SC2741
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 10 OF 2024

BETWEEN:
WESTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
First Appellant

AND:
DAVID VORST as Chief Executive Officer Mt. Hagen General Hospital
Second Appellant

AND:
DR. PHILIP KEREME as Chairman of the Public Services Commission
First Respondent

AND:
PUBLIC SERVICES COMMISSION
Second Respondent

AND:
ANTON TAGLPA
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

WAIGANI: YAGI J, CAREY J, COATES J
2 MAY, 13 JUNE 2025

SUPREME COURT – Section 18(3)(a) and 5(a)(i) of the Public Service (Management) Act 2014 – Applicability of Wednesbury Principle – Points of Law raised in Supreme Court without having been argued in National Court -National Court Judge Powers

Facts: 

The Appellants appealed the decision of the National Court in which the Appellants’ application for judicial review was dismissed. The First, Second and Third Respondents objected to some aspects of the appeal which they proffer were new points not raised in the National Court. 

Held:

1.	 The appeal is dismissed in its entirety.

2.	The requirement in relation to Section 18(3) (a) and 5(a)(i) of the Public Service (Management) Act 2014 was met given that the summons was served on the Secretary of the Department of Personnel Management.

3.	Personal service in the context of government officials is construed to mean as related to the procedure in place at the entity for which service is to be acknowledged by the government official’s office.

4.	The decision of the National Court is affirmed and is to be implemented forthwith without delay.

5.	The First Appellant shall pay the costs of the First, Second and Third Respondents, to be taxed if not agreed.

Cases cited
The following cases are cited in the judgment.
Fairweather v Singirok & Others [2013] SC1293
Issac Minicus v Telikom (PNG) Ltd [2017] SC1652
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
PNGBC v Jeff Tole [2002] SC694
Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Counsel
M Tamutai with E Ngona for the appellants
T Torato for the first and second respondents 
A Taglpa third respondent, in person

JUDGMENT

1.	BY THE COURT: This is the decision of the Court in respect of an appeal against the National Court judgment in the proceedings OS (JR) 90 of 2019.

BACKGROUND

2.	Mr Anton Taglpa (the Third Respondent) was dismissed from his employment with the Western Highlands Provincial Health Authority (the Health Authority) (the First Appellant) on 30 August 2017.

3.	The evidence reveals that the Health Authority had concerns about his work performance since 2011, with reviews and warnings being given over the years.

4.	On 17 May 2017, he was charged with committing an offence (under s.50) of the Public Service Management Act (PSC Act) with disobeying lawful orders, being negligent or careless or being inefficient or incompetent.

5.	He responded to the allegations.

6.	On 24 August 2017 he appeared before the Health Authority’s disciplinary committee, was heard, and was subsequently dismissed.

7.	On review of the decision by the Public Service Commission (the Second Respondent), the termination decision made by the Chief Executive Officer of the Health Authority (the Second Appellant) was annulled, and directions given that Mr Taglpa be reinstated, but to a lower grade position.

8.	Reasons were given by the Commission.

9.	The Commission’s decision was taken on judicial review to the National Court by the Health Authority and the Chief Executive Officer of Mr Hagan General Hospital, which resulted in their case being dismissed, the charges against Mr Taglpa annulled, in affirmation of the Commission’s decision. 

10.	The Health Authority and the Chief Executive are the Appellants here, seeking to overturn the National Court decision, thus the Defendants are the Chairman of the Public Service Commission, the Public Service Commission and Mr Taglpa, as well as the State.

11.	The appeal raises an important interpretation of how service of legal process is served under the PSC Act, which will be a guide to service generally on both public service as well as statutory entities or appointees.

ISSUES

(a)	Whether the Second Respondent exceeded its jurisdiction to review and make a decision on 11 October 2018 as to the First Appellant’s decision made on 30 August 2017 to dismiss the Third Respondent when the view of the Department of Personnel Management (DoPM) was not submitted and taken into account by the Second Respondent per Section 18(3)(a) and Section 18 (5)(a)(i) of the PSC Act?

(b)	Whether the decision of the Second Respondent dated 11 October 2018 was made contrary to Section 18(3)(a) and Section 18(5)(a)(i) of the PSC Act?

(c)	Whether the Second Respondent’s decision made on 11 October 2018 was so unreasonable that no reasonable decision maker would have made the decision?

GROUNDS OF APPEAL AND CONSIDERATION

12.	The first ground of appeal argued that there was non-compliance with Section18(3) (a) and s.18(5)(a)(i) of the PSC Act, resulting in the trial judge erring in mixed fact and law.

13.	These Sections, on their face, require the Secretary of the DoPM or his delegate to be summoned when such disciplinary hearings occur, and to have their views considered. 

14.	The Commission did issue the Summons, with dispute before us as to whether it was served.

15.	As far as we could understand, the Summons was delivered to the business address of the Secretary of the DoPM.

16.	There was then dispute as to it being received by the officer to whom it was directed.

17.	The interpretation by the Court on how Section 18(3)(a) and Section 18(5) of the PSC Act operates is through a procedure in which a summons would be served, as acknowledged on 25 June 2018 by the Executive Officer, with no need to otherwise serve personally on that officer, providing such went to the usual business address of the recipient of the Summons.

18.	It is not realistic, nor could it have been the expectation, that the Secretary of the DoPM be served personally, as it is not realistic that any holder of such high office would be able to be served personally. 

19.	For whatever reason, the Secretary, after being summoned, did not attend the disciplinary hearing, the appellants submitting that the Commission decision was then improper, because there was no view offered by the Secretary, as required by Section18 (5) (i).

20.	It is not realistic either, nor could it have been the expectation, that the Secretary of the DoPM would attend every meeting as proffered by the Appellants. 

21.	The expectation would have been that the Summons be properly served as it was and it would be for the Secretary to provide views, if any, to the Commission. 

22.	The Commission, once the Summons is issued and served, has discharged the mandatory duty imposed by the words ‘shall summons’ and any non-compliance is subject to complaint before the Commission by any party seeking the attendance of a person who does not comply with the Summons.

23.	The Appellants attempt to nullify the decision because the Secretary did not attend is misplaced.

24.	So is the submission that the Commission was denied the views of the Secretary, because if a person summoned does not attend, and with no evidence that the Appellants required the Commission to take steps to procure that person, then the onus does not lie on the Commission to take into account that person’s views, the onus is on the party seeking to have that person’s views ventilated.

25.	As well, since the Secretary appear to ignore the Summons, an inference may be open to the Commission that the head took a neutral stance.

26.	We therefore are not persuaded that there was an identifiable error by the trial judge in his consideration of Section 18(3)(a) and Section 18(5) of the PSC Act. 

27.	In this instance, as there were no views provided and as the Secretary of DoPM did not file an appeal or review of the decision with the appellants, it is irregular for the Appellants to seek to force the Secretary of the DoPM to provide views.

28.	We are also satisfied that the service of the Summons was based on a procedure created to facilitate service on the Office of Secretary and the summons was properly served. 

29.	The second ground of appeal which relates to whether the decision of the Second Respondent on 11 October 2018 was contrary to Section 18(3)(a) and Section 18(5)(a)(i) of the PSC Act does not align with the liberal and purposive interpretation applicable to statutory interpretation in Papua New Guinea. 

30.	The former Chief Justice, Sir Salamo Injia refers to this approach in his text Injia on Statutory Interpretation in Papua New Guinea and the Pacific, University of Papua New Guinea, 2013, a p22 – “All statutes must be given their fair, large and liberal interpretation so as to best ensure the attainment of the purpose or object of the law according to its intent, meaning and spirit, see s.109 (4) of the Constitution of the Independent State of Papua New Guinea… Inakambi Suingorom v John  Kalaut [1985] PNGLR 238, per Kidu CJ at 241, PLAR No 1of 1980; request by Principle Legal Advisor on a point of law arising in a case where a person tried upon indictment has been acquitted [1980] PNGLR 326, [1980] PGSC 15; Norah Mairi v Alkan Tololo and Others [1976] PNGLR 125 at 136 and SCR No 1 of 1978; Ombudsman Commission Investigations of Public Prosecutor [1978] PNGLR 345, per Pritchard J at 389”.

31.	The final ground of appeal for this Court’s consideration is whether the Second Respondent’s decision made on 11 October 2018 was so unreasonable that no reasonable decision maker would have made the decision.

32.	The Third Respondent argues that the trial judge did not commit errors in his decision.

33.	Further, the Third Respondent indicates that the grounds of appeal raised in paragraph 10 were not raised at the National Court and therefore should not be allowed given proper notice and permission was not sought from the Supreme Court as in PNGBC v Jeff Tole [2002] SC694 and Van Der Kreek v Van Der Kreek [1979] PNGLR 185.

34.	While there is strength in these submissions, we should deal with the ground stated in the appellant’s submissions, identified as ground 2.2, to give guidance to practitioners.

35.	The ground is based on the unreasonableness of the decision below, we assume it is meant to be the unreasonableness of the Commission’s decision, and in the alternative that the Commission decision was contrary to the Wednesbury principle, in that it failed seriously to consider the view of the Health Authority under various Sections of the Provincial Health Authorities Act 2007 and again, under Section 18 of the Public Service Management Act.

36.	The oral submissions put came from the written submissions, with reference to Cannings J’s decision in Paul Dopsie v Jerry Tetaga, Chairman of the Public Service Commission [2009] N3722, where it was said: “The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233. The test to apply is: is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision maker would have made the decision? (Paul Saboko v Commissioner of Police [2006] N2975). If the answer is yes, the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excessive jurisdiction and this ground for review will fail. The decision will be lawful…”.

37.	The Appellants then give as the explanation of unreasonableness being that long unwarranted absences and failures to attend meetings by Mr Taglpa indicate the serious breakdown in the relationship and so the Commission’s decision was contrary to the Wednesbury principle.

38.	In fact, what has occurred in this appeal is that the Appellants, although claiming unreasonableness, are simply challenging the factual decision making. The Wednesbury principle is a difficult concept to approach, but it is not an impossible concept, but it does require more than stating, as in this case, that the relationship between the appellants and the employee had broken down, as that gives no indication of unreasonableness.

39.	The Australian High Court, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), through Kiefel CJ, indicated what was required in the legal sense to claim this type of unreasonableness, stating: 

“…It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness. In the joint judgment in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 367, it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacked an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational - Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 364. None of these descriptions could be applied to the Tribunal's decision in the present case.

Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent - Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 376, and that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”

40.	We find that this aspect of the appeal fails, as there is just no address of what is required to explain “an evident and intelligible justification” of the facts considered, merely a view that it was unreasonable to order reinstatement after the breakdown in the relationship.

41.	Practitioners must plead more than simply the fact finding made by the judge to bring it within the scope of the Wednesbury principle.

42.	Finally, the trial judge found that the charges against Mr Taglpa should be determined to be null and void, this part of the appeal said to be outside the trial judge’s power.

43.	The First and Second Defendants submitted that finding the charges null and void was an alternative finding, and should be classified as merely obiter dicta, not affecting the primary decision to set aside the Health Authority’s findings.

44.	The Third Defendant, and unrepresented, Mr Taglpa, submitted in similar terms.

45.	We agree with those submissions, and even if we upheld the Appellants on this ground, such does not vitiate the trial judge’s decision, so in the circumstances, other than saying it was a statement of obiter dicta, we do not need to comment further upon it.

46.	We addressed the issue of Wednesbury unreasonableness as for the reasons stated, but we will also state that even if this Court accepts the fact that the grounds of appeal are raising new points by the Appellant which were not argued by the parties in the National Court, they fail to persuade this Court on their merit.

47.	The First and Second Respondents posited that it should also be noted that for a party to raise new points not raised in the National Court there should be leave sought and granted per Fairweather v Singirok & Others [2013] SC1293.

48.	We are persuaded by the First, Second and Third Respondents’ argument that the Appellants raised new points not argued in the National Court. 

49.	As such, the argument proffered by the Appellants fail and are without merit. 

50.	Finally, In Issac Minicus v Telikom (PNG) Ltd [2017] SC1652 it states:

“18. It is also trite law that an appeal may be allowed under two broad principles, first; where there is a clear or identifiable error by the trial judge, second; although there is no clear or identifiable error, the judgment is so unreasonable or plainly unjust on the facts that the appellate court may infer that a substantive error had occurred in the exercise of discretion by the trial judge.”

51.	In our review of the decision of the trial judge, there has been no identifiable errors found that would support allowing an appeal. 

CONCLUSION 

52.	For the reasons alluded to above, this Court concludes that the decision of the trial judge should not be disturbed.

53.	We also confirm that this appeal should be dismissed. 

ORDERS OF THE COURT

1.	The appeal is dismissed in its entirety.

2.	The decision of the National Court is affirmed and is to be implemented forthwith without delay.

3.	The First Appellant shall pay the costs of the First, Second and Third Respondents, to be taxed if not agreed.

Ordered accordingly.
________________________________________________________________
Lawyers for the appellants: Tamutai Lawyers
Lawyers for the first and second respondents: Public Services Commission Legal Advisory & Litigation Division