
Application of Rickobert Petau (2004) N2687
Bokin v The Independent State of Papua New Guinea (2001) N2111
Clement Kilepak v Ellison Kaivovo (2003) N2402
Daniel Hewali v Papua New Guinea Police Force and The State (2002) N2233
Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council
and The State (2004) N2661
Gideon Barereba v Margaret Elias (2002) N2197
Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66
Graham Kevi v Teaching Service Commission (1997) N659
Jim Kas v The State (2000) N2010
John Kombati v Fua Singin and Others (2004) N2691
John Magaidimo v Commissioner of Police (2004) N2752
John Mua Nilkare v Ombudsman Commission (1996) SC498
Kelly Yawip v Commissioner of Police [1995] PNGLR 93
Lae Rental Homes Ltd v Viviso Seravo (2003) N2483
Leto Darius v Commissioner of Police (2001) N2046
Martha Kokiva-Age v Lawyers Statutory Committee (2005) N2835
Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373
Minato v Kumo and The State (1998) N1768
Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported
Morobe Provincial Government v Minister for Village Services (1994) N1215
Ombudsman Commission v Peter Yama (2004) SC747
Paul Pora v Commissioner of Police (1997) N1569
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123
Peter Luga v Richard Sikani (2002) N2285
Re Application of Louise Autsila Ainie (2004) N2533
Sam Anonga v Jack Were (2001) N2149
SCR No 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672
Tohian and The State v Tau Liu (1998) SC566
Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479
William Mel v Coleman Pakalia, Commissioner of Police and The State (2005) SC790
APPEAL
This was an appeal from a judgment of the National Court refusing an application for judicial review of two decisions of a provincial administrator which had the effect of dismissing a public servant from his employment.
Counsel:
M Asiki, the appellant, in person
H Cooper for the 1st and 2nd respondents
No appearance by the 3rd respondent
BY THE COURT:
This is an appeal against a decision of Gabi AJ, as he then was, in the National Court, in which his Honour refused an application for judicial review of two decisions of a provincial administrator that had the effect of dismissing a public servant from his employment. (Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported.)
BACKGROUND
The dismissal
The appellant, Mision Asiki, used to be a public servant. He was the Administrative Officer to the Division of Policy, Planning and Research in the Morobe Provincial Administration from 1994 to 2000.
During 2000 he faced disciplinary charges over alleged misuse of an Air Niugini airline ticket and travel allowances relating to a trip to and from Port Moresby. The charges were laid under the Public Services (Management) Act 1995. He replied to the charges, admitting what had happened but offering the explanation that he had used the ticket and the allowances for compassionate reasons and he had approval from his divisional head. The first respondent, the Morobe Provincial Administrator, considered the matter. Then he wrote to the appellant on 17 November 2000, notifying him that his services were terminated forthwith, as he had admitted committing the offence and his performance over the years has been below the required standard.
Review by Public Services Commission
On 29 November 2000 the appellant sought review by the Public Services Commission of the decision to dismiss him.
On 31 December 2001 the Public Services Commission wrote to the first respondent and recommended that he revoke his decision to dismiss the appellant and reinstate him. Reasons for the recommendation were: the charge was not determined within the time limit of 21 days permitted by the Public Service General Orders; the appellant was not given a right to be heard on the penalty to be imposed on him; and the first respondent did not give sufficient reasons for his decision. The Public Services Commission did not address the issue of whether the appellant should receive any back-pay, ie salary and other emoluments lost in the period since dismissal.
Failure to comply with recommendation
On 15 January 2002 the first respondent wrote to the appellant, notifying him that his original decision would remain in force, despite the Public Services Commission recommendation. He stated:
I have considered the recommendation and have sought legal advice and consulted with the senior management team of the administration.
Legal advice is clear that the Commission can only recommend to me as Head of the Administration, the decision whether or not to reinstate you is in my discretion. In view of the foregoing and in the best interest of the Administration I have decided not to reinstate you.
I thank you for your services to Morobe.
Application for leave to seek judicial review
On 10 March 2003 the appellant applied to the National Court under Order 16 of the National Court Rules for leave to seek judicial review of the decisions of the first respondent, firstly, to dismiss him and, secondly, to not act on the recommendations of the Public Services Commission. Eleven grounds of review were relied on. At that stage the defendants were the provincial administrator and the Morobe Provincial Administration.
On 29 August 2003 the National Court granted leave for the third respondent, the State, to be joined as a defendant.
On 12 February 2004 the National Court granted leave for judicial review.
Notice under Section 5
On 28 May 2004 the appellant wrote a letter to the Solicitor-General, giving notice of his intention to make a claim against the State. He said that he had not done so earlier as he was only an ordinary citizen and had instituted the court proceedings without being aware of the requirements of Section 5 of the Claims By and Against the State Act.
Trial
The trial of the substantive application for judicial review was conducted by Gabi AJ at Lae on 22 September 2004.
The appellant represented himself. Mr M Mugarenang represented the first and second respondents. The third respondent was not represented. Mr Mugarenang submitted that the application for judicial review should fail as notice of the claim against the defendants was not given in accordance with Section 5 within six months after the occurrence out of which the claim arose.
His Honour the trial judge then reserved his decision.
Judgment
On 12 October 2004 his Honour delivered a written judgment, dismissing the entire proceedings on the ground of non-compliance with Section 5 of the Claims By and Against the State Act.
His Honour held that the appellant’s claim, though commenced by an originating summons, was based on contract; that his claim was against the State; and that therefore he had to give notice of his intention to make a claim in accordance with Section 5. He failed to comply with Section 5 in two respects. First, he did not give notice until May 2004, which was almost four years after the occurrence. Secondly, he gave notice by post when it is required to be given by personal service.
THE APPEAL
On 18 November 2004 the appellant instituted an appeal against the whole of Gabi AJ’s judgment.
Grounds
Six grounds of appeal are relied on:
Orders sought
The appellant asks the Supreme Court to make the following orders:
Overview of grounds of appeal
One of the grounds of appeal raises a significant issue of law that requires careful consideration. The others do not and can be dealt with quickly.
Ground 1 – that it was his Honour that raised the Section 5 issue – is misconceived. It was the first and second respondents’ counsel who raised the issue. Ground 1 has no merit and is dismissed.
Ground 2 – that the appellant was only an ordinary citizen – is not a proper ground of appeal so it is dismissed. It does however raise an important point about how the courts should interpret and apply Section 5 in a way that does justice. We will comment on this issue later.
Ground 3 – that the respondents admitted their guilt – is without merit. They did not admit guilt. Ground 3 is dismissed.
Ground 4 – concerning the naming of the second respondent – is a trivial issue and is dismissed.
Ground 5 – that the trial judge incorrectly found that the case was about a contract between the appellant and the respondents – is the significant issue, which we will address in detail.
Ground 6 – alleges that trial judge miscalculated the lateness of the Section 5 notice. It is unnecessary to deal with this issue.
The Court will therefore only deal in detail with ground 5.
Overview of orders sought
The appellant is asking this court to uphold and quash the National Court’s decision of 12 October 2004. He also wants this court to make an order reinstating him. This raises the issue of what orders the Supreme Court can, and should, make if it does quash the National Court decision.
Can it itself judicially review the decisions of the provincial administrator? If it can, should it nonetheless exercise its discretion not to, and simply remit the matter to the National Court? If the matter is not remitted to the National Court and this court determines the application for judicial review, should it be upheld? If the application is upheld, what remedies should be granted? Should the matter be remitted to the original decision-maker, the provincial administrator? Or should this court order the reinstatement of the appellant? If so, should it order that he be paid back-pay?
Summary of major issues
The major issues for determination therefore are:
DID THE TRIAL JUDGE ERR BY MISCONCEIVING THE NATURE OF THE PLAINTIFF’S CLAIM?
Characterisation of plaintiff’s claim
The reason the trial judge dismissed the appellant’s application for judicial review is that the appellant did not comply with Section 5 of the Claims By and Against the State Act. He did not give notice until more than six months after the date of the occurrence out of which the claim arose; he did not give notice before he filed the court proceedings; and he posted the notice rather than personally serving it. In reaching that conclusion his Honour characterised the appellant’s claim against the State as one based on contract. His Honour stated:
In this case the plaintiff is a public servant. He is employed by the State. He is a servant of the State and is paid by the State for services rendered to it. His recruitment, appointment and termination is governed by the Public Services (Management) Act. He has a contract with the State. His claim is based on contract. The Claims Act applies to him.
The characterisation of the plaintiff’s claim as a contractual one was a key part of his Honour’s judgment in view of Section 2 (suits against the State) of the Claims By and Against the State Act, which states:
(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.
(2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (compensation) of the Constitution.
His Honour held that the Claims By and Against the State Act applies to all actions brought against the State in contract or in tort and therefore such actions have to comply with Section 5.
Section 5 (notice of claims against the State) states:
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
(2) A notice under this Section shall be given—
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) within such further period as—
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows.
(3) A notice under Subsection (1) shall be given by—
(a) personal service on an officer referred to in Subsection (1); or
(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).
Disagreement with reasoning
His Honour’s reasoning is clear but we respectfully disagree with it. The appellant’s cause of action was not breach of contract, but judicial review. He was invoking the judicial review jurisdiction of the National Court under Order 16 of the National Court Rules. He was seeking orders in the nature of prerogative writs, and putting forward grounds of judicial review, asserting that the first respondent’s decisions were vitiated by errors of law.
It was that incorrect characterisation of the appellant’s claim that, with respect, led his Honour into error. We agree with most other aspects of his Honour’s reasoning. In particular:
However we reiterate that his Honour misconceived the nature of the appellant’s claim and subjected him to statutory notice requirements that he did not have to comply with. His Honour therefore erred in law.
Punangi v Brown
In reaching that conclusion we have been greatly assisted by a recent decision of Injia DCJ in the National Court in which the issue of the scope of application of the Claims By and Against the State Act was squarely raised.
In Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council and The State (2004) N2661 the plaintiff was the Secretary of the Department of Defence. The National Executive Council suspended him and he applied for leave to seek judicial review of that decision. The defendants objected to the granting of leave on the ground that the plaintiff did not give notice under Section 5 of the Claims By and Against the State Act.
Injia DCJ dismissed that objection and granted leave for judicial review. The kernel of his Honour’s reasoning appears in the following passage of the judgment:
Reading subsection (1) and (2) [of Section 2 of the Claims By and Against the State Act] together, all claims against the State in contract or tort or an application under Sections 57 and 58 of the Constitution for which a suit may be brought against the State in "any court" of law of competent jurisdiction (s 1), are covered by the Act. Conversely, an application in the nature of a prerogative writ under Order 16 is not included in Section 2. Therefore by implication, [an] application for orders in the nature of prerogative writs [is] excluded from the definition section in Section 2, hence the notice provisions in the Act do not apply to such [an] application.
Under Section 5(1) of the Act "no action to enforce any claim" must be by necessary implication, refer to bringing a suit against the State as defined in Section 1, in "any claim" on contract or tort and enforcement of constitutional rights under Section 57 and Section 58 of the Constitution, as defined in Section 2. A notice of claim must be given for such claim.
Order 16 of the National Court Rules provides a comprehensive and exclusive procedure for judicial review: Michael Gene, Attorney-General & Others v Dr Pirouz Hamidian-Rad (1999) SC630. There is reference in Section 8 to an application for leave for judicial review, in which the State is a defendant or respondent. The Act does not provide a procedure for persons to apply for leave for judicial review. By implication, it must refer to an application for leave to apply for judicial review under Order 16 of the National Court Rules. Under Order 16 Rule 3(2), an application for leave is made ex parte. Section 8 however grants the State a right to be heard in any such application, where the State is a respondent or defendant. Under Order 16 Rule 3(3), the State is notified of the application for leave by service of the application on the Secretary for Justice. The same purpose intended to be achieved by Sections 5 and 8 of the Act is achieved by service on the Secretary for Justice under Order 16 Rule 3(2).
In my view, it is clear from the scheme of the Act as evident in the provisions I have quoted above, that an application for judicial review under Order 16 of the National Court Rules, is not intended to be covered under the Act. This is because the procedure for bringing an application is exclusively set out in Order 16 of the National Court Rules, subject only to Section 8 in relation to leave applications. The mere fact that the State is named as a party to the proceedings in a judicial review application does not render the provisions of the Act applicable. In any event, an application for leave for judicial review is made strictly ex parte and the decision-making authority, the decision-maker or the State as the nominal defendant, should not be included as a party at this stage.
Upon the grant of leave, the decision-making tribunal or authority as an interested party will be served the notice of motion under Order 16 Rule 5(2). The State as the nominal defendant may also be served the notice of motion. Once again, the notice provision under Section 5 of the Act is also not applicable, for purposes of making the substantive application.
This interpretation is consistent with the special nature of applications for judicial review. It is settled law that a person who seeks to challenge a decision of a public authority or tribunal by way of an application for orders in the nature of prerogative writs under the judicial review procedure in Order 16, has no right to claim the prerogative writs. He has no right to make such claim or seek such relief. He can only do so by leave of the Court: Michael Gene, Attorney-General v Dr Pirouz Hamidian Rad (supra); Francis Kawage v The Solicitor-General (1999) N1875; Aiten Maniko v Luther Wenge (1999) N1870. Conversely, a person whose rights under a contract or personal rights have been denied or infringed [is] entitled, as of right, to seek enforcement of their rights in Court. They do not require leave of the Court to institute their actions in Court.
Mr Gilyan [for the defendants] submits that the fact that the Applicant is claiming declaratory orders and also damages in the proceedings make the application a "claim" within the meaning of Section 5 of the Act. In my view, these orders are consequential orders upon the grant of primary relief of prerogative writ (certiorari) and the applicant has no right to claim those consequential [orders] on their own.
In Paul Tohian v Tau Liu (1998) SC566, the Supreme Court held that a notice of claim is a precondition to the commencement of an action against the State for defamation which is a tort. The Court was not invited to and did not consider the issue before me. The National Court decision in Hewali v The State (1999) N2233 is also an action in tort for damages. The interpretation of Section 5 of the Act given in those two cases is consistent with the interpretation of Section 5 I have given in the present case.
It follows from the foregoing discussions that Section 5 of the Claims By and Against the State Act 1996 has no application to applications for judicial review or orders in the nature of prerogative [writs] under Order 16 of the National Court Rules.
Limits on scope of Section 5
We agree with Injia DCJ’s reasoning in Punangi v Brown, adopt it for the purposes of the present case and find that:
Dispensation of justice
Before leaving this issue we will comment on the general approach to the interpretation of Section 5 of the Claims by and Against the State Act that we consider should have been adopted in this case. Indeed it should be adopted in every case where the National Court or the Supreme Court is required to interpret and apply Section 5. The approach is one demanded by Section 158 of the Constitution, which states:
(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.
(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice. [Emphasis added.]
His Honour the trial judge appears not to have considered the justice of the case prior to interpreting and applying Section 5 in the way that he did. It is worthwhile therefore to consider where the interests of justice lie.
A person was dismissed from his public employment. He exercised his right to have his dismissal reviewed by a constitutional institution, which found fault on the part of the decision-maker and recommended that the person be reinstated. The decision-maker refused to implement the recommendation on the ground that it was "only" a recommendation. So the aggrieved person asked the National Court to grant leave for judicial review. Leave was granted. This entailed a judicial finding that he had standing, was not guilty of undue delay, had exhausted other administrative remedies, was seeking to review the decision of a public authority and had an arguable case. (See Leto Darius v Commissioner of Police (2001) N2046, National Court, Kandakasi J; John Kombati v Fua Singin and Others (2004) N2691, National Court, Cannings J.)
Up to this stage, the aggrieved person had apparently done everything right, followed the right procedures and sought to agitate his grievance in lawfully available forums: the Public Services Commission and the National Court. Nobody told him anything different. The only thing that, arguably, he had neglected to do was give a formal notice under Section 5 of the Claims By and Against the State Act of his intention to make a claim against the State. However, the State was notified of his intention to seek leave, as he gave notice to the Secretary for Justice under Order 16 of the National Court Rules. The State therefore knew of his intention and had the right under Section 8 of the Claims By and Against the State Act to oppose leave. That right was not exercised and still nobody objected to the course of action he was taking. Three months after being granted leave by the National Court he gave notice under Section 5 to the Solicitor-General. By that stage 14 months had elapsed since he applied to the National Court for leave. A further five months passed before his case came on for trial. Still none of the respondents to his court case raised objection or filed a defence on the ground that he had not given proper notice. During the trial, however, Section 5 was raised almost (it appears from the transcript) as an afterthought. The trial judge then seized on the failure to give notice in time and refused judicial review on that basis without considering the merits of the person’s grievance.
When a person’s case is dismissed in that way it is the antithesis of justice. It means that the State and its various arms and agencies are allowed to escape accountability for their decisions and actions. It cuts back the power and responsibility of the courts to review administrative acts by the executive arm of government. It allows the State to avoid responsibility on a technicality. It interprets Section 5 in a way that does not seem to have been intended and promotes injustice.
Purpose of Section 5
It has been pointed out in many cases that the object of Section 5 is to prevent prejudice to the State by giving it advance notice of intended claims. This allows the State to investigate the claim while the evidence is fresh. It helps reduce the risk of fraudulent claims. The State can carry out its own investigations while the trail of evidence is still fresh. It can meaningfully decide whether to settle an intended claim. (See, for example, Minato v Kumo and The State (1998) N1768, National Court, Akuram J; Daniel Hewali v Papua New Guinea Police Force and The State (2002) N2233, National Court, Kandakasi J.)
When a person seeks leave for judicial review those purposes are achieved by requiring the applicant to give notice without delay to the Secretary for Justice. There is no need to require the applicant to give another notice to, in effect, the same authority. It serves no purpose, other than allowing the State to arbitrarily avoid responsibility for its actions – which is neither an intended nor a just and proper purpose of the legislation.
Parliamentary debate
The purpose of the Claims By and Against the State Act 1996 was explained by the then Minister for Justice, Hon Arnold Marsipal MP, when the Bill for the Act was debated in the Parliament on 20 November 1996. The Minister stated:
Mr Speaker, I take great pleasure in introducing this Bill which will safeguard the interests and the finances of the State.
In recent years, a large number of civil claims and other claims for compensation on infringement of human rights have been made against the State in respect of alleged unlawful actions by public servants. These claims often included compensation claims of police brutality against the people.
There are set procedures laid down by the law governing and regulating the bringing of such claims to court. Under the present circumstances, it is difficult for the State lawyers to comply with time limits and other court restrictions. The numbers of claims are increasing alarmingly.
At the same time, lawyers for claimants seem determined to try every possible avenues to press their clients’ cases, using every loophole they can find. This frequently results in unwarranted payouts, thereby putting increased unnecessary pressure on the State resources.
In order to overcome the problems being encountered and to ensure that the law deals fairly with both the State and its citizens, various measures will be put in place by this Bill. This include a scheme of prior notice of making a claim against the State. It will be similar to the scheme of notifying the Motor Vehicle Insurance Trust of proposed claims. Service on the State cannot be done by mail. It must be personally served on the Attorney-General or the Solicitor-General or left personally at his office. However, lawyers operating outside Port Moresby can still accomplish personal service through their city agents. ...
The Bill ... will go a long way towards remedying the impossible situation the Government lawyers find themselves in when trying to protect the interests of the State.
The Bill did not receive universal support. For example the then member for Wewak Open, Hon Bernard Narokobi MP, stated:
Mr Speaker, I appreciate this opportunity to talk on the Claims By and Against The State Bill. I had wanted to discuss it with the President of the Papua New Guinea Law Society but I have not met him. It saddens me to see this amendment. This shows that the Department of Justice and the Office of the Attorney-General have gone to the dogs. The Government is trying to hide the mistakes of the department. I fought for the Constitution to enable this Government to do the right thing. I do not think even communist states practice such a law.
I am really hurt by this law and I cannot understand any civilized society and a minister introducing such a law in Parliament. Supposing, people do not bring their claims before the court, this law is telling them to fight in the streets and take the law into their own hands. There are time limits for filing your defence but what happens is that this Department lacks sufficient funding.
We are creating a law which says that we cannot sue the State because we have six months limit. It may be years before the plaintiff knows it and there might be excuses before he knows it. The plaintiff might not be convinced that he has a case and might be asking for a second opinion.
The State is the sovereign authority of the people and if it makes laws to favour itself, then as far as the rule of law is concerned, that is the end.
The title of the Bill is Claims For And Against The State, but the law concentrates on claims against the State. To be fair, if the State sues a citizen, the same rules must apply. If six months is up, that is the end and the State must not pursue its claim against the citizen or a company. We cannot make rules to suit ourselves.
The then member for Manus Provincial, Hon Stephen Pokawin, stated:
Mr Speaker, the Honourable Member for Wewak has already said most of what I wanted to say, and I assure the Parliament that I will not support the proposed law.
I think this law is really opposing our people. If this Parliament is the mother of democracy in this country, then we should not support this law, and I urge the ministers to oppose it.
These extracts from Hansard strengthen our conclusion that, having regard to the purpose of the legislation, Section 5 is not intended to apply to applications for judicial review.
Contentious issue
We do not wish to be unduly critical of the trial judge. The issue about the application of Section 5 to judicial review proceedings had not been authoritatively decided previously. For example in Jim Kas v The State (2000) N2010 an issue about compliance with Section 5 arose in the National Court in the hearing of an application for leave to seek judicial review by a former member of the Parliament dismissed from office in accordance with the recommendation of a leadership tribunal. Sakora J presumed that Section 5 applied and determined that it had been complied with (though refused leave on other grounds). In Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373 National Court, Lenalia J dismissed an application for judicial review by a former police officer of his dismissal from the Police Force on various grounds, one of which was that the applicant had not given notice within six months under Section 5.
The question of whether Section 5 applies to judicial review proceedings has been a contentious issue for some time. The trial judge acknowledged that in his judgment. Injia DCJ’s decision in Punangi v Brown (2004) N2661 was delivered, in Waigani, just four days before the judgment in the present case was delivered in Lae, so the trial judge cannot be accused of ignoring recent and accessible authority.
It can also be said that in interpreting Section 5 in the way that he did his Honour acted consistently with a rather strict approach to Section 5 that has been taken in numerous National Court decisions since the Claims By and Against the State Act commenced operation in 1997. On the same day that he delivered judgment in the present case, his Honour delivered judgment in Application of Rickobert Petau (2004) N2687. An application by a former police officer for leave to seek judicial review of his dismissal from the Police Force was refused on the ground of non-compliance with Section 5 of the Claims By and Against the State Act. The applicant gave notice to the Attorney-General within six months, but gave it by fax rather than by personal service.
We query, however, whether such a strict approach – though it might be a consistent one – is always necessary or desirable. Each case must be considered on its merits and subject to the overriding constitutional principle that in interpreting Section 5 the courts must give paramount consideration to the dispensation of justice.
Conclusion re Section 5
We conclude that his Honour erred in law by misconceiving the nature of the appellant’s claim and subjecting the appellant to the notice requirements of the Claims By and Against the State Act. Ground 5 of the notice of appeal is therefore upheld.
SHOULD THE NATIONAL COURT JUDGMENT BE SET ASIDE?
The trial judge’s error of law regarding Section 5 was central to his Honour’s refusal of judicial review. It follows that the whole of the judgment and orders should be set aside.
SHOULD THIS COURT CONSIDER THE MERITS OF THE APPLICATION FOR JUDICIAL REVIEW OR REMIT THE MATTER TO THE NATIONAL COURT?
Powers of Supreme Court
As the decision of the National Court will be set aside the Supreme Court has to decide what to do next. Two main options are available:
These options are available by virtue of Section 155 (the national judicial system) of the Constitution and Sections 6 (appeal to be by way of rehearing) and 16 (decision etc on appeal) of the Supreme Court Act.
Section 155(2) of the Constitution states:
The Supreme Court—
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law. [Emphasis added.]
Section 155(4) of the Constitution states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. [Emphasis added.]
Section 6 of the Supreme Court Act states:
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court. [Emphasis added.]
Section 16 of the Supreme Court Act states:
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—
(a) adjourn the hearing from time to time; or
(b) affirm, reverse or modify the judgement; or
(c) give such judgement as ought to have been given in the first instance; or
(d) remit the case in whole or in part for further hearing; or
(e) order a new trial. [Emphasis added.]
Discretion
We have decided not to remit the matter to the National Court. We believe we are in a position, having considered all the material before the National Court, to assess the merits of the application for judicial review. The evidentiary material is not complex and the issues are clear, so it makes sense to determine the appellant’s application immediately and avoid a further multiplicity of proceedings.
We will therefore exercise the Supreme Court’s power to judicially review the decisions of the first respondent.
SHOULD THE APPLICATION FOR JUDICIAL REVIEW BE GRANTED?
We are in no doubt that the answer to this question is yes. The first respondent made a serious error of law by refusing to accept the recommendation of the Public Services Commission without giving cogent and convincing reasons for doing so. It also amounted to a denial of natural justice.
Changes to the law
We have drawn these conclusions mindful of the significant changes made by the Parliament in 2002 to the laws regarding the powers, functions, duties and responsibilities of the Public Services Commission. The Public Services Commission now makes binding decisions on personnel matters that it reviews, as distinct from recommendations. (See Public Services (Management) Act 1995, Section 18(3)(d)(ii), introduced by the Public Services (Management) (Amendment) Act No 24 of 2002, which commenced operation on 1 June 2002, and Constitutional Amendment No 25, The State Services, which commenced operation on 11 August 2003, referred to in Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.)
The first respondent’s decisions regarding the appellant were made in November 2000 (the decision to dismiss him) and in January 2002 (the decision not to accept the recommendation of the Public Services Commission). Both decisions were made prior to commencement of the new law. However there is ample authority to show that the second decision was made contrary to the law as it then stood. That being the case it is unnecessary to deal with the merits of the application to review the first decision.
Duty of recipient of a recommendation: Niggints v Tokam
The duty of the recipient of a recommendation from the Public Services Commission was made clear by Amet J, as he then was, in the National Court in Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66. The plaintiff, a senior Correctional Service officer, was dismissed from the Service by the first defendant, the Commissioner of Correctional Institutions, who found him guilty of misconduct. The plaintiff sought review by the Public Services Commission of the decision to dismiss him. The Public Services Commission inquired into the matter and recommended to the Commissioner that he revoke the decision to dismiss the plaintiff and reinstate him. The Commissioner’s response, similar to that of the first respondent in the present case, was:
Recommendations from the Public Services Commission are only recommendations. I do not accept the Public Services Commission recommendations and therefore, you remain dismissed.
His Honour held that the Public Services Commission’s power to review personnel matters is a substantive one, expected to be exercised thoroughly, proficiently and fairly in the interests of all parties concerned. It is a power exercised by a constitutionally independent commission. A recommendation from a constitutional institution requires very serious consideration and respect. It cannot be dismissed arbitrarily. It cannot be ignored without serious consideration of the reasons for it. If it is decided after careful consideration not to accept a recommendation, reasons must be stated.
His Honour concluded:
If no reasons are stated other than [the above] kind of statement, it leaves the court no option than to conclude that there were no good reasons at all.
We agree with and adopt the reasoning in Niggints v Tokam.
Bon v Nakgai
Another relevant case is Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123, National Court, Gavara-Nanu J. The plaintiff, a pharmacist at Wewak General Hospital, was terminated by the defendant. He sought review of the defendant’s decision by the Public Services Commission. It inquired into the matter and having found procedural errors recommended his reinstatement. The defendant did not accept the recommendation and gave no reasons other than he considered the Public Services Commission to be wrong as it had not sought his views. His Honour upheld the application for judicial review on various grounds, quashed the decision to dismiss the plaintiff and ordered his reinstatement. In the course of doing so his Honour commented on the status of a recommendation from the Public Services Commission:
The Commission's recommendations are based on its investigations and reviews of personnel matters under ss 13 and 18(2)(b) of the [Public Services (Management)] Act as sanctioned by s 191(a) of the Constitution, therefore although not binding, such recommendations carry the force and the weight of the Constitution, thus they must be given proper consideration by the Departmental Heads and if they are rejected, there must be valid reasons for such rejections because if the recommendations are simply rejected or dismissed in the wayside without any valid reasons, or without any reasons at all, such decisions would be rendered arbitrary and be open for judicial review. Another reason why there must be valid reasons to reject the Commission's recommendations is that the power exercised by the Departmental Heads when terminating officers under the Act, is a public function, having public character by reason of the fact that the Departmental Heads hold public offices, which makes them accountable.
We agree with and adopt the reasoning in Bon v Nakgai.
Status of provincial administrators
The heads of departments of the National Public Service and other governmental bodies have a special duty to work with, respect and comply with recommendations and decisions from the Public Services Commission and other constitutional institutions arising from their status as leaders under Section 26 (application of division 2) of the Constitution. They have a duty under Section 27 of the Constitution (responsibilities of office) to, amongst other things, not allow their public or official integrity to be called into question and not to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea. These are enforceable obligations and aid in understanding the nature and extent of the duty of a leader to give reasons for his or her decisions. Provincial administrators are appointed by the National Executive Council under Section 73 of the Organic Law on Provincial Governments and Local-level Governments. Their functions are prescribed by Section 74 of the Organic Law. They are deemed departmental heads under both the Public Services (Management) Act, Section 75, and the Public Finances (Management) Act, Section 2. They would therefore appear to be subject to the Leadership Code under Section 26(1)(f) of the Constitution, ie they are leaders and have special obligations regarding the constitutional institutions.
Duty to give reasons
The duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions.
The principle of no reasons = no good reasons, highlighted by Niggints v Tokam, has also been followed by the National Court in Kelly Yawip v Commissioner of Police [1995] PNGLR 93, Injia J; Graham Kevi v Teaching Service Commission (1997) N659, Lenalia AJ; Aloysius Eviaisa v Sir Mekere Morauta (2001) N2744, Kandakasi J; Sam Anonga v Jack Were (2001) N2149, Injia J; Lae Rental Homes Ltd v Viviso Seravo (2003) N2483, Kirriwom J; Re Application of Louise Autsila Ainie (2004) N2533, Kandakasi J; and Martha Kokiva-Age v Lawyers Statutory Committee (2005) N2835, Injia DCJ.
Recently the Supreme Court applied the principle in Ombudsman Commission v Peter Yama (2004) SC747, Injia DCJ, Sakora J, Sawong J. The court rejected the argument that the Ombudsman Commission did not have to give reasons to a leader when notifying the leader of his or her referral to the Public Prosecutor for prosecution before a leadership tribunal. The court held that the duty to give reasons was an integral part of the rules of natural justice; then held that, in fact, sufficient reasons were given.
Failure to give proper reasons
When the principle of no reasons = no good reasons is applied to the present case it is apparent that the first respondent failed to give reasons for not accepting the Public Services Commission’s recommendation to reinstate the appellant. He made the same error as the defendants in Niggints v Tokam and Bon v Nagkai. He treated the recommendation from the Public Services Commission as a ‘mere’ recommendation, something that he could refuse to accept without giving cogent and convincing reasons for doing so. His failure to give reasons means there are no good reasons. This amounts to an error of law and a denial of natural justice.
Conclusion re judicial review
We are satisfied that the appellant adequately pleaded the issues raised above in the statement filed under Order 16, Rule 3(2)(a) of the National Court Rules, in support of his application for judicial review. We therefore grant the application for judicial review in relation to the first respondent’s decision not to accept the recommendation of the Public Services Commission. It is unnecessary to consider the application for judicial review of the first respondent’s other decision, which was to dismiss the appellant.
WHAT REMEDIES SHOULD BE GRANTED?
Two separate steps
It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:
... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.
The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.
Starting point
The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the first respondent’s decision of February 2001 – to not accept the Public Services Commission’s recommendation – that has been found to have been infected by error of law and in breach of the principles of natural justice. The decision that was made was wrong in law and flagrantly so. It cannot stand and therefore it will be quashed. The appellant’s Order 16, Rule 3(2)(a) statement did not expressly seek such an order but we consider that it is sufficiently encompassed by the order for reinstatement that has been expressly sought. It follows that the first respondent’s decision not to accept the Public Services Commission’s recommendation is void.
Remit the matter or order reinstatement?
The next issue is whether we should remit the matter to the first respondent, the provincial administrator, and direct that he re-make his decision whether to accept the recommendation of the Public Services Commission in accordance with law (ie an order in the nature of the prerogative writ of mandamus). Or whether this court should simply order that the appellant be reinstated. The former remedy is a more classical style of order for judicial review and faithful to the common law pedigree of this area of administrative law, which suggests that the courts should refrain from entering the arena of the executive arm of government. There is, however, a considerable body of case law showing that the courts in Papua New Guinea have not been reluctant to take the latter approach, particularly in regard to public servants who have been dismissed from office as a result of a decision-making process found to have been unlawful. For example in Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123 the court ordered the reinstatement of the hospital pharmacist who had been unlawfully dismissed even though he had not asked to be reinstated.
Counsel for the first and second respondents submitted that reinstatement was not a viable remedy. He said that since the appellant had left the provincial government there had been a major restructure and it would not be convenient or proper to put him back in his former position. There was no evidence given to that effect, however. Even if it is accepted to be the case, it is not a good reason to deny a person the benefit of proving that an unlawful decision was made.
We have ultimately been persuaded that the interests of justice require that the appellant be reinstated to his former position or to an equivalent position and we will make an order accordingly. It follows that the first respondent’s decision of 17 November 2000, to dismiss the appellant, will be quashed.
Back-pay
The final issue is back-pay. Should the appellant be compensated for the loss of salary and other entitlements he incurred from the date of his dismissal, in November 2000, to the date of his reinstatement? By the time that he is reinstated this will be a period of almost five years.
The appellant has specifically sought this remedy in his Order 16, Rule 3(2)(a) statement, so no question arises about the court granting a remedy that has not been sought. The jurisdictional basis for making such an order lies in Section 155(4) of the Constitution, which states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. [Emphasis added.]
We reiterate that all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated, it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past.
On the one hand the courts have stressed that dismissed public officials who succeed in judicial review should not necessarily receive a windfall gain, ie ‘get paid for doing nothing’, if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569, National Court, Injia J; and Gideon Barereba v Margaret Elias (2002) N2197, National Court, Sevua J.
On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752, National Court, Gavara-Nanu J.
Our research of the cases does not reveal a consistent approach. We received little assistance from the appellant (who represented himself) or counsel for the first and second respondents and we received no assistance at all from the Solicitor-General who did not make an appearance on behalf of the third respondent. We can see merit in the approach that someone who does not work for a considerable period should not be paid as if they were working. We note that when the Public Services Commission recommended that the appellant be reinstated there was no recommendation on the subject of back-pay.
However we are inclined to think that someone like the appellant who has been fighting his case for many years and ultimately won a judicial review after being unlawfully dismissed should receive monetary compensation; just as a person who succeeds in a wrongful dismissal or breach of contract action obtains damages by way of restitution.
We will exercise our discretion by ordering that the appellant be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the date of his dismissal to the date of his reinstatement. We consider that that is a just outcome. We will make the order subject to assessment by the National Court.
COSTS
The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
There was no appearance by the third respondent at the hearing of this appeal, so we consider that the appellants’ costs should be paid by the third respondent on a solicitor-client basis.
REMARKS
As we just commented, this appeal was heard in the absence of the third respondents’ lawyer, the Solicitor-General. This court recently commented that it gives a poor impression of that office for any appeal in the Supreme Court to which the State is a party to go ahead without representation (William Mel v Coleman Pakalia, Commissioner of Police and The State (2005) SC790, Supreme Court, Los J, Jalina J, Cannings J). We repeat that comment here. The week before this appeal was heard a refurbished office of the Solicitor-General was opened with some fanfare in Lae. It was disappointing therefore to find that when the Supreme Court sat in Lae in a case involving significant issues of administrative law and the interpretation of legislation central to the defence of claims against the State, the Solicitor-General made no appearance.
It was also disconcerting to find that the first and second respondents, the provincial administrator and the Morobe Provincial Administration, were represented by a private lawyer based in Port Moresby who evidently arrived on a flight from the capital only shortly before the hearing of this appeal commenced. He made a poor opening impression by immediately applying for an adjournment. The application was refused. Then it became apparent that he was significantly under-prepared. We were left to wonder why the respondents felt it necessary to engage private counsel at all; why a lawyer in Port Moresby was engaged; why he was not properly briefed, why he was under-prepared and, why there appears to have been no consultation with the Solicitor-General.
JUDGMENT
The Supreme Court upholds the appeal and directs entry of judgment in the following terms:
Judgment accordingly.
_____________________________________________________________________
Lawyer for the appellant : Self-represented
Lawyers for the 1st and 2nd respondents : Korowi Lawyers
Lawyer for the third respondent : No representation
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