Waipo v Simbatab [2016] PGSC 8; SC1490 (11 March 2016)

SC1490

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM. NO. 02 OF 2016

BETWEEN:

MICHAEL WAIPO as the
COMMISSIONER, PNG CORRECTIONAL SERVICES
Appellant

AND:

HON. JIMMY SIMBATAB,
as the MINISTER FOR PNG CORRECTIONAL SERVICES
First Respondent

AND:

JOHN KALI, as the CHAIRMAN,
MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE
Second Respondent

AND:

HON. PETER O'NEILL, as the
CHAIRMAN, NATIONAL EXECUTIVE COUNCIL
Third Respondent

AND:

CHIEF INSPECTOR, BERNARD NEPO
Fourth Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Respondent

Waigani: Higgins J
2016: 2nd & 11th March

PRACTICE AND PROCEDURE- Application for stay of (NEC) National Executive Council Decision and Interim Orders – Appeal against refusal to grant Interim Orders by National Court and following grant of Leave for Judicial Review- Interim Relief sought to continue departmental Head of Correctional Services in Office pending review – Relevant Principles – Balance of convenience – Public Interest – Orders Granted.

Cases Cited:

Kapo v. Maipakai (2010) PGSC47
Mairi v. Tololo (1976) PNGLR 59
PNG Air Traffic Controllers v. CAA of PNG (2008) PGSC 36
Tato v. Nanai & Ors, SCA No. 120 of 2016

Counsel:

Mr. G. Lau, for the Appellant
Ms. A. Mugugia, for the Respondents

JUDGMENT

11th March, 2016

1. HIGGINS, J: On 9th February 2016, the appellant was purportedly dismissed from his office as Correctional Services Commissioner. That office is Departmental Head of Correctional Services.
   

2. The appellant was appointed to that office on 7th October 2014 for a period of 4 years expiring on 25th September 2018. On 9th February 2016, The National Executive Council, (NEC) met and by resolution 15 of 2016 purportedly revoked that appointment and appointed the 4th Respondent as Acting Commissioner. The appellant was given no notice, he claims, of his impending dismissal or of any reason for it.

3. He alleged not only that his entitlement to natural justice was disregarded but also that his termination was contrary to s. 28 (3)(b) of the Public Service (Management) (Employment of Departmental Heads) Regulation 2014. The ground cited in that regulation is "poor performance" He was not given any particulars of the alleged "poor performance".

4. The decision was notified to the appellant by letter dated 11th February 2016. It was in the following terms:

"I wish to formally advise you that the Chairman of the National Executive Council (NEC), the Prime Minister, has ratified the decision of the NEC on Thursday 5th February 2016, to revoke your appointment as Commissioner of the PNG Correctional Service. It is therefore my duty as Minister for Correctional Service to formally convey to you this Executive Decision as per the attached NEC Directive No. 15/20016.

At the same time I would like to express, on behalf of my Ministry and the Government, my deep appreciation to you for the dedicated services to the PNG Correctional Service, firstly as Commissioner over the last two years, and also as a fine correctional officer in the PNG national prison system for over four decades.

Let me thank you most sincerely for the association I have had with you over your tenure as Commissioner. I also know that as a loyal civil servant, that (sic) you will accept the executive decision of the Government on revoking your appointment as a Departmental Head. So please allow me to wish you every success in your new endeavours, and be rest assured that your deep experience in corrections are valuable, and which should be utilized by the PNG Correctional Service in some other capacity.

On a personal note, may I, on behalf of my family and my Electorate of Wewak, wish you and your family all the best in the future. May God continue to bless you.

Your Sincerely,

Hon. Jim B. Simatab, MP

Minister for Correctional Services".

5. The terms of that letter do not reflect any dissatisfaction with the appellant's performance of his duties. Indeed, the contrary inference is open.

6. By amended Notice of Motion filed 15th February 2016 the appellant sought leave for judicial review of that decision.

7. Leave for judicial review was granted on 15th February 2016 by Makail, J in the National Court at Waigani.

8. However, his Honour refused to stay the decision of the NEC to terminate the appellant's appointment and in consequence refused injunctive relief intended to ensure that the appellant continued in office until the judicial review process was completed.

9. By way of Notice of Motion dated 23rd February 2016, the appellant seeks to reverse the orders of Makail, J by substituting the stay order and consequential injunctive relief he seeks.

10. He pleads that having found he had an arguable case for substantive relief, his Honour erred in not granting interim relief.

11. He relied upon a further consideration, namely, that the 4th Respondent was, substantively, a Chief Inspector, hence junior in rank to any Deputy Commissioner, Assistant Commissioner, Chief Superintendent or Superintendent already serving. He cited fears of confusion within the service.

12. By affidavit of 16th February 2016, the Appellant also cited fears of other disadvantages being visited upon him, loss of vehicle and accommodation being given as examples.

13. The revocation of his existing appointment and the acting appointment of Chief Inspector Nepo were gazetted on 12th February 2016.

14. On 4th March 2016, the parties appeared before me upon the appeal from Makail, J's refusal of interim relief.

15. There is no challenge to the finding that there is a serious issue to be tried. The Public Service (Management) (Employment of Departmental Heads) Regulation 2014 provides a process for the revocation of the appointment of a Departmental Head, such as the appellant, even in cases where no disciplinary action has been taken.

16. Section 28 (3) provides:

"The grounds, criteria and the procedures for termination by a contract of employment shall include the following provisions:
(a)....

(b) Breach of contract for poor performance (under a Contract of Employment) where no disciplinary action was involved.

(i) following consistent poor performance by a departmental head over a period of not less than 6 months. Whereby, as a result of a decision of the MEAC [Ministerial Executive Appointment Committee] the Portfolio Minister (Hon. Jimmy Simatab) has issued a warning in writing to a Departmental Head (the appellant) to improve his performance or to overcome weakness in conduct within a period of not less than 6 months."

17. There is no evidence of compliance with that provision. Indeed, such evidence as there is suggests the contrary.

18. Section 28 (3) (c) also provides for termination action "in the interest of the State" however, nothing suggests that those provisions have been invoked.

19. There is, therefore, a prima facie case that the termination was unlawful, even apart from noncompliance the general principles of natural justice. The appellant also asserts that he has not yet been asked to execute a contract of employment pursuant to Section 29 of the Public Service (Management) Act 2014. What follows from that in this case will be a matter for submissions but it would follow that there is no specific contractual obligation that he has breached.

20. The grant of interim relief is, nevertheless, discretionary. Counsel for the appellant referred to Mairi v Tololo [1976] PNGLR 59.

21. In that case Frost, CJ opined that there should first appear to be a serious question to be tried. Then the balance of convenience and any other matter going to the discretion of the court, such as the preservation of the status quo. The effect on third parties is also relevant.

22. Reference may also be made to PNG Air Traffic Controllers Association v. Civil Aviation Authority of Papua New Guinea [2008] PGSC36. That was a case involving an employment agreement which the unions concerned claimed was not signed on their behalf. Cannings J granted interim relief pending appeal holding that, there being an arguable case, the interests of justice and the balance of convenience favoured the grant of orders staying the implementation of the agreement.

23. Kapo v. Maipakai [2010] PGSC 47 involved the purported dismissal of a Provincial Governor by the Provincial Assembly in purported exercise of its statutory powers under the relevant Act. At [23] Injia, CJ observed (omitting case reference):

"In public law cases, of paramount importance is the seriousness of the issue to be tried and the balance of convenience, damages is a less important consideration.

...The public interest may be considered in the context of the balance of convenience or as an additional consideration, In a case founded on public law which involves issues of removal and/or appointment of public officials, the public Interest may be a special consideration that is to be taken into account separate from the balance of convenience."

24. And, at [24]:

"...This consideration [ie.public interest] could fall to be considered under the balance of convenience but I would think it is a distinct consideration in every case where interim injunctive relief is sought to restore a public official who has been removed on disciplinary grounds following procedures prescribed by law".

25. I also note that, at [34], his Honour observed the appellant was, until the dismissal, the incumbent Governor.

"... He has been running the province since 1997, in the affidavits that were filed in the National Court, there is no suggestion of gross mismanagement or malpractices committed by him or his government that would stand in the way of his continuing in the office. There is a greater risk to good administration of the province when a new person who has no proven track record of management of the office of the Governor is allowed to take over the administration in the short period during the currency of court proceedings."

26. With respect, those remarks have considerable application and weight in the present context where, without any specific allegations of mismanagement or malfeasance the NEC purported to approve the acting appointment of a relatively junior officer above many more senior officers to replace the appellant.

27. The recent decision of Injia, CJ in Tato v. Nainai & Ors, SCA. 120 of 2016 is also of relevance. There the Provincial Administrator stood aside pending the resolution of criminal proceedings brought against him. An Acting Administrator was appointed. The criminal proceedings were resolved in the appellant's favour. However, the Acting appointee was given a further 3 months term by the NEC. The appellant was the substantive office holder and, being ready, willing and able to resume the duties of the office was held to be prima facie entitled to do so.

28. At [36] his Honour observed:

"The substantive holder of a public office is always entitled to enjoy the term of the office so which he is appointed and perform the duties of that office if he is under no legal disability by reason of physical disability or otherwise lawfully disqualified from holding office for a temporary or permanent period"

29. Put succinctly, the permanent office holder has a superior right to perform the duties of the office if there is no compelling reason to the contrary.

30. In this case, the dismissal of the appellant from office affects his right to the perquisites thereof, including transport and accommodation. It also affects his salary. The 4th respondent simply resumes his prior entitlements if his acting appointment is revoked.

31. There is evidence that a number of officers appointed to positions by the appellant have been or are likely to be disadvantaged.

32. The balance of convenience so considered favours the grant of the interim relief sought.

33. So far as the public interest is concerned there is no evidence of any gross mismanagement or malfeasance that would favour removing the appellant from office.

34. On the other hand, there is clearly good reason to be concerned for the administration of Correctional Services in the appointment of so junior an officer to a position of authority over those who, before then, were his superior officers. He has, to quote the Chief Justice (supra), "no proven track record". His appointment is highly likely to lead to disruption and resentment.

35. Accordingly, in my view, on the material I have before me, the orders sought by the appellant pending hearing of his application for judicial review, should be made, and I so Order.
__________________________________________________________
Niuage Lawyers: Lawyers for the Appellants
Solicitor General's Office: Lawyers for the Respondents