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Sisipa v Sikani [2012] PGNC 113; N4825 (19 October 2012)

N4825

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 215 OF 2007

ANDY M SISIPA
Plaintiff

V

RICHARD SIKANI,
COMMISSIONER OF THE CORRECTIONAL SERVICE
First Defendant

PAPUA NEW GUINEA CORRECTIONAL SERVICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2012: 21 September, 19 October

JUDICIAL REVIEW – decision of Commissioner of Correctional Service to retire member of Correctional Service at age 57 – whether Public Services (Management) Act 1995 applied – whether decision should have been made by Secretary for Personnel Management – whether compulsory retirement age is 60.

The Commissioner of the Correctional Service issued a compulsory notice of retirement to the plaintiff, a member of the Correctional Service who was 57 years old. The plaintiff objected to being retired. He wanted to continue working at least until the age of 60, which he argued was the proper retirement age. He applied for judicial review of the Commissioner's decision on two grounds: (1) that by virtue of Section 56 of the Public Services (Management) Act only the Secretary for Personnel Management had the power to retire him; and (2) that under that Act the compulsory retirement age was 60.

Held:

(1) Ground 1 was refused as the Commissioner of the Correctional Service has the power under Section 30(1)(b) of the Correctional Service Act to require a member of the Service to retire as it allows the Commissioner to determine the terms and conditions of members' employment. The Public Services (Management) Act does not apply to the Correctional Service, which is a separate State Service. A retirement notice in respect of a member of the Correctional Service is properly issued by the Commissioner, not by the Secretary for Personnel Management.

(2) Ground 2 was refused as the compulsory age of retirement for a member of the Correctional Service is as determined by the Commissioner. Here the Commissioner determined that it was 55, which is not unreasonable.

(3) As both grounds of judicial review failed the application for judicial review and all relief sought by the plaintiff were refused.

(4) Remarks as to the need for a clear determination of the terms and conditions of employment of members of the Correctional Service and the manner in which the plaintiff, who had served the Correctional Service for 37 years, was dealt with.

Cases cited

Papua New Guinea Cases

Michael Mondia v Richard Sikani (2007) N3256
Paul Saboko v Commissioner of Police (2006) N2975

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Counsel

C S N Narokobi, for the plaintiff
S Phannaphen, for the defendants

19 October, 2012

1. CANNINGS J: Andy Sisipa is applying for judicial review of a decision of the Commissioner of the Correctional Service to retire him from the Correctional Service. Mr Sisipa was born on 1 July 1949. He joined the Correctional Service on 17 March 1969, aged 19, and was still a member of the Service on 7 August 2006, aged 57, when the Commissioner issued him a compulsory notice of retirement. Mr Sisipa objected to being retired. He was at the time the Commanding Officer of Beon Jail, Madang. He wanted to continue working at least until the age of 60. Leave for judicial review was granted in early 2007 and on 19 October 2007 an injunction was granted to prevent the Correctional Service evicting Mr Sisipa from State-owned accommodation near the Jail pending the outcome of these proceedings. The case has taken a long time to be heard and this apparently is due to unsuccessful attempts to negotiate settlement. It is not due to delays by the Court.

2. Mr Sisipa is now aged 63. He does not seek reinstatement but seeks a declaration that he was retired unlawfully and salary and entitlements that were denied him and damages. He applies for judicial review of the Commissioner's decision to retire him on two grounds:

(1) that the Commissioner lacked power to issue a notice of retirement as under Section 56 of the Public Services (Management) Act only the Secretary for Personnel Management had the power to retire him; and

(2) that the compulsory retirement age was 60.

(1) COMMISSIONER OF THE CORRECTIONAL SERVICE LACKED POWER

3. The argument advanced by Mr Narokobi, for Mr Sisipa, is that the Commissioner acted ultra vires (beyond power) by issuing a compulsory retirement notice to a member of the Correctional Service as that power was vested in the Departmental Head of the Department of Personnel Management, commonly known as the Secretary for Personnel Management, under Section 56 (age of retirement) of the Public Services (Management) Act. At first glance there is merit in the argument as the Commissioner referred, in general terms at least, to that Act in the notice of retirement, which stated:

The Government's downsizing and right sizing policy call for reduction in Public Service workforce. The recent retrenches and retirees in the Correctional Service, is one of them. You have reached fifty-seven (57) years of age is over the compulsory retirement age of 55 under the Public Service Act as well as CS Act. I have now decided to retire you.

TAKE NOTICE that I, RICHARD C SIKANI, Commissioner of the Papua New Guinea Correctional Service, by virtue of the power conferred by Section 13 of the Correctional Service Act, and Public Service (Management) Act and the General Orders made under those Acts, as you have reached your Compulsory Retirement Age at fifty-seven (57) which is over 55 years of age. [sic]

4. However, I uphold the argument of Mr Phannaphen for the defendants that the Public Services (Management) Act is not the legislation that provides for retirement of members of the Correctional Service. The Correctional Service is a discrete State Service established under Section 188 (establishment of the State Services) of the Constitution and Section 5 (status of Correctional Service) of the Correctional Service Act. It is separate from the National Public Service (Michael Mondia v Richard Sikani (2007) N3256). The relevant legislation is the Correctional Service Act 1995, Section 30(1) (terms and conditions of employment) which provides for the terms and conditions of employment of members by stating:

Subject to—

(a) this Act; and

(b) the Salaries and Conditions Monitoring Committee Act 1988,

a member is employed on such terms and conditions as are prescribed or as are determined by the Commissioner.

5. The effect of Section 30(1) is that the terms and conditions of employment including the ages of retirement of members of the Correctional Service are either "as prescribed" or "as are determined by the Commissioner". In PNG legislation the term "as prescribed" is taken to mean as prescribed by Regulation (see the definition of "prescribed" in Section 3 (interpretation of terms) of the Interpretation Act Chapter No 2). However, no terms and conditions have been brought to the Court's attention as having been prescribed in that manner or in any other manner for that matter. That raises the question whether the Commissioner has "determined" the terms and conditions of employment. None of the parties has drawn the Court's attention to anything that might pass as a determination for the purposes of Section 30(1).

6. So what are the terms and conditions of members of the Correctional Service? Where are they to be found? Who has set them? Again, none of the parties provided the court with answers so I am left to wonder where the terms and conditions, which would normally address issues such as salaries and entitlements and the age of retirement, are to be found. Is there perhaps a determination by the Commissioner that until a separate determination is made for the Correctional Service the terms and conditions that apply to officers of the National Public Service (including those in the Public Service General Orders) apply to members of the Correctional Service? I can guess but I cannot presume the answer to these questions so I must work on the best information that is available.

7. I find that no terms and conditions have been prescribed and there has been no formal determination of terms and conditions under Section 30(1). The consequence is that as a matter of law the Commissioner may determine the terms and conditions of members on a case-by-case basis. He did so in Mr Sisipa's case by determining that the retirement age was 55 years, which by August 2006 Mr Sisipa had exceeded by two years. Viewed in this light, the Commissioner's decision cannot be regarded as unlawful. There was nothing unlawful in setting a retirement age of 55 and then not enforcing it until age 57. I cannot see that the Commissioner's decision was unreasonable according to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (not that this was put forward as a ground of review). It was not so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made it (Paul Saboko v Commissioner of Police (2006) N2975).

8. In summary, the Commissioner of the Correctional Service, not the Secretary for Personnel Management, has the power to require a member of the Correctional Service to retire. Ground 1 is refused.

(2) COMPULSORY RETIREMENT AGE IS 60

9. Mr Narokobi submitted that the compulsory retirement age of a member of the Correctional Service is 60 and bases this argument on Section 56 of the Public Services (Management) Act. I have already decided that that Act does not apply to members of the Correctional Service but to account for the possibility that it does by some means not drawn to the Court's attention I will examine Section 56, which states:

(1) Subject to this section, an officer who has attained the age of 50 years is entitled to retire from the Public Service if he desires to do so, but such an officer may, subject to this Act, continue in the Public Service until he attains the age of 60 years.

(2) An officer who continues in the Public Service after he has attained the age at which he is entitled to retire—

(a) may be retired from the Service at any time before attaining the age of 60 years; and

(b) shall retire from the service on attaining the age of 60 years.

(3) A retirement under Subsection (2)(a) shall be affected by the Departmental Head of the Department of Personnel Management.

10. It will be observed that by virtue of Section 56(2)(b) the compulsory retirement age for an officer of the Public Service is, subject to two qualifications, 60. The two qualifications relate to an officer who is aged between 49 and 60. First he is entitled to retire if he desires to do so (Section 56(1)). Secondly "he may be retired", ie he can be forced to retire, by the Secretary for Personnel Management (Sections 56(2)(a) and 56(3)).

11. This means that if Section 56 were the applicable law Mr Sisipa fell within the age bracket of 49 to 60 that made him susceptible to compulsory retirement. It would have been lawful for him to be retired at the age of 57. It is also worth noting that in 2006 (prior to a change in the law effected by Act No 22 of 2010) by virtue of Section 12 (retirement) of the Correctional Service Act the retirement age of the Commissioner of the Correctional Service was 55, subject to extension for special reasons in a particular case to the age of 60. This reinforces the observation made earlier that there was nothing unreasonable or unusual about requiring a member to retire at the age of 57. Ground 2 is refused.

CONCLUSION

12. As both grounds of judicial review have been refused the application for judicial review must fail. As to costs, normally the unsuccessful party (here, the plaintiff) would be subject to an order for costs. However, I will order that the parties bear their own costs, for two reasons.

13. First, because of the uncertainty, that has been allowed to develop, about the retirement age of members of the Correctional Service and other terms and conditions of their employment. It is unacceptable that the law on these issues is unclear. There is an urgent need for the terms and conditions of members to be clarified and spelt out clearly as is contemplated by Section 30 of the Correctional Service Act. Mr Sisipa is a victim of this uncertainty and it was reasonable for him to challenge by judicial review the decision to retire him.

14. Secondly Mr Sisipa was treated poorly by an organisation, a disciplined force, to which he had given 37 years of service. The court has not been informed of any consultation with him about his retirement.

15. The Commissioner's notice appears to have been given without warning. This is shabby treatment to mete out to any long-serving member, let alone one who had risen to a senior rank and was in charge of one of the biggest correctional institutions in the country.

16. The injunction under which Mr Sisipa has been occupying State-owned accommodation will be dissolved. He will be allowed one month to vacate the premises.

ORDER

(1) The application for judicial review is refused.

(2) All relief sought in the plaintiff's statement under Order 16, Rule 3(2)(a) of the National Court Rules is refused.

(3) The injunction of 19 October 2007 is dissolved with effect from midday on 20 November 2012.

(4) The parties shall bear their own costs.

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

Judgment accordingly.
____________________________

Narokobi Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants