N3070

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 255 OF 2005

Between:

DANNIE TAKA
-Plaintiff-

And:

DR SAMSON AMEAN in his capacity as the Provincial
Administrator of Enga Provincial Government
-First Defendant

And:

ENGA PROVINCIAL GOVERNMENT
-Second Defendant –

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Defendant

Waigani : Injia, DCJ
2006 : June 23

JUDICIAL REVIEW – Administrative action – Decision of Departmental head refusing to comply with decision of Public Services Commission - Decision of Public Service Commission became binding after 30 days – Appropriateness of Relief – Mandamus – Discretionary – Refused notwithstanding binding nature of the decision of Public Services Commission, where mandamus would cause administrative hardships or other alternative remedies were more convenient beneficial and effective – Public Services Management Act 1995, s.18 (as amended).

Cases cited in the judgment:
Allan Pingha v PSC & Ors (2005) N2850
Ombudsman commission v Peter Yama (2004) SC747.
Port Moresby City Council v The Sheriff of PNG Ex parte Port Moresby City Council [1981] PNGLR 479

Overseas Cases:
R v Commissioner Public Service Commission; Ex parte Killeen (1914) CLR 56

Counsel: 
W. Thomas, for Plaintiff 
O. Steven, for the First & Second Defendants
P. Kembu, for the Third Defendant

23 June, 2006

1. INJIA, DCJ: In this substantive application for judicial review made under O.16 r.5 of the National Court Rules, the plaintiff seeks the following orders: 

1.	A declaration that the suspension of the Plaintiff without pay effected on the 27th March 2002 is in breach of the Public Service (Management) Act 1995 and is such ultra vires and unlawful.
2.	A declaration that the decision of the Public Service Commission dated the 30th January 2004 is legally binding upon the Defendants and such they be directed to effect those (PSC) directions.
3.	An order in the nature of mandamus upon the First, Second and Third Defendants to immediately effect the reinstatement of the Plaintiff to his former substantive position as the Enga Provincial Advisor, Works and Transport.
4.	Assessment of Damages for losses suffered.
5.	Cost of these proceedings.

2. The grounds relied upon as set out in the statement filed on 4 May 2005 are as follows:

1.	The Plaintiff was effectively suspended without pay on the 27th March 2002, the day administrative charges were laid against him even before he responded to the charges, thereby breaching the Public Service (Management) Act 1995 and Regulations.
2.	The Plaintiff was suspended without pay without complying with the requirements of the Public Service (Management) Act 1995 and especially s.52 of the Act.
3.	The Defendants through the First Defendant have breached the Public Service (Management) Act 1995 when he did not make a finding on the charge within twenty one (21) days (he took twenty (20) months in breach of General Order 15:35).
4.	The Defendants through the First Defendant have breached s.18 of the Public Service (Management) (Amendment) Act 2002 which is in mandatory terms by not effecting the directions of the Public Service Commission after the thirty (30) days had lapsed on the 15th March 2004.
5.	Certain constitutional provisions were breached including the observance of National Justice s.59 in the circumstance of this case in the handling of this case by the Defendants."

3. The plaintiff relies on his affidavit sworn on 4 May 2005.

4. The defendants contest the application. They rely on the affidavit of Mr Peter Kembu, counsel for the Third Defendant, to which is annexed a copy of the First Defendant sworn on 20 May 2005.

5. All parties filed written submissions and made oral submissions.

6. The undisputed facts as I find on the uncontested affidavit evidence before me is that on 4 June 1999, the applicant was employed under a written contract of employment, as a senior officer, (category "D" in contract in the public service), for a term of 3 years, as "Advisor (Works & Transport)" (Clause 3 of Contract). The Contract expired on or about 4 June 2002.

7. On 27 March 2002, the applicant was formally charged with disciplinary offence under s.50(a)(b) and (c) of the PSM Act, with publicly commenting negatively about the Enga Provincial Administration thereby discrediting the administration of which he had inside knowledge and part of. He was suspended without pay. On 15 April 2002, he replied to the charge denying the charge, effective from 27 March 2002. Between 28 November 2002 to 15 March 2004, he enquired of the outcome of the charge with the First and Second Defendants, by writing to them, but no response was received. On 27 October 2003, the applicant lodged an application for review with the PSC under s.18 of the PSM Act. On 30 January 2004, the PSC wrote to the First Defendant advising him of its decision in the following terms:

1.	RECOMMENDATION:
1.1	That you withdraw the disciplinary charged served on Mr Dannie Taka dated 27th March 2002, and lift the suspension.
1.2	That you reinstate Mr Dannie Taka to his substantive position without any loss of service and salary entitlements accruing in the period of suspension.
1.3	That a copy of this Advice be placed in Mr Dannie Taka’s Staff and/personal file.

Please take notice that pursuant to Section 18 of the Public Services (Management) Act 1995 (as amended by Public Services (Management) (Amendment) Act 2002, the decision of the Commission becomes legally binding after a period of 30 days from the date of the decisions."

8. On 15 March 2004, the applicant wrote to the First Defendant seeking his response to the PSC decision.

9. On 18 March 2004, by a handwritten note made on the applicant’s letter of 15 March 2004, the First Defendant said:

"1.	My response is forth coming. You will abide by it.

2.	If not satisfied you have the privilege to seek relief from any authority you may so desire."

10. Thereafter the First Defendant has not implemented the decision of the PSC.

11. In his affidavit, the First Defendant gives his explanation why he has not implemented the PSC decision as follows:

"1.	The Plaintiff was charged on the 27th March 2002 of a Disciplinary offence under the Public Service (Management) Act 1995. He was suspended without pay effective from the date of those charges. 
2.	It took the Plaintiff more than one year to appeal or apply for review by the Public Service Commission of the Provincial Disciplinary Committees decision.
2.	Whilst the Plaintiff was seeking review of the decision of the Provincial Disciplinary Committee by the Public Service Commission there was a restructure exercise carried out with the approval of the Department of Personnel Management in November 2003.
3.	In the course of this restructure exercise the Advisor Works positions was reclassified from Grade 13 to Grade 16.
4.	When there is a restructure exercise carried out all position are deemed to be vacant as stipulated under Public Service General Order 2.37.
5.	The Advisor Provincial Works and Transport Position was advised together with all other top Management position where the Plaintiff and any other interested person was entitle to apply to be considered for the position.
6.	In fact the Plaintiff and six other applicants applied for the said position where the incumbent now Charles Bannah won the position. Annexed hereto and marked with the letter "A" is a true copy of the list of the seven Applicants.
7.	The position was vacant when Charles Bannah won it through the normal selection process where the applicant can’t demand to be reinstated as of right. Annexed hereto and marked with the letter "B" is a copy of the successful applicants contract of employment.
8.	The Public Service Commission in its letter dated the 30th January 2004 made recommendation to the Enga Provincial Administration to lift the Plaintiff’s suspension and reinstate him to his substantive position.
9.	Annexed hereto and marked with the letter "C" is a copy of the PSC letter of the 30th January 2004.
10.	The Enga Provincial Administration wrote and asked the Chairman Inter Departmental Working Committee (IDC) to place him against a vacant position EPTW 015 Road Foreman Grade 8 but all other entitlements including salary to be paid at Grade 15. Annexed hereto and marked with letter "D" is a copy of the letter from the Provincial Administrator to the Chairman (IDC).
11.	The Administration was unable to get his name on the payroll quick because his employment number was deleted by the Payroll Computer. The process of issuing new employment number was a difficult process and has taken a very long time.
12.	In the new concept payroll system and Officer must be attached to vacant position so that employment number can be issued to pay the officer against that Position.
13.	The Plaintiff was put on Non-reductable Allowance. This action was taken pursuant Public Service General Order No. 13:37(a), which clearly defines the implementation of the Non-Reductable Allowance.
14.	The Department of Personal Management through the IDC over ruled the Provincial Administrator’s recommendation, instead went ahead to place him on Grade 15 vacant position EPELD 001 Advisor – Land Development.
15.	This placement by DPM was done without realizing that one Zacharias Wainakari was official appointed to act on that position as per appointment notice dated the 12th January 2004. Annexed hereto and marked with the letter "E" is a copy of Mr Wainakari’s letter of appointment.
16.	This action DPM clearly contradicts the Concept Payroll System principle which does not allow more than one officer to be paid out from one position.
17.	After the Employment number was issued by the Inter-Department Working Committee (IDC) Mr Wainakari got his first pay on the pay 08 of 05 pay period ending 13th April 2005.
18.	The Provincial Administration lifted the suspension on the 19th March 2004 and told the Plaintiff to await further instruction for deployment to certain task. Annexed hereto and marked with the letter "F" is a copy of my letter to the Plaintiff.
19.	The Plaintiff has misled the DPM and the Public Service Commission into believing that the Provincial Works and Transport Advisor – position is vacant.
20.	Since the Advisor Provincial works and Transport Service position was won after due selection process when it was vacant the Plaintiff has no legal bases to demand to be reinstated as of right." (emphasis in bold is mine).

12. On 6 May 2005, he filed these proceedings. During the hearing, in the light of certain concessions made by the First Defendant in his affidavit, I invited both parties to settle the matter. After several unsuccessful attempts, parties requested me to determine the merits of the application, which I now do. 

13. I will first deal with procedural competency issues raised by the First Defendant. I accept Mr Steven’s submissions that on judicial review, the decision of the First Defendant supersedes all previous decisions including that of the PSC. This principle was laid down by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747. The law as it stands today is that the decision of the PSC is final and binding after 30 days: s.18 of the PSM Act, see Allan Pingha v PSC & Ors (2005) N2850. The First Defendant is therefore under a duty to comply with the PSC decision. The plaintiff is entitled to seek an order of mandamus to compel the First Defendant to implement the binding PSC decision. Any other orders he seeks against the Defendants are not open in judicial review. And so essentially, the issue for decision is whether an order in the nature of mandamus should be issued to compel the First Defendant to implement the PSC decision? Mr Thomas for the plaintiff submits the PSC decision is binding and the First Defendant must implement it. This Court should issue an order of mandamus for him to do so.

14. The prerogative Writ of Mandamus is an equitable remedy and it is very much discretionary. Mandamus may be refused if its grant would cause administrative hardships. A case on point cited by Mr Steven is R v Commissioner Public Service Commission; Ex parte Killeen (1914) CLR 56 at 590. The High Court in that case, per Griffith CJ said at p.588:

"A mandamus will in general be granted to a public officer to do an act which he is by law bound to do, and which is a necessary preliminary to the exercise or enjoyment of some right by an individual. But the writ is discretionary, and will not be granted if it would be futile. A mandamus to admit to an office will not be granted if the office is already full." 

15. Mandamus may also be refused if it would require a person to act contrary to law. A case on point also cited by Mr Steven is Ex parte Bourchier (1892) 13 SR (NSW) 105.

16. In Port Moresby City Council v The Sheriff of PNG Ex parte Port Moresby City Council [1981] PNGLR 479, the Supreme Court adopted a passage from de Smith Judicial Review of Administrative Action (2nd Ed) at p.561 as follows:

"Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant must show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. It is pre-eminently a discretionary remedy, and the court will decline to award it if another legal remedy is equally beneficial, convenient and effective."

The Court went on to say at p.480:

"It is a well-known rule of common law that mandamus does not lie against the Crown or against Crown servants acting exclusively in that capacity, see de Smith, pp.562, 574. but where a statute has imposed a duty on an expressly-designated public official, and his duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the courts have shown a readiness to grant mandamus, de Smith, p. 576."

17. In the circumstances of the present case, it is my view that for the reasons given by the First Defendant, it is not administratively practical or convenient and perhaps legally not open to re-instate the plaintiff on his former position, notwithstanding the position taken by the PSC and DPM. The First Defendant is the man on the ground well versed with the administration of Enga Province, and he can only be compelled to perform an act that he can lawfully be permitted and insofar as administratively feasible, convenient or practicable. Besides, the plaintiff’s contract on that position expired on or about 4 June 2002. Neither this Court nor PSC nor DPM has any authority to force the First Defendant to enter into a new contract. 

18. In my view, the only remedy available is one of damages. Damages should be restricted to his pay without suspension period, of which he is entitled to under s.52 of PSM Act and any unpaid entitlements on the vacant position of EMPTW 015 Road Foreman Grade 8, but with "all other entitlements including salary to be paid at Grade 15", as per the First Defendant’s instruction to the Chairman of Inter Departmental Working Committee (IDC) dated 14 March 2005. As particulars of such entitlements is unclear, I order that the plaintiff provide these particulars within 30 days. The defendant provide its view of particulars of entitlements within 14 days therefrom. Parties settle the issue of entitlements within 14 days therefrom, failing which parties have liberty to apply to this Court for assessment of damages. I further order that the plaintiff be appointed to that position forthwith, if that position is still vacant. If not, the plaintiff be appointed to another vacant position, with salary and other entitlements at Grade 15. The payment of salary and other entitlements of course should be based on the principle of salary earned based on performance on the job. There is no evidence before me to show if the plaintiff has been performing his duties as allocated by the Enga Administration which would entitle him to receive back-dated entitlements. But in any case, in the exercise of my discretion, given that he has been fighting his case in Court, I would award him these entitlements up to the date of judgment. 

19. Having reached the above conclusion, I do not consider other issues raised before me by the parties to be necessary to be considered. 

20. The plaintiff shall have costs of the proceedings.

21. The formal orders I make are:

1.	The plaintiff’s application in the nature of an order of mandamus is refused.

2.	The First Defendant shall pay to the plaintiff salary and other entitlements on Salary Grade 15, backdated from the date of suspension to the date of this order. Particulars of those entitlements shall be provided by the plaintiff to the defendant within 30 days. The Defendant shall supply to the plaintiff its version of particulars of entitlements within 14 days there from. Parties shall reach a negotiated settlement on entitlements within 14 days there from, failing which parties may apply to the Court for assessment of damages.

3.	The First Defendant shall effect the appointment of the plaintiff to the position of EMPTW 015 Road Foreman Grade 8 with pay entitlements at Grade 15 forthwith, if that position is still vacant. If not, the plaintiff be appointed to a similar position.

4.	The defendant shall pay the plaintiff’s costs of these proceedings.
_____________________________________________________________________
Warner Shand/ Gregory Manda Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Respondents