N8087

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 761 of 2017

BETWEEN:
NATIONAL MUSEUM AND ART GALLERY
Plaintiff

AND:
DR. PHILIP KEREME
In his capacity as the Chairman of the
Public Services Commission
First Defendant

AND:
THE PUBLIC SERVICES COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
WILFRED OLTOMO
Fourth Defendant

Waigani: Thompson J
2019:  10th September, 5th November
JUDICIAL REVIEW – review of decision of public services commission to reinstate officer dismissed from public service - appeal to PSC by dismissed public servant – whether PSC has power to make decision to re-instated officer to substantive position beyond the required time limit -  grounds of review – consideration of - Commission did not comply with the prescribed time limit - lawful extension was not shown to have been granted – breach of time limit by PSC -  PSC decision made in excess of its’ jurisdiction - order in the nature of certiorari granted to remove the Defendant decision – judicial review granted
Cases Cited
Allan Pinggal v Margaret Elias and ors (2005) PGNC 107 
Henry Bailasi v Rigo Lua and Ors (2013) PGNC 304
Ilaiah Begilale v National Museum & Art Gallery and Anor (2018) PGNC 440.
James Amuna v Rapilla Manase and ors (2015) PGNC 163 

Counsel

Mr. J. Aku, for the Plaintiff
Mr. T. Torato, for First and Second Defendant
Mr. P. Pato, for the Fourth Defendant

5th November, 2019 
1.	THOMPSON J: BACKGROUND: The 4th Defendant had been employed by the Plaintiff in various capacities over the years.  In March 2008 he was appointed as the Human Resources Manager, but following an appeal by an unsuccessful applicant, his appointment was annulled by the Public Services Commission (“PSC”) on 9 December 2011.  As events had moved on in the three years prior to the PSC decision, the 4th Defendant’s previous position as Senior Technical Officer had already been advertised and filled by another person, and the Plaintiff had no vacant position for him.  The 4th Defendant therefore became an unattached officer, on full pay.
2.	In May 2012 the Plaintiff directed the 4th Defendant to take up a position which was vacant in Mendi, but the 4th Defendant declined.   It is not clear what then happened, but it appears that the 4th Defendant remained as an unattached officer until 2 May 2016, when he was appointed as Assistant Librarian in Port Moresby for three months, with no reduction in salary.  This appointment expired on or about 1 August 2016.  It appears that the 4th Defendant then reverted to being an unattached officer.
3.	On or about 19 September 2016 the Plaintiff laid charges against the 4th Defendant for breaches of the Public Services Management Act, and his employment was suspended on full pay.  
4.	On or about 5 October 2016 the Plaintiff issued a Notice that the charges had been sustained, and the penalty of dismissal was imposed.  The Notice stated that the 4th Defendant had a right to have the decision reviewed by the PSC.
5.	On 4 January 2017 the 4th Defendant applied to the PSC for a review of the decision.  On or about 28 August 2017 the PSC issued its Decision, annulling the Plaintiff’s decision, ordering the 4th Defendant to be reinstated with full back pay, and quite extraordinarily, further ordering that all the documents relating to the 4th Defendant’s dismissal be destroyed in his presence.
6.	On 26 September 2017 the Plaintiff issued these proceedings, seeking to judicially review and quash the PSC decision.
Grounds
7.	The Grounds for the Review are set out in the Statement.
8.	The first Ground is that the PSC erred in accepting and determining the 4th Defendant’s complaint, because it was lodged more than sixty days after the Plaintiff’s decision, in breach of S18 (2) (b) of the PSM Act, and the PSC Decision did not state in it that the Chairman had waived the time limit because the delay was beyond the 4th Defendant’s control.
9.	The next Ground is that the PSC erred in determining the complaint and issuing its decision more than ninety days after the complaint was received, in breach of S18 (3) (d) of the PSM Act, and the PSC Decision did not state in it that the Commission had extended the time limit because the delay was beyond its control.
10.	The final Ground is that the PSC Decisions to annul the dismissal and order reinstatement, were unreasonable in the Wednesbury sense.
Issues
11.	In relation to the first and second Grounds, the Defendants relied on the Affidavit of the 1st Defendant, the Chairman of the PSC, which was filed on 29 May 2018.  In this Affidavit, the 1st Defendant states that after receiving the 4th Defendant’s complaint on 6 January 2017, the PSC notified him that it was out of time, and advised him that he could apply for a waiver.  He says that on 17 January 2017 the 4th Defendant responded by giving reasons for his delay, and that after studying those reasons, the 1st Defendant granted a waiver on or about 2 February 2017.
12.	He goes on to say that after conducting the review, on 3 May 2017 the Commission extended the time limit for delivering a decision, because of the delay in conducting the hearing. 
13.	The Courts have considered the binding nature of a PSC Decision under S18 (3) (d) of the Act (see Allan Pinggal v Margaret Elias and ors (2005) PGNC 107, James Amuna v Rapilla Manase and ors (2015) PGNC 163 and Ilaiah Begilale v National Museum & Art Gallery and Anor (2018) PGNC 440).  Because a PSC Decision has serious policy, legal and administrative implications and consequences, the PSC decision-making process is carefully worded and expressed in clear and mandatory terms.  When an error of law is found to have been committed, the decision should be quashed.
14.	In James Amuna’s case, the court held that the PSC must provide evidence of the reason why the decision could not be made in ninety days.  The court went further and found that the evidence – of the reason why the decision could not be made in ninety days – must be before the court, and should also be stated in the PSC decision.  As neither of those matters had been done, the court found that the PSC decision was not binding.
15.	In view of the importance attached to the binding nature of a PSC decision, I respectfully agree that the PSC must provide evidence of the reasons why a decision could not be made within ninety days and that those reasons were beyond the PSC’s control, as prescribed by the Act.  I also respectfully agree with the finding that, as a PSC decision is prima facie invalid if it is made outside the ninety days period, the fact that an extension was granted and the reasons for the extension, must be included in the decision as an essential element of its’ validity.
16.	The Defendants rely on the 1st Defendant’s affidavit filed on 29 May 2018, to show that two extensions were granted, and the reasons for those extensions being allowed.
17.	First, the contents of the affidavit are of little probative value.  The affidavit was filed nine months after the PSC decision was delivered, and was only filed as part of the legal proceedings issued by the Plaintiff to challenge the PSC decision.  It would be similar to a Judge delivering a decision without giving any reasons, and then after the decision was appealed due to the failure to give reasons, the Judge then giving an affidavit in which he sets out his reasons.
18.	Next, the contents of the affidavit are not sufficient to establish that the 1st and 2nd Defendants complied with the mandatory requirements of S18 of the Act.
19.	In relation to the 4th Defendant’s complaint, the 1st Defendant says that he studied the reasons for delay given by the 4th Defendant, and granted a waiver.  However, the requirement under S18 (2) (b) is for the complainant to establish that the delay was beyond the 4th Defendant’s control.  The only statements in the complaint relating to delay, are in fact an explanation for his delay in or failure to respond to the Charges which had been laid against him, which were not relevant.  In relation to the delay in applying for a review, he merely says that after he was notified of his dismissal in October 2016, he wrote a letter to the Plaintiff on 17 October 2016 and another letter on 19 December 2016, to which no response was received.  The 4th Defendant was aware of the Plaintiff’s decision to dismiss him in October 2016.  The fact that he did not receive a response to his two letters complaining about the decision, does not show that the sixty-day review period passed due to circumstances which were beyond his control. 
20.	The 4th Defendant’s response to the 1st Defendant did not contain any material showing the circumstances from on or about 12 October 2016 to on or about 4 January 2017, which were beyond his control so as to prevent him from submitting his complaint to the PSC.  There was therefore no basis for the Defendants’ finding 4th Defendant had established that the delay was beyond his control.
21.	On this point, the Plaintiff submitted that the waiver that had not in fact been validly granted in any event, because the letter informing the 4th Defendant of the waiver was sent by a Commissioner rather than the Chairman.  That submission is rejected, as the Commissioner was only advising the 4th Defendant of a decision which had already been made by the 1st Defendant.
22.	In relation to the second decision, the 1st Defendant says that the Commission gave an extension because of “the delay in getting feedback from the respective parties”.  He says that the decision is set out in the Commission’s Minutes.  There were several deficiencies in the documents purporting to be the Minutes, which were annexed to his affidavit.  The cover page headed “Minutes of Commission Meeting No. 1 of 2017” is dated 3 May 2017, the next page is numbered “7” and sets out items 3.2.4 - 3.2.12, while the third page sets out item 3.4, is numbered “14” and is dated 12 May 2017.  The second page, which is numbered “7”, simply records that “the Commission endorsed the request for time extension of ninety days and beyond”.  There was no material showing the basis for the request for an extension of time, no material showing that the delay was beyond the control of the Commission, and as the Minute documents were incomplete, they have little probative value.
23.	I respectfully agree with the Court’s view in James Amuna’s case that the plain meaning of the legislation is for the Defendant’s decisions to be made within the prescribed initial or extended time limits, in order for those decisions to be binding. 
24.	In Henry Bailasi v Rigo Lua and ors (2013) PGNC 304, the Court found that the two time limits prescribed in S18 are matters that go to the jurisdiction of the Commission.  If there was no compliance, then the lawful waiver of both time limits was essential to the lawful exercise of the powers of the Commission.  I respectfully agree that these are essential elements of a lawful decision.
25.	Further, the Minutes of the Meeting not only failed to disclose the circumstances which were beyond the Commission’s control, but failed to give a specific date for the period of the extension.  It is not clearly worded, but appears to only say that the request for an extension of time was endorsed for “beyond” the ninety-day period.
26.	The prescribed ninety-day period expired on or about 6 April 2017.  We do not know if the Commission applied for an extension before the expiry of that time limit.  A further ninety days would have expired on or about 5 July 2017.  Even using the latest date on the Minute of 12 May 2017, a further ninety days would have expired on or about 11 August 2017.  The Decision was not delivered until 28 August 2017.
27.	Section18 (3) (d) of the Act does not prescribe the period in which the time limit may be extended.  However, it cannot be open-ended.  Where an Act prescribes a specific time limit of ninety days, the legislature is clearly intending that the decision be made within a short and definite period of time.  If the Commission had the power to extend that time indefinitely, without any limit, it would be the opposite of the purpose of the section of the Act.  When exercising its discretion under S18 (3) (d) of the Act, it must be exercised in the context of the prescribed requirements, and the Commission is not given unlimited power to extend the time limit.  
28.	In this case, it is not clear if the decision is stating that there was a request for a time extension of ninety days or some other period, in addition to the prescribed ninety days, or if there was a request for an extension of the ninety days, or if the endorsement was for an extension of “ninety days and beyond” or just “beyond ninety days”.  The last interpretation would be in excess of jurisdiction, in that the Commission could not have the power to grant an open-ended extension of time which would in effect be no time limit at all.   On the earlier interpretations, the Commission failed to comply with either the prescribed ninety-day limit, or an extended ninety day period.
29.	The Commission did not comply with the prescribed time limit, and a lawful extension was not shown to have been granted.  As in Henry Bailasi’s case, because the time limit was breached, the Commission’s decision was made in excess of its’ jurisdiction. 
30.	In addition to these matters, the two purported extensions of time were not included in the Commission’s decision.  The wording of S18 (2) and (3) is that the complaint shall be made, and the decision shall be made, within the prescribed time limits, except where the time limit has been waived or extended in accordance with the prescribed requirements.  Where a complaint is not made within sixty days, and the decision is not made within ninety days, then prima facie the complaint and decision are made in breach of the requirements of the Act, and are not valid.  In order to be valid, the decision must show on its face that it has been made within a time which has been waived or extended in accordance with the prescribed requirements.
31.	In the present case, the decision to accept the complaint and to make a decision on the complaint, were made outside the prescribed time limits.  The decision did not contain in it any reference to applications having been made and granted to waive and extend the time limits.  On its’ face, the decision is in-valid.
32.	I do not accept the argument, that almost a year after the decision was delivered, and after legal proceedings had been issued challenging that decision for failing to give reasons, the decision-maker can purport to give reasons which were not included in the decision.  
33.	The 1st Defendant says in his affidavit that he is not required by law to inform anybody of his decision to waive the sixty-day time limit.  He does not say anything about the ninety-day time limit.  However, it is clear why he is in fact required to inform the parties of the decisions which have been made.  The decisions on waiver and extension of the time limits are essential parts of a valid decision. If the Defendants had included in their decisions, references to the 4th Defendant’s application for a waiver and the 2nd Defendant’s application for an extension of time, and set out the decisions which had been made, then the Commission’s decision would have shown on its face that it complied with the prescribed requirements.  Because it did not do so, the Plaintiff issued legal proceedings to challenge the validity of the decision.  It is now too late for the Defendants to attempt to rectify their omission.
34.	In relation to the final Ground, even if the Commission had validly found that there were errors in the Plaintiff’s decision to dismiss the 4th Defendant, I accept the submission that it was wholly unreasonable to order the 4th Defendant’s reinstatement.  The 4th Defendant had not held a substantive position since 2011, and was only an unattached officer.  It is not conducive to good administration to order a person to be reinstated when there was in fact no position to which he could be reinstated.  
35.	It was also wholly unreasonable to order that the documents relating to the 4th Defendant’s dismissal be destroyed in his presence.  It is difficult to conceive of any rational basis for ordering the destruction of administrative records which accurately recorded events and processes which had actually taken place.
36.	The Defendants’ power under S18 (3) (c) (ii) is limited to upholding, annulling or varying the Plaintiff’s decision.  A new decision to order the destruction of records could not on any view be regarded as a legitimate variation of the Plaintiff’s decision to uphold the charges and impose a penalty of dismissal.  An order for the destruction of records is completely outside the powers of the Commission.
37.	In relation to costs, the 1st – 3rd Defendants’ appeared to have acted in good faith in conducting their review.  The 4th Defendant appears to have been unemployed since his termination, and has no capacity to meet an order for costs.  
Conclusion
38.	I find that the Defendant’s decision issued on or about 28 August 2017 determined a complaint which had been lodged more than sixty days after the Plaintiff’s decision, and was a decision on that complaint which was made more than ninety days after the complaint was received, thereby breaching S18 (2) (b) and S18 (3) (d) of the PSM Act.
39.	I find that the PSC erred in accepting and determining the 4th Defendant’s complaint more than sixty days after it was received, without having made a finding in its decision that the 4th Defendant had applied for a waiver, that the 1st Defendant had been satisfied that the delay was due to circumstances beyond the 4th Defendant’s control, and that a waiver had been granted.
40.	I find that the PSC erred in determining the complaint and issuing its decision more than ninety days after the complaint was received, without finding in its decision that the Commission had applied for an extension of time, and on being satisfied that the delay was beyond its control, an extension had been granted, or for what period it had been granted.
41.	I find that the decision to order reinstatement in August 2017, when the 4th Defendant had not held a substantive position since December 2011, was unreasonable in the Wednesbury sense.
42.	I find that the decision to order that all the documents relating to the 4th Defendant’s dismissal be destroyed in his presence, was ultra vires the Defendant’s powers.
43.	For these reasons, I make the following orders:
(a)	An order in the nature of certiorari is granted to remove the Defendants’ decision made on 27 August 2017 whereby it annulled the Plaintiff’s decision to dismiss the 4th Defendant, ordered the 4th Defendant’s reinstatement, to be paid retrospective salary and entitlements, and that all documentation relating to his dismissal be destroyed in his presence, into the National Court for the purpose of it being quashed.
	(b)	The Defendant’s said decision made on 27 August 2017 is   			quashed.
 	(c)	Each party is to pay its own costs.
_________________________________________________________
Manase & Co. Lawyers:  Lawyers for the Plaintiff	
Public Services Commission: Lawyers for First & Second Defendant
Parker Legal:  Lawyers for Fourth Defendant