SC1730
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 30 OF 2016

DR VELE PAT ILA’AVA
First Appellant

PHILIP KEREME, CHAIRMAN, PUBLIC SERVICES COMMISSION
Second Appellant

PUBLIC SERVICES COMMISSION
Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

V

CHRISTOPHER PETER
Respondent

Waigani: Cannings J, Manuhu J, David J
2018: 1, 8 November

JUDICIAL REVIEW – trial of application for judicial review - applicant bound by grounds of review set out in Order 16, Rule 3(2)(a) statement.

EVIDENCE – whether the court, when hearing an application for judicial review, can make findings of fact based on evidence of respondents. 

CONSTITUTIONAL INSTITUTIONS – Public Services Commission – whether bound to conduct oral hearing when reviewing a personnel matter – Public Services (Management) Act, Section 18.

The Public Services Commission was the primary appellant in this appeal against a decision of the National Court, which granted an application for judicial review by the respondent (the plaintiff in the National Court), who was dismissed from the Public Service after being found guilty of a disciplinary offence, and who unsuccessfully sought review of his dismissal by the PSC (the third defendant in the National Court). The respondent applied for judicial review of the decision of the PSC to dismiss his review and affirm his dismissal from the Public Service. The National Court found that the PSC had not conducted an oral hearing of the respondent’s complaint and that he had not been heard in accordance with Section 18 of the Public Services (Management) Act and that he was denied natural justice. The National Court quashed the PSC’s decision and remitted the respondent’s complaint to the PSC for rehearing. The PSC appealed on various grounds, in particular that the National Court erred in law by granting the application for judicial review: (1) on a ground that was not pleaded in the supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules; (2) in the absence of evidence by the respondent challenging the validity of the hearing process; (3) despite during the trial sustaining objections to evidence given by the respondent about the type of hearing he was given; and (4) based on evidence given by the PSC’s witness, who was not cross-examined about the PSC’s failure to conduct an oral hearing. 

Held: 

(1)	An applicant for judicial review is confined at the trial of the application to arguing grounds of review set out in the supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules. Here the grounds encompassed arguments about denial of natural justice and the right to be heard, so the argument of failure to conduct an oral hearing, which was the critical point of law on which the case was decided, was properly regarded by the trial judge as a ground of review that was included in the statement. His Honour did not err by hearing argument and deciding the case on that issue. 

(2)	It is not correct to say that the respondent did not adduce evidence to challenge the validity of the hearing process as he gave evidence that there was no hearing at all. 

(3)	The fact that the trial judge sustained an objection to the respondent giving evidence on the issue of whether there was an oral hearing did not prevent the trial judge deciding the case on that issue, as there were arguments put to the Court as to the validity of the hearing process and there was ample precedent allowing the Court to decide that as, a matter of law, an oral hearing was necessary, and ample evidence on which to base a finding of fact that there was no oral hearing. 

(4)	The fact that an oral witness was not cross-examined by the opposing party’s counsel on evidence that the witness gave in evidence-in-chief does not diminish the value of that evidence. Here, though he was not cross-examined on the point, the PSC’s principal witness gave evidence-in-chief that the PSC did not feel obliged to conduct oral hearings and did not in fact conduct any oral hearing regarding the respondent’s complaint. The trial judge did not err by basing a finding of fact that there was no oral hearing on that witness’s evidence.

(5)	The appellants failed to show any error of law on the part of the trial judge. All grounds of appeal were dismissed and the decision of the National Court was affirmed. 

Cases cited

The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias and The State (2005) N2850
Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473
Christopher Peter v Dr Vele Pat Ila’Ava, Philip Kereme, Public Services & The State (2016) N6459

APPEAL

This was an appeal against a decision of the National Court, granting an application for judicial review of a decision of the Public Services Commission. 

Counsel

R M Simbil, for the Second & Third Appellants
A Kongri, for the respondent

1.       BY THE COURT: The Public Services Commission is the primary appellant in this appeal, which is against the decision of the National Court to grant an application for judicial review by the respondent (the plaintiff in the National Court). The respondent had been dismissed from the Public Service after being found guilty of a disciplinary offence. He unsuccessfully sought review of his dismissal by the PSC (the third defendant in the National Court). 

2.     The respondent applied for judicial review of the decision of the PSC to dismiss his review and affirm his dismissal from the Public Service. The National Court, constituted by Justice Makail, found that the PSC had not conducted an oral hearing of the respondent’s complaint and that the respondent had not been heard in accordance with Section 18 of the Public Services (Management) Act 1995 and that he was denied natural justice (Christopher Peter v Dr Vele Pat Ila’Ava, Philip Kereme, Public Services & The State (2016) N6459. 

3.      The National Court quashed the PSC’s decision and remitted the respondent’s complaint to the PSC for rehearing. 

GROUNDS OF APPEAL

4.      There are formally five grounds of appeal. However they are repetitious and overlap, and can be reduced to four. It is argued that the National Court erred in law by granting the application for judicial review: 

(1) on a ground that was not pleaded in the supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules; 

(2) in the absence of evidence by the respondent challenging the validity of the hearing process; 

(3) despite during the trial judge sustaining objections to evidence being given by the respondent about the type of hearing he was given; and 

(4) based on evidence given by the PSC’s witness, when he was not cross-examined about the PSC’s failure to conduct an oral hearing. 

1	ERROR OF LAW BY GRANTING JUDICIAL REVIEW ON A GROUND OF REVIEW THAT WAS NOT PLEADED

5.     Mr Simbil, for the PSC, submitted that the trial judge erred by deciding the case on a point of law – failure to conduct an oral hearing – that was not included in the respondent’s supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules. Mr Simbil submitted that the respondent’s primary ground of review was that the PSC acted ultra vires by not summoning him to the PSC as required by Section 18 of the Public Services (Management) Act.  Therefore, he submitted that the trial judge offended against Order 16, Rule 6(1) of the National Court Rules, which provides that an applicant for judicial review is confined at the trial of the application to arguing grounds of review set out in the supporting statement. 

6.      We note that a similar approach was taken in the National Court by Mr Simbil who elected not to make any submission in response to the argument made by Mr Kongri, for the respondent, that the PSC erred by not giving an oral hearing. Mr Simbil’s submission was that the argument about not giving an oral hearing was not pleaded and did not warrant a response. The trial judge was not persuaded by that submission and held that the supporting statement adequately pleaded the argument about failure to conduct an oral hearing.

7.     The supporting statement set out two broad grounds of review: (a) procedural ultra vires; and (b) irrationality.  The trial judge decided the case on ground (a), and found it unnecessary to rule on ground (b). Ground (a) stated:

The third defendant’s [PSC’s] decision dated 28 February 2013 to uphold the first defendant’s [Secretary for Agriculture’s] decision dated 24 April 2012 to dismiss the plaintiff [respondent] from employment was procedurally ultra vires or irregular in that:

(i)	the third defendant failed to follow the legal procedures expressly provided for under Section 18(3)(a)(ii) and 3(c) of the Public Services (Management) Amendment Act 2004 (“the Act”) thereby:
(ii)	failing to  summon the plaintiff to express his views against his termination,
(iii)	denying the plaintiff’s natural justice or right to be heard on review; and 
(iv)	further, failing to give immediate notification of his decision, to the plaintiff, until much later on 29 July 2014 [sic].

8.     Though ground (a) is clumsily drafted, we consider that sub-paragraph (iii), by alleging a denial of natural justice and a right to be heard, adequately raised the argument that the PSC erred in law by not conducting an oral hearing. We agree with the trial judge that the argument was sufficiently pleaded. His Honour did not err by hearing argument and deciding the case on that issue. We dismiss this ground of appeal.

2 	ERROR OF LAW BY GRANTING JUDICIAL REVIEW IN THE ABSENCE OF EVIDENCE BY THE RESPONDENT 
9.     Mr Simbil submitted that the respondent did not adduce any evidence to challenge the validity of the PSC’s hearing process. As he did not adduce evidence in support of what became his primary argument about absence of an oral hearing, the trial judge erred by deciding the case in his favour.  

10.     It is not correct to say that the respondent did not adduce evidence to challenge the validity of the hearing process. The respondent gave sworn evidence that he was not summoned and did not attend the PSC and that there was no hearing at all. The PSC presented contrary evidence: that the  respondent was summoned, that he did attend the PSC, on 11 June 2012,  and there was on that day, in the presence of the respondent, what  was described by their primary witness as a “directional  hearing”  (as distinct from an oral hearing).

11.     The trial judge summarised the conflicting evidence and made a finding of fact that there was in fact a hearing on 11 June 2012. His Honour continued:

18.	The real issue is whether the “directional hearing” held by the third defendant on 11th June 2012 constituted a hearing within the meaning of Section 18 of the PSM [Public Services (Management)] Act.

19.	With respect, I agree with the view expressed by Injia DCJ (as he then was) in Allan Pinggah v Margaret Elias and The State (2005) N2850.  The hearing is an oral one.  Presentation and exchange of written statements and submissions are no substitute to an oral hearing.  Written submissions and other documents such as statements from the aggrieved officer and witnesses may be used and submitted to the third defendant.  

20.	They are additional materials that can be utilised by the parties and the Commissioners of the third defendant at the hearing.  However, parties must be allowed to express their views in person before the Commissioners so that the Commissioners will appreciate their concerns and views.  This is because the outcome of the hearing will have serious consequences on the parties.  The third defendant may uphold, vary or annul the decision of the Departmental Head.

21.	I do not think the hearing is intended to be a formal one like a Court hearing because Section 18 does not give further details on the type of hearing or what the hearing entails, for instance, does it include cross-examination of witnesses by parties.  

22.	By the same token, I do understand that the third defendant does not have enough time to carry out its functions, moreover, a review hearing of a personal matter.  However, the hearing does not have to be a long one, may be half an hour long will do, so long as the main issue or issues are raised and discussed by the parties before the Commissioners. 

23.	One may argue that such an interpretation fails to take into account aggrieved officers who may not be in close proximity to the office of the third defendant in order to attend the hearing and be heard and I am referring to those officers living in the provinces.  Such would deny them the right to appear at the hearing.  The answer to this argument is found in Section 18 (3)(c) which provides that the aggrieved officer may be represented by an industrial organisation of which he is a member or by a lawyer. One of them can be engaged to appear on behalf of the aggrieved officer at the hearing.

24.	The record of hearing annexed and marked “C” to the affidavit of the second defendant stated that the plaintiff and a representative of the first defendant one Mr Jacob Pindae attended.  They were directed to exchange written submissions and given 14 days to respond to each other’s submission.  It does not state if they expressed views on the subject complaint at the hearing nor is there evidence of a further hearing where they attended and expressed their views on the subject complaint.

25.	I find that the “directional hearing” described by Mr Ngawi and further confirmed by the record of hearing of 11th June 2012 fell short of a hearing within the meaning of Section 18 of the PSM Act.  I further find that Section 18 gives the plaintiff a right to be heard in person.  It is an oral hearing and the failure to accord the plaintiff that right constituted a denial of his right to be heard under Section 18 of the PSM Act.

26.	It follows regardless of whether or not the plaintiff attended the hearing there was no oral hearing.  Either way, he was not heard in support of his complaint and denied natural justice.  This ground is upheld.

12.     We find no error in his Honour’s process of reasoning. As to the particular point raised by this ground of appeal, we find that there was evidence by the respondent about the absence of an oral hearing. The trial judge did not err by deciding the case in the absence of evidence by the respondent. This ground of appeal is dismissed.  

3	ERROR OF LAW BY GRANTING JUDICIAL REVIEW DESPITE SUSTAINING OBJECTIONS TO EVIDENCE 

13.      Mr Simbil pointed to a passage in the transcript showing that at the trial he successfully objected to evidence-in-chief being given by the respondent about the nature of the hearing that had been conducted by the PSC on a previous occasion (prior to 2012) that the respondent had sought review by the PSC of a  personnel decision affecting him. Mr Simbil pointed out that his objection was sustained on the ground of relevance. Therefore the issue of whether an oral hearing was required was not properly before the court.

14.    We reject this submission. The fact that the trial judge sustained an objection to the respondent giving evidence on the issue of whether there was an oral hearing did not prevent his Honour deciding the case on that issue. 

15.     There were arguments put to the Court as to the validity of the hearing process. There was ample precedent allowing the Court to decide that as a matter of law an oral hearing was necessary, in particular Allan Pinggah v Margaret Elias and The State (2005) N2850. There was ample evidence on which to base a finding of fact that there was no oral hearing. We dismiss this ground of appeal. 

4 	ERROR OF LAW BY GRANTING JUDICIAL REVIEW ON THE BASIS OF EVIDENCE GIVEN BY THE PSC’S WITNESS
16.     The argument here is intended to bolster the second ground of appeal (the argument that the respondent gave no evidence in support of the contention that there was no oral hearing conducted by the PSC). Mr Simbil submitted that the only evidence about there being no oral hearing came from the PSC’s primary witness, in evidence-in-chief, who was not cross-examined on his evidence that there was only a directional hearing. The argument is that the trial judge was not entitled to make a finding a fact that there was no oral hearing when the only evidence in support of that finding came from the PSC.  

17.     We are unimpressed by this argument. The fact that an oral witness was not cross-examined by the opposing party’s counsel on evidence that the witness gave in evidence-in-chief does not diminish the value of that evidence. Evidence is evidence. Though he was not cross-examined on the point, the PSC’s principal witness gave clear evidence-in-chief that the PSC did not feel obliged to conduct oral hearings and did not in fact conduct any oral hearing regarding the respondent’s complaint. 

18.    The trial judge did not err by basing a finding of fact that there was no oral hearing on that witness’s evidence. We dismiss this ground of appeal. 

CONCLUSION 

19.      As all grounds of appeal have been dismissed, 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.

20.     We will exercise the power in Section 16(b) and affirm the judgment of the National Court. Costs will follow the event. 

REMARKS 

21.     It seems that the real grievance that the PSC has with the judgment under appeal is that the trial judge denied the PSC a fair hearing, by deciding the case on a ground of review that was not pleaded and in the absence of evidence from the respondent. We have not been persuaded that the trial judge erred in any way.

22.     The problem with framing the appeal in those terms is that what appears to be the much more important issue raised by the National Court proceedings – the issue of whether the PSC is obliged to conduct an oral hearing when conducting a review of a personnel matter – has been left untouched. There appears to be conflicting National Court authority on that issue. On the one hand the decisions in the present case and in the Pinggah case referred to earlier suggest that an oral hearing is necessary. On the other hand cases such as Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473 suggest an oral hearing is not necessary. The issue perhaps requires resolution in an appropriate case before the Supreme Court. 

23.      The present case, though heard and determined by the National Court in 2016, concerned events that happened in 2012, when the applicable law was the Public Services (Management) Act 1995. That Act has since been repealed and replaced by the Public Services (Management) Act 2014. However, Section 18 of the 2014 Act appears to be in the same terms as Section 18 of the 1995 Act, so the issue of whether an oral hearing is necessary still seems to be alive. We did not hear sufficient argument on that issue to form any considered opinion on it. 

ORDER 

(1)	The appeal is dismissed.

(2)	The order of the National Court of 30 September 2016 in OS (JR) No 547 of 2014 is affirmed and shall be given effect forthwith.

(3)	All orders of the Supreme Court staying those National Court proceedings or otherwise preventing the implementation of that order of the National Court, are dissolved.

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

Judgment accordingly.
__________________________________________________________________
Richard M Simbil: Lawyer for the Second & Third Appellants 
Kongri Lawyers: Lawyers for the Respondent