Himata v Warkia [2024] PGSC 113; SC2641 (28 August 2024)

SC2641

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 29 OF 2022

BETWEEN:
SHADRACH HIMATA, in his capacity as Acting Chief Secretary of Bougainville Executive Council, Autonomous Bougainville Government
First Appellant

AND:
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Second Appellant

AND:
NANCY WARKIA
Respondent

Waigani: Logan, Tusais and Eliakim JJ
2024: 28^th August

ADMINISTRATIVE LAW – where the respondent was employed under a senior officer contract pursuant to s 33 of the Bougainville Public Services (Management and Administration) Act 2014 – where the first appellant purported to terminate the respondent’s employment under s 44(8)(e) – whether the first appellant had any lawful power to so terminate the respondent’s employment – whether there were any discretionary factors sufficient to withhold relief – appeal dismissed

Facts:

The respondent was employed under a senior officer contract in the Bougainville Public Service as a Director of Strategic Planning and Policy Coordination. A restructure occurred and the first appellant purported to dismiss the respondent from the Bougainville Public Service. The first appellant sought to exercise the power under s 44(8)(e) of the Bougainville Public Services (Management and Administration) Act 2014 (Public Services Act). The respondent commenced judicial review proceedings in the National Court to challenge the exercise of that power, arguing that due to her employment being under a senior officer contract and the operation of s 33 of the Public Services Act, the dismissal was unlawful.

The primary judge upheld the respondent’s grounds of review and granted relief including reinstatement, backpay and damages to be assessed.

Held:

1. [ By the Court]: As a public servant employed under a senior officer contract, the respondent could not be dismissed by the first appellant under s 44(8)(e) of the Public Services Act.
   
2. There was no discretionary reason to withhold relief.
   

Legislation Cited
Bougainville Public Services (Management and Administration) Act 2014
Constitution

Counsel:
Ms. Noringi, for the First and Second Appellants
Mr. Aigilo, for the Respondent

Oral decision of the Court as delivered by Logan J on
28^th August 2024

1. BY THE COURT: Ms. Nancy Warkia was employed by the Autonomous Bougainville Government as a Director of Strategic Planning and Policy Coordination. That employment was pursuant to a contract which commenced on 30 June 2020. The contract was for a period of 3 years but was subject to renewal.
   
2. Section 33 of the Bougainville Public Services (Management and Administration) Act 2014 (Public Services Act) provides:
   

“33. SENIOR OFFICER CONTRACTS OF EMPLOYMENT.

(1) An officer appointed to a senior management office designated under Section 32 must be employed under, and holds office in accordance with, the terms and conditions of a senior officer contract.
(2) The provisions of Part 10 do not apply to a senior officer contract and the remaining provisions of this Act apply only in so far as they are not inconsistent with the terms and conditions of the senior officer contract.

...”

3. Suffice it to say, the position held by Ms. Warkia was a designated senior management office. Further, the contract mentioned was one of the kind contemplated by s 33(1).
   
4. For reasons which commended themselves to the deliberate value judgement of the Bougainville Government, a reorganisation occurred within the Bougainville Public Service. Details of that reorganisation were notified in two circular instructions circulated by the Acting Chief Secretary, Mr. Shadrack Himata: see circular 3/2021 and circular 4/2021.
   
5. It was controversial as between Ms. Warkia and Mr. Himata and the Bougainville Government as to whether or not that reorganisation carried with it an abolition of the position which she held under her contract. It is unnecessary, as it was in the National Court, finally to resolve that subject.
   
6. Suffice it to say, Mr. Himata formed the view that Ms. Warkia had engaged in conduct which warranted her dismissal from the Bougainville Public Service. As a result, by a letter dated 19 April 2021, he purported to dismiss Ms. Warkia from the public service pursuant to s 44(8)(e) of the Public Services Act.
   
7. Section 44(8)(e) of the Public Services Act provides, in effect, that after considering a report with respect to particular conduct and taking into account any recommendation made by a departmental head, the head of the public service may dismiss an officer from the public service. It is also necessary to record that section 44 is found within Part 10 of the Public Services Act.
   
8. Further, Ms. Warkia’s contract of employment itself made separate provision in respect of discipline.
   
9. The notice of dismissal having come to her attention, Ms. Warkia’s initial response was to seek a review of that decision by the Public Services Commission of Bougainville. Many months went by without any action having been taken in respect of that review application, either by the Public Services Commission of Bougainville or, on referral, the Papua New Guinea Public Services Commission.
   
10. So it was that Ms. Warkia formed the view that she should apply for judicial review. Leave to review was, at one stage, refused by a judge of the Court, but another judge later granted leave to review. There has never, as the learned primary judge recorded, been any challenge to that second ground of leave to review. Rather, having noted the absence of a challenge, the learned primary judge went on to determine on the merits the grounds of challenge to the dismissal decision advanced on behalf of Ms. Warkia. In short form, those grounds were that the present first appellant, Mr. Himata as Acting Chief Secretary, had no lawful authority under section 44 to dismiss Ms. Warkia from the Bougainville Public Service. His Honour upheld that ground.
    
11. It was put to his Honour that there was an alternative remedy, namely the review process under the Public Services Act. His Honour did not, in terms, consider that but formed a view that there was a clear error of law and granted consequential relief, namely an order for reinstatement and payment of back pay, together with damages to be assessed.
    
12. Mr. Himata and the Bougainville Government have appealed against those orders. One ground seeks to challenge the Court’s jurisdiction judicially to review the dismissal decision. It was put that this was a decision under contract and that decisions under contract are not amenable to judicial review.
    
13. Accepting, for present purposes, that that proposition is in general correct, it has no present application. That is because Mr. Himata purported to act, not under a dismissal power conferred by a contract, but rather under the dismissal power conferred by s 44(8)(e) of Public Services Act. That being so, it was a purported decision under statute and thus classically one within the judicial review jurisdiction exercisable by the National Court.
    
14. Moreover, the conclusion reached by the primary judge with respect to the inapplicability of s 44 was in our view clearly correct. That section had no application, by the force of s 33(2), to Ms. Warkia. The primary judge was, therefore, correct in concluding that Ms. Warkia had been unlawfully dismissed.
    
15. It was then a question as to what remedies, if any, to grant as a consequence of that conclusion. The appellants submitted that the right of review by the Public Services Commission was an adequate alternative remedy. Indeed, they went so far as to submit that the existence of such a remedy meant that the Court had no jurisdiction in respect of a judicial review application.
    
16. The latter submission is not right. The National Court had a jurisdiction to review, conferred by s 155(4) of the Constitution. The remedies that the Court might grant in the exercise of that jurisdiction were discretionary.
    
17. It is undoubtedly true that the existence of an adequate alternative remedy can be highly persuasive indeed in terms of a refusal, as a matter of discretion, to grant a judicial review remedy. A review on the merits by a Public Services Commission of a dismissal decision is certainly capable of being regarded as an adequate alternative remedy.
    
18. There were, however, two flaws and so two bases upon which it might not be so regarded in this case. Firstly, and obviously following from what has already been said, there was what one might term ‘masterly inaction’ on the part of any Public Services Commission, be that of Bougainville or National, in respect of the review application. Further, the question as to whether or not Ms. Warkia had been lawfully dismissed was, in the circumstances of the present case, wholly one of law – either s 44 of the Public Services Act had application or it did not. That was classically always a question for the exercise of judicial power.
    
19. We note, if only in passing, that clause 22.3 of the contract of employment provided for alternatives of review by the Public Services Commission or going to court. As it happened, Ms. Warkia appropriately chose in the first instance an informal means of seeking redress. In the face of no action having occurred in any meaningful way in response to that, all Ms. Warkia did was to do what she was always entitled to do which was to invoke national judicial power to resolve a controversy which was wholly one of law.
    
20. There was never any basis therefore for withholding a remedy from her on discretionary grounds.
    
21. What follows from the foregoing is that the appeal is without any merit. Ms. Warkia was dismissed without lawful authority. The remedies which were consequentially granted were wholly appropriate. There was no basis at all for withholding those remedies as a matter of discretion. The appeal for these reasons is dismissed.
    

Orders

1. The appeal be dismissed.
2. The appellants pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

__________________________________________________________________
Jema Lawyers: Lawyers for the Appellants
Jaminan & Partners Lawyers: Lawyers for the Respondent