N5145
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 754 OF 2011

HENRY BAILASI, PROVINCIAL ADMINISTRATOR, MILNE BAY PROVINCE
First Plaintiff

MILNE BAY PROVINCIAL GOVERNMENT
Second Plaintiff

V

RIGO LUA, CHAIRMAN, PUBLIC SERVICES COMMISSION
First Defendant

ERIC MERPE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2013: 19 March, 15 April

JUDICIAL REVIEW – whether decision of Public Services Commission on review of a personnel matter was in excess of jurisdiction – Public Services (Management) Act 1995, Section 18 – whether decision so unreasonable no reasonable decision-maker could have made it – remedies – whether appropriate to quash decision of Public Services Commission found to be unreasonable.

The Public Services Commission, acting on a complaint by an unsuccessful applicant for vacant positions within a provincial administration, reviewed the selection decisions of the provincial administration and decided that the appointments to four positions were annulled, that those positions must be readvertised and that the selection panel must be reconstituted. The provincial administrator and the provincial government applied for judicial review of the decision of the Commission, arguing that it was: (1) made in excess of its jurisdiction (contrary to time limits in the Public Services (Management) Act); (2) wrong in law as the decision was based on errors of fact and misapprehension of the law; (3) ultra vires, in that was not authorised to make such a decision; and (4) so unreasonable that no reasonable decision-making authority could have made it.

Held:

(1)	The decision of the Public Services Commission was made in excess of its jurisdiction in that time limits for making of the complaint and for making the decision were not met.

(2)	The decision was wrong in law in that the Commission failed to take account of relevant considerations in particular "the cost implications" of its decision, and each of the three reasons that it gave for annulling the Selection Committee's decision was affected by error of law or fact.

(3)	The nature and effect of the decision was not ultra vires the power of the Public Services Commission.

(4)	The decision was in all the circumstances so unreasonable that no reasonable decision-maker, being alert to the statutory time limits and the duty to consider all the facts relative to the matter and having conducted a proper inquiry into the complaint, could have made the decision that it made.

(5)	Three of the four grounds of review were upheld and the Court exercised its discretion to declare the decision under review null and void and to quash the decision.

Cases cited
Papua New Guinea Cases:

Aegaiya v Baki and The State (2009) N3693
Ambrose Vakinap v Thaddeus Kambanei (2004) N3094
Dale Christopher Smith v Minister for Lands (2009) SC973)
Isaac Lupari v Sir Michael Somare (2008) N3476
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Paul Asakusa v Andrew Kumbakor (2009) N3303
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975
Tau Kamuta v David Sode (2006) N3067

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Counsel

D Y Liosi, for the plaintiff
T M Kamuta, for the third defendant\

15th April, 2013

1. CANNINGS J: The plaintiffs, the Milne Bay Provincial Government and the Provincial Administrator Henry Bailasi, are applying for judicial review of a decision of the Public Services Commission, which upheld a complaint by an unsuccessful applicant for vacant positions within the provincial administration. The decision was that:

•	the decisions of 2 July 2010 of the Milne Bay Provincial Selection Committee as to appointments to four top management positions (three District Officers and one District Planner) were annulled;
•	those positions had to be readvertised;
•	the selection panel had to be reconstituted;
•	acting appointments had to be made to the four positions; and
•	selections must be made in strict compliance with the procedures of the Organic Law on Provincial Governments and Local-level Governments, the Public Services (Management) Act and the Public Service General Orders.

2. The plaintiffs say that there was nothing wrong about the process that was followed or the decisions of the Selection Committee, that the decision of the Commission was wrong in law and that adhering to it will involve unnecessary work, time and expense. They seek a declaration that the Commission's decision is wrong in law and an order quashing it.

THE GROUNDS OF REVIEW

3. Identification of the grounds of review has not been a straightforward process as they are not clearly set out in the plaintiffs' statement under Order 16, Rule 3(2)(a) of the National Court Rules. The Order 16 statement is a critical document in any judicial review. It must set out precisely the grounds of review relied on to vitiate the decision being challenged and the relief being sought. The grounds must be recognised by law as proper grounds upon which judicial review is available and refer to the statutory provision or common law duty alleged to have been breached (Paul Asakusa v Andrew Kumbakor (2009) N3303). The grounds should be set out separately from the relief sought. Here the grounds are intermingled with the relief being sought and are not set out precisely. Nevertheless it is possible to discern four distinct grounds of review. The plaintiffs argue that the decision of the Public Services Commission was:

(1) made in excess of its jurisdiction contrary to time limits in the Public Services (Management) Act (paragraphs 3(a)(ii)(a) and (c) of the Order 16 statement);

(2) wrong in law as the decision failed to take account of relevant considerations and was based on errors of fact and law (paragraphs 3(a)(ii)(b), (d), (e), (f), (g) and (h) of the Order 16 statement);

(3) ultra vires, in that it was not authorised to make such a decision (paragraphs 3(a)(ii)(i) and (j) of the Order 16 statement); and

(4) so unreasonable that no reasonable decision-making authority could have made it (paragraph 3(a)(ii)(k) of the Order 16 statement).

(1)	EXCESS OF JURISDICTION

4. The plaintiffs argue that the Public Services Commission exceeded its jurisdiction by failing to adhere to time limits imposed by Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act, which states:

(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2) A complaint referred to in Subsection (1) shall be—

(a) in writing; and

(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and

(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.

(3) The procedure to be followed in a review under this section is as follows:—

(a) the Commission shall summons—

(i) the Departmental Head of the Department of Personnel Management or his delegate; and

(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and

(iii) the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;

(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;

(c) the Commission shall—

(i) consider all the facts relative to the matter, including—

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make; and

(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and

(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);

(d) the decision of the Commission under Paragraph (c)(ii)—

(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(ii) shall become binding after a period of 30 days from the date of the decision.

5. Section 18 sets five time limits:

•	The complaint by an officer that gives rise to the Commission's jurisdiction under Section 18 must be made within 60 days of the date on which the decision the subject of the complaint was made, subject to the discretion of the Chairman of the Commission to waive the time limit where the delay was beyond the control of the complainant (Section 18(2)(b)).

•	A person summoned under Section 18(3)(a) shall make themselves available to appear before the Commission within 14 days of the date of the summons (Section 18(3)(b)).

•	The decision of the Commission to vary, uphold or annul the decision the subject of the complaint shall be made within 90 days from the date of receipt of the complaint subject to the discretion of the Commission to extend the period where the reason for the delay is beyond the Commission's control (Section 18(3)(d)(i)).

•	The Commission must give immediate notification of its decision to the persons summoned to appear before it (Section 18(3)(c)(iii)).

•	The Commission's decision becomes binding 30 days after the date of the decision (Section 18(3)(d)(ii)).

6. I uphold the plaintiffs' argument that two of the time limits were breached: the first and the third. The date of the Selection Committee's notification to the complainant Mr Merpe that his applications were unsuccessful was 2 July 2010. His complaint was made on 19 October 2010, 109 days after the date of the decision being complained about. There is no evidence that the Chairman of the Commission waived the time limit of 60 days in accordance with Section 18(2)(b). The delay of 49 days has not been accounted for. The time limit set by Section 18(2)(b) was breached.

7. The other time limit was the period given to the Commission to make a decision. It received the complaint on 19 October 2010 and made its decision on 3 May 2011, 196 days later. There is no evidence that the Chairman waived the time limit of 90 days in accordance with Section 18(3)(d)(i). The delay of 106 days has not been accounted for. The time limit set by Section 18(3)(d)(i) was breached.

8. The two time limits are matters that go to the jurisdiction of the Commission. Adherence to or lawful waiver of both time limits were essential to the lawful exercise of the powers of the Commission. As both time limits were breached the Commission's decision of 3 May 2011 was made in excess of its jurisdiction. The first ground of review is upheld.

(2)	WRONG IN LAW

9. I uphold all the arguments advanced under this ground. The Commission failed to take account of relevant considerations in particular "the cost implications" of its decision, which it is obliged by Section 18(3)(c)(i)(C) to consider. As I indicated in Paul Dopsie v Jerry Tetaga (2009) N3720 the Commission must by virtue of Section 18(3)(c)(i) consider "all the facts relative to the matter", which includes the matters (A), (B) and (C). Though it is not necessary for the reasons for decision to expressly identify those matters, the record of the decision must demonstrate (even if only impliedly or tacitly) that the Commission has in fact considered the prescribed matters. Here it cannot reasonably be inferred that the Commission gave any consideration to the cost implications of its decision.

10. Next I find that each of the three reasons that the Commission gave for annulling the Selection Committee's decision was affected by error of law or fact. The first reason given was that the Selection Committee breached the principles of natural justice by not giving Mr Merpe an opportunity to be heard on allegations of misconduct. This was an error of law as Mr Merpe was a mere applicant for a number of positions, the Selection Committee was not making any decision prejudicial to his interests and it did not unfairly take into account that in 2008 he had been charged with (but found not guilty) of a number of disciplinary offences. The Selection Committee was entitled to make an assessment of each applicant's character and reputation and was not obliged to give any applicant an opportunity to be heard if it was proposing to reject an application on the basis of an adverse assessment of such matters.

11. The second reason – that the Selection Committee did not compile a selection report – was an error of fact. A selection report was compiled and it has been admitted into evidence in these proceedings. It appears to be set out in a conventional form and to be comprehensive.

12. The third reason – that the Selection Committee was improperly constituted as it had no representatives of the Department of Personnel Management or the Department of Provincial and Local-level Government Affairs – was also an error of fact. The Commission correctly pointed out that as the Selection Committee was deliberating on appointments of District Administrators it was essential for both Departments to be represented, due to the requirements of the Organic Law on Provincial Governments and Local-level Governments, Section 73(3), the Public Services (Management) Act, Section 61 and the Public Service General Orders, No 5.5. I find that these requirements were complied with. The report of the Selection Committee shows that it was constituted by:

•	Henry Bailasi, Provincial Administrator, Chairperson;
•	Tau Vali, Department of Provincial and Local-level Government Affairs representative; and
•	Agnes Friday, Department of Personnel Management representative; and
•	Carolyn Mom, Human Resources Adviser; and
•	Rachael Ou, Acting Human Resources Manager.

13. The second ground of review is upheld.

(3)	ULTRA VIRES

14. Two arguments are advanced in support of the proposition that the Commission acted ultra vires (beyond its powers):

(i) The process of advertising, selection and recruitment to the said positions were completed by the plaintiffs following proper procedures. There is therefore no need to go through the process again as it will only disrupt delivery of services and is against principles of good governance. This is ultra vires powers of the first defendant.

(j) The first defendant had no powers under the law to issue such instructions to either make acting or substantive appointments. Such action is ultra vires powers of the first defendant.

15. I find the first argument quite difficult to appreciate. In fact it is not a ground of review at all, so it must be disregarded.

16. The second argument makes more sense. It is argued that the Commission lacked power to annul the decisions of the Selection Committee or to decide that the positions be readvertised or that acting appointments be made. However the argument is not persuasive. The Commission had power arising from Section 18(1) of the Public Services (Management) Act, having received a complaint by an officer of the National Public Service, to "review a decision on a personnel matter relating to appointment … connected with the National Public Service". It exercised that power by conducting a review. It had the consequential power under Section 18(3)(c)(ii), having conducted a review, to "make a decision to uphold, vary or annul the decision the subject of the complaint". It exercised that power by annulling the selection committee's decisions that were the subject of the complaint.

17. There is an argument that having decided to annul the selection decisions, the Commission could not go further and decide, as it did, that the positions had to be readvertised, the selection panel had to be reconstituted, acting appointments had to be made and future selections must be made in strict compliance with the procedures. However I consider that those sorts of decisions are incidental to the power to annul the selection decisions. They are so much part and parcel of the power of annulment to make it unnecessary for the Act to expressly state that the Commission is empowered to make them. Acts of Parliament should be interpreted in such a way as to make them workable in practice. The powers of the Commission were substantially expanded by the 2003 amendments to the Public Services (Management) Act). Prior to those amendments the Commission only made recommendations following a review of a personnel matter, not binding decisions (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094). A "decision" connotes a self-executing resolution of a complaint, which implies that the Commission will be able through its decision to resolve the complaint and show the way forward to those affected by the review, by deciding, not just recommending, what has to be done to correct the decision that has been reviewed.

18. I find that no aspect of the decision of the Commission was beyond it powers. Errors of law and fact were made in the course of making that decision (as outlined in other grounds of review) but the nature and effect of the decision were within the Commission's powers. The Commission did not act ultra vires in the manner contended for by the plaintiffs. The third ground of review is dismissed.

(4)	UNREASONABLENESS

19. 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 Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 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, Tau Kamuta v David Sode (2006) N3067, Paul Dopsie v Jerry Tetaga (2009) N3720.)

20. If the answer is yes the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.

21. I consider that the test is satisfied in this case. The Commission exceeded its jurisdiction by breaching two significant time limits in the legislation that prescribes its powers, functions, duties and responsibilities. It made fundamental errors of fact and law which resulted in an absurd decision to require the plaintiffs to go to the time and effort and expense of readvertising four positions. This was prejudicial to the interests of the persons who had been selected for those appointments and created unnecessary uncertainty in the management of all districts in the province. All of this came about because one unsuccessful applicant complained that he was not treated fairly. The Commission's decision was in all the circumstances so unreasonable that no reasonable decision-maker, being alert to the statutory time limits and the duty to consider all the facts relative to the matter and having conducted a proper inquiry into the complaint, could have made the decision that it made.

WHAT ORDERS SHOULD BE MADE?

22. It is now time to consider the consequences of upholding three of the four grounds of review. It does not necessarily follow that the court will make the declarations sought by the plaintiffs (Aegaiya v Baki and The State (2009) N3693). 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 that is done the second stage of the process is persuading the court that a remedy should be granted (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973). Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476).

23. The Commission has been found to have exceeded its jurisdiction, made a number of errors of fact and law and to have made a decision that was unreasonable. There is no good reason that the decision should be allowed to stand. It must be declared null and void and quashed. Costs will follow the event except that the complainant Mr Merpe, the second defendant, will be excluded from the costs order. It was his complaint that led to this case but he was quite entitled to complain and having been named as a defendant and been served with the court process he has evidently elected not to participate in the trial. His decision not to be directly involved is understandable and it was not necessary for him to be involved.

ORDER

(1)	It is declared that the whole of the decision of the Public Services Commission conveyed by a letter dated 3 May 2011 to the plaintiffs, annulling the selection decisions of the Milne Bay Provincial Selection Committee, ordering re-advertisement of four positions, reconstitution of the selection panel and effecting acting appointments, is null and void.

(2)	It is ordered for the avoidance of doubt that the decision of the Public Services Commission referred to in order (1) is quashed.

(3)	Costs of these proceedings shall be paid by the first and third defendants to the plaintiff on a party-party basis to be taxed if not agreed.

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

Judgment accordingly.
______________________________________________________________
Liosi Lawyers: Lawyers for the plaintiff 
Solicitor-General: Lawyer for the third defendant