Forae v Kereme [2024] PGSC 49; SC2583 (29 May 2024)

SC2583

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 19 OF 2022

ASAWI FORAE
Appellant

V

DR PHILIP KEREME, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Respondent

DR PAKI MOLUMI, CHIEF EXECUTIVE OFFICER,
PORT MORESBY GENERAL HOSPITAL
Second Respondent

DR OSBORNE LIKO, SECRETARY, DEPARTMENT OF HEALTH
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Cannings J, Kariko J, Coates J
2024: 27^th & 29^th May

STATE SERVICES – National Public Service – long-term casual employees – entitlement to have employment status changed to permanent officers of National Public Service – Public Service General Order 7.

JUDICIAL REVIEW – alleged failure of public hospital to implement Public Service General Order 7 – whether Public Service General Order 7 made under Public Services (Management) Act 2014 – whether invalidity of Public Services (Management) Act 2014 affects an application for judicial review of alleged failure to implement Public Service General Order 7.

The appellant was a long-term casual employee of a public hospital who claimed that his employment status ought to be changed to that of an officer of the National Public Service so that he could enjoy leave and other entitlements that were not available to him as a casual employee. He sought advice from the Department of Personnel Management who advised his employer, the public hospital, that his status should be changed to that of an officer of the National Public Service. The CEO of the hospital (second respondent) allegedly failed to act on that advice and no change was made to the appellant’s employment status. The appellant then sought review by the Public Services Commission of the CEO’s failure to change his employment status. The PSC decided it had no jurisdiction. The appellant then commenced judicial review proceedings in the National Court, which granted leave for review. However, when the National Court heard the application for judicial review it summarily dismissed it on the ground that the law on which the application was based was the Public Services (Management) Act 2014, which was declared by the Supreme Court in a separate case, Kereme v O’Neill (2019) SC1781, to be unconstitutional, and therefore his application for judicial review had no proper basis in law. The appellant appealed to the Supreme Court on grounds that: (1) the issue of the alleged unconstitutionality of the Public Services (Management) Act 2014 was resolved when the appellant was granted leave for judicial review and was res judicata; (2) the issue of the alleged unconstitutionality of the Public Services (Management) Act 2014 was not formally raised by the respondents in the National Court and the appellant was not put on notice that the issue would be raised; (3) the Supreme Court did not declare in Kereme v O’Neill (2019) SC1781, that the whole of the Public Services (Management) Act 2014 was unconstitutional; (4) the appellant’s application for judicial review was not based on the Public Services (Management) Act 2014 but on Public Service General Order 7; and (5) the primary judge did not point out the correct version of the Public Services (Management) Act that should have been invoked.

Held:

(1) Ground of appeal (1) was withdrawn at the hearing of the appeal.

(2) Ample notice was given to the appellant of the arguments that succeeded at the hearing of the judicial review application. Ground (2) dismissed.

(3) The effect of the Supreme Court decision in Kereme v O’Neill (2019) SC1781 was that the Public Services (Management) Act 2014 was unconstitutional. Ground (3) dismissed.

(4) It is correct that the appellant’s judicial review application was not based directly on the Public Services (Management) Act 2014, but on Public Service General Order 7, which had a separate and continuing operation. Ground (4) upheld.

(5) The primary judge was under no obligation to give an opinion on what would be the relevant or correct version of the law that should have been relied on by the appellant. Ground (5) dismissed.

(6) As one ground of appeal succeeded and it was a significant ground, the appeal was allowed and the decision of the National Court was quashed. The Supreme Court exercised its powers under ss 6(2) and 16(c) of the Supreme Court Act to give such judgment as ought to have been given in the National Court: inter alia a declaration that the appellant was entitled to be paid as from the date of commencement of Public Service General Order 7 as if he were an officer of the National Public Service and damages. The case was remitted to the National Court for assessment of those amounts.

Cases Cited

Kereme v Kalinoe (2020) SC1933
Kereme v O’Neill (2019) SC1781
Sione v National Executive Council (2023) SC2408

Counsel

J Napu, for the Appellant
R Mobiha, for the Second, Third and Fourth Respondents

29^th May 2024

1. BY THE COURT: This is an appeal against the refusal of the National Court to grant an application for judicial review.

2. The appellant, Asawi Forae, was a long-term casual employee of Port Moresby General Hospital who claimed over a long period that his employment status ought to be changed to that of an officer of the National Public Service so that he could enjoy leave and other entitlements that were not available to him as a casual employee. He sought advice from the Department of Personnel Management who advised his employer, the hospital, through a letter to its Chief Executive Officer, that his status should be changed to that of an officer of the National Public Service. The CEO of the hospital (the second respondent) allegedly failed to act on that advice and no change was made to the appellant’s employment status.

3. The appellant then sought review by the Public Services Commission of the CEO’s failure to change his employment status. The PSC decided it had no jurisdiction.

4. The appellant then commenced judicial review proceedings in the National Court, which granted leave for review. However, when the National Court heard the application for judicial review it summarily dismissed the application on the ground that the law on which the application was based was the Public Services (Management) Act 2014, which was declared by the Supreme Court in a separate case, Kereme v O’Neill (2019) SC1781, to be unconstitutional, and therefore his application for judicial review had no proper basis in law.

APPEAL

5. The appellant appeals to the Supreme Court against the decision of the National Court to summarily dismiss his judicial review application. He argues five grounds of appeal, that the primary judge erred in law in that:

(1) the issue of the alleged unconstitutionality of the Public Services (Management) Act 2014 had been aired and resolved when the appellant was granted leave for judicial review and was res judicata;

(2) the issue of the alleged unconstitutionality of the Public Services (Management) Act 2014 was not formally raised by the respondents in the National Court and the appellant was not put on notice that the issue would be raised, so there was a denial of natural justice;

(3) the Supreme Court did not declare in Kereme v O’Neill (2019) SC1781, that the whole of the Public Services (Management) Act 2014 was unconstitutional;

(4) the appellant’s application for judicial review was not based on the Public Services (Management) Act 2014 but on a Public Service General Order, the existence and application of which did not turn on the validity of the Public Services (Management) Act 2014; and

(5) having found that the Public Services (Management) Act 2014 could not be relied on, the primary judge did not point out the correct version of that law that should have been invoked.

(1) ISSUE OF ALLEGED UNCONSTITUTIONALITY OF 2014 ACT WAS RES JUDICATA

6. This ground of appeal was withdrawn at the hearing of the appeal.

(2) DENIAL OF NATURAL JUSTICE

7. It is apparent that ample notice was given to the appellant of the arguments that succeeded at the hearing of the judicial review application. There was no denial of natural justice. Ground (2) is dismissed.

(3) THE 2014 ACT NOT DECLARED UNCONSTITUTIONAL

8. The effect of the Supreme Court decision in Kereme v O’Neill (2019) SC1781 clearly was that the Public Services (Management) Act 2014 was unconstitutional. It has been clarified in two subsequent Supreme Court decisions, Kereme v Kalinoe (2020) SC1933 and Sione v National Executive Council (2023) SC2408, that that was indeed the effect of that decision. Ground (3) is dismissed.

(4) APPLICATION FOR JUDICIAL REVIEW NOT BASED ON 2014 ACT

9. We uphold the submission of Mr Napu, for the appellant, that the appellant’s judicial review application was not based directly on the Public Services (Management) Act 2014, but on Public Service General Order 7, which had a separate and continuing operation, not dependent on the validity of the Public Services (Management) Act 2014.

10. It is apparent that Public Service General Order 7 was made to take effect from 1 January 2012. It was not made under the Public Services (Management) Act 2014 and is unaffected by the invalidity of the 2014 Act.

11. Besides that, the Supreme Court in Kereme v O’Neill (2019) SC1781, when declaring that the 2014 Act, amongst other legislation, was invalid, expressly ruled that its declaration of invalidity would have prospective operation, so that actions and decisions taken under the 2014 Act would remain valid. The practical effect was that the Public Services (Management) Act 1995, which was repealed and replaced by the 2014 Act, was again the prevailing law. This confirms that Public Service General Order 7 was made under the 1995 Act and is unaffected by the declaration of invalidity of the Public Services (Management) Act 2014 in Kereme v O’Neill (2019) SC1781.

12. We emphasise that in summarily dismissing the judicial review proceedings, the primary judge reasoned that the judicial review application was based on the 2014 Act and that because the 2014 Act had been declared invalid by the Supreme Court in Kereme v O’Neill (2019) SC1781, the judicial review application had no legal basis. We find that her Honour erred in law in drawing that conclusion as the judicial review was based on the alleged breach, not of the 2014 Act but of Public Service General Order 7. We uphold ground of appeal (4).

(5) CORRECT VERSION OF THE ACT NOT SPECIFIED

13. We consider that the primary judge was under no obligation to give an opinion on what would be the relevant or correct version of the law that should have been relied on by the appellant. We see no merit in the argument advanced in ground of appeal (5) and it is dismissed.

CONCLUSION

14. As one of the grounds of appeal has been upheld, the issue arises as to what orders we should now make. In a civil appeal the Court’s discretion is exercised under s 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.

15. Further, under s 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.

16. We will exercise the power in ss 6(2) and 16(b), (c) and (d).

17. We have found by upholding ground (4) of the appeal that the National Court erred in law in summarily dismissing the judicial review proceedings. It was a significant error, so we will under s 16(b) uphold the appeal and reverse, ie quash, the decision of the National Court.

18. We have all the evidence before us to determine the question of whether judicial review of the decision of the second respondent not to regard the appellant as a permanent officer of the National Public Service ought to be granted and to decide what remedy, if any, should have been granted to the appellant.

19. We will under ss 6(2) and 16(c) order that judicial review be granted and that a declaration be made that the appellant is entitled to be paid all salaries and emoluments as if he were a permanent officer of the National Public Service at PBSS classification grade 4 in respect of the period commencing on 1 January 2012 (as the best evidence is that that is the date of commencement of operation of Public Service General Order No 7) and ending on the date of his retirement and is therefore entitled to be paid any amount that he has not already been paid compared to the amount to which he is entitled. We will also declare that the appellant is, irrespective of the amount, if any, by which he has been underpaid, entitled to damages (that being a remedy specifically pleaded in the notice of motion filed after granting of leave in the National Court).

20. We will under s 16(d) remit the case to the National Court for further conduct of the proceedings, in particular to hear and determine the question of what amount, if any, remains payable to the appellant and for an assessment of damages. Costs will follow the event.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court of 1 July 2022 in OS (JR) 90 of 2021 is quashed.

(3) The proceedings OS (JR) 90 of 2021 are reinstated and for the purposes of those proceedings:

(a) pursuant to ss 6(2) and 16(c) of the Supreme Court Act, judicial review is granted and it is declared that:

(i) the appellant is entitled to be paid all salaries and emoluments as if he were a permanent officer of the National Public Service at PBSS classification grade 4 in respect of the period commencing on 1 January 2012 and ending on the date of his retirement; and
(ii) therefore the appellant is entitled to be paid any amount that he has not already been paid compared to the amount to which he is entitled; and
(iii) the appellant is entitled to damages; and

(b) pursuant to s 16(d) of the Supreme Court Act the case is remitted to the National Court for further conduct of those proceedings, in particular to hear and determine the question of what amount, if any, remains payable to the appellant and for an assessment of damages.

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

__________________________________________________________________
Napu & Company Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyers for the Second, Third and Fourth Respondents