Yafai v Kereme [2016] PGSC 50; SC1531 (1 September 2016)

SC1531

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 16 OF 2015

BETWEEN

JACOB YAFAI
Appellant

AND
DR PHILIP KEREME, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Respondent

AND
PUBLIC SERVICES COMMISSION
Second Respondent

AND
SIR MANASUPE ZURENUOC, CHIEF SECRETARY,
ACTING SECRETARY, DEPARTMENT OF FINANCE
Third Respondent

AND
DR KEN NGANGAN,
ACTING SECRETARY, DEPARTMENT OF FINANCE
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Kirriwom J, Cannings &Neill JJ.
2016: 29^th August &1^st September

JUDICIAL REVIEW – LEAVE REQUIREMENTS – Whether applicant raised an arguable case for judicial review – whether a contract officer of the National Public Service is eligible for judicial review – whether a contract officer aggrieved by dismissal from Public Service is restricted to private law remedies – whether undue delay in making application for leave.

The appellant was Deputy Secretary of a Department of the National Public Service. He was dismissed for disciplinary reasons and sought review of his dismissal by the Public Services Commission, which refused the review and upheld the decision to dismiss him. He then applied to the National Court for leave to seek judicial review of the decision to dismiss him and the decision of the Public Services Commission to uphold his dismissal. The National Court refused leave for two reasons: (a) the appellant was a contract officer, therefore a challenge to the legality of his dismissal could not be made by judicial review, he had to bring a private law claim seeking damages; (b) undue delay, without reasonable explanation, in applying for leave. The appellant appealed against the refusal of leave on two material grounds. It was argued that the primary Judge erred in law, by: (1) finding that because the appellant was a contract officer he was ineligible to apply for judicial review of the decisions pertaining to his dismissal; and (2) miscalculating and not properly considering the apparent delay in making the application for leave.

Held:

(1) The proposition that a contract officer of the National Public Service who is dismissed from office cannot challenge their dismissal by the judicial review procedure is flawed. Judicial review is a proper mode of challenge in such situations. Ground (1) of the appeal was upheld.

(2) To the extent that there was any delay in making the leave application, it was adequately explained by the circumstances of the case. Ground (2) of the appeal was upheld.

(3) As both grounds of appeal were upheld, the appeal was allowed, the decision of the National Court was quashed. The Supreme Court substituted for the decision of the National Court, its decision, granting leave to the appellant to review the decision of the Public Services Commission. Costs of the appeal were awarded to the appellant.

Cases cited:
The following cases are cited in the judgment:
Isaac Lupari v Sir Michael Somare (2008) N3476
Joel Luma v John Kali (2014) SC1401
Leto Darius v Commissioner of Police (2001) N2046
Louis Medaing v Minister for Lands and Physical Planning (2010) N3917
NTN Pty Ltd v PTC [1987] PNGLR 70

APPEAL

This was an appeal against a decision of the National Court, refusing an application for leave to seek judicial review of decisions of a Departmental Head and the Public Services Commission regarding the dismissal from the National Public Service of a contract officer.

Counsel:

I Molloy & M Kombri, for the Appellant
I Mugugia, for the Third, Fourth & Fifth Respondents

1^st September, 2016

1. BY THE COURT: Jacob Yafai, the appellant, appeals against the decision of the National Court to refuse his application for leave to seek judicial review of two decisions regarding his employment in the National Public Service:
   
   • the decision of the third respondent, the Acting Secretary of the Department of Finance, of 15 July 2013, to dismiss Mr Yafai from the Public Service, upon finding him guilty of disciplinary offences; and
     
   • the decision of the second respondent, the Public Services Commission, of 9 September 2014, to refuse Mr Yafai’s application for review of the decision to dismiss him and to uphold the decision to dismiss him.
     

BACKGROUND

2. In 2013 Mr Yafai held the position of Deputy Secretary (Operations) in the Department of Finance. On 17 May 2013 he was suspended and charged with serious disciplinary offences relating to alleged improper payments of public money to Paul Paraka Lawyers. He responded to the charges. On 15 July 2013 he was found guilty and the decision was made that the penalty was dismissal from the Public Service.
   
3. Mr Yafai applied to the Public Services Commission for review of the decisions finding him guilty and dismissing him. On 9 September 2014 the Public Services Commission refused Mr Yafai’s application for review of the decision to dismiss him and upheld the decision to dismiss him. On 23 September 2014 the decision of the Public Services Commission was conveyed to Mr Yafai.
   
4. On 19 November 2014 Mr Yafai filed, in the National Court, OS (JR) No 806 of 2014, an application for leave to seek judicial review of the decision to dismiss him and the decision of the Public Services Commission to refuse his review and to uphold the decision to dismiss him. The proposed grounds of review included allegations of denial of natural justice and of failure by the Acting Secretary for Finance to adhere to the disciplinary procedure in clause 25 of the Standard Terms and Conditions of Employment of Senior Officers in the National Public Service.
   
5. On 12 May 2015 the National Court, constituted by Justice Gavara-Nanu, heard the application for leave. On 12 June 2015 his Honour delivered an oral judgment, refusing leave, for two reasons:
   

(a) the appellant was a contract officer, therefore a challenge to the legality of his dismissal could not be made by judicial review, he had to bring a private law claim seeking damages;

(b) undue delay, without reasonable explanation, in applying for leave.

The appellant filed an appeal against the refusal of leave for judicial review. That is the matter we are now determining. There are two material grounds of appeal. It is argued that the primary Judge erred in law, by:

(1) finding that because the appellant was a contract officer he was ineligible to apply for judicial review of the decisions pertaining to his dismissal; and

(2) miscalculating and not properly considering the apparent delay in making the application for leave.

6. The appellant seeks an order quashing the decision of the National Court and granting him leave to apply for judicial review.
   
7. We now address the two grounds of appeal.
   
1. ERROR OF LAW BY FINDING THAT CONTRACT OFFICERS CANNOT BE GRANTED JUDICIAL REVIEW
   
8. It is agreed that Mr Yafai was a contract officer, employed under a three-year contract entered into under Section 41 (contracts of employment) of the Public Services (Management) Act 1995. The primary Judge took the view that Mr Yafai’s status as a contract officer made it inappropriate for him to be granted leave to seek judicial review. His Honour stated:
   

It is clear that the plaintiff [the appellant] was, for all practical purposes, a contract officer. He was treated as such by his employer, namely the Department of Finance and therefore his case, in my view, must be treated as such. ...If the plaintiff wants to challenge the legality of his termination, he should ...issue proceedings for [a] claim for damages. ... As I said in that regard, he was properly charged under clause 25. I am therefore of the view that the plaintiff’s remedy lies in damages. As I said, he should issue proceedings, if he wants to, for damages for unlawful termination. On these bases, I would refuse leave.

9. We uphold the submissions of Mr Molloy, for the appellant, that in taking such an approach, and ruling that because he was a contract officer the appellant was not eligible for judicial review, the learned primary Judge erred in law. The proposition that a contract officer of the National Public Service who is dismissed from office cannot challenge their dismissal by the judicial review procedure is flawed. Judicial review is a proper mode of challenge in such situations.
   
10. That principle was confirmed by the Supreme Court in Joel Luma v John Kali (2014) SC1401. The Court (Mogish J, Makail J, Yagi J) upheld an appeal against the refusal by the National Court to grant leave to a Departmental Head whose appointment had been revoked by the National Executive Council. The National Court had refused leave, as in the present case, on the ground that the applicant was employed under a contract of employment, therefore he could not seek judicial review of the termination of his employment, his remedy lay exclusively in a claim for damages for breach of contract.
    
11. The Supreme Court held that such an approach is wrong in law. It cited with approval the approach taken to this issue by Injia DCJ, as he then was, in Isaac Lupari v Sir Michael Somare (2008) N3476, who stated:
    

... I wish not to deviate from my position taken in the cases that I have decided which I referred to in my judgment given on 11th July 2008. That is, the procedure for appointment and revocation of a person occupying the position of the Chief Secretary or a Secretary of a Department of the State, are prescribed by s 193(1)(A) & (1)(C) of the Constitution and s 31A and s 31C of the Public Services (Management) Act, respectively. The contract of employment executed between the Chief Secretary or Departmental Head and the State is authorized by Part VI – Division 2 (ss 26, 27, 28, 29 & 30) of the Public Services (Management) Act. The contract of employment is a public contract founded on statute; it has no independent existence. If the contract were of independent existence, the contract would be quite correctly governed by private contract law and come under the exclusive domain of the common law. A contract of employment of the kind in this case is quite clearly the subject of public law. The terms of the contract of employment must be consistent with appointment and revocation of appointment provisions of the Constitution and Public Services (Management) Act. To the extent that the terms of the contract are inconsistent with the Constitution and the Public Services (Management) Act, the latter prevails. For these reasons, I am of the view that a Chief Secretary or a Secretary of a Department of the State who is aggrieved by the decision of the NEC to revoke his appointment is entitled to seek judicial relief under the judicial review procedure in Order 16 of the National Court Rules.

12. We agree with the approach of Sir Salamo Injia in Lupari and with the approach of the Supreme Court in Luma. By refusing to grant leave, simply because the appellant was a contract officer, the learned primary Judge, with respect, erred in law. Ground (1) of the appeal is upheld.
    
2. MISCALCULATING AND FAILING TO PROPERLY CONSIDER APPARENT DELAY IN MAKING APPLICATION FOR LEAVE
   
13. The primary Judge dealt with the issue of delay immediately after his finding that leave would be refused because the appellant was a contract officer. His Honour stated:
    

But there is another reason why I should refuse leave and, that is, it is now almost two years since the plaintiff [the appellant] was terminated. Because of that long delay obviously it would result in substantial hardship and prejudice to whoever is holding the position now and therefore it will be contrary to the rules governing this type of case, in other words, Order 16, Rule 4(1) [of the National Court Rules] provides that in such cases the application for leave should be refused.

14. The appellants argue that the primary Judge miscalculated the length of the period that elapsed between the date of the decisions sought to be reviewed and the date of making the application for leave. We uphold that argument.
    
15. The length of the period involved should be calculated by reference to the date that the decision of the Public Services Commission was conveyed to the appellant (23 September 2014) and the date that the application for leave to seek review was made (12 May 2015). It was approximately seven months. Having regard to Order 16, Rule 4 of the National Court Rules, that was not an extensive delay; and to the extent that it was a delay (in that it exceeded the “relevant period” of four months), we consider that, on the evidence before the National Court and also before this Court, it is adequately explained by the circumstances of the case. Ground (2) of the appeal is upheld.
    

CONCLUSION

16. As both grounds of appeal are upheld, the issue arises as to what orders we should now make. In a civil appeal the Court’s discretion is exercised under Section 16 (decision etc on appeal) of the Supreme Court Act, which 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 judgment; or

(c) give such judgment 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.

17. Further, under Section 6(2) of the Supreme Court Act, 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.
    
18. We will exercise the powers in Sections 6(2) and 16(1)(c). We have all the evidence before us to determine the question of whether leave for judicial review should be granted. We have considered the five criteria for granting leave (NTN Pty Ltd v PTC [1987] PNGLR 70, Leto Darius v Commissioner of Police (2001) N2046, Louis Medaing v Minister for Lands and Physical Planning (2010) N3917), namely:
    
    • (a) Does the plaintiff have locus standi, ie a sufficient interest in the subject matter of the decision?
      
    • (b) Is the decision sought to be reviewed that of a public authority?
      
    • (c) Does the plaintiff have an arguable case on the merits?
      
    • (d) Have administrative remedies, if any, been exhausted?
      
    • (e) Has the application been made promptly without undue delay?
      
19. We consider that all five are satisfied. In particular, we draw attention to the issue regarding Section 25 of the Standard Terms and Conditions of Employment of Senior Officers in the National Public Service, which, it is agreed (and the primary Judge found that it applied), formed part of the terms and conditions of the appellant’s public employment. Section 25 states:
    

25.1 Serious disciplinary matters pursuant to Section 20 hereunder, allegedly involving the Senior Officer shall be resolved through the following procedure:

1. Where the Senior Officer is alleged to have committed a serious offence under Section 20, the Department Head shall suspend the Senior Officer on full pay, and the Departmental Head shall formally charge the Senior Officer in writing with the offence allegedly committed and enable the Senior Officer to reply to such charges prior to submitting a report to the Secretary for the Department of Personnel Management.
   
2. The Senior Officer shall formally respond to the charge in writing to the Departmental Head within 7 days of the charge being laid.
   

100. The Departmental Head shall submit a copy of the charge, Senior Officer’s formal response, any other relevant evidence together with recommended action to the Secretary of Personnel Management who shall having obtained a legal opinion determine whether or not the Contract should be terminated.
     

4. The decision of the Secretary for the Department of Personnel Management shall be final and the terminated Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event that he considers the termination to have been made unfairly.
   

25.2 Notwithstanding the above procedure, the Departmental Head may following consultation with the Secretary of the Department of Personnel Management formally caution or warn the Senior Officer in writing for unsatisfactory performance of duties, where the disciplinary offence is considered by the Departmental Head not to warrant termination for cause under Section 20 herein.

20. There is evidence that in the present case the decision to dismiss Mr Yafai was made by the Acting Secretary for Finance. There is at least an arguable case that this was contrary to Section 25.1(c), which seems to require such a decision to be made by the Secretary for Personnel Management.
    
21. We will therefore grant leave to the appellant to review the decision of the Public Services Commission, which appears, arguably, not to have given proper consideration to the many issues raised by the appellant in his application to it for review of the Acting Secretary’s decision.
    
22. The grant of leave will apply only in relation to review of the decision of the Public Services Commission. It is not a grant of leave for judicial review of the decision to dismiss the appellant from the Public Service. Such an approach is in line with the National Court decisions in Philip v National Education Board (2008) N4024 and Kenehe v Jogioba (2008) N4025, which we endorse as correct. Costs will follow the event.
    

ORDER

(1) The appeal is allowed.

(2) The order of the National Court of 12 June 2015 in OS (JR) No 806 of 2014 is quashed.

(3) The proceedings, OS (JR) No 806 of 2014, are reinstated and, for the purposes of those proceedings, pursuant to Section 16(c) of the Supreme Court Act, the appellant is granted leave for judicial review of the decision of the Public Services Commission dated 9 September 2014, and, pursuant to Section 16(d) of the Supreme Court Act, the case is remitted to the National Court for further conduct of those proceedings.

• (4) The third, fourth and fifth respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
  

Judgment according:
______________________________________________________________
Kombri & Associates Lawyers : Lawyers for the Appellant
Solicitor-General : Lawyer for the 3^rd, 4^th& 5^th Respondents