N9615

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 566 OF 2019

BETWEEN:
DR. WILLIAM NIMLE MOL
Plaintiff

AND:
DR. JOSEPH APPA, Chief Executive Officer, Eastern Highlands Provincial Health Authority
First Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Second Defendant

Goroka: Mugugia, AJ  
2022: 25, March, 2, May
JUDGMENT – Plaintiff a public servant - termination of his written employment contract - claim for unlawful termination and defamation – alleged breach of Public Service General Orders –– whether public or private law applies to the Plaintiff’s written employment contract – consideration of tests to apply – termination is of a public law nature – whether correct mode of proceedings used – appropriate mode of proceeding is judicial review – proceedings dismissed.  
Cases Cited:

Saiho v. Solomon (2016) N6474.
Luma v. Kali (2014) SC1401. 

Counsel:

K. Lafanama, for the Plaintiff 
V. Mauta, for the Defendants 
.
JUDGMENT
2 May, 2022 
1. MUGUGIA, AJ: The Plaintiff is a public servant who was employed as a Specialist Medical Officer at the Goroka General Hospital. An Employment Agreement with the State made on 30 November 2008 was signed between the Plaintiff, the Secretary for the Department of Health, and the First Defendant who is the Chief Executive Officer of the Goroka General Hospital. The Plaintiff was terminated on 19 August 2015, and put off the payroll after disciplinary charges of sexually abusing patients were laid against him. He filed his writ of summons on 15 May 2019, alleging breaches of the Public Service General Orders by the Second Defendant for failing to adhere to the requirements of the Public Service General Orders, and therefore his suspension and termination that followed were unlawful. The Plaintiff also alleges defamation. He claims damages, unpaid salaries and entitlements, special damages and other relief in his Prayer for Relief. 
2. The trial of the matter was conducted on 25 March 2022. It was a trial by way of affidavit and written submissions. The parties’ evidence were tendered without objections. The Plaintiff’s Affidavits were the Affidavit of Dr William Nimle Mol sworn and filed on 29 September 2020 marked as Exhibit “P1”, and the Additional Affidavit of Dr William Nimle Mol sworn and filed on 24 September 2021 marked as Exhibit “P2”. The Defendants’ affidavit was the Affidavit in Support of Max Manape sworn on 28 September 2021 and filed on 29 September 2021 marked as Exhibit “D1”.
  3. The parties filed written submissions for the trial. 
PLAINTIFF’S CASE AND SUBMISSIONS  
4. This is the Plaintiff’s case. He was an employee of the Second Defendant. He was employed by virtue of an Employment Agreement which was renewable after 3 years from 30 November 2008 to 19 August 2015. He commenced employment with the Second Defendant on 30 November 2008 by signing his first contract (Performance Based Contract) which expired on 29 November 2011. His contract was extended for another 3 years from 30 November 2011 to 29 November 2014 (second contract). His contract was further extended from 30 November 2014 to 29 November 2017 (third contract). The contract was terminated on 19 August 2015 with 27 months remaining. The contract was prematurely terminated and he was put off the payroll following the termination.
5. The Employment Agreement signed by the Plaintiff is governed by and made in accordance with the relevant provisions of the Public Services (Management) Act 1995, and the Public Service General Orders. The Employment Agreement was signed between the State and the Plaintiff. Only the State has the power to determine the employment of the Plaintiff not the Second Defendant. 
6. The Plaintiff was referred to as a permanent public servant and a Senior Contract Officer entitled to proper notices as prescribed under General Order 9 of the Public Service General Orders, 4th Edition, 2012. The Plaintiff was served with an Internal Office Memorandum dated 15 June 2015 instead of a Notice of Suspension and Notice of Charge in the prescribed form under General Order 9. The Second Defendant failed to adhere to the requirements of the Public Service General Orders, and therefore his suspension and termination that followed were unlawful. 
7. Ms Lafanama of Counsel for the Plaintiff relied on her client’s affidavits tendered in Court (Exhibit “P1” and Exhibit “P2”), and her written submissions filed on 18 March 2022, and submitted as follows:
•	Notices were not issued to her client. Processes were not followed. The Defendants did not comply with Public Service General Order 9 in issuing the Notice of Suspension. Reference made to Clause 9.29 to 9.31. The Notice of Suspension or Notice of Charge under General Order 9 were not served on her client. 
When the contract is silent, the General Orders apply. Reference made to Lupari v. Somare (2008) PGNC 121. 

•	The termination process is not provided under the contract but under General Order 9. General Order 9.31 gives the power to terminate. 

•	The correct forms were not correctly served. The Notice of Dismissal was not in the correct form, and the Notice of Dismissal under s. 53 of the Public Services (Management) Act which was issued was for a non-contract officer. The Plaintiff was a Senior Contract Officer. Other notices were made pursuant to General Order 15. The Plaintiff is a public servant and the correct forms were not used by the Second Defendant.  
8. When asked by the Court whether her client was questioning the decision-making process involved, and whether judicial review is the correct mode of proceeding, Ms Lafanama agreed that judicial review is the correct mode of proceeding but submitted that the relief sought is the damages that arose out of her client’s unlawful termination for the 27 months remaining. Her client is not seeking reinstatement. Her client’s case falls under public law. However, he has the option to come to Court under private law. Although her client is a public servant and has avenues available, he is not restricted to bring the action by way of a writ of summons. He had the option to file a writ of summons or a judicial review. Her client has also pleaded a claim for defamation so he has filed a writ of summons. Her client has a private right and he is correctly before the Court. 
9. On the claim for defamation, the allegation is that following the Plaintiff’s arrest and charge, a defamatory publication against him went viral through social media and other professional websites accessed by professionals and public and private employers within this jurisdiction. Ms Lafanama submitted that the orders of the First Defendant acting as Chairman of the Board of the Second Defendant directed the officers of the Second Defendant to make the defamatory publication against her client. The defamatory publication was in line with the unlawful termination.        
DEFENDANTS’ CASE AND SUBMISSIONS 
10. Ms Mauta of Counsel for the Defendants relied on the Affidavit in Support of Max Manape sworn on 28 September 2021 and filed on 29 September 2021 which is marked as Exhibit “D1”, and her written submissions filed on 21 February 2022. The Defendants’ submissions are as follows:
•	The Plaintiff is not employed by the Second Defendant as contended by the Plaintiff. He is employed by the State.
•	The Plaintiff should be regarded as a public servant. He is subject to the Public Services (Management) Act 1995 and the General Orders.
•	The Plaintiff’s main argument is that he was not accorded the correct process. The Plaintiff’s allegation that the notices were not issued is not true. The evidence is in Dr Manape’s Affidavit in Support marked as Exhibit “D1”. Annexure “C” is the Notice to Show Cause, Annexure “G” is the Notice of Suspension, and Annexure “F” is a copy of the Notice of Dismissal under s. 53 of the Public Services (Management) Act. The Defendants did comply with the processes under General Order 9. The Defendants have complied with the requirements of the Public Service General Orders and the Performance Based Contract of Employment which was entered between the Plaintiff and the State.  
•	The Plaintiff’s contract is of public law. The contract was not a private contract. It is a contract under public law. The correct approach is by way of judicial review.  [Reference made to the case of Saiho v Solomon (2016) N6474].
•	The applicable case here is Joel Luma v. John Kali (2014) SC1401.
•	The issue is whether the Plaintiff has exhausted all available avenues in seeking remedy. Section 18 of the Public Services (Management) Act provides for the process where the Plaintiff should have utilised to exhaust the available avenue which he had at that time. [Reference made to the cases of Airi v. Bire (2020) N8227, Nii v. Manning (2020) SC1986 and Reu v. Simon (2020) N8552]. The case is prematurely before the Court. The Plaintiff is a public servant. Alternative processes or remedies are available to him. The matter should not be before the Court as it is. 
•	The Plaintiff’s submissions are from the bar table, and the Court should disregard these submissions. Evidence should be provided to prove what is pleaded.
•	The Defendants are not liable to pay damages.

ISSUE FOR DETERMINATION
11. The differing arguments raise the issue of whether the Plaintiff’s written employment contract is a private contract for private law to apply or public contract where public law should apply. 

THE LAW   

12. In Saiho v. Solomon, His Honour Anis J held as follows:

“1. To determine whether public or private law applies to a public servant's written contract, one must firstly treat it like a normal contract and interpret the express terms of the contract. (case referred to: Tom Gesa v. Bernard Kipit (2003) N2457).
2. When interpreting a contract to determine whether public or private law shall apply, the Court should apply the three (3) tests set out in the Supreme Court case of Joel Luma v. John Kali (2014) SC1401, namely:
(i) The Court must look at the process of appointment and revocation.
(ii) The subject action or decision must be of public importance and interest. It must be a subject of an exercise of power.
(iii) If the employing agency is not created under a statute but is incorporated under the Companies Act 1997, the termination is of a private law nature and the remedy of judicial review is not available to the aggrieved party.” 
13. Anis J further held that the plaintiff's contract of employment was subject to public law and not private law, which meant that his cause of action could not be sustained and was dismissed.
CONSIDERATION
14. The approach that I will take to determine the issue at hand is in this order:
1. Consider and interpret the terms of the Plaintiff’s written employment contract.
2. Apply the three tests in Luma v. Kali, (2014) SC 1401.
3. Make a finding on whether private or public law apply to the Plaintiff’s written employment contract. 
15. I first look at the express terms of the Plaintiff’s written employment contract which is Annexure “A” in Exhibit “P1”. It is titled “Employment Agreement – Specialist Medical Officer – Public Hospital”. I have considered the Employment Agreement. This is my interpretation of the Plaintiff’s written employment contract. It is an agreement between the State and the Plaintiff under the Public Services (Management) Act 1995 for the Position of Specialist Medical Officer (Surgeon). The Position of Specialist Medical Officer is established within the Department of Health under the provisions of the Public Services (Management) Act 1995. The signatories to this Employment Agreement were the Plaintiff, the First Defendant as the Chief Executive Officer of the Goroka General Hospital, and the Secretary for the Department of Health. The Secretary for the Department of Health had appointed the Specialist Medical Officer, the Plaintiff, for a three -year period. The Plaintiff’s contract comprises the Agreement, and the Terms and Conditions for the Employment of the Plaintiff. The contract is made under the Public Services (Management) Act 1995, and the General Orders are to prevail where the contract is silent.     
16. I am reminded by the case of Luma v. Kali (2014) SC 1401 to be guided by the following basic principles:
•	First, I must look at the process of appointment and revocation. If it is governed by the Constitution or statute, it is open to judicial review.  If not, it is a matter of private law where the appropriate remedy is damages for breach of contract.
 
•	Secondly, the subject action or decision must be of public importance and interest. It must be a subject of an exercise of power. 

•	The third consideration is that if the employing agency is not created under a statute but incorporated under the Companies Act, the termination is of a private law nature and the remedy of judicial review is not available to the aggrieved party.  
17. Applying the three tests in Luma v. Kali (2014) SC 1401 to the present case, I make these findings:
(i) It is clear from the Plaintiff’s Employment Agreement that the process of appointment is governed by the Public Services (Management) Act 1995. The General Orders are applicable here. The termination process is provided under the General 	Orders. The contract is made under the Public Services (Management) Act 1995, and 	the General Orders are to prevail where the contract is silent. The Plaintiff’s contract is a public contract.   

(ii) The Plaintiff alleges in paragraph 14 of his Statement of Claim that he was entitled to proper notices under General Order 9 of the Public Service General Orders, 4th Edition, 2012. He was not issued with the relevant Notices, and the forms used 	were not correct. The Plaintiff alleged that the Second Defendant failed to adhere to 	the requirements of the Public Service General Orders, and therefore his suspension 	and termination that followed were unlawful. An exercise of power to terminate a public servant in circumstances like this means that public law applies. The Plaintiff’s contract is a public contract.   

(iii) The Plaintiff who was a public servant signed a contract with the State. The Employment Agreement was between the State and the Plaintiff. The Plaintiff’s Position of Specialist Medical Officer was established under the Department of Health which is a State Department. The employing agency is not incorporated under the Companies Act. The Plaintiff’s contract is a public contract.   
 18. I find that the Plaintiff’s written employment contract is a public contract and public law applies. 

CONCLUSION
19. The Plaintiff’s termination is of a public law nature. The Plaintiff used the wrong mode of proceeding. Judicial review is the appropriate mode of proceeding. The Plaintiff should have filed a judicial review proceeding to seek a review of the decision-making process leading up to his termination. The current proceedings is not properly before the Court. I will therefore dismiss the entire proceedings.

COURT ORDER

20. I make these orders:

1. The entire proceedings is dismissed.
2. The Plaintiff shall pay the Defendants’ costs which are to be taxed if not agreed to.  
3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
K. Lafanama: Lawyer for the Plaintiff 
V. Mauta: Lawyer for the Defendants