Nii v Manning [2020] PGSC 78; SC1986 (27 August 2020)

SC1986

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 06 OF 2020

BETWEEN
PAUL NII
Appellant

AND
DAVID MANNING, MBE, DPS, QPM, Commissioner of Police
First Respondent

AND
JOANNE CLARKSON, QPM, DPS, Acting Deputy Commissioner of Police
Second Respondent

AND
THE ROYAL PAPUA NEW GUINEA CONSTABULARY
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUANEW GUINEA
Fourth Respondent

AND

FRANCIS AIGILO
Fifth Respondent

Waigani: Cannings, Makail, & Miviri JJ
2020: 24^th & 27^th August

SUPREME COURT – Appeal from refusal of grant of leave to apply for judicial review – Termination of member of police for disciplinary reasons – Requirements for grant of leave – Exhaustion of alternative remedies – Failure to exhaust alternative remedies – Appeal to Secretary of Department of Personnel Management – Alternative remedy provided in contract of employment – National Court Rules – Order 16, rule 3

Facts

This is an appeal from a refusal of grant of leave to apply for judicial review of a decision by the first respondent to terminate the appellant under Order 16, rule 3 of the National Court Rules. The appellant was previously a Senior Legal Officer and employed under a contract of employment (contract) and held a rank of Superintendent in the Papua New Guinea Royal Constabulary (Police Force). The primary judge held that the appellant failed to exhaust other alternative remedies under clause 10 of the contract when he did not appeal to the Secretary of the Department of Personnel Management (DPM). The appellant contended that he was promoted to the position of Director Legal Services and rank of Chief Superintendent and clause 10 of the contract did not apply and he was not bound to appeal his termination to the Secretary of DPM.

Held:

1. By conduct, parties accepted that the contract of employment for the position of Senior Legal Officer applied to the appellant in his new position as Director, Legal Services and rank of Chief Superintendent.
   
2. The primary judge did not err when he relied on the contract of employment and held that the appellant failed to exhaust other alternative remedies under clause 10 when he did not appeal the decision of the first respondent to terminate him to the Secretary of DPM.
   
3. The appellant failed to establish an identifiable error in the decision of the primary judge. Leave was correctly refused and the appeal is dismissed with each party to bear their own costs.
   

Cases Cited:

Aaron Dupnai & Anor v. Brian Weke & Ors (2016) SC1525
Joel Luma v. John Kali & Ors (2014) SC1401

Counsel:

Mr. N. Tame, for the Appellant
Mr. K. Kipongi, for the Respondents

JUDGMENT

27^th August, 2020

1. BY THE COURT: This is an appeal from a refusal of grant of leave to apply for judicial review under Order 16, rule 3 of the National Court Rules.

Brief Facts

2. The appellant was previously a Senior Legal Officer in the Legal Services Directorate of the Royal Papua New Guinea Constabulary (Police Force) and employed under a contract of employment dated 26^th January 2018. He held a rank of Superintendent.

3. Under clause 10 of the contract, if he is aggrieved by a disciplinary action or decision of the first respondent, he may appeal it to the Secretary of the Department of Personnel Management.

4. On 29^th May 2018, he was appointed by the first respondent to the position of Director, Legal Services. On 17^th June 2018, he was promoted to the rank of Chief Superintendent. Although he was informed that he would be given a new contract of employment, it did not eventuate.

5. Almost a year and a half later, on 27^th December 2019 he was suspended by the first respondent on disciplinary grounds. It was alleged that he used two motor vehicles, one a police issued and the other from a local hire car company for his official use and paid for by the Police Force.

6. On 20^th January 2020 he filed an application for judicial review. He sought leave to review the decision of the first respondent to suspend him. Subsequently, on 27^th January 2020 he was terminated by the first respondent. On 31^st January 2020 he filed an amended application for judicial review to review the decision of the first respondent to terminate him.

National Court Decision

7. There is no issue in relation to the appellant being able to demonstrate that he had standing to bring the application for judicial review as he is the person aggrieved by the decision of the first respondent, that the application was made promptly and that there was an arguable case because he was not charged with a disciplinary offence and accorded a right to be heard in response prior to the decision to terminate him by the first respondent.

8. However, the issue was in relation to whether there was an alternative remedy available to the appellant and if he had utilised it. The primary judge relied on the contract of employment and came to the conclusion that the appellant had a right of appeal to the Secretary of the Department of Personnel Management (DPM) under clause 10 of the contract of employment which he failed to avail of.

9. It is for this reason that the primary judge held that the appellant did not meet the requirement of exhaustion of alternative remedies and refused leave.

Exhaustion of Alternative Remedies

10. One of the requirements for grant of leave is exhaustion of alternative remedies. Where there is an alternative remedy that has not been utilised by an applicant, leave will be refused: Many past cases have applied this principle and we refer to one of them in Aaron Dupnai & Anor v. Brian Weke & Ors (2016) SC1525.

11. The onus is on the appellant to establish that either there is no alternative remedy or if there is, that he has exhausted it prior to filing proceedings.

12. In demonstrating that there is an identifiable error, Mr Tame of counsel for the appellant submitted that clause 10 of the contract of employment did not apply to the parties for these reasons: first its application is limited to the position of Senior Legal Officer. He said that this was the position the appellant was engaged under the contract prior to his promotion to Director Legal Services.

13. Conversely, when the appellant was appointed as Director of Legal Services and promoted to the rank of Chief Superintendent, the contract ceased. Added to that, no contract of employment was offered to the appellant for the position of Director Legal Services.

14. Based on these reasons, counsel contended that it was wrong for the trial judge to rely on the contract of employment and find that the appellant failed to exhaust alternative remedies under clause 10 before applying for judicial review.

15. We accept Mr Tame’s submission that the appellant was promoted to Director Legal Services, and no longer held the position of Senior Legal Officer when he was terminated by the first respondent. We also accept that the appellant did not sign a contract of employment for the position of Director Legal Services.

16. However, we do not accept his submission that the contract had ceased to apply to the parties after the appellant was promoted to Director Legal Services. To accept this submission would place both parties in an untenable position and infer that they were operating in a vacuum so to speak. Such an arrangement would be contrary to good order and administration in the Police Force.

17. What we do know and this is from the evidence in the appeal book, the appellant received remuneration from the Police Force after his promotion at the higher rate. He received an increase in his salary, housing, motor vehicle and paid leave. According to clause 3.1.1 of the contract, for the salary component, he received an annual salary of K63,217.00 for the position of Senior Legal Officer.

18. When he was promoted to Director Legal Services, his three pay slips for 15^th January, 29^th January and 12^th February 2020 showed that his annual salary was K73,223.00. This was an increase of K10,006.00.

19. The other reason is this: it is not expressed anywhere in the contract that the contract will be terminated when the appellant is promoted to a higher position and rank in the Police Force. Finally, the term of the contract is three years and will expire on or about 29^th May 2021 and none of the parties took issue with it until at the hearing of the application for leave.

20. These matters go to show that the contract was not terminated or cease to exist, as suggested by counsel, but by their conduct, parties had accepted that it applied until it was replaced by a new one. What actually happened is that, parties had varied the terms of the contract in relation to the position, rank and remuneration of the appellant when he was promoted to Director Legal Services and Chief Superintendent and received an increase in salary and other benefits commensurate to the new position and rank.

21. Otherwise, the rest of the rights and obligations under the contract including the right of appeal under clause 10 remained unchanged. A contract of employment plays a vital role in bridging the gap between the functions of the Director Legal Services and regular member of the Police. It also complements and reinforces the Police Act. As the Supreme Court observed in Joel Luma v. John Kali & Ors (2014) SC1401 in the context of Public Service contract officers:

“41. ...............In our view the contract of employment must not be separated from the appointment and revocation process under the Constitution and Act of Parliament. It must be considered together with them.

42. For if it were to be considered in that manner, it will be noted and appreciated that it is a document which sets out in a more detailed, precise and coherent way, the terms and conditions of employment. An example is where the Constitution and Act of Parliament make no provision for remuneration of the Departmental Head. This is where, unless it is inconsistent with the Constitution and Act of Parliament, the contract of employment would apply”.

22. As to how the contract of employment applies, there is a distinction between the position of Director Legal Services and a regular member of the Police and furthermore, rank of a regular member of the Police Force. The former is a position within the administrative structure of the Police Force and the latter is a member’s membership as a regular member of the Police Force. In addition, the regular member is given a rank in the Police Force.

23. Clause 1.3 of the contract reinforces this. When the appellant signed the contract in his capacity as Senior Legal Officer, clause 1.3 shows that it was in his capacity as Senior Legal Officer and rank of Superintendent with no.0000370159.

24. The distinction is fortified by separate instruments of appointments, one for the appellant’s promotion to the position of Director Legal Services and another for a regular member of the Police under Sections 39 and 43(1)(a), (2) and (3) of the Police Act. For the latter, it was made on 9^th May 2018 in the form of an instrument of appointment under the hand of the first respondent’s predecessor and in the case of the former, on 29^th May 2018 in the form of a minute under the hand of the first respondent’s predecessor. For the promotion from Superintendent to Chief Superintendent, the appointment was made on 17^th June 2018 pursuant to Sections 43 and 48 of the Police Act.

25. The termination of the appellant as Director Legal Services is confirmed by way of a letter by the first respondent dated 27^th January 2020 and the revocation of the appellant’s appointment as a regular member of the Police Force is confirmed by an instrument of revocation dated 30^th January 2020 under the hand of the first respondent.

26. In this case clause 1.5.4 of the contract provides that the contract may be terminated for serious misconduct determined through the application of the misconduct procedures of the contract.

27. As to the procedure, clause 8 of the contract provides inter alia, the duty of the first respondent to advise the appellant in writing and/or with evidence of the alleged offence and for the appellant to respondent in writing within seven days of receipt of the written advice. Within fourteen days after receipt of the written response, the first respondent is obliged to make a decision.

28. If the appellant is aggrieved by the decision, clause 10 provides a right of appeal to the Secretary of DPM. Clause 10 relevantly states:

“10.1 The Employee may appeal in writing against a disciplinary action by the Commissioner of Police to the Secretary of the Department of Personnel Management on the following basis:

10.1.1 the appeal must outline why the Employee is aggrieved and the outcome sought; and

10.1.2 the appeal must be lodged within 14 days after the disciplinary action has been determined.

10.2 The Secretary of the Department of Personnel Management may determine the matter or refer the matter to the Public Service Commission for review. Where the matter is referred, the Public Service Commission shall provide the Secretary of the Department of Personnel Management with a report of its findings within 14 days.

10.3 The decision of the Secretary of the Department of Personnel Management on the matter shall be final and non-appealable.

10.4 Where the Secretary of the Department of Personnel Management has been involved in an investigation process outlined in subsection 8.1.4, the appeal shall be referred to the Commissioner of the Public Service Commission for determination”.

29. Without the need to going into detail, it suffices to note that the decision of the Secretary of DPM is final and non-appealable. The appeal is an administrative avenue available to the appellant as a Director Legal Services and regular member of the Police to bring his grievance for resolution without the need to come to Court where it is time consuming and costly.

30. Finally, it has neither been a ground of appeal nor the appellant’s contention before us that as a regular member of the Police Force, the Police Act applied and as there being no other alternative remedies in the Act, he is entitled to come to Court.

31. For the foregoing reasons, we conclude that the primary judge correctly relied on the contract and held that the appellant failed to exhaust the alternative remedy under clause 10 of the contract when he did not appeal the decision of the first respondent to terminate him to the Secretary of the Department of Personnel Management.

Conclusion

32. We are not satisfied that the appellant has established an identifiable error in order for us to interfere with the decision of the primary judge. Leave was correctly refused and we order that the appeal be dismissed. The parties will bear their own costs.
________________________________________________________________
Nicholas Tame Lawyers : Lawyers for Appellant
Solicitor General : Lawyers for Respondents