National Narcotics Bureau v Nauro [2016] PGSC 31; SC1513 (15 July 2016)

SC1513

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 27 OF 2013

REVIEW PURSUANT TO SECTION 155(2) (b) OF THE CONSTITUTION TO REVIEW DECISION OF THE NATIONAL COURT IN OS. NO. 184 OF 2011

APPLICATION BY NATIONAL NARCOTICS BUREAU
Applicant

AND:
JOHN PATRICK NAURO
First Respondent

AND:
PUBLIC SERVICE COMMISSION
Second Respondent

Waigani: Kandakasi & Yagi JJ.

2014: 28^th & 31^st October

2016: 25^th February & 15^th July

JUDICIAL REVIEW – Constitution s. 155(2)(b) – Public servant terminated from employment in the public service on disciplinary grounds – Application for review lodged with Public Service Commission (PSC) pursuant to Public Service Management Act, s. 18 – Review upheld with recommendation to Departmental Head for reinstatement of public servant – No action taken to implement the recommendation – Public servant secured mandamus order against Department Head – No step taken to appeal against the mandamus orders – Review against decision filed with leave – Main issue – Whether Departmental Head given opportunity to be heard – Departmental Head given notice twice and failed to turn up at hearing twice – No denial of right to be heard – Review Application dismissed as having no merit.

Cases cited:

Eastern Highlands Savings & Loans Society Ltd v Secretary, Department of Lands (1999) N1901
Ian Thomas Langford v The State (1990) SC 383

Counsel:

A. Maribu, for the Applicant
B. Boma, for the First Respondent
No appearance for the Second Respondent

15^th July, 2016

1. KANDAKASI & YAGI JJ: We heard this application as a full Court with our brother Gavara-Nanu J., presiding as chairman of the bench. Having heard the matter, the Court reserved its decision. His Honour Gavara-Nanu J., decided to have himself disqualified. The full reasons for his decision have been published on 4^th October 2015, which has been numbered as SC1480. Section 3 of the Supreme Court Act was administered on 25^th February 2016 to the parties. The parties agreed to the two of us proceeding to deliver the Court’s decision in this matter. This is now the decision of the Court.

2. This is an application with leave of this Court for review under s. 155(2) (b) of the Constitution. It arises from a decision of the National Court made on 2 April 2012 in proceeding OS No. 184 of 2011.

Background

3. The background of the case in brief is as follows. The applicant (National Narcotics Bureau) is a government statutory body whose primarily function, amongst others, is to conduct survey and make recommendations to the National Narcotics Control Board on matters relating to drug abuse in the country. At all material times the first respondent (Mr. John Patrick Nauro) was employed as the Deputy Director of the National Narcotics Bureau (NNB).

4. Mr. Nauro was alleged to have committed certain disciplinary offences and as a result disciplinary process was instituted by the Director of the NNB. He was charged, found guilty and terminated from employment in the public service. The decision to terminate his employment was made on or about 11 March 2008. Being aggrieved by the decision, Mr. Nauro applied to the Public Service Commission (PSC) on 12 November 2008 for a review under s. 18 of the Public Service (Management) Act. He sought to have his termination reversed and hence the reinstatement of his employment.

5. The PSC deliberated on his application and found in his favour. Consequently, a decision was made on 10 February 2010 whereby the termination was nullified and Mr. Nauro was reinstated to his substantive position at the time of his termination. The PSC also directed that all his salaries and allowances be restored. That decision and the recommendation of the PSC was brought to the attention of the NNB in or about 25 October 2010. No action was taken to implement the decision and recommendations.

6. On 18 April 2011 Mr. Nauro filed proceeding for judicial review in the National Court in Waigani where he sought mandamus orders to compel the NNB to comply with the decision and recommendations of the PSC to have him reinstated to his position. The National Court granted leave to apply for review on 21 June 2011. The trial of the issues in the review proceeding was conducted on 17 February 2012 and a decision was delivered by the trial Judge on 2 April 2012.

7. The trial Judge found in favour of Mr. Nauro holding that there was no legal basis for a refusal or failure by the NNB to implement the decision and recommendations of the PSC. Consequently, the trial Judge issued orders against the NNB for the reinstatement of Mr. Nauro and restoration of all his employment entitlements and benefits.

8. The NNB did not appeal against the decision of the National Court and therefore lost its right of appeal. But it did seek and was granted leave by this Court (differently constituted) to review the decision of the National Court.

Grounds of Review

9. The grounds of review are as follows:

“(1) The learned trial judge erred when His Honour failed to consider the relevant issues of non-compliance of procedures stipulated under Section 18(3) of the Public Service Management Act (“the Act”) which were addressed at the hearing of the National Court proceedings on 17^th February 2012 by the Applicant when opposing the First Respondent’s application.

(2) The learned trial judge erred when His Honour failed to take into account that the decision of the Public Service Commission (PSC) was not served or notified immediately hence in breach of Section 18(3) (iii) of the Act and that as a result affected the right of the Applicant to review within 30 days under Section 18(3) (d) (ii) of the Act.

(3) The learned trial judge erred when His Honour failed to hold that the decision of the (PSC) was void and have no legal effect from the beginning for non-compliance of the procedures under Section 18(3) of the Act.

(4) The learned trial judge erred when His Honour decided to give effect to the PSC decision that was void and in effective for PSC’s failure to comply with mandatory procedure under Section 18 of the Act.”

10. The Applicant therefore seeks orders, amongst others, principally to quash the PSC decision and stay the National Court orders made on 2 April 2012.

Issue

11. Turning now to a consideration of the issues in this review, the NNB submits and we agree that the grounds of review give rise to one fundamental issue. The issue is whether the learned trial Judge failed to consider or properly consider the procedural requirements under s. 18(3) of the Public Service Management Act. Counsel for Mr. Nauro also concedes that this is the issue to be determined in this review application.

Submission by NNB

12. It is submitted by the NNB that the issue of non-compliance with s. 18(3) of the Public Service (Management) Act was raised and argued, however, the learned trial Judge failed to determine the issue and therefore, so it is argued, the failure amounted to a denial of the right to be heard, and hence an error of law. The NNB relies on 2 cases in support of its argument; Ian Thomas Langford v The State (1990) SC 383 and Eastern Highlands Savings & Loans Society Ltd v Secretary, Department of Lands (1999) N1901.

Submission by First Respondent

13. It is submitted by counsel for Mr. Nauro that the questions pertaining to the s. 18(3) of the Public Service Management Act had been considered by the trial Judge, however, the trial Judge found that the question was irrelevant because the NNB failed to challenge the alleged irregularity and therefore is bound by the decision of the PSC after the expiration of the statutory time limit of 30 days pursuant to s. 18(6) (b) of the Public Service Management Act.

Reasons for Decision

14. The issue that is to be determined is clear. The applicant says that the trial Judge failed to consider s. 18(3) of the Public Service Management Act. This provision directs the PSC to summon the concerned Departmental Head or his delegate to appear before it and be given a right to be heard in respect to a review made by the aggrieved officer. It is argued the PSC failed to heed this requirement and therefore the NNB was denied the right to be heard.

15. Section 18(3) of the Act provides as follows:

“(3) The Commission shall summons —

(a) the departmental head of the Department of Personnel Management or his delegate; and

(b) the departmental head of the Department in which the officer is or was employed, or his delegate; and

(c) the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organisation of which he is a member, or by a lawyer.”

16. However, the evidence contained in the Review Book suggest otherwise in that the procedure was in fact invoked by the PSC. The evidence is contained in the affidavit of Mr. Nauro sworn on 16 June 2011. In that affidavit Mr. Nauro deposed that the Head of the NNB was summoned by the PSC to appear on 3 July 2009 but he failed to appear. For that reason the hearing was deferred to 28 July 2009. The PSC wrote again to the Head of the NNB on 20 July 2009 and informed him of the new hearing date. Despite the advice, the Head of NNB failed again to make appearance. There is further evidence in the affidavit of John Mapusa sworn on 26 May 2011 that detailed documentation were forwarded by the lawyers for NNB to the PSC on 3 July 2009. There is no evidence by Mr. Mapusa or anyone on behalf of NNB providing any reason why the Head of NNB or his delegate failed to appear before the PSC hearing on 28 July 2009. In the circumstances it is apparent from the evidence that the PSC had complied with the procedural requirement under s. 18(3) of the Public Service Management Act.

17. In any event the trial Judge did consider the s. 18(3) issue and found that it was not relevant to the substantive issue before him in the trial. The trial Judge dealt with that question at pages 5 – 6 of his judgement under the heading “Issue 3: whether the Court can hear issues, of impropriety or failure to comply with the procedures by the PSC to arrive at the decision it made on 10 February 2010, in this application.” After giving four reasons the trial Judge concluded that:

“The First Defendant (John Mapusa as Director General of National Narcotics Bureau) failed to implement the decision of PSC on his own belief of prior procedural errors on the part of the PSC. The defendants sat on their rights to have the PSC decision reviewed by an appropriate Tribunal. Any decision alleged to be seriously flawed should have been put up for judicial review within a reasonable time. The defendants knew or ought to have known that the PSC decision was mandatory and binding on them.

It is my firm view that where a departmental head takes no action to judicially review a PSC decision within 30 days pursuant to S. 18 (3) (d) (ii) of the Public Service (Management) (Amendment) Act 2002, the decision would be deemed to have been accepted by the departmental head and stands only to be implemented.

The alleged failures of the PSC which the defendants submitted in their response are not of any substance that would adequately prevent the grant of the orders sought by the Plaintiff. It would amount to taking into consideration matters not relevant to the motion on foot.”

18. The Ian Thomas Langford case (supra) which the applicant relies upon is a very brief decision of the Supreme Court where the Court considered only one basic issue as to whether there was evidentiary material properly admitted that formed the factual basis upon which the trial Judge could make a finding. The brief background to the case is that the appellant, a State Prosecutor, was found guilty of contempt. He was the State Prosecutor for a particular circuit location. The trial Judge arrived at the circuit location without the knowledge of the appellant and upon commencing the court sitting called upon the appellant to prosecute cases. The appellant was not ready. The trial Judge relied upon certain information and materials which were not properly before him to find the appellant guilty of contempt. He appealed against the finding. The Supreme Court found that there was no material properly before the circuit Judge to make a finding against the appellant. The applicant in this review application relied on the following statement of the Supreme Court:

“However we consider that information provided to the learned trial judge by other persons outside the court should not be acted upon by the trial judge unless they are put before the court in admissible form.

It is clear to us from the judgement dated the 18th of April that material not properly before the court was taken into account by the learned trial judge in ordering the Registrar to institute contempt proceedings.

For those reasons we consider that the order made by the learned trial judge is invalid.”

19. As regards the case Eastern Highlands Savings & Loans Society Ltd (supra) this is another case relating to contempt proceedings. An order was made by the Court against the Secretary for Lands or his officers for production of relevant documents pertaining to forfeiture of a State Lease. The Court found that a breach of the order had occurred, however, declined to punish the contemnor on the basis of irregularity and defect in the proceedings.

20. In our view, neither of the two cases assists the applicant. The facts of these cases are completely different. Moreover, the principles of law discussed in these cases do not apply to the facts of the case before us.

21. It is our respectful opinion that NNB was not denied the right to be heard in relation to the procedural issue under s. 18(3) of the Public Service Management Act. In fact we must say that NNB was actually heard on the issue. For these reasons we find that there is no substance or merit in the review application by NNB. The application must therefore fail or should be dismissed with costs.

22. The formal orders of the Court are:

(1) The review application is dismissed.

(2) The Applicant shall forthwith comply with and give effect to the PSC decision resulting in an immediate reinstatement of the First Respondent to the position of Deputy Director with all his entitlements paid in full.

(3) The Applicant shall pay the Respondents costs, which cost may be agreed if not taxed.

______________________--------------------------------________________________________

Liria Lawyers: Lawyer for the Applicant
Boma Lawyers: Lawyer for the Respondent