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Andrias v Kereme [2020] PGNC 21; N8190 (14 January 2020)

N8190

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 558 of 2014

BETWEEN:
JOHN ANDRIAS as the Secretary for the
Department of Trade, Commerce & Industry
Plaintiff

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

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Thompson J
2018: 13^th December
2019: 14^th January

JUDICIAL REVIEW of Public Services Commission decision – Whether officers appeal to PSC made out of time – Whether PSC’s decision made out of time - Section 18 (2) (3) of Public Services (Management) Act.

Counsel:

Mr L Kandi, for the Plaintiff
Mr N Yanu, for the Defendant

14^th January, 2020

1. THOMPSON J: The officer, John Napu, had been employed as a Public Servant Grade 14 in the Department of Trade, Commerce & Industry, when on 24 April 2001 he was appointed by the Minister as the Registrar of Co-operative Societies, pursuant to Section 2 of the Co-operative Societies Act. He signed a 3 year contract of employment from 25 April 2001 to 24 April 2004.
   
2. On 27 December 2001 his appointment was revoked by the Minister. It seems that the officer then resumed his former position, but as a Grade 14 public servant was a lower position than that of Registrar, the officer issued legal proceedings against the State claiming damages for wrongful termination. For reasons which are not apparent, the State eventually agreed to settle the officer’s claim by payment of the balance of his 3 year contract. The officer’s contract of employment expired on 25 April 2004. On 22 June 2004 the officer and the State executed a Deed of Release whereby in consideration of payment of the balance of the contract, of K178,844, the officer released the State from all liability arising out of the termination of his employment.
   
3. Although the officer resumed his former Grade 14 position and continued to receive his Grade 14 salary, the Plaintiff found that the officer did not actually attend work or carry out any employment duties. After issuing several warnings to him, the officer was eventually charged, suspended and finally terminated on 9 August 2005. The officer was subsequently paid out all his entitlements.
   
4. On or about 3 October 2006 the Plaintiff received a letter from the First Defendant, summoning it to appear at a hearing on 5 October 2006 concerning a “review of a personnel matter” between the Plaintiff and the officer. The Plaintiff duly appeared on that date, and on several subsequent dates in October 2006 and March 2007. The Plaintiff also submitted a written response on 19 March 2007. This response was detailed, and amongst other matters, drew the First Defendant’s attention to the fact that the officer’s appeal had been lodged more than 60 days after his termination and was therefore out of time, in breach of Section 18 (2) (b) of the Public Services (Management) Act, and that the First Defendant had not made a decision within 90 days of receiving the appeal and was therefore out of time, in breach of Section 18 (3) (d) of the Act. The Plaintiff’s response further drew the First Defendant’s attention to the facts leading up to the termination, the Deed of Release, and the previous payment of all salaries and entitlements.
   
5. No response was received, and the Plaintiff heard nothing further until on or about March 2014, when the Plaintiff received a letter from the First Defendant dated 24 February 2014 containing its decision on the officer’s appeal. The First Defendant purported to annul the decision made by the Plaintiff in December 2001 to terminate the officer’s employment, as well as to annul the First Plaintiff’s decision in August 2005 to terminate his employment. The First Defendant purported to order the officer’s reinstatement to the position of Registrar of Cooperative Societies with back pay of salary and allowances.
   
6. The Plaintiff issued these judicial review proceedings on 14 August 2014, seeking to review the First Defendant’s decision. As well as challenging the reasons for the decision, the Plaintiff challenges the First Defendant’s jurisdiction to hear the officer’s appeal, and to make a decision on that appeal.
   
7. In relation to the First Defendant’s decision, the Plaintiff has shown that, prima facie, the First Defendant failed to attach any or any sufficient weight to relevant considerations, such as the Deed of Release settling all liability arising out of the revocation of the officer’s appointment, the valid grounds for the subsequent termination, the costs implications of ordering reinstatement and pay back to 2001, and the legal impossibility of the Plaintiff being able to reinstate the officer to the position of Registrar when only the Minister had the statutory power to make an appointment. On the face of it, part of the decision was made ultra vires, and the cumulative effect of all the parts of the decision was to make it unreasonable in the Wednesbury sense.
   
8. However, it is not necessary to make findings on those matters, because the preliminary issue is whether or not the First Defendant had the jurisdiction in the first place to hear the appeal, and then to make the decision.
   
9. The first decision reviewed by the First Defendant was said to be the Plaintiff’s decision of 31 December 2001. As the officer’s appeal was not lodged with the First Defendant until 14 March 2006, it was plainly more than 60 days after the Plaintiff’s decision. The First Defendant could only have jurisdiction if the Chairman had waived the delay. The First Defendant’s decision does not state either that the officer applied for a waiver or that he was granted a waiver. On the face of the decision, therefore, the appeal was out of time, and the First Defendant had no jurisdiction to consider it. The First Defendant produced no evidence to show that there had been a waiver, and so the First Defendant could not hear the appeal.
   
10. The second decision reviewed by the First Defendant was said to be the Plaintiff’s decision of 9 August 2005. Again, as the officer’s appeal was not lodged until 14 March 2006, it was more than 60 days after the Plaintiff’s decision, on the face of it the appeal was out of time, the First Defendant’s decision does not state that the officer either applied for or was granted a waiver, and so the First Defendant could not have heard the appeal.
    
11. Next, the decision on both appeals was made on 24 February 2014, nearly 13 years after the first decision and nearly 9 years after the second decision, and most relevantly, nearly 8 years after the officer’s appeal was received by the First Defendant.
    
12. The First Defendant’s decision was plainly made more than 90 days after receipt of the appeal, and was out of time. The decision does not state either that an extension was applied for, or was granted. On the face of it, the decision was out of time and the First Defendant had no power to make it.
    
13. In his affidavit filed on 9 November 2018, the First Defendant stated that on 8 April 2013, an extension was applied for, on the basis that the First Defendant had done nothing about the matter due to its own negligence. The First Defendant said that he agreed for the 90 days to be extended.
    
14. However, there are several reasons why this does not amount to an extension of time up to 24 February 2014.
    
15. First, the evidence shows that the delay was not caused by circumstances which were not within the First Defendant’s control. On the contrary, the delay was entirely due to circumstances within its control, namely, its negligence and inefficiency in handling the appeal.
    
16. Secondly, Section 18 (3) (d) is intended to provide that a decision is made promptly, by prescribing a 90 day limit. That is the maximum period in which a decision can be delivered. If an extension is granted, it could only be for a further 90 day period. It would not make sense for the Act to mandate that a decision be delivered within a certain time limit, which could then be extended indefinitely so that there was no time limit at all. The First Defendant might be able to grant more than one extension, if it could show that the further delay was due to circumstances beyond its control, but it cannot grant an indefinite extension. That would defeat the purpose of the 90 day time limit prescribed by the Act.
    
17. After 90 days had elapsed from 14 March 2006, the First Defendant should have applied for an extension. It did not do so, and in fact did not apply until over 7 years had elapsed. It is possible that the First Defendant’s jurisdiction to make a decision had already lapsed in 2006. At its highest, the extension which was granted on 8 April 2013 would be taken to mean an extension of 7 years and 90 days.
    
18. The First Defendant did not deliver its decision within 90 days of being granted the extension on 8 April 2013. It therefore no longer had jurisdiction to make a decision.
    
19. Further, even if the 90 day time limit had been validly extended, it was not stated in the decision. Under the Act, a decision must be made within 90 days of receipt of the appeal, and if it is not made within time, then prima facie it is not a valid decision. In order to establish its validity, the decision must show that an extension was lawfully granted.
    
20. The Defendants submitted that the extension given by the PSC in 2013, had the effect of not only extending the past delay of over 7 years, but also extended the time indefinitely into the future, to when the decision was finally delivered. This cannot be correct, as any extension of time can only be granted on application by the PSC showing that the delay is due to circumstances beyond its control. Until those circumstances exist, an extension cannot be given.
    
21. If the Defendants submission was accepted, there would be no point in having a time limit at all. The Defendants further submitted that the waiver did not have to be contained in the PSC decision, it could be implied by virtue of the fact that the hearing had proceeded.
    
22. Again, if this was accepted, there would be no point in prescribing a time limit at all. Because a PSC decision is on the face of it not valid if it was heard after the 60 day limit or delivered after the 90 day limit, it must follow that the decision has to contain evidence that a waiver and an extension had been granted.
    
23. In Henry Bailasi & Anor v Rigo Lua & Ors (2013) PGNC 304, the Court found:
    

“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 ... was made in excess of its jurisdiction.”

24. Because a Public Services Commission 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 – See Allan Pinggah v Margaret Elias & Ors (2005) PGNC 107.
    
25. In James Amuna v Rapilla Manaseh & Ors (2015) PGNC 163, the Court considered the exception in Section 18 (3) (d) (i), and held that the PSC must produce evidence of the reason why the decision could not be made in 90 days. The Court went further and found that the evidence - of the reason why the decision could not be made in 90 days due to circumstances beyond its control - must be before the Court, and must also be stated in the PSC decision.
    
26. As a PSC decision is prima facie invalid if it is made outside the 90 day period, I respectfully agree with the view that the fact that an extension was granted, and the reasons for the extension, must be included in the decision. I adopted that view in the recent cases of Ilaiah Begilale & Beni Sarea v National Museum & Art Gallery, in OS (JR) 345 and 347 of 2016, decisions delivered on 2 November 2018.
    
27. The Defendants also submitted that because the proceedings were not issued within 30 days of the PSC decision, they were invalid. In my view, that is not the correct interpretation of Section 18 (3) (d) of the PSM Act. This section simply provides that after that date, the decision is binding. It does not prevent the decision from subsequently being challenged by way of judicial review. In Francis Damem v Jerry Tetaga & Ors (2005) PGNC 57, Injia DCJ rejected the same argument that judicial review had to be brought within 30 days. I respectfully adopt his opinion that it is “... not open to read into the provisions of Section 18 (3) (d) (ii) the interpretation advanced. To do so would in effect be to insert a new provision in Section 18 (3) (d) (ii) which does not exist. This Court has no power to do that. It follows that the decision of the PSC is open to challenge in the National Court by a secretary of a department aggrieved by its decision, either within or after the 30 days, under the judicial review procedure.”
    
28. I therefore find that these judicial review proceedings were validly issued.
    
29. In the present case, as the officer’s appeal was lodged outside the 60 day period, with no evidence of a waiver, and as the decision was made outside the 90 day period, with no evidence of an extension, and with neither of these matters being contained in the decision, then the decision was made ultra vires Section 18 (2) (b) and Section 18 (3) (d) (i) of the Act, and cannot be valid.
    
30. For these reasons, I make the following orders:
    
    1. The Plaintiff’s application for judicial review is granted.
       
    2. The First Defendant’s decision dated 24 February 2014 whereby it annulled the Plaintiff’s decisions of December 2001 and August 2005, is removed into this Court by way of certiorari, and quashed.
       
    100. A declaration is granted that the Plaintiff’s decisions of 31 December 2001 to terminate John Napu’s position as Registrar of Co-operative Societies and the decision of 9 August 2005 to terminate John Napu’s employment, remain in effect.
         
    4. The First Defendant is to pay the Plaintiff’s costs.

___________________________________________________________
MS Wagambie Lawyers: Lawyer for the Plaintiff
Napu & Company Lawyers: Lawyer for the Defendants