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Ipandi v Guria [2010] PGNC 194; N3830 (22 January 2010)

N3830

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO 571 OF 2007

PRAI IPANDI
Plaintiff

V

ROBIN GURIA, DIRECTOR, MAGISTERIAL SERVICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2009: 19 June,
2010: 22 January

ADMINISTRATIVE LAW – disciplinary procedures for officers of National Judicial Staff Service and Magisterial Service – whether an officer employed by Magisterial Service can be charged by Director of Magisterial Service and dealt with under Public Services (Management) Act – whether notice of charge is so confusing or vague as to amount to a denial of natural justice.

The plaintiff was in 1992 employed by the National Judicial Staff Service as a security guard. At that time the NJSS was responsible under the National Judicial Staff Service Act 1988 for providing administrative support for the Supreme Court, the National Court and the District Courts. In 2003 the administrative support system for the District Courts was separated from the Supreme Court and the National Court and transferred to the Magisterial Service. The plaintiff was transferred to the Magisterial Service. In 2005 he was charged by the Director of the Magisterial Service with a disciplinary offence. He responded to the charge but was found guilty and dismissed from the Magisterial Service. He sought judicial review of the decision to dismiss him on two grounds: (1) the Director had no power to charge or punish him, as he was still an officer of the NJSS and could only be charged and punished by the Secretary of the NJSS; and (2) the notice of charge was so vague and confusing that he was denied natural justice.

Held:

(1) There have been no changes to the legislation regarding the NJSS or the Magisterial Service to reflect the administrative separation of the two Services in 2003. Officers such as the plaintiff who are in fact employed by the Magisterial Service remain as a matter of law officers of the NJSS. Any disciplinary charges against them must be laid and determined under the NJSS Act.

(2) A disciplinary charge must be framed in terms of the provision creating the disciplinary offence and the notice of charge must give sufficient details of the allegations to enable the person charged to know what the allegations are.

(3) The Director of the Magisterial Service had no power to lay a disciplinary charge against the plaintiff. Such a charge could only be laid by the Secretary of the NJSS and determined under the NJSS Act. The entire disciplinary process in this case was defective.

(4) The notice of charge was defective in that it was headed "notice of punishment" and it failed to include sufficient details of the allegations. It was an unintelligible document, drafted in such a manner that the plaintiff was denied natural justice.

(5) The court ordered that the plaintiff be reinstated and paid back-pay to the date of commencement of the proceedings.

Cases cited

The following cases are cited in the judgment:

Bakani and OPIC v Daipo (2001) SC659
Clement Kilepak v Ellison Kaivovo (2003) N2402
Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00
Gideon Barereba v Margaret Elias (2002) N2197
John Magaidimo v Commissioner of Police (2004) N2752
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Morobe Provincial Government v Minister for Village Services (1994) N1215
Paul Pora v Commissioner of Police (1997) N1569
Peter Luga v Richard Sikani (2002) N2285
Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01
The State v James Yali (2006) N2989
Winmarang v Ericho and The State (2006) N3040

Counsel

W Hagahuno, for the plaintiff
G Emang, for the defendants

22 January, 2010

1. CANNINGS J: Prai Ipandi, the plaintiff, was employed by the National Judicial Staff Service as a security guard in February 1992. He was made a 'permanent' officer of the NJSS in June 1999. At that time the NJSS was responsible under the National Judicial Staff Service Act 1988 for providing administrative support for the Supreme Court, the National Court and the District Courts. In 2003 the administrative support system for the District Courts was separated from the Supreme Court and the National Court and transferred to the Magisterial Service. The plaintiff was transferred to the Magisterial Service. In 2005 he was charged by the Director of the Magisterial Service with a disciplinary offence. He responded to the charge but was found guilty and dismissed from the Magisterial Service.

2. Aggrieved by his dismissal the plaintiff applied for and was granted leave to seek judicial review of the Director's decision to dismiss him. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiff set out nine grounds of review in his supporting statement but they can be boiled down to two. He is arguing that his dismissal was defective in two respects:

• the Director had no power to charge or punish him, as he was still an officer of the NJSS and could only be charged and punished by the Secretary of the NJSS; and
  
• the notice of charge was so vague and confusing that he was denied natural justice.
  

4. They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to declare that his dismissal was unlawful and null and void and to order that it be quashed and that he be reinstated and paid back-pay.

ISSUES

5. There are three issues before the Court:

1. Did the Director lack power to charge and punish the plaintiff?
   
2. Was the plaintiff denied natural justice?
   
3. What declarations or orders should the Court make?
   

1 DID THE DIRECTOR LACK POWER TO CHARGE AND PUNISH THE PLAINTIFF?

6. The plaintiff's argument is straightforward. He says that though the administrative arrangements for the NJSS and the Magisterial Service were altered radically in 2003, nothing was done to change the law. He remained an officer of the NJSS and he could only be charged with a disciplinary offence under the NJSS Act. To test this proposition it is necessary to examine the NJSS Act.

7. Section 2 of the Act established the NJSS, which consists of the Secretary, the Register and Deputy Registrars and other employees and officers of the Service. Its functions, spelt out in Section 3, are to provide:

(a) legal, secretarial and clerical staff to enable the Courts to operate efficiently; and

(b) research, legal and other services for the Courts; and

(c) an efficient Court reporting service; and

(d) adequate library services for the Courts; and

(e) attendants, interpreters and other staff to ensure the efficient functioning of the Courts.

The term "the Courts" is defined by Section 1 to mean the Supreme Court, the National Court and the District Courts.

8. The Office of the Secretary of the NJSS is established by Section 4. Officers and employees are appointed by the Secretary under Sections 12 and 13. Disciplinary matters concerning officers of the NJSS are dealt with in Part III (Sections 14 to 26). Disciplinary offences are created by Section 14. The Secretary is responsible for laying and determining disciplinary charges. He has the discretion to deal with a matter as a minor disciplinary offence under Section 15 or a serious disciplinary offence under Section 16. If the Secretary is of the opinion that a serious disciplinary offence has been sustained he may impose a fine, reduce the officer's pay, demote or transfer the officer or recommend to the Judicial Council (established by Section 3A) that the officer be dismissed from the NJSS.

9. An officer aggrieved by the Secretary's determination of a disciplinary matter has under Sections 16(7) and 19 a right of appeal to the Appeal Tribunal, which is constituted under Section 18 by a Judge or Principal Magistrate. Except where the Tribunal recommends that the officer be dismissed, its decision is final. If the Tribunal recommends dismissal its recommendation goes to the Judicial Council, which is required to consider the matters prescribed by Section 19(6) before imposing a punishment.

10. The Secretary may under Section 9 delegate any of his powers or functions under the Act to another person, including any or all of his disciplinary powers and functions under Part III. The present Secretary, Mr Ronald Silovo, has given evidence that he has not delegated any of those powers or functions to any person within the Magisterial Service.

11. The question therefore arises whether there has been any change in the law to reflect the administrative reorganisation of the Courts that took place in 2003. Mr Emang, for the defendants, conceded that the law had not been changed but submitted that that was unnecessary as the Director of the Magisterial Service, the first defendant, Mr Robin Guria, had laid the disciplinary charge against the plaintiff and dealt with the matter under the Public Services (Management) Act.

12. I am not moved by that argument. It is clear there have indeed been no changes to the legislation regarding the NJSS or the Magisterial Service to reflect the administrative separation of the two Services in 2003. The Magisterial Service Act Chapter No 43 is a short Act consisting of only 12 sections. It has not been amended since 1980. It says nothing about the terms and conditions of officers of the Magisterial Service. No mention is made of how disciplinary charges against such officers are to be dealt with. The District Courts Act Chapter No 40 provides for the establishment of the District Courts and their jurisdiction and proceedings but does not provide for terms and conditions of officers of the Magisterial Service and makes no mention of how disciplinary charges against such officers are to be dealt with. The disciplinary procedures in the Public Services (Management) Act apply to officers of the National Public Service, which is a discrete State Service established by Section 188(1)(a) of the Constitution. It is not open to a senior administration officer such as the Director of the Magisterial Service to decide to adopt the procedures of the Public Services (Management) Act. He needs some legislative authorisation to do that. And here there is none.

13. The plaintiff's principal proposition therefore has considerable merit. There have been no changes to the legislation regarding the NJSS or the Magisterial Service to reflect the administrative separation of the two Services in 2003. Officers such as the plaintiff who are in fact employed by the Magisterial Service remain as a matter of law officers of the NJSS. Any disciplinary charges against them must be laid and determined under the NJSS Act. Though this may seem a curious outcome and may lead to considerable inconvenience in the administration of the NJSS and the Magisterial Service, the plaintiff is under Section 37(1) of the Constitution entitled to the full protection of the law.

Conclusion re ground 1

14. The Director of the Magisterial Service had no power to lay disciplinary charges against the plaintiff. The first ground of review is upheld.

2 WAS THE PLAINTIFF DENIED NATURAL JUSTICE?

15. The argument is that the charge was vague and confusing. Indeed it was. It started with the words:

NOTICE OF PUNISHMENT

UNDER SECTION 52 OF THE

PUBLIC SERVICES (MANAGEMENT) ACT 1995

16. That's right: NOTICE of PUNISHMENT. I suppose that can be argued to be a simple, typographical error but I do not think that it is a very good argument. It is a major error, which was never corrected in this case, which renders the document and the charge confusing from the outset.

17. As to the charge itself, it was expressed in these terms:

TAKE NOTICE that you are hereby charged with committing an offence within the meaning of Section 50 of the Public Services (Management) Act as referred to in NJSS Act 4.2 Code of Conduct namely:

That you did perform your duties as expected which is under clause 50(e) which is negligent or careless in the discharge of your duties.

That you failed to comply with the standing order of your duties as per directive of your superior as per PS code of ethics or organisation policy in executing your duties as expected.

Your actions are therefore in contravention to Section 50:

(a) commits a breach of this Act;

(b) is guilty of improper conduct in his official capacity or otherwise

of the Public Services (Management) Act and including the Section 15-2 b of the Interim General Order.

18. I make three points regarding this charge. First it is gibberish – it does not make grammatical sense. Secondly it refers to laws that – as far as I know, and they certainly haven't been brought to the Court's attention – do not exist. What is 'NJSS Act 4.2 Code of Conduct'? What does 'PS code of ethics or organisation policy' refer to? What does 'Section 15-2-b of the Interim General Order' contain? Thirdly, the charge does not say what the actual allegation is. What did the plaintiff do wrong? From the evidence before the court it appears that the charge arose from a break-and-enter incident at the Waigani Traffic Court in the early hours of 29 December 2004. The plaintiff was on duty, there was heavy rain and during the downpour while he was sheltering from the rain criminals broke into the courthouse and stole equipment. That allegation should have been inserted in the charge. It was not, however, so the notice of charge was just a vague and confusing jumble of words. It was an unintelligible document, drafted in such a manner that the plaintiff was denied natural justice.

19. It is part of the principles of natural justice that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he or she has to answer. The person laying the charge and the person determining the charge will not have a clear mind on the real issues to be decided (Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00, unreported, National Court, Sevua J; Bakani and OPIC v Daipo (2001) SC659; Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported, National Court, Los J; Winmarang v Ericho and The State (2006) N3040; The State v James Yali (2006) N2989; Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112). Those requirements were breached in this case.

Conclusion re ground 2

20. The notice of charge was vague and confusing and therefore defective. The plaintiff was denied natural justice. Ground 2 is upheld.

3 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

21. It is now time to consider the consequences of upholding both of the plaintiff's grounds of review. It does not necessarily follow that he should be reinstated. This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797).

22. Here, I have been persuaded that it would not be proper or just to allow the Director's decision to find the plaintiff guilty and to terminate his services to remain in force. The two errors of law committed were each very serious. It follows that the plaintiff should be reinstated.

23. The final issue is back-pay. Should the plaintiff be compensated for the loss of salary and other entitlements he incurred from the date of his dismissal to the date of his reinstatement? By the time that he is reinstated this will be a period of four and a half years.

24. As the Supreme Court emphasised in Asiki all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past.

25. On the one hand the courts have stressed that dismissed public officials who succeed in judicial review should not necessarily receive a windfall gain, ie 'get paid for doing nothing', if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569 and Gideon Barereba v Margaret Elias (2002) N2197.

26. On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215; Peter Luga v Richard Sikani (2002) N2285; Clement Kilepak v Ellison Kaivovo (2003) N2402 and John Magaidimo v Commissioner of Police (2004) N2752. Asiki's case ultimately fell into this category.

27. In the circumstances of this case I will take a centreline approach that balances the conflicting interests at play. On the one hand, the court can show some compassion to someone like the plaintiff who has been fighting his case for many years and ultimately won a judicial review after being unlawfully dismissed. On the other hand, I do not feel comfortable in ordering that a considerable sum of public money be paid to someone who has not been gainfully employed by the State for four and a half years.

28. I will exercise my discretion by ordering that the plaintiff be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent back-dated to the date on which he commenced these proceedings, 5 October 2007.

ORDER

29. Judgment will be entered in the following terms:

(1) the application for judicial review is granted;

(2) the decision of the first defendant, the Director of the Magisterial Service, conveyed by a memo dated 7 July 2005 entitled "Termination of Employment from Magisterial Service", finding the plaintiff guilty of a disciplinary offence and terminating the plaintiff from employment, is quashed;

(3) the first defendant, the Director of the Magisterial Service, must within 30 days reinstate the plaintiff to his former or an equivalent position in the Magisterial Service, or if his former or equivalent position is unavailable he must be reinstated in a way that makes him an unattached officer and in either case he must from the date of reinstatement be paid salary and other emoluments at a level equivalent to those paid in respect of his former position;

(4) the first defendant, the Director of the Magisterial Service, shall, within 30 days take all steps necessary to amend the personnel file of the plaintiff so that it clearly reflects this order and without limiting the generality of the foregoing shall place a sealed copy of this order and the judgment of the National Court on the file and ensure that all records of the Magisterial Service record and show that the decisions referred to in order (2) above have been made unlawfully;

(5) the Magisterial Service must pay to the plaintiff a sum of money equal to the salary and emoluments, less tax, payable in respect of the position he held or an equivalent position, in the period from 5 October 2007 to the date of his reinstatement;

(6) for purposes of assessment of that sum this matter shall be remitted to the National Court at Waigani and the Registrar of the National Court or his delegate shall set the matter down for hearing for those purposes within 30 days after the date of entry of this judgment;

(7) costs of these proceedings are to be paid by the Magisterial Service to the plaintiff on a party-party basis, to be taxed if not agreed;

(8) time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________

William's Attorneys: Lawyer for the Plaintiff
Solicitor-general: Lawyer for the Defendants