N4405

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 414 OF 2003

BETWEEN

PETER MAKO
Applicant

AND

PEPI KIMAS, as SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2009: 23rd September & 2011: 07th October

JUDICIAL REVIEW - Review of decision - Dismissal from employment - Grounds of - Dismissed for same disciplinary offence - Double jeopardy - Error of law - Denial of right to be heard - Breach of natural justice - Decision unlawful - Application for judicial review upheld - Decision of dismissal quashed - Re-instatement sought - Discretionary relief - Re-instatement inappropriate - Detrimental to good administration - Damages appropriate - Constitution - Section 59 - National Court Rules - Order 16, rule 7. 

Cases cited:

Sudi Yaku -v- Commissioner of Police & The State [1980] PNGLR 27
Mision Asiki -v- Manasupe Zurenouc, Morobe Provincial Administration and The State (2005) SC797
Isaac Lupari -v- Sir Michael Somare, Prime Minister, NEC & The State (2009) N3476
Bennie Daniel -v- Walter Kapty & National Housing Corporation (2011) N4361
Peter Aigilo -v- Sir Mekere Morauta & The State (2001) N2102
Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958
Bau Waulas -v- Veronica Jigede as Acting Provincial Administrator of New Ireland Province & The State (2009) N3781

Facts

The applicant was a Senior Provincial Lands Officer within the Department of Lands and Physical Planning and was based in Mt Hagen. He was dismissed from the employment for committing a disciplinary offence under the Public Services (Management) Act 1986, (old Act). He appealed to the Public Services Commission and after a review, the Public Services Commission recommended inter-alia that he be reinstated to his substantive position and be paid all his lost salaries and entitlements. The Department of Lands and Physical Planning reinstated him and paid his lost salaries and entitlements. 

At the same time it dismissed him for the second time for the same disciplinary offence. He appealed again to the Public Services Commission and it found that his dismissal was proper. He filed an application for judicial review and raised two grounds. First being the decision to dismiss him from employment the second time was unlawful as he had been punished twice for the same disciplinary offence and secondly, that he was not accorded any opportunity to respond to the disciplinary charge before the decision to dismiss him.

Held:

1. The decision to dismiss applicant the second time was a double punishment as the first disciplinary offence was the same as the second one or the act or omission leading to the decision to dismiss him on the first occasion was the same as those in the second decision of dismissal.

2. Further, the decision to dismiss the applicant on the second occasion was in breach of the principles of natural justice under section 59 of the Constitution as the applicant was not afforded an opportunity to be heard before the decision to dismiss him.

3. The application for judicial review was upheld and the decision of the first respondent to dismiss the applicant was quashed.

4. An order for reinstatement was refused as reinstatement of the applicant to his former substantive position was detrimental to good administration of the Department of Lands and Physical Planning.

5. An appropriate remedy was an order for damages and the respondents were ordered to pay the applicant his lost salaries and entitlements which were assessed from the date of dismissal of 13th January 1994 (excluding payment for first reinstatement on 07th October 1994) to the first date of trial and calculated by the parties and final amount submitted to Court for endorsement: Bennie Daniel -v- Walter Kapty & National Housing Corporation (2011) N4361 followed.

6. Consequential orders for damages for distress and hardship was assessed at K15,000.00 and cost for transportation (airfares) was assessed at K1,441.00.

Counsel:

Mr K Sino, for Applicant
No appearance for Respondents

JUDGMENT
07th October, 2011

1. MAKAIL, J: This is an application for judicial review pursuant to Order 16 of the National Court Rules of the decision of the first respondent to find the applicant guilty of a serious disciplinary offence and dismissing him from the Public Service on 13th January 1994. The applicant also seeks orders to reinstate him to his substantive position and that all his lost salaries and entitlements due to him since his dismissal be paid to him. He further seeks damages for distress and hardship caused to him by the dismissal from employment by the respondents. 

2. Leave to review the decision was granted by the Court on 12th December 2003 and the substantive application was originally heard by Hinchliffe, J on 04th July 2004 and reserved for decision. Following his passing in 2009, the matter was re-tried on 23rd September 2009 where the applicant was the only one represented through his lawyer at trial. The respondents or their lawyers did not attend trial. 

Evidence

3. Affidavits were tendered for the applicant and Mr Sino of counsel presented a written submission and invited the Court to consider it with the affidavits. The applicant relies on the following affidavits:

1. His affidavit sworn and filed on 01st August 2003, (exhibit "P1"); 

2. His supplementary affidavit sworn and filed 22nd September 2003, (exhibit "P2"); and

3. Affidavit of Gabriel Michael sworn on 16th December 2005 and filed on 19th December 2005, (exhibit "P3"). 

4. Affidavit of Paul Kup sworn on 16th December 2005 and filed on 19th December 2005, (exhibit "P4") and 

5. Affidavit of Alex Kaima sworn on 02nd December 2005 and filed on 19th December 2005, (exhibit "P5"). 

4. From these affidavits, the undisputed facts are; the applicant joined Department of Lands and Physical Planning as an Assistant Lands Officer in 1978. He was later made a permanent officer of the Public Service in the Department of Lands and Physical Planning. In 1992, he was promoted to the position of Provincial Lands Officer and was in charge of Enga and Western Highlands Provinces.

5. On 16th September 1993, he took an officially allocated motor vehicle to his house. While he was asleep, his younger brother took the key and drove it on to a public street not far from his house. The police impounded it and kept it at the PTB yard in Mt Hagen. No damage was done to it and the offence was not serious but on 19th September 1993, when he went to work, he was told to call the Regional Lands Manager of Highlands Region Mr Gabriel Donump. He did and Mr Donump told him to "fxxx off" to his village. 

6. On 27th September 1993, he was served with an illegible facsimile letter advising him of his suspension from duties with pay. On 13th January 1994, he was dismissed from the Public Service. He was dismissed for absenteeism and misuse of official motor vehicle. He appealed the suspension and dismissal to the Public Services Commission and on 17th August 1994, the Public Services Commission after reviewing the decision was of the view that the suspension and dismissal on was contrary to section 47 of the Public Services (Management) Act (old Act). It recommended that:

•	The dismissal notice against him dated 13th January 1994 be withdrawn.
•	His suspension be uplifted.
•	He be re-instated to his substantive position.
•	All loss of salaries and entitlements be reimbursed to him retrospective to 13th January 1994, the date of dismissal.

7. On receipt of the decision of the Public Services Commission, the Department of Lands and Physical Planning took the following actions:

•	Removed the dismissal notice and asked him to resume duties on 07th October 1994.
•	Reimbursed all loss of salaries and entitlements up to 07th October 1994.

8. The Department of Lands and Physical Planning further suspended the applicant from duties on the same day (07th October 1994) and a month later, dismissed him from employment. His suspension and subsequent dismissed was for the same disciplinary offences. The disciplinary committee based its decision of dismissal on a statutory declaration purportedly signed by Mr Donump dated 03rd October 1994 and recommended to the first respondent who effected the dismissal.

9. Once again, he appealed to the Public Services Commission to review the decision of the first respondent to suspend and subsequently dismiss him and on 26th May 1996, the Public Services Commission responded by affirming the decision of the first respondent. It stated in its findings the first respondent correctly followed the disciplinary procedures under the Public Services (Management) Act, 1986 to suspend and subsequently dismiss the applicant, in that, the applicant was served with the disciplinary charge and failed to respond to them within 7 days. As there was no response from the applicant, the first respondent was entitled to determine it and find him guilty and subsequently dismissed him.

10. Following the review by the Public Services Commission, he pursued his claim for reinstatement with the respondents including representation in person and in writing to two different Ministers for Public Service. One was Honourable Joseph Onguglo in 1994 and the other was Honourable Peter Peipul in 1997. He also had a meeting with the Minister for Lands and Physical Planning Honourable Sir Albert Kipalan where the first respondent also attended that meeting and was asked to resolve the dispute. Honourable Sir Albert Kipalan also followed up the issue with the first respondent by way of a memorandum on 02nd April 1997.

11. Despite his best efforts, the respondents did not re-instate him. As a result, he engaged the services of Paul Paraka Lawyers to commenced Court proceedings against the respondents and in 2003, they filed this application for judicial review.

Grounds of Review

12. The applicant relies on two grounds, the first being that, the decision by the first respondent to dismiss him from employment was unlawful as he has been punished twice for the same disciplinary offence and secondly, that the decision was made in breach of the principles of natural justice, in that, he was not afforded any opportunity to respond to the serious disciplinary charge before the decision to dismiss him from employment.

13. In relation to the first ground, it was submitted on behalf of the applicant that the applicant was punished twice for the same disciplinary offence. This is because following the first dismissal on 13th January 1994, he appealed to the Public Services Commission. The Public Services Commission reviewed the decision of the first respondent to suspend and dismiss the applicant and found that the first respondent did not follow the procedures under the Public Services (Management) Act, 1986 and recommended inter-alia, that he be reinstated to his substantive position. Based on the recommendation of the Public Services Commission, the first respondent reinstated the applicant, paid his lost salaries and entitlements and at the same time dismissed him for the second time for the same disciplinary offence.

14. There are not many reported cases on double jeopardy in this jurisdiction. The one that I have been able to find is the case of Sudi Yaku -v- Commissioner of Police & The State [1980] PNGLR 27, which was a case that involved an offence under the Criminal Code and a disciplinary offence under the Police Force (Interim Arrangements) Act, 1973. In that case, the applicant was a police officer who was charged with unlawful assault under section 353 of the Criminal Code. He was subsequently convicted and fined by the Local Court. 

15. Subsequently, he was charged under section 80(g) of the Police Force (Interim Arrangements) Act, 1973, with a disciplinary charge of disgraceful conduct arising from the same conduct as that constituting the unlawful assault. He was later found guilty and dismissed from the police force. He appealed to the Police Appeals Tribunal and his appeal was upheld on the ground that the second penalty of dismissal constituted a double penalty and therefore was prohibited by section 16 of the Criminal Code.

16. The Court held, inter-alia, the disciplinary charge of disgraceful conduct under section 80(g) of the Police Force (Interim Arrangements) Act, 1973, was not an offence known to the Criminal Code and accordingly it could not be said that there was double punishment for the one offence or for the same act or omission.

17. In the present case, I am dealing with disciplinary offences under the old Public Services (Management) Act, 1986. I note on the first occasion, the applicant was charged and dismissed for absenteeism and misuse of official vehicle and on the second occasion, was dismissed for the same disciplinary offence. I accept the decision to dismiss him on the first occasion was overruled or overturned by the Public Services Commission because the respondents did not comply with the disciplinary procedures under section 47 of the Public Services (Management) Act, 1986 when they suspended and subsequently dismissed him from employment. On the second occasion, he was dismissed for the same disciplinary offence. 

18. For the second dismissal, the evidence suggested the respondents tried to correct their mistakes or breaches by re-charging the applicant for the same disciplinary offence. This was after they received a report from Mr Donump in the form of a statutory declaration which stated that Mr Donump had served the disciplinary charge on the applicant and that he had received a response from the applicant. Based on that report, the disciplinary committee recommended to the first respondent to dismiss the applicant from employment. From that recommendation, it appears the first respondent acted on it and once again dismissed the applicant from employment.

19. But there is no evidence of a second dismissal notice before the Court. This explains why applicant only seeks review of the decision of 13th January 1994 and I think there is an explanation for this and that is, after reviewing the disciplinary charge of against the applicant, they decided to dismiss him again by re-affirming their earlier decision of 13th January 1994. Nonetheless, I am of the view that the applicant was dismissed again for the same disciplinary offence and as a result, the respondents have punished the applicant twice for the same disciplinary offence. 

20. I am satisfied the applicant was punished twice for the same disciplinary offence and this is where I find the respondents committed an error of law. The consequence of that is, the decision is unlawful and must be quashed. I uphold the application for judicial review on this ground and quash the decision of the first respondent to dismiss the applicant from employment.

21. My decision on the first ground of review settles the issue of lawfulness or otherwise of the decision of the respondents to dismiss the applicant from employment but as the applicant has raised a second ground of review and for completeness, I will also consider it. The second ground of review is based on breach of principles of natural justice. Counsel for the applicant submitted when the applicant was dismissed the second time for the same disciplinary offence, he was not served with the disciplinary charge and invited to make a response as required by section 47 of the Public Services (Management) Act, 1986.

22. I accept these submissions. On the evidence before the Court, I am satisfied that the applicant was not served with a disciplinary charge and invited to response to it. The omission to serve the disciplinary charge is not only a breach of the legal requirement under section 47 of the Public Services (Management) Act, 1986, but also a breach of the right to be heard as without service of the disciplinary charge, the applicant was not aware of the disciplinary charge. That has resulted in him not making a response to the first respondent before the first respondent could lawfully make a decision.

23. This means, I am not satisfied with the explanation given by Mr Donump in the statutory declaration that he had served the disciplinary charge on the applicant and later received the applicant's response before presenting it to the disciplinary committee for deliberation and recommendation to the first respondent for final decision. I am not satisfied because he did not state where and where he served the disciplinary charge on the applicant and if he did, he has not produced evidence of the applicant's response to support his assertion.

24. For these reasons, I am satisfied the applicant was not afforded an opportunity to respond to the disciplinary charge and this was a denial of his right to be heard. I find there was a breach of natural justice under section 59 of the Constitution. I also uphold the application for judicial review on this ground and quash the decision of the first respondent to dismiss the applicant from employment. 

Reinstatement

25. As I have quashed the first respondent's decision to dismiss the applicant from employment, it does not necessarily mean that the applicant ought to be reinstated to his former position. The decision to reinstate the applicant to his former position still remains a discretionary matter for the Court and the Court must consider factors such as the relationship between the employer and the employee prior to and subsequent to the termination, in case the relationship has completely or seriously broken down to such an extent that mutual trust required of each other no longer exists and a mandatory injunction would not be appropriate or where damages would be an adequate remedy for the applicant: see Mision Asiki -v- Manasupe Zurenouc, Morobe Provincial Administration and The State (2005) SC797 Isaac Lupari -v- Sir Michael Somare, Prime Minister, NEC & The State (2009) N3476 and Bennie Daniel -v- Walter Kapty & National Housing Corporation (2011) N4361.

26. The claims for reinstatement and/or damages are consequential reliefs as they are dependent on the primary question of the lawfulness of the decision of the first respondent to dismiss the applicant from employment. In a case where the decision to dismiss an applicant is found to be unlawful, as is the case, in this case, the applicant is entitled to consequential reliefs but subject to proof by appropriate evidence. See also Order 16, rule 7 of the National Court Rules.

27. With regards to the applicant's claim for reinstatement, I consider the time factor weighs heavily against it. The applicant was dismissed on 13th January 1994 and the decision of the Court is today, some 17 years later. To my mind, this is a long time and while there is no evidence that the applicant's position is still vacant, I must assume it isn't. Someone may be occupying the position at the moment. In other words, the administration of the Department of Lands and Physical Planning has moved on since the applicant's dismissal and in my view, reinstating the applicant to his former position will be detrimental to the good administration of the Department of Lands and Physical Planning. I refuse the applicant's request for reinstatement.

Damages for loss of salaries & entitlements

28. On the other hand, I consider damages would be an adequate remedy for the applicant and will order that all his salaries and entitlements due to him from the date of dismissal of 13th January 1994 (excluding those that have been paid to him when he was reinstated on 07th October 1994) be paid to him. In that respect, I find the decision of Gavara-Nanu, J in Bennie Daniel's case (supra) appealing as his Honour did not award a specific amount of damages to the applicant in that case following his Honour's decision in upholding the applicant's application for judicial review and quashing of the decision of the respondent to dismiss the applicant from employment. Instead, his Honour ordered parties to calculate the loss of salaries and entitlements of the applicant and decide for themselves whether the amount be paid in lump sum or by installment, which would then have a time frame for payment and endorsed by the Court to form part of the decision of the Court.

29. I adopt the method used by his Honour in the present case because I am not satisfied based on the evidence before the Court that I should award a specific amount for loss of salaries and entitlements. I prefer both parties to do their calculations, of course taking into account the applicant's gross pay per fortnight, income tax, consumer price index adjustments (CPI), superannuation (POSF) benefits, annual leave entitlements, etc.

30. But I shall order a cut-off point for the calculation of loss of salaries and entitlements. I consider that to be fair to both parties given the long delay in concluding this matter, a cut-off point of 04th July 2004 is reasonable as that was when the matter first came on for trial before late Hinchliffe, J. I order that the calculation of the loss of salaries and entitlements be calculated and paid to the applicant up to 04th July 2004 and that the parties to calculate and agree on the final amount for the Court to endorse within one month from the date of the decision. If parties are unable to reach an agreement, they may file further affidavits with supporting documents for further submissions.

Damages for distress and anxiety

31. The applicant also seeks damages for distress and anxiety caused by the respondents, cost of transportation (airfares) between Mt Hagen and Port Moresby and vise versa, accommodation and living expenses in Port Moresby and miscellaneous/incidental expenses to pursue his claim for reinstatement with the respondents. 

32. In respect of the claim for damages for distress and anxiety, Mr Sino submitted K200,000.00 would be a fair and reasonable amount to award to compensate the applicant for the "run around" the respondents gave to him. In addition to that, he submitted and emphasised that the applicant's two wives and children have deserted the applicant following his loss of employment. One wife took all her children with her while one left behind a daughter with him. He took on the responsibility of raising the child on his own. 

33. I think the amount of K200,00.00 is too excessive. However, I accept Mr Sino's submission based on the evidence of Alex Kaima who is the younger brother of the applicant that the applicant's two wives and children have deserted the applicant following the applicant's loss of employment. One wife took all her children with her while one left behind a daughter with the applicant and the applicant took on the responsible of raising the child on his own: see affidavit of Alex Kaima (exhibit "P5"). 

34. Further, there is uncontroverted evidence that the applicant has been put off the pay-roll following his dismissal. He was given a "run around" when he made various attempts to the first respondent and various Ministers (Public Services and Lands and Physical Planning) to settle the matter out of Court. He believed he was unfairly treated by the respondents following his dismissal for the same disciplinary offence the second time. He brought it to the attention of the respondents but they were not interested. 

35. There was one occasion before the applicant filed Court proceedings that he had a meeting with the first respondent to resolve the dispute. Although the first respondent had given his assurance that the dispute would be looked into and referred the applicant to the legal officer of the Department of Lands and Physical Planning for further assistance, nothing further was done. This was in August 2002. Despite promises by the respondents to resolve the dispute, nothing eventuated.

36. In my view, this case is serious but not as serious as the case of Peter Aigilo -v- Sir Mekere Morauta & The State (2001) N2102 where in that case, the plaintiff suffered serious illness following his dismissal as Police Commissioner. There was evidence by way of a medical report verifying that his loss of employment as a result of the dismissal contributed to his illness. In addition to that, he had to look for money elsewhere to pay for his children's school fees and a bank loan for their house. In the present case, there is no evidence of a medical report verifying that the applicant is suffering serious ill health following his dismissal.

37. In an earlier case of Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958, the Court awarded K15,000.00 as general damages for frustration and distress. The plaintiff was dismissed from employment while on study leave in Australia. The Court found that as a result of his dismissal, he did not have the benefit of direct contact and assistance from friends and wantoks as he was in Australia. In addition to that, his wife and children left him. His wife re-married and he had to pay customary compensation to have access to his children.

38. In the case of Bau Waulas -v- Veronica Jigede as Acting Provincial Administrator of New Ireland Province & The State (2009) N3781, I awarded K5,000.00 as damages for distress and hardship in a case where the applicant was dismissed for disciplinary reasons and following a successful application for judicial review, was reinstated to his former substantive position as acting Director for Health Services in the New Ireland Provincial Administration. I awarded that amount because I was not satisfied the applicant was greatly inconvenienced by the dismissal as he was still on the pay-roll and receiving his pay while he sought judicial review of the decision to dismiss him from employment in Court.

39. Taking into account the loss of wives and children and the "run around" given by the respondents in settling the dispute plus the awards in past cases cited above, I consider K15,000.00 fair and reasonable in the circumstances and award this amount.

Transportation costs

40. As for costs of transportation between Mt Hagen and Port Moresby and return to follow up on his request for re-instatement, he has produced Air Niugini airline tickets and boarding passes to prove this head of damages. They are for the following period:

•	Mt Hagen - Port Moresby on 23rd January 1995 - K132.00;
•	Mt Hagen - Port Moresby on 16th July 1995 - K132.00;
•	Port Moresby - Mt Hagen on 09th August 1995 - K132.00;
•	Mt Hagen - Port Moresby on 29th September 1995 - K150.00;
•	Port Moresby - Mt Hagen on 29th October 1995 - K134.50;
•	Mt Hagen - Port Moresby on 17th February1996 - K163.00; 
•	Mt Hagen - Port Moresby on 04th September1996 - K165.50;
•	Mt Hagen - Port Moresby on 10th October 1997 - K286.00;
•	Port Moresby - Mt Hagen on 08th December 1997 - K146.00;

Total K1,441.00

41. I note he also said there were other trips he made but is unable to produce the airline tickets and boarding passes to prove them. In the absence of such documents, I will base my decision on what has been provided and award K1,441.00.

Accommodation and Living Expenses

42. As there is evidence that the applicant has travelled to Port Moresby to pursue his claim for reinstatement, I accept he would have incurred further costs in terms of accommodation and living expenses in Port Moresby. Mr Sino submitted K98,550.00 would be a reasonable amount to award but I am not convinced as there is no evidence by way of receipts of payment to justify this amount. In the absence of such evidence, I will award a nominal sum of K10,000.00. 

Miscellaneous/Incidental Expenses

43. Mr Sino also submitted the applicant incurred miscellaneous/ incidental expenses such as costs of photocopying, typing, facsimile, postage, telephone and bus fare while in Port Moresby to pursue the claim for reinstatement. I agree with the proposed amount of K5,000.00. I award K5,000.00 as nominal damages.

Loss of house, Superannuation benefits & Exemplary damages

44. I also note in his written submissions, apart from his submission on the applicant's claim for loss of salaries and entitlements, including damages for distress and hardship, transportation costs, accommodation and living expenses in Port Moresby, miscellaneous/incidental expenses, Mr Sino has also made extensive submissions on a number of heads of damages. They are:

•	Loss of house under the National Government's Homeownership scheme;
•	Loss of superannuation (POSF) benefits; and
•	Exemplary damages.

45. Apart from the claim for superannuation (POSF) benefits, I reject the other claims because they have not been pleaded and sought as separate substantive reliefs in the originating summons. In any case, there is no evidence from the plaintiff to support Mr Sino's submissions on the claim for loss of house under the National Government's Homeownership scheme. 46. As for the claim for superannuation (POSF) benefits, that should be included in the claim for other entitlements and further submitted for endorsement by the Court later.

Order

47. Finally, I order the respondents to pay the applicant's cost of the application for judicial review on a party/party basis. If parties are unable to agree on the cost, it shall be taxed by the Taxing Officer.

Judgment and orders accordingly.
_____________________________________________________________
Sino & Co Lawyers: Lawyers for the Applicant 
Acting Solicitor General: Lawyers for the Respondents